US v. Ramdihall

Filing

OPINION issued by Sandra L. Lynch, Appellate Judge; Rogeriee Thompson, Appellate Judge and David J. Barron, Appellate Judge. Published. [15-1841]

Case: 15-1841

Document: 00117156422

Page: 1

Date Filed: 05/18/2017

Entry ID: 6093070

United States Court of Appeals
For the First Circuit
No. 15-1841
UNITED STATES OF AMERICA,
Appellee,
v.
GYADEEN P. RAMDIHALL,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
Before
Lynch, Thompson, and Barron,
Circuit Judges.
Angela G. Lehman for appellant.
Renée M. Bunker, Assistant United States Attorney, with whom
Thomas E. Delahanty II, United States Attorney, was on brief, for
appellee.

May 18, 2017

Case: 15-1841

Document: 00117156422

Page: 2

BARRON, Circuit Judge.
conviction

for

conspiracy

to

Date Filed: 05/18/2017

Entry ID: 6093070

Gyadeen P. Ramdihall appeals his
commit

access-device

fraud

in

violation of 18 U.S.C. § 1029(a)(1), (a)(3), and (b)(2), and 18
U.S.C. § 371. On appeal, Ramdihall challenges the District Court's
denial of his pretrial motion to suppress evidence.

We affirm.

I.
Ramdihall,

along

with

his

co-defendant,

Jervis

A.

Hillaire, was indicted in federal court in the District of Maine
on February 25, 2014, for conspiracy to possess and use counterfeit
access devices with intent to defraud, as well as for five related
counts. See 18 U.S.C. § 1029(a)(1), (a)(3), and (b)(2); id. § 371.
Before their trial on those counts in federal court, Hillaire and
Ramdihall submitted motions to the District Court to suppress
evidence and statements that had been obtained in the previous
months in connection with three traffic stops: a September 6, 2013
stop in Kittery, Maine; an October 10, 2013 stop in Ohio; and a
January 24, 2014 stop in Biddeford, Maine.
After a two-day suppression hearing, the District Court
issued an oral order denying the motions to suppress.

Ramdihall

then conditionally pled guilty to conspiracy to possess and use
counterfeit access devices in violation of 18 U.S.C. § 1029(a)(1)
and (a)(3), preserving his right to challenge the District Court’s

- 2 -

Case: 15-1841

Document: 00117156422

Page: 3

ruling on his motion to suppress.1

Date Filed: 05/18/2017

Entry ID: 6093070

He was sentenced to 10 months'

imprisonment and three years' supervised release.

He was also

ordered to pay $17,987.56 in restitution.
On appeal, Ramdihall challenges the District Court's
denial of his motion to suppress in connection with any evidence
and statements obtained from only two of the stops: the September
6, 2013 stop in Kittery, Maine, and the October 10, 2013 stop in
Ohio.

We address his challenges concerning each stop in turn.
II.
We begin with Ramdihall's challenge to the denial of his

motion to suppress
Kittery, Maine.

concerning the

September 6, 2013

stop in

Ramdihall contends that the police, in the course

of this encounter, effected a seizure within the meaning of the
Fourth

Amendment,

even

though

the

police

constitutionally required basis for doing so.

lacked

the

Accordingly, he

contends that the fruits of that unlawful seizure, including
evidence obtained from the search of the trunk of the vehicle he
was driving, must be suppressed.
There is no dispute that a seizure did occur at some
point.

Nor

is

there

any

dispute

that,

in

light

of

the

investigative nature of that seizure, the government could effect

Hillaire also conditionally pled guilty to conspiracy to
possess and use counterfeit devices in violation of 18 U.S.C.
§ 1029(a)(1) and (a)(3).
1

- 3 -

Case: 15-1841

Document: 00117156422

Page: 4

Date Filed: 05/18/2017

Entry ID: 6093070

it so long as the government had reasonable suspicion that criminal
activity was afoot.
(holding

See Terry v. Ohio, 392 U.S. 1, 21-22 (1968)

warrantless

investigative

stops

constitutionally

permissible where law enforcement officer can "point to specific
and

articulable

facts

which,

taken

together

with

rational

inferences from those facts, reasonably warrant that intrusion");
United States v. Brignoni-Ponce, 422 U.S. 873, 880-81 (1975)
(extending Terry to vehicle searches).

So, the key questions are

whether the police had such suspicion at the time of the initial
seizure and whether the police continued to have a lawful basis
for effecting the seizure as it persisted.

For, if the police

did, then the seizure was lawful and there would be no illegal
fruits to suppress.
We

start

by

describing

the

facts

relevant

to

the

suppression ruling at some length, taking them from the District
Court's uncontested findings and the officers' testimony from the
suppression hearing.

See United States v. Campa, 234 F.3d 733,

737 (1st Cir. 2000) (explaining that we "uphold a district court's
decision to deny a suppression motion if the decision is supported
by any reasonable view of the evidence").

We then consider the

basis for the initial seizure, before turning to consider the basis
for it as it continued. Finally, we address Ramdihall's additional
contention that, even if the seizure was lawful, the District Court
erred in refusing to suppress the evidence obtained from the search

- 4 -

Case: 15-1841

Document: 00117156422

Page: 5

Date Filed: 05/18/2017

Entry ID: 6093070

of the car's trunk, as Ramdihall contends that the District Court
erred in concluding that Ramdihall voluntarily consented to that
search.
A.
The facts concerning the Kittery traffic stop are as
follows.

At approximately 1:30 a.m. on September 6, 2013, John

Brosnihan, a patrol officer for the Kittery Police Department, was
sitting in a parked, marked police car near a 7-Eleven in Kittery,
when a 7-Eleven employee approached.

The employee told Brosnihan

that he was concerned about people in the 7-Eleven who were buying
thousands of dollars' worth of gift cards with other gift cards.
The employee identified the car in the parking lot that belonged
to the people buying the gift cards.
In response, Brosnihan contacted police dispatch and
requested that dispatch run the plate number of that car.

He then

approached the passenger's side of the car, using his flashlight
to look inside.

Inside the car were Ramdihall, in the driver's

seat, and Hillaire, in the passenger's seat.

A second officer

arrived on the scene shortly thereafter.
Brosnihan asked Hillaire if a woman whom Brosnihan could
see inside the 7-Eleven and whom he pointed out to Hillaire was
with

Hillaire.

Hillaire

said

that

the

woman

was

with

him.

Brosnihan then asked if Hillaire knew what the woman was doing
inside the 7-Eleven, and Hillaire said he did not know.

- 5 -

Brosnihan

Case: 15-1841

Document: 00117156422

Page: 6

Date Filed: 05/18/2017

Entry ID: 6093070

then asked, more specifically, if Hillaire "knew anything about
gift cards, buying gift cards with gift cards," and Hillaire denied
that he knew anything about using gift cards to buy gift cards.
Brosnihan saw some electronic devices in boxes in the car located
at Hillaire's feet.

Brosnihan then went around the car and

approached Ramdihall, who was in the driver's seat, and asked what
he was doing at the 7-Eleven.
Ramdihall said that he had stopped to get gas.

He could

not explain, however, why he had not yet gotten gas and why the
car was not stopped at a gas pump.

Ramdihall, too, denied knowing

anything about the gift cards when Brosnihan asked him about them.
Brosnihan

then

Ramdihall and Hillaire.
license.

asked

for

identification

from

both

Ramdihall produced a New York driver's

Hillaire produced a "California ID."
Brosnihan asked to whom the car -- which had Tennessee

plates -- belonged.

Hillaire stated that the car was a rental

that he had received as a birthday gift from his cousin.
also stated that he was a "co-renter."2

Hillaire

At some point, Brosnihan

saw the rental agreement and learned that neither Hillaire's name
At the suppression hearing, Ramdihall submitted an affidavit
stating that the individual whose name actually was on the rental
agreement -- Nadege Butler -- had given her brother permission to
use the car, and that with permission from both Butler and her
brother, Ramdihall drove it to Maine.
The District Court gave
"very little credence" to this explanation, in light of what the
District Court found was the inconsistent story Hillaire provided
during the stop.
2

- 6 -

Case: 15-1841

Document: 00117156422

Page: 7

Date Filed: 05/18/2017

nor Ramdihall's name was on the rental agreement.

Entry ID: 6093070

The record is

not clear, however, as to precisely when Brosnihan saw the rental
agreement.
When the woman inside the 7-Eleven -- later identified
as Vegilia O'Connor -- exited to return to the car, Brosnihan
stopped her to ask about the gift card purchases.

O'Connor

explained to Brosnihan that she had received the gift cards that
she was using to purchase gift cards from a friend so that she
could go school shopping for her kids, and that she was using the
gift cards to buy new gift cards because the ones that she had
sometimes did not work.

She also stated that she had left New

York around 4:00 p.m. that same day to travel to Maine to shop.
However, she could not explain why she had left so late that she
would arrive in Maine at a time when stores were closed.

She said

they had been shopping at "some outlets" that she could not name,
and she said that those outlets were about 30 minutes away.
Brosnihan

then

questioned

separately, outside of the car.

Hillaire

and

Ramdihall

Both said they were in Maine to

shop, but neither could name the stores at which they had been
shopping.

Hillaire said they had shopped for an Apple laptop in

Brunswick, Maine, which he said was a 40-minute drive from Kittery.
Ramdihall could not say where they had shopped, but he said the
place they had shopped was about 15 minutes away from Kittery.

- 7 -

Case: 15-1841

Document: 00117156422

Page: 8

Date Filed: 05/18/2017

Entry ID: 6093070

Then, at 1:45 a.m., Brosnihan's supervisor, Sergeant
Gary Eaton, arrived on the scene.

About ten minutes later, at

1:55 a.m., a detective was called to the scene, due to the
officers' unfamiliarity with how to handle an investigation into
possible fraud, which Brosnihan had begun to suspect might be afoot
in consequence of the evidence concerning gift card purchases.
that point, Eaton

made the internal

decision that

At

the three

individuals would not be allowed to leave until the detective that
had been called had arrived.
The officers then asked each individual about what, if
anything, was in the trunk of the car.
was nothing in the trunk.

Originally, each said there

Later, Hillaire and O'Connor each said

there was a laptop computer in the trunk, but each said that it
belonged to the other.

O'Connor overheard Hillaire tell Brosnihan

that the laptop computer belonged to her, and interjected to deny
that it belonged to her.
Brosnihan then asked Ramdihall again what was in the
trunk. Ramdihall said he did not know.

According to Brosnihan's

testimony at the suppression hearing, Brosnihan asked, "[D]o you
mind if I take a look?," and Ramdihall responded, "[B]e my guest."
Brosnihan then said, "[A]re you sure?," to which Ramdihall again
responded, "[B]e my guest."
Inside the trunk was, among other things, "a lot of
computer equipment," including MacBooks, MacBook Pros, iPads, and

- 8 -

Case: 15-1841

Document: 00117156422

iPad Minis.

Page: 9

Date Filed: 05/18/2017

Entry ID: 6093070

Hillaire said that one of the MacBook computers

belonged to him.

When Brosnihan asked to see a receipt for the

computer, Hillaire initially said he had an e-mail receipt on his
cell phone but did not want to show it to Brosnihan.
Hillaire claimed to have thrown away the receipt.

Later,

Brosnihan asked

the three individuals multiple times to whom the other equipment
belonged.

No one claimed ownership of any of the other items.

At

that point, Brosnihan seized the items and then let the three
individuals go.
Throughout the encounter, other law enforcement officers
came and went as well.

The District Court found, and the parties

do not contest, that there were three police officers on the scene
as of 1:45 a.m., two more by 2:32 a.m., and six in total by 2:42
a.m. The District Court also found that, throughout the encounter,
"[t]here were never any handcuffs, no drawn weapons, no aggressive
questioning, no physical restraint."
B.
With respect to when the seizure occurred and what the
basis for it was at the time that it occurred, the District Court
found as follows.

It determined that, "giv[ing] the defendants

the benefit of the doubt," the encounter -- which had begun at
approximately 1:30 a.m. and lasted nearly until 3 a.m. -- became

- 9 -

Case: 15-1841

Document: 00117156422

Page: 10

Date Filed: 05/18/2017

a seizure at approximately 1:55 a.m.3

Entry ID: 6093070

The District Court also

found that, by 1:55 a.m., the police had reasonable suspicion to
believe that criminal activity was afoot and thus to effect the
seizure in accord with the Constitution.

The District Court based

this conclusion on the following facts:


"the store clerk had told Brosnihan about his and the other
clerk's concern about a group of people from a car with
Tennessee plates using gift cards to purchase other gift cards
involving thousands of dollars at the 7-Eleven in the wee
hours of the morning";



the car occupants were unable to "give plausible or consistent
explanations during the initial encounter";



"Ramdihall said they were there to buy gas, but he had no
explanation [as] to why he parked in front of the store rather
than at the gas pumps";



"Hillaire said he was a co-renter of the car, but his name
was not on the rental agreement, nor was Ramdihall's";

By that time, there were three officers at the scene. That
was also the time when Eaton called a detective and made the
internal decision not to let the defendants leave until the
detective arrived, though, as the District Court correctly noted,
Eaton's subjective, internal decision not to let the defendants
leave until the detective arrived is not determinative, as the
critical question is whether the individual being questioned would
reasonably feel free to end the encounter. Florida v. Bostick,
501 U.S. 429, 434 (1991).
3

- 10 -

Case: 15-1841



Document: 00117156422

Page: 11

Date Filed: 05/18/2017

Entry ID: 6093070

"[s]ome of them couldn't name the stores in which they shopped
or where they were located";



"they gave different accounts of the distance"; and



their explanation "of coming to Maine to shop at that time of
night" was dubious.
We review the District Court's findings of fact and

credibility determinations for clear error. United States v. TiruPlaza, 766 F.3d 111, 114 (1st Cir. 2014).

"Under this clear-error

review, we grant significant deference to the district court,
overturning its findings only if, after a full review of the
record, we possess a definite and firm conviction that a mistake
was made."

Id. at 115 (citation omitted).

We review de novo the

District Court's legal conclusions, including its determinations
as to whether there was reasonable suspicion and its ultimate
decision to grant or deny the motion to suppress.
Ramdihall

argues

that

the

District

Id.
Court

finding that the seizure did not occur until 1:55 a.m.

erred

in

He contends

that the record shows that the seizure actually occurred at the
time of Brosnihan's initial encounter with Ramdihall and Hillaire
at approximately 1:30 a.m. and that the seizure then persisted up
to and past 1:55 a.m., because, upon initially encountering the
two men while they were seated in the parked car, "Brosnihan took
Ramdihall's driver's license and the reasonable inference is that

- 11 -

Case: 15-1841

Document: 00117156422

Page: 12

Date Filed: 05/18/2017

Entry ID: 6093070

it was in police custody at least until [the detective], who was
the last to arrive at 2:30, took pictures of the license."4
Ramdihall
finding

that

it

does

was

not

challenge

"unremarkable"

the

that

District

Brosnihan

Court's
inspected

Ramdihall's driver's license during the initial encounter and that
such inspection did not itself transform the encounter into a
seizure.

See United States v. Himes, 25 F. App'x 727, 730 (10th

Cir. 2001) (finding no seizure where police officer "got the
license, ran a check on the license, asked [the defendant] to get
out of the Jeep, and then returned the license" because the
officer's possession of the license was "sufficiently brief").
Rather, he appears to contend only that the initial, unremarkable,
inspection of the license was transformed into a seizure at some
point prior to 1:55 a.m. but after the initial inspection because,
after Brosnihan reviewed the license, he then retained it and did
not return it until sometime after 2:30 a.m.

And Ramdihall argues

Ramdihall also argues that the officers did not have
reasonable and articulable suspicion at 1:55 a.m. -- the time that
the District Court found the seizure occurred -- because Brosnihan
and the other officers had not actually observed Ramdihall or his
associates do anything unlawful.
But, our case law does not
require that an officer observe actual unlawful activity in order
to effect a seizure. He need only have reasonable suspicion that
criminal activity may be afoot. Thus, "we have upheld Terry stops
where the combination of 'innocuous' facts culminates in
reasonable suspicion." United States v. Wright, 582 F.3d 199, 212
(1st Cir. 2009).
Indeed, in Terry itself, the detention was
occasioned by an officer's observation of "unusual," not unlawful,
conduct. 392 U.S. at 30. Thus, insofar as the seizure did occur
at 1:55 a.m., Ramdihall's challenge fails.
4

- 12 -

Case: 15-1841

Document: 00117156422

Page: 13

Date Filed: 05/18/2017

Entry ID: 6093070

that we may reasonably infer that the license was not returned
until 2:30 a.m. because it was at that time that, the record shows,
police made a copy of the license.
But Ramdihall never argued below that the license was
retained at all, let alone until 2:30 a.m.

Assuming his argument

about the seizure of his license has not been waived -- and the
government makes no argument that it has been -- there must still
exist a basis in the record for concluding that the license was
retained.

But, there is no finding to that effect by the District

Court, as Ramdihall never raised the issue he now presents to us.
Nor is there any finding about when the license was returned or
the circumstances regarding its possible retention.

And, in the

absence of express findings by the District Court, we must view
the record evidence in the light most favorable to the District
Court's ruling.

Tiru-Plaza, 766 F.3d at 117 n.10.

We therefore

see no basis on this record for concluding that the license was
retained by police from the time of the initial encounter until
past 1:55 a.m.

Thus, even if we were to conclude that the extended

retention

a

of

license

may

suffice

to

effect

a

seizure, 5

Ramdihall's contention would fail to persuade.

See United States v. Miller, 589 F.2d 1117, 1127 (1st Cir.
1978) ("Appellant could not lawfully operate his vehicle without
[his license and registration]. He was not free to go."); see also
United States v. Weaver, 282 F.3d 302, 311 (4th Cir. 2002)
(retention of a driver's license during a traffic stop may create
5

- 13 -

Case: 15-1841

Document: 00117156422

Page: 14

Date Filed: 05/18/2017

Entry ID: 6093070

Ramdihall does attempt to counter the District Court's
finding about when the seizure began by arguing that "Brosnihan
testified that early in the encounter he would not have allowed
the men to leave."

But while Brosnihan did testify that he had

decided, by the end of the encounter, that Ramdihall was not free
to leave without permission, Brosnihan said nothing about making
that decision "early in the encounter," as Ramdihall contends.
Ramdihall also attempts to support his argument that the
seizure occurred prior to 1:55 a.m. by noting, "Eaton testified
that he decided the men would not be allowed to leave until the
detective arrived." But, the fact that the record shows that Eaton
had made that decision at 1:55 a.m. obviously does not help
Ramdihall show that a seizure had taken place before that time.
Finally, Ramdihall appears to contend that the District
Court erred in finding that the seizure did not occur until 1:55
a.m. because the number of police officers present over the course
of the encounter converted it into a seizure by creating "a
coercive and intimidating situation" prior to that time. Ramdihall
notes in this regard that over the course of the entire encounter,
six officers were present, and that "[t]he number and position of
officers have been recognized as important considerations for
a seizure); United States v. Chan-Jimenez, 125 F.3d 1324, 1326
(9th Cir. 1997) (same); United States v. Elliott, 107 F.3d 810,
814 (10th Cir. 1997) (same); United States v. Thompson, 712 F.2d
1356, 1359 (11th Cir. 1983) (same).

- 14 -

Case: 15-1841

Document: 00117156422

Page: 15

Date Filed: 05/18/2017

Entry ID: 6093070

determining whether an atmosphere of restraint can be said to have
existed."

United States v. Berryman, 717 F.2d 651, 655 (1st Cir.

1983), rev'd en banc, 717 F.2d 650 (1st Cir. 1983).

But, the fact

that, over the course of the entire encounter (which lasted until
well after 3 a.m.), six officers were present provides no basis
for finding that the District Court erred in finding that the
seizure did not occur until 1:55 a.m.
Mendenhall,

446

U.S.

threatening

presence

544,
of

554

several

(1980)

See United States v.
(recognizing

officers"

"might

that

"the

indicate

a

seizure" but finding no seizure where two federal law enforcement
agents approached and questioned the defendant).6
C.
Ramdihall next turns to his fallback argument that, even
if the police had reasonable suspicion sufficient to justify the
investigative

stop

as

of

1:55

a.m.,

the

Kittery

stop

was

unreasonably long and thus became an unconstitutional seizure as
it progressed.

The District Court found that, "although the stop

here was lengthy, . . . it was not too long under all the
circumstances."

The District Court reached this conclusion based

on its finding that the length of the stop was proportional to the
law enforcement purposes of the stop and the time reasonably needed
Ramdihall seems to make the additional argument that he and
Hillaire were targeted because they were black men. But, Ramdihall
makes this argument for the first time on appeal, and so must show
plain error. And he makes no developed argument in this regard.
6

- 15 -

Case: 15-1841

Document: 00117156422

Page: 16

to effectuate those purposes.

Date Filed: 05/18/2017

Entry ID: 6093070

We review the District Court's

conclusion de novo, and its factual findings for clear error.
Tiru-Plaza, 766 F.3d at 114-15.
As the Supreme Court has explained, "obviously, if an
investigative stop continues indefinitely, at some point it can no
longer be justified as an investigative stop."
Sharpe, 470 U.S. 675, 685 (1985).

United States v.

And, at that point, the

government can no longer justify the seizure merely with reasonable
suspicion that criminal activity is afoot.

Nevertheless, "our

cases impose no rigid time limitation on Terry stops."

Id.; see

also United States v. Quinn, 815 F.2d 153, 157 (1st Cir. 1987)
("[T]here is no talismanic time beyond which any stop initially
justified on the basis of Terry becomes an unreasonable seizure
under the [F]ourth [A]mendment." (first alteration in original)
(citation omitted)). Rather, we must "consider the law enforcement
purposes to be served by the stop as well as the time reasonably
needed to effectuate those purposes."

Sharpe, 470 U.S. at 685.

The seizure here lasted for 82 minutes, from 1:55 a.m.
until Ramdihall and his associates were released at 3:17 a.m. That
amount of time is lengthy.

But, Ramdihall must show that the 82-

minute seizure was longer than reasonably needed to investigate
the possible illegal activity, as the purpose of the stop was to
permit such an investigation.

Ramdihall fails to do so.

he

District

does

not

contest

the

- 16 -

Court's

In fact,

findings

that

Case: 15-1841

Document: 00117156422

"circumstances

remained

Page: 17

murky;

Date Filed: 05/18/2017

there

were

no

Entry ID: 6093070

obvious

or

alternative ways to investigate; [and] the suspects were from away
[New York] and were leaving the state with possibly fraudulently
obtained merchandise and gift cards."
seizure

was

unreasonably

long

Thus, the argument that the

fails.

See

United

States

v.

McCarthy, 77 F.3d 522, 531 (1st Cir. 1996) (finding 75-minute Terry
stop was not "particularly unreasonable" because "[t]here is no
evidence or even an allegation of less than diligent behavior on
the part of the police," and "[t]he officers on location used a
number of different investigative techniques in their efforts to
pursue quickly any information that might have dispelled the
reasonable suspicion that initially triggered the stop").
D.
Ramdihall's final argument for suppressing the evidence
obtained from the traffic stop in Kittery is that, even if the
seizure was lawful, the District Court erred in denying the aspect
of the suppression motion that contended that Ramdihall had not
voluntarily given his consent to the search of the trunk.

We

review the District Court's voluntariness finding for clear error,
United States v. Kimball, 741 F.2d 471, 474 (1st Cir. 1984), and
we find none.
Before turning to the merits of the matter, the District
Court first found that Ramdihall had no standing to challenge the
search of the car because he was not an authorized driver on the

- 17 -

Case: 15-1841

Document: 00117156422

rental car.

Page: 18

Date Filed: 05/18/2017

Entry ID: 6093070

But we need not decide that question, because, even

if we assume that Ramdihall did have standing to challenge the
search of the car, his arguments on the merits are unavailing.
A person who is lawfully detained may still voluntarily
give consent to a search.

See United States v. Forbes, 181 F.3d

1, 6 (1st Cir. 1999) (noting that "the fact of custody alone is
never enough to demonstrate coerced consent").

In determining

whether consent was voluntarily given, we look to the totality of
circumstances, including the person's "age, education, experience,
intelligence, and knowledge of the right to withhold consent."
Id. (citation omitted).

We also consider "whether the consenting

party was advised of his or her constitutional rights and whether
permission to search was obtained by coercive means or under
inherently coercive circumstances."

Id. (citation omitted).

Here, the District Court found that the search was
consensual,

and

noted

that

"there

was

never

any

physical

constraint, no handcuffing, no display of drawn weapons; the
character of the interrogation was mild."

Ramdihall now asserts

that, in fact, "the detention was coercive and intimidating." But,
in support of that assertion, he points only to the fact that an
officer's "flashlight was directed into the car" and that, after
Brosnihan first approached the vehicle to question him, five other
officers eventually arrived as backup.

- 18 -

Case: 15-1841

Document: 00117156422

Page: 19

Date Filed: 05/18/2017

Entry ID: 6093070

The voluntariness issue turns, however, not on whether
Ramdhiall was detained, but on whether he was detained in a manner
that precluded him from freely consenting to the search.

And

Ramdihall makes no argument as to how the facts he highlights, in
light of our precedent, see, e.g., Kimball, 741 F.2d at 474, could,
in and of themselves, support such a conclusion. Thus, Ramdihall's
fallback argument fails.
III.
We turn now to Ramdihall's challenge to the denial of
his suppression motion concerning the traffic stop in Ohio.

Here,

too, we find no merit to the challenge.
A.
Again, we must begin by recounting the relevant facts,
which we take from the District Court's uncontested findings.

See

Campa, 234 F.3d at 737. On October 10, 2013, Ramdihall was driving
in a rental car on Interstate 70 in Ohio.

Hillaire was a passenger

in the vehicle. An Ohio State Highway Patrol trooper, John Martin,
pulled the car over for driving 90 miles per hour in a 70 milesper-hour zone.

When Martin asked to see Ramdihall's license and

registration, Ramdihall opened the center console and then shut it
"very quickly," during which time Martin saw "a plastic baggie"
inside.

Ramdihall told him that the bag contained tobacco.
Martin learned that the car was a rental that had been

leased by an absent third party.

- 19 -

Ramdihall was listed on the

Case: 15-1841

Document: 00117156422

Page: 20

Date Filed: 05/18/2017

rental agreement as an alternate driver.

Entry ID: 6093070

Martin also learned that

Ramdihall and Hillaire were driving to Columbus from New York.
Martin observed that there was no visible luggage and that the car
had "a very clean compartment for people on the road for an
extensive period of time."
Martin then went back to his police cruiser to write a
speeding ticket.

He also called a K-9 unit to come to the scene.

Martin then returned to Ramdihall's car to ask for Ramdihall's and
Hillaire's social security numbers.

He also asked Ramdihall to

accompany him back to the cruiser, which Ramdihall did.
In the cruiser, Ramdihall told Martin that Hillaire was
unemployed.

Ramdihall also told Martin that Ramdihall planned to

move to Columbus, was visiting to check out the area, and would be
returning to New York on Saturday or Sunday.

Martin pointed out

that the car rental would expire on Friday, and Ramdihall seemed
surprised.

Ramdihall also stated that he had "three clothes" with

him on the trip, and that Hillaire had no clothes with him but
would buy clothes as necessary in Columbus.
Martin ran Ramdihall's and Hillaire's social security
numbers.

He discovered that neither Ramdihall nor Hillaire had

any drug convictions, though Hillaire did have a criminal history.
Martin finished writing the traffic ticket at 10:40 a.m.
The K-9 officer, Ohio State Highway Patrol Trooper Shawn Milburn,
arrived six minutes later, at 10:46 a.m.

- 20 -

The dog alerted to the

Case: 15-1841

Document: 00117156422

Page: 21

presence of narcotics at 10:49 a.m.

Date Filed: 05/18/2017

Entry ID: 6093070

Between 10:46 a.m. and 10:49

a.m., both officers had smelled marijuana.

Milburn then read

Ramdihall and Hillaire their rights, as required under Miranda v.
Arizona, 384 U.S. 436 (1966).
After

reading

the

men

their

rights,

the

officers

searched the passenger compartment of the car, but did not find
any marijuana.

The officers then searched the trunk, where they

found, under the spare tire cover, a bundle of seventeen credit
cards in Hillaire's name, held together by rubber bands.

Martin

swiped the credit cards' magnetic strips through a card reader.
By doing so, he discovered that the information recorded in some
of the cards' strips did not match the numbers and expiration dates
on the front of those cards, indicating that those cars were
counterfeit.
the

center

The officers later found tobacco in the baggie in
console,

and

a

small

amount

of

marijuana

in

the

passenger's side of the car, along with rolling papers.
B.
Ramdihall does not dispute that, during this traffic
stop in Ohio, he was lawfully stopped for speeding and properly
issued a ticket. He contends instead that Martin lacked reasonable
suspicion to detain him beyond the time necessary to issue him
that ticket.

He thus contends that the seizure was unlawful

because it persisted past the time needed to issue the ticket

- 21 -

Case: 15-1841

Document: 00117156422

Page: 22

Date Filed: 05/18/2017

Entry ID: 6093070

solely in order to permit the K-9 unit to arrive and perform the
dog sniff of the car.
The Supreme Court made clear in Rodriguez v. United
States, 135 S. Ct. 1609 (2015), that, absent "the reasonable
suspicion ordinarily demanded to justify detaining an individual,"
a police officer may not prolong a traffic stop to conduct a K-9
sniff beyond the time necessary to handle the traffic violation
that justified the stop.

Id. at 1615.

Reasonable suspicion may

nonetheless develop during the course of an ordinary traffic stop
so as to justify extending the seizure beyond the time needed to
accomplish its original purpose.
this

case,

therefore,

is

Id. at 1616-17.

whether

such

The question in

reasonable

suspicion

developed.
"[T]he level of suspicion the [reasonable suspicion]
standard requires is considerably less than proof of wrongdoing by
a

preponderance

of the evidence,

necessary for probable cause."

and obviously less

than is

Navarette v. California, 134 S.

Ct. 1683, 1687 (2014) (citations omitted).

Reasonable suspicion

requires more, however, than an "inchoate and unparticularized
suspicion or 'hunch.'"
the

officer

be

able

Terry, 392 U.S. at 27.
to

articulate

"the

It requires that

specific

reasonable

inferences which he is entitled to draw from the facts in light of
his experience."

Id.

- 22 -

Case: 15-1841

Document: 00117156422

Page: 23

Date Filed: 05/18/2017

Entry ID: 6093070

Although the concept of reasonable suspicion "defies
precise definition," United States v. Espinoza, 490 F.3d 41, 46
(1st Cir. 2007) (quoting United States v. Chhien, 266 F.3d 1, 6
(1st Cir. 2001)), "some general guideposts" exist, United States
v. Pontoo, 666 F.3d 20, 27 (1st Cir. 2011). "Prominent among these
is the tenet that a finding of reasonable suspicion must be
premised upon 'a particularized and objective basis for suspecting
the particular person stopped of criminal activity."

Id. at 27-

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

particularity

requirement

ensures

that

the

suspicion

is

"grounded in specific and articulable facts," id. at 28 (quoting
Espinoza, 490 F.3d at 47), while "[t]he objectivity requirement
dictates a focus on what a reasonable law enforcement officer in
the same or similar circumstances would have thought," id.
Here, the District Court found -- and Ramdihall does not
contest -- that the dog sniff occurred six minutes after Martin
completed the traffic ticket.

And, the District Court found that

Martin had a reasonable and articulable

basis for suspicion

justifying that additional six-minute delay based on the following
combination of facts: (1) Martin's observation of the plastic
baggie in the center console; (2) the manner in which Ramdihall
"surreptitiously" opened, and then quickly closed, that center
console; (3) the fact that the vehicle was a rental and the renter
was not with the vehicle, which Martin testified was an indication

- 23 -

Case: 15-1841

Document: 00117156422

Page: 24

Date Filed: 05/18/2017

Entry ID: 6093070

of drug trafficking; (4) the fact that Ramdihall was from New York,
Hillaire

was

from

California,

and

they

offered

a

dubious

explanation for why they were en route to Columbus; (5) the
inconsistency between Ramdihall's assertion that he and Hillaire
would be in Columbus for several days and the fact that the rental
was due to expire the following day; and (6) the absence of visible
luggage in the vehicle, despite Ramdihall's assertion that he and
Hillaire had driven to Ohio from New York for a multi-day trip.
In arguing that this combination of facts does not
suffice to support a finding of reasonable suspicion, Ramdihall
challenges, for one reason or another, the probative value of a
number of the findings set forth above.

But, as we will explain,

those challenges fail because they either depend on unwarranted
challenges to the credibility findings made below or on contentions
about the lack of probative value of a particular finding when
considered only in isolation, without regard to the significance
that fact may have when considered as part of the other findings
made by the District Court.

Ramdihall also challenges a number of

facts that the District Court did not rely on in concluding that
there was reasonable suspicion, and which thus have no bearing on
whether the District Court's reasonable suspicion determination
was made in error.

His challenge as a whole therefore fails.

In reaching this conclusion, we note that we review the
District

Court's

factual

conclusions

- 24 -

and

credibility

Case: 15-1841

Document: 00117156422

Page: 25

determinations only for clear error.

Date Filed: 05/18/2017

Entry ID: 6093070

Tiru-Plaza, 766 F.3d at 114.

Under this standard, we must "grant significant deference to the
district court, overturning its findings only if, after a full
review of the record, we possess a definite and firm conviction
that a mistake was made."

Id. at 115 (citation omitted).

We note

as well that we review the District Court's legal conclusions -including the District Court's determination that the officer did
have reasonable suspicion to justify the detention -- de novo,
while still "giv[ing] appropriate weight to the inferences drawn
by the district court and the on-scene officers," id., and while
being sure to consider the totality of the circumstances, id. at
116-17.7
We begin with Ramdihall's contention that, because there
are "thousands of uses for a plastic baggie" that do not "involve
criminal activity," the evidence that a plastic baggie was present
is of no consequence.

But the District Court did not find that

the presence of a plastic baggie in and of itself supports a
finding of reasonable suspicion.

The District Court instead

In presenting his challenge to the District Court's ruling,
Ramdihall makes much of the fact that Martin testified at the
suppression hearing that he prolonged the stop to call for the K-9
unit based on a "hunch," given that a hunch alone does not create
reasonable suspicion. See Navarette, 134 S. Ct. at 1687. But the
District Court did not rely on Martin's testimony characterizing
his suspicion as a "hunch" in finding that reasonable suspicion
did exist. Rather, as we have explained, the District Court found
that there was an objective basis to form reasonable suspicion
based on the enumerated circumstances described above.
7

- 25 -

Case: 15-1841

Document: 00117156422

Page: 26

Date Filed: 05/18/2017

Entry ID: 6093070

credited Martin's testimony that, based on Martin's experience,
the manner in which Ramdihall appeared to surreptitiously conceal
the plastic baggie indicated that "there was probably some kind of
illegal narcotics in there."

Thus, the District Court found that

the presence of the plastic baggie, combined with the surreptitious
manner in which Ramdihall shielded it from view, gave rise to
reasonable suspicion when considered in light of the other evidence
that raised doubts about Ramdihall's story concerning his travel
plans.

And though the question may be close, Ramdihall does not

offer a persuasive account of why, in combination, the facts
available in the record render such a conclusion mistaken.
After all, neither Ramdihall nor Hillaire were from
Ohio, and their explanation of why they were in Columbus -- on a
multi-day trip to consider whether Ramdihall might move there -was

not

observed.

corroborated

by

the

other

circumstances

that

Martin

It is also odd that Hillaire -- who Martin learned was

unemployed and living in California -- would fly to New York for
the purpose of visiting Ohio with Ramdihall, and would bring no
clothes with him for the trip but plan, instead, to buy clothes in
Ohio.

Odd, too, is the fact that the rental was going to expire

the following day, even though the trip, by Ramdihall's account,
would not yet be over.
Moreover, Martin testified that when individuals in a
rental vehicle are transporting drugs, "most of the time, the

- 26 -

Case: 15-1841

Document: 00117156422

Page: 27

Date Filed: 05/18/2017

renter of the vehicle is never with the vehicle."
testified,

"[s]omeone

transport the drugs."

rents

[the

vehicle]

Entry ID: 6093070

Instead, Martin

and

then

others

And, here, although Ramdihall was listed as

an authorized alternate

driver of

the vehicle on

the rental

agreement, neither he nor Hillaire was the person who rented the
vehicle.

Thus, Martin concluded, the fact that the renter was not

with Ramdihall and Hillaire was "another red flag."
In addition

to these circumstances,

Martin

observed

Ramdihall surreptitiously closing the console to conceal a plastic
baggie.

Given Martin's testimony that his experience with such

matters suggested that this action by Ramdihall indicated that the
baggie contained illegal narcotics, the record, taken as a whole,
established

a

basis

for

supportably

concluding

that

criminal

activity was afoot.
Ramdihall

appears

to

contend

that

his

behavior

in

closing the console -- and thus obscuring the plastic baggie -was not, in fact, surreptitious, as he was simply checking the
center

console

documents.

for

And,

his

license,

registration,

Ramdihall also appears

and

to suggest

insurance
that the

District Court erred in crediting Martin's contrary testimony on
that point because Martin could not remember from where Ramdihall
produced his license and rental agreement.

However, our review of

the District Court's decision to credit the testimony concerning
the nature of Ramdihall's action in closing the console is for

- 27 -

Case: 15-1841

Document: 00117156422

Page: 28

Date Filed: 05/18/2017

Entry ID: 6093070

clear error. See id. at 114. And none of the points that Ramdihall
now raises gives rise to "a definite and firm conviction that a
mistake was made" in that regard.

See id. at 115.

In a separate vein, Ramdihall takes note of the District
Court's factual findings that the vehicle was unusually clean and
that it contained

no visible luggage,

and he challenges

the

reasonableness of an inference that these facts give rise to
suspicion of criminal activity.
found

that

the

vehicle

was

But, although the District Court

clean,

it

did

not

identify

the

cleanliness of the vehicle as a ground for reasonable suspicion.
Nor did it even find that the fact that there was no visible
luggage in the car constituted such a ground.

The District Court

merely listed that fact as one of several in the course of
explaining why it found that Ramdihall's professed account of his
travels was "thin or dubious."

As we see no basis for disturbing

that characterization of Ramdihall's account on this record even
apart from the absence of visible luggage, Ramdihall's focus on
that discrete aspect of the District Court's finding is misplaced.
For when the problematic nature of Ramdihall's travel story is
considered
Ramdihall

in

combination

surreptitiously

with

the

concealed

supportable
the

plastic

finding
baggie,

that
and

Martin's testimony regarding the "red flag" posed by a rental
vehicle with an absent renter, there is no basis for us to
conclude, on this record, that the District Court erred in finding

- 28 -

Case: 15-1841

Document: 00117156422

Page: 29

Date Filed: 05/18/2017

Entry ID: 6093070

that the totality of the circumstances gave rise to a reasonable
suspicion of criminal activity.
Ramdihall next objects to attributing significance to
Martin's testimony that New York, California, and Columbus, Ohio,
are each sites of drug activity and that Interstate 70 is a main
route of travel.

But, the District Court did not rely on this

part of Martin's testimony in finding reasonable suspicion.

And

Ramdihall fails to explain how the findings that the District Court
did rely upon, in combination, are insufficient to justify the
seizure's duration.
Ramdihall's next ground for challenging the denial of
the motion to suppress with respect to this stop also fails.

He

argues that the circumstances of the car rental do not constitute
grounds for suspicion.
because

he

was

listed

Specifically, Ramdihall contends that
as

an

alternate

driver

on

the

rental

agreement, he was lawfully permitted to be driving the rental car
even

without

the

renter.

He

further

emphasizes

that

his

explanation that he was not the primary renter because he did not
have a credit card was plausible.

And, he contends it was not

suspicious that the rental was set to expire the next day, because
he reacted with "honest surprise" to learning that the rental was
set to expire and because he could have easily extended the rental
period.

But, the circumstances of the car's rental must be

considered as a part of the findings as a whole, including the

- 29 -

Case: 15-1841

Document: 00117156422

Page: 30

Date Filed: 05/18/2017

Entry ID: 6093070

credited testimony regarding the surreptitious closing of the
console to obscure the plastic baggie.

When so considered, the

circumstances of the car's rental do support the District Court's
finding of reasonable suspicion.
Ramdihall does also contend that the real reason Martin
prolonged the traffic stop for a K-9 sniff was because of racial
bias.

Ramdihall points to no evidence in the record to support

this claim, however.

And, in any case, while "the Constitution

prohibits selective enforcement of the law based on considerations
such as race[,] . . . the constitutional basis for objecting to
intentionally discriminatory application of laws is the Equal
Protection Clause, not the Fourth Amendment."
States, 517 U.S. 806, 813 (1996).

Whren v. United

Thus, this argument, too, must

fail.
Similarly unavailing is Ramdihall's apparent argument
that the circumstances should have indicated to Martin and to the
District Court that criminal activity was not afoot.

Ramdihall

emphasizes in this regard that neither he nor Hillaire acted in a
nervous manner, that neither had any prior drug history, and that
they were able to produce valid identification and a valid rental
agreement.

Ramdihall also contends that he proffered a plausible

explanation of what he was doing in Ohio with Hillaire, arguing
that it is "perfectly normal" for someone of Ramdihall's age to
seek

to

move

away

from

his

family,

- 30 -

that

the

assertion

that

Case: 15-1841

Document: 00117156422

Ramdihall

drove

Page: 31

commercial

Date Filed: 05/18/2017

trucks

was

plausible

Entry ID: 6093070

because

no

commercial license is needed for 26-foot trucks, and that he was
able to answer Martin's questions about Hillaire, proving that
they were in fact friends.
circumstances,

and

But, in light of the totality of other

especially

the

finding

regarding

the

surreptitious closing of the center console to conceal the plastic
baggie in combination with the inconsistencies in the explanations
regarding Ramdihall's travel plans, the fact that the District
Court could have concluded that no criminal activity was afoot
does not render the District Court's inference to the contrary
clear error.

See United States v. Arthur, 764 F.3d 92, 96 (1st

Cir. 2014) ("[A]bsent an error of law, we will uphold a refusal to
suppress evidence as long as the refusal is supported by some
reasonable view of the record." (citation omitted)).
Finally, Ramdihall emphasizes that Milburn's testimony
that the officers found marijuana hidden over the car's visor on
the passenger side conflicted with Martin's testimony that the
officers found the marijuana over the visor on the driver's side.
In addition, Ramdihall contends that, prior to the search, Milburn
stated that he smelled

"raw marijuana,"

but that

the search

unearthed only "processed, not raw, marijuana."
But the District Court did not rely on testimony about
where the marijuana was found or what Milburn smelled in concluding
that there was reasonable suspicion sufficient to justify Martin

- 31 -

Case: 15-1841

Document: 00117156422

Page: 32

Date Filed: 05/18/2017

calling the K-9 unit in the first place.

Entry ID: 6093070

And so this conflict in

the testimony does not itself undermine the District Court's
ruling.

Moreover, insofar as Ramdihall means to cast doubt on

Martin's credibility, and thus perhaps to call in to question the
District Court's crediting of Martin's testimony regarding the
manner in which Ramdihall closed the console, we defer to the
District Court's credibility determination in the absence of any
"definite and firm conviction that a mistake was made."8

See Tiru-

Plaza, 766 F.3d at 114.
C.
Ramdihall brings one final Fourth Amendment challenge
regarding this stop.

This challenge relates to the seventeen

credit cards that the officers found under the spare tire cover in

Ramdihall appears to challenge Martin's credibility in one
further respect. He points to Martin's testimony that, prior to
the dog sniff, Martin told Milburn where in the car Martin had
seen the plastic baggie, and suggests that this aspect of Martin's
testimony contradicts Milburn's testimony that Milburn tried "not
to pay attention" to what Martin told him prior to the dog sniff
so that it would not "look like I'm trying to make my dog alert to
anything that's not there." But, the record shows that Milburn
neither solicited the information about the plastic baggie from
Martin, nor asked any follow-up questions.
Thus, we see no
inconsistency with Milburn's testimony that he tries "not to pay
attention" to such information arising from the fact that Martin,
unprompted, told Milburn where Martin had seen the baggie. To the
extent that Ramdihall means to contest the reliability of the dog
sniff, moreover, Ramdihall's counsel waived this argument below by
specifically telling the District Court that he was not contesting
the reliability of the dog sniff. See United States v. SánchezBerríos, 424 F.3d 65, 74 (1st Cir. 2005) (noting that "[a] party
waives a right when he intentionally relinquishes or abandons it").
8

- 32 -

Case: 15-1841

Document: 00117156422

the trunk of the vehicle.

Page: 33

Date Filed: 05/18/2017

Entry ID: 6093070

Ramdihall contends that the District

Court erred in concluding that it was permissible under the Fourth
Amendment for the officers to swipe those credit cards through a
card reader because a person "might" have a reasonable expectation
of privacy in the information stored on a credit card's magnetic
strip.
But Ramdihall does not assert that a person does, in
fact, have such an expectation of privacy.
a person might.

He asserts only that

And he acknowledges that there is no evidence in

the record that would support this conclusion.

Thus, even if we

were to assume that such an argument could be developed, in light
of

the

"perfunctory

argument,

manner"

"unaccompanied

in

by

which
some

Ramdihall
effort

argumentation," we deem the matter waived.
Zannino, 895 F.2d 1, 17 (1st Cir. 1990).
IV.
For the foregoing reasons, we affirm.

- 33 -

at

raises

this

developed

United States v.