U.S. v. Brown

• Decision Date: 22 August 2007
• Docket Number: No. 06-2508.,06-2508.
• Citation: 500 F.3d 48
• Parties: UNITED STATES of America, Appellee, v. Gary BROWN, a/k/a Anthony Green, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

500 F.3d 48

UNITED STATES of America, Appellee, v. Gary BROWN, a/k/a Anthony Green, Defendant, Appellant.

No. 06-2508.

United States Court of Appeals, First Circuit.

Heard July 31, 2007.

Decided August 22, 2007.

Scott J. Lynch, with whom Hornblower Lynch Rabasco & Vandyke, P.A., was on brief for appellant.

F. Mark Terison, Senior Litigation Counsel, with whom Paula D. Silsby, United States Attorney, was on brief for appellee.

Before HOWARD, Circuit Judge, SELYA, Senior Circuit Judge, and DYK,^* Circuit Judge.

SELYA, Senior Circuit Judge.

A jury convicted defendant-appellant Gary Brown of possessing a controlled substance with intent to distribute. On appeal, the defendant challenges his conviction on two grounds, one relating to the denial of his pretrial motion to suppress and the other relating to the exclusion of certain evidence at trial. He also challenges his mandatory minimum life sentence, raising an apparent issue of first impression as to whether, for purposes of 21 U.S.C. § 841(b)(1), "attempt" offenses are considered "felony drug offenses" (and, therefore, may count as predicate offenses on which to base a recidivist sentencing enhancement). Discerning no error in the district court's handling of these various matters, we affirm the judgment below.

I. BACKGROUND

We rehearse here only those facts necessary to place this appeal in perspective.

On July 7, 2005, Kevin Cashman, a Lewiston police officer assigned to the Maine Drug Enforcement Agency (MDEA), received a tip about an imminent narcotics transaction. Although Cashman's confidential informant (the CI) had been cooperating with the MDEA for less than a week, he already had provided Cashman with trustworthy information about sellers, transporters, and users of drugs in the Portland area.

The substance of the tip was as follows. The CI told Cashman that a black male known as "Pink" traveled weekly by bus from New York City to Maine to peddle between ten and twenty ounces of crack and powdered cocaine. He further stated that Pink's usual praxis was to stay in a hotel off the Maine Turnpike. The room that he used would be rented under the name of Tanguay (David or Peter). The CI explained that David Tanguay was currently incarcerated and that his brother, Peter, sometimes used David's identification. Other than skin color, the CI provided no physical description of the putative drug peddler.

The CI subsequently advised Cashman that "Pink" had arrived in Portland and was staying in a hotel near the Maine Turnpike. Cashman and another officer proceeded to the Ramada Inn, off former Exit 8 of the Maine Turnpike, and learned that room 127 had been rented in the name of David Tanguay. Comparison of the signatures on the registration form and the identification used in renting the room revealed marked discrepancies.

Cashman called a police dispatcher and corroborated David Tanguay's current status as a federal prison inmate. The officers then obtained access to a room diagonally across from room 127 and conducted a five-hour stake-out. While they observed a black man go in and out of room 127, limitations on their surveillance capabilities rendered them unable to identify the man.

Three weeks later, the CI told Cashman that Pink was en route to Portland on board a Vermont Transit bus from New York City. He said that the wayfarer would arrive that afternoon and would be picked up at the bus station by Peter Tanguay. Tanguay would be driving an old green pick-up truck, plate number 760-409, belonging to the CI. The CI assured Cashman that Pink would be transporting his wonted wares. He explained that he was privy to this information because he had spoken with Peter Tanguay when the latter asked to borrow his truck.

In response to this lead, Cashman called in a fellow officer, who searched both the CI and his truck to ensure the absence of any preexisting contraband. The CI drove away and the officers tailed the truck. They saw Peter Tanguay enter it. After the truck made several stops, Tanguay drove away alone. The officers continued to follow the truck until it reached the bus terminal.

At 3:30 p.m., the officers saw a Vermont Transit bus arrive from New York City. They watched a black man alight carrying two large duffel bags. The man walked to the truck, placed the duffel bags in the cab, and climbed aboard.

By prearrangement, two Portland police cruisers converged on the truck a short distance from the bus terminal. Officer Robert Bickford directed the passenger to disembark, frisked him, and asked for his name and date of birth. The passenger identified himself as Anthony Green, gave a date of birth, and claimed to be from Boston. He appeared older than the proffered date of birth suggested. Moreover, he professed to have no identification and, when asked how to spell his name, he hesitated.

Bickford tried unsuccessfully to verify the passenger's stated identity using the computer in his cruiser. He eventually asked the man for his social security number, but "Green" said that he did not remember it. When Cashman showed up, he inquired as to the ownership of the duffel bags. Tanguay claimed ownership and Green, in an apparent effort to substantiate that claim, stated that the bags had been in the truck when he arrived. The surveilling officers knew that statement to be untrue.

The officers (whom the magistrate judge credited) asserted that throughout this exchange Green was constantly looking around, as if looking for a way to escape. When asked a second time for identification, he tried to peer into Bickford's notebook as if trying to recollect the name that he had given.

A canine unit arrived at the scene around thirty minutes after the stop was effected. A trained "drug dog" reacted to a scent emanating from the cab of the truck and, later, alerted to one of the duffel bags. The bag was found to contain 340 grams of crack cocaine as well as numerous small bags of marijuana. A search of the truck's glove compartment revealed additional cocaine. Both the driver (Peter Tanguay) and the passenger were arrested. Police subsequently identified the passenger as Gary Brown.

On August 25, 2005, a federal grand jury returned a one-count indictment charging the defendant with possessing 50 grams or more of a mixture or substance containing cocaine base on July 29, 2005, with intent to distribute, in violation of 21 U.S.C. § 841(a)(1). Early in the case, the defendant moved to suppress all the evidence acquired at the scene of the roadside stop. The district court referred that motion to a magistrate judge.

After conducting an evidentiary hearing, the magistrate judge found the stop, the ensuing searches, and the defendant's arrest justified. See United States v. Brown, Crim. No. 05-70, 2006 WL 149031, at *4-7 (D.Me. Jan.17, 2006). In his view, the information provided by the CI possessed sufficient indicia of reliability to support stopping the truck, id. at *5; the defendant lacked standing to challenge the search of either the truck or the duffel bags, id. at *6; and the police had probable cause to effect a warrantless arrest, id. at *7.

The defendant objected to the magistrate judge's factual findings and legal conclusions. The district court nonetheless adopted the report and recommendation and denied the motion to suppress. United States v. Brown, Crim. No. 05-70, 2006 WL 348318 (D.Me. Feb. 14, 2006).

Following a trial, a jury found the defendant guilty. The court sentenced him to life in prison as a career offender. This timely appeal ensued.

II. ANALYSIS

On appeal, the defendant assigns error to the denial of his pretrial motion to suppress, the exclusion of certain evidence at trial, and the sentence imposed. We consider these assigned errors sequentially.

A. Motion to Suppress.

When reviewing a district court's disposition of a motion to suppress, we accept the court's findings of fact unless they are clearly erroneous and subject its conclusions of law (including its ultimate conclusions as to constitutionality) to de novo review. Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996); United States v. Coplin, 463 F.3d 96, 100 (1st Cir.2006). Here, the suppression motion challenged the constitutionality of both the initial traffic stop and the subsequent arrest. Consequently, we address those two components separately.

1. The Stop. The Fourth Amendment protects persons from unreasonable searches and seizures. U.S. Const. amend. IV. The protection against unreasonable seizures extends to investigatory stops, including vehicle stops. See Delaware v. Prouse, 440 U.S. 648, 653, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979); United States v. Chhien, 266 F.3d 1, 5 (1st Cir. 2001). Passengers in a motor vehicle subjected to a traffic stop are deemed seized for Fourth Amendment purposes and, thus, are entitled to challenge the constitutionality of the stop. See Brendlin v. California, ___ U.S. ___, 127 S.Ct. 2400, 2406-07, 168 L.Ed.2d 132 (2007).

In Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the Supreme Court established the baseline test for determining the constitutionality of such detentions. Police officers may lawfully effect an investigatory stop as long as they can "point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant" such an intrusion. Id. at 21, 88 S.Ct. 1868; see United States v. Romain, 393 F.3d 63, 71 (1st Cir.2004).

While the reasonable suspicion standard requires more than a visceral hunch about the presence of illegal activity, it requires less than probable cause. Chhien, 266 F.3d at 6. By the same token, reasonable suspicion can flourish in the absence of a direct evidentiary link between the suspect and the suspected crime. See United States v. Cortez, 449 U.S. 411, 417-18, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981). In practice, then, the constitutional validity of a stop must be evaluated...