# United States Court of Appeals

For the First Circuit

No. 15

- 1841

UNITED STATES OF AMERICA

,

Appellee

,

v.

GYADEEN P. RAMDIHALL

,

Defendant, Appellant

.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. D. Brock Hornby, U.S. District Judge ]

Before

Lynch, Thompson, and Barron,

Circuit Judges

.

Angela G. Lehman for appellant.

Renée M. Bunker

, Assistant United States Attorney, with whom

Thomas E. Delahanty II

, United States Attorney, was on brief, for

appellee.

May 18, 2017- 2

- BARRON

, Circuit Judge

. Gyadeen P. Ramdihall appeals his

conviction for conspiracy to commit access

- device fr aud in

violation of 18 U.S.C. § 1029(a)(1), (a)(3), and (b)(2), and 18

U.S.C. § 371. On appeal, Ramdihall challenges the Dis trict Court's

denial of his pre trial motion to suppress evidence. We affirm.

I.

Ramdihall, along with his co

- defendant, Jervis A.

Hillaire, was indicted in fed eral court in the District of Maine

on February 25, 2014, for conspiracy to possess and use counterfeit

access devices with intent to defraud, as wel l as for five related

counts. See 18 U.S.C. § 1029(a)(1), (a)(3), and (b)(2) ; id. § 371.

Before their tri al on those counts in federal court, Hillaire and

Ramdihall submitted motions to the District Court to suppress

evidence and statements that had been obtained in the previous

months in connection with three traffic stops: a September 6, 2013

stop in Kitter y, Maine; an October 10, 2013 stop in Ohio; and a

January 24, 2014 stop in Biddeford, Maine.

After a two

- day suppression hearing, the District Court

issued an oral order denying the motions to suppress. Ra mdihall

then conditionally pled guilty to conspiracy to possess and use

counterfeit access devices in violation of 18 U.S.C. § 1029(a)(1)

and (a)(3), preserving his right to challenge the District Court’s- 3

-

ruling on his motion to suppress. 1 He was sentenced to 10 months'

imprisonment and three years' supervised release. He was also

ordered to pay $17,987.56 in restitution.

On appeal, Ramdihall challenges the District Court's

denial of his motion to suppress in connection with any evidenc e

and statements obtained from only two of the stops: the September

6, 2013 stop in Kittery, Maine, and the October 10, 2013 stop in

Ohio. We address his challenges concerning each stop in turn.

II.

We begin with Ramdihall's challenge to the denial of his

motion to suppress concerning the Sept ember 6, 2013 stop in

Kittery, Maine. Ramdihall contends that the police, in the course

of this encounter, effected a seizure within the meaning of the

Fourth Amendment, even though the police lacked the

constitu tionally required basis for doing so. Accordingly, he

contends that the fruits of that unlawful seizure, including

evidence obtained from the search of the trunk of the vehicle he

was driving

, must be suppressed.

There is no dispute that a seizure did oc cur at some

point. Nor is there any dispute that, in light of the

investigative nature of that seizure, the government could effect

1 Hillaire also conditionally pled guilty to conspiracy to

possess and use counterfeit devi ces in violation of 18 U.S.C.

§ 1029(a)(1) and (a)(3).- 4

-

it so long as the government had reasonable suspicion that criminal

activity was afoot. See Terry v. Ohio

, 392 U.S. 1, 21

- 22 (1968)

(holding warrantless investigative stops constitutionally

permissible where law enforcement officer can "point to specific

and articulable facts which, taken together with rational

inferences from those facts, reasonably warrant that intrusion");

United States v. Brignoni

- Ponce

, 422 U.S. 873, 880

- 81 (1975)

(extending Terry to vehicle searches). So, the key questions are

whether the police had such suspicion at the time of the initial

seizure and whether the police continued to have a lawful basis

for effecting the seizure as it persisted. For, if the police

did, then the seizure was lawful and there would be no illegal

fruits to suppress.

We start by describing the facts relevant to the

suppression ruling at some length, taking them from the District

Court's uncontested findings and the officers' testimony from the

suppr ession hearing. See United States v. Campa

, 234 F.3d 733,

737 (1st Cir. 2000) (explaining that we " uphold a district court's

decision to deny a suppression motion if the decision is supported

by any reasonable view of the evidence " ). We then consider the

basis for the initial seizure, before turning to consider the basis

for it as it continued. Finally, we address Ramdihall's additional

contention that, even if the seizure was lawful, the District Court

erred in refusing to suppress the evidence obtained from the search- 5

-

of the car's trunk, as Ramdihall contends that the District Court

erred in concluding that Ramdihall voluntarily consented to that

search.

A.

The facts concerning the Kittery traffic stop are as

follows. At approximately 1:30 a.m. on September 6, 2013, John

Brosnihan, a patrol officer for the Kittery Police Department, was

sitting in a parked, marked police car near a 7

- Eleven in Kittery,

when a 7

- Eleven employee approached. The employee told Brosnihan

that he was concerned about people in the 7

- Eleven who were buying

thousands of dollars' worth of gift cards with other gift cards.

The employee identified the car in the parking lot that belonged

to the people buying the gift cards.

In response, Brosnihan contacted police dispatch and

requested that dispatch run the plate number of that car. He then

approached the passenger's side of the car, using his flashlight

to look inside. Inside the car were Ramdihall, in the driver's

seat, and Hillaire, in the passenger's seat. A second officer

arrived on the scene shortly thereafter.

Brosnihan asked Hillaire if a woman whom Brosnihan could

see inside the 7

- Eleven and whom he pointed out to Hillaire was

with Hillaire. Hillaire s aid that the woman was with him.

Brosnihan then asked if Hi llaire knew what the woman was doing

inside the 7

- Eleven, and Hillaire said he did not know. Brosnihan- 6

-

then asked, more specifically, if Hillaire "knew anything about

gift cards, buying gift cards with gift cards," and Hillaire denied

that he knew anything about using gift cards to buy gift cards.

Brosnihan saw some electronic devices in boxes in the car located

at Hillaire's feet. Brosnihan then went around the car and

approached Ramdihall, who was in the driver's seat, and asked what

he was doin g at the 7

- Eleven.

Ramdihall said that he had stopped to get gas

. He could

not explain, however, why he had not yet gotten gas and why the

car was not stopped at a gas pump. Ramdihall, too, denied knowing

anything about the gift cards when Brosnihan as ked him about them

.

Brosnihan then asked for identification from both

Ramdihall and Hillaire

. Ramdihall produced a New York driver's

license. Hillaire produced a " California ID

. "

Brosnihan asked to whom the car

-- which had Tennessee

plates

-- belon ged. Hillaire stated that the car was a rental

that he had received as a birthday gift from his cousin

. Hillaire

also stated that he was a "co

- renter." 2 At some point, Brosnihan

saw the rental agreement and learned that neither Hillaire's name

2 At the suppression hearing

, Ramdihall submitted an affidavit

s tating that the individual whose name actually was on the rental

agreement

-- Nadege Butler

-- had given her brother permission to

use the car, and that with permission from both Butler and her

brother, Ramdihall drove it to Maine. The District Court gave

"very little credence" to this explanation, in light of what the

District Court found was the inconsistent story Hill aire provided

during the stop.- 7

-

nor Ramdihall's name was on the rental agreement. The record is

not clear, however, as to precisely when Br osnihan saw the rental

agreement

.

When the woman inside the 7

- Eleven

-- later identified

as Vegilia O'Connor

-- exited to return to the car , Brosnihan

stopped her to ask about the gift card purchases. O'Connor

explained to Brosnihan that she had received the gift cards that

she was using to purchase gift cards from a friend so that she

could go school shopping for her k ids, and that she was using the

gi ft cards to buy new gift cards because the ones that she had

sometimes did not work. She also stated that she had left New

York around 4:00 p

. m

. that same day to travel to Maine to shop.

However, she could not explain why she had left so late that she

wo uld arrive in Maine at a time when stores were closed. She said

they had been shopping at "some outlets" that she could not name,

and she said that those outle ts were about 30 minutes away.

Brosnihan then questioned Hillaire and Ramdihall

separately

, outside of the car. Both said they were in Maine to

shop, but neither could name the stores at which they had been

shopping. Hillaire said they had shopped for an Apple laptop in

Brunswick, Maine, which he said was a 40

- minute drive from Kittery.

Ramd ihall could not say where they had shopped, but he said the

place they had shopped was about 15 minutes away from Kittery.- 8

- Then, at 1:45 a

. m

. , Brosnihan's supervisor, Sergeant

Gary Eaton, arrived on the scene. About ten minutes later, a t

1:55 a

. m

. , a de tective was called to the scene, due to the

officers' unfamiliarity with how to handle an investigation into

possible fraud

, which Brosnihan had begun to suspect might be afoot

in consequence of the evidence concerning gift card purchases

. At

that point, Eaton made the internal decision that the three

individuals would not be allowed to leave until the detective that

had been called had arrived.

The officers then asked each individual about what, if

anything, was in the trunk of the car. Originally, each said there

was nothing in the trunk. Later, Hillaire and O'Connor each said

there was a laptop computer in the trunk

, but each said that it

belonged to the other. O'Connor overheard Hillaire tell Brosnihan

that the laptop computer belo nged to her, and interjected to deny

that it belonged to her.

Brosnihan then asked Ramdihall again what was in the

trunk. Ramdihall said he did not know. According to Brosnihan's

testimony at the suppression hearing

, Brosnihan asked, "[D]o you

mind if I take a look?," and Ramdihall responded, "[B]e my guest."

Brosnihan then said, "[A]re you sure?," to which Ramdihall aga in

responded, "[B]e my guest."

Inside the trunk was, among other things, "a lot of

computer equipment," including MacBooks, MacBook Pro s, iPads, and- 9

-

iPad Minis. Hillaire said that one of the MacBook computers

belonged to him. When Brosnihan asked to see a receipt for the

computer, Hillaire initially said he had an e

- mail receipt on his

cell phone but did not want to show it to Brosnihan

. Later,

Hillaire claimed to have thrown away the receipt. Brosnihan asked

the three individuals multiple times to whom the other equipment

belonged. No one claimed ownership of any of the other items. At

that point, Brosnihan seized the items and then let the three

individuals go.

Throughout the encounter, other law enforcement officers

came and went as well. The District Court found, and the parties

do not contest, that there were three police officers on the scene

as of 1:45 a.m. , two more by 2:32 a

. m

. , and six in total by 2:42

a.m. The District Court also found that, throughout the encounter,

"[t]here were never any handcuffs, no drawn weapons, no aggressive

questi oning, no physical restraint."

B.

With respect to when the seizure occurred and wh at the

basis for it was at the time that it occurred

, t he District Court

found as follows. It determined that, "giv[ing] the defendants

the benefit of the doubt," the encounter

-- which had begun at

approximately 1:30 a.m. and last ed nearly until 3 a.m.

-- became- 10

-

a seizure at approximately 1:55 a.m

. 3 T he District Court also

found that, by 1:55 a.m

. , the police had reasonable suspicion to

belie ve that criminal activity was a foot and thus to effect the

seizure in accord with the Constitution

. The District Court based

this conclusion on the following facts :

 "the store clerk had told Brosnihan about his and the other

clerk's concern about a group of people from a car with

Tennessee plates using gift cards to purchase other gift cards

involving thousands of dollars at the 7

- Eleven in the wee

hours of the mornin g " ;

 the car occupants were unable to "give plausible or consistent

explanations during the initial encounter" ;

 "Ramdihall said they were there to buy gas, but he had no

explanation [ as ] to why he parked in front of the store rather

than at the gas pumps";

 "Hillaire said he was a co

- renter of the car, but his name

was not on the rental agreement, nor was Ramdihall's";

3 By that time, there were three officers at the scene. That

was also the time when Eaton called a detective and made the

internal decision not to let the defendants le ave until the

detective arrived, though, as the District Court correctly noted

,

Eaton's subjective, internal decision not to let the defendants

leave until the detective arrived is not determinative, a s the

critical question is whether the individual being questioned would

reasonably feel free to end the encounter. Florida v. Bostick

, 501 U.S. 429, 434 (1991)

.- 11

-

 "[s]ome of them couldn't name the stores in which they shopped

or wher e they were located";

 "they gave different accounts of the distance"; and

 their explanation "of coming to Maine to shop at that time of

night" was dubious

.

We review the District Court's findings of fact and

credibility determinations for clear error. Un ited States v. Tiru

Plaza

, 766 F.3d 111, 114 (1st Cir. 2014). "Under this clear

- error

review, we grant significant deference to the district court,

overturning its findings only if, after a full review of the

record, we possess a definite and firm convict ion that a mistake

was made." Id. at 115 (citation omitted). We review de novo the

District Court's legal conclusions, including its determinations

as to whether there was reasonable suspicion and its ultimate

decision to grant or deny the motion to supp ress. Id.

Ramdihall argues that the District Court erred in

finding that the seizure did not occur until 1 : 55 a.m

. He contends

that the record shows that the seizure actually occurred at the

time of Bro s nihan's initial encounter with Ramdihall and Hil laire

at approximately 1:30 a.m. and that the seizure then persisted up

to and past 1:55 a.m

. , because

, upon initially encountering the

two men while they were seated in the parked car, "Brosnihan took

Ramdihall's driver's license and the reasonable infere nce is that- 12

-

it was in police custody at least until [the detective], who was

the last to arrive at 2:30, took pictures of the license. " 4

Ramdihall does not challenge the District Court's

finding that it was "unremarkable" that Brosnihan inspected

Ramdihall's driver's license during the initial encounter and that

such inspection did not itself transform the encounter into a

seizure. See United State s v. Himes

, 25 F. App'x 727, 730 (10th

Cir. 2001) (finding no seizure where police officer "got the

license, ran a check on the license, asked [the defendant] to get

out of the Jeep, and then returned the license" because the

officer's possession of the li cense was "sufficiently brief").

Rather, he appears to contend only that the initial, unremarkable,

inspection of the license was transformed into a seizure at some

point prior to 1:55 a.m. but after the initial inspection because

,

after Brosnihan review ed the license, he then retained it and did

not return it until sometime after 2:30 a.m. And Ramdihall argue s

4 Ramdihall also argues that the officers did not have

reasonable and articulable suspicion at 1:55 a.m.

-- the time that

the District Court found the seizure occurred

-- because Brosnihan

and the other officers had not actually observed Ramdihall or his

associates do anyt hing unlawful. But, our case law does not

require that an officer observe actual unlawful activity in order

to effect a seizure. He need only have reasonable suspicion that

criminal activity may be afoot. Thus, "we have upheld Terry stops

where the comb ination of 'innocuous' facts culminates in

reasonable suspicion." United States v. Wright

, 582 F.3d 199, 212

(1st Cir. 2009). Indeed, in Terry itself, the detention was

occasioned by an officer's observation of "unusual," not unlawful,

conduct. 392 U.S. at 30. Thus, insofar as the seizure did occur

at 1:55 a.m., Ramdihall's challenge fails.- 13

-

that we may reasonably infer that the license was not returned

until 2:30 a.m

. because it was at that time that

, the record shows,

police made a copy of the license.

But Ramdihall never argued below that the license was

retained at all, let alone until 2:30 a.m. Assuming his argument

about the seizure of his license has not been waived

-- and the

government makes no argument that it has been

-- there must still

exist a basis in the record for concluding that the license was

retained. But, t here is no finding to that effect by the District

Court

, as Ramdihall never raised the issue he now presents to us

.

Nor is there any finding about when the l icense was returned or

the circumstances regarding its possible retention. And, in the

absence of express findings by the District Court

, we must view

the record evidence in the light most favorable to the District

Court's ruling

. Tiru

- Plaza

, 766 F.3d at 117 n.10. W e therefore

see no basis on this record for concluding that the license was

retained by police from the time of the initial encounter until

past 1:55 a.m

. Thus

, even if we were to conclude that the extended

retention of a license may suffice to effect a seizure, 5

Ramdihall's contention would fail to persuade

.

5 See United States v. Miller

, 589 F.2d 1117, 1127 (1st Cir.

1978) ("Appellant could not lawfully operate his vehicle without

[his license and registration]. He was not free to go.") ; s ee also

United States v. Weaver

, 282 F.3d 302, 311 (4th Cir. 2002)

(retention of a driver's license during a traffic stop may create- 14

- Ramdihall does attempt to counter th e District Court's

finding about when the seizure began by arguing that "Brosnihan

testified that early in the encounter he would not have allowed

the men to leave." But while Brosnihan did testify that he had

decided, by the end of the encounter, that Ramdihall was not free

to leave without permission

, Brosnihan said nothing about making

that decision "early in the enco unter," as Ramdihall contends.

R amdihall also attempts to support his argument that the

seizure occurred prior to 1:55 a.m. by noting, "Eaton testified

that he decided the men would not be allowed to leave until the

detective arrived." But, the fact that the record shows that Eaton

had made that decision at 1:55 a.m

. obviously does not help

Ramdihall show that a seizure had taken place before that time.

Finally, Ramdihall appears to contend that the District

Court erred in finding that the seizure did not occur until 1:55

a.m

. because the number of police officers present over the course

of the encounter converted it into a seizure by creating "a

coercive and intimidating situation" prior to that time. Ramdihall

notes in this regard that over the course of the entire encounter

,

six officers were present, and that " [t] he number and position of

officers ha ve been recognized as important considerations for

a seizure); United States v. Chan

- Jimenez

, 125 F.3d 1324, 1326

(9th Cir. 1997) (same); United States v. Elliott

, 107 F.3d 810,

814 (10th Cir. 1997) (same); United States v. Thompson

, 712 F.2d

1356, 1359 (11th Cir. 1983) (same).- 15

-

determining whether an atmosphere of restraint can be said to have

existed." United States v. Berryman

, 717 F.2d 651, 655 (1s t Cir.

1983), rev'd en banc

, 717 F.2d 650 (1st Cir. 1983). But, the fact

that

, over the course of the entire encounter ( which lasted until

well after 3 a.m.), six officers were present provides no basis

for finding that the District Court erred in finding that the

seizure did not occur until 1:55 a.m. See United States v.

Mendenhall

, 446 U.S. 544, 554 (1980) (recognizing that "the

threatening presence of several officers" "might indicate a

seizure" but finding no seizure where two federal law enforcement

agents approached and questioned the defendant). 6

C.

Ramdihall next turns to his f allback argument that

, even

if the police had reasonable suspicion sufficient to justify the

investigative stop as of 1:55 a.m. , the Kittery stop was

unreasonably long and thus became an unconstitutional seizure as

it progressed

. The District Court found that, "although the stop

here was lengthy,

. . . it was not too long under all the

circumstances." The District Court reached this conclusion based

on its finding tha t the length of the stop was proportional to the

law enforcement purposes of the stop and the time reasonably needed

6 Ramdihall seems to make the additional argument that he and

Hillaire were targeted because they were black men. But, Ramdihall

m akes this argument for the first time on appeal, and so must show

plain error. And he makes no developed argument in this regard.- 16

-

to effectuate those purposes

. We review the District Court's

conclusion de novo , and its factual findings for clear error

.

Tiru

- Plaza

, 76 6 F.3d at 11 4

- 1 5.

As the Supreme Court has explained, "obviously, if an

investigative stop continues indefinitely, at some point it can no

longer be justified as an investigative stop. " United States v.

Sharpe

, 470 U.S. 675, 685 (1985)

. And, at that poi nt, the

government can no longer justify the seizure merely with reasonable

suspicion that criminal activity is afoot. Nevertheless, "our

cases impose no rigid time limitation on Terry stops." Id. ; see

also United States v. Quinn

, 815 F.2d 153, 157 (1st Cir. 1987)

("[T]here is no talismanic time beyond which any stop initially

justified on the basis of Terry becomes an unreasonable seizure

under the [F]ourth [A]mendment." ( first alteration in original)

(citation omitted)). Rather, we must "consider the law enforcement

purposes to be served by the stop as well as the time reasonably

needed to effectuate those purposes." Sharpe

, 470 U.S. at 685.

The seizure here lasted for 82 minutes, from 1:55 a.m

.

until Ramdihall and his associates were released at 3:17 a.m

. That

amount of time is lengthy. But, Ramdihall must show that the 82

-

minute seizure was longer than reasonably needed to investigate

the possible illegal activity

, as the purpose of the stop was to

permit such an investigation

. Ramdihall fail s to do so. In fact,

he does not contest the District Court's findings that- 17

-

"circumstances remained murky; there were no obvious or

alternative ways to investigate; [and] the suspects were from away

[New York] and were leaving the state with possibly frau dulently

obtained merchandise and gift cards." Thus, the argument that the

seizure was unreasonably long fails. S ee United States v.

McCarthy

, 77 F.3d 522, 531 (1st Cir. 1996) (finding 75

- minute Terry

stop was not "particularly unreasonable" because "[t] here is no

evidence or even an allegation of less than diligent behavior on

the part of the police," and "[t]he officers on location used a

number of different investigative techniques in their efforts to

pursue quickly any information that might have disp elled the

reasonable suspicion that initially triggered the stop").

D.

Ramdihall 's final argument for suppressing the evidence

obtained from the traffic stop in Kittery is that, even if the

seizure was lawful, the District Court erred in denying the aspect

of the suppression motion that contended that Ramdihall had not

voluntarily given his consent to the search of the trunk

. We

review the District Court's volunt ariness finding for clear error,

United States v. Kimball

, 741 F.2d 471, 474 (1st Cir

. 1984)

, and

we find none.

Before turning to the merits of the matter, the District

Court first found that Ramdihall had no standing to challenge the

search of the car because he was not an authorized driver on the- 18

-

rental car. But we need not decide that question, because, even

if we assume that Ramdihall did have standing to challenge the

search of the car, his arguments on the merits are unavailing.

A person who is lawfully detained may still voluntarily

give consent to a search. See United States v. Forbes

, 181 F.3d

1

, 6 (1st Cir. 1999) (noting that "the fact of custody alone is

never enough to demonstrate coerced consent")

. In determining

whether consent was voluntarily given, we look to the totality of

circumstance s, including the person's " age, ed ucation, experience,

intelligence, and knowledge of the right to withhold consent. "

Id. (citation omitted). We also consider " whether the consenting

party was advised of his or her constitutional rights and whether

permission to search was obtained by co ercive means or under

inherently coercive circumstances." Id. (citation omitted).

Here, the District Court found that the search was

consensual, and noted that "there was never any physical

constraint, no handcuffing, no display of drawn weapons; the

ch aracter of the interrogation was mild." Ramdihall now asserts

that

, in fact, "the detention was coercive and intimidating." But

,

in s upport of that assertion, he points only to the fact that an

officer's "flashlight was directed into the car" and that, a fter

Brosnihan first approached the vehicle to question him

, five other

officers eventually arrived as backup.- 19

- T he voluntariness issue turn s , however, not on whether

Ramdhiall was detained

, but on whether he was detained i n a manner

that precluded him from freely consenting to the search

. And

Ramdihall makes no argument as to how the facts he highlights

, in

light of our precedent, see, e.g. , Kimball

, 741 F.2d at 474

, could

,

in and of themselves, support such a conclusion

. Thus, Ramdihall's

fallba ck argument fails.

III.

We turn now to Ramdihall's challenge to the denial of

his suppression motion concerning the traffic stop in Ohio

. Here,

too, we find no merit to the challenge.

A.

Again, we must begin by recounting the relevant facts,

which we tak e from the District Court's uncontested findings

. See

Campa

, 234 F.3d at 737. On October 10, 2013, Ramdihall was driving

in a rental car on Interstate 70 in Ohio. Hillaire was a passenger

in the vehicle. An Ohio State Highway Patrol trooper, John Martin,

pulled the car over for driving 90 miles per hour in a 70 mile s

per

- hour zone. When Martin asked to see Ramdihall's license and

registration, Ramdihall opened the center console and then shut it

"very quickly," during which time Martin saw "a plastic baggie"

inside. Ramdihall told him t hat the bag contained tobacco.

Martin learned that the car was a rental that had been

leased by an absent third party. Ramdihall was l isted on the- 20

-

rental agreement as an alternate driver. Martin also learned t hat

Ramdihall and Hillaire were driving to Columbus from New York.

Martin observed that there was no visible luggage and that the car

had "a very clean compartment for people on t he road for an

extensive period of time."

Martin then went back to his police cruiser to write a

speeding ticket. He also called a K

- 9 unit to come to the scene

.

Martin then returned to Ramdihall's car to ask for Ramdihall's and

Hillaire's social securit y numbers

. He also asked Ramdihall to

accompany him back to the cruiser

, which Ramdihall did

.

In the cruiser, Ramdihall told Martin that Hillaire was

unemployed. Ramdihall also told Martin that Ramdihall planned to

move to Columbus

, was visiting to check out the area, and would be

returning to New York on Saturday or Sunday. Martin pointed out

that the car rental would expire on Friday, and Ramdihall seemed

surprised. Ramdihall also stated that he had "three clothes" with

him on the trip, and that Hillaire had no clothes with him but

would buy clothes as necessary in Columbus.

Martin ran Ramdihall's and Hillaire's social security

numbers. He discovered that neither Ramdihall nor Hillaire had

any drug convictions, though Hillaire d id have a criminal history.

Martin finished writing the traffic ticket at 10:40 a.m

.

The K

- 9 officer, Ohio State Highway Patrol Trooper Shawn Milburn,

arrived six minutes later, at 10:46 a.m

. The dog alerted to the- 21

-

presence of narcotics at 10:49 a.m

. Between 10:46 a.m. and 10:49

a.m., both officers had smelled marijuana. Milburn then read

Ramdihall and Hillaire their rights, as required under Miranda v.

Arizona

, 384 U.S. 436 (1966).

After reading the men their rights, t he officers

searched the passe nger compartment of the car, but did not find

any marijuana. The officers then searched the trunk, where they

found, under the spare tire cover, a bundle of seventeen credit

cards in Hillaire's name, held together by rubber bands. Martin

swiped the credi t cards' magnetic strips through a card reader

.

By doing so, he discovered that the information recorded in some

of the cards' strips did not match the numbers and expiration dates

on the front of those cards, indicating that those cars were

counterfeit. The officers later found tobacco in the baggie in

the center console, and a small amount of marijuana in the

passenger's side of the car, along with rolling papers.

B.

Ramdihall does not dispute that

, during th is traffic

stop in Ohio, he was lawfully s topped for speeding and properly

issued a ticket

. He contends instead that Martin lacked reasonable

suspicion to detain him beyond the time necessary to issue him

that ticket

. He thus contends that the seizure was unlawful

because it persisted past the t ime needed to issue the ticket- 22

-

solely in order to permit the K

- 9 unit to arrive and perform the

dog sniff of the car.

The Supreme Court made clear in Rodriguez v. United

States

, 135 S. Ct. 1609 (2015), that, absent "the reasonable

suspicion ordinarily demanded to justify detaining an individual,"

a police officer may not prolong a traffic stop to conduct a K

- 9

sniff beyond the time necessary to handle the traffic violation

that justified the stop. Id. at 1615. R easonable suspicion may

nonetheless develop during the course of an ordinary traffic stop

so as to justify extending the seizure beyond the time needed to

accomplish its original purpose

. Id. at 1616

- 17. The question i n

this ca s e, therefore, is whether such reasonable suspicion

developed.

"[T]he level of suspicion the [reasonable suspicion]

standard requires is considerably less than proof of wrongdoing by

a preponderance of the evidence, and obviously less than is

nec essary for probable cause." Navarette v. California

, 134 S.

Ct. 1683, 1687 (2014) (citations omitted). Reasonable suspicion

requires more , however, than an "inchoate and unparticularized

suspicion or 'hunch.'" Terry

, 392 U.S. at 27. It requires that

th e officer be able to articulate "the specific reasonable

inferences which he is entitled to draw from the facts in light of

his experience." Id.- 23

- Although the concept of reasonable suspicion "defies

precise definition," United States v. Espinoza

, 490 F.3 d 41, 46

(1st Cir. 2007) (quoting United States v. Chhien

, 266 F.3d 1, 6

(1st Cir. 2001)), "some general guideposts" exist, United States

v. Pontoo

, 666 F.3d 20, 27 (1st Cir. 2011). "Prominent among these

is the tenet that a finding of reasonable suspicio n must be

premised upon 'a particularized and objective basis for suspecting

the particular person stopped of criminal activity." Id. at 27

-

28 (quoting United States v. Cortez

, 449 U.S. 411, 417

- 18 (1981)).

The particularity requirement ensures that the s uspicion is

"grounded in specific and articulable facts," id. at 28 (quoting

Espinoza

, 490 F.3d at 47), while "[t]he objectivity requirement

dictates a focus on what a reasonable law enforcement officer in

the same or similar circumstances would have thoug ht," id.

Here, the District Court found

-- and Ramdihall does not

contest

-- that the dog sniff occurred six minutes after Martin

completed the traffic ticket. And, the District Court found that

Martin had a reasonable and articulable basis for suspicion

justifying that additional six

- minute delay based on th e following

combination of facts : (1) Martin's observation of the plastic

baggie in the center console; (2) the manner in which Ramdihall

"surreptitiously" opened, and then quickly closed, that center

console; (3) the fact that the vehicle was a rental and the renter

was not with the vehicle

, which Martin testified was an indication- 24

-

of drug trafficking ; (4) the fact that Ramdihall was from New York,

Hillaire was from California, and they offered a dubious

explanation for why they were en route to Columbus; (5) the

inconsistency between Ramdihall's assertion that he and Hillaire

would be in Columbus for several days and the fact that the rental

was due to expire the following day; and (6) the absence of visible

luggage in the vehicle, despite Ramdihall's asse rtion that he and

Hillaire had driven to Ohio from New York for a multi

- day trip.

In arguing that t his combinati o n of facts does not

suffice to support a finding of rea son able suspicion, Ramdihall

challeng es , for one reason or another, the probative valu e of a

number of the findings set forth above. But, as we will explain,

those challenges fail because they either depend on unwarranted

challenges to the credib il i ty findings made below or on cont e ntions

about the lack of probative v alue of a pa r ti cular f inding when

considered only i n isolation, with out regard to the significance

that fact may have when considered as part of the other findings

made by the District Court. Ramdihall also challenges a number of

facts that the District Court did not rely on i n concluding that

there was reasonable suspicion, and which thus have no bearing on

whether the District Court's reasonable suspicion determination

was made in error. His challenge as a whole therefore fails.

In reaching this conclusion, we note that we review the

District Court's factual conclusions and credibility- 25

-

determinations only for clear error. Tiru

- Plaza

, 766 F.3d at 114.

Under this standard, we must "grant significant deference to the

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

re view of the record, we possess a definite and firm conviction

that a mistake was made. " Id. at 115 (citation omitted). We note

as well that we review the District Court's legal conclusions

--

including the District Court's determination that the o fficer did

have reasonable suspicion to justify the detention

-- de novo,

while still "giv[ing] appropriate weight to the inferences drawn

by the district court and the on

- scene officers, " id.

, and while

being su re to consider the totality of the circumsta nces , i d. at

116

- 17

. 7

We begin with Ramdihall's conten t i on that

, because there

are "thousands of uses for a plastic baggie" that do not "involve

criminal activity

, " the evidence that a plastic baggie was present

is of no con sequ e n ce. But the District Court did not find that

the presence of a plastic baggie in and of itself supports a

finding of reasonable suspicion

. The District Court instead

7 In presenting his challenge to the District C ourt's ruling,

Ramdihall makes much of the fact that Martin testified at the

suppression hearing that he prolonged the stop to call for the K

- 9

unit based on a "hunch," given that a hunch alone does not create

reasonable suspicion. See Navarette

, 134 S. Ct. at 1687. But the

Dis trict Court did not rely on Martin's testimony characterizing

his suspicion as a "hunch" in finding that reasonable suspicion

did exist. Rather, as we have explained, the District Court found

that there was an objective basis to form reasonable suspicion

based on the enumerated circumstances described above.- 26

-

credited Martin's testimony that

, based on Martin's experience,

the manner in which Ramdihall appeared to surreptitiously conceal

the plastic baggie indicated that "there was probably some kind of

illegal narcotics in there

. " Thus, the District Court found that

the presence of the plastic baggie, combined with the surreptitious

manner in which Ra mdihall shielded it from view, gave rise to

reasonable suspicion w hen considered in light of the other evidence

that raised doubts about Ramdihall's story concerning his travel

plans

. And though the question may be close, Ramdihall does not

offer a persua sive account of why, in combination, the facts

available in the record render such a conclusion mistaken.

After all, neither Ramdihall nor Hillaire were from

Ohio

, and their explanation of why they were in Columbus

-- on a

multi

- day trip to consider whethe r Ramdihall might move there

--

was not corroborated by th e other circumstances that Martin

observed. I t is also odd that Hillaire

-- who Martin learned was

unemployed and living in California

-- would fly to New York for

the purpose of visiting Ohio with Ramdihall, and would bring no

clothes with him for the trip but plan, instead, to buy clothes in

Ohio. Odd, too, is the fact that t he rental was going to expire

the following day, even though the trip, by Ramdihall's account

,

would not yet be over.

Moreover, Martin testified that when individuals in a

rental vehicle are transporting drugs, "most of the time, the- 27

-

renter of the vehi cle is never with the vehicle." Instead, Martin

testified, "[s]omeone rents [the vehicle] and then others

transport the drugs. " And, here, although Ramdihall was listed as

an authorized alternate driver of the vehicle on the rental

agreement, neither he nor Hillaire was the person who rented the

vehicle. Thus, Martin concluded, the fact that the renter was not

with Ramdihall and Hillaire was "another red flag."

In addition to these circumstances

, Martin obse rved

Ramdihall surreptitiously closing the console to conceal a plastic

baggie

. G iven Martin's testimony that his experience with such

matters suggested that this action by Ramdihall indicated that the

baggie contained illegal narcotics, the record, taken as a whole,

e stablished a basis for supportably concluding that criminal

activity was afoot.

R amdihall appears to c ontend that his behavior in

closing the console

-- and thus obscuring the plastic baggie

--

was not, in fact, surreptitious

, as he was simply checking t he

center console for his license, registration, and insurance

documents. And, Ramdihall also appears to suggest that the

District Court erred in crediting Martin's contrary testimony on

that point because Martin could not remember from where Ramdihall

produced his license and rental agreement. However, our review of

the District Court 's decision to credit the testimony concerning

the nature of Ramdihall's action in closing the console is for- 28

-

clear error. See id. at 114

. And none of the points that R amdihall

now raises gives rise to "a definite and firm conviction that a

mistake was made " in that regard

. See id. at 115.

In a separate vein, Ramdihall takes note of the District

Court 's factual findings that the vehicle was unusually clean and

that it c ontained no visible luggage, and he c hallenges the

reasonableness of an inference that these facts give rise to

suspicion of criminal activity. But, although the District Court

found that the vehicle was clean

, it did not identify the

cleanliness of the vehicle as a ground for reasonable suspicion.

Nor did it even find that the fact that there was no visible

luggage in the car constituted such a ground. The District Court

merely listed that fact as one of several in the course of

explaining why it found that Ramdihall's professed account of his

travels was " thin or dubious." As we see no basis for dist urbing

that characterization of Ramdihall's account on this record even

apart from the absence of visible luggage

, Ramdihall's focus on

that discrete aspect of the District Court's finding is misplaced

.

For when th e problematic nature of Ramdihall's travel story is

considered in combination with the supportable finding that

Ramdihall surreptitiously concealed the plastic baggie

, and

Martin's testimony regarding the "red flag" posed by a rental

vehicle with an absent renter, there is no basis for us to

conclude, on this record, t hat the District Court erred in finding- 29

-

that the totality of the circumstances gave rise to a reasonabl e

sus pi cion of c rim inal activity.

Ramdihall next objects to attributing signif ic ance to

Martin's testimony that New York, California, and Columbus, Ohio,

are each sites of drug activity and that Interstate 70 is a main

route of travel. But, the District Court did not rely on this

part of Martin's testimony in finding reasonable suspicion. And

R amdihall fails to explain how the findings that the District Court

did rely upon, in combination

, are insufficient to justify the

seizure's duration.

Ramdihall's next ground for challenging the denial of

the motion to suppress with respect to this stop also fails. He

argues that the circumstances of the car rental do not constitute

grounds for suspicion

. Specifically, Ramdihall contends that

because he was liste d as an alternate driver on the rental

agreement, he was lawfully permitted to be driving the rental car

even without the renter

. He further emphasizes that his

explanation that he was not the primary renter because he did not

have a credit card was plausible. And, he contends it was not

suspicious that the rental was set to expire the next day, because

he reacted with "honest surprise" to learning that the rental was

set to expire and because he could have easily extended the rental

period

. But, th e circumstances of the car 's rental must be

considered as a part of the findings as a wh o le

, including the- 30

-

credited testimony regarding the surreptitious closing of the

console to obscure the plastic baggie

. When so considered, the

circumstances of the ca r 's rental do support the District Court's

finding of reasonable suspicion.

Ramdihall does also contend that the real reason Martin

prolonged the traffic stop for a K

- 9 sniff was because of racial

bias. Ramdihall points to no evidence in the record to support

this claim

, however

. And, in any case, while "the Constitution

prohibits selective enforcement of the law based on considerations

such as race[,]

. . . the constitutional basis for objecting to

intentionally discriminatory application of laws is the Equal

Protection Clause, not the Fourth Amendment." Whren v. United

States

, 517 U.S. 806, 813 (1996)

. Thus, this argument, too, must

fail.

Similarly unavailing is Ramdihall's apparent argument

that the circumsta nces should have indicated to Martin and to the

District Court that criminal activity was not afoot. Ramdihall

emphasizes in this regard that neither he nor Hillaire acted in a

nervous manner , that neither had any prior drug history

, and that

they were ab le to produce valid identification and a valid rental

agreement. Ramdihall also contends that he proffered a plausible

explanation of what he was doing in Ohio with Hillaire, arguing

that it is "perfectly normal" for someone of Ramdihall's age to

seek to move away from his family, that the assertion that- 31

-

Ramdihall drove commercial trucks was plausible because no

commercial license is needed for 26

- foot truck s , and that he was

able to answer Martin's questions about Hillaire

, proving that

th ey were in fact friends. But, in light of the totality of other

circumstances, and especially the finding regarding the

surreptitious closing of the center console to conceal the plastic

baggie in combination with the inconsistencies in the explanations

r egarding Ramdihall's travel plans, the fact that the District

Court could have concluded that no criminal activity was afoot

does not render the District Court's inference to the contrary

clear error. See United States v. Arthur

, 764 F.3d 92, 96 (1st

Cir. 2014) ("[A]bsent an error of law, we will uphold a refusal to

suppress evidence as long as the refusal is supported by some

reasonable view of the record." (citation omitted)).

Finally

, Ramdihall emphasiz es that Milburn's testimony

that the officers fou nd marijuana hidden over the car's visor on

the passenger side conflicted with Martin's testimony that the

officers found the marijuana over t he visor on the driver's side.

In addition

, Ramdihall contends that, prior to the search, Milburn

stated that he smelled "raw marijuana," but that the search

unearthed only "processed, not raw, marijuana."

But the District Court did not rely on testimony about

where the marijuana was found or what Milburn smelled in concluding

that there was reasonable suspicion sufficient to justify Martin- 32

-

calling the K

- 9 unit in the first place. And so this conflict in

the testimony does not itself undermine the District Court 's

ruling

. Moreover, insofar as Ramdihall means to cast doubt on

Martin's credibility, and thus perhaps to call in to question the

District Court's crediting of Martin's testimony regarding the

manner in which Ramdihall closed the console, we defer to the

District Court's credibility determination in the absence of any

"definite and firm con viction that a mistake was made

. " 8 See Tiru

Plaza

, 766 F.3d at 114.

C

.

Ramdihall brings one final Fourth Amendment challenge

regarding this stop

. This challenge relates to the seventeen

credit cards that the officers found under the spare tire cover in

8 Ramdihall appears to challenge Martin's credibility in one

further respect. He points to Martin's testimony that, prior to

the dog sniff, Martin told Milburn where in the car Mar tin had

seen the pla stic baggie, and suggests that this aspect of Martin's

testimony contradicts Milburn's testimony that Milburn tried "not

to pay attention" to what Martin told him prior to the dog sniff

so that it would not "look like I'm trying to make my dog alert to

any thing that's not there." But

, the record shows that Milburn

neither solicited the information about the plastic baggie from

Martin, nor asked any follow

- up questions. Thus, we see no

inconsistency with Milburn's testimony that he tries "not to pay

attent ion" to such information arising from the fact that Martin,

unprompted, told Milburn where Martin had seen the baggie. T o the

extent that Ramdihall means to contest the reliability of the dog

sniff, moreover, Ramdihall's counsel waived this argument below by

specifically telling the District Court that he was not contesting

the reliability of the dog sniff. See United States v. Sánchez

Berríos

, 424 F.3d 65, 74 (1st Cir. 2005) (noting that "[a] party

waives a right when he intentionally relinquishes or aba ndons it").- 33

-

the trunk of the vehicle. Ramdihall contends that the District

Court erred in concluding that it was permissible under the Fourth

Amendment for the officers to swipe those credit cards through a

card reader because a person " might " have a reasonable expectation

of privacy in the information stored on a credit card's magnetic

strip.

But Ramdihall does not assert that a person does

, in

fact, have such an expectation of privacy. He asserts only that

a person might. And he acknowled ges that there is no evidence in

the record that would support this conclusion. Thus, even if we

were to assume that such an argument could be developed, in light

of the "perfunctory manner" in which Ramdihall raises this

argument, "unaccompanied by some effort at developed

argumentation," we deem the matter waived. United States v.

Zannino

, 895 F.2d 1, 17 (1st Cir. 1990).

I V.

For the foregoing reasons, we affirm

.