United States v. McCoy

USCA1 Opinion












October 19, 1992
October 19, 1992

UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT

____________________
____________________

No. 91-2251
No. 91-2251

UNITED STATES OF AMERICA,
UNITED STATES OF AMERICA,

Appellee,
Appellee,

v.
v.

JAMES W. McCOY,
JAMES W. McCOY,

Defendant, Appellant.
Defendant, Appellant.

____________________
____________________


APPEAL FROM THE UNITED STATES DISTRICT COURT
APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE
FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Shane Devine, U.S. District Judge]
[Hon. Shane Devine, U.S. District Judge]
___________________

____________________
____________________

Before
Before

Torruella, Cyr and Boudin,
Torruella, Cyr and Boudin,

Circuit Judges.
Circuit Judges.
______________

____________________
____________________



Glenn G. Geiger, Jr. with whom Geiger & Heiser, P.C. was on brief
Glenn G. Geiger, Jr. with whom Geiger & Heiser, P.C. was on brief
____________________ _____________________
for appellant.
for appellant.
Michael J. Connolly, Assistant United States Attorney, with whom
Michael J. Connolly, Assistant United States Attorney, with whom
___________________
Jeffrey R. Howard, United States Attorney, was on brief for appellee.
Jeffrey R. Howard, United States Attorney, was on brief for appellee.
_________________


____________________
____________________

____________________
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CYR, Circuit Judge. After defendant James W. McCoy was
CYR, Circuit Judge.
_____________

indicted on four counts of violating 18 U.S.C. 922(g)(1), which

makes it unlawful for a convicted felon to possess a firearm, he

filed three motions to dismiss the indictment and two motions to

suppress evidence of the firearms. The motions were denied and

McCoy was tried and convicted on all counts. He challenges only

the district court orders denying the pretrial motions. We

affirm.


I
I

BACKGROUND
BACKGROUND
__________


Between July 21 and August 14, 1987, the town of

Hampton Falls, New Hampshire was beset by a series of burglaries

which seemed linked by several similarities. Each occurred

during working hours on a weekday. In each instance, entry was

gained by prying open a door, or if an attempted entrance through

a door proved unsuccessful, by prying open a window. Typically,

jewelry, cash, tools, and other small personal items were carried

away in pillow cases and nylon bags.


A. Allen Burglary
A. Allen Burglary
______________


On August 14, 1987, the Hampton Falls home of John

Allen was burglarized. At approximately 1:30 p.m., George Allen,

John Allen's brother and neighbor, spotted an unfamiliar black














Dodge van parked near John Allen's home. He stopped to investi-

gate, and noticed a white male walking away from the back of his

brother's house. He asked the stranger what he was doing, and

the man, who appeared nervous, replied, "just surveying." The

man then shouted toward the tree line at the back of the proper-

ty, as if to another person, words to the effect that he would

finish the job later. The man then got into the van, and George

Allen remarked to him that if he was simply surveying, he would

not object to his license plate number being recorded. George

Allen recorded the number, and the man drove away in the black

van.

When John Allen returned home that evening, he discov-

ered that his house had been forcibly entered through a rear

cellar window and an unsuccessful attempt had been made to pry a

rear door. Although it appeared that nothing had been taken from

the house, a nylon bag packed with jewelry and other personal

items was found in the master bedroom. Hampton Falls Deputy

Police Chief Dean R. Glover was dispatched to investigate the

burglary. George Allen told Glover that the man he had seen that

afternoon was a white male with dark curly hair, between five

feet ten inches and five feet eleven inches tall, and between one

hundred and seventy and two hundred pounds. Allen initially

estimated the man's age at between twenty-five and thirty years,

but moments later revised his estimate to thirty-five years or

older.


B. Arrest Warrant
B. Arrest Warrant
______________

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Deputy Chief Glover ran a check on the license plate

number provided by George Allen and discovered that the van was

registered to appellant James W. McCoy at an address in neighbor-

ing Hampton, New Hampshire. Glover then ran a license check,

which revealed that McCoy was forty years old, five feet eleven

inches tall, two hundred pounds, with brown hair and eyes. Armed

with this information, Glover prepared an affidavit and complaint

for an arrest warrant charging McCoy with burglary. The support-

ing affidavit described the burglary of the John Allen residence

and George Allen's encounter with "a white male individual,

heavyset, approx. 5'10 ", dark medium-length hair, blue shirt and

dark pants." The affidavit included other descriptive informa-

tion obtained through the motor vehicle registration and license

check: "Hgt 5'11", wgt 200 lbs." The complaint and supporting

affidavit were submitted to a Justice of the Peace, who issued

the arrest warrant.


C. Subsequent Events
C. Subsequent Events
_________________


Deputy Chief Glover contacted the Hampton police and

arranged to have two Hampton police officers, detectives Lalley

and Wardle, accompany him to McCoy's residence in Hampton.

Neither McCoy nor the van was at the address, but the landlord

informed the officers that McCoy had loaded his personal belong-

ings into the van early that afternoon and was not expected to

return. The landlord mentioned that he had seen some items in

McCoy's apartment that struck him as unusual possessions for a

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construction worker, among them an antique clock bearing a Latin

inscription and the word "Florida" on its face. Glover suspected

that the clock the landlord described and a one-of-a-kind antique

Belgian clock (bearing the inscription "Tempus Fugit" and the

word "Florida") stolen in a July 24, 1987 burglary of another

Hampton Falls residence, were one and the same. Detectives

Wardle and Lalley of the Hampton Police Department were present

during the discussion of the clock. The landlord permitted the

officers to inspect McCoy's apartment; two television sets were

found, as well as several pieces of jewelry and a few coins.

During the following week, the landlord turned over

some of McCoy's mail to Deputy Chief Glover, who noted that two

envelopes bore the return address of the First National Bank of

Portsmouth. Glover learned that McCoy still had an active

account at the Hampton branch of the bank. Bank personnel

informed the police that McCoy occasionally brought large quanti-

ties of coins to the bank. Glover requested that bank personnel

notify either the Hampton Police Department or the Hampton Falls

Police Department in the event McCoy made any further contact

with the bank.

Bank personnel directed Glover to McCoy's employers,

Earl and Dean Verity, who owned a construction company and were

in the process of building a house very near the scene of another

Hampton Falls burglary under investigation by Glover. Glover

learned that McCoy had been employed by the company, but had left

work suddenly around noon on the day of the Allen burglary, and


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never returned. The Veritys informed Glover that McCoy had given

them some outdoor lawn tools, which Glover noted were similar to

the tools stolen in yet another recent Hampton Falls burglary.

Within a week after the Allen burglary, Glover learned

that McCoy had an extensive criminal record, including convic-

tions for breaking and entering, receiving stolen property, and

burglary, and that there was a warrant outstanding in another

state for his arrest on burglary charges.


D. Arrest
D. Arrest
______


At 8:55 a.m. on August 21, 1987, McCoy appeared at the

drive-up window of the Hampton branch of the First National Bank

of Portsmouth. He was recognized by the teller, who requested

that he come into the bank to resolve a problem with his account.

The Hampton Police Department was notified, and ten police

officers were dispatched to the bank.1 The Hampton police

arrested McCoy as he emerged from the bank and headed toward the

van. Among the Hampton police officers at the scene was Detec-

tive Wardle, who had accompanied Glover to the defendant's

residence on the evening of the Allen burglary.


E. Impoundment and Search of Van
E. Impoundment and Search of Van
_____________________________


After McCoy was arrested, the van was towed to the

____________________

1The arrest procedures to be used in the event McCoy ap-
peared at the bank had been prearranged by the Hampton Falls
Police Department and the Hampton Police Department. As agreed,
the Hampton Police Department responded as it would to a bank
robbery alarm.

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Hampton Police Department for an inventory search, but then it

was decided to await the issuance of a search warrant.2

Glover filed a search warrant application with the

Hampton District Court, supported by the affidavit submitted with

the arrest warrant application, four Hampton Falls Police Depart-

ment burglary reports, and a photograph of the antique Belgian

clock. The warrant issued, but before beginning the search

Glover looked in the windows at the contents of the van.3

Glover and a Hampton police sergeant proceeded to search the van.

Sixty-one items were inventoried, including the four firearms

which form the basis for the federal charges in the present case.

On September 26, 1988, McCoy pled guilty in Rockingham

County Superior Court to seven felony counts of receiving stolen

property. During 1991, he was indicted, tried and convicted on

four federal firearms charges under 18 U.S.C. 922(g)(1). We

turn to the claims presented on appeal.

____________________

2Within two hours after McCoy's arrest, Glover was informed
by the arresting officers that the license plate number on the
van matched the number given to Glover by George Allen, and that
it looked as if a paint roller had been used hurriedly to paint
the van a maroon color. Black paint was still visible around the
door locks and mirrors. The arresting officers further informed
Glover that several items, including a clock, power tools, and a
number of nylon bags filled with "stuff," were visible through
the windows of the van. Detective Wardle advised Glover that he
believed that the clock seen in the van was the one described by
McCoy's landlord.

3Glover observed a large quantity of tools, a "dozen or so"
canvas and nylon tote bags with what appeared to be jewelry
spilling out of them, bags of tools, pry bars and hammers, lounge
chairs, some clothes, and, most notably, a clock matching the
description of the stolen Belgian clock and a leaf blower
matching the description of one stolen in another of the Hampton
Falls burglaries.

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II
II

DISCUSSION
DISCUSSION
__________


A. Motions to Suppress
A. Motions to Suppress
___________________

1. "Automobile Exception"
1. "Automobile Exception"
____________________


Appellant claims that the evidence seized from the van

should have been suppressed because the search warrant obtained

by Deputy Chief Glover was not supported by probable cause.

Assuming, without deciding, the search warrant was invalid, we

nonetheless conclude that the district court properly denied the

motions to suppress, as the search was permissible under the

"automobile exception" to the Fourth Amendment warrant require-

ment.

Under the "automobile exception," the only essential

predicate for a valid warrantless search of a motor vehicle by

law enforcement officers is "probable cause to believe that the

[vehicle] contains contraband or other evidence of criminal

activity." United States v. Panitz, 907 F.2d 1267, 1271 (1st
______________ ______

Cir. 1990). See Carroll v. United States, 267 U.S. 132, 153-56
___ _______ _____________

(1925). "The inherent mobility of motor vehicles, [California
__________

v.] Carney, 471 U.S. [386,] [] 390 [] [(1985)], and the reduced
______

expectation of privacy associated with them, id. at 391, []
___

justify application of the vehicular exception '[e]ven in cases

where an automobile [is] not immediately mobile.'" Panitz, 907
______

F.2d at 1271. We have held that probable cause alone justifies a

warrantless search of a motor vehicle seized without a warrant

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while parked in a public place, "whether or not exigent circum-

stances prevailed at either the time of the seizure or the time

of the search. Moreover, the search, so long as reasonable in

scope, need not be conducted contemporaneously with the seizure

. . . ." Id. at 1272 (citing cases). Provided there was proba-
___

ble cause to believe that an offense had been committed and that

a search would turn up evidence of the offense, see United States
___ _____________

v. Aguirre, 839 F.2d 854, 857-58 (1st Cir. 1988), the seizure and
_______

search of the van were lawful under the "automobile exception"

without regard to the validity of the search warrant.4

At the time of the arrest, Glover knew that McCoy and

the van had been observed in highly suspicious circumstances at

the scene of the Allen burglary. Glover and Detective Wardle had

learned from McCoy's landlord that McCoy possessed a clock

similar to one stolen in another nearby burglary, and that he had

left hurriedly in the van with his belongings. Over the ensuing

week, Glover collected considerable circumstantial evidence from

various sources linking McCoy with several other Hampton Falls

burglaries.5 Thus, by the time of the arrest there was probable

____________________

4Provided there was probable cause to search the van at the
time of McCoy's arrest, the search was valid even if the arrest
was not, as the police would have had an independent basis for
searching the van, apart from any exploitation of illegal con-
duct. See Brown v. Illinois, 422 U.S. 590, 599 (1975); United
___ _____ ________ ______
States v. Pimental, 645 F.2d 85, 86 (1st Cir. 1981).
______ ________

5The evidence established that the Hampton and Hampton Falls
police conducted a cooperative investigation. Detective Wardle
of the Hampton Police Department accompanied Glover to McCoy's
residence on the evening of the Allen burglary. Wardle parti-
cipated in the discussion with McCoy's landlord regarding the
antique Belgian clock seen in McCoy's apartment. The two police

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cause to believe that burglaries had been committed and that

McCoy was in possession of at least some of the stolen property.

Glover and Wardle arguably had probable cause to believe that

stolen property would be found in the van upon learning from the

landlord that McCoy had loaded his possessions in the van on the

afternoon of the Allen burglary and appeared to have abandoned

his apartment. Assuming that the police had probable cause to

believe that a search of the van would turn up evidence of the

burglaries, their seizure of the van at the bank parking lot was

lawful. Any doubt as to the legality of the search is removed

given that prior to commencing the search, some five hours later,

see United States v. Moscatiello, 771 F.2d 589, 595, 600 (1st
___ _____________ ___________

Cir. 1985) (eighteen hours between seizure and search); United
______

States v. McHugh, 769 F.2d 860, 865-67 (1st Cir. 1985) (one
______ ______

week), the police looked through the windows of the van and saw

an antique clock, closely resembling the stolen Belgian clock,

and a leaf blower, closely resembling one stolen in another local

burglary. At that point, there can be no question that the

police had probable cause to believe the van contained evidence

of criminal activity. As the van was lawfully searched, the

district court correctly denied the motions to suppress.


____________________

departments communicated "at length" during the week preceding
the arrest, and jointly established a procedure for the arrest.
Glover learned of McCoy's criminal record, including the burglary
and stolen property charges, and communicated a warning to the
Hampton police to exercise caution in approaching the defendant.
"Where law enforcement authorities are cooperating in an
investigation, . . . the knowledge of one is presumed shared by
all." Illinois v. Andreas, 463 U.S. 765, 771 n.5 (1982).
________ _______

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B. Motions to Dismiss
B. Motions to Dismiss
__________________

1. Pre-indictment Delay
1. Pre-indictment Delay
____________________


Appellant claims that the passage of three and one-half

years between the seizure of the firearms and the return of the

federal indictment violated his Fifth Amendment right to due

process and his Sixth Amendment right to speedy trial.


a. Due Process
a. Due Process
___________


Pre-indictment delay violates due process if "(1) [it]

caused substantial prejudice to [the defendant's] right to a fair

trial and, (2) the Government intentionally delayed indictment in
___

order to gain a tactical advantage over the accused." United
______

States v. Picciandra, 788 F.2d 39, 42 (1st Cir.) (citing United
______ __________ ______

States v. Marion, 404 U.S. 307 (1971)) (emphasis added), cert.
______ ______ ____

denied, 479 U.S. 847 (1986). See also United States v. Acevedo,
______ ___ ____ _____________ _______

842 F.2d 502, 504 (1st Cir. 1988). For the defendant to carry

the heavy burden of proving actual prejudice from pre-indictment

delay, concrete proof is required; mere speculation and bare

allegations will not suffice. Acha v. United States, 910 F.2d
____ ______________

28, 32 (1st Cir. 1990).

Although appellant claims that he was prejudiced by the

extended pre-indictment delay, in that his decision to plead

guilty to the state felony charges was predicated on a "belief"

that federal charges would not be filed, he neither alleges nor

demonstrates that any agent of the federal government ever

represented that he would not be prosecuted for the federal

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firearms violations. The further argument that the delay

diminished the opportunity to serve concurrent time on the state

and federal offenses is based on the speculation that either

sentence would be made to run concurrently. Moreover, even if

the claims of prejudice were sustainable, appellant has not shown

that the government intentionally delayed indictment to gain a

tactical advantage. See Picciandra, 788 F.2d at 42.
___ __________


b. Sixth Amendment
b. Sixth Amendment
_______________


Appellant contends that the extended pre-indictment

delay violated "the very spirit" of the Sixth Amendment and the

Speedy Trial Act, 18 U.S.C. 3161. As appellant concedes,

however, no Sixth Amendment right to speedy trial arises prior to

the filing of the criminal charge. United States v. MacDonald,
_____________ _________

456 U.S. 1, 7 (1982). See United States v. Marler, 756 F.2d 206,
___ _____________ ______

211 (1st Cir. 1985) (Sixth Amendment speedy trial right arises at

filing of federal indictment).6



____________________

6Appellant argues that the district court should have
dismissed the indictment for lack of prosecution, pursuant to
Federal Rule of Criminal Procedure 48(b), which provides:

If there is unnecessary delay in presenting the charge
to a grand jury or in filing an information against a
defendant who has been held to answer to the district
____ __ ______ __ ___ ________
court, or if there is unnecessary delay in bringing a
_____
defendant to trial, the court may dismiss the indict-
ment, information or complaint.

Fed. R. Crim. P. 48(b) (emphasis added). Rule 48(b) is limited
in application to post-arrest delay. United States v. Marion,
_____________ ______
404 U.S. 307, 319 (1971). Appellant does not complain of unnec-
essary delay following the federal indictment.

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2. Petite Policy
2. Petite Policy
_____________


Appellant contends that the federal indictment con-

travened the Justice Department's so-called Petite policy,
______

thereby violating his due process rights. The Petite policy, see
______ ___

Petite v. United States, 361 U.S. 529 (1960) (per curiam), is an
______ _____________

internal Justice Department policy forbidding federal prosecution

of a person for alleged criminality which was "an ingredient of a

previous state prosecution against that person;" exceptions are

made only if the prosecution will serve "compelling interests of

federal law enforcement." Thompson v. United States, 444 U.S.
________ _____________

248, 248 (1979). It is a federal prosecutorial policy, not a

matter of constitutional law. United States v. Booth, 673 F.2d
_____________ _____

27, 30 (1st Cir.), cert. denied, 456 U.S. 978 (1982). See
____ ______ ___

Rinaldi v. United States, 434 U.S. 22, 29 (1977) (Petite policy
_______ _____________ ______

"not constitutionally mandated"). As we have explained,


[t]he Petite policy and cases construing it
______
stand only for the proposition that the
government's motion to dismiss should be
granted when it discovers that it is conduct-
ing separate prosecutions for the same of-
fense. The doctrine does not create a corre-
sponding right in the accused.


Booth, 673 F.2d at 30.
_____

Appellant argues that Booth is not controlling as the
_____

Justice Department revised the policy after Booth was decided.
_____

Those courts of appeals which have examined the Petite policy
______

since its revision in 1988, however, have adhered to the view

that it does not confer substantive rights on an accused. See,
___

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e.g., United States v. Simpkins, 953 F.2d 443, 444-45 (8th Cir.)
____ _____________ ________

(Petite policy does not confer substantive rights on criminal
______

defendant, thus cannot form the basis of claim that subsequent

prosecution was improper), cert. denied, ___ U.S. ___, 118
____ ______

L.Ed.2d 585, 112 S. Ct. 1988 (1992); United States v. Rodriguez,
_____________ _________

948 F.2d 914, 915 (5th Cir. 1991) (as an internal rule of Justice

Department, policy may not be invoked by defendant to bar prose-

cution), cert. denied, ___ U.S. ___, 119 L.Ed.2d 590, 112 S. Ct.
____ ______

2970 (1992); United States v. Pungitore, 910 F.2d 1084, 1120 (3d
_____________ _________

Cir. 1990) (policy does not confer substantive rights on defen-

dants); United States v. Heidecke, 900 F.2d 1155, 1157 n.2 (7th
_____________ ________

Cir. 1990) (as internal guideline, policy gives defendant no

substantive rights). We hold that neither the Petite policy nor
______

its 1988 revision conferred substantive rights on the defendant.

The district court judgment is affirmed.
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McCoy
McCoy
_____

Defendant filed two pretrial motions to suppress the

firearms evidence on Fourth Amendment grounds. In one motion,

defendant claimed that his arrest was illegal because the arrest

warrant was not supported by probable cause as required by the

Fourth Amendment. Defendant argued that the firearms discovered

in his van were fruits of the illegal arrest and therefore

inadmissible against him in a criminal proceeding. In his second

motion to suppress, defendant contended that the search warrant

for his van was not supported by probable cause, and thus the

firearms evidence should be excluded as the fruit of an illegal

search.

Defendant also filed three pretrial motions to dismiss

the indictment. In one motion, defendant argued that pretrial

delay before federal charges were filed violated his rights under

the due process clause of the Fifth Amendment and the speedy

trial clause of the Sixth Amendment. In a second motion, defen-

dant argued that unnecessary delay in bringing him to trial

warranted dismissal under Rule 48(b) of the Federal Rules of

Criminal Procedure. In a third motion, defendant claimed that

the government's failure to follow the Petite policy, a Depart-
______

ment of Justice policy against dual or successive federal prose-

cutions, violated his rights under the due process clause of the

Fifth Amendment.

The district court denied both motions to suppress the

firearms evidence and all three motions to dismiss the indict-


1














ment. Defendant subsequently was tried and convicted on each of

the four counts. Defendant now appeals the denial of each of the

five pretrial motions.
















































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McCoy
McCoy
_____

1. Arrest Warrant
1. Arrest Warrant
______________

Defendant contends that the affidavit supporting the

arrest warrant did not establish probable cause. He argues that

the description given to police by George Allen was sufficiently

broad to encompass a large percentage of the white male popula-

tion and therefore insufficient to constitute probable cause that

defendant committed the Allen burglary. Defendant contends that

information obtained by Deputy Chief Glover after the issuance of

the warrant is irrelevant in determining probable cause because

the Hampton police effectuated the arrest solely on the basis of

the arrest warrant. Defendant argues that information possessed

by Officer Glover and the Hampton Falls Police Department may not

be imputed to the arresting officers in the Hampton Police

Department.

United States v. Watson, 423 U.S. 411 (1976), estab-
_____________ ______

lished that a warrantless public felony arrest supported by

probable cause does not violate the Fourth Amendment. See also
___ ____

Gerstein v. Pugh, 420 U.S. 103, 113-14 (1975). If defendant's
________ ____

arrest was supported by probable cause, therefore, the arrest was

legal notwithstanding the validity of the arrest warrant.

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
_____________ ________


1














F.2d 1020, 1023 (1st Cir. 1987) (quoting Beck v. Ohio, 379 U.S.
____ ____

89, 91 (1983)). "The government need not show 'the quantum of

proof necessary to convict'; probability is the touchstone." Id.
___

(quoting United States v. Miller, 489 F.2d 1117, 1128 (1st Cir.
_______ _____________ ______

1978), cert. denied, 440 U.S. 958 (1979)). We must consider the
____ ______

totality of the circumstances in evaluating whether the govern-

ment demonstrated a sufficient "[p]robability . . . of criminal

activity." Id. at 23-24 (quoting Illinois v. Gates, 462 U.S. 213
___ _______ ________ _____

(1983)).

First, we will examine the facts and circumstances

within the collective knowledge of the Hampton Falls and Hampton
__________

police departments; then we will determine what portion, if any,

of that knowledge may be imputed to the arresting officers. At

the time of defendant's arrest, the following was known to Deputy

Chief Glover: A man driving a van registered to the defendant

and fitting the general description of the defendant was observed

at approximately 1:30 p.m. at the scene of the Allen burglary on

August 14, 1987. The man appeared nervous, and did not identify

himself or offer any explanation for his presence on the property

except that he was "just surveying." The man was aware that

George Allen recorded his license plate number. The defendant

had suddenly disappeared from his construction job around noon on

that day, and never returned. The defendant also had been

observed "hurriedly" loading his possessions into his van that

afternoon, and appeared to have abandoned his place of residence.

His landlords had seen a clock in defendant's apartment bearing


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remarkable similarity to one stolen in an earlier burglary, and

had noticed other items in the apartment that seemed inconsistent

with defendant's station in life. Defendant had given both his

landlords and his employers expensive gifts resembling items

stolen in various Hampton Falls burglaries. He was known to

bring large quantities of coins, sometimes foreign, to his bank.

One of the Hampton Falls burglaries took place across the street

from his place of employment and occurred during the relatively

brief period of his employment at that location. Finally, he had

a criminal history of crimes against property.

These facts, in the aggregate, are sufficient to estab-

lish probable cause that defendant had engaged in criminal

activity. However, we must determine what portion of Deputy

Chief Glover's knowledge can be imputed to the arresting offi-

cers. That the arresting officer may have lacked probable cause
___

for the arrest of the suspect does not mean that the arrest is

invalid for lack of probable cause; it is enough that the collec-

tive knowledge and information of all the officers involved

establishes probable cause for the arrest. United States v.
_____________

Paradis, 802 F.2d 553, 557 (1st Cir. 1986). See also Charles v.
_______ ___ ____ _______

Smith, 894 F.2d 718 (5th Cir. 1990), cert. denied, ___ U.S. ___
_____ ____ ______

(19__) (officer lacking personal knowledge of facts establishing

probable cause for arrest may nevertheless make arrest if he is

merely carrying out directions of officer who does have probable

cause); United States v. Rocha, 916 F.2d 219 (5th Cir. 1990),
_____________ _____

cert. denied, ___ U.S. ___, (19__) (arresting officer need not
____ ______


3














have personal knowledge of all facts constituting probable cause,

but may rely upon collective knowledge of police when there is

communication among them); United States v. Hoyos, 892 F.2d 1387
_____________ _____

(9th Cir. 1989), cert. denied, ___ U.S. ___ (19__) (arresting
____ ______

officer need not have personal knowledge of facts sufficient to

constitute probable cause; probable cause may be based on collec-

tive knowledge of all officers involved in investigation);

Calamia v. City of New York, 879 F.2d 1025 (2d Cir. 1989) (where
_______ ________________

law enforcement authorities are cooperating in investigation,

knowledge of one is presumed shared by all); United States v.
_____________

Rich, 795 F.2d 680 (8th Cir. 1986) (in determining whether
____

probable cause existed for an arrest, court does not merely look

to actual knowledge of arresting officer, but to combined knowl-

edge of all officers involved).

Defendant argues that our decision in Paradis is
_______

inapposite because the police departments of Hampton and Hampton

Falls were not involved in a contemporaneous investigation.

However, the record establishes that Detective Wardle of the

Hampton Police Department, one of the arresting officers, accom-

panied Deputy Chief Glover to the defendant's residence on the

evening of the Allen burglary. That evening, Detective Wardle

participated in the discussion with defendant's landlord regard-

ing the antique clock seen in defendant's apartment, and learned

that defendant had hurriedly loaded his belongings in the van

that afternoon and had apparently abandoned his apartment. The

record establishes that the two police departments communicated


4














"at length" during the week preceding the arrest, and established

a procedure for the arrest. Further, when Deputy Chief Glover

learned of the defendant's prior criminal record, he communicated

a warning to the Hampton police to use caution when confronting

the defendant. We cannot agree with defendant's contention that

the Hampton Police Department based their arrest solely on the

arrest warrant. On the contrary, ample evidence suggests that

the two police departments communicated on numerous occasions

about the anticipated arrest during the week between the issuance

of the warrant and the arrest. It is appropriate, therefore, to

consider the collective knowledge of all the officers involved in

determining whether probable cause existed for defendant's

arrest. We find the collective knowledge of the Hampton and

Hampton Falls police departments at the time of defendant's

arrest sufficient to support a finding of probable cause.

Defendant's claim that the firearms evidence should have been

suppressed as the fruit of an illegal arrest is without merit.




















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