US v. Hunter
Case Date: 03/29/1996
Court: United States Court of Appeals
Docket No: 95-1105
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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 that pages 6-7 of the opinion, released on February 26, 1996, are modified to include the following underlined language and the footnotes shall be renumbered as indicated: Following his release, Hunter remained the focus of the Franklin robbery investigation. The investigation involved a cooperative effort between the Connecticut State Police, the Federal Bureau of Investigation ("FBI"), and, ultimately, law enforcement officials in Alabama and Maine. During the course of the ________________________ investigation, James Hall2 revealed to _____________________________________________ 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 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 any way, in the Franklin robbery. subsequently learned that the real John E. ____________ Perry had lost his Alabama license prior to the Franklin bank robbery and that McCarthy had used the alias John Perry in Florida following an arrest there.3 The real John E. Perry, who lived in Alabama, identified __________ McCarthy as James Hardiman, an individual who _____________________________________________ had been involved with his former wife. _____________________________________________ Investigators also learned that, in 1991, Hunter and McCarthy had spent time 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 for __________________ ___________________ appellant Aedan C. McCarthy. Henry W. Griffin for appellant Jeffrey Scott Hunter. ________________ Margaret D. McGaughey, Assistant United States Attorney, with ______________________ whom Jay P. McCloskey, United States Attorney, and Jonathan R. __________________ ____________ Chapman, Assistant United States Attorney, were on brief for appellee. _______ ____________________ February 26, 1996 ____________________ STAHL, Circuit Judge. Following a three-day trial, STAHL, Circuit Judge. _____________ a jury convicted defendants Aedan McCarthy and Jeffrey Scott Hunter of various charges stemming from a series of bank robberies in Alabama, Connecticut and Maine. On appeal, McCarthy and Hunter challenge the district court's refusal to grant their respective suppression motions. In particular, Hunter challenges the district court's failure to suppress evidence produced as the result of an investigatory stop following the Connecticut robbery. McCarthy and Hunter also raise several challenges to their sentences. After careful review, we affirm. I. I. __ Background Background __________ In reviewing a district court's denial of motions to suppress, we recite the facts as found by the district court to the extent that they derive support from the record and are not clearly erroneous. See, e.g., United States v. ___ ____ ______________ Sealey, 30 F.3d 7, 8 (1st Cir. 1994). Where specific ______ findings are lacking, we view the record in the light most favorable to the ruling, making all reasonably supported inferences. See United States v. Kimball, 25 F.3d 1, 3 (1st ___ ______________ _______ Cir. 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, Connecticut. Each man wore a plastic, Halloween-type mask, covering his entire face, and each was -3- 3 armed, one with a pump-action shotgun and the other with a semi-automatic pistol. The man carrying the shotgun stood in the bank's lobby, issuing commands, while the other vaulted the teller's counter and collected the money. They fled the bank in a light-blue GMC Jimmy truck. A short time later, the Connecticut State Police located the truck, abandoned in an industrial park less than a mile from the 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, the police issued an updated radio bulletin, indicating that the two suspects were now believed to be travelling in the red Pontiac Sunbird. About 2:30 p.m., Officer Arthur Richard of the Norwich Police Department spotted a red Pontiac Sunbird bearing Rhode Island license plates at a gas station, not far from Franklin. Officer Richard reported the sighting, and, after the car left the station, stopped the vehicle as it prepared to enter an interstate highway. Officer Richard ordered the driver out of the Sunbird, patted him down for weapons and directed him to take a seat in the back of his police cruiser. The police cruiser's internal rear door handles were not functional and a plastic spit guard and a wire cage separated its rear and front seats. Officer Richard did not handcuff the driver. -4- 4 In response to Officer Richard's questioning, the driver identified himself as Hunter. Officer Richard ran a registration check on the Sunbird and learned that it was registered to a rental agency at a Rhode Island airport. Hunter told Richard that a friend had rented the automobile for him because his own car was under repair. Hunter, however, refused to identify the friend. Within minutes, several other police officers, including Connecticut State Troopers Jerry Hall and Louis Heller, arrived on the scene. Trooper Hall spoke to Hunter through 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. At Hall's request, Hunter took a field sobriety test, which he passed. About 2:43 p.m., Trooper Hall advised Hunter of his Miranda rights and informed him that, although he was not _______ under arrest, he was being detained for investigative purposes. Hunter stated that he understood his rights and waived them, but nonetheless declined to say where he had been since 1:00 p.m., stating only that he had been with a "Born-Again-Christian" friend. At some point, Trooper Hall explained that the officers were detaining him because his Pontiac Sunbird matched identically the description of a vehicle involved in a bank robbery that had occurred earlier -5- 5 that day. Trooper Hall continued to question Hunter intermittently for about forty-five minutes. During that time, other officers drove a teller from the bank by the cruiser in an unsuccessful attempt to identify Hunter as one of the robbers. In addition, Trooper Hall took 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, a black male, who had listed Hunter, who is white, on the rental agreement as a co-driver.1 After receiving this information, Heller went to a nearby bar and questioned patrons in an attempt to determine whether Hunter and another individual had stopped there earlier. Upon returning to the police cruiser in which Hunter was still being detained, Trooper Heller asked Hunter where he had been prior to the stop. Hunter replied that he had not been anywhere near Franklin, but instead had spent the day at a friend's place in the woods. Hunter, however, claimed not to remember his friend's name nor where the place was located. On the basis of the information he had obtained from the rental car agency, Trooper Heller then asked Hunter if his friend was black. With this question, Hunter became ____________________ 1. Trooper Heller obtained Lance Hall's driver's license number from the rental agency. He obtained a physical description of Hall after requesting a check on the license with the Connecticut State Police. -6- 6 agitated, swore at Heller, and, while gesturing in one general direction, told him to find out for himself. This occurred about 3:45 p.m., approximately seventy-five minutes after Officer Richard initially stopped Hunter. Trooper Heller knew the area well and could think of only one black male living in the general direction in which Hunter had gestured. Consequently, Trooper Heller drove to that person's house and inquired whether Hunter had visited earlier that day. The black male living at the house identified himself as James Hall and stated that Hunter had been there with another man named John. According to James Hall, Hunter and John had borrowed James Hall's truck earlier in the day and had later returned to Hall's house to change their clothes. After interviewing James Hall, Heller returned to where Hunter was being detained and, 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 cooperative effort between the Connecticut State Police, the Federal Bureau of Investigation ("FBI"), and, ultimately, law enforcement officials in Alabama and Maine. During the course of 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 any way, in -7- 7 to 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 subsequently learned that the real John E. Perry had lost his Alabama license prior to the Franklin bank robbery and that McCarthy had used the alias John Perry in Florida following an arrest there.3 The real John E. Perry, who lived in Alabama, identified McCarthy as James Hardiman, an individual who had been involved with his former wife. Investigators also learned that, in 1991, Hunter and McCarthy had spent time together as cellmates in a Connecticut state prison. As the investigation progressed, Connecticut authorities apprised FBI agents in Alabama, who were investigating a series of similar Alabama bank robberies, of the events surrounding 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 might be living in Chilton County, Alabama. Agent Ridlehoover alerted the Chilton County Sheriff's Department that the two men were suspects in a series of bank robberies in Alabama and Connecticut and sent ____________________ the Franklin robbery. 3. James 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". -8- 8 the department photographs of McCarthy and Hunter. Initially, Ridlehoover told the Chilton County Sheriff's Department that the FBI wanted to have the two men kept under surveillance. Subsequently, Ridlehoover informed the Sheriff's Department that a federal arrest warrant for unlawful flight from prosecution had been issued for Hunter. C. Alabama Arrests of Hunter and McCarthy __________________________________________ While driving to work on the morning of April 23, 1993, Deputy Wayne Fulmer, assistant chief deputy of the Chilton County Sheriff's Department, noticed a pickup truck bearing Maine license plates. 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. Fulmer knew at this time that FBI investigators were looking for an individual using the alias John E. Perry in connection with a series of bank robberies in Connecticut and Alabama. Later that morning, a woman at the local power company, who had been shown a photograph of Hunter, reported that a person resembling Hunter had requested that power be turned on at his trailer. After receiving this report, Fulmer brought a copy of Hunter's photograph to the woman and asked her to notify the Sheriff's Department if the man returned. A short time later that day, the woman reported that Hunter had returned. Upon learning this, Fulmer left -9- 9 for the power company and requested several back-up units to meet him there. On the way, Fulmer alerted by radio the other officers responding to the scene that an outstanding federal warrant existed for Hunter's arrest. The first officer to arrive at the power company identified himself to Hunter and asked to speak to him. In response, Hunter turned and ran. The officer radioed that the suspect was fleeing on foot and then gave chase. Several officers eventually caught and arrested Hunter. A search incident to the arrest disclosed an envelope containing $6039 in cash on Hunter's person. Over two weeks later, on May 11, 1993, 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 Hunter was fleeing on foot, Deputy Fulmer, who had yet to reach the power company, spotted the same pickup truck, which he had seen earlier in the day, heading away from the power company. Fulmer directed an Alabama state trooper who was following him to turn around and stop the truck. At this point, Fulmer did not know the identity of either the person driving the truck or the person who had fled on foot. After stopping the truck, the state trooper asked the driver for identification. The driver of the truck, McCarthy, falsely identified himself as John E. Perry -10- 10 and gave the trooper a Maine driver's license bearing that name. Subsequently about 12:15 p.m., McCarthy was taken into custody and transported to the Chilton County Courthouse. McCarthy was searched and approximately $2000 in cash was found on his person. Shortly after stopping McCarthy, an official from the Chilton County Sheriff's Department notified Connecticut officials that McCarthy was in custody. The Connecticut officials requested that the Chilton County Sheriff's Department continue to hold McCarthy while they attempted to secure an arrest warrant based on McCarthy's alleged participation in the Franklin robbery. Sometime after midnight, a Connecticut Superior Judge signed an arrest warrant 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 in Alabama, Deputy Fulmer received a telephone call from Chilton County 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 prejudice following the discovery that the affidavit on which the Connecticut arrest warrant was based included 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. -11- 11 with his neighbor, Joe Henderson, and that McCarthy and Hunter had left some items in Henderson's trailer that Fulmer should see. Deputy Fulmer agreed to come by Henderson's trailer. When he arrived, Fulmer found a maroon suitcase laying open on Henderson's kitchen table. An AK-47 assault rifle, a pistol, extra clips and a bullet-proof vest sat atop the suitcase in plain view. Henderson told Fulmer that the suitcase and its contents belonged to McCarthy 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. Henderson knew McCarthy and Hunter because the two men had previously rented a trailer from Henderson's landlord, J.B. Ellison. While staying with Henderson, McCarthy and Hunter had slept on a couch and an easy chair in Henderson's living room and 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 expecting company for the upcoming weekend and that they would have to leave. When Henderson left for work on the morning of the arrests, McCarthy and Hunter were preparing to move out of the trailer. When Henderson returned home that afternoon, Gene Ellison told him that the police had arrested McCarthy and -12- 12 Hunter. Henderson then decided to check his trailer to see if McCarthy and Hunter had left anything behind. In the storage room, he found two suitcases, the maroon suitcase that was closed and locked, and an American Tourister suitcase that was laying open with clothes piled on top of it. Henderson attempted to move the maroon suitcase out of the room to a storage shed behind his trailer but was unable to do so because the suitcase was too heavy. He asked Gene Ellison to help him. Ellison moved the suitcase into the other room and cut the lock off of it in order to find out why it weighed so much. After Ellison cut off the lock, Henderson opened the suitcase and discovered the weapons, the bullet-proof vest and other items. Some time later, Henderson decided he should turn the suitcase and its contents over to the police so he asked Ellison to call the sheriff's department. During Deputy Fulmer's visit on the evening of April 23, Henderson failed to tell him about the additional American Tourister suitcase Henderson had discovered. Several days later, however, Henderson told an FBI agent about it during an interview. Later, at Henderson's request, Fulmer and FBI agent Rich Schott took possession of the suitcase. Agent Ridlehoover inventoried the American Tourister on May 1, 1993, pursuant to standard FBI practice. No warrant was obtained for the suitcase. -13- 13 Following McCarthy's Alabama arrest, a warrant was obtained on April 28, 1993, to search his pickup truck. Accordingly, investigators searched the truck, finding a receipt for a storage unit located in Scarborough, Maine. Subsequently, on May 12, 1993, FBI investigators obtained a warrant to search the storage unit and its contents. The ensuing search revealed a footlocker containing numerous incriminating items with possible connections to the robbery of the Casco Northern Bank. The footlocker belonged to McCarthy, and McCarthy, using the alias John Perry, had rented the storage unit. E. Prior Proceedings _____________________ Prior to trial, Hunter moved to suppress evidence arising from the Connecticut stop and the Alabama arrests. With respect to the Connecticut stop, Hunter sought to suppress the statements and gesture he made during the first seventy-five minutes of the stop that ultimately led the police to James Hall. McCarthy moved to suppress evidence arising from his Alabama arrest and the searches of the two suitcases, his pickup truck and the Maine storage unit. A magistrate judge held a two-day evidentiary hearing on the motions and, subsequently, issued a recommended decision denying them both. After a de novo review, the district __ ____ court denied the motions, adopting substantially all of the magistrate judge's recommended findings. -14- 14 At the ensuing trial, McCarthy and Hunter were tried together before a jury on a five-count indictment alleging various charges arising from a series of three bank robberies in Connecticut, Alabama and Maine.5 The jury found McCarthy and Hunter guilty of all charges, convicting the two men on Count One of conspiring to commit bank robberies in Connecticut, Alabama and Maine in violation of 18 U.S.C. 371, on Count Two of committing the Maine robbery of the Casco Northern bank in violation of 18 U.S.C. 2113(a), 2113(d) and 18 U.S.C. 2, and on Count Three of knowingly using and carrying firearms during the Casco robbery in violation of 18 U.S.C. 924(c). The jury also convicted McCarthy on Count Four of being an armed career criminal in violation of 18 U.S.C. 922(g)(1), 924(e)(1), and Hunter on Count Five of being a felon-in-possession in violation of 18 U.S.C. 922(g)(1), 924(a)(2) and 18 U.S.C. 2. Following trial, the district court sentenced McCarthy to 387 months imprisonment.6 The court sentenced Hunter to ____________________ 5. Specifically, Count One of indictment charged McCarthy and Hunter with conspiring 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 was sentenced to 327 months on Count Two for committing the Casco Northern bank robbery, to be served concurrently to a 60-month sentence on Count One for conspiracy, and a 180-month sentence on Count Four for being an armed career criminal. On Count Three, the court sentenced McCarthy to the mandatory 60-month consecutive sentence on the 924(c) firearm violation. -15- 15 270 months imprisonment to be served consecutively to his Connecticut state sentence for violation of probation.7 II. II. ___ Discussion Discussion __________ On appeal, Hunter challenges the district court's denial of his suppression motion, contending that his Connecticut detention following the Franklin robbery and his later Alabama arrest violated the Fourth Amendment. Similarly, McCarthy challenges the denial of 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, pickup truck and storage unit. Both defendants also raise several issues relating to their respective sentences. We address each argument in turn. A. The Suppression Motions ___________________________ Our review of a district court's decision to grant or 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). "We defer, however, to a district court's factual findings if, on a reasonable view of the evidence, they are not clearly erroneous." Id.; see also United States ___ ___ ____ _____________ ____________________ 7. The court sentenced Hunter to 210 months on Count Two for committing the Maine robbery, to be served concurrently to a 60 month sentence on Count One for conspiracy, and a 120 month sentence on Count Five for being a felon in possession. On Count Three, the district court sentenced Hunter to the mandatory 60-month consecutive sentence on the 924(c) firearm charge. -16- 16 v. Zapata, 18 F.3d 971, 975 (1st Cir. 1994). A clear error ______ exists only if, after considering all the evidence, we are left with a definite and firm conviction that a mistake has been made. United States v. McLaughlin, 957 F.2d 12, 17 (1st _____________ __________ Cir. 1992). Moreover, we will uphold a district court's decision to deny a suppression motion provided that any reasonable view of the evidence supports the decision. United States v. Garcia, 983 F.2d 1160, 1167 (1st Cir. 1993). _____________ ______ 1. Hunter's Connecticut Detention __________________________________ Hunter initially challenges the legality of the Connecticut stop. Hunter contends that the stop constituted a de facto arrest unsupported by probable cause, and, __ _____ therefore, the comments and gesture he made during the 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 been suppressed as the fruit of an illegal arrest. We disagree. The Fourth Amendment does not demand that probable cause exist prior to all police action. See generally Terry ___ _________ _____ v. Ohio, 392 U.S. 1 (1968). Indeed, it is well-settled that, ____ based merely on a reasonable and articulable suspicion, a police officer may make a brief stop or "seizure" of an individual to investigate suspected past or present criminal activity. See United States v. Hensley, 469 U.S. 221, 226- ___ ______________ _______ -17- 17 229 (1985) (extending Terry stops to past criminal conduct); _____ United States v. Quinn, 815 F.2d 153, 156 (1st Cir. 1987). ______________ _____ The relevant question in these cases is not whether the police had probable cause to act, but instead whether the actions taken were reasonable under the circumstances. See ___ United States v. Sharpe, 470 U.S. 675, 682 (1985). _____________ ______ In determining whether a challenged action is reasonable, and, thus, falls within the range of permissible investigatory stops or detentions, a court should engage a two-step inquiry, asking (1) whether the officer's action was justified at its inception; and (2) whether the action taken was reasonably related in scope to the circumstances justifying the interference in the first place. Terry, 392 _____ U.S. at 19-20; United States v. Stanley, 915 F.2d 54, 55 (1st _____________ _______ Cir. 1990). Moreover, the Supreme Court has explained that, in such circumstances, the question of reasonableness requires a court to "balance[] the nature and quality of the ______ _______ intrusion on personal security against the importance of the governmental interests alleged to justify the intrusion." Hensley, 469 U.S. at 228 (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 6; see also United States v. _______ ___ ____ _______________ Rodriguez-Morales, 929 F.2d 780, 783 (1st Cir. 1991), cert. _________________ _____ denied, 502 U.S. 1030 (1992). ______ -18- 18 At the outset, we note that Hunter essentially concedes that Officer Richard had sufficient reasonable suspicion to make the initial stop.8 Hunter's principal complaint, instead, focuses on the second step of the inquiry, arguing that the length of his detention was simply too long. He contends that the length of the Connecticut stop exceeded the permissible durational limits of an investigative stop not supported by probable cause, and, thus, made the entire scope of police conduct unreasonable per se. ___ __ As we have noted before, however, "`there 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.'" Quinn, 815 F.2d at 157 (quoting _____ United States v. Davies, 768 F.2d 893, 901 (7th Cir.), cert. ______________ ______ _____ denied, 474 U.S. 1008 (1985)); see also United States v. ______ ___ ____ ______________ Place, 462 U.S. 696, 709-10 (1983) (declining to adopt any _____ ____________________ 8. In his reply brief, Hunter denies conceding that the police had sufficient reasonable suspicion to make the initial stop. To the contrary, we think a fair reading of his opening argument to this court and the arguments he made in his briefs to the district court below belies this contention. In any event, the district court's finding that Officer Richard properly acted in initially detaining Hunter after spotting him shortly after the robbery, driving a red Pontiac Sunbird, is eminently supportable. The close proximity in both distance and time to the Franklin robbery combined with the fact that Hunter's car identically matched the description of the vehicle the suspects were reported to be driving are articulable and specific facts that clearly gave rise to the reasonable suspicion needed to justify the initial stop. -19- 19 outside time limitation on a permissible Terry stop, but _____ holding ninety-minute detention of luggage unreasonable on specific facts of case); United States v. Vega, 72 F.3d 507, _____________ ____ 514-16 (7th Cir. 1995 (upholding sixty-two minute stop; "the crux of our inquiry is whether the nature of the restraint meets the Fourth Amendment's standard of objective reasonableness"). "[C]ommon sense and ordinary human experience must govern over rigid criteria." Quinn, 815 F.2d _____ at 157 (quoting Sharpe, 470 U.S. at 685). Indeed, whether a ______ particular investigatory stop is too long turns on a consideration of all relevant factors, including "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. Moreover, a court should ask ______ "whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly, during which time it was necessary to detain the defendant." Id. at 686. ___ Furthermore, time of detention cannot be the sole criteria for measuring the intrusiveness of the detention. Clearly, from the perspective of the detainee, other factors, including the force used to detain the individual, the restrictions placed on his or her personal movement, and the information conveyed to the detainee concerning the reasons for the stop and its impact on his or her rights, affect the -20- 20 nature and extent of the intrusion and, thus, should factor into the analysis. Cf. Zapata, 18 F.3d at 975 (distinction ___ ______ between investigatory stop and de facto arrest turns in part __ _____ on what "a reasonable [person] in the suspect's position would have understood his [or her] situation" to be). Finally, the Supreme Court has admonished that, in all events, "[a] court making this assessment should take care to consider whether the police are acting in a swiftly developing situation, and in such cases the court should not indulge in unrealistic second-guessing." Sharpe, 470 U.S. at ______ 686. Though the issue is exceedingly close, we believe that, on the circumstances that obtain here, 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 in its entirety, the statements and gestures that he seeks to suppress occurred within the first seventy-five minutes of the stop. Thus, we 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 time frame, we do not find the scope of the stop particularly unreasonable. There is no evidence or even an allegation of -21- 21 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 have dispelled the reasonable suspicion that initially triggered the stop. Officer Richard ran the registration check of the Sunbird immediately after stopping Hunter. Trooper Hall promptly informed Hunter of his rights and questioned him about where he had been since the time of the robbery. Other officers brought a teller from the bank to the scene in an attempt to establish definitively whether or not Hunter had participated in the robbery. Trooper Heller, once on the scene, promptly telephoned the rental agency in an effort to learn more about the individuals who had rented the automobile. In short, we think that the record clearly belies any contention that the police officers involved neglected to employ any reasonably available alternative methods that could have significantly shortened their inquiry. See Quinn, 815 F.2d at 158. The excessive ___ _____ length of Hunter's detention arose not because the officers engaged in dilatory tactics, but, instead, because their investigative efforts, though reasonable under the circumstances, failed to dispel the suspicion that gave rise to the stop.9 ____________________ 9. In Michigan v. Summers, 452 U.S. 692, 700 n.12 (1981), ________ _______ the Court noted that "[i]f the purpose underlying a Terry _____ stop -- investigating possible criminal activity -- is to be -22- 22 Moreover, while it is clear that Hunter had a constitutional right not to answer any questions, the fact that his responses were evasive and, at times, defiant is relevant in evaluating the scope of the officers' conduct. See, e.g., id. (detention of forty-five to sixty minutes; ___ ____ ___ noting that it would have been unreasonable to release defendants when their answers to initial questions raised rather than lowered suspicion); United States v. Richards, ______________ ________ 500 F.2d 1025, 1029 (9th Cir. 1974) (detention over an hour; "implausible and evasive responses . . . indicated that something was awry and created even more reason for the investigation being pursued further"), cert. denied, 420 U.S. _____ ______ 924 (1975). Not only did Hunter's incomplete and vague responses reasonably heighten the officers' suspicion that Hunter had participated in the robbery, they also made the attempt to dispel that suspicion more difficult. Indeed, had Hunter cooperated initially and 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 police must under certain circumstances be able to detain the individual for longer than the brief time period involved in Terry." See also Sharpe, 470 U.S. at 685- _____ ___ ____ ______ 86. The Court then listed, with apparent approval, a variety of different investigative techniques, including those used here, that police might appropriately use during the course of an investigative stop to dispel their reasonable suspicion. Summers, 452 U.S. at 700 n.12 (quoting 3 W. _______ LaFave, Search and Seizure 9.2, at 36-37 (1978)). __________________ -23- 23 (upholding detention where delay attributable in large part to defendant's evasive attempts to avoid stop). Next, in attempting to strike the proper balance, we note that the governmental purposes served by the detention in this case are substantial. Indeed, several factors, specific to this case, reasonably enhanced the government's interest in detaining Hunter. First, the nature of the suspected criminal conduct, a daylight armed robbery of a bank involving physical threats to both customers and bank personnel, was severe. Second, the detention took place shortly after the robbery in a nearby town not far from the bank. As a noted commentator has explained, that "the suspected crime is serious enough to prompt flight if the suspect is freed, or . . . recent enough that if probable cause soon develops it would be desirable to arrest the suspect and subject him [or her] to a search" are both legitimate reasons for continuing custody that must be considered in the total balance. 3 Wayne R. LaFave, Search ______ and Seizure 9.2(f), at 386 (2d ed. 1987). Finally, the ___________ fact that at the time of the stop Hunter was preparing to enter an interstate highway in 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 -24- 24 could easily have left the jurisdiction and evaded the dragnet of the Connecticut State Police. Finally, we do not believe, on the facts of this case, that the stop was needlessly intrusive. Although the police detained Hunter in the back of Officer Richard's vehicle, he was never handcuffed, see, e.g., State v. Reid, ___ ____ _____ ____ 605 A.2d 1050, 1053-54 (N.H. 1992) (placing defendant in cruiser does not make Terry stop unreasonable); cf. Quinn, _____ ___ _____ 815 F.2d at 157 n.2 (use of handcuffs does not make Terry _____ stop de facto arrest), nor did the officers keep the rear door to the police cruiser continuously closed. Moreover, there is no evidence in the record to suggest that any officer ever drew a gun on Hunter. Cf. United States v. ___ _____________ Trullo, 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, the officers informed Hunter that, although he was not free to leave, he was not under arrest, and that they were detaining him only for investigative purposes because a car identical to his Pontiac Sunbird had been involved in a bank robbery earlier that day. Additionally, only fifteen minutes after Officer Richard first stopped Hunter, Trooper Hall read Hunter his Miranda _______ rights. Clearly, timely disclosure of such information (e.g., the reasons for the detention, and an explanation of ____ -25- 25 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 defendant by law enforcement officials during detention militated against finding scope of stop reasonable); United States v. LaFrance, 879 F.2d 1, 7 (1st ______________ ________ Cir. 1989) (similar); cf. Brown v. Illinois, 422 U.S. 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 said the issue is exceptionally close, we think that, on the record before us, the balance tips in favor of the government. Admittedly, Hunter's detention following the Franklin robbery was hardly what one would normally consider "brief," |