859 F.3d 114 (1st Cir. 2017), 16-1377, United States v. Dion

Docket Nº:16-1377
Citation:859 F.3d 114
Opinion Judge:THOMPSON, Circuit Judge.
Party Name:UNITED STATES OF AMERICA, Appellee, v. MARSHALL H. DION, Defendant, Appellant
Attorney:Henry B. Brennan, with whom Brennan & Associates was on brief, for appellant. John-Alex Romano, Attorney, Criminal Division, Appellate Section, U.S. Department of Justice, with whom Carmen M. Ortiz, United States Attorney, Leah B. Foley, Assistant United States Attorney, Leslie R. Caldwell, Assis...
Judge Panel:Before Lynch, Thompson, and Barron, Circuit Judges.
Case Date:June 08, 2017
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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859 F.3d 114 (1st Cir. 2017)



MARSHALL H. DION, Defendant, Appellant

No. 16-1377

United States Court of Appeals, First Circuit

June 8, 2017

         As Amended June 23, 2017.

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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         Henry B. Brennan, with whom Brennan & Associates was on brief, for appellant.

         John-Alex Romano, Attorney, Criminal Division, Appellate Section, U.S. Department of Justice, with whom Carmen M. Ortiz, United States Attorney, Leah B. Foley, Assistant United States Attorney, Leslie R. Caldwell, Assistant Attorney General, and Sung-Hee Suh, Deputy Assistant Attorney General, were on brief, for appellee.

         Before Lynch, Thompson, and Barron, Circuit Judges.


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          THOMPSON, Circuit Judge.

          Marshall H. Dion moved to suppress evidence taken from a warrantless search of his truck. After the district judge denied that motion and his subsequent motion for reconsideration, Dion conditionally pled guilty, reserving his right to challenge the rulings on appeal. We affirm.

         I. BACKGROUND

         As is our usual practice, 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. See, e.g., United States v. McGregor, 650 F.3d 813, 816 (1st Cir. 2011). Given the importance of certain facts to our analysis, we ask the reader to bear with us as we wade through the minutiae.

         A Cross-Country Road Trip Interrupted

         On June 18, 2013, on Interstate 70 in Kansas, Officer Nicholas Blake (" Blake" ), of the Police Department of Junction City, Kansas, pulled seventy-eight-year-old Dion over for speeding. Blake, a ten-year veteran of the Department, is a canine handler whose job, in part, is to detect illegal narcotics through traffic stops. After observing a trio of speeding vehicles - two cars and a pickup truck - Blake clocked a reading of 79 mph, then 80 mph in the 75-mph zone. Blake explained that the radar provides the speed of the largest and fastest target, meaning that of the three vehicles, the radar had latched onto the bigger pickup truck. So he pursued the truck and pulled it over.[1]

         As he approached the stopped pickup truck from the passenger side, Blake observed that the truck sported Colorado plates and tinted windows on the cap of the truck's bed. He informed Dion (the driver and the car's only occupant) that he had been traveling over the speed limit. Dion responded that he had been following traffic, then, as requested by Blake, produced his Arizona driver's license. Blake posed a few questions, prompting Dion to explain that he was coming from Yardley, Pennsylvania, where he had met with his certified public accountant (" CPA" ), and now was returning home to Tucson, Arizona.

         Moving right along, Blake informed Dion that he planned to issue him a warning citation for speeding, and he asked Dion to get out of the truck and sit in the front seat of the police cruiser with him - this, Blake explained, was his normal procedure. As they made their way back to Blake's cruiser, Blake asked whether Dion had any weapons, and Dion answered he did not. During the walk to the cruiser, Blake peered into the back of the truck, through the tinted window of the truck cap. Dion, noticing this, offered to let the officer look in his truck. Blake found this " odd" and " suspicious" - based on his experience with " the innocent motoring public," it was not normal behavior.

         Into the police cruiser they went. Blake asked Dion about what he did for a living, and Dion explained that he was retired and did not worry about money. Before

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Blake started to run Dion's information (driver's license, criminal history, registration information) through dispatch, Blake began preparing the warning citation. During this time, Blake followed up on Dion's travel plans, listening with interest to the specifics of Dion's trek to and from his CPA's office in Pennsylvania, what he did while there, and why he made the journey. Thinking it strange that Dion, who lived in Tucson, Arizona, would travel to Pennsylvania to see a CPA, he asked Dion whether there are CPAs in his hometown. And because Yardley, Pennsylvania was unfamiliar to Blake, he looked it up on Google Maps to check out the most likely route of travel between that town and Tucson. Based on his Google search, Blake testified the travel route " was off," and " the reasoning for [Dion's] travel seemed odd to [Blake]." Blake was also mindful that the stretch of Interstate 70 upon which they sat was a known drug-trafficking corridor. And all the while, throughout the encounter, Blake observed Dion to be " extremely nervous" (he could see Dion's " carotid artery pounding," and he also observed Dion's " pulse in the area of his stomach underneath his shirt" ), and this nervousness never abated.

         A few moments later, Dion asked Blake about the code he used while talking with dispatch, and Blake explained he was using military shorthand, prompting a conversation about Blake's prior military service. Blake asked Dion whether he had a criminal record, and Dion offered that he had been arrested " for all kinds of things." By way of explanation, Dion told Blake that he had been arrested for marijuana about twenty-five years ago. Blake sought more information about the charges against Dion, and Dion explained that the charges were based on possession, telling Blake he could check his record to confirm as much.

         At this point, Blake reiterated to Dion that he planned to issue only a warning. A conversation about the rules of the road ensued: the two men chatted about Dion being stopped for speeding, and Dion's misguided assumption that following the flow of traffic was fine, regardless of speed. In an effort to understand Dion's travel " story," Blake segued back into getting information about Dion's journey and also delved further into Dion's income source - Dion informed Blake that his income derived from social security, his pension, and owning certain real estate properties. Dion added, he owns property in Arizona, Colorado, and Massachusetts.

         Pivoting, Blake directed Dion's attention to Blake's marijuana computer screen saver, explaining that Blake was looking for " that" (i.e., drugs or contraband). In response, Dion again offered to let Blake search his truck (" You can look in my truck" ), then said it again, (" You can look in my truck. You want to look in my truck?" ). Blake wanted to complete his collection and review of Dion's information, but accepted the offer. In a brief lull, Dion freely gestured towards the computer screen and said " that" (the picture of marijuana) was " twenty-five years ago" - and once again told Blake he could check his truck, despite it being a " losing proposition" (Dion's words).

         Soon after this exchange, Blake hit pause on his citation drafting and called the El Paso Intelligence Center, identifying himself and providing Dion's full name, date of birth, the location of the stop, and the fact that the stop was for speeding. It was during this call that Blake heard from dispatch - the information provided by dispatch confirmed that Dion did indeed have a criminal record including charges related to both marijuana and cocaine. Still on the line, the Intelligence Center reported that Dion had been arrested not only for possession

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of a large quantity of drugs, as Dion had told him, but also for drug trafficking, and once was involved in a cash seizure. Blake testified that Dion's " drug trafficking history, which he obviously lied about," contributed to Blake's rising suspicions.

         Dion asked what Blake had been searching, so Blake answered that he had done an interstate criminal record check. Eventually, Blake received information confirming that Dion's license and registration were legitimate, so Blake radioed dispatch to get a case number for the ticket he was writing up. Blake reminded Dion he would be issuing a warning only and no fine would be levied, then gave Dion back his paperwork. Dion quipped, " That's all I get?" and joked that he should get " lunch money." Blake interjected that the stop was over - Dion was " no longer being detained for speeding" - but added that Dion was " more than welcome to" stick around and talk if he wanted to.

         Time to Hit the Road?

         Apparently wanting to chat, Dion stayed in the cruiser and continued bantering with Blake. Dion freely observed that he " could have shut [Blake] off at the very beginning," asked if he was under arrest, and refused to answer Blake's questions. He mused: " I used to be in the business" and " did time for marijuana."...

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