United States v. Dion , 859 F.3d 114 ( 2017 )

United States Court of Appeals
For the First Circuit
No. 16-1377
UNITED STATES OF AMERICA,
Appellee,
v.
MARSHALL H. DION,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Denise J. Casper, U.S. District Judge]
Before
Lynch, Thompson, and Barron,
Circuit Judges.
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.
June 8, 2017
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
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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,
1 Our review includes the video recording of the encounter
- Blake's cruiser was equipped with recording equipment that kicked
in at the inception of Blake's pursuit of Dion's truck and
continued through the roadside search of the truck. The recording
tracked what happened both inside the cruiser and out.
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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 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
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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.
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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 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.
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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."
He continued, distinguishing dangerous drugs from the marijuana on
Blake's screen saver. Blake told Dion he searches for travelers
who are "hauling" drugs. The conversation continued, tackling the
topic of the legalization of marijuana.
And then, once more, Dion offered Blake a look inside
the truck. Dion said "sure" when Blake pressed for confirmation
that he had permission to search the truck. Dion insisted he was
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"clean," and reminded Blake that he was "out of the business," and
Blake stated he would love to look in the truck if Dion would let
him. Dion again agreed, but not without noting that, "normally,
[he] would bust [Blake's] balls like [Blake was] busting [Dion's],"
but declined to do so in a showing of appreciation for Blake's
military service.
When they got out of the cruiser, they went to the truck
and Dion opened the window on the upper part of the back of the
truck. Blake, with Dion's permission, opened the tailgate,
observing right off the bat deteriorating boxes, road atlases, and
a refrigerator - to use Blake's word, "junk." But, according to
Blake and his experience, this was not just any junk: it was what
he called a "cover load," or a bunch of items deliberately piled
up to disguise contraband.
After Blake checked the back right wheel area, he again
surveyed the articles in the truck bed and asked Dion where the
truck and its contents were coming from. Boston, answered Dion.
Blake testified he found it odd that the materials came from
Boston: Dion had mentioned having a residence in Massachusetts,
but never indicated he had gone to Boston as part of this trip.
Blake sought and got Dion's permission to take things out of the
truck so he could look around. Blake began combing through the
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pile of stuff, telling Dion that another officer was on his way2
and then asking again whether there were any weapons. With the
then-recent Boston Marathon bombing in mind, Dion joked to Blake
that he had a backpack with some bombs in it - he quickly thought
better of it and clarified that he was not serious.
Geary County Deputy Captain Coffman ("Coffman") then
arrived. Blake filled him in on the information he had received
about Dion and his interaction with Dion to that point. Blake
resumed his removal of items from the truck while Dion and Coffman
looked on.
Dion grew antsy and told the officers "I'm trying to
make time." Blake replied, "The longer I stand here and talk to
you about it, the longer it's going to take." And Blake told Dion
he wanted to continue looking and would return everything to its
rightful place when he was done. Dion said, "I thought I was being
nice giving you permission." At that point, Blake told Coffman
that Dion revoked his consent, and both stopped searching the
truck. When Blake returned to where Dion was standing, Dion told
him he wanted to head out. Blake told Dion if he wanted to get a
move on, "that's fine," but "is it ok if I run my dog [who had
been sitting in the cruiser's backseat] on the truck?" Dion said,
"Yeah."
2 Earlier in the stop, another officer texted Blake
offering to provide assistance, and Blake accepted.
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The Scene Continues
Blake and his K-9 took a lap around the truck, during
which the K-9 detected the odor of narcotics at the driver's side
front wheel and front of the bed of the truck behind the cab.
Specifically, the dog indicated (he had a change in behavior) to
those locations, but did not alert (he did not bite, bark, or
scratch) - the difference being that the dog had detected the odor,
but not the source. Blake and his dog looped back towards the
cruiser, and Blake reported to Dion, "He smells dope, bro." Blake
asked Dion whether he had any cocaine, heroin, ecstasy, or
marijuana, and Dion quickly answered "No" as to each. Dion paused
and faltered when Blake asked whether Dion had large amounts of
U.S. currency in the truck - he said, "Pardon me?" before uttering
a few unintelligible words, then said he had about $6,000.
At this point, another officer had joined Blake and
Coffman, and they climbed into the truck to continue the search.
Their search led them to a number of FedEx boxes containing what
amounted to almost $830,000. Blake testified, "[b]ased off of
everything that had come up to that point, [he] believed that [the
money] was contraband, either used as a direct source or derivative
from the sale of narcotics or used to fund or buy drugs or some
type of contraband or criminal activity or both."
In addition to the cash, the cops found a "Tucson-Boston"
trip to-do list/checklist, a list of state toll booths accepting
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Fast Lane payment, a spreadsheet containing business names and
contacts, and handwritten and type-printed trip and mileage logs
with stop locations, dates, times, gas totals and miles traveled,
and an older computer printout for earlier trips. They also
unearthed a Garmin GPS showing Dion's June 2, 2013 arrival in
Boston and travel to a self-storage center in North Reading,
Massachusetts, on June 3 and 6, 2013.
Dion was arrested and the cash was seized. The record
is not crystal clear as to what he was charged with at that time,
but for our purposes on appeal, it does not matter; the Kansas
officers sent their investigative findings to authorities in
Massachusetts, which led to those authorities looking into Dion
and getting a search warrant for Dion's storage unit in
Massachusetts. There, agents found 160 pounds of marijuana, drug
ledgers, and $11 million in cash.
Not in Kansas Anymore: Proceedings
A federal grand jury indicted Dion on September 5, 2013
- the charges were conspiracy to possess with intent to distribute
and to distribute more than 1,000 kilograms of marijuana in
violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(vii), 846;
possession with intent to distribute marijuana in violation of 21
U.S.C. § 841(a)(1); and aiding and abetting in violation of 18
U.S.C. § 2. Dion moved to suppress the evidence against him,
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arguing that it was acquired in violation of his Fourth Amendment
rights. The government objected.
The district court conducted an evidentiary hearing
before issuing an order denying the motion. The court found that
the scope and duration of the stop were reasonable, Dion
voluntarily consented to the search, and probable cause existed to
support resuming the search in the wake of Dion's consent
withdrawal. Because the court's probable-cause determination was
"based only in part" on a K-9 indication, which Dion said was
unreliable, the court granted Dion leave to file a motion to
reconsider the probable-cause finding on that basis. Dion did
just that, moving for reconsideration because, in his view, the K-
9's unreliable indication could not support a probable-cause
finding. The district court denied the motion.3
On October 15, 2015, Dion entered a conditional guilty
plea, reserving his right to appeal the denial of his suppression
3 Even if Dion's proffered expert opinion regarding the
unreliability of the dog sniff was to be accepted, the court wrote,
it would not "mean that the alert by the K-9 is entitled to no
weight in the Court's probable cause analysis." The court took it
one step further, indicating that even putting aside the
reliability of the indication (mindful that the court's probable-
cause finding was based only in part on the K-9 indication),
probable cause for the search was supported by the court's previous
ruling as to voluntary consent, observations of Dion's demeanor,
the interactions with Dion, and the "cover load" discovered in the
truck.
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motion and motion for reconsideration. After sentencing,4 this
timely appeal followed.
II. DISCUSSION
We review the district court's findings of fact in
connection with a suppression ruling for clear error and its legal
determinations de novo. United States v. Dickerson, 514 F.3d 60,
65–66 (1st Cir. 2008) (citing United States v. Woodbury, 511 F.3d
93, 95 (1st Cir. 2007)). We "will affirm the ruling if 'any
reasonable view of the evidence supports it.'" United States v.
Polanco, 634 F.3d 39, 41–42 (1st Cir. 2011) (quoting United States
v. Bater, 594 F.3d 51, 55 (1st Cir. 2010)). "Given the textured
nature of these inquiries, appellate courts must proceed
circumspectly and with regard for the district court's superior
vantage point." United States v. Espinoza, 490 F.3d 41, 46 (1st
Cir. 2007) (citing United States v. Zapata, 18 F.3d 971, 975 (1st
Cir. 1994) (instructing that appellate courts reviewing the
outcome of a motion to suppress must "exhibit great respect for
the presider's opportunity to hear the testimony, observe the
witnesses' demeanor, and evaluate the facts at first hand")).
With this in mind, we address the arguments made in the
case before us. Dion outlines his theory of the case as follows:
(1) the questioning by Blake in the cruiser impermissibly extended
4 Dion was sentenced to 120 months' imprisonment.
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the duration and scope of the traffic stop; (2) as to the first
search, Dion did not voluntarily consent; (3) even if Dion gave
consent, it was withdrawn, and there was no probable cause for the
second/continued search of the truck; and (4) all evidence should
be suppressed as a result of the illegalities surrounding the stop
and the searches. At oral argument, Dion's counsel told this court
that the district court did not err in its "listing of the facts,"
but rather it erred in failing to include "all of the favorable
facts to the appellant."
The government counters: (1) Blake's conduct was within the
permissible scope of a traffic stop, including his questioning,
which was not unnecessary or part of a fishing expedition - and
even to the extent his questions were not related to the purpose
of the stop, the questions did not impermissibly extend the
duration of the stop; (2) even if Blake's questions extended the
duration of the stop, Blake had developed reasonable suspicion to
detain Dion; (3) the initial search of the truck was permissible
in light of Dion's voluntary consent; (4) the continuation of the
search after Dion withdrew his consent was permissible because
probable cause existed; and (5) suppression of the evidence is not
warranted because there were no constitutional violations during
the traffic stop.
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It is our job to examine these arguments and the
constitutionality of what went down after the stop.5 As we get to
work, we consider the totality of the circumstances.
1. The Questioning in the Cruiser
According to Dion, Blake's questions (more than forty of
them, by Dion's count) unreasonably elongated the stop beyond the
time necessary to issue the warning citation, and those questions
(part of a fishing expedition, he argues) were not related to the
purpose of the traffic stop.6 Blake taking the time to conduct a
Google Maps search for Yardley, Pennsylvania contributed to this,
Dion says. Dion cites Rodriguez v. United States, 135 S. Ct. 1609,
1614 (2015), and United States v. Pruitt, 174 F.3d 1215, 1221 (11th
Cir. 1999), to support his contention that Blake's questions should
5 Before us, Dion does not challenge the initial stop of
his vehicle for speeding, instead focusing his appellate
contentions on Blake's post-stop actions, which Dion says exceeded
the permissible scope of a Terry stop. See Terry v. Ohio, 392
U.S. 1, 20 (1968).
6 Dion also argued to the district court that Blake's order
to have Dion exit the vehicle and get into the cruiser expanded
the duration of the stop, but he does not make this point in
support of his arguments on appeal, so we do not address it. See
United States v. Sowers, 136 F.3d 24, 25 n.1 (1st Cir. 1998)("To
the extent that arguments made at the suppression hearing are not
renewed on appeal, we deem them abandoned." (citing United States
v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990))).
Meanwhile, Dion argues on appeal that the dog sniff
extended the duration of the stop and exceeded the basis of the
stop. But since he did not raise that angle below, we do not
address that either. See, e.g., United States v. Valerio, 676
F.3d 237, 246 n.2 (1st Cir. 2012) (noting that arguments raised
for the first time on appeal are deemed waived).
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have been confined to requesting Dion's license, registration, and
insurance papers.
The government counters that Blake did not
inappropriately extend the duration of the stop, all questions
asked were in response to the emerging tableau and, no matter how
you slice it, the questions didn't unreasonably prolong the stop
(it wasn't a long stop, and Dion carried the conversation too).
Before we tackle these arguments, we provide the lay of
the land on some Fourth Amendment traffic-stop principles. A
routine traffic stop is more akin to a Terry stop than an arrest.
Rodriguez, 135 S. Ct. at 1614 (citations omitted). "Like a Terry
stop, the tolerable duration of police inquiries in the traffic-
stop context is determined by the seizure's 'mission' — to address
the traffic violation that warranted the stop, Illinois v.
Caballes, 543 U.S. 405, 407 (2005), and attend to related safety
concerns." Id. The Rodriguez Court explained that, "[b]eyond
determining whether to issue a traffic ticket, an officer's mission
includes 'ordinary inquiries incident to [the traffic] stop.'"
Id. at 1615 (alterations in original) (quoting Caballes, 543 U.S.
at 408). This includes "checking the driver's license, determining
whether there are outstanding warrants against the driver, and
inspecting the automobile's registration and proof of insurance,"
id., as well as conducting criminal record searches to ensure
officer safety, id. at 1616 (citations omitted). The Court went
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on: when there is no reasonable suspicion of criminal activity,
an officer can undertake checks unrelated to the purpose of the
stop so long as those checks do not prolong the stop. Id. at 1614,
1615 (citations omitted). On the other hand, however, "[a] seizure
justified only by a police-observed traffic violation . . .
'become[s] unlawful if it is prolonged beyond the time reasonably
required to complete th[e] mission' of issuing a ticket for the
violation." Id. at 1612 (alterations in original) (emphasis added)
(quoting Caballes, 543 U.S. at 407).
This brings us to the concept of reasonable suspicion in
the context of a traffic stop. Investigatory stops have two
components: (1) a police officer must have a reasonable,
articulable suspicion of an individual's involvement in some
criminal activity in order to make the initial stop, see Terry,
392 at 21; United States v. Ruidíaz, 529 F.3d 25, 28 (1st Cir.
2008); United States v. Chhien, 266 F.3d 1, 6 (1st Cir. 2001); and
(2) any action undertaken with respect to the stop "must be
reasonably related in scope to the stop itself 'unless the police
have a basis for expanding their investigation,'" Ruidíaz, 529
F.3d at 28-29 (quoting United States v. Henderson, 463 F.3d 27, 45
(1st Cir. 2006)).
When examining "reasonableness" in these cases, we
consider the totality of the surrounding circumstances. United
States v. Romain, 393 F.3d 63, 71 (1st Cir. 2004). The
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reasonableness analysis "requires a practical, commonsense
determination," Ruidíaz, 529 F.3d at 29 (citing Sowers, 136 F.3d
at 28), and we have said that this "determination . . . entails a
measurable degree of deference to the perceptions of experienced
law enforcement officers," id. (citing Ornelas v. United States,
517 U.S. 690, 699 (1996); Chhien, 266 F.3d at 8).
"No simple, mechanical formula tells us what reasonable
suspicion is, though we know that it is less than probable cause
and more than a naked hunch." McGregor, 650 F.3d at 821 (citing
Chhien, 266 F.3d at 6); see also United States v. Sokolow, 490
U.S. 1, 7 (1989). "And no one-size-fits-all template exists to
sketch out whether an officer acted with reasonable suspicion."
McGregor, 650 F.3d at 821 (citing Espinoza, 490 F.3d at 46).
Instead, we must assess the presence of reasonable suspicion "in
a commonsense, case-by-case way, taking in the whole picture."
Id. (citing Chhien, 266 F.3d at 6).
Remember that "[a] Terry stop is not necessarily a
snapshot of events frozen in time and place," but rather more
closely resembles an ongoing process. Ruidíaz, 529 F.3d at 29.
"For that reason, '[t]he propriety of an officer's actions after
an initial stop depends on what the officer knows (or has reason
to believe) and how events unfold.'" Id. (alteration in original)
(quoting Romain, 393 F.3d at 71). "[I]f an officer undertakes an
investigation pursuant to a Terry stop, his ensuing actions must
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be 'fairly responsive to the emerging tableau.'" Id. (quoting
Chhien, 266 F.3d at 6); see also Sowers, 136 F.3d at 27. We have
explained that, as an investigation unfolds, an officer's focus
can shift, and he can "increase the scope of his investigation by
degrees" when his suspicions grow during the stop. Ruidíaz, 529
F.3d at 29 (quoting Chhien, 266 F.3d at 6; citing Sowers, 136 F.3d
at 27). Indeed, "the police are in need of an escalating set of
flexible responses, graduated in relation to the amount of
information they possess." Terry, 392 U.S. at 10.
Back to our case. Let's travel back: Blake was
suspicious "[f]rom the very start" of the traffic stop. Dion's
truck bore Colorado plates, but Dion had an Arizona license with
a P.O. box; Dion oddly offered on multiple occasions during the
stop for Blake to search the truck; Dion's "extreme nervousness"
persisted throughout the stop; his reasoning for traveling - a
long car trip from Arizona to Pennsylvania to consult his CPA -
didn't add up; his travel route was off; the stretch of highway
was a drug-trafficking corridor; and he concealed aspects of his
drug-trafficking history.
Any one of those facts, standing alone, might not support
reasonable suspicion. See, e.g., Illinois v. Wardlow, 528 U.S.
119, 124 (2000). Seizing on this observation, Dion tackles these
facts one by one, arguing that each is not a basis for reasonable
suspicion. Dion contends that: (1) his initial offer to Blake to
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search the truck was not "odd" or suspicious, and neither the
government nor Blake articulated any reason why it was; (2) the
nervousness Blake observed is not an important factor in the
reasonable-suspicion calculus and, regardless, the video of the
traffic stop shows that Dion was not "particularly nervous"; (3)
Dion's travel plans and route - though "off" in Blake's view -
were not implausible, and so do not support reasonable suspicion;
and (4) Blake did not learn of Dion's history of drug trafficking
until after the stop was impermissibly extended, and Dion's twenty-
five-year-old conviction was too old to support anything more than
a hunch.
But the Supreme Court has flatly rejected just this sort
of "divide-and-conquer analysis" because it is inconsistent with
the requirement that courts examine the totality of the
circumstances. United States v. Arvizu, 534 U.S. 266, 274 (2002)
(citing Terry, 392 U.S. at 22). Indeed, "a fact that is innocuous
in itself may in combination with other innocuous facts take on
added significance." Ruidíaz, 529 F.3d at 30; see also Terry, 392
U.S. at 22 (explaining that each act may be "perhaps innocent in
itself," but taken together, the acts "warranted further
investigation"). That is what we have here: "taking in the whole
picture," McGregor, 650 F.3d at 821 (citing Chhien, 266 F.3d at
6), these facts are sufficient to support a reasonable suspicion
that criminal activity was afoot, specifically that Dion was
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involved in drug-related activities. Addressing each of Dion's
points, but mindful of the totality of the circumstances, we
briefly explain.
As Dion concedes, our case law allows an officer carrying
out a routine traffic stop to request identification from the
driver and to inquire into the driver's itinerary. See United
States v. Fernandez, 600 F.3d 56, 60-62 (1st Cir. 2010); Chhien,
266 F.3d at 9. That's how this traffic stop began. Dion, who was
driving a vehicle with Colorado plates, produced an Arizona
license, and he described his travel itinerary as a return trip
from a cross-country road trip to visit a CPA in Pennsylvania. A
drive of that distance for that purpose is reasonably viewed as
odd, to say the least, and that odd answer to a concededly
appropriate question about travel itinerary both prompted and
warranted Blake's follow-up questions in the cruiser on that
subject,7 as well as his Google Maps search, which revealed that
the route Dion was traveling was "off" for his stated journey.8
7 We deem Blake's questions about Dion's occupation and
income — which Dion characterizes as outside of the scope of
permissible inquiries for this traffic stop — to be comfortably
within the bounds of reasonable follow-up questions. After all,
Dion told Blake that he drove across the country to visit a CPA,
presumably for a matter concerning his finances.
8 In the course of arguing that Blake's questions
impermissibly extended the scope of the stop, Dion seizes on
Blake's admission that he was "looking beyond the traffic stop"
when he questioned Dion. However, Dion's reliance on Blake's
subjective intent in asking his questions is misplaced because the
reasonable-suspicion analysis has an objective focus. See
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See, e.g., United States v. Ramdihall, No. 15-1841, 2017 WL
2177140, at *6 (1st Cir. May 18, 2017) (relying on odd explanation
of travel plans and the strange fact that the rental car's
expiration fell in the middle of the supposed road trip to find
reasonable suspicion); United States v. Chaney, 584 F.3d 20, 26
(1st Cir. 2009) (explaining that defendant's implausible answers
to officer's questions coupled with nervousness provided officer
with reasonable suspicion that defendant had given a false name
and might be involved in criminal activity, so "it was reasonable
to undertake further questioning" to investigate). We need not
dwell on Dion's argument that this questionably odd explanation
for the trip "was not implausible or deceptive" because the
explanation for the trip was hardly the only suspicious occurrence
during this traffic stop.
After Blake asked Dion to accompany him back to his
cruiser while Blake issued the citation,9 Dion volunteered an
entirely unprompted offer for Blake to search his truck. Contrary
to Dion's contention on appeal, Blake explained why this
spontaneous offer to search struck him as "odd" and "suspicious":
McGregor, 650 F.3d at 822 ("[C]ourts do not 'plumb[]' an officer's
'actual motive' in performing a reasonable-suspicion analysis."
(second alteration in original) (quoting Bolton v. Taylor, 367
F.3d 5, 7 (1st Cir. 2004))); see also Ruidíaz, 529 F.3d at 29
(reasonableness in the traffic-stop context is "not dependent on
an individual officer's subjective motives").
9 Remember that, on appeal, Dion does not revisit his
challenge to Blake's request for Dion to join him in the cruiser.
- 22 -
in his experience, it was odd and uncommon for someone to offer to
have the officer search a vehicle. And, as we explained, we afford
"a measurable degree of deference to the perceptions of experienced
law enforcement officers." Ruidíaz, 529 F.3d at 29; see also
Arvizu, 534 U.S. at 273 (explaining that reasonable-suspicion
assessment "allows officers to draw on their own experience and
specialized training to make inferences from and deductions about
the cumulative information available to them that 'might well elude
an untrained person.'" (quoting United States v. Cortez, 449 U.S.
411, 418 (1981))). Moreover, the offer to search was not an
isolated, one-time occurrence. Instead, during the time he spent
in Blake's cruiser, Dion made multiple unsolicited offers to Blake
to search his vehicle.
Furthermore, Blake stopped Dion on a known drug-
trafficking thoroughfare, and he observed Dion to be nervous from
the get-go — two factors that, while not indicative of criminal
activity standing on their own, can (and should) be thrown into
the reasonable-suspicion mix under our case law. See, e.g., United
States v. Stanley, 915 F.2d 54, 56 (1st Cir. 1990) (reasoning
lateness of the hour, high-crime geographic location, and unusual
conduct came together to support reasonable suspicion); United
States v. Gilliard, 847 F.2d 21, 25 (1st Cir. 1988) (finding
defendant's nervousness contributed to reasonable suspicion);
United States v. Trullo, 809 F.2d 108, 111-12 (1st Cir. 1987)
- 23 -
(concluding reasonable suspicion was supported by activities
taking place in "what [was] unquestionably a high crime area" and
by the fact that defendant's "behavior was indicative of some sort
of illegal transaction"). Citing United States v. McKoy, 428 F.3d
38, 40 (1st Cir. 2005), Dion tries to minimize the role to be
played by his nervousness in the reasonable-suspicion calculus.
But McKoy is quite different from Dion's case. The McKoy
defendant's nervousness — which was limited to appearing nervous
and avoiding eye contact with two police officers as they
approached his vehicle — was easily explained as "a common and
entirely natural reaction to police presence." 428 F.3d at 40.
That pales in comparison to Dion's sustained nervousness
throughout the entire stop. Blake characterized Dion as "extremely
nervous," and his observations of Dion's pounding carotid artery
and "pulse in the area of his stomach underneath his shirt" confirm
this assessment.10 In fact, Blake elaborated that Dion's
10 To the extent that Dion intends to rely on the video to
discredit Blake's testimony about Dion's extreme nervousness, that
argument is a nonstarter. The district-court judge, who had the
benefit of hearing Blake's testimony and observing his demeanor,
found Blake to be credible as a general matter, and, with respect
to the specific point about Dion's nervousness, noted Blake's
"first-person observations about Dion's nervousness during the
stop even as he reiterated his intention to give him just a
warning." Dion's one-sentence reference to the video falls well
short of establishing that either the judge's credibility
determination or her reliance on Blake's "first-person
observations about Dion's nervousness" was clearly erroneous. See
Espinoza, 490 F.3d at 46; Zapata, 18 F.3d at 975.
- 24 -
nervousness was unlike the nervousness commonly shown by stopped
drivers (the "common and entirely natural reaction to police
presence" we discussed in McKoy) when pulled over because it was
so persistent, even after Dion was reassured that only a warning
citation would issue.
Dion also complains that Blake's questions relating to
Dion's criminal history had nothing to do with the purpose of the
traffic stop for speeding. This contention may be true, but it
ignores how the events were playing out, i.e. the emerging tableau
of what Blake knew.11 Blake already had concluded the route of
Dion's journey seemed "off," Dion's offer to search the truck was
odd, Dion was extremely and persistently nervous, and the encounter
was playing out on a known drug-trafficking thoroughfare. In these
circumstances, Blake was justified in asking Dion about his
criminal history. See, e.g., Sowers, 136 F.3d at 27 ("Based on
unfolding events, the trooper's attention (and, thus, his
reasonable suspicions) shifted away from the equipment violations
that prompted the initial stop toward a belief that the detainees
were engaged in more serious skulduggery. Such a shift in focus
is neither unusual nor impermissible." (citing Zapata, 18 F.3d at
974)).
11 Plus, the Supreme Court has characterized a criminal-
record check as a "negligibly burdensome precaution" that may be
necessary in order to complete the mission of the traffic stop
safely. Rodriguez, 135 S. Ct. at 1616.
- 25 -
Dion goes on to argue that his twenty-five-year-old
conviction was far too old to support reasonable suspicion. This
doesn't persuade either: in assessing all the circumstances,
officers are permitted to consider all criminal misdeeds,
regardless of when they took place. See McGregor, 650 F.3d at
822-23 (rejecting argument that a prior conviction was too old to
be considered in reasonable-suspicion calculus). And in any event,
it was not just the fact of conviction that Blake found suspicious.
It was also significant that Dion misrepresented the extent of his
criminal history by omitting that he had been on the hook not just
for possession, but also trafficking, and that he had been caught
up not just in marijuana, but also cocaine.
In sum, Blake's suspicions were mounting with nearly
every passing moment. "Evaluating whether an officer's suspicions
are (or are not) reasonable is a fact-sensitive task, bound up in
the warp and woof of the surrounding circumstances." Chhien, 266
F.3d at 8 (citing Florida v. Royer, 460 U.S. 491, 500 (1983)). As
we examine those suspicions, we give deference to Blake's
perceptions. See id. Here, Blake's growing suspicions (and
questioning) were reasonable. As we have said, these stops are an
"ongoing process," and for that reason, the appropriateness of
what Blake did depends on what he knew (or had reason to believe)
and how the events of the stop unfold. See Ruidíaz, 529 F.3d at
29 (citing Romain, 393 F.3d at 71). Indeed, the focus of the stop
- 26 -
can shift, as it did here, and Blake permissibly "increase[d] the
scope of his investigation by degrees" as his suspicions grew.
Id. (quoting Chhien, 266 F.3d at 6; citing Sowers, 136 F.3d at 27
(giving the okay on increasingly intrusive questions and unrelated
questions when suspicions escalate during a stop)). The questions
Blake posed fell squarely within this universe of authority, and
to the extent those questions (and his Google Maps search for
Yardley) elongated the stop, it was permissible.12
Overall, on this record, there was nothing
unconstitutional about what happened in the cruiser, and we do not
find error in the district court's finding that the duration and
scope of this stop were permissible.
12 Dion's reliance on Pruitt in support of his argument is
misplaced. In Pruitt, an Eleventh Circuit traffic-stop case, a
police officer unreasonably elongated the traffic stop by
embarking on a fishing expedition without the benefit of any
reasonable suspicion of criminal activity: the court observed
that the officer neglected to start writing the ticket, instead
asking unrelated questions. 174 F.3d at 1221. The court said
that the officer should have focused his questions on getting the
driver's license, registration, and insurance papers, and then,
because there was no reasonable suspicion to detain the driver and
passengers, they "should have been free to go." Id. But we are
not bound by Pruitt, which we see as distinguishable anyway, and,
moreover, the Eleventh Circuit limited Pruitt to situations where
the unrelated questions unreasonably prolonged the detention.
See, e.g., United States v. Purcell, 236 F.3d 1274, 1280 (11th
Cir. 2001) (explaining that "the unrelated question did nothing to
extend the duration of the initial, valid seizure" and the
detention was not "of an excessively long duration"). Here, as we
have explained, Blake had reasonable suspicion, much more than the
Pruitt officer's "unsupported hunch," and the stop was not
unreasonable in scope or duration. 174 F.3d at 1221.
- 27 -
The focus of the encounter then shifted to a search of
Dion's truck, which Blake undertook with Dion's consent. But
because Dion contests the voluntariness of that consent, we move
along to that argument.
2. The Initial Search of the Truck
Dion tells us that his consent to search the truck was
not freely given. He argues that: Blake coerced Dion's consent
through the prolonged questioning and "misrepresentation" and
"trickery," namely that Blake did not advise Dion that he could
refuse to consent to the search and made "repeated statements that
he was looking for drug traffickers"; Blake did not tell Dion he
was free to leave; Dion was not actually free to leave when Blake
said the stop was over; Dion was detained when the consent was
given; and multiple officers were present, contributing to the
involuntariness of the consent. He tells us, in support of his
argument, that he exhibited a discomfort during the search and
stated his desire to end the search, and he seems to contend that
the officers' conduct during the search (Blake's comment, "the
longer I stand here and talk to you . . . , the longer it's going
to take," and Coffman's continued search) demonstrates that Dion
hadn't consented. He further argues that his consent was vitiated
- 28 -
because it was the product of the constitutional violations as to
the scope and duration of the stop.13
Not so, says the government. Dion made various
unsolicited offers to search, and that Blake did not inform Dion
that he could refuse consent does not spell coercion or render
consent invalid. Instead, Dion's age and experience were such
that he knew he could refuse to consent. Furthermore, the
detention of Dion - justified by reasonable suspicion, says the
government - similarly does not vitiate consent. Citing Dion's
bragging about knowing he could refuse to cooperate, the government
tells us Dion knew he was free to leave despite not being
explicitly told so by Blake.
For our part, whether Dion freely consented to the search
is a question of fact, which we review for clear error. See United
States v. Dunbar, 553 F.3d 48, 56-57 (1st Cir. 2009). To determine
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. Forbes, 181 F.3d 1, 5 (1st Cir. 1999) (citation
omitted). We also consider "whether the consenting party was
advised of his or her constitutional rights and whether permission
13 Having already decided the scope and duration of the
stop were permissible, we do not tackle this part of Dion's
argument.
- 29 -
to search was obtained by coercive means or under inherently
coercive circumstances." Id. (citation omitted).
Based on the multifaceted levels of the offers to search,
consent(s) given, and searches conducted, at this point we limit
our discussion of consent to that which was given as to the first,
initial search of the truck. The district court found that Dion's
consent was voluntary, and unless that finding is clearly
erroneous, we must accept it. Chhien, 266 F.3d at 7 (citing United
States v. Coraine, 198 F.3d 306, 308-09 (1st Cir. 1999)). Upon
close review of the record, we spy no clear error in that finding.
Let's recap: Dion first offered to let Blake search the
truck after Blake peered into the truck's back window. Dion again
offered to let Blake search the truck after Blake told Dion that
the stop was over. Meanwhile, we - and Blake - know that Dion was
seventy-eight years old on the day Blake pulled him over, and the
record reflects he had prior experience with the criminal justice
system. At the end of the traffic stop (with Dion still hanging
out inside the cruiser after Blake told Dion he could stay and
chat if he wanted, but the stop was over), Dion told Blake that he
knew that he did not have to answer any questions. Actually, what
he told Blake was that he "could have shut [Blake] off at the very
beginning," and he could have "bust[ed] [Blake's] balls," meaning
he could have been uncooperative and refused to answer any
questions.
- 30 -
"Consent is voluntary if it is 'the product of an
essentially free and unconstrained choice.'" Id. (quoting
Schneckloth v. Bustamonte, 412 U.S. 218, 225 (1973)). Here, there
is nothing to support Dion's claim of coercion and trickery or
that Blake's statements that he was looking for drug traffickers
rendered Dion's consent involuntary.14 Again, Dion made multiple
unsolicited offers to Blake to search his vehicle - including one
offer made even before Dion was in the cruiser - so the consent
given wasn't exactly a one-off. Instead, it was a repeated offer
to search that, eventually, was accepted. And the conversational
tone and nature of the encounter belies any suggestion that the
offers to search were coerced or the result of Dion not being told
that he could refuse to consent to a search, which "does not
automatically render [Dion's] consent invalid." United States v.
Jones, 523 F.3d 31, 38 (1st Cir. 2008); see also Chhien, 266 F.3d
at 7 n.5 (citing Ohio v. Robinette, 519 U.S. 33, 39-40 (1996)
14 To the extent that Dion's argument about trickery
encompasses his point at oral argument - that Blake wasn't engaging
in innocent personal chatter, but rather he was making conversation
and asking questions designed to give him reasonable suspicion -
we are not persuaded by this either. "[S]o long as manipulative
behavior does not cause us to question whether the relinquishment
was in fact voluntary . . . , it is 'reasonable' within the meaning
of the Fourth Amendment." United States v. Hornbecker, 316 F.3d
40, 49 (1st Cir. 2003) (citing Schneckloth, 412 U.S. at 222–27).
Indeed, "insincere friendliness which successfully induces a
criminal suspect to willingly answer questions and/or consent to
a search does not, without more, cause us to question whether the
suspect's response is 'voluntary.'" Id.
- 31 -
(concluding that an officer conducting a highway stop need not
inform the driver that he is free to go before requesting
permission to conduct a search)). Besides, as discussed, this
wasn't Dion's first rodeo: Dion's age and experience tell us that
he knew that he could refuse to consent.
Blake not explicitly telling Dion that he was free to go
also fails to persuade us that the consent wasn't freely given.
Blake communicated to Dion that the stop was over, but Dion could
stay and chat if he wanted to. The clear implication here,
especially in light of Blake's statement that Dion was "no longer
being detained for speeding," is that Dion was free to go. Nor
was the consent vitiated because Blake didn't actually consider
Dion free to go: such uncommunicated intent fails to move the
needle. See, e.g., United States v. Streifel, 781 F.2d 953, 959
(1st Cir. 1986) (concluding that officers' intentions were
relevant only to the extent that they were communicated to the
defendants); see also Berkemer v. McCarty, 468 U.S. 420, 442 (1984)
(disregarding "policeman's unarticulated plan" with respect to
whether the suspect was in custody because "the only relevant
inquiry is how a reasonable man in the suspect's position would
have understood his situation").
As to Dion's suppositions that the consent was
involuntary because he was detained and because multiple officers
were present, both fall short. "A person who is lawfully detained
- 32 -
may still voluntarily give consent to a search," Ramdihall, 2017
WL 2177140, at *6 (citing Forbes, 181 F.3d at 6 (noting that "the
fact of custody alone is never enough to demonstrate coerced
consent")), and, at a maximum, only three officers made an
appearance, cf. id. (consent was valid where six officers were on
the scene).
As part of a more sweeping argument as to consent, Dion
also points to his discomfort during the search and his desire to
end the search as further proof that he didn't consent. And he
seems to complain that the officers' conduct during the search
amounted to coercion (when Dion said "I'm trying to make time,"
Blake replied, "The longer I stand here and talk to you about it,
the longer it's going to take"). But Dion's post-consent conduct
is of marginal, if any, relevance - Dion made multiple offers to
search, so Dion's complaints on this point smack more of buyer's
remorse than of proof that the consent wasn't voluntarily offered.
Same goes for the officers' conduct. Once Dion gave consent to
search, undertaking the search is permissible. Based on the
record, Blake's "the longer it's going to take" statement was not
coercive as much as an indication that he was simply trying to
execute an efficient, uninterrupted search. And moreover, Dion's
consent-withdrawal is not the clearest - again, we assumed for
argument's sake that he did effectively withdraw consent, but it's
- 33 -
hardly clear. In any event, once Dion said, "I thought I was being
nice giving you permission," the search was quickly suspended.
The district court found that the consent given by Dion
at the beginning of the stop and the consent given at the end of
the discussion in the cruiser were voluntary, and that finding is
supported by the record evidence and is free of clear error.15
Dion has a response to this, too: even if he gave
consent, he withdrew it while the search was underway. We turn to
that next.
3. Withdrawn Consent and Probable Cause
Dion argues that his consent was withdrawn when it became
clear that Blake was going to search Dion's truck thoroughly, and
there was no probable cause for the second, continued search of
the truck. The government agrees that probable cause must be shown
if the consent was revoked.
We look at probable-cause determinations de novo. See,
e.g., United States v. Camacho, 661 F.3d 718, 724 (1st Cir. 2011).
Because we can dispose of the merits of Dion's arguments on the
probable-cause analysis, we assume without deciding that Dion did
15 We would next turn to Dion's contention that the search
cannot be supported by reasonable suspicion, but there is no need.
Because we conclude the consent was voluntarily given, reasonable
suspicion need not be shown.
- 34 -
indeed revoke his consent to the search.16 But first, some
background.
The Fourth Amendment guarantees the right to be free
from unreasonable searches and seizures in the absence of a warrant
supported by probable cause. U.S. Const. amend. IV. The
automobile exception provides that "police officers may seize and
search an automobile prior to obtaining a warrant where they have
probable cause to believe that the automobile contains
contraband." United States v. Silva, 742 F.3d 1, 7 (1st Cir.
2014); see also Florida v. White, 526 U.S. 559, 563–64 (1999).
"Probable cause exists when 'the facts and circumstances
as to which police have reasonably trustworthy information are
sufficient to warrant a person of reasonable caution in the belief
that evidence of a crime will be found.'" Silva, 742 F.3d at 7
(quoting Robinson v. Cook, 706 F.3d 25, 32 (1st Cir. 2013)); see
also Florida v. Harris, 133 S. Ct. 1050, 1055 (2013). Importantly,
"[t]he test for probable cause is not reducible to 'precise
definition or quantification,'" Harris, 133 S. Ct. at 1055 (quoting
Maryland v. Pringle, 540 U.S. 366, 371 (2003)), but rather "[t]he
16 As we know, Dion became anxious to leave while the search
was underway, telling the officers "I'm trying to make time." When
Blake told Dion he wanted to continue looking and would return
everything to its rightful place when he was done, Dion said, "I
thought I was being nice giving you permission." At that point,
Blake told Coffman that Dion revoked his consent, and they stopped
searching the truck.
- 35 -
standard is satisfied when the totality of the circumstances create
'a fair probability that . . . evidence of a crime will be found
in a particular place,'" Silva, 742 F.3d at 7 (omission in
original) (quoting United States v. Hicks, 575 F.3d 130, 136 (1st
Cir. 2009)). And that means all that is required is the kind of
"fair probability on which reasonable and prudent people, not legal
technicians, act." Harris, 133 S. Ct. at 1055 (internal quotation
marks and alterations omitted) (quoting Illinois v. Gates, 462
U.S. 213, 231 (1983)); see also Polanco, 634 F.3d at 43 (explaining
that "probable cause only requires a fair probability - which is
well short of certainty - that evidence of criminal activity will
be found in a particular place"). "Finely tuned standards such as
proof beyond a reasonable doubt or by a preponderance of the
evidence . . . have no place in the [probable-cause] decision."
Harris, 133 S. Ct. at 1055 (omission and alteration in original)
(quoting Gates, 462 U.S. at 235).
The facts as found by the district court support a
determination that probable cause existed. For starters, Dion's
"off" route from Yardley, Pennsylvania to Tucson, Arizona, his
various unsolicited offers to search his truck, his "extreme
nervousness," his previous brushes with the criminal justice
system due to trafficking, and his inaccurate statements about his
criminal history all militate in favor of probable cause. Add to
that the later observations by Blake: the "junk" in the trunk
- 36 -
that (based on Blake's experience) looked like a cover load; Dion's
account that the contents of the truck came from Boston,
Massachusetts when Boston previously hadn't been mentioned as a
destination or stop during his trip; Dion's persistent extreme
nervousness throughout the stop and search; the uptick in Dion's
nervousness during the search; Dion's sudden eagerness to hit the
road once the search was underway; and Dion's "Pardon me?" response
when Blake asked about large amounts of currency (evasive stalling
response to question about large sums of cash versus quick and
assured "no" answers to questions about having various drugs).17
Viewing all of these circumstances in their totality -
as we are required to do - we conclude that Blake had reason to
believe Dion was trafficking contraband, and a search of his truck
17 We do not list among these factors the K-9 indication,
the reliability of which was hotly contested below. The indication
is only one of many pieces of record evidence supporting probable
cause, and our conclusion does not depend on its inclusion in our
calculus. Also, Dion says we cannot consider his consent-
withdrawal as a way of supporting probable cause - he says that
revocation should not be used against him. But we do not focus
our attention on his purported consent revocation. Instead, we
look, in part, to his sustained and mounting nervousness as the
search progressed. See, e.g., United States v. Henry, 827 F.3d
16, 28 (1st Cir. 2016) (relying, in part, on the defendant's
nervousness and anxiety during questioning to support probable-
cause finding); United States v. Brown, 457 F.2d 731, 733 (1st
Cir. 1972) (finding probable cause to arrest when, in addition to
other factors, the defendant appeared not just initially nervous,
but "increasingly nervous" as the encounter wore on); see also
United States v. West, 219 F.3d 1171, 1178 (10th Cir. 2000) (citing
as one of the factors supporting probable cause the defendant's
"extreme nervousness beginning with the stop of the vehicle and
increasing during the search of the trunk of the car").
- 37 -
would yield evidence of that. In other words, by the time the
officers resumed their search after Dion arguably withdrew his
consent, leading to the discovery of the cash tucked away in the
FedEx boxes, they had the requisite probable cause they needed to
do so.18 See, e.g., United States v. Collazo, 818 F.3d 247, 260
(6th Cir. 2016), cert. denied, 137 S. Ct. 169 (2016) (concluding
that conflicting stories about travel plans, plus nervousness, may
be considered as part of the probable-cause analysis); United
States v. Champion, 609 F. App'x 122, 126 (4th Cir. 2015) (counting
the occupants' "inconsistent answers as to their travel plans" in
the probable-cause calculus because "the inconsistencies supported
an inference of ongoing criminal activity"); United States v.
Maldonado, 356 F.3d 130, 137 (1st Cir. 2004) (affirming probable-
cause finding when the driver told a strange travel story and the
officer's "experienced eye" spotted a cover load); West, 219 F.3d
at 1178-79 (giving weight to the defendant's "extreme and continued
nervousness" and the defendant's prior criminal record for serious
offenses to support the probable-cause determination).
18 It is unclear whether Dion is arguing that the dog sniff
constituted an unlawful extension of a completed traffic stop in
the absence of reasonable suspicion under Rodriguez. To the extent
Dion intended to make this argument, it is meritless in the
circumstances of this case. Putting aside the fact that Dion
arguably consented to allowing Blake to walk the K-9 around the
car, the officers had, for reasons discussed above, probable cause
to search the car — more than mere reasonable suspicion of criminal
activity — at the time of the dog sniff.
- 38 -
4. Suppressing the Evidence
Dion says all of the evidence seized as a result of the
search must be excluded as the "fruit of the poisonous tree." See
Wong Sun v. United States, 371 U.S. 471, 488 (1963). Because we
see no constitutional violations, we need not address this
argument.
5. Final Thoughts
Dion argues, seemingly as a catch-all, that the district
court erred in its failure to list facts most favorable to Dion.
"We 'construe the record in the light most favorable to the
district court's ruling,'" United States v. Dancy, 640 F.3d 455,
461 (1st Cir. 2011) (quoting United States v. Cook, 277 F.3d 82,
84 (1st Cir. 2002)), "and we 'will uphold the denial of a motion
to suppress as long as any reasonable view of the evidence supports
it,'" id. (quoting United States v. Battle, 637 F.3d 44, 48 (1st
Cir. 2011)). Here, as discussed in great detail above, the
district court did not clearly err in its factual findings. That
Dion believes that certain other facts deserved more weight than
they received from the district court does not alter this
conclusion - the evidence in the record supports the district
court's findings, and that is that.
III. CONCLUSION
For all of these reasons, we uphold the orders of the
district court.
Affirmed.
- 39 -