USCA1 Opinion

UNITED STATES COURT OF APPEALS

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT

_________________________

No. 97-1845

UNITED STATES OF AMERICA,

Appellee,

v.

WAYNE O. SOWERS,

Defendant, Appellant.

_________________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. Gene Carter, U.S. District Judge]

___________________

_________________________

Before

Selya, Circuit Judge,

_____________

Coffin, Senior Circuit Judge,

____________________

and Shadur,* Senior District Judge.

_____________________

_________________________

William Maselli for appellant.

_______________
Margaret D. McGaughey, Assistant
_______________________
with whom Jay P. McCloskey,
________________

United

States Attorney,

United States Attorney, and Jonathan

________

A. Toof, Assistant United

________

States Attorney,

were on

brief, for

appellee.

_________________________

February 6, 1998
_________________________

__________
*Of the Northern District of Illinois, sitting by designation.

SELYA,
SELYA,

Circuit Judge.
Circuit Judge.

Defendant-appellant Wayne

O.

_____________

Sowers challenges his

intent

conviction for possession of

to distribute, see 21
___

(b)(1)(C) (1994),

arguments

evidence.1

U.S.C.

by resurrecting

advanced

in

his

cocaine with

841(a)(1), (b)(1)(B), and

some

but

unsuccessful

not all

motion

to

of the

suppress

In service of this end, the appellant argues that the

trial court erred in concluding that neither the detention of the

appellant and of a passenger

nor a warrantless

passenger,

in the vehicle that he was

search of the appellant's jacket,

produced

cognizable

driving

worn by the

constitutional

insult.

Concluding, as we do, that the district court properly denied the

appellant's

pretrial suppression motion,

of conviction.

I.

BACKGROUND

we affirm the judgment

I.

BACKGROUND

On

September 21,

1996, at

approximately

10:00 p.m.,

Maine State Trooper Kevin Curran was traveling northbound along a

desolate stretch of the Maine

he noticed

system.

a loud

His

noise

flashing lights.

He

the vehicle's

Curran also

exhaust

observed a

missing

slowed and activated his cruiser's blue

The Toyota stopped in the breakdown lane.

Curran approached the

the operator

While passing a Toyota,

emanating from

interest piqued,

front license plate.

Turnpike.

(Sowers) for his

license, along with

vehicle from the rear

papers.

and asked

Sowers produced

a registration listing

a valid

Tammy Gayton as

the

____________________

1To

the extent

that

arguments

hearing are not renewed on appeal,

made

at

the

suppression

we deem them abandoned.

United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990).

_____________
_______

See
___

Toyota's owner.

When Curran asked the young woman seated next to

Sowers to produce some form of identification, she responded that

she was

Tammy Gayton, but

acknowledged that she had

her person to

confirm that fact.

true identity,

Curran instructed

instructed Sowers to remain seated.

Unsure as to

her to

exit

nothing on

the passenger's

the vehicle

Both complied.

and

After physically separating

Curran noticed

thus

that they

questioned each

details

of

their

the two occupants, Trooper

both appeared

of them

as

travels.

to the

When

extremely nervous.

He

extent, purpose,

and

substantial

discrepancies

developed, his suspicions heightened.

Curran

police cruiser

asked the woman to

while he

remain standing next to his

initiated a

cursory background

check,

endeavored to verify her identity, and prepared citations for the

defective muffler, see

___

Me. Rev. Stat. Ann. tit.

(4) (West 1993), and the missing license

(West

1987).

driver's

registered

license

The

was

to Gayton.

background

valid

Curran

check

and

that

29-A

1912(1),

plate, see id.

___ ___

revealed

the

also obtained

that

Toyota

a rough

452(a)

Sowers's

was

duly

physical

profile

of Gayton, which seemed

to match the

woman whom he had

detained.

Despite

receipt of

this information,

Curran remained

dissatisfied with the conflicting answers that he had received in

response to his

earlier questioning.

He apprised

Gayton of his

lingering suspicions and sought permission to search her vehicle.

Gayton initially refused

to consent to a

search, but eventually

relented

after

narcotics dog

written

Curran

to

informed

perform

consent to the

her that

he

sniff-search.

would

After

vehicle search, Gayton's

summon

giving

her

anxiety became

more pronounced.

Before attempting to search the vehicle, Curran radioed

for assistance.

While

awaiting backup, Curran performed

down search of Gayton's person.

felt

a hard,

jacket she

cylindrical

was wearing.

a pat-

In the course of that search, he

object through

the

material of

Curran queried Gayton about

the

the item,

but she disclaimed any knowledge, stating that neither the jacket

nor its contents belonged to her.

the jacket

substance

pocket.

similar

It

in

proved to

appearance

Curran removed the object from

be

and

a package

consistency

containing

to cocaine.

Curran

promptly arrested

both Sowers

(age 42) and

Gayton (age

18).

Trooper

scene

at

approximately 10:40 p.m. and Curran then searched the Toyota.

He

found no

Frank

contraband.

Holcomb

After

arrived

the troopers

on

the

transported the

two

suspects to the Androscoggin County Jail, Sowers admitted that he

had

traveled

to

Massachusetts and

bought

quantities

of both

powdered and crack cocaine.

II.
II.

PROCEEDINGS BELOW
PROCEEDINGS BELOW

On October 10, 1996,

indictment that charged

possess

Sowers with possessing or

powdered and crack

The appellant

a federal grand jury returned

cocaine, with intent

moved to suppress

an

conspiring to

to distribute.

the evidence seized

during and

after

the roadside

events.

He

argued, inter
_____

alia, that
____

protracted investigative stop constituted an unlawful

and that

in all events the pat-down

also sought to exclude the

while in

custody on

detention,

search was unjustified.

incriminating statements made by

the ground that

fruits of an illegal detention.

those statements

the

He

him

were the

Following

an evidentiary

denied the suppression motion.

WL 97104 (D.

Me. Feb. 21,

hearing, the

See United States v. Sowers, 1997

___ _____________
______

1997).

The

court ratified both

stop and the ensuing roadside detention,

determined

district court

the

see id. at *4, and also

___ ___

that Sowers lacked standing to challenge the pat-down

search, see id. at *5.2

___ ___

In

two counts

short order, a

of the

jury found the

indictment.3

The

district court

Sowers to a 46-month term of imprisonment.

III.
III.

appellant guilty on

sentenced

This appeal followed.

DISCUSSION
DISCUSSION

In addressing

orders granting or

denying suppression,

we scrutinize the trial court's factual findings for clear

error

and

subject its ultimate

constitutional conclusions

to plenary

____________________

2Although use

of the

term "standing"

in this context

may

offend a legal purist, we have employed that word as "a shorthand

method of referring
Fourth Amendment

to the issue of whether

interests

governmental action."

were implicated

United States
_____________

the defendant's own

by

the

v. Sanchez, 943
_______

challenged

F.2d 110,

113 n.1 (1st Cir. 1991); accord United States v. Kimball, 25 F.3d
______ _____________
_______
1, 5 n.1 (1st

Cir. 1994); United States v. Gomez,

_____________
_____

770 F.2d 251,

253 n.1 (1st Cir. 1985);

United States v. Lochan, 674 F.2d

_____________
______

963 n.4 (1st Cir. 1982).

We follow that praxis here.

3The

government

had

brought,

conspiracy count.

and

960,

thereafter dropped,

review.

See Ornelas
___ _______

v. United States, 116 S.

______________

(1996); United States v. Schaefer, 87

______________
________

Ct. 1657,

F.3d 562, 565 &

1663

n.2 (1st

Cir. 1996); UnitedStates v.Zapata, 18F.3d 971, 975(1st Cir.1994).

____________
______

A.
A.
__

We open

appellant's

amounted

argument.

our discussion of the merits by addressing the

charge that the officer's detention of the motorists

to a

de facto
__ _____

He does not

initial stop,

arrest.

Sowers carefully

cabins this

contest Judge Carter's finding

for admitted equipment violations,

that the

was justified.

He argues instead

that the length and tenor of

the detention at

some point transmogrified a lawful Terry stop, see Terry v. Ohio,

_____
___ _____
____

392 U.S. 1 (1968), into an unlawful de facto arrest.

__ _____

Once Sowers

produced a valid

this thesis

runs,

Curran

motorists

Gayton's

both

and

driver's license and registration,

no

all

longer

had

any valid

the

events

that

basis

to

transpired

detain

the

thereafter

removal from the vehicle, the subsequent questioning of

individuals,

the

pat-down

search,

the

seizure

of

the

contents of the jacket's pockets, the arrest, and the post-arrest

interrogation

were beyond the pale.

The government says that Sowers lacks standing to voice

much

of this

plaint.

A defendant

constitutional claim on a violation

ordinarily

cannot base

of a third person's

rights.

See Rakas v. Illinois, 439 U.S. 128, 138-40 (1978); United States
___ _____
________
_____________

v.

Kimball, 25
_______

F.3d

1, 5

(1st Cir.

Santana, 6 F.3d 1, 8-9 (1st Cir. 1993).

_______

that Sowers's challenge

United States
_____________

v.

Therefore, to the extent

rests on Gayton's privacy

is barred.

1994);

interests, it

Nonetheless, there

meets the

the

is more to Sowers's

prosecution's eye.

highway,

both

the

Once the

driver

challenge than

police halt a vehicle on

and the

passengers

practical sense subject to the officers' authority.

United States, 116 S. Ct.

_____________

a vehicle

scope of the

fourth amendment, when a police

challenge

are subjected to

stop of the vehicle).

his own

in

See Whren v.
___ _____

1769, 1772 (1996) (explaining that all

occupants of

investigatory

are

a seizure,

officer effects an

Thus, any

detention regardless

within the

one of them may

of whether

he was

the

immediate target of the investigation or whether he had a privacy

interest in the vehicle itself.

means that

the

See Kimball, 25 F.3d at 5.

___ _______

appellant's challenge

properly before us.

of his

own detention

This

is

On this

issue, the

appellant acknowledges that

Terry
_____

sanctions a brief detention of

an individual to confirm or allay

a police

suspicions.

officer's reasonable

392 U.S.

at 20-21.

Still, he contends that Trooper Curran's persistence converted an

initially lawful Terry stop into a de facto

_____
__ _____

than

probable

commonplace

cause

(and,

hence,

unlawful).

argument, the evaluation of

specific.

See Zapata, 18 F.3d

___ ______

no precise

formulae that

arrest based on less

This

is

which tends to be case-

at 975 (observing that there are

enable courts

to distinguish

between

investigatory stops and de facto arrests).

__ _____

The

effort to locate

along the continuum of detentions

a particular sequence

of events

begins with a determination as

to whether the officer's actions were justified at the inception.

See Terry, 392 U.S. at 19-20;

___ _____

522, 530 (1st

Cir. 1996).

United States v. McCarthy, 77 F.3d

_____________
________

In this case,

initial Terry stop cannot be gainsaid.

_____

hinges,

therefore,

on

officer

following the

whether the

stop were

the propriety of

the

The appellant's argument

actions

reasonably

undertaken

by the

responsive to

the

circumstances

justifying

the

stop

augmented by information gleaned by

See United States v.

___ ______________

States v. Stanley,
______
_______

915 F.2d 54, 55

intrusion

and "balance[]

on personal

the

first

place,

as

the officer during the stop.

Sharpe, 470 U.S.

______

this query, an inquiring court

circumstances

in

675, 682

(1984); United
______

(1st Cir. 1990).

To answer

must consider the totality of the

the

nature

security against

and

the

quality

of

the

importance of

the

governmental interests alleged to justify the intrusion."

United
______

States v. Hensley, 469 U.S. 221, 228 (1985).

______
_______

On this question, the

district court supportably found

that Curran's level of warranted suspicion gradually escalated as

his

encounter with

Sowers

and

Gayton

progressed.

Based

on

unfolding

events,

the

trooper's

attention

(and,

thus,

his

reasonable suspicions) shifted away from the equipment violations

that prompted the initial stop toward a belief that the detainees

were engaged in more serious skulduggery.

is neither unusual nor impermissible.

at 974.

In

his testimony

Sowers, 1997 WL 97104, at

______

Such a

See, e.g., Zapata, 18 F.3d

___ ____ ______

which the lower

*4

bases for his dawning belief

shift in focus

court credited, see

___

Curran recited the particularized

that Sowers and Gayton were engaged

in criminal

inability

misconduct.

to

confirm

He pointed,

her

for example,

identity,

nervousness, and the conflicting stories

not

at liberty

blithely to

credibility

determinations.

Consequently

we cannot

the

say, in

pair's

excessive

that they told.

We are

the district

court's

second-guess

See
___

to Gayton's

Zapata,
______

light of

18

F.3d

what the

at

975.

lower court

found to be the circumstances obtaining on the night in question,

that the officer's

was unreasonable.

continued pursuit of his

See
___

mounting suspicions

Davis v. United States 409

_____
_____________

F.2d 458, 460

(D.C. Cir. 1969) (remarking that "conduct innocent in the eyes of

the

untrained may

carry entirely

different

`messages' to

the

experienced or trained

observer"); see also Stanley, 915 F.2d at

___ ____ _______

56.

By the

Trooper Curran,

same token,

in acting

we are not

on these

impermissible de facto arrest.

__ _____

inclined to

hold that

suspicions, perpetrated

an

In assaying such a claim, a court

must weigh, among other factors, the length of the detention, the

restrictions

placed

on an

force (if any) that was

detainee, and

F.3d at 530.

restriction

individual's personal

exerted, the information conveyed to the

the severity of

Here, no force

on

Sowers's

____________________

movement, the

the intrusion.

or show of force

freedom

of

movement

See
___

McCarthy, 77
________

occurred.4

The

namely,

the

4The

appellant suggests that

Curran's mention of

sniff-search amounted to a threat, and thus was

This

argument

conversation took

never

takes

place with

wing,

a show of force.

however,

Gayton, out

a canine

because

of Sowers's

that

earshot.

Absent any communication, the "threat" could not have constituted

a show of force as to Sowers.
__ __ ______

trooper's instruction

that he

remain in the

onerous.

See, e.g.,
___ ____

Maryland v.
________

(1997);

Pennsylvania v.

Mimms, 434

Wilson, 117
______

U.S. 106,

vehicle

was not

S. Ct.

111

882, 886

(1977) (per

____________

_____

curiam).

To

sum

up,

reasonable suspicion,

the

Supreme

like probable

Court

has

cause, is

cautioned

not amenable

that

to

technical formulations that purport to identify the precise types

of conduct or sets of circumstances that will

or will not permit

police officer to stop and detain an individual.

116 S. Ct.

at 1661.

To

the contrary, the Justices

See Ornelas,
___ _______

have looked

favorably upon a practical, commonsense approach to the

reasonable suspicion.

See id.
___ ___

Viewing the facts of this case in

a down-to-earth manner, we conclude

not err

in finding

prolong the

that Curran

stop beyond the

issue of

had

that the district court

adequate justification

point at which Sowers

did

to

produced his

papers and thereafter beyond the point at which Gayton's identity

was nominally corroborated.

105

F.3d 1, 6 (1st

though at

stop

See, e.g., United States v. Young,

___ ____ ______________
_____

Cir. 1997); McCarthy, 77

________

least thirty minutes

F.3d at 530.

elapsed between the time

Even

of the

and the discovery of what appeared to be contraband, we see

no basis for

disrupting the district court's

that no de facto arrest transpired.

__ _____

815 F.2d

153, 157 (1st Cir.

See United States v. Quinn,

___ ______________
_____

1987) (remarking that

talismanic time beyond which any stop

basis of Terry
_____

founded conclusion

"there is no

initially justified on the

becomes an unreasonable seizure under

amendment") (quoting United States v. Davies, 768

______________
______

10

the fourth

F.2d 893, 901

(7th Cir. 1985)); see also

___ ____

cases in

which detentions of

minutes have been approved).

bound

McCarthy, 77 F.3d at 530 (chronicling

________

to

indicators,

hold

that

the

much longer

Put another way, the court

relatively

non-confrontational

officer's discovery

duration than

short-lived and,

was not

by

all

preceded

the

contraband constituted

the

detention

of the apparent

thirty

functional equivalent of a formal arrest.

that

B.
B.
__

The appellant

Gayton, and in

which

Gayton

rejected this

also challenges

the pat-down

particular, the search of a jacket

was wearing

challenge.

at

the

Relying

time.

The

search of

that he owned

district

on Frazier v. Cupp,
_______
____

court

394 U.S.

731 (1969), and United States v. Alewelt, 532 F.2d 1165 (7th Cir.
_____________
_______

1976), it

concluded that the appellant, "upon lending his jacket

to Gayton, relinquished control over the jacket and forfeited the

reasonable expectation of privacy he had in the jacket."

1997 WL 97104,

at *5.

Mindful that we are

Sowers,
______

not chained to

lower court's rationale but may affirm on any alternative

supported by the record, see Hachikian v. FDIC,

___ _________
____

the

ground

96 F.3d 502, 504

(1st Cir. 1996),

we choose to follow a

Consequently,

we

determination

that

longer

take

no

Sowers,

claim a reasonable

view

of

having lent

different analytic path.

the

his

district

court's

jacket,

could no

expectation of privacy

vis- -vis the

contents of its pockets.

The

fundamental

that it misapprehends

flaw in

the appellant's

the character of a

11

Terry stop.
_____

argument is

The pat-

down search that a Terry stop entails is a search of

_____

See
___

Terry, 392 U.S. at 24-25

_____

search as

"a limited search

(describing the permitted pat-down

of the outer clothing

and recognizing that such a search "constitutes

brief, intrusion upon

the person.

for weapons"

a severe, though

cherished personal security"); see

___

Wayne R. Lafave, Search and Seizure

___________________

9.5(b) (3d ed.

also 4
____

1996).

To

say that such a search involves a separate and distinct search of

the detainee's clothing distorts the

Terry principle.
_____

appellant, who was not himself subjected to the pat-down

Thus, the

search,

cannot bottom his Fourth Amendment challenge on that search.

Kimball, 25 F.3d at 5 (holding

_______

that "a proponent of a motion

See
___

to

suppress

must

prove

that

the

challenged governmental

infringed upon his own Fourth Amendment rights").

possessory

interest that

Sowers retained

in

action

So viewed, any

the jacket

which

Gayton was wearing during the search is an irrelevancy.

IV.
IV.

CONCLUSION
CONCLUSION

We need

are

go no further.

fully persuaded

that

the

Having combed the

district court

denying Sowers's motion to suppress.

must therefore be

Affirmed.
Affirmed.
________

did

record, we

not err

in

The judgment of conviction

12