
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 96-1148                                    UNITED STATES,                                      Appellee,                                          v.                                   DAVID P. BIZIER,                                Defendant - Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                              FOR THE DISTRICT OF MAINE                     [Hon. D. Brock Hornby, U.S. District Judge]                                            ___________________                                 ____________________                                        Before                           Selya and Stahl, Circuit Judges,                                            ______________                            and Woodlock,* District Judge.                                           ______________                                _____________________               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.                                 ____________________                                    April 22, 1997                                 ____________________                                        ____________________          *  Of the District of Massachusetts, sitting by designation.                    WOODLOCK,  District  Judge.   The  sole  issue in  this                    WOODLOCK,  District  Judge.                               _______________          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.                                            I                                          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                                         -2-          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.                                         -3-                    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                                          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.                                         -4-                                          A.                                          A.                    PROBABLE CAUSE FOR ARREST - GENERAL PRINCIPLES                    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 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 (1976); Gerstein v. Pugh,  420 U.S.          ______                                ________    ____          103, 113-14 (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.                                              ______                    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,  115 S. Ct. 193 (1994)); see  also Beck v. Ohio, 379 U.S.          ______                           _________ ____    ____          89, 91 (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 (1984)).                   ____________                    To be sure, evidence recovered after  an arrest may not          form the  basis of probable  cause for that  arrest.  See  United                                                                ___  ______                                         -5-          States v. Diallo, 29 F.3d 23, 26 (1st Cir. 1994) (citing Maryland          ______    ______                                         ________          v. Garrison, 480 U.S. 79, 85 (1987)); see also Smith v. Ohio, 494             ________                           ________ _____    ____          U.S.  541, 543 (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                                    ______     ________          (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 (1980).                                          B.                                          B.                    SEARCH INCIDENT TO ARREST - GENERAL PRINCIPLES                    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."   Robinson,  414 U.S.  at 234.   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.                                          C.                             SEARCH AND ARREST OF BIZIER                             SEARCH AND ARREST OF BIZIER                             ___________________________                                         -6-                    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                 1. Search Flowing From Valid Traffic Violation Stop                    ________________________________________________                    Last  term in Whren v.  United States, 116  S. Ct. 1769                                  _____     _____________          (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 automobile  and temporarily          detain the driver.  Id. at 1772; see also Maryland v. Wilson, 117                              ___          ________ ________    ______          S. Ct. 882,  886 (1997)  (officer making traffic  stop may  order          passengers  out  of  car  pending  completion  of   stop).    The          information   developed  in   connection   with  that   temporary          investigative stop may in turn provide grounds for a full custody          arrest.   In  Whren, a  police officer  observed defendants  in a                        _____          truck  which  the  officer  had probable  cause  to  believe  had          violated certain  traffic regulations.  Upon  stopping the truck,          the  officer saw two large plastic bags which appeared to contain          crack cocaine in the  driver's hands.  The officer  then arrested          the defendants and seized the drugs.  The defendants were charged          and  convicted of various  federal drug offenses  and the Supreme          Court affirmed.                      The Whren Court reiterated its holding in Robinson, 414                        _____                                 ________          U.S.  at 221 n.1, that  "a traffic-violation arrest  (of the sort                                         -7-          here) would  not be rendered invalid  by the fact that  it was 'a          mere pretext for a narcotics search.'" Whren, 116 S. Ct. at 1774.                                                 _____          Stating that  subjective intentions  play no  role in a  probable          cause  analysis under the  Fourth Amendment,  the Court  held the          "fact that the  officer does not have the state  of mind which is          hypothecated by the reasons which provide the legal justification          for  the officer's action does not invalidate the action taken as          long  as  the  circumstances, viewed  objectively,  justify  that          action.'" Id. (citing Scott  v. United States, 436 U.S.  128, 138                    __          _____     _____________          (1978)).                      The State Police Troopers plainly had probable cause to          stop Bizier's  car  on  the Maine  Turnpike  because  Bizier  was          travelling almost ten miles above the posted speed limit.  Bizier          contends,  however, that although this may have been a valid stop          for a traffic violation, there was no probable cause for his full          custody arrest without consideration  of the actual crack cocaine          discovered during  the body search.   In this  connection, Bizier          contends that probable  cause for an  arrest supporting a  search          incident thereto can exist only for the actual offense ultimately          charged.  He argues that because he was, in the end, charged with          a  cocaine offense relating to the drugs found during the search,          there  was  no  preexisting   probable  cause  and  therefore  no          justification for that arrest.                      As a legal proposition,  the argument is without merit.          The  probable cause  justifying  a lawful  custodial arrest,  and                                         -8-          therefore  a search incident to that arrest,  need not be for the          charge eventually prosecuted.   See e.g., Barna v. City  of Perth                                          ___ ____  _____    ______________          Amboy, 42 F.3d 809, 819 (3d Cir. 1994) ("Probable cause need only          _____          exist  as  to  any  offense  that  could  be  charged  under  the                         ___                 _________          circumstances") (emphasis added); Barry  v. Fowler, 902 F.2d 770,                                            _____     ______          773  n.5 (9th  Cir. 1990); Gassner  v. City of  Garland, 864 F.2d                                     _______     ________________          394, 398 (5th Cir. 1989);  Mutter v. Town of Salem, 945  F. Supp.                                     ______    _____________          402,  407 n.5 (D.N.H. 1996).  Consequently, a finding of probable          cause  for any  offense justifying  full custodial  detention can          validate the search in this case as incident to a lawful arrest.                     We need not  pause to consider  the question whether  a          stop for speeding, an offense  which does not ordinarily  involve          anything  beyond a  fine,1  would support  a  body search.    Cf.                                                                        __          Robinson,  414  U.S. at  236  n.6. (declining  to  reach question          ________          whether  "'a routine traffic stop,' i.e., where the officer would                                              ____          simply  issue a  notice of  violation and  allow the  offender to          proceed" would justify a full body search of the person stopped);          see also United  States v. Lott,  870 F.2d 778, 781-82  (1st Cir.          ________ ______________    ____          1989) (police  making justified investigatory stop not authorized          to make body  search where there was  no fear for their  safety).                                        ____________________          1    A speeding  violation does  not  involve a  criminal offense          punishable with incarceration in  Maine unless the driver exceeds          the speed  limit by 30  miles per hour  or more.  Me.  Rev. Stat.          Ann. tit. 29-A,  2074(5) (West 1996).  Bizier was not  going more          than ten  miles per hour  above the posted  speed limit and  thus          would be subject simply to a fine for the speeding violation.                                         -9-          The information learned by the troopers here quickly escalated to          probable  cause for a full custody arrest.  These developments at          the roadside after  the initial traffic stop, which were entirely          separate from the cocaine  discovery, provided probable cause for          a full custody arrest  for a serious traffic violation--operating          the  truck under  the influence  of a  drug.   Both  troopers who          executed  the stop testified  at the suppression  hearing that it          took longer  than usual for Bizier to  pull over to the roadside.          When  Trooper Curran  approached Bizier,  he noted  that Bizier's          eyes  were  glassy,  his  eyelids were  heavy,  his  pupils  were          pinpoints and he was  swaying.  Bizier  and the passenger in  the          truck  told the  troopers  inconsistent stories.   These  factors          together created probable cause for a driving under the influence          arrest2 following the otherwise justifiable traffic stop.                    When the police  dog called  to the  scene arrived,  it          alerted to the presence of narcotics on seat covers  on the front          seat, the front edge of the front seat and in the gearshift area,          as well  as a box  which had  been next  to the front  seat.   In          addition, Bizier admitted to Trooper Curran that he had marijuana          remains in his truck.   This admission regarding the  presence of                                        ____________________          2   An operating under the influence violation is punishable with          incarceration in Maine.  Me. Rev. Stat. Ann. tit. 29-A,  2411(5).          Indeed, Maine law independently  authorizes a warrantless  arrest          when a law enforcement officer has probable cause and "the arrest          occurs  within  a  period  reasonably  likely  to  result in  the          obtaining of  probative evidence  of . .  . drug  concentration."          Id. at 2411(4).          ___                                         -10-          contraband corroborated other evidence supporting  probable cause          for driving under the influence.                    Moreover, as  we held  in United  States v. Staula,  80                                              ______________    ______          F.3d 596, 603 (1st Cir.), cert. denied, 117 S. Ct. 156 (1996), it                                    ____________          cannot  seriously be  disputed  that once  an  officer has  found          evidence  of marijuana  in a  truck he  has  stopped for  a motor          vehicle violation he  has probable cause to arrest  the occupants          of the truck on a possession charge.3                        The unfolding observations which flowed  from the valid          traffic stop provided more  than sufficient probable cause before          the challenged search to  arrest Bizier at a minimum  for driving          the truck  under  the  influence of  a  controlled  substance  he          illegally possessed in the vehicle.                   2.  Search Flowing From Cocaine Dealing Arrangements                 2.  Search Flowing From Cocaine Dealing Arrangements                     ________________________________________________                    A law enforcement officer  may make an arrest  if there          is  probable cause to believe that the suspect has committed some                                                         _____________          felony offense.  See Watson,  423 U.S. at 415-424.   When Trooper                           ___ ______          Curran  pulled over  Bizier  on  the  Maine Turnpike,  there  was          probable  cause, collectively  known  to the  involved Maine  law          enforcement personnel based on the two controlled buys of cocaine          from  Bizier,  to  arrest   Bizier  for  cocaine  possession  and                                        ____________________          3   Bizier  contends that  because possession  of marijuana  is a          civil infraction  in Maine, the possession itself did not provide          independent grounds for  arrest.  Possession of  marijuana in any          quantity,  however,  is  also a  crime  under  federal law  which          independently  supports  an  arrest.    See  21  U.S.C.      844.                                                  ___          Furthermore, the presence of the marijuana in the truck fortified          the probable cause for a driving under the influence arrest.                                         -11-          distribution.   Bizier himself concedes  that at the  time of the          stop, "[t]here did exist probable cause that Bizier had committed          prior drug transactions,"  Appellant's Brief at 5, but then notes          that  no arrest  was made  based on  those transactions.   As  we          observed  above, probable cause need only exist as to any offense          that  could be  charged  under the  circumstance.   Thus,  it  is          immaterial  that the  arrest grounds  differed from  the ultimate          charging  decision.  It is uncontested that probable cause for an          arrest  did exist  based  on those  two  controlled buys  in  the          previous  two weeks.    Thus, the  search  of Bizier  immediately          before  his formal arrest could be justified as a search incident          to arrest based on  the controlled buys alone.  See Rawlings, 448                                                          ___ ________          U.S. at 111.                    Bizier, in  oral argument,  challenged the  validity of          the two controlled buys  as a basis for probable  cause, claiming          that they were "stale."   While a long delay in seeking  a search                                                                     ______          warrant can create difficulties if  the information is stale, See                                                                        ___          Watson, 423 U.S. at 450 n.14 (Marshall, J., dissenting), probable          ______          cause  to arrest,  "once formed  will continue  to exist  for the                    ______          indefinite future,  at least if no  intervening exculpatory facts          come to light."  Id. at 449 (Marshall, J., dissenting) (citations                           __          omitted).    As  Justice  Powell  observed  in  his  concurrence,          probable  cause to support an arrest normally does not grow stale          because  "once there is probable cause to believe that someone is          a  felon  the passage  of time  often  will bring  new supporting                                         -12-          evidence";  such  probable cause  would  grow  stale only  if  it          emerges  that it was based on since discredited information.  Id.                                                                        __          at 432 n.5.   Here,  rather than the  development of  intervening          information  that  weakened  the  probable  cause  based  on  the          controlled buys,  information emerged that  actually strengthened          the basis for arrest on cocaine distribution charges.                        In any event, the period of time between the controlled          buys  and the  arrest  was not  so  long here  as  to render  the          probable  cause  stale in  any  meaningful temporal  sense.   The          arrest occurred  just four days  after the second  controlled buy          and less than two weeks after  the first controlled buy at a time          when there was  probable cause to  believe additional drugs  were          being transported in a moving vehicle.                    We can find no suggestion the police acted in bad faith          by seeking unfairly to rely upon probable cause from an abandoned          prior  arrest  opportunity  in   order  to  effect  an  otherwise          insupportable  current arrest  and thereby  exploit the  right of          search incident to arrest.   In this connection, we  note Justice          Powell's  observation that "[g]ood police practice often requires          postponing  an  arrest,  even   after  probable  cause  has  been          established, in order  to place the suspect under surveillance or          otherwise develop further evidence necessary to prove  guilt to a          jury."    Id. at  431.   The  law enforcement  response  here was                    ___          measured  and restrained as  the MDEA agents on  the one hand and                                         -13-          the  troopers  on  the  other  pursued  legitimate  investigative          techniques to develop an appropriate case regarding Bizier.                      In the end,  there was probable cause before the search          for  arrest on the charge of possession with intent to distribute          the  cocaine  for  which Bizier  was  convicted.    The MDEA  had          received information from the confidential informant that Bizier,          on the  day of the stop,  was travelling to Massachusetts  in his          truck  to  purchase  cocaine and  carry  it  back  to Maine  that          evening.  The  MDEA agents were  in the confidential  informant's          home when the informant received  a call from Bizier's girlfriend          telling the  informant that Bizier  would be  returning that  day          from his trip to  Massachusetts around 6:00 p.m.  The MDEA agents          provided a complete description of the truck, including its plate          numbers to the Maine troopers.  When the troopers stopped Bizier,          he was travelling in the truck  the MDEA agents had identified at          around  the time which the confidential informant told the agents          he  would be returning to Maine.  This information in conjunction          with the two controlled buys, all of which was developed within a          span  of less than two weeks, supported the existence of probable          cause  for   a  cocaine  trafficking  offense   arrest  that  day          independent of the discovery of the cocaine on Bizier's body.  As          such, the search itself  was proper as  one incident to a  lawful          arrest for  such an offense  under traditional exceptions  to the          warrant requirement of the  Fourth Amendment.  See  Robinson, 414                                                         ___  ________          U.S. at 224.                                         -14-                                         III                                         III                    Under settled Fourth Amendment  principles specifically          applicable here,  there was  sufficient probable cause  to arrest          Bizier provided both by evidence flowing from the traffic stop on          January 23 and  by evidence  flowing from the  course of  cocaine          dealing   arrangements  between   Bizier  and   the  confidential          informant o justify  the body  search of Bizier  incident to  his          lawful arrest.                    Affirmed.                    Affirmed.                                         -15-
