THOMPSON, Circuit Judge.
Jorge Sanchez asks us to undo a district judge's order denying his motion to suppress. Concluding that we cannot, we affirm.
One summer evening back in August 2011, Officer Mark Templeman of the Springfield Police Department got a phone call from a confidential informant ("CI," for short). A Hispanic man standing near a green Ford Taurus on the corner of Main and Calhoun streets had a black semiautomatic handgun in his waistband and crack cocaine in his pocket, the CI said. And he described the man as medium complected, roughly 5'5" tall, and wearing a white t-shirt and black cargo-style
Responding to the tip, Templeman and other officers headed to the scene in several cars. Templeman drove alone, arriving at the locale about five minutes after the CI's call. There he saw a green Ford Taurus and a man matching the physical description given by the CI. Templeman recognized the man as Sanchez, a suspected gang member he had arrested in 2004 for possessing with intent to distribute heroin and cocaine—an offense that resulted in a conviction, meaning (as Templeman knew) that Sanchez could not legally carry a firearm.
After surveilling the site for about 10 minutes, Templeman (who had binoculars) spied Sanchez put his left hand on his left hip: Sanchez's t-shirt hung over his waistband, and as Sanchez touched this area, Templeman could see the shape of some object underneath the shirt. Sanchez's movement reminded Templeman of how he (Templeman) checks his concealed firearm. As a result of his observations, and based on his training and experience, Templeman believed that Sanchez had a firearm. So he radioed his colleagues, telling them to "move in" and warning them about the gun tucked in the left side of Sanchez's waistband.
Staying in his car, Templeman watched an officer named Kalish close in, pat Sanchez's waistband, and grab the gun. Someone—the record does not say who—then arrested and cuffed Sanchez. And a search incident to the arrest turned up the crack. The total time from the CI's call to Sanchez's arrest was 15 minutes or so.
During booking, Sergeant Julio Toledo (the booking officer that evening) asked a not-yet-Mirandized Sanchez a series of standard questions about his name, date of birth, social-security number, height, weight, job held or school attended, etc. And when Toledo asked him whether he was employed, Sanchez matter-of-factly answered that he was "a drug dealer." By the way, Toledo played no part in the Sanchez investigation—other than knowing the booking charges, Toledo knew nothing about the case against Sanchez. Also, Toledo had no info suggesting that his asking these standard booking questions might cause Sanchez to incriminate himself. What is more, Toledo did not ask the questions to further the investigation. And he did not ask Sanchez any follow-up questions tied to the "drug dealer" comment—a comment Toledo shared with Templeman after booking.
A federal grand jury indicted Sanchez on three counts. Count 1 alleged that he had possessed cocaine base with intent to distribute. Count 2 alleged that he had possessed a firearm as a convicted felon. And count 3 alleged that he had possessed a firearm in furtherance of a drug-trafficking offense.
Sanchez moved to suppress both the contraband and the drug-dealer statement. On the contraband issue, he challenged the evidence's admissibility on the ground that no reasonable suspicion justified the "seizure and search" of his "person." And on the employment-question matter, he contested his answer's admissibility on the basis that Toledo had asked the offending question—before any Miranda warnings—
Later, the government voluntarily dismissed counts 1 and 3. Sanchez then entered a conditional guilty plea to count 2 (the felon-in-possession-of-a-firearm count), reserving his right to appeal the suppression ruling. And the judge sentenced him to the statutory minimum of 180 months in prison plus 3 years of supervised release.
Which brings us to today, with Sanchez complaining about the judge's refusal to suppress the evidence seized and the comment made that fateful summer evening.
We start with the evidence-suppression issue. As Sanchez sees it, the judge should have granted his suppression motion because the CI's tip was too "generic" and not "corroborated" enough to supply reasonable suspicion for the stop and the frisk, which made the arrest—based on the evidence seized—"unlawful." We of course review the judge's legal conclusion de novo, accepting his factual findings and credibility calls unless clearly erroneous and viewing the evidence in the light most likely to support his decision. See, e.g., United States v. Martinez, 762 F.3d 127, 130-31 (1st Cir.2014); United States v. Brake, 666 F.3d 800, 804 (1st Cir.2011); see also United States v. Coccia, 446 F.3d 233, 237 (1st Cir.2006) (noting that "`we will uphold a denial of a motion to suppress if any reasonable view of the evidence supports it'" (quoting United States v. Garner, 338 F.3d 78, 80 (1st Cir.2003))). Keeping these principles in mind, we see no constitutional violation.
The Fourth Amendment declares that searches and seizures shall not be "unreasonable." See U.S. Const. amend. IV. Cases often treat searches without probable cause as "unreasonable." See, e.g., United States v. Lopez, 989 F.2d 24, 26 (1st Cir.1993). But there are exceptions. The one relevant here says that officers may stop and briefly detain a person if they have reasonable suspicion that criminal activity is afoot, see, e.g., Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Brake, 666 F.3d at 804—a standard that requires us to take account of the "totality of the circumstances," see United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002); accord United States v. Pontoo, 666 F.3d 20, 29 (1st Cir.2011). And officers may pat-frisk the person too if they have reason to believe he is "armed and dangerous." See, e.g., Pontoo, 666 F.3d at 30. The high Court refers to these police actions as "Terry stops" and "Terry frisks." See Florida v. J.L., 529 U.S. 266, 272-73, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000). So we will too.
Reasonable suspicion can be established by an informant's tip if the tip possesses sufficient "indicia of reliability," see id. at 270, 120 S.Ct. 1375—on this both sides agree. And the tip here fits the bill, despite what Sanchez argues. Just consider the following:
Templeman knew the CI's tips had proven reliable in the past—which is a very big deal because an informant's "past reliability
Seeking to avoid all this, Sanchez analogizes his case to J.L. There, officers used an anonymous tip—that "a young black male standing at a particular bus stop and wearing a plaid shirt was carrying a gun"—to justify a Terry stop. Officers could not verify the tipster's credibility (obviously, because they did not know who he was). Plus, aside from the tip, which did not describe how the tipster knew the male was armed, officers had zero reason to suspect the male of any illegal activity—they "did not see the firearm," for example, "and [the male] made no threatening or otherwise unusual movements." J.L., 529 U.S. at 268, 120 S.Ct. 1375. With concerns about the tipster's credibility and accountability uppermost in the Court's mind, J.L. held that the tip—without more—could not justify the Terry stop.
From what we have just said it is obvious that Sanchez can get no mileage from J.L.: Not only did the CI here say how he knew about Sanchez's gun and crack possession. And not only did Templeman see Sanchez move in a way consistent with his having a gun (i.e., touching an object hidden in his waistband), which Templeman knew Sanchez could not legally possess. But unlike the tipster in J.L., our CI was not (repeat, not) anonymous, see United States v. Romain, 393 F.3d 63, 73 (1st Cir.2004) (distinguishing J.L. on similar grounds), meaning Templeman could gauge his credibility and hold him accountable if necessary.
The net result is that given the universe of circumstances, the Springfield police had reasonable suspicion to Terry-stop Sanchez. Enough said about that issue.
Sanchez also protests that officers had no business conducting a Terry frisk, essentially arguing that they had no "urgent" need to pat him down because they had no reason to perceive the situation to be so dangerous as to justify even a limited search. Call us unconvinced.
Again, the CI saw Sanchez's gun and crack. Surveilling the site, Templeman remembered that he had previously busted Sanchez for possessing drugs with intent to distribute. He then noticed Sanchez reach for his waistband. Also, he (in his words) "observed a hard object within" Sanchez's "grasp and underneath" the "[t]shirt." And based on his experience, he
Ever persistent, Sanchez tries to throw cold water on Templeman's interpretation by calling it nothing more than a pure "hunch." He is right that reasonable suspicion is something more than a mere hunch. See Arnott, 758 F.3d at 44 (explaining that "[r]easonable suspicion" lies in the area between "a naked hunch" and "probable cause"). But the problem for him is that the judge essentially rejected the pure-hunch theory—after all, the judge specifically credited Templeman's experience-based interpretation. And we cannot say that the judge clearly erred in doing so. Cf. Toye v. O'Donnell (In re O'Donnell), 728 F.3d 41, 46 (1st Cir.2013) (noting that clear error means the judge's action was "wrong with the force of a 5 week old, unrefrigerated, dead fish" (quoting S Indus., Inc. v. Centra 2000, Inc., 249 F.3d 625, 627 (7th Cir.2001))).
The bottom line is that we see no need to reverse the judge on the Terry-frisk issue, just as we saw no need to reverse the judge on the Terry-stop issue. So we affirm the judge's refusal to suppress the evidence against Sanchez.
As we said earlier, Sanchez also attacks the judge's decision not to suppress his drug-dealer response to Toledo's employment-status question. To hear him tell it, Toledo extracted his response during a custodial interrogation without benefit of Miranda warnings. Once again we review the judge's factual findings for clear error and his legal ruling de novo. See, e.g., United States v. Hinkley, 803 F.3d 85, 90 (1st Cir.2015). And once again we affirm.
Miranda's familiar warnings (e.g., that you have the right to remain silent and that anything you say can be used against you) are required for custodial interrogations—it is the combination of "custody" and "interrogation" that warrants the giving of these warnings. See, e.g., Miranda v. Arizona, 384 U.S. 436, 473-79, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); United States v. Molina-Gómez, 781 F.3d 13, 21-22 (1st Cir.2015). Neither side disputes that Sanchez was in custody at the time of booking (he was an arrestee at that point, remember). But they fight like mad over whether Toledo's employment query constituted interrogation. So we focus our energies on that issue.
Interrogation for Miranda purposes includes "any words or actions on the part of the police . . . that the police should know are reasonably likely to elicit an incriminating response from the suspect." Rhode Island v. Innis, 446 U.S. 291, 301, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980); accord United States v. Davis, 773 F.3d 334, 339 (1st Cir.2014); cf. generally Miranda, 384 U.S. at 478, 86 S.Ct. 1602 (making the commonsense point that "[a]ny statement given freely and voluntarily without any compelling influences is, of course, admissible in evidence"). An
Sanchez does not contest that routine employment questions might fall within the booking exception. And it is easy to see why. Years ago we intimated that employment questions could fit within the booking exception, depending on the situation. See United States v. Duarte, 160 F.3d 80, 82 (1st Cir.1998) (per curiam) (dicta) (citing United States v. Gotchis, 803 F.2d 74, 78-79 (2d Cir.1986)).
Perhaps anticipating what we might do with Duarte (transforming its intimation into binding law), Sanchez argues that the employment question asked here crossed the constitutional line because Toledo posed it "to elicit an incriminating" answer
As a nonmember of the team that investigated Sanchez, Toledo asked only routine questions to help with the booking process—not to strengthen the case against the arrestee (he did not, for example, ask any follow-up questions when Sanchez said he was employed as a drug dealer). And this testimony—which the judge did not clearly err in crediting—supports the conclusion that the booking exception applies. See Reyes, 225 F.3d at 77 (finding the booking exception applied in large part because (a) "[t]he booking interview was conducted separate from any substantive interrogation, by a different officer and in a separate room at a separate time" and (b) the booking officer "asked only" standard police questions, "with no reference whatsoever to the offense for which appellant had been arrested"). Also, importantly, the circumstances of this case are far removed from those presenting a "closer" question on the exception's applicability. See id. These closer-question cases all involve situations where the police asked questions to extract answers "clearly" and "directly" tied to the "suspected" criminal activities. See id. (noting, by way of illustration, that asking someone to give his social-security number "might be likely to elicit an incriminating response where the person is charged with [s]ocial [s]ecurity fraud"). And Sanchez offers no persuasive basis for us to conclude that there is a similar direct link between the employment question and his suspected offenses. Cf. generally Gotchis, 803 F.2d at 79 (deeming booking questions about employment permissible in a case where the police arrested defendant for a drug offense).
With that, we uphold the judge's decision not to suppress the statement.
For the reasons recorded above, we affirm the judge's refusal to suppress the incriminating evidence and comment.