U.S. v. Tanguay

918 F.3d 1

UNITED STATES of America, Appellee,

v.Eric TANGUAY, Defendant, Appellant.

No. 18-1271

United States Court of Appeals, First Circuit.

March 8, 2019

Stanley W. Norkunas, Lowell, MA, on brief for appellant.

Seth R. Aframe, Assistant United States Attorney, and Scott W. Murray, United States Attorney, on brief for appellee.

Before Torruella, Kayatta, and Barron, Circuit Judges.

KAYATTA, Circuit Judge.

Eric Tanguay was seated in his car with a friend in a parking lot when a local police officer approached and asked him several questions. His answers led to a search, followed by the seizure of evidence of potential drug trafficking. On this appeal following his conviction under 21 U.S.C. § 841(a), Tanguay contends that the district court erred in failing to suppress that evidence. For the following reasons, we find the search and seizure to have been lawful, so we affirm.

I.

We recite the facts "as the trial court found them, consistent with record support." United States v. Ruidíaz, 529 F.3d 25, 27 (1st Cir. 2008) (quoting United States v. Lee, 317 F.3d 26, 30 (1st Cir. 2003) ).

Shortly after midnight on March 31, 2016, police officer Adam Rayho drove by a local strip mall in Nashua, New Hampshire while on patrol. In the parking lot he saw an SUV parked apart from any other vehicle and approximately 100 to 150 feet from a Taco Bell restaurant, which had not yet closed. The only other business in the vicinity that remained open was a 24-hour gym.

Approximately twenty minutes later, after responding to an unrelated call, Rayho drove by the lot a second time. The lone SUV was still parked in the same spot. He decided to investigate. He entered the lot and pulled his marked cruiser seven to ten feet behind the parked SUV without obstructing its path of egress. Rayho illuminated the SUV with his floodlights and activated the rear-facing—but not the front-facing—blue, flashing emergency lights atop his cruiser. The record does not indicate whether the rear-facing flashing lights were visible to the occupants of the parked SUV.

With his weapon holstered, Rayho approached the driver-side of the SUV with a flashlight in hand. He further illuminated the interior of the SUV with his flashlight and asked the driver, Eric Tanguay, and the passenger, Jacqueline, for their names, which they provided. Recognizing Tanguay's name as a reported user and dealer of illegal drugs, Rayho asked them what they were doing in the parking lot so late. They replied that they "were eating food from Taco Bell." Rayho could see that was indeed the case and joked with them that he also enjoyed Taco Bell.

Rayho asked the couple for their licenses. Both replied that they were not carrying identification. When Rayho then asked who owned the SUV, Tanguay stated that he did not own it. Rayho finally asked Tanguay "if it would be all right if [he] returned to [his] cruiser to conduct a [records] query on him," to which Tanguay said it would be. At some point during this initial encounter—yet exactly when is unclear from the record—a second police officer arrived and parked his cruiser behind Rayho's vehicle.

From that point on, things went downhill quickly for Tanguay. While sitting in his cruiser running the records check, Rayho noticed Jacqueline crouch down and reach for something under the front passenger seat. Rayho immediately returned to the SUV and again asked Tanguay for identification. This time, Tanguay said his license was in a backpack in the trunk of the vehicle, and he requested permission to obtain it. Rayho agreed that Tanguay could show him where in the trunk he could find the license but stated that, for safety purposes, he would be the one to retrieve it.

When Tanguay opened his door to go to the trunk of the SUV, Rayho saw what appeared to be the butt end of a gun stashed in the driver-side door. Tanguay and Rayho walked to the rear of the SUV and opened the trunk. Rayho then retrieved Tanguay's license from a wallet stowed in a small pocket of the backpack. Rayho noticed that the wallet contained a large sum of cash (later determined to be $2,800) and that the large, main compartment of the backpack was padlocked.

When asked about the gun in the driver-side door, Tanguay informed Rayho that it was merely a BB gun. Rayho ordered Jacqueline out of the SUV and confirmed that the weapon was, in fact, a BB gun. Rayho then asked for and received Tanguay's consent to search the vehicle. Under the passenger seat, he found a partially open sunglasses case, containing a loaded hypodermic needle, a pill, and Narcan (an opioid-overdose-reversal drug). When confronted with this discovery, Tanguay informed Rayho that Jacqueline was a drug user and was likely carrying drugs. Rayho next asked about the padlock on the backpack. Tanguay became visibly nervous and stated that an unknown individual had placed the padlock there. Rayho then arrested Tanguay on suspicion of possession of a controlled substance.

At the police station, Rayho again asked Tanguay about the backpack. Tanguay admitted that it was his, but he doubled down on his claim that someone else had padlocked it. He also stated that he believed some other person had put illegal items in the bag. Tanguay then consented to a search of the backpack, and Rayho removed the lock with bolt cutters. Inside, Rayho found prescription pills, fentanyl, methamphetamine, a scale, baggies, rubber bands, a marker, and mail posted to Tanguay.

A grand jury indicted Tanguay for one count of possession with intent to distribute a controlled substance in violation of 21 U.S.C. § 841(a)(1). Subsequently, Tanguay filed a motion to suppress the government's evidence, arguing that Rayho lacked reasonable suspicion to initiate and continue the inquiries that led to the discovery of the evidence gathered against him. The district court denied the motion. Tanguay then entered a conditional guilty plea in which he preserved the right to appeal the district court's ruling on the motion to suppress. The district court issued a judgment of guilty and sentenced him to thirty months in prison with three years of supervised release. Tanguay then timely filed this appeal.

II.

A.

Tanguay's motion to suppress the incriminating contraband raises two initial questions: When did Rayho's interaction with Tanguay become a non-consensual, investigatory stop? And when did Rayho acquire reasonable suspicion to conduct such a stop? If the latter occurred before the former, Tanguay has no valid Fourth Amendment challenge, see Arizona v. Johnson, 555 U.S. 323, 326, 129 S.Ct. 781, 172 L.Ed.2d 694 (2009) (explaining that a non-consensual, investigatory stop does not conflict with the Fourth Amendment if the officer "reasonably suspects that the person apprehended is committing or has committed a criminal offense"), unless the investigatory inquiry became so intrusive as to require probable cause, see United States v. Young, 105 F.3d 1, 7–8 (1st Cir. 1997). But if Rayho effected a non-consensual, investigatory " Terry stop" before he had reasonable suspicion that a crime was afoot, then the officer violated Tanguay's Fourth Amendment rights. See United States v. Fields, 823 F.3d 20, 25 (1st Cir. 2016).

We have previously held that a driver's inability to provide identification and a legible vehicle registration provides a sufficient basis for an officer to suspect that the vehicle was stolen. See United States v. Tiru-Plaza, 766 F.3d 111, 117 (1st Cir. 2014) ; see also United States v. Cardona-Vicente, 817 F.3d 823, 828 (1st Cir. 2016) ("The driver of the car could not produce a driver's license, suggesting the Jeep may have been stolen."); United States v. Fernandez, 18 F.3d 874, 879 (10th Cir. 1994) ("[T]he defendant's lack of a valid registration ... or some other indicia of proof to lawfully operate and possess the vehicle in question ... giv[es] rise to objectively reasonable suspicion that the vehicle may be stolen."). Tanguay's initial failure to produce a driver's license coupled with his admission that he was not the owner of the SUV similarly provided Rayho with good reason to believe that something was awry and that the SUV may have been stolen.

Tanguay responds that Rayho did not claim to have believed that the SUV had been stolen. But, "[i]n determining whether an officer had reasonable suspicion to justify a Terry stop ..., the officer's subjective motives do not enter into the decisional calculus." United States v. Romain, 393 F.3d 63, 74 (1st Cir. 2004) (citing Whren v. United States, 517 U.S. 806, 812, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996) ).

Furthermore, Tanguay cannot reasonably contend that Rayho's subsequent investigative inquiry exceeded the scope of a permissible Terry stop. See generally Terry v. Ohio, 392 U.S. 1, 18–27, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) ; Young, 105 F.3d at 5–8. A Terry stop does not require probable cause so long as the police officer's actions are "reasonably related in scope to the circumstances which justified the interference," Young, 105 F.3d at 7, or are "reasonable in light of the circumstances that ... develop[ ] during [the stop]," United States v. Acosta-Colon, 157 F.3d 9, 14 (1st Cir. 1998). Officer Rayho's decision to run a records check (to which Tanguay consented) was entirely justified given Tanguay's lack of identification and proof of ownership. His return to the SUV to repeat his request for identification was a reasonable and proportionate response to Jacqueline's suspicious movements. And Rayho can hardly be criticized for ordering her removal from the vehicle and verifying that the weapon in the driver-side door was in fact a BB gun, for "officers must be allowed, during the course of [a Terry ] stop, to take measures that are reasonably calculated to protect themselves or others from harm." United States v. Rasberry, 882 F.3d 241, 247 (1st Cir. 2018) (citing Flowers v. Fiore, 359 F.3d 24, 30 (1st Cir. 2004) ). Finally, Rayho's further questioning of Tanguay was a measured...