United States Court of Appeals

For the First Circuit

No. 09-1835

UNITED STATES OF AMERICA,

Appellee,

v.

VINCENT CHANEY,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Paul J. Barbadoro, U.S. District Judge]

Before

 Torruella, Ripple, and Lipez, *

Circuit Judges.

Robert Herrick for appellant.

Seth R. Aframe, Assistant United States Attorney, with whom

John P. Kacavas, Acting United States Attorney, was on brief, for

appellee.

July 27, 2011

 Of the Seventh Circuit, sitting by designation. *
LIPEZ, Circuit Judge. Defendant-appellant Vincent Chaney

appeals the denial of a motion to suppress evidence seized from him

in the raid of a motel room in which Chaney was a guest. Placed on

the floor and handcuffed in the wake of his host's arrest on drug

charges, Chaney consented to a search of his pants pocket to locate

identification; the search turned up seven small bags of crack

cocaine. A dozen rounds of .38-caliber ammunition were later

discovered in the pocket of his jacket. 

After unsuccessfully moving to suppress this evidence,

Chaney entered a conditional guilty plea to charges of simple

possession of cocaine and possession of a firearm after a prior

felony conviction. On appeal, Chaney argues that the police

exceeded the scope of his consent by removing cocaine, rather than

identification, from his pocket; that his consent was the product

of a coercive atmosphere and hence not voluntary; and that all

evidence seized was the fruit of an unlawful de facto arrest. 

Finding no reversible error in the district court's rulings, we

affirm.

I.

The events giving rise to this appeal took place in the

course of a police raid on a Manchester, New Hampshire motel room

in late 2005. In reciting the facts, we draw on the district

court's oral findings of fact at Chaney's suppression hearings as

well as testimony taken at those hearings.

-2-
On November 30, 2005, state and federal law enforcement

officials in possession of a federal arrest warrant for a man named

Peter Boyd, suspected of distributing crack cocaine, went to the

Queen City Inn in Manchester, New Hampshire. Past experience

flagged the motel as a likely choice for local drug dealers looking

for temporary lodging. Shown a picture of Boyd, a clerk at the

Queen City Inn confirmed to an investigating United States Marshal

that a man of Boyd's appearance was staying in a room at the motel. 

The marshal summoned four additional federal and local law

enforcement officers to the motel to aid in executing the warrant. 

The motel room in which Boyd was staying was registered

in the name of Brigit Hebert, a woman familiar to the authorities

as the subject of several past drug-related arrest warrants. 

Unbeknownst to the officers, also present in Hebert's motel room

was Vincent Chaney. According to his testimony at the suppression

hearings, Chaney had come the previous night from Virginia, hoping

to visit two of his daughters who were living with their mother in

Manchester. Arriving too late to visit with his daughters, Chaney

went to a bar and happened upon Boyd, an old acquaintance. Boyd

offered to put Chaney up for the night in the room he was sharing

with Hebert at the Queen City Inn. Boyd, Hebert, and Chaney were

thus all present in Hebert's motel room when the officers arrived

early in the afternoon of the next day to execute Boyd's arrest

warrant.

-3-
Two local detectives were dispatched to cover the rear

door to Hebert's motel room while three marshals approached from

the front, knocking on the door and announcing their presence. The

door opened to reveal Boyd, wearing pajama pants but shirtless and

without shoes. Boyd was taken into custody, and the marshals

entered the room with their weapons drawn to perform a protective

sweep. They found the room darkened and clothing scattered across

the floor, with Hebert lying in bed and Chaney, whom the officers

did not recognize, standing next to it. The marshals told Hebert

to get out of bed and put her hands up, which she did. Chaney was

less compliant, edging toward the corner of the bed despite

repeated commands to stop moving and lie on the ground. After six

or more warnings, Chaney acquiesced and was handcuffed on the

floor. The marshals completed their sweep of the main room, the

space underneath the bed, and the bathroom, finding in plain view

two bags of what appeared to be marijuana (sitting on a

windowsill), three crack pipes (on the windowsill and on a chair),

and a number of rounds of .22-caliber ammunition (located in a

clear bag in the closet).1

A further search of the premises, conducted later in the day 1

with Hebert's consent, unearthed two firearms (a .22-caliber, pumpaction rifle with ammunition in it and a .38-caliber Derringer

pistol), a bowl containing a white powdery substance that fieldtested positive for cocaine, and various items associated with drug

manufacture (baking soda, lighter fluid, and glassine bags). 

Notably, the Derringer pistol was found under the corner of the

bed's mattress, the point toward which Chaney had been edging when

the police first entered the motel room.

-4-
As the protective sweep was being conducted, the marshals

opened the rear door of the motel to admit the local detectives. 

Detective Brian Newcomb approached Chaney, patted him down for

weapons, and then attempted to learn his identity. Chaney was not

immediately forthright, telling Detective Newcomb only that his

name was Vincent and providing him with several false dates of

birth. After the local dispatch reported that it was unable to

find a match for the dates of birth in their database, Newcomb

asked Chaney if he had any identification. Chaney indicated that

he did, and that it could be found in his back pocket. Detective

Newcomb asked for and was granted consent to retrieve the

identification from Chaney's back pocket, but the pocket turned out

to be empty. Asked if the identification might be located

elsewhere, Chaney suggested that it might be in his left front

pocket. Chaney again consented to have Newcomb search his pocket

for the identification.

Detective Newcomb placed his hand in Chaney's left front

pocket and removed first a plastic bag that held seven individual

plastic bags, each of which contained a "chunky off-white

substance"; he then reentered Chaney's pocket and removed a social

security card. Newcomb believed the off-white substance in the 2

Chaney disputed the sequence of events in his testimony at

2

the suppression hearing. According to Chaney, he responded to

Newcomb's request for identification by removing the social

security card from his back pocket and turning it over to Newcomb. 

Detective Newcomb then allegedly asked Chaney if he had any sharp

-5-
bags to be crack cocaine, having seen the substance in his prior

law enforcement experience some fifty to one hundred times (a field

test later confirmed his suspicions). Newcomb informed Chaney that

he was under arrest for possession of crack cocaine with intent to

distribute. After learning from dispatch that the social security

card found in Chaney's pocket, which bore the name "Vincent Earold

Chaney," belonged to a four-year-old boy, Newcomb again asked 3

Chaney for his date of birth. Chaney provided the correct date

this time, and a search of police records confirmed his identity

and revealed an outstanding warrant for his arrest in Massachusetts

for a probation violation.

As Detective Newcomb was escorting Chaney to a police car

outside the motel, Chaney asked Newcomb to retrieve a backpack and

jacket Chaney had left in the room. Newcomb retrieved a backpack

and jacket matching the description provided by Chaney. After

Chaney confirmed that they belonged to him, Newcomb searched both

items, locating in the jacket pocket a plastic bag containing

twelve rounds of .38-caliber ammunition.

objects in his pockets, Chaney told Newcomb that he did not, and

Newcomb proceeded to search Chaney's other pockets and remove items

(including the plastic bags containing cocaine) without consent. 

In his oral findings of fact, Judge DiClerico adopted Detective

Newcomb's version of the consensual search, implicitly discrediting

Chaney's account.

The card belonged to Chaney's deceased son, Vincent Chaney, 3

Jr. Chaney stated that he had mistakenly grabbed the wrong

identification card when he left his home in Virginia.

-6-
Chaney was eventually indicted in the district court on

two counts arising out of the incident: one count of simple

possession of cocaine base, in violation of 21 U.S.C. § 844(a), and

one count of unlawful possession of a firearm after a prior felony

conviction, in violation of 18 U.S.C. §§ 922 and 924(a)(2).4

Chaney moved to suppress all of the evidence seized in the course

of his detention and arrest.

The district court held two evidentiary hearings to

evaluate possible grounds for suppression. The first, held by

Judge DiClerico on September 4, 2008, addressed Chaney's argument 

that the search of Hebert's motel room was unlawful due to the

absence of a valid search warrant. After testimony from Chaney and

three of the police officers who conducted the search and arrest,

Judge DiClerico ruled that Chaney lacked standing to challenge the

search of the motel room. The judge also found that Chaney had

consented to a search of his pockets, and that the search of

Chaney's jacket before turning it over to him had been reasonable

in light of officer safety concerns.

Chaney's indictment charged one additional felon-in- 4

possession count related to a 2007 incident where an officer

noticed a handgun in Chaney's pocket during a routine traffic stop. 

Chaney successfully moved to sever trial on the 2007 charge from

the 2005 charges. Though the district court initially suppressed

all evidence seized in the 2007 traffic stop, we reversed in an

earlier appeal filed by the government. See United States v.

Chaney, 584 F.3d 20 (1st Cir. 2009).

-7-
A second hearing was held before Judge Barbadoro on

September 17, 2008. After brief supplemental testimony from two 5

of the officers, Chaney's counsel presented arguments that the

search of Chaney's pockets occurred during an unlawful de facto

arrest and that Chaney's consent to the search was invalid because

it was the product of coercion. Judge Barbadoro rejected the

arguments, ruling that Chaney's detention was not a de facto

arrest, being limited in duration and reasonable in scope, and that

Chaney's consent was voluntary. At the close of the hearing, the

judge confirmed that all of the issues concerning Chaney's

detention and consent were preserved for appeal:

It's preserved for purposes of appeal that the

entry was illegal. It's preserved for

purposes of appeal that the scope of the

detention after the entry was improper, and

it's preserved for purposes of appeal that any

consent given was not valid and does not

justify and make lawful the seizure that

followed. I think you've presented every

possible suppression argument that can be

presented.

Chaney subsequently entered into a conditional plea

agreement by which he reserved his right to appeal the district

court's suppression rulings. Subject to that agreement, Chaney

pled guilty to one count of simple possession and one count of

Following the first suppression hearing, the case was

5

reassigned to Judge Barbadoro due to Judge DiClerico's

unavailability for trial. Judge Barbadoro set the additional

suppression hearing in response to concerns from Chaney that

certain arguments had not been addressed in the first hearing.

-8-
possession of a firearm after a felony conviction. Judgment was

entered against Chaney in April 2009, and this timely appeal

followed.

II.

In evaluating the district court's denial of Chaney's

suppression motion, we review the court's findings of fact for

clear error and its legal conclusions de novo. United States v.

Larios, 593 F.3d 82, 92 (1st Cir. 2010). Chaney raises three

challenges to the district court's ruling. First, he argues that

the removal from his pocket of plastic bags containing cocaine

exceeded the scope of his consent, which, he asserts, was limited

to a search of his pocket to locate identification. Second, he

argues that, even if he consented to a general search of his pants

pocket, the consent was involuntary because of an unduly coercive

atmosphere. Third, he argues that the consent was the fruit of an

unlawful, de facto arrest, and thus any evidence found in the

course of the search must be excluded. We address each of Chaney's

contentions in turn.

A. Scope of Consent

It is a fundamental principle of Fourth Amendment law

that a warrantless search may be conducted with the voluntary

consent of a person authorized to give such consent. See United

States v. Stierhoff, 549 F.3d 19, 23 (1st Cir. 2008) (citing

Schneckloth v. Bustamonte, 412 U.S. 218, 222 (1973)). A

-9-
warrantless search may not, however, exceed the scope of the

consent granted. United States v. Marshall, 348 F.3d 281, 286 (1st

Cir. 2003). The scope of the consented-to search is generally

defined by the expressed object of the search, which is "measured

by a test of objective reasonableness: 'what would the typical

reasonable person have understood by the exchange between the

officer and subject?'" Id. at 286-87 (quoting Florida v. Jimeno,

500 U.S. 248, 251 (1991)).

The United States raises a threshold objection to our

consideration of Chaney's scope-of-consent argument, contending

that the issue is forfeited due to Chaney's failure to squarely

raise it in the suppression hearings. There may be some force to 6

the government's argument, as the scope-of-consent argument Chaney

presses on appeal does not appear to have been made below. See

United States v. Torres, 162 F.3d 6, 11 (1st Cir. 1998) (forfeiture

"applies not only when a defendant has failed altogether to make a

suppression motion but also when, having made one, he has neglected

to include the particular ground that he later seeks to argue"). 

On the other hand, Chaney raised generally the issue of the

The government identifies this argument as a claim of 6

waiver, but it is actually one of forfeiture. As we have often

explained, an argument or right is waived only when it is

intentionally abandoned; mere failure to raise an argument or right

due to inattention or neglect constitutes forfeiture. See United

States v. Rodriguez, 311 F.3d 435, 437 (1st Cir. 2002). The

distinction is a substantive one. Waiver generally bars an issue

from being raised on appeal, whereas forfeiture allows the issue to

be reviewed for plain error. Id. 

-10-
adequacy of his consent before the district court, and the court

assured him that it was "preserved for purposes of appeal that any

consent given . . . does not justify and make lawful the seizure

that followed." Because we may readily dispose of Chaney's

argument on the merits, we sidestep the government's claim of

forfeiture and address the scope-of-consent issue head-on. See

Stierhoff, 549 F.3d at 23.

According to testimony from Detective Newcomb, who

performed the search of Chaney's pocket, Chaney "stated that [the

detective] could go through his left front pocket and find

[Chaney's] identification." Chaney argues that the "expressed

object" of this consented-to search was retrieval of

identification, and thus the removal of the plastic bags from his

pocket fell outside of the scope of his consent. We disagree.

The tight confines of a pants pocket leave a searching

hand little room for maneuvering and distinguishing between various

objects that may be contained therein. Given consent to retrieve

an object from such a cramped space, it is objectively reasonable

to assume that the consent extends to the removal of items that

either may constitute the object of the search and cannot be

immediately identified or that obstruct further access to other

items in the pocket. Nothing in Chaney's exchange with Detective

Newcomb suggests that he intended to withhold consent for these

sorts of practical measures that are reasonable incidents to the

-11-
search of a pocket. Chaney's argument appears to be that, absent

explicit permission to remove items other than evidence of

identification, the detective was required to fish around in the

pocket until he located an item that he could positively identify

to be some form of identification and that could be removed without

dislodging other items. The "typical reasonable person" would not

so interpret Chaney's exchange with the officer.7

Because it was objectively reasonable for Detective

Newcomb to believe that the scope of consent extended to the

removal of plastic bags from Chaney's pocket in the course of

searching for identification, we find no unconstitutional excursion

beyond the boundaries of Chaney's consent. See Jimeno, 500 U.S. at

249 ("The Fourth Amendment is satisfied when, under the

circumstances, it is objectively reasonable for the officer to

believe that the scope of the suspect's consent permitted [the

challenged search].").8

This is not to say that Chaney's consent should be read as 7

a generalized authorization to search his entire pocket, however. 

If the detective had immediately located identification, turning

out the rest of Chaney's pocket would surely exceed the scope of

consent. But the record does not suggest that such was the case:

Detective Newcomb testified at the second suppression hearing that

he removed the plastic bag from Chaney's pocket before the

identification card. 

Both parties discuss the possible application of the "plain 8

feel" doctrine of Minnesota v. Dickerson, 508 U.S. 366 (1993) to

the present case. That rule, an extension of the familiar "plain

view" doctrine, allows the seizure of contraband readily identified

by feel during a Terry frisk. While we agree with Chaney that the

doctrine would have no application where testimony suggests that

-12-
B. Voluntariness of Consent

Chaney next raises a more fundamental challenge to the

consent search of his pocket, arguing that the coercive atmosphere

of the police raid rendered his consent involuntary. Whether a

suspect's consent to a warrantless search was truly voluntary or,

instead, the product of coercion "is a question of fact to be

determined from an examination of the totality of circumstances." 

Marshall, 348 F.3d at 286. Among the factors we will consider in

making that determination are the suspect's "age, education,

experience, knowledge of the right to withhold consent, and

evidence of coercive tactics." Id. Upon close review of the

record, we can find no clear error in the district court's finding

that Chaney freely and voluntarily consented to the search of his

pants pocket.

Chaney draws on a number of factors in trying to paint a

picture of coercion. First, Chaney highlights the officers' "show

of force" in entering the motel room with guns drawn. Setting

aside the fact that his consent was given after all occupants of

the room were handcuffed and the excitement of the initial entry

had passed, neither the number of officers who entered the room

(five) nor the readiness of their weapons suggests an overwhelming

the contraband was not identified by feel but instead by visual

inspection after removal from his pocket, we need not directly

address these arguments given our holding that the removal of

cocaine from Chaney's pocket fell within the scope of the consent

granted.

-13-
show of force. See United States v. Jones, 523 F.3d 31, 38 (1st

Cir. 2008) (finding the fact that ten to fifteen officers entered

hotel room with guns drawn insufficient to void voluntariness of

consent). Chaney notes as well that the occupants of the room were

asleep when law enforcement arrived at the motel room. The

evidence is mixed as to whether Chaney, who was standing and fully

clothed when the officers entered the room, was actually awakened

by the officers' arrival. Regardless, the mere fact of having been

recently asleep does not necessarily affect one's capacity to

voluntarily grant consent. Although Chaney cites the officers'

failure to advise him of his right to refuse consent to the search,

a factor that is certainly relevant to voluntariness of consent,

"[w]e have repeatedly held that the failure to advise a defendant

of his right to refuse consent does not automatically render such

consent invalid." Id.

Importantly, this was not Chaney's first encounter with

law enforcement. He had been arrested on more than a dozen prior

occasions and convicted of a comparable number of criminal

offenses. It is reasonable to infer that a veteran of the criminal

justice system will be "less likely than most to be intimidated by

the agents' show of force." United States v. Barnett, 989 F.2d

546, 556 (1st Cir. 1993) (quoting United States v. Cepulonis, 530

F.2d 238, 244 (1st Cir. 1976)). Moreover, Chaney's conduct during

the police raid betrayed no evidence of intimidation; to the

-14-
contrary, he ignored repeated commands from the police to stop

moving when they first entered the motel room. 

In short, on this record, we can discern no clear error

in the district court's finding that Chaney voluntarily consented

to the search of his pocket.9

C. De Facto Arrest

Chaney alternatively contends that the evidence seized

from him was the fruit of an unlawful de facto arrest. While the 10

period of detention leading to the discovery of crack cocaine in

Chaney's pocket certainly bore some typical indicia of an arrest,

we concur with the district court's conclusion that the

circumstances did not rise to the level of a de facto arrest. 

Any detention of an individual by a police officer

constitutes a seizure and, to be lawful, must be adequately

justified under the Fourth Amendment. Morelli v. Webster, 552 F.3d

We note as well that we have been reluctant to find coercion 9

in the commonplace context of a request for identification. See

United States v. Winston, 444 F.3d 115, 122 (1st Cir. 2006) (noting

that the "mundaneness of identification makes it unlikely that

agents would bother to use coercive methods to obtain it").

There appear to be two aspects to his "fruit of the 10

poisonous tree" argument, see Wong Sun v. United States, 371 U.S.

471, 484-85 (1963): first, that the purported de facto arrest

caused Chaney to consent to the search of his pocket, cf. United

States v. Navedo-Colón, 996 F.2d 1337, 1338-39 (1st Cir. 1993)

(examining whether consent to search was fruit of illegal search), 

and second, that the search of Chaney's jacket pocket incident to

his being taken into custody was a product of the de facto arrest. 

Because we find no de facto arrest, we do not reach the question of

whether such a finding would require suppression of the evidence

located during those two searches. 

-15-
12, 19 (1st Cir. 2009). The contours of the showing necessary to

satisfy the Fourth Amendment depend on the nature of the detention:

arrests, whether formal or de facto, require that the detaining

officer have grounds for probable cause, whereas temporary

detentions (including investigatory or Terry stops, see Terry v.

Ohio, 392 U.S. 1, 21 (1968)) "may be grounded on a lesser showing

equivalent to reasonable suspicion." Id. 

Chaney does not contest that the police had reasonable

grounds to temporarily detain him and ascertain his identity in the

course of securing the motel room. Instead, he argues that the

conduct of the detention -- in particular, that the officers

entered with guns drawn, ordered him to the ground, and handcuffed

him -- transformed it from investigatory stop into de facto arrest. 

The distinction is critical. Chaney argues, correctly, that no

probable cause existed at the time of his detention, and thus the 11

detention can survive constitutional scrutiny only if it was in the

nature of a temporary investigative stop.

There exist "no scientifically precise benchmarks for

distinguishing between temporary detentions and de facto arrests." 

Id. at 20. Instead, we inquire, in light of the totality of the

circumstances, whether a reasonable person in the suspect's

position would have understood her position "to be tantamount to

The officers had no knowledge of who Chaney was or why he 11

was present in the motel room, and thus plainly could have no

probable cause for arrest.

-16-
being under arrest." United States v. Zapata, 18 F.3d 971, 975

(1st Cir. 1994) (citing Berkemer v. McCarty, 468 U.S. 420, 442

(1984)). This objective, suspect-focused inquiry is informed by

our assessment of the reasonableness of the detaining officer or

officers' actions in response to developing conditions. Where an

investigatory stop is justified at its inception, it will generally

not morph into a de facto arrest as long as "the actions undertaken

by the officer[s] following the stop were reasonably responsive to

the circumstances justifying the stop in the first place as

augmented by information gleaned by the officer[s] during the

stop." United States v. Trueber, 238 F.3d 79, 92 (1st Cir. 2001)

(quoting United States v. Owens, 167 F.3d 739, 748 (1st Cir. 1999)

(alterations in original)). 

The crux of the issue before us is whether the officers'

entry into the motel room with drawn guns and their handcuffing of

Chaney were reasonable. The use of drawn guns and handcuffs, being

some "of the most recognizable indicia of a traditional arrest,"

will generally tilt the scale to some significant degree toward a

finding of de facto arrest. See United States v. Acosta-Colon, 157

F.3d 9, 18 (1st Cir. 1998). However, we have repeatedly noted that

neither factor is alone determinative. See United States v.

Fornia-Castillo, 408 F.3d 52, 64 (1st Cir. 2005) ("[N]either the

use of handcuffs nor the drawing of a weapon necessarily transforms

-17-
a valid Terry stop into a de facto arrest."). In Acosta-Colon, 12

we explained that "when the government seeks to prove that an

investigatory detention involving the use of handcuffs did not

exceed the limits of a Terry stop, it 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 legitimate purposes of the stop without exposing law

enforcement officers, the public, or the suspect himself to an

undue risk of harm." Acosta-Colon, 157 F.3d at 18-19 (emphasis

omitted). We think this inquiry applies with equal force in

assessing whether the use of drawn handguns was reasonable in

initiating a stop.

We can locate no error in the district court's finding

that the specific circumstances of the November 30, 2005 raid gave

rise to a reasonable concern for officer security that justified

the use of handcuffs and drawn handguns. The unanticipated

presence, in a darkened motel room inhabited by two suspected drug

dealers, of an unfamiliar man who ignored repeated orders from the

police to stop moving and drop to the ground might alone be enough

to justify more intrusive measures for briefly securing him during

See also Acosta-Colon, 157 F.3d at 18 ("[T]he use of 12

handcuffs in the course of an investigatory stop does not

automatically convert the encounter into a de facto arrest.");

United States v. Lee, 317 F.3d 26, 31-32 (1st Cir. 2003) (fact that

officers drew guns and blocked defendant's vehicle from leaving did

not convert investigative stop into de facto arrest); United States

v. Taylor, 162 F.3d 12, 21 (1st Cir. 1998) (same).

-18-
an investigative stop. See United States v. Andrade, 551 F.3d 103,

113 (1st Cir. 2008) (more physically intrusive Terry stop justified

where suspect refused officer's order to stop); United States v.

Taylor, 716 F.2d 701, 709 (9th Cir. 1983) (holding that no de facto

arrest had occurred where police approached the suspect with guns

drawn and handcuffed him after he twice refused to raise his hands

and "ma[de] furtive movements inside the truck where his hands

could not be seen"). There were, however, still other factors here

that counseled particular caution. The officers knew that Boyd,

the subject of the arrest warrant, had an extensive criminal

history, and a preliminary protective sweep of the motel room

located not just drug paraphernalia but also ammunition. Moreover,

the motel room was littered with clothing, which easily could --

and, as was later discovered, did -- conceal a weapon within close

reach of the occupants. 

Under circumstances such as these, especially in the

close quarters of a motel room, we are mindful of the need for

officers to safely secure the scene. "[T]he ultimate touchstone of

the Fourth Amendment is 'reasonableness,'" Brigham City v. Stuart,

547 U.S. 398, 403 (2006), and "[p]olice officers engaged in an

otherwise lawful stop must be permitted to take measures . . . they

believe reasonably necessary to protect themselves from harm, or to

safeguard the security of others," Acosta-Colon, 157 F.3d at 18. 

-19-
We find the use of handcuffs and entry into the motel room with

drawn guns to have been a reasonable precaution here.13

Nor do the other relevant aspects of Chaney's detention

support a finding of de facto arrest. Chaney was detained for

fewer than five minutes before being arrested for possession of

cocaine. We have held significantly longer periods of detention to

fall short of de facto arrest. See, e.g., Owens, 167 F.3d at 749

(noting that there is no talismanic time beyond which a Terry stop

becomes unreasonable and holding that detention of fifty minutes

was not de facto arrest); United States v. McCarthy, 77 F.3d 522,

531 (1st Cir. 1996) (holding that seventy-five-minute detention in

locked rear passenger compartment of police car was not de facto

arrest). Moreover, during the short period for which Chaney was

detained, the police officers worked diligently towards the

investigative purpose for which he was being held -- namely,

determining Chaney's identity. See Trueber, 238 F.3d at 94

(finding no de facto arrest where defendant was detained for

fifteen minutes of questions that were "brief and to the point[,]

. . . targeted at ascertaining [the defendant's] identity, his

reasons for being in the country, and whether he was involved in

the suspected illegal activity"). Finally, it should have been

reasonably clear to Chaney that Boyd, not Chaney, was the intended

We emphasize, however, that such forceful and intrusive 13

measures have no place in routine investigatory detentions. 

Acosta-Colon, 157 F.3d at 18.

-20-
target of the raid: Boyd was immediately seized and handcuffed by

the police upon their entry and was quickly led out of the motel

room. The fact that Chaney and Hebert were not similarly seized,

but instead held in the room for follow-up questioning, should have

suggested that their detention was merely incidental to Boyd's

arrest.

In light of these circumstances, we do not think that a

reasonable person standing in Chaney's shoes would understand that

he was subject to anything other than "a brief period of detention

at the scene while the police sought by means of a moderate number

of questions to determine his identity and to obtain information

confirming or dispelling their suspicions." Id., 238 F.3d at 93

(quoting United States v. Streifel, 781 F.2d 953, 962 (1st Cir.

1986)). Accordingly, we find no error in the district court's

conclusion that Chaney's detention did not constitute a de facto

arrest warranting the suppression of evidence.

III.

Having closely reviewed the record, we are persuaded that

the district court did not err in declining to suppress evidence

seized from Chaney during the November 30, 2005 raid. The district

court's judgment is therefore affirmed.

So ordered.

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