United States Court of Appeals

For the First Circuit

No. 01-1969

UNITED STATES OF AMERICA,

Appellee,

v.

MICHAEL HORNBECKER,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. George A. O'Toole, Jr., U.S. District Judge]

Before

 Selya, Circuit Judge,

Coffin, Senior Circuit Judge,

and Howard, Circuit Judge.

Sara Rapport, with whom Perkins, Smith & Cohen was on brief,

for appellant.

Dickens Mathieu, Assistant U.S. Attorney, with whom Michael J.

Sullivan, United States Attorney, was on brief, for appellee.

January 9, 2003
-2-

HOWARD, Circuit Judge. In the course of a lengthy roadside

stop, Illinois state troopers discovered more than 400 pounds of

marijuana in a 1957 Volkswagen pickup truck that defendant Michael

Hornbecker had been towing across the country. Hornbecker subsequently

pleaded guilty to conspiring to distribute marijuana, but reserved his

right to appeal the district court's earlier denial of his suppression

motion. Hornbecker acknowledges that he voluntarily signed a consentto-search form approximately 23 minutes after he was stopped, but argues

that the ensuing search was rendered unlawful by the troopers' prior

Fourth Amendment violations. We disagree and accordingly affirm.

I. Background

We take our factual recitation from the record of the

proceedings below, which included the introduction into evidence of a

videotape of the search made by the Illinois state police. On August

16, 1998, at just prior to 7:58 p.m. (according to the timer on the

police videotape), Illinois State Trooper John Rugen stopped Hornbecker

as he was heading east on Interstate 80 in LaSalle County, Illinois.

Hornbecker was driving a 1987 Chevrolet pickup with California license

plates and towing a flatbed trailer on which sat the Volkswagen. Rugen,

who was then a member of an Illinois state police drug interdiction unit

that used routine traffic stops to further its purposes, told Hornbecker

that he had been stopped for driving seven miles per hour over the

applicable speed limit and for having a cracked windshield. 

As Rugen was asking Hornbecker for his license and

registration, he also inquired about Hornbecker's travel itinerary.

Hornbecker replied that he was driving from southern California to New
-3-

Hampshire to sell the Volkswagen. Rugen found this answer fishy because

the Volkswagen did not appear sufficiently valuable to warrant a crosscountry drive to sell it. He wondered whether Hornbecker might be

transporting drugs in the Volkswagen because southern California is a

drug source region and because the Volkswagen's unusual body style

looked as though it contained a voluminous, difficult-to-access area

behind the cab and between the bed and the undercarriage. Despite (or

perhaps because of) his suspicion, Rugen's affect was friendly, even

gregarious. Rugen informed Hornbecker that he was only going to give

him a warning. While returning to the cruiser to write the warning,

Rugen stepped up on the flatbed trailer so that he could further survey

the Volkswagen's atypical body structure.

Rugen radioed for a check on Hornbecker's license,

registration, and criminal history. Seconds later, Rugen radioed for

a drug-sniffing dog to be brought to the scene. Almost immediately

after requesting the dog, Rugen learned that Hornbecker had a valid

driver's license and registration and no outstanding warrants or

criminal history. Nevertheless, Rugen did not complete Hornbecker's

warning and send him on his way. Instead, at just after 8:02 p.m.,

Rugen returned to Hornbecker's car to ask whether Hornbecker had papers

verifying ownership of the Volkswagen. Hornbecker replied that he did

and, because the papers were in the Volkswagen, exited the Chevrolet to

retrieve them.

As the two stood next to the old pickup, Rugen amiably and

off-handedly questioned Hornbecker about it. Pointing to the enclosed

area behind the cab, Rugen asked, "What is this, storage under here?"
-4-

Hornbecker replied, "That's the way it came, right? . . . The motor and

gas tank is here." Hornbecker then entered the Volkswagen's cab and

began to search for its paperwork. Rugen peered beneath the Volkswagen

and noticed that the engine was not just behind the cab, as Hornbecker

had indicated, but was all the way to the rear. Rugen returned to his

cruiser and took a seat inside, while Hornbecker went back to the

Chevrolet to retrieve his briefcase, where he now said he thought the

paperwork was.

Between 8:06 and 8:07 p.m., Trooper Craig Graham arrived with

a drug-sniffing dog. A few seconds later, Hornbecker walked back to

Rugen's cruiser and told Rugen that he had not yet found the requested

paperwork, but insisted he had it with him. Hornbecker then returned

to his vehicles and resumed his search. Meanwhile, Graham approached

Rugen's cruiser. Rugen told Graham that "this thing looks screwed up,"

explaining that the Volkswagen's engine was not where Hornbecker had

said it was and expressing concern about the large, inaccessible space

behind the truck's cab. Graham began to examine the Volkswagen, peering

into its cab with a flashlight and stepping up on the trailer to look

into its bed. He then returned to the driver's side of Rugen's vehicle,

signaling that he would walk the dog around the tow trailer. Graham

noted that another state trooper had "got one just like that. It was

on the back of a Ryder truck." 

Apparently now having located the Volkswagen's papers, at

shortly after 8:08 p.m. Hornbecker brought them to Rugen, who invited

Hornbecker to sit with him in the cruiser as he completed the warning.

Rugen informed Hornbecker that Graham would be walking the dog around
-5-

Hornbecker's vehicles and asked whether Hornbecker was carrying anything

illegal. Hornbecker replied that he was not. As Graham conducted the

drug sniff, Rugen engaged in friendly banter with Hornbecker, asking him

a number of questions about the Volkswagen and the vintage car trade.

The dog did not alert. Shortly after 8:11 p.m., Rugen handed Hornbecker

a written warning, returned all of his documents, and told him, "You're

all set to go, free to leave." Hornbecker responded by asking Rugen

about the effect of the warning. Rugen explained that it would show up

in the computer if Hornbecker were stopped again in Illinois. Rugen

again told Hornbecker that he was "all set to go," but then immediately

asked whether he might take a look "at that engine compartment there,"

quickly explaining "I have never seen a truck like that before . . . .

'Course I'm only 31 years old." Hornbecker replied "You certainly may."

At just prior to 8:12 p.m., Rugen and Graham went to the rear

of the Volkswagen (where Rugen understood the engine to be despite

Hornbecker's earlier indication that it was behind the cab) and

attempted to pry open the engine compartment's access door. Hornbecker

said something about a screwdriver, to which Rugen responded, "Oh, it

takes a screwdriver? I got a screwdriver." He retrieved one from his

cruiser, opened the compartment door, and (with Graham) peered inside.

After completing their examination of the engine compartment,

the troopers closed its access door and began to examine the remainder

of the Volkswagen's exterior, tapping it, banging on it, and asking

Hornbecker questions about it. At all times, the troopers were

friendly. Rugen conveyed what was almost certainly a contrived

fascination with the "big ole truck," at one point stating he might have
1At the suppression hearing, the following exchange took place

during cross-examination of Trooper Rugen by counsel for the

defendant: 

Q: And now you're asking if you can look in the cab?

A: Yes, after again asking about that area of concern.

Q: And after looking underneath the vehicle?

A: Correct.

Q: Okay. And the reason you asked if you could look in the

 cab is that you didn't have permission by asking him to

 look in the engine compartment to look in the cab?

A: Correct.

Q: And he said, okay, yes, look in the cab?

A: That's right.

Q: So you look in the cab?

A: Yes, ma'am.

The district court found that Hornbecker had consented to Rugen's

request to look in the cab.

-6-

"to buy one of these." At around 8:14 p.m., Rugen asked Hornbecker if

he could look in the Volkswagen's cab. Although Hornbecker's response

is inaudible, the videotape suggests that Hornbecker consented.1 A

couple of minutes later, Rugen asked Hornbecker for the key to the gas

port. Hornbecker replied that, like the engine compartment, the port

could be accessed with a screwdriver. Rugen pried open the gas port,

looked inside, and stated, "[T]his is not right." Rugen explained to

Hornbecker, who himself had voluntarily removed some items from the

truck's bed, that he was concerned about the unaccounted-for space in

the area behind the cab. At just after 8:19 p.m., Rugen returned to his

cruiser and radioed a request that another trooper bring him a device

that measures the density of inaccessible areas. Rugen then returned

to Hornbecker, reiterated his concern about the area behind the cab, and

told Hornbecker that he wanted to bring somebody to the scene with a

device for measuring spaces. Rugen subsequently asked Hornbecker to

sign a form consenting to a search of the Volkswagen. At approximately
-7-

8:20 p.m., nearly 23 minutes after being pulled over, Hornbecker

voluntarily signed the form. About an hour and a quarter later, the

troopers breached the space behind the cab and discovered the marijuana.

Illinois authorities subsequently charged Hornbecker with

cannabis trafficking, but Hornbecker prevailed on a pretrial suppression

motion which argued that the troopers had violated his Fourth Amendment

rights. The state unsuccessfully appealed that ruling and eventually

abandoned the prosecution. Meanwhile, as the state's appeal was

pending, a federal grand jury sitting in Massachusetts indicted

Hornbecker for participating in a multi-participant marijuana

distribution conspiracy. Hornbecker subsequently filed a motion to

suppress in the federal case, contending that his eventual written

consent to the search was vitiated by the fact that Rugen began

violating his Fourth Amendment rights at around 8:02 p.m., when Rugen

continued to detain him despite learning that Hornbecker's license and

registration were valid and that there were no outstanding warrants

against him. 

Hornbecker presented two arguments in support of this

constitutional claim. First, he asserted that his detention from

approximately 8:02 p.m. until approximately 8:11 p.m. (when Rugen gave

him the warning, returned his documents, and told him that he was free

to go) was unreasonable because Rugen lacked justification to continue

the traffic stop after learning that Hornbecker was not wanted, had a

valid license, and was driving a registered vehicle. Second, he

maintained that the troopers' conduct was unreasonable between

approximately 8:11 p.m. and approximately 8:20 p.m. because it involved
-8-

encroachments beyond the engine compartment search to which he

consented. In pressing this point, Hornbecker cited cases in which

warrantless searches justified by consent were held unlawful because the

challenged intrusions exceeded the scope of the consent given, e.g.,

United States v. Infante-Ruiz, 13 F.3d 498, 505 (1st Cir. 1994), but

primarily argued that the written consent he eventually provided was

ineffective because it was immediately preceded by a protracted period

of unlawful detention. The district court rejected Hornbecker's

arguments. The court opined that Hornbecker's detention prior to 8:11

p.m. was reasonable because Illinois law explicitly permits routine

traffic stops to last up to 15 minutes. The court further ruled that

no constitutional problem was presented with respect to the period

between 8:11 p.m. and the time Hornbecker signed the consent-to-search

form because Hornbecker had been told that he was free to leave but

consented to stay, to let the troopers conduct certain limited searches,

and to answer the troopers' questions. Yet in reaching its

determinations, the court, in dicta, sided with Hornbecker and against

the government on whether, prior to obtaining Hornbecker's written

consent to a search, the troopers had a reasonable basis under Terry v.

Ohio, 392 U.S. 1, 18-20 (1968), to detain Hornbecker on grounds other

than speeding and driving with a cracked windshield: "[A]fter the

conclusion of the legitimate traffic stop [which in the court's

estimation occurred at 8:11 p.m.], the police would have violated the

Fourth Amendment [by continuing to detain Hornbecker], and justified the

suppression prayed for, had it not been for the fact that Hornbecker

consented [to remain on the scene]." 
2We train our focus on these three penetrations of interior

vehicular spaces because Hornbecker does not develop an argument that

the troopers' other conduct between approximately 8:11 p.m. and

-9-

II. Discussion

Hornbecker asserts the same arguments on appeal that he

advanced in the district court. He contends that his detention was

unlawful between approximately 8:02 p.m. and approximately 8:11 p.m.

because it was unrelated to the reasons for the traffic stop and

unsupported by a reasonable suspicion that he was engaged in some other

unlawful conduct. With respect to the period between approximately 8:11

p.m. and 8:20 p.m., his position remains a bit unclear, but we shall

assume that he is challenging the troopers' conduct on both search and

seizure grounds. See pages 7-8, above. In any event, Hornbecker's

overall argument is straightforward and very capably presented: the

district court erroneously regarded as effective his written consent to

the search which yielded the marijuana because it failed to appreciate

that the troopers' prior conduct violated the Fourth Amendment. We

disagree. 

We start with the latter of the two temporal periods in

question and with Hornbecker's largely unelaborated suggestion that

suppression remedy is warranted by one or more unlawful searches which

took place in this interim. We reject the suggestion. The district

court made express factual findings that Hornbecker consented to the

troopers' searches of the Volkswagen's engine compartment and cab.

Hornbecker does not challenge these findings, to which we owe deference.

See United States v. Bunnell, 280 F.3d 46, 48-49 (1st Cir. 2002). Nor

does he argue that the opening of the gas port was an unlawful search.2
approximately 8:20 p.m. constituted a search and the law points strongly

in the other direction. See New York v. Class, 475 U.S. 106, 118 (1986)

(areas inside automobile within plain view of persons on outside are not

"subject to a reasonable expectation of privacy"); Texas v. Brown, 460

U.S. 730, 739-40 (1983) ("It is . . . beyond dispute that [the

officer's] action in shining his flashlight to illuminate the interior

of [defendant's] car trenched upon no right secured . . . by the Fourth

Amendment.") (plurality opinion of four Justices; other five Justices

concurring in the judgment and disagreeing on unrelated issues); id. at

740 ("Likewise, the fact that [the officer] changed his position and

bent down at an angle so he could see what was inside [defendant's car]

is irrelevant to Fourth Amendment analysis.") (brackets and internal

quotation marks omitted); United States v. Muniz-Melchor, 894 F.2d 1430,

1433-36 (5th Cir. 1990) (tapping on exterior of large propane tank

mounted in defendant's truck did not constitute a search); see also 1

Wayne R. LaFave, Search and Seizure, § 2.5(c) (1996) (indicating that

examinations by natural senses of vehicular exteriors and vehicular

contents do not constitute searches absent a physical intrusion into the

vehicle). 

-10-

Finally, Hornbecker does not explain why, even if one or more of these

searches was unlawful, we should order the suppression of evidence found

over an hour later in the course of a different search.

We also reject Hornbecker's challenge to the district court's

conclusion that no Fourth Amendment detention occurred between

approximately 8:11 p.m. and approximately 8:20 p.m. To reiterate, the

court found that Hornbecker was not detained (and thus not "seized")

during this period because he was twice told that he was free to go but

consented to stay and to comply with the troopers' various requests.

Hornbecker's brief cites no authority discussing the line between de

facto seizures and non-coercive police questioning. In any event, the

court's ruling, to which we must once again defer, Bunnell, 280 F.3d at

48-49, is sustainable because Hornbecker was twice told that he was free

to leave and twice asked whether he consented to searches that took

place during the period in question. Although few people actually feel
-11-

free to walk away while being questioned by a police officer, the Fourth

Amendment is not implicated unless, viewed objectively, the officer's

conduct communicates an intention to use official authority to restrain

the individual's freedom of movement. See United States v. Cardoza, 129

F.3d 6, 14-16 (1st Cir. 1997) (collecting cases). The court did not err

in declining to find such a message in the troopers' words and conduct.

The success of Hornbecker's appeal thus depends on our

determining that Rugen violated Hornbecker's Fourth Amendment right to

be free from an unreasonable seizure by detaining him until 8:11 p.m.

(approximately thirteen minutes into the stop) instead of turning him

loose at or shortly after 8:02 p.m., when he learned that Hornbecker was

not wanted and that Hornbecker's license and registration were valid.

The district court seems to have upheld the detention during this period

on the ground that, in Illinois, a legal traffic stop is never

unlawfully protracted if it is concluded within 15 minutes. See p. 7,

above. Hornbecker says that this all-or-nothing proposition is at odds

with Florida v. Royer, 460 U.S. 491, 500 (1983) (plurality opinion)

(observing that "an investigative detention must be temporary and last

no longer than is necessary to effectuate the purpose of the stop").

Because the government does not defend this basis for the court's ruling

and because there exist narrower grounds to support the court's

judgment, we do not address matters related to the Illinois 15-minute

rule. See, e.g., United States v. Doe, 61 F.3d 107, 111-12 (1st Cir.

1995) (permitting affirmation of a district court's suppression ruling

on any ground made manifest by the record). 
3Judge Coffin's dissenting opinion can be read to suggest

that, even if Rugen reasonably asked for the Volkswagen's

paperwork, the detention of Hornbecker during the approximately

three-minute period between Rugen's receipt of the paperwork and

his issuance of the written warning was unreasonable because it

was prompted by Rugen's desire that Graham complete the canine

sniff. We respectfully disagree. By the time Hornbecker produced

the Volkswagen's paperwork, Rugen's initial suspicion had been

bolstered by Hornbecker's misleading answer about the space behind

the cab and Graham's indication to Rugen that another trooper had

recently discovered hidden contraband under similar circumstances.

See, p.4, above. We think these additional grounds for suspicion

gave Rugen justification to extend the detention long enough to

permit Graham to complete his walk-around. 

-12-

Hornbecker and the government agree that Rugen detained

Hornbecker between 8:02 p.m. and 8:11 p.m., and that the lawfulness of

the detention is appropriately analyzed under the Terry line of cases.

Hornbecker and the government also concur that, because most of the

period between Rugen's request for the Volkswagen's papers and his

completion of the written warning was attributable to Hornbecker's

initial inability to locate the papers, whether Rugen lawfully detained

Hornbecker during this period essentially depends on whether Rugen's

request to inspect the papers was objectively reasonable under the

circumstances. See, e.g., Ornelas v. United States, 517 U.S. 690, 695-

697 (1996) (recognizing that the lawfulness of a detention, whether a

Terry stop or a full custodial arrest, is determined by a fact-specific

application of a legal standard designed to help courts assess whether

the police action was objectively reasonable).3

Citing interests in regulating motor vehicles that travel the

public highways and in deterring the trafficking of stolen vehicles, the

government argues that, just as law enforcement officers may reasonably

ask for a motorist's license and registration papers during a routine
4In his testimony at the suppression hearing, Rugen indicated that

he was proceeding on the assumption that, during a routine traffic stop,

he always may ask to see the papers of a vehicle being towed. Of

course, whether Rugen's subjective understanding was correct does not

inform the Fourth Amendment inquiry. What matters is whether Rugen's

request was objectively reasonable under the circumstances. See Whren

v. United States, 517 U.S. 806, 809-19 (1996). For this same reason,

it is immaterial whether Rugen subjectively believed that he had grounds

to detain Hornbecker between 8:02 p.m. and 8:11 p.m. for a reason other

than his belief that he always is entitled to ask for the papers of a

vehicle being towed. 

-13-

traffic stop, they may also always reasonably ask for the registration

or ownership papers of a vehicle being towed. Alternatively, the

government contends that Rugen's request to see the Volkswagen's papers

was reasonable under the particular facts of this case. Hornbecker

disagrees that the police may always ask to see papers pertaining to a

towed vehicle, pointing out that a motorist need not even possess the

papers of such a vehicle because it is not being driven. And he resists

the government's case-specific argument by arguing that Rugen lacked a

reasonable suspicion that the Volkswagen was an instrument of illegal

activity. We do not resolve the broader dispute because, in the context

presented, Rugen's request to see the Volkswagen's papers was

reasonable.4

We acknowledge at the outset that, although the district

court did not explicitly consider whether the request to see the

Volkswagen's papers was reasonable in context, our conclusion that it

was may conflict with the court's dicta that Rugen had no basis to

detain Hornbecker for reasons unrelated to the traffic stop. After all,

the request came after Rugen learned that there was no outstanding

warrant for Hornbecker and that Hornbecker's license and registration

were valid; it thus prolonged the detention beyond the point at which
5This is the premise of Hornbecker's argument regarding the 8:02

p.m. to 8:11 p.m. time frame and we assume its validity arguendo for

purposes of our analysis. 

-14-

it might otherwise be expected to have concluded.5 But we are obliged

in these circumstances to reach our own, independent judgment about the

reasonableness of the request. Ornelas, 517 U.S. at 697-98 (holding

that ultimate determinations of reasonable suspicion are subject to

independent appellate review). 

In assessing the reasonableness of Rugen's request, we "must

balance the nature and quality of the intrusion on personal security

against the importance of the governmental interests alleged to justify

the intrusion." United States v. Chhien, 266 F.3d 1, 6 (1st Cir. 2001)

(citations and internal quotation marks omitted), cert. denied, 534 U.S.

1150 (2002); see also United States v. Stanley, 915 F.2d 54, 55 (1st

Cir. 1990) (Terry stops "must be justified by reasonable suspicion

proportional to the degree of intrusion"). Keeping the balance true

requires "a practical, commonsense judgment based on the idiosyncracies

of the case at hand" and an assessment whether the officer's actions

"were fairly responsive to the emerging tableau." Chhien, 266 F.3d at

6 (citations omitted). It also requires "deference . . . to the

experienced perceptions of the officers," United States v. Woodrum, 202

F.3d 1, 7 (1st Cir.), cert. denied, 531 U.S. 1035 (2000), because

factual circumstances that seem innocuous to a layman might well appear

suspicious (and reasonably so) to the seasoned eye of law enforcement

professionals, see Ornelas, 517 U.S. at 700 ("To a layman the sort of

loose panel below the back seat armrest in the automobile involved in

this case may suggest only wear and tear, but to [the officer], who had
-15-

searched roughly 2,000 cars for narcotics, it suggested that drugs may

be secreted inside the panel.").

Guided by these principles, we conclude that Rugen's request

to see the Volkswagen's papers was lawful. In our view, continuing the

detention of an already lawfully seized motorist for the short period

of time that it typically takes to locate and produce vehicle

registration or ownership papers (even if the papers are contained

within a vehicle being towed and thus not within immediate reach) is a

relatively slight intrusion on Fourth Amendment interests.

Consequently, in assessing whether, as of 8:02 p.m., the facts gave

Rugen "a particularized and objective basis for suspecting [Hornbecker]

of criminal activity," Ornelas, 517 U.S. at 696 (describing the

"reasonable suspicion" required to justify a Terry stop) (citation and

internal quotation marks omitted), we are somewhat less demanding than

we would be if we were evaluating the lawfulness of a Terry stop that

resembled a full, custodial arrest, see, e.g., Chhien, 266 F.3d at 6

(recognizing that the inquiry into whether the facts adequately

supported a Terry stop is informed by the nature and quality of the

intrusion); Stanley, 915 F.2d at 55 (similar); cf. United States v.

Finke, 85 F.3d 1275, 1280 (7th Cir. 1996) (concluding, in a case

challenging an officer's continuation of a traffic stop in order to

conduct a criminal history check on the motorist, that less than

overwhelming grounds for suspecting the motorist of drug trafficking

were nonetheless sufficient to warrant the brief period of extra

detention required to conduct the check). 
6There was evidence that Hornbecker had purchased the truck not

long before for $2200.

7Hornbecker argues that the request for paperwork was a pretext

designed to delay the detention until a drug-sniffing dog could be

brought to the scene. Whether or not he is correct, his argument is

beside the point. So long as the request could help confirm or dispel

suspicions reasonably raised by Hornbecker's doubtful explanation for

his trip in the mind of an objectively reasonable law enforcement agent,

Rugen's actual purpose in making the request does not matter. See

Whren, 517 U.S. at 809-19. Here, a reasonable officer might have asked

to see the paperwork because the absence of such paperwork would make

the proffered explanation for the trip even more suspicious. After all,

a private sale of an automobile usually involves a transfer of ownership

documentation. 

-16-

When all is said and done, the facts here were sufficient to

satisfy the demands of Terry. Certainly, Rugen reasonably suspected

that Hornbecker was lying when he stated that he was towing the

Volkswagen from California to New Hampshire to sell it. One does not

need to have expertise in the value of vintage automobiles (and Rugen

admitted at the suppression hearing that he had no such expertise) to

wonder how such a trek to sell a vehicle seemingly worth no more than

a few thousand dollars6 could be cost effective. And once Rugen

reasonably suspected that Hornbecker was lying about the purpose of his

trip, the evidence that Hornbecker hailed from a known drug source area

and was hauling an unusual vehicle with a voluminous, inaccessible

cavern inside its body structure justified Rugen's brief continuation

of the detention while Hornbecker attempted to produce the Volkswagen's

paperwork (especially when we factor in the deference we owe to Rugen's

training and experience).7 Cf. United States v. Sowers, 136 F.3d 24,

27-28 (1st Cir. 1998) (passenger's lack of identification papers,

nervousness of driver and passenger, and fact that driver and passenger

told conflicting stories sufficient to prolong their detention);
-17-

Stanley, 915 F.2d at 56-57 (fact that defendant was alone in car late

after midnight in area frequently used for illegal drug activities, was

leaning over the vehicle's illuminated center console, and appeared to

try to hide something when he saw officer sufficient to warrant the

person's detention).

III. Conclusion

We agree with Judge Coffin that this is a close case and

appreciate especially his forceful and eloquent admonition that the

lawfulness of contested searches and seizures be assessed realistically

and holistically. And we are not blind to the fact that the troopers,

and especially Trooper Rugen, may well have manipulated Hornbecker into

relinquishing Fourth Amendment rights by means of ingratiating

conversation and insincere friendliness. But so long as manipulative

behavior does not cause us to question whether the relinquishment was

in fact voluntary (e.g., an abuse of office such as the actual or

threatened use of force), it is "reasonable" within the meaning of the

Fourth Amendment. See Schneckloth v. Bustamonte, 412 U.S. 218, 222-27

(1972). As a general matter, insincere friendliness which successfully

induces a criminal suspect to willingly answer questions and/or consent

to a search does not, without more, cause us to question whether the

suspect's response is "voluntary." Cf. id. at 226 (listing factors

typically bearing on the factual "voluntariness" inquiry). Such

behavior is thus not constitutionally offensive. 

For the reasons we have stated, we do not believe that

Hornbecker's Fourth Amendment rights were violated in connection with
-18-

the search that led to the discovery. We therefore affirm his

conviction and sentence.

Affirmed.

Dissent follows.
-19-

COFFIN, Senior Circuit Judge (Dissenting). I write separately

to indicate my unease at the enhanced opportunity permitted by the

court's approach for stretching the limits of both Terry stops and

consents to limited search under escalating pressures. Reviewing

all the circumstances of this case, I find that each step in the

investigative process was precariously close to the constitutional

line and that the totality of these close calls points to

impermissible excess. 

The initial stop, for exceeding the speed limit and having a

cracked windshield, is not at issue here. The first close call is

the court's holding that Trooper Rugen was justified in requesting

that appellant procure registration or ownership papers for the

Volkswagen, despite the fact that two minutes earlier, at 8:00

p.m., he had received word that appellant’s license was valid and

that there were no outstanding warrants and no criminal history.

Without an objectively reasonable suspicion, the detention would

have been invalid. The objectively reasonable basis, the court

decides, was the unlikelihood of a thirty-year-old Volkswagen

pickup truck being worth the cost of being towed across the United

States for sale in New Hampshire, the fact that southern California

was known as a source for drugs, and Rugen’s curiosity about the

space behind the cab. The court so finds despite Rugen’s testimony

that he had no reasonable suspicion at the time he ordered a canine

search at 8:00 p.m. and the district court’s statement that, as of

8:11 p.m., "the police had plenty of curiosity but no 'articulable

suspicion.'"
-20-

If this detention falls within permissible limits, its

justification is at best marginal. To elevate Rugen's vague

hunches to the level of a particularized or articulable suspicion

of criminal activity is a stretch. 

Next is Trooper Rugen's admitted delay in finishing his

paperwork in order to allow the dog to complete its walk. Rugen

asked no fewer than fifteen questions of appellant during this

delay, which he characterized as "just making conversation." 

See United States v. Pruitt, 174 F.3d 1215, 1221 (11th Cir. 1999)

(irrelevant "'fishing expedition'" questions violated Terry). It

was not until 8:11 p.m., after the canine had finished its walk and

eleven minutes after Rugen had received clearance on appellant,

that Rugen handed appellant his license and registration and said

he was "free to leave."

Yet just three seconds after giving him clearance to leave,

Trooper Rugen asked if appellant "would mind" if he looked at the

engine compartment. I suspect that the close coupling of

permission to leave with an ingratiating request to inspect ("I

have never seen a truck like that before . . . . 'Course I’m only

31 years old."), in the presence of two eager troopers and the dog,

throws doubt on the voluntariness of any manifestation of consent,

but appellant has not expressly raised voluntariness of his consent

as an issue before us. 

Nevertheless, appellant's contention that the searches

exceeded the scope of consent raises several concerns. To start

with, there is difficulty with the search of the "engine
-21-

compartment." The court has described the troopers’ resort to a

screwdriver and their look inside the compartment immediately after

appellant’s affirmative answer to the "do you mind" request. The

consented-to search of the engine compartment extended beyond the

clearly delineated engine compartment to include prodding, tapping,

banging, stepping up and crouching down, and even opening the

Volkswagen's side panels. Trooper Rugen justified his extended

search by contending that he was unclear as to the precise location

of the engine compartment. Regardless of whether this professed

confusion was objectively reasonable, he failed to clarify what

area he had been given consent to search. Under these

circumstances, at a minimum, "the scope of [appellant's] consent

was ambiguous – an ambiguity that could have been but was not

clarified by further inquiry." United States v. Infante-Ruiz, 13

F.3d 498, 505 (1st Cir. 1994).

Within two minutes of appellant’s consent to search "the

engine compartment," Rugen asked if he could look in the

Volkswagen’s cab. As the court reports, the answer was inaudible.

The court states that "the videotape suggests that Hornbecker

consented." I assume that this means that appellant did not

protest. 

At this point, after playing fast and loose with the first

limited consent, then displaying forceful determination to continue

the job and following with another request to examine a specific

place, should not the officers have paused to make sure that

consent was forthcoming and unequivocal? I fear that the court's
-22-

opinion will serve to encourage scenarios of familiarity leading to

limited consent, followed by a sequence of escalating intrusions

resulting in an abandonment of any limits to the scope of a search,

all sanitized by continuing to infer consent.

As if all this were not enough, Rugen admitted that after

finding nothing suspicious in the consented-to search of the cab,

he began to move around the vehicle more. Rugen then requested

that appellant open the gas port, admitting at trial that he was

not asking permission. Appellant indicated that a screwdriver

could be used here, too. This viewing at last yielded something --

the realization that neither the engine nor the gas tank occupied

the space that in Rugen's mind, apparently, appellant had been

questioned about. 

The search for a principled basis for decision in such a case

as this is made complex by the fact-specific issue of

reasonableness underlying the Fourth Amendment. But I find a

benchmark in comparing this case with two of our automobile

investigative stop cases, relied on heavily by the government,

United States v. Chhien, 266 F.3d 1 (1st Cir. 2001), and United

States v. Sowers, 136 F.3d 24 (1st Cir. 1998). In Chhien, the

sequence of events began with the customary traffic violation, then

a consensual pat-down yielding a large wad of money, leading to a

few questions and inconsistent answers, followed by suspicious

movements of a passenger in the car, refusal to open a clenched

fist, and, finally, when the passenger was removed from the car,

contraband in plain view. Chhien, 266 F.3d at 4-5. In Sowers,
-23-

there were signs of nervous behavior at the start, substantial

discrepancies in answers to simple travel questions, a written

consent to search, and a pat-down yielding a package of contraband.

Sowers, 136 F.3d at 25-26.

Those cases seem to me soundly decided, but debatable. If

they are at or near the line, this one is well beyond it. This is

a case where each discrete act of the troopers, if looked at

through a narrow lens, may pass muster. But how many such close

calls may be made without tainting the final decision? Is it

enough to say that a straw is just a straw without worrying when

one more straw will break the camel's back? I am left with a

profound feeling that in this case the officers "pushed the

envelope" too far and that our affirming the district court could

be interpreted as an Open Sesame to law enforcement to prolong

Terry stops, require irrelevant information and documents,

establish an atmosphere of coziness that ultimately suffocates an

individual’s freedom to choose, ask for limited permission to

search, and then subtly overreach its scope and interpret coerced

acquiescence as implied consent.

I therefore would reverse the judgment of the district court

and order that it suppress the drugs found in the Volkswagen.