United States Court of Appeals For the First Circuit

No. 18-1639

UNITED STATES OF AMERICA,

Appellee,

v.

TEM TOM,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE

[Hon. D. Brock Hornby, U.S. District Judge]

Before

Howard, Chief Judge, Kayatta and Barron, Circuit Judges.

Chauncey B. Wood and Wood & Nathanson, LLP on brief for appellant. Benjamin M. Block, Assistant United States Attorney, and Halsey B. Frank, United States Attorney, on brief for appellee.

February 17, 2021 HOWARD, Chief Judge. Tem Tom appeals from his conviction

for possession of a controlled substance with intent to distribute

in violation of

(a)(1) and (b)(1)(B). His sole

claim is that the district court committed reversible error in

denying Tom's motion to suppress evidence of drugs and cash that

were recovered from him and the other occupant of the car after an

investigatory motor vehicle stop. As in the district court,

whether the evidence should have been suppressed comes down to

whether reasonable suspicion existed at the time officers

approached the vehicle in which Tom was a passenger and directed

its occupants to exit. Finding no basis to disturb the district

court's conclusion that the officers had reasonable suspicion, we

affirm.

I. FACTS

When considering the denial of a motion to suppress,

"[w]e recite the facts as found by the district court, consistent

with record support[,]" including the testimony from the motion

hearing. United States v. Soares,

(1st Cir. 2008). In late 2016, the federal Drug Enforcement Agency

was investigating suspected drug dealing by Denis Ochan. As part

of the investigation, a confidential informant conducted

controlled purchases of crack cocaine from Ochan on three separate

occasions in late 2016 and early 2017. After that, the Drug

Enforcement Agency (DEA) coordinated a final "buy/bust operation"

- 2 - against Ochan; as the term suggests, the agents intended to arrest

Ochan upon making a final purchase from him.

The planned takedown took place on February 2, 2017, at

a shopping center located across the street from Ochan's residence

in Portland, Maine. The confidential informant waited in a vehicle

in the shopping center's parking lot, with $500 that agents had

provided him to purchase approximately five grams of crack cocaine

from Ochan. Given their positioning within the parking lot and

the audio equipment that they had positioned on the informant, the

agents could see and hear all of the informant's interactions.

Meanwhile, another group of agents maintained

surveillance on Ochan's residence, part of a three-family

building. Those agents observed two men in a "green Chevy Cruze

with a New York license plate" turn into Ochan's driveway and pull

around to the back of the building, disappearing from view. Less

than two minutes after the Chevy arrived, an agent observed a "male

c[ome] around from the back of the apartment building" and enter

a door at the rear left corner of the building. Approximately ten

minutes later, that same person and Ochan exited the building

together through the same door and walked behind the building.

The back of the building remained out of the agents' view.

Reemerging, Ochan crossed the street towards the

shopping center. Agents watched as Ochan entered the informant's

vehicle. After hearing Ochan and the informant's entire

- 3 - conversation, agents moved in and arrested Ochan. A search of

Ochan turned up approximately four grams of crack cocaine and $530

in cash. After initially denying having met with anyone, Ochan

told the agents that he had obtained the crack cocaine from the

individuals in the green Chevy that had pulled up to his residence.

While these events were taking place at the shopping

plaza, the agents surveilling Ochan's residence observed the Chevy

drive away from the building less than ten minutes after Ochan

left. Some of the agents followed the Chevy as it proceeded toward

downtown Portland. When the Chevy stopped approximately two miles

later, uniformed Portland Police Department officers were the

first to approach it. Tom was the passenger in the vehicle. After

asking Tom and the driver to exit the Chevy, the officers found

cocaine base on the driver's seat and on both Tom and the driver.

They were both placed under arrest.

II. PROCEDURAL HISTORY

In March 2017, a federal grand jury indicted Tom for

knowing and intentional possession of 28 grams or more of cocaine

base with the intent to distribute, in violation of

(a)(1) and (b)(1)(B). Tom filed a motion to

suppress the evidence of drugs and money found as a result of the

search, which the district court denied after conducting an

evidentiary hearing. Tom subsequently entered a conditional

guilty plea, reserving his right to appeal the denial of his

- 4 - suppression motion. After being sentenced to 84 months of

incarceration and eight years of supervised release, Tom timely

appealed.

III. ANALYSIS

A. Standard of Review

When considering a district court's denial of a motion to

suppress, we review findings of fact for clear error and apply de

novo review to the application of law to those facts and to

conclusions of law. United States v. Rheault,

(1st Cir. 2009); United States v. Jones,

(1st Cir.

2008). We "will uphold a denial of a motion to suppress if any

reasonable view of the evidence supports it." United States v.

Holloway,

(1st Cir. 2007) (quoting United States

v. Garner,

(1st Cir. 2003)).

B. The District Court's Reasoning

Tom argued before the district court that the officers

did not have reasonable suspicion to support the traffic stop. He

leaned heavily on his view that Ochan's statements implicating the

individuals in the Chevy were unreliable.

Unpersuaded, the court issued an oral ruling denying the

motion. In its statements on the record, the district court

recognized that the stop had to be supported by "a reasonable and

articulable suspicion of criminal activity." The district court

noted that reasonable suspicion had to be "more than a naked hunch"

- 5 - yet "does not require either probable cause or evidence of a direct

connection linking the suspect to the suspected crime." For all

of this, the district court cited United States v. Chhien,

(1st Cir. 2001).

In explaining its reasoning, the district court

emphasized that the officers had prior knowledge of Ochan's drug

activity, that the Chevy arrived shortly before the drug sale and

left only after it, that one of the occupants appeared to have

interacted with Ochan, and that the officers recovered drugs from

Ochan's person. The district court stressed that "this was not a

mere hunch" and that there was an objectively reasonable suspicion

to search the Chevy once the officers arrested Ochan and found the

drugs on him. Importantly, the district court clarified that

reasonable suspicion existed independent of Ochan's statements

that he had obtained drugs from the individuals in the Chevy.

C. Reasonable Suspicion Existed

Before us, Tom maintains that reasonable suspicion did

not exist. According to Tom, Ochan's statements were both

essential to any finding of reasonable suspicion and were not

sufficiently reliable under United States v. Jones,

(1st Cir. 2012), and related cases. Tom's argument fails at

its first step. Reasonable suspicion existed without Ochan's

statements.

- 6 - The moment upon which we focus our attention is when the

officers approached the stopped Chevy and directed its occupants

to step out of the car. "Such stops are reasonable, and

consequently do not offend the Fourth Amendment, only where

officers have a reasonable suspicion supported by articulable

facts that criminal activity may be afoot." United States v. Tiru-

Plaza,

(1st Cir. 2014) (internal citations and

quotations omitted). In determining whether reasonable suspicion

existed, courts ask whether the totality of the circumstances

provided the officers with more than an "unparticularized

suspicion or hunch" that the individual was involved in specific

criminal activity.

at 116 (quoting United States v. Sokolow,

(1989) (internal quotation marks omitted).

In conducting our review of the facts, we accept the

reasonable inferences drawn by the district court and by the law

enforcement officers on the scene. See Ornelas v. United States,

(1996). On this record, a reasonable view of

the evidence supports the district court's conclusion that the

officers had reasonable suspicion that the car's occupants were

involved in the drug transaction that law enforcement had arranged

and agents had just observed.

Based on the previous controlled drug sales in which

agents had seen Ochan participate -- including the sale that day

-- agents had specific knowledge that Ochan sold drugs. From

- 7 - there, the sequence of events on the day of Tom's arrest -- and

the reasonable inferences generated by that sequence of events --

is central in the reasonable suspicion calculation. On that day,

the Chevy, with its New York license plate, drove to the back of

Ochan's residence just before the scheduled buy/bust. Shortly

after, a male appeared from behind the building -- where the Chevy

had just gone -- and entered the building. The man was then seen

eight to ten minutes later going behind the building with Ochan.

Next, Ochan reappeared and went directly across the street to meet

with the informant and conduct the drug sale. All of these

observations contributed to the development of a reasonable

suspicion that there was a meaningful, articulable link between

the occupants of the Chevy and Ochan's illegal activities.

When the agents arrested and searched Ochan, the drugs

and cash recovered on him added to the evidence indicating that he

was actively engaging in drug sales. That recovery also added to

the suspicion that the individual from the Chevy with whom Ochan

had just been seen might be involved in the drug activity. Still

more, the Chevy did not leave Ochan's building until minutes after

Ochan's arrest, solidifying the reasonability of the officers'

suspicion that its occupants were implicated in the drug activity.

Since we agree with the district court that reasonable suspicion

existed before the officers elicited the incriminating statements

from Ochan, we do not need to address whether he was reliable.

- 8 - See United States v. Mayendía-Blanco,

(1st Cir. 2018) (recognizing that "[t]he simplest way to decide a

case is often the best" (alteration in original) (quoting

Stor/Gard, Inc. v. Strathmore Ins. Co.,

(1st Cir. 2013))).

Tom argues in response that the officers could not have

been certain that the person who entered Ochan's building was one

of the individuals from the Chevy or that the person who entered

the building went to Ochan's apartment. He also points out that

Ochan and this person were not seen speaking to each other as they

left the building. But it is well established that reasonable

suspicion does not preclude the existence of some confounding

facts. See New Jersey v. T.L.O.,

(1985)

(recognizing that "the requirement of reasonable suspicion is not

a requirement of absolute certainty: 'sufficient probability, not

certainty, is the touchstone of reasonableness under the Fourth

Amendment'" (quoting Hill v. California,

(1971))).

Tom makes one additional argument. In his view, the

officers who searched him could not have had reasonable suspicion

because they approached him only after Ochan's interrogation. But

law enforcement officers are not required to act as soon as they

develop reasonable suspicion. A rule to the contrary would

disincentivize diligence. See United States v. Silva,

,

- 9 - 8 (1st Cir. 2014). And we do not consider an officer's subjective

intent when evaluating objective reasonableness. See Whren v.

United States,

(1996) ("[T]he Fourth Amendment's

concern with 'reasonableness' allows certain actions to be taken

in certain circumstances, whatever the subjective intent."). In

sum, we will not penalize agents for continuing to investigate

after establishing reasonable suspicion.

The district court's decision to reject Tom's motion to

suppress was sound. The officers had reasonable suspicion that

the occupants of the Chevy were involved in illegal drug activity,

and the decision to approach the car and search Tom was therefore

objectively reasonable under the Fourth Amendment.

IV. CONCLUSION

For the foregoing reasons, we affirm the conviction.

- 10 -