111 F.3d 214 (1st Cir. 1997), 96-1148, United States v. Bizier

Docket Nº:96-1148.
Citation:111 F.3d 214
Party Name:UNITED STATES, Appellee, v. David P. BIZIER, Defendant-Appellant.
Case Date:April 22, 1997
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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Page 214

111 F.3d 214 (1st Cir. 1997)

UNITED STATES, Appellee,

v.

David P. BIZIER, Defendant-Appellant.

No. 96-1148.

United States Court of Appeals, First Circuit

April 22, 1997

Heard Dec. 3, 1997.

Page 215

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.

Before SELYA and STAHL, Circuit Judges, and WOODLOCK, [*] District Judge.

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.

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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 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.

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

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.

A.

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

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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, 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 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, 105 S.Ct. 326, 83 L.Ed.2d 263 (1984)).

To be sure, evidence recovered after an arrest may not form the basis of probable 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 existed 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).

B.

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." 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).

C.

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...

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