266 F.3d 1 (1st Cir.

2001)

UNITED STATES OF AMERICA, Appellee,

v.
ROTH CHHIEN, Defendant, Appellant.
No. 00-2230

United States Court of Appeals For the First Circuit

Heard Aug. 2, 2001
Decided September 24, 2001

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE
[Hon. Paul J. Barbadoro, U.S. District Judge][Copyrighted Material
Omitted]
Elizabeth L. Prevett, Federal Defender Officer, for appellant.
William E. Morse, Assistant United States Attorney, with whom Paul M.
Gagnon, United States Attorney, and Jean B. Weld, Assistant United
States Attorney, were on brief, for appellee.
Before Boudin, Chief Judge, Selya and Lipez, Circuit Judges.
SELYA, Circuit Judge.

A jury convicted defendant-appellant Roth Chhien of possessing five grams or

more of crack cocaine, intending to distribute it. See 21 U.S.C. 841(a)(1),
841(b)(1)(B)(iii). The district court sentenced him as a career offender. Chhien
now appeals, assigning error both to the district court's denial of his pretrial
motion to suppress evidence and to its sentencing determination. We affirm.
I. BACKGROUND

During the afternoon of August 21, 1998, the appellant -- a twenty-nine year
old native of Cambodia -- drove north on Interstate Route 93 in Salem, New
Hampshire. He was traveling at the speed limit when he passed a state police

cruiser stationed on the median strip. The cruiser's sole occupant, trooper
Lawrence Holdsworth, observed two violations of state law: the appellant was
driving perilously close to the vehicle in front of him and his car was equipped
with blue-tinted aftermarket lights.1 Holdsworth, a member of an elite team (the
so-called Enhanced Enforcement Unit) trained to "look beyond the traffic
ticket," i.e., to attempt to ferret out serious criminal activity while conducting
routine traffic patrols, commenced pursuit.
3

Holdsworth signaled the appellant to pull his car to the side of the road. He
then approached the driver's side and asked for the appellant's license and
registration. After a computer check proved unremarkable, Holdsworth ushered
the appellant to the front of his car and inquired about the blue-tinted lights.
The appellant acknowledged having purchased them, but claimed that he did so
without any awareness of the statutory proscription.

Holdsworth asked if he could conduct a pat-down search for weapons and the
appellant acquiesced. During the frisk, Holdsworth felt something "hard" -- a
"substantial lump" -- in the appellant's right front pants pocket. When he
inquired about the object, the appellant responded that it was a large wad of
cash, totaling $2,000.

Holdsworth grew increasingly suspicious. He began to question the appellant

about where he had been and where he was going. The appellant told him that
he had bought some stereo equipment in Lowell, Massachusetts, and was
heading to his home in Franklin, New Hampshire. He asserted that he had made
no stops along the way. The trooper then crossed over to the passenger side of
the vehicle and posed a similar set of questions to the appellant's companion,
Melanie Baker (who had remained seated inside the car throughout the initial
phase of the highway stop). Baker verified the trip to Lowell and the purchase
of stereo equipment. When asked if she and the appellant had made any other
stops, she mentioned that they had driven to the Lowell home of one of the
appellant's relatives. Once there, she waited in the car while the appellant went
inside.

Returning to the appellant (who was still standing near the front of the car),
Holdsworth probed the discrepancy. The appellant immediately amended his
story and confirmed that he and Baker had stopped at the home of one of his
relatives for a brief visit. But another discrepancy emerged: according to the
appellant, both he and Baker had entered the dwelling.

Disturbed by these contradictions, Holdsworth repaired to his cruiser and

radioed for assistance. Trooper Timothy Stearns, another member of the

Enhanced Enforcement Unit, arrived within a minute or so. Holdsworth was
drafting a warning. As the troopers conversed, they noticed Baker's head sink
from view and then bob up and down. Curious about these awkward
movements, Holdsworth directed Stearns to investigate.
8

Stearns approached the vehicle. Baker's hands were clenched and Stearns asked
to see them. Baker refused. Stearns, fearing that Baker had a gun, unsnapped his
holster, renewed his demand, and hollered to Holdsworth "she won't show me
her hands!" Holdsworth sprang from the cruiser and ran to assist. When Stearns
repeated his request, Baker finally unclenched her fists and raised both hands.
At that point, Holdsworth yanked her from the car. The troopers then noticed in
plain view on the front passenger seat a small plastic bag containing white
powder.

The troopers immediately concluded that the white powder was contraband.2
Arrests, Miranda warnings, see Miranda v. Arizona, 384 U.S. 436, 444-45
(1966), and further questioning followed apace. During this brief roadside
interrogation, the appellant admitted that the plastic bag contained crack
cocaine purchased in Lowell. Baker confirmed this tale, adding that she had
tried to conceal the contraband when Holdsworth intervened. The troopers then
transported the suspects to a nearby station house.

10

On September 9, 1998, a federal grand jury indicted the appellant for

possession with intent to distribute five grams or more of crack cocaine.3 See 21
U.S.C. 841(a)(1), 841(b)(1)(B)(iii). In due course, the appellant moved to
suppress both the drugs and his statements at the scene of the highway stop.
After conducting an evidentiary hearing, the district court denied the motion.
The court concluded that the roadside confrontation had lasted no longer than
five minutes from start to finish; that this brief detention was reasonable, given
the patent motor vehicle violations; that the appellant voluntarily consented to
the pat-down search; and that, in all events, the pat-down search and the
questioning that followed did not lead to the discovery of the contraband.
Rather, it was the troopers' legitimate fear for their own safety, sparked by
Baker's movements, that prompted them to remove her from the car and
displayed the crack cocaine in plain view. This, in turn, gave rise to probable
cause for the subsequent arrests and interrogation.

11

Following some procedural skirmishing (not material here), the case went to
trial in September of 2000. The jury found the appellant guilty as charged. The
district court thereafter classified him as a career offender and imposed a 228month prison sentence. This appeal ensued. In it, the appellant argues that the

lower court erred both in denying his motion to suppress and in fashioning his
sentence. We address these assignments of error separately.
II. THE FOURTH AMENDMENT ISSUE
12

When reviewing the district court's disposition of a motion to suppress, we

accept the court's findings of fact unless clearly erroneous and evaluate its legal
conclusions de novo. United States v. Sowers, 136 F.3d 24, 26 (1st Cir. 1998);
United States v. Schaffer, 87 F.3d 562, 565 (1st Cir. 1996). Here, the
appellant's principal contention is that impermissible police tactics transformed
a routine highway stop into an unconstitutional fishing expedition -- an
expedition that ultimately led to the contraband and the confession. To place
this contention into perspective, we begin by discussing the legal framework
surrounding such stops. Moving from the general to the specific, we then
grapple with the various components of the appellant's argument.

13

A. The Legal Landscape.

14

A traffic stop, by definition, embodies a detention of the vehicle and its

occupants. It therefore constitutes a seizure within the purview of the Fourth
Amendment. Delaware v. Prouse, 440 U.S. 648, 653 (1979). This means, of
course, that the stop must be supported by a reasonable and articulable
suspicion of criminal activity, see Berkemer v. McCarty, 468 U.S. 420, 439
(1984), and that the detention must be reasonable under the circumstances,
United States v. Whren, 517 U.S. 806, 809-10 (1996).

15

Reasonable suspicion, as the term implies, requires more than a naked hunch
that a particular person may be engaged in some illicit activity. United States v.
Sokolow, 490 U.S. 1, 7 (1989). By the same token, however, reasonable
suspicion does not require either probable cause or evidence of a direct
connection linking the suspect to the suspected crime. United States v. Cortez,
449 U.S. 411, 417-18 (1981); United States v. Velez-Saldana, 252 F.3d 49, 52
(1st Cir. 2001). Reasonable suspicion, then, is an intermediate standard -- and
one that defies precise definition. Its existence must be determined case by
case, and that determination entails broad-based consideration of all the
attendant circumstances. Florida v. Royer, 460 U.S. 491, 500 (1983). In
mulling those circumstances, an inquiring court must balance "the nature and
quality of the intrusion on personal security against the importance of the
governmental interests alleged to justify the intrusion." Sowers, 136 F.3d at 27
(quoting United States v. Hensley, 469 U.S. 221, 228 (1985)). To keep this
balance true, the court must make a practical, commonsense judgment based on

the idiosyncracies of the case at hand. Ornelas v. United States, 517 U.S. 690,
695-96 (1996).
16

To work the calculus of reasonable suspicion in the context of a traffic stop, an

inquiring court must ask whether the officer's actions were justified at their
inception, and if so, whether the officer's subsequent actions were fairly
responsive to the emerging tableau -- the circumstances originally warranting
the stop, informed by what occurred, and what the officer learned, as the stop
progressed. Sowers, 136 F.3d at 27. Formulating the answers to these queries
demands a margin of flexibility. After all, while an officer's actions must bear
some relation to the purpose of the original stop, he may shift his focus and
increase the scope of his investigation by degrees if his suspicions mount
during the course of the detention. Id.; see also Terry v. Ohio, 392 U.S. 1, 10
(1968) (observing that "the police are in need of an escalating set of flexible
responses, graduated in relation to the amount of information they possess").

17

B. The Merits.

18

In this instance, the appellant does not question the legitimacy of the initial
detention: Holdsworth clearly had cause to stop him for tailgating and operating
an automobile equipped with blue-tinted lights. See supra note 1. He asserts
instead that Holdsworth exceeded the scope of a permissible traffic stop by
conducting an unnecessary, unauthorized pat-down search and wandering far
afield in his questioning.

19

The appellant's thesis proceeds along the following lines. The pat-down search
was involuntary, despite the apparent consent, because Holdsworth still held
the appellant's license and registration, rendering the confrontation unduly
coercive. Even if the frisk passes muster, this thesis runs, Holdsworth's query
about the bulge in the appellant's pocket was beyond the pale because it did not
pertain either to the trooper's safety or to the underlying traffic violations.
Moreover, the questions concerning the appellant's itinerary also were out of
bounds. The combination of these toxic ingredients -- the coerced pat-down
search and the improper questions -- impermissibly prolonged the detention and
led Holdsworth to call for assistance; the delay made Baker nervous, inducing
her to squirm in her seat; this fidgeting ultimately led the troopers to the
contraband; and that discovery prompted the appellant's confession. Cf. The
Real Mother Goose 82-104 (1916) ("For want of a nail . . . . the kingdom was
lost."). Thus, the appellant concludes, the district court should have excluded
the drugs and the incriminating statements as the rotten fruit of a tainted traffic
stop.

20

This argument is cleverly constructed and ably presented, but it cannot

withstand careful scrutiny. In our view, the consensual pat-down search was
fully appropriate and yielded information which gave Holdsworth reasonable
suspicion to continue on the minimally intrusive path that he chose to pursue.
The questions that followed the frisk, though not directly linked to the purposes
of the stop, were reasonably related to automobile travel in general and neither
fundamentally altered the nature of the detention nor unreasonably prolonged it.
Thus, we reject the appellant's argument.4

21

We start with the pat-down search -- which amounts to a Terry stop within a
Terry stop. Normally, Holdsworth would have needed some justification (such
as a reasonable fear for his own safety) beyond the traffic violations simplicter
to engage in it. See Terry, 392 U.S. at 27. In this case, however, the appellant
explicitly consented to the frisk. The district court found specially that this
consent was voluntary. Unless this finding is clearly erroneous, we must accept
it. See United States v. Coraine, 198 F.3d 306, 308-09 (1st Cir. 1999).

22

We discern no error. Consent is voluntary if it is "the product of an essentially

free and unconstrained choice." Schneckloth v. Bustamonte, 412 U.S. 218, 225
(1973) (citation omitted). There is not a shred of evidence here that Holdsworth
tricked, threatened, or bullied the appellant into agreeing to the pat-down
search.

23

In an effort to fill this void, the appellant argues that the situation itself was
inherently coercive (and, thus, that he could not have consented voluntarily).5
But the traffic stop occurred in broad daylight, on a major thoroughfare. At the
time of Holdsworth's request, his sidearm was holstered and he was the only
trooper present. Although he still had the appellant's license and registration in
hand, that fact alone does not vitiate the operator's consent. See United States v.
Purcell, 236 F.3d 1274, 1281-82 (11th Cir.) (holding consent to search
voluntary despite officer's retention of operator's license and registration during
traffic stop), cert. denied, 121 S. Ct. 2615 (2001); see also Florida v. Bostick,
501 U.S. 429, 435-36 (1991)(explaining that consent can be voluntary even
though the detainee does not feel free to leave); United States v. Barnett, 989
F.2d 546, 554-55 (1st Cir. 1993) (stating that custody alone does not create the
kind of coercive atmosphere that abrogates consent).

24

The short of it is that, in most cases, the voluntariness of consent is a matter of

fact to be determined from all the circumstances. Schneckloth, 412 U.S. at 24849. The district court obviously understood that reality and found the facts with
care. Based on its supportable factual findings, we uphold the constitutionality

of the pat-down search.

25

In an effort to blunt the force of this conclusion, the appellant argues that, even
if his consent was validly obtained, Holdsworth exceeded the scope of a
consensual pat-down search. This argument hinges on the assertion that the
trooper should not have asked about the bulge in the appellant's pocket because
he knew that the bulge was not a weapon. This argument misconstrues
applicable Fourth Amendment jurisprudence. While an officer may not seize an
object during a Terry frisk unless he has probable cause to believe that it is
contraband, Minnesota v. Dickerson, 508 U.S. 366, 376 (1993); United States
v. Schiavo, 29 F.3d 6, 9 (1st Cir. 1994), he is not prohibited from inquiring,
upon reasonable suspicion, into the nature of that object. So it was here: the
origins of the bulge were not readily apparent -- it might well have been a
weapon -- and Holdsworth's question was directly pertinent to the safety
concerns that prompted his request for a pat-down search in the first place. We
hold, therefore, that the trooper's inquiry was well within the boundaries set by
the Constitution.

26

We next proceed to the trooper's questions about the appellant's peregrinations.

When the appellant explained that he was carrying $2,000 in cash,
Holdsworth's suspicions understandably escalated. Evaluating whether an
officer's suspicions are (or are not) reasonable is a fact-sensitive task, bound up
in the warp and woof of the surrounding circumstances. Royer, 460 U.S. at 500.
In carrying out that task, "[d]eference is due to the experienced perceptions of
the officer[]." United States v. Woodrum, 202 F.3d 1, 7 (1st Cir.), cert. denied,
531 U.S. 1035 (2000). Mindful of that deference, we conclude that the trooper's
heightened suspicions (and, hence, his continued questioning) were reasonable
here.

27

The appellant resists this conclusion, insisting that the mere possession of a
large, unexplained amount of cash, without more, cannot be the basis for
heightened suspicion. As authority for this proposition, he cites Sokolow, in
which the Supreme Court indicated that paying for an airline ticket with $2,100
in cash might be consistent with innocent travel. 490 U.S. at 9. Contrary to the
appellant's importunings, this statement does not mean that the possession of a
large, unexplained sum of cash can never support reasonable suspicion.6 The
circumstances matter, as does the degree of intrusiveness of the continued
detention. See Lopez-Lopez v. Aran, 844 F.2d 898, 905 (1st Cir. 1988)
(explaining that the degree of intrusiveness of a stop must be proportional to the
degree of suspicion that prompted the intrusion); United States v. Berryman,
717 F.2d 651, 657 (1st Cir. 1983) (similar). In the circumstances of this case,
we rule that the discovery of the cash justified a brief period of additional

questioning. Cf. Conrod v. Davis, 120 F.3d 92, 97 (8th Cir. 1997) (holding that
discovery of $6,000 cash in a suspect's pocket and $4,000 in his suitcase
furnished reasonable suspicion).
28

This brings us to the nature of the questioning. The appellant asseverates that
travel questions, unrelated to the purpose of the original stop, are highly
intrusive, unsupported by reasonable suspicion of a separate crime, and
therefore not permissible in the course of the highway stop. We disagree: we
believe that this line of inquiry was lawful under the circumstances.

29

The appellant strives to paint the picture in black and white. Citing cases such
as United States v. Childs, 256 F.3d 559, 566 (7th Cir. 2001), and United States
v. Holt, 229 F.3d 931, 936 (10th Cir. 2000), 7 he asserts that an officer carrying
out a traffic stop must have some reasonable, substantial, and independent
source of suspicion about a different crime before he can ask questions
unrelated to the violation that justified the stop in the first place. But that
depends on the nature of the questions. Both of the cited cases involved traffic
stops of persons previously suspected of other crimes, during which the
officers, for no apparent cause, began to ask directly inculpatory questions
involving the antecedent crimes. See Childs, 256 F.3d at 561-62, 566
(involving questions about drug possession during a stop for a broken
windshield); Holt, 229 F.3d at 933, 940 (involving questions about weapons
during a stop for a seatbelt violation). Such scenarios, in which an officer stops
a car for a minor traffic infraction and asks a known suspect pointed questions
about a serious crime unrelated to the original violation, raise legitimate
concerns about abuse of authority. See Whren, 517 U.S. at 810 (acknowledging
the temptation to use traffic stops as a means of investigating unrelated criminal
activity).

30

The case at bar does not lend itself to this sort of black-and-white
characterization, but, rather, involves more muted shades of gray. Here, the
record contains no evidence that the stop was a pretext to furnish the trooper
with a forum to ask questions about other crimes; prior to this encounter,
Holdsworth neither knew the appellant nor knew of him. The record is equally
barren of any evidence that the trooper's membership in the Enhanced
Enforcement Unit impermissibly colored his approach. More important,
Holdsworth did not stray far afield, merely posing a few prosaic questions
about the appellant's itinerary: where he and his passenger had been, where
they were going, and whether they had stopped along the way. Routine
questioning of this sort, even when not directly related to the violations that
induced the stop in the first place, is not uncommon during a highway stop.
See, e.g., United States v. Johnson, 58 F.3d 356, 357 (8th Cir. 1995) (upholding

"routine questioning" about travel plans during stop for speeding); United
States v. Kopp, 45 F.3d 1450, 1454 (10th Cir. 1995) (similar).
31

To cinch matters, it was not until Holdsworth's suspicions were aroused by the
large, unexplained wad of cash that his questioning expanded beyond the bare
bones of the traffic stop and the consensual frisk. Since the trooper lawfully
learned about the cash -- the appellant, after all, consented to the pat-down
search and voluntarily described the composition of the discerned bulge -- that
discovery elevated his suspicions to a degree sufficient to continue the
detention briefly and in a minimally intrusive way. See Sowers, 136 F.3d at 27
(approving increasingly intrusive unrelated questions after suspicions escalated
during a traffic stop); United States v. Barahona, 990 F.2d 412, 416 (8th Cir.
1993) ("If the responses of the detainee and the circumstances give rise to
suspicions unrelated to the traffic offense, an officer may broaden his inquiry
and satisfy those suspicions."). The travel questions that followed were within
the ambit of that authority, and any effect they might have had on the duration
of the detention -- and the state of Baker's nerves -- was therefore permissible.
Consequently, both the bag of crack cocaine and the appellant's incriminating
statements were lawfully obtained.
III. THE SENTENCING ISSUE

32

The appellant's second complaint involves sentencing. Based on the weight of

the seized crack cocaine, the district court initially set the appellant's base
offense level at 28. See USSG 2D2.1(b)(1), 2D1.1(c)(6) (Nov. 1998). The
court then determined that the appellant was a career offender and adjusted his
offense level to 34. See id. 4B1.1, 4B1.2.8 This yielded a guideline
sentencing range of 262-327 months. The district court departed downward,
however, and imposed a sentence of 228 months. See id. 4A1.3 (authorizing a
downward departure if the defendant's criminal history category significantly
exaggerates the gravity of his criminal past or the likelihood of recidivism).

33

To be sure, the sentence seems severe. But appellate courts do not have the
luxury of resolving sentencing appeals based upon subjective value judgments.
The pivotal question, then, is whether the sentence conforms to the guidelines.

34

The appellant posits that the district court erroneously classified him as a career
offender. A defendant is a career offender if "(1) the defendant was at least
eighteen years old at the time the defendant committed the instant offense; (2)
the instant offense of conviction is a felony that is either a crime of violence or
a controlled substance offense, and (3) the defendant has at least two prior

felony convictions of either a crime of violence or a controlled substance

offense." Id. 4B1.1. The appellant unarguably meets the first two benchmarks.
The issue here is whether the court appropriately considered, as predicate
offenses sufficient to satisfy the third requirement, the appellant's prior
convictions for three counts of burglary of a commercial dwelling in violation
of N.H. Rev. Stat. 635:1.
35

In the last analysis, the appellant's claim reduces to his insistence that his prior
state-court convictions for commercial burglary should not count as "crime[s]
of violence" under the third furculum of the career offender guideline. Deciding
where state-law crimes fit along a federal continuum is tricky business. In this
instance, however, the decisional path is well-trodden. We conclusively
answered the question that the appellant seeks to raise in United States v. Fiore,
983 F.2d 1 (1st Cir. 1992). There, dealing with a materially indistinguishable
Rhode Island burglary statute, we held that burglary of a commercial premise
constitutes a crime of violence within the purview of the career offender
guideline. Id. at 4-5.

36

That effectively ends this aspect of the matter. Although the circuits are split -some courts have followed Fiore's lead, see, e.g., United States v. Wilson, 168
F.3d 916, 926 (6th Cir. 1999); United States v. Haskell, 76 F.3d 902, 905 (8th
Cir. 1996), whereas others have reached a different conclusion, see, e.g., United
States v. Spell, 44 F.3d 936, 938 (11th Cir. 1995); United States v. Smith, 10
F.3d 724, 732-33 (10th Cir. 1993) (per curiam) we have stalwartly adhered to
Fiore. See, e.g., United States v. Sawyer, 144 F.3d 191, 196 (1st Cir. 1998).
This is in keeping with "the law of the circuit" doctrine. That doctrine holds a
prior panel decision inviolate absent either the occurrence of a controlling
intervening event (e.g., a Supreme Court opinion on the point; a ruling of the
circuit, sitting en banc; or a statutory overruling) or, in extremely rare
circumstances, where non-controlling but persuasive case law suggests such a
course. See Williams v. Ashland Eng'g Co., 45 F.3d 588, 592 (1st Cir. 1995).
Neither circumstance exists here.

37

The appellant has two rejoinders. First, he draws our attention to Stinson v.
United States, 508 U.S. 36 (1993), a case in which the Supreme Court held that
the Sentencing Commission's guideline commentary comprises binding
authority. Id. at 46-47. Stinson does not aid the appellant's cause. Although
Fiore drew on outside sources to elucidate the meaning of the guidelines where
the commentary was opaque, the Fiore court scrupulously applied the discerned
dictates of the commentary. See Fiore, 983 F.2d at 4-5. Thus, Stinson supports,
rather than undermines, our prior decision.

38

The appellant next suggests that this court has emasculated Fiore. In an effort to
sustain this suggestion, the appellant cites two cases. In the first, United States
v. Peterson, 233 F.3d 101, 107-10 (1st Cir. 2000), we held that breaking and
entering without any intent to commit a crime is not a violent felony under the
Armed Career Criminal Act (ACCA), 18 U.S.C. 924(e). Unlike commercial
burglary, however, the breaking and entering charge in Peterson did not require
proof of specific intent. The second case is also an ACCA case, United States
v. Dueno, 171 F.3d 3 (1st Cir. 1999). We recognized there that, in certain
circumstances, definitional differences exist between the ACCA and the career
offender guideline. Id. at 6.

39

We fail to see how either of these opinions casts doubt upon Fiore a guideline
case. In all events, over rulings by implication are disfavored, and, in the best
of circumstances, a panel ought not lightly presume the implicit overruling of
an established circuit precedent. See Stewart v. Dutra Constr. Co., 230 F.3d
461, 467 (1st Cir. 2000). We see no principled basis for departing from the
settled law of the circuit in this instance. Accordingly, we adhere to our prior
holding that burglary of a commercial premise is a crime of violence within the
purview of the career offender guideline.
IV. CONCLUSION

40

We need go no further. For the reasons stated, we reject the appellant's attacks
on both his conviction and his sentence.

41

Affirmed.

Notes:
1

For purposes of this appeal, the appellant effectively concedes that he violated
N.H. Rev. Stat. 265:25.1 (ordaining that "[t]he driver of a vehicle shall not
follow another vehicle more closely than is reasonable and prudent") and N.H.
Rev. Stat. 266:[Link] (proscribing the use of blue-tinted lights on vehicles other
than law enforcement vehicles).

They were correct. Later analysis revealed that the plastic bag contained
twenty-eight grams of cocaine base.

The grand jury indicted Baker as well, but the government dropped that charge
following her enrollment in a pretrial diversion program. She is not a party to

this appeal.
4

We are cognizant that our reasoning differs somewhat from that of the district
court, but we may affirm a district court's suppression ruling on any ground
made manifest by the record. See, e.g., United States v. Doe, 61 F.3d 107, 11112 (1st Cir. 1995).

The appellant also suggests that his consent was involuntary because the
trooper did not inform him that he could decline to permit a search. This
suggestion overlooks that the Supreme Court has held, recently and squarely,
that an officer conducting a highway stop need not inform the driver that he is
free to go before requesting permission to conduct a search. Ohio v. Robinette,
519 U.S. 33, 40 (1996).

Indeed, in Sokolow itself the Court held that the cash purchase, together with
other indicia, supported a reasonable suspicion sufficient to justify an
investigative stop. 490 U.S. at 11.

We do not dwell on the appellant's reference to United States v. Pruitt, 174 F.3d
1215 (11th Cir. 1999). The stop there lasted for nearly half an hour, id. at 1218,
and the Eleventh Circuit subsequently limited Pruitt to situations in which the
unrelated questions unreasonably prolonged the search. See Purcell, 236 F.3d at
1280. Here, however, the district court supportably found that the entire stop
lasted no more than five minutes, and there is no proof of unreasonable
prolongation.

The career offender guideline specifies an offense level of 34 where the

statutory maximum sentence for the count of conviction is 25 years or more
(but less than life in prison). See USSG 4B1.1. The statutory maximum for
possession with intent to distribute five grams or more of crack cocaine is 40
years. See 21 U.S.C. 841(b)(1)(B)(iii).