United States Court of Appeals

For the First Circuit

No. 18-1639

UNITED STATES OF AMERICA,

Appellee,

v.

TEM TOM,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

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

Before

Howard, Chief Judge,

Kayatta and Barron, Circuit Judges.

Chauncey B. Wood and Wood & Nathanson, LLP on brief for 

appellant. 

Benjamin M. Block, Assistant United States Attorney, and

Halsey B. Frank, United States Attorney, on brief for appellee. 

February 17, 2021
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HOWARD, Chief Judge. Tem Tom appeals from his conviction 

for possession of a controlled substance with intent to distribute

in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B). His sole 

claim is that the district court committed reversible error in 

denying Tom's motion to suppress evidence of drugs and cash that 

were recovered from him and the other occupant of the car after an 

investigatory motor vehicle stop. As in the district court, 

whether the evidence should have been suppressed comes down to 

whether reasonable suspicion existed at the time officers 

approached the vehicle in which Tom was a passenger and directed

its occupants to exit. Finding no basis to disturb the district 

court's conclusion that the officers had reasonable suspicion, we 

affirm. 

I. FACTS

When considering the denial of a motion to suppress, 

"[w]e recite the facts as found by the district court, consistent 

with record support[,]" including the testimony from the motion 

hearing. United States v. Soares, 521 F.3d 117, 118 

(1st Cir. 2008). In late 2016, the federal Drug Enforcement Agency 

was investigating suspected drug dealing by Denis Ochan. As part 

of the investigation, a confidential informant conducted 

controlled purchases of crack cocaine from Ochan on three separate 

occasions in late 2016 and early 2017. After that, the Drug 

Enforcement Agency (DEA) coordinated a final "buy/bust operation" 
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against Ochan; as the term suggests, the agents intended to arrest 

Ochan upon making a final purchase from him.

The planned takedown took place on February 2, 2017, at 

a shopping center located across the street from Ochan's residence

in Portland, Maine. The confidential informant waited in a vehicle 

in the shopping center's parking lot, with $500 that agents had 

provided him to purchase approximately five grams of crack cocaine 

from Ochan. Given their positioning within the parking lot and 

the audio equipment that they had positioned on the informant, the 

agents could see and hear all of the informant's interactions. 

Meanwhile, another group of agents maintained 

surveillance on Ochan's residence, part of a three-family 

building. Those agents observed two men in a "green Chevy Cruze 

with a New York license plate" turn into Ochan's driveway and pull 

around to the back of the building, disappearing from view. Less 

than two minutes after the Chevy arrived, an agent observed a "male 

c[ome] around from the back of the apartment building" and enter 

a door at the rear left corner of the building. Approximately ten 

minutes later, that same person and Ochan exited the building 

together through the same door and walked behind the building. 

The back of the building remained out of the agents' view.

Reemerging, Ochan crossed the street towards the 

shopping center. Agents watched as Ochan entered the informant's 

vehicle. After hearing Ochan and the informant's entire 
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conversation, agents moved in and arrested Ochan. A search of 

Ochan turned up approximately four grams of crack cocaine and $530 

in cash. After initially denying having met with anyone, Ochan 

told the agents that he had obtained the crack cocaine from the 

individuals in the green Chevy that had pulled up to his residence.

While these events were taking place at the shopping 

plaza, the agents surveilling Ochan's residence observed the Chevy 

drive away from the building less than ten minutes after Ochan

left. Some of the agents followed the Chevy as it proceeded toward 

downtown Portland. When the Chevy stopped approximately two miles 

later, uniformed Portland Police Department officers were the 

first to approach it. Tom was the passenger in the vehicle. After 

asking Tom and the driver to exit the Chevy, the officers found 

cocaine base on the driver's seat and on both Tom and the driver. 

They were both placed under arrest.

II. PROCEDURAL HISTORY

In March 2017, a federal grand jury indicted Tom for

knowing and intentional possession of 28 grams or more of cocaine 

base with the intent to distribute, in violation of 

21 U.S.C. § 841(a)(1) and (b)(1)(B). Tom filed a motion to 

suppress the evidence of drugs and money found as a result of the 

search, which the district court denied after conducting an 

evidentiary hearing. Tom subsequently entered a conditional 

guilty plea, reserving his right to appeal the denial of his 
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suppression motion. After being sentenced to 84 months of 

incarceration and eight years of supervised release, Tom timely 

appealed.

III. ANALYSIS

A. Standard of Review

When considering a district court's denial of a motion to 

suppress, we review findings of fact for clear error and apply de 

novo review to the application of law to those facts and to 

conclusions of law. United States v. Rheault, 561 F.3d 55, 58 

(1st Cir. 2009); United States v. Jones, 523 F.3d 31, 36 (1st Cir.

2008). We "will uphold a denial of a motion to suppress if any 

reasonable view of the evidence supports it." United States v. 

Holloway, 499 F.3d 114, 117 (1st Cir. 2007) (quoting United States

v. Garner, 338 F.3d 78, 80 (1st Cir. 2003)).

B. The District Court's Reasoning

Tom argued before the district court that the officers 

did not have reasonable suspicion to support the traffic stop. He

leaned heavily on his view that Ochan's statements implicating the 

individuals in the Chevy were unreliable. 

Unpersuaded, the court issued an oral ruling denying the 

motion. In its statements on the record, the district court 

recognized that the stop had to be supported by "a reasonable and 

articulable suspicion of criminal activity." The district court 

noted that reasonable suspicion had to be "more than a naked hunch" 
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yet "does not require either probable cause or evidence of a direct 

connection linking the suspect to the suspected crime." For all 

of this, the district court cited United States v. Chhien, 266 

F.3d 1 (1st Cir. 2001). 

In explaining its reasoning, the district court 

emphasized that the officers had prior knowledge of Ochan's drug 

activity, that the Chevy arrived shortly before the drug sale and 

left only after it, that one of the occupants appeared to have 

interacted with Ochan, and that the officers recovered drugs from

Ochan's person. The district court stressed that "this was not a 

mere hunch" and that there was an objectively reasonable suspicion 

to search the Chevy once the officers arrested Ochan and found the 

drugs on him. Importantly, the district court clarified that 

reasonable suspicion existed independent of Ochan's statements 

that he had obtained drugs from the individuals in the Chevy. 

C. Reasonable Suspicion Existed 

Before us, Tom maintains that reasonable suspicion did 

not exist. According to Tom, Ochan's statements were both

essential to any finding of reasonable suspicion and were not 

sufficiently reliable under United States v. Jones, 700 F.3d 615, 

622 (1st Cir. 2012), and related cases. Tom's argument fails at 

its first step. Reasonable suspicion existed without Ochan's 

statements.
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The moment upon which we focus our attention is when the 

officers approached the stopped Chevy and directed its occupants 

to step out of the car. "Such stops are reasonable, and 

consequently do not offend the Fourth Amendment, only where 

officers have a reasonable suspicion supported by articulable 

facts that criminal activity may be afoot." United States v. TiruPlaza, 766 F.3d 111, 115 (1st Cir. 2014) (internal citations and 

quotations omitted). In determining whether reasonable suspicion 

existed, courts ask whether the totality of the circumstances 

provided the officers with more than an "unparticularized 

suspicion or hunch" that the individual was involved in specific 

criminal activity. Id. at 116 (quoting United States v. Sokolow, 

490 U.S. 1, 7 (1989) (internal quotation marks omitted). 

In conducting our review of the facts, we accept the 

reasonable inferences drawn by the district court and by the law 

enforcement officers on the scene. See Ornelas v. United States, 

517 U.S. 690, 699 (1996). On this record, a reasonable view of 

the evidence supports the district court's conclusion that the 

officers had reasonable suspicion that the car's occupants were 

involved in the drug transaction that law enforcement had arranged 

and agents had just observed.

Based on the previous controlled drug sales in which 

agents had seen Ochan participate -- including the sale that day 

-- agents had specific knowledge that Ochan sold drugs. From 
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there, the sequence of events on the day of Tom's arrest -- and 

the reasonable inferences generated by that sequence of events --

is central in the reasonable suspicion calculation. On that day, 

the Chevy, with its New York license plate, drove to the back of 

Ochan's residence just before the scheduled buy/bust. Shortly 

after, a male appeared from behind the building -- where the Chevy 

had just gone -- and entered the building. The man was then seen 

eight to ten minutes later going behind the building with Ochan. 

Next, Ochan reappeared and went directly across the street to meet 

with the informant and conduct the drug sale. All of these 

observations contributed to the development of a reasonable 

suspicion that there was a meaningful, articulable link between 

the occupants of the Chevy and Ochan's illegal activities. 

When the agents arrested and searched Ochan, the drugs 

and cash recovered on him added to the evidence indicating that he 

was actively engaging in drug sales. That recovery also added to 

the suspicion that the individual from the Chevy with whom Ochan 

had just been seen might be involved in the drug activity. Still 

more, the Chevy did not leave Ochan's building until minutes after 

Ochan's arrest, solidifying the reasonability of the officers'

suspicion that its occupants were implicated in the drug activity. 

Since we agree with the district court that reasonable suspicion 

existed before the officers elicited the incriminating statements 

from Ochan, we do not need to address whether he was reliable.
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See United States v. Mayendía-Blanco, 905 F.3d 26, 37 

(1st Cir. 2018) (recognizing that "[t]he simplest way to decide a 

case is often the best" (alteration in original) (quoting 

Stor/Gard, Inc. v. Strathmore Ins. Co., 717 F.3d 242, 248 

(1st Cir. 2013))).

Tom argues in response that the officers could not have 

been certain that the person who entered Ochan's building was one 

of the individuals from the Chevy or that the person who entered 

the building went to Ochan's apartment. He also points out that 

Ochan and this person were not seen speaking to each other as they 

left the building. But it is well established that reasonable 

suspicion does not preclude the existence of some confounding 

facts. See New Jersey v. T.L.O., 469 U.S. 325, 346 (1985) 

(recognizing that "the requirement of reasonable suspicion is not 

a requirement of absolute certainty: 'sufficient probability, not 

certainty, is the touchstone of reasonableness under the Fourth 

Amendment'" (quoting Hill v. California, 401 U.S. 797,

804 (1971))).

Tom makes one additional argument. In his view, the 

officers who searched him could not have had reasonable suspicion

because they approached him only after Ochan's interrogation. But

law enforcement officers are not required to act as soon as they 

develop reasonable suspicion. A rule to the contrary would 

disincentivize diligence. See United States v. Silva, 742 F.3d 1, 
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8 (1st Cir. 2014). And we do not consider an officer's subjective 

intent when evaluating objective reasonableness. See Whren v. 

United States, 517 U.S. 806, 814 (1996) ("[T]he Fourth Amendment's 

concern with 'reasonableness' allows certain actions to be taken 

in certain circumstances, whatever the subjective intent."). In 

sum, we will not penalize agents for continuing to investigate 

after establishing reasonable suspicion. 

The district court's decision to reject Tom's motion to 

suppress was sound. The officers had reasonable suspicion that 

the occupants of the Chevy were involved in illegal drug activity, 

and the decision to approach the car and search Tom was therefore 

objectively reasonable under the Fourth Amendment.

IV. CONCLUSION

For the foregoing reasons, we affirm the conviction.