FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MASSACHUSETTS [Hon. Denise J. Casper, U.S. District Judge]
B. Brennan, with whom Brennan & Associates was on brief,
John-Alex Romano, Attorney, Criminal Division, Appellate
Section, U.S. Department of Justice, with whom Carmen M.
Ortiz, United States Attorney, Leah B. Foley, Assistant
United States Attorney, Leslie R. Caldwell, Assistant
Attorney General, and Sung-Hee Suh, Deputy Assistant Attorney
General, were on brief, for appellee.
Lynch, Thompson, and Barron, Circuit Judges.
THOMPSON, Circuit Judge.
H. Dion moved to suppress evidence taken from a warrantless
search of his truck. After the district judge denied that
motion and his subsequent motion for reconsideration, Dion
conditionally pled guilty, reserving his right to challenge
the rulings on appeal. We affirm.
our usual practice, we take the facts from the district
court's decision and from the suppression hearing,
presenting them in the light most compatible with the
district court's ruling. See, e.g., United
States v. McGregor, 650 F.3d 813, 816
(1st Cir. 2011). Given the importance of certain facts to our
analysis, we ask the reader to bear with us as we wade
through the minutiae.
Cross-Country Road Trip Interrupted
18, 2013, on Interstate 70 in Kansas, Officer Nicholas Blake
("Blake"), of the Police Department of Junction
City, Kansas, pulled seventy-eight-year-old Dion over for
speeding. Blake, a ten-year veteran of the Department, is a
canine handler whose job, in part, is to detect illegal
narcotics through traffic stops. After observing a trio of
speeding vehicles - two cars and a pickup truck - Blake
clocked a reading of 79 mph, then 80 mph in the 75-mph zone.
Blake explained that the radar provides the speed of the
largest and fastest target, meaning that of the three
vehicles, the radar had latched onto the bigger pickup truck.
So he pursued the truck and pulled it over.
approached the stopped pickup truck from the passenger side,
Blake observed that the truck sported Colorado plates and
tinted windows on the cap of the truck's bed. He informed
Dion (the driver and the car's only occupant) that he had
been traveling over the speed limit. Dion responded that he
had been following traffic, then, as requested by Blake,
produced his Arizona driver's license. Blake posed a few
questions, prompting Dion to explain that he was coming from
Yardley, Pennsylvania, where he had met with his certified
public accountant ("CPA"), and now was returning
home to Tucson, Arizona.
right along, Blake informed Dion that he planned to issue him
a warning citation for speeding, and he asked Dion to get out
of the truck and sit in the front seat of the police cruiser
with him - this, Blake explained, was his normal procedure.
As they made their way back to Blake's cruiser, Blake
asked whether Dion had any weapons, and Dion answered he did
not. During the walk to the cruiser, Blake peered into the
back of the truck, through the tinted window of the truck
cap. Dion, noticing this, offered to let the officer look in
his truck. Blake found this "odd"
and "suspicious" - based on his experience with
"the innocent motoring public, " it was not normal
the police cruiser they went. Blake asked Dion about what he
did for a living, and Dion explained that he was retired and
did not worry about money. Before Blake started to run
Dion's information (driver's license, criminal
history, registration information) through dispatch, Blake
began preparing the warning citation. During this time, Blake
followed up on Dion's travel plans, listening with
interest to the specifics of Dion's trek to and from his
CPA's office in Pennsylvania, what he did while there,
and why he made the journey. Thinking it strange that Dion,
who lived in Tucson, Arizona, would travel to Pennsylvania to
see a CPA, he asked Dion whether there are CPAs in his
hometown. And because Yardley, Pennsylvania was unfamiliar to
Blake, he looked it up on Google Maps to check out the most
likely route of travel between that town and Tucson. Based on
his Google search, Blake testified the travel route "was
off, " and "the reasoning for [Dion's] travel
seemed odd to [Blake]." Blake was also mindful that the
stretch of Interstate 70 upon which they sat was a known
drug-trafficking corridor. And all the while, throughout the
encounter, Blake observed Dion to be "extremely
nervous" (he could see Dion's "carotid artery
pounding, " and he also observed Dion's "pulse
in the area of his stomach underneath his shirt"), and
this nervousness never abated.
moments later, Dion asked Blake about the code he used while
talking with dispatch, and Blake explained he was using
military shorthand, prompting a conversation about
Blake's prior military service. Blake asked Dion whether
he had a criminal record, and Dion offered that he had been
arrested "for all kinds of things." By way of
explanation, Dion told Blake that he had been arrested for
marijuana about twenty-five years ago. Blake sought more
information about the charges against Dion, and Dion
explained that the charges were based on possession, telling
Blake he could check his record to confirm as much.
point, Blake reiterated to Dion that he planned to issue only
a warning. A conversation about the rules of the road ensued:
the two men chatted about Dion being stopped for speeding,
and Dion's misguided assumption that following the flow
of traffic was fine, regardless of speed. In an effort to
understand Dion's travel "story, " Blake segued
back into getting information about Dion's journey and
also delved further into Dion's income source - Dion
informed Blake that his income derived from social security,
his pension, and owning certain real estate properties. Dion
added, he owns property in Arizona, Colorado, and
Blake directed Dion's attention to Blake's marijuana
computer screen saver, explaining that Blake was looking for
"that" (i.e., drugs or contraband). In response,
Dion again offered to let Blake search his truck ("You
can look in my truck"), then said it again, ("You
can look in my truck. You want to look in my truck?").
Blake wanted to complete his collection and review of
Dion's information, but accepted the offer. In a brief
lull, Dion freely gestured towards the computer screen and
said "that" (the picture of marijuana) was
"twenty-five years ago" - and once again told Blake
he could check his truck, despite it being a "losing
proposition" (Dion's words).
after this exchange, Blake hit pause on his citation drafting
and called the El Paso Intelligence Center, identifying
himself and providing Dion's full name, date of birth,
the location of the stop, and the fact that the stop was for
speeding. It was during this call that Blake heard from
dispatch - the information provided by dispatch confirmed
that Dion did indeed have a criminal record including charges
related to both marijuana and cocaine. Still on the line, the
Intelligence Center reported that Dion had been arrested not
only for possession of a large quantity of drugs, as Dion had
told him, but also for drug trafficking, and once was
involved in a cash seizure. Blake testified that Dion's
"drug trafficking history, which he obviously lied
about, " contributed to Blake's rising suspicions.
asked what Blake had been searching, so Blake answered that
he had done an interstate criminal record check. Eventually,
Blake received information confirming that Dion's license
and registration were legitimate, so Blake radioed dispatch
to get a case number for the ticket he was writing up. Blake
reminded Dion he would be issuing a warning only and no fine
would be levied, then gave Dion back his paperwork. Dion
quipped, "That's all I get?" and joked that he
should get "lunch money." Blake interjected that
the stop was over - Dion was "no longer being detained
for speeding" - but added that Dion was "more than
welcome to" stick around and talk if he wanted to.
to Hit the Road?
wanting to chat, Dion stayed in the cruiser and continued
bantering with Blake. Dion freely observed that he
"could have shut [Blake] off at the very beginning,
" asked if he was under arrest, and refused to answer
Blake's questions. He mused: "I used to be in the
business" and "did time for marijuana." He
continued, distinguishing dangerous drugs from the marijuana
on Blake's screen saver. Blake told Dion he searches for
travelers who are "hauling" drugs. The conversation
continued, tackling the topic of the legalization of
then, once more, Dion offered Blake a look inside the truck.
Dion said "sure" when Blake pressed for
confirmation that he had permission to search the truck. Dion
insisted he was "clean, " and reminded Blake that
he was "out of the business, " and Blake stated he
would love to look in the truck if Dion would let him. Dion
again agreed, but not without noting that, "normally,
[he] would bust [Blake's] balls like [Blake was] busting
[Dion's], " but declined to do so in a showing of
appreciation for Blake's military service.
they got out of the cruiser, they went to the truck and Dion
opened the window on the upper part of the back of the truck.
Blake, with Dion's permission, opened the tailgate,
observing right off the bat deteriorating boxes, road
atlases, and a refrigerator - to use Blake's word,
"junk." But, according to Blake and his experience,
this was not just any junk: it was what he called a
"cover load, " or a bunch of items deliberately
piled up to disguise contraband.
Blake checked the back right wheel area, he again surveyed
the articles in the truck bed and asked Dion where the truck
and its contents were coming from. Boston, answered Dion.
Blake testified he found it odd that the materials came from
Boston: Dion had mentioned having a residence in
Massachusetts, but never indicated he had gone to Boston as
part of this trip. Blake sought and got Dion's permission
to take things out of the truck so he could look around.
Blake began combing through the pile of stuff, telling Dion
that another officer was on his wayand then asking again whether
there were any weapons. With the then-recent Boston Marathon
bombing in mind, Dion joked to Blake that he had a backpack
with some bombs in it - he quickly thought better of it and
clarified that he was not serious.
County Deputy Captain Coffman ("Coffman") then
arrived. Blake filled him in on the information he had
received about Dion and his interaction with Dion to that
point. Blake resumed his removal of items from the truck
while Dion and Coffman looked on.
grew antsy and told the officers "I'm trying to make
time." Blake replied, "The longer I stand here and
talk to you about it, the longer it's going to
take." And Blake told Dion he wanted to continue looking
and would return everything to its rightful place when he was
done. Dion said, "I thought I was being nice giving you
permission." At that point, Blake told Coffman that Dion
revoked his consent, and both stopped searching the truck.
When Blake returned to where Dion was standing, Dion told him
he wanted to head out. Blake told Dion if he wanted to get a
move on, "that's fine, " but "is it ok if
I run my dog [who had been sitting in the cruiser's
backseat] on the truck?" Dion said, "Yeah."
and his K-9 took a lap around the truck, during which the K-9
detected the odor of narcotics at the driver's side front
wheel and front of the bed of the truck behind the cab.
Specifically, the dog indicated (he had a change in behavior)
to those locations, but did not alert (he did not bite, bark,
or scratch) - the difference being that the dog had detected
the odor, but not the source. Blake and his dog looped back
towards the cruiser, and Blake reported to Dion, "He
smells dope, bro." Blake asked Dion whether he had any
cocaine, heroin, ecstasy, or marijuana, and Dion quickly
answered "No" as to each. Dion paused and faltered
when Blake asked whether Dion had large amounts of U.S.
currency in the truck - he said, "Pardon me?"
before uttering a few unintelligible words, then said he had
about $6, 000.
point, another officer had joined Blake and Coffman, and they
climbed into the truck to continue the search. Their search
led them to a number of FedEx boxes containing what amounted
to almost $830, 000. Blake testified, "[b]ased off of
everything that had come up to that point, [he] believed that
[the money] was contraband, either used as a direct source or
derivative from the sale of narcotics or used to fund or buy
drugs or some type of contraband or criminal activity or
addition to the cash, the cops found a
"Tucson-Boston" trip to-do list/checklist, a list
of state toll booths accepting Fast Lane payment, a
spreadsheet containing business names and contacts, and
handwritten and type-printed trip and mileage logs with stop
locations, dates, times, gas totals and miles traveled, and
an older computer printout for earlier trips. They also
unearthed a Garmin GPS showing Dion's June 2, 2013
arrival in Boston and travel to a self-storage center in
North Reading, Massachusetts, on June 3 and 6, 2013.
was arrested and the cash was seized. The record is not
crystal clear as to what he was charged with at that time,
but for our purposes on appeal, it does not matter; the
Kansas officers sent their investigative findings to
authorities in Massachusetts, which led to those authorities
looking into Dion and getting a search warrant for Dion's
storage unit in Massachusetts. There, agents found 160 pounds
of marijuana, drug ledgers, and $11 million in cash.
in Kansas ...