USCA1 Opinion

March 27, 1996

UNITED STATES COURT OF APPEALS

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
_____________
_____________

No.

95-1105

UNITED STATES,
Appellee,

v.

AEDAN C. MCCARTHY,
Defendant, Appellant.

No. 95-1106

UNITED STATES,
Appellee,

v.

JEFFREY SCOTT HUNTER,

Defendant, Appellant.

________

ERRATA SHEET

It is ordered
February
underlined

26,

1996,

that pages
are

language and

6-7 of the

modified
the

to

opinion, released
include

footnotes shall

the

Following

his

release, Hunter

focus of the Franklin

The

investigation

remained the

robbery investigation.
involved

effort between the Connecticut

the Federal Bureau of

cooperative
State Police,

Investigation ("FBI"),

and, ultimately, law enforcement officials in

Alabama and Maine.
investigation,

During the course of the

________________________

James

following

be renumbered

indicated:

Hall2
revealed

to

on

as

_____________________________________________
investigators that Hunter's friend "John" had
_____________________________________________
recently
replaced
his Alabama
driver's
_____________________________________________
license with a Connecticut license in the
_____________________________________________
name
of John E.
Perry.
____________________________

Investigators

____________________

2Investigators also
of

Lance Hall,

Neither James

learned that James Hall

the person

who rented

nor Lance Hall were

is the brother

the Sunbird

for Hunter.

involved, in any way,

Franklin robbery.

subsequently

learned that

the real

John E.

in the

____________
Perry had

lost his Alabama

license prior to

the

Franklin bank robbery

and that McCarthy

had

used

Perry in

the alias

following an arrest
E.

Perry, who

John
there.3

lived in

Florida

The real

John

Alabama, identified
__________

McCarthy as James Hardiman, an individual who

_____________________________________________
had been involved with his former wife.
_____________________________________________
Investigators

also

Hunter and McCarthy

learned

that, in

had spent time

1991,

together

as cellmates in a Connecticut state prison.

____________________

3James Hall initially told investigators that a photograph

___________________________________________________________
of

the real

John

Perry resembled

the

individual he

knew

as

_________________________________________________________________

Hunter's friend "John."

Following McCarthy's arrest, however,
_________________________________________________________________
James Hall identified McCarthy as Hunter's friend "John."
_________________________________________________________

United States Court of Appeals

United States Court of Appeals
For the First Circuit
For the First Circuit
____________________

No. 95-1105

UNITED STATES,

Appellee,

v.

AEDAN C. MCCARTHY,
Defendant, Appellant,

No. 95-1106

UNITED STATES,
Appellee,

v.

JEFFREY SCOTT HUNTER,

Defendant, Appellant.
____________________

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
___________________
____________________

Before

Stahl, Circuit Judge,

_____________

Campbell, Senior Circuit Judge,

____________________
and Lynch, Circuit Judge.
_____________
____________________

Brian L. Champion with whom Friedman & Babcock was

__________________
___________________

on brief

appellant Aedan C. McCarthy.

Henry W. Griffin for appellant Jeffrey Scott Hunter.
________________

whom

Margaret D. McGaughey,
______________________

Assistant

United States

Jay P. McCloskey,
__________________

United States

Attorney,

Attorney,
and

Jonathan
_________

Chapman, Assistant United States Attorney, were on brief for appell

_______
____________________

February 26, 1996

____________________

STAHL, Circuit Judge.

STAHL, Circuit Judge.
_____________

a jury convicted defendants

Following a three-day trial,

Aedan McCarthy and Jeffrey Scott

Hunter

of

robberies

various charges

in Alabama,

stemming from

Connecticut

a series

and Maine.

On

of bank

appeal,

McCarthy and Hunter challenge the district court's refusal to

grant their respective

Hunter challenges

evidence

suppression motions.

the district

produced as

the

court's failure to

result of

following the Connecticut robbery.

raise several

suppress

an investigatory

stop

McCarthy and Hunter also

challenges to their sentences.

review, we affirm.

In particular,

After careful

I.
I.
__

Background
Background
__________

In reviewing a district

to suppress, we

court

recite the

facts as found

by the

motions

district

to the extent that they derive support from the record

and are not clearly

Sealey,
______

findings

30

F.3d

erroneous.

7, 8

(1st

are lacking, we view

favorable

inferences.

Cir.

court's denial of

to

the ruling,

See, e.g., United States v.

___ ____ ______________

Cir.

1994).

the record in

making

Where

specific

the light most

all reasonably

supported

See United States v. Kimball, 25 F.3d 1, 3 (1st

___ ______________
_______

1994); United States v. Sanchez, 943 F.2d 110, 112 (1st

_____________
_______

Cir. 1991).

A. Hunter's Connecticut Detention

__________________________________

On July 6, 1992, around 1:45 p.m., two men robbed a

bank

in Franklin,

Halloween-type mask,

Connecticut.

Each

man wore

covering his entire face,

-33

a plastic,

and each was

armed,

one with a pump-action

semi-automatic pistol.

the bank's

the

shotgun and the

other with a

The man carrying the shotgun stood in

lobby, issuing commands, while

the other vaulted

teller's counter and collected the money.

They fled the

bank in a light-blue GMC Jimmy truck.

A short

time later,

located the truck,

a mile from the

the Connecticut

State Police

abandoned in an industrial park less than

bank.

Witnesses reported that a red Pontiac

Sunbird bearing Rhode Island license plates recently had been

parked near the spot where the abandoned GMC Jimmy was found.

Subsequently,

indicating

the police

that the

issued an updated

two suspects

were now

travelling in the red Pontiac Sunbird.

radio bulletin,

believed to

be

Norwich

About

2:30 p.m.,

Officer

Arthur

Police

Department

spotted

a red

Richard of

Pontiac

the

Sunbird

bearing Rhode Island license plates at a gas station, not far

from Franklin.

after the car

prepared

left the

to enter

ordered

an interstate

handles

wire cage

The

its

rear

Richard did not handcuff the driver.

-4-

him down for

back of his

internal rear

a plastic spit

and front

it

Officer Richard

a seat in the

police cruiser's

were not functional and

separated

highway.

vehicle as

the Sunbird, patted

directed him to take

cruiser.

the sighting, and,

station, stopped the

the driver out of

weapons and

police

Officer Richard reported

seats.

door

guard and a

Officer

In response to

Officer Richard's questioning,

driver identified himself

registration check

registered to

on the

a rental

Hunter told Richard

for

him because

as Hunter.

his

Sunbird and

agency

at a

own car

was

Officer Richard

ran a

learned that

it was

Rhode Island

that a friend had

the

airport.

rented the automobile

under repair.

Hunter,

however, refused to identify the friend.

Within

minutes,

including Connecticut

State

Heller, arrived on the

through

several

other

police

Troopers Jerry

scene.

officers,

Hall and

Trooper Hall spoke

Louis

to Hunter

the open rear door of Richard's cruiser and detected

alcohol on Hunter's

breath.

Hunter admitted

drinking a few

beers with a friend, but declined to identify the friend.

Hall's request, Hunter

took a field sobriety

At

test, which he

passed.

About 2:43 p.m., Trooper Hall advised Hunter of his

Miranda
_______

under

rights and informed

arrest,

purposes.

Hunter

waived them,

he

was

him that,

being

detained

stated that he

but nonetheless

although he

for

was not

investigative

understood his rights

declined to say

where he

and

had

been

since 1:00 p.m., stating

only that he

"Born-Again-Christian" friend.

explained that

Pontiac

the officers

Sunbird matched

vehicle involved in

had been with a

At some point, Trooper

were detaining him

identically

Hall

because his

the description

of

a bank robbery that had occurred earlier

-55

that

day.

Trooper

intermittently for

time,

Hall

about

other officers

continued

to

question

forty-five minutes.

drove a

teller from

Hunter

During

the bank

that

by the

cruiser in an unsuccessful attempt to identify Hunter as

of

the

robbers.

In addition,

Trooper

Hall

took

one

three

Polaroid photographs of Hunter.

Meanwhile, Trooper Heller

learned that the

agency

registered as the owner of the Pontiac Sunbird had rented the

vehicle to Lance Hall,

who

is

white,

on the

a black male, who had

rental

agreement

listed Hunter,

as a

co-driver.1

After receiving this information, Heller went to a nearby bar

and

questioned patrons

Hunter

and another

in an

individual

attempt to

had

determine whether

stopped there

earlier.

Upon

returning to

still being

had

the police

detained, Trooper

been prior to the stop.

cruiser in

which Hunter

Heller asked Hunter

was

where he

Hunter replied that he had not

been anywhere near Franklin, but instead had spent the day at

to

friend's place in the woods.

remember

located.

On

his

friend's

the basis

black.

name

nor where

of the information

from the rental car agency,

if his friend was

Hunter, however, claimed not

the

place

he had

was

obtained

Trooper Heller then asked Hunter

With this question,

Hunter became

____________________

1.

Trooper

number from

Heller
the

obtained Lance

rental

description of Hall

agency.

Hall's
He

driver's license

obtained

after requesting a check on

with the Connecticut State Police.

physical

the license

-66

agitated,

general

swore

at

Heller,

direction, told him to

occurred about 3:45

and, while

gesturing

find out for

in

himself.

one

This

p.m., approximately seventy-five minutes

after Officer Richard initially stopped Hunter.

Trooper Heller

of only one

black male

knew the area well

living in the

and could think

general direction

in

which

Hunter had

gestured.

Consequently, Trooper

drove to that person's house and inquired

visited earlier that day.

whether Hunter had

The black male living at the house

identified himself as James

been there with another

Heller

Hall and stated that

man named John.

Hunter had

According

to James

Hall, Hunter and John had borrowed James Hall's truck earlier

in the day and had

their

clothes.

returned

later returned to Hall's house

After

to where

interviewing

Hunter

was being

James

to change

Hall,

detained and,

Heller

at 4:43

p.m., Hunter was released.

B. The Ensuing Investigation

_____________________________

Following his release, Hunter remained the focus of

the

Franklin

robbery

investigation.

The

investigation

involved a

Police,

cooperative effort between the

the Federal

Bureau of

ultimately, law enforcement

During the course of

Connecticut State

Investigation ("FBI"),

officials in Alabama and

and,

Maine.

the investigation, James Hall2 revealed

____________________

2.

Investigators also learned that James Hall is the brother

of

Lance Hall, the person who rented the Sunbird for Hunter.

Neither

James nor Lance Hall

were involved, in

-77

any way, in

to

investigators

replaced his

license

in

that Hunter's

Alabama

the

friend "John"

driver's license

name

of

John

E.

with

had recently

Perry.

Connecticut

Investigators

subsequently learned that the real John E. Perry had lost his

Alabama license prior

McCarthy

an

to the Franklin bank

had used the alias John

arrest there.3

The

real

robbery and that

Perry in Florida following

John E.

Perry, who

lived in

Alabama, identified McCarthy as James Hardiman, an individual

who had

been involved with

also learned that,

in 1991,

his former wife.

Hunter and

Investigators

McCarthy had

spent

time together as cellmates in a Connecticut state prison.

As

the

investigation

progressed,

Connecticut

authorities

apprised

FBI

investigating a series of

the events surrounding

agents

in

Alabama,

who

were

similar Alabama bank robberies, of

the Franklin

robbery.

Accordingly,

McCarthy and Hunter became suspects in the Alabama robberies.

In early 1993, Alabama FBI Agent Marshall Ridlehoover learned

that McCarthy and Hunter

Alabama.

Sheriff's

Agent

might be living in Chilton

Ridlehoover

Department that

series of bank robberies in

alerted

the two

men

the

County,

Chilton

County

were suspects

in a

Alabama and Connecticut and sent

____________________

the Franklin robbery.

3.

James Hall initially told investigators that a photograph

of

the real John Perry

Hunter's

friend

however, James

resembled the individual

"John".

Following

Hall identified McCarthy

he knew as

McCarthy's

arrest,

as Hunter's

friend

"John".

-88

the

department

Initially,

photographs

Ridlehoover

of

told

the

McCarthy

Chilton

and

Hunter.

County Sheriff's

Department that the FBI wanted to have the two men kept under

surveillance.

Sheriff's

Subsequently,

Department

that

Ridlehoover

federal

arrest

informed

the

warrant

for

unlawful flight from prosecution had been issued for Hunter.

C. Alabama Arrests of Hunter and McCarthy

__________________________________________

While driving to work on

1993,

Deputy Wayne

Chilton County

bearing

Fulmer,

the morning of April

assistant chief

deputy of

Sheriff's Department, noticed

Maine license plates.

23,

the

a pickup truck

Because the presence of Maine

plates in Chilton County struck

Fulmer as rather unusual, he

ran a registration check on the truck and discovered that the

truck was registered to a John E. Perry.

time that

FBI investigators

using the alias

Fulmer knew at this

were looking for

an individual

John E. Perry in connection with a series of

bank robberies in Connecticut and Alabama.

Later

that morning,

woman at

the local

power

company, who had been shown a

photograph of Hunter, reported

that a person

resembling Hunter had requested that

turned

his

on at

trailer.

After

receiving this

power be

report,

Fulmer brought a copy of Hunter's photograph to the woman and

asked

her to

returned.

notify

the Sheriff's

A short time

that Hunter had

returned.

Department

later that day,

Upon

-99

if the

man

the woman reported

learning this, Fulmer

left

for the power company and requested

meet him

there.

other officers

federal

On the

way, Fulmer alerted

responding to

warrant

the scene that

existed for

officer to arrive at the

Hunter's

by radio

the

an outstanding

arrest.

The

first

power company identified himself to

Hunter and asked to speak to him.

and ran.

several back-up units to

In response, Hunter turned

The officer radioed that the suspect was fleeing on

foot and then gave chase.

Several

Hunter.

officers

search

incident

envelope containing $6039

two weeks later,

eventually

to the

caught and

arrest

arrested

disclosed

in cash on Hunter's person.

on May 11, 1993,

an

Over

Agent Ridlehoover matched

the serial numbers of twenty bills taken from the envelope to

bills stolen from the Casco Northern Bank in Falmouth, Maine,

on April 12, 1993.

While

who

had yet

Hunter was fleeing

to reach

pickup truck, which he

away

from

the power

state trooper who was

the truck.

At

the power

asked

on foot.

company, spotted

company.

the driver

for

the same

day, heading

Fulmer directed

following him to turn around

this point, Fulmer did not

After

Deputy Fulmer,

had seen earlier in the

of either the person driving the

fled

on foot,

an Alabama

and stop

know the identity

truck or the person who had

stopping the truck,

identification.

truck, McCarthy, falsely identified

the state trooper

The

driver of

the

himself as John E. Perry

-1010

and gave the

trooper a Maine

driver's license bearing

that

name.

Subsequently about

into

custody

Courthouse.

and

12:15 p.m., McCarthy

transported

to

the

Chilton

was taken

County

McCarthy was searched and approximately $2000 in

cash

was

McCarthy,

found

an

Department

in

on

his

official

person.

from the

Shortly after

Chilton

notified Connecticut officials

custody.

The Connecticut

County

stopping

Sheriff's

that McCarthy was

officials requested

that the

Chilton County Sheriff's Department continue to hold McCarthy

while they

attempted to

McCarthy's

alleged participation

Sometime after midnight, a

an arrest warrant

secure an arrest

in

warrant based

the Franklin

on

robbery.

Connecticut Superior Judge signed

for McCarthy for his

participation in the

Franklin robbery.4

D.
Search and Seizure of McCarthy's Suitcases, Truck and
_____________________________________________________________

Storage Unit
____________

On

the

evening

of April

23,

1993,

the

day of

McCarthy's

arrest

telephone

call from

in

Alabama,

Deputy

Chilton County

Fulmer

received

resident Gene

Ellison.

Ellison told Fulmer that McCarthy and Hunter had been staying

____________________

4.

Several months later, the Connecticut prosecution against

McCarthy

was

dismissed

without

discovery that the affidavit

warrant

was based included

prejudice

following

the

on which the Connecticut arrest

an incorrect

factual statement.

Because the disposition of this appeal does not depend on the

validity of the Connecticut arrest warrant, we do not discuss
it further.

-1111

with

his

neighbor, Joe

Henderson,

and

that McCarthy

and

Hunter had left some items in Henderson's trailer that Fulmer

should

trailer.

see.

When

laying open on

Deputy Fulmer

agreed to

he arrived, Fulmer

come by

found a

Henderson's kitchen table.

Henderson's

maroon suitcase

An AK-47 assault

rifle, a pistol, extra clips and a bullet-proof vest sat atop

the suitcase in plain

view.

Henderson told Fulmer

suitcase and its contents belonged to McCarthy

that the

and asked him

to take possession of them.

Henderson further explained

that he had

permitted

McCarthy and Hunter to stay with him for the past six days in

return

for $40

rent.

because the

two men

Henderson's

landlord,

Henderson,

easy

Henderson knew

had

previously rented

J.B.

Ellison.

McCarthy and Hunter had

chair in

McCarthy and

Henderson's living

a trailer

from

staying

with

While

slept on a

room and

Hunter

couch and an

had

kept their

belongings in a back bedroom that Henderson used for storage.

On Thursday,

April 22, the day before the arrests, Henderson

had told the two

men that he was

upcoming weekend and

Henderson

McCarthy

left

and

that they

for work

Hunter

on

were

expecting company for

would have to

the

leave.

morning of

preparing

to

the

move

out

the

When

arrests,

of the

trailer.

When Henderson

returned home that

afternoon, Gene

Ellison told him

that the police

had arrested McCarthy

and

-1212

Hunter.

if

McCarthy and

storage

that

Henderson then

was

room, he

closed

decided to check his trailer

Hunter had

left anything

found two

suitcases, the

and

locked,

and

an

behind.

to see

In the

maroon suitcase

American

Tourister

suitcase

it.

that was laying open

Henderson attempted

with clothes piled

on top of

to move the maroon suitcase

out of

the room to a storage shed behind his trailer but was

unable

to do so because the

Ellison to help

suitcase was too heavy.

him.

other room and cut the

why it

weighed so

Ellison moved the

lock off of it

much.

He

asked Gene

suitcase into

the

in order to find

out

After Ellison

cut off

the lock,

Henderson opened the suitcase and discovered the weapons, the

bullet-proof

Henderson

vest

decided

contents over

and

other

he

should

items.

turn

to the police so he

the

Some

time

suitcase

later,

and

its

asked Ellison to call the

sheriff's department.

During

Deputy Fulmer's

April 23, Henderson failed

visit

on the

to tell him about the

evening

of

additional

American

Tourister

Several

suitcase

days later,

however,

about it during an interview.

Fulmer

and

suitcase.

FBI agent

Agent

Henderson

Rich

had

Henderson told

discovered.

an FBI

agent

Later, at Henderson's request,

Schott took

Ridlehoover

possession

inventoried

Tourister on May 1, 1993, pursuant to standard

No warrant was obtained for the suitcase.

-1313

the

of the

American

FBI practice.

Following

obtained on

April

Accordingly,

receipt

28, 1993,

investigators

for a

to

search his

searched

storage unit

Subsequently, on

the storage

search revealed

the Casco

McCarthy,

and

Northern

McCarthy, using

rented the storage unit.

finding

investigators obtained a

unit and its

footlocker

Bank.

truck.

Scarborough, Maine.

contents.

containing

incriminating items with possible connections

of

pickup

the truck,

located in

May 12, 1993, FBI

warrant to search

ensuing

McCarthy's Alabama arrest, a warrant was

The

numerous

to the robbery

The

footlocker belonged

the

alias

John Perry,

to

had

E. Prior Proceedings
_____________________

Prior to

arising from

With

trial, Hunter moved to

the Connecticut

respect

to

the

seventy-five

police to

minutes of

James Hall.

the

stop that

held a

sought

ultimately led

to

issued

denying

them both.

a de
__

After

recommended

novo review,
____

the motions, adopting substantially

the two

unit.

two-day evidentiary hearing

and, subsequently,

the

suppress evidence

the Maine storage

motions

court denied

Hunter

arrest and the searches of

his pickup truck and

magistrate judge

Alabama arrests.

and gesture he made during the first

McCarthy moved to

arising from his Alabama

suitcases,

stop and the

Connecticut stop,

suppress the statements

suppress evidence

on the

decision

the district

all of the

magistrate judge's recommended findings.

-1414

At

tried

the

together

ensuing trial,

before a

jury

McCarthy

on

alleging various charges arising from

robberies

in

Connecticut, Alabama

and

a five-count

Hunter were

indictment

a series of three bank

and

Maine.5

The

jury

found McCarthy

the

two

men

robberies in

18 U.S.C.

of

the

and Hunter guilty of

on Count

One

of

conspiring

Connecticut, Alabama and Maine

to commit

bank

in violation of

371, on Count Two of committing the Maine robbery

Casco Northern

bank in

2113(a), 2113(d)

and 18 U.S.C.

knowingly

and

robbery in

convicted

criminal in

and Hunter

using

carrying

violation of 18

McCarthy on

violation

2, and

firearms

U.S.C.

Count Four of

violation of 18 U.S.C.

on Count Five

violation of 18

2.

all charges, convicting

U.S.C.

of being a

of 18

U.S.C.

on Count Three

during

924(c).

being an

the

of

Casco

The jury also

armed career

922(g)(1), 924(e)(1),

felon-in-possession in

922(g)(1), 924(a)(2) and 18 U.S.C.

Following trial, the district

court sentenced McCarthy

to 387 months imprisonment.6

The court sentenced Hunter

to

____________________

5.

Specifically,

Count One

and Hunter with conspiring

of indictment

charged McCarthy

to rob the Franklin bank

on July

6,

1992, the Peoples Bank in Woodstock, Alabama, on November

13,

1992, and the Casco Northern bank in Falmouth, Maine, on

April 12, 1993.

6.

McCarthy

committing

was sentenced
the Casco

concurrently

to

to 327 months

Northern
60-month

bank robbery,
sentence

conspiracy, and a 180-month sentence on

an

armed

sentenced

career

criminal.

McCarthy

sentence on the

to

the

on Count

On

on

Count

Three,

served
One

for

the

court

60-month consecutive

924(c) firearm violation.

-1515

to be

Count Four for being

Count

mandatory

Two for

270

months imprisonment

to be

served consecutively

to his

Connecticut state sentence for violation of probation.7

II.
II.
___

Discussion
Discussion
__________

On

denial

of

appeal, Hunter challenges

his

suppression

motion,

Connecticut detention following the

later

Alabama

arrest

violated

the district court's

contending

that

his

Franklin robbery and his

the

Fourth

Similarly, McCarthy challenges the denial of

Amendment.

his suppression

motion,

taking issue

with the

district court's

refusal to

find error in his Alabama arrest and the subsequent search of

his

two suitcases,

defendants

also

pickup

raise

respective sentences.

truck and

several

storage

issues

unit.

relating

to

Both

their

We address each argument in turn.

A. The Suppression Motions

___________________________

Our review of a

or

district court's decision to grant

deny a suppression motion

is plenary.

United States v.
_____________

DeMasi, 40 F.3d 1306, 1311 (1st Cir. 1994), cert. denied, 115
______
_____ ______

S. Ct. 947 (1995).

factual

"We defer, however, to a district court's

findings if, on

a reasonable view

they are not clearly erroneous."

of the evidence,

Id.; see also United States

___ ___ ____ _____________

____________________

7.

The court sentenced Hunter to 210 months on Count Two for

committing the
60

Maine robbery, to be served concurrently to a

month sentence

on Count

One for

conspiracy, and

a 120

month sentence on Count Five for being a felon in possession.

On Count
mandatory

Three, the district

60-month

court sentenced Hunter

consecutive

sentence

on

the

to the
924(c)

firearm charge.

-1616

v.

Zapata, 18 F.3d 971, 975 (1st

______

Cir. 1994).

A clear error

exists

only if, after

left with a definite

been made.

Cir.

evidence, we are

and firm conviction that a

mistake has

United States v. McLaughlin, 957 F.2d 12, 17 (1st

_____________
__________

1992).

decision

considering all the

to

reasonable

Moreover, we

deny a

view

of

will uphold

suppression

the

a district

motion

evidence

court's

provided that

supports

the

any

decision.

United States v. Garcia, 983 F.2d 1160, 1167 (1st Cir. 1993).
_____________
______

1. Hunter's Connecticut Detention

__________________________________

Hunter

Connecticut stop.

de
__

facto
_____

initially

Hunter

arrest

challenges the

legality

of the

contends that the stop constituted

unsupported

by

probable

cause,

therefore, the comments and gesture he made during the

and,

first

seventy-five minutes of the stop -- leading eventually to the

discovery

of

James Hall

--

should

have been

suppressed.

Furthermore, Hunter contends that the testimony of James Hall

should

have

arrest.

been

suppressed

fruit

of

an illegal

We disagree.

The Fourth

cause

as the

Amendment does not demand that probable

exist prior to all police action.

v. Ohio, 392 U.S. 1 (1968).

____

based

merely on

police

officer

Indeed, it is well-settled that,

a reasonable

may make

See generally Terry

___ _________ _____

and articulable

a brief

stop

suspicion, a

or "seizure"

individual to investigate suspected past or present

activity.

See United States v. Hensley, 469 U.S.

___ ______________
_______

of an

criminal

221, 226-

-1717

229 (1985) (extending Terry

_____

United States v. Quinn, 815

______________
_____

The

relevant question

police

had probable

actions taken

in

stops to past criminal conduct);

F.2d 153, 156

these cases

cause to act,

is

(1st Cir. 1987).

not whether

but instead

were reasonable under the

the

whether the

circumstances.

See
___

United States v. Sharpe, 470 U.S. 675, 682 (1985).

_____________
______

In

determining

whether

reasonable, and, thus, falls

investigatory stops

challenged

action

is

within the range of permissible

or detentions,

a court should

engage a

two-step inquiry, asking (1) whether the officer's action was

justified

was

at its inception; and (2) whether the action taken

reasonably

justifying the

related

in

scope

to

the

circumstances

interference in the first place.

Terry, 392
_____

U.S. at 19-20; United States v. Stanley, 915 F.2d 54, 55 (1st

_____________
_______

Cir. 1990).

in

such

requires

Moreover, the Supreme Court has

circumstances,

the

question

of

explained that,

reasonableness

a court to "balance[] the nature and quality of the

______
_______

intrusion on personal security

against the importance of the

governmental

Hensley,
_______

interests

alleged to

469 U.S. at 228

justify

the intrusion."

(emphasis added).

The inquiry is

fact specific and a court should consider the totality of the

circumstances confronting the police at the time of the stop.

Kimball,
_______

25

F.3d

at

Rodriguez-Morales, 929
_________________

6;

see
___

also
____

F.2d 780, 783 (1st

denied, 502 U.S. 1030 (1992).

______

-1818

United
States
_______________

v.

Cir. 1991), cert.

_____

At the outset,

concedes

suspicion

complaint,

that

Officer

to make

the

instead,

we note

Richard

focuses

stop

He contends

exceeded

investigative

thus, made

per se.
___ __

the

stop

on

not supported

essentially

sufficient

the

reasonable

Hunter's

second

principal

step

of

the

of his detention was simply

that the length

permissible

the entire

had

initial stop.8

inquiry, arguing that the length

too long.

that Hunter

of the

durational

by

scope of police

Connecticut

limits

probable

of

an

cause, and,

conduct unreasonable

As we

have noted before, however,

talismanic time beyond which

"`there is no

any stop initially justified on

the basis of Terry becomes an unreasonable seizure under

_____

[F]ourth

[A]mendment.'"

Quinn,
_____

815 F.2d

at 157

the

(quoting

United States v. Davies, 768 F.2d 893, 901 (7th Cir.), cert.
______________
______
_____

denied,
______

Place,
_____

474 U.S.

1008 (1985));

462 U.S. 696,

see also
___ ____

United States v.
______________

709-10 (1983) (declining

to adopt any

____________________

8.

In

police
initial
his

his reply
had

brief,

sufficient

stop.

To the

Hunter denies
reasonable

conceding that

suspicion

contrary, we think

to

make

the
the

a fair reading of

opening argument to this court and the arguments he made

in his

briefs

contention.

In

to

the

district

court

below

belies

this

any event, the district court's finding that

Officer Richard properly acted in initially detaining

Hunter

after spotting him shortly after

Pontiac

Sunbird,

is

eminently

proximity in both distance

combined with the fact

The

red
close

robbery

that Hunter's car identically matched

are articulable

gave rise to

supportable.

and time to the Franklin

the description of the vehicle the

be driving

the robbery, driving a

suspects were reported to

and specific facts

the reasonable suspicion needed to

that clearly
justify the

initial stop.

-1919

outside

time limitation

on

a permissible

Terry stop,
_____

but

holding

ninety-minute detention

specific

(upholding sixty-two minute stop; "the

of our inquiry is

meets

unreasonable on

facts of case); United States v. Vega, 72 F.3d 507,

_____________
____

514-16 (7th Cir. 1995

crux

of luggage

the

Fourth

reasonableness").

whether the nature

Amendment's

"[C]ommon

of the restraint

standard

sense

and

particular

investigatory

consideration of

stop

all relevant

is

too

factors,

reasonably

Sharpe,
______

470 U.S.

needed

at

685.

to

effectuate

Moreover,

human

Quinn, 815 F.2d

_____

Indeed, whether a

long

turns

including "the

enforcement purposes to be served by the stop as

time

objective

ordinary

experience must govern over rigid criteria."

at 157 (quoting Sharpe, 470 U.S. at 685).

______

of

those

a court

on

law

well as the

purposes."

should

ask

"whether

the

investigation

suspicions

police

that was

diligently

likely

quickly, during

detain the defendant."

pursued

to confirm

which time

means

or dispel

it was

of

their

necessary to

Id. at 686.
___

Furthermore, time of detention

criteria for

measuring the

cannot be the

intrusiveness of

sole

the detention.

Clearly, from the perspective of the detainee, other factors,

including

the

force

used

restrictions placed on his or

information conveyed

to detain

the

individual,

the

her personal movement, and the

to the detainee

concerning the reasons

for the stop and its impact on his or her

-2020

rights, affect the

nature and extent of

into the analysis.

the intrusion and, thus,

Cf. Zapata, 18 F.3d at

___ ______

between investigatory stop and de

__

on

what "a

would

have

Finally,

the

975 (distinction

facto arrest turns in part

_____

reasonable

[person] in

understood

his

Supreme

Court

[or

should factor

the suspect's

her]

situation"

has admonished

that,

position

to

in

be).

all

events, "[a] court making this assessment should take care to

consider

whether

the

developing situation,

police

are

acting

in

swiftly

and in such cases the court should not

indulge in unrealistic second-guessing."

Sharpe, 470 U.S. at

______

686.

Though the issue is

that,

on the

exceedingly close, we

circumstances that

obtain here,

believe

the district

court did not err in refusing to suppress Hunter's statements

and

gesture

leading

to

the

discovery

of

James

Hall.

Initially we note that, although Hunter challenges the length

of the Connecticut detention

and gestures

that he seeks

first seventy-five minutes of

in its entirety, the statements

to suppress occurred

the stop.

Thus, we

within the

limit the

scope

of our analysis accordingly and do not address whether

the district

court would have

erred in failing

to suppress

any statements or evidence obtained later in the stop.

More importantly, when limited to this

we

do

not

unreasonable.

find

the

scope

of

the

stop

time frame,

particularly

There is no evidence or even an allegation of

-2121

less

than diligent behavior on the

part of the police.

The

officers on location used a number of different investigative

techniques in their efforts to pursue quickly any information

that might

initially

have

dispelled

triggered

the

registration check of the

Hunter.

Trooper

stop.

Other

Heller,

Hunter

once on

Officer

suspicion

Richard

ran

that

the

Sunbird immediately after stopping

where he had been since the time of

officers brought a teller from

to the scene in an attempt

or not

reasonable

Hall promptly informed Hunter of his rights

and questioned him about

the robbery.

the

to establish definitively whether

had participated

the scene,

agency in an effort

the bank

in

the robbery.

promptly telephoned

to learn more about the

Trooper

the rental

individuals who

had

rented

the automobile.

In

short,

we think

that the

record clearly belies any contention that the police officers

involved

neglected

alternative

engaged

employ

any

methods that could

their inquiry.

length of

to

See
___

reasonably

have significantly shortened

Quinn, 815 F.2d

_____

at 158.

Hunter's detention arose not

in dilatory

investigative

tactics,

efforts,

but,

though

circumstances, failed to dispel

available

The

excessive

because the officers

instead, because

reasonable

under

their

the

the suspicion that gave rise

to the stop.9

____________________

9.

In Michigan
________

the Court

v. Summers, 452
_______

noted that

U.S. 692, 700

"[i]f the purpose

n.12 (1981),

underlying a

Terry
_____

stop -- investigating

possible criminal activity -- is to be

-2222

Moreover,

constitutional right

that his

it is

not to

responses were

relevant in

See,
___

while

that

Hunter had

answer any questions,

evasive and,

evaluating the

e.g., id.
____ ___

clear

at times,

scope of the

(detention of

the fact

defiant is

officers' conduct.

forty-five to

sixty minutes;

noting

that

defendants

it

would

when their

rather than lowered

500

have been

unreasonable

answers to

to

release

initial questions

suspicion); United States v.

______________

raised

Richards,
________

F.2d 1025, 1029 (9th Cir. 1974) (detention over an hour;

"implausible

and

something was

awry

evasive responses

and created

even

. indicated

more reason

for

that

the

investigation being pursued further"), cert. denied, 420 U.S.

_____ ______

924

(1975).

responses

Hunter had

Not

only

did Hunter's

reasonably heighten

participated in the

incomplete

the officers'

suspicion that

robbery, they also

attempt to dispel that suspicion more difficult.

Hunter cooperated initially and

and vague

made the

Indeed, had

told Officer Richard that he

had been at James Hall's house, the length of the stop

would

have

been

much shorter.

Cf.
___

Sharpe,
______

470 U.S.

at 687-88

____________________

served, the
to detain

police must under certain

the

individual for

period involved in Terry."

_____
86.
of

than the

brief

time

See also Sharpe, 470 U.S. at 685___ ____ ______

The Court then listed, with apparent approval, a variety

different investigative techniques,

here, that
of

longer

circumstances be able

an

police might appropriately use

investigative

suspicion.

including those used

Summers,
_______

stop

to

452 U.S.

LaFave, Search and Seizure

__________________

at

dispel
700

during the course

their

n.12

(quoting 3

9.2, at 36-37 (1978)).

-2323

reasonable
W.

(upholding detention where

delay attributable in large

part

to defendant's evasive attempts to avoid stop).

Next, in attempting to strike the proper

we

note

that

the

detention

in this

factors,

specific

governmental

case

to

purposes

are substantial.

this case,

of a

suspected criminal conduct, a

bank involving physical

bank personnel, was severe.

Indeed,

reasonably

government's interest in detaining Hunter.

of the

served

balance,

by

the

several

enhanced

the

First, the nature

daylight armed robbery

threats to both

customers and

Second, the detention took place

shortly after the

bank.

As a

suspected

noted

crime is

suspect is

cause

robbery in a nearby town not

commentator

soon develops

suspect

it

and subject

legitimate

reasons

fact

him

for

to

balance.

time of the

enter an interstate highway in

a search"

that

3 Wayne R.

are

must

the

both

be

LaFave, Search
______

1987).

stop Hunter

if the

to arrest

custody

386 (2d ed.

"the

that if probable

desirable

[or her]

that

prompt flight

recent enough

continuing

9.2(f), at

that at the

would be

considered in the total

and Seizure
___________

has explained,

serious enough to

freed, or . .

far from the

Finally,

the

was preparing to

a rented vehicle bearing out-

of-state plates weighs on the government's side of the scale.

Objectively,

from the

perspective

of the

officers on

the

scene,

if they

had not

detained Hunter

at that

point, he

-2424

could

easily

have

left

the jurisdiction

dragnet of the Connecticut State Police.

and

evaded

the

Finally, we

case, that

police

605

A.2d 1050,

1053-54

not make

F.2d at 157

stop de facto

door to

there

the

back

is no

(N.H. 1992)

arrest), nor

drew a

of Officer

(placing defendant

handcuffs does

did the officers

in the

gun on

record

Hunter.

Richard's

e.g., State v. Reid,

____ _____
____

cf. Quinn,
___ _____

keep the

to suggest

Cf.
___

in

not make Terry

_____

cruiser continuously closed.

evidence

of this

Although the

Terry stop unreasonable);

_____

n.2 (use of

the police

officer ever

Trullo,
______

Hunter in

he was never handcuffed, see,

___

cruiser does

815

on the facts

the stop was needlessly intrusive.

detained

vehicle,

do not believe,

rear

Moreover,

that

United States
_____________

any

v.

809 F.2d 108, 113 (1st Cir.) (use of weapons without

more does not elevate stop to de facto arrest), cert. denied,

_____ ______

482 U.S. 916 (1987).

Furthermore,

although he was

and

that

they were

involved

officers

in

detaining

bank

first stopped

Hunter, Trooper

(e.g.,
____

only for

robbery

only fifteen

Clearly,

him

timely

the reasons for the

minutes

that,

was not under arrest,

car identical to his Pontiac

Additionally,

rights.

informed Hunter

not free to leave, he

purposes because a

been

the

earlier

after

of

Sunbird had

that

Officer

Hall read Hunter

disclosure

investigative

day.

Richard

his Miranda
_______

such information

detention, and an explanation of

-2525

the detainee's rights) has the potential to reduce the stress

of such

a detention

and, thus, minimize

its intrusiveness.

See Place, 462 U.S. at 710 (noting that incorrect information

___ _____

given

to

detention

defendant

militated

by

law

against

enforcement

finding

reasonable); United States v. LaFrance,

______________
________

Cir. 1989) (similar);

cf. Brown v.

officials

scope

of

879 F.2d 1,

Illinois, 422 U.S.

during

stop

7 (1st

590,

___ _____

________

603 (1975) (fact that Miranda

_______

warnings given is relevant

in

determining whether statement

given following illegal arrest

can be considered voluntary).

In sum,

although

as we

have

exceptionally close, we think that,

the

balance tips

in favor of

one

would

circumstances

normally

is

Admittedly,

Franklin robbery was hardly

consider

different from

issue

on the record before us,

the government.

Hunter's detention following the

what

said the

"brief,"

those found

and,

here, we

under

have no

doubt that an investigative detention of similar length would

unacceptably

not

offend the

persuaded,

on the

Constitution.

facts

of this

Nonetheless,

case

we are

(i.e. evidence
____

sought

to

be

seventy-five

police

suppressed

minutes of

to dispel

responses

was

obtained

the stop,

the defendant

of

contributing to

his rights

-2626

and

first

by the

defendant's evasive

delay, substantial

government interests in the detention, and prompt

to

the

diligent efforts

reasonable suspicion,

significantly

during

the reasons

disclosure

for

the

detention),

that the

district

court erred

in refusing

to

suppress Hunter's statements and gesture.10

2. Hunter's Alabama Arrest

___________________________

Hunter also challenges

in

Alabama.

Hunter

the legality of

contends that,

at

his arrest

the moment

arrest, the arresting officer did not have probable

take Hunter into custody.

The district

was taken

involved

federal

of his

cause to

This challenge is without merit.

court found that, at

the time Hunter

into custody, Deputy Fulmer and the other officers

in Hunter's

arrest

arrest

warrant for

____________________

were aware

Hunter.

of an

Such

outstanding

a finding,

if

10.

Furthermore, we

the

scope

of

the

(specifically,
question,

also have substantial

evidence

the

testimony of

but need

sufficiently

Hunter

developed the

seeks

James

not decide,

doubt concerning

Hall).

whether the

record below

1994) ("[G]overnment

reference

to

`demonstrated

preponderance of

Though

the evidence, that the

we

government has
such a

13 F.3d 498, 503

bears burden of

historical

suppress

to support

finding, see United States v. Infante-Ruiz,

___ _____________
____________
(1st Cir.

to

showing, by

facts'

and

by

information or item

would inevitably have been

discovered by lawful means."), we

think

in

it

likely

investigation,

that,

the

government

discovered James Hall.

rented

the Pontiac

the rental

Sunbird.

evidence

would

course
have

Trooper Heller

of

the

inevitably

obtained this

that Hunter was listed as

agreement solely

license plate number.

normal

Indeed, James Hall's brother, Lance,

information and the fact

on

the

on the

basis of

It is true that the

clearly establishing

that

possessed the license plate number

the

a driver
the car's

record lacks any

police would

have

absent the stop, or that,

during the normal course of the investigation, officers would

have

spoken

connection to
think

it is

to Lance

his brother

them

and necessarily
James.

unduly speculative

would have occurred.

is

Hall

have

Nonetheless,
to infer

made the
we do

that such

not

events

Had the police spoken to Lance Hall, it

at least arguably reasonable that

he would have directed

to his brother James, who also knew Hunter and lived in

the vicinity of the Franklin robbery.

-2727

supported by the record, is a sufficient basis to support the

arrest.

See Whiteley v. Warden, Wyo. State Penitentiary, 401

___ ________
_______________________________

U.S. 560,

568 (1971)

other officers

assume

that

("police officers

called upon

in executing arrest warrants

the

officers

requesting

aid

to aid

are entitled to

offered

the

magistrate

the

independent

judicial assessment

Hensley,
_______

469 U.S.

reliance

on

suspicion

information

at

a flyer

of

to

support

an

probable

cause");

cf.
___

229-32 (extending

or

justifying

bulletin

Whiteley to
________

to establish

investigatory

testimony at the suppression

Hunter's arrest,

requisite

stops).

reasonable

Fulmer's

hearing, stating that, prior to

he knew about

the warrant and

had alerted

the other officers involved to this fact, amply supports

finding.

the

The fact that

cover

Fulmer's report made

the

subsequent to

arrest fails to mention the warrant is of little moment.

Deputy Fulmer

report

was

explained at the suppression

incomplete, and

the

entitled to credit that testimony.

district

hearing that his

court was

fully

3. McCarthy's Alabama Arrest

_____________________________

McCarthy's

Chilton

County,

unavailing.

challenges to

Alabama, on

McCarthy contends

probable cause existed to

away from

even

April

police had

23,

and arrest

1993, are

in

equally

that no reasonable

basis or

stop his pickup truck as

it drove

the power station.

if the

his stop

Moreover,

he contends

sufficient reasonable

-2828

that,

suspicion to

detain him briefly for investigative

became an illegal de
__

custody and held

purposes, the detention

facto arrest because he was

_____

without probable cause until

taken into

1:00 a.m. the

next day when a warrant finally issued.

First, we

disagree that the district court clearly

erred in finding that Deputy Fulmer had sufficient reasonable

suspicion

to

have McCarthy's

testified that, at

aware of

See
___

the time

the details of the

Hensley, 469
_______

U.S.

truck

pulled

of the stop,

over.

he was

Fulmer

generally

ongoing Franklin investigation.

at 229-32

(police without

specific

knowledge

of

concerning

bulletin

to

supply

reasonable

stop).

together

that

in the area,

Moreover,

men

or

rely on

that he

by

an

series of bank

be living

was falsely

using the

warrant existed for

that he

knew that

the

Perry," and that he

that person to be the John E. Perry under suspicion

the FBI.

reasonable

or

to

that an arrest

Fulmer testified

the flyer

specifically knew

were suspected

that McCarthy

issued

justifying

suspects in a

Isuzu truck was registered to a "John E.

believed

bulletin

suspicion

He stated

the two

John E. Perry, and

Hunter.

flyer

nonetheless

McCarthy and Hunter were

robberies,

name

supporting

suspects may

investigatory

that

facts

These facts

suspicion

alone arguably

sufficient

investigatory stop of McCarthy.

to

give

justify

rise to

brief

More importantly, adding to

this

collection McCarthy's

presence at the

scene following

-2929

Hunter's

flight

significantly

heightened

concerning McCarthy's involvement.

the

suspicion

Thus, we find no error in

the district court's finding.

Furthermore, we note

that Deputy Fulmer

testified

that, at the

know

time he ordered the stop, he did not definitely

whether McCarthy

whether Hunter was

or

Hunter was

a passenger.

driving the

Clearly, it was conceivable

that Hunter, after initially fleeing on foot,

to,

and continued

truck.

his

escape in,

Thus, independent of his

involvement in the

ordered the

could have run

McCarthy's Isuzu

pickup

suspicion about McCarthy's

robberies, Fulmer could

stop simply to

truck or

justifiably have

determine whether or

not Hunter

was inside the truck.

Second,

probable

cause

initial stop.

provide

we

find

to hold

no

error in

McCarthy

arose

Under Alabama state law

illegal identification

to a

the

finding

shortly after

it is an

that

the

offense to

police officer.

Ala.

Code

13A-9-18.1 ("Giving of false name or address to a

enforcement officer."); cf. Ala.

___

impersonation.").

Code

13A-9-18

law

("Criminal

Fulmer testified that, at the time of the

arrest, he knew McCarthy's identification of himself as Perry

was false and that such identification violated Alabama state

law.

Thus, once McCarthy

the trooper who stopped

to

take him

provided his driver's

license to

him, sufficient probable cause arose

into custody.

We find

-3030

no clear

error in the

district court's crediting this

testimony or in holding that

it provided a sufficient basis for detaining McCarthy.

4. Seizure of McCarthy's Two Suitcases

_______________________________________

McCarthy also

suitcases.

McCarthy

erroneously found

other items

challenges the

seizure

contends

the

that

that the seizure

discovered in his maroon

of the

of his

district

weapons and

two

court

the

suitcase properly came

within the "plain view" exception to the warrant requirement.

He argues that the

not

incriminating nature of the evidence

immediately apparent

to Deputy

Fulmer.

was

McCarthy also

contends that no credible

the

evidence established that he owned

seized weapons or that

suitcase.

With

respect

they were actually

to his

argues that the district

found in his

second suitcase,

McCarthy

court erred in finding that

he had

no expectation of privacy in the American Tourister suitcase.

McCarthy

maintains

that, though

he

left

the suitcase

Henderson's trailer, he left it closed and locked.

in

Moreover,

he contends that he had not abandoned the suitcase because he

intended to retrieve it

his arrest.

To

later in the evening

on the day

of

We find these arguments unpersuasive.

satisfy

warrant requirement,

law enforcement

the

"plain

the government

agent was legally

view"

exception

must show that

in a position

to

the

(1) the

to observe

the seized evidence, and (2) the incriminating nature

evidence

was "immediately

apparent"

to the

of the

officer.

See
___

-3131

United States
______________

v. Giannetta,
_________

909

1990).

incriminating

nature

The

"immediately apparent,"

F.2d 571,

of

if the officer,

the

578

(1st Cir.

evidence

upon observing

is

the

evidence,

has

contraband

or

nontechnical

probable

evidence

cause

of a

probability

to

believe

crime.

that

the

Id.
___

"A

incriminating

involved is all that is required."

item

is

practical

evidence

Texas v. Brown, 460

_____
_____

is

U.S.

730, 742 (1983) (quotations omitted).

While it

is true that the district court failed to

make an explicit finding on the "immediately apparent" prong,

the oversight

matters little

Deputy Fulmer

knew that McCarthy,

suspect

in

series

of

in the context

armed

of this

case.

along with Hunter,

was a

bank

robberies.

question, the automatic weapons, ammunition

Without

and bullet-proof

vest were all potential instrumentalities of such crimes.

We

think a finding that the incriminating nature of the evidence

was immediately apparent to

court's

refusal

Fulmer, implicit in the district

to suppress

the

weapons

and other

items

seized from the suitcase, is clearly supported by the record.

We also find little merit in McCarthy's contention

that

no

weapons

his

credible evidence

that

he owned

the

and other items seized or that they were actually in

suitcase prior

matter,

established

we

note

to

that

its being

opened.

McCarthy's

-3232

As

contention

an

initial

is

more

appropriately considered as an attack on the relevancy of the

seized

weapons rather than a fourth amendment issue.

McCarthy contends, he

did not

own the weapons

If, as

and did

not

store them in his suitcase, then the seizure does not violate

his fourth amendment rights because it did not intrude on his

privacy.

rights

See Sanchez, 943 F.2d

___ _______

are

personal).

allegation that he

other items is true,

On

did not

at 112-13 (Fourth Amendment

the other

hand,

own or possess

if McCarthy's

the weapons

then they would not have

and

been relevant

as

evidence in

his criminal

(evidence is relevant

more

or less

if it

probable).

trial.

See
___

Fed R.

tends to make

When, as

Evid. 401

a disputed

here, the

fact

relevancy of

specific evidence turns on a condition of fact -- whether the

suitcase

actually contained

items -- a court

seized

weapons and

shall admit it subject to

of evidence sufficient

Evid.

the

to fulfill that

other

the introduction

condition.

Fed.

R.

104(b); United States v. Trenkler, 61 F.3d 45, 53 (1st

_____________
________

Cir. 1995).

While Gene

the

lock off

suppression

supports

Ellison, the person who purportedly cut

the maroon

hearing,

the conclusion

we

suitcase, did

think

the

that the items

not testify

evidence

at the

adequately

seized were

in the

suitcase

prior to

although

Ellison took the padlock off

was

its opening.

Henderson

testified that,

the suitcase while he

in the other room, he, not Ellison, rummaged through the

-3333

suitcase

and found

the

weapons and

the bulletproof

vest.

Moreover, Henderson testified that the suitcase was extremely

heavy and that he needed Ellison's assistance to move it from

the back room of his trailer.

the

These facts reasonably support

inference that the weapons

suitcase

prior

to

Ellison's

Furthermore, that the items

and other items

removal

of

were in the

the

lock.

were in the suitcase, reasonably

supports the inference that they belonged to McCarthy.

Finally,

finding

that

privacy in

Based

on

McCarthy

no

had

no

the contents of the

Henderson's

supportably found

and open in

we find

clear error

legitimate

court's

expectation

of

American Tourister suitcase.

testimony,

that McCarthy

in the

the

left the

district

court

suitcase unlocked

the back room of Henderson's trailer,

which McCarthy did not have exclusive access.

a room to

Thus, McCarthy

clearly had assumed

the risk that Henderson might consent to

a search of the room (and that the search would extend to any

items,

like the suitcase, sitting open in plain view).

See,
___

e.g., United States v. Hall, 979 F.2d 77, 79 (6th Cir. 1992),
____ _____________
____

cert. denied, 113

_____ ______

S. Ct. 1357 (1993).

legitimate expectation

fact that he

after

leave.

Cir.

argument is

left the open

Henderson told

1987) (hotel

guest had

further undercut

suitcase in Henderson's

McCarthy

Cf. United States v.

___ _____________

Moreover, McCarthy's

that he

and

Rahme, 813 F.2d

_____

no expectation

-3434

by the

trailer

Hunter had

to

31, 34-35 (2d

of

privacy in

luggage

left

in

room

when,

because

of

his

arrest,

he

defaulted on rent due).11

B. Sentencing Issues
_____________________

We now turn to the issues Hunter and McCarthy raise

concerning their respective sentences.

the

district court

five-year

sentence

unfairly

under

Hunter complains that

sentenced him

18

U.S.C.

to a

mandatory

924(c)

while

simultaneously

enhancing

brandishing

firearm

his

total

during

and

Connecticut and Alabama robberies.

the district

court erroneously

sentence

run

to

sentence.

incorrectly sentenced

18 U.S.C.

924(e).

in

relation

ordered

contends

level

for

to

the

Hunter also contends that

consecutively

McCarthy

offense

to

his entire

his

that

him as an armed

federal

unexpired

the

state

district

court

career criminal under

We discuss each argument below.

1. Standard of Review
______________________

In

matters

for

the

sentencing

clear

error,

context,

and

such

we

review factbound

facts

need

supported by a preponderance of the

evidence.

v. Andujar,
_______

Cir. 1995).

49

F.3d 16,

25

(1st

only

be

United States
_____________

When

the

____________________

11.

McCarthy also challenges the

truck,
and
find

arguing that it was

the illegal search of

search of his Isuzu pickup

the fruit of

his illegal arrest

his maroon suitcase.

no error in either his initial

arrest or the search of

the suitcase,

we find no error

in the search of

Furthermore,

we

McCarthy's

also

reject

Because we

final

the truck.
challenge

concerning the search of his storage shed in Maine because it

is likewise

substantially predicated on

the assumption that

the earlier arrest and seizures were illegal.

-3535

sentencing

issues

involve questions

of law,

including the

applicability of a relevant guideline, our review is de novo.

__ ____

United States v. St. Cyr, 977

_____________
_______

Within

certain

F.2d 698, 701 (1st Cir. 1992).

limits, decisions

consecutive sentences

are committed

to

impose concurrent

to the judgment

or

of the

sentencing court, and such decisions are reviewed only for an

abuse of discretion.

1296, 1210 (1st

See United States v. Whiting,

___ _____________
_______

Cir.), cert.
_____

denied, 115 S.
______

499, 532 (1994).

2. Hunter's Sentencing Issues

______________________________

a. Brandishing Enhancement
___________________________

28 F.3d

Ct. 378,

498,

Section

2K2.4

of

the

Sentencing

Guidelines

provides, inter alia, that a person convicted under 18 U.S.C.

_____ ____

924(c) shall

required

18 U.S.C.

be sentenced

by the statute.

to a

term of

U.S.S.G.

imprisonment as

2K2.4(a).12

In turn,

924(c) specifies that any individual convicted of

using a firearm during and in relation to a crime of violence

or a drug trafficking crime shall be sentenced to a mandatory

term

of

at

least

consecutively to

five

years

imposed

prison

any other punishment.

Application Note 2 to U.S.S.G.

Where

in

sentence
in

____________________

be

18 U.S.C.

2K2.4 adds that:

under

conjunction with

for an underlying

to

offense, any

2K2.4]

is

a sentence
specific

served

924(c).

12.

All guidelines' citations,

are to

the November

unless otherwise

1994 Guidelines Manual,

effect on the date of sentencing.

indicated,

the manual

See U.S.S.G.
___

in

1B1.11.

-3636

offense

characteristic

possession,

use,

or

explosive or firearm
applied in respect

for

discharge

the
of

. . . is not
to the guideline

an

to be
for

the underlying offense.

U.S.S.G.

2K2.4,

comment. (n.2).

Thus, where a

defendant

receives

mandatory

consecutive

firearm during a crime

924(c), a court

sentence for

use

of violence, pursuant to 18

of

U.S.C.

should not also enhance the defendant's base

offense level for the underlying crime of violence to account

for the use of the firearm.

Id.; see also U.S.S.G.

___ ___ ____

3D1.1,

comment. (n.1).

In this

case,

sentencing purposes,

Connecticut and Maine

separate counts

bank

count

robberies.

the

district

the conspiracy

See U.S.S.G.
___

charging a conspiracy to

treated,

to commit the

bank robberies in

of conspiracy

court

Alabama,

Count One as

to commit the

for

three

three separate

1B1.2(d) ("A conviction on a

commit more than one offense

shall be treated as if the defendant

had been convicted on a

separate

count

defendant

of

conspiracy

conspired to

commit.").

calculated a separate base

and then combined

total offense

the

district

the

offense

Accordingly,

level.

Alabama

See U.S.S.G.
___

offense

and

court -- in both

that

the

the court

offense level for each conspiracy

these levels together to

separate base

commit

for each

3D1.4.

levels for

the

produce a single

In calculating

the conspiracies

Connecticut

robberies,

to

the

instances -- applied a five-level

-3737

enhancement

for

2B3.1(b)(2)(C).

brandishing

Because the

firearm.

U.S.S.G.

924(c) charge related to the

Maine bank robbery, however, the district court did not apply

the brandishing enhancement when calculating the base offense

level for

that conspiracy.

See U.S.S.G.
___

2K2.4, comment.

(n.2).

Hunter contends

that the

district court

erred in

its calculation, contending that it should not have separated

the Alabama and Connecticut

robberies from the Maine robbery

in determining whether to apply the brandishing

Hunter

argues that

states

that

Application Note

where the

conjunction with

924(c)

a sentence

enhancement.

to

2K2.4 clearly

sentence is

imposed

for the underlying

"in

offense" no

enhancement may be applied, and, in this case, the underlying

offense was collectively the

three

bank

district

robberies.

court

to the

Connecticut

robberies

"underlying offense."

We decline

"the underlying

the

application

Therefore,

should

enhancement

not

have

because

Hunter concludes,

applied

conspiracies to

the

the

brandishing

commit the

Alabama and

they

were

part

of

the

We do not agree.

Hunter's invitation to read

offense" in

of

entire conspiracy to commit the

the

Application Note 2

brandishing

the phrase

to preclude

enhancements

to

the

conspiracies to commit the Alabama and Connecticut robberies.

First,

1B1.2(d) clearly

instructs the sentencing

court to

-3838

treat

count

offenses as

charging

a conspiracy

separate counts

to

commit

of conspiracy for

the defendant conspired to commit.

U.S.S.G.

multiple

each offense

1B1.2(d); see

___

also U.S.S.G.
____

that

3D1.2, comment.

the Sentencing

purposes of

multiple

(n.8).

Commission does

as

constituting

it is

not consider,

applying the guidelines, a

offenses

Thus,

one

clear

for the

conspiracy to commit

single

integrated

offense.

Moreover, the

brandishing

Note 2.

counting.

district court's application

enhancement does

Application Note

See
___

not

undercut the

2 is intended

U.S.S.G.

2K2.4,

of the

purposes of

to prevent

double

comment. (backg'd)

avoid double counting, when a sentence under this section

imposed

in conjunction

with

a sentence

for an

("To

is

underlying

offense, any specific offense characteristic for explosive or

firearm

discharge,

respect to

such

use, or

to

is

underlying offense.").

double counting occurred.

was

possession

In

not applied

in

this case,

no

Hunter's conviction under

924(c)

for using or carrying the firearm during and in relation

the

Maine

eschewed

applying

calculating

commit

robbery,

that

the

and the

the

brandishing

offense level

offense.

district

The

for

court

court

carefully

enhancement

Hunter's

when

conspiracy to

applied the

brandishing

enhancement only when calculating the offense levels relating

to the

Alabama and

Connecticut robberies.

-3939

Thus, the

same

conduct

did

not unfairly

give

rise to

both

a sentencing

enhancement and a separate mandatory sentence under 18 U.S.C.

924(c).

b. Consecutive or Concurrent Sentences

_______________________________________

In 1988,

court to possession

result, he

prison.

Hunter pled

guilty in Connecticut

of cocaine with

was sentenced

to a term

After serving three

intent to

of ten

sell.

years in

years, the balance of

state

As

state

Hunter's

sentence

was suspended

probation.

and he

robbery.

occurred,

an

Shortly

order

charging

probation was issued, and,

Connecticut state

sentenced

three years

Hunter was still on probation at the time of the

Franklin

was released on

him to

unexpired portion

of

the

Hunter

Franklin

with

robbery

violation

of

ultimately, on November 16, 1993,

revoked

seven-years

cocaine possession).

Hunter was

court

after

Hunter's probation

and

imprisonment (apparently

the

his suspended

ten-year

sentence

for

At the time of sentencing in this case,

serving the

remainder of his

Connecticut prison

term.

At Hunter's federal sentencing, the

ruled

that

his

entire

federal

consecutively to his state sentence.

sentence

district court

should

run

In so ruling, the court

relied on U.S.S.G.

the

5G1.3(c), which provides that

sentence

for

the

shall be imposed to run

the

prior

instant

consecutively to

undischarged

imprisonment to the

offense

term

extent necessary

of
to

-4040

achieve

reasonable

incremental

punishment for the instant offense.13

The court

effectively held that, because

the state sentence

stemmed not just from the underlying cocaine offense but also

from the separate

probation violation, the federal

should run consecutively

to the state

sentence

sentence in order

to

insure the necessary incremental punishment.

____________________

13.

The

district

court

5G1.3(a) or (b) governed

part, U.S.S.G.

correctly

ruled

that

Hunter's sentencing.

neither

In relevant

5G1.3 provides:

5G1.3 Imposition of a Sentence on a Defendant

__________________________________________
Subject to an Undischarged Term of Imprisonment
_______________________________________________

(a) If the

instant offense was committed

while the defendant was serving a term of

imprisonment
furlough,

or

(including
escape

work

status)

release,
or

after

sentencing
service
the

for,

of,

sentence

but

before

such term
for

commencing

of imprisonment,

the

instant

shall be imposed to run

offense

consecutively to

the undischarged term of imprisonment.

(b) If subsection (a) does not apply, and

the

undischarged

term

of

resulted from offense(s)

fully

taken

determination

into
of

imprisonment

that have

account

in

the offense

been
the

level for

the instant offense, the sentence for the

instant

offense shall be

imposed to run

concurrently to the undischarged

term of

imprisonment.

(c) (Policy Statement) In any other case,

the

sentence

for

the

shall be imposed to run

the

prior

offense

consecutively to

undischarged

imprisonment to the
achieve

instant

term

extent necessary

reasonable

to

incremental

punishment for the instant offense.

-4141

of

On

appeal,

Hunter

contends

that,

in

applying

subsection (c) and sentencing

Hunter to a wholly consecutive

federal sentence, the district

court erred because it failed

to

follow the

method outlined

in Application

Note 3

to

5G1.3 for calculating the appropriate incremental punishment.

Note 3 provides that:

[t]o

the

extent practicable,

should consider

the court

a reasonable incremental

penalty to be a sentence

for the instant

offense

that

sentence
________

of
__

approximates
____________
would
_____

results
_______

have
____

(Sentencing

in
__

a
_

combined
________

imprisonment
____________

the
___

that
____

total punishment
_____ __________

been
____

imposed
_______

under
_____

on

Multiple

that
____
5G1.2
______

Counts

Conviction) had all of the

___ ___ __ ___

of

offenses been
________ ____

federal offenses for which sentences were

_______ ________
being imposed at the same time.

U.S.S.G.

5G1.3, comment. (n.3) (emphasis

United States
_____________

1994)

v. Whiting,
_______

(plain error

sentence

wholly

28 F.3d

for sentencing

consecutive

to

added); see also

___ ____

1296, 1210-11

court to

state

impose federal

sentence

attempting to compute the proper equivalent total

called

for by Note 3).

Thus, Hunter

(1st Cir.

without

punishment

contends that, before

sentencing him to a wholly consecutive sentence, the district

court

should

have calculated

received if the revocation of

robbery offenses

the

had all been federal offenses

First, as noted,

in cases where it

he would

have

probation and the instant bank

was sentenced at the same time.

court,

sentence

for which he

We disagree.

5G1.3(c) instructs the

district

applies, to sentence defendants to

-4242

consecutive sentences

"to the extent necessary

reasonable incremental punishment."

prescribes

method

for

to achieve a

Then, Application Note 3

calculating

the

"reasonable

incremental punishment" that we have recognized applies in "a

good many of the cases likely to arise under subsection (c)."

United States v.
______________

Gondek,
______

Implicit

recognition,

in this

although the method applies

not cover every case.

U.S.S.G.

the court

1,

3 (1st

however, is

Cir.

in a "good many cases,"

that,

it does

3 itself

prescribes is intended only "to

in determining the

5G1.3, comment.

1995).

the fact

Indeed, as Application Note

explains, the methodology it

assist

65 F.3d

appropriate sentence."

(n.3); cf. id.

___ ___

(cautioning that

method

should

be

practicable").

followed

Therefore,

only

while

it

"[t]o

is

the

evident

extent

that

sentencing court should initially look to Note 3 for guidance

in

calculating an

appropriate

incremental

punishment,

nonetheless has discretion to follow a different

small

number of

impracticable

punishment.

cases where

and result

See, e.g.,
___ ____

in

adherence to

an

United States v.
_____________

course in a

Note 3

inappropriate

it

would be

incremental

Brassell, 49 F.3d
________

274, 278 (7th Cir. 1995) (court has discretion in appropriate

circumstances to disregard

methodology outlined in Note

3),

United States v. Torrez 40 F.3d 84, 87 (5th Cir. 1994)(same).

_____________
______

In this

following

case, the district

a different course.

court did

First, it is

not err

by

far from clear

-4343

how, and if, Application Note 3 applies to the

case.

facts of this

None of the four detailed examples outlined in Note 3

explain how to sentence a defendant who is serving out a term

following the revocation of probation.

See U.S.S.G.
___

5G1.3,

comment.

(n.3).

Moreover, the text of Note 3 instructs that

the incremental punishment should

be calculated according to

the grouping rules set forth in

5G1.2.

the

refers), however,

other sections to

discuss

how

to

which it

handle

sentenced

Section 5G1.2

imposed

probation revocation.

The guidelines

imposed

violations separately

Ch. 7.

for probation

(and

does not

following

do discuss

sentences

under U.S.S.G.

Significantly, Application Note 5 to U.S.S.G.

7B1.3

instructs that

it

is

the

Commission's

recommendation

that any sentence

of imprisonment for

criminal

that is

revocation

offense
of

probation

imposed after
or

supervised

released be run consecutively to any term

___ ____
of imprisonment imposed upon revocation.
__ ____________

U.S.S.G.

7B1.3,

comment.

(n.5) (emphasis

added).

If

anything, Note

district

correct.

5 suggests

court, imposing a

See Torrez,
___ ______

40

that the

course followed

by the

wholly consecutive sentence, was

F.3d

at

87-88

(Section

7B1.3

suggests that -- as in this case -- notwithstanding Note 3 to

5G1.3,

imposition of wholly consecutive

sentence would be

appropriate in case involving a probation revocation).

Furthermore,

whether,

in a

Application Note

situation like

3 fails

the present,

-4444

to explain

a court

should

consider the underlying state drug

the

equivalent federal

conviction in calculating

sentence.

In his

argument, Hunter

ignores the underlying drug possession and contends that Note

3 requires

for federal

for

the court to combine only

probation revocation with the guideline sentence

the instant

bank

however, fails to

Hunter

drug

to the

sentence,

Hunter for

the guideline sentence

robbery charges.

account for the

unexpired portion

the state

both the

court

Such

an approach,

fact that, in

of his

sentencing

suspended ten-year

arguably

probation violation and

aimed to

punish

the underlying

cocaine

F.2d

possession.

344,

court

346-47

Cf. United States v.

___ ______________

(8th Cir.

to calculate

1992)

appropriate

(instructing sentencing

incremental

estimating equivalent federal sentence

other

instant

offenses

and combining

federal

sentencing,

was

that

offense where

serving

Gullickson, 981
__________

by

for state forgery and

with

defendant,

state

punishment

prison

the sentence

at

the time

term

for

of

following

revocation of probation imposed for state forgery conviction;

court notably

did not instruct sentencing

court to estimate

federal penalty for probation violation).

Finally, we

note that Hunter's case

usual situation governed by

is unlike the

5G1.3(c), in which the offenses

supporting the separate sentences arise from related conduct.

See Gondek, 65 F.3d at 3.

In such cases (e.g., a state drug

___ ______

charge and

____

a related

federal

firearms charge),

sentencing

-4545

according to

Note 3

the grouping rules as

makes much sense.

suggested by Application

In other words,

when the federal

sentence arises from conduct or acts directly related to that

on which

the state

guidelines'

sentence

is based,

grouping rules accords

application of

the

with fairness principles

inherent in the guidelines by "limit[ing] the significance of

the formal charging

punishment

for

U.S.S.G. Ch.3

decision and . . . prevent[ing] multiple

substantially

Pt.D,

however, is different.

arise

from

conduct

identical

intro. comment.

offense

Hunter's

conduct."

situation,

The federal bank robbery convictions

completely

unrelated

to

possession that lies at the heart of the state

the

cocaine

sentence.

In

cases like Hunter's, where the acts or conduct giving rise to

the

different

rationale of

sentences

are

not

closely

the guidelines' grouping rules

Indeed, Hunter's situation

of the defendant

related,

the

does not apply.

is more "closely akin to the case

who commits

a new offense

while still

in

prison,

instructs

the very

that

consecutively."

situation in

the

new

which [U.S.S.G.

sentence

is

to

5G1.3(a)]

be

served

Gondek, 65 F.3d at 3.
______

Accordingly, we do not

believe that the method for

calculating a "reasonable incremental

in

Application Note 3

In

short, it would not

punishment" prescribed

clearly addresses Hunter's situation.

have been "practicable"

the inconsistencies outlined above

-4646

in light of

for the district court to

have attempted to follow Note 3, and, thus, it did not err in

failing to

otherwise

do so.

Moreover, we

abused its

wholly consecutive

do

discretion in

not think

the

sentencing Hunter

federal sentence.

The court

court

to a

carefully

considered the circumstances of this case and determined that

such a sentence was necessary in order to insure a reasonable

incremental punishment for the federal bank robbery charges.

Furthermore, we believe the Sentencing Commission's

adoption

implicitly

in 1993 of Application

supports

this

Note 4 to

conclusion.

In

U.S.S.G.

cases

5G1.3

where

defendant has committed a federal offense while on probation,

Note

4 expressly

determining

that

limits

a district

court's discretion

in

a reasonable incremental punishment by providing

the court must order the entire federal sentence to run

consecutively

to

any sentence

probation.

See
___

U.S.S.G.

imposed

upon

5G1.3,

revocation of

comment.

(n.4).14

____________________

14.

In

order

to

avoid

any ex
__

post
____

facto
_____

concerns, the

district court expressly declined to rely on Application Note

4, enacted

November 1, 1993

(prior to sentencing

the underlying criminal acts), which provides:

4.

If the

state

probation,

release

at

offense,

and

parole,

defendant was on

or

the
has

federal or

parole, or
time
had

of

supervised
the

such

supervised release

instant

probation,
revoked,

but after

the

sentence

should

be

for

the

imposed

instant
to

be

offense
served

consecutively to the term imposed for the

violation

of

probation,

parole,

or

supervised release in order to provide an

incremental penalty for the
probation, parole,

violation of

or supervised release

-4747

Significantly, the

Sentencing Commission

added Note 4

to

5G1.3 without altering in any way the language of Application

Note

Thus,

in doing

recognized

that,

prior

sentencing

court at

cases

3.

like Hunter's

so,

to

the

the

the very

Commission

adoption

4,

the discretion

in

revocation cases)

to

least had

(e.g., probation
____

of

implicitly

Note

ignore the methodology set forth in Note 3 and order a wholly

consecutive sentence.

3. McCarthy's Sentencing Issue

_______________________________

Finally, McCarthy challenges

use of his seven

subject to sentencing

924(e).

should not

court's

prior state attempted-murder convictions as

single predicate

U.S.C.

the district

offense

in determining

as an armed

McCarthy contends

have considered the

whether he

career criminal under

that the

was

18

district court

attempted-murder convictions

because they arose out of the same incident that gave rise to

____________________

(in accord

with the policy

expressed in

7B1.3 and 7B1.4).

U.S.S.G.

5G1.3,

unnecessary to rely

comment.
on Note

(n.4).
4, and, thus,

We

also
do not

find

consider

whether it poses any significant ex post facto concerns.

__ ____ _____

-4848

it

"non-qualifying" bank

larceny

conviction.15

We do

not

agree.

As

the government

explains, the

sentencing court

did not count the larceny conviction as a separate

offense, but

instead counted only the state attempted-murder

convictions (and

predicate

predicate

the court counted

offense).

Thus,

the

those only

district

consider an arguably non-qualifying predicate

as a

court

single

did

not

offense (i.e.,

the bank larceny conviction) in determining whether it should

sentence McCarthy

implicit contention

rise

to both

as an

armed career criminal.

that, whenever

qualifying and

sentencing court may consider

the

McCarthy's

same conduct

non-qualifying

gives

convictions, a

neither in determining whether

defendant qualifies as an armed career criminal is completely

without logic or support.

Accordingly, McCarthy's complaint

lacks merit.

III.
III.
____

Conclusion
Conclusion
__________

For the foregoing reasons, we affirm.

affirm

____________________

15.

18

U.S.C.

924(e)

provides,

inter
_____

alia,
____

that

an

individual shall be sentenced as an armed

career criminal if

he

922(g)

or

she

has

possession of
by

violated

18

U.S.C.

a firearm) and has

any court for a

three previous convictions

violent felony, serious

both, committed on occasions different from

this case,
bank

the district

(unlawful

court held that

drug offense or
one another.

In

McCarthy's federal

larceny conviction did not qualify as a violent felony.

We have no need to review that decision.

-4949