United States Court of Appeals

For the First Circuit

No. 11-1215

UNITED STATES OF AMERICA,

Appellee,

v.

ADAM BRAKE,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Paul J. Barbadoro, U.S. District Judge]

Before

Lipez, Selya and Howard,

Circuit Judges.

Bjorn Lang, Assistant Federal Public Defender, for appellant.

Seth R. Aframe, Assistant United States Attorney, with whom

John P. Kacavas, United States Attorney, was on brief, for

appellee.

December 30, 2011
HOWARD, Circuit Judge. The defendant Adam Brake was

charged with one count of possession with an intent to distribute

a controlled substance in violation of 21 U.S.C. § 841(a)(1). He

moved to suppress the drugs as evidence, arguing that they were

obtained from him in violation of the Fourth Amendment through an

unlawful Terry stop, an illegal frisk, and an involuntary consent

to search. The district court conducted an evidentiary hearing at

which Brake did not testify. After crediting the police account,

the court denied the suppression motion. Brake pleaded guilty but

preserved his right to appeal the constitutional issues, which he

now exercises. Discerning no error, we affirm the conviction.

I. Background

One afternoon in January 2010, the Somersworth, New

Hampshire police department received a 911 call from a residence

reporting a man with a handgun making threats at that home; a fight

was possibly ensuing. Several police officers responded, arriving

at the scene within two minutes. The officers began walking toward

the site of the call, a duplex residence on Franklin Street. As

Detective Thomas Phelan approached within about 30 yards, he saw

two men walking toward the street, in the short driveway next to

the target residence. They were dressed in baggy jeans and bulky,

hooded sweatshirts. 

The police officers watched the men turn onto the

sidewalk and continue walking toward a parked red minivan. Phelan

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saw the men stop at the van, where one slid open the side door and

the other bent inside of the vehicle. The two momentarily

concluded their business at the van -- the nature of which the

officers could not discern -- then resumed travel on foot in a

direction away from the police officers. The officers were not

certain whether the men were aware of their presence. Concerned

that the pair may have been involved with the reported disturbance

and might be armed, Detective Phelan directed two patrol officers

to stop and identify the men. Patrolman Larry Mondene and his

partner ran after them, trying to get their attention by shouting

"hey." When the men did not immediately respond, the officers

continued their pursuit, commanding them to "stop." The duo did so

and turned to face the officers.

One of the men provided his identification at the

officers' request. Brake indicated that he did not have physical

identification on him, but he did give his name and date of birth. 

The patrolmen informed them of the nature of the reported complaint

and explained their intent to pat them down to check "for any

weapons or anything." While performing the pat-down search,

Mondene felt a bulky, "squishy" object that "felt like a bag" in

the front pocket of Brake's sweatshirt. Mondene described it as

"[r]oughly the size of a quart size bag" which was "full of

something." Discerning that the bag was not a weapon, Mondene

asked Brake what "he had in his pocket." During a brief colloquy

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between them, Brake indicated that the item was a plastic bag that

he had found in the bushes near the duplex. He explained that he

normally picked up trash from the ground, because on a prior

occasion he had discovered money by doing so. Patrolman Mondene

expressed disbelief about Brake's purported habit of garnering

garbage, and Brake told the patrolman that he intended to bring the

item to his friend's house and open it there. The colloquy

continued.

Officer Mondene asked Brake, "would [he] mind just taking

it out" of his pocket, and Brake replied "sure" and did so without

hesitation. It was a dark trash bag that had been cut and knotted. 

Mondene asked Brake whether he was curious about its contents, to

which Brake responded by opening the bag. After looking into it, 1

Brake threw the bag down and said "those aren't mine." Officer

Mondene picked it up and saw several hundred pills inside. 

By all accounts, Brake was entirely cooperative during

the encounter, which lasted a few minutes, and the tone between

Brake and Mondene remained cordial throughout. The two patrolmen

never drew their weapons, threatened to use handcuffs, or placed

At the suppression hearing, defense counsel cross-examined 1

Mondene, making use of a written report in which Mondene had

previously described this portion of the discourse slightly

differently. The report indicated that Mondene had asked the

defendant to open the bag, rather than the defendant simply doing

so in response to a question by Mondene about whether Brake was

curious. To the extent that the district court took the report

into account, it nevertheless found that Mondene had not issued any

commands or instructions obliging Brake to open the bag.

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their hands on Brake other than to conduct the brief pat-down. 

Neither did they inform Brake that he was free to leave after the

pat-down search or that he need not cooperate with Mondene's

inquiries about the bag.

It was later determined that the bag contained more than

six hundred OxyContin (oxycodone) tablets of varying dosages and

nearly one hundred generic oxycodone tablets of another dosage. 

After Brake was charged with possession with an intent to

distribute a controlled substance in violation of 21 U.S.C. §

841(a)(1), he filed a suppression motion challenging the

constitutionality of the stop, the frisk, and his consent to the

search that disclosed the bag and its contents.

Although Brake did not testify at the suppression

hearing, the record reveals that the district court carefully

evaluated the credibility of the police witnesses. Crediting their

account, the court found both the stop and the frisk lawful, and

also found that Brake had opted to cooperate with the police and

had consented to reveal the bag and its contents. After his effort

to suppress the inculpatory evidence failed, Brake pleaded guilty

but appealed as to the preserved suppression issues. 

II. Governing Law and Analysis

Brake reprises his claims made in the district court that

the police lacked reasonable suspicion justifying either the Terry

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stop or the pat-down frisk, and that his consent to remove the bag

from his pocket and open it was not voluntary. 

In reviewing a district court's denial of a motion to

suppress, we review the facts "in the light most favorable to the

district court's ruling on the motion, and we review the district

court's findings of fact and credibility determinations for clear

error." United States v. Camacho, 661 F.3d 718, 723 (1st Cir.

2011) (citation, internal quotation marks and brackets omitted). 

"A clear error exists only if, after considering all the evidence,

we are left with a definite and firm conviction that a mistake has

been made." Camacho, 661 F.3d at 723 (internal quotation marks

omitted); see also United States v. Jones, 523 F.3d 31, 36 (1st

Cir. 2008). Under the clear error standard for factual findings,

"we will uphold the denial of a motion to suppress as long as any

reasonable view of the evidence supports it." Id. (internal

quotation marks and citations omitted). 

The district court's determination of "whether consent is

free and voluntary is a question of fact" which involves "an

examination of the totality of the circumstances surrounding the

relevant transaction between law-enforcement authorities and the

consenting party." Jones, 523 F.3d at 37. Its factual findings

relating to the validity of the consent are thus reviewed for clear

error. Id. We review de novo, however, "the district court's

conclusions of law, including its application of the law to the

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facts, its . . . reasonable suspicion determinations, and [its]

ultimate legal decision to grant or deny the motion to suppress." 

See Camacho, 661 F.3d at 724.

A. The Stop and Frisk

Limited investigatory seizures known as Terry stops and

oft-accompanying pat-down frisks are included within the ambit of

Fourth Amendment protections against unreasonable searches and

seizures. Terry v. Ohio, 392 U.S. 1(1968); see Camacho, 661 F.3d

at 724-25. In essence, a Terry stop is a brief detention of an

individual for questioning based on a police officer's reasonable

suspicion that the person is or has been engaged in criminal

activity. See United States v. Pontoo, No. 10-2455, 2011 WL

6016141, at *3 (1st Cir. Dec. 5, 2011); Camacho, 661 F.3d at 726. 

Reasonable suspicion must be more than a hunch but need not amount

to probable cause. See Terry, 392 U.S. at 22; Camacho, 661 F.3d

at 726. More definitively, the officer must have a particularized

and objective basis for suspecting the person stopped of criminal

activity, rooted firmly "in specific and articulable facts." 

Pontoo, 2011 WL 6016141, at *5 (internal quotation marks omitted);

see also United States v. Romain, 393 F.3d 63, 71 (1st Cir. 2004)

(noting that court also considers a police officer's rational

inferences drawn from the specific facts); United States v. Chhien,

266 F.3d 1, 6 (1st Cir. 2001) (emphasizing that "reasonable

suspicion" must be determined "case by case" with "broad-based

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consideration of all the attendant circumstances"). Similarly, a

pat-down frisk also must be grounded on specific articulable facts

giving rise to a suspicion that the individual seized may be armed

and dangerous to the officer or to others. See Terry, 392 U.S. at

24; Camacho, 661 F.3d at 728; Dancy, 640 F.3d at 461. 

Here, the facts display reasonable suspicion with respect

to both the stop and the pat-down. With respect to the stop, the

911 caller had reported the presence of a man with a handgun at the

residence making threats and that a fight seemed imminent. See

Romain, 393 F.3d at 73-74 (contrasting reliability of information

provided by a 911 caller who is at the site of the reported

criminal activity with the holding in Florida v. J.L., 529 U.S. 266

(2000), in which uncorroborated information from an anonymous tip

emanating from an "unknown caller" phoning from an "unknown

location" was deemed insufficient to warrant a Terry stop). A

potentially fatal situation may have been rapidly cresting; indeed,

five police officers responded, arriving without delay. The police

immediately noticed two men who, given their temporal and spatial

connection to the scene, may very well have just left the

residence. Cf. United States v. Golab, 325 F.3d 63, 66-67 (1st

Cir. 2003) (holding that Terry stop was improperly based only on an

"impermissible hunch" in part because the seized car was located in

a remote parking lot and thus lacked a geographical connection to

the site of the suspected criminal activity). The baggy clothing

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that the men wore easily could have concealed a handgun. Finally,

the cohorts' conduct at the parked van gave rise to a fair

suspicion that they may have either deposited a gun or retrieved

additional weaponry. Although their actions could have been

entirely innocent, the circumstances reasonably supported a more

sinister explanation. See United States v. Stanley, 915 F.2d 54,

57 (1st Cir. 1990) (noting that "[u]nder Terry, the test is whether

the circumstances give rise to a reasonable suspicion of criminal

activity, not whether the defendant's actions are subject to no

reasonable innocent explanation.").

These circumstances called for quick decision-making by

the police. See generally United States v. Sharpe, 470 U.S. 675,

686 (1985). Viewing the whole fabric through the lens of a

reasonable and cautious police officer, we conclude that specific

and articulable facts justified the Terry stop to investigate

Brake's possible involvement in the reported disturbance. 

Turning to consider the frisk, we need not tarry long.

Brake argues that the frisk was unlawful because his cooperative

demeanor and lack of any furtive or threatening gestures

ameliorated any legitimate concern that he may have posed a risk to

the officers. We disagree. 

The purpose of the initial stop was for the police to

determine whether one of the men was the armed menacing threat that

had prompted the 911 call. Again, the pair's baggy garb provided

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ample stow-away opportunity for a firearm, and their conduct at the

van legitimately heightened police concern that the men had 

procured additional weaponry. Their failure immediately to heed

police attempts to stop them -- even if an innocent explanation

existed -- further supported the officers' reasonable safety

concerns under the circumstances. See United States v. Wright, 582

F.3d 199, 212 (1st Cir. 2009) (holding that the defendant's failure

to heed police command to stop supported reasonable suspicion and

that seemingly innocuous acts can in combination culminate in a

reasonable suspicion). The officers reasonably could have believed

that the men were deliberately ignoring them as they attempted to

remove themselves from the scene without showing concern for police

presence. 

Brake's subsequent compliance during his interaction with

the police in no way vitiated an otherwise justified perception

that he posed an immediate danger to them by his possible

possession of a handgun under these circumstances. See Schubert v.

City of Springfield, 589 F.3d 496, 502 (1st Cir. 2009) (concluding

that defendant's innocuous appearance did not undercut the

reasonableness of the police officer's concern about potential

criminal activity based on his "on-the-spot" observations of

specific, articulable facts). We emphasize once again the

importance of police officer safety during a Terry stop: "In a

world fraught with peril, officer safety must have a place at the

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forefront of police work. It follows logically that a pat-frisk

may accompany an investigatory stop whenever an officer 'has reason

to believe that the suspect is armed and dangerous.'" Pontoo, 2011

WL 6016141, at *8 (quoting Adams v. Williams, 407 U.S. 143, 146

(1972)). Stopping an individual thought to be recently involved in

an armed conflict unquestionably warrants precautionary measures

for the protection of the investigating officers. See id. (holding

that pat-frisk was justified where "the individual stopped is

suspected of having just committed a murder"). 

Without hesitation, we conclude that frisking Brake for

weapons under these circumstances was within the bounds of

constitutional police conduct. See Terry, 392 U.S. at 27

(remarking that “[t]he officer need not be absolutely certain that

the individual is armed; the issue is whether a reasonably prudent

man in the circumstances would be warranted in the belief that his

safety or the safety of others was in danger.”).

B. The Squishy Bag

What is left then, is to review the post-frisk events

concerning the bag in Brake's pocket. Without challenging whether

or how long the Terry stop could extend beyond the pat-down, Brake

contends that, in all events, his conduct in retrieving the bag

from his pocket was not based on his voluntary consent to search. 

Accordingly, he urges us to hold that the police seizure of the bag

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violated his Fourth Amendment right to be free from an unreasonable

search.

A warrantless search does not offend the Fourth Amendment

when it is properly circumscribed and stands on a voluntary consent

given by a person so authorized. United States v. Chaney, 647 F.3d

401, 405-06 (1st Cir. 2011). "Consent is voluntary if it is 'the

product of an essentially free and unconstrained choice.'" Chhien,

266 F.3d at 7 (quoting Schneckloth v. Bustamonte, 412 U.S. 218, 225

(1973)). In determining voluntariness, the focus is often on

whether the individual's will has been overborne and his capacity

for self-determination critically impaired. See Schneckloth, 412

U.S. at 225; United States v. Calderon, 77 F.3d 6, 9 (1st Cir.

1996). 

Determining whether an individual's consent was indeed

voluntary or instead the product of coercion requires a highly

fact-specific inquiry dependent upon a careful scrutiny of the

totality of the circumstances, rather than on a mechanical

application of legal factors to a factual scenario. See United

States v. Vanvliet, 542 F.3d 259, 264 (1st Cir. 2008); United

States v. Marshall, 348 F.3d 281, 286 (1st Cir. 2003). The common

list of relevant fact drivers for assessing whether consent was

voluntary includes the person's "age, education, experience,

knowledge of the right to withhold consent, and evidence of

coercive tactics." Chaney, 647 F.3d at 407 (internal quotation

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marks omitted); see Vanvliet, 542 F.3d at 264 n.2 (listing range of

pertinent factors). While "there is no requirement that the person

who gave consent must have been explicitly advised of the right to

withhold it," valid consent requires "more than mere acquiescence

in the face of an unfounded claim of present lawful authority." 

United States v. Perez-Montañez, 202 F.3d 434, 438 (1st Cir. 2000)

(citing Schneckloth, 412 U.S. at 234 and Bumper v. North Carolina,

391 U.S. 543, 548 (1968)); see also Ohio v. Robinette, 51 U.S. 33,

40 (1996); Chaney, 647 F.3d at 407-08; Vanvliet, 542 F.3d at 264. 

Brake argues that he did not voluntarily consent to

removing the bag from his pocket, but was "acced[ing] to directives

from a police officer whom he understood was continuing to detain

him." According to Brake, because Mondene did not inform him that

he was free to leave after the pat-down search, a reasonable person

would have understood that he remained detained, and thus a proper

reading of the evidence establishes that "[b]efore the frisk he was

submitting to the show of lawful authority by Mondene [and] after

the frisk he simply continued to do so." This compliance and

submission, he says, cannot amount to voluntary consent. 

The district court found that Brake chose to cooperate

with the police of his own free will throughout the encounter,

having decided to pursue a "strategy of cooperation and ignorance"

about the origin and contents of the bag. The record supports this

finding. In particular, the testimony shows that Brake was

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cooperative with Mondene from the beginning of their interaction,

and indeed he displayed no nervousness or anxiousness of any kind

during the entire encounter -- even when Mondene discovered the

bag. Mondene testified that when asking about the bag he

intentionally shifted to an inquiry mode rather than a more

commanding one because in his mind the purpose of the Terry stop

had concluded once he conducted the pat-down frisk and found no

weapons. Brake provided an immediate account of the bag's origin,

and without hesitation complied with Mondene's request: proceeding

to display the bag, reveal its contents, and then throw it on the

ground while disclaiming any ownership. Although the defendant did

not testify, the district court was careful to consider whether the

police testimony standing alone was a credible account of the

entire interaction and found that it was. Brake does not challenge

this credibility finding, and on this record, we see no clear

2

error in the district court's determination that Brake voluntarily

chose to take a nothing-to-hide stance with the police and to

consent to retrieve the bag from his pocket and show its contents.

We disagree with the appellant that the factual account

leads to the singular conclusion that he was merely submitting to

Brake's decision not to challenge the district court's 2

judgment on witness credibility is understandable. Appellate

review is especially deferential to such judgments, and we overturn

them "only if, after reviewing all of the evidence, we have a

definite and firm conviction that a mistake has been committed." 

United States v. Jones, 187 F.3d 210, 214 (1st Cir. 1999) (internal

quotation marks omitted). The record displays no such mistake.

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a claim of lawful authority, rather than voluntarily consenting to

a search. The legal authority Brake relies on in support of his

position does not help him, because Mondene did not represent,

either expressly or impliedly, that Brake was required to pull the

bag out of his pocket or to reveal its contents. Cf. Bumper v.

North Carolina, 391 U.S. 543, 546-50 (1968) (holding that the

government cannot satisfy its burden of proving that consent was

freely and voluntarily given when homeowner simply stated "go

ahead" in response to police declaration of a warrant to search the

residence; "[t]he situation is instinct with coercion -- albeit

colorably lawful coercion"); United States v. Barnes, 506 F.3d 58,

63 n.6 (1st Cir. 2007) (noting that the defendant produced a drug

cache from his person after the police ordered him to submit to a

visual body cavity search pursuant to police department policy

"only because he recognized that otherwise, the search would be

performed"); United States v. Escobar, 389 F.3d 781, 786 (8th Cir.

2004) (holding that police officer's representation that drugsniffing dog had "alerted on" the defendants' travel bag

communicated the message that probable cause to search existed and

they had no choice but to permit it; thus the defendants acquiesced

to display of authority rather than voluntarily consenting to the

search).

That Mondene inquired about the bag in the context of

what a reasonable person may have seen as a continuing Terry stop

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does not, by itself, convert Brake's volitional decisions into

coerced compliance. See United States v. Jones, 523 F.3d 31, 38

(1st Cir. 2008) (noting that while the possibility of coercion may

be heightened if the person is in custody at the time consent is

obtained, "custody alone has never been enough in itself to

demonstrate coerced consent to search" (internal quotation marks

and ellipsis omitted)); see also Florida v. Bostick, 501 U.S. 429,

435-36 (1991) (explaining that consent can be voluntary even though

detainee does not feel free to leave). Although the lack of any

instruction that Brake was free to leave or free to refuse to

cooperate may be relevant to a voluntariness inquiry, such

circumstances do not automatically render consent invalid. See 

Robinette, 519 U.S. at 40 (concluding that an officer conducting a

highway stop need not inform driver he is free to go before

requesting permission to conduct a search); Chaney, 647 F.3d at

407-08 (noting that police failure to advise a defendant of his

right to refuse to consent does not automatically vitiate voluntary

consent). Simply put, there is no indication that Brake was

coerced in any fashion to pull the bag out of his pocket and open

it for the police officer to see its contents. Accordingly, the

appellant has not demonstrated clear error. 

III. Conclusion

The judgment is affirmed.

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