

                  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-
