UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

United States

v. Criminal No. 16-cr-96-01-JD Opinion No.

Eric Tanguay

O R D E R

Eric Tanguay is charged with possession of a controlled

substance with intent to distribute in violation of

(a)(1). Tanguay moves to suppress all evidence obtained from

a vehicle that he was driving when he was arrested. The

government opposes the motion.

The court held a hearing on the motion to suppress on March

21, 2017. During the hearing, the government presented

testimony from Nashua police officer Adam Rahyo, who

participated in the arrest and search. The defense called no

witnesses.

Standard of Review

The defendant bears a threshold burden to show a Fourth

Amendment violation in support of a motion to suppress. United

States v. Young,

(1st Cir. 2016); see also Rakas

v. Illinois,

, 132 n.1 (1978) (“The proponent of a

motion to suppress has the burden of establishing that his own Fourth Amendment rights were violated by the challenged search

or seizure.”). The defendant’s threshold burden includes the

“burden of establishing that he was seized.” United States v.

Fields,

(1st Cir. 2016). Once the defendant

shows that a warrantless search or seizure occurred, the

government bears the burden of showing that the warrantless

search or seizure was nevertheless lawful. United States v.

Winston,

, 123–24 (1st Cir. 2006); United States v.

Acosta-Colon,

(1st Cir. 1998).

Background

In the early morning of March 31, 2016, Rayho, dressed in

his police uniform, was on patrol in a marked police SUV. A

little after midnight, Rayho drove by a strip mall parking lot

and noticed a blue Ford SUV (the “Ford”) parked with two people

inside. The Ford was parked 100 to 150 feet from a Taco Bell

restaurant and no other vehicles were around it. Rayho returned

to the lot about twenty minutes later and noticed that the

Ford was still there. Rayho knew that most of the businesses

located around the lot were closed but that the Taco Bell and a

24-hour gym remained open. Rayho became concerned about the

Ford because it was parked alone. Based on his concern, Rayho

entered the lot and approached the Ford. The time was 12:29

a.m.

2 Rayho parked his car seven to ten feet behind the Ford.

Rayho then turned on his rear blue strobe lights, which

pointed away from the Ford. Rayho did so because the parking

lot was dark and he wanted to alert any officer providing

backup as to his location. Rayho also turned on his front

spotlights,1 which illuminated the interior of the Ford.

Rayho testified that he turned these lights on for officer

safety purposes.

Rayho then approached the Ford on the driver’s side. Using

his flashlight to illuminate the Ford’s interior, Rayho began a

conversation with Tanguay, the driver, and Jacqueline Westley,

the passenger. Rayho asked Tanguay and Westley for their names,

which they gave him. Rayho recognized the name “Eric Tanguay”

because a confidential informant in an unrelated investigation

had told him that someone with that name was involved in using

and distributing controlled narcotics. Rayho then asked Tanguay

and Westley what they were doing in the parking lot. They told

Rayho that they were eating food from Taco Bell. Rayho then

joked with them that he also enjoyed eating food from Taco Bell.

Rayho saw that both Tanguay and Westley were, in fact, eating

Taco Bell food.

1 Although Rayho called these lights “takedown lights,” he testified that they were essentially spotlights.

3 Rayho asked Tanguay and Westley for identification. They

responded that they did not have a driver’s license with them.

Tanguay also informed Rayho that he did not own the Ford. Rayho

asked Tanguay if there were any weapons or drugs in the car, and

Tanguay said there were not.

Rayho asked Tanguay if it would be all right if he returned

to his cruiser to run a records check on him. Rayho testified

that one of the reasons he made this request was to determine if

the Ford had been reported as stolen. Tanguay agreed and

assured Rayho that he had a valid driver’s license. As Rayho

was returning to his cruiser, he noticed that Officer Jonathan

Earnshaw had arrived to provide backup. Earnshaw’s cruiser was

parked behind Tanguay’s vehicle. About a minute into the

records check, Rayho observed Westley crouching down and

appearing to reach under the seat. Rayho was concerned about

Westley’s movements. As a result, he immediately stopped the

records check, exited his cruiser, and walked back to the

driver’s side of the Ford.

When Rayho got to the Ford, he noticed that Westley was

sitting upright in her seat. Rayho then asked Tanguay again

whether he had any identification. This time, Tanguay said that

his driver’s license was in the trunk and asked if he could

retrieve it. Rayho agreed to let Tanguay show him the location

of his license but said that he would prefer to retrieve the

4 license for officer safety reasons. Tanguay got out of the

Ford, and, as he did, Rayho observed what appeared to be the

butt of a pistol tucked into the driver’s side door.

Tanguay and Rayho walked to the rear of the Ford. Tanguay

told Rayho that his license was in a backpack in the trunk.

After the trunk was opened, Tanguay informed Rayho that his

license was inside a wallet in a small pouch of the backpack.

Rayho retrieved the wallet from the backpack and removed

Tanguay’s driver’s license. Rayho noticed a large amount of

currency in the wallet, which Tanguay told him totaled around

$2,000.2 Rayho also noticed that the largest compartment of the

backpack was secured with a padlock.

While still at the rear of the Ford, Rayho asked Tanguay

about the gun in the driver’s side door. Tanguay told Rayho

that it was a BB gun and apologized for not telling Rayho about

it earlier. Tanguay also told Rayho that he had a conceal carry

permit but did not have that with him.

Rayho told Tanguay that he was going to check the gun to

determine whether it was a BB gun. Before checking the gun,

Rayho asked Westley to get out of the Ford, which she did.

After checking the gun, Rayho concluded that it was, in fact, a

BB gun. Rayho then asked Tanguay for consent to search the

2 Rayho testified that the money in Tanguay’s wallet was subsequently counted and that it totaled around $2,800.

5 remainder of the Ford.3 Tanguay responded that such a search was

“fine.”

During the search, Rayho, with the help of his flashlight,

peered under the passenger’s seat where Westley had been

sitting. There he found a partially opened black sunglass case,

which held a hypodermic needle. Rayho removed the sunglass

case, which was already partially opened, and opened it the rest

of the way. Rayho saw that the hypodermic needle was loaded and

contained a brownish liquid. Based on Rayho’s training, he

believed that the brown liquid was either heroin or fentanyl.

The sunglass case also contained a pill, a cotton ball, and a

form of Narcan, which is a medication used to treat opiate

overdoses.

After discovering the sunglass case, Rayho asked Westley if

she could come to the front of the Ford to speak with him.

Westley agreed, and Rayho asked her what she and Tanguay had

been doing that night. Initially, Westley said that she and

Tanguay had the Ford all evening and were at their friend Dennis

Higgins’s house. When confronted with the loaded hypodermic

needle, however, Westley told Rayho that her friend Danielle had

borrowed the Ford while they were at Higgins’s house. Westley

did not provide any information about Danielle. Rayho then

3 Rayho’s affidavit states that he requested Tanguay’s consent to search the Ford “for weapons.”

6 asked Westley again if she had a driver’s license and this time

she retrieved a temporary New Hampshire driver’s license from

her purse.

Rayho then asked Tanguay if he could speak with him.

Tanguay agreed. During their conversation, Tanguay told Rayho

that he and Westley had been at Higgins’s house that night but

that no one had borrowed the Ford while they were there.

Tanguay also told Rayho that he saw Westley with the sunglass

case and that he believed that there were drugs in the case

because he knew that Westley was a drug user. Rayho then

arrested Westley, who was taken to the Nashua Police Department.

Rayho and Tanguay then moved to the rear of the Ford where

Rayho asked Tanguay about the lock on his backpack. Rayho

observed that Tanguay appeared to become very nervous. Tanguay

stared back at Rayho, as if he were trying to think of an

answer. Tanguay eventually told Rayho that an “unknown

individual” had placed a lock on the backpack. Rayho arrested

Tanguay at approximately 12:55 a.m. for possession of drugs in a

motor vehicle. Earnshaw drove Tanguay to the police station.

7 Rayho tried to call the registered owner of the Ford but was

unsuccessful. Because he could not locate the owner, Rayho

called a tow truck to remove the Ford from the lot. Rayho

removed Westley’s purse, the backpack, and two cell phones in

order to bring them back to the police department. Rayho also

completed an inventory form documenting the items left in the

Ford. During this process, Rayho completed a records check on

the Ford and determined that the Ford had not been reported as

being stolen. The Ford was then towed to an independent tow

yard. At the police station, the purse was placed with

Westley’s personal property and the cell phones were placed with

Tanguay’s personal property. Rayho kept the backpack for

safekeeping and because he wanted to ask Tanguay about it.

At around 3:30 a.m., Tanguay agreed to a post-Miranda,

unrecorded interview.4 Rayho brought the backpack into the

interview room and asked Tanguay about it. Tanguay sighed and

put his hands on his head. He told Rayho that the backpack was

his. He then informed Tanguay that he believed that there was

something illegal in the backpack. He further elaborated that

an unnamed person had put three to five illegal items in his

backpack earlier and then placed the lock on it. Tanguay also

Before beginning the interview, Rayho reviewed Tanguay’s 4

Miranda rights with him, and Tanguay signed a form indicating that he understood those rights.

8 asked Rayho what his bail would be if there were multiple

illegal items in his backpack. Rayho responded that he did not

know what the bail would be because he was not a bail

commissioner.5

Rayho then asked Tanguay for his consent to search the

backpack. Rayho informed Tanguay that he could refuse to consent

but that he believed there was probable cause for a search

warrant. Rayho also informed Tanguay that because of the time

he would not seek a warrant until later in the day. Rayho

explained to Tanguay that if he refused to consent to the

search, his bail would be set for his misdemeanor charges but

other charges might follow at a later date if he found anything

illegal in the backpack. Tanguay consented to a search of the

backpack.

Tanguay’s consent was memorialized in a Nashua Police

Department consent to search form. Rayho prepared the form by

filling in the necessary information, including indicating that

the item to be searched was Tanguay’s backpack. After filling

out the form, Rayho gave it to Tanguay to read. The form, as

completed, provided that Tanguay had “been informed of [his]

Constitutional Right not to have a search made of my [backpack]

5 At some point during the interview, the Bail Commissioner entered the room and asked Rayho if the interview was done. Rayho responded that the interview had not yet finished.

9 without a Search Warrant and of my right to refuse to consent to

such a search.” Tanguay informed Rayho that he understood the

form and had no questions. Tanguay then signed the form.

Rayho next removed the lock with bolt cutters. Inside the

main compartment Rayho found several items, including pills,

which he believed were prescription medication, 49.1 grams of

methamphetamine, 30.94 grams of fentanyl, drug paraphernalia,

and an electric scale. Rayho also found pieces of mail that had

Tanguay’s name on them.

Discussion

Tanguay contends that the evidence obtained from the Ford

and the backpack should be suppressed because it is the result

of illegal seizures and searches. In support, Tanguay argues

that Rayho stopped him without any legal basis and that the stop

exceeded the scope of the Fourth Amendment’s limits. Tanguay

also argues that the evidence should be suppressed because the

warrantless searches of the Ford and the backpack violated the

Fourth Amendment.

In response, the government argues that Rayho properly

stopped Tanguay and that the search of the Ford was justified

based on the consent exception to the warrant requirement. The

government also contends that the search of the backpack was

10 justified under the consent, automobile, and inevitable

discovery exceptions to the warrant requirement.

I. Seizure

The Fourth Amendment protects “the right of people to be

secure . . . against unreasonable searches and seizures.” U.S.

Const. Amend. IV. The Fourth Amendment’s protections against

unreasonable seizures “apply not only to traditional arrests,

but also to . . . brief investigatory stops generally known as

Terry stops.” Fields,

(internal quotation marks

omitted).

For a stop to be legal, it must be objectively reasonable

based on two inquiries. United States v. Arnott,

(1st Cir. 2014). First, “police are not allowed to make an

initial stop unless they have a reasonable, articulable

suspicion about an individual's involvement in some criminal

activity.”

Second, “[i]f the initial stop passes muster,

actions undertaken during the course of the stop must be

reasonably related in scope to the stop itself unless the police

have a basis for expanding their investigation.”

(internal

quotation marks omitted).

Tanguay argues that Rayho illegally stopped him when Rayho

approached the Ford and began asking him questions. In support,

Tanguay asserts that the Ford was legally parked and he and

11 Westley were doing nothing ostensibly illegal. In addition,

Tanguay contends that the scope of the stop exceeded the limits

for Terry stops.

In response, the government argues that the initial

interaction between Rayho and Tanguay was a consensual

encounter, not a stop implicating the Fourth Amendment’s

protections. Additionally, the government contends that

although this encounter eventually became an investigatory stop,

that was justified by reasonable suspicion. The government also

argues that the stop was not illegal in scope because Rayho’s

actions were justified based on the circumstances that existed

as the encounter progressed and events unfolded.

A. Initial Encounter

The parties agree that an investigatory stop occurred at

some point during the encounter. They disagree, however, about

when that occurred. Tanguay contends that the encounter became

a stop almost immediately and that there was no reasonable

suspicion to support a stop at that time. The government, on

the other hand, argues that Rayho did not initiate a stop until

he learned that Tanguay did not have a license and was not the

registered owner of the Ford.

“Not every police-initiated conversation is a seizure.”

United States v. Espinoza,

(1st Cir. 2007).

12 Rather, some interactions with police are consensual

encounters that do not implicate the Fourth Amendment’s

protections. Florida v. Rodriguez,

(1984).

For instance, “a law enforcement officer does not trigger an

individual's Fourth Amendment protections simply by

approaching the person in public and asking routine

questions.” Espinoza,

. Similarly, “[a]s a

matter of law, approaching a parked car and questioning the

occupant does not necessarily rise to the level of a Terry

stop.” United States v. Taylor,

(1st Cir.

2007) (internal quotations omitted).

A police officer’s interaction with a person becomes a

seizure when the officer makes a “show of authority.” Fields,

. A show of authority occurs when “in view of all

of the circumstances surrounding the incident, a reasonable

person would have believed that he was not free to leave.”

(quoting United States v. Mendenhall,

(1980)).

This test “focuses on whether the conduct of law enforcement

objectively communicates that law enforcement is exercising its

official authority to restrain the individual's liberty of

movement.”

(internal quotation marks omitted). The burden

is on Tanguay “to establish the show of authority that is the

13 necessary predicate for his claimed Fourth Amendment violation.”

Fields,

.

The Supreme Court has identified the following non-

exhaustive circumstances that might indicate a seizure: “(1) the

threatening presence of several officers; (2) the display of a

weapon by an officer; (3) some physical touching of the person;

and (4) the use of language or tone of voice indicating that

compliance with the officer's request might be compelled.”

United States v. Smith,

(1st Cir. 2005) (citing

Mendenhall,

). Beyond those factors, the First

Circuit has also assessed the degree to which police restricted

or obstructed a person’s freedom of movement. See Taylor,

(finding no seizure where parked car “was not in

fact hemmed in from all sides and could have driven forward and

turned left to exit the parking lot”).

Tanguay contends that the combination of the two officers

on the scene, Rayho’s activation of his vehicle’s spotlights and

rear-facing strobe lights, and Rayho’s use of his flashlight

signaled that he was not free to leave. In response, the

government argues that the totality of the circumstances did not

constitute a seizure.

In this case, Rayho parked seven to ten feet behind the

Ford. Based on that distance and the fact that the Ford was in

an empty part of the parking lot, Tanguay could have driven out

14 of the lot. When Rayho approached the Ford, its engine was

running, and Rayho did not tell Tanguay to shut it off until

later when he arrested him. During their initial conversation,

Rayho asked Tanguay and Westley routine and non-accusatory

questions. His tone was upbeat and friendly, and he did not

instruct Tanguay that he had to stay in the lot. Further,

Rayho’s weapon remained holstered, and there is no evidence that

he touched Tanguay or Westley. These facts weigh in favor of a

conclusion that the initial encounter between Rayho and Tanguay

was consensual.

Although Earnshaw was at the scene providing backup, his

arrival was not a threatening presence that would weigh in favor

of finding that a seizure occurred. As an initial matter, the

record is unclear about when Earnshaw arrived and whether he was

in a position in which Tanguay could initially see him. In any

case, there is no evidence that Earnshaw did anything to block

Tanguay’s exit, and during the initial encounter Earnshaw did

not speak to, approach, or touch Tanguay or Westley. See

Fields,

(no seizure where four officers providing

backup did not block suspect or participate in encounter).

Moreover, the addition of one officer providing backup does not

amount to “the threatening presence of several officers.”

Smith,

(emphasis added); see also Fields,

(four officers not a seizure).

15 Tanguay also argues that Rayho’s use of his vehicle’s

spotlights and his flashlight to illuminate the Ford signaled

that he was not free to leave. Generally, the use of lights,

including spotlights, to illuminate a vehicle in the dark does

not convert an otherwise consensual encounter into a seizure.

See Texas v. Brown,

(1963); United States

v. Lawhorn,

(8th Cir. 2013) (“[The] act of

shining a spotlight on a person's car typically does not

constitute a seizure.”); United States v. Douglass,

(7th Cir. 2006) (holding that officer’s use of

flashlights was “insignificant” under free to leave test); State

v. Baker,

(Idaho 2004) (“This Court joins

the many other jurisdictions which have held that the use of a

spotlight alone would not lead a reasonable person to believe

that he was not free to leave, though it may be considered under

the totality of the circumstances.”); People v. Cascio,

(Colo. 1997) (flashlights and spotlights used “as a

matter of practical necessity as the encounter took place when

it was getting dark, and we do not attribute any significance to

their use”).

Here, there is no evidence that Rayho used his spotlight or

flashlight for any purpose other than illuminating the Ford as

he approached. Nor is there any evidence that Rayho used the

spotlight or flashlight in an intrusive manner. Given these

16 facts, and the time when the encounter occurred, Rayho’s use of

his spotlight and flashlight do not weigh in favor of finding a

show of authority.

Rayho’s use of his rear emergency lights presents a closer

question. While a vehicle is in motion, the sight of emergency

lights is an unmistakable signal to the driver that he must stop

and pullover. United States v. Woodrum,

(1st Cir.

2000). Nevertheless, where, as here, a vehicle has stopped

voluntarily, “[c]ourts . . . recognize that under some

circumstances, an officer's conduct in pulling behind a parked

vehicle and activating a squad car's flashing lights does not

result in a seizure.” United States v. Cook,

, at

*3 (D. Minn. Jan. 15, 2015) (collecting cases), aff’d,

(8th Cir. 2016); United States v. Clements,

,

794–95 (7th Cir. 2008) (finding no seizure where officers used

flashing lights to identify themselves before approaching parked

vehicle at night).

Moreover, a number of courts have concluded that the

activation of rear-facing emergency lights does not necessarily

convert a consensual encounter into a seizure. See People v.

Biagi,

, 837–38 (Ill. App. Ct. 2017) (takedown

lights and rear emergency lights do not indicate seizure);

VanLowe v. State,

, at *3-4 (Tex. App. Nov. 6,

2014) (not designated for publication); United States v. Mabery,

17

(8th Cir. 2012); State v. Steeves,

(2009) (officer “did not effectuate a seizure by

activating the rear blue lights”); Clarke v. Com.,

(Va. Ct. App. 2000).

Here, Rayho did not activate his vehicle’s front-facing

lights, and thus did not employ the signal that police

ordinarily use to communicate to a motorist that he or she must

stop. United States v. Cook,

(8th Cir. 2016)

(no seizure where officer’s use of overheard wig-wag lights was

“different from the full light bar which is used to notify

motorists in moving vehicles that they are required to stop”).

Moreover, the strobe lights that Rayho did employ were pointing

away from Tanguay and the Ford. Finally, there are valid safety

reasons why an officer would activate his vehicle’s rear

emergency lights during a consensual encounter occurring in the

dark, including signaling his presence to others drivers and

those with whom he is about to interact. Under these

circumstances, and given the absence of any other coercive

police conduct, the court concludes that a reasonable person in

Tanguay’s position would not have believed that Rayho’s use of

rear-facing strobe lights was a show of authority.

Therefore, based on the totality of the circumstances, the

initial encounter between Rayho and Tanguay was a consensual

18 encounter that did not implicate the Fourth Amendment’s

protections.6

B. Initial Justification for Stop

The government concedes that Rayho’s encounter with Tanguay

and Westley eventually became an investigatory stop. It argues,

however, that the stop was justified because Rayho had

reasonable suspicion that criminal activity was afoot. In

support, the government points to the fact that Tanguay said

that he did not have a license with him and was not the owner of

the Ford. In response, Tanguay argues that there was no

reasonable suspicion of criminal activity at that time.

As discussed above, police may conduct Terry stops when

they have “a reasonable, articulable suspicion about an

individual's involvement in some criminal activity.” Arnott,

. That suspicion must be “grounded in specific

and articulable facts,” which “must amount to more than a

mere hunch but less than probable cause.” United States v.

6 Tanguay argues that Rayho’s testimony demonstrates that “[h]e did not believe the defendant could pull away while he [was] having conversation with him.” The testimony Tanguay cites involved a hypothetical in which Tanguay sped away and “ran over” Tanguay’s foot or attempted to injure him. That hypothetical does not resemble the evidence concerning the encounter at issue. More importantly, however, the subjective intent of Rayho “is irrelevant except insofar as that may have been conveyed to the respondent.” United States v. Mendenhall,

(1980); see also Brendlin v. California,

(2007).

19 Arias, No. 15-1946,

(1st Cir. Feb. 17,

2017) (internal quotation marks omitted). In determining

whether reasonable suspicion existed, the court applies “an

objective standard, rather than assessing the subjective

intent of an individual officer” and considers “the totality

of the circumstances.” United States v. Tiru-Plaza,

(1st Cir. 2014). The government bears the burden of

showing that reasonable suspicion existed. Woodrum,

.

After their initial conversation, Tanguay, who was behind

the wheel of a vehicle with a running engine, told Rayho that he

did not have a driver’s license with him and that he was not the

registered owner of the Ford. Tanguay’s lack of identification

and his use of a vehicle owned by someone else provided

reasonable suspicion that the Ford had been stolen.7 See United

States v. Cardona-Vicente,

(1st Cir. 2016) (“The

driver of the car could not produce a driver's license,

suggesting the Jeep may have been stolen.”); Tiru-Plaza,

(“Morales failed to provide the police officers

with a driver's license and a legible car registration.

Under these circumstances, it was reasonable for the officers

7 The mere fact that Tanguay did not have a license on him raises some level of suspicion, given that New Hampshire drivers are required to be in possession of their licenses while driving. See RSA 263:2.

20 to suspect that the car might have been stolen.”); see also

United States v. Hughart,

(10th Cir.

2016) (officer had reasonable suspicion to detain driver

after determining during the course of a consensual

interaction that he did not have a license). Accordingly,

the investigative stop was initially justified by reasonable

suspicion.

C. Scope of the Stop

Tanguay contends that the scope of the stop exceeded

legal limits. In support, Tanguay focuses on the events

after Rayho abandoned the records check, which, he contends,

were overly intrusive and proceeded despite the lack of

reasonable suspicion. Further, Tanguay argues that the

duration of the stop was too long. In response, the government

contends that the scope of the stop was justified.

“Because a Terry stop allows an individual to be seized

on less than probable cause, the extent of that intrusion

must be limited.” United States v. Pontoo,

(1st Cir. 2011). “If police actions associated with a Terry

stop are too intrusive in nature or too long in duration,

those limits are exceeded.”

When a Terry stop exceeds

its proper scope, it becomes a de facto arrest, requiring

21 probable cause. United States v. Young,

(1st

Cir. 1997).

A de facto arrest occurs when “in light of the totality of

the circumstances a reasonable person in the suspect's position

would have understood [his] position to be tantamount to being

under arrest.” United States v. Candelario-Santana,

(1st Cir. 2016) (internal quotation marks omitted), cert.

denied,

(2017). In making this determination,

courts look to, among other things, “the length of the

detention, the restrictions placed on an individual's

personal movement, the force (if any) that was exerted, the

information conveyed to the detainee, and the severity of the

intrusion.” Pontoo,

(quoting United States v.

Sowers,

(1st Cir. 1998)). “Above all, an

inquiring court must bear in mind that ‘it would be

unreasonable to require that police officers take unnecessary

risks in the performance of their duties.'”

(internal

quotation marks omitted).

Whether a stop is appropriate in duration “is gauged by

whether the officer diligently pursued a reasonable

investigative approach calculated to ensure officer safety

and, at the same time, confirm or dispel his suspicions.”

at 31 (quoting United States v. Sharpe,

(1985)). A stop runs afoul of the Fourth Amendment when

22 an officer engages in investigative activity, absent reasonable

suspicion, that prolongs the stop beyond the time reasonably

required to complete its objective, which includes attending to

“safety concerns.” See United States v. Rodriguez,

(2015). Nevertheless, an officer may conduct certain

unrelated inquiries “so long as [they] do not measurably extend

the duration of the stop.”

The government “bears the

burden of demonstrating that [the] stop fell within the scope of

Terry.” Acosta-Colon,

.

As discussed above, Rayho had a reasonable suspicion that

the Ford had been stolen when Tanguay informed him that he did

not have a license and was not the Ford’s owner. After

acquiring this information, Rayho returned to his vehicle to

conduct a records check. This was a reasonable investigative

approach to confirm or dispel his suspicions about the Ford.

See United States v. Owens,

(1st Cir. 1999).

Rayho aborted the records check, however, after observing

Westley furtively reach under the seat. That decision was both

reasonable and justified based on officer safety concerns.

Westley could have been reaching for a weapon or concealing

contraband, and Rayho’s decision to immediately assess the

situation was justified under the circumstances.

When Rayho returned to the driver’s side of the Ford, his

reasonable suspicion concerning whether the Ford had been stolen

23 remained. In fact, Westley’s furtive movement added to Rayho’s

suspicions that criminal activity might be afoot. At that

point, Rayho used a reasonable investigative approach to confirm

or dispel his suspicions by asking Tanguay additional questions

about his license.

Tanguay argues that the stop escalated to a de facto arrest

when he and Rayho walked to the back of the Ford to retrieve his

driver’s license. Tanguay asserts that this encounter was a de

facto arrest because Rayho compelled him to reveal the location

of his license and then forced him to walk to the back of the

Ford to retrieve it. The record does not support Tanguay’s

theory.

When Rayho asked Tanguay if he had his license the second

time, Tanguay told him it was in the back of the Ford and then

volunteered to retrieve it. There is no evidence that Rayho

coerced Tanguay to reveal the location of his license or to

accompany him to the back of the Ford. The only restriction

that Rayho placed on Tanguay during this time was when he told

him that he preferred, for officer safety purposes, to reach

into the backpack to retrieve the license. That de minimis

restriction on Tanguay’s freedom of movement, however, falls far

short of the coercive action necessary to signal to a reasonable

person that he is under arrest. See United States v. Fornia-

Castillo,

(1st Cir. 2005) (no de facto arrest

24 where officer handcuffed suspect and drew his weapon).

Moreover, that restriction was justified based on the obvious

safety risk of allowing a suspect to reach into a bag that could

conceal weapons, particularly in view of the fact that when

Tanguay got out of the Ford, Rayho had seen what appeared to be

the butt of a pistol tucked into the side of the driver’s door.

In addition, Tanguay argues that the stop became a de facto

arrest when he was required to stand with Earnshaw while Rayho

checked the BB gun. Once Rayho observed what appeared to be a

firearm in the Ford, it was reasonable for him to temporarily

seize the suspected firearm as a safety precaution.8 Directing

Tanguay to stand near Earnshaw while he assessed the danger

posed by the suspected firearm was of minimal intrusiveness and

would not have signaled to a reasonable person that he was under

arrest. See United States v. Campa,

, 738–39 (1st

Cir. 2000) (directing suspects to move a few steps to another

room did not result in a de facto arrest). There is no evidence

8 Flanegan v. O’Leary,

, at *3 (W.D. Pa. Sept. 11, 2015) (upholding temporary seizure of gun during traffic stop); United States v. Reynolds,

, *10 (D.Me. Apr. 21, 2009) (holding that temporary seizure of gun was a reasonable precaution during investigation); see also United States v. Koepnick,

, *1 (9th Cir. Jan.13, 2011) (noting that “every circuit to confront [the] question” of whether police may temporarily seize a gun while executing a warrant has upheld the practice as “a reasonable safety precaution”); United States v. Timpani,

(1st Cir. 1981)(police may seize weapons while executing search warrant).

25 that Earnshaw physically restrained Tanguay, used any force, or

that either officer told Tanguay that he was under arrest.

There is no other evidence in the record that would demonstrate

the level of coercion necessary to escalate the encounter to a

de facto arrest.

Tanguay also argues that Rayho improperly extended the stop

after checking the BB gun because at that point there was no

observable criminal activity. Rayho still had been unable to

confirm or deny his suspicions concerning whether the Ford was

stolen. Moreover, he now knew that Tanguay had lied to him

about having his license and had not told him about the BB gun

in the front door when he had asked whether there were any

weapons in the Ford. Under these circumstances, Rayho was

justified in continuing his investigation.

In any case, Rayho’s next investigative activity was asking

Tanguay for consent to search the car, a question that did not

appreciably extend the stop and one for which no reasonable

suspicion is necessary. Florida v. Bostick,

(1991) (“Even when officers have no basis for suspecting a

particular individual, they may generally ask the individual

questions . . . and request consent to search luggage . . .

provided they do not convey a message that compliance with their

requests is required.”) (internal citations and quotations

omitted)); United States v. Turvin,

, 1103–04 (9th

26 Cir. 2008) (officer’s “request for consent to search did not

unreasonably prolong the duration of the stop”).

Finally, Tanguay contends that the duration of the stop was

too long because, by his estimate, it was at least thirty

minutes. The court disagrees. On the whole, Rayho’s actions

throughout the sequence of events were reasonably calculated

investigative measures designed to confirm or dispel his

suspicions or to protect his safety. Moreover, given the

unfolding events of the stop, Tanguay’s thirty-minute estimate

is not an unreasonably long duration. The First Circuit has

upheld similar traffic stops that were longer in duration. See

Owens,

(fifty-five minute stop necessary to

determine whether driver had license and whether passenger had

authority to drive car); United States v. Sowers,

(1st Cir. 1998) (upholding stop of “at least thirty

minutes”).

II. Consent to Search the Ford

Tanguay argues that the evidence from the backpack should

be suppressed because it is a fruit of the illegal search of the

Ford. In support, Tanguay asserts that the when Rayho obtained

his consent to search the Ford, it amounted to “a coerced

consent to search.” In response, the government argues that it

obtained Tanguay’s consent lawfully.

27 “Consensual searches are a recognized exception to the

Fourth Amendment's warrant requirement, but the government bears

the burden to prove by a preponderance of the evidence that

defendant or an authorized third party gave the consent

voluntarily.” United States v. Pérez-Díaz,

(1st

Cir. 2017) (quoting United States v. Vanvliet,

(1st Cir. 2008)). “Whether the consent was given voluntarily is

a question of fact that ‘turns on the district court's

comprehensive assessment of the totality of the circumstances

attending the interaction between defendant/third party and the

searching officers.’”

(internal quotation marks omitted).

“Factors to be weighed in making this comprehensive assessment

include, but are not limited to, (i) the consenter's age,

education, past experiences, and intelligence; (ii) whether law

enforcement officials advised the consenter of his

constitutional right to refuse consent; (iii) the length and

conditions of the consenter's detention and/or questioning; and

(iv) law enforcement officials' use of any inherently coercive

tactics.”

(internal quotation marks omitted).

Before Rayho requested consent to search the Ford, the

encounter resembled an ordinary, non-coercive traffic stop.

Rayho had attempted to determine if Tanguay had a driver’s

license and to check the records of the Ford. Although Tanguay

did exit the vehicle, he did so voluntarily and not under any

28 coercion. Neither officer used coercive language, spoke in a

threatening tone, drew a weapon, or used physical force against

either Westley or Tanguay. Rather, most of the encounter

proceeded with Rayho making requests and Tanguay agreeing to

those requests. Finally, the entire encounter lasted under

thirty minutes and was not the type of lengthy detention that

could undermine a finding a voluntariness.

In addition, the evidence concerning Rayho’s interactions

with Tanguay do not suggest that he was intimidated in a way

that would render his consent involuntary. Throughout the

encounter, Tanguay interacted with Rayho in an intelligent and

confident manner. He agreed to a records check and assured

Rayho that he had a valid driver’s license. He also assured

Rayho that the suspected firearm was merely a BB gun. Finally,

his response that it was “fine” for Rayho to search the Ford

also demonstrates a lack of vulnerability.

The only factor that might weigh against a finding of

voluntariness is that Rayho did not inform Tanguay that he had a

right to refuse to consent to search. That factor alone,

however, is not dispositive. Brake,

(1st Cir.

2011) (observing that “there is no requirement that the person

who gave consent must have been explicitly advised of the right

to withhold it”). Based on the totality of the circumstances

29 presented here, the court finds that Tanguay voluntarily gave

consent for Rayho to search the Ford.

III. Warrantless Search of the Backpack

Tanguay contends that the contents of the backpack should

be suppressed because it was searched pursuant to an illegal

inventory search of the Ford. In support, Tanguay argues that

Rayho did not catalogue the backpack or deposit it in the

locker, as the Nashua Police Department’s inventory search

policy required. Tanguay also argues that Rayho did not obtain

a warrant before searching the backpack, as the inventory search

policy required for locked containers. In response, the

government does not argue that a valid inventory search

occurred. Rather, the government argues that the search of the

backpack was valid under the consent exception, the automobile

exception, and the inevitable discovery exception to the warrant

requirement.

The court focuses on the automobile exception because it is

dispositive. “Under the ‘automobile exception' to the Fourth

Amendment, police officers may seize and search an automobile

prior to obtaining a warrant where they have probable cause to

believe that the automobile contains contraband.” United States

v. Silva,

(1st Cir. 2014). Under this exception,

“if probable cause justifies the search of a lawfully stopped

30 vehicle, it justifies the search of every part of the vehicle

and its contents that may conceal the object of the search.”

United States v. Goncalves,

, 249–50 (1st Cir. 2011)

(quoting Wyoming v. Houghton,

(1999)).

Accordingly, the exception permits “a probing search of

compartments and containers within the automobile so long as the

search is supported by probable cause.” California v. Acevedo,

(1991) (internal quotation marks omitted)

(allowing police to conduct warrantless search of bag located in

trunk of car).

The exception “is not restricted temporally” and thus there

is “no requirement that the warrantless search of a vehicle

occur contemporaneously with its lawful seizure.” United States

v. McHugh,

(1st Cir. 1985). Accordingly,

under the exception, law enforcement may seize the vehicle,

relocate it to the police station, and search its contents

there. United States v. Lopez,

(1st Cir.

2004). Likewise, the automobile exception allows law

enforcement to seize a vehicle, remove any containers that

they have probable cause to believe are concealing

contraband, and search those containers without a warrant so

long as the search is done within a reasonable time frame.

United States v. Johns,

(1985) (allowing

31 warrantless search of containers three days after being

removed from trucks); United States v. Oliver,

(10th Cir. 2004) (“[B]ecause police had probable cause to

believe that package in automobile contained contraband,

automobile exception permitted package's warrantless seizure and

subsequent search at police station.” (internal citation

omitted)); United States v. Albers,

(9th

Cir. 1998).9

To take advantage of the automobile exception, “the

government must demonstrate that law enforcement officers had a

belief, reasonably arising out of circumstances known to the

seizing officer, that the vehicle contained that which by law is

subject to seizure.” United States v. Bucci,

(1st Cir. 2009). This standard is satisfied “when the totality

of the circumstances create a fair probability that evidence of

a crime will be found in a particular place.” United States v.

White,

(1st Cir. 2015), cert. denied.

(2016).

The government contends that the automobile exception

applies here because Rayho had probable cause to believe that

9 Wayne R. LaFave, 3 Search and Seizure § 7.2(d) n.161 (5th ed. 2016) (“[I]f there is probable cause as to a package in the vehicle, the package may be removed and then may be searched without a warrant with a reasonable time after its removal from the vehicle.” (internal quotation marks omitted).

32 the Ford and the backpack contained contraband. The facts

support the government’s argument. At the time of the

search, Rayho had already discovered what appeared to be

narcotics and drug paraphernalia in a sunglass case inside

the Ford. Evidence of narcotics or drug paraphernalia found

in a vehicle supports probable cause to search the entire

vehicle for narcotics. United States v. Staula,

(1st Cir. 1996) (“Here, [the officer's] discovery of the

marijuana gave him probable cause to continue to hunt within

the passenger compartment for more contraband.”); see also

United States v. Barmore,

, at *1 (5th Cir. Feb.

20, 2017) (attempt to conceal drug pipe provided probable cause

“to believe that there were other items of contraband related to

illegal drug activity in the truck”); United States v. Richmond,

(8th Cir. 2014) (discovery of drugs in

vehicle provided probable cause to believe the rest of vehicle

contained narcotics).

Moreover, other facts would have led a reasonable person to

conclude that the Ford contained contraband. Rayho had evidence

that Tanguay and Westley were involved in either drug use or

trafficking. A confidential informant had told Rayho that a

person with the name “Eric Tanguay” was involved in drug use and

distribution. The presence of drugs in the Ford and the fact

33 that Tanguay’s wallet contained a large amount of cash also

suggested that Tanguay was involved in narcotics distribution.

Further, Tanguay himself had informed Rayho that he assumed the

sunglass case contained drugs because Westley was a drug user.

Finally, Tanguay and Westley’s behavior suggested that they

were concealing contraband in the Ford and, specifically, in the

backpack. Both Tanguay and Westley did not tell the truth about

having their driver’s licenses with them. Tanguay did not tell

the truth about the presence of the BB gun in the Ford. Tanguay

and Westley gave different accounts of where they had been and

who was in possession of the Ford before the encounter.

Tanguay’s backpack was secured with a padlock, and when asked

about it he became nervous and gave an implausible explanation

for why the backpack was locked. See United States v. Goode,

, at *4 (E.D. Pa. Dec. 16, 2011) (defendant’s

nervous behavior and implausible answers to questions

contributed to finding of probable cause to search vehicle for

contraband), aff’d sub nom. United States v. Mebrtatu,

(3d Cir. 2013), and aff’d,

(3rd Cir.

2013).

Based on those facts, Rayho had probable cause to search

the Ford and the backpack for contraband under the automobile

exception. Because Rayho had probable cause to believe that the

34 backpack contained contraband, he was also entitled to remove it

from the Ford and search it within a reasonable time frame.

Given that Rayho searched the backpack within hours of the stop,

the search did occur within a reasonable time. Therefore,

Rayho’s warrantless search of the backpack was permissible under

the automobile exception to the warrant requirement.

The warrantless search of the backpack at the police

station was further justified because Tanguay voluntarily

consented to the search. Although the fact Tanguay was in

custody is not enough by itself to render consent

involuntary, it does raise a “sensitivity to the heightened

possibility of coercion.” United States v. Jones,

(1st Cir. 2008). In addition, the early hour when

Rayho questioned Tanguay is another factor weighing against

voluntariness. United States v. Real Prop. & Premises Known

as 90-23 201st St., Hollis, N.Y.,

(E.D.N.Y. 2011).

Nevertheless, based on the totality of the circumstances,

the court concludes that Tanguay provided voluntary consent

to search his backpack. Rayho’s testimony of the interview

demonstrates that it was a civil discussion free of any

inherently coercive tactics. Rayho read Tanguay’s Miranda

rights to him, and Tanguay executed a form acknowledging that

35 he understood them. Further, before providing consent,

Tanguay executed a consent to search form, in which he

authorized the Nashua Police Department to search his

backpack and acknowledged that he had been informed of his

“right to refuse to consent” to the search. Rayho also

informed Tanguay that if he chose not to provide consent, he

could still be booked and have his bail set.10 Rayho did not,

contrary to Tanguay’s assertion, imply or state that Tanguay

would not receive bail unless he consented to the search.

Taken together, these facts demonstrate that the interview

was not coercive.

Therefore, the government had the authority to conduct a

warrantless search of the backpack based on Tanguay’s

consent.11

10Although Rayho did tell Tanguay that he believed that he had probable cause to obtain a warrant to search the backpack, that statement cannot be considered misleading, especially given that Tanguay had admitted that the backpack contained illegal items. United States v. Vazquez,

(1st Cir. 2013)(“[T]he law is . . . clear that consent to a search is not invalid merely because it is secured by an officer's accurate assurance that there will soon be a lawful search anyway).

11Because the court concludes that the warrantless search of the backpack was justified under other exceptions, the court need not consider whether the inevitable discovery exception applies here.

36 Conclusion

For the foregoing reasons, Tanguay’s motion to suppress

evidence (doc. no. 13) is denied.

SO ORDERED.

__________________________ Joseph A. DiClerico, Jr. United States District Judge

April 27, 2017

cc: Jennifer C. Davis, Esq. Stanley W. Norkunas, Esq. U.S. Probation U.S. Marshal

37