United States v. Sutherland ( 1996 )

USCA1 Opinion

          May 3, 1996           [NOT FOR PUBLICATION]



                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT




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        No. 95-2276



                              UNITED STATES OF AMERICA,



                                      Appellee,



                                          v.



                                 FARRELL SUTHERLAND,



                                Defendant, Appellant.




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                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                              FOR THE DISTRICT OF MAINE



                       [Hon. Gene Carter, U.S. District Judge]
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                                        Before



                                Cyr, Boudin and Lynch,



                                   Circuit Judges.
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             Robert A. Levine, with whom Law  Offices of Robert A. Levine  was
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        on brief for appellant.

             F. Mark Terison,  Assistant United States Attorney, with whom Jay
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        P. McCloskey, United States Attorney, was on brief for appellee.
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                    Per Curiam.  Defendant  Farrell Sutherland, who entered
Per Curiam.
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          conditional  guilty pleas  to two  bank robbery  charges, see  18
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          U.S.C.    2113(a), appeals  the adverse suppression  rulings upon



          which his pleas were conditioned.  See Fed. R. Crim. P. 11(a)(2).
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          We affirm.



                    Sutherland claims that the police did not have probable



          cause to arrest him on March 18, 1995, after stopping the taxi in



          which he and  a female companion were traveling  to Massachusetts



          following  a bank robbery in Portland, Maine.  The district court



          made supportable findings that:  (i) the bank robbery  investiga-



          tion  had  focused on  the  passengers  in this  particular  taxi



          because bank surveillance photographs, and an eyewitness  report,



          revealed  that Sutherland  had  committed two  bank robberies  in



          Portland,  the  most recent  having been  at  9:00 a.m.  the same



          morning;  (ii) an  ABC taxi  had been dispatched  to Sutherland's



          Portland residence  around 11:00 a.m. to  transport Sutherland



          and a female companion  suspected of assisting him in  an earlier



          Portland bank  robbery    to  Lynn, Massachusetts; and  (iii) the



          Portland  police  had  notified  the  Massachusetts  State Police



          ("MSP")  to  stop the  taxi,  and  provided a  specific  physical



          description of Sutherland, including  items of his clothing (grey



          or white sweatshirt  and black leather jacket), together with the



          information that he  had obtained  $2,460 in $20  bills from  the



          bank robbery earlier that day.



                    Upon stopping the taxi, which contained two passengers,



          a male  and a female, the MSP observed a black leather jacket and





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          a grey sweatshirt inside the vehicle.  The male passenger matched



          the physical description provided by the Portland police.1



                    We  review  the district  court's factual  findings for



          clear  error, see United States  v. Martinez-Molina, 64 F.3d 719,
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          726 (1st Cir. 1995), whereas its ultimate  legal determination as



          to whether a  given set  of facts established  probable cause  is



          subject to plenary review,  see United States v. Zapata,  18 F.3d
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          971, 975 (1st Cir. 1994).  There is probable cause for a warrant-



          less arrest  if "the  facts and  circumstances within  [the offi-



          cer[s']] knowledge and of which [they] had reasonably trustworthy



          information  were sufficient  to  warrant a  prudent [person]  in



          believing that the [defendant]  had committed . . .  an offense."



          Alexis v. McDonald's Restaurants of Mass., Inc., 67 F.3d 341, 349
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          (1st Cir. 1995) (some brackets in original).  These findings were



          sufficient  to  support  the district  court's  "probable  cause"



          ruling.2



                    Sutherland next claims that his post-Miranda confession
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               1Furthermore, after the two passengers were removed from the

          vehicle, the  female immediately  consented  to a  search of  her

          purse, which  was found to contain  $2,300 in $20 bills.   As the

          district court considered  the evidence seized from  the purse in

          arriving at its probable cause determination, it implicitly found

          that the consensual search preceded Sutherland's arrest.  We find

          no  clear error.  See  United States v.  Martinez-Molina, 64 F.3d
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          719, 726 (1st Cir. 1995).



               2Appellant vigorously insists that  the search of his person

          which occurred  at roadside,  after  the police  pulled down  his

          trousers  to  inhibit his  movement, invalidated  his warrantless

          arrest.   We  have  been presented  with  no reasoned  basis  for

          concluding that  a brief roadside protective  search for weapons,

          see Terry  v. Ohio, 392 U.S. 1,  26 (1968), undermined the arrest
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          itself,  particularly  since  the  roadside  search  disclosed no
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          evidence.



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          was involuntary, since he was undergoing heroin withdrawal at the



          time, such that  a promise  the police made  to provide him  with



          methadone treatment was tantamount to coercion.  An unimpeachable



          district court finding  conclusively undermines the  involuntari-



          ness  claim.  After  hearing conflicting testimony  as to whether



          Sutherland  had  been promised  methadone  treatments, the  court



          accepted the version  provided by  the police.   Thus, there  can



          have been no clear error.   United States v. Valle, 72  F.3d 210,
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          214 (1st Cir. 1995) (trial judge's credibility choice between two



          plausible versions of the events cannot be clearly erroneous).



                    Affirmed.
Affirmed
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