U.S. v. Fiasconaro
| Decision Date | 24 December 2002 |
| Docket Number | No. 02-1611.,02-1611. |
| Citation | 315 F.3d 28 |
| Parties | UNITED STATES, Appellee, v. Michael FIASCONARO, Defendant, Appellant. |
| Court | U.S. Court of Appeals — First Circuit |
Michael A. Cunniff for appellant.
Margaret D. McGaughey, Appellate Chief, with whom Paula D. Silsby, United States Attorney, was on brief for appellee.
Before SELYA, Circuit Judge, COFFIN and BOWNES, Senior Circuit Judges.
The pivotal issue in this case is whether there was probable cause for the police to arrest the defendant-appellant, Michael Fiasconaro, 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
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).
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 Albright 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 Spaulding 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.
As will become evident, the key player in this case is a confidential informant known only as CI 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 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 drugs 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 drug 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 Spaulding was made. This call was to confirm that the informant would drive Spaulding 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. Spaulding told the informant that he made the trip when it was necessary and that he had tried to call the informant but could not reach him. Spaulding also agreed to a drug sale. The informant was wired and given money that had been photocopied. As usual, MDEA agents followed the informant to Spaulding's house.
There was a monitored conversation on Spaulding's porch between the informant, Spaulding's girlfriend and Spaulding. During the conversation Spaulding said he had to take his latest trip to Massachusetts alone because he could not contact anyone to drive him. The informant said that he would have liked to earn the money. There was then a discussion of the purchases of kilograms and half kilograms of cocaine. Spaulding said that half a kilogram cost him $10,000 and that the informant could buy it for $13,000. Spaulding said that his best week of drug sales made him a profit of $8,000. Spaulding sold the informant an ounce of cocaine for $1,000, which the informant subsequently turned over to MDEA agents. The last controlled buy was on June 20, 2001. Spaulding's girlfriend answered the recorded call to Spaulding's house and said that Spaulding had gone to Foxwoods casino. She told the informant she had "between a half and three quarters." Deetjen said this meant that she had between one-half to three-quarters of an ounce of cocaine. The informant told her that he needed more and would wait for Spaulding. She replied that she had enough to last her for the meantime.
The informant was equipped with an electronic listening device by the MDEA agents, who followed him to Spaulding's house. When the informant arrived Spaulding was there. The agents overhead the sale of an eighth of an ounce of cocaine to the informant. Deetjen, however, failed to activate the recorder, so there was no record of the conversations between Spaulding and the informant. After the informant returned to the MDEA office, Deetjen had him make a recorded call to Spaulding confirming the basis of the sale.
Deetjen and Prough testified that after each of the controlled buys, Deetjen called Prough and gave him all the details. It was Deetjen's opinion that the amounts of drugs involved were getting larger and that the source was located in either Lowell or Lawrence, Massachusetts. Prough evidently agreed with this analysis.
After a series of recorded telephone calls between the informant to Spaulding or people at Spaulding's house, it was agreed that the informant would drive Spaulding to Massachusetts. On June 2 there was a recorded conversation between the informant and Spaulding during which the following remarks were made by Spaulding. The informant...
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