RIPPLE, Circuit Judge.
Terrell Campbell and Esley Porteous both pleaded guilty to conspiracy to possess
The defendants timely appealed.
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.
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
Officer Hebert called dispatch; he provided a description of the vehicle and its license plate number, and he said that the 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.
Officer Gerrish stopped the vehicle in a hotel parking lot. He approached the vehicle and requested a license from the 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
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. 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."
Two additional officers also arrived on the scene, Officer Dalton and Scarborough Police Department Sergeant Tom Chard.
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
After finding the box containing the cards, the officers handcuffed the defendants and transported them for processing. The 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.
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;
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.
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']
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.
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.
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, 88 S.Ct. 1868, 20 L.Ed.2d 889 (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, 104 S.Ct. 3138, 82 L.Ed.2d 317 (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, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981) (collecting cases); Delaware v. Prouse, 440 U.S. 648, 653, 99 S.Ct. 1391, 59 L.Ed.2d 660 (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, 127 S.Ct. 2400, 168 L.Ed.2d 132 (2007); see United States v. Symonevich, 688 F.3d 12, 19 (1st Cir.2012).
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, 101 S.Ct. 690; see also Jones, 700 F.3d at 621; United States v. Coplin, 463 F.3d 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, 101 S.Ct. 690. A mere "hunch," therefore, will not justify a stop. Terry, 392 U.S. at 22, 27, 88 S.Ct. 1868.
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, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972), varies in its "value and reliability":
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, 101 S.Ct. 690. In the Supreme Court's words:
Id. at 418, 101 S.Ct. 690. 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 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 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
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.
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, 99 S.Ct. 421, 58 L.Ed.2d 387 (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 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).
Mr. Campbell never has claimed a possessory interest in the vehicle.
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.
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.
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (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, 104 S.Ct. 1136, 79 L.Ed.2d 409 (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, 86 S.Ct. 1602. 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, 100 S.Ct. 1358, 63 L.Ed.2d 622 (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, 104 S.Ct. 1136. 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, 100 S.Ct. 1358.
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, 104 S.Ct. 3138, 82 L.Ed.2d 317 (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, 104 S.Ct. 3138. The Court distinguished traffic stops from the setting that occurs in Miranda jailhouse interrogations. Id. at 437-39, 104 S.Ct. 3138. "[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, 104 S.Ct. 3138. Traffic stops are usually temporary and brief. Id. at 437-38, 104 S.Ct. 3138. 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, 104 S.Ct. 3138. 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, 104 S.Ct. 3138 (internal quotation marks omitted). Traffic stops are "comparatively nonthreatening," and therefore do not require
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, 103 S.Ct. 3517). 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, 104 S.Ct. 3138. 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, 104 S.Ct. 3138. 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 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, 114 S.Ct. 1526, 128 L.Ed.2d 293 (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."
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
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.
"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, ___ U.S. ___, 133 S.Ct. 996, 184 L.Ed.2d 773 (2013).
Mr. Campbell submits that the district court erred in imposing his mid-guidelines-range sentence.
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.
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
Further, the court explained that the eighteen-month sentence it imposed did provide leniency for Mr. Campbell's 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.
The judgment of the district court is affirmed.
R.78 at 12-13.
Our analysis of this question is not contrary to the holding of the Supreme Court in Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (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, 88 S.Ct. 967. The Supreme Court held that such testimony could not be used against the defendant during trial to establish his guilt. Id. at 394, 88 S.Ct. 967. 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").
