            United States Court of Appeals
                        For the First Circuit


No. 12-2023

                            UNITED STATES,

                              Appellant,

                                  v.

                          ANTHONY DAPOLITO,

                        Defendant, Appellee.


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

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



                                Before

                          Lynch, Chief Judge,
                        Howard, Circuit Judge,
                     and Casper,* District Judge.




     Margaret D. McGaughey, Assistant U.S. Attorney, with whom
Thomas E. Delahanty II, United States Attorney, was on brief, for
appellant.
     David Beneman, Federal Defender, for appellee.



                            April 11, 2013



     *
         Of the District of Massachusetts, sitting by designation.
           LYNCH, Chief Judge.    This is an appeal by the government

from the district court's grant of defendant Anthony Dapolito's

motion to suppress evidence (a firearm) as the fruits of an

unconstitutional detention.      United States v. Dapolito, No. 2:12-

cr-00045-NT, 2012 WL 3612602 (D. Me. Aug. 21, 2012).

           The prosecution does not challenge on appeal the district

court's findings of historical fact.        Rather, it argues that the

district court committed three legal errors, in that the district

court: (1) failed to apply the correct test for when a consensual

encounter matured into a stop under Terry v. Ohio, 392 U.S. 1

(1968); (2) failed to consider the totality of the circumstances in

its reasonable suspicion analysis; and (3) substituted its judgment

for that of the officers in this case.            These errors, the U.S.

asserts, mean that the district court erred in concluding that the

totality   of   the   circumstances   did   not   provide   a   reasonable

suspicion to support the defendant's continuing detention at the

time of the search, which produced the firearm.

           We find no error and affirm. The court employed analyses

and reached conclusions consistent with the relevant law, including

Terry, United States v. Arvizu, 534 U.S. 266 (2002), and United

States v. Sokolow, 490 U.S. 1 (1989).

                                   I.

           On Friday, March 9, 2012, with temperatures warm enough

for police bicycle patrols, officers Dan Knight and Richard Ray


                                   -2-
cycled past Monument Square, a public pedestrian square, in the

heart of downtown Portland, Maine.       At about 2:39 a.m., they saw

the defendant, Anthony Dapolito, appearing to be in his thirties

and wearing a jacket, standing alone in an alcove at 18 Monument

Square.

          The district court, which viewed the scene, described the

alcove:

          From the sidewalk [looking toward the alcove],
          there are two doorways within the alcove. The
          first doorway, which is roughly in the center
          of the alcove, is the entryway for [Shay's
          Grill Pub].     To the right of the Shay's
          entrance is a second door allowing access to
          condominiums on the upper floors.      To the
          right of the condominium entrance is a small
          ATM machine, which is shielded by a canvas
          enclosure. The defendant was standing in the
          area directly in front of the door to the
          condominiums.

Dapolito, 2012 WL 3612602, at *1.1

          Ray   spoke   to   Dapolito,   and    Dapolito   responded   that

"everything's okay," but Dapolito was also grimacing, squinting,

and making strange facial expressions.         The officers got off their

bikes and walked over to Dapolito.         The officers observed that

Dapolito appeared to be intoxicated or otherwise impaired.             His

face was sweaty and he was fidgeting with his hands.




     1
       The record indicates that Shay's was closed at that hour,
but does not reveal whether other businesses in the area were open.
However, Ray testified that he did not see anyone else in the
square.

                                  -3-
             The officers testified that they were patrolling the

"downtown area" because there had been "recent" burglaries of

businesses and graffiti incidents, though they had no information

about any recent burglaries or criminal activity in this particular

location, and did not say how recent these reported downtown

burglaries had been.      The "downtown area" is a large area, and

includes the Old Port section of Portland, of which Monument Square

is a part.    Ray did not know whether any burglaries had occurred in

Monument Square in the past month.         As Knight testified, the

officers saw no evidence that Dapolito was or had been involved in

a burglary and he did not appear to have any of a burglar's usual

tools.

             Neither officer recognized the defendant.   Ray asked the

defendant for identification.      Dapolito replied that he did not

have any identification on his person, but voluntarily provided his

name, and accurately gave his date of birth and said he was from

Saugus, Massachusetts. He also provided a middle initial "M." The

police report filed added that Dapolito said he had a Massachusetts

driver's license.     There is no evidence that Dapolito hesitated or

paused before giving this information.

             The officers said the defendant spelled his name for them

as "D-A-P-L-I-T-O," with the middle "O" missing.         The district

court found that "the Defendant either unintentionally misspelled

his name . . . or that Officer Ray misheard him."            Ray then


                                  -4-
contacted dispatch and requested that dispatch search for a record

of the defendant.   Dispatch responded that no record was found for

that name in Maine or Massachusetts.2   Ray told Dapolito that the

name was not on file and asked if he had the name right.   Dapolito

spelled his last name as "D-A-P-O-L-I-T-O," which is the correct

spelling.    Ray asked dispatch to do another search; once again,

dispatch found no record in its computer system.

            Ray testified that he believed Dapolito was lying about

his identity given the first misspelling and the inability of

dispatch to confirm the second (correct) spelling.   He thought it

common practice for people to lie about their names when they are

wanted, and so suspected Dapolito was wanted on a warrant.     Ray

then asked Dapolito if he could pat him down for identification;

Dapolito refused and said he was not comfortable being touched.

            The officers asked what Dapolito was doing there and

where he lived. Dapolito told Ray he was waiting for some friends.

He also said that he lived at 18 Monument Square.          However,

Dapolito did not have a key to the condominiums, and could not

provide the phone numbers of his supposed roommates because his

cell phone battery was dead.   He also made rambling and incoherent

statements, including that if one subtracts 100 from 118, one gets


     2
       Ray did not know what records Massachusetts kept, but
understood that a dispatch search checks for both motor vehicle
records and National Crime Information Center (NCIC) data, which
includes outstanding warrants, bail conditions, and prior felony
convictions.

                                 -5-
18, an apparent reference to the 18 Monument Square address.

Knight   pressed     the    buzzer    for   the    condominiums,   but   no   one

responded.

             For a second time, Ray asked Dapolito if he could search

him for identification.         Again, Dapolito refused and said he was

not comfortable with that.           However, Ray saw what looked like the

outline of a credit card or a license in Dapolito's left front

pants pocket, and asked Dapolito what it was. Dapolito took it out

of his pocket and showed it to Ray.               The card was a government-

issued Massachusetts Electronic Benefit Transfer (EBT) card.                  The

card had Dapolito's name on it, spelled the same way as the second

spelling of the name he had given the officers, but it did not have

a photo identification.        Despite the fact that the card confirmed

Dapolito's    name    and    his     association    with   Massachusetts,     the

officers continued the interrogation.3

             In fact, at some point during the questioning, Officer

Christopher Dyer, having heard over his car radio about the two

bicycle officers' encounter, and thinking it odd that the encounter

had lasted fifteen minutes without more radio traffic, decided, on

his own, to drive his police cruiser onto Monument Square, where

vehicles are not ordinarily permitted. He arrived at approximately

2:54 a.m., got out, and approached the officers and Dapolito.


     3
       The record is not clear about how much time had elapsed by
this point, but it occurred well into the encounter, which lasted
upwards of twenty minutes.

                                        -6-
Dapolito now had three officers facing him, and a cruiser on scene,

as he stood in the alcove, at the point where the paving changed

from the alcove's stones to the brick sidewalk.

            Ray continued to question Dapolito because, in his view,

according to the police report, the information the defendant was

providing the officers "wasn't adding up" and he "deemed it

necessary to detain [Dapolito] in order to discover his identity."

The next sentence of the report moved from the officers' "need to

discover" Dapolito's identity to the statement, "I believed he

could possibly be a burglar or a wanted person using a false name

to evade capture."      By now, the encounter had lasted at least 20

minutes.

            Ray went a step further, and at this point, told Dapolito

that he, Dapolito, was being deceitful, that Dapolito was going to

be detained, and more specifically, that Dapolito was going to be

brought to the county jail.4      Ray also told Dapolito he would be

searched for identification.

            In response to being told he was going to be taken to

jail, and after he had twice refused requests that he agree to be

searched,    Dapolito   took   what    the   officers   identified   as   a

"fight-or-flight" stance.      At that point Dyer moved closer to Ray,

Knight, and Dapolito. Dapolito said "I don't want that," and asked



     4
       There, the police could have used a fingerprint machine or
a record of tattoos to attempt to identify the defendant.

                                      -7-
if he could have permission to take three steps back.   Ray said no

and told Dapolito to place his hands on his head, the first step of

the pat down process.     Ray's contemporaneous police report never

mentioned officer safety as a factor in conducting the pat down,

only the need to find identification.    But he later testified, as

did the other two officers, that the pat down was initiated for

officer safety reasons.

           When Dapolito did not initially comply, Knight drew his

Taser and placed the red dot on the defendant's chest.           In

response, Dapolito complied with the command to place his hands on

his head; his shirt and jacket lifted, and Dyer saw a handgun in

the defendant's waistband, which Dyer then grabbed.

           Dyer took Dapolito to the county jail.       There, the

defendant provided the same name and date of birth he had given the

officers earlier, as well a social security number.        Dispatch

searched for the defendant in the Interstate Identification Index,

which confirmed his identity5 and indicated that he was a convicted

felon; it did not have any information that Dapolito was wanted for

a crime.

                                 II.




     5
       The post-arrest records Ray reviewed did not contain the
middle initial "M" that Dapolito had given when asked in Monument
Square. That one-letter discrepancy may have thrown off dispatch's
earlier searches to find a matching record. There is no claim that
it is not his accurate middle initial.

                                 -8-
           On March 27, 2012, a federal grand jury indicted Dapolito

on one count of being a felon in possession of a firearm in

violation of 18 U.S.C. §§ 922(g)(1) and 924(e).           The defendant

moved to suppress the gun on the ground that the search that

resulted in the discovery of the gun derived from an unlawful

seizure in violation of the Fourth Amendment.           The government

argued the encounter was consensual and only became a Terry stop

when the defendant was told he was going to be detained.         At that

point, the government argued, the officers had reasonable suspicion

that criminal activity was afoot and the pat-frisk was justified by

an objective concern for officer safety.

           The district court held an evidentiary hearing on July

18, 2012, hearing testimony from Ray, Knight, and Dyer. It granted

the motion to suppress on August 21, 2012.           The district court

found that the consensual encounter had become a Terry stop by the

time Dapolito had produced the EBT card containing the name he had

already provided to the officers.       Dapolito, 2012 WL 3612602, at

*7.   The court then determined that at the inception of the Terry

stop, the officers lacked reasonable suspicion to permit the

detention.     The   court   reasoned   that   the    totality   of   the

circumstances did not provide a particular and objective basis to

suspect that the defendant was engaged in a burglary, wanted on an

outstanding warrant, or otherwise involved in criminal activity.

Id. at *7-8.     Rather, "[w]hat the officers had was an odd,


                                 -9-
grimacing, impaired man, who was unknown to them and who was not

making much sense.          The Defendant was acting not unlike many other

members of the indigent and/or transient population of Portland."

Id. at *7.

                  The government's timely appeal followed.

                                          III.

                  Under Ornelas v. United States, 517 U.S. 690 (1996), the

Courts of Appeals must undertake independent appellate review of a

district court's decision on the mixed question of law and fact of

whether the historical facts, viewed from the standpoint of an

objectively reasonable officer, amount to a reasonable suspicion or

to probable cause.          Id. at 696-97.       When reviewing a challenge to

a district court's decision on a suppression motion, we review the

district court's factual findings and credibility determinations

only for clear error.             United States v. Camacho, 661 F.3d 718, 723

(1st       Cir.    2011);   see    Ornelas,   517   U.S.   at   699   (findings   of

historical fact reviewed for clear error).                 We review the court's

legal conclusions de novo.             United States v. Rabbia, 699 F.3d 85,

89 (1st Cir. 2012).          That being said, it is also true that we "give

due weight to inferences drawn from [historical facts] by resident

judges and local law enforcement officers."6                Ornelas, 517 U.S. at


       6
       One Supreme Court Justice does not see "how deferring to the
District Court's factual inferences (as opposed to its findings of
fact) is compatible with de novo review." United States v. Arvizu,
534 U.S. 266, 278 (2002) (Scalia, J., concurring) (citing Ornelas
v. United States, 517 U.S. 690, 705 (1996)).

                                          -10-
699.   As explained in United States v. Townsend, 305 F.3d 537 (6th

Cir. 2002), the district court, which observes the testimony of the

witnesses and understands local conditions, is at an institutional

advantage in making this determination. Id. at 542. "Accordingly,

'due weight' should be given to the inferences drawn from the facts

by 'resident judges.'"     Id. (quoting Ornelas, 517 U.S. at 698).

            We wish to be clear about what issues are and are not

presented   on   appeal.    The   government   does   not   argue   that,

regardless of reasonable suspicion, the officers independently

feared for their safety at the point when they told Dapolito to put

his hands on his head, pointed the Taser at him, and placed the red

Taser light on his chest.      The government accepts the framework

that if there was no reasonable suspicion, there was no basis to

search Dapolito.     The government contends that what began as a

consensual stop evolved into a permitted Terry stop because there

was reasonable suspicion of criminal activity afoot and it was so

at the time of the search.

            The Fourth Amendment protects "[t]he right of the people

to be secure in their persons, houses, papers, and effects, against

unreasonable searches and seizures."     U.S. Const. amend. IV.       The

Amendment prohibits only those searches and seizures that are

"unreasonable." United States v. Pontoo, 666 F.3d 20, 27 (1st Cir.

2011).   The police may stop and briefly detain an individual for

investigative purposes if the police have a reasonable suspicion


                                  -11-
that criminal activity is afoot.     Sokolow, 490 U.S. at 7; Terry,

392 U.S. at 30; Pontoo, 666 F.3d at 27.   An individual is detained

when a reasonable person would not feel free to refuse to answer

police questions and proceed along his way.7        See Florida v.

Bostick, 501 U.S. 429, 439 (1991); United States v. Young, 105 F.3d

1, 6 (1st Cir. 1997).

          Reasonable    suspicion   requires   there    be   both    a

particularized and an objective basis for suspecting the individual

stopped of criminal activity.   United States v. Cortez, 449 U.S.

411, 417-18 (1981). The particularity requirement demands that the

finding be "grounded in specific and articulable facts."      United

States v. Hensley, 469 U.S. 221, 229 (1985).           The objective

requirement dictates that we view the circumstances through the

lens of a reasonable police officer.   Pontoo, 666 F.3d at 28.      The

reasonable suspicion standard "defies precise definition," and

"must be determined case by case."     United States v. Chhien, 266

F.3d 1, 6 (1st Cir. 2001).      It is a commonsense, nontechnical

conception.   Ornelas, 517 U.S. at 695.



     7
       The government challenges the district court's determination
of when exactly the detention began.        Whether it began when
Dapolito provided the EBT card, as the district court determined,
or, as the U.S. says, at the time the defendant was told he would
be taken to the county jail, does not control our determination of
whether the officers had reasonable suspicion to detain the
defendant. Suffice it to say that Dapolito was detained at least
as of the time he was told he was being detained and being taken to
jail. Whatever the relevance of the "fight-or-flight" stance, it
occurred later, and was a direct response to that announcement.

                                -12-
          In determining whether reasonable suspicion existed,

courts must look to the totality of the circumstances. See Cortez,

449 U.S. at 417 ("[T]he essence of all that has been written is

that the totality of the circumstances -- the whole picture -- must

be taken into account.").   As a result, no individual factor or

fact should be considered in isolation.   See Arvizu, 534 U.S. at

274-75.

                                IV.

          We deal with the government's three claims of legal error

before its challenge to the results of the district court's

totality of the circumstances inquiry. First, the U.S. argues that

"the court failed to apply the correct test for deciding when the

consensual encounter matured into a 'Terry' stop."     Second, the

U.S. asserts that the court erred in its reasonable suspicion

determination because "the court conducted a 'divide-and-conquer'

analysis that assessed each fact . . . out of context and assigned

those individual facts innocent interpretations."      Third, "the

lower court[] substitut[ed] . . . its own interpretations of the

historical facts for the judgment of two trained and experienced

police officers."   Recall that the government's rationale for the

detention is that there was reasonable suspicion of burglary or

that Dapolito was hiding his identity as a wanted fugitive.

          As to all three challenges, the district court correctly

stated the requirements set by the law, and more particularly set


                               -13-
out in Terry, Arvizu, and Sokolow, and stated that was the law that

was being applied.        We go through the Terry issue after discussing

the other two.

            In Arvizu, 534 U.S. 266, the Supreme Court rejected a

"divide-and-conquer"           analysis     under   which     the   relevance    of

individual factors are considered in isolation from one another in

making a reasonable suspicion determination.                Id. at 274; see also

Sokolow, 490 U.S. at 7-8 (finding lower court erred in dividing

evidence rather than simply considering the whole picture).                     The

government argues the district court committed such error here.

Not so.

            The district court was acutely aware of the totality of

the circumstances approach that is required.                  The court expressly

said   that    its      task    was   to     consider   the    totality   of    the

circumstances.         Dapolito, 2012 WL 3612602, at *4.            It engaged in

careful consideration of all the facts, as its opinion shows.

            The government compiles a list of examples it argues are

instances     of   a    "divide-and-conquer"        analysis,       including   the

district court's consideration of three facts: that the officers

were not aware of any burglaries in Monument Square that night or

in the past month, that they saw no visible evidence of a burglary

or of Dapolito's possession of tools to commit burglary, and that

they had no knowledge of an outstanding warrant as to Dapolito. In




                                           -14-
doing so, it is the government that commits the error it accuses

the district court of making.

          It was both legitimate and reasonable for the court to

consider whether, as a factual matter, the area was actually the

scene of recent crimes. See, e.g., United States v. Hart, 674 F.3d

33, 39 n.1 (1st Cir. 2012) (character of the area in which

defendant was seized is a factual issue best left to the district

court).   The character and occurrence of crimes in an area is a

relevant factor in a totality of the circumstances inquiry.             See

Schubert v. City of Springfield, 589 F.3d 496, 501-02 (1st Cir.

2009) (reasonable suspicion where officer saw man carrying gun in

high-crime area walking toward public building). We have looked at

(1) the nexus between the type of crime most prevalent or common in

the area and the type of crime suspected in this case; (2) the

limited geographic boundaries of the area; and (3) the temporal

proximity between the evidence of heightened criminal activity and

the date of the stop.     See United States v. Wright, 485 F.3d 45,

53-54 (1st Cir. 2007) (collecting cases).          The court properly

considered the history (or lack thereof) of burglaries in Monument

Square during the prior month.

          The   court   also   properly   considered   the   presence    or

absence of the other factors it discussed in its opinion.           See,

e.g., Hensley, 469 U.S. at 229 (flyer issued by another department

indicating person wanted); Rabbia, 699 F.3d at 89-90 (officers


                                  -15-
observed drug transaction); Pontoo, 666 F.3d at 28 (responding to

report of murder); Camacho, 661 F.3d at 729 (responding to 911

call); United States v. Jones, 432 F.3d 34, 40-42 & n.1 (1st Cir.

2005)       (considering    as    relevant    type   of    gloves       defendant   was

wearing, as useful to conceal fingerprints, and clothing more

broadly).       The court was not imposing any per se requirements that

certain factors had to exist, as the government claims.8                    Moreover,

the   government's         argument    essentially        seeks    to    sweep   those

considerations to the side, which would be a sort of "divide-and-

conquer" approach that would isolate only those facts helpful to

the government's case.           This ground of error fails.

               The government also asserts that the district court erred

in its "readiness to substitute its own judgment for that of two

[experienced]       police       officers."      Again,      the    district     court

articulated the correct legal standard, stating that it considered

the totality of the circumstances "through the lens of a reasonable


        8
       The government also presents an argument that the court
required the officers to question the data records and the
sophistication of the search engine used by dispatch. The district
court imposed no such rule, but was explaining that without
information about how the dispatch search system operated -- such
as how close the name searched must be to the name on file -- the
failure of the system to come back with a record provided less
weight to any suspicion that Dapolito was giving a false name to
avoid detection. Cf. Arizona v. Evans, 514 U.S. 1, 17-18 (1995)
(O'Connor, J., concurring) ("In recent years, we have witnessed the
advent of powerful, computer-based recordkeeping systems that
facilitate arrests in ways that have never before been possible.
The police, of course, are entitled to enjoy the substantial
advantages this technology confers. They may not, however, rely on
it blindly.").

                                        -16-
police officer." Dapolito, 2012 WL 3612602, at *8; see Pontoo, 666

F.3d at 28. To the extent the government argues the district court

needed to defer to these specific police officers' view of the

situation, and cast aside its individual judgment about what an

objective officer's view would be, that is not the law.

          The government takes issue with the district court's

ruling   that   it   "cannot   infer    that   [Dapolito]   deliberately

misspelled his name to shield his true identity, particularly

since, when asked a second time, he spelled his name correctly and

he turned over an EBT card in the name of Anthony Dapolito."

Dapolito, 2012 WL 3612602, at *8.       Since the government has said

repeatedly that it is not attacking the factual findings of the

district court (and could not show clear error in any event), the

purpose of this argument is unclear.       The district court did not

say that there was no room for an objectively reasonable officer,

or even Officer Ray, initially, to wonder about the reasons for the

wrong spelling. Rather, the court said only that after the correct

spelling was given, and then verified by the EBT card, the fact of

the misspelling -- in light of the ambiguity over whether Dapolito,

who appeared to be intoxicated or otherwise impaired, accidentally

misspelled his name, or the officer misheard what an apparently

intoxicated or otherwise impaired man said -- did not permit an

objectively reasonable inference that Dapolito had deliberately

misspelled the name to hide his identity because he was wanted for


                                 -17-
a crime.     The district court considered that datum, among the

totality of the data -- including the fact that the officers did

not know whether the second spelling was correct, and the lack of

a photo on the EBT card -- in reaching its conclusion.              We see no

basis for the government's argument that the court did not use the

correct standard.

            Ultimately, the government's Terry argument comes down to

whether    the    district   court,   having   correctly   articulated     and

understood the relevant legal standards, nonetheless erred in its

reasonable       suspicion   determination.     The   appellant,    here   the

government, bears the burden of establishing error.                See United

States v. Randazzo, 80 F.3d 623, 633 (1st Cir. 1996) ("In all

events, it is the appellant's responsibility to make some showing

that an error has been committed."); United States v. Mala, 7 F.3d

1058, 1061 (1st Cir. 1993); see also Murphy v. St. Paul Fire &

Marine Ins. Co., 314 F.2d 30, 31 (5th Cir. 1963);          United States v.

Rogers, 120 F.2d 244, 248 (9th Cir. 1941).

            The government, at oral argument, provided a list of

facts it said, taken together, so established reasonable suspicion

of criminal activity that we must reverse.            These facts included:

the time of night; the recent rash of burglaries in downtown;

Dapolito's standing near a closed business and an ATM; his odd

behavior; the fact that he gave two different spellings of his name

and they could not be verified; his lack of possession of a key to


                                      -18-
the building where he said he lived; and the fact that his cell

phone        was    dead,   preventing   him    from   contacting   his   supposed

roommates.            Exercising independent review and looking at the

totality of the circumstances, we cannot say that the district

court committed error.

                   The district court focused on the officers' suspicions

that Dapolito was engaged in or about to be engaged in a burglary

and/or that Dapolito was wanted on an outstanding warrant, the only

two suspicions of crime the government has offered.9                The district

court's reasoning, which fully supports its conclusion, does not

need to be repeated here.           We just add a few observations.

                   The burglary justification offered by the government

comes from the fact that the "downtown area" -- a large area

covering at least Commercial Street, Fore Street, Exchange Street,

and Congress Street -- had experienced some recent commercial

burglaries.          But there was no evidence that Monument Square was a

particular hot spot, or that it had even had any recent burglaries.

There was no evidence of ATM burglaries in the area, and there was

no evidence as to what was meant by "recent."

                   Moreover, the defendant's behavior did not tie him to a

burglary.10          There was no evidence that Dapolito was fiddling with


        9
       There is no argument that Dapolito was suspected of adding
graffiti to buildings.
        10
        We pause to distinguish some of the cases which the
government says require us to find error, but all of which show a

                                         -19-
doorways or even with the ATM in the alcove.   The officers did not

see any tools of the trade, such as pliers or a pry bar, on or near

the defendant that would be used in a burglary.     And, unlike in




particularized and objective basis for suspecting the individuals
of criminal activity.     We need not address every case, but we
highlight just a few.     We found reasonable suspicion in United
States v. Walker, 924 F.2d 1 (1st Cir. 1991), where a reasonable
officer could conclude from his observations that a burglary was in
progress. There, an officer observed individuals at 2:30 a.m.,
near a trailer loaded with wood, at a lumber and construction
materials business that had seen several recent burglaries. The
officer had never noticed a delivery at that hour in four years of
patrolling the area, and the trailer was parked in a concealed
manner. Id. at 4. There is no attempt here to even argue that the
officers had reasonable suspicion of a crime in progress.
     This case also differs significantly from United States v.
Kimball, 25 F.3d 1 (1st Cir. 1994), where the officer had a
reasonable suspicion of a burglary where a vehicle was parked in a
school parking lot after midnight, and where a number of schools
had been recently robbed.      Id. at 7.    Moreover, the officer
recognized the defendant's car and knew the defendant had a
criminal history of burglaries. Id. The officers here had no such
knowledge, and the presence of an apparently intoxicated or
otherwise impaired individual in an urban public square at night is
not unusual.
     Finally, these facts differ materially from those in United
States v. Jones, 432 F.3d 34 (1st Cir. 2005), where at 4 a.m., on
a rainy winter night, an officer observed two individuals sprinting
down a street.     They were wearing hooded sweatshirts tightly
wrapped around their heads, disguising themselves, and thin, white
latex gloves more suited for concealing fingerprints than for
keeping warm. Id. at 40-42. The neighborhood in question had also
experienced an abnormal number of recent robberies and break-ins.
Id. at 41. In any event, as the Supreme Court has noted, since
each case turns on its own facts, resort to precedent may not be
helpful. See Ornelas, 517 U.S. at 698 ("[O]ne determination will
seldom be useful 'precedent' for another . . . ." (quoting Illinois
v. Gates, 462 U.S. 213, 238 n.11 (1983)) (internal quotation marks
omitted)).

                               -20-
Terry, 392 U.S. at 6-7, the officers did not observe any suspicious

behavior, like Dapolito casing a building.11

               Further, Dapolito readily offered his name, his date of

birth, that he was from Massachusetts, and when asked, gave the

officers the EBT card.      When the officers wanted to talk to him, he

responded.       Not only does this not fit the pattern of someone

trying to avoid police attention, but it also does not add credence

to the alternative theory that Dapolito was wanted on a warrant.

               Unlike a situation where the police have been given

information on an individual's wanted status, see, e.g., Hensley,

469 U.S. at 229 (police had wanted flyer); United States v. Nelson,

483 F. App'x 677, 682 (3d Cir. 2012) (reasonable suspicion where

officer knew of outstanding warrant), such information was lacking

here.        Rather, the officers became suspicious because dispatch

could not find Dapolito on record and because Dapolito provided, or




        11
       These facts are in contrast to other cases of ours. See
United States v. Brake, 666 F.3d 800, 804-05 (1st Cir. 2011)
(officer stopped two men with temporal and spatial connection to a
residence at which a 911 call reported an individual with a
handgun); United States v. Pontoo, 666 F.3d 20, 28 (1st Cir. 2011)
(report of murder, with other facts, established reasonable
suspicion); Jones, 432 F.3d at 40-42 & n.1 (individuals wearing
form-fitting gloves, more appropriate for concealing fingerprints
than for keeping hands warm, contributed to finding of reasonable
suspicion); United States v. Romain, 393 F.3d 63, 72 (1st Cir.
2004) (911 call and suspect's agitation and belligerence resulted
in reasonable suspicion); cf. United States v. Spoerke, 568 F.3d
1236, 1249 (11th Cir. 2009) (officer reasonably suspected criminal
activity upon observing gloves, goggles, face mask, and
flashlight).

                                   -21-
at least the officers thought he did, different spellings of his

name.

          In fact, Dapolito produced a government benefits card

from the state where he said he was from, which confirmed his name.

That did not, however, cause the police to terminate the encounter,

but to escalate it.

          As the district court noted, the mere fact that dispatch

did not get an affirmative match from whatever government record

system it consulted does not, standing alone, create reasonable

suspicion of a crime, either the first time, or the second time.

A simple mishearing or mistake as to a name, or the use or omission

of an initial, may alter results of the search, and the record

system itself, even assuming accuracy of input, is only as complete

as the systems which feed into it.      We do not say that the failure

to find a corresponding match is irrelevant, but that it does not

carry the weight the government, in this context, gives it.         It

simply cannot be that reasonable suspicion of a person being a

wanted fugitive is created by the failure to find the name, given

by a person, in a government database.     Ironically, had Dapolito's

name been found, the information would not have shown he was wanted

on a warrant.

          The dissent contends that "the situation was ambiguous"

and that a Terry stop was justified even if there was an innocent

explanation.    But   the   dissent   overstates   whatever   ambiguity


                                 -22-
remained after Dapolito produced the EBT card from Massachusetts,

the state with which he claimed an association, in his name, which

comported with the name he provided the officers and which was

spelled exactly as he spelled it to the officers the second time.

By that point, the officers had some corroboration that the

defendant had identification in the name that he had provided and,

although   Dapolito's   behavior   may    still    have   seemed   odd,    the

officers had a lesser, not a greater, basis to believe that he was

being untruthful.

           A reasonable person in Dapolito's position would not have

felt free to disregard the police and go about his business.              See,

e.g., United States v. Espinoza, 490 F.3d 41, 49 (1st Cir. 2007).

He was told he was being taken to jail, despite his having

cooperated and answered the officers' questions.            He was told he

would be searched despite the fact that he had twice said he did

not want to be searched, or even touched.         He felt he needed police

permission even to step back three steps; and when he asked to do

so, he was told no.     There were three officers, with a patrol car

ready to remove him.     Most likely, a reasonable person would not

have felt free to leave even earlier than the moment at which

Dapolito was told he was being taken to jail, but we need not

decide that.

           The district court determined the encounter became a

Terry stop prior to this point, and the dissent takes issue with


                                   -23-
the district court's consideration of the duration of the encounter

in making that determination, stating that "the length of a

consensual encounter alone" cannot transform the encounter into a

Terry stop.     But the district court did not rely solely on the

length of the encounter to find that a Terry stop occurred.

Rather, the district court also considered the intensification and

the accusatory nature of the questioning, the statement to Dapolito

that he was lying, and the fact that the EBT card did not alleviate

the officers' suspicions.     See Dapolito, 2012 WL 3612602, at *7

("While   the   initial   encounter     was   casual,   the   interaction

intensified after the Defendant had correctly spelled his name and

the dispatcher had relayed the information that there was no record

found. At that point, Officer Ray's questioning became accusatory,

and Officer Ray told the Defendant that he believed the Defendant

was lying.    After about fifteen minutes of questioning, and after

the production of the EBT card did not dispel the officers'

suspicions, it would have been obvious to any reasonable person

that the police were not going to let him go.").        In any event, the

officers did not have reasonable suspicion of a crime at the time

they told Dapolito they were taking him to the county jail.12




     12
       On these facts, the question also arises as to whether, at
that time, this was a de facto arrest.     It is a question the
district court did not address, nor do we. We do note that, if it
was an arrest, we think it clear that there was no probable cause
for an arrest, there not being even reasonable suspicion.

                                 -24-
             It was certainly reasonable for the officers here to

approach Dapolito.       They were on patrol in the early morning hours

when they encountered a man, unknown to them, who appeared to be

intoxicated or otherwise impaired, whose identity they could not

readily verify, and whose behavior and facial gestures they could

have reasonably viewed as bizarre.           Certainly, as a matter of law

enforcement and public protection, it was reasonable for them to

speak with the defendant to determine if he needed assistance or if

criminal activity was afoot.           Neither party disputes that the

encounter that began between the police and the defendant was

consensual    and   proper.     But   where,    for   the   reasons   we   have

previously explained, the police did not have reasonable suspicion

to believe that the defendant had been or was going to be engaged

in a crime, the consensual inquiry (with which Dapolito complied)

cannot be converted into an investigatory stop.             The law requires

this result.

             Affirmed.

                      -Dissenting Opinion Follows-




                                      -25-
            HOWARD, Circuit Judge, dissenting.        In my view, the

government correctly identified three critical errors of law in the

district court's order to suppress the handgun found on Dapolito's

person.     Rather than correct these errors, the panel majority

sidesteps the first and repeats the second and third.          With great

respect, I must dissent from the majority's opinion.

            Although it is our practice to defer to the district

court's factual findings and review them only for clear error, we

are also obligated to perform an "independent appellate review" of

the   district    court's   "ultimate   determination[]   of   reasonable

suspicion."      Ornelas v. United States, 517 U.S. 690, 697 (1996);

United States v. Battle, 637 F.3d 44, 48-49 (1st Cir. 2011).          The

Supreme Court has emphasized the importance of de novo review in

cases like this one for at least three reasons.            First, if we

deferred to the district court's decision on reasonable suspicion--

a mixed question of law and fact--we would permit the scope and

force of the Fourth Amendment to vary between identical factual

situations, depending on which district judge heard the motion to

suppress.   See Ornelas, 517 U.S. at 697 (citing Brinegar v. United

States, 338 U.S. 160, 171 (1949)). Second, reasonable suspicion is

a "commonsense, nontechnical" concept that gains form "only through

application," and so de novo review is "necessary if appellate

courts are to maintain control of, and to clarify, the legal

principles" that define the law in this area.         Id. at 695, 697


                                   -26-
(citing Miller v. Fenton, 474 U.S. 104, 114 (1985)).      Finally, de

novo review serves to unify and rationalize past precedent, so that

our Fourth Amendment jurisprudence will "provid[e] law enforcement

officers with a defined 'set of rules which, in most instances,

makes it possible to reach a correct determination beforehand as to

whether an invasion of privacy is justified in the interest of law

enforcement.'" Id. at 697-98 (quoting New York v. Belton, 453 U.S.

454, 458 (1981)). Therefore, while we should defer to the district

court's description of the historical record, we owe no deference

to its view of the law.    Instead, we have a duty to apply the law

anew.

            The first error in the district court's suppression order

is its conclusion that a Terry stop occurred at the moment that

Dapolito produced his EBT card and still failed to allay the

officers' suspicions.     United States v. Dapolito, No. 2:12-cr-

00045-NT, 2012 WL 3612602 at *7 (D. Me. Aug. 21, 2012).           The

majority avoids this issue by assuming arguendo that no stop

occurred until later, when the officers told Dapolito that they

intended to take him to jail in order to identify him.       But the

majority opinion leaves the actual timing of the stop an open

question.    See ante at 12 n.7.     I believe that we can and should

state with confidence that no stop occurred until later, when the

officers actually attempted to arrest Dapolito.




                                   -27-
           Law   enforcement      agents      are   free   to    "approach[]    an

individual and ask[] [him] a few questions" without implicating any

Fourth Amendment protections.           Florida v. Bostick, 501 U.S. 429,

434 (1991).      Those interactions "need not find a basis in any

articulable suspicion." United States v. Young, 105 F.3d 1, 5 (1st

Cir.   1997).     Only   when    an    encounter    escalates     into    a   brief

"investigatory stop," also known as a "Terry stop," see Terry v.

Ohio, 392 U.S. 1 (1968), does the Fourth Amendment come into play.

In such cases, the Fourth Amendment requires that the police have

"a reasonable suspicion that criminal activity may be afoot."

United States v. Pontoo, 666 F.3d 20, 27 (1st Cir. 2011).                       The

Supreme Court has identified the moment at which a consensual

encounter transforms into Terry stop as when "a reasonable person

would . . . believe[] that he [is] not free to leave," I.N.S. v.

Delgado, 466 U.S. 210, 215 (1984) (quoting United States                         v.

Mendenhall, 446 U.S. 544, 554 (1980)), and we use a totality of the

circumstances inquiry to conduct that analysis, United States v.

Smith, 423 F.3d 25, 29-30 (1st Cir. 2005)

           In    this    case,   the    district     court      found    that   the

interaction between Dapolito and the police began as a consensual

encounter but matured into a Terry stop "[a]fter about fifteen

minutes of questioning, and after the production of the EBT card

did not dispel the officers' suspicions."                  Dapolito, 2012 WL

3612602, at *7.     At that point, according to the district court,


                                       -28-
"it would have been obvious to any reasonable person that the

police were not going to let him go."              Id.

            I find that conclusion difficult to square with the

settled law in this area.            The district court's opinion does not

explain why or how the length of the encounter and the officers'

incredulity communicated to Dapolito that he was suddenly not

allowed     to   walk    away.         According    to     the    Supreme   Court,

circumstances     that    may       indicate   a   Terry    stop    include   "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."                   Mendenhall, 446

U.S. at 554.       Here, if no Terry stop had occurred before the

production of the EBT card--and, in fact, up to that moment only

two officers were present, they had not drawn their weapons or

touched Dapolito, and they did nothing to indicate that Dapolito

was compelled to comply with their requests--then it remains a

mystery to me how the encounter became a Terry stop after that

point.

            The district court's order emphasizes that Dapolito was

physically confined because "his egress was impaired" by the

position of the two officers in front of the alcove.                     Dapolito,

2012   WL   3612602,     at   *7.      However,    we    have    urged   courts   to

"remember[] that mere physical limitations on an individual's


                                        -29-
movement, not created by police, are insufficient to turn an

encounter with police into a restraint of liberty."                        Smith, 423

F.3d at 30.           That adage follows the lead of the Supreme Court,

which        has    repeatedly   declined      to   find    a    seizure    when    law

enforcement agents block a civilian's escape from a confined space.

See Bostick, 501 U.S. at 436; see also Delgado, 466 U.S. at 218-19.

Here, the officers "stood where they had to," Smith, 423 F.3d at

30, and the fact that they had to stand at the opening of the

alcove did not mean that they had seized Dapolito for Fourth

Amendment purposes.

                   Nor did the length of the exchange up to that point,

which the district court clocked at approximately 15 minutes, see

Dapolito, 2012 WL 3612602, at *7, transform the encounter into a

Terry stop.           A totality of the circumstances analysis logically

includes the duration of the encounter,13 but we have emphasized

that the "trigger point for Fourth Amendment purposes is the

presence or absence of some cognizable coercion or constraint,"

United       States     v.   Espinoza,   490   F.3d   41,   48    (1st     Cir.    2007)

(emphasis added).            That formulation belies the notion that the

length of a consensual encounter alone can transform it into a

Terry stop. Indeed, we rejected exactly that proposition in United


        13
      Cf. United States v. Woodrum, 202 F.3d 1, 8 (1st Cir. 2000)
("[W]hen an encounter takes some appreciable time . . . the
justification for the detention becomes an issue because the
individual may no longer understand his participation to be
voluntary.").

                                         -30-
States v. Berryman, 717 F.2d 650 (1st Cir. 1983) (en banc), in

which our circuit sitting en banc reversed a prior decision by a

panel majority that had held that the "prolongation" of police

questioning could create "an atmosphere of restraint" that would

constitute a Terry stop.14 United States v. Berryman, 717 F.2d 651,

656 (1st Cir.), rev'd en banc, 717 F.2d 650 (1st Cir. 1983); see

also United States v. Gallego-Zapata, 630 F. Supp. 665, 670 (D.

Mass. 1986). Regardless, in my view, the 15 minutes of questioning

in this case was not so long that it escalated into a Terry stop--

we have previously found that a consensual encounter lasting over

20 minutes did not amount to a restriction on liberty implicating

the Fourth Amendment. See, e.g., United States v. Jodoin, 672 F.2d

232, 234 (1st Cir. 1982), abrogated on other grounds, Bloate v.

United States, 559 U.S. 196 (2010).

          In any event, what should be practically decisive in this

case is the fact that Dapolito apparently felt comfortable enough

throughout the encounter that he repeatedly declined the officers'

requests to search him for identification.   See Dapolito, 2012 WL

3612602, at *2 ("Officer Ray . . . asked if he could pat [Dapolito]

down to find identification.     [Dapolito] refused, telling the

officers that he did not like to be touched."); id. ("Officer Ray



     14
      Then-Judge Breyer dissented from this conclusion in the
original Berryman opinion, see Berryman, 717 F.2d at 663 (Breyer,
J., dissenting), and his position was vindicated by the subsequent
en banc decision.

                               -31-
asked   a   second    time   if   he   could   search   [Dapolito]   for

identification.      [Dapolito] again refused."); see also id. at *3

("Officer Ray told [Dapolito] that they were taking him to the

county jail to identify him . . . [Dapolito] turned slightly away

from the officers and said that he 'didn't want that.'"). When the

suspect's freedom of movement is restricted by factors independent

of police conduct, the Supreme Court has instructed that we should

modify the traditional "free to leave" inquiry and instead ask

"whether a reasonable person would feel free to decline the

officers' requests or otherwise terminate the encounter." Bostick,

501 U.S. at 439 (emphasis added).        Here, Dapolito obviously felt

that freedom and exercised it more than once.      Indeed, he rebuffed

a request by the officers to search him just moments before he

produced the EBT card--the point at which the district court

concluded that a Terry stop took place.          Although the majority

steers around the issue, the law makes clear that no Terry stop had

occurred at the time identified by the district court.

            Were I writing the majority opinion, I would stop here,

reverse the district court on this issue, and remand the case for

further proceedings.      If there was no Terry stop at the moment

chosen by the district court, then the police were not required to

have reasonable suspicion to engage with Dapolito at that point.

On remand, the district court would then study the remaining

chronology for any subsequent Fourth Amendment violations.


                                  -32-
           However, because the majority assumes arguendo that no

Terry stop occurred until the police actually attempted to arrest

Dapolito, its analysis continues onward.         The majority observes

that there is a serious question as to whether the detention at

this later moment was merely a Terry stop or if it actually

constituted a de facto arrest, ante at 24 n.12, a greater intrusion

that would have required the correspondingly greater justification

of "probable cause."    See Young, 105 F.3d at 6.       Nevertheless, the

majority concludes that it need not answer this question because

the officers did not even meet the lower requirement of reasonable

suspicion needed to justify a Terry stop.

           Although I expect that the government would find itself

quite far from the end zone on the de facto arrest issue if the

case were remanded, I am compelled to state my disagreement with

the majority's conclusion that the officers did not at least have

a   reasonable   suspicion   of   criminal   activity   that   would   have

justified a Terry stop.       That discussion also brings me to the

government's second and third claims of error, addressed to the

district court's finding that no reasonable suspicion existed to

support the brief detention of Dapolito.           I believe that the

government correctly identified two important mistakes, and that

the majority reinscribes these errors in its own analysis.         I also

believe that both opinions reach the wrong outcome on the overall




                                   -33-
issue, since our precedent makes clear that the officers had

reasonable suspicion to execute a Terry stop in this case.

           I am persuaded by the government's argument that the

order to suppress commits a second error when it engages in an

impermissible        "divide-and-conquer"     analysis      of    the      facts

surrounding the encounter with Dapolito.            United States v. Arvizu,

534 U.S. 266, 274 (2002); see also Pontoo, 666 F.3d at 29.                We use

a   totality    of    the    circumstances   test    to   determine      whether

reasonable suspicion existed to justify a Terry                  stop.      This

analysis requires a "broad-based consideration of all the attendant

circumstances," United States v. Chhien, 266 F.3d 1, 6 (1st Cir.

2001), so that "the whole picture . . . [is] taken into account,"

United States v. Cortez, 449 U.S. 411, 417 (1981).               It precludes

courts from dismantling a claim of reasonable suspicion by picking

out the suspicious factors one-by-one and offering an innocent

explanation for each. United States v. McGregor, 650 F.3d 813, 822

(1st Cir. 2011).

           Yet that is exactly what happened here.           The suppression

order repeatedly excuses Dapolito's behavior merely because it was

lawful, but never considers how his weird manner could still have

seemed suspicious to the police in context.            See, e.g., Dapolito,

2012 WL 3612602, at *7 ("What the officers had was an odd,

grimacing, impaired man, who was unknown to them and who was not

making much sense.          [Dapolito] was acting not unlike many other


                                     -34-
members of the indigent and/or transient population of Portland.");

id. at *8 ("[Dapolito's] story . . . was not adding up, but . . .

[e]ven if the story was not truthful, the Government made no claim

that such a false statement would be criminal.").           That reasoning

is directly contrary to the Supreme Court's clear instruction that

"[a] determination that reasonable suspicion exists . . . need not

rule out the possibility of innocent conduct." Arvizu, 534 U.S. at

277; see also Pontoo, 666 F.3d at 29.

              An even more critical mistake, in my view, is that the

court's suppression order isolates and dismisses each of the two

crimes that the police officers suspected Dapolito of committing,

without considering the totality of the circumstances from an

objective point of view.       During the encounter with Dapolito, the

officers on the scene suspected either that he may have been

involved in a burglary or that he might be wanted on a warrant.

See Dapolito, 2012 WL 3612602, at *7.         We are bound to consider

these   two    possibilities    together,   rather   than    "in   splendid

isolation."      Pontoo, 666 F.3d at 29.    Nor are we limited only to

these two possibilities, since "[w]hether a reasonable suspicion

exists is treated as an objective inquiry: the actual motive or

thought process of the officer is not plumbed."        Bolton v. Taylor,

367 F.3d 5, 7 (1st Cir. 2004).      Although neither the burglary nor

the warrant theory was invincible on its own, we must consider them

both along with all of the other possible crimes that an objective


                                   -35-
view of the circumstances would have given the police reason to

suspect--for    instance,    that   Dapolito   was   in    possession   of   a

controlled substance or that he was planning to rob the next person

who exited or entered the apartment building.          Viewed through this

holistic lens, a reasonable law enforcement agent at the scene

would have had good reason to believe that "criminal activity may

be afoot."     Arvizu, 534 U.S. at 273 (internal quotation marks

omitted).

            The third error in the order to suppress is that the

district court substitutes its own judgment for that of the

officers on the scene.      We use "an objective inquiry . . . from the

perspective of the searching officers" to evaluate whether a Terry

stop was justified by reasonable suspicion.                United States v.

Aitoro, 446 F.3d 246, 253 (1st Cir. 2006).           In order to adopt the

perspective of an objectively reasonable officer, we must remember

that law enforcement "is not required to possess the clarity of

vision that arises only in hindsight."         Pontoo, 666 F.3d at 28.

            When the district court discusses how Dapolito misspelled

his   name,    however,     it   substitutes   its    own    after-the-fact

perspective for what would have been apparent to the police

officers on the scene.       Viewing the scene through the eyes of the

officers, we see a man who claims to have a Massachusetts driver's

license, but who gives a name that does not appear in either the

Massachusetts or Maine motor vehicle records.             See Dapolito, 2012


                                    -36-
WL 3612602, at *2.    Asked again for his name, the man spells it

differently from the first time he offered it, and yet even this

new spelling does not appear in either state's database.    See id.

Finally, we spot an EBT card in the man's pocket, which when

produced bears the name that the man gave the second time but

includes no other identifying information.    See id.   These facts

are all that the police could have known, and yet the order to

suppress downplays the officers' suspicions on the grounds that

Dapolito spelled his name "correctly" the second time, id., and

that "it is more likely that [Dapolito] either unintentionally

misspelled his name the first time or that [the officers] misheard

him."   Id. at *8.   Of course, while these facts were apparent to

the district court sub specie aeternitatis, they would hardly have

been evident to a cop on the beat.       We must take the latter

perspective when we evaluate whether the police acted reasonably.

          Because I differ from the panel majority on how we should

evaluate the facts of this case, I also reach a different outcome

in my reasonable suspicion analysis.   The way I see it, the police

encountered Dapolito, a grimacing, apparently intoxicated, and

nervous-looking man, standing alone outside at 2:39 AM in the

morning, in an area where burglaries had recently occurred. He was

stationed in an alcove alongside an ATM machine, waiting without

any clear purpose in front of the doors to a restaurant and an

apartment building. His mannerisms were weird, and much of what he


                               -37-
said made no sense.    He told the police that his name was "Daplito"

and claimed that he had a Massachusetts driver's license--he could

not   produce    one--yet   when    the   police   searched   both   the

Massachusetts and Maine motor vehicle databases, no such name

appeared.    Asked again for his name, he spelled it differently, as

"Dapolito," but again, no name turned up in the motor vehicle

records.     At the officers' prodding, the man pulled an EBT card

from his pocket that bore one of the names that he had given but

did not have any other identifying information.        The man said he

lived in the apartment building behind him, but he did not have

keys to the building, nor did he have a cell phone with which he

could contact his roommates.       When the officers pushed the buzzer

to ring the apartment number where the man claimed to live, no one

responded.

             Certainly, the situation was ambiguous. But "the Supreme

Court has stressed that a Terry stop is permitted even if 'the

conduct justifying the stop was ambiguous and susceptible of an

innocent explanation.'" United States v. Wright, 582 F.3d 199, 213

(1st Cir. 2009) (quoting Illinois v. Wardlow, 528 U.S. 119, 125

(2000)).     In fact, "the very purpose of [a Terry stop] is to

clarify ambiguous situations."        Id. (quoting 2 LaFave et al.,

Criminal Procedure § 3.8(d), at 327 (3d ed. 2007)).       And although

there was nothing directly linking Dapolito to criminal conduct,

"no direct link between the suspect and the suspected criminal


                                   -38-
activity need be forged in order to achieve reasonable suspicion."

Ruidiaz, 529 F.3d at 29; see also Chhien, 266 F.3d at 6.

             What matters here is that there was concrete cause for

concern, given that Dapolito was standing by himself at a late hour

in an area where there had been recent burglaries, obviously

impaired, outside an apartment building where he claimed to live

and yet could not access, and unable to give a straight answer on

his own name.        He may have been preparing to break into the

building or the nearby ATM, or perhaps he was lying in wait to mug

the next person who tried to enter the apartment building, or maybe

he was under the influence of a controlled substance.            Then again,

he may just have been, as the district court suggested, one of the

"many . . . members of the indigent and/or transient population of

Portland."     Dapolito, 2012 WL 3612602, at *7.          The point is that

officers needed to briefly detain Dapolito in order to find out.

Even if it was more likely than not that Dapolito was merely a

harmless transient, reasonable suspicion "is considerably less than

proof of wrongdoing by a preponderance of the evidence . . . [or]

probable cause."      United States v. Sokolow, 490 U.S. 1, 7 (1989).

The officers had a reasonable suspicion here.

             Like   the   majority,    I   find   that   the   fact   patterns

presented in Terry stop cases are so "multifaceted" that "one

determination will seldom be a useful precedent for another."

Ornelas, 517 U.S. at 698 (internal quotation marks omitted).              But


                                      -39-
I feel obligated to cite just a few of our past decisions that

presented similar fact patterns, which I believe demonstrate that

the bar for reasonable suspicion has been met in this case.                 In

Foley v. Kiely, 602 F.3d 28 (1st Cir. 2010), we found that the

police had reasonable suspicion to conduct a Terry stop of a man

whom they encountered in a park late at night, possibly after the

park had closed, in an area where crimes had been reported.             Id. at

32.    In United States v. Walker, 924 F.2d 1 (1st Cir. 1991), we

held that a Terry stop was justified when, at 2:30 AM, the officers

spotted two people in the dimly lit parking lot of a lumber and

construction business, standing near a trailer rig loaded with wood

and a detached cab, in an area where there had been burglaries in

the past.     Id. at 4.      Finally, in United States v. Jones, 432 F.3d

34    (1st   Cir.   2005),    we   concluded   that   there   was   reasonable

suspicion for a Terry stop when the police saw two men sprinting

down the street at 4:00 AM, wearing hooded sweatshirts and strange

white gloves, in a neighborhood where there had been a number of

robberies and break-ins, and where a third man was walking ahead of

them in the same direction.          Id. at 41.   The facts of these cases

do not perfectly align with the ones at hand, but in my opinion,

they support a finding of reasonable suspicion in this case.

             I respectfully dissent.




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