United States Court of Appeals
For the First Circuit
No. 02-1611
UNITED STATES,
Appellee,
v.
MICHAEL FIASCONARO,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
[Hon. David M. Cohen, U.S. Magistrate Judge]
Before
Selya, Circuit Judge,
Coffin and Bownes, Senior Circuit Judges.
Michael A. Cunniff for appellant.
Margaret D. McGaughey, Appellate Chief, with whom Paula D.
Silsby, United States Attorney, was on brief for appellee.
December 24, 2002
BOWNES, Senior Circuit Judge. The pivotal issue in this
case is whether there was probable cause for the police to arrest
the defendant-appellant, Michael Fiasconaro, search his motor
vehicle, and seize from it $10,981 in United States currency and a
cellular telephone. The defendant appeals from the district
court's denial of his motion to suppress the currency, cellular
telephone, and incriminating statements made after his arrest. We
affirm the district court's order.1
I. The Standard of Review
The standard of review that we apply is well delineated.
We review the district court's findings of fact for clear error.
See United States v. Martinez-Molina, 64 F.3d 719, 726 (1st Cir.
1995). Because the question of probable cause is a mixed question
of law and fact, our ultimate determination is made de novo. See
United States v. Proctor, 148 F.3d 39, 41 (1st Cir. 1998). We
review the facts in the light favorable to the judgment; the denial
of a suppression motion should be upheld if a reasonable
interpretation of the record supports it. See United States v.
McCarthy, 77 F.3d 522, 529 (1st Cir. 1996).
1
The hearing on the facts was held before Magistrate Judge
David M. Cohen. The district court approved and adopted the report
of the magistrate judge which recommended that the motion to
suppress be denied.
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II. The Indictments
Before we delve into the facts on probable cause, there
is a question arising from the filing of a criminal complaint by
Drug Enforcement Administration ("DEA") agent, Jay Stoothoff, on
June 23, 2001. Count One of the complaint charged three persons,
Murray D. Spaulding, William Albright and the defendant with
conspiracy to possess and distribute cocaine. The magistrate judge
struck "Albright from the complaint, finding no probable cause as
to him." The criminal complaint was followed by a six-count
indictment on July 18, 2001. Count One charged Murray D. Spaulding
and the defendant with conspiring to possess and distribute "500
grams or more of a substance containing cocaine." The five
additional counts charged Spaulding with intentionally distributing
quantities of cocaine at various places and dates within the state
of Maine. Spaulding entered into a plea bargain with the
government and is no longer in the case.
On September 4, 2001, the defendant moved to suppress the
cellular telephone and $10,981, as well as incriminating statements
he made to the police after his arrest. The district court denied
the motion and the defendant entered into a conditional guilty
plea, reserving his right to appeal the denial of his motion to
suppress. The defendant was sentenced on May 8, 2002, and this
timely appeal followed.
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III. The Facts
A. The Preliminary Events
As will become evident, the key player in this case is a
confidential informant known only as CI 2182. Case Agent William
Deetjen, who had been a police officer for thirty-two years and
worked for the Maine Drug Enforcement Agency ("MDEA") for twelve
years, testified at the hearing on the defendant's motion to
suppress that in January of 2001, a person was arrested on federal
health care fraud and drug charges. This person was addicted to
the pain relievers Percocet and OxyContin and had information about
drug dealing in the Sanford, Maine area. After pleading guilty,
he began to cooperate with the government and was debriefed on
March 29, 2001.
Deetjen testified that the informant told him that
Spaulding was selling cocaine in the town of Lyman, Maine, which is
next to Sanford. The informant told Deetjen the address of
Spaulding's house and that he had various persons drive him twice
a week to his supplier in Massachusetts from whom he bought cocaine
in quarter pound packages. The informant and Spaulding had met
earlier but had lost contact until February 2001, when the
informant and his sister went to Spaulding's house so his sister
could buy cocaine. According to Deetjen, the informant told him
that Spaulding told the informant he could buy cocaine at any time.
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After the informant's initial debriefing, Deetjen
testified that he called Officer Todd Prough in Massachusetts, who
was a member of the "cross border initiative," a task force of DEA
and local law enforcement officers who were investigating the flow
of drugs in and out of Massachusetts. Deetjen told Prough that he
was investigating a person who had substantial amounts of cocaine
in Maine and that this person's drug source appeared to be in
Massachusetts.
Deetjen testified that to show his cooperation the
informant made controlled purchases of cocaine from Spaulding at
his home. The informant also made controlled purchases of crack
cocaine from other people in the Sanford and Wells areas of Maine.
Deetjen told Prough he considered the informant to be "very
reliable" and was "the best cooperating defendant I have worked
with." Deetjen further testified that the informant's information
had resulted in federal indictments of five or six people, all of
whom pled guilty. Because of Deetjen's assessment of the
reliability of the informant, Prough also accepted the informant as
reliable.
On April 5, 2001, the informant set up a controlled buy
from Spaulding. He made a recorded call from the MDEA's office in
Lyman to Spaulding who told him to come to his house. After
searching the informant and his car, Deetjen gave the informant
currency that had been photocopied, and equipped him with an
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electronic listening device. The informant drove to Spaulding's
house followed by MDEA agents. The agents overheard the sale of
$250 worth of cocaine by Spaulding to the informant. The informant
said he would want the same amount each week. Spaulding said that
this would be no problem. The informant then drove to a
prearranged meeting place where he delivered the cocaine he had
bought to Deetjen.
Another controlled purchase using the same format took
place on April 12, 2001. There was, however, additional
conversation between the informant and Spaulding which was recorded
and heard by the agents. The informant complained that Spaulding
had used the informant's sister to provide transportation.
Spaulding replied that she was a grown woman who could make her own
decisions but said that if she agreed not to buy any more cocaine
he would not use her again for transportation. The informant then
said he would drive Spaulding himself. After being assured that
the informant had a "legal car," Spaulding told the informant that
the trip to and from Massachusetts took three hours. The
groundwork had been laid for the informant to drive Spaulding to
Spaulding's cocaine source. On June 5, 2001, a recorded telephone
call to Spaulding was made. This call was to confirm that the
informant would drive Spaulding to his Massachusetts source the
next time Spaulding made the trip. The phone was answered by
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Spaulding's girlfriend who told the informant that Spaulding had
already left for Massachusetts.
Another recorded call was made the next day. The
informant chided Spaulding for going to Massachusetts without him
and not giving him a chance to make money. Spaulding told the
informant that he made the trip when it was necessary and that he
had tried to call the informant but could not reach him. Spaulding
also agreed to a drug sale. The informant was wired and given
money that had been photocopied. As usual, MDEA agents followed
the informant to Spaulding's house.
There was a monitored conversation on Spaulding's porch
between the informant, Spaulding's girlfriend and Spaulding.
During the conversation Spaulding said he had to take his latest
trip to Massachusetts alone because he could not contact anyone to
drive him. The informant said that he would have liked to earn the
money. There was then a discussion of the purchases of kilograms
and half kilograms of cocaine. Spaulding said that half a kilogram
cost him $10,000 and that the informant could buy it for $13,000.
Spaulding said that his best week of drug sales made him a profit
of $8,000. Spaulding sold the informant an ounce of cocaine for
$1,000, which the informant subsequently turned over to MDEA
agents. The last controlled buy was on June 20, 2001. Spaulding's
girlfriend answered the recorded call to Spaulding's house and said
that Spaulding had gone to Foxwoods casino. She told the informant
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she had "between a half and three quarters." Deetjen said this
meant that she had between one-half to three-quarters of an ounce
of cocaine. The informant told her that he needed more and would
wait for Spaulding. She replied that she had enough to last her
for the meantime.
The informant was equipped with an electronic listening
device by the MDEA agents, who followed him to Spaulding's house.
When the informant arrived, Spaulding was there. The agents
overhead the sale of an eighth of an ounce of cocaine to the
informant. Deetjen, however, failed to activate the recorder, so
there was no record of the conversations between Spaulding and the
informant. After the informant returned to the MDEA office,
Deetjen had him make a recorded call to Spaulding confirming the
basis of the sale.
Deetjen and Prough testified that after each of the
controlled buys, Deetjen called Prough and gave him all the
details. It was Deetjen's opinion that the amounts of drugs
involved were getting larger and that the source was located in
either Lowell or Lawrence, Massachusetts. Prough evidently agreed
with this analysis.
B. The Main Event
After a series of recorded telephone calls between the
informant to Spaulding or people at Spaulding's house, it was
agreed that the informant would drive Spaulding to Massachusetts.
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On June 2 there was a recorded conversation between the informant
and Spaulding during which the following remarks were made by
Spaulding. The informant told Spaulding that he had been to
Portland and a buyer wanted three ounces of cocaine. Spaulding
said, "got them right here." Spaulding then said, "I'm ready to go
too. I need to dump these to go. My guy's waiting for me to come
down right now."
Deetjen testified at the suppression hearing that the
phrase "my guy" meant his cocaine source, and that the phrase "dump
these" meant that he needed to sell the cocaine he had before
driving to Massachusetts to buy more. Prough testified that
usually drug dealers do not pay in advance for the drugs they buy,
but instead sell the drugs they have and use the proceeds to pay
their source.
Spaulding told the informant to meet him within a half an
hour. The informant left Spaulding's house to change his clothes
for the trip. Deetjen testified that he discussed the conversation
with the informant and was told that Spaulding wanted him to drive
Spaulding to Massachusetts to obtain cocaine. Deetjen relayed the
information to Prough. He described the make and license plate of
the informant's car, told Prough that the informant would be wired
and asked for help in the surveillance. Deetjen left it to Prough
to decide whether to arrest the source.
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Agents of the MDEA inspected the informant's car and then
wired it so the conversations between Spaulding and the informant
could be overheard and recorded. Agents Kenneth Pike and Gerald
Hamilton were assigned to follow the informant's car during the
drive to Massachusetts. Shortly after the informant and Spaulding
left for Massachusetts the transmitter in the informant's car was
dislodged so Hamilton could hear nothing. When the informant's car
stopped briefly at a Burger King and Spaulding went inside,
Hamilton told the informant that the transmitter was not working
and the informant got it fixed before they started up again. The
remarks by Spaulding were incriminating to say the least.
Spaulding identified his connection to the source and how the
connection was paid. Spaulding also told the informant that he put
property in other people's names so that it could not be seized.
Prough had a surveillance team assembled at a rest area
on Route 95 South, just over the border in Massachusetts. He was
in constant communication with the other agents and police officers
involved. Methuen Police Detective Thomas Donovan, who was part of
the Massachusetts surveillance team and had been informed of the
type and license plate number of the informant's automobile,
spotted the car traveling south on Route 95. In Peabody, the car
left Route 95 for Route 1. At about 6:30 p.m., Hamilton, who was
following the informant's vehicle, saw it turn into a parking lot
before the Hilltop Restaurant and notified Prough. Hamilton then
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lost sight of the car, but Prough, who was driving directly in
front of it, and Donovan saw the car turn into the Border Café, a
Mexican restaurant.
The tape of the wire transmission that then occurred was
played at the suppression hearing. Spaulding told the informant
that he might want to go somewhere else because he would have to
wait a minute. Hamilton testified that he heard a door shut and
heard someone get out of the car. Prough heard a radio report by
Donovan from the other end of the parking lot that he saw Spaulding
get out of the informant's car and go inside the Border Café.
Donovan followed Spaulding into the restaurant and saw him look
around, but he left without meeting anyone and got back into the
informant's car. Hamilton heard Spaulding tell the informant to
shut off his lights because "[h]e ain't here yet."
Both Hamilton and Prough overheard Spaulding get a cell
phone from the car. Donovan saw the informant's car go to the back
of the parking lot. Spaulding got out of the car, went to a wooden
guardrail and began using the cellular phone. A short time later,
Hamilton and Prough heard, over the transmitter, Spaulding return
to the car and tell the informant, "the guy is on his way" and
would be there in five minutes.
About fifteen minutes later, Donovan saw a green Honda
Accord pull into the parking lot. He reported this to Prough.
There were two white males in the Honda. The passenger had dark
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hair and was nearly twice the size of the driver. At the hearing
Donovan identified the driver as Michael Fiasconaro of Lynn,
Massachusetts. Donovan testified that the Honda passed Spaulding
who had gotten out of the informant's car and stopped in an access
road between the parking lots and the exit. Donovan saw Spaulding
walk over to the Honda, open the door and get into the rear
passenger seat. The informant made a report to the same effect
over the wire. Donovan testified that he saw Spaulding lean
forward between the two front seats and talk to the occupants of
the Honda, then get out and run back to the informant's car.
Spaulding was in the Honda not more than forty seconds.
Prough testified that it was his opinion that, taking all
of the circumstances into consideration, including the brevity of
the encounter between Spaulding and the occupants of the Honda,
that a drug deal had taken place. He believed that the Honda
contained money, or drugs, or both.
Hamilton heard the informant say over the wire, "Okay,
we're all set. We're taking off." Both Deetjen and Prough
testified that this meant that the sale had been made and the
informant and Spaulding were going back to Maine. The defendant's
vehicle went in another direction. Prough radioed the police in
Saugus, Massachusetts, and asked them to stop the defendant's car
with a marked cruiser. This was done. The defendant and the
passenger, William Albright, were immediately arrested. The car
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was searched and the police seized $10,981 in currency, some of
which was taken from the defendant's person, but most was found
underneath the front passenger seat. The police also seized a
cellular telephone that was connected to the car's cigarette
lighter. The defendant admitted to the police that he owned the
Honda, the money and the telephone.
As soon as the informant's car crossed over the border
into Maine, MDEA agents stopped it, searched it and seized half a
pound of cocaine.
We end this section of the opinion by noting that the
record does not show either directly or indirectly that either
Massachusetts or Maine was mentioned on the tapes of the recorded
conversations. And the agents testifying at the hearing stated
they had not seen any drugs or money change hands.
IV. The Defendant's Argument
The defendant asserts that there was no probable cause
for the police to arrest him, search his motor vehicle, and seize
therefrom $10,981 and a cellular telephone. A warrentless arrest,
like the one at issue here, must be based on probable cause. See
United States v. Watson, 423 U.S. 411, 417 (1976); United States
v. Link, 238 F.3d 106, 109 (1st Cir. 2001); United States v.
DeMasi, 40 F.3d 1306, 1312 (1st Cir. 1994). Generally, if an
arrest is not based on probable cause, then statements and evidence
obtained as a result of the arrest are inadmissible. See Brown v.
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Illinois, 422 U.S. 590, 601-02 (1975); Wong Sun v. United States,
371 U.S. 471, 484-86 (1963); United States v. Jorge, 865 F.2d 6, 9-
10 (1st Cir. 1989). In United States v. Santana, 895 F.2d 850, 852
(1st Cir. 1990), a case very similar to this one, probable cause
was defined as follows:
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 F.2d 1020, 1023 (1st Cir. 1987)
(quoting Beck v. Ohio, 379 U.S. 89, 91
(1964)). In other words, we consider the
totality of the circumstances in evaluating
whether the government demonstrated a
sufficient "'[p]robability . . . of criminal
activity,'" Id. at 1023-24 (quoting Illinois
v. Gates, 462 U.S. 213, 235 (1983)).
"Probability is the touchstone . . . . [T]he
government need not show 'the quantum of proof
necessary to convict.'" Id. at 1023 (quoting
United States v. Miller, 589 F.2d 1117, 1128
(1st Cir. 1978)).
We have no trouble deciding that there was probable cause
here. In fact it overflowed. Officer Prough's probable cause
determination was supported by three pillars of evidence. The
first was the CI's statements to Officer Deetjen that the purpose
of Spaulding's trip to Massachusetts was to purchase cocaine. The
reliability of an informant is critical to our determination of
whether that informant's statements can support a police officer's
finding of probable cause. See Link, 238 F.3d at 109-10; United
States v. Khounsavanh, 113 F.3d 279, 284 (1st Cir. 1997) ("an
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informant's 'veracity,' 'reliability' and 'basis of knowledge' are
all highly relevant in determining the value of his report."
(quoting Gates, 462 U.S. at 230)). There is no doubt that Officer
Deetjen had grounds for believing that the CI in this case was
reliable. In Officer Deetjen's estimation this informant was the
best he had ever worked with:
He was always on time, as directed, showed up
where he was supposed to be as directed, was
self-motivating as far as contacting people
and . . . going on his own to visit people to
set up things that we could later resurrect
with phone calls. Again, he was the best
cooperating defendant I've ever worked with.
Deetjen testified that the informant's cooperation resulted in
federal indictments of five or six persons, all of whom pleaded
guilty. See Link, 238 F.3d at 110. Even more important, Deetjen
was able to corroborate specific information provided by the CI.
See Gates, 462 U.S. at 244 ("Because an informant is right about
some things, he is more probably right about other facts. . . .").
It was the CI, for example, who initially informed Deetjen about
Spaulding's drug trafficking. Deetjen was then able to confirm the
CI's claims regarding Spaulding's drug trafficking via the
controlled purchases. After each of the controlled purchases, the
CI provided Deetjen with details about the transaction; details
which were later verified by electronic recordings or follow-up
telephone calls from the CI to Spaulding. In short, Officer
Deetjen had a well founded belief that the informant was reliable.
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The defendant attacks this first pillar of evidence by
claiming that Officer Prough could not rely on the informant's
statement that the purpose of Spaulding's trip to Massachusetts was
to purchase cocaine. This argument requires some discussion. As
we understand it, the defendant contends that when determining the
existence of probable cause for an arrest, a district court may
consider only the information possessed exclusively by the
arresting officer and his on-scene colleagues, and not the
collective knowledge possessed by all the officers involved in the
investigation. Applying this theory to the case, the defendant
argues that the arresting officer, Prough, did not have probable
cause to make an arrest because he failed to make his own
determination of the CI's reliability, and instead relied on an
assessment of the informant's reliability made by Deetjen, who was
the informant's handler, but was not at the scene of the
defendant's arrest.
Controlling precedent directly contradicts the
defendant's argument. In United States v. Taylor, 162 F.2d 12, 18
n.2 (1st Cir. 1998), this court found that information regarding an
informant's reliability could be imputed from one desk officer to
field officers cooperating in an investigation, even when the desk
officer was not the confidant's usual handler, and therefore in
less of a position to make judgments about the informant's
reliability than Officer Deetjen.
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The defendant has overstated the case he cites in support
of his argument, United States v. Cook, 277 F.3d 82 (1st Cir.
2002). Cook does not stand for a hard and fast rule that a
probable cause determination may include only information known to
officers present at the scene of the arrest. Id. at 86. Rather,
we read Cook to offer one fact-specific scenario of how the
collective knowledge principle may be applied without promoting
illegal searches. Id. Moreover, we have recognized applications
of the collective knowledge principle that is broader than what the
defendant now urges us to adopt; we have said, for example, that
"the focus is upon the collective knowledge possessed by, and the
aggregate information available to, all the officers involved in
the investigation." See United States v. Winchenbach, 197 F.3d
548, 555 (1st Cir. 1999); see also Link, 238 F.3d at 109 (allowing
collective knowledge of officers "involved" in arrest).
Accordingly, Cook does not set the maximum reach of the collective
knowledge principle as the defendant suggests in his brief. The
district court, therefore, did not err in holding that Prough was
allowed to rely, in part, on Deetjen's assessment that the
informant was reliable.
The second pillar of evidence supporting Prough's
probable cause determination was the incriminating statements made
by Spaulding to the CI during the car ride from Maine to
Massachusetts. During the conversation, Spaulding described his
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connection to his drug source and how he was paid. Spaulding also
told the informant how he put property in other people's names so
that it would not be seized. These incriminating statements were
transmitted in real-time to the officers involved in the
investigation, including Prough.
The final evidentiary pillar consisted of the
observations made by the police in the parking lot of the Mexican
restaurant in Massachusetts. See United States v. Arvizu, 534 U.S.
266, 273 (2002) (officers permitted "to draw on their own
experience and specialized training to make inferences from and
deductions about the cumulative information available to them that
'might well elude an untrained person.'") (quoting United States v.
Cortez, 449 U.S. 411, 418 (1981); Martinez-Molina, 64 F.3d at 729.
Once Spaulding and the informant arrived in the parking lot,
Spaulding exited the car and used his cellular phone. Spaulding
then reentered the car and Prough heard him say over the
transmitter, "the guy is on his way." Shortly thereafter, a green
Honda pulled into the parking lot. Spaulding was seen leaving the
informant's car and going to the Honda. He was in the Honda not
longer than forty seconds. While in the Honda, Spaulding was
observed leaning between the front seats of the Honda, speaking
briefly to the occupants and then quickly returning to the
informant's car. Although none of the observing officers saw money
or drugs change hands, it was the opinion of the officers that
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based on their experience, there had been a purchase of drugs by
Spaulding and what had transpired was typical of a drug
transaction. In short, there consisted of ample probable cause
to support the warrentless arrest of the defendant. The
defendant's incriminating statements made after his arrest are
therefore admissible. See United States v. Curry, 751 F.2d 442,
450 (1984). It is also well established that the defendant's
lawful arrest permits the police to search his person and the
passenger compartment of his vehicle. See New York v. Belton, 453
U.S. 454, 460 (1981); United States v. Doward, 41 F.3d 789, 792-93
(1st Cir. 1994); see also Winchenbach, 197 F.3d at 552 (1st Cir.
1999) ("[I]t is settled beyond peradventure that a search of an
individual's person made incident to a valid arrest is itself
valid, despite the absence of an arrest warrant."). Thus, the
$10,981 and cellular telephone are admissible.
We also agree with the district court that there was an
independent basis for upholding the search of the defendant's
vehicle. In a case that goes back to prohibition days, the Supreme
Court held that a warrantless search of an automobile based upon
probable cause to believe that the vehicle contained evidence of a
crime did not contravene the Fourth Amendment's warrant
requirement. Carroll v. United States, 267 U.S. 132, 153 (1925).
This ruling was reaffirmed in California v. Acevedo, 500 U.S. 565,
569 (1991). We have held to the same effect. See United States v.
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Staula, 80 F.3d 596, 602 (1st Cir. 1995); Martinez-Molina, 64 F.3d
at 730. The facts described above demonstrate that Officer Prough
had probable cause to believe that the defendant's vehicle
contained evidence of a drug transaction. Therefore, the search of
the defendant's vehicle and seizure of his currency and cell phone
were lawful, and the evidence admissible.
The defendant makes one final argument which merits
discussion, albeit briefly. The defendant contends that the
district court erred in finding probable cause as to him because it
found that there was no probable cause to arrest Albright, the
passenger in the defendant's car. The defendant argues that he and
Albright were identically situated and therefore the same ruling
should have been made as to him. Whether the district court was
correct in its ruling as to Albright is not for us to decide in
this case. Our inquiry here is limited to whether, at the time of
the arrest, Officer Prough had probable cause to arrest the
defendant and search his vehicle. See United States v. Reyes, 225
F.3d 71, 75 (1st Cir. 2000); United States v. Diallo, 29 F.3d 23,
26 (1st Cir. 1994). Having answered this question in the
affirmative, we need not, and do not, delve into the district
court's ruling regarding Albright.
The judgment of the district court is affirmed.
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