# United Stat es Court of A ppeals For the First C ircuit

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 o f

marijuana in a 1957 Volkswagen pickup truck that defendant Michael

Hornbecker had been tow ing across the country. Ho rnbecker subsequentl y
pleaded guilty to conspiring to distrib ute marijuana, but reserved hi s
right to appeal the district c ourt's earlier denial of his suppressio n

motion. Hornbecker acknowledges that he volunt arily signed a consent

to -se arch form approximately 23 minutes after he was stopped, but argue s

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 reci tat ion from the record of the

proceedings below, which included the in troduction 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 vi deotape), Illinois State Trooper John Rugen stoppe d Hornbecke r

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

Hornbe cker was driving a 1987 Chevrolet pickup wi th California licens e

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

who was then a member of an I llinois state po lice drug interdiction uni t

that used rou tine traffic stops to further its purposes, told Hornbecke r

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 Hor nbecker for his license and

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

Hornbecker replied that he was driving f rom southern California to Ne w-3-

Hampshire to s ell the Volkswagen. Rugen fo und this answer fishy becaus e

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

tran sporting drugs in the Volksw agen 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 an d between the b ed 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,

R ugen stepped up o n the flatbed trailer so that he could further surve y
the Volkswagen's atypical body structure.

Rugen radioed for a che ck on Hornbecker's license,

reg istration, and criminal his tory. 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 outstandin g wa rrants 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 paper s
verifying ownersh i p of the Volkswagen. Hornbecker replied that he di d

and, because the papers were in the Volkswag en, exited the Chevrolet t o

retrieve them.

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

off-h andedly questioned Hornbecker about it. P ointing to the enclose d

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

Hornbecker replied, "That's the way it came, ri ght? . . . Th e motor an d

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

began to search for its paperwork. Rugen peered beneath the Volkswage n

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

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 a rrived wit h

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 r equested

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 Grah am 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 sp a c e

beh ind the truck's cab. Graham began to examin e the Volkswagen, peerin g

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

into its bed. He then returned t o the driv er'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 ve hicles and asked whether Hor nbecker was carrying anythin g
illegal. Ho rnbecker replied that he was not. As Graham conducted th e

drug sni ff, Rugen engaged in friendly banter with Hornbecker, asking hi m

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

The dog did not alert. Shortly after 8:11 p.m., Ru gen handed Hornb ecke r

a written warning, returned all of his d ocuments, and told him, "Y ou'r e

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

about the effect of the warn ing. Rugen explained that it would show u p

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

again told Hor nbecker that he w as "all set to go," but then immediatel y

asked whether he mi ght take a look "at that eng ine compartment there, "

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

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

At just prior to 8:12 p. m., Rugen and Graham went to t he rea r

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

Hornbecker's earlier indication that it was be hin d the cab) and

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

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 compart ment door, and (with Graham) peered inside

.

After completing thei r examination of the engine compartmen t ,

the tro opers closed its access door and began to ex amine 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 co nve yed what was almost certainly a contrived

fas cination with th e "big ole truck," at one point stating he might hav e1 At the suppression hearing, the following exchange took place

during cross-examination of Tro oper 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 t h e 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 respo n s e

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

couple of minutes later, Rugen asked Hornbecker for the key to t he 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 a rea behind the cab. At just after 8:1 9 p.m., Rugen returned to hi s

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 , an d

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 approximatel y-7-

8:20 p.m., nearly 23 minutes after being pulled ove r, Hor nbecker

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

trooper s br eached the space behind the cab and discovered the marijuana

.

Illinois authorities subsequently charged Hornbecker with

cannabis trafficking, b ut Hornbecker prevailed on a pretrial suppressio n

motion which argued that the troopers had violated his Fourth Amendmen t

rights. The state unsuccessfully appealed that ruli ng and eventuall y

abandoned the prosecution. Meanwhile, as t he sta te'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 th e search w as vitiated by the fact that Rugen began

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

continu ed to detain him despite lear ning that Hornbecker's license an d

registration were valid and that there were no outstanding warrants

against him.

Hor n becker presented two arguments in support of this

constitutional claim. First, he asserted that his detention from

approximately 8:02 p.m. unt il approximately 8:11 p.m. ( when Rugen gav e

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

to go) was unreasonable because Ru gen lacked justification to continu e

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 unreasonabl e bet ween
approximately 8:11 p.m. and approximately 8: 20 p.m. because it involve d-8-

encroachments beyond the en gine compartment search to which he

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

warrantless searches justified b y consent were held unlawful because th e

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 becau se it was immediately preced ed by a protracted perio d

of unlawful detention

. The district co urt rejected Hornbecker' s

arguments. The court opined that Hornbecker's detention prior to 8 : 1 1

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 t ime Hornbecker signed the co nsent-to-searc h

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

consented to stay, to let the tr oop ers conduct certain limited searches ,

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

determinations , the court, in dicta, sided with Hornbecke r and agains t

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

consent to a search, the troopers had a reasonable basi s 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 th e
suppression prayed for, had it not been for the fact that Hornbecker

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

vehicular space s because Hornbecker does not develop an a rgument tha t t he 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 unre lated to the reasons for the traffic stop and

unsupported by a reasonable suspicion that he was engaged in some othe r

unlawful condu ct. With respect to the period between approximately 8:1 1

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

assume that he is challenging the troope rs' conduct on both search an d

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 writte n consent t o

the search which yielded th e marijuana because it failed to appreciat e

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 u nlawful searches whic h

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 de fer ence

.

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

doe s he argue that the opening of the gas por t was an unlawful search. 2approximately 8:20 p.m. con sti tuted a search and the law points strongl y

in the other direct ion. See New York v. Class , 475 U.S. 1 06, 118 (1986 ) (areas inside automobile within plain view of persons on outside are no t "subject to a reasonable expectation o f privacy"); Texas v. Brown , 46 0 U.S. 730, 739-40 (1983) ("It is . . . beyond dispute that [the officer's] action in shini ng his flashlight to illumin ate the interio r of [defendant's] car trenched upon no righ t secured .

. . by the Fourt h Amendment .") (pluralit y opinion of four Justices; other five Justice s concurring in the judgment and disagreeing on unrelated issues); id. a t 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 quotat ion marks omitted); U nited 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

co ntents do not constitute searches absent a physical intrusion into t h e vehicle).

-10- Finally , Hornbecker d oes not explain why, even if one or more of these

searches was unlawful, we s hould order the suppression of evidence foun d

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

We also reject Hornbecker's challenge to the distric t court' s

conclusion that no Fo urth Amendment detention occurred between

approximately 8:11 p.m. and a pproximately 8:20 p.m. To reiterate, th e

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

d uring this period because he was twice told that he was free to go bu t

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 question i ng. In any event , th e

court' s ruling, to which we must once again defer, Bunnell , 280 F.3d a t

48-49, is sustainable because Hornbec ker was twice told that he was fre e

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

place during the per iod in question. Although few people actual ly fee l-11-

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

Ame ndment is not i mplicated unless, viewed objectively, the officer' s

conduct communicates an intention to use official authority to restrai n

the individual's freedom of movement. See United States v. Cardoza , 12 9

F.3d 6, 14-16 (1st Cir. 1997) (collectin g cases). The court did not er r

in declinin g to find such a message in the troopers' words and con duct

.

The success of Hornbecker's appeal th us d epends on our

determi ning that Rugen violated Hornbecker's Fourth Amendmen t right t o

be free from an un reasonabl e seizure by detaining him until 8:11 p.m

. (approximately thirteen minutes into the stop) instead of tur ning him

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

not wanted and th at Hornbecker's license and registration were valid.

The district court seems to have uphel d the detention during this p erio d

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

unlawfu lly protracte d if it is concluded within 15 minutes. See p. 7,

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

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

(obser ving that "an investigative detention mus t be temporary and las t

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

.

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

and because there exist narrower groun ds 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 distri ct court's suppr ession rulin g
on any ground made manifest by the record).3 Judge Coffin's dissenting opinion can be read to s ugge st

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 pape rwor k 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 t he Vo lkswagen'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 ex ten d 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 o f

the detention is appropriately analyzed under the Terry l i ne 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 detaine d

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 a rrest, is determined by a f act-specifi c
application of a legal stan d ard designed to help courts assess whethe r
the police action was objectively reasonable). 3

Citing interests in regulating motor vehi cles that trav el th e
public highways and in deterring the trafficking of stolen vehicles, th e

government argues t hat, just as law enforcement officers may reas onabl y

ask for a motorist's license and registration papers during a routine4 In his testimony at the suppr ession hearing, Rugen indicated tha t

he was proceeding on the assumption th at, during a routine traffic stop , he always may ask to see the papers of a vehicle being towed. Of
course, w hether Rugen's subjective understanding was correct do es not inform the Fourth Amendment inquiry. What matters is whether Rugen's request was objec tively reasonable under the circumstance s. See Whre n

v. United States , 517 U.S. 806, 809-19 (1996). For this same reason, it is immateria l wh ether Rugen subjectively believed that he had ground s to deta in Hornbecker between 8:02 p.m. and 8:11 p.m. for a re ason othe r than his belief that he always is entitled to ask for the papers of a vehicle being towed.

-13- traffic s top, they may also always reasonably ask for the registratio n
or ownership papers of a vehicle being towed. Alternatively, the

government contends that Rugen's r equest to see the Volkswag en's paper s

was reasonable under the particular facts of this case. Hornbecker

disagrees that the police may always ask to see pape rs pertaining to a

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

papers of such a ve hicle because it is not being dri ven. And he resist s

the gov ernment's case-specific ar gument by arguing that Rugen lacked a

reasonable suspicion that the Volkswag en was an instrument of illeg al

activity. We do not resolve the broader di spute because, i n the contex t

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 r easonable in context, our conclusion tha t i t

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

det ain Hornbecker for reasons unrelated to th e traffic stop. After all ,

the request came after Rugen learned that there was no outstanding

warrant for Hornbecker and that Hornb ecker's license and registratio n

were valid; it thus prolonged the detention beyond the point at which5 This 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 th e

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 requ est, we "mus t

balance the nature and quality of the intrusion on personal security

against the importance of the government al interests alleged to ju stif y

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

(citations and internal quotation marks omi tted), 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 pr actical, commonsens e judgment based on the idiosyncracie s

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

"were fairly responsive to the emerging t ableau." Chhien , 266 F.3d a t

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

experienced perceptions of the officers," United State s v. Woodrum , 20 2

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

factual circumstances that seem innocuous to a layman might well appea r
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 an d tear, but to [the officer], who ha d-15-

searche d roughly 2,000 cars for narcotics, it suggested that drugs ma y
be secreted inside the panel.").

Guided by these principles, we conclude that Ru gen's r eques t

to see the Volkswagen 's papers was law ful. In our view, continuing th e

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 bein g 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

R ugen "a particularized and objective basis for susp ecting [Hornbecker ]

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

"reasonable suspicion" requ ired to justify a Terry stop) (citation an d

internal quotatio n marks omitted), we are some what less demanding tha n

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 1 275, 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).6 There was evidence that Hornbecker had purchased the truck not

long before for $2200.

7 Hornbecker 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 suspicion s reasonably raised by Hornbecker's doubtful explanation fo r his tri p in the mind of an objectively reasonable l aw enforcement agent , Rugen's actual purpose in making the request does not matter. See Whr en , 517 U.S. at 80 9-19. Here, a reasonable officer might have aske d to see the paperwork because the absence of such paperwork would make the proffered expl anation for the trip even mor e suspicious. After all , a p rivate sale of an automobile usually invol ves a transfer of ownershi p documentation.

-16-

When al l is said and done, the facts here were suffi cient to

satisfy the demands of Terry . Certainly, Rugen reasonably suspected

that Hornbecker was lying whe n he state d 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 dollars 6 could be cost effec tive. And once Rugen

reasonably suspected that Hornbecker was lying about the purpose of hi s
trip, the evid ence that Hornbecker hailed from a known dru g source are a

and was hauling an unusual vehicle with a voluminous, inaccessible

cav ern inside its body structure justified Rugen's brief continuatio n

o f the detention while Hornbecker attempted to produce the Volkswagen' s

paperwo rk (especially when we fac tor 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 passenge r

told conflicting stories sufficient to prolong their detent ion) ;-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, wa s
leaning over the vehicle's illuminated center console, an d appeared t o

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

lawful ness of contested sea rches and seizures be assessed realisticall y

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

a nd especially Trooper Rug en, may well have manipulated Hornbecker int o

r elinquishing Fourth Amendment rights by means of ingrati atin g

conversati on and insincere friendline ss. 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 "reasona ble" within the meaning of th e

Fourth Amendment. See Schneckloth v. Bustamonte , 412 U.S

. 218, 222-2 7

(1972)

. As a general matter, insincere friendliness which successfull y

induces a criminal suspect to willingly answer questions and/or c onsen t

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 fa ctua l "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 wit h-18-

the search that led to the disc overy. 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 warran ts and no criminal history.

Without an objectively reasonable suspicion, the detention would

have been invalid. The objectively reasonable basis, the c our t

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 w ith in permissible limits, its

justification is at best ma rgi nal. 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 del ay 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 le ave , Trooper Rugen asked if appellant "would mind" if he looked at the

engine compartment. I s uspect that the close coupling of

permi ssi on 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, s teppin g 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 t his pr ofessed

confusion was objectively reasonable, he failed to clarify what

area he had been given consent to search. Under these

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

was amb iguous – 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 intru sion s
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 t o move aro und the vehicle more. Rugen then requested

that appellant open the gas port, admitting at t rial that he was

not asking perm issi on. 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

reas onableness underlying the Fourth Amendment. But I fin d a

benchmark in comparing this case with two of our automobile

investigative sto p ca ses, relied on heavily by the government,

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

States v. Sowers , 136 F.3d 24 (1 st 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 inconsi stent answers, followed by suspicious

movement s of a pas senger 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 que stions, 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 whe re 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 came l's ba ck? 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.