United States v. Porteous

United States Court of Appeals
For the First Circuit
Nos. 12-1947, 12-2161
UNITED STATES OF AMERICA,
Appellee,
v.
TERRELL CAMPBELL,
ESLEY PORTEOUS,
Defendants, Appellants.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. George Z. Singal, U.S. District Judge]
Before
Torruella, Ripple* and Thompson,
Circuit Judges.
Sarah A. Churchill, with whom Nicholas & Webb, P.A., was on
brief, for appellant Campbell.
Timothy E. Zerillo, with whom John M. Burke and Zerillo Law
LLC, were on brief, for appellant Porteous.
Margaret D. McGaughey, Assistant United States Attorney, with
whom Thomas E. Delahanty II, United States Attorney, was on brief
for appellee.
December 23, 2013
*
Of the Seventh Circuit, sitting by designation.
RIPPLE, Circuit Judge. Terrell Campbell and Esley
Porteous both pleaded guilty to conspiracy to possess fifteen or
more counterfeit access devices, in violation of 18 U.S.C. §§ 371
and 1029(b)(2) (Count One), and possession of fifteen or more
counterfeit access devices, in violation of 18 U.S.C. § 1029(a)(3)
(Count Two). Mr. Campbell also pleaded guilty to the use of one or
more counterfeit access devices, in violation of 18 U.S.C.
§ 1029(a)(1) (Count Six).1 The district court sentenced
Mr. Campbell to eighteen months’ imprisonment and three years’
supervised release and sentenced Mr. Porteous to twelve months’
imprisonment and three years’ supervised release. Both defendants
were ordered to pay restitution in the amount of $8,687.01, for
which they are jointly and severally liable.2
The defendants timely appealed.3 They now argue that law
enforcement officers lacked reasonable suspicion for the vehicle
stop under Terry v. Ohio, 392 U.S. 1 (1968), that law enforcement’s
ensuing warrantless search of the vehicle violated the Fourth
Amendment, that the search warrant later obtained for the vehicle
1
Counts Three through Five charged only codefendant Michael
Barnes, who is not participating in this appeal.
2
Barnes is also jointly and severally liable for this
restitution payment.
3
The defendants had entered conditional guilty pleas
pursuant to Federal Rule of Criminal Procedure 11(a)(2), in which
they reserved their right to appeal the district court’s denial of
their motions to suppress evidence obtained during a Terry vehicle
stop that resulted in a vehicle search.
-2-
did not issue on probable cause and that admission of the
defendants’ uncounseled statements made at the scene of the Terry
stop violated the Fifth Amendment because they were obtained
without warnings, in violation of Miranda v. Arizona, 384 U.S. 436
(1966). Additionally, Mr. Campbell challenges his sentence.
We affirm the judgment of the district court for the
following reasons. First, the district court correctly held that
the stop of the defendants’ vehicle did not violate the Fourth
Amendment. Accordingly, the warrant issued for the search of the
car was not tainted by an illegal stop. Second, the defendants
have failed to establish that they had a reasonable expectation of
privacy in the vehicle searched after the stop. Therefore, they
can neither object to the search nor seek suppression of the
evidence obtained in that search. Third, the admission of
statements obtained through the officers’ questioning of the
defendants at the traffic stop did not violate the Fifth Amendment.
Consequently, the district court properly refused to suppress
evidence gained as a result of the questioning. Finally, the
district court did not abuse its discretion in imposing a
mid-guidelines-range sentence on Mr. Campbell.
-3-
I
BACKGROUND
A. Facts
On May 21, 2011, Scarborough Police Department Patrol
Officer Craig Hebert responded to a report of suspicious conduct at
an electronics store, Bull Moose, in Scarborough, Maine. Officer
Hebert and a colleague, Officer Tim Dalton, interviewed the store’s
clerks. The clerks told the officers that three black men had come
to the store. Each one entered separately and departed before the
arrival of the next one. Each had attempted to purchase video game
systems. The first man successfully used a credit card to pay $700
for two systems. The second man attempted a similar purchase, but
both credit cards he presented were declined. The name on both of
the declined credit cards was the same name as the one on the
credit card presented earlier by the first man. The third man
entered the store and expressed an interest in purchasing video
game systems. A clerk told him that Bull Moose could not sell him
a game system and suggested that he go to the Toys “R” Us store in
South Portland, Maine. The three men departed together in the same
SUV, which had New York license plates. The clerks told the
officers the vehicle’s license plate number and said that the men
likely were headed to Toys “R” Us.
Officer Hebert called dispatch; he provided a description
of the vehicle and its license plate number, and he said that the
-4-
vehicle was occupied by three black males. South Portland Police
Department Patrol Officer Kevin Gerrish heard the dispatch call to
look for the SUV in the Toys “R” Us parking lot. He identified an
unoccupied vehicle matching the description.4 Officer Gerrish
waited in the parking lot and saw three black males exiting
Toys “R” Us carrying bags of merchandise. The men got into the
vehicle and left the store parking lot. Officer Gerrish called
dispatch, and either dispatch or Officer Hebert told Officer
Gerrish to stop the vehicle.5
4
Two of the license plate numbers were transposed from what
the Bull Moose clerks had reported to Officer Hebert, but the
license plate numbers otherwise matched.
5
At the suppression hearing, Officer Hebert testified as
follows:
Q. And were you able to obtain what you
described as more clear information?
A. Yes. It was determined that the first
male went in, used a credit card, bought the
gaming systems and the credit card went
through and then the second male that came
actually attempted to use two different credit
cards, both with the name Shawn Collins, and
then the third male never actually used the
card, but asked about gaming systems and for
whatever reason, they told him they couldn’t
sell them and he asked if there was a Toys R
Us around or they directed him to Toys R Us.
Q. Did the [sic] learn what the name on the
credit card that the first male used was?
A. Mr. Kelley and Gillam [the clerks] stated
that all three cards were the same name, Shawn
Collins.
Q. What did you do in response to learning
-5-
Officer Gerrish stopped the vehicle in a hotel parking
lot. He approached the vehicle and requested a license from the
this information?
A. Shortly thereafter, I heard Officer
Gerrish from South Portland Police Department
get on our primary and advise that the
vehicle—the occupants were—had gotten into the
vehicle and were about ready to leave the
parking lot and asked what I wished to do.
Q. Did you convey your wishes to Officer
Gerrish?
A. I advised him to go ahead and initiate a
traffic stop and that I would be right along.
Q. And at the time, what was your basis for
authorizing him to initiate a traffic stop?
A. Essentially the information that
Mr. Gillam and Kelley provided me was very
comparable with what took place with the use
of at least two separate credit cards with the
name of Shawn Collins, hadn’t yet
determined—been determined whether or not the
first card was the same as the other two
cards, the first subject used a card that was
the same as the second subject, but the second
subject had used two cards so there were at
least two separate credit cards that they saw
him use with the name Shawn Collins. The
second was declined.
Along with the vehicle description, it
was pretty specific, gave a description with
the license plate number out of New York and
also, I had previous knowledge as to an
incident that had previously taken place, one
of which that was—I was initially thinking of
was a complaint that Officer Beller took at
Christmas Tree Shops.
R.78 at 12-13.
-6-
driver, Michael Barnes, as well as the vehicle’s registration and
proof of insurance. Barnes was unable to produce a license.
Mr. Campbell and Mr. Porteous both provided valid identification at
Officer Gerrish’s request. Officer Gerrish told the men that there
was a report that they had had trouble with credit cards at Bull
Moose. Their response was “evasive”;6 one man said that he was not
at Bull Moose, and the others confirmed the assertion.
Officer Gerrish testified that, at some point during this initial
exchange of information, he smelled the scent of marijuana coming
from the vehicle.7
Officer Gerrish asked Barnes to get out of the car.
Barnes got out of the car and spoke with Officer Gerrish away from
Mr. Campbell and Mr. Porteous. Barnes told Officer Gerrish that
the vehicle was rented and that the men were visiting friends in
the area. Officer Gerrish patted down and handcuffed Barnes.
In the meantime, Officer Hebert arrived on the scene.
Officer Hebert asked Mr. Campbell, who was sitting in the rear
passenger-side seat, to exit the vehicle. Mr. Campbell complied,
and Officer Hebert led him away from the vehicle for questioning.
6
R.73 at 4.
7
The defendants have suggested that Officer Gerrish did not
actually smell marijuana. However, the magistrate judge found,
based on the observation of testimony, which included testimony
regarding Officer Gerrish’s training and experience in drug
detection, that “Officer Gerrish did subjectively believe that he
could smell the odor of marijuana.” Id. The magistrate judge did
not clearly err in making this determination.
-7-
Mr. Campbell identified himself, said that he was from Brooklyn and
said that he and the other men were visiting family in the area.
Mr. Campbell initially said that he had been at Bull Moose, but
later denied being there and said that he had been in a nearby
Subway sandwich shop. When asked about using credit cards at Bull
Moose, Mr. Campbell said, according to Officer Hebert, “what cards,
what credit cards.”8
Two additional officers also arrived on the scene,
Officer Dalton and Scarborough Police Department
Sergeant Tom Chard.9 Sergeant Chard brought a “K-9 partner,” a
Belgian Malinois named Chesca.10 Sergeant Chard asked Mr. Porteous,
who was seated in the front passenger-side seat, to exit the
vehicle. Sergeant Chard asked Mr. Porteous what the men were doing
in the area, and Mr. Porteous said they were looking for jobs.
Mr. Porteous said that he had rented the vehicle.11
8
R.78 at 22.
9
The magistrate judge’s Recommended Decision identifies
Sergeant Chard as a member of the South Portland Police Department.
In its response to the defendants’ objections to this Recommended
Decision, the Government clarified that Sergeant Chard was a member
of the Scarborough Police Department.
10
The magistrate judge found that Chesca was certified in
“evidence detection.” See R.73 at 5 & n.4. At the suppression
hearing, Sergeant Chard testified that he had been working with
Chesca since June 2008 and that he did four hours of narcotics
training with her per week. The Government proffered
certifications for Chesca in narcotics detection and patrol.
11
The defendants claim that Barnes previously had told
Officer Gerrish that he (Barnes) had rented the vehicle. The
-8-
None of the defendants were given Miranda warnings at any
time during the stop. While other officers were speaking to the
defendants, Officer Gerrish entered the driver’s side of the
vehicle, front and back, and briefly looked over the passenger
compartment. He also opened the hatchback and briefly looked over
merchandise located there.
Then, Sergeant Chard asked Mr. Porteous whether he could
put Chesca in the car. Mr. Porteous responded affirmatively.
Sergeant Chard put Chesca into the vehicle, and he observed her
alerting in three areas: the glove box, the pocket of the
passenger-side front door and the center console. Without
requesting additional consent, Sergeant Chard searched the glove
box and the center console and found only marijuana residue.12 When
Chesca alerted to the glove box, it was locked. Sergeant Chard
retrieved a vehicle key, unlocked the glove box and searched
inside. In the glove box, he found a box, which he also opened.
Inside the box, he found approximately fifty identification and
credit cards and three wallets.
After finding the box containing the cards, the officers
handcuffed the defendants and transported them for processing. The
record does not resolve the question of who actually rented the
vehicle. See R.78 at 157-58.
12
Sergeant Chard also found cigar “blunts,” which are
frequently used to smoke marijuana, in the vehicle.
Officer Gerrish later observed ash in a rear pocket of the car.
-9-
officers seized the vehicle and impounded it. The South Portland
Police Department received a warrant from a judge of the Maine
district court to search the vehicle. The warrant authorized the
police to seize, among other items, credit cards and game systems
already known to be in the vehicle.
B. District Court Proceedings
Following their indictment, Mr. Campbell and Mr. Porteous
moved to suppress evidence obtained in connection with the vehicle
stop and search. Specifically, the defendants argued that:
(1) the defendants had standing to challenge the search as
violating the Fourth Amendment;13 (2) there was no reasonable
articulable suspicion justifying the stop of the vehicle; (3) the
warrantless search of the vehicle was not based on probable cause
or valid consent; (4) the search warrant later obtained for the
vehicle was not based on probable cause; (5) the defendants’ Fifth
Amendment rights were violated due to the officers’ failure to
inform them of their rights under Miranda; and (6) statements and
evidence obtained through the stop and interrogation were fruits of
the poisonous tree and should be suppressed.
13
Before the district court, the Government contended that
neither Mr. Campbell nor Mr. Porteous, as mere passengers, had a
reasonable expectation of privacy in the vehicle, and, therefore,
neither defendant could object to its search. The district court
did not address this issue. In its brief to this court, the
Government notes in a footnote that it does not concede the
“standing” of the defendants to object. See Gov’t Br. 35 n.4.
-10-
The magistrate judge who conducted the suppression
hearing concluded that the vehicle stop was based on the reasonable
suspicion that the defendants were involved in fraudulent credit
card transactions at Bull Moose and Toys “R” Us. The magistrate
judge rejected the defendants’ arguments that the stop was based on
a “mere hunch” or on racial profiling.14 The defendants’ activity,
she concluded, “would reasonably have caused any prudent person to
suspect the fraudulent use of credit cards to purchase high-demand
consumer electronics.”15
The magistrate judge also concluded that the warrantless
search of the vehicle was permitted under the consent and
automobile exceptions to the Fourth Amendment’s warrant
requirement. The magistrate judge further determined that there
was probable cause for issuance of the warrant to search the
vehicle and seize contraband found in it. Finally, the magistrate
judge concluded that Miranda warnings were not required because the
defendants were not “in custody”: “In light of all of the facts
and circumstances, a reasonable person standing in [the
defendants’] shoes would not have believed that he was being
subjected to a restraint equivalent to a formal arrest.”16 On
14
R.73 at 8.
15
Id. at 9.
16
Id. at 11.
-11-
February 1, 2012, the district judge entered an order accepting
the magistrate’s recommendation.
Neither the magistrate judge nor the district court
addressed whether the defendants had the requisite privacy interest
to address any of the issues concerning the search.
II
DISCUSSION
A. Stop and Search of the Vehicle
We first consider the defendants’ argument that the
district court should have suppressed evidence obtained during the
stop and search of the vehicle. In reviewing a district court’s
denial of a motion to suppress, we review its findings of fact for
clear error and its conclusions of law de novo. United States v.
Diaz, 519 F.3d 56, 61 (1st Cir. 2008). “Absent 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.” United States
v. Lee, 317 F.3d 26, 29-30 (1st Cir. 2003).
The defendants submit two separate arguments. First,
they argue that the stop of the vehicle constituted an unlawful
seizure under the Fourth Amendment. Second, they contend that a
law enforcement officer’s ensuing search of the vehicle violated
the Fourth Amendment’s prohibition against unreasonable searches.
We shall address each argument in turn.
-12-
1. The Vehicle Stop
The defendants submit that the district court erred in
holding that Officer Gerrish’s stop of the vehicle was
constitutional because it was based on reasonable articulable
suspicion.
We begin by setting forth the Fourth Amendment principles
governing investigative stops. In Terry v. Ohio, 392 U.S. 1, 22
(1968), the Supreme Court articulated the watershed principle that
“a police officer may in appropriate circumstances and in an
appropriate manner approach a person for purposes of investigating
possibly criminal behavior even though there is no probable cause
to make an arrest.” Temporary traffic stops are analogous to these
so-called Terry stops. Berkemer v. McCarty, 468 U.S. 420, 439
(1984). Stopping a vehicle and temporarily detaining its occupants
constitutes a seizure for Fourth Amendment purposes. United States
v. Cortez, 449 U.S. 411, 417 (1981) (collecting cases); Delaware v.
Prouse, 440 U.S. 648, 653 (1979). Because the defendants, as
passengers in the stopped automobile, were seized within the
meaning of the Fourth Amendment, they may contest whether the stop
of the vehicle meets Fourth Amendment standards. Brendlin v.
California, 551 U.S. 249, 251 (2007); see United States v.
Symonevich, 688 F.3d 12, 19 (1st Cir. 2012).17
17
See also, e.g., United States v. Figueredo-Diaz, 718 F.3d
568, 576 & n.5 (6th Cir. 2013); United States v. Crippen, 627 F.3d
1056, 1063 (8th Cir. 2010); United States v. Cortez-Galaviz, 495
-13-
A warrantless traffic stop satisfies the Fourth
Amendment’s reasonableness requirement, U.S. Const. amend. IV, if
“police officers have a reasonable suspicion of wrongdoing—a
suspicion that finds expression in specific, articulable reasons
for believing that a person may be connected to the commission of
a particular crime.” Lee, 317 F.3d at 31; see also United States
v. Sokolow, 490 U.S. 1, 7 (1989); United States v. Jones, 700 F.3d
615, 621 (1st Cir. 2012). To constitute reasonable suspicion, “the
likelihood of criminal activity need not rise to the level required
for probable cause, and it falls considerably short of satisfying
a preponderance of the evidence standard.” United States v.
Arvizu, 534 U.S. 266, 274 (2002).
The Supreme Court has eschewed, emphatically, any
reliance on a rigid test or formula to give the concept substance.
Rather, it has emphasized that the determination must be grounded
in the “totality of the circumstances.” Cortez, 449 U.S. at 417;
see also Jones, 700 F.3d at 621; United States v. Coplin, 463 F.3d
F.3d 1203, 1205 n.3 (10th Cir. 2007); United States v.
Diaz-Castaneda, 494 F.3d 1146, 1150 (9th Cir. 2007); United States
v. Soriano-Jarquin, 492 F.3d 495, 499-500 (4th Cir. 2007); 3 Wayne
R. LaFave et al., Criminal Procedure § 9.1(d), at 404-05 (3d ed.
2007) (noting that “[a]ny remaining doubt” as to whether passengers
had standing to object to the stop of a vehicle or to the length of
the passenger’s subsequent detention “was removed in Brendlin v.
California”); 1 David S. Rudstein et al., Criminal Constitutional
Law § 11.02(2)(b)(iii)(B) (2013) (“[A] passenger in a vehicle that
is stopped by law enforcement has been ‘seized’ and therefore can
challenge the validity of the police action in stopping the vehicle
in which he was riding.”).
-14-
96, 100 (1st Cir. 2006). Nevertheless, the Court has disciplined
the reasonable suspicion standard by requiring “some objective
manifestation” that the person stopped either is wanted for past
criminal conduct, or is engaging or about to engage in such
conduct. Cortez, 449 U.S. at 417 & n.2. A mere “hunch,”
therefore, will not justify a stop. Terry, 392 U.S. at 22, 27.
Information that is received from others in the course of
an investigation, as the Court emphasized in Adams v. Williams, 407
U.S. 143, 147 (1972), varies in its “value and reliability”:
Informants’ tips, like all other clues and
evidence coming to a policeman on the scene,
may vary greatly in their value and
reliability. One simple rule will not cover
every situation. Some tips, completely
lacking in indicia of reliability, would
either warrant no police response or require
further investigation before a forcible stop
of a suspect would be authorized. But in some
situations—for example, when the victim of a
street crime seeks immediate police aid and
gives a description of his assailant, or when
a credible informant warns of a specific
impending crime—the subtleties of the hearsay
rule should not thwart an appropriate police
response.
In short, in our search for “some objective
manifestation,” we must recognize that, at bottom, the inquiry
deals not with “hard certainties, but with probabilities.” Cortez,
449 U.S. at 417-18. In the Supreme Court’s words:
The idea that an assessment of the whole
picture must yield a particularized suspicion
contains two elements, each of which must be
present before a stop is permissible. First,
the assessment must be based upon all of the
-15-
circumstances. The analysis proceeds with
various objective observations, information
from police reports, if such are available,
and consideration of the modes or patterns of
operation of certain kinds of lawbreakers.
From these data, a trained officer draws
inferences and makes deductions—inferences and
deductions that might well elude an untrained
person.
The process does not deal with hard
certainties, but with probabilities. Long
before the law of probabilities was
articulated as such, practical people
formulated certain commonsense conclusions
about human behavior; jurors as factfinders
are permitted to do the same—and so are law
enforcement officers. Finally, the evidence
thus collected must be seen and weighed not in
terms of library analysis by scholars, but as
understood by those versed in the field of law
enforcement.
The second element contained in the idea
that an assessment of the whole picture must
yield a particularized suspicion is the
concept that the process just described must
raise a suspicion that the particular
individual being stopped is engaged in
wrongdoing.
Id. at 418. With these principles in mind, we turn to the case
before us.
Here, the stop occurred after the police had received a
report from store employees that suggested that the defendants may
have engaged in, or attempted to engage in, credit card fraud.
These clerks worked for an established business within the
officers’ jurisdiction and, as part of the store’s sales force,
their work undoubtedly included being alert for fraudulent activity
at the store. Moreover, in a face-to-face situation, the officers
-16-
had an opportunity to judge the credibility of the clerks and the
accuracy of their report. The Bull Moose clerks gave the officers
specific information. They described their serial encounters with
the defendants and specifically told the officers that two
different defendants had attempted to use credit cards bearing the
same name. The clerks further gave the police a description of the
defendants’ vehicle, including the license plate number. They also
provided, on the basis of their conversation with the defendants,
the probable location of the defendants’ next stop.
Although this encounter already gave the police officers
a great deal of information upon which to formulate a suspicion of
illegal activity, the officers went a step further before executing
the stop and checked the clerks’ estimation of the defendants’
whereabouts. An officer went to the Toys “R” Us where, according
to the clerks, the defendants might next appear. The officer found
a vehicle matching the description of the defendants’ vehicle. The
vehicle’s out-of-state license plate number matched that reported
by the clerks, with the exception of one instance of inverted
numerals. Shortly afterward, the officer observed the defendants
approach the vehicle. They were carrying bags, suggesting that
they had purchased items in the Toys “R” Us, as the clerks at the
earlier establishment predicted they might do. The “men not only
were in the right place at the right time but also fit the
suspects’ descriptions.” Lee, 317 F.3d at 31. In short, only
-17-
after law enforcement officers had learned all of the facts
surrounding the suspected criminal activity and had corroborated
the details did Officer Gerrish stop the defendants’ vehicle.
We think that this case is sufficiently similar to the
situation that confronted us in Lee as to be controlled by the
principles articulated in that case. There, a store employee
contacted the police to report suspected attempted credit card
fraud. Id. at 30. The employee told police that “a young Asian
male had tried (but failed) to purchase a $2,300 wristwatch using
not one but two platinum American Express cards ostensibly issued
in the name of Zhi Lin.” Id. When a police officer arrived at the
store’s parking lot, he observed a van containing two individuals
matching the employee’s description. Id. The officer approached
the vehicle, and the driver attempted to pull away before the
officer forced him to stop. Id. We held that the “collocation of
circumstances plainly satisfied the reasonable suspicion standard
for an initial Terry stop.” Id. at 31.
As in Lee, the circumstances surrounding the present
defendants’ actions at Bull Moose and in the Toys “R” Us parking
lot justified Officer Gerrish’s stop. The district court correctly
concluded that the stop was supported by reasonable articulable
suspicion.18
18
Mr. Campbell makes one additional argument about the
initial stop of the vehicle. He submits that “there was no
probable cause to believe a crime was committed when the vehicle
-18-
2. The Vehicle Search
The defendants next challenge the district court’s
determination that the warrantless search of the vehicle, from the
drug-detection dog’s entrance into the vehicle through the search
of the locked glove box, did not violate the Fourth Amendment. The
district court took the view that the defendants’ consent, as well
as the automobile exception to the Fourth Amendment’s warrant
requirement, brought that search within constitutional bounds.
In examining this question, we are confronted at the
beginning of our analysis by an important threshold question. The
defendants base their challenge to the search of the automobile on
their status as passengers in that automobile. Following the
decision of the Supreme Court in Rakas v. Illinois, 439 U.S. 128
(1978), we have held squarely that passengers in an automobile who
assert no property or possessory interest in a vehicle cannot be
said to have the requisite expectation of privacy in the vehicle to
was stopped.” Campbell Br. 19. Consequently, he continues, the
warrant later issued for the search of the vehicle was invalid
because it was based on the information discovered in an illegal
stop. There are two problems with Mr. Campbell’s argument. First,
he has conflated the standards for a Terry stop of a vehicle and
for the issuance of a warrant. The officers needed only reasonable
suspicion to stop the vehicle, and we already have determined that
such suspicion was present. Second, Mr. Campbell’s argument
neglects the importance of timing in a probable cause inquiry.
Probable cause can “accrete[] gradually as an investigation
progresses.” United States v. Lee, 317 F.3d 26, 32 (1st Cir.
2003). Law enforcement can stop a car only on reasonable
suspicion, and then “the circumstances giving rise to reasonable
suspicion . . . and the developments that unfold[] during the Terry
stop [can furnish] probable cause.” Id.
-19-
permit them to maintain that the search did not meet Fourth
Amendment standards. United States v. Symonevich, 688 F.3d 12, 19,
21 (1st Cir. 2012).19
Mr. Campbell never has claimed a possessory interest in
the vehicle.20 In his motion to suppress and at the hearing on that
motion, Mr. Porteous asserted, forcefully, that he did not lease
the car.21 To put it mildly, in taking those positions, neither
19
See also, e.g., Crippen, 627 F.3d at 1063 (holding that a
passenger may challenge his seizure at a traffic stop but may not
challenge the search of a vehicle); United States v. Paulino, 850
F.2d 93, 96-97 (2d Cir. 1988) (holding that although a passenger
had manifested a subjective expectation of privacy in the area
under a car mat where he hid contraband, he failed to demonstrate
that such an expectation was objectively reasonable and therefore
lacked standing to challenge the search).
20
In its opposition to the motion to suppress, the Government
asserted that, in light of their lack of any possessory interest,
the defendants could not litigate the search of the automobile.
The district court did not address the issue. In this court, the
defendants did not address the matter in their opening briefs, but
the Government preserved adequately the issue by noting it in its
brief and providing the controlling authority. Gov’t Br. 35 n.4
(citing United States v. Symonevich, 688 F.3d 12, 18-21 (1st Cir.
2012)); cf. Rubin v. Islamic Republic of Iran, 709 F.3d 49, 54 &
n.4 (1st Cir. 2013) (noting that to preserve an issue for appeal,
it generally must be raised before the district court and in a
party’s opening brief).
21
We acknowledge that the district court determined, on the
basis of Sergeant Chard’s testimony at the suppression hearing,
that Mr. Porteous told the Sergeant that he had rented the car.
Notably, the district court did not find that Mr. Porteous in fact
had leased the car; the court merely determined that Mr. Porteous
told the Sergeant that he had done so. Although Mr. Porteous’s
statement to the Sergeant well may have given the officer a basis
for believing that Mr. Porteous had apparent authority to consent
to the search of the car (a question we need not decide today), for
purposes of evaluating the district court’s ruling on the motion to
suppress, we accept Mr. Porteous’s position that he did not have a
-20-
defendant has carried his burden to establish a reasonable
expectation of privacy in the vehicle. See United States v.
Lipscomb, 539 F.3d 32, 35-36 (1st Cir. 2008) (“Before reaching the
merits of a suppression challenge, the defendant carries the burden
of establishing that he had a reasonable expectation of privacy
with respect to the area searched . . . .”); id. at 36 (holding
that the defendant lacked the expectation of privacy required to
challenge a seizure where the defendant “actively disowned any
interest in any of the seized items” and “repeatedly asserted” at
the hearing on his motion to suppress that the contraband seized
was not his).22 Accordingly, because neither Mr. Campbell nor
possessory interest in the vehicle.
Our analysis of this question is not contrary to the holding
of the Supreme Court in Simmons v. United States, 390 U.S. 377
(1968). There, the defendant testified at the suppression hearing
that he owned a particular suitcase because he justifiably believed
that such testimony was necessary to establish the requisite
standing to object to the search. Id. at 381. The Supreme Court
held that such testimony could not be used against the defendant
during trial to establish his guilt. Id. at 394. The situation
here is materially different. No one is using Mr. Porteous’s
statement against him. Rather, Mr. Porteous denies he made the
statement and, in any event, abjures any reliance on a property
interest in his motion to suppress. See United States v. Samboy,
433 F.3d 154, 162 (1st Cir. 2005) (holding that the defendant had
not demonstrated a reasonable expectation of privacy in an
apartment that was searched where his “strategy throughout the
proceedings was to distance himself from any possible interest” and
noting that the defendant could have argued, but did not, “that he
lacked an interest at trial while arguing that he did in fact have
a recognized interest . . . in his motion to suppress”).
22
See also Symonevich, 688 F.3d at 21 n.6 (“The burden to
establish a reasonable expectation of privacy lies squarely on the
movant.”); United States v. Rodríguez-Lozada, 558 F.3d 29, 37 (1st
Cir. 2009); Samboy, 433 F.3d at 161 (quoting Minnesota v. Carter,
-21-
Mr. Porteous established a privacy interest in the car, they cannot
object to its search by the officers.
Because the defendants do not assert the requisite
privacy interest in the vehicle that was searched, they cannot make
any claim about the legality of the search of the vehicle. We
therefore have no reason to address their contentions with respect
to that search.
B. Uncounseled Questioning at the Scene of the Vehicle Stop
The defendants next submit that the law enforcement
officers should have supplied Miranda warnings before questioning
them at the scene of the vehicle stop and that any statements made
in the absence of such warnings should be suppressed.
In evaluating the district court’s ruling on whether the
defendants were “in custody” for Miranda purposes, we review the
court’s factual assessment of the circumstances surrounding the
interrogation for clear error. United States v. Hughes, 640 F.3d
428, 435 (1st Cir. 2011). Then, we review de novo whether, “viewed
objectively, the discerned circumstances constitute the requisite
‘restraint on freedom of movement of the degree associated with a
525 U.S. 83, 88 (1998)); cf. United States v. Salvucci, 448 U.S.
83, 95 (1980) (remanding a case that came to the Supreme Court “as
a challenge to a pretrial decision suppressing evidence” so that
the defendants could “attempt to establish that they had a
legitimate expectation of privacy in the areas” searched).
-22-
formal arrest.’” Id. (quoting California v. Beheler, 463 U.S.
1121, 1125 (1983) (per curiam)).
Miranda v. Arizona, 384 U.S. 436 (1966), held that the
Fifth Amendment requires “the exclusion of incriminating statements
obtained during custodial interrogation unless the suspect fails to
claim the Fifth Amendment privilege after being suitably warned of
his right to remain silent and of the consequences of his failure
to assert it.” Minnesota v. Murphy, 465 U.S. 420, 430 (1984). The
purpose of the Miranda doctrine is to combat the specific
characteristics of custodial interrogation that “work to undermine
the individual’s will to resist and to compel him to speak where he
would not otherwise do so freely.” Miranda, 384 U.S. at 467.
Accordingly, Miranda “does not apply outside the context of the
inherently coercive custodial interrogations for which it was
designed.” Roberts v. United States, 445 U.S. 552, 560 (1980).
“Custody” for purposes of Miranda must be “narrowly circumscribed”
to effectuate the precise purpose of the warnings. See Murphy, 465
U.S. at 430. In determining whether a person was in custody for
this purpose, therefore, a court must keep in mind that “[t]he
warnings protect persons who, exposed to such interrogation without
the assistance of counsel, otherwise might be unable to make a free
and informed choice to remain silent.” Roberts, 445 U.S. at
560-61.
-23-
In determining whether a person detained at a vehicular
stop should have been given Miranda warnings, the Supreme Court and
the courts of appeals have followed the principles that we just
have articulated. In Berkemer v. McCarty, 468 U.S. 420, 440
(1984), for instance, the Supreme Court held that Miranda warnings
are not required during routine stops involving traffic matters.
The Court acknowledged that a traffic stop is a “seizure” for
Fourth Amendment purposes because “few motorists would feel free
either to disobey a directive to pull over or to leave the scene of
a traffic stop without being told they might do so.” Id. at
436-37. The Court distinguished traffic stops from the setting
that occurs in Miranda—jailhouse interrogations. Id. at 437-39.
“[C]ircumstances associated with the typical traffic stop are not
such that the motorist feels completely at the mercy of the
police.” Id. at 438. Traffic stops are usually temporary and
brief. Id. at 437-38. They are public, which “both reduces the
ability of an unscrupulous policeman to use illegitimate means to
elicit self-incriminating statements and diminishes the motorist’s
fear that, if he does not cooperate, he will be subjected to
abuse.” Id. at 438. Typically each motorist is confronted by only
one or two policemen. Id. All of this combines to make a traffic
stop “substantially less police dominated” than “the kinds of
interrogation at issue in Miranda itself.” Id. at 439 (internal
quotation marks omitted). Traffic stops are “comparatively
-24-
nonthreatening,” and therefore do not require Miranda warnings to
counter the threat of coercion. Id. at 440.
Notably, despite its holding that, generally, law
enforcement officers are not required to give Miranda warnings at
traffic stops, the Court established no categorical rule. Indeed,
it held that Miranda warnings would be required “as soon as a
suspect’s freedom of action is curtailed to a ‘degree associated
with formal arrest.’” Id. (quoting Beheler, 463 U.S. at 1125).
Thus, our task post-Berkemer is to determine whether the facts of
a specific case indicate a situation more akin to a routine traffic
stop, at which Miranda warnings are not required, or indicate that
a suspect has been “subjected to restraints comparable to those
associated with a formal arrest,” at which point Miranda warnings
are required. Id. at 441. In understanding this analysis, we
begin by noting that the Court has held that a traffic stop is
analogous to a Terry stop and, therefore, “that persons temporarily
detained pursuant to such stops are not ‘in custody’ for the
purposes of Miranda.” Id. at 440. In the course of its opinion,
the Supreme Court also noted “the absence of any suggestion in
[its] opinions that Terry stops are subject to the dictates of
Miranda” due to “[t]he comparatively nonthreatening character of
detentions of this sort.” Id.
In focusing on Terry stops, we also have recognized that,
as “a general rule, Terry stops do not implicate the requirements
-25-
of Miranda, because Terry stops, though inherently somewhat
coercive, do not usually involve the type of police dominated or
compelling atmosphere which necessitates Miranda warnings.” United
States v. Streifel, 781 F.2d 953, 958 (1st Cir. 1986) (internal
quotation marks omitted). More recently, in United States v.
Fornia-Castillo, 408 F.3d 52 (1st Cir. 2005), we have reiterated
that general approach while observing, as the Supreme Court did in
Berkemer, that a valid investigatory stop can “escalate into
custody” for Miranda purposes “where the totality of the
circumstances shows that a reasonable person would understand that
he was being held to ‘the degree associated with a formal arrest.’”
Id. at 63 (quoting Stansbury v. California, 511 U.S. 318, 322
(1994) (per curiam)). While no “scientifically precise formula”
can determine whether a Terry stop rises to the level of a formal
arrest, United States v. Trueber, 238 F.3d 79, 93 (1st Cir. 2001)
(internal quotation marks omitted), the “ultimate inquiry” is
whether there was “a formal arrest or restraint on freedom of
movement of the degree associated with a formal arrest.”23 Thompson
v. Keohane, 516 U.S. 99, 112 (1995) (internal quotation marks
omitted). Keeping in mind that the test is an objective one,
Stansbury, 511 U.S. at 323, we focus (without limitation) on four
23
To the extent that the defendants suggest that Miranda
comes into play simply because a reasonable person in their shoes
would not have felt free to leave, that suggestion is foreclosed by
United States v. Streifel, 781 F.2d 953, 960-62 (1st Cir. 1986).
-26-
factors: (1) “whether the suspect was questioned in familiar or at
least neutral surroundings”; (2) “the number of law enforcement
officers present at the scene”; (3) “the degree of physical
restraint placed upon the suspect”; and (4) “the duration and
character of the interrogation.” Hughes, 640 F.3d at 435 (internal
quotation marks omitted).24
We believe that the circumstances surrounding this stop
would not be viewed by a reasonable person as the functional
equivalent of a formal arrest. The defendants were questioned in
a neutral location, a hotel parking lot. See United States v.
Jones, 187 F.3d 210, 218 (1st Cir. 1999) (“Although the location
apparently was not familiar to [the defendant] and the area was not
well-lit, a public highway is a neutral setting that police
24
We note that this approach is consistent across the
circuits. See, e.g., United States v. FNU LNU, 653 F.3d 144, 153
(2d Cir. 2011); United States v. Acosta, 363 F.3d 1141, 1148-50
(11th Cir. 2004); United States v. Foster, 70 F. App’x 415, 416-17
(9th Cir. 2003); United States v. Leshuk, 65 F.3d 1105, 1108-10
(4th Cir. 1995); United States v. Lennick, 917 F.2d 974, 976-78
(7th Cir. 1990); see also 3 William E. Ringel, Searches and
Seizures, Arrests and Confessions § 27:7 (2d ed. 2013) (“Courts are
also virtually unanimous in finding that questioning of a suspect
during an investigative stop authorized under Terry v. Ohio, does
not meet the requirement of custodial interrogation. . . . [I]t is
likely from the Court’s language that some roadside detentions
might constitute ‘custody’ under Miranda, given the right set of
circumstances—e.g., a lengthy detention, the show of force, or
placement of the suspect into the police vehicle.” (footnote
omitted)); id. § 27:8 (pointing out that cases consider the
location and length of questioning, the number of police officers
present, whether the police made a statement as to whether the
defendant was in custody, the use of physical restraint, the nature
of questioning, the officers’ demeanor and the use of a weapon).
-27-
officers are not in a position to dominate as they are, for
example, an interrogation room at a jailhouse.”). There were four
or five police officers on the scene questioning three defendants.
The police officers split up and questioned the defendants
separately, such that each defendant was questioned by at most two
officers. There is no indication that this police-to-suspects
ratio was overwhelming to the defendants. See United States v.
Crooker, 688 F.3d 1, 12 (1st Cir. 2012) (determining that suspect
was not “in custody” for Miranda purposes where “no more than two
agents were in direct conversation” with the suspect at one time).
Although the defendants may have temporarily been unable to use
their cellular phones, neither Mr. Campbell nor Mr. Porteous was
physically restrained at the time of the questioning. See id.;
Hughes, 640 F.3d at 435-36. The law enforcement officers on the
scene made no show of force by using their weapons. Cf. Crooker,
688 F.3d at 4, 11-12 (holding that suspect was not in custody even
where law enforcement officers initially approached house with
weapons drawn). Finally, the duration and character of the
interrogation weigh in favor of finding that the defendants were
not in custody. There is no indication that the stop lasted for an
inappropriately long period of time or that the officers acted with
hostility toward the defendants. See United States v. Guerrier,
669 F.3d 1, 6 (1st Cir. 2011) (holding that suspect was not in
custody where the atmosphere was “relatively calm and
-28-
nonthreatening” and the interview lasted “a relatively short
time”).
In similar circumstances, we have determined that
suspects were not in custody at the time of questioning. For
example, in Crooker, 688 F.3d at 4, law enforcement agents executed
a search warrant at the defendant’s house. There were between four
and eight agents, who approached the house with weapons drawn. Id.
During a multiple-hour search, two agents conversed with the
defendant. Id. at 5. The agents did not advise the defendant of
his Miranda rights or arrest him. Id. The defendant made
incriminating statements about the location of firearms, ammunition
and marijuana in the house. Id. The district court denied the
defendant’s motion to suppress those statements; we affirmed,
concluding that the defendant “was not in custody for Miranda
purposes.” Id. at 6, 11-12. We specifically considered that the
interrogation was conducted in the “significantly less
intimidating” setting of the defendant’s home; that the officers’
weapons were holstered throughout the majority of the search; that
no more than two agents were in direct conversation with the
defendant at any given time; that the defendant never was
restrained physically; and that the interactions were “cooperative
and relatively brief.” Id. at 11-12; see also Hughes, 640 F.3d at
435-37 (holding that suspect was not in custody where the interview
occurred in his home, the number of officers was “impressive but
-29-
not overwhelming” and only two officers participated in the
questioning, there was no show of force and no weapons were
brandished, the defendant was not restrained physically, the
“ambiance was relaxed and non-confrontational” and the interview
lasted for ninety minutes—a “relatively short duration”);
Fornia–Castillo, 408 F.3d at 57 n.3, 64-65 (holding that suspect
was not in custody where single officer stopped suspect on busy
public road, at one point drew his service revolver in a defensive
position, handcuffed the suspect for ten to fifteen minutes,
frisked the suspect and questioned the suspect while he was
handcuffed).
Here, because Mr. Campbell and Mr. Porteous were not in
custody at the time of their questioning, law enforcement did not
have to inform them of their Miranda rights, and the district court
properly refused to suppress their statements.
C. Mr. Campbell’s Sentence
“We typically examine sentencing decisions for abuse of
discretion, which is really a review for reasonableness.” United
States v. Denson, 689 F.3d 21, 26 (1st Cir. 2012), cert. denied,
133 S. Ct. 996 (2013).
Mr. Campbell submits that the district court erred in
imposing his mid-guidelines-range sentence.25 A reviewing court
25
Mr. Porteous does not appeal his sentence.
-30-
must consider both the procedural and substantive reasonableness of
a sentence. Gall v. United States, 552 U.S. 38, 51 (2007). Here,
Mr. Campbell raises no procedural challenges on appeal.26 Rather,
he challenges the substantive reasonableness of the sentence. In
his view, the district court failed to give proper weight to the
medical care needed to treat his polymyositis, among other personal
factors. See id. at 56-58 (characterizing the weight given to
specific facts as a substantive reasonableness question).
We first note that Mr. Campbell raised no objection to
the guidelines calculation in the presentence report or to the
calculation as explained by the district court during his
sentencing hearing. More fundamentally, Mr. Campbell’s
eighteen-month sentence falls squarely within the sentencing
court’s guidelines calculation. The base offense level was six.
The amount of loss added eight levels and possession of a
fraudulent license added two levels. The defendant received a
three-level reduction following his guilty plea, so the final
offense level was thirteen. Given his criminal history category of
II, the resulting guidelines range was fifteen to twenty-one
months.
26
Procedural errors include: “failing to calculate (or
improperly calculating) the Guidelines range, treating the
Guidelines as mandatory, failing to consider the § 3553(a) factors,
selecting a sentence based on clearly erroneous facts, or failing
to adequately explain the chosen sentence.” Gall v. United States,
552 U.S. 38, 51 (2007).
-31-
Nevertheless, on appeal, Mr. Campbell submits that the
trial court failed to consider adequately his medical needs and
life circumstances. To the contrary, the record indicates that the
court sufficiently considered those factors. First, the court
acknowledged that it had “carefully reviewed the contents of the
written presentence investigation report,” which describes
Mr. Campbell’s medical needs and to which Mr. Campbell offered no
objection.27 The court listened to both Mr. Campbell and
Mr. Campbell’s attorney discuss his medical condition at the
sentencing hearing. Prior to announcing the sentence, the court
indicated that it had considered the presentence report, the
history of the defendant and letters of support (which, according
to Mr. Campbell’s attorney, discussed the defendant’s medical
condition). It is clear that the court considered Mr. Campbell’s
personal circumstances.28
Further, the court explained that the eighteen-month
sentence it imposed did provide leniency for Mr. Campbell’s
27
R.137 at 2, 17-18.
28
Mr. Campbell also raises that he has a young daughter; that
prior to 2009, he had very little interaction with the criminal
justice system; and that he had accepted responsibility for his
crimes. In announcing Mr. Campbell’s sentence, the district court
made it clear that it was aware of the defendant’s family and
history with the criminal justice system. Id. at 18-20. The
court’s guidelines calculation already included a three-level
reduction for acceptance of responsibility. Id. at 18. There is
nothing unreasonable in the sentencing judge’s treatment of these
facts.
-32-
personal characteristics. The court stated that, on the basis of
the record, it would have imposed an above-guidelines-range
sentence absent such facts because it believed that the seriousness
of the offense and the defendant’s criminal history, particularly
that Mr. Campbell had been out on bail for a similar offense when
he committed the crime for which he was being sentenced, warranted
an above-guidelines sentence.29 However, “because of the letters
of support [he] ha[d] received . . . and the recommendation of the
Government,” the court ordered a “very lenient” sentence.30 Under
these circumstances, it cannot be said that the sentencing court’s
decision to issue a mid-guidelines-range sentence was an abuse of
discretion.
Conclusion
The judgment of the district court is affirmed.
AFFIRMED.
29
Id. at 19.
30
Id. at 19-20.
-33-