United States v. Fiasconaro

315 F.3d 28, 2002 WL 31883122
CourtCourt of Appeals for the First Circuit
DecidedDecember 30, 2002
Docket02-1611
StatusPublished
Cited by32 cases

This text of 315 F.3d 28 (United States v. Fiasconaro) is published on Counsel Stack Legal Research, covering Court of Appeals for the First Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Fiasconaro, 315 F.3d 28, 2002 WL 31883122 (1st Cir. 2002).

Opinion

BOWNES, Senior Circuit Judge.

The pivotal issue in this case is whether there was probable cause for the police to arrest the defendant-appellant, Michael Fi-asconaro, search his motor vehicle, and seize from it $10,981 in United States currency and a cellular telephone. The defendant appeals from the district court’s denial of his motion to suppress the currency, cellular telephone, and incriminating statements made after his arrest. We affirm the district court’s order. 1

I. The Standard of Review

The standard of review that we apply is well delineated. We review the district court’s findings of fact for clear error. See United States v. Martinez-Molina, 64 F.3d 719, 726 (1st Cir.1995). Because the question of probable cause is a mixed question of law and fact, our ultimate determination is made de novo. See United States v. Proctor, 148 F.3d 39, 41 (1st Cir.1998). We review the facts in the light favorable to the judgment; the denial of a suppression motion should be upheld if a reasonable interpretation of the record supports it. See United States v. McCarthy, 77 F.3d 522, 529 (1st Cir.1996).

II. The Indictments

Before we delve into the facts on probable cause, there is a question arising from the filing of a criminal complaint by Drug Enforcement Administration (“DEA”) agent, Jay Stoothoff, on June 23, 2001. Count One of the complaint charged three persons, Murray D. Spaulding, William Al-bright and the defendant with conspiracy to possess and distribute cocaine. The magistrate judge struck “Albright from the complaint, finding no probable cause as to him.” The criminal complaint was followed by a six-count indictment on July 18, 2001. Count One charged Murray D. Spaulding and the defendant with conspiring to possess and distribute “500 grams or more of a substance containing cocaine.” The five additional counts charged Spauld-ing with intentionally distributing quantities of cocaine at various places and dates within the state of Maine. Spaulding entered into a plea bargain with the government and is no longer in the case.

On September 4, 2001, the defendant moved to suppress the cellular telephone and $10,981, as well as incriminating statements he made to the police after his arrest. The district court denied the motion and the defendant entered into a conditional guilty plea, reserving his right to appeal the denial of his motion to suppress. The defendant was sentenced on May 8, 2002, and this timely appeal followed.

III. The Facts

A. The Preliminary Events

As will become evident, the key player in this case is a confidential informant known only as Cl 2182. Case Agent William Deetjen, who had been a police officer for thirty-two years and worked for the Maine Drug Enforcement Agency (“MDEA”) for twelve years, testified at the hearing on the defendant’s motion to suppress that in January of 2001, a person was arrested on federal health care fraud *31 and drug charges. This person was addicted to the pain relievers Percocet and OxyContin and had information about drug dealing in the Sanford, Maine area. After pleading guilty, he began to cooperate with the government and was debriefed on March 29, 2001.

Deetjen testified that the informant told him that Spaulding was selling cocaine in the town of Lyman, Maine, which is next to Sanford. The informant told Deetjen the address of Spaulding’s house and that he had various persons drive him twice a week to his supplier in Massachusetts from whom he bought cocaine in quarter pound packages. The informant and Spaulding had met earlier but had lost contact until February 2001, when the informant and his sister went to Spaulding’s house so his sister could buy cocaine. According to Deetjen, the informant told him that Spaulding told the informant he could buy cocaine at any time.

After the informant’s initial debriefing, Deetjen testified that he called Officer Todd Prough in Massachusetts, who was a member of the “cross border initiative,” a task force of DEA and local law enforcement officers who were investigating the flow of drags in and out of Massachusetts. Deetjen told Prough that he was investigating a person who had substantial amounts of cocaine in Maine and that this person’s drag source appeared to be in Massachusetts.

Deetjen testified that to show his cooperation the informant made controlled purchases of cocaine from Spaulding at his home. The informant also made controlled purchases of crack cocaine from other people in the Sanford and Wells areas of Maine. Deetjen told Prough he considered the informant to be “very reliable” and was “the best cooperating defendant I have worked with.” Deetjen further testified that the informant’s information had resulted in federal indictments of five or six people, all of whom pled guilty. Because of Deetjen’s assessment of the reliability of the informant, Prough also accepted the informant as reliable.

On April 5, 2001, the informant set up a controlled buy from Spaulding. He made a recorded call from the MDEA’s office in Lyman to Spaulding who told him to come to his house. After searching the informant and his car, Deetjen gave the informant currency that had been photocopied, and equipped him with an electronic listening device. The informant drove to Spaulding’s house followed by MDEA agents. The agents overheard the sale of $250 worth of cocaine by Spaulding to the informant. The informant said he would want the same amount each week. Spaulding said that this would be no problem. The informant then drove to ,a prearranged meeting place where he delivered the cocaine he had bought to Deetjen.

Another controlled purchase using the same format took place on April 12, 2001. There was, however, additional conversation between the informant and Spaulding which was recorded and heard by the agents. The informant complained that Spaulding had used the informant’s sister to provide transportation. Spaulding replied that she was a grown woman who could make her own decisions but said that if she agreed not to buy any more cocaine he would not use her again for transportation. The informant then said he would drive Spaulding himself. After being assured that the informant had a “legal car,” Spaulding told the informant that the trip to and from Massachusetts took three hours. The groundwork had been laid for the informant to drive Spaulding to Spaulding’s cocaine source. On June 5, 2001, a recorded telephone call to Spauld-ing was made. This call was to confirm that the informant would drive Spaulding *32 to his Massachusetts source the next time Spaulding made the trip. The phone was answered by Spaulding’s girlfriend who told the informant that Spaulding had already left for Massachusetts. •

Another recorded call was made the next day. The informant chided Spaulding for going to Massachusetts without him and not giving him a chance to make money.

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Bluebook (online)
315 F.3d 28, 2002 WL 31883122, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-fiasconaro-ca1-2002.