United States v. Tom

United States Court of Appeals
For the First Circuit
No. 18-1639
UNITED STATES OF AMERICA,
Appellee,
v.
TEM TOM,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
Before
Howard, Chief Judge,
Kayatta and Barron, Circuit Judges.
Chauncey B. Wood and Wood & Nathanson, LLP on brief for
appellant.
Benjamin M. Block, Assistant United States Attorney, and
Halsey B. Frank, United States Attorney, on brief for appellee.
February 17, 2021
HOWARD, Chief Judge. Tem Tom appeals from his conviction
for possession of a controlled substance with intent to distribute
in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B). His sole
claim is that the district court committed reversible error in
denying Tom's motion to suppress evidence of drugs and cash that
were recovered from him and the other occupant of the car after an
investigatory motor vehicle stop. As in the district court,
whether the evidence should have been suppressed comes down to
whether reasonable suspicion existed at the time officers
approached the vehicle in which Tom was a passenger and directed
its occupants to exit. Finding no basis to disturb the district
court's conclusion that the officers had reasonable suspicion, we
affirm.
I. FACTS
When considering the denial of a motion to suppress,
"[w]e recite the facts as found by the district court, consistent
with record support[,]" including the testimony from the motion
hearing. United States v. Soares, 521 F.3d 117, 118
(1st Cir. 2008). In late 2016, the federal Drug Enforcement Agency
was investigating suspected drug dealing by Denis Ochan. As part
of the investigation, a confidential informant conducted
controlled purchases of crack cocaine from Ochan on three separate
occasions in late 2016 and early 2017. After that, the Drug
Enforcement Agency (DEA) coordinated a final "buy/bust operation"
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against Ochan; as the term suggests, the agents intended to arrest
Ochan upon making a final purchase from him.
The planned takedown took place on February 2, 2017, at
a shopping center located across the street from Ochan's residence
in Portland, Maine. The confidential informant waited in a vehicle
in the shopping center's parking lot, with $500 that agents had
provided him to purchase approximately five grams of crack cocaine
from Ochan. Given their positioning within the parking lot and
the audio equipment that they had positioned on the informant, the
agents could see and hear all of the informant's interactions.
Meanwhile, another group of agents maintained
surveillance on Ochan's residence, part of a three-family
building. Those agents observed two men in a "green Chevy Cruze
with a New York license plate" turn into Ochan's driveway and pull
around to the back of the building, disappearing from view. Less
than two minutes after the Chevy arrived, an agent observed a "male
c[ome] around from the back of the apartment building" and enter
a door at the rear left corner of the building. Approximately ten
minutes later, that same person and Ochan exited the building
together through the same door and walked behind the building.
The back of the building remained out of the agents' view.
Reemerging, Ochan crossed the street towards the
shopping center. Agents watched as Ochan entered the informant's
vehicle. After hearing Ochan and the informant's entire
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conversation, agents moved in and arrested Ochan. A search of
Ochan turned up approximately four grams of crack cocaine and $530
in cash. After initially denying having met with anyone, Ochan
told the agents that he had obtained the crack cocaine from the
individuals in the green Chevy that had pulled up to his residence.
While these events were taking place at the shopping
plaza, the agents surveilling Ochan's residence observed the Chevy
drive away from the building less than ten minutes after Ochan
left. Some of the agents followed the Chevy as it proceeded toward
downtown Portland. When the Chevy stopped approximately two miles
later, uniformed Portland Police Department officers were the
first to approach it. Tom was the passenger in the vehicle. After
asking Tom and the driver to exit the Chevy, the officers found
cocaine base on the driver's seat and on both Tom and the driver.
They were both placed under arrest.
II. PROCEDURAL HISTORY
In March 2017, a federal grand jury indicted Tom for
knowing and intentional possession of 28 grams or more of cocaine
base with the intent to distribute, in violation of
21 U.S.C. § 841(a)(1) and (b)(1)(B). Tom filed a motion to
suppress the evidence of drugs and money found as a result of the
search, which the district court denied after conducting an
evidentiary hearing. Tom subsequently entered a conditional
guilty plea, reserving his right to appeal the denial of his
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suppression motion. After being sentenced to 84 months of
incarceration and eight years of supervised release, Tom timely
appealed.
III. ANALYSIS
A. Standard of Review
When considering a district court's denial of a motion to
suppress, we review findings of fact for clear error and apply de
novo review to the application of law to those facts and to
conclusions of law. United States v. Rheault, 561 F.3d 55, 58
(1st Cir. 2009); United States v. Jones, 523 F.3d 31, 36 (1st Cir.
2008). We "will uphold a denial of a motion to suppress if any
reasonable view of the evidence supports it." United States v.
Holloway, 499 F.3d 114, 117 (1st Cir. 2007) (quoting United States
v. Garner, 338 F.3d 78, 80 (1st Cir. 2003)).
B. The District Court's Reasoning
Tom argued before the district court that the officers
did not have reasonable suspicion to support the traffic stop. He
leaned heavily on his view that Ochan's statements implicating the
individuals in the Chevy were unreliable.
Unpersuaded, the court issued an oral ruling denying the
motion. In its statements on the record, the district court
recognized that the stop had to be supported by "a reasonable and
articulable suspicion of criminal activity." The district court
noted that reasonable suspicion had to be "more than a naked hunch"
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yet "does not require either probable cause or evidence of a direct
connection linking the suspect to the suspected crime." For all
of this, the district court cited United States v. Chhien, 266
F.3d 1 (1st Cir. 2001).
In explaining its reasoning, the district court
emphasized that the officers had prior knowledge of Ochan's drug
activity, that the Chevy arrived shortly before the drug sale and
left only after it, that one of the occupants appeared to have
interacted with Ochan, and that the officers recovered drugs from
Ochan's person. The district court stressed that "this was not a
mere hunch" and that there was an objectively reasonable suspicion
to search the Chevy once the officers arrested Ochan and found the
drugs on him. Importantly, the district court clarified that
reasonable suspicion existed independent of Ochan's statements
that he had obtained drugs from the individuals in the Chevy.
C. Reasonable Suspicion Existed
Before us, Tom maintains that reasonable suspicion did
not exist. According to Tom, Ochan's statements were both
essential to any finding of reasonable suspicion and were not
sufficiently reliable under United States v. Jones, 700 F.3d 615,
622 (1st Cir. 2012), and related cases. Tom's argument fails at
its first step. Reasonable suspicion existed without Ochan's
statements.
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The moment upon which we focus our attention is when the
officers approached the stopped Chevy and directed its occupants
to step out of the car. "Such stops are reasonable, and
consequently do not offend the Fourth Amendment, only where
officers have a reasonable suspicion supported by articulable
facts that criminal activity may be afoot." United States v. Tiru-
Plaza, 766 F.3d 111, 115 (1st Cir. 2014) (internal citations and
quotations omitted). In determining whether reasonable suspicion
existed, courts ask whether the totality of the circumstances
provided the officers with more than an "unparticularized
suspicion or hunch" that the individual was involved in specific
criminal activity. Id. at 116 (quoting United States v. Sokolow,
490 U.S. 1, 7 (1989) (internal quotation marks omitted).
In conducting our review of the facts, we accept the
reasonable inferences drawn by the district court and by the law
enforcement officers on the scene. See Ornelas v. United States,
517 U.S. 690, 699 (1996). On this record, a reasonable view of
the evidence supports the district court's conclusion that the
officers had reasonable suspicion that the car's occupants were
involved in the drug transaction that law enforcement had arranged
and agents had just observed.
Based on the previous controlled drug sales in which
agents had seen Ochan participate -- including the sale that day
-- agents had specific knowledge that Ochan sold drugs. From
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there, the sequence of events on the day of Tom's arrest -- and
the reasonable inferences generated by that sequence of events --
is central in the reasonable suspicion calculation. On that day,
the Chevy, with its New York license plate, drove to the back of
Ochan's residence just before the scheduled buy/bust. Shortly
after, a male appeared from behind the building -- where the Chevy
had just gone -- and entered the building. The man was then seen
eight to ten minutes later going behind the building with Ochan.
Next, Ochan reappeared and went directly across the street to meet
with the informant and conduct the drug sale. All of these
observations contributed to the development of a reasonable
suspicion that there was a meaningful, articulable link between
the occupants of the Chevy and Ochan's illegal activities.
When the agents arrested and searched Ochan, the drugs
and cash recovered on him added to the evidence indicating that he
was actively engaging in drug sales. That recovery also added to
the suspicion that the individual from the Chevy with whom Ochan
had just been seen might be involved in the drug activity. Still
more, the Chevy did not leave Ochan's building until minutes after
Ochan's arrest, solidifying the reasonability of the officers'
suspicion that its occupants were implicated in the drug activity.
Since we agree with the district court that reasonable suspicion
existed before the officers elicited the incriminating statements
from Ochan, we do not need to address whether he was reliable.
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See United States v. Mayendía-Blanco, 905 F.3d 26, 37
(1st Cir. 2018) (recognizing that "[t]he simplest way to decide a
case is often the best" (alteration in original) (quoting
Stor/Gard, Inc. v. Strathmore Ins. Co., 717 F.3d 242, 248
(1st Cir. 2013))).
Tom argues in response that the officers could not have
been certain that the person who entered Ochan's building was one
of the individuals from the Chevy or that the person who entered
the building went to Ochan's apartment. He also points out that
Ochan and this person were not seen speaking to each other as they
left the building. But it is well established that reasonable
suspicion does not preclude the existence of some confounding
facts. See New Jersey v. T.L.O., 469 U.S. 325, 346 (1985)
(recognizing that "the requirement of reasonable suspicion is not
a requirement of absolute certainty: 'sufficient probability, not
certainty, is the touchstone of reasonableness under the Fourth
Amendment'" (quoting Hill v. California, 401 U.S. 797,
804 (1971))).
Tom makes one additional argument. In his view, the
officers who searched him could not have had reasonable suspicion
because they approached him only after Ochan's interrogation. But
law enforcement officers are not required to act as soon as they
develop reasonable suspicion. A rule to the contrary would
disincentivize diligence. See United States v. Silva, 742 F.3d 1,
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8 (1st Cir. 2014). And we do not consider an officer's subjective
intent when evaluating objective reasonableness. See Whren v.
United States, 517 U.S. 806, 814 (1996) ("[T]he Fourth Amendment's
concern with 'reasonableness' allows certain actions to be taken
in certain circumstances, whatever the subjective intent."). In
sum, we will not penalize agents for continuing to investigate
after establishing reasonable suspicion.
The district court's decision to reject Tom's motion to
suppress was sound. The officers had reasonable suspicion that
the occupants of the Chevy were involved in illegal drug activity,
and the decision to approach the car and search Tom was therefore
objectively reasonable under the Fourth Amendment.
IV. CONCLUSION
For the foregoing reasons, we affirm the conviction.
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