United States v. David P. Bizier, 111 F.3d 214

United States v. David P. Bizier

111 F.3d 214

1st Cir.

1997

Check Treatment

WOODLOCK, District Judge.

The sole issue in this 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.

*216 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 Lew-iston, 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 tо 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 truck and the timing of its return north; he also told the State Police to stop the truck.

Bizier wаs 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.

Bizier’s motiоn 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 оrder.

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 а 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.

PROBABLE CAUSE FOR ARREST-GENERAL PRINCIPLES

An officer may conduct a warrant-less arrest as long as there is “probable cause to believe that the suspect has commit *217 ted or is committing a crime.” United States v. Martínez-Molina, 64 F.3d 719, 726 (1st Cir.1995) (citing United States v. Watson, 423 U.S. 411, 416-18, 96 S.Ct. 820, 824-25, 46 L.Ed.2d 598 (1976); Gerstein v. Pugh, 420 U.S. 103, 113-14, 95 S.Ct. 854, 862-64, 43 L.Ed.2d 54 (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, 96 S.Ct. at 824.

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, 513 U.S. 870, 115 S.Ct. 193, 130 L.Ed.2d 125 (1994)); see also Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 225-26, 13 L.Ed.2d 142 (1964). Probable cause is to be determined based on the “collective knowl edge 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, 105 S.Ct. 326, 83 L.Ed.2d 263 (1984)).

To be sure, evidence recovered after an arrest may not form the basis of prоbable cause for that arrest. See United States v. Diallo, 29 F.3d 23, 26 (1st Cir.1994) (citing Maryland v. Garrison, 480 U.S. 79, 85, 107 S.Ct. 1013, 1017, 94 L.Ed.2d 72 (1987)); see also Smith v. Ohio, 494 U.S. 541, 543, 110 S.Ct. 1288, 1290, 108 L.Ed.2d 464 (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, 88 S.Ct. 1889, 1902, 20 L.Ed.2d 917 (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 еxisted prior to the search. See Rawlings v. Kentucky, 448 U.S. 98, 111, 100 S.Ct. 2556, 2564-65, 65 L.Ed.2d 633 (1980).

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 tо preserve evidence on his person for later use at trial.” United States v. Robinson, 414 U.S. 218, 234, 94 S.Ct. 467, 476, 38 L.Ed.2d 427 (1973). 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).

SEARCH AND ARREST OF BIZIER

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

Last term in Whren v. United States, — U.S. --, 116 S.Ct. 1769, 135 L.Ed.2d 89 (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 -, 116 S.Ct. at 1772; see also Maryland v. Wilson, — U.S. -, -, 117 S.Ct. 882, 886, 137 L.Ed.2d 41 (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 *218 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 Suprеme Court affirmed.

The Whren Court reiterated its holding in Robinson, 414 U.S. at 221 n. 1; 94 S.Ct. at 470 n. 1, that “a traffic-violation arrest (of the sort here) would not be rendered invalid by the fact that it was ‘a mere pretext for a narcotics search.’ ” Whren, — U.S. at -, 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 hypothe-cated 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. (quoting Scott v. United States, 436 U.S. 128, 138, 98 S.Ct. 1717, 1723, 56 L.Ed.2d 168 (1978)).

The State Police Troopers plainly had probable cause to stop Bizier’s car on the Maine Turnpike because Bizier was travel-ling 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 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 whethеr 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, 94 S.Ct. at 477 n. 6. (declining to reach question whether “ ‘a routine traffic stop,’ ie., 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 authorizеd to make body search where there was no fear for their safety). 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 сause 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 heаvy, 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 *219 under the influence arrest 2 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 thе front seat and in the gearshift area, as well as a box which had been next to the ft’ont seat. In addition, Bizier admitted to Trooper Curran that he had marijuana remains in his truck. This admission regarding the presence of 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, — U.S. -, 117 S.Ct. 156, 136 L.Ed.2d 101 (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

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, 96 S.Ct. at 823-28. When Trooper Cur-ran pulled over Bizier on the Maine Turnpike, there was probable cause, collectivеly 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 distribution. Bizier himself concedes that at the time of the stop, “[tjhere 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, 100 S.Ct. at 2564-65.

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 informatiоn is stale, see Watson, 423 U.S. at 450 n. 14, 96 S.Ct. at 840 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, 96 S.Ct. at 840 (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 someоne is a felon the passage of time often will bring new supporting evidence”; such probable cause would grow stale only if it emerges that it was based on since discredited information. Id. at 432 n. 5, 96 S.Ct. at 832. Here, rather than the development of intervening information that weakened the probable cause based on the controlled buys, information emerged that actually strength *220 ened 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 additionаl 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, 96 S.Ct. at 831. The law enforcement response here was measured and restrained as the MDEA agents on the one hand and 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 cоnvicted. 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 Mаssachusetts 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 whiсh 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, 94 S.Ct. at 471-72.

Ill

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 to justify the body search of Bizier incident to his lawful arrest.

Affirmed.

Notes

. 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 fоr the speeding violation.

. 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 warrant-less 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 оf ... drug concentration.” Id. at 2411(4).

. 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.