-
USCA1 Opinion
October 19, 1992
October 19, 1992
UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
____________________
____________________
No. 91-2251
No. 91-2251
UNITED STATES OF AMERICA,
UNITED STATES OF AMERICA,
Appellee,
Appellee,
v.
v.
JAMES W. McCOY,
JAMES W. McCOY,
Defendant, Appellant.
Defendant, Appellant.
____________________
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Shane Devine, U.S. District Judge]
[Hon. Shane Devine, U.S. District Judge]
___________________
____________________
____________________
Before
Before
Torruella, Cyr and Boudin,
Torruella, Cyr and Boudin,
Circuit Judges.
Circuit Judges.
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____________________
____________________
Glenn G. Geiger, Jr. with whom Geiger & Heiser, P.C. was on brief
Glenn G. Geiger, Jr. with whom Geiger & Heiser, P.C. was on brief
____________________ _____________________
for appellant.
for appellant.
Michael J. Connolly, Assistant United States Attorney, with whom
Michael J. Connolly, Assistant United States Attorney, with whom
___________________
Jeffrey R. Howard, United States Attorney, was on brief for appellee.
Jeffrey R. Howard, United States Attorney, was on brief for appellee.
_________________
____________________
____________________
____________________
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CYR, Circuit Judge. After defendant James W. McCoy was
CYR, Circuit Judge.
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indicted on four counts of violating 18 U.S.C. 922(g)(1), which
makes it unlawful for a convicted felon to possess a firearm, he
filed three motions to dismiss the indictment and two motions to
suppress evidence of the firearms. The motions were denied and
McCoy was tried and convicted on all counts. He challenges only
the district court orders denying the pretrial motions. We
affirm.
I
I
BACKGROUND
BACKGROUND
__________
Between July 21 and August 14, 1987, the town of
Hampton Falls, New Hampshire was beset by a series of burglaries
which seemed linked by several similarities. Each occurred
during working hours on a weekday. In each instance, entry was
gained by prying open a door, or if an attempted entrance through
a door proved unsuccessful, by prying open a window. Typically,
jewelry, cash, tools, and other small personal items were carried
away in pillow cases and nylon bags.
A. Allen Burglary
A. Allen Burglary
______________
On August 14, 1987, the Hampton Falls home of John
Allen was burglarized. At approximately 1:30 p.m., George Allen,
John Allen's brother and neighbor, spotted an unfamiliar black
Dodge van parked near John Allen's home. He stopped to investi-
gate, and noticed a white male walking away from the back of his
brother's house. He asked the stranger what he was doing, and
the man, who appeared nervous, replied, "just surveying." The
man then shouted toward the tree line at the back of the proper-
ty, as if to another person, words to the effect that he would
finish the job later. The man then got into the van, and George
Allen remarked to him that if he was simply surveying, he would
not object to his license plate number being recorded. George
Allen recorded the number, and the man drove away in the black
van.
When John Allen returned home that evening, he discov-
ered that his house had been forcibly entered through a rear
cellar window and an unsuccessful attempt had been made to pry a
rear door. Although it appeared that nothing had been taken from
the house, a nylon bag packed with jewelry and other personal
items was found in the master bedroom. Hampton Falls Deputy
Police Chief Dean R. Glover was dispatched to investigate the
burglary. George Allen told Glover that the man he had seen that
afternoon was a white male with dark curly hair, between five
feet ten inches and five feet eleven inches tall, and between one
hundred and seventy and two hundred pounds. Allen initially
estimated the man's age at between twenty-five and thirty years,
but moments later revised his estimate to thirty-five years or
older.
B. Arrest Warrant
B. Arrest Warrant
______________
2
Deputy Chief Glover ran a check on the license plate
number provided by George Allen and discovered that the van was
registered to appellant James W. McCoy at an address in neighbor-
ing Hampton, New Hampshire. Glover then ran a license check,
which revealed that McCoy was forty years old, five feet eleven
inches tall, two hundred pounds, with brown hair and eyes. Armed
with this information, Glover prepared an affidavit and complaint
for an arrest warrant charging McCoy with burglary. The support-
ing affidavit described the burglary of the John Allen residence
and George Allen's encounter with "a white male individual,
heavyset, approx. 5'10 ", dark medium-length hair, blue shirt and
dark pants." The affidavit included other descriptive informa-
tion obtained through the motor vehicle registration and license
check: "Hgt 5'11", wgt 200 lbs." The complaint and supporting
affidavit were submitted to a Justice of the Peace, who issued
the arrest warrant.
C. Subsequent Events
C. Subsequent Events
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Deputy Chief Glover contacted the Hampton police and
arranged to have two Hampton police officers, detectives Lalley
and Wardle, accompany him to McCoy's residence in Hampton.
Neither McCoy nor the van was at the address, but the landlord
informed the officers that McCoy had loaded his personal belong-
ings into the van early that afternoon and was not expected to
return. The landlord mentioned that he had seen some items in
McCoy's apartment that struck him as unusual possessions for a
3
construction worker, among them an antique clock bearing a Latin
inscription and the word "Florida" on its face. Glover suspected
that the clock the landlord described and a one-of-a-kind antique
Belgian clock (bearing the inscription "Tempus Fugit" and the
word "Florida") stolen in a July 24, 1987 burglary of another
Hampton Falls residence, were one and the same. Detectives
Wardle and Lalley of the Hampton Police Department were present
during the discussion of the clock. The landlord permitted the
officers to inspect McCoy's apartment; two television sets were
found, as well as several pieces of jewelry and a few coins.
During the following week, the landlord turned over
some of McCoy's mail to Deputy Chief Glover, who noted that two
envelopes bore the return address of the First National Bank of
Portsmouth. Glover learned that McCoy still had an active
account at the Hampton branch of the bank. Bank personnel
informed the police that McCoy occasionally brought large quanti-
ties of coins to the bank. Glover requested that bank personnel
notify either the Hampton Police Department or the Hampton Falls
Police Department in the event McCoy made any further contact
with the bank.
Bank personnel directed Glover to McCoy's employers,
Earl and Dean Verity, who owned a construction company and were
in the process of building a house very near the scene of another
Hampton Falls burglary under investigation by Glover. Glover
learned that McCoy had been employed by the company, but had left
work suddenly around noon on the day of the Allen burglary, and
4
never returned. The Veritys informed Glover that McCoy had given
them some outdoor lawn tools, which Glover noted were similar to
the tools stolen in yet another recent Hampton Falls burglary.
Within a week after the Allen burglary, Glover learned
that McCoy had an extensive criminal record, including convic-
tions for breaking and entering, receiving stolen property, and
burglary, and that there was a warrant outstanding in another
state for his arrest on burglary charges.
D. Arrest
D. Arrest
______
At 8:55 a.m. on August 21, 1987, McCoy appeared at the
drive-up window of the Hampton branch of the First National Bank
of Portsmouth. He was recognized by the teller, who requested
that he come into the bank to resolve a problem with his account.
The Hampton Police Department was notified, and ten police
officers were dispatched to the bank.1 The Hampton police
arrested McCoy as he emerged from the bank and headed toward the
van. Among the Hampton police officers at the scene was Detec-
tive Wardle, who had accompanied Glover to the defendant's
residence on the evening of the Allen burglary.
E. Impoundment and Search of Van
E. Impoundment and Search of Van
_____________________________
After McCoy was arrested, the van was towed to the
____________________
1The arrest procedures to be used in the event McCoy ap-
peared at the bank had been prearranged by the Hampton Falls
Police Department and the Hampton Police Department. As agreed,
the Hampton Police Department responded as it would to a bank
robbery alarm.
5
Hampton Police Department for an inventory search, but then it
was decided to await the issuance of a search warrant.2
Glover filed a search warrant application with the
Hampton District Court, supported by the affidavit submitted with
the arrest warrant application, four Hampton Falls Police Depart-
ment burglary reports, and a photograph of the antique Belgian
clock. The warrant issued, but before beginning the search
Glover looked in the windows at the contents of the van.3
Glover and a Hampton police sergeant proceeded to search the van.
Sixty-one items were inventoried, including the four firearms
which form the basis for the federal charges in the present case.
On September 26, 1988, McCoy pled guilty in Rockingham
County Superior Court to seven felony counts of receiving stolen
property. During 1991, he was indicted, tried and convicted on
four federal firearms charges under 18 U.S.C. 922(g)(1). We
turn to the claims presented on appeal.
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2Within two hours after McCoy's arrest, Glover was informed
by the arresting officers that the license plate number on the
van matched the number given to Glover by George Allen, and that
it looked as if a paint roller had been used hurriedly to paint
the van a maroon color. Black paint was still visible around the
door locks and mirrors. The arresting officers further informed
Glover that several items, including a clock, power tools, and a
number of nylon bags filled with "stuff," were visible through
the windows of the van. Detective Wardle advised Glover that he
believed that the clock seen in the van was the one described by
McCoy's landlord.
3Glover observed a large quantity of tools, a "dozen or so"
canvas and nylon tote bags with what appeared to be jewelry
spilling out of them, bags of tools, pry bars and hammers, lounge
chairs, some clothes, and, most notably, a clock matching the
description of the stolen Belgian clock and a leaf blower
matching the description of one stolen in another of the Hampton
Falls burglaries.
6
II
II
DISCUSSION
DISCUSSION
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A. Motions to Suppress
A. Motions to Suppress
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1. "Automobile Exception"
1. "Automobile Exception"
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Appellant claims that the evidence seized from the van
should have been suppressed because the search warrant obtained
by Deputy Chief Glover was not supported by probable cause.
Assuming, without deciding, the search warrant was invalid, we
nonetheless conclude that the district court properly denied the
motions to suppress, as the search was permissible under the
"automobile exception" to the Fourth Amendment warrant require-
ment.
Under the "automobile exception," the only essential
predicate for a valid warrantless search of a motor vehicle by
law enforcement officers is "probable cause to believe that the
[vehicle] contains contraband or other evidence of criminal
activity." United States v. Panitz, 907 F.2d 1267, 1271 (1st
______________ ______
Cir. 1990). See Carroll v. United States, 267 U.S. 132, 153-56
___ _______ _____________
(1925). "The inherent mobility of motor vehicles, [California
__________
v.] Carney, 471 U.S. [386,] [] 390 [] [(1985)], and the reduced
______
expectation of privacy associated with them, id. at 391, []
___
justify application of the vehicular exception '[e]ven in cases
where an automobile [is] not immediately mobile.'" Panitz, 907
______
F.2d at 1271. We have held that probable cause alone justifies a
warrantless search of a motor vehicle seized without a warrant
7
while parked in a public place, "whether or not exigent circum-
stances prevailed at either the time of the seizure or the time
of the search. Moreover, the search, so long as reasonable in
scope, need not be conducted contemporaneously with the seizure
. . . ." Id. at 1272 (citing cases). Provided there was proba-
___
ble cause to believe that an offense had been committed and that
a search would turn up evidence of the offense, see United States
___ _____________
v. Aguirre, 839 F.2d 854, 857-58 (1st Cir. 1988), the seizure and
_______
search of the van were lawful under the "automobile exception"
without regard to the validity of the search warrant.4
At the time of the arrest, Glover knew that McCoy and
the van had been observed in highly suspicious circumstances at
the scene of the Allen burglary. Glover and Detective Wardle had
learned from McCoy's landlord that McCoy possessed a clock
similar to one stolen in another nearby burglary, and that he had
left hurriedly in the van with his belongings. Over the ensuing
week, Glover collected considerable circumstantial evidence from
various sources linking McCoy with several other Hampton Falls
burglaries.5 Thus, by the time of the arrest there was probable
____________________
4Provided there was probable cause to search the van at the
time of McCoy's arrest, the search was valid even if the arrest
was not, as the police would have had an independent basis for
searching the van, apart from any exploitation of illegal con-
duct. See Brown v. Illinois, 422 U.S. 590, 599 (1975); United
___ _____ ________ ______
States v. Pimental, 645 F.2d 85, 86 (1st Cir. 1981).
______ ________
5The evidence established that the Hampton and Hampton Falls
police conducted a cooperative investigation. Detective Wardle
of the Hampton Police Department accompanied Glover to McCoy's
residence on the evening of the Allen burglary. Wardle parti-
cipated in the discussion with McCoy's landlord regarding the
antique Belgian clock seen in McCoy's apartment. The two police
8
cause to believe that burglaries had been committed and that
McCoy was in possession of at least some of the stolen property.
Glover and Wardle arguably had probable cause to believe that
stolen property would be found in the van upon learning from the
landlord that McCoy had loaded his possessions in the van on the
afternoon of the Allen burglary and appeared to have abandoned
his apartment. Assuming that the police had probable cause to
believe that a search of the van would turn up evidence of the
burglaries, their seizure of the van at the bank parking lot was
lawful. Any doubt as to the legality of the search is removed
given that prior to commencing the search, some five hours later,
see United States v. Moscatiello, 771 F.2d 589, 595, 600 (1st
___ _____________ ___________
Cir. 1985) (eighteen hours between seizure and search); United
______
States v. McHugh, 769 F.2d 860, 865-67 (1st Cir. 1985) (one
______ ______
week), the police looked through the windows of the van and saw
an antique clock, closely resembling the stolen Belgian clock,
and a leaf blower, closely resembling one stolen in another local
burglary. At that point, there can be no question that the
police had probable cause to believe the van contained evidence
of criminal activity. As the van was lawfully searched, the
district court correctly denied the motions to suppress.
____________________
departments communicated "at length" during the week preceding
the arrest, and jointly established a procedure for the arrest.
Glover learned of McCoy's criminal record, including the burglary
and stolen property charges, and communicated a warning to the
Hampton police to exercise caution in approaching the defendant.
"Where law enforcement authorities are cooperating in an
investigation, . . . the knowledge of one is presumed shared by
all." Illinois v. Andreas, 463 U.S. 765, 771 n.5 (1982).
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9
10
B. Motions to Dismiss
B. Motions to Dismiss
__________________
1. Pre-indictment Delay
1. Pre-indictment Delay
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Appellant claims that the passage of three and one-half
years between the seizure of the firearms and the return of the
federal indictment violated his Fifth Amendment right to due
process and his Sixth Amendment right to speedy trial.
a. Due Process
a. Due Process
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Pre-indictment delay violates due process if "(1) [it]
caused substantial prejudice to [the defendant's] right to a fair
trial and, (2) the Government intentionally delayed indictment in
___
order to gain a tactical advantage over the accused." United
______
States v. Picciandra, 788 F.2d 39, 42 (1st Cir.) (citing United
______ __________ ______
States v. Marion, 404 U.S. 307 (1971)) (emphasis added), cert.
______ ______ ____
denied, 479 U.S. 847 (1986). See also United States v. Acevedo,
______ ___ ____ _____________ _______
842 F.2d 502, 504 (1st Cir. 1988). For the defendant to carry
the heavy burden of proving actual prejudice from pre-indictment
delay, concrete proof is required; mere speculation and bare
allegations will not suffice. Acha v. United States, 910 F.2d
____ ______________
28, 32 (1st Cir. 1990).
Although appellant claims that he was prejudiced by the
extended pre-indictment delay, in that his decision to plead
guilty to the state felony charges was predicated on a "belief"
that federal charges would not be filed, he neither alleges nor
demonstrates that any agent of the federal government ever
represented that he would not be prosecuted for the federal
11
firearms violations. The further argument that the delay
diminished the opportunity to serve concurrent time on the state
and federal offenses is based on the speculation that either
sentence would be made to run concurrently. Moreover, even if
the claims of prejudice were sustainable, appellant has not shown
that the government intentionally delayed indictment to gain a
tactical advantage. See Picciandra, 788 F.2d at 42.
___ __________
b. Sixth Amendment
b. Sixth Amendment
_______________
Appellant contends that the extended pre-indictment
delay violated "the very spirit" of the Sixth Amendment and the
Speedy Trial Act, 18 U.S.C. 3161. As appellant concedes,
however, no Sixth Amendment right to speedy trial arises prior to
the filing of the criminal charge. United States v. MacDonald,
_____________ _________
456 U.S. 1, 7 (1982). See United States v. Marler, 756 F.2d 206,
___ _____________ ______
211 (1st Cir. 1985) (Sixth Amendment speedy trial right arises at
filing of federal indictment).6
____________________
6Appellant argues that the district court should have
dismissed the indictment for lack of prosecution, pursuant to
Federal Rule of Criminal Procedure 48(b), which provides:
If there is unnecessary delay in presenting the charge
to a grand jury or in filing an information against a
defendant who has been held to answer to the district
____ __ ______ __ ___ ________
court, or if there is unnecessary delay in bringing a
_____
defendant to trial, the court may dismiss the indict-
ment, information or complaint.
Fed. R. Crim. P. 48(b) (emphasis added). Rule 48(b) is limited
in application to post-arrest delay. United States v. Marion,
_____________ ______
404 U.S. 307, 319 (1971). Appellant does not complain of unnec-
essary delay following the federal indictment.
12
2. Petite Policy
2. Petite Policy
_____________
Appellant contends that the federal indictment con-
travened the Justice Department's so-called Petite policy,
______
thereby violating his due process rights. The Petite policy, see
______ ___
Petite v. United States, 361 U.S. 529 (1960) (per curiam), is an
______ _____________
internal Justice Department policy forbidding federal prosecution
of a person for alleged criminality which was "an ingredient of a
previous state prosecution against that person;" exceptions are
made only if the prosecution will serve "compelling interests of
federal law enforcement." Thompson v. United States, 444 U.S.
________ _____________
248, 248 (1979). It is a federal prosecutorial policy, not a
matter of constitutional law. United States v. Booth, 673 F.2d
_____________ _____
27, 30 (1st Cir.), cert. denied, 456 U.S. 978 (1982). See
____ ______ ___
Rinaldi v. United States, 434 U.S. 22, 29 (1977) (Petite policy
_______ _____________ ______
"not constitutionally mandated"). As we have explained,
[t]he Petite policy and cases construing it
______
stand only for the proposition that the
government's motion to dismiss should be
granted when it discovers that it is conduct-
ing separate prosecutions for the same of-
fense. The doctrine does not create a corre-
sponding right in the accused.
Booth, 673 F.2d at 30.
_____
Appellant argues that Booth is not controlling as the
_____
Justice Department revised the policy after Booth was decided.
_____
Those courts of appeals which have examined the Petite policy
______
since its revision in 1988, however, have adhered to the view
that it does not confer substantive rights on an accused. See,
___
13
e.g., United States v. Simpkins, 953 F.2d 443, 444-45 (8th Cir.)
____ _____________ ________
(Petite policy does not confer substantive rights on criminal
______
defendant, thus cannot form the basis of claim that subsequent
prosecution was improper), cert. denied, ___ U.S. ___, 118
____ ______
L.Ed.2d 585, 112 S. Ct. 1988 (1992); United States v. Rodriguez,
_____________ _________
948 F.2d 914, 915 (5th Cir. 1991) (as an internal rule of Justice
Department, policy may not be invoked by defendant to bar prose-
cution), cert. denied, ___ U.S. ___, 119 L.Ed.2d 590, 112 S. Ct.
____ ______
2970 (1992); United States v. Pungitore, 910 F.2d 1084, 1120 (3d
_____________ _________
Cir. 1990) (policy does not confer substantive rights on defen-
dants); United States v. Heidecke, 900 F.2d 1155, 1157 n.2 (7th
_____________ ________
Cir. 1990) (as internal guideline, policy gives defendant no
substantive rights). We hold that neither the Petite policy nor
______
its 1988 revision conferred substantive rights on the defendant.
The district court judgment is affirmed.
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14
McCoy
McCoy
_____
Defendant filed two pretrial motions to suppress the
firearms evidence on Fourth Amendment grounds. In one motion,
defendant claimed that his arrest was illegal because the arrest
warrant was not supported by probable cause as required by the
Fourth Amendment. Defendant argued that the firearms discovered
in his van were fruits of the illegal arrest and therefore
inadmissible against him in a criminal proceeding. In his second
motion to suppress, defendant contended that the search warrant
for his van was not supported by probable cause, and thus the
firearms evidence should be excluded as the fruit of an illegal
search.
Defendant also filed three pretrial motions to dismiss
the indictment. In one motion, defendant argued that pretrial
delay before federal charges were filed violated his rights under
the due process clause of the Fifth Amendment and the speedy
trial clause of the Sixth Amendment. In a second motion, defen-
dant argued that unnecessary delay in bringing him to trial
warranted dismissal under Rule 48(b) of the Federal Rules of
Criminal Procedure. In a third motion, defendant claimed that
the government's failure to follow the Petite policy, a Depart-
______
ment of Justice policy against dual or successive federal prose-
cutions, violated his rights under the due process clause of the
Fifth Amendment.
The district court denied both motions to suppress the
firearms evidence and all three motions to dismiss the indict-
1
ment. Defendant subsequently was tried and convicted on each of
the four counts. Defendant now appeals the denial of each of the
five pretrial motions.
2
McCoy
McCoy
_____
1. Arrest Warrant
1. Arrest Warrant
______________
Defendant contends that the affidavit supporting the
arrest warrant did not establish probable cause. He argues that
the description given to police by George Allen was sufficiently
broad to encompass a large percentage of the white male popula-
tion and therefore insufficient to constitute probable cause that
defendant committed the Allen burglary. Defendant contends that
information obtained by Deputy Chief Glover after the issuance of
the warrant is irrelevant in determining probable cause because
the Hampton police effectuated the arrest solely on the basis of
the arrest warrant. Defendant argues that information possessed
by Officer Glover and the Hampton Falls Police Department may not
be imputed to the arresting officers in the Hampton Police
Department.
United States v. Watson, 423 U.S. 411 (1976), estab-
_____________ ______
lished that a warrantless public felony arrest supported by
probable cause does not violate the Fourth Amendment. See also
___ ____
Gerstein v. Pugh, 420 U.S. 103, 113-14 (1975). If defendant's
________ ____
arrest was supported by probable cause, therefore, the arrest was
legal notwithstanding the validity of the arrest warrant.
Probable cause exists when "the facts and circumstances
within the [police officers'] knowledge and of which they had
reasonably trustworthy information were sufficient to warrant a
prudent [person] in believing that the [defendant] had committed
or was committing an offense." United States v. Figueroa, 818
_____________ ________
1
F.2d 1020, 1023 (1st Cir. 1987) (quoting Beck v. Ohio, 379 U.S.
____ ____
89, 91 (1983)). "The government need not show 'the quantum of
proof necessary to convict'; probability is the touchstone." Id.
___
(quoting United States v. Miller, 489 F.2d 1117, 1128 (1st Cir.
_______ _____________ ______
1978), cert. denied, 440 U.S. 958 (1979)). We must consider the
____ ______
totality of the circumstances in evaluating whether the govern-
ment demonstrated a sufficient "[p]robability . . . of criminal
activity." Id. at 23-24 (quoting Illinois v. Gates, 462 U.S. 213
___ _______ ________ _____
(1983)).
First, we will examine the facts and circumstances
within the collective knowledge of the Hampton Falls and Hampton
__________
police departments; then we will determine what portion, if any,
of that knowledge may be imputed to the arresting officers. At
the time of defendant's arrest, the following was known to Deputy
Chief Glover: A man driving a van registered to the defendant
and fitting the general description of the defendant was observed
at approximately 1:30 p.m. at the scene of the Allen burglary on
August 14, 1987. The man appeared nervous, and did not identify
himself or offer any explanation for his presence on the property
except that he was "just surveying." The man was aware that
George Allen recorded his license plate number. The defendant
had suddenly disappeared from his construction job around noon on
that day, and never returned. The defendant also had been
observed "hurriedly" loading his possessions into his van that
afternoon, and appeared to have abandoned his place of residence.
His landlords had seen a clock in defendant's apartment bearing
2
remarkable similarity to one stolen in an earlier burglary, and
had noticed other items in the apartment that seemed inconsistent
with defendant's station in life. Defendant had given both his
landlords and his employers expensive gifts resembling items
stolen in various Hampton Falls burglaries. He was known to
bring large quantities of coins, sometimes foreign, to his bank.
One of the Hampton Falls burglaries took place across the street
from his place of employment and occurred during the relatively
brief period of his employment at that location. Finally, he had
a criminal history of crimes against property.
These facts, in the aggregate, are sufficient to estab-
lish probable cause that defendant had engaged in criminal
activity. However, we must determine what portion of Deputy
Chief Glover's knowledge can be imputed to the arresting offi-
cers. That the arresting officer may have lacked probable cause
___
for the arrest of the suspect does not mean that the arrest is
invalid for lack of probable cause; it is enough that the collec-
tive knowledge and information of all the officers involved
establishes probable cause for the arrest. United States v.
_____________
Paradis, 802 F.2d 553, 557 (1st Cir. 1986). See also Charles v.
_______ ___ ____ _______
Smith, 894 F.2d 718 (5th Cir. 1990), cert. denied, ___ U.S. ___
_____ ____ ______
(19__) (officer lacking personal knowledge of facts establishing
probable cause for arrest may nevertheless make arrest if he is
merely carrying out directions of officer who does have probable
cause); United States v. Rocha, 916 F.2d 219 (5th Cir. 1990),
_____________ _____
cert. denied, ___ U.S. ___, (19__) (arresting officer need not
____ ______
3
have personal knowledge of all facts constituting probable cause,
but may rely upon collective knowledge of police when there is
communication among them); United States v. Hoyos, 892 F.2d 1387
_____________ _____
(9th Cir. 1989), cert. denied, ___ U.S. ___ (19__) (arresting
____ ______
officer need not have personal knowledge of facts sufficient to
constitute probable cause; probable cause may be based on collec-
tive knowledge of all officers involved in investigation);
Calamia v. City of New York, 879 F.2d 1025 (2d Cir. 1989) (where
_______ ________________
law enforcement authorities are cooperating in investigation,
knowledge of one is presumed shared by all); United States v.
_____________
Rich, 795 F.2d 680 (8th Cir. 1986) (in determining whether
____
probable cause existed for an arrest, court does not merely look
to actual knowledge of arresting officer, but to combined knowl-
edge of all officers involved).
Defendant argues that our decision in Paradis is
_______
inapposite because the police departments of Hampton and Hampton
Falls were not involved in a contemporaneous investigation.
However, the record establishes that Detective Wardle of the
Hampton Police Department, one of the arresting officers, accom-
panied Deputy Chief Glover to the defendant's residence on the
evening of the Allen burglary. That evening, Detective Wardle
participated in the discussion with defendant's landlord regard-
ing the antique clock seen in defendant's apartment, and learned
that defendant had hurriedly loaded his belongings in the van
that afternoon and had apparently abandoned his apartment. The
record establishes that the two police departments communicated
4
"at length" during the week preceding the arrest, and established
a procedure for the arrest. Further, when Deputy Chief Glover
learned of the defendant's prior criminal record, he communicated
a warning to the Hampton police to use caution when confronting
the defendant. We cannot agree with defendant's contention that
the Hampton Police Department based their arrest solely on the
arrest warrant. On the contrary, ample evidence suggests that
the two police departments communicated on numerous occasions
about the anticipated arrest during the week between the issuance
of the warrant and the arrest. It is appropriate, therefore, to
consider the collective knowledge of all the officers involved in
determining whether probable cause existed for defendant's
arrest. We find the collective knowledge of the Hampton and
Hampton Falls police departments at the time of defendant's
arrest sufficient to support a finding of probable cause.
Defendant's claim that the firearms evidence should have been
suppressed as the fruit of an illegal arrest is without merit.
5
Document Info
Docket Number： 91-2251
Filed Date： 10/19/1992
Precedential Status： Precedential
Modified Date： 9/21/2015