          United States Court of Appeals
                     For the First Circuit


No. 09-1222

                        JONATHAN KLAUCKE,

                      Plaintiff, Appellant,

                               v.

                         BRIAN C. DALY,

                      Defendant, Appellee.



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

          [Hon. Michael A. Ponsor, U.S. District Judge]


                             Before

                       Lynch, Chief Judge,
              Torruella and Stahl, Circuit Judges.




     Bruce D. Colegrove, on brief for appellant.
     Richard W. Jensen and Morrison, Mahoney, LLP, on brief for
appellee.




                        February 9, 2010
            TORRUELLA, Circuit Judge.         In this appeal, plaintiff-

appellant Jonathan Klaucke challenges the district court's grant of

summary judgment in favor of defendant-appellee Brian C. Daly, a

police   officer   in   Amherst,    Massachusetts,     on    claims    alleging

violations of Klaucke's Fourth Amendment rights brought pursuant to

42 U.S.C. § 1983 and the Massachusetts Civil Rights Act.                       We

conclude on the undisputed facts that Officer Daly had ample

reasonable   suspicion    to   believe     that   Klaucke    was   a   minor   in

possession of alcohol in violation of state law when he detained

Klaucke, demanded identification, and briefly retained his driver's

license in order to confirm its validity and check for outstanding

warrants.    We affirm.

                               I.   Background

            A.   The Facts



The facts are straightforward.        On May 5, 2007, Klaucke was a 21-

year-old senior at the University of Massachusetts at Amherst who,

by all accounts, looked younger than his years.              At approximately

9:00 p.m. on that Saturday night, Klaucke was walking with a group

of four friends along Meadow Street in Amherst.             It was the Mexican

holiday of Cinco de Mayo, and Klaucke and his friends were on their

way to a party in the area.         Three of Klaucke's companions were

visibly carrying alcohol as they walked, including two twelve packs

of Corona beer and a large 22-ounce bottle of Smuttynose beer.


                                     -2-
Klaucke wore a backpack and carried a brown paper "Whole Foods"

grocery bag.       The contents of the bag were not visible, though as

it    turned    out   Klaucke      was   carrying     six    loose   cans   of   beer.

Everyone walking with Klaucke was also over 21 years old, the

minimum age required in Massachusetts to legally possess alcohol.

See Mass. Gen. Laws ch. 138, sec. 34C (providing that "police

officer may arrest without warrant" any person "under twenty-one

years of age and not accompanied by a parent or legal guardian . .

. [who] knowingly possesses, transports or carries on his person .

. . any alcohol or alcoholic beverages").

               Around the same time, Officer Daly was patrolling the

Meadow    Street      area    on   motorcycle.        He    was   accompanied    by   a

colleague, Officer Todd Lang.               The area was known for a high

incidence of underage drinking and student crime -- including large

scale disturbances, property damage, and both physical and sexual

assaults -- much of it alcohol-fuelled.               The first two weeks of May

typically brought an increase in these incidents and, in an attempt

to head it off, the Amherst Police Department had been conducting

seminars and distributing leaflets in the area to notify residents

and   students     that      officers    would   be   patrolling      the   area   and

requesting proof of age from individuals who were carrying alcohol

and appeared to be under the legal age.                Seeing Klaucke's friends

with beers in hand, Officer Daly did just that.                   He approached the

group and asked each member if he or she was over 21 years old.



                                          -3-
When they all answered that they were, Officer Daly asked them to

produce identification to confirm their age.               The other members of

Klaucke's group complied immediately.

            Klaucke alone refused to hand over his ID.                He told the

officer that he was 21 years old and had done nothing wrong.                     He

asserted    his   Fourth    Amendment     rights,    and    said    that   he   had

previously    spoken   to   a    lawyer   and   believed      that,    under    the

circumstances, he was not required to produce identification.

Officer Daly replied that he suspected Klaucke had alcohol in his

bag and was under the legal age, and again demanded identification.

Klaucke continued to refuse, and questioned the basis for the

officer's belief that he was carrying alcohol. This cavil back and

forth continued, for no more than a few minutes, until Officer Daly

stated     that   if   Klaucke      continued       to     refuse     to   produce

identification, Daly would assume Klaucke was underage and in

possession of alcohol, arrest him, and figure out his age during

the booking process.            Klaucke promptly produced his driver's

license, which verified that he was 21.

            Officer Daly did not return the identification to Klaucke

immediately, as he had to Klaucke's more cooperative companions.

Rather, he kept the license while he relayed Klaucke's information

to his dispatcher to confirm the validity of the license and

perform a check for outstanding arrest warrants.                    Officer Daly

explains that, at the time, he suspected Klaucke may have had a



                                      -4-
warrant out for his arrest given his adamant -- and, in Daly's

view, inexplicable -- refusal to produce identification that would

have verified that he was 21.

           After confirming that the license was real and that

Klaucke had no outstanding warrants, Officer Daly returned the

identification and Klaucke and his friends went on their way.

Between two to eight minutes elapsed between the time Officer Daly

took Klaucke's license and the time he returned it.         The entire

incident lasted no more than eighteen minutes.

           B.   Procedural History

           On August 23, 2007, Klaucke filed suit against Officer

Daly in federal court, bringing claims under 42 U.S.C. § 1983 and

the Massachusetts Civil Rights Act, Mass. Gen. Laws ch. 12, § 11I.1

The gravamen of his complaint under both state and federal law was

that Officer Daly had violated his Fourth Amendment right to be

free from unreasonable search and detention when the officer

demanded   identification,   threatened   him   with   arrest,   briefly

retained his license, and conducted the warrant search.          Klaucke

alleged that Daly was without a reasonable basis to do any of these

things.


1
  Klaucke pled his state cause of action under Mass. Gen. Laws ch.
ch. 12, § 11H-1. Because Section 11H governs civil rights actions
brought by the Attorney General, and because Section 11H-1 does not
exist, we assume, like the district court, that Klaucke meant to
bring a claim pursuant to Section I, which creates a private cause
of action for individuals alleging a deprivation of state or
federal constitutional freedoms.

                                 -5-
            Officer Daly moved for summary judgment and, after a

hearing, the district court ruled from the bench that the officer's

actions were supported by a reasonable suspicion that Klaucke was

a minor in possession of alcohol and that, as a result, no Fourth

Amendment violation had occurred. The district court also held, in

the alternative, that even assuming for argument's sake there had

been some violation of Klaucke's constitutional rights, Officer

Daly was entitled to qualified immunity for his conduct as those

rights were not clearly established at the time of the incident.

The court granted Officer Daly's motion for summary judgment.

            Shortly thereafter, on January 13, 2009, the district

court issued a brief written opinion to the same effect.               See

Klaucke v. Daly, 592 F. Supp. 2d 222 (D. Mass. 2009).          In it, the

court articulated the facts supporting its conclusion that Officer

Daly had reasonable suspicion to believe that Klaucke was a minor

in   possession   of   alcohol   at     the   time   Daly   demanded   his

identification.   These facts were "the nature of the area in which

[Klaucke's group was] walking, . . . the time of day and particular

holiday" and, "[o]f more importance[,] . . . the fact that the

individuals, especially Plaintiff, were of young appearance and

three of the five were openly carrying alcoholic beverages."           Id.

at 224.    Final judgment was entered on the same day.        Klaucke now

appeals.




                                  -6-
                             II.     Discussion

            A.    Standard of Review

            We review a district court's grant of summary judgment de

novo.   Insituform Techs., Inc. v. Am. Home Assurance Co., 566 F.3d

274, 276 (1st Cir. 2009).            "We will affirm entry of summary

judgment if the record -- viewed in the light most favorable to the

nonmoving party, including all reasonable inferences drawn in favor

of the nonmoving party -- discloses no genuine issue of material

fact, and the moving party is entitled to judgment as a matter of

law."   Kunelius v. Town of Stow, 588 F.3d 1, 8-9 (1st Cir. 2009).

"We may affirm summary judgment on any ground manifest in the

record."    Emhart Indus. Inc. v. Century Indem. Co., 559 F.3d 57, 65

(1st Cir. 2009).

            B.    The Investigative Stop

            Klaucke does not dispute that Officer Daly was permitted

under the Fourth Amendment to approach him and his companions,

inquire as to their age, and request that they voluntarily produce

identification.      United States v. Young, 105 F.3d 1, 6 (1st Cir.

1997) ("Police may approach citizens in public spaces and ask them

questions    without    triggering     the   protections   of   the   Fourth

Amendment.       Such police engagements need not find a basis in any

articulable suspicion." (citations omitted)); see, e.g., Hiibel v.

Sixth Judicial Dist. Court of Nev., 542 U.S. 177, 185 (2004)

("Asking questions is an essential part of police investigations.


                                      -7-
In the ordinary course a police officer is free to ask a person for

identification      without      implicating       the    Fourth    Amendment.").

Instead,    he     asserts     that    Officer     Daly    first      crossed   the

constitutional line when he "seized" Klaucke and "demanded" that he

produce identification.         Interactions such as this, which involve

more intrusive, investigative stops of an individual, fall within

the ambit of the familiar Terry line of cases.               See Terry v. Ohio,

392 U.S. 1 (1968).

            "When conducting a Terry stop, a police officer may

briefly detain an individual for questioning if the officer has

'reasonable suspicion supported by articulable facts that criminal

activity 'may be afoot.''"            Schubert v. City of Springfield, 589

F.3d 496, 501 (1st Cir. 2009) (quoting United States v. Sokolow,

490 U.S. 1, 7 (1989)).           "In determining whether a Terry stop is

justified, our inquiry involves two steps, first, 'whether the

officer's action was justified at its inception,' and second,

'whether it was reasonably related in scope to the circumstances

which   justified       the   interference    in   the    first    place.'"     Id.

(quoting Terry, 392 U.S. at 20).

            At the first step, "reasonable suspicion" requires the

officer    to    have   "'a    particularized      and    objective    basis'   for

suspecting the person stopped of criminal activity." United States

v. Wright, 582 F.3d 199, 205 (1st Cir. 2009) (quoting Ornelas v.

United States, 517 U.S. 690, 696 (1996)).                   This basis must be



                                        -8-
"'grounded in specific and articulable facts,'" and turns "not on

what the officer himself believed but, rather, on what a reasonable

officer in his position would have thought."          United States v.

Espinoza, 490 F.3d 41, 47 (1st Cir. 2007) (quoting United States v.

Hensley, 469 U.S. 221, 229 (1985)).2

          At the next step, we look to whether the officer's

investigative   measures    were   reasonably   calculated   to   uncover

evidence of wrongdoing related to circumstances giving rise to the

officer's initial suspicions.      See Terry, 392 U.S. at 20.     There is

no fixed guide to what police investigative measures are within the

scope of a Terry stop; in all events, the touchstone is the

reasonableness of the measures undertaken to quell or confirm the

officer's suspicions.      See, e.g., Hiibel, 542 U.S. at 188-89.

          In this case, we agree with the district court that the

circumstances confronted by Officer Daly were more than sufficient

to support a reasonable suspicion that Klaucke was a minor in

possession of alcohol in violation of state law. Klaucke's age and

2
  Klaucke argues that summary judgment is inappropriate due to the
existence of factual disputes concerning why Officer Daly suspected
Klaucke had alcoholic beverages in his bag. For example, Officer
Daly explained in his deposition that he suspected Klaucke had
alcohol only after seeing Klaucke attempt to conceal the bag, at
which point Daly claims he saw a wine bottle protruding from the
top of the bag. Klaucke disputes these facts, but they are not
material. Rather, under Terry, we view the circumstances attending
the investigative stop through an objective lens, and therefore
have no need to resolve ancillary disputes rooted in allegations
regarding the officer's actual, subjective beliefs, even if those
beliefs were mistaken. United States v. Ruidíaz, 529 F.3d 25, 29
(1st Cir. 2008) (reasonable suspicion "is not dependent on an
individual officer's subjective motives").

                                   -9-
appearance more than justified the reasonable suspicion that he was

under 21 years old.        The district court found that Klaucke "had an

unusually youthful appearance even for his age," a determination

well    within   its   ken    and   supported     by   photographs   of     Klaucke

appearing in the record.

            Further, the circumstances confronted by Officer Daly at

the time of the stop amply justified the reasonable suspicion that

Klaucke was in possession of alcohol.             Officer Daly was on patrol

in an area well-known for undergraduate drinking.                       It was a

Saturday    night      and,    moreover,   a    holiday    and   time      of   year

particularly associated with student partying.                Cf. United States

v. Ortiz, 422 U.S. 891, 897 (1975) (police officers may permissibly

"draw reasonable inferences from [the] facts in light of their

knowledge of the area and their prior experience").                  While these

considerations may have been insufficient, without more, to arouse

suspicion in the eyes of a reasonable officer, taken together with

the undisputed fact that Klaucke was walking in a group in which

his    companions   were      openly   carrying    alcohol,    we   find    that   a

reasonable officer standing in Officer Daly's shoes could have

suspected that the brown grocery bag Klaucke carried concealed

alcoholic beverages.

            Thus, we turn to whether the investigative measures

undertaken by Officer Daly were reasonably related in scope to the

circumstances that first aroused his suspicion.                  Officer Daly's



                                       -10-
demand for identification, plainly, was reasonably related to his

suspicion that Klaucke was underage.     Under the circumstances of

this case, the officer was not required to take Klaucke at his word

that he was 21.       Further, given Klaucke's initial refusal to

produce identification, it was not unreasonable for Officer Daly to

quickly verify the license to confirm he had not been handed a

fake.     It is well-known that college students often have doctored

IDs which list them as older than they are, just so they can

drink.3

             As for the warrant search, most circuits have held that

an officer does not impermissibly expand the scope of a Terry stop

by performing a background and warrant check, even where that

search is unrelated to the circumstances that initially drew the

officer's attention. See, e.g., United States v. Kirksey, 485 F.3d

955, 957 (7th Cir. 2007) (explaining that when an individual

"remains under suspicion for committing a crime, the officer can


3
    Klaucke suggests that he was "coerced" into producing his
identification by an unlawful threat of arrest.       Assuming for
argument's sake that more than reasonable suspicion was required to
threaten arrest, we conclude that the totality of information known
to Officer Daly at the time, including Klaucke's behavior in
refusing to produce his proof of age, was sufficient to allow
Officer Daly's reasonable suspicion to ripen into probable cause to
believe that Klaucke had violated Mass. Gen. Laws ch. 138, sec.
34C. See Acosta v. Ames Dep't Stores, Inc., 386 F.3d 5, 11 (1st
Cir. 2004)("The test for probable cause [to support an arrest] does
not require the officers' conclusion to be ironclad, or even highly
probable. Their conclusion that probable cause exists need only be
reasonable."). On these facts, the choice Officer Daly presented
to Klaucke was a lawful and common sense response to an impasse of
Klaucke's own creation.

                                 -11-
take a reasonable amount of time to check for outstanding warrants

or criminal history, even if the initial justification for the stop

had nothing to do with criminal history." (citing United States v.

Villagrana-Flores, 467 F.3d 1269, 1275-77 (10th Cir. 2006)); accord

United States v. Cavitt, 550 F.3d 430, 437 (5th Cir. 2008) (traffic

stop); United States v. Long, 532 F.3d 791, 795 (8th Cir. 2008);

United States v. Rusher, 966 F.2d 868, 876-77 (4th Cir. 1992).

          We need not address whether warrant checks are always

permissible in the normal course of a Terry stop.        Under the

circumstances here, Klaucke's refusal to produce a license that

would have alleviated the officer's stated concerns reasonably

roused a suspicion that his non-cooperation was driven by other

considerations, like an outstanding warrant for his arrest or other

criminal history, such as a prior arrest for underage drinking.

Cf. United States v. Sowers, 136 F.3d 24, 27 (1st Cir. 1998)

(police officer's "shift in focus" based on "unfolding events" in

course of Terry stop was "neither unusual nor impermissible").   It

took less than eight minutes to perform both the license validity

and warrant check.   We hold that these brief actions were within

the scope of conduct permissible under Terry.

          Accordingly, on the undisputed facts, Klaucke has failed

to show that Officer Daly violated any of his constitutional

rights, and we therefore need not address independently the issue




                               -12-
of qualified immunity.   See, e.g., Holder v. Town of Sandown, 585

F.3d 500, 508 (1st Cir. 2009).

          Affirmed.




                                 -13-
