United States v. Tanguay , 918 F.3d 1 ( 2019 )

United States Court of Appeals
For the First Circuit
No. 18-1271
UNITED STATES OF AMERICA,
Appellee,
v.
ERIC TANGUAY,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Joseph A. DiClerico, Jr., U.S. District Judge]
Before
Torruella, Kayatta, and Barron,
Circuit Judges.
Stanley W. Norkunas on brief for appellant.
Seth R. Aframe, Assistant United States Attorney, and Scott
W. Murray, United States Attorney, on brief for appellee.
March 8, 2019
KAYATTA, Circuit Judge. Eric Tanguay was seated in his
car with a friend in a parking lot when a local police officer
approached and asked him several questions. His answers led to a
search, followed by the seizure of evidence of potential drug
trafficking. On this appeal following his conviction under 21
U.S.C. § 841(a), Tanguay contends that the district court erred in
failing to suppress that evidence. For the following reasons, we
find the search and seizure to have been lawful, so we affirm.
I.
We recite the facts "as the trial court found them,
consistent with record support." United States v. Ruidíaz, 529
F.3d 25, 27 (1st Cir. 2008) (quoting United States v. Lee, 317
F.3d 26, 30 (1st Cir. 2003)).
Shortly after midnight on March 31, 2016, police officer
Adam Rayho drove by a local strip mall in Nashua, New Hampshire
while on patrol. In the parking lot he saw an SUV parked apart
from any other vehicle and approximately 100 to 150 feet from a
Taco Bell restaurant, which had not yet closed. The only other
business in the vicinity that remained open was a 24-hour gym.
Approximately twenty minutes later, after responding to
an unrelated call, Rayho drove by the lot a second time. The
lone SUV was still parked in the same spot. He decided to
investigate. He entered the lot and pulled his marked cruiser
seven to ten feet behind the parked SUV without obstructing its
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path of egress. Rayho illuminated the SUV with his floodlights
and activated the rear-facing -- but not the front-facing -- blue,
flashing emergency lights atop his cruiser. The record does not
indicate whether the rear-facing flashing lights were visible to
the occupants of the parked SUV.
With his weapon holstered, Rayho approached the driver-
side of the SUV with a flashlight in hand. He further illuminated
the interior of the SUV with his flashlight and asked the driver,
Eric Tanguay, and the passenger, Jacqueline, for their names, which
they provided. Recognizing Tanguay's name as a reported user and
dealer of illegal drugs, Rayho asked them what they were doing in
the parking lot so late. They replied that they "were eating food
from Taco Bell." Rayho could see that was indeed the case and
joked with them that he also enjoyed Taco Bell.
Rayho asked the couple for their licenses. Both replied
that they were not carrying identification. When Rayho then asked
who owned the SUV, Tanguay stated that he did not own it. Rayho
finally asked Tanguay "if it would be all right if [he] returned
to [his] cruiser to conduct a [records] query on him," to which
Tanguay said it would be. At some point during this initial
encounter -- yet exactly when is unclear from the record -- a
second police officer arrived and parked his cruiser behind Rayho's
vehicle.
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From that point on, things went downhill quickly for
Tanguay. While sitting in his cruiser running the records check,
Rayho noticed Jacqueline crouch down and reach for something under
the front passenger seat. Rayho immediately returned to the SUV
and again asked Tanguay for identification. This time, Tanguay
said his license was in a backpack in the trunk of the vehicle,
and he requested permission to obtain it. Rayho agreed that
Tanguay could show him where in the trunk he could find the license
but stated that, for safety purposes, he would be the one to
retrieve it.
When Tanguay opened his door to go to the trunk of the
SUV, Rayho saw what appeared to be the butt end of a gun stashed
in the driver-side door. Tanguay and Rayho walked to the rear of
the SUV and opened the trunk. Rayho then retrieved Tanguay's
license from a wallet stowed in a small pocket of the backpack.
Rayho noticed that the wallet contained a large sum of cash (later
determined to be $2,800) and that the large, main compartment of
the backpack was padlocked.
When asked about the gun in the driver-side door, Tanguay
informed Rayho that it was merely a BB gun. Rayho ordered
Jacqueline out of the SUV and confirmed that the weapon was, in
fact, a BB gun. Rayho then asked for and received Tanguay's
consent to search the vehicle. Under the passenger seat, he found
a partially open sunglasses case, containing a loaded hypodermic
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needle, a pill, and Narcan (an opioid-overdose-reversal drug).
When confronted with this discovery, Tanguay informed Rayho that
Jacqueline was a drug user and was likely carrying drugs. Rayho
next asked about the padlock on the backpack. Tanguay became
visibly nervous and stated that an unknown individual had placed
the padlock there. Rayho then arrested Tanguay on suspicion of
possession of a controlled substance.
At the police station, Rayho again asked Tanguay about
the backpack. Tanguay admitted that it was his, but he doubled
down on his claim that someone else had padlocked it. He also
stated that he believed some other person had put illegal items in
the bag. Tanguay then consented to a search of the backpack, and
Rayho removed the lock with bolt cutters. Inside, Rayho found
prescription pills, fentanyl, methamphetamine, a scale, baggies,
rubber bands, a marker, and mail posted to Tanguay.
A grand jury indicted Tanguay for one count of possession
with intent to distribute a controlled substance in violation of
21 U.S.C. § 841(a)(1). Subsequently, Tanguay filed a motion to
suppress the government's evidence, arguing that Rayho lacked
reasonable suspicion to initiate and continue the inquiries that
led to the discovery of the evidence gathered against him. The
district court denied the motion. Tanguay then entered a
conditional guilty plea in which he preserved the right to appeal
the district court's ruling on the motion to suppress. The
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district court issued a judgment of guilty and sentenced him to
thirty months in prison with three years of supervised release.
Tanguay then timely filed this appeal.
II.
A.
Tanguay's motion to suppress the incriminating
contraband raises two initial questions: When did Rayho's
interaction with Tanguay become a non-consensual, investigatory
stop? And when did Rayho acquire reasonable suspicion to conduct
such a stop? If the latter occurred before the former, Tanguay
has no valid Fourth Amendment challenge, see Arizona v. Johnson,
555 U.S. 323, 326 (2009) (explaining that a non-consensual,
investigatory stop does not conflict with the Fourth Amendment if
the officer "reasonably suspects that the person apprehended is
committing or has committed a criminal offense"), unless the
investigatory inquiry became so intrusive as to require probable
cause, see United States v. Young, 105 F.3d 1, 7–8 (1st Cir. 1997).
But if Rayho effected a non-consensual, investigatory "Terry stop"
before he had reasonable suspicion that a crime was afoot, then
the officer violated Tanguay's Fourth Amendment rights. See United
States v. Fields, 823 F.3d 20, 25 (1st Cir. 2016).
We have previously held that a driver's inability to
provide identification and a legible vehicle registration provides
a sufficient basis for an officer to suspect that the vehicle was
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stolen. See United States v. Tiru-Plaza, 766 F.3d 111, 117 (1st
Cir. 2014); see also United States v. Cardona-Vicente, 817 F.3d
823, 828 (1st Cir. 2016) ("The driver of the car could not produce
a driver's license, suggesting the Jeep may have been stolen.");
United States v. Fernandez, 18 F.3d 874, 879 (10th Cir. 1994)
("[T]he defendant's lack of a valid registration . . . or some
other indicia of proof to lawfully operate and possess the vehicle
in question . . . giv[es] rise to objectively reasonable suspicion
that the vehicle may be stolen."). Tanguay's initial failure to
produce a driver's license coupled with his admission that he was
not the owner of the SUV similarly provided Rayho with good reason
to believe that something was awry and that the SUV may have been
stolen.
Tanguay responds that Rayho did not claim to have
believed that the SUV had been stolen. But, "[i]n determining
whether an officer had reasonable suspicion to justify a Terry
stop . . ., the officer's subjective motives do not enter into the
decisional calculus." United States v. Romain, 393 F.3d 63, 74
(1st Cir. 2004) (citing Whren v. United States, 517 U.S. 806, 812
(1996)).
Furthermore, Tanguay cannot reasonably contend that
Rayho's subsequent investigative inquiry exceeded the scope of a
permissible Terry stop. See generally Terry v. Ohio, 392 U.S. 1,
18–27 (1968); Young, 105 F.3d at 5–8. A Terry stop does not
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require probable cause so long as the police officer's actions are
"reasonably related in scope to the circumstances which justified
the interference," Young, 105 F.3d at 7, or are "reasonable in
light of the circumstances that . . . develop[] during [the
stop]," United States v. Acosta-Colon, 157 F.3d 9, 14 (1st Cir.
1998). Officer Rayho's decision to run a records check (to which
Tanguay consented) was entirely justified given Tanguay's lack of
identification and proof of ownership. His return to the SUV to
repeat his request for identification was a reasonable and
proportionate response to Jacqueline's suspicious movements. And
Rayho can hardly be criticized for ordering her removal from the
vehicle and verifying that the weapon in the driver-side door was
in fact a BB gun, for "officers must be allowed, during the course
of [a Terry] stop, to take measures that are reasonably calculated
to protect themselves or others from harm." United States v.
Rasberry, 882 F.3d 241, 247 (1st Cir. 2018) (citing Flowers v.
Fiore, 359 F.3d 24, 30 (1st Cir. 2004)). Finally, Rayho's further
questioning of Tanguay was a measured and reasonable response to
finding the loaded needle, pill, and Narcan.
Accordingly, we find that when Tanguay initially failed
to produce a license and indicated he was not the owner of the
SUV, Rayho was entitled to conduct a non-consensual, investigative
Terry stop, and he did not thereafter exceed the permitted scope
of such an investigation before he acquired probable cause to
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arrest Tanguay. These findings leave Tanguay to argue that Rayho
commenced the non-consensual, investigative stop before Tanguay's
failure to produce a license gave rise to a reasonable suspicion
that a crime was in progress. It is to that argument that we next
turn.
B.
The government effectively concedes that Rayho had no
reasonable suspicion of criminal activity prior to Tanguay's
initial failure to produce identification. So the pivotal question
is whether Rayho's interaction with Tanguay prior to that point
rose to the level of a "seizure" for which reasonable suspicion is
required.
In Terry, the U.S. Supreme Court held that a Fourth
Amendment seizure occurs "whenever a police officer accosts an
individual and restrains his freedom to walk away." 392 U.S. at
16. However, "[t]he police need not have taken physical custody
of a person in order to . . . effect[] a Terry stop for which at
least reasonable suspicion is required. Such a stop instead may
occur merely upon law enforcement making what the Supreme Court
has termed a 'show of authority.'" Fields, 823 F.3d at 25 (quoting
United States v. Mendenhall, 446 U.S. 544, 553–54 (1980) (opinion
of Stewart, J.)). Tanguay has the burden to establish that there
was a show of authority sufficient to trigger a Fourth Amendment
violation. See id. at 31.
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To determine whether a police officer has made such a
"show of authority," the Supreme Court directs us to ask the
following: "[I]n view of all of the circumstances surrounding the
incident," would "a reasonable person . . . have believed that he
was not free to leave[?]" Mendenhall, 446 U.S. at 554; see also
INS v. Delgado, 466 U.S. 210, 215 (1984) (endorsing the test
Justice Stewart enunciated in Mendenhall). At the same time, the
Court has also held that officers -- even without any basis for
suspecting that an individual has committed a crime -- "may
generally ask questions of that individual, ask to examine the
individual's identification, and request consent to search his or
her luggage -- as long as the police do not convey a message that
compliance with their requests is required." Florida v. Bostick,
501 U.S. 429, 434-35 (1991) (citations omitted). In practice,
there is some tension between the Court's "free to leave" test and
its sanctioning of these suspicionless police-civilian encounters
because, as we have recognized, "few people . . . would ever feel
free to walk away from any police question[ing]." United States
v. Cardoza, 129 F.3d 6, 16 (1st Cir. 1997); see also Edwin J.
Butterfoss, Bright Line Seizures: The Need for Clarity in
Determining when Fourth Amendment Activity Begins, 79 J. Crim. L.
& Criminology 437, 440 (1988) ("[M]ost of the citizens in these
'nonseizure' encounters do not feel free to walk away."); David K.
Kessler, Free to Leave? An Empirical Look at the Fourth
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Amendment's Seizure Standard, 99 J. Crim. L. & Criminology 51, 73–
79 (2009) (providing survey results demonstrating that few people
would feel free to voluntarily terminate police questioning).
We tried to resolve this tension in Cardoza by adopting
a test that asks whether the "police conduct, viewed from the
totality of the circumstances, . . . objectively communicate[s]
that the officer is exercising his or her official authority to
restrain the individual's liberty of movement." Cardoza, 129 F.3d
at 16. This is a "highly fact specific" inquiry. Id. at 15.
Discerning such an objective communication of authority is easiest
when the officer expressly asserts it through a command. See,
e.g., United States v. Camacho, 661 F.3d 718, 725 (1st Cir. 2011)
(finding a show of authority when officers ordered the defendant
to place his hands on the hood of a car); United States v. Dubose,
579 F.3d 117, 121 (1st Cir. 2009) (finding a seizure when an
officer commanded an individual to stop and remove his hand from
his sweatshirt pocket); Estate of Bennett v. Wainwright, 548 F.3d
155, 172 (1st Cir. 2008) (finding officers' order to evacuate
sufficiently coercive to constitute a show of authority); United
States v. Espinoza, 490 F.3d 41, 50 (1st Cir. 2007) (finding a
seizure when an officer ordered a driver to shut off his car
engine); see also United States v. Smith, 423 F.3d 25, 30 (1st
Cir. 2005) (finding no show of authority in part because police
officers "did not summon [the defendant] to the [police] car, or
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ask him to move from his seat on the wall, or demand that he do
anything").
More difficult are those instances in which the officer
communicates his or her authority by actions rather than words.
Certainly the absence of any verbal command cuts against a finding
of an objectively communicated exercise of authority. See, e.g.,
Fields, 823 F.3d at 28 ("It is well established that the absence
of police commands or any sort of verbal demonstration of authority
weighs against the conclusion that there has been a show of
authority . . . ."). Nevertheless, non-verbal communications can
undoubtedly be clear enough to constitute a show of authority.
See, e.g., United States v. Belin, 868 F.3d 43, 48 (1st Cir. 2017)
(finding a show of authority when an officer grabbed the
defendant's arm and reached toward his waist with his other hand
to frisk the defendant's waistband); see also Mendenhall, 446 U.S.
at 554 (identifying several, non-exclusive indicia of a seizure,
including the "threatening presence of several officers, the
display of a weapon by an officer, some physical touching of the
person of the citizen, or the use of language or tone of voice
indicating that compliance with the officer's request might be
compelled").
However, the officer's status as a police officer will
not itself transform otherwise innocuous conduct into a non-verbal
command, thus effectuating a seizure. See Smith, 423 F.3d at 28
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("[S]ince most tend to feel some degree of compulsion when
confronted by law enforcement officers asking questions, such
discomfort cannot be the measure of a Fourth Amendment seizure.
If it were, officers would effectively be barred from approaching
citizens at all, absent full-blown probable cause."); Wayne R.
LaFave, Search and Seizure: A Treatise on the Fourth Amendment
§ 9.4(a) (5th ed. 2018) ("The critical factor is whether the
policeman, even if making inquiries a private citizen would not,
has otherwise conducted himself in a manner which would be
perceived as a nonoffensive contact if it occurred between two
ordinary citizens."). Gauging an officer's words and actions in
this way (i.e., ignoring the implicit manifestation of authority
conveyed by the officer's status as a police officer) likely means
that submissions to police requests are often deemed uncoerced
even when they are subjectively involuntary. See Scott E. Sundby,
The Rugged Individual's Guide to the Fourth Amendment: How the
Court's Idealized Citizen Shapes, Influences, and Excludes the
Exercise of Constitutional Rights, 65 UCLA L. Rev. 690, 694 (2018)
(explaining that the Supreme Court's Fourth Amendment
jurisprudence assumes an idealized civilian in police-civilian
interactions who "actively stand[s] up to law enforcement and
assert[s] [their] rights"); see also I. Bennett Capers, Criminal
Procedure and the Good Citizen, 118 Colum. L. Rev. 653, 666-67
(2018) (examining the Supreme Court's "citizenship talk" in its
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Fourth Amendment cases and its assumption that civilians will
welcome police inquiries, view them as consensual, and comply with
police requests even when they need not). But our law, as we are
bound to follow it, seems to accept this result as the price we
pay for a greater ease in discovering criminal activity. See
Delaware v. Prouse, 440 U.S. 648, 654 (1979) ("[T]he permissibility
of a particular law enforcement practice is judged by balancing
its intrusion on the individual's Fourth Amendment interests
against its promotion of legitimate governmental interests.").
Here, Rayho made no explicit, verbal command of Tanguay
prior to acquiring reasonable suspicion that the SUV was stolen.
Nor did his conduct, taken together, communicate a non-verbal
command. Tanguay makes no claim that Rayho signaled to him to
shut off the engine of the SUV, touched his weapon or Tanguay's
person, spoke with intimidating language or tone of voice, or
tarried long. See Mendenhall, 446 U.S. at 554; Espinoza, 490 F.3d
at 50. And Tanguay offers no evidence that, before Tanguay failed
to produce identification, Rayho called for backup in his presence,
or that backup arrived. See Mendenhall, 446 U.S. at 554; Fields,
823 F.3d at 25. An ordinary citizen might have stopped and
inquired into Tanguay's activity in the parking lot without
engaging in behavior that would normally be deemed offensive
(though it might come across as nosy). We see no reason to say
that a police officer could not do the same without conveying a
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non-verbal message of authority. Cf. LaFave, supra, § 9.4(a).
And precedent indicates such to be the case, at least in the
absence of some other display of authority. See United States v.
Taylor, 511 F.3d 87, 91 (1st Cir. 2007) ("[A]pproaching a parked
car and questioning the occupant does not necessarily rise to the
level of a Terry stop . . . .").
On the other hand, Rayho did ask for a license, something
that an ordinary citizen would not do without appearing quite
presumptuous. But he asked -- he didn't order. And, in any event,
that is the type of de minimis intrusion that we have long agreed
to tolerate as a necessary part of policing. See Bostick, 501
U.S. at 434–35; see also Hiibel v. Sixth Judicial Dist. Court of
Nev., Humboldt Cty., 542 U.S. 177, 185 (2004) ("In the ordinary
course a police officer is free to ask a person for identification
without implicating the Fourth Amendment."). Rayho's use of a
flashlight and floodlight to illuminate the interior of the SUV
also arguably comes close to communicating some type of command.
But precedent again precludes us from treating this type of conduct
as a command, perhaps because to rule otherwise would be to prevent
officers from safely visiting parked vehicles at night. See Texas
v. Brown, 460 U.S. 730, 739–40 (1983) ("[The officer's] action in
shining his flashlight to illuminate the interior of Brown's car
trenched upon no right secured to the latter by the Fourth
Amendment."); see also United States v. Mabery, 686 F.3d 591, 597
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(8th Cir. 2012) (finding no seizure when an officer shined a
spotlight on a civilian's vehicle); United States v. Clements, 522
F.3d 790, 792, 794–95 (7th Cir. 2008) (finding no show of authority
when officers activated a cruiser's spotlight and approached a
parked car).
The activation of the blue flashing lights atop Rayho's
cruiser is a different story. This is not the type of conduct in
which an ordinary citizen would likely engage. Nor does the weight
of precedent routinely classify such conduct as failing to send a
message of command. Certainly drivers who view such lights in
their rearview mirrors usually construe them as a command to pull
over. See Brower v. County of Inyo, 489 U.S. 593, 598 (1989).
Here, though, Rayho activated only his rear-facing lights, and
Tanguay, who was already stopped, makes no claim to have been able
to see them. See Camacho, 661 F.3d at 724 ("The [defendant] bears
the burden of showing a violation of his Fourth Amendment
rights."). So the blue lights need not enter into our
consideration.
All told, considering Rayho's words and conduct as
manifest to Tanguay, we find that Rayho did not use his authority
to restrain Tanguay's liberty before Rayho acquired a reasonable
suspicion that Tanguay was engaged in a crime. Accordingly, we
cannot say that the district court erred in finding no Fourth
Amendment violation and denying Tanguay's motion to suppress.
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III.
For the foregoing reasons, we affirm the district
court's denial of Tanguay's motion to suppress the government's
evidence.
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