United States v. Bizier

• Court: Court of Appeals for the First Circuit
• Decided: April 22, 1997
• Docket: 96-1148
• Status: Published

Opinion

USCA1 Opinion

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.



                                         -9-



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).
          ___



                                         -10-



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.



                                         -11-



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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