Beruflich Dokumente
Kultur Dokumente
No. 96-1148
UNITED STATES,
Appellee,
v.
DAVID P. BIZIER,
Defendant - Appellant.
____________________
____________________
Before
_____________________
Law
___
Assistant
United States
Attorney,
with
brief for
____________________
____________________
WOODLOCK,
WOODLOCK,
appeal from
District Judge.
District Judge.
_______________
a criminal judgment
distribute cocaine is
a warrantless
whether a motion
body search
sole
for possession
in
The
issue in
with intent
to suppress the
conducted immediately
We
find there
this
to
subject
seized
before the
was probable
cause,
the search.
I
I
The
defendant-appellant
David
P.
Bizier
became the
told
Maine Drug
Agent Joseph
in Lewiston,
Maine.
on
January
12, 1995
informant received
and January
19,
1995.
the apartment
The confidential
Bizier's girlfriend on
January 23, 1995 while Bradeen and other MDEA agents were meeting
pick
up some
had gone
cocaine and
to Massachusetts in
would be
-2-
his truck
returning around
of the
the
to
6:00 p.m.
a description of
the
truck and
Maine State
about
Police
stopped by
6:00 p.m.
dispatcher
that
there
were
narcotics
in
the
truck,
testified
it took Bizier an
after being
police
directed to
vehicle.
pupils.
do so
Bizier
by the
flashing
appeared glassy
lights of
eyed
with
and
Bizier consented
front seat.
the
pinpoint
to a
to pull over
was a small
A police dog
narcotics in the
facility to
secure the
truck pending
application for
a search
to
arrest
Bizier
for
cocaine
distribution,
Trooper
-3-
Granger
which
Bizier was
Bizier's motion
Judge
Hornby
Magistrate
acting
on
Judge Cohen.
the
Report
Bizier
and
was denied by
Recommendation
of
II
II
Considering
search,
it is
authorities
supported the
only
the
evidence available
supported
the
body search of
arrest,
Bizier.
known to
an
arrest
The
before
the
law enforcement
which
in
turn
information provided
which,
standing alone
separate law
an
and irrespective
of whether there
was a
cause for
girlfriend of
corroborated
a trip south to
by his
return north
at about
the
of the drug,
time expected,
Before
turning
to
specific
discussion
the
to these circumstances, we
-4-
of
A.
A.
An officer may
there
is
"probable
cause
committed or is committing
to
believe
that
the
suspect
has
Mart nez_________
Molina, 64 F.3d 719, 726 (1st Cir. 1995) (citing United States v.
______
_____________
The inquiry
is "not whether
420 U.S.
there was
there
was probable cause for the arrest." Watson, 423 U.S. at 417.
______
To
demonstrate
establish
that "at
probable
the
warrant a
prudent person
committed
or
Cleveland, 106
_________
States v.
______
denied,
______
was
time of
the
the
government
arrest, the
must
facts
and
in believing
committing an
F.3d 1056,
cause,
that
offense."
Torres-Maldonado, 14
________________
F.3d 95,
the defendant
United States
_____________
1997) (citing
105 (1st
had
v.
United
______
Cir.), cert.
_____
115 S. Ct. 193 (1994)); see also Beck v. Ohio, 379 U.S.
_________ ____
____
89, 91 (1964).
"collective
involved."
1986)
Probable
knowledge
and
information
of
all
the
on the
officers
form the
basis of probable
-5-
arrest.
See
___
United
______
v. Garrison, 480 U.S. 79, 85 (1987)); see also Smith v. Ohio, 494
________
________ _____
____
U.S.
may
not
precede
an
is "axiomatic that
arrest
justification") (quoting
(1968)).
However, whether
and
Sibron v.
______
serve
New York,
________
an incident search
as
392
part
of
its
U.S. 40,
63
to or
affect the
existed prior to
the search.
B.
B.
Once
enforcement
person
authorized
to
personnel may
of an
arrestee.
make
conduct a
lawful
warrantless search
"The justification
arrest,
or reason
law
of the
for the
[both] on
[and] on
use at
trial."
Robinson,
________
414 U.S.
at 234.
The
for later
permissible
purposes
evidence
generally
destructible
but
evidence."
also
specifically
United States
the
"seizure
of
v. Uricoechea-Casallas,
_______________
___________________
C.
C.
-6-
Two
separate
but,
here,
intertwined
sources
of
evidence--the information
information
flowing
arrangements
from
between
the
Bizier
and
course
the
of
cocaine
dealing
confidential informant--
Last
(1996), the
term in Whren v.
_____
Supreme Court
reaffirmed that
S. Ct. 1769
so long
as officers
it is reasonable for
S. Ct. 882,
passengers
of
and temporarily
886 (1997)
out
occurred,
car
pending
completion
of
stop may
order
stop).
The
information
developed
in
connection
with
that
temporary
arrest.
truck
In
which
Whren, a
_____
the
violated certain
the
police officer
officer
had probable
traffic regulations.
cause
Upon
to
believe
in a
had
driver's hands.
and
observed defendants
convicted of various
The officer
then arrested
Court affirmed.
U.S.
-7-
here) would
it was 'a
Stating that
cause
subjective intentions
play no
role in a
probable
Fourth Amendment,
the Court
held the
of mind which is
for
long
as
the
circumstances, viewed
objectively,
justify
that
128, 138
(1978)).
stop Bizier's
car
on
the Maine
Turnpike
because
Bizier
contends,
was
Bizier
for a traffic violation, there was no probable cause for his full
discovered during
In this
cause for an
connection, Bizier
arrest supporting a
search
incident thereto can exist only for the actual offense ultimately
charged.
there
was
no
preexisting
probable
cause
and
therefore
no
As a legal proposition,
The
probable cause
justifying
a lawful
-8-
custodial arrest,
and
therefore
Amboy, 42 F.3d 809, 819 (3d Cir. 1994) ("Probable cause need only
_____
exist
as
to
any
___
offense
that
could be
_________
773
n.5 (9th
402,
cause
under
the
for any
charged
F. Supp.
offense justifying
full custodial
detention can
We need not
pause to consider
anything
beyond a
Robinson,
________
whether
simply
414
fine,1
U.S. at
236
would support
involve
body search.
n.6. (declining
to
Cf.
__
reach question
issue a
notice of
violation and
allow the
offender to
1989) (police
to make body
(1st Cir.
safety).
____________________
A speeding
violation does
not
involve a
criminal offense
the speed
limit by 30
or more.
Me.
Rev. Stat.
going more
thus
-9-
probable
These developments at
the
truck under
executed
the influence
took longer
of a
Trooper Curran
eyes
were
glassy,
told the
drug.
eyelids were
swaying.
troopers
Bizier
troopers who
hearing that it
approached Bizier,
his
Both
at the suppression
When
truck
he noted
heavy,
his
that Bizier's
pupils
inconsistent stories.
These
were
the
factors
dog called
to the
scene arrived,
it
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
presence of
____________________
incarceration in Maine.
authorizes a warrantless
2411(5).
arrest
when a law enforcement officer has probable cause and "the arrest
occurs
within
obtaining of
period
reasonably
probative evidence
likely
of . .
Id. at 2411(4).
___
-10-
to
. drug
result in
the
concentration."
probable cause
Moreover, as
we held
80
F.3d 596, 603 (1st Cir.), cert. denied, 117 S. Ct. 156 (1996), it
____________
cannot
evidence
seriously be
of marijuana
vehicle violation he
disputed
in a
that once
truck he
has
an
officer has
stopped for
found
a motor
the occupants
the truck
under
the
influence of
controlled
for driving
substance
he
2.
2.
is
if there
felony offense.
Curran
See Watson,
___ ______
pulled over
probable
Bizier
on
cause, collectively
the
known
When Trooper
Maine Turnpike,
to the
there
was
involved Maine
law
from
Bizier,
to
arrest
____________________
Bizier
for
cocaine
possession
and
Bizier
contends that
civil infraction
because possession
is a
arrest.
quantity,
also a
however,
independently
of marijuana
is
supports
an
Possession of
crime
arrest.
under
See
___
21
marijuana in any
federal law
which
U.S.C.
844.
-11-
distribution.
that at the
time of the
stop, "[t]here did exist probable cause that Bizier had committed
that
based on
no arrest
observed
that
immaterial
arrest
previous
before
those transactions.
As
we
could be
charging
was made
charged
that the
decision.
did exist
under the
circumstance.
arrest grounds
Thus,
differed from
it
is
the ultimate
based
two weeks.
on those
Thus, the
two
search
controlled buys
of Bizier
in
the
immediately
to arrest based on
U.S. at 111.
Bizier, in
oral argument,
challenged the
validity of
cause, claiming
a search
______
cause
to arrest,
______
"once formed
indefinite future,
will continue
at least if no
to exist
for the
come to light."
omitted).
Justice
As
Powell
observed
in
his
concurrence,
probable
because
felon
the passage
of time
often
-12-
will bring
new supporting
evidence";
emerges
such
probable cause
would
grow
stale only
if
at 432 n.5.
information
Here,
that
controlled buys,
weakened
the
development of
probable
cause
it
Id.
__
intervening
based
on
the
actually strengthened
buys
and the
probable
cause
arrest occurred
arrest
was not
stale in
any
long here
as
meaningful temporal
so
to render
the
sense.
The
controlled buy
probable cause to
were
prior
arrest
insupportable
opportunity
in
current arrest
Powell's
postponing
order
to
and thereby
effect
an
exploit the
In this connection, we
otherwise
right of
note Justice
an
arrest,
even
after
probable
cause
has
been
established, in order
jury."
Id. at
___
431.
The
measured
and restrained as
law enforcement
-13-
response
guilt to a
here was
the
troopers
on
the
other
pursued
legitimate
investigative
In the end,
for
the
cocaine
for
which Bizier
was
convicted.
The MDEA
had
on the
truck
to
evening.
purchase
The
cocaine and
carry
back
to Maine
in the confidential
telling the
it
in his
that
informant's
would be
returning that
day
around
he
with the two controlled buys, all of which was developed within a
span
cause
for
cocaine
trafficking
offense
arrest
that
arrest for
was proper as
such an offense
day
As
one incident to a
lawful
to the
Fourth Amendment.
U.S. at 224.
-14-
See
___
Robinson, 414
________
III
III
applicable here,
there was
principles specifically
to arrest
January 23 and
dealing
by evidence
arrangements
between
Bizier
and
course of
the
cocaine
confidential
informant o justify
lawful arrest.
Affirmed.
Affirmed.
the body
search of Bizier
incident to
his
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