United States Court of Appeals For the First Circuit

No. 22-1111

UNITED STATES OF AMERICA,

Appellee,

v.

YOLANDA HOWARD,

Defendant, Appellant.

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

[Hon. George Z. Singal, U.S. District Judge]

Before

Kayatta, Gelpí, and Montecalvo, Circuit Judges.

Robert C. Andrews for appellant. Brian S. Kleinbord, Assistant United States Attorney, with whom Darcie N. McElwee, United States Attorney, was on brief for appellee.

April 19, 2023 GELPÍ, Circuit Judge. Defendant-Appellant Yolanda

Howard ("Howard") was a passenger in a single-vehicle car crash on

the Maine Turnpike. Maine State Police Troopers responded and

became suspicious that the vehicle or its occupants were

transporting drugs. After a search of Howard's bag revealed

suspected narcotics, troopers placed her under arrest for

possession with intent to distribute a controlled substance, in

violation of

(a)(1). Following the district

court's denial of Howard's motion to suppress the drug evidence,

she pled guilty. Because we conclude that Howard's initial

encounter with police was not a traffic stop, that any subsequent

seizure of Howard -- if one occurred at all -- was supported by

reasonable suspicion, and that she voluntarily consented to the

search of her bag, we affirm.

I. Background

A. Facts

When reviewing the denial of a motion to suppress, "we

take the facts from the district court's decision and from the

suppression hearing, presenting them in the light most compatible

with the district court's ruling." United States v. Dion,

(1st Cir. 2017).

- 2 - At approximately 7:01 a.m.1 on February 28, 2019, Maine

State Police Trooper Lee Vanadestine ("Trooper Vanadestine") was

working a patrol shift on the Maine Turnpike. While traveling

northbound, he observed that a vehicle -- approximately 100 feet

off the right side of the road -- had crashed into a snowbank and

that four people were standing around it. The crash site was miles

away from the nearest exit or service plaza. Trooper Vanadestine

activated his emergency lights and pulled over to assess the scene

and check whether anyone was hurt. Around this same time, he

radioed dispatch about the crash and requested a tow truck. As he

exited his vehicle, three individuals approached him, however, the

fourth -- later identified as Howard -- walked through the snow in

the opposite direction.

After speaking with the three individuals that

approached him, Trooper Vanadestine learned that one was a witness,

who observed the vehicle go off the road, and that the other two

(a male and a female), along with Howard, were occupants of the

crashed vehicle. Trooper Vanadestine determined that the female,

Jacqueline Paulson ("Paulson"), was the driver of the crashed

vehicle and that the male, Beau Cornish ("Cornish"), was a

1 Trooper Vanadestine testified that he approached the crash around 6:50 a.m., however, the video from his dashboard camera -- that he testified is dated and timed correctly -- begins at 7:01 a.m. We rely on the video's timing in our recitation of the facts and subsequent discussion.

- 3 - passenger. Based on his initial conversation with Paulson and

Cornish, Trooper Vanadestine believed that their stories about

where they were coming from and heading to were not lining up and

observed that they were acting like they did not know one another.

While Trooper Vanadestine spoke with Paulson and Cornish, Howard

avoided the group, remaining approximately fifty feet away from

Trooper Vanadestine. She also never attempted to speak with him.

Around 7:05 a.m., Howard, who was talking on her phone, walked

into the roadway at least twice in what Trooper Vanadestine

believed was an attempt to read the road signs. He instructed her

to stay out of the roadway for her own safety.

At approximately 7:06 a.m., Trooper Anthony Keim

("Trooper Keim") arrived on scene to assist Trooper Vanadestine.

The two troopers questioned and checked the identifications of the

vehicle's occupants, as well as Paulson's registration and

insurance information. Cornish told Trooper Vanadestine during

their initial conversation that his name was Levi Veno but provided

no identification. Around 7:07 a.m., the troopers spoke with

Paulson, who produced a Maine driver's license but was unable to

provide registration or insurance information for the vehicle.

Paulson told the troopers that the group was on a trip, that she

knew the passengers, that the female was her friend, and that the

male's name was Levi. At around 7:08 a.m., Trooper Keim spoke

with Howard, who produced a New York identification card and told

- 4 - him that the group was traveling from New York. She identified

the driver of the vehicle as Casey and could not provide

information about the male passenger other than telling Trooper

Keim that he was the driver's boyfriend.

While Trooper Keim spoke with Howard, Trooper

Vanadestine contacted Maine State Police Sergeant Thomas Pappas

("Sergeant Pappas") to inform him that he suspected the vehicle or

its occupants carried drugs. During the call, Trooper Vanadestine

explained that the occupants appeared to not know one another,

where they were going, or where they were coming from. Trooper

Keim approached Trooper Vanadestine while he was on the phone and

expressed the same concern about the occupants not knowing one

another. Trooper Vanadestine explained to Sergeant Pappas that

the occupants claimed that they went to New York to pick up Howard,

who had walked away in the snow when Trooper Vanadestine arrived

and would not go near him. After the call concluded, at

approximately 7:11 a.m., Trooper Keim ran the name Levi Veno and

came back with a photograph and description that did not match the

male passenger. Around 7:13 a.m., Trooper Keim confronted the

male passenger, obtained his true name -- Beau Cornish -- and

learned that Cornish potentially had warrants out for his arrest.

At 7:14 a.m., Trooper Keim arrested Cornish, placed him in the

front seat of his cruiser, and, at 7:20 a.m., confirmed that

Cornish had outstanding warrants. During this same period of time,

- 5 - Trooper Vanadestine observed Howard and Paulson standing together,

talking, and trading cell phones back and forth.

Around 7:23 a.m., Trooper Vanadestine allowed Paulson to

sit in his cruiser to get warm while he interviewed her because it

was eight degrees outside. Before Paulson entered his cruiser,

Trooper Vanadestine patted down her outer clothing to ensure that

she did not have weapons. By this time, the troopers were aware

that Howard had no warrants out for her arrest. Shortly

thereafter, at 7:30 a.m., Trooper George Loder ("Trooper Loder")

arrived at the scene. Because it was cold and Trooper Keim and

Trooper Vanadestine's cruisers were occupied by Cornish and

Paulson respectively, Trooper Keim asked Trooper Loder if Howard

could sit in his cruiser to get warm. Trooper Loder agreed.

Unlike traditional police vehicles where the backseat is

separated from the front seat by a cage or glass partition, the

cruisers involved here are undivided. Per Maine State Police

policy, troopers transport individuals in the front passenger seat

of their cruisers. Anyone entering the front passenger seat area

is patted down beforehand for officer safety, and individuals

seated there may exit the cruiser through the front passenger side

door, which has a functional interior handle.

At 7:33 a.m., as Trooper Loder cleared out his front

seat, Trooper Keim beckoned over Howard, who was on the phone, to

sit in the cruiser. At no point did the troopers tell Howard that

- 6 - she had to get into the cruiser or that she was not free to leave.

Trooper Keim testified that Howard appeared eager to get out of

the cold. Before allowing her to sit, Trooper Keim asked whether

he needed to be concerned about anything in the cloth, open-top

bag that she was carrying and asked that she hand it to him. She

handed over the bag, and he placed it in the back seat of Trooper

Loder's car. Then, Trooper Loder conducted a limited pat down of

her jacket pockets for safety purposes. By 7:34 a.m., Howard was

seated in the front passenger seat of Trooper Loder's cruiser.

Around the same time that Howard entered the cruiser,

Sergeant Pappas arrived and requested that Howard exit the vehicle

so that a female trooper could conduct a full pat down. According

to Pappas, a full pat down is required before a person enters a

cruiser, even if they are not suspected of committing a crime, to

ensure officer safety. Howard complied. Around the time that

Howard exited the cruiser -- at approximately 7:35 a.m. -- the tow

truck that Trooper Vanadestine requested finally arrived.

By 7:38 a.m., Trooper Jodell Wilkinson ("Trooper

Wilkinson"), a female K9 officer, had arrived on scene and

conducted the more thorough pat down of Howard's outer clothing.

At approximately the same time, Sergeant Pappas informed Trooper

Loder that Howard's bag should not be searched without her consent.

At 7:39 a.m., after Howard was patted down, Sergeant Pappas asked

her if the items in the back seat of Trooper Loder's cruiser

- 7 - belonged to her and if troopers could go through the items quickly.

Before she could reply, he asked, "Mind if we search those items?"

Howard responded, "huh?" and Sergeant Pappas again asked, "Do you

mind? Can we search the items?" Howard then responded

affirmatively.2 The district court found that Trooper Loder and

Sergeant Pappas testified credibly that Howard said "yes" in

response to Sergeant Pappas's question and both understood that

she had consented to a search of her bag.

Before the search began, Sergeant Pappas told Howard,

who was standing unrestrained near Trooper Loder's cruiser, that

she could sit inside. Howard got back into the front passenger

seat at 7:39 a.m. Once inside, she sat facing the rear seat and

talked with Trooper Loder as he searched her bag. At 7:40 a.m.,

Howard told Trooper Loder that she had someone who was willing to

come pick her up and he responded, "We'll talk about that if we

get to that point." Around 7:44 a.m., Trooper Loder found what he

believed to be bundles of narcotics inside Howard's bag. He

alerted Sergeant Pappas, asked Howard to step out of the cruiser,

2Howard asserts that the exact words she used were, "I guess." However, the government claims that Howard replied, "Yes." The district court reviewed the audio recordings and found that, although they were not entirely clear, Howard's reply sounded closer to, "Yes, sir." We also reviewed the recordings and agree with the district court's finding. Nevertheless, the precise language Howard used is inconsequential since Howard does not contend on appeal that she did not consent to the search of her bag, just that said consent was involuntary.

- 8 - placed her under arrest and in handcuffs, and then returned her to

the cruiser.

B. Procedural History

Howard was indicted for possession with intent to

distribute a mixture or substance containing fentanyl, cocaine,

and cocaine base, in violation of

(a)(1). She moved

to suppress the controlled substance that served as the basis for

her indictment, arguing that troopers obtained the evidence in

violation of her Fourth Amendment rights. The government opposed

suppression, and the district court conducted an evidentiary

hearing where five troopers testified and the government submitted

video evidence. The district court ultimately denied Howard's

motion, concluding that the troopers did not unlawfully prolong

the accident investigation because they possessed reasonable

articulable suspicion to request a drug sniff of the crashed

vehicle and that Howard -- who was not in custody based on the

totality of the circumstances -- voluntarily consented to the

search of her bag. Following the denial of her motion, Howard

conditionally pled guilty, reserving her right to appeal the

district court's suppression decision.

II. Standard of Review

We review factual findings in the district court's

suppression decision for clear error. United States v. Tiru-Plaza,

(1st Cir. 2014). "A clear error exists only if,

- 9 - after considering all the evidence, we are left with a definite

and firm conviction that a mistake has been made." United States

v. Ferreras,

(1st Cir. 1999). Notably, "when two

or more legitimate interpretations of the evidence exist, the

factfinder's choice between them cannot be deemed clearly

erroneous." United States v. Espinoza,

(1st Cir.

2007).

In contrast, we review the district court's legal

conclusions de novo. Tiru-Plaza,

. Ultimately, we

will affirm the district court's denial of the suppression motion

"provided that any reasonable view of the evidence supports the

decision," Ferreras,

, and in doing so, "we are not

wed to the district court's reasoning but, rather, may affirm its

suppression rulings on any basis apparent in the record," United

States v. Arnott,

(1st Cir. 2014).

III. Discussion

A. The Initial Encounter

Before we reach the merits of Howard's argument that she

was unlawfully detained, we find it necessary to outline some

applicable Fourth Amendment principles.

The Fourth Amendment protects against "unreasonable

searches and seizures." U.S. Const. amend. IV. A "seizure occurs

when a police officer 'has in some way restrained the liberty of

a citizen' through 'physical force or show of authority.'" United

- 10 - States v. Camacho,

(1st Cir. 2011) (quoting Terry

v. Ohio,

, 19 n.16 (1968)). Determining whether a

seizure occurred is usually a fact specific inquiry, see, e.g.,

United States v. Tanguay,

(1st Cir. 2019), however,

the Supreme Court has established that a motor vehicle stop for a

traffic violation constitutes a Fourth Amendment seizure, Delaware

v. Prouse,

(1979). When an unconstitutional

seizure occurs, courts enforce the Fourth Amendment's proscription

by excluding evidence obtained during said seizure. Camacho,

(explaining motions to suppress are premised upon the

exclusionary rule).

Howard assumes, without discussion, that a valid Fourth

Amendment traffic stop occurred when troopers arrived on scene to

investigate the accident and therefore asserts that the relevant

inquiry here is whether troopers were justified in prolonging the

traffic stop and expanding its mission to investigate drug

trafficking per Rodriguez v. United States,

(2015).

The district court used this analytical framework in deciding the

motion to suppress, citing to Rodriguez and United States v. Orth,

(1st Cir. 2017), both of which involved traffic stops.

The government contends -- for the first time on appeal -- that

Howard was not seized within the meaning of the Fourth Amendment

when troopers responded to the crash because they did not conduct

a traffic stop, and, in any event, the troopers were engaged in

- 11 - community caretaking. Howard left the government's argument

uncontradicted when she failed to file a reply brief. Noting that

"[w]e are not committed to the district court's reasoning" in

affirming the motion to suppress, see United States v.

Cabrera-Polo,

(1st Cir. 2004), we conclude based

on the facts before us that the encounter was not a traffic stop.

For a traffic stop to have taken place, Trooper

Vanadestine would have had to seize the vehicle (pull it over) for

a traffic infraction, but the record is clear that that did not

take place here. Cf. United States v. Harrington,

(1st Cir. 2022) (evaluating an investigatory police encounter

with occupants of a vehicle as a Terry stop, as opposed to a

traffic stop, where the automobile was already stopped and parked

before police approached); Espinoza,

(using Terry

framework to evaluate whether agent approaching a vehicle amounted

to a seizure where the agent "played no part in bringing the van

to a halt"). Rather, while traveling the Maine Turnpike at the

end of his shift, Trooper Vanadestine came upon a recently crashed

vehicle, surmised that the occupants needed help, and pulled over

to assist. Because no traffic stop occurred here, we need not

employ the Rodriguez framework utilized by the district court.

But just because this was not a traditional traffic stop

does not mean that a Terry stop -- a specific type of Fourth

Amendment seizure -- did not occur when troopers arrived on scene.

- 12 - We still must assess whether the circumstances rendered the initial

encounter and questioning a seizure, and, if so, whether it was

supported by the requisite level of suspicion or was otherwise

permissible for a different reason, such as community caretaking.

See United States v. Taylor,

(1st Cir. 2007)

(evaluating whether a Terry stop resulted from police approaching

a parked car); Espinoza,

(same).

The Fourth Amendment does not prevent "all contact

between the police and the citizenry," United States v. Mendenhall,

(1980) (Stewart, J.), and no constitutional

intrusion arises from police merely "approaching individuals on

the street or in other public places and putting questions to them

if they are willing to listen," United States v. Drayton,

(2002). A Terry stop is "a brief detention that permits

a police officer to . . . 'approach a person for purposes of

investigating possibly criminal behavior even though there is no

probable cause to make an arrest.'" Harrington,

(quoting Terry,

). A Terry stop occurs "whenever a

police officer accosts an individual and restrains his freedom to

walk away." Terry,

. Such restraint, for this

purpose, might be achieved "by means of physical force or a show

of authority." See Mendenhall,

; California v.

Hodari D.,

(1991) (requiring submission to show

of authority to effect a seizure); see also United States v.

- 13 - Fields,

(1st Cir. 2016). Thus, the relevant

inquiry in deciding whether a seizure occurred is whether "in view

of all of the circumstances surrounding the incident, a reasonable

person would have believed that he [or she] was not free to leave."

Mendenhall,

; see Fields,

. However,

acknowledging that few people would ever feel truly free to walk

away from police questioning, our inquiry into whether a seizure

occurred -- which is highly fact specific -- asks whether the

"police conduct, viewed from the totality of the

circumstances, . . . objectively communicate[s] that the officer

is exercising his or her official authority to restrain the

individual's liberty of movement." United States v. Cardoza,

(1st Cir. 1997).

Turning back to the case before us, we conclude that,

under the totality of the circumstances, the troopers' arrival on

scene and initial accident response, which included speaking with

the occupants about the crash and running identification checks,

did not constitute a Terry stop. It is worth noting at the outset

that Howard's presence on the highway "was restricted by a factor

independent of police conduct" given that she was a passenger in

a crashed vehicle. See Florida v. Bostick,

(1991); United States v. Smith,

(1st Cir. 2005)

("[M]ere physical limitations on an individual's movement, not

created by police, are insufficient to turn an encounter with

- 14 - police into a restraint of liberty.") The troopers did not put

Howard on the highway or tell her that she could not leave. Thus,

her presence on the highway was not on its own a seizure.

Nor did the troopers' actions during the initial

accident response transform the encounter into a Terry stop where

the evidence demonstrates that a reasonable person would have felt

"free to decline the officers' [help] or otherwise terminate the

encounter," and Howard herself did so during the initial part of

the encounter. See Bostick,

; United States v.

Angulo-Fernandez,

(10th Cir. 1995) (concluding

that an officer stopping to assist defendant with a stalled car

was not a stop because defendant "could have declined the officer's

assistance"); see also United States v. Himes,

(10th Cir. 2001) (unpublished opinion) ("[W]hen an officer

stops to help a disabled vehicle, the encounter is, at least in

the beginning, consensual."). It is undisputed that while the

other occupants approached Trooper Vanadestine when he arrived on

scene, Howard distanced herself and made no effort to speak with

him. Significantly, the troopers did not demand that Howard speak

with them or do anything to "convey a message that compliance with

their [offer of assistance was] required." Bostick,

. In fact, prior to asking for Howard's identification, the

only interaction Howard had with Trooper Vanadestine was when he

instructed her to stay out of the roadway, the Maine Turnpike, for

- 15 - her own safety. Given the limited nature of the trooper's command

and Howard's ability to otherwise move about freely -- which she

exercised by walking around the crash site from the moment Trooper

Vanadestine arrived -- no reasonable person in Howard's position

would have believed that the officer was "exercising his . . .

official authority to restrain [her] liberty of movement" based

off the trooper's request to stay out of the roadway. See Cardoza,

.

While other factors -- such as the troopers' request for

Howard's identification, use of emergency lights, and Trooper

Keim's prompt arrival on scene -- could indicate that a seizure

occurred during the initial accident response, when balanced

against the totality of the circumstances, they do not compel a

finding that the initial encounter here was a Terry stop. Our

precedent establishes that "officers -- even without any basis for

suspecting that an individual has committed a crime -- 'may

generally ask questions of that individual [and] ask to examine

the individual's identification . . . -- as long as the police do

not convey a message that compliance with their requests is

required.'" See Tanguay,

(quoting Bostick,

). Absent evidence that the troopers demanded Howard's

identification, their request is "the type of de minimis intrusion

that we have long agreed to tolerate as a necessary part of

- 16 - policing" and thus does not infringe the Fourth Amendment. See

id. at 7.

Nor does the use of emergency lights or Trooper Keim's

mere arrival on scene demand the conclusion that Howard was seized

pursuant to a Terry stop. A reasonable person in Howard's shoes

would likely infer that Trooper Vanadestine activated his

emergency lights for safety reasons, given that he was stopped on

the side of a busy highway, not "to indicate to [Howard] that [s]he

should stop in [her] tracks." See Cardoza,

; cf.

Tanguay,

(noting that police lights are usually

construed by drivers as "a command to pull over"). Additionally,

Trooper Keim's arrival on scene falls short of establishing the

threatening police presence that would lead a reasonable person in

Howard's position to believe that she could not leave. Cf. United

States v. Sierra-Ayala,

(1st Cir. 2022) (concluding

that defendant was "clearly seized" when three officers arrived on

scene, yelling "police," and additional police officers and

vehicles arrived shortly thereafter, amounting to a "heavy police

presence"); see Tanguay,

(noting that an "officer's

status as a police officer will not itself transform otherwise

innocuous conduct"). Given that the troopers never attempted to

restrict Howard's movements (other than requesting that she stay

out of the road), never prevented her from using her phone or told

her that she could not leave, never touched Howard or their

- 17 - weapons, and engaged with her in a non-threatening manner, see

Tanguay,

(discussing absence of certain coercive

factors), we conclude that the troopers' arrival on scene and

initial questioning did not result in a Terry stop.3

Our next task would normally be to determine whether a

seizure occurred at any point thereafter. But, because a seizure

is constitutionally valid when preceded by reasonable suspicion,

see

at 4 (citing Arizona v. Johnson,

(2009))

(explaining that if reasonable suspicion existed before Terry

stop, plaintiff's Fourth Amendment claim is extinguished), and

because we conclude, infra, that reasonable suspicion arose before

any even arguable seizure could have occurred, we assume without

deciding that a seizure akin to a Terry stop took place as Howard's

interaction with the troopers progressed.

3 Because we conclude that Howard's initial encounter with troopers was not a Terry stop and that any subsequent seizure, if one occurred, was supported by reasonable suspicion, we need not address whether the troopers' actions were also permissible as reasonable community caretaking activities. Further, although we conclude that Howard was not seized during the troopers' initial response to the crash, that is not to say that any roadside assistance by law enforcement is automatically a consensual encounter and not a Terry stop given that the analysis remains a "'highly fact specific' inquiry." See Tanguay,

(quoting Cardoza,

). Accordingly, we are careful to cabin our holding to the facts of this case and note that different facts may compel a different conclusion than the one that we reach today.

- 18 - Viewing the record in the light most favorable to the

argument that a Terry stop occurred at some point during the

encounter, the earliest time that a show of authority amounting to

a seizure could plausibly have occurred was 7:14 a.m. -- when

Trooper Keim placed Cornish under arrest. For purposes of this

analysis, we assume without deciding that a Terry stop occurred at

that point4 and proceed to explain our conclusion that reasonable

suspicion arose prior to the assumed seizure.

B. Reasonable Suspicion

Before turning to Howard's contention that the troopers

lacked reasonable suspicion to detain her, we outline some

additional Fourth Amendment principles.

The Fourth Amendment's prohibition on "unreasonable

searches and seizures," U.S. Const. amend. IV, applies to Terry

stops, Camacho,

. For a Terry stop to comply with

the Fourth Amendment, a police officer must possess "reasonable,

articulable suspicion of an individual's involvement in some

criminal activity" at the inception of the stop, Dion,

; see Terry,

, and the "actions undertaken

4 In response to questioning during oral argument, Howard suggested that a seizure may have occurred when Trooper Wilkinson patted down Howard for the second time or when Howard told Trooper Loder that she had someone who was willing to come pick her up and he responded, "We'll talk about that if we get to that point." Our discussion assumes a seizure occurred earlier than either of these reference points.

- 19 - pursuant to that stop must be reasonably related in scope to the

stop itself 'unless the police have a basis for expanding their

investigation,'" United States v. Ruidíaz,

(1st

Cir. 2008) (quoting United States v. Henderson,

(1st Cir. 2006)); see Terry,

.

Although less demanding than the probable cause

standard, reasonable suspicion requires "more than a hunch, an

intuition, or a desultory inkling of possible criminal activity."

United States v. Romain,

(1st Cir. 2004). A

reviewing court must consider whether, under the "totality of the

circumstances," a police officer would have "a particularized and

objective basis for suspecting the particular person stopped of

criminal activity." United States v. Cortez,

, 417-

18 (1981). With these principles in mind, we turn to Howard's

arguments.

Howard contends that the district court erred in

concluding that troopers possessed reasonable suspicion of drug

trafficking because (1) Trooper Vanadestine had nothing more than

a hunch that criminal activity was afoot when he detained her and

that any suspicion was not particularized to Howard, (2) that the

district court applied a subjective officer view of the evidence

instead of an objective one, and (3) that the district court should

not have afforded any deference to Trooper Vanadestine's judgment

because he impermissibly referenced Howard's race. We disagree.

- 20 - The district court concluded, and we agree, that under

the totality of the circumstances, troopers had more than a "hunch"

that the vehicle or its occupants, particularly Howard, carried

drugs from almost the outset of the encounter. While running

identification checks and inquiring about the crash, troopers

observed that the vehicle's occupants appeared not to know one

another. Howard provided an incorrect name of "Casey" for the

driver and could not identify the male passenger beyond saying

that he was the driver's boyfriend. All of the individuals

indicated that they were coming from New York, however, they

provided vague or inconsistent responses to questions about their

travel itinerary. Paulson lacked valid vehicle registration and

insurance, and shortly thereafter, troopers learned that Cornish

had provided a fake name and had outstanding warrants. Finally,

Howard distanced herself from Trooper Vanadestine when he arrived

on scene. While Paulson and Cornish approached him and were

willing to talk, Howard walked away from him through the snow,

despite it being eight degrees. When Howard walked towards the

roadway, she avoided joining the group and never attempted to speak

to Trooper Vanadestine.

While Howard argues that these facts are insufficient

for reasonable suspicion, her contention lacks support. We have

previously considered similar objective facts in concluding that

reasonable suspicion of criminal activity existed. See, e.g.,

- 21 - Dion,

(finding reasonable suspicion of drug

trafficking based in part on defendant's implausible interstate

travel story); United States v. Cruz-Rivera,

(1st

Cir. 2021) (citing defendant's inconsistent answers to trooper's

questions as supporting, in part, reasonable suspicion of drug

activity); United States v. Hart,

(1st Cir. 2012)

(noting that the defendant quickly moved away from police when

they arrived on scene in reasonable suspicion analysis);

Tiru-Plaza,

(finding reasonable suspicion based on

failure to produce a license and a legible vehicle registration).

While "any one of those facts, taken alone, might not have been

sufficient to create reasonable suspicion," Ruidíaz,

(explaining that innocent facts taken in their totality can

support reasonable suspicion), after considering them in the

aggregate, we conclude that sufficient evidence existed to support

the troopers' suspicions that the vehicle or one of its occupants,

including Howard, carried drugs.

Significantly, troopers learned each of the facts

supporting reasonable suspicion before 7:14 a.m., thus making the

assumed seizure lawful. See Tanguay,

(stating that

reasonable suspicion must arise prior to Terry stop to comply with

the Fourth Amendment). By 7:09 a.m., troopers had observed

Howard's movements, spoken with each occupant and determined that

they appeared not to know one another and that their travel stories

- 22 - were not lining up, and learned that Paulson lacked vehicle

registration and insurance. By 7:13 a.m., Trooper Keim knew that

Cornish had provided a false name and that he likely had

outstanding warrants. Because troopers possessed reasonable

suspicion prior to the time any arguable seizure could have

occurred, Howard's claim must fail.

Next, Howard argues that the district court erred by

adopting Trooper Vanadestine's subjective view of the situation

instead of conducting an independent assessment of whether a

reasonable officer in Trooper Vanadestine's shoes would have

suspected drug trafficking. This argument too lacks merit. The

district court correctly stated the law -- that reasonable

suspicion requires "objective reasonableness in the totality of

the circumstances" -- and properly applied it by disregarding

evidence of Trooper Vandestine's subjective views, which we

discuss infra. Further, the district court did not substitute

Trooper Vanadestine's assessment of the situation for its own.

The district court reviewed video evidence to confirm troopers'

characterizations of the events and made independent factual

findings. The court then listed each objective factor supporting

troopers' drug trafficking suspicions and properly considered them

in the aggregate, recognizing that each on its own might be

insufficient. We find no error in the district court's statement

of the law or application of the reasonable suspicion standard.

- 23 - Finally, Howard points to the fact that while speaking

with Sergeant Pappas, Trooper Vanadestine identified Howard by

describing her race ("the Black girl [who] won't come next to me").

Howard argues that by identifying Howard in this manner, Trooper

Vanadestine revealed a racial bias. Racial bias by a police

officer could certainly provide a basis for challenging the

reliability or credibility of an officer's testimony. But Howard

does not challenge the accuracy of anything that Trooper

Vanadestine reported observing. The court in turn found that what

the officers heard and saw objectively gave rise to a reasonable

suspicion. In short, any potential racial bias could not have

played a causal role in determining what happened and whether

reasonable suspicion existed. And the presence of any improper

motive otherwise plays no role in a suppression motion. See Whren

v. United States,

(1996); Ruidíaz,

(explaining that reasonable suspicion turns on objective

criteria, not "an individual officer's subjective motives").

Thus, this argument also fails.

Having concluded that reasonable suspicion preceded

Howard's assumed seizure, any detention of Howard -- if one

occurred at all -- did not offend the Fourth Amendment and thus

was lawful. As such, her argument for suppression based on

unlawful detention fails.

- 24 - C. Consent to the Search

Having rejected Howard's unlawful detention argument, we

now turn to the issue of Howard's consent to the search of her

bag. Howard contends that, even if her seizure was lawful, the

district court erred in finding that she voluntarily consented to

the search because: (1) her personal characteristics (age, lack of

criminal record, less than average intelligence) contradict a

finding of voluntariness, (2) troopers did not advise Howard that

she could refuse to consent, (3) she was in custody when she gave

consent, and (4) she was coerced when troopers conditioned her

ability to get warm on her consent to the search. The government

counters that Howard's consent was voluntary because she was not

in custody nor subject to coercion when she gave consent and that

the facts pertaining to Howard's personal characteristics should

be deemed waived because Howard raises them for the first time on

appeal.

Whether Howard freely consented to the bag search is a

question of fact, and accordingly, we review the district court's

voluntariness finding for clear error. See Dion,

.

To decide "whether consent was voluntarily given, we look to the

totality of circumstances, including the person's 'age, education,

experience, intelligence, and knowledge of the right to withhold

consent.'" United States v. Ramdihall,

(1st Cir.

2017) (quoting United States v. Forbes,

(1st Cir.

- 25 - 1999)). Also considered is "whether the consenting party was

advised of his or her constitutional rights and whether permission

to search was obtained by coercive means or under inherently

coercive circumstances."

(quoting Forbes,

).

We first address Howard's argument that her consent was

coerced in part because she was in custody. As support for her

contention, she cites the circumstances of her alleged detention

and the presence on scene of five state troopers, including a K9

unit. The district court disagreed, concluding that Howard was

not in custody. We find no error here.

Custody determinations present a "mixed question of law

and fact," United States v. Trueber,

(1st Cir.

2001) (quoting Thompson v. Keohane,

(1995)); thus,

the district court's factual findings are reviewed for clear error,

and "the ultimate conclusion whether a seizure is a de facto

arrest" is reviewed de novo, United States v. Fornia-Castillo,

(1st Cir. 2005). We have previously explained that

"[a] valid investigatory stop may nevertheless escalate into

custody . . . where the totality of the circumstances shows that

a reasonable person would understand that he was being held to

'the degree associated with a formal arrest.'"

(quoting

Stansbury v. California,

(1994) (per curiam)).

Some of the factors that we consider in deciding whether the

custody threshold has been crossed include "whether the suspect

- 26 - was questioned in familiar or at least neutral surroundings, the

number of law enforcement officers present at the scene, the degree

of physical restraint placed upon the suspect, and the duration

and character of the interrogation."

(quoting United States

v. Ventura,

(1st Cir. 1996)).

Here, the district court concluded that no reasonable

person in Howard's shoes would believe that she was being held

under circumstances akin to a formal arrest. We agree. Howard

was never explicitly told that she was not free to leave, she was

never physically restrained, she freely talked on her cell phone

and walked around the crash site, and she was invited -- not

ordered -- to sit in Trooper Loder's car. Notably, she sat in the

front passenger seat of the cruiser -- as opposed to a traditional

divided prisoner compartment -- and the door had a functional

interior handle permitting her to step out at any time. The

district court also found that although Howard was patted down

before being allowed to sit in the cruiser, the pat downs did not

convey the impression of formal arrest because they were conducted

to ensure officer safety before Howard -- who was wearing bulky

winter clothing -- was allowed to sit unrestrained in the cruiser.

While the presence of five troopers is certainly relevant to the

custody calculus, the situation must be viewed holistically under

the totality of the circumstances. The district court's findings,

which are not clearly erroneous, provide ample support for its

- 27 - conclusion that Howard was not in custody, particularly given the

respectful tone of the encounter and the neutral public setting.

Cf. id. at 64-65 (concluding that defendant was not in custody

despite being temporarily handcuffed and officer drawing gun);

Trueber,

(holding that pat down of defendant for

officer safety did not convert investigatory stop into de facto

arrest). Thus, no error exists as to the district court's custody

determination.

Howard also contends that her consent was coerced

because troopers conditioned her ability to sit in the warm cruiser

on her agreeing to the bag search, but she provides no support for

her assertion. Moreover, her contention is belied by the district

court's findings. The district court found that although Howard

may have felt obliged to consent to a search of her bag before

sitting in the cruiser, nothing about Sergeant Pappas's request

created the impression that her ability to do so was conditioned

on a search of her bag. We agree. The record is clear that Howard

was seated in the cruiser, albeit briefly, before Trooper Wilkinson

conducted the full pat down and Sergeant Pappas asked for consent

to search her bag. Further, Sergeant Pappas stated both to Trooper

Loder and to Howard herself that he wanted her patted down before

she sat in the cruiser -- never mentioning a search of her bag.

We find no clear error here.

- 28 - Howard's final argument is that the district court erred

in finding that her consent was voluntary under the totality of

the circumstances. In support, Howard asserts that -- in addition

to the coercive elements discussed above -- she was in her early

twenties at the time of the search, she had graduated from high

school but from a program for people with disabilities, she has

less than average intelligence, she had very little experience

with the criminal justice system, and troopers did not tell her

that she could refuse to consent, nor was she aware that she could

refuse. Notably, Howard failed to develop the facts pertaining to

her age, intelligence, and education during the suppression

hearing, and instead raises them for the first time on appeal.

However, even if we were to consider Howard's newly proffered

facts, they fail to convince us that the district court erred in

its voluntariness finding.

Howard does not meaningfully discuss how her disability

or intelligence level impacted her ability to consent. Nor does

she explain why contact with law enforcement for only minor

offenses is significant to whether her will was overborne. To the

extent that Howard relies on the lack of a warning regarding her

right to refuse consent, said fact is relevant but not dispositive.

"We have repeatedly held that the failure to advise a defendant of

his right to refuse consent does not automatically render such

consent invalid." United States v. Jones,

(1st

- 29 - Cir. 2008). Here, the district court properly considered the

totality of the circumstances -- including the lack of a warning,

the presence of multiple troopers on scene, and the cold

conditions -- before concluding that Howard voluntarily consented

to the search of her bag. We discern no clear error in the district

court's finding, particularly given the lack of "evidence of

coercive tactics," United States v. Marshall,

(1st Cir. 2003); see Ramdihall,

(explaining that

defendant bears the burden of establishing that the manner of

detention precluded her free consent). Accordingly, Howard's

argument for suppression, premised upon her involuntary consent to

the search of her bag, also fails.

IV. Conclusion

For the foregoing reasons, we affirm.

- 30 -