U.S. v. Maher

• Decision Date: 06 July 2006
• Docket Number: No. 05-1598.,05-1598.
• Citation: 454 F.3d 13
• Parties: UNITED STATES of America, Appellee, v. Lawrence MAHER, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

454 F.3d 13

UNITED STATES of America, Appellee, v. Lawrence MAHER, Defendant, Appellant.

No. 05-1598.

United States Court of Appeals, First Circuit.

Heard April 5, 2006.

Decided July 6, 2006.

COPYRIGHT MATERIAL OMITTED

Chauncey B. Wood, with whom Shea, Larocque & Wood, LLP was on brief, for appellant.

Margaret D. McGaughey, Appellate Chief, District of Maine, with whom Paula D. Silsby, United States Attorney, was on brief, for appellee.

Before TORRUELLA, Circuit Judge, HUG,^* Senior Circuit Judge, and LYNCH, Circuit Judge.

LYNCH, Circuit Judge.

Lawrence Maher, an erstwhile Massachusetts drug dealer supplying cocaine to southern Maine, was the subject of a police sting operation. While under surveillance on July 22, 2004, Maher wandered drunkenly around a public parking lot in Old Orchard Beach, Maine, calling out the name of a potential drug buyer. He then got in his van, which contained drugs, and fell asleep at the wheel with the key in the ignition and an open beer can beside him.

The police, well aware of the opportunity created, naturally investigated. They arrested Maher for the state crime of operating under the influence (OUI) after Maher failed field sobriety tests. Incident to arrest, they searched Maher's person and van and found heroin, cocaine, and drug paraphernalia. Maher's luck was no better at trial. He was found guilty of the federal crime of possession of cocaine with intent to distribute. See 21 U.S.C. § 841(a)(1). On April 6, 2005, he was sentenced to 262 months in prison and six years' supervised release.

On appeal Maher makes an easily disposed-of Fourth Amendment claim, which is significant largely because we reject his legal argument that reasonable suspicion of drunk driving cannot exist where the would-be operator is asleep and the vehicle is off. Of more significance is his argument, under Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), that the prosecution may not evade strictures on admission of testimonial out-of-court statements by non-testifying declarants on the basis that the statements are offered only for context. While concerned about the prosecution's use of such evidence here, we find no basis to reverse the conviction.

I.

We recount the facts. As to those facts relevant to the suppression issue, we rehearse the findings of the magistrate judge, consistent with record support. See United States v. Romain, 393 F.3d 63, 66 (1st Cir.2004).

On July 20, 2004, Officer Ernest MacVane, a Windham, Maine, police officer assigned to a task force of the United States Drug Enforcement Administration (DEA), arrested one William Johnson on cocaine charges. Johnson told Officer MacVane that he had bought his cocaine from Maher, who lived in Massachusetts and was a significant trafficker in southern Maine.

Johnson agreed to assist in a staged drug transaction with Maher. He was told that his telephone calls with Maher would be monitored and recorded. Johnson called Maher on July 20 and asked if Maher was "coming down here again." Maher replied, "tomorrow I hope, yeah." The following exchange ensued:

Maher: [D]o you got any numbers?

Johnson: What's that?

Maher: One, two, three (unintelligible).

Johnson: Four.

. . . .

Maher: Okay, buddy.

After some discussion of whether Johnson might come to Massachusetts instead, Maher told Johnson, "I got you down for four either way." He did not explicitly mention cocaine.

On the night of July 21, DEA Agent Kate Barnard called Maher to set up a separate meeting.¹ She told Maher she was "Sue," and said she wanted to "hook up" so that she could "get something." Maher, apparently thinking she was an acquaintance,² agreed to meet her at Radley's Market in Old Orchard Beach. The next morning, Johnson called Maher to discuss meeting. Maher told Johnson he was waiting for a friend at a store (an apparent reference to Radley's Market) and told Johnson to call back.

Later that morning, DEA Agent Paul Buchanan saw Maher wandering in the parking lot adjacent to Radley's Market, stumbling and calling the name "Sue."³ Agent Buchanan watched Maher enter the market and emerge minutes later. Maher appeared intoxicated to Agent Buchanan, who said he was still stumbling and disoriented.

Maher climbed into the driver's seat of a white minivan. About ten minutes later, Agent Buchanan approached the minivan and saw Maher asleep or unconscious, slumped in the driver's seat. No one else was in the van. The keys were in the ignition, though the engine was not running. This information was relayed to Old Orchard Beach Police Officer Gerald Hamilton.

Officer Hamilton drove to Radley's Market and approached the minivan. He spoke to Maher, but Maher did not wake up, so Officer Hamilton reached through the window and shook Maher to rouse him. The officer asked Maher if he was okay, and Maher replied that he was just leaving. Officer Hamilton observed that Maher had droopy eyes and spoke in a mumble.

Officer Hamilton could see an open beer can in the minivan's console and a six-pack on the passenger seat. He asked Maher if he had drunk alcohol or used drugs. Maher replied that he had had only about two ounces of beer and that he did not use drugs. Officer Hamilton told Maher he should not have driven. Maher replied that Officer Hamilton was right; he asked the officer to "cut [him] a break" and said he would find his way to a friend's house. Officer Hamilton then ordered Maher out of the van and conducted three field sobriety tests. Maher failed all three and was arrested on suspicion of OUI. See Me.Rev. Stat. Ann. tit. 29-A, § 2411.

During a search incident to arrest, Officer Hamilton found in Maher's pocket a large roll of currency, totaling $7,902, and a film canister containing approximately half a gram of what was later determined to be heroin. In the van, police found a black canvas bag which contained three sandwich bags, each of which held a ball of white powdery material slightly smaller than a baseball. The substance was later determined to be 163 grams of cocaine.⁴ The canvas bag also held a black digital scale. Additionally, it contained a Post-It note which listed several names; to the right of each was a number. The first name was Johnson's. To the right of his name was the number "4."

Prior to trial, the defense filed a motion to suppress the evidence seized from Maher's van. The defense argued that even assuming Maher was intoxicated, Officer Hamilton had lacked any reason to think Maher had committed OUI.

After a suppression hearing during which Officers MacVane and Hamilton testified, the magistrate judge recommended on October 27, 2004, that the motion to suppress be denied. The magistrate judge noted that under Maine law, an officer may order field sobriety tests on reasonable suspicion of OUI. He also noted that attempted operation counts as operation under the Maine OUI statute. See Me. Rev.Stat. Ann. tit. 29-A, § 2401(6). The magistrate judge catalogued the evidence that Maher was intoxicated before entering the minivan and found that when awakened, Maher both admitted that he had driven and said he was "just leaving." The court concluded: "This was sufficient evidence, together with the rational inference that the defendant had entered the vehicle in order to drive it, to justify . . . the field sobriety tests." The district court adopted this decision and denied the motion to suppress.

At trial, the government never called the informant, Johnson, as a witness. It did, however, introduce the drugs seized from the minivan and testimony that the amount of cocaine seized far exceeded the amount one might have for personal use. The parties stipulated that the substance seized from the minivan was cocaine weighing 163.7 grams.

II.

A. The Motion to Suppress

Maher first challenges the district court's denial of his motion to suppress the evidence seized in the minivan. "Our review of the ultimate determinations of probable cause and reasonable suspicion on a motion to suppress is de novo." United States v. Scott, 270 F.3d 30, 39 (1st Cir.2001) (citing Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996)). "[S]ubsidiary factual findings are reviewed for clear error, `giv[ing] due weight to inferences drawn from those facts by resident judges and local law enforcement officers.'" United States v. Burhoe, 409 F.3d 5, 9-10 (1st Cir.2005) (second alteration in original) (quoting Ornelas, 517 U.S. at 699, 116 S.Ct. 1657).

Maher argues that the totality of the circumstances did not create reasonable suspicion that he had committed, or was about to commit, the state crime of OUI. He argues that the absence of reasonable suspicion breaks the chain of circumstance that permitted the drug seizure: Without reasonable suspicion, Officer Hamilton had no basis to require sobriety tests; without the tests, Officer Hamilton had no probable cause to arrest Maher for OUI; without the arrest, there was no reason to search the van.

We reject this argument at its starting point. Assuming arguendo that "reasonable suspicion" is the applicable legal standard,⁵ it was met on these facts.

Reasonable suspicion, a less demanding standard than probable cause, denotes at least a minimal level of objective justification for a stop. United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989). In evaluating whether reasonable suspicion is present, we "look at the totality of the circumstances . . . to see whether the detaining officer ha[d] a particularized and objective basis for suspecting legal wrongdoing." United States v. Arvizu, 534 .U.S. 266, 273, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002) (internal quotation marks omitted) (quoting United States v. Cortez, 449 U.S. 411, 417-18, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981)).

In this case, Officer Hamilton knew (because he had been told by other officers) that Maher had just been stumbling disorientedly, a common characteristic of...