United States v. Howard ( 2023 )

United States Court of Appeals
For the First Circuit
No. 22-1111
UNITED STATES OF AMERICA,
Appellee,
v.
YOLANDA HOWARD,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. George Z. Singal, U.S. District Judge]
Before
Kayatta, Gelpí, and Montecalvo,
Circuit Judges.
Robert C. Andrews for appellant.
Brian S. Kleinbord, Assistant United States Attorney, with
whom Darcie N. McElwee, United States Attorney, was on brief for
appellee.
April 19, 2023
GELPÍ, Circuit Judge. Defendant-Appellant Yolanda
Howard ("Howard") was a passenger in a single-vehicle car crash on
the Maine Turnpike. Maine State Police Troopers responded and
became suspicious that the vehicle or its occupants were
transporting drugs. After a search of Howard's bag revealed
suspected narcotics, troopers placed her under arrest for
possession with intent to distribute a controlled substance, in
violation of 21 U.S.C. § 841(a)(1). Following the district
court's denial of Howard's motion to suppress the drug evidence,
she pled guilty. Because we conclude that Howard's initial
encounter with police was not a traffic stop, that any subsequent
seizure of Howard -- if one occurred at all -- was supported by
reasonable suspicion, and that she voluntarily consented to the
search of her bag, we affirm.
I. Background
A. Facts
When reviewing the denial of a motion to suppress, "we
take the facts from the district court's decision and from the
suppression hearing, presenting them in the light most compatible
with the district court's ruling." United States v. Dion, 859
F.3d 114, 118 (1st Cir. 2017).
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At approximately 7:01 a.m.1 on February 28, 2019, Maine
State Police Trooper Lee Vanadestine ("Trooper Vanadestine") was
working a patrol shift on the Maine Turnpike. While traveling
northbound, he observed that a vehicle -- approximately 100 feet
off the right side of the road -- had crashed into a snowbank and
that four people were standing around it. The crash site was miles
away from the nearest exit or service plaza. Trooper Vanadestine
activated his emergency lights and pulled over to assess the scene
and check whether anyone was hurt. Around this same time, he
radioed dispatch about the crash and requested a tow truck. As he
exited his vehicle, three individuals approached him, however, the
fourth -- later identified as Howard -- walked through the snow in
the opposite direction.
After speaking with the three individuals that
approached him, Trooper Vanadestine learned that one was a witness,
who observed the vehicle go off the road, and that the other two
(a male and a female), along with Howard, were occupants of the
crashed vehicle. Trooper Vanadestine determined that the female,
Jacqueline Paulson ("Paulson"), was the driver of the crashed
vehicle and that the male, Beau Cornish ("Cornish"), was a
1 Trooper Vanadestine testified that he approached the crash
around 6:50 a.m., however, the video from his dashboard
camera -- that he testified is dated and timed correctly -- begins
at 7:01 a.m. We rely on the video's timing in our recitation of
the facts and subsequent discussion.
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passenger. Based on his initial conversation with Paulson and
Cornish, Trooper Vanadestine believed that their stories about
where they were coming from and heading to were not lining up and
observed that they were acting like they did not know one another.
While Trooper Vanadestine spoke with Paulson and Cornish, Howard
avoided the group, remaining approximately fifty feet away from
Trooper Vanadestine. She also never attempted to speak with him.
Around 7:05 a.m., Howard, who was talking on her phone, walked
into the roadway at least twice in what Trooper Vanadestine
believed was an attempt to read the road signs. He instructed her
to stay out of the roadway for her own safety.
At approximately 7:06 a.m., Trooper Anthony Keim
("Trooper Keim") arrived on scene to assist Trooper Vanadestine.
The two troopers questioned and checked the identifications of the
vehicle's occupants, as well as Paulson's registration and
insurance information. Cornish told Trooper Vanadestine during
their initial conversation that his name was Levi Veno but provided
no identification. Around 7:07 a.m., the troopers spoke with
Paulson, who produced a Maine driver's license but was unable to
provide registration or insurance information for the vehicle.
Paulson told the troopers that the group was on a trip, that she
knew the passengers, that the female was her friend, and that the
male's name was Levi. At around 7:08 a.m., Trooper Keim spoke
with Howard, who produced a New York identification card and told
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him that the group was traveling from New York. She identified
the driver of the vehicle as Casey and could not provide
information about the male passenger other than telling Trooper
Keim that he was the driver's boyfriend.
While Trooper Keim spoke with Howard, Trooper
Vanadestine contacted Maine State Police Sergeant Thomas Pappas
("Sergeant Pappas") to inform him that he suspected the vehicle or
its occupants carried drugs. During the call, Trooper Vanadestine
explained that the occupants appeared to not know one another,
where they were going, or where they were coming from. Trooper
Keim approached Trooper Vanadestine while he was on the phone and
expressed the same concern about the occupants not knowing one
another. Trooper Vanadestine explained to Sergeant Pappas that
the occupants claimed that they went to New York to pick up Howard,
who had walked away in the snow when Trooper Vanadestine arrived
and would not go near him. After the call concluded, at
approximately 7:11 a.m., Trooper Keim ran the name Levi Veno and
came back with a photograph and description that did not match the
male passenger. Around 7:13 a.m., Trooper Keim confronted the
male passenger, obtained his true name -- Beau Cornish -- and
learned that Cornish potentially had warrants out for his arrest.
At 7:14 a.m., Trooper Keim arrested Cornish, placed him in the
front seat of his cruiser, and, at 7:20 a.m., confirmed that
Cornish had outstanding warrants. During this same period of time,
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Trooper Vanadestine observed Howard and Paulson standing together,
talking, and trading cell phones back and forth.
Around 7:23 a.m., Trooper Vanadestine allowed Paulson to
sit in his cruiser to get warm while he interviewed her because it
was eight degrees outside. Before Paulson entered his cruiser,
Trooper Vanadestine patted down her outer clothing to ensure that
she did not have weapons. By this time, the troopers were aware
that Howard had no warrants out for her arrest. Shortly
thereafter, at 7:30 a.m., Trooper George Loder ("Trooper Loder")
arrived at the scene. Because it was cold and Trooper Keim and
Trooper Vanadestine's cruisers were occupied by Cornish and
Paulson respectively, Trooper Keim asked Trooper Loder if Howard
could sit in his cruiser to get warm. Trooper Loder agreed.
Unlike traditional police vehicles where the backseat is
separated from the front seat by a cage or glass partition, the
cruisers involved here are undivided. Per Maine State Police
policy, troopers transport individuals in the front passenger seat
of their cruisers. Anyone entering the front passenger seat area
is patted down beforehand for officer safety, and individuals
seated there may exit the cruiser through the front passenger side
door, which has a functional interior handle.
At 7:33 a.m., as Trooper Loder cleared out his front
seat, Trooper Keim beckoned over Howard, who was on the phone, to
sit in the cruiser. At no point did the troopers tell Howard that
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she had to get into the cruiser or that she was not free to leave.
Trooper Keim testified that Howard appeared eager to get out of
the cold. Before allowing her to sit, Trooper Keim asked whether
he needed to be concerned about anything in the cloth, open-top
bag that she was carrying and asked that she hand it to him. She
handed over the bag, and he placed it in the back seat of Trooper
Loder's car. Then, Trooper Loder conducted a limited pat down of
her jacket pockets for safety purposes. By 7:34 a.m., Howard was
seated in the front passenger seat of Trooper Loder's cruiser.
Around the same time that Howard entered the cruiser,
Sergeant Pappas arrived and requested that Howard exit the vehicle
so that a female trooper could conduct a full pat down. According
to Pappas, a full pat down is required before a person enters a
cruiser, even if they are not suspected of committing a crime, to
ensure officer safety. Howard complied. Around the time that
Howard exited the cruiser -- at approximately 7:35 a.m. -- the tow
truck that Trooper Vanadestine requested finally arrived.
By 7:38 a.m., Trooper Jodell Wilkinson ("Trooper
Wilkinson"), a female K9 officer, had arrived on scene and
conducted the more thorough pat down of Howard's outer clothing.
At approximately the same time, Sergeant Pappas informed Trooper
Loder that Howard's bag should not be searched without her consent.
At 7:39 a.m., after Howard was patted down, Sergeant Pappas asked
her if the items in the back seat of Trooper Loder's cruiser
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belonged to her and if troopers could go through the items quickly.
Before she could reply, he asked, "Mind if we search those items?"
Howard responded, "huh?" and Sergeant Pappas again asked, "Do you
mind? Can we search the items?" Howard then responded
affirmatively.2 The district court found that Trooper Loder and
Sergeant Pappas testified credibly that Howard said "yes" in
response to Sergeant Pappas's question and both understood that
she had consented to a search of her bag.
Before the search began, Sergeant Pappas told Howard,
who was standing unrestrained near Trooper Loder's cruiser, that
she could sit inside. Howard got back into the front passenger
seat at 7:39 a.m. Once inside, she sat facing the rear seat and
talked with Trooper Loder as he searched her bag. At 7:40 a.m.,
Howard told Trooper Loder that she had someone who was willing to
come pick her up and he responded, "We'll talk about that if we
get to that point." Around 7:44 a.m., Trooper Loder found what he
believed to be bundles of narcotics inside Howard's bag. He
alerted Sergeant Pappas, asked Howard to step out of the cruiser,
2Howard asserts that the exact words she used were, "I guess."
However, the government claims that Howard replied, "Yes." The
district court reviewed the audio recordings and found that,
although they were not entirely clear, Howard's reply sounded
closer to, "Yes, sir." We also reviewed the recordings and agree
with the district court's finding. Nevertheless, the precise
language Howard used is inconsequential since Howard does not
contend on appeal that she did not consent to the search of her
bag, just that said consent was involuntary.
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placed her under arrest and in handcuffs, and then returned her to
the cruiser.
B. Procedural History
Howard was indicted for possession with intent to
distribute a mixture or substance containing fentanyl, cocaine,
and cocaine base, in violation of 21 U.S.C. § 841(a)(1). She moved
to suppress the controlled substance that served as the basis for
her indictment, arguing that troopers obtained the evidence in
violation of her Fourth Amendment rights. The government opposed
suppression, and the district court conducted an evidentiary
hearing where five troopers testified and the government submitted
video evidence. The district court ultimately denied Howard's
motion, concluding that the troopers did not unlawfully prolong
the accident investigation because they possessed reasonable
articulable suspicion to request a drug sniff of the crashed
vehicle and that Howard -- who was not in custody based on the
totality of the circumstances -- voluntarily consented to the
search of her bag. Following the denial of her motion, Howard
conditionally pled guilty, reserving her right to appeal the
district court's suppression decision.
II. Standard of Review
We review factual findings in the district court's
suppression decision for clear error. United States v. Tiru-Plaza,
766 F.3d 111, 114 (1st Cir. 2014). "A clear error exists only if,
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after considering all the evidence, we are left with a definite
and firm conviction that a mistake has been made." United States
v. Ferreras, 192 F.3d 5, 9-10 (1st Cir. 1999). Notably, "when two
or more legitimate interpretations of the evidence exist, the
factfinder's choice between them cannot be deemed clearly
erroneous." United States v. Espinoza, 490 F.3d 41, 46 (1st Cir.
2007).
In contrast, we review the district court's legal
conclusions de novo. Tiru-Plaza, 766 F.3d at 115. Ultimately, we
will affirm the district court's denial of the suppression motion
"provided that any reasonable view of the evidence supports the
decision," Ferreras, 192 F.3d at 10, and in doing so, "we are not
wed to the district court's reasoning but, rather, may affirm its
suppression rulings on any basis apparent in the record," United
States v. Arnott, 758 F.3d 40, 43 (1st Cir. 2014).
III. Discussion
A. The Initial Encounter
Before we reach the merits of Howard's argument that she
was unlawfully detained, we find it necessary to outline some
applicable Fourth Amendment principles.
The Fourth Amendment protects against "unreasonable
searches and seizures." U.S. Const. amend. IV. A "seizure occurs
when a police officer 'has in some way restrained the liberty of
a citizen' through 'physical force or show of authority.'" United
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States v. Camacho, 661 F.3d 718, 725 (1st Cir. 2011) (quoting Terry
v. Ohio, 392 U.S. 1, 19 n.16 (1968)). Determining whether a
seizure occurred is usually a fact specific inquiry, see, e.g.,
United States v. Tanguay, 918 F.3d 1, 5-8 (1st Cir. 2019), however,
the Supreme Court has established that a motor vehicle stop for a
traffic violation constitutes a Fourth Amendment seizure, Delaware
v. Prouse, 440 U.S. 648, 653 (1979). When an unconstitutional
seizure occurs, courts enforce the Fourth Amendment's proscription
by excluding evidence obtained during said seizure. Camacho, 661
F.3d at 724 (explaining motions to suppress are premised upon the
exclusionary rule).
Howard assumes, without discussion, that a valid Fourth
Amendment traffic stop occurred when troopers arrived on scene to
investigate the accident and therefore asserts that the relevant
inquiry here is whether troopers were justified in prolonging the
traffic stop and expanding its mission to investigate drug
trafficking per Rodriguez v. United States, 575 U.S. 348 (2015).
The district court used this analytical framework in deciding the
motion to suppress, citing to Rodriguez and United States v. Orth,
873 F.3d 349 (1st Cir. 2017), both of which involved traffic stops.
The government contends -- for the first time on appeal -- that
Howard was not seized within the meaning of the Fourth Amendment
when troopers responded to the crash because they did not conduct
a traffic stop, and, in any event, the troopers were engaged in
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community caretaking. Howard left the government's argument
uncontradicted when she failed to file a reply brief. Noting that
"[w]e are not committed to the district court's reasoning" in
affirming the motion to suppress, see United States v.
Cabrera-Polo, 376 F.3d 29, 31 (1st Cir. 2004), we conclude based
on the facts before us that the encounter was not a traffic stop.
For a traffic stop to have taken place, Trooper
Vanadestine would have had to seize the vehicle (pull it over) for
a traffic infraction, but the record is clear that that did not
take place here. Cf. United States v. Harrington, 56 F.4th 195,
200 (1st Cir. 2022) (evaluating an investigatory police encounter
with occupants of a vehicle as a Terry stop, as opposed to a
traffic stop, where the automobile was already stopped and parked
before police approached); Espinoza, 490 F.3d at 48-49 (using Terry
framework to evaluate whether agent approaching a vehicle amounted
to a seizure where the agent "played no part in bringing the van
to a halt"). Rather, while traveling the Maine Turnpike at the
end of his shift, Trooper Vanadestine came upon a recently crashed
vehicle, surmised that the occupants needed help, and pulled over
to assist. Because no traffic stop occurred here, we need not
employ the Rodriguez framework utilized by the district court.
But just because this was not a traditional traffic stop
does not mean that a Terry stop -- a specific type of Fourth
Amendment seizure -- did not occur when troopers arrived on scene.
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We still must assess whether the circumstances rendered the initial
encounter and questioning a seizure, and, if so, whether it was
supported by the requisite level of suspicion or was otherwise
permissible for a different reason, such as community caretaking.
See United States v. Taylor, 511 F.3d 87, 91-92 (1st Cir. 2007)
(evaluating whether a Terry stop resulted from police approaching
a parked car); Espinoza, 490 F.3d at 48-49 (same).
The Fourth Amendment does not prevent "all contact
between the police and the citizenry," United States v. Mendenhall,
446 U.S. 544, 553 (1980) (Stewart, J.), and no constitutional
intrusion arises from police merely "approaching individuals on
the street or in other public places and putting questions to them
if they are willing to listen," United States v. Drayton, 536 U.S.
194, 200 (2002). A Terry stop is "a brief detention that permits
a police officer to . . . 'approach a person for purposes of
investigating possibly criminal behavior even though there is no
probable cause to make an arrest.'" Harrington, 56 F.4th at 201
(quoting Terry, 392 U.S. at 22). A Terry stop occurs "whenever a
police officer accosts an individual and restrains his freedom to
walk away." Terry, 392 U.S. at 16. Such restraint, for this
purpose, might be achieved "by means of physical force or a show
of authority." See Mendenhall, 446 U.S. at 553; California v.
Hodari D., 499 U.S. 621, 626 (1991) (requiring submission to show
of authority to effect a seizure); see also United States v.
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Fields, 823 F.3d 20, 25 (1st Cir. 2016). Thus, the relevant
inquiry in deciding whether a seizure occurred is whether "in view
of all of the circumstances surrounding the incident, a reasonable
person would have believed that he [or she] was not free to leave."
Mendenhall, 446 U.S. at 554; see Fields, 823 F.3d at 25. However,
acknowledging that few people would ever feel truly free to walk
away from police questioning, our inquiry into whether a seizure
occurred -- which is highly fact specific -- 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." United States v. Cardoza, 129
F.3d 6, 16 (1st Cir. 1997).
Turning back to the case before us, we conclude that,
under the totality of the circumstances, the troopers' arrival on
scene and initial accident response, which included speaking with
the occupants about the crash and running identification checks,
did not constitute a Terry stop. It is worth noting at the outset
that Howard's presence on the highway "was restricted by a factor
independent of police conduct" given that she was a passenger in
a crashed vehicle. See Florida v. Bostick, 501 U.S. 429, 436
(1991); United States v. Smith, 423 F.3d 25, 30 (1st Cir. 2005)
("[M]ere physical limitations on an individual's movement, not
created by police, are insufficient to turn an encounter with
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police into a restraint of liberty.") The troopers did not put
Howard on the highway or tell her that she could not leave. Thus,
her presence on the highway was not on its own a seizure.
Nor did the troopers' actions during the initial
accident response transform the encounter into a Terry stop where
the evidence demonstrates that a reasonable person would have felt
"free to decline the officers' [help] or otherwise terminate the
encounter," and Howard herself did so during the initial part of
the encounter. See Bostick, 501 U.S. at 436; United States v.
Angulo-Fernandez, 53 F.3d 1177, 1179 (10th Cir. 1995) (concluding
that an officer stopping to assist defendant with a stalled car
was not a stop because defendant "could have declined the officer's
assistance"); see also United States v. Himes, 25 F. App'x 727,
730 (10th Cir. 2001) (unpublished opinion) ("[W]hen an officer
stops to help a disabled vehicle, the encounter is, at least in
the beginning, consensual."). It is undisputed that while the
other occupants approached Trooper Vanadestine when he arrived on
scene, Howard distanced herself and made no effort to speak with
him. Significantly, the troopers did not demand that Howard speak
with them or do anything to "convey a message that compliance with
their [offer of assistance was] required." Bostick, 501 U.S. at
429. In fact, prior to asking for Howard's identification, the
only interaction Howard had with Trooper Vanadestine was when he
instructed her to stay out of the roadway, the Maine Turnpike, for
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her own safety. Given the limited nature of the trooper's command
and Howard's ability to otherwise move about freely -- which she
exercised by walking around the crash site from the moment Trooper
Vanadestine arrived -- no reasonable person in Howard's position
would have believed that the officer was "exercising his . . .
official authority to restrain [her] liberty of movement" based
off the trooper's request to stay out of the roadway. See Cardoza,
129 F.3d at 16.
While other factors -- such as the troopers' request for
Howard's identification, use of emergency lights, and Trooper
Keim's prompt arrival on scene -- could indicate that a seizure
occurred during the initial accident response, when balanced
against the totality of the circumstances, they do not compel a
finding that the initial encounter here was a Terry stop. Our
precedent establishes that "officers -- even without any basis for
suspecting that an individual has committed a crime -- 'may
generally ask questions of that individual [and] ask to examine
the individual's identification . . . -- as long as the police do
not convey a message that compliance with their requests is
required.'" See Tanguay, 918 F.3d at 5 (quoting Bostick, 501 U.S.
at 434-35). Absent evidence that the troopers demanded Howard's
identification, their request is "the type of de minimis intrusion
that we have long agreed to tolerate as a necessary part of
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policing" and thus does not infringe the Fourth Amendment. See
id. at 7.
Nor does the use of emergency lights or Trooper Keim's
mere arrival on scene demand the conclusion that Howard was seized
pursuant to a Terry stop. A reasonable person in Howard's shoes
would likely infer that Trooper Vanadestine activated his
emergency lights for safety reasons, given that he was stopped on
the side of a busy highway, not "to indicate to [Howard] that [s]he
should stop in [her] tracks." See Cardoza, 129 F.3d at 16; cf.
Tanguay, 918 F.3d at 8 (noting that police lights are usually
construed by drivers as "a command to pull over"). Additionally,
Trooper Keim's arrival on scene falls short of establishing the
threatening police presence that would lead a reasonable person in
Howard's position to believe that she could not leave. Cf. United
States v. Sierra-Ayala, 39 F.4th 1, 13 (1st Cir. 2022) (concluding
that defendant was "clearly seized" when three officers arrived on
scene, yelling "police," and additional police officers and
vehicles arrived shortly thereafter, amounting to a "heavy police
presence"); see Tanguay, 918 F.3d at 6-7 (noting that an "officer's
status as a police officer will not itself transform otherwise
innocuous conduct"). Given that the troopers never attempted to
restrict Howard's movements (other than requesting that she stay
out of the road), never prevented her from using her phone or told
her that she could not leave, never touched Howard or their
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weapons, and engaged with her in a non-threatening manner, see
Tanguay, 918 F.3d at 7 (discussing absence of certain coercive
factors), we conclude that the troopers' arrival on scene and
initial questioning did not result in a Terry stop.3
Our next task would normally be to determine whether a
seizure occurred at any point thereafter. But, because a seizure
is constitutionally valid when preceded by reasonable suspicion,
see id. at 4 (citing Arizona v. Johnson, 555 U.S. 323, 326 (2009))
(explaining that if reasonable suspicion existed before Terry
stop, plaintiff's Fourth Amendment claim is extinguished), and
because we conclude, infra, that reasonable suspicion arose before
any even arguable seizure could have occurred, we assume without
deciding that a seizure akin to a Terry stop took place as Howard's
interaction with the troopers progressed.
3 Because we conclude that Howard's initial encounter with
troopers was not a Terry stop and that any subsequent seizure, if
one occurred, was supported by reasonable suspicion, we need not
address whether the troopers' actions were also permissible as
reasonable community caretaking activities.
Further, although we conclude that Howard was not seized
during the troopers' initial response to the crash, that is not to
say that any roadside assistance by law enforcement is
automatically a consensual encounter and not a Terry stop given
that the analysis remains a "'highly fact specific' inquiry." See
Tanguay, 918 F.3d at 6 (quoting Cardoza, 129 F.3d at 15).
Accordingly, we are careful to cabin our holding to the facts of
this case and note that different facts may compel a different
conclusion than the one that we reach today.
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Viewing the record in the light most favorable to the
argument that a Terry stop occurred at some point during the
encounter, the earliest time that a show of authority amounting to
a seizure could plausibly have occurred was 7:14 a.m. -- when
Trooper Keim placed Cornish under arrest. For purposes of this
analysis, we assume without deciding that a Terry stop occurred at
that point4 and proceed to explain our conclusion that reasonable
suspicion arose prior to the assumed seizure.
B. Reasonable Suspicion
Before turning to Howard's contention that the troopers
lacked reasonable suspicion to detain her, we outline some
additional Fourth Amendment principles.
The Fourth Amendment's prohibition on "unreasonable
searches and seizures," U.S. Const. amend. IV, applies to Terry
stops, Camacho, 661 F.3d at 724. For a Terry stop to comply with
the Fourth Amendment, a police officer must possess "reasonable,
articulable suspicion of an individual's involvement in some
criminal activity" at the inception of the stop, Dion, 859 F.3d at
124; see Terry, 392 U.S. at 21, and the "actions undertaken
4 In response to questioning during oral argument, Howard
suggested that a seizure may have occurred when Trooper Wilkinson
patted down Howard for the second time or when Howard told Trooper
Loder that she had someone who was willing to come pick her up and
he responded, "We'll talk about that if we get to that point."
Our discussion assumes a seizure occurred earlier than either of
these reference points.
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pursuant to that stop must be reasonably related in scope to the
stop itself 'unless the police have a basis for expanding their
investigation,'" United States v. Ruidíaz, 529 F.3d 25, 28-29 (1st
Cir. 2008) (quoting United States v. Henderson, 463 F.3d 27, 45
(1st Cir. 2006)); see Terry, 392 U.S. at 20.
Although less demanding than the probable cause
standard, reasonable suspicion requires "more than a hunch, an
intuition, or a desultory inkling of possible criminal activity."
United States v. Romain, 393 F.3d 63, 71 (1st Cir. 2004). A
reviewing court must consider whether, under the "totality of the
circumstances," a police officer would have "a particularized and
objective basis for suspecting the particular person stopped of
criminal activity." United States v. Cortez, 449 U.S. 411, 417-
18 (1981). With these principles in mind, we turn to Howard's
arguments.
Howard contends that the district court erred in
concluding that troopers possessed reasonable suspicion of drug
trafficking because (1) Trooper Vanadestine had nothing more than
a hunch that criminal activity was afoot when he detained her and
that any suspicion was not particularized to Howard, (2) that the
district court applied a subjective officer view of the evidence
instead of an objective one, and (3) that the district court should
not have afforded any deference to Trooper Vanadestine's judgment
because he impermissibly referenced Howard's race. We disagree.
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The district court concluded, and we agree, that under
the totality of the circumstances, troopers had more than a "hunch"
that the vehicle or its occupants, particularly Howard, carried
drugs from almost the outset of the encounter. While running
identification checks and inquiring about the crash, troopers
observed that the vehicle's occupants appeared not to know one
another. Howard provided an incorrect name of "Casey" for the
driver and could not identify the male passenger beyond saying
that he was the driver's boyfriend. All of the individuals
indicated that they were coming from New York, however, they
provided vague or inconsistent responses to questions about their
travel itinerary. Paulson lacked valid vehicle registration and
insurance, and shortly thereafter, troopers learned that Cornish
had provided a fake name and had outstanding warrants. Finally,
Howard distanced herself from Trooper Vanadestine when he arrived
on scene. While Paulson and Cornish approached him and were
willing to talk, Howard walked away from him through the snow,
despite it being eight degrees. When Howard walked towards the
roadway, she avoided joining the group and never attempted to speak
to Trooper Vanadestine.
While Howard argues that these facts are insufficient
for reasonable suspicion, her contention lacks support. We have
previously considered similar objective facts in concluding that
reasonable suspicion of criminal activity existed. See, e.g.,
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Dion, 859 F.3d at 125 (finding reasonable suspicion of drug
trafficking based in part on defendant's implausible interstate
travel story); United States v. Cruz-Rivera, 14 F.4th 32, 45 (1st
Cir. 2021) (citing defendant's inconsistent answers to trooper's
questions as supporting, in part, reasonable suspicion of drug
activity); United States v. Hart, 674 F.3d 33, 39 (1st Cir. 2012)
(noting that the defendant quickly moved away from police when
they arrived on scene in reasonable suspicion analysis);
Tiru-Plaza, 766 F.3d at 117 (finding reasonable suspicion based on
failure to produce a license and a legible vehicle registration).
While "any one of those facts, taken alone, might not have been
sufficient to create reasonable suspicion," Ruidíaz, 529 F.3d at
30 (explaining that innocent facts taken in their totality can
support reasonable suspicion), after considering them in the
aggregate, we conclude that sufficient evidence existed to support
the troopers' suspicions that the vehicle or one of its occupants,
including Howard, carried drugs.
Significantly, troopers learned each of the facts
supporting reasonable suspicion before 7:14 a.m., thus making the
assumed seizure lawful. See Tanguay, 918 F.3d at 4 (stating that
reasonable suspicion must arise prior to Terry stop to comply with
the Fourth Amendment). By 7:09 a.m., troopers had observed
Howard's movements, spoken with each occupant and determined that
they appeared not to know one another and that their travel stories
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were not lining up, and learned that Paulson lacked vehicle
registration and insurance. By 7:13 a.m., Trooper Keim knew that
Cornish had provided a false name and that he likely had
outstanding warrants. Because troopers possessed reasonable
suspicion prior to the time any arguable seizure could have
occurred, Howard's claim must fail.
Next, Howard argues that the district court erred by
adopting Trooper Vanadestine's subjective view of the situation
instead of conducting an independent assessment of whether a
reasonable officer in Trooper Vanadestine's shoes would have
suspected drug trafficking. This argument too lacks merit. The
district court correctly stated the law -- that reasonable
suspicion requires "objective reasonableness in the totality of
the circumstances" -- and properly applied it by disregarding
evidence of Trooper Vandestine's subjective views, which we
discuss infra. Further, the district court did not substitute
Trooper Vanadestine's assessment of the situation for its own.
The district court reviewed video evidence to confirm troopers'
characterizations of the events and made independent factual
findings. The court then listed each objective factor supporting
troopers' drug trafficking suspicions and properly considered them
in the aggregate, recognizing that each on its own might be
insufficient. We find no error in the district court's statement
of the law or application of the reasonable suspicion standard.
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Finally, Howard points to the fact that while speaking
with Sergeant Pappas, Trooper Vanadestine identified Howard by
describing her race ("the Black girl [who] won't come next to me").
Howard argues that by identifying Howard in this manner, Trooper
Vanadestine revealed a racial bias. Racial bias by a police
officer could certainly provide a basis for challenging the
reliability or credibility of an officer's testimony. But Howard
does not challenge the accuracy of anything that Trooper
Vanadestine reported observing. The court in turn found that what
the officers heard and saw objectively gave rise to a reasonable
suspicion. In short, any potential racial bias could not have
played a causal role in determining what happened and whether
reasonable suspicion existed. And the presence of any improper
motive otherwise plays no role in a suppression motion. See Whren
v. United States, 517 U.S. 806, 813 (1996); Ruidíaz, 529 F.3d at
29 (explaining that reasonable suspicion turns on objective
criteria, not "an individual officer's subjective motives").
Thus, this argument also fails.
Having concluded that reasonable suspicion preceded
Howard's assumed seizure, any detention of Howard -- if one
occurred at all -- did not offend the Fourth Amendment and thus
was lawful. As such, her argument for suppression based on
unlawful detention fails.
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C. Consent to the Search
Having rejected Howard's unlawful detention argument, we
now turn to the issue of Howard's consent to the search of her
bag. Howard contends that, even if her seizure was lawful, the
district court erred in finding that she voluntarily consented to
the search because: (1) her personal characteristics (age, lack of
criminal record, less than average intelligence) contradict a
finding of voluntariness, (2) troopers did not advise Howard that
she could refuse to consent, (3) she was in custody when she gave
consent, and (4) she was coerced when troopers conditioned her
ability to get warm on her consent to the search. The government
counters that Howard's consent was voluntary because she was not
in custody nor subject to coercion when she gave consent and that
the facts pertaining to Howard's personal characteristics should
be deemed waived because Howard raises them for the first time on
appeal.
Whether Howard freely consented to the bag search is a
question of fact, and accordingly, we review the district court's
voluntariness finding for clear error. See Dion, 859 F.3d at 129.
To decide "whether consent was voluntarily given, we look to the
totality of circumstances, including the person's 'age, education,
experience, intelligence, and knowledge of the right to withhold
consent.'" United States v. Ramdihall, 859 F.3d 80, 89 (1st Cir.
2017) (quoting United States v. Forbes, 181 F.3d 1, 6 (1st Cir.
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1999)). Also considered is "whether the consenting party was
advised of his or her constitutional rights and whether permission
to search was obtained by coercive means or under inherently
coercive circumstances." Id. (quoting Forbes, 181 F.3d at 6).
We first address Howard's argument that her consent was
coerced in part because she was in custody. As support for her
contention, she cites the circumstances of her alleged detention
and the presence on scene of five state troopers, including a K9
unit. The district court disagreed, concluding that Howard was
not in custody. We find no error here.
Custody determinations present a "mixed question of law
and fact," United States v. Trueber, 238 F.3d 79, 93 (1st Cir.
2001) (quoting Thompson v. Keohane, 516 U.S. 99, 113 (1995)); thus,
the district court's factual findings are reviewed for clear error,
and "the ultimate conclusion whether a seizure is a de facto
arrest" is reviewed de novo, United States v. Fornia-Castillo, 408
F.3d 52, 63 (1st Cir. 2005). We have previously explained that
"[a] valid investigatory stop may nevertheless escalate into
custody . . . where the totality of the circumstances shows that
a reasonable person would understand that he was being held to
'the degree associated with a formal arrest.'" Id. (quoting
Stansbury v. California, 511 U.S. 318, 322 (1994) (per curiam)).
Some of the factors that we consider in deciding whether the
custody threshold has been crossed include "whether the suspect
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was questioned in familiar or at least neutral surroundings, the
number of law enforcement officers present at the scene, the degree
of physical restraint placed upon the suspect, and the duration
and character of the interrogation." Id. (quoting United States
v. Ventura, 85 F.3d 708, 711 (1st Cir. 1996)).
Here, the district court concluded that no reasonable
person in Howard's shoes would believe that she was being held
under circumstances akin to a formal arrest. We agree. Howard
was never explicitly told that she was not free to leave, she was
never physically restrained, she freely talked on her cell phone
and walked around the crash site, and she was invited -- not
ordered -- to sit in Trooper Loder's car. Notably, she sat in the
front passenger seat of the cruiser -- as opposed to a traditional
divided prisoner compartment -- and the door had a functional
interior handle permitting her to step out at any time. The
district court also found that although Howard was patted down
before being allowed to sit in the cruiser, the pat downs did not
convey the impression of formal arrest because they were conducted
to ensure officer safety before Howard -- who was wearing bulky
winter clothing -- was allowed to sit unrestrained in the cruiser.
While the presence of five troopers is certainly relevant to the
custody calculus, the situation must be viewed holistically under
the totality of the circumstances. The district court's findings,
which are not clearly erroneous, provide ample support for its
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conclusion that Howard was not in custody, particularly given the
respectful tone of the encounter and the neutral public setting.
Cf. id. at 64-65 (concluding that defendant was not in custody
despite being temporarily handcuffed and officer drawing gun);
Trueber, 238 F.3d at 93-95 (holding that pat down of defendant for
officer safety did not convert investigatory stop into de facto
arrest). Thus, no error exists as to the district court's custody
determination.
Howard also contends that her consent was coerced
because troopers conditioned her ability to sit in the warm cruiser
on her agreeing to the bag search, but she provides no support for
her assertion. Moreover, her contention is belied by the district
court's findings. The district court found that although Howard
may have felt obliged to consent to a search of her bag before
sitting in the cruiser, nothing about Sergeant Pappas's request
created the impression that her ability to do so was conditioned
on a search of her bag. We agree. The record is clear that Howard
was seated in the cruiser, albeit briefly, before Trooper Wilkinson
conducted the full pat down and Sergeant Pappas asked for consent
to search her bag. Further, Sergeant Pappas stated both to Trooper
Loder and to Howard herself that he wanted her patted down before
she sat in the cruiser -- never mentioning a search of her bag.
We find no clear error here.
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Howard's final argument is that the district court erred
in finding that her consent was voluntary under the totality of
the circumstances. In support, Howard asserts that -- in addition
to the coercive elements discussed above -- she was in her early
twenties at the time of the search, she had graduated from high
school but from a program for people with disabilities, she has
less than average intelligence, she had very little experience
with the criminal justice system, and troopers did not tell her
that she could refuse to consent, nor was she aware that she could
refuse. Notably, Howard failed to develop the facts pertaining to
her age, intelligence, and education during the suppression
hearing, and instead raises them for the first time on appeal.
However, even if we were to consider Howard's newly proffered
facts, they fail to convince us that the district court erred in
its voluntariness finding.
Howard does not meaningfully discuss how her disability
or intelligence level impacted her ability to consent. Nor does
she explain why contact with law enforcement for only minor
offenses is significant to whether her will was overborne. To the
extent that Howard relies on the lack of a warning regarding her
right to refuse consent, said fact is relevant but not dispositive.
"We have repeatedly held that the failure to advise a defendant of
his right to refuse consent does not automatically render such
consent invalid." United States v. Jones, 523 F.3d 31, 38 (1st
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Cir. 2008). Here, the district court properly considered the
totality of the circumstances -- including the lack of a warning,
the presence of multiple troopers on scene, and the cold
conditions -- before concluding that Howard voluntarily consented
to the search of her bag. We discern no clear error in the district
court's finding, particularly given the lack of "evidence of
coercive tactics," United States v. Marshall, 348 F.3d 281, 286
(1st Cir. 2003); see Ramdihall, 859 F.3d at 89 (explaining that
defendant bears the burden of establishing that the manner of
detention precluded her free consent). Accordingly, Howard's
argument for suppression, premised upon her involuntary consent to
the search of her bag, also fails.
IV. Conclusion
For the foregoing reasons, we affirm.
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