U.S. v. Sowers

• Decision Date: 06 January 1998
• Docket Number: No. 97-1845,97-1845
• Citation: 136 F.3d 24
• Parties: UNITED STATES of America, Appellee, v. Wayne O. SOWERS, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 24

136 F.3d 24

UNITED STATES of America, Appellee, v. Wayne O. SOWERS, Defendant, Appellant.

No. 97-1845.

United States Court of Appeals First Circuit.

Heard Jan. 6, 1998.

Decided Feb. 6, 1998.

William Maselli, Auburn, ME, for defendant, appellant.

Margaret D. McGaughey, Assistant United States Attorney, Portland, ME, with whom Jay P. McCloskey, United States Attorney, Bangor, ME, and Jonathan A. Toof, Assistant United States Attorney, Portland, ME, were on brief, for appellee.

Before SELYA, Circuit Judge, COFFIN, Senior Circuit Judge, and SHADUR, ^* Senior District Judge.

SELYA, Circuit Judge.

Defendant-appellant Wayne O. Sowers challenges his conviction for possession of cocaine with intent to distribute, see 21 U.S.C. § 841(a)(1), (b)(1)(B), and (b)(1)(C) (1994), by resurrecting some--but not all--of the arguments advanced in his unsuccessful motion to suppress evidence. ¹ 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 in the vehicle that he was driving nor a warrantless search of the appellant's jacket, worn by the passenger, produced a cognizable constitutional insult. Concluding, as we do, that the district court properly denied the appellant's pretrial suppression motion, we affirm the judgment of conviction.

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 Turnpike. While passing a Toyota, he noticed a loud noise emanating from the vehicle's exhaust system. His interest piqued, Curran also observed a missing front license plate. He slowed and activated his cruiser's blue flashing lights. The Toyota stopped in the breakdown lane.

Curran approached the vehicle from the rear and asked the operator (Sowers) for his papers. Sowers produced a valid license, along with a registration listing Tammy Gayton as the 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 nothing on her person to confirm that fact. Unsure as to the passenger's true identity, Curran instructed her to exit the vehicle and instructed Sowers to remain seated. Both complied.

After physically separating the two occupants, Trooper Curran noticed that they both appeared extremely nervous. He thus questioned each of them as to the extent, purpose, and details of their travels. When substantial discrepancies developed, his suspicions heightened.

Curran asked the woman to remain standing next to his police cruiser while he initiated a cursory background check, endeavored to verify her identity, and prepared citations for the defective muffler, see Me.Rev.Stat. Ann. tit. 29-A § 1912(1), (4) (West 1993), and the missing license plate, see id. § 452(a) (West 1987). The background check revealed that Sowers's driver's license was valid and that the Toyota was duly registered to Gayton. Curran also obtained a rough 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 Curran informed her that he would summon a narcotics dog to perform a sniff-search. After giving her written consent to the vehicle search, Gayton's anxiety became more pronounced.

Before attempting to search the vehicle, Curran radioed for assistance. While awaiting backup, Curran performed a pat-down search of Gayton's person. In the course of that search, he felt a hard, cylindrical object through the material of the jacket she was wearing. Curran queried Gayton about the item, but she disclaimed any knowledge, stating that neither the jacket nor its contents belonged to her. Curran removed the object from the jacket pocket. It proved to be a package containing a substance similar in appearance and consistency to cocaine. Curran promptly arrested both Sowers (age 42) and Gayton (age 18).

Trooper Frank Holcomb arrived on the scene at approximately 10:40 p.m. and Curran then searched the Toyota. He found no contraband. After the troopers 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. PROCEEDINGS BELOW

On October 10, 1996, a federal grand jury returned an indictment that charged Sowers with possessing or conspiring to possess powdered and crack cocaine, with intent to distribute. The appellant moved to suppress the evidence seized during and after the roadside events. He argued, inter alia, that the protracted investigative stop constituted an unlawful detention, and that in all events the pat-down search was unjustified. He also sought to exclude the incriminating statements made by him while in custody on the ground that those statements were the fruits of an illegal detention.

Following an evidentiary hearing, the district court denied the suppression motion. See United States v. Sowers, 1997 WL 97104 (D.Me. Feb. 21, 1997). The court ratified both the stop and the ensuing roadside detention, see id.at * 4, and also determined that Sowers lacked standing to challenge the pat-down search, see id. at * 5. ²

In short order, a jury found the appellant guilty on two counts of the indictment. ³ The district court sentenced Sowers to a 46-month term of imprisonment. This appeal followed.

III. 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 review. See Ornelas v. United States, 517 U.S. 690, 698-700, 116 S.Ct. 1657, 1663, 134 L.Ed.2d 911 (1996); United States v. Schaefer, 87 F.3d 562, 565 & n. 2 (1st Cir.1996); United States v. Zapata, 18 F.3d 971, 975 (1st Cir.1994).

A.

We open our discussion of the merits by addressing the appellant's charge that the officer's detention of the motorists amounted to a de facto arrest. Sowers carefully cabins this argument. He does not contest Judge Carter's finding that the initial stop, for admitted equipment violations, 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, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), into an unlawful de facto arrest. Once Sowers produced a valid driver's license and registration, this thesis runs, Curran no longer had any valid basis to detain the motorists and all the events that transpired thereafter--Gayton's removal from the vehicle, the subsequent questioning of both 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 ordinarily cannot base a constitutional claim on a violation of a third person's rights. See Rakas v. Illinois, 439 U.S. 128, 138-40, 99 S.Ct. 421, 427-29, 58 L.Ed.2d 387 (1978); United States v. Kimball, 25 F.3d 1, 5 (1st Cir.1994); United States v. Santana, 6 F.3d 1, 8-9 (1st Cir.1993). Therefore, to the extent that Sowers's challenge rests on Gayton's privacy interests, it is barred.

Nonetheless, there is more to Sowers's challenge than meets the prosecution's eye. Once the police halt a vehicle on the highway, both the driver and the passengers are in a practical sense subject to the officers' authority. See Whren v. United States, 517 U.S. 806, 808-10, 116 S.Ct. 1769, 1772, 135 L.Ed.2d 89 (1996) (explaining that all occupants of a vehicle are subjected to a seizure, within the scope of the fourth amendment, when a police officer effects an investigatory stop of the vehicle). Thus, any one of them may challenge his own detention regardless of whether he was the immediate target of the investigation or whether he had a privacy interest in the vehicle itself. See Kimball, 25 F.3d at 5. This means that the appellant's challenge of his own detention is properly before us.

On this issue, the appellant acknowledges that Terry sanctions a brief detention of an individual to confirm or allay a police officer's reasonable suspicions. 392 U.S. at 20-21, 88 S.Ct. at 1879-80. Still, he contends that Trooper Curran's persistence converted an initially lawful Terry stop into a de facto arrest based on less than probable cause (and, hence, unlawful). This is a commonplace argument, the evaluation of which tends to be case-specific. See Zapata, 18 F.3d at 975 (observing that there are no precise formulae that enable courts to distinguish between investigatory stops and de facto arrests).

The effort to locate a particular sequence of events along the continuum of detentions begins with a determination as to whether the officer's actions were justified at the inception. See Terry, 392 U.S. at 19-20, 88 S.Ct. at 1878-79; United States v. McCarthy, 77 F.3d 522, 530 (1st Cir.1996). In this case, the propriety of the initial Terry stop cannot be gainsaid. The appellant's argument hinges, therefore, on whether the actions undertaken by the officer following the stop were reasonably responsive to the circumstances justifying the stop in the first place, as augmented by information gleaned by the officer during the stop. See United States v. Sharpe, 470 U.S. 675, 682, 105 S.Ct. 1568, 1573, 84 L.Ed.2d 605 (1985); United States v. Stanley, 915 F.2d 54, 55 (1st Cir.1990). To answer this query, an inquiring court must consider the totality of the circumstances and "balance[ ] the nature and quality of the intrusion on personal security against the...