United States v. Orth

2017 | Cited 0 times | First Circuit | October 13, 2017

United States Court of Appeals For the First Circuit

No. 16-1436

UNITED STATES OF AMERICA,

Appellee,

v.

ROBERT ORTH,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Steven J. McAuliffe, U.S. District Judge]

Before

Torruella, Kayatta, and Barron, Circuit Judges.

Jaye L. Rancourt and Brennan Lenehan Iacopino & Hickey, on brief for appellant. Seth R. Aframe, Assistant United States Attorney, and Emily Gray Rice, United States Attorney, on brief for appellee.

October 13, 2017

TORRUELLA, Circuit Judge. Appellant Robert Orth ("Orth"

or "Appellant") appeals the district court's denial of his motion

to suppress drugs, a digital scale, and a firearm obtained

following a traffic stop of the vehicle in which he was a

passenger. After careful consideration, we affirm.

I. Background and Procedural History

"[W]e view the facts in the light most favorable to the

district court's ruling on the motion," and review its "findings

of fact and credibility determinations for clear error." United

States v. Fields, 823 F.3d 20 , 25 (1st Cir. 2016) (quoting United

States v. Fermin, 771 F.3d 71 , 76 (1st Cir. 2014)). At the

suppression hearing, Officer Dennis Lee ("Officer Lee") of the

Nashua Police Department testified that on May 29, 2014, at just

before 10:00 p.m., he observed a vehicle fail to stop at a stop

sign. He followed the vehicle and observed it straddle the double

yellow line, activate its left turn signal, stop in the middle of

the roadway, and then turn on its right turn signal and veer to

the right side of the road. Officer Lee subsequently initiated a

traffic stop.

Officer Lee testified that the area in which the stop

occurred had a reputation for criminal activity, although he did

not provide any further specifications. He further testified that

he had a suspicion that the driver of the vehicle may have been

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intoxicated. Officer Lee pulled the vehicle over and parked his

cruiser behind it. Before approaching, Officer Lee shined his

spotlight on the car and noticed two of the occupants in the car

turn to look directly at him with a "deer-in-the-headlights look,"

which he described as a look of nervousness and surprise beyond

what was normal. As he approached the vehicle, he observed that

there were a total of three occupants. He later determined that

Dustin Adams ("Adams") was the driver, the appellant, Orth, was

the front passenger, and Michael Ashford ("Ashford") was the rear

passenger. Officer Lee asked Adams for his license and

registration. Adams provided his license but did not provide his

registration. When Officer Lee asked Adams to check the glove

compartment of the vehicle for his registration, Adams refused to

do so.

While speaking to Adams, Officer Lee noticed a "large

black cylinder item" resting in between Orth's leg and the

vehicle's center console. Concerned that it could be a weapon,

Officer Lee asked Adams to identify the object. Adams did not

answer Officer Lee's question. After Officer Lee repeated the

question, Orth "became noticeably aggressive . . . verbally"

towards Officer Lee, saying "It's an F-ing flashlight" as he picked

the object up to reveal that it was a large flashlight. Because

of the number of men in the vehicle, Orth's aggressive behavior,

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and Officer Lee's ongoing concern that the flashlight could be

used as a weapon, he requested backup.

After requesting backup, Officer Lee asked Adams to step

out of the vehicle. Officer Lee ordered Orth and the rear

passenger, Ashford, to "place their hands where [he] would be able

to see them," specifically ordering Orth to put his hands on the

dashboard. Ashford complied, but Orth did not and began shouting

profanities. After Officer Lee's repeated instructions, Orth

finally complied. Officer Lee asked Adams if he was in possession

of any weapons, to which Adams replied that he was not. Officer

Lee pat-frisked Adams and discovered a large utility knife in his

pocket that Adams stated was for construction work. While Officer

Lee was pat-frisking Adams, Orth continued to protest. At one

point, Orth took his hands off of the dashboard and made furtive

movements as he reached towards the floorboard of the vehicle.

Officer Lee yelled for Orth to place his hands back on the

dashboard, which Orth reluctantly did. At this time, a second

officer arrived on the scene. Officer Lee then directed Ashford

to exit the vehicle and pat-frisked him, which did not reveal any

weapons. Orth continued to verbally protest.

Finally, Officer Lee approached the front passenger door

and ordered Orth out of the vehicle, after which Orth recommenced

his protests. Officer Lee testified that he observed "sweat

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beading off of [Orth's] forehead," which he found odd because it

was a cool May night. Officer Lee pat-frisked Orth and did not

discover any weapons. After pat-frisking Orth, Officer Lee

instructed Orth to stand away from the passenger door so that

Officer Lee could search the vehicle, "to ensure that there [were]

no weapons within his reach." Orth stepped towards Officer Lee

and stated that the officer could not search the vehicle. As

Officer Lee approached the vehicle door, Orth tried to close the

door on him. The officer again instructed Orth to step back and

approached the car door, and again Orth tried to close it on him.

Officer Lee told Orth that he was going to place him in handcuffs

for safety, but Orth resisted and pushed Officer Lee in the chest.

At this time, Officer Lee informed Orth that he was under arrest

and attempted to place him in handcuffs. Orth resisted. While

both officers attempted to restrain him, Orth yelled to his fellow

passengers to "get the shit, get the shit, run and hide it." Adams

reached towards the floorboard of the front passenger seat where

Orth had been sitting, grabbed a jacket, and began to flee.

Officer Lee pursued Adams while the second officer stayed behind

and secured Orth. As he fled, Adams tripped and dropped the

jacket, and then discarded it in the middle of the roadway. Upon

picking up the jacket, Officer Lee could tell by the weight that

there was something inside of it, which he suspected to be a gun.

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Upon later examination, he found a loaded pistol, a digital scale,

and 248 grams of heroin.

Orth was charged with possession of heroin with intent

to distribute, in violation of 21 U.S.C §§ 841(a)(1),

841(b)(1)(B)(i); possessing a firearm in furtherance of a drug

trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A)(i);

and possession of a firearm by a prohibited person, in violation

of 18 U.S.C. §§ 922(g)(1), 924(a)(2). Orth moved to suppress the

evidence, arguing that it was obtained through an illegal search

and pat-frisk. After an evidentiary hearing, the judge denied the

motion, finding that the pat-frisk was warranted. Orth pled

guilty to all three counts but reserved the right to appeal the

denial of the motion to suppress. He was sentenced to 120 months

of imprisonment.

On appeal, Orth contends that the district court erred

by denying his motion to suppress as Officer Lee lacked reasonable

suspicion to warrant pat-frisks of the occupants of the vehicle,

and therefore unlawfully extended the traffic stop beyond the scope

of its initial purpose. Orth also argues that Officer Lee lacked

reasonable suspicion to search the interior of the vehicle, further

unlawfully extending the traffic stop, in violation of the Fourth

Amendment. Finally, he argues that Adams's removal of the jacket

from the vehicle did not supersede the Fourth Amendment violations.

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To support his argument, Orth specifies four factors that Officer

Lee testified about and argues that, in the totality of the

circumstances, they were insufficient to justify the removal and

pat-frisk of the three men.

II. Discussion

A. Standard of Review

We review de novo the district court's ultimate legal

decision to grant or deny a motion to suppress, including its

application of the law to the facts and its probable cause and

reasonable suspicion determinations. Fields, 823 F.3d at 25

("When reviewing a challenge to the district court's denial of a

motion to suppress . . . [w]e review conclusions of law . . . de

novo.") (internal citations omitted); see United States v. Crespo-

Ríos, 645 F.3d 37 , 41 (1st Cir. 2011).

The boundaries of an investigatory stop and frisk were

first delineated in the Supreme Court's landmark decision in

Terry v. Ohio:

[W]here a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that persons with whom he is dealing may be armed and presently dangerous . . . and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others' safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him.

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392 U.S. 1 , 30 (1968). Our review of a Terry pat-frisk requires

a two-part analysis: first, whether the initial stop was justified;

and second, whether the police had a legal basis to justify an

investigation beyond the scope of the reason for the stop itself.

United States v. Mouscardy, 722 F.3d 68 , 73 (1st Cir. 2013)

(citations omitted). A stop's validity is, by itself,

insufficient; "the key is whether, under the circumstances, 'the

officer is justified in believing that the person is armed and

dangerous to the officer or others.'" United States v. Cardona-

Vicente, 817 F.3d 823 , 827 (1st Cir. 2016) (quoting United States

v. Romain, 393 F.3d 63 , 71 (1st Cir. 2004)). The crux of the

analysis relies on the reasonableness of the officer's actions, in

light of the "totality of the circumstances," which must "provide[]

a particularized, objective basis for the officers' suspicion that

[the defendant] was dangerous and posed a threat to their safety."

United States v. McKoy, 428 F.3d 38 , 40 (1st Cir. 2005).

Both parties agree, as did the district court, that the

initial stop was lawful. Officer Lee observed the vehicle commit

a series of traffic violations that provided probable cause to

conduct a traffic stop. The parties' agreement, clearly supported

by the record, concludes the first step of our analysis. Having

found the initial stop of the vehicle justified, we proceed to the

second step of the analysis: whether the totality of the

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circumstances provided a particularized objective basis for

Officer Lee's suspicion that the defendant was armed and dangerous.

We address the appellant's arguments in turn.

B. Extension Beyond the Initial Purpose of the Stop

Appellant first argues that the lawful traffic stop was

unlawfully extended beyond its initial purpose when each passenger

was taken from the vehicle, pat-frisked, questioned, and placed

back in the vehicle. In so alleging, Appellant claims that the

district court erroneously focused solely on the disputed length

of time that it took Officer Lee to conduct the actual frisks of

each passenger, whereas the proper inquiry is the reasonableness

of any extension of the scope of the stop. While the district

court did engage with defense counsel during the suppression

hearing about the length of time that it took Officer Lee to

conduct the traffic stop, this back-and-forth's purpose was

clearly to allow the motion judge to clarify defense counsel's

"unlawful extension" argument. In fact, soon after this dialogue,

the motion judge bluntly asked defense counsel, "So what's your

argument then? Fruit of the poisonous tree or unlawful extension

of the duration necessary to resolve the traffic stop? . . . [Y]ou

keep conflating [those two arguments]." The district court then

stated its belief that Officer Lee reasonably extended the traffic

stop beyond its original scope because he had reasonable suspicion

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to pat-frisk the car's occupants. Thus, we disagree with

Appellant; the district court did not erroneously focus solely on

the duration of the stop in assessing the reasonableness of its

extension.

We recognize that, as Appellant alleges, the scope of

the traffic stop changed and evolved from Officer Lee's initial

drunk-driving investigation. However, the circumstances and

unfolding events during a traffic stop allow for an officer to

"shift his focus and increase the scope of his investigation by

degrees" with the accumulation of information. United States v.

Chhien, 266 F.3d 1 , 6 (1st Cir. 2001). An officer's actions must

be justified at their inception, and any subsequent actions are

measured by the "emerging tableau" of circumstances as the stop

unfolds. Id. Our review of whether Officer Lee's extension of

the scope of the initial stop and his subsequent actions were

reasonable brings us to Appellant's second (related) argument.

C. Pat-Frisk of Appellant

Appellant wisely does not challenge the extension of the

stop to allow for the arrival of a second officer to assist.

Officer Lee testified that, approximately two minutes after he

initiated the stop, he called for backup because he was dealing

with an aggressive passenger (Orth), and a driver that was not

willing to speak to him (Adams). Further, and especially in light

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of the number of occupants in the vehicle, we find reasonable what

Officer Lee described as a common practice within the department

to conduct field sobriety tests with two officers. The district

court credited Officer Lee's testimony, a determination that we

review for clear error. United States v. Garner, 338 F.3d 78 , 80

(1st Cir. 2003). We find none; calling for the assistance of a

second officer was unquestionably reasonable in the situation

presented.

Appellant does contend, however, that the stop was

unreasonably extended as there was no reasonable suspicion that

the persons pat-frisked were armed and dangerous. Evaluating

whether an officer's suspicions were reasonable is a fact-specific

task, Chhien, 266 F.3d at 8, requiring some level of "deference

. . . to the experienced perception of the officers." Cardona-

Vicente, 817 F.3d at 827. The court cannot evaluate reasonable

suspicion in a vacuum; it must "make[] due allowance for the need

for police officers to draw upon their experience and arrive at

inferences and deductions that 'might well elude an untrained

person.'" United States v. Arnott, 758 F.3d 40 , 44 (1st Cir.

2014) (quoting United States v. Arvizu, 534 U.S. 266 , 273 (2002)).

Of course, such deference is not without bounds. See Ornelas v.

United States, 517 U.S. 690 , 699 (1996) (reviewing court must give

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"due weight" to factual inferences drawn by local law enforcement

officers).

Both parties quarrel over the reasonableness of Officer

Lee's pat-frisk of the driver. Appellant opines that Officer Lee

lacked the requisite reasonable suspicion necessary to warrant the

initial pat-frisk of Adams and the subsequent pat-frisks of Ashford

and Orth, because the reasons Officer Lee gave to justify his

reasonable suspicion were insufficient. Appellant cherry-picks

four factors about which Officer Lee testified, dissecting why

each, individually, cannot give rise to reasonable suspicion: (1)

high crime neighborhoods; (2) the suspicious behavior of the

occupants; (3) the flashlight; and, (4) Orth's furtive hand

movements. Appellant concludes that the totality of the

circumstances does not suggest that criminal activity was afoot,

or that the passengers of the vehicle posed a threat to the

officer. The government disputes this conclusion, positing that

ample reasonable suspicion justified the pat-frisk of Adams.

We refrain from intervening in this initial squabble as

Appellant lacks standing to challenge the pat-frisks of both Adams

and Ashford. See Rakas v. Illinois, 439 U.S. 128 , 138-140 (1978);

United States v. Sowers, 136 F.3d 24 , 27 (1st Cir. 1998); United

States v. Kimball, 25 F.3d 1 , 5 (1st Cir. 1994) ("Fourth Amendment

rights are personal, and a proponent of a motion to suppress must

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prove that the challenged governmental action infringed upon his

own Fourth Amendment rights.") (citations omitted). Thus, we

exercise judicial avoidance as to the specific justification

underlying the pat-frisk of the driver of the car. That pat-frisk

occurred while waiting for the second officer to arrive for backup

assistance, which we have previously stated was reasonable in this

situation. Thus, it did not further lengthen the duration of

Appellant's detention. Appellant is not left without a leg to

stand on, however. Once an officer conducts a traffic stop, the

driver and all passengers are subject to the authority of the

stopping officer and thus are all seized for Fourth Amendment

purposes. See Whren v. United States, 517 U.S. 806 , 808-10 (1996)

(all occupants of a vehicle are subjected to a seizure within the

scope of the Fourth Amendment when an officer conducts an

investigatory stop). As Appellant was seized, he may challenge

his own detention. Sowers, 136 F.3d at 27.

After review, we hold that the district court correctly

found that, given the totality of the circumstances, Officer Lee

had reasonable suspicion to justify Appellant's prolonged

detention and pat-frisk. The district court highlighted the

escalation of Officer Lee's warranted suspicion as the encounter

unfolded. "Such a shift in focus is neither unusual nor

impermissible." Id.

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After lawfully stopping the vehicle in a high crime area,

Officer Lee witnessed what he described as nervous and suspicious

behavior from the occupants of the vehicle. While Appellant

questions why the officer found certain of the vehicle occupant's

actions to be unusual, the district court found the officer

credible. Absent clear error, "we are not at liberty blithely to

second-guess the district court's credibility determinations."

Id. We see no error in this credibility determination, nor does

Appellant point to anything in the record that shows that this

finding was clearly erroneous. Turning back to see who is shining

a spotlight into one's car may not, by itself be unusual behavior,

cf. United States v. Wright, 582 F.3d 199 , 226 (1st Cir. 2009)

(Lipez, J., dissenting) ("[c]hecking out the occupants of a car

that has stopped near one's own is an everyday act that by itself

is not suggestive of criminal conduct"), but when considered along

with Adams's extreme nervousness, his quick answers to some of the

officer's questions, his refusal to check the glove compartment

for the vehicle's registration, his hesitation and ultimately odd

response to related questions about the purpose of the flashlight

("for sport"), and Orth's body language and displayed aggression,

such a conclusion is justified.

Appellant's dismissal of Officer Lee's testimony that

the location of the stop was a "high crime area" is also to no

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avail. Appellant avers that Officer Lee provided no specific

information as to why he classified this area as "high crime," and

correctly points out that just because a stop occurs in a high

crime area does not, in and of itself, justify the prolonged

detention of Appellant. "[T]he character of the neighborhood does

not provide automatic permission for [the police] to stop and

search any and everybody in a high-crime neighborhood." United

States v. Soares, 521 F.3d 117 , 121 (1st Cir. 2008). However,

Officer Lee did not testify that the high crime area was his only

reason for extending the stop. Rather, the neighborhood's crime

rate acted with a confluence of other factors to form the officer's

reasonable suspicion. Much like in Soares, which Appellant claims

this case falls short of, "the police here relied on more than

just nervousness and the fact that they stopped the car in a high-

crime neighborhood." Id.; see also McKoy, 428 F.3d at 40 ("While

police are permitted to take the character of a neighborhood into

account . . . it is only one factor that must be looked at alongside

all the other circumstances when assessing the reasonableness of

the officer's fear.").

Similarly, the presence of the oversized flashlight does

not directly establish reasonable suspicion that an occupant may

be armed. However, the presence of a large flashlight, combined

with the aforementioned hesitation and odd response to questions

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about its presence, contributed to Officer Lee's reasonable

conclusion that the occupants could use it as a weapon against

him. Appellant's argument that Officer Lee could have simply

taken possession of the flashlight if he was concerned about his

safety, thus relieving himself of all worries, is also not

persuasive. The point is that its presence and the car occupants'

evasiveness contributed to the totality of the circumstances to

create Officer Lee's reasonable suspicion that the occupants may

be armed.

This brings us to Officer Lee's pat-frisk of Adams,

during which Officer Lee discovered a large cutting or utility

knife. Prior to moving on, we find it prudent to reiterate that

Appellant lacks standing to challenge the search of the driver.

Sowers, 136 F.3d at 27. One cannot base a constitutional claim

on a violation of a third person's rights; therefore, to the extent

that Appellant's challenge rests on Adams's privacy interest, it

is barred. Id. Prior to pat-frisking Adams, Officer Lee

instructed both Orth, who had already displayed signs of

aggression, and Ashford to keep their hands in the Officer's sight.

Officer Lee then asked Adams if he had any weapons in his

possession, to which Adams answered that he did not. During the

search, Officer Lee discovered a large cutting knife in Adams's

pant pocket. While Adams indicated that it was for construction

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work, it understandably concerned Officer Lee that Adams had not

mentioned the presence of a knife when asked. Appellant attempts

to make hay of the argument that, because this was potentially a

tool used in Adams's course of employment, he may not have

considered it to be a "weapon" when questioned by Officer Lee.

However, we fail to see how a large cutting knife does not

constitute a potential weapon simply because it has other

legitimate purpose, see Wright, 582 F.3d at 213 ("[A] Terry stop

is permitted even if the conduct justifying the stop was ambiguous

and susceptible of an innocent explanation . . . . [T]he very

purpose of [Terry] stops is to clarify ambiguous situations.")

(internal quotations omitted), and why an individual's failure to

alert an officer to its presence should not contribute to a finding

of reasonable suspicion.

Finally, during this search, Officer Lee specifically

told Appellant to keep his hands on the dashboard of the car.

Appellant initially did not comply, becoming more argumentative

and yelling profanities. After Appellant finally complied,

Officer Lee began his pat-frisk of Adams, during which Officer Lee

witnessed Appellant remove his hands from the dashboard and reach

to the floorboard area of his seat. Appellant insists that, if

Officer Lee were truly concerned about his movements and that he

possessed a weapon then Officer Lee would have immediately removed

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him from the vehicle and not have waited to search him last.

Appellant thus contends that this shows these hand movements did

not occur, and that they were an after-the-fact justification by

the officer. However, Officer Lee gave adequate justification at

the suppression hearing that the order in which he pat-frisked the

car's occupants was operational, and that by pat-frisking the rear

passenger first, he was able to ensure that no one behind him was

armed when he pat-frisked Appellant. At any rate, Appellant's

argument ultimately turns on Officer Lee's credibility and, as

stated previously, we find nothing clearly erroneous in the

district court's decision to credit Lee's testimony.

The totality of the circumstances favors reasonable

suspicion, Appellant's arguments to the contrary notwithstanding.

The factors as outlined above, when amassed, gave Officer Lee more

than adequate reasonable suspicion to pat-frisk Appellant.

D. Search of the Vehicle

Appellant's final argument1 is that the traffic stop was

unlawfully extended when Officer Lee attempted to search the car.

1 Appellant attempted to forecast a response by the government that there existed a superseding cause sufficient to attenuate a Fourth Amendment violation in regards to the removal of the jacket from the vehicle. In doing so, Appellant states that there was no intervening criminal conduct which may have superseded a possible violation. See United States v. Camacho, 661 F.3d 718 (1st Cir. 2011).

At the heart of this argument is the assumption that the

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"[T]he search of the passenger compartment of an automobile,

limited to those areas in which a weapon may be placed or hidden,

is permissible if the police officer possesses a reasonable belief

. . . the suspect is dangerous and the suspect may gain immediate

control of weapons." Michigan v. Long, 463 U.S. 1032 , 1049 (1983).

In Long, the Supreme Court found that the officers were justified

"in their reasonable belief that [the defendant] posed a danger if

he were permitted to reenter his vehicle," which permitted a

limited search of the passenger compartment of the vehicle. Id.

at 1050.

In the instant case, we have already found that Officer

Lee was justified in removing Appellant from the vehicle and

conducting a pat-frisk. We have further found that the

circumstances of the stop were sufficient for Officer Lee to

develop a reasonable suspicion that a weapon could possibly be

hidden in the car. At the start of the stop, Adams refused to

check the glove box in an effort to find his registration. While

conducting pat-frisks of the other occupants, Appellant ignored

directions from Officer Lee by removing his hands from the

dashboard and reaching towards the floorboard of the vehicle.

original search was in violation of the Fourth Amendment. Because Officer Lee possessed reasonable suspicion to pat-frisk Appellant and search the vehicle, we need not further address this issue.

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Officer Lee's concern about his safety was further cemented after

finding a knife on Adams following Adam's denial that he had any

weapons on his person. These factors gave reason for Officer Lee

to "increase the scope of his investigation by degrees." Chhien,

266 F.3d at 6. Officer Lee's reasonable suspicion that the

occupants possibly possessed a weapon would have logically

included the possibility that a weapon could be easily accessed

from the passenger compartment of the car.

In United States v. Lott, by contrast, this Court found

that the officers involved in a traffic stop did not have

reasonable suspicion to search a car for weapons when they did not

bother to frisk the defendants at any time prior to searching the

vehicle. Compare 870 F.2d 778 , 785 (1st Cir. 1989), with United

States v. McGregor, 650 F.3d 813 , 822 (1st Cir. 2011) (officers

frisked each passenger prior to searching the car for weapons).

However, unlike in Lott, it is clear that Officer Lee was concerned

about the presence of a weapon well before attempting to search

the car.

Moreover, the fact that Appellant had been removed from

the car does not hinder the legality of a search of the passenger

compartment. "Conducting a protective sweep of the passenger

compartment for the weapon [is] permissible" after the creation of

reasonable suspicion "even though [the defendant is] outside the

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vehicle and under police control." United States v. Díaz, 519

F.3d 56 , 62 (1st Cir. 2008). The scope of such a search would

encompass the area "generally 'reachable without exiting the

vehicle' . . . including areas that are 'hatches,' or rear storage

areas." United States v. Allen, 469 F.3d 11 , 15 (1st Cir. 2006)

(quoting United States v. Doward, 41 F.3d 789 , 794 (1st Cir. 1994)

(internal citation removed) (emphasis omitted)). In the course

of a stop, "police may also examine the contents of any containers

found within the passenger compartment" as they are potentially

reachable. New York v. Belton, 453 U.S. 454 , 460 (1981) (abrogated

on other grounds by Davis v. United States, 564 U.S. 229 (2011));

see also McGregor, 650 F.3d 813 (holding that using a found magnet

switch to search secret compartments, tapping on the car's

undercarriage, prodding at the cup holder and emptying the center

console were within the scope of a Terry-related search of a

vehicle). The scope of searchable containers encompasses "glove

compartments, consoles, or other receptacles . . . as well as

luggage, boxes, bags, clothing, and the like." Belton, 453 U.S.

at 460-61 n.4.2 Thus, the jacket in which the evidence was found

2 A trunk is not considered a part of the passenger compartment and thus is not within the scope of a search. Belton, 453 U.S. at 460 n.4. An exception to this rule exists, however, if the trunk, hatch, or "rear storage areas" are accessible from the passenger compartment. Allen, 469 F.3d at 15.

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-- which was located on the floorboard of the passenger seat where

Appellant had been sitting at the time Officer Lee began his

protective sweep of the passenger compartment -- was well within

the scope of such a search. Adams's subsequent removal of the

jacket and flight prior to Officer Lee's search does not change

the jacket's status.3

To conclude, we find that the district court correctly

denied Appellant's motion to suppress. We find no clear error in

the motion judge's findings of fact and credibility determinations

and agree that suppression of the evidence was not warranted.

III. Conclusion

The district court properly denied Appellant's motion to

suppress the firearm, digital scale, and drugs. Accordingly, the

judgment of the district court is affirmed.

Affirmed.

3 We note that the actions of the car's occupants -- Orth yelling to his co-occupants to "get the shit, get the shit, run and hide it," Adams grabbing the jacket from the very same place where Officer Lee saw Orth make furtive hand movements, and Adams subsequently fleeing and discarding the jacket -- may have established an independent basis of probable cause to search the jacket. However, given that the government did not raise this argument, it is deemed waived and we need not decide that issue. See United States v. Zannino, 895 F.2d 1 , 17 (1st Cir. 1990) (referring to "the settled appellate rule that issues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived").

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