United States v. Orth , 873 F.3d 349 ( 2017 )

United States Court of Appeals
For the First Circuit
No. 16-1436
UNITED STATES OF AMERICA,
Appellee,
v.
ROBERT ORTH,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Steven J. McAuliffe, U.S. District Judge]
Before
Torruella, Kayatta, and Barron,
Circuit Judges.
Jaye L. Rancourt and Brennan Lenehan Iacopino & Hickey, on
brief for appellant.
Seth R. Aframe, Assistant United States Attorney, and Emily
Gray Rice, United States Attorney, on brief for appellee.
October 13, 2017
TORRUELLA, Circuit Judge. Appellant Robert Orth ("Orth"
or "Appellant") appeals the district court's denial of his motion
to suppress drugs, a digital scale, and a firearm obtained
following a traffic stop of the vehicle in which he was a
passenger. After careful consideration, we affirm.
I. Background and Procedural History
"[W]e view the facts in the light most favorable to the
district court's ruling on the motion," and review its "findings
of fact and credibility determinations for clear error." United
States v. Fields, 823 F.3d 20, 25 (1st Cir. 2016) (quoting United
States v. Fermin, 771 F.3d 71, 76 (1st Cir. 2014)). At the
suppression hearing, Officer Dennis Lee ("Officer Lee") of the
Nashua Police Department testified that on May 29, 2014, at just
before 10:00 p.m., he observed a vehicle fail to stop at a stop
sign. He followed the vehicle and observed it straddle the double
yellow line, activate its left turn signal, stop in the middle of
the roadway, and then turn on its right turn signal and veer to
the right side of the road. Officer Lee subsequently initiated a
traffic stop.
Officer Lee testified that the area in which the stop
occurred had a reputation for criminal activity, although he did
not provide any further specifications. He further testified that
he had a suspicion that the driver of the vehicle may have been
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intoxicated. Officer Lee pulled the vehicle over and parked his
cruiser behind it. Before approaching, Officer Lee shined his
spotlight on the car and noticed two of the occupants in the car
turn to look directly at him with a "deer-in-the-headlights look,"
which he described as a look of nervousness and surprise beyond
what was normal. As he approached the vehicle, he observed that
there were a total of three occupants. He later determined that
Dustin Adams ("Adams") was the driver, the appellant, Orth, was
the front passenger, and Michael Ashford ("Ashford") was the rear
passenger. Officer Lee asked Adams for his license and
registration. Adams provided his license but did not provide his
registration. When Officer Lee asked Adams to check the glove
compartment of the vehicle for his registration, Adams refused to
do so.
While speaking to Adams, Officer Lee noticed a "large
black cylinder item" resting in between Orth's leg and the
vehicle's center console. Concerned that it could be a weapon,
Officer Lee asked Adams to identify the object. Adams did not
answer Officer Lee's question. After Officer Lee repeated the
question, Orth "became noticeably aggressive . . . verbally"
towards Officer Lee, saying "It's an F-ing flashlight" as he picked
the object up to reveal that it was a large flashlight. Because
of the number of men in the vehicle, Orth's aggressive behavior,
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and Officer Lee's ongoing concern that the flashlight could be
used as a weapon, he requested backup.
After requesting backup, Officer Lee asked Adams to step
out of the vehicle. Officer Lee ordered Orth and the rear
passenger, Ashford, to "place their hands where [he] would be able
to see them," specifically ordering Orth to put his hands on the
dashboard. Ashford complied, but Orth did not and began shouting
profanities. After Officer Lee's repeated instructions, Orth
finally complied. Officer Lee asked Adams if he was in possession
of any weapons, to which Adams replied that he was not. Officer
Lee pat-frisked Adams and discovered a large utility knife in his
pocket that Adams stated was for construction work. While Officer
Lee was pat-frisking Adams, Orth continued to protest. At one
point, Orth took his hands off of the dashboard and made furtive
movements as he reached towards the floorboard of the vehicle.
Officer Lee yelled for Orth to place his hands back on the
dashboard, which Orth reluctantly did. At this time, a second
officer arrived on the scene. Officer Lee then directed Ashford
to exit the vehicle and pat-frisked him, which did not reveal any
weapons. Orth continued to verbally protest.
Finally, Officer Lee approached the front passenger door
and ordered Orth out of the vehicle, after which Orth recommenced
his protests. Officer Lee testified that he observed "sweat
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beading off of [Orth's] forehead," which he found odd because it
was a cool May night. Officer Lee pat-frisked Orth and did not
discover any weapons. After pat-frisking Orth, Officer Lee
instructed Orth to stand away from the passenger door so that
Officer Lee could search the vehicle, "to ensure that there [were]
no weapons within his reach." Orth stepped towards Officer Lee
and stated that the officer could not search the vehicle. As
Officer Lee approached the vehicle door, Orth tried to close the
door on him. The officer again instructed Orth to step back and
approached the car door, and again Orth tried to close it on him.
Officer Lee told Orth that he was going to place him in handcuffs
for safety, but Orth resisted and pushed Officer Lee in the chest.
At this time, Officer Lee informed Orth that he was under arrest
and attempted to place him in handcuffs. Orth resisted. While
both officers attempted to restrain him, Orth yelled to his fellow
passengers to "get the shit, get the shit, run and hide it." Adams
reached towards the floorboard of the front passenger seat where
Orth had been sitting, grabbed a jacket, and began to flee.
Officer Lee pursued Adams while the second officer stayed behind
and secured Orth. As he fled, Adams tripped and dropped the
jacket, and then discarded it in the middle of the roadway. Upon
picking up the jacket, Officer Lee could tell by the weight that
there was something inside of it, which he suspected to be a gun.
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Upon later examination, he found a loaded pistol, a digital scale,
and 248 grams of heroin.
Orth was charged with possession of heroin with intent
to distribute, in violation of 21 U.S.C §§ 841(a)(1),
841(b)(1)(B)(i); possessing a firearm in furtherance of a drug
trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A)(i);
and possession of a firearm by a prohibited person, in violation
of 18 U.S.C. §§ 922(g)(1), 924(a)(2). Orth moved to suppress the
evidence, arguing that it was obtained through an illegal search
and pat-frisk. After an evidentiary hearing, the judge denied the
motion, finding that the pat-frisk was warranted. Orth pled
guilty to all three counts but reserved the right to appeal the
denial of the motion to suppress. He was sentenced to 120 months
of imprisonment.
On appeal, Orth contends that the district court erred
by denying his motion to suppress as Officer Lee lacked reasonable
suspicion to warrant pat-frisks of the occupants of the vehicle,
and therefore unlawfully extended the traffic stop beyond the scope
of its initial purpose. Orth also argues that Officer Lee lacked
reasonable suspicion to search the interior of the vehicle, further
unlawfully extending the traffic stop, in violation of the Fourth
Amendment. Finally, he argues that Adams's removal of the jacket
from the vehicle did not supersede the Fourth Amendment violations.
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To support his argument, Orth specifies four factors that Officer
Lee testified about and argues that, in the totality of the
circumstances, they were insufficient to justify the removal and
pat-frisk of the three men.
II. Discussion
A. Standard of Review
We review de novo the district court's ultimate legal
decision to grant or deny a motion to suppress, including its
application of the law to the facts and its probable cause and
reasonable suspicion determinations. Fields, 823 F.3d at 25
("When reviewing a challenge to the district court's denial of a
motion to suppress . . . [w]e review conclusions of law . . . de
novo.") (internal citations omitted); see United States v. Crespo-
Ríos, 645 F.3d 37, 41 (1st Cir. 2011).
The boundaries of an investigatory stop and frisk were
first delineated in the Supreme Court's landmark decision in
Terry v. Ohio:
[W]here a police officer observes unusual conduct
which leads him reasonably to conclude in light of
his experience that criminal activity may be afoot
and that persons with whom he is dealing may be armed
and presently dangerous . . . and where nothing in
the initial stages of the encounter serves to dispel
his reasonable fear for his own or others' safety, he
is entitled for the protection of himself and others
in the area to conduct a carefully limited search of
the outer clothing of such persons in an attempt to
discover weapons which might be used to assault him.
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392 U.S. 1, 30 (1968). Our review of a Terry pat-frisk requires
a two-part analysis: first, whether the initial stop was justified;
and second, whether the police had a legal basis to justify an
investigation beyond the scope of the reason for the stop itself.
United States v. Mouscardy, 722 F.3d 68, 73 (1st Cir. 2013)
(citations omitted). A stop's validity is, by itself,
insufficient; "the key is whether, under the circumstances, 'the
officer is justified in believing that the person is armed and
dangerous to the officer or others.'" United States v. Cardona-
Vicente, 817 F.3d 823, 827 (1st Cir. 2016) (quoting United States
v. Romain, 393 F.3d 63, 71 (1st Cir. 2004)). The crux of the
analysis relies on the reasonableness of the officer's actions, in
light of the "totality of the circumstances," which must "provide[]
a particularized, objective basis for the officers' suspicion that
[the defendant] was dangerous and posed a threat to their safety."
United States v. McKoy, 428 F.3d 38, 40 (1st Cir. 2005).
Both parties agree, as did the district court, that the
initial stop was lawful. Officer Lee observed the vehicle commit
a series of traffic violations that provided probable cause to
conduct a traffic stop. The parties' agreement, clearly supported
by the record, concludes the first step of our analysis. Having
found the initial stop of the vehicle justified, we proceed to the
second step of the analysis: whether the totality of the
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circumstances provided a particularized objective basis for
Officer Lee's suspicion that the defendant was armed and dangerous.
We address the appellant's arguments in turn.
B. Extension Beyond the Initial Purpose of the Stop
Appellant first argues that the lawful traffic stop was
unlawfully extended beyond its initial purpose when each passenger
was taken from the vehicle, pat-frisked, questioned, and placed
back in the vehicle. In so alleging, Appellant claims that the
district court erroneously focused solely on the disputed length
of time that it took Officer Lee to conduct the actual frisks of
each passenger, whereas the proper inquiry is the reasonableness
of any extension of the scope of the stop. While the district
court did engage with defense counsel during the suppression
hearing about the length of time that it took Officer Lee to
conduct the traffic stop, this back-and-forth's purpose was
clearly to allow the motion judge to clarify defense counsel's
"unlawful extension" argument. In fact, soon after this dialogue,
the motion judge bluntly asked defense counsel, "So what's your
argument then? Fruit of the poisonous tree or unlawful extension
of the duration necessary to resolve the traffic stop? . . . [Y]ou
keep conflating [those two arguments]." The district court then
stated its belief that Officer Lee reasonably extended the traffic
stop beyond its original scope because he had reasonable suspicion
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to pat-frisk the car's occupants. Thus, we disagree with
Appellant; the district court did not erroneously focus solely on
the duration of the stop in assessing the reasonableness of its
extension.
We recognize that, as Appellant alleges, the scope of
the traffic stop changed and evolved from Officer Lee's initial
drunk-driving investigation. However, the circumstances and
unfolding events during a traffic stop allow for an officer to
"shift his focus and increase the scope of his investigation by
degrees" with the accumulation of information. United States v.
Chhien, 266 F.3d 1, 6 (1st Cir. 2001). An officer's actions must
be justified at their inception, and any subsequent actions are
measured by the "emerging tableau" of circumstances as the stop
unfolds. Id. Our review of whether Officer Lee's extension of
the scope of the initial stop and his subsequent actions were
reasonable brings us to Appellant's second (related) argument.
C. Pat-Frisk of Appellant
Appellant wisely does not challenge the extension of the
stop to allow for the arrival of a second officer to assist.
Officer Lee testified that, approximately two minutes after he
initiated the stop, he called for backup because he was dealing
with an aggressive passenger (Orth), and a driver that was not
willing to speak to him (Adams). Further, and especially in light
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of the number of occupants in the vehicle, we find reasonable what
Officer Lee described as a common practice within the department
to conduct field sobriety tests with two officers. The district
court credited Officer Lee's testimony, a determination that we
review for clear error. United States v. Garner, 338 F.3d 78, 80
(1st Cir. 2003). We find none; calling for the assistance of a
second officer was unquestionably reasonable in the situation
presented.
Appellant does contend, however, that the stop was
unreasonably extended as there was no reasonable suspicion that
the persons pat-frisked were armed and dangerous. Evaluating
whether an officer's suspicions were reasonable is a fact-specific
task, Chhien, 266 F.3d at 8, requiring some level of "deference
. . . to the experienced perception of the officers." Cardona-
Vicente, 817 F.3d at 827. The court cannot evaluate reasonable
suspicion in a vacuum; it must "make[] due allowance for the need
for police officers to draw upon their experience and arrive at
inferences and deductions that 'might well elude an untrained
person.'" United States v. Arnott, 758 F.3d 40, 44 (1st Cir.
2014) (quoting United States v. Arvizu, 534 U.S. 266, 273 (2002)).
Of course, such deference is not without bounds. See Ornelas v.
United States, 517 U.S. 690, 699 (1996) (reviewing court must give
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"due weight" to factual inferences drawn by local law enforcement
officers).
Both parties quarrel over the reasonableness of Officer
Lee's pat-frisk of the driver. Appellant opines that Officer Lee
lacked the requisite reasonable suspicion necessary to warrant the
initial pat-frisk of Adams and the subsequent pat-frisks of Ashford
and Orth, because the reasons Officer Lee gave to justify his
reasonable suspicion were insufficient. Appellant cherry-picks
four factors about which Officer Lee testified, dissecting why
each, individually, cannot give rise to reasonable suspicion: (1)
high crime neighborhoods; (2) the suspicious behavior of the
occupants; (3) the flashlight; and, (4) Orth's furtive hand
movements. Appellant concludes that the totality of the
circumstances does not suggest that criminal activity was afoot,
or that the passengers of the vehicle posed a threat to the
officer. The government disputes this conclusion, positing that
ample reasonable suspicion justified the pat-frisk of Adams.
We refrain from intervening in this initial squabble as
Appellant lacks standing to challenge the pat-frisks of both Adams
and Ashford. See Rakas v. Illinois, 439 U.S. 128, 138-140 (1978);
United States v. Sowers, 136 F.3d 24, 27 (1st Cir. 1998); United
States v. Kimball, 25 F.3d 1, 5 (1st Cir. 1994) ("Fourth Amendment
rights are personal, and a proponent of a motion to suppress must
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prove that the challenged governmental action infringed upon his
own Fourth Amendment rights.") (citations omitted). Thus, we
exercise judicial avoidance as to the specific justification
underlying the pat-frisk of the driver of the car. That pat-frisk
occurred while waiting for the second officer to arrive for backup
assistance, which we have previously stated was reasonable in this
situation. Thus, it did not further lengthen the duration of
Appellant's detention. Appellant is not left without a leg to
stand on, however. Once an officer conducts a traffic stop, the
driver and all passengers are subject to the authority of the
stopping officer and thus are all seized for Fourth Amendment
purposes. See Whren v. United States, 517 U.S. 806, 808-10 (1996)
(all occupants of a vehicle are subjected to a seizure within the
scope of the Fourth Amendment when an officer conducts an
investigatory stop). As Appellant was seized, he may challenge
his own detention. Sowers, 136 F.3d at 27.
After review, we hold that the district court correctly
found that, given the totality of the circumstances, Officer Lee
had reasonable suspicion to justify Appellant's prolonged
detention and pat-frisk. The district court highlighted the
escalation of Officer Lee's warranted suspicion as the encounter
unfolded. "Such a shift in focus is neither unusual nor
impermissible." Id.-13-
After lawfully stopping the vehicle in a high crime area,
Officer Lee witnessed what he described as nervous and suspicious
behavior from the occupants of the vehicle. While Appellant
questions why the officer found certain of the vehicle occupant's
actions to be unusual, the district court found the officer
credible. Absent clear error, "we are not at liberty blithely to
second-guess the district court's credibility determinations."
Id. We see no error in this credibility determination, nor does
Appellant point to anything in the record that shows that this
finding was clearly erroneous. Turning back to see who is shining
a spotlight into one's car may not, by itself be unusual behavior,
cf. United States v. Wright, 582 F.3d 199, 226 (1st Cir. 2009)
(Lipez, J., dissenting) ("[c]hecking out the occupants of a car
that has stopped near one's own is an everyday act that by itself
is not suggestive of criminal conduct"), but when considered along
with Adams's extreme nervousness, his quick answers to some of the
officer's questions, his refusal to check the glove compartment
for the vehicle's registration, his hesitation and ultimately odd
response to related questions about the purpose of the flashlight
("for sport"), and Orth's body language and displayed aggression,
such a conclusion is justified.
Appellant's dismissal of Officer Lee's testimony that
the location of the stop was a "high crime area" is also to no
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avail. Appellant avers that Officer Lee provided no specific
information as to why he classified this area as "high crime," and
correctly points out that just because a stop occurs in a high
crime area does not, in and of itself, justify the prolonged
detention of Appellant. "[T]he character of the neighborhood does
not provide automatic permission for [the police] to stop and
search any and everybody in a high-crime neighborhood." United
States v. Soares, 521 F.3d 117, 121 (1st Cir. 2008). However,
Officer Lee did not testify that the high crime area was his only
reason for extending the stop. Rather, the neighborhood's crime
rate acted with a confluence of other factors to form the officer's
reasonable suspicion. Much like in Soares, which Appellant claims
this case falls short of, "the police here relied on more than
just nervousness and the fact that they stopped the car in a high-
crime neighborhood." Id.; see also McKoy, 428 F.3d at 40 ("While
police are permitted to take the character of a neighborhood into
account . . . it is only one factor that must be looked at alongside
all the other circumstances when assessing the reasonableness of
the officer's fear.").
Similarly, the presence of the oversized flashlight does
not directly establish reasonable suspicion that an occupant may
be armed. However, the presence of a large flashlight, combined
with the aforementioned hesitation and odd response to questions
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about its presence, contributed to Officer Lee's reasonable
conclusion that the occupants could use it as a weapon against
him. Appellant's argument that Officer Lee could have simply
taken possession of the flashlight if he was concerned about his
safety, thus relieving himself of all worries, is also not
persuasive. The point is that its presence and the car occupants'
evasiveness contributed to the totality of the circumstances to
create Officer Lee's reasonable suspicion that the occupants may
be armed.
This brings us to Officer Lee's pat-frisk of Adams,
during which Officer Lee discovered a large cutting or utility
knife. Prior to moving on, we find it prudent to reiterate that
Appellant lacks standing to challenge the search of the driver.
Sowers, 136 F.3d at 27. One cannot base a constitutional claim
on a violation of a third person's rights; therefore, to the extent
that Appellant's challenge rests on Adams's privacy interest, it
is barred. Id. Prior to pat-frisking Adams, Officer Lee
instructed both Orth, who had already displayed signs of
aggression, and Ashford to keep their hands in the Officer's sight.
Officer Lee then asked Adams if he had any weapons in his
possession, to which Adams answered that he did not. During the
search, Officer Lee discovered a large cutting knife in Adams's
pant pocket. While Adams indicated that it was for construction
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work, it understandably concerned Officer Lee that Adams had not
mentioned the presence of a knife when asked. Appellant attempts
to make hay of the argument that, because this was potentially a
tool used in Adams's course of employment, he may not have
considered it to be a "weapon" when questioned by Officer Lee.
However, we fail to see how a large cutting knife does not
constitute a potential weapon simply because it has other
legitimate purpose, see Wright, 582 F.3d at 213 ("[A] Terry stop
is permitted even if the conduct justifying the stop was ambiguous
and susceptible of an innocent explanation . . . . [T]he very
purpose of [Terry] stops is to clarify ambiguous situations.")
(internal quotations omitted), and why an individual's failure to
alert an officer to its presence should not contribute to a finding
of reasonable suspicion.
Finally, during this search, Officer Lee specifically
told Appellant to keep his hands on the dashboard of the car.
Appellant initially did not comply, becoming more argumentative
and yelling profanities. After Appellant finally complied,
Officer Lee began his pat-frisk of Adams, during which Officer Lee
witnessed Appellant remove his hands from the dashboard and reach
to the floorboard area of his seat. Appellant insists that, if
Officer Lee were truly concerned about his movements and that he
possessed a weapon then Officer Lee would have immediately removed
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him from the vehicle and not have waited to search him last.
Appellant thus contends that this shows these hand movements did
not occur, and that they were an after-the-fact justification by
the officer. However, Officer Lee gave adequate justification at
the suppression hearing that the order in which he pat-frisked the
car's occupants was operational, and that by pat-frisking the rear
passenger first, he was able to ensure that no one behind him was
armed when he pat-frisked Appellant. At any rate, Appellant's
argument ultimately turns on Officer Lee's credibility and, as
stated previously, we find nothing clearly erroneous in the
district court's decision to credit Lee's testimony.
The totality of the circumstances favors reasonable
suspicion, Appellant's arguments to the contrary notwithstanding.
The factors as outlined above, when amassed, gave Officer Lee more
than adequate reasonable suspicion to pat-frisk Appellant.
D. Search of the Vehicle
Appellant's final argument1 is that the traffic stop was
unlawfully extended when Officer Lee attempted to search the car.
1 Appellant attempted to forecast a response by the government
that there existed a superseding cause sufficient to attenuate a
Fourth Amendment violation in regards to the removal of the jacket
from the vehicle. In doing so, Appellant states that there was
no intervening criminal conduct which may have superseded a
possible violation. See United States v. Camacho, 661 F.3d 718(1st Cir. 2011).
At the heart of this argument is the assumption that the
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"[T]he search of the passenger compartment of an automobile,
limited to those areas in which a weapon may be placed or hidden,
is permissible if the police officer possesses a reasonable belief
. . . the suspect is dangerous and the suspect may gain immediate
control of weapons." Michigan v. Long, 463 U.S. 1032, 1049 (1983).
In Long, the Supreme Court found that the officers were justified
"in their reasonable belief that [the defendant] posed a danger if
he were permitted to reenter his vehicle," which permitted a
limited search of the passenger compartment of the vehicle. Id.
at 1050.
In the instant case, we have already found that Officer
Lee was justified in removing Appellant from the vehicle and
conducting a pat-frisk. We have further found that the
circumstances of the stop were sufficient for Officer Lee to
develop a reasonable suspicion that a weapon could possibly be
hidden in the car. At the start of the stop, Adams refused to
check the glove box in an effort to find his registration. While
conducting pat-frisks of the other occupants, Appellant ignored
directions from Officer Lee by removing his hands from the
dashboard and reaching towards the floorboard of the vehicle.
original search was in violation of the Fourth Amendment. Because
Officer Lee possessed reasonable suspicion to pat-frisk Appellant
and search the vehicle, we need not further address this issue.
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Officer Lee's concern about his safety was further cemented after
finding a knife on Adams following Adam's denial that he had any
weapons on his person. These factors gave reason for Officer Lee
to "increase the scope of his investigation by degrees." Chhien,
266 F.3d at 6. Officer Lee's reasonable suspicion that the
occupants possibly possessed a weapon would have logically
included the possibility that a weapon could be easily accessed
from the passenger compartment of the car.
In United States v. Lott, by contrast, this Court found
that the officers involved in a traffic stop did not have
reasonable suspicion to search a car for weapons when they did not
bother to frisk the defendants at any time prior to searching the
vehicle. Compare 870 F.2d 778, 785 (1st Cir. 1989), with United
States v. McGregor, 650 F.3d 813, 822 (1st Cir. 2011) (officers
frisked each passenger prior to searching the car for weapons).
However, unlike in Lott, it is clear that Officer Lee was concerned
about the presence of a weapon well before attempting to search
the car.
Moreover, the fact that Appellant had been removed from
the car does not hinder the legality of a search of the passenger
compartment. "Conducting a protective sweep of the passenger
compartment for the weapon [is] permissible" after the creation of
reasonable suspicion "even though [the defendant is] outside the
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vehicle and under police control." United States v. Díaz, 519
F.3d 56, 62 (1st Cir. 2008). The scope of such a search would
encompass the area "generally 'reachable without exiting the
vehicle' . . . including areas that are 'hatches,' or rear storage
areas." United States v. Allen, 469 F.3d 11, 15 (1st Cir. 2006)
(quoting United States v. Doward, 41 F.3d 789, 794 (1st Cir. 1994)
(internal citation removed) (emphasis omitted)). In the course
of a stop, "police may also examine the contents of any containers
found within the passenger compartment" as they are potentially
reachable. New York v. Belton, 453 U.S. 454, 460 (1981) (abrogated
on other grounds by Davis v. United States, 564 U.S. 229 (2011));
see also McGregor, 650 F.3d 813 (holding that using a found magnet
switch to search secret compartments, tapping on the car's
undercarriage, prodding at the cup holder and emptying the center
console were within the scope of a Terry-related search of a
vehicle). The scope of searchable containers encompasses "glove
compartments, consoles, or other receptacles . . . as well as
luggage, boxes, bags, clothing, and the like." Belton, 453 U.S.
at 460-61 n.4.2 Thus, the jacket in which the evidence was found
2 A trunk is not considered a part of the passenger compartment
and thus is not within the scope of a search. Belton, 453 U.S.
at 460 n.4. An exception to this rule exists, however, if the
trunk, hatch, or "rear storage areas" are accessible from the
passenger compartment. Allen, 469 F.3d at 15.
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-- which was located on the floorboard of the passenger seat where
Appellant had been sitting at the time Officer Lee began his
protective sweep of the passenger compartment -- was well within
the scope of such a search. Adams's subsequent removal of the
jacket and flight prior to Officer Lee's search does not change
the jacket's status.3
To conclude, we find that the district court correctly
denied Appellant's motion to suppress. We find no clear error in
the motion judge's findings of fact and credibility determinations
and agree that suppression of the evidence was not warranted.
III. Conclusion
The district court properly denied Appellant's motion to
suppress the firearm, digital scale, and drugs. Accordingly, the
judgment of the district court is affirmed.
Affirmed.
3 We note that the actions of the car's occupants -- Orth yelling
to his co-occupants to "get the shit, get the shit, run and hide
it," Adams grabbing the jacket from the very same place where
Officer Lee saw Orth make furtive hand movements, and Adams
subsequently fleeing and discarding the jacket -- may have
established an independent basis of probable cause to search the
jacket. However, given that the government did not raise this
argument, it is deemed waived and we need not decide that issue.
See United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990)
(referring to "the settled appellate rule that issues adverted to
in a perfunctory manner, unaccompanied by some effort at developed
argumentation, are deemed waived").
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