United States v. Bizier ( 1997 )

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 96-1148
UNITED STATES,
Appellee,
v.
DAVID P. BIZIER,
Defendant - Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
Before
Selya and Stahl, Circuit Judges,
and Woodlock,* District Judge.
William Maselli, by appointment of the Court, with whom Law
Offices of William Maselli was on brief for appellant.
Helene Kazanjian, Assistant United States Attorney, with
whom Jay P. McCloskey, United States Attorney, was on brief for
appellee.
April 22, 1997
* Of the District of Massachusetts, sitting by designation.
WOODLOCK, District Judge. The sole issue in this
WOODLOCK, District Judge.
appeal from a criminal judgment for possession with intent to
distribute cocaine is whether a motion to suppress the subject
cocaine should have been granted when the contraband was seized
in a warrantless body search conducted immediately before the
defendant's formal arrest. We find there was probable cause,
independent of the cocaine seized, to arrest the defendant before
the search. Consequently, we affirm the conviction.
I
I
The defendant-appellant David P. Bizier became the
focus of a narcotics investigation after a confidential informant
told Maine Drug Enforcement Administration (MDEA) Agent Joseph
Bradeen that Bizier was selling crack cocaine from his apartment
in Lewiston, Maine. MDEA Agents used the confidential informant
to make two controlled buys of crack cocaine from the apartment
on January 12, 1995 and January 19, 1995. The confidential
informant received a telephone call from Bizier's girlfriend on
January 23, 1995 while Bradeen and other MDEA agents were meeting
in the informant's apartment. Bizier's girlfriend, who had been
observed facilitating entry to Bizier's apartment for one of the
earlier controlled buys, told the informant, who then told the
Agents, that Bizier had gone to Massachusetts in his truck to
pick up some cocaine and would be returning around 6:00 p.m.
Bradeen gave Maine State Police personnel a description of the
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truck and the timing of its return north; he also told the State
Police to stop the truck.
Bizier was spotted that day heading north on the Maine
Turnpike going slightly over the speed limit and was stopped by
Maine State Police Troopers Kevin Curran and Charles Granger, at
about 6:00 p.m. The troopers, who had been informed by a State
Police dispatcher that there were narcotics in the truck,
testified it took Bizier an unusually long period to pull over
after being directed to do so by the flashing lights of the
police vehicle. Bizier appeared glassy eyed with pinpoint
pupils. When he got out of the car, he avoided eye contact and
swayed from side to side. He and his passenger told the troopers
conflicting stories about where they had been. Bizier consented
to a search of the vehicle and admitted that there was a small
amount of marijuana in the ashtray of the vehicle. A police dog
brought to the scene alerted to the presence of narcotics in the
front seat. Thirty minutes after the stop, Bizier and his truck
were transported from the breakdown lane to a nearby State Police
facility to secure the truck pending application for a search
warrant regarding the vehicle. After speaking personally to MDEA
Agent Bradeen and receiving advice that there was probable cause
to arrest Bizier for cocaine distribution, Trooper Granger
conducted a body search, to which Bizier objected, during which
two bags of cocaine were found in Bizier's underwear. Bizier was
then formally placed under arrest.
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Bizier's motion to suppress the cocaine was denied by
Judge Hornby acting on the Report and Recommendation of
Magistrate Judge Cohen. Bizier then entered a conditional plea
of guilty to a one-count indictment for possession with intent to
distribute the cocaine seized, received a 70-month sentence, and
now appeals the denial of the suppression order.
II
II
Considering only the evidence available before the
search, it is clear that information known to law enforcement
authorities supported the arrest, an arrest which in turn
supported the body search of Bizier. The information provided
grounds for two distinct species of arrest.
First, the traffic violation stop generated information
which, standing alone and irrespective of whether there was a
separate law enforcement objective, provided probable cause for
an offense justifying a full custody arrest related to misuse of
the truck by Bizier.
Second, the past crack cocaine transactions between the
confidential informant and Bizier coupled with the report by his
girlfriend of a trip south to obtain a new supply of the drug,
corroborated by his return north at about the time expected,
provided probable cause for a cocaine distribution arrest.
Before turning to a specific discussion of the
application of search and seizure law to these circumstances, we
first state the general principles governing this area.
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A.
A.
PROBABLE CAUSE FOR ARREST - GENERAL PRINCIPLES
PROBABLE CAUSE FOR ARREST - GENERAL PRINCIPLES
An officer may conduct a warrantless arrest as long as
there is "probable cause to believe that the suspect has
committed or is committing a crime." United States v. Mart nez-
Molina, 64 F.3d 719, 726 (1st Cir. 1995) (citing United States v.
Watson, 423 U.S. 411, 416-18 (1976); Gerstein v. Pugh, 420 U.S.
103, 113-14 (1975)). The inquiry is "not whether there was a
warrant or whether there was time to get one, but whether there
was probable cause for the arrest." Watson, 423 U.S. at 417.
To establish probable cause, the government must
demonstrate that "at the time of the arrest, the facts and
circumstances known to the arresting officers were sufficient to
warrant a prudent person in believing that the defendant had
committed or was committing an offense." United States v.
Cleveland, 106 F.3d 1056, 1060 (1st Cir. 1997) (citing United
States v. Torres-Maldonado, 14 F.3d 95, 105 (1st Cir.), cert.
denied, 115 S. Ct. 193 (1994)); see also Beck v. Ohio, 379 U.S.
89, 91 (1964). Probable cause is to be determined based on the
"collective knowledge and information of all the officers
involved." United States v. Paradis, 802 F.2d 553, 557 (1st Cir.
1986) (citing United States v. Rose, 731 F.2d 1337, 1342-43 (8th
Cir.), cert. denied, 469 U.S. 931 (1984)).
To be sure, evidence recovered after an arrest may not
form the basis of probable cause for that arrest. See United
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States v. Diallo, 29 F.3d 23, 26 (1st Cir. 1994) (citing Maryland
v. Garrison, 480 U.S. 79, 85 (1987)); see also Smith v. Ohio, 494
U.S. 541, 543 (1990) (it is "axiomatic that an incident search
may not precede an arrest and serve as part of its
justification") (quoting Sibron v. New York, 392 U.S. 40, 63
(1968)). However, whether a formal arrest occurred prior to or
followed "quickly on the heels" of the challenged search does not
affect the validity of the search so long as the probable cause
existed prior to the search. See Rawlings v. Kentucky, 448 U.S.
98, 111 (1980).
B.
B.
SEARCH INCIDENT TO ARREST - GENERAL PRINCIPLES
SEARCH INCIDENT TO ARREST - GENERAL PRINCIPLES
Once authorized to make a lawful arrest, law
enforcement personnel may conduct a warrantless search of the
person of an arrestee. "The justification or reason for the
authority to search incident to a lawful arrest rests [both] on
the need to disarm the suspect in order to take him into custody
[and] on the need to preserve evidence on his person for later
use at trial." Robinson, 414 U.S. at 234. The permissible
purposes of such a search include not merely the preservation of
evidence generally but also specifically the "seizure of
destructible evidence." United States v. Uricoechea-Casallas,
946 F.2d 162, 165 (1st Cir. 1991).
C.
C.
SEARCH AND ARREST OF BIZIER
SEARCH AND ARREST OF BIZIER
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Two separate but, here, intertwined sources of
evidence--the information flowing from the traffic stop and the
information flowing from the course of cocaine dealing
arrangements between Bizier and the confidential informant--
supported a search of Bizier incident to his arrest.
1. Search Flowing From Valid Traffic Violation Stop
1. Search Flowing From Valid Traffic Violation Stop
Last term in Whren v. United States, 116 S. Ct. 1769(1996), the Supreme Court reaffirmed that so long as officers
have probable cause to believe a traffic violation has occurred,
it is reasonable for them to stop an automobile and temporarily
detain the driver. Id. at 1772; see also Maryland v. Wilson, 117
S. Ct. 882, 886 (1997) (officer making traffic stop may order
passengers out of car pending completion of stop). The
information developed in connection with that temporary
investigative stop may in turn provide grounds for a full custody
arrest. In Whren, a police officer observed defendants in a
truck which the officer had probable cause to believe had
violated certain traffic regulations. Upon stopping the truck,
the officer saw two large plastic bags which appeared to contain
crack cocaine in the driver's hands. The officer then arrested
the defendants and seized the drugs. The defendants were charged
and convicted of various federal drug offenses and the Supreme
Court affirmed.
The Whren Court reiterated its holding in Robinson, 414
U.S. at 221 n.1, that "a traffic-violation arrest (of the sort
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here) would not be rendered invalid by the fact that it was 'a
mere pretext for a narcotics search.'" Whren, 116 S. Ct. at 1774.
Stating that subjective intentions play no role in a probable
cause analysis under the Fourth Amendment, the Court held the
"fact that the officer does not have the state of mind which is
hypothecated by the reasons which provide the legal justification
for the officer's action does not invalidate the action taken as
long as the circumstances, viewed objectively, justify that
action.'" Id. (citing Scott v. United States, 436 U.S. 128, 138
(1978)).
The State Police Troopers plainly had probable cause to
stop Bizier's car on the Maine Turnpike because Bizier was
travelling almost ten miles above the posted speed limit. Bizier
contends, however, that although this may have been a valid stop
for a traffic violation, there was no probable cause for his full
custody arrest without consideration of the actual crack cocaine
discovered during the body search. In this connection, Bizier
contends that probable cause for an arrest supporting a search
incident thereto can exist only for the actual offense ultimately
charged. He argues that because he was, in the end, charged with
a cocaine offense relating to the drugs found during the search,
there was no preexisting probable cause and therefore no
justification for that arrest.
As a legal proposition, the argument is without merit.
The probable cause justifying a lawful custodial arrest, and
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therefore a search incident to that arrest, need not be for the
charge eventually prosecuted. See e.g., Barna v. City of Perth
Amboy, 42 F.3d 809, 819 (3d Cir. 1994) ("Probable cause need only
exist as to any offense that could be charged under the
circumstances") (emphasis added); Barry v. Fowler, 902 F.2d 770,
773 n.5 (9th Cir. 1990); Gassner v. City of Garland, 864 F.2d
394, 398 (5th Cir. 1989); Mutter v. Town of Salem, 945 F. Supp.
402, 407 n.5 (D.N.H. 1996). Consequently, a finding of probable
cause for any offense justifying full custodial detention can
validate the search in this case as incident to a lawful arrest.
We need not pause to consider the question whether a
stop for speeding, an offense which does not ordinarily involve
anything beyond a fine,1 would support a body search. Cf.
Robinson, 414 U.S. at 236 n.6. (declining to reach question
whether "'a routine traffic stop,' i.e., where the officer would
simply issue a notice of violation and allow the offender to
proceed" would justify a full body search of the person stopped);
see also United States v. Lott, 870 F.2d 778, 781-82 (1st Cir.
1989) (police making justified investigatory stop not authorized
to make body search where there was no fear for their safety).
1 A speeding violation does not involve a criminal offense
punishable with incarceration in Maine unless the driver exceeds
the speed limit by 30 miles per hour or more. Me. Rev. Stat.
Ann. tit. 29-A, 2074(5) (West 1996). Bizier was not going more
than ten miles per hour above the posted speed limit and thus
would be subject simply to a fine for the speeding violation.
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The information learned by the troopers here quickly escalated to
probable cause for a full custody arrest. These developments at
the roadside after the initial traffic stop, which were entirely
separate from the cocaine discovery, provided probable cause for
a full custody arrest for a serious traffic violation--operating
the truck under the influence of a drug. Both troopers who
executed the stop testified at the suppression hearing that it
took longer than usual for Bizier to pull over to the roadside.
When Trooper Curran approached Bizier, he noted that Bizier's
eyes were glassy, his eyelids were heavy, his pupils were
pinpoints and he was swaying. Bizier and the passenger in the
truck told the troopers inconsistent stories. These factors
together created probable cause for a driving under the influence
arrest2 following the otherwise justifiable traffic stop.
When the police dog called to the scene arrived, it
alerted to the presence of narcotics on seat covers on the front
seat, the front edge of the front seat and in the gearshift area,
as well as a box which had been next to the front seat. In
addition, Bizier admitted to Trooper Curran that he had marijuana
remains in his truck. This admission regarding the presence of
2 An operating under the influence violation is punishable with
incarceration in Maine. Me. Rev. Stat. Ann. tit. 29-A, 2411(5).
Indeed, Maine law independently authorizes a warrantless arrest
when a law enforcement officer has probable cause and "the arrest
occurs within a period reasonably likely to result in the
obtaining of probative evidence of . . . drug concentration."
Id. at 2411(4).
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contraband corroborated other evidence supporting probable cause
for driving under the influence.
Moreover, as we held in United States v. Staula, 80
F.3d 596, 603 (1st Cir.), cert. denied, 117 S. Ct. 156 (1996), it
cannot seriously be disputed that once an officer has found
evidence of marijuana in a truck he has stopped for a motor
vehicle violation he has probable cause to arrest the occupants
of the truck on a possession charge.3
The unfolding observations which flowed from the valid
traffic stop provided more than sufficient probable cause before
the challenged search to arrest Bizier at a minimum for driving
the truck under the influence of a controlled substance he
illegally possessed in the vehicle.
2. Search Flowing From Cocaine Dealing Arrangements
2. Search Flowing From Cocaine Dealing Arrangements
A law enforcement officer may make an arrest if there
is probable cause to believe that the suspect has committed some
felony offense. See Watson, 423 U.S. at 415-424. When Trooper
Curran pulled over Bizier on the Maine Turnpike, there was
probable cause, collectively known to the involved Maine law
enforcement personnel based on the two controlled buys of cocaine
from Bizier, to arrest Bizier for cocaine possession and
3 Bizier contends that because possession of marijuana is a
civil infraction in Maine, the possession itself did not provide
independent grounds for arrest. Possession of marijuana in any
quantity, however, is also a crime under federal law which
independently supports an arrest. See 21 U.S.C. 844.
Furthermore, the presence of the marijuana in the truck fortified
the probable cause for a driving under the influence arrest.
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distribution. Bizier himself concedes that at the time of the
stop, "[t]here did exist probable cause that Bizier had committed
prior drug transactions," Appellant's Brief at 5, but then notes
that no arrest was made based on those transactions. As we
observed above, probable cause need only exist as to any offense
that could be charged under the circumstance. Thus, it is
immaterial that the arrest grounds differed from the ultimate
charging decision. It is uncontested that probable cause for an
arrest did exist based on those two controlled buys in the
previous two weeks. Thus, the search of Bizier immediately
before his formal arrest could be justified as a search incident
to arrest based on the controlled buys alone. See Rawlings, 448
U.S. at 111.
Bizier, in oral argument, challenged the validity of
the two controlled buys as a basis for probable cause, claiming
that they were "stale." While a long delay in seeking a search
warrant can create difficulties if the information is stale, See
Watson, 423 U.S. at 450 n.14 (Marshall, J., dissenting), probable
cause to arrest, "once formed will continue to exist for the
indefinite future, at least if no intervening exculpatory facts
come to light." Id. at 449 (Marshall, J., dissenting) (citations
omitted). As Justice Powell observed in his concurrence,
probable cause to support an arrest normally does not grow stale
because "once there is probable cause to believe that someone is
a felon the passage of time often will bring new supporting
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evidence"; such probable cause would grow stale only if it
emerges that it was based on since discredited information. Id.
at 432 n.5. Here, rather than the development of intervening
information that weakened the probable cause based on the
controlled buys, information emerged that actually strengthened
the basis for arrest on cocaine distribution charges.
In any event, the period of time between the controlled
buys and the arrest was not so long here as to render the
probable cause stale in any meaningful temporal sense. The
arrest occurred just four days after the second controlled buy
and less than two weeks after the first controlled buy at a time
when there was probable cause to believe additional drugs were
being transported in a moving vehicle.
We can find no suggestion the police acted in bad faith
by seeking unfairly to rely upon probable cause from an abandoned
prior arrest opportunity in order to effect an otherwise
insupportable current arrest and thereby exploit the right of
search incident to arrest. In this connection, we note Justice
Powell's observation that "[g]ood police practice often requires
postponing an arrest, even after probable cause has been
established, in order to place the suspect under surveillance or
otherwise develop further evidence necessary to prove guilt to a
jury." Id. at 431. The law enforcement response here was
measured and restrained as the MDEA agents on the one hand and
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the troopers on the other pursued legitimate investigative
techniques to develop an appropriate case regarding Bizier.
In the end, there was probable cause before the search
for arrest on the charge of possession with intent to distribute
the cocaine for which Bizier was convicted. The MDEA had
received information from the confidential informant that Bizier,
on the day of the stop, was travelling to Massachusetts in his
truck to purchase cocaine and carry it back to Maine that
evening. The MDEA agents were in the confidential informant's
home when the informant received a call from Bizier's girlfriend
telling the informant that Bizier would be returning that day
from his trip to Massachusetts around 6:00 p.m. The MDEA agents
provided a complete description of the truck, including its plate
numbers to the Maine troopers. When the troopers stopped Bizier,
he was travelling in the truck the MDEA agents had identified at
around the time which the confidential informant told the agents
he would be returning to Maine. This information in conjunction
with the two controlled buys, all of which was developed within a
span of less than two weeks, supported the existence of probable
cause for a cocaine trafficking offense arrest that day
independent of the discovery of the cocaine on Bizier's body. As
such, the search itself was proper as one incident to a lawful
arrest for such an offense under traditional exceptions to the
warrant requirement of the Fourth Amendment. See Robinson, 414
U.S. at 224.
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III
III
Under settled Fourth Amendment principles specifically
applicable here, there was sufficient probable cause to arrest
Bizier provided both by evidence flowing from the traffic stop on
January 23 and by evidence flowing from the course of cocaine
dealing arrangements between Bizier and the confidential
informant o justify the body search of Bizier incident to his
lawful arrest.
Affirmed.
Affirmed.
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