United States v. Ramdihall ( 2017 )

United States Court of Appeals
For the First Circuit
No. 15-1841
UNITED STATES OF AMERICA,
Appellee,
v.
GYADEEN P. RAMDIHALL,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
Before
Lynch, Thompson, and Barron,
Circuit Judges.
Angela G. Lehman for appellant.
Renée M. Bunker, Assistant United States Attorney, with whom
Thomas E. Delahanty II, United States Attorney, was on brief, for
appellee.
May 18, 2017
BARRON, Circuit Judge. Gyadeen P. Ramdihall appeals his
conviction for conspiracy to commit access-device fraud in
violation of 18 U.S.C. § 1029(a)(1), (a)(3), and (b)(2), and 18
U.S.C. § 371. On appeal, Ramdihall challenges the District Court's
denial of his pretrial motion to suppress evidence. We affirm.
I.
Ramdihall, along with his co-defendant, Jervis A.
Hillaire, was indicted in federal court in the District of Maine
on February 25, 2014, for conspiracy to possess and use counterfeit
access devices with intent to defraud, as well as for five related
counts. See 18 U.S.C. § 1029(a)(1), (a)(3), and (b)(2); id. § 371.
Before their trial on those counts in federal court, Hillaire and
Ramdihall submitted motions to the District Court to suppress
evidence and statements that had been obtained in the previous
months in connection with three traffic stops: a September 6, 2013
stop in Kittery, Maine; an October 10, 2013 stop in Ohio; and a
January 24, 2014 stop in Biddeford, Maine.
After a two-day suppression hearing, the District Court
issued an oral order denying the motions to suppress. Ramdihall
then conditionally pled guilty to conspiracy to possess and use
counterfeit access devices in violation of 18 U.S.C. § 1029(a)(1)
and (a)(3), preserving his right to challenge the District Court’s
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ruling on his motion to suppress.1 He was sentenced to 10 months'
imprisonment and three years' supervised release. He was also
ordered to pay $17,987.56 in restitution.
On appeal, Ramdihall challenges the District Court's
denial of his motion to suppress in connection with any evidence
and statements obtained from only two of the stops: the September
6, 2013 stop in Kittery, Maine, and the October 10, 2013 stop in
Ohio. We address his challenges concerning each stop in turn.
II.
We begin with Ramdihall's challenge to the denial of his
motion to suppress concerning the September 6, 2013 stop in
Kittery, Maine. Ramdihall contends that the police, in the course
of this encounter, effected a seizure within the meaning of the
Fourth Amendment, even though the police lacked the
constitutionally required basis for doing so. Accordingly, he
contends that the fruits of that unlawful seizure, including
evidence obtained from the search of the trunk of the vehicle he
was driving, must be suppressed.
There is no dispute that a seizure did occur at some
point. Nor is there any dispute that, in light of the
investigative nature of that seizure, the government could effect
1 Hillaire also conditionally pled guilty to conspiracy to
possess and use counterfeit devices in violation of 18 U.S.C.
§ 1029(a)(1) and (a)(3).
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it so long as the government had reasonable suspicion that criminal
activity was afoot. See Terry v. Ohio, 392 U.S. 1, 21-22 (1968)
(holding warrantless investigative stops constitutionally
permissible where law enforcement officer can "point to specific
and articulable facts which, taken together with rational
inferences from those facts, reasonably warrant that intrusion");
United States v. Brignoni-Ponce, 422 U.S. 873, 880-81 (1975)
(extending Terry to vehicle searches). So, the key questions are
whether the police had such suspicion at the time of the initial
seizure and whether the police continued to have a lawful basis
for effecting the seizure as it persisted. For, if the police
did, then the seizure was lawful and there would be no illegal
fruits to suppress.
We start by describing the facts relevant to the
suppression ruling at some length, taking them from the District
Court's uncontested findings and the officers' testimony from the
suppression hearing. See United States v. Campa, 234 F.3d 733,
737 (1st Cir. 2000) (explaining that we "uphold a district court's
decision to deny a suppression motion if the decision is supported
by any reasonable view of the evidence"). We then consider the
basis for the initial seizure, before turning to consider the basis
for it as it continued. Finally, we address Ramdihall's additional
contention that, even if the seizure was lawful, the District Court
erred in refusing to suppress the evidence obtained from the search
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of the car's trunk, as Ramdihall contends that the District Court
erred in concluding that Ramdihall voluntarily consented to that
search.
A.
The facts concerning the Kittery traffic stop are as
follows. At approximately 1:30 a.m. on September 6, 2013, John
Brosnihan, a patrol officer for the Kittery Police Department, was
sitting in a parked, marked police car near a 7-Eleven in Kittery,
when a 7-Eleven employee approached. The employee told Brosnihan
that he was concerned about people in the 7-Eleven who were buying
thousands of dollars' worth of gift cards with other gift cards.
The employee identified the car in the parking lot that belonged
to the people buying the gift cards.
In response, Brosnihan contacted police dispatch and
requested that dispatch run the plate number of that car. He then
approached the passenger's side of the car, using his flashlight
to look inside. Inside the car were Ramdihall, in the driver's
seat, and Hillaire, in the passenger's seat. A second officer
arrived on the scene shortly thereafter.
Brosnihan asked Hillaire if a woman whom Brosnihan could
see inside the 7-Eleven and whom he pointed out to Hillaire was
with Hillaire. Hillaire said that the woman was with him.
Brosnihan then asked if Hillaire knew what the woman was doing
inside the 7-Eleven, and Hillaire said he did not know. Brosnihan
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then asked, more specifically, if Hillaire "knew anything about
gift cards, buying gift cards with gift cards," and Hillaire denied
that he knew anything about using gift cards to buy gift cards.
Brosnihan saw some electronic devices in boxes in the car located
at Hillaire's feet. Brosnihan then went around the car and
approached Ramdihall, who was in the driver's seat, and asked what
he was doing at the 7-Eleven.
Ramdihall said that he had stopped to get gas. He could
not explain, however, why he had not yet gotten gas and why the
car was not stopped at a gas pump. Ramdihall, too, denied knowing
anything about the gift cards when Brosnihan asked him about them.
Brosnihan then asked for identification from both
Ramdihall and Hillaire. Ramdihall produced a New York driver's
license. Hillaire produced a "California ID."
Brosnihan asked to whom the car -- which had Tennessee
plates -- belonged. Hillaire stated that the car was a rental
that he had received as a birthday gift from his cousin. Hillaire
also stated that he was a "co-renter."2 At some point, Brosnihan
saw the rental agreement and learned that neither Hillaire's name
2 At the suppression hearing, Ramdihall submitted an affidavit
stating that the individual whose name actually was on the rental
agreement -- Nadege Butler -- had given her brother permission to
use the car, and that with permission from both Butler and her
brother, Ramdihall drove it to Maine. The District Court gave
"very little credence" to this explanation, in light of what the
District Court found was the inconsistent story Hillaire provided
during the stop.
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nor Ramdihall's name was on the rental agreement. The record is
not clear, however, as to precisely when Brosnihan saw the rental
agreement.
When the woman inside the 7-Eleven -- later identified
as Vegilia O'Connor -- exited to return to the car, Brosnihan
stopped her to ask about the gift card purchases. O'Connor
explained to Brosnihan that she had received the gift cards that
she was using to purchase gift cards from a friend so that she
could go school shopping for her kids, and that she was using the
gift cards to buy new gift cards because the ones that she had
sometimes did not work. She also stated that she had left New
York around 4:00 p.m. that same day to travel to Maine to shop.
However, she could not explain why she had left so late that she
would arrive in Maine at a time when stores were closed. She said
they had been shopping at "some outlets" that she could not name,
and she said that those outlets were about 30 minutes away.
Brosnihan then questioned Hillaire and Ramdihall
separately, outside of the car. Both said they were in Maine to
shop, but neither could name the stores at which they had been
shopping. Hillaire said they had shopped for an Apple laptop in
Brunswick, Maine, which he said was a 40-minute drive from Kittery.
Ramdihall could not say where they had shopped, but he said the
place they had shopped was about 15 minutes away from Kittery.
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Then, at 1:45 a.m., Brosnihan's supervisor, Sergeant
Gary Eaton, arrived on the scene. About ten minutes later, at
1:55 a.m., a detective was called to the scene, due to the
officers' unfamiliarity with how to handle an investigation into
possible fraud, which Brosnihan had begun to suspect might be afoot
in consequence of the evidence concerning gift card purchases. At
that point, Eaton made the internal decision that the three
individuals would not be allowed to leave until the detective that
had been called had arrived.
The officers then asked each individual about what, if
anything, was in the trunk of the car. Originally, each said there
was nothing in the trunk. Later, Hillaire and O'Connor each said
there was a laptop computer in the trunk, but each said that it
belonged to the other. O'Connor overheard Hillaire tell Brosnihan
that the laptop computer belonged to her, and interjected to deny
that it belonged to her.
Brosnihan then asked Ramdihall again what was in the
trunk. Ramdihall said he did not know. According to Brosnihan's
testimony at the suppression hearing, Brosnihan asked, "[D]o you
mind if I take a look?," and Ramdihall responded, "[B]e my guest."
Brosnihan then said, "[A]re you sure?," to which Ramdihall again
responded, "[B]e my guest."
Inside the trunk was, among other things, "a lot of
computer equipment," including MacBooks, MacBook Pros, iPads, and
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iPad Minis. Hillaire said that one of the MacBook computers
belonged to him. When Brosnihan asked to see a receipt for the
computer, Hillaire initially said he had an e-mail receipt on his
cell phone but did not want to show it to Brosnihan. Later,
Hillaire claimed to have thrown away the receipt. Brosnihan asked
the three individuals multiple times to whom the other equipment
belonged. No one claimed ownership of any of the other items. At
that point, Brosnihan seized the items and then let the three
individuals go.
Throughout the encounter, other law enforcement officers
came and went as well. The District Court found, and the parties
do not contest, that there were three police officers on the scene
as of 1:45 a.m., two more by 2:32 a.m., and six in total by 2:42
a.m. The District Court also found that, throughout the encounter,
"[t]here were never any handcuffs, no drawn weapons, no aggressive
questioning, no physical restraint."
B.
With respect to when the seizure occurred and what the
basis for it was at the time that it occurred, the District Court
found as follows. It determined that, "giv[ing] the defendants
the benefit of the doubt," the encounter -- which had begun at
approximately 1:30 a.m. and lasted nearly until 3 a.m. -- became
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a seizure at approximately 1:55 a.m.3 The District Court also
found that, by 1:55 a.m., the police had reasonable suspicion to
believe that criminal activity was afoot and thus to effect the
seizure in accord with the Constitution. The District Court based
this conclusion on the following facts:
 "the store clerk had told Brosnihan about his and the other
clerk's concern about a group of people from a car with
Tennessee plates using gift cards to purchase other gift cards
involving thousands of dollars at the 7-Eleven in the wee
hours of the morning";
 the car occupants were unable to "give plausible or consistent
explanations during the initial encounter";
 "Ramdihall said they were there to buy gas, but he had no
explanation [as] to why he parked in front of the store rather
than at the gas pumps";
 "Hillaire said he was a co-renter of the car, but his name
was not on the rental agreement, nor was Ramdihall's";
3By that time, there were three officers at the scene. That
was also the time when Eaton called a detective and made the
internal decision not to let the defendants leave until the
detective arrived, though, as the District Court correctly noted,
Eaton's subjective, internal decision not to let the defendants
leave until the detective arrived is not determinative, as the
critical question is whether the individual being questioned would
reasonably feel free to end the encounter. Florida v. Bostick,
501 U.S. 429, 434 (1991).
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 "[s]ome of them couldn't name the stores in which they shopped
or where they were located";
 "they gave different accounts of the distance"; and
 their explanation "of coming to Maine to shop at that time of
night" was dubious.
We review the District Court's findings of fact and
credibility determinations for clear error. United States v. Tiru-
Plaza, 766 F.3d 111, 114 (1st Cir. 2014). "Under this clear-error
review, we grant significant deference to the district court,
overturning its findings only if, after a full review of the
record, we possess a definite and firm conviction that a mistake
was made." Id. at 115 (citation omitted). We review de novo the
District Court's legal conclusions, including its determinations
as to whether there was reasonable suspicion and its ultimate
decision to grant or deny the motion to suppress. Id.
Ramdihall argues that the District Court erred in
finding that the seizure did not occur until 1:55 a.m. He contends
that the record shows that the seizure actually occurred at the
time of Brosnihan's initial encounter with Ramdihall and Hillaire
at approximately 1:30 a.m. and that the seizure then persisted up
to and past 1:55 a.m., because, upon initially encountering the
two men while they were seated in the parked car, "Brosnihan took
Ramdihall's driver's license and the reasonable inference is that
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it was in police custody at least until [the detective], who was
the last to arrive at 2:30, took pictures of the license."4
Ramdihall does not challenge the District Court's
finding that it was "unremarkable" that Brosnihan inspected
Ramdihall's driver's license during the initial encounter and that
such inspection did not itself transform the encounter into a
seizure. See United States v. Himes, 25 F. App'x 727, 730 (10th
Cir. 2001) (finding no seizure where police officer "got the
license, ran a check on the license, asked [the defendant] to get
out of the Jeep, and then returned the license" because the
officer's possession of the license was "sufficiently brief").
Rather, he appears to contend only that the initial, unremarkable,
inspection of the license was transformed into a seizure at some
point prior to 1:55 a.m. but after the initial inspection because,
after Brosnihan reviewed the license, he then retained it and did
not return it until sometime after 2:30 a.m. And Ramdihall argues
4 Ramdihall also argues that the officers did not have
reasonable and articulable suspicion at 1:55 a.m. -- the time that
the District Court found the seizure occurred -- because Brosnihan
and the other officers had not actually observed Ramdihall or his
associates do anything unlawful. But, our case law does not
require that an officer observe actual unlawful activity in order
to effect a seizure. He need only have reasonable suspicion that
criminal activity may be afoot. Thus, "we have upheld Terry stops
where the combination of 'innocuous' facts culminates in
reasonable suspicion." United States v. Wright, 582 F.3d 199, 212
(1st Cir. 2009). Indeed, in Terry itself, the detention was
occasioned by an officer's observation of "unusual," not unlawful,
conduct. 392 U.S. at 30. Thus, insofar as the seizure did occur
at 1:55 a.m., Ramdihall's challenge fails.
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that we may reasonably infer that the license was not returned
until 2:30 a.m. because it was at that time that, the record shows,
police made a copy of the license.
But Ramdihall never argued below that the license was
retained at all, let alone until 2:30 a.m. Assuming his argument
about the seizure of his license has not been waived -- and the
government makes no argument that it has been -- there must still
exist a basis in the record for concluding that the license was
retained. But, there is no finding to that effect by the District
Court, as Ramdihall never raised the issue he now presents to us.
Nor is there any finding about when the license was returned or
the circumstances regarding its possible retention. And, in the
absence of express findings by the District Court, we must view
the record evidence in the light most favorable to the District
Court's ruling. Tiru-Plaza, 766 F.3d at 117 n.10. We therefore
see no basis on this record for concluding that the license was
retained by police from the time of the initial encounter until
past 1:55 a.m. Thus, even if we were to conclude that the extended
retention of a license may suffice to effect a seizure, 5
Ramdihall's contention would fail to persuade.
5 See United States v. Miller, 589 F.2d 1117, 1127 (1st Cir.
1978) ("Appellant could not lawfully operate his vehicle without
[his license and registration]. He was not free to go."); see also
United States v. Weaver, 282 F.3d 302, 311 (4th Cir. 2002)
(retention of a driver's license during a traffic stop may create
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Ramdihall does attempt to counter the District Court's
finding about when the seizure began by arguing that "Brosnihan
testified that early in the encounter he would not have allowed
the men to leave." But while Brosnihan did testify that he had
decided, by the end of the encounter, that Ramdihall was not free
to leave without permission, Brosnihan said nothing about making
that decision "early in the encounter," as Ramdihall contends.
Ramdihall also attempts to support his argument that the
seizure occurred prior to 1:55 a.m. by noting, "Eaton testified
that he decided the men would not be allowed to leave until the
detective arrived." But, the fact that the record shows that Eaton
had made that decision at 1:55 a.m. obviously does not help
Ramdihall show that a seizure had taken place before that time.
Finally, Ramdihall appears to contend that the District
Court erred in finding that the seizure did not occur until 1:55
a.m. because the number of police officers present over the course
of the encounter converted it into a seizure by creating "a
coercive and intimidating situation" prior to that time. Ramdihall
notes in this regard that over the course of the entire encounter,
six officers were present, and that "[t]he number and position of
officers have been recognized as important considerations for
a seizure); United States v. Chan-Jimenez, 125 F.3d 1324, 1326
(9th Cir. 1997) (same); United States v. Elliott, 107 F.3d 810,
814 (10th Cir. 1997) (same); United States v. Thompson, 712 F.2d
1356, 1359 (11th Cir. 1983) (same).
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determining whether an atmosphere of restraint can be said to have
existed." United States v. Berryman, 717 F.2d 651, 655 (1st Cir.
1983), rev'd en banc, 717 F.2d 650 (1st Cir. 1983). But, the fact
that, over the course of the entire encounter (which lasted until
well after 3 a.m.), six officers were present provides no basis
for finding that the District Court erred in finding that the
seizure did not occur until 1:55 a.m. See United States v.
Mendenhall, 446 U.S. 544, 554 (1980) (recognizing that "the
threatening presence of several officers" "might indicate a
seizure" but finding no seizure where two federal law enforcement
agents approached and questioned the defendant).6
C.
Ramdihall next turns to his fallback argument that, even
if the police had reasonable suspicion sufficient to justify the
investigative stop as of 1:55 a.m., the Kittery stop was
unreasonably long and thus became an unconstitutional seizure as
it progressed. The District Court found that, "although the stop
here was lengthy, . . . it was not too long under all the
circumstances." The District Court reached this conclusion based
on its finding that the length of the stop was proportional to the
law enforcement purposes of the stop and the time reasonably needed
6 Ramdihall seems to make the additional argument that he and
Hillaire were targeted because they were black men. But, Ramdihall
makes this argument for the first time on appeal, and so must show
plain error. And he makes no developed argument in this regard.
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to effectuate those purposes. We review the District Court's
conclusion de novo, and its factual findings for clear error.
Tiru-Plaza, 766 F.3d at 114-15.
As the Supreme Court has explained, "obviously, if an
investigative stop continues indefinitely, at some point it can no
longer be justified as an investigative stop." United States v.
Sharpe, 470 U.S. 675, 685 (1985). And, at that point, the
government can no longer justify the seizure merely with reasonable
suspicion that criminal activity is afoot. Nevertheless, "our
cases impose no rigid time limitation on Terry stops." Id.; see
also United States v. Quinn, 815 F.2d 153, 157 (1st Cir. 1987)
("[T]here is no talismanic time beyond which any stop initially
justified on the basis of Terry becomes an unreasonable seizure
under the [F]ourth [A]mendment." (first alteration in original)
(citation omitted)). Rather, we must "consider the law enforcement
purposes to be served by the stop as well as the time reasonably
needed to effectuate those purposes." Sharpe, 470 U.S. at 685.
The seizure here lasted for 82 minutes, from 1:55 a.m.
until Ramdihall and his associates were released at 3:17 a.m. That
amount of time is lengthy. But, Ramdihall must show that the 82-
minute seizure was longer than reasonably needed to investigate
the possible illegal activity, as the purpose of the stop was to
permit such an investigation. Ramdihall fails to do so. In fact,
he does not contest the District Court's findings that
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"circumstances remained murky; there were no obvious or
alternative ways to investigate; [and] the suspects were from away
[New York] and were leaving the state with possibly fraudulently
obtained merchandise and gift cards." Thus, the argument that the
seizure was unreasonably long fails. See United States v.
McCarthy, 77 F.3d 522, 531 (1st Cir. 1996) (finding 75-minute Terry
stop was not "particularly unreasonable" because "[t]here is no
evidence or even an allegation of less than diligent behavior on
the part of the police," and "[t]he officers on location used a
number of different investigative techniques in their efforts to
pursue quickly any information that might have dispelled the
reasonable suspicion that initially triggered the stop").
D.
Ramdihall's final argument for suppressing the evidence
obtained from the traffic stop in Kittery is that, even if the
seizure was lawful, the District Court erred in denying the aspect
of the suppression motion that contended that Ramdihall had not
voluntarily given his consent to the search of the trunk. We
review the District Court's voluntariness finding for clear error,
United States v. Kimball, 741 F.2d 471, 474 (1st Cir. 1984), and
we find none.
Before turning to the merits of the matter, the District
Court first found that Ramdihall had no standing to challenge the
search of the car because he was not an authorized driver on the
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rental car. But we need not decide that question, because, even
if we assume that Ramdihall did have standing to challenge the
search of the car, his arguments on the merits are unavailing.
A person who is lawfully detained may still voluntarily
give consent to a search. See United States v. Forbes, 181 F.3d
1, 6 (1st Cir. 1999) (noting that "the fact of custody alone is
never enough to demonstrate coerced consent"). In determining
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."
Id. (citation omitted). We also consider "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. (citation omitted).
Here, the District Court found that the search was
consensual, and noted that "there was never any physical
constraint, no handcuffing, no display of drawn weapons; the
character of the interrogation was mild." Ramdihall now asserts
that, in fact, "the detention was coercive and intimidating." But,
in support of that assertion, he points only to the fact that an
officer's "flashlight was directed into the car" and that, after
Brosnihan first approached the vehicle to question him, five other
officers eventually arrived as backup.
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The voluntariness issue turns, however, not on whether
Ramdhiall was detained, but on whether he was detained in a manner
that precluded him from freely consenting to the search. And
Ramdihall makes no argument as to how the facts he highlights, in
light of our precedent, see, e.g., Kimball, 741 F.2d at 474, could,
in and of themselves, support such a conclusion. Thus, Ramdihall's
fallback argument fails.
III.
We turn now to Ramdihall's challenge to the denial of
his suppression motion concerning the traffic stop in Ohio. Here,
too, we find no merit to the challenge.
A.
Again, we must begin by recounting the relevant facts,
which we take from the District Court's uncontested findings. See
Campa, 234 F.3d at 737. On October 10, 2013, Ramdihall was driving
in a rental car on Interstate 70 in Ohio. Hillaire was a passenger
in the vehicle. An Ohio State Highway Patrol trooper, John Martin,
pulled the car over for driving 90 miles per hour in a 70 miles-
per-hour zone. When Martin asked to see Ramdihall's license and
registration, Ramdihall opened the center console and then shut it
"very quickly," during which time Martin saw "a plastic baggie"
inside. Ramdihall told him that the bag contained tobacco.
Martin learned that the car was a rental that had been
leased by an absent third party. Ramdihall was listed on the
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rental agreement as an alternate driver. Martin also learned that
Ramdihall and Hillaire were driving to Columbus from New York.
Martin observed that there was no visible luggage and that the car
had "a very clean compartment for people on the road for an
extensive period of time."
Martin then went back to his police cruiser to write a
speeding ticket. He also called a K-9 unit to come to the scene.
Martin then returned to Ramdihall's car to ask for Ramdihall's and
Hillaire's social security numbers. He also asked Ramdihall to
accompany him back to the cruiser, which Ramdihall did.
In the cruiser, Ramdihall told Martin that Hillaire was
unemployed. Ramdihall also told Martin that Ramdihall planned to
move to Columbus, was visiting to check out the area, and would be
returning to New York on Saturday or Sunday. Martin pointed out
that the car rental would expire on Friday, and Ramdihall seemed
surprised. Ramdihall also stated that he had "three clothes" with
him on the trip, and that Hillaire had no clothes with him but
would buy clothes as necessary in Columbus.
Martin ran Ramdihall's and Hillaire's social security
numbers. He discovered that neither Ramdihall nor Hillaire had
any drug convictions, though Hillaire did have a criminal history.
Martin finished writing the traffic ticket at 10:40 a.m.
The K-9 officer, Ohio State Highway Patrol Trooper Shawn Milburn,
arrived six minutes later, at 10:46 a.m. The dog alerted to the
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presence of narcotics at 10:49 a.m. Between 10:46 a.m. and 10:49
a.m., both officers had smelled marijuana. Milburn then read
Ramdihall and Hillaire their rights, as required under Miranda v.
Arizona, 384 U.S. 436 (1966).
After reading the men their rights, the officers
searched the passenger compartment of the car, but did not find
any marijuana. The officers then searched the trunk, where they
found, under the spare tire cover, a bundle of seventeen credit
cards in Hillaire's name, held together by rubber bands. Martin
swiped the credit cards' magnetic strips through a card reader.
By doing so, he discovered that the information recorded in some
of the cards' strips did not match the numbers and expiration dates
on the front of those cards, indicating that those cars were
counterfeit. The officers later found tobacco in the baggie in
the center console, and a small amount of marijuana in the
passenger's side of the car, along with rolling papers.
B.
Ramdihall does not dispute that, during this traffic
stop in Ohio, he was lawfully stopped for speeding and properly
issued a ticket. He contends instead that Martin lacked reasonable
suspicion to detain him beyond the time necessary to issue him
that ticket. He thus contends that the seizure was unlawful
because it persisted past the time needed to issue the ticket
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solely in order to permit the K-9 unit to arrive and perform the
dog sniff of the car.
The Supreme Court made clear in Rodriguez v. United
States, 135 S. Ct. 1609 (2015), that, absent "the reasonable
suspicion ordinarily demanded to justify detaining an individual,"
a police officer may not prolong a traffic stop to conduct a K-9
sniff beyond the time necessary to handle the traffic violation
that justified the stop. Id. at 1615. Reasonable suspicion may
nonetheless develop during the course of an ordinary traffic stop
so as to justify extending the seizure beyond the time needed to
accomplish its original purpose. Id. at 1616-17. The question in
this case, therefore, is whether such reasonable suspicion
developed.
"[T]he level of suspicion the [reasonable suspicion]
standard requires is considerably less than proof of wrongdoing by
a preponderance of the evidence, and obviously less than is
necessary for probable cause." Navarette v. California, 134 S.
Ct. 1683, 1687 (2014) (citations omitted). Reasonable suspicion
requires more, however, than an "inchoate and unparticularized
suspicion or 'hunch.'" Terry, 392 U.S. at 27. It requires that
the officer be able to articulate "the specific reasonable
inferences which he is entitled to draw from the facts in light of
his experience." Id.
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Although the concept of reasonable suspicion "defies
precise definition," United States v. Espinoza, 490 F.3d 41, 46
(1st Cir. 2007) (quoting United States v. Chhien, 266 F.3d 1, 6
(1st Cir. 2001)), "some general guideposts" exist, United States
v. Pontoo, 666 F.3d 20, 27 (1st Cir. 2011). "Prominent among these
is the tenet that a finding of reasonable suspicion must be
premised upon 'a particularized and objective basis for suspecting
the particular person stopped of criminal activity." Id. at 27-
28 (quoting United States v. Cortez, 449 U.S. 411, 417-18 (1981)).
The particularity requirement ensures that the suspicion is
"grounded in specific and articulable facts," id. at 28 (quoting
Espinoza, 490 F.3d at 47), while "[t]he objectivity requirement
dictates a focus on what a reasonable law enforcement officer in
the same or similar circumstances would have thought," id.
Here, the District Court found -- and Ramdihall does not
contest -- that the dog sniff occurred six minutes after Martin
completed the traffic ticket. And, the District Court found that
Martin had a reasonable and articulable basis for suspicion
justifying that additional six-minute delay based on the following
combination of facts: (1) Martin's observation of the plastic
baggie in the center console; (2) the manner in which Ramdihall
"surreptitiously" opened, and then quickly closed, that center
console; (3) the fact that the vehicle was a rental and the renter
was not with the vehicle, which Martin testified was an indication
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of drug trafficking; (4) the fact that Ramdihall was from New York,
Hillaire was from California, and they offered a dubious
explanation for why they were en route to Columbus; (5) the
inconsistency between Ramdihall's assertion that he and Hillaire
would be in Columbus for several days and the fact that the rental
was due to expire the following day; and (6) the absence of visible
luggage in the vehicle, despite Ramdihall's assertion that he and
Hillaire had driven to Ohio from New York for a multi-day trip.
In arguing that this combination of facts does not
suffice to support a finding of reasonable suspicion, Ramdihall
challenges, for one reason or another, the probative value of a
number of the findings set forth above. But, as we will explain,
those challenges fail because they either depend on unwarranted
challenges to the credibility findings made below or on contentions
about the lack of probative value of a particular finding when
considered only in isolation, without regard to the significance
that fact may have when considered as part of the other findings
made by the District Court. Ramdihall also challenges a number of
facts that the District Court did not rely on in concluding that
there was reasonable suspicion, and which thus have no bearing on
whether the District Court's reasonable suspicion determination
was made in error. His challenge as a whole therefore fails.
In reaching this conclusion, we note that we review the
District Court's factual conclusions and credibility
- 24 -
determinations only for clear error. Tiru-Plaza, 766 F.3d at 114.
Under this standard, we must "grant significant deference to the
district court, overturning its findings only if, after a full
review of the record, we possess a definite and firm conviction
that a mistake was made." Id. at 115 (citation omitted). We note
as well that we review the District Court's legal conclusions --
including the District Court's determination that the officer did
have reasonable suspicion to justify the detention -- de novo,
while still "giv[ing] appropriate weight to the inferences drawn
by the district court and the on-scene officers," id., and while
being sure to consider the totality of the circumstances, id. at
116-17.7
We begin with Ramdihall's contention that, because there
are "thousands of uses for a plastic baggie" that do not "involve
criminal activity," the evidence that a plastic baggie was present
is of no consequence. But the District Court did not find that
the presence of a plastic baggie in and of itself supports a
finding of reasonable suspicion. The District Court instead
7 In presenting his challenge to the District Court's ruling,
Ramdihall makes much of the fact that Martin testified at the
suppression hearing that he prolonged the stop to call for the K-9
unit based on a "hunch," given that a hunch alone does not create
reasonable suspicion. See Navarette, 134 S. Ct. at 1687. But the
District Court did not rely on Martin's testimony characterizing
his suspicion as a "hunch" in finding that reasonable suspicion
did exist. Rather, as we have explained, the District Court found
that there was an objective basis to form reasonable suspicion
based on the enumerated circumstances described above.
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credited Martin's testimony that, based on Martin's experience,
the manner in which Ramdihall appeared to surreptitiously conceal
the plastic baggie indicated that "there was probably some kind of
illegal narcotics in there." Thus, the District Court found that
the presence of the plastic baggie, combined with the surreptitious
manner in which Ramdihall shielded it from view, gave rise to
reasonable suspicion when considered in light of the other evidence
that raised doubts about Ramdihall's story concerning his travel
plans. And though the question may be close, Ramdihall does not
offer a persuasive account of why, in combination, the facts
available in the record render such a conclusion mistaken.
After all, neither Ramdihall nor Hillaire were from
Ohio, and their explanation of why they were in Columbus -- on a
multi-day trip to consider whether Ramdihall might move there --
was not corroborated by the other circumstances that Martin
observed. It is also odd that Hillaire -- who Martin learned was
unemployed and living in California -- would fly to New York for
the purpose of visiting Ohio with Ramdihall, and would bring no
clothes with him for the trip but plan, instead, to buy clothes in
Ohio. Odd, too, is the fact that the rental was going to expire
the following day, even though the trip, by Ramdihall's account,
would not yet be over.
Moreover, Martin testified that when individuals in a
rental vehicle are transporting drugs, "most of the time, the
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renter of the vehicle is never with the vehicle." Instead, Martin
testified, "[s]omeone rents [the vehicle] and then others
transport the drugs." And, here, although Ramdihall was listed as
an authorized alternate driver of the vehicle on the rental
agreement, neither he nor Hillaire was the person who rented the
vehicle. Thus, Martin concluded, the fact that the renter was not
with Ramdihall and Hillaire was "another red flag."
In addition to these circumstances, Martin observed
Ramdihall surreptitiously closing the console to conceal a plastic
baggie. Given Martin's testimony that his experience with such
matters suggested that this action by Ramdihall indicated that the
baggie contained illegal narcotics, the record, taken as a whole,
established a basis for supportably concluding that criminal
activity was afoot.
Ramdihall appears to contend that his behavior in
closing the console -- and thus obscuring the plastic baggie --
was not, in fact, surreptitious, as he was simply checking the
center console for his license, registration, and insurance
documents. And, Ramdihall also appears to suggest that the
District Court erred in crediting Martin's contrary testimony on
that point because Martin could not remember from where Ramdihall
produced his license and rental agreement. However, our review of
the District Court's decision to credit the testimony concerning
the nature of Ramdihall's action in closing the console is for
- 27 -
clear error. See id. at 114. And none of the points that Ramdihall
now raises gives rise to "a definite and firm conviction that a
mistake was made" in that regard. See id. at 115.
In a separate vein, Ramdihall takes note of the District
Court's factual findings that the vehicle was unusually clean and
that it contained no visible luggage, and he challenges the
reasonableness of an inference that these facts give rise to
suspicion of criminal activity. But, although the District Court
found that the vehicle was clean, it did not identify the
cleanliness of the vehicle as a ground for reasonable suspicion.
Nor did it even find that the fact that there was no visible
luggage in the car constituted such a ground. The District Court
merely listed that fact as one of several in the course of
explaining why it found that Ramdihall's professed account of his
travels was "thin or dubious." As we see no basis for disturbing
that characterization of Ramdihall's account on this record even
apart from the absence of visible luggage, Ramdihall's focus on
that discrete aspect of the District Court's finding is misplaced.
For when the problematic nature of Ramdihall's travel story is
considered in combination with the supportable finding that
Ramdihall surreptitiously concealed the plastic baggie, and
Martin's testimony regarding the "red flag" posed by a rental
vehicle with an absent renter, there is no basis for us to
conclude, on this record, that the District Court erred in finding
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that the totality of the circumstances gave rise to a reasonable
suspicion of criminal activity.
Ramdihall next objects to attributing significance to
Martin's testimony that New York, California, and Columbus, Ohio,
are each sites of drug activity and that Interstate 70 is a main
route of travel. But, the District Court did not rely on this
part of Martin's testimony in finding reasonable suspicion. And
Ramdihall fails to explain how the findings that the District Court
did rely upon, in combination, are insufficient to justify the
seizure's duration.
Ramdihall's next ground for challenging the denial of
the motion to suppress with respect to this stop also fails. He
argues that the circumstances of the car rental do not constitute
grounds for suspicion. Specifically, Ramdihall contends that
because he was listed as an alternate driver on the rental
agreement, he was lawfully permitted to be driving the rental car
even without the renter. He further emphasizes that his
explanation that he was not the primary renter because he did not
have a credit card was plausible. And, he contends it was not
suspicious that the rental was set to expire the next day, because
he reacted with "honest surprise" to learning that the rental was
set to expire and because he could have easily extended the rental
period. But, the circumstances of the car's rental must be
considered as a part of the findings as a whole, including the
- 29 -
credited testimony regarding the surreptitious closing of the
console to obscure the plastic baggie. When so considered, the
circumstances of the car's rental do support the District Court's
finding of reasonable suspicion.
Ramdihall does also contend that the real reason Martin
prolonged the traffic stop for a K-9 sniff was because of racial
bias. Ramdihall points to no evidence in the record to support
this claim, however. And, in any case, while "the Constitution
prohibits selective enforcement of the law based on considerations
such as race[,] . . . the constitutional basis for objecting to
intentionally discriminatory application of laws is the Equal
Protection Clause, not the Fourth Amendment." Whren v. United
States, 517 U.S. 806, 813 (1996). Thus, this argument, too, must
fail.
Similarly unavailing is Ramdihall's apparent argument
that the circumstances should have indicated to Martin and to the
District Court that criminal activity was not afoot. Ramdihall
emphasizes in this regard that neither he nor Hillaire acted in a
nervous manner, that neither had any prior drug history, and that
they were able to produce valid identification and a valid rental
agreement. Ramdihall also contends that he proffered a plausible
explanation of what he was doing in Ohio with Hillaire, arguing
that it is "perfectly normal" for someone of Ramdihall's age to
seek to move away from his family, that the assertion that
- 30 -
Ramdihall drove commercial trucks was plausible because no
commercial license is needed for 26-foot trucks, and that he was
able to answer Martin's questions about Hillaire, proving that
they were in fact friends. But, in light of the totality of other
circumstances, and especially the finding regarding the
surreptitious closing of the center console to conceal the plastic
baggie in combination with the inconsistencies in the explanations
regarding Ramdihall's travel plans, the fact that the District
Court could have concluded that no criminal activity was afoot
does not render the District Court's inference to the contrary
clear error. See United States v. Arthur, 764 F.3d 92, 96 (1st
Cir. 2014) ("[A]bsent an error of law, we will uphold a refusal to
suppress evidence as long as the refusal is supported by some
reasonable view of the record." (citation omitted)).
Finally, Ramdihall emphasizes that Milburn's testimony
that the officers found marijuana hidden over the car's visor on
the passenger side conflicted with Martin's testimony that the
officers found the marijuana over the visor on the driver's side.
In addition, Ramdihall contends that, prior to the search, Milburn
stated that he smelled "raw marijuana," but that the search
unearthed only "processed, not raw, marijuana."
But the District Court did not rely on testimony about
where the marijuana was found or what Milburn smelled in concluding
that there was reasonable suspicion sufficient to justify Martin
- 31 -
calling the K-9 unit in the first place. And so this conflict in
the testimony does not itself undermine the District Court's
ruling. Moreover, insofar as Ramdihall means to cast doubt on
Martin's credibility, and thus perhaps to call in to question the
District Court's crediting of Martin's testimony regarding the
manner in which Ramdihall closed the console, we defer to the
District Court's credibility determination in the absence of any
"definite and firm conviction that a mistake was made."8 See Tiru-
Plaza, 766 F.3d at 114.
C.
Ramdihall brings one final Fourth Amendment challenge
regarding this stop. This challenge relates to the seventeen
credit cards that the officers found under the spare tire cover in
8 Ramdihall appears to challenge Martin's credibility in one
further respect. He points to Martin's testimony that, prior to
the dog sniff, Martin told Milburn where in the car Martin had
seen the plastic baggie, and suggests that this aspect of Martin's
testimony contradicts Milburn's testimony that Milburn tried "not
to pay attention" to what Martin told him prior to the dog sniff
so that it would not "look like I'm trying to make my dog alert to
anything that's not there." But, the record shows that Milburn
neither solicited the information about the plastic baggie from
Martin, nor asked any follow-up questions. Thus, we see no
inconsistency with Milburn's testimony that he tries "not to pay
attention" to such information arising from the fact that Martin,
unprompted, told Milburn where Martin had seen the baggie. To the
extent that Ramdihall means to contest the reliability of the dog
sniff, moreover, Ramdihall's counsel waived this argument below by
specifically telling the District Court that he was not contesting
the reliability of the dog sniff. See United States v. Sánchez-
Berríos, 424 F.3d 65, 74 (1st Cir. 2005) (noting that "[a] party
waives a right when he intentionally relinquishes or abandons it").
- 32 -
the trunk of the vehicle. Ramdihall contends that the District
Court erred in concluding that it was permissible under the Fourth
Amendment for the officers to swipe those credit cards through a
card reader because a person "might" have a reasonable expectation
of privacy in the information stored on a credit card's magnetic
strip.
But Ramdihall does not assert that a person does, in
fact, have such an expectation of privacy. He asserts only that
a person might. And he acknowledges that there is no evidence in
the record that would support this conclusion. Thus, even if we
were to assume that such an argument could be developed, in light
of the "perfunctory manner" in which Ramdihall raises this
argument, "unaccompanied by some effort at developed
argumentation," we deem the matter waived. United States v.
Zannino, 895 F.2d 1, 17 (1st Cir. 1990).
IV.
For the foregoing reasons, we affirm.
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