United States of America v. Eric Tanguay

Eric Tanguay was seated in his

car with a friend in a parking lot when a local police officer

approached and asked him several questions. His answers led to a

search, followed by the seizure of evidence of potential drug

trafficking. On this appeal following his conviction under 21

U.S.C. § 841(a), Tanguay contends that the district court erred in

failing to suppress that evidence. For the following reasons, we

find the search and seizure to have been lawful, so we affirm.



I.



We recite the facts "as the trial court found them,

consistent with record support." United States v. Ruidíaz, 529

F.3d 25, 27 (1st Cir. 2008) (quoting United States v. Lee, 317

F.3d 26, 30 (1st Cir. 2003)).



Shortly after midnight on March 31, 2016, police officer

Adam Rayho drove by a local strip mall in Nashua, New Hampshire

while on patrol. In the parking lot he saw an SUV parked apart

from any other vehicle and approximately 100 to 150 feet from a

Taco Bell restaurant, which had not yet closed. The only other

business in the vicinity that remained open was a 24-hour gym.

Approximately twenty minutes later, after responding to

an unrelated call, Rayho drove by the lot a second time. The

lone SUV was still parked in the same spot. He decided to

investigate. He entered the lot and pulled his marked cruiser

seven to ten feet behind the parked SUV without obstructing its



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path of egress. Rayho illuminated the SUV with his floodlights

and activated the rear-facing -- but not the front-facing -- blue,

flashing emergency lights atop his cruiser. The record does not

indicate whether the rear-facing flashing lights were visible to

the occupants of the parked SUV.



With his weapon holstered, Rayho approached the driverside

of the SUV with a flashlight in hand. He further illuminated

the interior of the SUV with his flashlight and asked the driver,

Eric Tanguay, and the passenger, Jacqueline, for their names, which

they provided. Recognizing Tanguay's name as a reported user and

dealer of illegal drugs, Rayho asked them what they were doing in

the parking lot so late. They replied that they "were eating food

from Taco Bell." Rayho could see that was indeed the case and

joked with them that he also enjoyed Taco Bell.



Rayho asked the couple for their licenses. Both replied

that they were not carrying identification. When Rayho then asked

who owned the SUV, Tanguay stated that he did not own it. Rayho

finally asked Tanguay "if it would be all right if [he] returned

to [his] cruiser to conduct a [records] query on him," to which

Tanguay said it would be. At some point during this initial

encounter -- yet exactly when is unclear from the record -- a

second police officer arrived and parked his cruiser behind Rayho's

vehicle.



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From that point on, things went downhill quickly for

Tanguay. While sitting in his cruiser running the records check,

Rayho noticed Jacqueline crouch down and reach for something under

the front passenger seat. Rayho immediately returned to the SUV

and again asked Tanguay for identification. This time, Tanguay

said his license was in a backpack in the trunk of the vehicle,

and he requested permission to obtain it. Rayho agreed that

Tanguay could show him where in the trunk he could find the license

but stated that, for safety purposes, he would be the one to

retrieve it.



When Tanguay opened his door to go to the trunk of the

SUV, Rayho saw what appeared to be the butt end of a gun stashed

in the driver-side door. Tanguay and Rayho walked to the rear of

the SUV and opened the trunk. Rayho then retrieved Tanguay's

license from a wallet stowed in a small pocket of the backpack.

Rayho noticed that the wallet contained a large sum of cash (later

determined to be $2,800) and that the large, main compartment of

the backpack was padlocked.



When asked about the gun in the driver-side door, Tanguay

informed Rayho that it was merely a BB gun. Rayho ordered

Jacqueline out of the SUV and confirmed that the weapon was, in

fact, a BB gun. Rayho then asked for and received Tanguay's

consent to search the vehicle. Under the passenger seat, he found

a partially open sunglasses case, containing a loaded hypodermic



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needle, a pill, and Narcan (an opioid-overdose-reversal drug).

When confronted with this discovery, Tanguay informed Rayho that

Jacqueline was a drug user and was likely carrying drugs. Rayho

next asked about the padlock on the backpack. Tanguay became

visibly nervous and stated that an unknown individual had placed

the padlock there. Rayho then arrested Tanguay on suspicion of

possession of a controlled substance.



At the police station, Rayho again asked Tanguay about

the backpack. Tanguay admitted that it was his, but he doubled

down on his claim that someone else had padlocked it. He also

stated that he believed some other person had put illegal items in

the bag. Tanguay then consented to a search of the backpack, and

Rayho removed the lock with bolt cutters. Inside, Rayho found

prescription pills, fentanyl, methamphetamine, a scale, baggies,

rubber bands, a marker, and mail posted to Tanguay.



A grand jury indicted Tanguay for one count of possession

with intent to distribute a controlled substance in violation of

21 U.S.C. § 841(a)(1). Subsequently, Tanguay filed a motion to

suppress the government's evidence, arguing that Rayho lacked

reasonable suspicion to initiate and continue the inquiries that

led to the discovery of the evidence gathered against him. The

district court denied the motion. Tanguay then entered a

conditional guilty plea in which he preserved the right to appeal

the district court's ruling on the motion to suppress. The



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district court issued a judgment of guilty and sentenced him to

thirty months in prison with three years of supervised release.

Tanguay then timely filed this appeal.



II.



A.



Tanguay's motion to suppress the incriminating

contraband raises two initial questions: When did Rayho's

interaction with Tanguay become a non-consensual, investigatory

stop? And when did Rayho acquire reasonable suspicion to conduct

such a stop? If the latter occurred before the former, Tanguay

has no valid Fourth Amendment challenge, see Arizona v. Johnson,

555 U.S. 323, 326 (2009) (explaining that a non-consensual,

investigatory stop does not conflict with the Fourth Amendment if

the officer "reasonably suspects that the person apprehended is

committing or has committed a criminal offense"), unless the

investigatory inquiry became so intrusive as to require probable

cause, see United States v. Young, 105 F.3d 1, 7–8 (1st Cir. 1997).

But if Rayho effected a non-consensual, investigatory "Terry stop"

before he had reasonable suspicion that a crime was afoot, then

the officer violated Tanguay's Fourth Amendment rights. See United

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



We have previously held that a driver's inability to

provide identification and a legible vehicle registration provides

a sufficient basis for an officer to suspect that the vehicle was



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stolen. See United States v. Tiru-Plaza, 766 F.3d 111, 117 (1st

Cir. 2014); see also United States v. Cardona-Vicente, 817 F.3d

823, 828 (1st Cir. 2016) ("The driver of the car could not produce

a driver's license, suggesting the Jeep may have been stolen.");

United States v. Fernandez, 18 F.3d 874, 879 (10th Cir. 1994)

("[T]he defendant's lack of a valid registration . . . or some

other indicia of proof to lawfully operate and possess the vehicle

in question . . . giv[es] rise to objectively reasonable suspicion

that the vehicle may be stolen."). Tanguay's initial failure to

produce a driver's license coupled with his admission that he was

not the owner of the SUV similarly provided Rayho with good reason

to believe that something was awry and that the SUV may have been

stolen.



Tanguay responds that Rayho did not claim to have

believed that the SUV had been stolen. But, "[i]n determining

whether an officer had reasonable suspicion to justify a Terry

stop . . ., the officer's subjective motives do not enter into the

decisional calculus." United States v. Romain, 393 F.3d 63, 74

(1st Cir. 2004) (citing Whren v. United States, 517 U.S. 806, 812

(1996)).



Furthermore, Tanguay cannot reasonably contend that

Rayho's subsequent investigative inquiry exceeded the scope of a

permissible Terry stop. See generally Terry v. Ohio, 392 U.S. 1,

18–27 (1968); Young, 105 F.3d at 5–8. A Terry stop does not



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require probable cause so long as the police officer's actions are

"reasonably related in scope to the circumstances which justified

the interference," Young, 105 F.3d at 7, or are "reasonable in

light of the circumstances that . . . develop[] during [the

stop]," United States v. Acosta-Colon, 157 F.3d 9, 14 (1st Cir.

1998). Officer Rayho's decision to run a records check (to which

Tanguay consented) was entirely justified given Tanguay's lack of

identification and proof of ownership. His return to the SUV to

repeat his request for identification was a reasonable and

proportionate response to Jacqueline's suspicious movements. And

Rayho can hardly be criticized for ordering her removal from the

vehicle and verifying that the weapon in the driver-side door was

in fact a BB gun, for "officers must be allowed, during the course

of [a Terry] stop, to take measures that are reasonably calculated

to protect themselves or others from harm." United States v.

Rasberry, 882 F.3d 241, 247 (1st Cir. 2018) (citing Flowers v.

Fiore, 359 F.3d 24, 30 (1st Cir. 2004)). Finally, Rayho's further

questioning of Tanguay was a measured and reasonable response to

finding the loaded needle, pill, and Narcan.



Accordingly, we find that when Tanguay initially failed

to produce a license and indicated he was not the owner of the

SUV, Rayho was entitled to conduct a non-consensual, investigative

Terry stop, and he did not thereafter exceed the permitted scope

of such an investigation before he acquired probable cause to



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arrest Tanguay. These findings leave Tanguay to argue that Rayho

commenced the non-consensual, investigative stop before Tanguay's

failure to produce a license gave rise to a reasonable suspicion

that a crime was in progress. It is to that argument that we next

turn.



B.



The government effectively concedes that Rayho had no

reasonable suspicion of criminal activity prior to Tanguay's

initial failure to produce identification. So the pivotal question

is whether Rayho's interaction with Tanguay prior to that point

rose to the level of a "seizure" for which reasonable suspicion is

required.



In Terry, the U.S. Supreme Court held that a Fourth

Amendment seizure occurs "whenever a police officer accosts an

individual and restrains his freedom to walk away. 392 U.S. at

16. However, "[t]he police need not have taken physical custody

of a person in order to . . . effect[] a Terry stop for which at

least reasonable suspicion is required. Such a stop instead may

occur merely upon law enforcement making what the Supreme Court

has termed a 'show of authority.'" Fields, 823 F.3d at 25 (quoting

United States v. Mendenhall, 446 U.S. 544, 553–54 (1980) (opinion

of Stewart, J.)). Tanguay has the burden to establish that there

was a show of authority sufficient to trigger a Fourth Amendment

violation. See id. at 31.



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To determine whether a police officer has made such a

"show of authority," the Supreme Court directs us to ask the

following: "[I]n view of all of the circumstances surrounding the

incident," would "a reasonable person . . . have believed that he

was not free to leave[?]" Mendenhall, 446 U.S. at 554; see also

INS v. Delgado, 466 U.S. 210, 215 (1984) (endorsing the test

Justice Stewart enunciated in Mendenhall). At the same time, the

Court has also held that officers -- even without any basis for

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

generally ask questions of that individual, ask to examine the

individual's identification, and request consent to search his or

her luggage -- as long as the police do not convey a message that

compliance with their requests is required." Florida v. Bostick,

501 U.S. 429, 434-35 (1991) (citations omitted). In practice,

there is some tension between the Court's "free to leave" test and

its sanctioning of these suspicionless police-civilian encounters

because, as we have recognized, "few people . . . would ever feel

free to walk away from any police question[ing]." United States

v. Cardoza, 129 F.3d 6, 16 (1st Cir. 1997); see also Edwin J.

Butterfoss, Bright Line Seizures: The Need for Clarity in

Determining when Fourth Amendment Activity Begins, 79 J. Crim. L.

& Criminology 437, 440 (1988) ("[M]ost of the citizens in these

'nonseizure' encounters do not feel free to walk away."); David K.

Kessler, Free to Leave? An Empirical Look at the Fourth



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Amendment's Seizure Standard, 99 J. Crim. L. & Criminology 51, 73–

79 (2009) (providing survey results demonstrating that few people

would feel free to voluntarily terminate police questioning).



We tried to resolve this tension in Cardoza by adopting

a test that 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." Cardoza, 129 F.3d

at 16. This is a "highly fact specific" inquiry. Id. at 15.



Discerning such an objective communication of authority is easiest

when the officer expressly asserts it through a command. See,

e.g., United States v. Camacho, 661 F.3d 718, 725 (1st Cir. 2011)

(finding a show of authority when officers ordered the defendant

to place his hands on the hood of a car); United States v. Dubose,

579 F.3d 117, 121 (1st Cir. 2009) (finding a seizure when an

officer commanded an individual to stop and remove his hand from

his sweatshirt pocket); Estate of Bennett v. Wainwright, 548 F.3d

155, 172 (1st Cir. 2008) (finding officers' order to evacuate

sufficiently coercive to constitute a show of authority); United

States v. Espinoza, 490 F.3d 41, 50 (1st Cir. 2007) (finding a

seizure when an officer ordered a driver to shut off his car

engine); see also United States v. Smith, 423 F.3d 25, 30 (1st

Cir. 2005) (finding no show of authority in part because police

officers "did not summon [the defendant] to the [police] car, or



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ask him to move from his seat on the wall, or demand that he do

anything").



More difficult are those instances in which the officer

communicates his or her authority by actions rather than words.

Certainly the absence of any verbal command cuts against a finding

of an objectively communicated exercise of authority. See, e.g.,

Fields, 823 F.3d at 28 ("It is well established that the absence

of police commands or any sort of verbal demonstration of authority

weighs against the conclusion that there has been a show of

authority . . . ."). Nevertheless, non-verbal communications can

undoubtedly be clear enough to constitute a show of authority.

See, e.g., United States v. Belin, 868 F.3d 43, 48 (1st Cir. 2017)

(finding a show of authority when an officer grabbed the

defendant's arm and reached toward his waist with his other hand

to frisk the defendant's waistband); see also Mendenhall, 446 U.S.

at 554 (identifying several, non-exclusive indicia of a seizure,

including the "threatening presence of several officers, the

display of a weapon by an officer, some physical touching of the

person of the citizen, or the use of language or tone of voice

indicating that compliance with the officer's request might be

compelled").



However, the officer's status as a police officer will

not itself transform otherwise innocuous conduct into a non-verbal

command, thus effectuating a seizure. See Smith, 423 F.3d at 28



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("[S]ince most tend to feel some degree of compulsion when

confronted by law enforcement officers asking questions, such

discomfort cannot be the measure of a Fourth Amendment seizure.



If it were, officers would effectively be barred from approaching

citizens at all, absent full-blown probable cause."); Wayne R.

LaFave, Search and Seizure: A Treatise on the Fourth Amendment

§ 9.4(a) (5th ed. 2018) ("The critical factor is whether the

policeman, even if making inquiries a private citizen would not,

has otherwise conducted himself in a manner which would be

perceived as a nonoffensive contact if it occurred between two

ordinary citizens."). Gauging an officer's words and actions in

this way (i.e., ignoring the implicit manifestation of authority

conveyed by the officer's status as a police officer) likely means

that submissions to police requests are often deemed uncoerced

even when they are subjectively involuntary. See Scott E. Sundby,



The Rugged Individual's Guide to the Fourth Amendment: How the

Court's Idealized Citizen Shapes, Influences, and Excludes the

Exercise of Constitutional Rights, 65 UCLA L. Rev. 690, 694 (2018)

(explaining that the Supreme Court's Fourth Amendment

jurisprudence assumes an idealized civilian in police-civilian

interactions who "actively stand[s] up to law enforcement and

assert[s] [their] rights"); see also I. Bennett Capers, Criminal

Procedure and the Good Citizen, 118 Colum. L. Rev. 653, 666-67

(2018) (examining the Supreme Court's "citizenship talk" in its



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Fourth Amendment cases and its assumption that civilians will

welcome police inquiries, view them as consensual, and comply with

police requests even when they need not). But our law, as we are

bound to follow it, seems to accept this result as the price we

pay for a greater ease in discovering criminal activity. See

Delaware v. Prouse, 440 U.S. 648, 654 (1979) ("[T]he permissibility

of a particular law enforcement practice is judged by balancing

its intrusion on the individual's Fourth Amendment interests

against its promotion of legitimate governmental interests.").



Here, Rayho made no explicit, verbal command of Tanguay

prior to acquiring reasonable suspicion that the SUV was stolen.

Nor did his conduct, taken together, communicate a non-verbal

command. Tanguay makes no claim that Rayho signaled to him to

shut off the engine of the SUV, touched his weapon or Tanguay's

person, spoke with intimidating language or tone of voice, or

tarried long. See Mendenhall, 446 U.S. at 554; Espinoza, 490 F.3d

at 50. And Tanguay offers no evidence that, before Tanguay failed

to produce identification, Rayho called for backup in his presence,

or that backup arrived. See Mendenhall, 446 U.S. at 554; Fields,

823 F.3d at 25. An ordinary citizen might have stopped and

inquired into Tanguay's activity in the parking lot without

engaging in behavior that would normally be deemed offensive

(though it might come across as nosy). We see no reason to say

that a police officer could not do the same without conveying a



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non-verbal message of authority. Cf. LaFave, supra, § 9.4(a).

And precedent indicates such to be the case, at least in the

absence of some other display of authority. See United States v.

Taylor, 511 F.3d 87, 91 (1st Cir. 2007) ("[A]pproaching a parked

car and questioning the occupant does not necessarily rise to the

level of a Terry stop . . . .").



On the other hand, Rayho did ask for a license, something

that an ordinary citizen would not do without appearing quite

presumptuous. But he asked -- he didn't order. And, in any event,

that is the type of de minimis intrusion that we have long agreed

to tolerate as a necessary part of policing. See Bostick, 501

U.S. at 434–35; see also Hiibel v. Sixth Judicial Dist. Court of

Nev., Humboldt Cty., 542 U.S. 177, 185 (2004) ("In the ordinary

course a police officer is free to ask a person for identification

without implicating the Fourth Amendment."). Rayho's use of a

flashlight and floodlight to illuminate the interior of the SUV

also arguably comes close to communicating some type of command.

But precedent again precludes us from treating this type of conduct

as a command, perhaps because to rule otherwise would be to prevent

officers from safely visiting parked vehicles at night. See Texas

v. Brown, 460 U.S. 730, 739–40 (1983) ("[The officer's] action in

shining his flashlight to illuminate the interior of Brown's car

trenched upon no right secured to the latter by the Fourth

Amendment."); see also United States v. Mabery, 686 F.3d 591, 597



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(8th Cir. 2012) (finding no seizure when an officer shined a

spotlight on a civilian's vehicle); United States v. Clements, 522

F.3d 790, 792, 794–95 (7th Cir. 2008) (finding no show of authority

when officers activated a cruiser's spotlight and approached a

parked car).



The activation of the blue flashing lights atop Rayho's

cruiser is a different story. This is not the type of conduct in

which an ordinary citizen would likely engage. Nor does the weight

of precedent routinely classify such conduct as failing to send a

message of command. Certainly drivers who view such lights in

their rearview mirrors usually construe them as a command to pull

over. See Brower v. County of Inyo, 489 U.S. 593, 598 (1989).

Here, though, Rayho activated only his rear-facing lights, and

Tanguay, who was already stopped, makes no claim to have been able

to see them. See Camacho, 661 F.3d at 724 ("The [defendant] bears

the burden of showing a violation of his Fourth Amendment

rights."). So the blue lights need not enter into our

consideration.



All told, considering Rayho's words and conduct as

manifest to Tanguay, we find that Rayho did not use his authority

to restrain Tanguay's liberty before Rayho acquired a reasonable

suspicion that Tanguay was engaged in a crime. Accordingly, we

cannot say that the district court erred in finding no Fourth

Amendment violation and denying Tanguay's motion to suppress.

For the foregoing reasons, we affirm the district

court's denial of Tanguay's motion to suppress the government's

evidence.