
USCA1 Opinion

	




        October 19, 1992        October 19, 1992                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                                 ____________________                                 ____________________        No. 91-2251        No. 91-2251                              UNITED STATES OF AMERICA,                              UNITED STATES OF AMERICA,                                      Appellee,                                      Appellee,                                          v.                                          v.                                   JAMES W. McCOY,                                   JAMES W. McCOY,                                Defendant, Appellant.                                Defendant, Appellant.                                 ____________________                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF NEW HAMPSHIRE                          FOR THE DISTRICT OF NEW HAMPSHIRE                       [Hon. Shane Devine, U.S. District Judge]                       [Hon. Shane Devine, U.S. District Judge]                                           ___________________                                 ____________________                                 ____________________                                        Before                                        Before                              Torruella, Cyr and Boudin,                              Torruella, Cyr and Boudin,                                   Circuit Judges.                                   Circuit Judges.                                   ______________                                 ____________________                                 ____________________             Glenn G. Geiger, Jr. with whom Geiger & Heiser, P.C. was on brief             Glenn G. Geiger, Jr. with whom Geiger & Heiser, P.C. was on brief             ____________________           _____________________        for appellant.        for appellant.             Michael J. Connolly, Assistant  United States Attorney, with whom             Michael J. Connolly, Assistant  United States Attorney, with whom             ___________________        Jeffrey R. Howard, United States Attorney, was on brief for appellee.        Jeffrey R. Howard, United States Attorney, was on brief for appellee.        _________________                                 ____________________                                 ____________________                                 ____________________                                 ____________________                    CYR, Circuit Judge.  After defendant James W. McCoy was                    CYR, Circuit Judge.                         _____________          indicted on four counts of violating 18 U.S.C.   922(g)(1), which          makes it unlawful for a convicted felon to possess a firearm,  he          filed  three motions to dismiss the indictment and two motions to          suppress evidence of the  firearms.  The motions were  denied and          McCoy  was tried and convicted on all counts.  He challenges only          the  district court  orders  denying the  pretrial  motions.   We          affirm.                                          I                                          I                                      BACKGROUND                                      BACKGROUND                                      __________                    Between  July 21  and  August 14,  1987,  the  town  of          Hampton  Falls, New Hampshire was beset by a series of burglaries          which  seemed  linked by  several  similarities.   Each  occurred          during  working hours on a weekday.   In each instance, entry was          gained by prying open a door, or if an attempted entrance through          a  door proved unsuccessful, by prying open a window.  Typically,          jewelry, cash, tools, and other small personal items were carried          away in pillow cases and nylon bags.          A.  Allen Burglary          A.  Allen Burglary              ______________                    On  August 14, 1987,  the  Hampton Falls  home of  John          Allen was burglarized.  At approximately 1:30 p.m., George Allen,          John Allen's  brother and  neighbor, spotted an  unfamiliar black          Dodge van parked near John Allen's home.  He stopped to  investi-          gate, and  noticed a white male walking away from the back of his          brother's  house.  He  asked the stranger what  he was doing, and          the man, who  appeared nervous, replied,  "just surveying."   The          man then  shouted toward the tree line at the back of the proper-          ty, as  if to another person,  words to the effect  that he would          finish the job later.  The man then got into the van,  and George          Allen remarked to  him that if he was simply  surveying, he would          not  object to his license  plate number being  recorded.  George          Allen recorded the  number, and the man  drove away in  the black          van.                    When John Allen returned  home that evening, he discov-          ered  that his  house had  been forcibly  entered through  a rear          cellar window and an unsuccessful attempt had been  made to pry a          rear door.  Although it appeared that nothing had been taken from          the house, a  nylon bag  packed with jewelry  and other  personal          items  was found  in the  master bedroom.   Hampton  Falls Deputy          Police Chief  Dean R.  Glover was  dispatched to  investigate the          burglary.  George Allen told Glover that the man he had seen that          afternoon was a  white male  with dark curly  hair, between  five          feet ten inches and five feet eleven inches tall, and between one          hundred  and seventy  and two  hundred pounds.    Allen initially          estimated the man's age at between twenty-five  and thirty years,          but moments  later revised his  estimate to thirty-five  years or          older.          B.  Arrest Warrant          B.  Arrest Warrant              ______________                                          2                    Deputy Chief  Glover ran a  check on the  license plate          number provided by George  Allen and discovered that the  van was          registered to appellant James W. McCoy at an address in neighbor-          ing Hampton, New  Hampshire.   Glover then ran  a license  check,          which revealed that McCoy  was forty years old, five  feet eleven          inches tall, two hundred pounds, with brown hair and eyes.  Armed          with this information, Glover prepared an affidavit and complaint          for an arrest warrant charging McCoy with burglary.  The support-          ing affidavit described the burglary of the  John Allen residence          and  George  Allen's encounter  with  "a  white male  individual,          heavyset, approx. 5'10 ", dark medium-length hair, blue shirt and          dark pants."   The affidavit included  other descriptive informa-          tion obtained through the  motor vehicle registration and license          check:   "Hgt 5'11", wgt 200 lbs."   The complaint and supporting          affidavit  were submitted to a  Justice of the  Peace, who issued          the arrest warrant.          C.  Subsequent Events          C.  Subsequent Events              _________________                    Deputy Chief  Glover contacted  the Hampton  police and          arranged to  have two Hampton police  officers, detectives Lalley          and  Wardle,  accompany  him  to McCoy's  residence  in  Hampton.          Neither McCoy  nor the van  was at the address,  but the landlord          informed the officers that McCoy had loaded his personal  belong-          ings into  the van early that  afternoon and was not  expected to          return.  The  landlord mentioned that  he had seen some  items in          McCoy's apartment that  struck him as  unusual possessions for  a                                          3          construction worker, among them an antique clock bearing a  Latin          inscription and the word "Florida" on its face.  Glover suspected          that the clock the landlord described and a one-of-a-kind antique          Belgian  clock (bearing  the inscription  "Tempus Fugit"  and the          word  "Florida") stolen in  a July 24,  1987 burglary  of another          Hampton  Falls residence,  were  one and  the  same.   Detectives          Wardle and Lalley of  the Hampton Police Department  were present          during the discussion of  the clock.  The landlord  permitted the          officers to  inspect McCoy's apartment; two  television sets were          found, as well as several pieces of jewelry and a few coins.                    During the  following  week, the  landlord turned  over          some of McCoy's  mail to Deputy Chief Glover,  who noted that two          envelopes bore the return  address of the First National  Bank of          Portsmouth.    Glover  learned  that McCoy  still  had  an active          account  at the  Hampton  branch of  the  bank.   Bank  personnel          informed the police that McCoy occasionally brought large quanti-          ties of coins to the bank.  Glover requested  that bank personnel          notify either the Hampton Police  Department or the Hampton Falls          Police  Department in  the event McCoy  made any  further contact          with the bank.                    Bank  personnel directed  Glover to  McCoy's employers,          Earl and Dean Verity,  who owned a construction company  and were          in the process of building a house very near the scene of another          Hampton  Falls burglary  under investigation  by Glover.   Glover          learned that McCoy had been employed by the company, but had left          work suddenly around noon  on the day of the  Allen burglary, and                                          4          never returned.  The Veritys informed Glover that McCoy had given          them  some outdoor lawn tools, which Glover noted were similar to          the tools stolen in yet another recent Hampton Falls burglary.                    Within a week after  the Allen burglary, Glover learned          that McCoy  had an  extensive criminal record,  including convic-          tions for  breaking and entering, receiving  stolen property, and          burglary, and that  there was  a warrant  outstanding in  another          state for his arrest on burglary charges.          D.  Arrest          D.  Arrest              ______                    At 8:55 a.m. on August 21,  1987, McCoy appeared at the          drive-up  window of the Hampton branch of the First National Bank          of  Portsmouth.  He was  recognized by the  teller, who requested          that he come into the bank to resolve a problem with his account.          The  Hampton  Police  Department  was notified,  and  ten  police          officers  were  dispatched  to the  bank.1    The Hampton  police          arrested McCoy as he emerged from the bank and  headed toward the          van.  Among the Hampton  police officers at the scene  was Detec-          tive  Wardle,  who  had  accompanied Glover  to  the  defendant's          residence on the evening of the Allen burglary.          E.  Impoundment and Search of Van          E.  Impoundment and Search of Van              _____________________________                    After McCoy  was  arrested, the  van was  towed to  the                                        ____________________               1The arrest procedures  to be  used in the  event McCoy  ap-          peared  at the  bank had  been prearranged  by the  Hampton Falls          Police Department and the Hampton Police Department.   As agreed,          the Hampton Police  Department responded  as it would  to a  bank          robbery alarm.                                          5          Hampton Police Department  for an inventory  search, but then  it          was decided to await the issuance of a search warrant.2                    Glover  filed  a search  warrant  application  with the          Hampton District Court, supported by the affidavit submitted with          the arrest warrant application, four Hampton Falls Police Depart-          ment burglary  reports, and a  photograph of the  antique Belgian          clock.    The warrant  issued,  but before  beginning  the search          Glover  looked  in  the windows  at  the  contents  of the  van.3          Glover and a Hampton police sergeant proceeded to search the van.          Sixty-one  items  were inventoried,  including the  four firearms          which form the basis for the federal charges in the present case.                    On September 26, 1988, McCoy pled guilty in  Rockingham          County Superior Court  to seven felony counts of receiving stolen          property.  During 1991,  he was indicted, tried and  convicted on          four federal  firearms charges under  18 U.S.C.   922(g)(1).   We          turn to the claims presented on appeal.                                        ____________________               2Within two hours after  McCoy's arrest, Glover was informed          by  the arresting officers that  the license plate  number on the          van matched the number  given to Glover by George Allen, and that          it  looked as if a paint roller  had been used hurriedly to paint          the van a maroon color.  Black paint was still visible around the          door locks and mirrors.   The arresting officers further informed          Glover  that several items, including a clock, power tools, and a          number of  nylon bags filled  with "stuff," were  visible through          the windows of the van.   Detective Wardle advised Glover that he          believed that the clock seen in the van was the  one described by          McCoy's landlord.               3Glover  observed a large quantity of tools, a "dozen or so"          canvas  and  nylon tote  bags with  what  appeared to  be jewelry          spilling out of them, bags of tools, pry bars and hammers, lounge          chairs,  some clothes, and, most notably, a clock    matching the          description of  the stolen Belgian clock     and a leaf blower             matching  the description of one stolen in another of the Hampton          Falls burglaries.                                          6                                          II                                          II                                      DISCUSSION                                      DISCUSSION                                      __________          A.  Motions to Suppress          A.  Motions to Suppress              ___________________                    1.  "Automobile Exception"                    1.  "Automobile Exception"                         ____________________                    Appellant claims that the  evidence seized from the van          should have  been suppressed because the  search warrant obtained          by  Deputy  Chief Glover  was  not supported  by  probable cause.          Assuming, without  deciding, the  search warrant was  invalid, we          nonetheless conclude that the  district court properly denied the          motions  to  suppress, as  the search  was permissible  under the          "automobile exception"  to the Fourth Amendment  warrant require-          ment.                    Under  the "automobile  exception," the  only essential          predicate  for a valid warrantless  search of a  motor vehicle by          law  enforcement officers is "probable cause  to believe that the          [vehicle]  contains contraband  or  other  evidence  of  criminal          activity."  United  States v.  Panitz, 907 F.2d  1267, 1271  (1st                      ______________     ______          Cir. 1990).  See Carroll  v. United States, 267 U.S. 132,  153-56                       ___ _______     _____________          (1925).   "The inherent  mobility of motor  vehicles, [California                                                                 __________          v.] Carney, 471  U.S. [386,] [] 390 [] [(1985)],  and the reduced              ______          expectation  of privacy  associated  with them,  id.  at 391,  []                                                           ___          justify application  of the vehicular exception  '[e]ven in cases          where an automobile  [is] not immediately mobile.'"   Panitz, 907                                                                ______          F.2d at 1271.  We have held that probable cause alone justifies a          warrantless search of  a motor vehicle  seized without a  warrant                                          7          while parked in a  public place, "whether or not  exigent circum-          stances  prevailed at either the time of  the seizure or the time          of  the search.   Moreover, the search, so  long as reasonable in          scope, need  not be conducted contemporaneously  with the seizure          . . . ."   Id. at 1272 (citing cases).  Provided there was proba-                     ___          ble cause to believe that an offense had been  committed and that          a search would turn up evidence of the offense, see United States                                                          ___ _____________          v. Aguirre, 839 F.2d 854, 857-58 (1st Cir. 1988), the seizure and             _______          search of  the van were  lawful under the  "automobile exception"          without regard to the validity of the search warrant.4                    At the time of  the arrest, Glover knew that  McCoy and          the  van had been observed in  highly suspicious circumstances at          the scene of the Allen burglary.  Glover and Detective Wardle had          learned  from  McCoy's  landlord  that McCoy  possessed  a  clock          similar to one stolen in another nearby burglary, and that he had          left hurriedly in the van with  his belongings.  Over the ensuing          week, Glover collected considerable circumstantial  evidence from          various sources  linking McCoy  with several other  Hampton Falls          burglaries.5  Thus, by the time  of the arrest there was probable                                        ____________________               4Provided  there was probable cause to search the van at the          time of McCoy's arrest, the search  was valid even if the  arrest          was not,  as the police would  have had an independent  basis for          searching the van,  apart from any  exploitation of illegal  con-          duct.   See Brown v.  Illinois, 422 U.S. 590,  599 (1975); United                  ___ _____     ________                             ______          States v. Pimental, 645 F.2d 85, 86 (1st Cir. 1981).          ______    ________               5The evidence established that the Hampton and Hampton Falls          police conducted a cooperative  investigation.  Detective  Wardle          of the  Hampton Police  Department accompanied Glover  to McCoy's          residence  on the evening of  the Allen burglary.   Wardle parti-          cipated  in the  discussion with  McCoy's landlord  regarding the          antique  Belgian clock seen in McCoy's apartment.  The two police                                          8          cause to  believe that  burglaries  had been  committed and  that          McCoy was in possession  of at least some of the stolen property.          Glover and  Wardle arguably had  probable cause  to believe  that          stolen  property would be found in the van upon learning from the          landlord that McCoy had loaded his  possessions in the van on the          afternoon of  the Allen burglary  and appeared to  have abandoned          his  apartment.  Assuming that  the police had  probable cause to          believe that  a search of the  van would turn up  evidence of the          burglaries, their seizure of the van at the bank parking  lot was          lawful.   Any doubt as to  the legality of the  search is removed          given that prior to commencing the search, some five hours later,          see United States  v. Moscatiello,  771 F.2d 589,  595, 600  (1st          ___ _____________     ___________          Cir. 1985)  (eighteen hours  between seizure and  search); United                                                                     ______          States  v.  McHugh, 769  F.2d 860,  865-67  (1st Cir.  1985) (one          ______      ______          week), the police looked  through the windows of the  van and saw          an antique  clock, closely  resembling the stolen  Belgian clock,          and a leaf blower, closely resembling one stolen in another local          burglary.   At  that point,  there can  be  no question  that the          police had  probable cause to believe the  van contained evidence          of  criminal activity.   As  the van  was lawfully  searched, the          district court correctly denied the motions to suppress.                                                  ____________________          departments communicated  "at length"  during the  week preceding          the arrest,  and jointly established a procedure  for the arrest.          Glover learned of McCoy's criminal record, including the burglary          and stolen  property charges, and  communicated a warning  to the          Hampton police to exercise  caution in approaching the defendant.          "Where  law   enforcement  authorities  are  cooperating   in  an          investigation, . . . the  knowledge of one is presumed  shared by          all."  Illinois v. Andreas, 463 U.S. 765, 771 n.5 (1982).                 ________    _______                                          9                                                    10          B.  Motions to Dismiss          B.  Motions to Dismiss              __________________                    1.  Pre-indictment Delay                    1.  Pre-indictment Delay                        ____________________                    Appellant claims that the passage of three and one-half          years between the seizure of the  firearms and the return of  the          federal  indictment violated  his  Fifth Amendment  right to  due          process and his Sixth Amendment right to speedy trial.                    a.  Due Process                    a.  Due Process                        ___________                    Pre-indictment  delay violates due process if "(1) [it]          caused substantial prejudice to [the defendant's] right to a fair          trial and, (2) the Government intentionally delayed indictment in                ___          order to gain  a tactical  advantage over the  accused."   United                                                                     ______          States v. Picciandra, 788  F.2d 39, 42 (1st Cir.)  (citing United          ______    __________                                       ______          States v. Marion,  404 U.S. 307  (1971)) (emphasis added),  cert.          ______    ______                                            ____          denied, 479 U.S.  847 (1986).  See also United States v. Acevedo,          ______                         ___ ____ _____________    _______          842 F.2d  502, 504 (1st Cir.  1988).  For the  defendant to carry          the heavy burden of  proving actual prejudice from pre-indictment          delay,  concrete proof  is  required; mere  speculation and  bare          allegations  will not suffice.   Acha v. United  States, 910 F.2d                                           ____    ______________          28, 32 (1st Cir. 1990).                    Although appellant claims that he was prejudiced by the          extended  pre-indictment delay,  in  that his  decision to  plead          guilty to the state  felony charges was predicated on  a "belief"          that federal charges would  not be filed, he neither  alleges nor          demonstrates  that  any  agent  of the  federal  government  ever          represented  that  he would  not  be prosecuted  for  the federal                                          11          firearms  violations.    The  further  argument  that  the  delay          diminished the opportunity to serve  concurrent time on the state          and  federal offenses  is  based on  the speculation  that either          sentence  would be made to  run concurrently.   Moreover, even if          the claims of prejudice were sustainable, appellant has not shown          that the  government intentionally  delayed indictment to  gain a          tactical advantage.  See Picciandra, 788 F.2d at 42.                               ___ __________                    b.  Sixth Amendment                    b.  Sixth Amendment                        _______________                    Appellant  contends  that  the extended  pre-indictment          delay violated "the very  spirit" of the Sixth Amendment  and the          Speedy  Trial Act,  18  U.S.C.   3161.    As appellant  concedes,          however, no Sixth Amendment right to speedy trial arises prior to          the filing of the  criminal charge.  United States  v. MacDonald,                                               _____________     _________          456 U.S. 1, 7 (1982).  See United States v. Marler, 756 F.2d 206,                                 ___ _____________    ______          211 (1st Cir. 1985) (Sixth Amendment speedy trial right arises at          filing of federal indictment).6                                        ____________________               6Appellant  argues  that  the  district  court  should  have          dismissed  the indictment  for lack  of prosecution,  pursuant to          Federal Rule of Criminal Procedure 48(b), which provides:               If there is unnecessary  delay in presenting the charge               to a grand jury  or in filing an information  against a               defendant who has  been held to answer  to the district                                       ____ __ ______  __ ___ ________               court, or if there is  unnecessary delay in bringing  a               _____               defendant to  trial, the court may  dismiss the indict-               ment, information or complaint.          Fed. R. Crim. P. 48(b)  (emphasis added).  Rule 48(b) is  limited          in application  to post-arrest delay.   United States  v. Marion,                                                  _____________     ______          404  U.S. 307, 319 (1971).  Appellant does not complain of unnec-          essary delay following the federal indictment.                                          12                    2.   Petite Policy                    2.   Petite Policy                         _____________                    Appellant  contends  that the  federal  indictment con-          travened  the  Justice  Department's  so-called   Petite  policy,                                                            ______          thereby violating his due process rights.  The Petite policy, see                                                         ______         ___          Petite v. United States, 361 U.S. 529  (1960) (per curiam), is an          ______    _____________          internal Justice Department policy forbidding federal prosecution          of a person for alleged criminality which was "an ingredient of a          previous state  prosecution against that  person;" exceptions are          made only if the prosecution will serve  "compelling interests of          federal law  enforcement."  Thompson  v. United States,  444 U.S.                                      ________     _____________          248, 248  (1979).  It  is a federal  prosecutorial policy,  not a          matter of constitutional law.   United States v. Booth,  673 F.2d                                          _____________    _____          27,  30 (1st  Cir.),  cert. denied,  456 U.S.  978  (1982).   See                                ____  ______                            ___          Rinaldi v. United States,  434 U.S. 22, 29 (1977)  (Petite policy          _______    _____________                            ______          "not constitutionally mandated").  As we have explained,                    [t]he  Petite policy and  cases construing it                           ______                    stand  only  for  the  proposition  that  the                    government's  motion  to  dismiss  should  be                    granted when it discovers that it is conduct-                    ing  separate prosecutions  for the  same of-                    fense.  The doctrine does not create a corre-                    sponding right in the accused.          Booth, 673 F.2d at 30.          _____                    Appellant argues  that Booth is not  controlling as the                                           _____          Justice Department  revised the  policy after Booth  was decided.                                                        _____          Those courts  of appeals  which have  examined the  Petite policy                                                              ______          since its revision  in 1988,  however, have adhered  to the  view          that it does not confer substantive  rights on an accused.   See,                                                                       ___                                          13          e.g.,  United States v. Simpkins, 953 F.2d 443, 444-45 (8th Cir.)          ____   _____________    ________          (Petite  policy does  not confer  substantive rights  on criminal           ______          defendant, thus  cannot form the  basis of claim  that subsequent          prosecution  was  improper),  cert.  denied, ___  U.S.  ___,  118                                        ____   ______          L.Ed.2d  585, 112 S. Ct. 1988 (1992); United States v. Rodriguez,                                                _____________    _________          948 F.2d 914, 915 (5th Cir. 1991) (as an internal rule of Justice          Department,  policy may not be invoked by defendant to bar prose-          cution), cert. denied, ___ U.S. ___,  119 L.Ed.2d 590, 112 S. Ct.                   ____  ______          2970  (1992); United States v. Pungitore, 910 F.2d 1084, 1120 (3d                        _____________    _________          Cir. 1990)  (policy does not confer substantive  rights on defen-          dants); United States v.  Heidecke, 900 F.2d 1155, 1157  n.2 (7th                  _____________     ________          Cir.  1990) (as  internal  guideline, policy  gives defendant  no          substantive  rights).  We hold that neither the Petite policy nor                                                          ______          its 1988 revision conferred substantive rights on the defendant.                    The district court judgment is affirmed.                    _______________________________________                                          14          McCoy          McCoy          _____                    Defendant filed  two pretrial  motions to  suppress the          firearms evidence  on Fourth Amendment  grounds.  In  one motion,          defendant claimed that  his arrest was illegal because the arrest          warrant  was not supported by  probable cause as  required by the          Fourth Amendment.  Defendant  argued that the firearms discovered          in  his van  were  fruits of  the  illegal arrest  and  therefore          inadmissible against him in a criminal proceeding.  In his second          motion to  suppress, defendant contended that  the search warrant          for his  van was  not supported by  probable cause, and  thus the          firearms evidence should be  excluded as the fruit of  an illegal          search.                    Defendant  also filed three pretrial motions to dismiss          the  indictment.  In  one motion, defendant  argued that pretrial          delay before federal charges were filed violated his rights under          the  due process  clause of  the Fifth  Amendment and  the speedy          trial clause of the Sixth Amendment.  In a  second motion, defen-          dant  argued that  unnecessary  delay in  bringing  him to  trial          warranted dismissal  under Rule  48(b)  of the  Federal Rules  of          Criminal Procedure.   In a  third motion, defendant  claimed that          the  government's failure to follow the  Petite policy, a Depart-                                                   ______          ment of Justice  policy against dual or successive federal prose-          cutions,  violated his rights under the due process clause of the          Fifth Amendment.                    The district court denied  both motions to suppress the          firearms  evidence and all  three motions to  dismiss the indict-                                          1          ment.   Defendant subsequently was tried and convicted on each of          the four counts.  Defendant now appeals the denial of each of the          five pretrial motions.                                          2          McCoy          McCoy          _____          1.  Arrest Warrant          1.  Arrest Warrant              ______________                    Defendant  contends that  the affidavit  supporting the          arrest  warrant did not establish probable cause.  He argues that          the description given to police by George  Allen was sufficiently          broad to encompass a  large percentage of the white  male popula-          tion and therefore insufficient to constitute probable cause that          defendant committed the Allen  burglary.  Defendant contends that          information obtained by Deputy Chief Glover after the issuance of          the warrant  is irrelevant in determining  probable cause because          the  Hampton police effectuated the arrest solely on the basis of          the arrest warrant.   Defendant argues that information possessed          by Officer Glover and the Hampton Falls Police Department may not          be  imputed  to  the  arresting officers  in  the  Hampton Police          Department.                    United States  v. Watson,  423 U.S. 411  (1976), estab-                    _____________     ______          lished  that  a warrantless  public  felony  arrest supported  by          probable cause does not  violate the Fourth Amendment.   See also                                                                   ___ ____          Gerstein  v. Pugh, 420 U.S.  103, 113-14 (1975).   If defendant's          ________     ____          arrest was supported by probable cause, therefore, the arrest was          legal notwithstanding the validity of the arrest warrant.                    Probable cause exists when "the facts and circumstances          within  the [police officers']  knowledge and  of which  they had          reasonably trustworthy information  were sufficient to warrant  a          prudent [person] in believing  that the [defendant] had committed          or  was committing an offense."   United States  v. Figueroa, 818                                            _____________     ________                                          1          F.2d 1020, 1023  (1st Cir. 1987) (quoting Beck  v. Ohio, 379 U.S.                                                    ____     ____          89, 91 (1983)).   "The government need not  show 'the quantum  of          proof necessary to convict'; probability is the touchstone."  Id.                                                                        ___          (quoting United States v.  Miller, 489 F.2d 1117, 1128  (1st Cir.           _______ _____________     ______          1978), cert. denied, 440 U.S. 958  (1979)).  We must consider the                 ____  ______          totality of  the circumstances in evaluating  whether the govern-          ment demonstrated a sufficient  "[p]robability . . . of  criminal          activity."  Id. at 23-24 (quoting Illinois v. Gates, 462 U.S. 213                      ___           _______ ________    _____          (1983)).                    First,  we  will examine  the  facts  and circumstances          within the collective knowledge of  the Hampton Falls and Hampton                     __________          police departments; then we will determine what portion,  if any,          of  that knowledge may be imputed to  the arresting officers.  At          the time of defendant's arrest, the following was known to Deputy          Chief  Glover:  A man  driving a van  registered to the defendant          and fitting the general description of the defendant was observed          at approximately 1:30 p.m. at the scene of the  Allen burglary on          August 14,  1987.  The man appeared nervous, and did not identify          himself or offer any explanation for his presence on the property          except  that he  was "just surveying."   The  man was  aware that          George Allen  recorded his license  plate number.   The defendant          had suddenly disappeared from his construction job around noon on          that  day, and  never  returned.   The  defendant also  had  been          observed "hurriedly"  loading his  possessions into his  van that          afternoon, and appeared to have abandoned his place of residence.          His landlords had  seen a clock in defendant's  apartment bearing                                          2          remarkable similarity  to one stolen in an  earlier burglary, and          had noticed other items in the apartment that seemed inconsistent          with defendant's station in  life.  Defendant had given  both his          landlords and  his  employers expensive  gifts  resembling  items          stolen  in various  Hampton Falls  burglaries.   He was  known to          bring large  quantities of coins, sometimes foreign, to his bank.          One  of the Hampton Falls burglaries took place across the street          from his place  of employment and occurred during  the relatively          brief period of his employment at that location.  Finally, he had          a criminal history of crimes against property.                    These facts, in the aggregate, are sufficient to estab-          lish  probable  cause  that  defendant had  engaged  in  criminal          activity.   However,  we must  determine what  portion  of Deputy          Chief  Glover's knowledge can  be imputed to  the arresting offi-          cers.   That the arresting officer may have lacked probable cause                       ___          for the  arrest of the suspect  does not mean that  the arrest is          invalid for lack of probable cause; it is enough that the collec-          tive  knowledge  and information  of  all  the officers  involved          establishes probable  cause for  the  arrest.   United States  v.                                                          _____________          Paradis, 802  F.2d 553, 557 (1st Cir. 1986).  See also Charles v.          _______                                       ___ ____ _______          Smith, 894 F.2d 718 (5th Cir.  1990), cert. denied, ___ U.S.  ___          _____                                 ____  ______          (19__) (officer lacking personal  knowledge of facts establishing          probable cause for arrest  may nevertheless make arrest if  he is          merely carrying  out directions of officer who does have probable          cause); United States  v. Rocha,  916 F.2d 219  (5th Cir.  1990),                  _____________     _____          cert.  denied, ___ U.S.  ___, (19__) (arresting  officer need not          ____   ______                                          3          have personal knowledge of all facts constituting probable cause,          but  may rely upon collective  knowledge of police  when there is          communication among them); United States v. Hoyos, 892  F.2d 1387                                     _____________    _____          (9th Cir.  1989), cert.  denied, ___  U.S. ___ (19__)  (arresting                            ____   ______          officer need not have personal  knowledge of facts sufficient  to          constitute probable cause; probable cause may be based on collec-          tive  knowledge  of  all  officers  involved  in  investigation);          Calamia v.  City of New York, 879 F.2d 1025 (2d Cir. 1989) (where          _______     ________________          law  enforcement authorities  are  cooperating in  investigation,          knowledge of one  is presumed  shared by all);  United States  v.                                                          _____________          Rich,  795  F.2d 680  (8th  Cir.  1986) (in  determining  whether          ____          probable  cause existed for an arrest, court does not merely look          to actual knowledge  of arresting officer, but to combined knowl-          edge of all officers involved).                    Defendant  argues  that  our  decision  in  Paradis  is                                                                _______          inapposite because the police  departments of Hampton and Hampton          Falls  were  not  involved  in a  contemporaneous  investigation.          However,  the record  establishes  that Detective  Wardle of  the          Hampton Police Department, one  of the arresting officers, accom-          panied Deputy  Chief Glover to  the defendant's residence  on the          evening of  the Allen burglary.   That evening,  Detective Wardle          participated in the discussion  with defendant's landlord regard-          ing the antique clock seen in defendant's  apartment, and learned          that  defendant had  hurriedly loaded  his belongings in  the van          that afternoon and had  apparently abandoned his apartment.   The          record establishes  that the two  police departments communicated                                          4          "at length" during the week preceding the arrest, and established          a  procedure for the arrest.   Further, when  Deputy Chief Glover          learned of the defendant's prior criminal record, he communicated          a warning to the  Hampton police to use caution  when confronting          the defendant.  We cannot agree with  defendant's contention that          the Hampton  Police Department based  their arrest solely  on the          arrest warrant.   On the contrary,  ample evidence suggests  that          the  two police  departments communicated  on numerous  occasions          about the anticipated arrest during the week between the issuance          of the warrant  and the arrest.  It is appropriate, therefore, to          consider the collective knowledge of all the officers involved in          determining  whether  probable   cause  existed  for  defendant's          arrest.   We  find the  collective knowledge  of the  Hampton and          Hampton  Falls  police departments  at  the  time of  defendant's          arrest  sufficient  to  support  a  finding  of  probable  cause.          Defendant's  claim that  the firearms  evidence should  have been          suppressed as the fruit of an illegal arrest is without merit.                                          5
