THOMPSON, Circuit Judge.
Indicted as a felon in possession of a firearm and ammunition, Melvin McGregor moved to suppress evidence taken from a warrantless car search. After the district judge denied the motion, McGregor conditionally pled guilty, reserving his right to challenge the ruling on appeal. This is that appeal. We affirm, though our reasoning differs from the judge's on one issue.
Consistent with our usual practice, we take the facts from the judge's decision and from the hearing on the motion, presenting them in the light most compatible with his ruling. See, e.g., United States v. Dancy, 640 F.3d 455, 457-58, 460-61 (1st Cir.2011).
Just before midnight, on July 12, 2007, Officer Brian Smigielski and Sergeant Detective John Fitzgerald of the Boston Police's Youth Violence Strike Force (a specialized unit tasked with monitoring gang activity) heard about a shooting at a housing development in the Dorchester section of Boston. After driving to the scene in an unmarked car, Smigielski spotted two men riddled with bullets slumped in a parked auto — still alive, but not for long. He knew both men were members of the notoriously violent Magnolia Street Gang — actually, he recognized one of them as a founding member. He helped emergency medical personnel put the two in an ambulance, which then took off for Boston Medical Center with the officers in tow.
It was now around 1 a.m. on July 13. Smigielski and Fitzgerald parked in a driveway near a lot across from the hospital's emergency-room entrance. Staking out a hospital after a shooting is a great way to collect intelligence about gangs, Smigielski later said. And Smigielski was not disappointed on this night. Two men soon got out of a newish-looking "silver sedan." Smigielski recognized one of them as Antonio Duncan, a Magnolia Street Gang member who had been arrested on gun charges in the past. The men made a beeline for a group of people hanging out near the emergency-room entrance. Within seconds, the duo left with two other men, one of whom was McGregor. They all piled into a "gray" Honda Accord with tinted windows and sped off.
Fearing that the foursome might try to avenge the shooting of their comrades in crime, Smigielski and Fitzgerald tailed the Honda. Smigielski radioed for backup. Boston Police Officer Mark Freire and his partner quickly joined in, driving an unmarked car equipped with flashing blue lights — something Smigielski and Fitzgerald's car lacked. Smigielski determined that the Honda was going at least 50 m.p.h. in a 30 m.p.h. zone. Freire also saw the Honda run a flashing red light, and he radioed that news to Smigielski.
Acting on Smigielski's order, Freire turned his car's blue lights on and pulled the Honda over. Freire approached the car with his gun holstered. Smigielski and Fitzgerald parked farther back and converged on the Honda too. Smigielski saw McGregor in the Honda's driver's seat, Duncan in the front passenger's seat, and Antwan Green — a known Magnolia Street Gang member out on bail pending trial on a firearms charge — in the seat directly behind McGregor's. Smigielski did not recognize the fourth person (later identified as Dominique Jean-Pierre) in the Honda.
As the officers closed in, some of the occupants became noticeably nervous. Watch the person in the back seat, driver's side of the car, Freire told Smigielski. "He's leaning forward," and his chest is "pounding," Freire added. McGregor had opened the driver's door, which concerned Smigielski because drivers do not usually do that during traffic stops. But with the door open, Smigielski could see McGregor's left leg shaking, his chest heaving up and down, and his heart pounding through his t-shirt.
Given what he knew about the shooting, the Magnolia Street Gang, and McGregor, Smigielski feared that the car contained a gun. Concerned about officer safety, he and his colleagues removed the men from the Honda and patted them down for weapons. They came up empty, so they moved the men to the curb and focused their attention on the car. By this time other officers had showed up to help secure the scene. Among those arriving was Scott O'Brien, an officer specially trained in how to detect hidden compartments, commonly called "hides."
Smigielski got into the car and started looking for easily — accessible weapons. Smigielski asked O'Brien if he recognized any of the men. And O'Brien did — he knew Green from an earlier firearms arrest. "Scotty," Smigielski then said to O'Brien, "there's got to be a gun in this car."
From the start, O'Brien saw telltale signs of a hide in the Honda where one could stash a gun. Almost immediately, his eye was caught by an object on the dashboard just below the car stereo. It was only a couple of inches long and looked like a "Lego piece."
His interest piqued, O'Brien looked underneath the Honda to see what he could see. And he saw plenty: an exhaust pipe that had been tinkered with suspiciously (it was off-center and lower than usual); and a piece of metal that had more rust on it than the rest of the undercarriage, with a considerable amount of "Bondo" (a substance used in auto-body work) around the edges to help seal the piece in place — both dead giveaways that the car had a "false bottom." O'Brien crawled under the Honda and tapped the area with his flashlight, and he heard a hollow rather than a solid sound.
Convinced more than ever that the Honda had a hide, O'Brien got into the car and focused his attention on the center-console area — the very area where he thought the hide would be. He started with the cup holder, which was next to the console. Normally cup holders are removable so people can clean them more easily. But O'Brien could not lift this one. It had been glued down, a sure sign that someone did not want others to get at that area. O'Brien then lifted up the lid to the console and removed the CDs that were there. He wanted to open the access panel (something most cars have so persons can get to and work on the emergency-brake cables that run underneath). But this panel had glue around it, so O'Brien put a knife in the panel's latch and with little effort popped the panel open. Peering inside, O'Brien found a handgun, which turned out to be loaded, and some crack cocaine. Only about five minutes passed between the time the officers sat McGregor and the others on the curb and the time O'Brien found the damning evidence.
The police arrested McGregor and his companions and had the Honda towed to a secure location. The next day Sergeant Detective William Feeney of the Boston Police executed a warrant to search the car. Usually when officers suspect that an auto has a hide, Feeney gets involved. Intimately familiar with automotive systems (mechanical and electrical), Feeney is considered the department's foremost expert on hides. He has studied them for years and has taught other officers (including FBI and DEA personnel) all about them. He had even trained O'Brien. Look for magnets inside cars, he tells his students. See if the center console or dashboard is loose or glued-down in a manner that is out of the norm. Look under the car and see if anything has been modified suspiciously (inspecting the exhaust system is a good place to start).
A federal grand jury charged McGregor with being a felon in possession of a firearm and ammunition. See 18 U.S.C. § 922(g)(1). He later moved to suppress the evidence on two principal Fourth Amendment grounds: The stop based on traffic violations was a pretext because the officers really wanted to check for weapons — an ulterior motive that invalidated the stop. Also, the warrantless search of the Honda was unreasonable both because the officers lacked reasonable suspicion that the car contained weapons and because the scope and intrusiveness of the search surpassed what was reasonably needed to ensure their safety. See, e.g., Michigan v. Long, 463 U.S. 1032, 1049, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983) (requiring that a protective search of an auto be brief, limited in scope, and based on articulable suspicion that a person could gain immediate access to weapons).
Smigielski, Freire, O'Brien, and Feeney testified at the two-day hearing on the motion to suppress. Jean-Pierre (one of the Honda passengers) did too. McGregor did not. In denying McGregor's motion, the judge's reasoning ran like this. The traffic violations gave the officers probable cause to stop the Honda, which immunized the stop from attack even if their true aim was to look for weapons. See Whren v. United States, 517 U.S. 806, 813, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996) (holding that "[s]ubjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis"). Also, the totality of the circumstances showed that the officers actually and reasonably suspected that the Honda passengers might be armed, so they could pat-down not only the men but also the car's compartment area for possible weapons that might endanger them — and they did nothing more than Long and its successors authorized them to do. And finally, what O'Brien learned during this limited protective search gave him probable cause to pop open the center console's access panel. McGregor's conditional guilty plea followed, which preserved the suppression issue for appellate review. See Fed.R.Crim.P. 11(a)(2). The judge then sentenced McGregor to 188 months in prison and 3 years of supervised release. This appeal ensued.
We review the district judge's denial of McGregor's suppression motion
The basics are familiar. The Fourth Amendment bans only unreasonable searches and seizures, see, e.g., Terry v. Ohio, 392 U.S. 1, 9, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and a search done without a warrant supported by probable cause is presumptively unreasonable unless an exception to the warrant requirement applies, see, e.g., United States v. Lopez, 989 F.2d 24, 26 (1st Cir.1993). So we jump directly to the exception that applies here.
An officer can stop a car if he sees a driver commit a traffic offense, even if the stop is just an excuse to investigate something else. See, e.g., Whren, 517 U.S. at 810, 116 S.Ct. 1769. He can then order the occupants out of the auto. See, e.g., Maryland v. Wilson, 519 U.S. 408, 410, 414-15, 117 S.Ct. 882, 137 L.Ed.2d 41 (1997). And if he has some articulable, reasonable suspicion that the persons stopped may be dangerous, he can pat them down and search the car's interior — including closed compartments — for weapons that they could quickly lay their hands on. See, e.g., Long, 463 U.S. at 1037, 1049-50, 103 S.Ct. 3469 (permitting a patdown under the car seats and dashboard and in the glove compartment — areas where persons could place or hide weapons and reach right away). But the scope of the search must be limited to this protective purpose. See, e.g., id. at 1049-50, 103 S.Ct. 3469; United States v. Lott, 870 F.2d 778, 783, 785 (1st Cir.1989).
In sorting out the reasonableness of an officer's actions in this context, we typically ask two questions: Was he justified in making the stop? And, if yes, was the protective search reasonably related to the events justifying the stop, factoring in what happened and what he learned during the encounter? See, e.g., United States v. Ivery, 427 F.3d 69, 72 (1st Cir. 2005); United States v. Chhien, 266 F.3d 1, 6 (1st Cir.2001). To answer the second question, we must ask two more: Was there an objectively reasonable basis to suspect that weapons were present? And (assuming Lott is still good law — more on this later) did the officer in fact entertain such a suspicion? See, e.g., Ivery, 427 F.3d at 72 (discussing Lott, 870 F.2d at 783-84). Of course, the officer must work purposefully to confirm or dispel his suspicions promptly. But there are no hard time limits. See, e.g., United States v. Sharpe, 470 U.S. 675, 686, 105 S.Ct. 1568, 84 L.Ed.2d 605 (1985); Owens, 167 F.3d at 748-49. Obviously, then, context matters, and we must take a practical approach to all of this, keeping in mind the totality of the circumstances as seen and interpreted by the police at the scene. See, e.g., United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002); United States v. Soares, 521 F.3d 117, 120 (1st Cir.2008).
In something of an about-face, McGregor no longer questions the legality of the traffic stop. Instead, he trains his sights on the second step in the above-described analysis, complaining that the officers lacked reasonable suspicion needed to justify a limited protective search of the car — a search that he insists was too long and too intrusive to boot. We see things quite differently, however.
No simple, mechanical formula tells us what reasonable suspicion is, though we know that it is less than probable cause and more than a naked hunch. See, e.g., Chhien, 266 F.3d at 6. And no one-size-fits-all template exists to sketch out whether an officer acted with reasonable suspicion. See, e.g., United States v. Espinoza, 490 F.3d 41, 46 (1st Cir.2007). Rather, courts must gauge its presence in a commonsense, case-by-case way, taking in the whole picture. See, e.g., Chhien, 266 F.3d at 6. So let us go over what the police knew and saw before the protective search took place. (a) Someone had gunned down two heavy-hitters in the Magnolia Street Gang, a brutal cartel conspicuous for its drug-dealing and gun-carrying. (b) Two men drove up to the hospital where the victims were, grabbed two others, and then double-timed it to the Honda with their compatriots in tow. (c) The men hightailed it out of there, exceeding the speed limit and running a flashing red light. (d) Three of the four — Duncan, Green, and, most importantly for our purposes, McGregor — stood out as Magnolia Street Gang members who had had serial scrapes with the law, including arrests (and in McGregor's case, conviction) for firearms offenses. And (e) some of the men seemed suspiciously nervous — breathing hard, shaking, etc. — as the officers approached the car. Given facts (a)-(d), Smigielski worried that the men thirsted for revenge against the shooter. Add fact (e) to the mix, and Smigielski feared — his word, not ours — that they had a gun in the car too. On this record, we cannot fault the judge's finding that the police actually and reasonably suspected that the men might be armed — a suspicion resting on rational reasons, rather than pure gut feelings — which, we agree, justified a limited weapons search under the Long line of decisions.
McGregor musters multiple counter-arguments aimed at persuading us otherwise. None can carry the day, however.
It is an open question whether Lott's "actual fear" analysis is consistent with the Supreme Court's later comment in Whren that "the constitutional reasonableness of traffic stops [does not depend] on the actual motivations of the individual officers involved." 517 U.S. at 813, 116 S.Ct. 1769. True, Whren held that an officer's subjective intentions were irrelevant to the constitutionality of the traffic stop itself. But
Even so, McGregor's claim that Lott's standards have not been met fails. There is nothing in this record to make us doubt that the officers feared for their safety. Our conclusion otherwise in Lott largely turned on the fact that the officers there opted not to frisk the defendants after they had exited the car. 870 F.2d at 785. Here, in contrast, the officers frisked each Honda passenger. That the police had superior numbers and had moved the men away from the auto does not change matters. The Supreme Court rejected a strikingly similar argument in Long, reasoning that detainees might break free from the police or reenter the car with police permission (either during or after the stop) and get at weapons straightaway — scenarios that justify a limited protective sweep. See 463 U.S. at 1051-52, 103 S.Ct. 3469; accord United States v. Diaz, 519 F.3d 56, 62 (1st Cir.2008) (collecting cases). Lott requires that there be an objectively reasonable basis for fear. See id. at 783-84; see also Ivery, 427 F.3d at 72. And that prong is undoubtedly met in this case.
As a fallback, McGregor attempts to confine Whren's holding to probable-cause cases, not reasonable-suspicion cases. That is a non-starter for two reasons. First, having seen the traffic infractions, the officers had probable cause to pull the Honda over (again, McGregor does not attack that ruling here), which puts Whren front and center. And second, citing Whren, we have held that courts do not "plumb[]" an officer's "actual motive" in performing a reasonable-suspicion analysis. Bolton v. Taylor, 367 F.3d 5, 7 (1st Cir.2004).
The totality of the circumstances here makes this case unlike United States v. Monteiro, 447 F.3d 39 (1st Cir.2006), and United States v. McKoy, 428 F.3d 38 (1st Cir.2005), which McGregor plays as trump cards. Monteiro affirmed an order suppressing evidence discovered during a warrantless car search, stressing that the police had no reason to believe that either the driver or the passengers had been or were about to be criminally active when the stop occurred. See 447 F.3d at 42-43. McKoy also required suppression of evidence seized during a warrantless car search, holding that the police infringed the defendant's constitutional rights by bottoming their suspicion solely on his apparent nervousness and the area's dangerousness. 428 F.3d at 40-41. But in our case the judge supportably found that the officers sensibly suspected that the men might be armed and bent on retaliating for the shooting, and that they had reasonably grounded their suspicion on a host of facts beyond the men's obvious nervousness — i.e., the earlier shooting of two Magnolia Street Gang members, the suspicious activities at the hospital, the clique of Magnolia Street Gang operatives in the Honda, the knowledge that three of the four men had been collared on gun charges before, and the unlawful way in which the Honda raced around the area (the area's dangerousness — or not — played no part in the analysis). Consequently, neither Monteiro nor McKoy helps McGregor.
To sum up, McGregor falls short of showing that the judge erred in ruling that the officers had reasonable suspicion to conduct a limited protective search under the Long set of cases. So we move on.
McGregor contends that the car search was too long — though he does not come straight out and say that the encounter had matured into a de facto arrest before there was probable cause. Relying on the police dispatch log, McGregor notes that the officers stopped the Honda at 1:47 a.m. and arrested the men at 2:46 a.m., or 2:45 a.m., according to the booking sheet. And during that time (the argument continues) the police searched the auto for weapons — a period that exceeded what Long and its heirs allow. McGregor's big problem is that the judge made no findings concerning how long the search took — which means that we must read the record in the light most hospitable to the judge's suppression ruling, drawing all reasonable
McGregor challenges the judge's ruling that what the officers did before they opened the access panel — picking up the alarm magnet, tapping the car's undercarriage, fiddling with the cup holder, removing the CDs from the center console — was permissible under Long. Their actions were too intrusive to squeeze within Long' s narrow confines, he says. He also attacks the judge's conclusion that what the officers learned during the Long search gave them probable cause to open the panel. We, however, think that Long covers the whole gamut of police activities here, so we skip the probable-cause analysis. See, e.g., Soule, 908 F.2d at 1036 n. 7 (emphasizing that we may affirm a suppression ruling for any reason appearing in the record).
McGregor is right that the only lawful purpose of a Long search is to protect officers from the danger that the persons they have stopped will grab for weapons. See 463 U.S. at 1047-48, 103 S.Ct. 3469. And he is also right that the search must be no more invasive than necessary to serve that safety function. Id. at 1052 n. 16, 103 S.Ct. 3469. A Long search is a limited search. Id. But it is limited in this sense: officers with reasonable grounds for suspecting that the detainees are dangerous must confine their weapons search to accessible areas of the vehicle. Id. at 1049, 103 S.Ct. 3469. The question here is whether the console hide was a searchable part of the passenger compartment under Long and its successors. Our answer is yes, for these reasons.
The Long Court set the parameters for a protective search in part by copying the search-incident-to-arrest standard in New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981). See Long, 463 U.S. at 1048-49, 103 S.Ct. 3469. Belton held that police may search an auto's passenger compartment incident to an occupant's lawful arrest both to protect officer safety and to preserve evidence. See 453 U.S. at 460, 101 S.Ct. 2860. Long's rationale is limited to officer safety. But if officers restrict their searches to areas "that may contain a weapon and to which the motorist may have access," the physical borders of the passenger compartment
Applying these principles, another circuit court has held that a secret "trap" built into an auto's backseat is a searchable part of the passenger compartment under Belton. See United States v. Veras, 51 F.3d 1365, 1372 (7th Cir.1995). And others have held that locked glove compartments, see, e.g., United States v. Palmer, 360 F.3d 1243, 1246-48 (10th Cir. 2004), and center consoles, see, e.g., United States v. Holmes, 376 F.3d 270, 280-81 (4th Cir.2004), including one that had been tampered with and that officers had to pull on to open, see United States v. Boyett, 295 Fed.Appx. 781, 783, 785 (6th Cir.2008), are searchable parts of a passenger compartment under Long too.
Getting back to McGregor, the officers had the requisite reasonable suspicion that the men were armed, as we have already explained at some length. They also took sensible steps to secure their safety. Each investigatory act — grabbing the magnet, knocking at the car's undercarriage, poking at the cup holder, and taking the CDs from the center console — logically led to the next, was done quickly, and was tied tightly to the police's reasonable suspicion that the Honda had a hide. See generally Flowers v. Fiore, 359 F.3d 24, 30 (1st Cir.2004) (emphasizing that "officers may take necessary steps to protect themselves if the circumstances reasonably warrant such measures").
A few more words about the magnet-grabbing and the undercarriage-tapping: McGregor faults the judge for finding that O'Brien knew that the Lego-size object on the dashboard was an alarm magnet before Smigielski snatched it up — which, McGregor quickly adds, Smigielski had no right to do. That argument depends on too myopic a view of O'Brien's suppression-hearing testimony. Sure, O'Brien did testify on direct that he said, "Smig, what's that?" before Smigielski reached for the magnet. But he clarified on cross that in his mind he knew all along that it was an alarm magnet that could possibly help open a gun-holding hide, and the judge could certainly credit that testimony. Also, if officers can take keys from a car ignition or seat to unlock a glove compartment, see, e.g., Palmer, 360 F.3d at 1246-48; United States v. Brown, 913 F.2d 570,
That O'Brien reached into the console and popped open the access panel did not exceed the outer limits of what the law allows, either. Just like if the gun had been in a backseat trap or in a locked glove compartment, McGregor and his buddies could have grabbed the weapon from the console hide in a flash had they gotten back into the car — the uncontradicted testimony at the hearing discloses that one could open the hide electronically in a matter of seconds. See Arnold, 388 F.3d at 241 (providing a useful analytic model for resolving a similar case). Given the specific facts here, there is no reason to treat this easily-accessible passenger-compartment area differently from any other. See id. at 240-41.
For the reasons bared above, we uphold the district judge's order denying McGregor's motion to suppress.