United States Court of Appeals
For the First Circuit
No. 05-1163
UNITED STATES,
Appellee,
v.
HANSANA VONGKAYSONE,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. George Z. Singal, U.S. District Judge]
Before
Torruella, Circuit Judge,
Campbell, Senior Circuit Judge,
and Howard, Circuit Judge.
Henry W. Griffin for appellant.
F. Mark Terison, Senior Litigation Counsel, with whom Paul
D. Silsby, United States Attorney, was on brief for appellee.
January 12, 2006
CAMPBELL, Senior Circuit Judge. Defendant-appellant
Hansana Vongkaysone appeals from his conviction in the United
States District Court for the District of Maine. Vongkaysone
entered a conditional guilty plea to one count of conspiracy to
distribute and to possess with intent to distribute cocaine and
fifty grams or more of cocaine base in violation of 21 U.S.C. §§
846, 841(a)(1), and 841(b)(1)(A). On appeal, Vongakaysone argues
that the district court erred in denying his motion to suppress
evidence seized in a search of his person and automobile. We
affirm his conviction.
I. Background
The facts of the case, set out in the recommended
decision by the magistrate judge in United States v. Vongkaysone,
2004 WL 2011447 (D. Me. 2004), are summarized below. On January
11, 2004, a confidential informant told United States Drug
Enforcement Agency ("DEA") special agent Paul Buchanan that a
person named "Jimmy" was going to travel from Portland, Maine to
Massachusetts and return with crack cocaine. Buchanan already
knew, based on past investigation, that Jimmy's true name was Huang
Nguyen. DEA agents had bought crack from him on several prior
occasions.
Buchanan called the Maine State Police ("MSP") and put
them on the lookout for a white car Nguyen had driven during prior
drug purchases. The MSP found the vehicle, stopped it and searched
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it, finding two ounces of what was later confirmed to be cocaine
base. The MSP arrested Nguyen and an Asian female, Dong Lee.
Nguyen agreed to cooperate and told Buchanan that he was a runner
for Lee and, for the past three or four months, had been making
three or four trips a week to Lowell, Massachusetts to buy two
ounces of crack from a person he knew as "Boy" or "Little Boy."
The next day, Nguyen placed a recorded call to Little Boy
in Lowell to set up a buy of two ounces of cocaine base at a
certain parking lot in Lowell. Buchanan went with Nguyen to the
location. Shortly after their arrival, a silver Honda Prelude,
just as Nguyen had described, arrived and pulled up next to
Nguyen's car. Agents seized and searched the car's occupant, whom
Nguyen identified as Little Boy. The agents seized two ounces of
what seemed to be crack cocaine from Little Boy's pocket. Little
Boy was identified as Eddy Phanthai, and he agreed to cooperate.
Buchanan had never heard of nor dealt with Phanthai before his
arrest.
On January 16, 2004, several DEA agents, including
Buchanan, Steven Thibodeau, and Sheila Wetherbee, interviewed
Phanthai pursuant to a proffer agreement. Phanthai told them that
his source of crack was someone he knew as "Na" and that he would
meet Na once a week to buy 10-15 ounces and sometimes as much as
half a kilo of cocaine powder. He said that he would pay about
$800 an ounce for the powder, which he then cooked into crack
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cocaine for resale in Maine. Buchanan believed that Phanthai's
account of his activity matched what Nguyen had told Buchanan.
Phanthai described Na as a light-skinned Asian man about
thirty years of age, clean-cut, decently dressed, with short hair,
about five feet seven inches and approximately 160 pounds.
Phanthai said that Na usually wore a collared shirt, slacks, and
nice shoes and that he often wore a nice jacket. Phanthai said he
knew that Na was from Rhode Island and usually drove a tan-colored
Nissan with Rhode Island plates. Phanthai said that he would
usually call Na on a Sunday and meet him the next day in Lowell,
either inside or in the parking lot of a Cambodian or Vietnamese
restaurant. Na picked the meeting place and usually did not tell
Phanthai where it was until a few minutes before the exchange.
Phanthai said that Na was always on time and sometimes a few
minutes early, and that Na usually arrived before he did.
Phanthai further described that Na would usually be
inside the restaurant, so Phanthai would go to Na's car, put the
money in the glove compartment and remove the drugs. Sometimes,
however, Na would be in his car in the parking lot, and Phanthai
would get into the car with Na and exchange the money and drugs in
person. Phanthai told the agents that Na usually came alone but
sometimes arrived with his cousin, an Asian male who was five feet
seven inches tall, with short hair and dress similar to Na's.
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Phanthai said that he usually spoke English to Na and his cousin
but sometimes spoke Laotian.
After his interview with the agents, Phanthai made a
recorded phone call to someone he said was Na to order cocaine.
The agents attempted to trace the phone number but up to the time
of defendant's arrest they had yet to confirm independently the
identity of the recipient of the call. From January 18 through
January 23, 2004, Phanthai made a series of recorded calls to the
person he said was Na. The calls were made from the Old Colony
Correctional Center in Bridgewater, Massachusetts. Buchanan noted
that the person Phanthai was calling seemed to know Phanthai and to
have spoken to him before. An arranged meeting fell through twice.
On January 23, 2004, at about 4:40 p.m., Buchanan
recorded a final call between Phanthai and the man Phanthai
identified as Na. During the call, Phanthai and Na arranged a
meeting for 6:45 that evening at the Thanh Thanh Restaurant on
Chelmsford Street in Lowell. Phanthai ordered half a kilo of
cocaine. There was no further contact between Phanthai and Na.
Phanthai did not ask whether Na would be traveling alone. Buchanan
testified that in making arrangements for drug deals, such a
question would not be asked and that asking too many questions
might scare off the dealer.
Buchanan told the other agents about the arranged drug
deal and left the jail at about 6:15 to drive from Bridgewater to
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the Thanh Thanh Restaurant in Lowell. He was in contact with the
agents as he drove. Between 5 and 5:30 p.m., the agents involved
in the upcoming operation gathered at the Lowell office of the
Cross-Border Initiative ("CBI"), a DEA task force made up of local,
state and federal officers. Agents were given copies of a written
operational plan, and Wetherbee briefed them about the operation,
including what Phanthai had said about the suspects' physical
appearances.
Thibodeau was present at the briefing, which he recalled
took about 15 minutes, and he remembered the agents were told that
at least one Asian male and perhaps two were expected to arrive at
the restaurant in a car with Rhode Island plates. The car was
likely to be a tannish-colored car similar to a Nissan and was
expected to arrive on time at about 6:45 p.m. The agents were told
that the suspect was prepared to sell cocaine to Phanthai. The
operational plan was to conduct surveillance at the scene, look for
suspicious activity and arrest as appropriate the people matching
the descriptions they had received.
At about 6:20 p.m., the agents left the CBI office in at
least three cars and drove to the restaurant in order to conduct
surveillance. Chelmsford Street is a busy area with a great deal
of traffic. The restaurant has two entrances to its parking lot,
one at the rear from Powell Street and one at the front off of
Chelmsford Street. Agents Wetherbee and John Bosse parked on
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Powell Street where they could see the rear entrance to the
restaurant and had an obscured view of the parking lot. Agents
Gregory Boucher, Barry Kelly and two others parked in the lot of a
business across Chelmsford Street with a clear view of the front
entrance to the restaurant and its parking lot. Agents Thibodeau,
Greg Colletti and Bill Hanlin parked in the parking lot of a Store
24 next to the restaurant with a clear view of its parking lot.
The agents were in radio contact with one another during the
operation in order to compile their observations from different
angles. It was January and dark outside, but the parking lot of
the restaurant was lit. Phanthai was not at the scene.
At 6:44 p.m., Thibodeau saw a dark Acura with Rhode
Island plates pull into the front entrance to the restaurant. Two
Asian males were inside it. The car parked in the left rear part
of the parking lot, with the driver's side facing Thibodeau.
Shortly thereafter, at about 6:55 p.m., a red Honda pulled into the
Powell Street entrance and backed into a space near the Acura.
Thibodeau saw a man get out of the passenger seat of the Honda and
walk over to the passenger seat of the Acura. The Honda passenger
leaned into the rolled-down window of the Acura and appeared to
engage in conversation with the Acura passenger. Thibodeau did not
observe anything being exchanged and could not overhear the
conversation. Boucher also observed this interaction and thought
that it lasted between thirty seconds and a minute. The Honda
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passenger went back to the Honda, which then drove away through the
Powell Street exit.
The agents discussed over their radios whether a drug
transaction had occurred. Wetherbee and Bosse watched the Honda
leave the parking lot, tried to read the plate number and called it
out to one another. No one wrote down the number or suggested that
the Honda be followed or stopped. Wetherbee later testified that
though she did not remember the license number of the car, she was
certain that it had Massachusetts plates.
After the Honda left, Thibodeau saw the Acura with Rhode
Island plates back into the space that the Honda had been in,
facing the restaurant. The Acura was about ten feet away from
where Thibodeau was parked. At this time, the parking lot held no
other cars in which people were sitting and waiting. During the
surveillance, no other cars with Rhode Island license plates were
seen in the parking lot. After a minute or so, the Acura moved
across the parking lot and stopped facing the restaurant. The
driver got out, went to the window of the restaurant, looked in,
then looked around the parking lot and returned to the car. The
agents conferred via radio abut the significance of what they had
seen and their belief they had the right people. Hanlin and
Colletti gave the command to move in. The agents drove their
vehicles toward the Acura and boxed it in, with Thibodeau's vehicle
behind it, Boucher's vehicle next to the driver's side, and
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Wetherbee's vehicle next to the passenger's side. An agent ordered
the occupants out of the vehicle, and they complied.
Wetherbee placed her hands on the passenger as he exited
the Acura and led him to the hood of her own car. He had short
hair, was about five feet seven inches tall, wearing a nice jacket,
a button-up dress shirt and jeans. Despite the fact he was wearing
jeans and not dress pants, Wetherbee thought he fit the description
that Phanthai had given. She asked him his name, which he gave as
Hansana. She thought that "Na," the last two letters of his name,
could be his nickname and asked him if he went by "Na." He did not
answer and said he did not know when she asked whether he had any
nicknames. She retrieved his wallet from his back pocket, in which
there was identification listing him as Hansana Vonkaysone. Bosse
reached into Hansana's pocket and pulled out what looked like a
great deal of money, but because Hansana complained he was cold,
the agents did not immediately count the money. Hansana was
handcuffed a few minutes later.
As Wetherbee approached the passenger side of the Acura,
Boucher, with his gun drawn but pointed downwards, and Colletti
approached the driver's side and ordered the driver to put his
hands up. He immediately complied, and Boucher holstered his gun.
The driver left the car, and Boucher and Colletti handcuffed him.
Boucher performed a "visual sweep" of the car and saw no other
occupants. He did not actually search the vehicle. Once the
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driver was handcuffed, Boucher left him with Colletti and returned
to the CBI office. After Hansana was secured, Wetherbee asked that
the driver face her so that she could see him. She observed
another Asian male, thinner than Hansana but with a dress and
hairstyle similar to Hansana, in keeping with Phanthai's
description. His name was later established to be Phonthep
Vongkaysone. He is not involved in this appeal.
Thibodeau cleared the vehicle by looking through the rear
window and passenger side door to check for other passengers.
There were no other occupants, but he saw a brown plastic shopping
bag on the floor of the front passenger seat. He looked at it and
noticed that it held a white powdery substance that looked like
cocaine. He told the other agents of the discovery and gave the
bag to Hanlin. No one told Thibodeau that the suspects were under
arrest before he looked inside the bag, nor had the suspects
consented to a search.
Buchanan arrived at about 7 p.m., which he estimated was
within five minutes of the detention of the suspects. Lowell
police officers transported the defendants to the Lowell Police
Department. The two men were indicted on July 28, 2004 on one
count of conspiracy to distribute and to possess with intent to
distribute cocaine and fifty grams or more of cocaine base in
violation of 21 U.S.C. §§ 846, 841(a)(1) and 841(b)(1)(A). The co-
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defendants filed motions to suppress the evidence seized during the
arrest and search of their persons and the car.
A magistrate judge held a joint hearing on the motions on
September 2, 2004. On September 9, 2004, the magistrate judge
recommended that the motions be denied, and the district court
adopted that recommendation on October 13, 2004. On October 25,
2004, Hansana Vongkaysone entered a conditional guilty plea under
Fed R. Crim. P. 11(a)(2). The district court sentenced him to a
term of 240 months and ten years of supervised release. This
appeal followed.
II. Discussion
In reviewing a denial of a motion to suppress, we review
questions of law de novo and factual findings for clear error.
United States v. Khounsavanh, 113 F.3d 279, 282 (1st Cir. 1997).
Vongkaysone argues that the district court erred in denying his
motion to suppress because his removal from the Acura by Wetherbee
was, at the time, an arrest, and one without probable cause, as the
officers were relying exclusively on the information given them by
Phanthai, whose reliability was unknown, and they could not easily
corroborate that information in the dark parking lot of the
restaurant. Vongkaysone points out that the police officers were
not able to confirm that he was Na until after the initial arrest.
We find, however, that the police officers had probable cause to
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arrest Vongkaysone at the time they moved in and ordered the
occupants to exit the Acura. We therefore affirm his conviction.
"Probable cause exists when police officers, relying on
reasonably trustworthy facts and circumstances, have information
upon which a reasonably prudent person would believe the suspect
had committed or was committing a crime." United States v. Young,
105 F.3d 1, 6 (1st Cir. 1997) (citation omitted). The inquiry into
probable cause focuses on what the officer knew at the time of the
arrest, United States v. Brown, 169 F.3d 89, 91 (1st Cir. 1999),
and should evaluate the totality of the circumstances. United
States v. Reyes, 225 F.3d 71, 75 (1st Cir. 2000). "[P]robable
cause is a common sense, nontechnical conception that deals with
the factual and practical considerations of everyday life on which
reasonable and prudent men, not legal technicians, act." United
States v. Meade, 110 F.3d 190, 198 n.11 (1st Cir. 1997) (citation
and internal punctuation omitted).
In this case, although Phanthai was not a familiar
informant for the police when he told them about Vongkaysone,
various factors bolstered his credibility from the outset. First,
since he had been caught dealing in drugs, it was to his advantage
to produce accurate information to the police so as to qualify for
the leniency he sought. If the January 23 drug deal he later set
up were a mere fiction, this soon would have been apparent to the
police, and Phanthai would have been the loser. Moreover, he
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admitted to his own role in the drug dealing with Vongkaysone, thus
incriminating himself, not just Vongkaysone, in that additional
criminal conduct. A statement against interest of this type
bolsters an informant's credibility. See United States v.
Principe, 499 F.2d 1135, 1137 (1st Cir. 1974) ("The informant was
both named and was revealed as a participant in the crime. The
informant's knowledge was obtained from recent personal
observation. That [the informant] was making a declaration against
interest lends it further credence.").
Additionally, Phanthai's credibility was bolstered by
various events preceding the arrest. Not everything he said proved
accurate, but most of it did. As the district court noted, an
informant's statements need not be fully corroborated for an
officer to conclude that they are generally reliable. "[T]he risk
that [an] informant is lying or in error need not be wholly
eliminated. Rather what is needed is that the probability of a
lying or inaccurate informer has been sufficiently reduced by
corroborative facts and observations." United States v.
Winchenbach, 197 F.3d 548, 556 (1st Cir. 1999) (citation omitted).1
1
In United States v. Diallo, we said,
According to defendants, the information [provided by an
informant] was unreliable because the informant stated
that there would be three men in a red Toyota when in
actuality there were four men in two cars. The
inconsistencies between the informant's information and
the reality of the situation were not of such importance
that the information could be concluded to be incorrect.
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Here, although the police did not trace the phone number
Phanthai dialed to arrange the meeting with Vongkaysone, they
recorded a number of phone calls between Phanthai and an individual
who appeared to recognize him and eventually agreed to sell him
drugs at 6:45 on the night of January 23, 2004. These recordings,
plus other factors already mentioned, strongly supported the belief
that Phanthai was indeed in touch with the source he called "Na"
and that the arranged drug deal was as represented.
Phanthai told the officers that Na, an Asian male,
usually drove a tan Nissan with Rhode Island plates, was always
punctual or early, and sometimes had his cousin, also an Asian
male, in tow. A gray Acura with Rhode Island plates pulled into
the parking lot designated by Na in his phone conversation with
Phanthai precisely at 6:44 p.m., a minute before the scheduled
rendezvous. Two Asian males could be seen inside. No other Rhode
Island plated cars were observed in the parking lot prior to the
arrest. Thus, except for the fact the car was a gray Acura, not a
tan Nissan, what happened fitted exactly Phanthai's description of
the anticipated arrival of the drug dealer, Na, and his cousin.
The informant was correct as to the identities of three
of the four men along with the night the activity would
take place and one of the vehicles used. A tipster need
not deliver an ironclad case to the authorities on the
proverbial silver platter. It suffices if a prudent law
enforcement officer would reasonably conclude that the
likelihood existed that criminal activities were afoot,
and that a particular suspect was probably engaged in
them. 29 F.3d 23, 26 (1st Cir. 1994) (citation omitted).
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The conduct of the Acura's occupants, moreover, was not otherwise
inconsistent with Phanthai's statements about what transpired at
the past drug deals with Na. The encounter with the passenger from
the red Honda was, to be sure, an added feature, but while no drugs
were seen to change hands, the apparently purposeful arrival and,
after the brief conversation, quick exit of the Honda, was at least
consistent with what could have been another drug-related activity.
It was, therefore, reasonable for the police officers to believe
that Phanthai's information was further corroborated by the events
they witnessed in the parking lot immediately prior to their
arresting defendant.
Given the above events, witnessed by the officers,
tending to corroborate the officers' prior information that a drug
sale to Phanthai by an Asian dealer driving a Rhode Island car, and
perhaps accompanied by a cousin, was scheduled for this very time
and place, we are satisfied that the officers had probable cause to
arrest the occupants of the Acura after blocking the car in. The
officers had good reason to believe the two Asians therein included
Na, and that he had come to sell the agreed cocaine to Phanthai.
Thibodeau's protective sweep of the Acura, seizure of the plastic
bag and inspection of its contents constituted a valid search
incident to arrest. See, e.g., United States v. Infante-Ruiz, 13
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F.3d 498, 502 n.1 (1st Cir. 1994).2 The search of Vongkaysone
which resulted in the seizure of the currency on his person was
likewise valid. See, e.g., Meade, 110 F.3d at 199 ("If an arrest
is lawful, the arresting officers are entitled to search the
individual apprehended pursuant to that arrest.") (citation
omitted).
The defendant's conviction is affirmed.
2
As the magistrate pointed out, the search of the Acura
itself, which led to finding the cocaine, can also be independently
justified under the automobile search doctrine. United States v.
Lopez, 380 F.3d 538, 543 (1st Cir. 2004) (warrantless search of
vehicle justified if officers had probable cause to believe the car
held contraband). We need not pursue this alternative analysis,
however, since it seems clear the officers had probable cause to
arrest the defendant when they removed him from the car.
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