United States v. White ( 2015 )

United States Court of Appeals
For the First Circuit
No. 14-2165
UNITED STATES OF AMERICA,
Appellee,
v.
ADAM WHITE,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
Before
Kayatta, Stahl, and Barron,
Circuit Judges.
Timothy E. Zerillo and Hallett, Zerillo & Whipple, P.A. on
brief for appellant.
Margaret D. McGaughey, Assistant United States Attorney, and
Thomas E. Delahanty II, United States Attorney, on brief for
appellee.
October 20, 2015
STAHL, Circuit Judge. Defendant-Appellant Adam White
was arrested after his vehicle was stopped and searched by officers
with the Maine Drug Enforcement Agency ("MDEA"), the Maine State
Police, and the Portland Police Department ("PPD"). The search of
White's car involved the use of a drug-sniffing dog, named Aros,
and resulted in the discovery of cocaine and a firearm. White
entered a conditional guilty plea on charges of possession with
intent to distribute cocaine and possession of a firearm in
furtherance of a drug trafficking crime.
On appeal, White now contends that the district court
erred by: (1) denying his motion for discovery of records and other
information relating to Aros's prior performance in real-world
sniff searches; and (2) denying his motion to suppress. Because
we agree with the district court that the search of White's vehicle
was supported by probable cause, we AFFIRM the denial of the motion
to suppress. For reasons described more fully below, we need not
consider the issues raised by the motion for discovery.
I. Facts & Background
In August 2012, a confidential informant ("CI") reported
to MDEA Special Agent Seth Page ("Page") that White was a large-
scale cocaine distributor in the Portland, Maine area, and that
the CI had purchased cocaine from White "many times" in the past.
This information prompted Page to begin an investigation. Working
with Page, the CI completed two controlled purchases of cocaine
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from White. The first took place in August 2012, and the second
took place several months later in December 2012. In both
instances, White drove to a prearranged location where he met the
CI, and the controlled purchase took place inside White's vehicle.
In early February 2013, the CI reported to Page that
White was planning to "restock" his cocaine supply. This led Page
to devise a scheme to stop and search White's vehicle. Page met
with the CI on February 12, 2013, and at Page's instruction, the
CI placed a call to White and ordered a "full" ounce of cocaine.
In a recorded telephone conversation, White assured the CI that he
would be leaving "pretty soon," and that he would "definitely bring
[the full] out with me." Prior to this recorded call, the CI had
told Page that he believed White had restocked his supply of
cocaine.
Previously, Page had placed White's home in Falmouth,
Maine under surveillance. Approximately ten minutes after the
call from the CI, MDEA agents stationed at White's home reported
that White and his girlfriend were leaving the premises in his
black Cadillac.1
In addition to placing White's home under surveillance,
Page had also arranged with a Maine State Police Trooper, Adam
Fillebrown, and a PPD Officer, Mark Keller, to be on standby.
1
This was the same vehicle White had used in the second
controlled purchase.
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Trooper Fillebrown was placed on standby with Aros, his drug-
sniffing canine partner.
As White left his home, he was followed in unmarked
cruisers by several MDEA agents, including Agents Jake Hall and
Andrew Haggerty. Agent Hall observed as White drove down Auburn
Street in Portland, and visually estimated that White was
travelling at twenty to twenty-five miles per hour in a fifteen-
mile-per-hour school zone. Agent Hall relayed this information to
Agent Haggerty, who then passed it on to PPD Officer Keller.
Officer Keller, who was in a marked PPD cruiser, stopped
White's vehicle on Stevens Avenue. Although Officer Keller had
been briefed on the investigation and the reasons for the traffic
stop, he informed White only that he had been pulled over for
speeding in a school zone. As Officer Keller initiated the traffic
stop, Trooper Fillebrown was summoned to the scene, where he
arrived some seven minutes later. As Fillebrown arrived, Officer
Keller told White that Fillebrown was training a new drug-sniffing
dog, and that the dog was going to conduct a sniff search of
White's vehicle as a training exercise.2
Trooper Fillebrown led Aros on a series of passes around
White's vehicle. On the fourth pass by the driver's side door,
2 This was of course untrue, though the government notes that
Officer Keller perhaps needed to lie to White in order to protect
the identity of the CI.
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Aros alerted that he had located the scent of narcotics. Once
Aros had alerted, Officer Keller asked White and his girlfriend to
exit the vehicle. He conducted a pat-down and search of White's
pockets, where he found three one-ounce baggies of cocaine.
Officer Keller then placed White under arrest. As he did so,
Trooper Fillebrown conducted a search of the vehicle, where he
discovered a gun in the driver's side door and approximately one
pound of cocaine in a sealed package in the trunk.3
After the traffic stop, Page completed a search warrant
application for White's home in Falmouth. The warrant application
was approved that day, and MDEA agents promptly began their search,
locating some 3,300 grams of cocaine, several bags of marijuana,
a handgun, cash, and assorted drug paraphernalia. White was
indicted on one count of possession with intent to distribute 500
grams or more of cocaine, in violation of 21 U.S.C. § 841(a)(1),
and one count of possession of a firearm in furtherance of a drug
trafficking crime, in violation of 18 U.S.C. § 924(c)(1).
During discovery, White requested that the government
provide him with information about the Maine State Police's use of
drug-sniffing dogs. Specifically, he asked for training and
certification records for Trooper Fillebrown and Aros. He also
3 Officers also discovered two cellphones. Pursuant to a
warrant, Page later searched the phones and discovered text
messages discussing drug sales and deposits of sale proceeds.
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asked for records and video recordings of previous sniff searches
that Aros had conducted in the field, as well as training and
certification records for a drug-sniffing dog named Caro, with
whom Trooper Fillebrown had worked prior to Caro's retirement.
The government produced the training and certification
records for Trooper Fillebrown and Aros, but refused to turn over
information about Aros's prior sniff searches or Caro's training.
The government took the position that the records of Aros's prior
sniff searches contained sensitive information about ongoing
investigations, and that the records of Caro's training were simply
not relevant.
White filed a motion for discovery seeking to compel the
government to disclose this evidence. He maintained that the
information he sought was crucial to proving that Aros's sniff
search was defective, and that officers therefore lacked probable
cause to search his vehicle. In support of his motion, White
submitted the affidavit of a canine expert, who opined that Aros's
behavior during the traffic stop - particularly his need for
multiple passes around the vehicle - was indicative of inadequate
training and improper handler "cueing."
Pursuant to a report and recommendation issued by a
magistrate judge, the district court denied White's motion for
discovery. The district court reasoned that, pursuant to a then-
recent Supreme Court decision, Florida v. Harris, __ U.S. __, 133
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S. Ct. 1050 (2013), the government was under no obligation to
disclose the information regarding either Aros's prior searches or
Caro's training.
Later, White filed a motion to suppress. In relevant
part, he argued that Officer Keller did not have probable cause to
stop his vehicle, and that Aros's alert did not provide probable
cause to search his car. Therefore, he argued, the evidence in
the car and at his home had been obtained illegally as fruit of
the poisonous tree.4
Following a two-day hearing, the district court denied
White's motion to suppress. In his oral decision, the district
court found that the stop and search of White's vehicle were
permissible under the automobile exception to the Fourth Amendment
warrant requirement. The district court reasoned that the officers
had probable cause, solely on the basis of information provided by
the CI and Page's investigation, to believe that White's car would
contain evidence of drug dealing activity at the time it was
stopped. Based on this finding, the district court declined to
separately consider whether Aros's sniff search independently
provided probable cause to initiate a search.
4 White's motion also sought to suppress incriminating
statements made at the time of his arrest. For example, after he
had been handcuffed, White stated to Officer Keller, "this isn't
a regular traffic stop, is it?"
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After the denial of his motion to suppress, White entered
a guilty plea, conditioned on his right to seek appellate relief.
See Fed. R. Crim. P. 11(a)(2). The district court sentenced White
to a prison term of seventy months on the cocaine possession and
distribution count, and a consecutive term of sixty months on the
firearm count. This appeal followed.
II. Discussion
We begin by considering the district court's denial of
White's motion to suppress, which we review by means of a two-
tiered inquiry. United States v. Ford, 548 F.3d 1, 3 (1st Cir.
2008). We review the district court's factual findings for clear
error, and we review its legal conclusions de novo. Id. A finding
of fact will amount to clear error "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. Mousli, 511 F.3d 7, 11
(1st Cir. 2007) (quoting United States v. Ferreras, 192 F.3d 5, 9-
10 (1st Cir. 1999)). "So long as any reasonable view of the
evidence supports the decision, the district court's ruling will
be upheld." United States v. McLellan, 792 F.3d 200, 212 (1st
Cir. 2015).
The Fourth Amendment guarantees the right to be free
from unreasonable searches and seizures in the absence of a warrant
supported by probable cause. U.S. Const. amend. IV. Under the
automobile exception, however, "police officers may seize and
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search an automobile prior to obtaining a warrant where they have
probable cause to believe that the automobile contains
contraband." United States v. Silva, 742 F.3d 1, 7 (1st Cir.
2014); see also Florida v. White, 526 U.S. 559, 563-64 (1999)
("[W]hen federal officers have probable cause to believe that an
automobile contains contraband, the Fourth Amendment does not
require them to obtain a warrant prior to searching the car for
and seizing the contraband.").
"Probable cause exists when 'the facts and circumstances
as to which police have reasonably trustworthy information are
sufficient to warrant a person of reasonable caution in the belief
that evidence of a crime will be found.'" Silva, 742 F.3d at 7
(quoting Robinson v. Cook, 706 F.3d 25, 32 (1st Cir. 2013)); see
also Harris, 133 S. Ct. at 1055 ("A police officer has probable
cause to conduct a search when the facts available to him would
warrant a person of reasonable caution in the belief that
contraband or evidence of a crime is present." (citations omitted)
(internal quotations marks and alterations omitted)). "The test
for probable cause is not reducible to 'precise definition or
quantification.'" Harris, 133 S. Ct. at 1055 (quoting Maryland v.
Pringle, 540 U.S. 366, 371 (2003)). Rather, "[t]he standard is
satisfied when the totality of the circumstances create 'a fair
probability that . . . evidence of a crime will be found in a
particular place.'" Silva, 742 F.3d at 7 (quoting United States
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v. Hicks, 575 F.3d 130, 136 (1st Cir. 2009)). All that is required
is the kind of "fair probability on which reasonable and prudent
people, not legal technicians, act." Harris, 133 S. Ct. at 1055
(quoting Illinois v. Gates, 462 U.S. 213, 231, 238 (1983) (internal
quotation marks and alterations omitted)).
Where, as here, "the primary basis for a probable cause
determination is information provided by a confidential informant,
law enforcement must provide some information from which a court
can credit the informant's credibility." United States v. Ramírez-
Rivera, __ F.3d __, 2015 U.S. App. LEXIS 15081, at *45 (1st Cir.
Aug. 26, 2015) (citations omitted) (internal quotation marks and
alterations omitted). In other words, "a probable cause finding
may be based on an informant's tip so long as the probability of
a lying or inaccurate informer has been sufficiently reduced."
United States v. Greenburg, 410 F.3d 63, 69 (1st Cir. 2005). The
First Circuit has identified a "non-exhaustive" list of factors to
examine in deciding on an informant's reliability: (1) the probable
veracity and basis of knowledge of the informant; (2) whether an
informant's statements reflect first-hand knowledge; (3) whether
some or all of the informant's factual statements were corroborated
wherever reasonable and practicable; and (4) whether a law
enforcement officer assessed, from his professional standpoint,
experience, and expertise, the probable significance of the
informant's information. Ramírez-Rivera, 2015 U.S. App. LEXIS at
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*45-46 (citing United States v. Tiem Trinh, 665 F.3d 1, 10 (1st
Cir. 2011)).
The district court found that the warrantless search and
seizure of White's vehicle were justified by the automobile
exception. The district court reasoned that the information
gleaned from the CI and Page's subsequent investigation gave
officers adequate probable cause to believe that White's car would
contain evidence of drug dealing activity at the time of the
traffic stop. The record soundly supports these conclusions.
The investigation in this case began when the CI provided
information to Page that White was a large-scale cocaine
distributor in the Portland area.5 In his disclosures to Page,
the CI evinced a significant basis for first-hand knowledge
regarding White's activities. He reported, for example, that he
had purchased cocaine from White "many times" in the past, and
that White most frequently sold drugs from his vehicle. The CI
also provided Page with White's home address.
Subsequently, Page was able to corroborate much of the
information that the CI provided. For example, Page testified
that he was able to confirm White's home address by cross-checking
the information provided by the CI with a registry of motor
5Page testified that the CI cooperated in the hope of
receiving favorable treatment with respect to drug charges pending
against him at the time.
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vehicles database. Page also testified that, in addition to
assisting in the White investigation, the CI provided information
in another case that was later corroborated and used to further
that investigation.
Most significantly, Page corroborated the CI's tip that
White sold drugs primarily from his vehicle. Page worked with the
CI to execute two controlled purchases from White, the first taking
place in August 2012, and the second taking place in December 2012.
In both instances, the CI placed a call to White, requested a
quantity of cocaine, and arranged a time and place to meet. Again,
in both instances, White arrived in his car, the CI entered the
car and completed the purchase, then exited. During the second
purchase, White drove the same black Cadillac he would later be
using at the time of his arrest.
Page testified that, in early February 2013, the CI
informed him that White was planning to "restock" his cocaine
supply. This prompted Page to devise the operation that eventually
resulted in the stop of White's vehicle. On February 12, Page met
with the CI and directed him to call White and to order a "full"
ounce of cocaine. In a recorded call, the CI placed the order,
and White assured him that he would be leaving his house "pretty
soon," and would "definitely bring [the full] out with me." Some
ten minutes later, agents stationed at White's home observed him
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leaving in his Cadillac. Prior to the recorded call, the CI told
Page that he believed White had restocked his supply of cocaine.
Viewing these facts and circumstances in their totality,
as we must, Silva, 742 F.3d at 7, we conclude that, at the time of
the traffic stop, officers had ample reason to believe that White
was en route to conduct a sale of cocaine, and that a search of
his vehicle would yield evidence of drug dealing activity.
Therefore, pursuant to the automobile exception, officers had
probable cause to stop and search White's vehicle, including the
passenger compartment and the trunk. See United States v. Polanco,
634 F.3d 39, 42 (1st Cir. 2011) ("[The automobile exception]
provides that '[i]f there is probable cause to believe a vehicle
contains evidence of criminal activity,' agents can search without
a warrant 'any area of the vehicle in which the evidence [might]
be found.'") (quoting Arizona v. Gant, 556 U.S 332, 347 (2009)).
In theory, then, this might have been a straight-forward
probable cause case. In practice, it was anything but. Rather
than rely on the automobile exception and the probable cause they
already had, Page and his fellow officers decided to use a
pretextual speeding infraction to stop White's car and to conduct
a canine sniff search (under false pretenses) in an effort to gain
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even more probable cause.6 While we recognize that law enforcement
officers routinely face difficult questions about the adequacy of
probable cause, there can be no doubt that these decisions rendered
this investigation and the ensuing criminal prosecution
unnecessarily complicated.7
But, ultimately, neither the pretextual traffic stop nor
the canine sniff search undermine the basic finding that, at the
time that these events transpired, officers had adequate probable
cause to stop White's vehicle and to search it for evidence of
drug dealing activity. Under these circumstances, the automobile
exception and the Fourth Amendment require nothing more.
III. Conclusion
We need say nothing more, and thus decline to separately
consider the issues raised by the district court's denial of
White's motion for discovery. See PDK Labs. Inc. v. United States
Drug Enforcement Admin., 362 F.3d 786, 799 (D.C. Cir. 2004)
(Roberts, J., concurring in part and concurring in the judgment)
("[I]f it is not necessary to decide more, it is necessary not to
6
Asked why he opted to conduct the sniff search, Page
testified before the district court that he was "looking for
something extra . . . just to add to what we already had."
7
To illustrate the point, the use of a canine sniff search
led directly to a protracted discovery dispute involving extensive
briefing and dueling expert witnesses. Then, issues related to
the sniff search occupied the majority of the district court's
two-day-long suppression hearing.
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decide more . . . ."). In that motion, White sought information
he thought he might be able to use to prove that Aros's sniff
search was inadequate to give officers probable cause to search
his vehicle. However, because we find that the stop and search of
White's vehicle were independently justified on the basis of the
automobile exception, the probable cause determination as it
relates to the canine sniff search becomes a matter of idle
curiosity. The district court's denial of White's motion to
suppress is AFFIRMED.
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