Not for Publication in West's Federal Reporter

United States Court of Appeals

For the First Circuit

No. 11-1147

CHRISTOPHER G. MACHADO,

Plaintiff, Appellant,

v.

WEARE POLICE DEPARTMENT, ET AL.,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Steven J. McAuliffe, U.S. District Judge]

Before

Boudin, Howard and Thompson,

Circuit Judges.

Christopher G. Machado on brief pro se.

Charles P. Bauer, Erik G. Moskowitz and Gallagher, Callahan &

Gartrell on brief for appellee.

October 2, 2012
Per Curiam. Christopher Machado brought a section 1983

action against several officers of the Weare, New Hampshire Police

Department. 42 U.S.C. § 1983 (2006). Because Machado is currently

incarcerated, his complaint was subject to screening under 28

U.S.C. § 1915A (2006); a magistrate judge recommended dismissal and

the district court agreed. Machado now appeals. Because this is

effectively a motion to dismiss, we briefly describe the events

based on the allegations of the complaint as well as the exhibits

incorporated within it. See Cruz v. Melecio, 204 F.3d 14, 21 (1st

Cir. 2000).1

According to Machado's complaint, on April 29, 2009, at

approximately 1:00 am, he and his fiancée, Ashley Fermanis, were

traveling north on South Stark Highway in New Hampshire. Fermanis

drove and Machado sat in the front passenger seat. Their vehicle

caught the attention of Lieutenant James Carney of the Weare Police

Department, who was driving behind them, when Fermanis activated

her left turn signal for ten seconds and then made an abrupt left

turn across two lanes of traffic into the parking lot of the Cold

Springs RV Center, which contained recently purchased RV's and

trailers.

Machado challenges the accuracy of some of the statements of 1

fact in the magistrate judge's report. We rely on the original

record contained in Machado's complaint and not the magistrate

judge's report, so the disagreements are irrelevant.

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The Cold Springs RV Center was closed at the time--it

was, as noted, around 1 am--and the location had been the subject

of investigations for burglary and vandalism once or twice during

the year prior. Fermanis steered her car next to some new

trailers. Carney followed Fermanis into the lot, turned on his blue

lights, and halted near Fermanis' car. As Carney walked toward the

car, he saw Machado toss an object into the back seat area. 

With Machado and Fermanis seated in the car, Carney asked

Machado what he had thrown into the back seat. Machado, appearing

nervous, reached into the back of the car and produced a curling

iron. Carney repeatedly asked Machado to keep his hands where he

could see them and then asked him for identification. Machado said

that he had none. Carney requested Machado's name, date of birth,

and social security number. Machado stated that his name was

"Chris," but declined to answer further.

Machado appeared increasingly uncomfortable and began

moving about the vehicle; Carney then noticed a bulge near his

waistband. He instructed Machado to exit the vehicle, frisked him

and discovered that the source of the bulge was a cell phone in a

canvas case. He detained Machado for further identification and a

background check by handcuffing him and placing him in the back of

his police cruiser. Carney then radioed for assistance. At some

point, Fermanis indicated to Carney that Machado was wanted by the

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Londonderry, New Hampshire police regarding a traffic accident,

although when this occurred is unclear.

After placing Machado in the cruiser, Carney returned to

the vehicle to speak to Fermanis. She identified Machado by his

full name and date of birth. Fermanis also told Carney that he

could search her car. When Officer Daniel Aiken and Sargent Robert

Peterson arrived on the scene, Carney reconfirmed with Fermanis

that he had permission to search her vehicle; and again she

assented. 

Carney's search turned up a package of cigarettes that

contained a plastic bag of what looked to be heroin. Fermanis

denied any knowledge that the drugs had been in her car, but

indicated that Machado had habitually used heroin as recently as

the previous year. Peterson then read Machado his Miranda rights

and Machado waived his rights and confessed to possessing the

heroin, even volunteering that he had some more hidden in his sock.

In the meantime, Carney's background check confirmed that Machado

had several active warrants issued in Londonderry, New Hampshire. 

Fermanis was allowed to leave and Machado was arrested.2

Machado was charged in New Hampshire state court with one

count of possession of a controlled drug with intent to sell. He

It appears from the record that the warrants, relating to a

2

traffic incident involving Machado, were for charges for "conduct

after an[] accident, habitual offender, and false report to law

enforcement"; Machado's present incarceration seemingly grows out

of proceedings relating to one or more of those charges.

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moved to suppress the evidence derived from the search of his

vehicle as obtained in violation of the New Hampshire and United

States Constitutions. The New Hampshire Superior Court granted his

motion, finding that the initial stop of his vehicle had violated

the New Hampshire Constitution; the charges against Machado were

subsequently dropped and his current incarceration is related

instead to the subject matter of the warrants revealed after the

stop. See note 2, above.

Machado's section 1983 claim targets Carney, Aiken, and

Peterson for their conduct during his arrest, as well as Sergeant

Louis Chatel, Jr., a supervisor in the Weare Police Department who

filed a supporting affidavit explaining the circumstances of

Machado's warrantless arrest, and Chief Gregory Begin of the Weare

Police Department. Machado alleges that the stop, search, and

arrest violated his rights under the Fourth Amendment and the New

Hampshire Constitution. He seeks a declaratory judgment as well as

compensatory and punitive damages for the emotional distress and

collateral legal difficulties he suffered as a result of the

arrest.

Civil complaints filed by prisoners against governmental

entities, officers, or employees are subject to preliminary review,

and dismissed if inter alia they are "frivolous, malicious, or

fail[] to state a claim upon which relief may be granted." 28

U.S.C. § 1915A(b)(1) & (2). To determine if the complaint should

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be dismissed for failing to state a claim, the screener must

determine whether the allegations, construed liberally, "contain

sufficient factual matter, accepted as true, to 'state a claim to

relief that is plausible on its face.'" Ashcroft v. Iqbal, 556

U.S. 662, 678 (2009)(quoting Bell Atl. Corp. v. Twombly, 550 U.S.

544, 570 (2007)). 

Machado's complaint can be read to assert that (treating

Carney's activation of his blue lights as arguendo a de facto stop)

Carney unlawfully detained Machado at the outset, that Carney

unlawfully frisked Machado and thereafter detained Machado in his

police cruiser, and that Carney unlawfully arrested Machado after

discovering the heroin. We consider each of these potential claims

in order, noting that a damage claim against the officers requires

not only that a constitutional violation be established on the

alleged facts but also that qualified immunity be overcome.

To stop the car in the first instance, Carney had to

possess a "reasonable suspicion to believe that criminal activity

may be afoot," United States v. Arvizu, 534 U.S. 266, 273 (2002);

see also Terry v. Ohio, 392 U.S. 1, 30 (1968), reasonable suspicion

standing somewhere above "a mere hunch" and below "probable cause." 

United States v. Ruidíaz, 529 F.3d 25, 29 (1st Cir. 2008). The

suspicion required "specific and articulable facts," United States

v. Hensley, 469 U.S. 221, 229 (1985), but is judged on an objective

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basis. Ornelas v. United States, 517 U.S. 690, 696 (1996) (quoting

United States v. Cortez, 449 U.S. 411, 417-18 (1981)).

In this case, Carney's suspicion was based on the fact

that Fermanis abruptly turned into the parking lot of a closed

business, late at night, stopping alongside some new trailers. The

location had recently been investigated for incidents of burglary

and vandalism. It is arguable that reasonable suspicion was thus

established; but even if Carney judged wrong--he is the only 3

defendant implicated in the initial stop--it was a close call and

he is plainly protected by qualified immunity. Anderson v.

Creighton, 483 U.S. 635, 638 (1987).

The next question is whether Carney's "subsequent actions

were fairly responsive to the emerging tableau--the circumstances

originally warranting the stop, informed by what occurred, and what

the officer learned, as the stop progressed." United States v.

Chhien, 266 F.3d 1, 6 (1st Cir. 2001). As Carney approached the

vehicle, Carney saw Machado toss something into the back of the

car--a common pattern when weapons and contraband are involved. 

New Hampshire law authorized Carney to demand Machado's full name

pursuant to a lawful stop, see N.H. Rev. Stat. Ann. § 594:2 (2012);

and Machado enhanced suspicion when he refused to give it.

See United States v. Salazar, 609 F.3d 1059, 1069 (10th Cir. 3

2010); Foley v. Kiely, 602 F.3d 28, 32 (1st Cir. 2010); United

States v. Summers, 268 F.3d 683, 687 (9th Cir. 2001); United States

v. Walker, 924 F.2d 1, 4 (1st Cir. 1991); United States v. Landry,

903 F.2d 334, 337 (5th Cir. 1990).

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Thus Carney was justified in making further inquiries

and, in addition, he spotted a bulge near Machado's waistband,

entitling him in asking Machado to step out of the car so that

Carney could pat him down. United States v. Aitoro, 446 F.3d 246,

253 (1st Cir. 2006). In light of the factors that inspired the

initial stop and Machado's subsequent evasive and uncooperative

conduct, we cannot say that Carney was unreasonable in suspecting

that the bulge was a weapon and that a frisk was necessary to

ensure his own safety.

The closest call is Carney's decision to handcuff Machado

in the police cruiser. The use of handcuffs "'substantially

aggravates the intrusiveness' of a putative Terry stop," United

States v. Acosta-Colon, 157 F.3d 9, 18 (1st Cir. 1998)(quoting

United States v. Glenna, 878 F.2d 967, 972 (7th Cir. 1989)), and so

the officer "must be able to point to some specific fact or

circumstance that could have supported a reasonable belief that the

use of such restraints was necessary to carry out the stop without

exposing law enforcement officers, the public, or the suspect

himself to an undue risk of harm." Id. at 19.4

Examples of such circumstances include when the suspect is 4

uncooperative or raises a reasonable possibility of danger or

flight, when the police have information that the suspect is armed,

when the stop closely follows a violent crime, or when the police

have information that a violent crime is about to occur. See

Washington v. Lambert, 98 F.3d 1181, 1189 (9th Cir. 1996).

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Placing a suspect into a cruiser does not necessarily

transcend the limits of a valid Terry stop. See United States v.

Dunbar, 553 F.3d 48, 56 (1st Cir. 2009); Flowers v. Fiore, 359 F.3d

24, 30 (1st Cir. 2004). By the time this occurred in the present

case, a basis for continuing the Terry stop had plainly been

established: the initial unexplained late night turn into a closed

business; the tossing of an object into the back seat; furtive and

uncooperative behavior by Machado; and his hampering of a quick

resolution by refusing to give his full name which would allow a

radio check to see whether he was wanted.

Since Machado would not cooperate, any further useful

steps required Carney to question Fermanis, who was unlikely to

speak freely while Machado was present; and, given the obvious

flight risk, Carney could hardly have allowed Machado to stand

alone at any distance from the car or sit in Carney's cruiser

unrestrained. Carney could have delayed further questioning until

other officers had appeared, but the trade-off between further

delay and briefly incapacitating Machado was the kind of judgment

officers have to make on the spot.

But even if we assume arguendo that the handcuffs and the

detention in the cruiser exceeded the limits of a permissible Terry

stop, compare Acosta-Colon, 157 F.3d at 15, with Flowers, 359 F.3d

at 30, this is a sufficiently debatable case that an objectively

reasonable officer could have believed that his conduct was not

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violating Machado's constitutional rights, Anderson, 483 U.S. at

640, which is enough to create qualified immunity. See Malley v.

Briggs, 475 U.S. 335, 341 (1986).

By the time Machado was formally arrested, Carney and the

other officers had learned that there was a warrant outstanding

against him and had also found heroin in his possession. In the

present civil proceedings, this evidence is not subject to the

exclusionary rule, United States v. Calandra, 414 U.S. 338, 348

(1974); Townes v. City of N.Y., 176 F.3d 138, 145 (2d Cir. 1999),

and amply provides probable cause to justify his arrest. United

States v. Watson, 423 U.S. 411, 423-24 (1976). Accordingly, all of

Carney's actions either did not violate the Fourth Amendment or

were protected by qualified immunity.

This in turn resolves claims against other defendants of

supervisory and municipal liability. See Acosta v. Ames Dep't

Stores, Inc., 386 F.3d 5, 12 (1st Cir. 2004); Evans v. Avery, 100

F.3d 1033, 1040 (1st Cir. 1996). Machado has not argued that New

Hampshire law is more favorable to his claims or that those claims

should have been left undecided and open for him to pursue in state

court so the parallel state claims require no separate discussion.

Affirmed.

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