UNITED STATES OF AMERICA, Appellee, v. OLA BASHORUN, a/k/a TONY JOHNSON, Defendant, Appellant.
No. 99-1872
United States Court of Appeals For the First Circuit
August 28, 2000
[Hon. Nancy Gertner, U.S. District Judge]
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
Peter B. Krupp, with whom Lurie & Krupp, LLP was on brief for appellant.
Theodore D. Chuang, Assistant United States Attorney, with whom Donald K. Stern, United States Attorney, was on brief for appellee.
I
BACKGROUND
On November 7, 1997, United States Customs authorities intercepted an Express Mail package containing concealed heroin en route from Thailand and addressed to one “Keisha (sic) Barrows” at 1019 Beacon Street, Apartment 43, in Brookline, Massachusetts. Customs agents promptly contacted Timothy Leighton, the landlord at 1019 Beacon Street, and learned that a man named Tony Johnson identified following his arrest as Bashorun had rented Apartment 43 continuously since January 1997. Leighton described Tony Johnson as a black man in his thirties, with an accent, who drove a late model car and wore expensive jewelry, but had no apparent means of employment. Leighton stated that Tony Johnson had introduced him to a friend, also named “Tony,” who lived in Cambridge (hereinafter: “Tony from Cambridge,” identified following his arrest as
When Tony Johnson left Apartment 43 in September 1997, Leighton allowed Johnson‘s girlfriend, Keesha Barrows, to move in for two weeks, followed by Felicia Brown (“Tony from Cambridge“‘s girlfriend) and her mother. Throughout this period, Tony Johnson remained the only tenant of record and his name continued to appear on the doorbell directory to Apartment 43. The apartment telephone number, however, had been listed under such names as “Gubril Abediran” and “Tashema Beard,” but never in Tony Johnson‘s name. In addition, telephone company records revealed that one Desmond Bartley, under investigation by the United States Drug Enforcement Agency in Baltimore for having received packages of heroin from a “Tony Johnson,” had placed ten telephone calls to Apartment 43 during February and March, 1997.
A. The Events of November 11
While the package addressed to “Keisha (sic) Barrows” remained with customs authorities, it had been fitted with an electronic monitoring device before being delivered to Apartment 43 on November 11, 1997. As U.S. Postal Inspector Nicole Gray, posing as a postal carrier, entered 1019 Beacon Street,
The landlord met the black male and promptly alerted the surveillance agents that he recognized him as Tony Johnson‘s friend, “Tony from Cambridge.” This information was radioed to agents outside the apartment building, who then observed the black male (i.e., “Tony from Cambridge“) as he exited the apartment building and entered a blue Dodge Caravan parked immediately in front of the apartment building.
While “Tony from Cambridge” was still inside 1019 Beacon Street, customs agents stationed outside the building, including Agents McGrath and Donald Lenzie, observed that another black male, with a moustache, was using a pay phone on the opposite side of Beacon Street. At about the same time, Leighton received a phone call from Tony Johnson, who said he would be dropping by the apartment later to pay the rent. Surveillance agents watched the caller hang up the payphone, cross Beacon Street, and enter the blue Dodge Caravan on the passenger side.
The blue Dodge Caravan, tailed by agents, then proceeded behind the Brookline post office building where
Meantime, back at 1019 Beacon Street, Leighton made and received a series of telephone calls. Fifteen minutes after the blue Caravan left 1019 Beacon Street, “Tony from Cambridge” called to learn the identities of the people who had been in the lobby earlier (viz., the undercover surveillance agents). Leighton told him they were electricians.
More than two hours later, at the direction of law enforcement agents, Leighton called Tony Johnson‘s cellular phone and “Tony from Cambridge” answered. When Leighton told him about the attempt to deliver the package to Apartment 43 earlier that morning, “Tony from Cambridge” repeatedly asked Leighton to sign for the package the next time a delivery was attempted, and advised Leighton that Tony Johnson would pick it up later from Leighton. At this point, “Tony from Cambridge” volunteered the information that Keesha Barrows owed Tony Johnson money and that the package probably was a birthday gift to Barrows. Leighton again refused to sign for the package.
Within the next half hour, Leighton received two telephone calls from Tony Johnson, requesting that he sign for the package and parroting “Tony from Cambridge“‘s earlier phone conversation with Leighton by stating that Keesha Barrows owed Tony Johnson money and that the package must be a birthday gift for Barrows. Leighton again refused to sign for the package
At 8:45 the following morning, agents spotted the same blue Caravan parked near 1019 Beacon Street, and later near the Brookline post office. At about the same time, the post office received two anonymous telephone calls inquiring about the package addressed to Barrows. When the blue Caravan left the post office, the agents tailing it observed what appeared to be evasive maneuvers, such as U-turns and driving against traffic on one-way streets.
Shortly, Inspector Gray left the post office and drove to 1019 Beacon Street in an effort to attempt another controlled delivery. At the time, Detective Pasciucco was parked on Park Drive, around the corner from, though not in direct line of sight of, 1019 Beacon Street. At this point Pasciucco observed the blue Caravan as it turned onto Park Drive, passed his vehicle, and turned onto Beacon Street heading toward No. 1019. Pasciucco identified the occupants as the same two men whom he had seen in the blue Caravan the previous morning. When the blue Caravan parked across the street from 1019 Beacon, Agent Lenzie identified its two occupants as the same two black men he had seen in the blue Caravan on November 11.
A short time later, Keesha Barrows arrived and parked her vehicle behind the postal delivery truck. As Inspector Gray
A subsequent search of the blue Caravan, conducted incident to the warrantless arrests, disclosed several pieces of inculpatory evidence, including a cellular phone, documents reflecting the telephone numbers of Keesha Barrows and the Brookline post office, as well as the Express Mail tracking number for the package containing the contraband heroin.
In due course, Bashorun and Junaid were indicted for conspiring to possess heroin, with intent to distribute, see
Thereafter, Bashorun moved to suppress all evidence seized incident to his warrantless arrest, on the ground that “law enforcement officers did not have probable cause to arrest [him.]” Following a six-day evidentiary hearing, during which several law enforcement agents testified, the district court
Subsequently, Bashorun arrived at a plea agreement with the government and entered a conditional guilty plea, pursuant to
II
DISCUSSION
Bashorun now contends that his warrantless arrest was invalid because the record unequivocally demonstrates that Agent McGrath, who ordered the arrest, lacked contemporaneous knowledge of the critical fact that would have established probable cause to arrest the passenger in the blue Caravan on November 12: namely, that the same two persons were in the blue Caravan on both November 11 and 12. Instead, Bashorun argues, the record reveals that the only officer arguably in a position to make such an identification Detective Pasciucco did not communicate that information to Agent McGrath prior to the arrest.
Accordingly, Bashorun maintains that the evidence showed, at most, that he was “merely present” i.e., as a passenger in the blue Caravan on November 12. Since the
As Bashorun points out, the precise contours of the fellow-officer rule have never been limned by this court: for example, as to whether the “directing” officer (viz., Agent McGrath) personally need have known through personal observation or verifiable information communicated by fellow officers all facts necessary to demonstrate probable cause, or whether the cumulative knowledge of all participating officers may be considered. See United States v. Meade, 110 F.3d 190, 194 (1st Cir. 1997).2
Given these lapses and the consequent absence of a sufficiently developed evidentiary record, the Meade-based claims asserted on appeal are deemed waived. See Nuñez, 19 F.3d at 722 (holding, pursuant to
Bashorun offers various rejoinders to the waiver suggestion. First, he asserts that “the issue of which person had knowledge of the facts constituting probable cause was
We started this [suppression hearing] with the notion that we were going to ask this witness [Agent McGrath], who made the arrest decision, what he knew. And we were very focused that what he knew was the focus of this hearing. . . . The only issue, [] it seems to me, is what this witness [Agent McGrath] knew and the cross-examination of that witness. . . . What the defense wants to do now is find out every witness who ever made an observation, apparently whether or not it was communicated to McGrath.
The quoted excerpt is unavailing, however, for two principal reasons.
First, we enforce
Second, Bashorun wrenches the prosecutor‘s remarks from their context. During the McGrath cross-examination at the suppression hearing, defense counsel represented to the district court: “[T]his witness knows some things that some people have told him but doesn‘t know a lot about what those people, in fact, saw.” Further, defense counsel suggested that other law enforcement officers, such as Agent Lenzie and Detective Pasciucco, should be called as witnesses so that “the Court can
Over the government‘s objection, the district court agreed, explaining that if one of Agent McGrath‘s fellow officers were to offer testimony concerning his observations on November 11 or 12 which was not consistent with Agent McGrath‘s testimony as to what that officer had told him, then McGrath‘s credibility could be called into question. Fairly viewed in context, therefore, the prosecutor‘s objection went simply to the unanticipated expansion of the witness list because “the defense has been trying mightily to discover the entire case two weeks before trial,” and because the prosecutor believed that defense counsel had been afforded adequate opportunity to test Agent McGrath‘s credibility through cross-examination.
Next, Bashorun points out that he proposed the following findings of fact following the suppression hearing:
- The only two law enforcement agents involved in the investigation on both November 11 and 12, 1997 who had an opportunity to see the occupants of the blue Dodge Caravan before the arrest were Agents Lenzie and Pasciucco. Agent McGrath did not see the occupants of the Caravan until after the arrest on November 12.
- Prior to the arrest, Agent Pasciucco made no radio transmissions that the occupants were the same on November 12 as he had observed on November 11. Agent Pasciucco did not testify that he was aware prior to the arrest of any observations of “evasive” driving by the Caravan on November
12. - By the time he discontinued his surveillance on November 11, 1997, Agent Lenzie had only observed one of the two occupants of the Dodge Caravan. He did not see the other, if in fact there was another, occupant of the Caravan on November 11. Because he only saw one person in the Caravan on November 11, he was in no position to say that the two occupants of the Caravan were the same on November 11 and 12.
Consequently, Bashorun argues, “[t]here would have been no reason [to ask] for such findings if all of the information known to the surveillance agents could be added together to determine if probable cause to make an arrest existed.”
Once again we disagree, for the simple reason that the credibility of Agent Lenzie and Detective Pasciucco regarding their observations was at least as relevant to the non-Meade defense theory asserted in Bashorun‘s pretrial motion to suppress. That is, if Detective Pasciucco did in fact make the November 12 observation to which he testified, Bashorun‘s pretrial contention that none of the officers involved had sufficient facts to establish probable cause would be undermined.
Thus, for example, the district court reasonably may have construed Proposed Finding 2 viz., that “[p]rior to the arrest, Agent Pasciucco made no radio transmissions that the
Importantly, the district court interpreted Proposed Finding 2 in precisely this fashion, as demonstrated by the fact that it made no finding whatsoever as to whether either Agent Lenzie or Detective Pasciucco had communicated their respective observations to fellow officers. See United States v. Bashorun, No. 97-CR-10318, at 16-17 (D. Mass. Jan. 5, 1999) (expressly “credit[ing]” Agent Lenzie‘s and Detective Pasciucco‘s observations of November 12 that the same two men were in the blue Caravan on November 11 and 12, but making no mention or finding as to whether they communicated their observations to fellow officers).
Quite clearly and understandably, therefore, the district court did not consider the issue of inter-officer communication material to the proffered defense, except as it
Bashorun nonetheless argues that any waiver must be excused since the district court addressed the Meade issue on the merits, as reflected in the following statement in its opinion:
[E]vidence supporting probable cause can be cumulative: “[L]aw enforcement officials cooperating in an investigation are entitled to rely upon each other‘s knowledge of facts when forming the conclusion that a suspect has committed or is committing a crime.” United States v. Meade, 110 F.3d 190, 193 (1st Cir. 1993) . . . .
United States v. Bashorun, No. 97-CR-10318, at 18 (D. Mass. Jan. 5, 1999). This claim fails as well.
First, as previously noted,
Second, it strains credulity to suggest that the district court meant to resolve the controversial Meade issue in a single, unelaborated, prefatory sentence. Instead, as evidenced by its appearance at the very outset of the district
Third, at no point did the district court even remotely purport to acknowledge that the defense intended to litigate any inter-officer communication claim. Were it otherwise, we think it would be reasonable to expect that the district court would have quoted the Meade dicta presently touted by Bashorun on appeal, in which we discussed whether communication of the knowledge acquired by individual officers may be presumed, or whether proof of inter-officer communications is even required under the “fellow-officer” rule. See supra note 2. The district court‘s silence on these weighty matters speaks volumes.
When the government entered into the plea agreement with Bashorun, it was entitled to assume, as the law plainly provides, that only arguments duly presented to the district court would be deemed preserved for appeal. Although Bashorun cites case law holding that the government must scrupulously perform all promises made in its plea agreements, there is no authority for the view that it implicitly promises that a
As we have done in the past, we now bypass the issue as to whether “plain error” review is available, see Nuñez, 19 F.3d at 723 n.10 (bypassing question and finding no plain error), and instead accord Bashorun the benefit of that standard of review. See United States v. Olano, 507 U.S. 725, 732-33 (1993) (requiring that appellant prove that error is “plain” or “obvious” and affects substantial rights, and that appellate
For example, Detective Pasciucco ambiguously testified initially that he had made no radio communication on November 12 after observing the blue Caravan on Park Drive. Later, however, he allowed that he could not remember. Agent McGrath, on the other hand, initially testified that Detective Pasciucco had reported to him that the occupants in the blue Caravan were “the same persons as the day before.” Later, however, Agent McGrath testified that he had received a radio communication from someone after the blue Caravan pulled up in front of 1019 Beacon Street on November 12, advising that the blue Caravan occupants were “the two black males that had been in it for two days.” The latter communication would have taken place immediately after Detective Pasciucco observed the blue Caravan turn from Park Drive onto Beacon Street.
Finally, ample additional grounds preclude any “plain error” finding. See United States v. Diallo, 29 F.3d 23, 25 (1st Cir. 1994) (“[P]robable cause should be determined under a ‘totality-of-the-circumstances’ test . . . [and] ‘is a fluid concept - turning on the assessment of probabilities in particular factual contexts.’ . . . ‘The substance of all the definitions of probable cause is a reasonable ground for belief of guilt. And this means less than evidence which would justify condemnation or conviction.‘“) (citations omitted).
The argument advanced by Bashorun on appeal rests entirely on the premise that the visual identifications of the passengers in the blue Caravan on two successive days was the critical evidence without which there could have been no probable cause for their arrests. As the district court aptly observed, however, and the record amply demonstrates, see supra Section I, Agent McGrath was in possession of a far broader web
Accordingly, it simply cannot be seriously suggested that the probable-cause calculus indulged by the district court constituted plain error.
Affirmed.
Notes
Meade, 110 F.3d at 194.The fellow officer rule underlies the well-worn maxim that “the collective knowledge and information of all the officers involved establishes probable cause for the arrest.” The “collective knowledge” or “pooled knowledge” principle has been used to validate arrests in two ways: (1) by tracing the arresting officer‘s action back to an individual in a law enforcement agency who possessed information sufficient to establish probable cause, and (2) by finding that the directing agency as a whole possessed the necessary facts.
A sensible argument has been made that looking to the agency‘s knowledge as a whole is unwise because it may “encourage the dissemination of arrest orders based upon nothing more than the hope that the unevaluated bits and pieces in the hands of several different officers may turn out to add up to probable cause.” In the same vein, the collective-knowledge corollary of the fellow officer rule would seem to require, or at least presuppose, the flow of information from the officers with knowledge of facts tending to establish probable cause to those lacking that knowledge (or, at least, to the directing or arresting officer).