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Second Circuit Affirms Reasonableness of Extended Terry Stop: Two Brothers, 145 Pounds of Marijuana, and a “Sudden Pepper Emergency”

In United States v. Compton, 15-942-cr (Walker, Raggi, Hall), the Second Circuit held that an extended Terry stop by Border Patrol agents was justified by reasonable suspicion and declined to suppress evidence obtained during the stop.  Compton confirms the proposition that a court may consider a defendant’s attempt to avoid a checkpoint as a relevant factor in the “reasonable suspicion analysis” and highlights the fact-intensive nature of that analysis.

Background and the Decision Below

On August 23, 2013, Border Patrol agents set up an immigration checkpoint near the Canadian border in Chateaugay, New York.  Eastbound drivers approaching the checkpoint would first see the sign alerting them to its presence as they summited a hill, shortly before passing a nearby vegetable stand.  

At approximately 8:00am that morning, the defendant Peter Compton and his brother were travelling eastbound towards the checkpoint.  Border Patrol Agent Gottschall, who was parked between the checkpoint and the vegetable stand, observed Compton’s SUV reach the top of the hill, rapidly decelerate, and then turn into the driveway of the stand.  Gottschall also received a call from an agent stationed at the checkpoint reporting that a motorist had complained that an SUV had passed her vehicle and then suddenly slowed down upon reaching the crest of the hill. 

Armed with his observations and the motorist’s tip, Agent Gottschall drove to the vegetable stand and parked behind Compton’s SUV.  Agent Gottschall observed Compton and his brother walking away from the vegetable stand, each carrying a pint of peppers.  Agent Gottschall ordered the men to return to their vehicle, where he asked for their identification and began to question them.  As Agent Gottschall was returning to his Border Patrol vehicle to check their IDs, he noticed a blanket on the rear seat of the SUV that appeared to be concealing something. 

His suspicions having been further aroused by the blanket, Agent Gottschall contacted an agent at the checkpoint to request that a canine be brought to inspect the SUV.  Agent Gottschall then informed Compton and his brother that the Border Patrol would be conducting a canine sniff.   He also removed the brothers from the SUV and placed them handcuffed inside separate Border Patrol vehicles.

As the dog was led around the SUV, it alerted to the rear door.  When the door was opened and the dog entered the vehicle, it alerted to four duffle bags, which were later found to contain approximately 145 pounds of marijuana.  At this point, Border Patrol agents informed Compton and his brother that they were being placed under arrest.

After being indicted on charges of conspiracy and possession with intent to distribute, Compton moved to suppress the physical evidence obtained during the stop and seizure.  Compton raised three arguments in support of his motion:  (1) the Border Patrol lacked reasonable suspicion to detain him, (2) the Border Patrol had unreasonably extended the initial investigatory detention, and (3) the agents converted the stop into an arrest without probable cause when they handcuffed him and placed him in the back of a Border Control vehicle.  The lower court rejected Compton’s first two arguments, finding that the initial stop and Agent Gottschall’s decision to extend it were justified by reasonable suspicion.  Although the lower court agreed that the stop became an arrest without probable cause at the time Compton was handcuffed and placed in the patrol car, it ultimately denied Compton’s motion to suppress, finding that the agents would have discovered the marijuana via the canine sniff regardless of whether Compton had already been placed under arrest.  The Court thus held that the evidence in question was admissible pursuant to the independent source exception to the exclusionary rule.  In light of the lower court’s ruling, Compton entered a conditional guilty plea to the possession charges and filed a timely appeal.

The Circuit Affirms the Ruling Denying Suppression

The Circuit, reviewing the lower court’s decision de novo, agreed that Compton’s extended detention was justified under the Fourth Amendment and affirmed the denial of his suppression motion.

The Court began with a brief overview of the Fourth Amendment standards governing investigatory detention, reciting the familiar standard that a Terry stop is permitted where the detaining officer has “‘reasonable suspicion’ that the person to be detained is committing or has committed a criminal offense.”  Such suspicion must be supported by “specific and articulable facts” that provide “a particularized and objective basis for suspecting wrongdoing.”  Courts evaluating the reasonableness of an officer’s suspicion must take into account “the totality of the circumstances” as viewed through “the eyes of a reasonable and cautious officer on the scene.”  This general standard is meant to guide the analysis of the facts.

Applying this standard, the Court concluded that Agent Gottschall had reasonable suspicion to detain Compton based on the totality of the circumstances surrounding the stop, including:  (1) Compton’s avoidance of the checkpoint, (2) the checkpoint’s proximity to the border, and (3) Compton’s “peculiar” attempt to conceal his avoidance.

Reviewing the lower court’s factual findings for clear error, the Circuit agreed that Compton had attempted to avoid the checkpoint prior to his detention.  The Court noted that Agent Gottschall’s observation that the SUV slowed down and veered off the road as soon as the driver could have first observed the checkpoint sign was corroborated by the contemporaneous report of a passing motorist.  The Court also emphasized Agent Gottschall’s testimony based on his professional experience that Compton’s quick turn off the road was consistent with evasive behavior.

The Court cautioned, however, that “[a]voidance of a checkpoint alone is probably insufficient to establish reasonable suspicion.”  Rather, evasive behavior may be considered as a relevant factor that can support a finding of reasonable suspicion “when combined with other relevant circumstances.”  The Court noted that a number of other circuits had acknowledged this principle, although it had only been confirmed in a summary order within the Second Circuit prior to this decision.  See United States v. Sanders, 208 F.3d 204 n.2 (2d Cir. 2000).

The Court next found that the proximity of the checkpoint to the border represented an additional relevant circumstance supporting a finding of reasonable suspicion. The Court rejected Compton’s argument that the government had failed to establish such proximity, citing Agent Gottschall’s testimony that immigration checkpoints are set up “to capture anything that’s crossing the border,” and taking judicial notice of the fact that Chateaugay, New York is on the U.S.-Canadian border. 

The Court placed the greatest emphasis on the third and final circumstance supporting Agent Gottschall’s reasonable suspicion—his observation of what the Court dubbed “the precipitous pepper purchase.”  The Court found that Agent Gottschall could reasonably interpret Compton’s purchase as an attempt to conceal his avoidance of the checkpoint based on the fact that the early morning vegetable purchase was unlikely to be the result of “a sudden pepper emergency” requiring a reversal of course and was inconsistent with a simple desire to avoid the delay of passing through the checkpoint.  As the Court reasoned, “the improbability of a pepper emergency occurring immediately upon the appearance of a border checkpoint rendered the brothers’ ruse even more suspicious.”

Having concluded based the totality of the circumstances that there was a sufficient basis for the initial investigatory detention, the Court then turned to the question of whether the stop had “ripen[ed] into a de facto arrest” when Agent Gottschall further detained Compton in order to conduct the canine sniff of his SUV.   Ultimately, the Court held that Agent Gottschall’s conduct fell within the permissible scope of a Terry stop for two reasons:  (1) because the Terry stop did not actually begin until Agent Gottschall ordered the brothers to return to their vehicle, and (2) because the stop was reasonable in duration from that point on.

The Court rejected Compton’s argument that the stop began as soon as Agent Gottschall arrived at the vegetable stand, noting that although he had parked directly behind Compton’s SUV and turned on his lights, the vegetable stand driveway was U-shaped, and thus Compton was not physically blocked from leaving the stand.  Because Agent Gottschall made no further effort to restrain Compton’s movements until he ordered Compton back to the SUV, the Terry stop did not begin until Agent Gottschall gave this order.

Finally, the Court concluded that from that point on, the Terry stop complied with the requirements of the Fourth Amendment.  The Court found that based on his professional experience, Agent Gottschall’s initial suspicions of Compton were heightened when he observed a blanket concealing something in the back seat of the SUV.  This heightened suspicion justified Agent Gottschall in extending the stop to investigate further.  The Court also found that Agent Gottschall conducted the subsequent investigation with reasonable promptness, noting that the process of initiating and conducted the canine sniff lasted no longer than six minutes.  The fact that Compton was handcuffed at the time did not change the Court’s analysis, as it concluded that the Border Patrol would have discovered the marijuana via the canine sniff even without placing the brothers in handcuffs in separate vehicles.

Analysis

Compton is notable for confirming the principle recognized in other Circuits that although a defendant’s avoidance of a checkpoint alone is insufficient to support a finding of reasonable suspicion, courts may consider such evasive behavior as a relevant factor in the reasonable suspicion analysis when combined with other circumstances.  Although the Court here placed the greatest emphasis on Compton’s behavior in attempting to conceal his avoidance of the checkpoint, the Court’s view of the so-called “precipitous pepper purchase” was necessarily colored by its prior consideration of Compton’s previous evasive maneuvers.

Compton also underlines the fact-intensive nature of the reasonable suspicion analysis.  Practitioners should ensure they develop the factual record with respect to both the circumstances leading to the initial stop and to the detaining officer’s conduct of the subsequent investigation in order to marshal the strongest arguments in defense of their clients.  The case is also a reminder that when the analysis is very fact-specific, courts will often rely heavily on facts—like the early morning purchase of peppers at farm stand, or the presence of a blanket in the back seat of a car—that might otherwise seem innocent.  Although one might think that the accumulation of innocent facts should lead to a finding of no reasonable suspicion, because zero plus zero is usually zero.  But Compton and other courts often have held otherwise.

-By Jacqueline L. Bonneau and Harry Sandick