          United States Court of Appeals
                        For the First Circuit


No. 17-1261

                      UNITED STATES OF AMERICA,

                              Appellee,

                                  v.

                           DERRICK FAVREAU,

                        Defendant, Appellant.


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

              [Hon. Nancy Torresen, U.S. District Judge]


                                Before

                        Lynch, Circuit Judge,
                     Souter, Associate Justice,
                      and Selya, Circuit Judge.


     Jamesa J. Drake and Drake Law, LLC for appellant.
     Renée   M.  Bunker,   Assistant   United  States  Attorney,
Appellate Chief, with whom Halsey B. Frank, United States
Attorney, was on brief, for appellee.


                            March 23, 2018




     
       Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.
              SOUTER,   Associate        Justice.      The    defendant,    Derrick

Favreau, pleaded guilty to a serious drug offense, violation of

21 U.S.C. §§ 841(a)(1) and (b)(1)(C), but he reserved his right

to appeal the district court's denial of his motion to suppress

the drug evidence as having resulted from a search unlawful

under the Fourth Amendment.          We affirm.

              Police stopped Favreau's car for a highway offense.

After police officers had completed the license check that is

usual when a car is stopped for a driving offense, the drugs

were found hidden in the car during a search prompted by a drug

detection dog's indication of their presence.                     The issues on

appeal    are    whether,    after       checking   the    license    and   related

matters, the police had reasonable suspicion that a drug offense

was   being     committed,   so     as    to   justify    a   further    period    of

detention while the dog repeatedly circled the car, and whether

the added time so consumed (of about three minutes) exceeded the

permissible      duration     for        the   dog's     reconnaissance.          See

Rodriguez v. United States, 135 S. Ct. 1609, 1612 (2015); United

States v. Sokolow, 490 U.S. 1, 7 (1989) ("[T]he police can stop

and briefly detain a person for investigative purposes if the

officer   has     a   reasonable     suspicion      supported    by     articulable

facts that criminal activity 'may be afoot,' even if the officer




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lacks probable cause." (quoting Terry v. Ohio, 392 U.S. 1, 30

(1968))).

              We review these legal issues de novo.                               See United

States v. Dickerson, 514 F.3d 60, 65–66 (1st Cir. 2008).                                        The

facts about events preceding the encounter are not in dispute at

this point, and in any event the district court's findings are

amply       supported         to     survive          the   scrutiny      for   clear         error

appropriate           in    reviewing        the      trial     court's    factual       findings

grounding the denial of a suppression motion.                              See United States

v. Tiru-Plaza, 766 F.3d 111, 114–15 (1st Cir. 2014) ("Under this

clear-error           review,        we    grant       significant        deference      to    the

district court, overturning its findings only if, after a full

review       of       the     record,       we        possess    'a    definite      and       firm

conviction' that a mistake was made." (quoting United States v.

McGregor, 650 F.3d 813, 820 (1st Cir. 2011))).

              State Trooper Pappas was aware of Favreau's reputation

as a drug dealer, and about a year before the confrontation in

question      he       had     received          an    informant's        tip   that     Favreau

possessed         a        vehicle        that     contained       a   "trap,"       a     secret

compartment in which drugs could be hidden and transported.1


        1 The parties dispute the reliability of the information
the tipster had provided prior to this tip, and consequently the
reasonableness of crediting the tip itself.   But, owing to the
synergy of the content of the tip and the facts that unfolded
prior to and during the stop of Favreau's car, reliability ex
ante is not a significant question here. The content of the tip


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More pressing assignments kept Pappas from following up on the

tip, but when his schedule allowed it, he decided to conduct

surveillance on Favreau, with the help of Trooper Gagnon, as

well as Trooper Rooney (who worked with a drug detection dog).

Rooney drove a marked cruiser, but both Pappas and his unmarked

car were well known in the vicinity where the relevant events

took place.

             On the day in question Pappas and Gagnon drove to

where Favreau's house could be seen.              They saw him get in the

car the tipster had mentioned, pull away, signal a turn into a

cross      street,   nevertheless     drive       straight    through      the

intersection and, at a point where Pappas and Gagnon's police

car was visible, reverse direction and then turn into the cross

street in the direction opposite to his original directional

signal.     Rooney testified that reversing direction as Favreau

had done was known as a tactic by suspects trying to elude

police following them.     Soon after, the troopers located the car

parked in the lot of a store, which Favreau entered and left

multiple    times.    Before   driving      out   of   the   lot   he   looked




was significant in making sense of the other facts recited
below, which themselves suggested that the tip might well be
true; all, together, had a degree of coherence that raised a
reasonable suspicion of wrongdoing, which in turn justified the
dog sniff that provided the further fact sufficient for probable
cause to search the car.


                                    - 4 -
intently    up     and     down    each    of     the    streets      at      the   nearby

intersection.

            After the suspect had left the store lot and made

another    turn,    this    time     without      signaling,        Rooney     (following

him) put on the blue lights and siren.                      In violation of Maine

law, Favreau did not stop promptly, but turned down another

street before pulling over.               In the ensuing conversation about

Favreau's    driving        violations,       the     status     of     his     operating

license and any current court involvement, Favreau accused the

officers of mounting the very surveillance they had engaged in,

thus indicating that his driving maneuvers had been made with

the police consciously in mind.                 He was manifestly nervous and

had    difficulty        following     directions        for    a     pat-down,     which

disclosed a wad of cash that Favreau said was $400.                           When asked

where he was going his answer was that he was going home, a

patent lie in light of his observed itinerary.

            At this point the facts warranted reasonable suspicion

that   Favreau's     behavior        before     and     after   the    stop     showed   a

degree of concern so far beyond anything normal as to suggest

that he was in fear of revealing evidence of wrongdoing.                               The

license check having been completed, Rooney circled the car with

the dog, and although the animal was initially distracted by

unrelated activity nearby, the several circuits of the car took

less than three minutes before the dog alerted and thus raised


                                          - 5 -
suspicion to the level of probable cause to justify the search

that led to discovery of the trap and a commercial quantity of

cocaine within it.

           On our de novo review, we agree with the district

court's   mixed   fact-law    conclusion     entirely.         Although   the

officers' initial and primary interest in observing Favreau was

his possible activity in the illegal drug trade, not the bizarre

driving for which they stopped him, or his unlawful failure to

respond readily to the lights and siren, their ulterior motive

is of no consequence under the Fourth Amendment.                See Whren v.

United States, 517 U.S. 806, 813 (1996) (Supreme Court precedent

"foreclose[s]      any      argument       that   the          constitutional

reasonableness    of     traffic    stops    depends      on     the   actual

motivations of the individual officers involved").              Nor is there

any question that Favreau's driving justified the stop for the

license   check   and    ensuing   interview.     The    observations     and

conversation provided evidence of ostensibly erratic driving and

behavior that would reasonably justify a stop and enquiry, but

in this case pointed to something more than difficulty following

the normal rules of the road: the apparent intent to evade known

police cars, the unnatural scrutiny of roadways before driving

from the store, the driver's accusation that the police had him

under surveillance, and abnormal nervousness together with clear

dishonesty about his immediate destination.             The officers could


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sensibly believe that he was afraid of something that concerned

the police, and the tip about the trap gave coherence to his

behavior      and   his    fear.        The   officers     could,     as    they     did,

reasonably      suspect        transportation       of    drugs     or     some     other

contraband concealed in the car.                   Nor, finally, is there any

basis to claim that the time consumed in the initial interview

and records check up to the point of ordering the dog sniff was

unusual or unreasonable.

              Because the interview during this initial period of

detention was clearly lawful on the basis of traffic regulation

and incidentally disclosed further reason to suspect drug crime,

the reasonably justifiable time for further detention to test

the growing suspicion should be measured from the end of that

initial period.           While there is no exact metric to measure it,

the times that have passed muster in prior cases of justifiable

detention     on    reasonable       suspicion     of    criminal     activity       have

generally been relatively brief.                   See Terry, 392 U.S., at 30

("Each case of this sort will, of course, have to be decided on

its own facts."); United States v. Pontoo, 666 F.3d 20, 31 (1st

Cir. 2011) ("The appropriate length of a Terry stop is gauged by

whether       the     officer        diligently          pursued      a     reasonable

investigative approach . . . .").                    And brief was the period

here,    of   about   three      more    minutes     until    the    dog's      response

raised    suspicion       to   the   point    of    probable       cause   to     search.


                                         - 7 -
There is no serious question that this falls within the zone

considered reasonable under the Terry rationale.        The probable

cause   to   search   was   therefore   not   the   product   of   any

unconstitutionally lengthy detention prior to the search that

could be said to taint the validity of the search itself.


Affirmed.




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