United States v. White

United States Court of Appeals
For the First Circuit

No. 14-2165

UNITED STATES OF AMERICA,

Appellee,

v.

ADAM WHITE,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE

[Hon. D. Brock Hornby, U.S. District Judge]

Before

Kayatta, Stahl, and Barron,
Circuit Judges.

Timothy E. Zerillo and Hallett, Zerillo & Whipple, P.A. on
brief for appellant.
Margaret D. McGaughey, Assistant United States Attorney, and
Thomas E. Delahanty II, United States Attorney, on brief for
appellee.

October 20, 2015
 STAHL, Circuit Judge. Defendant-Appellant Adam White

was arrested after his vehicle was stopped and searched by officers

with the Maine Drug Enforcement Agency ("MDEA"), the Maine State

Police, and the Portland Police Department ("PPD"). The search of

White's car involved the use of a drug-sniffing dog, named Aros,

and resulted in the discovery of cocaine and a firearm. White

entered a conditional guilty plea on charges of possession with

intent to distribute cocaine and possession of a firearm in

furtherance of a drug trafficking crime.

On appeal, White now contends that the district court

erred by: (1) denying his motion for discovery of records and other

information relating to Aros's prior performance in real-world

sniff searches; and (2) denying his motion to suppress. Because

we agree with the district court that the search of White's vehicle

was supported by probable cause, we AFFIRM the denial of the motion

to suppress. For reasons described more fully below, we need not

consider the issues raised by the motion for discovery.

I. Facts & Background

In August 2012, a confidential informant ("CI") reported

to MDEA Special Agent Seth Page ("Page") that White was a large-

scale cocaine distributor in the Portland, Maine area, and that

the CI had purchased cocaine from White "many times" in the past.

This information prompted Page to begin an investigation. Working

with Page, the CI completed two controlled purchases of cocaine

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from White. The first took place in August 2012, and the second

took place several months later in December 2012. In both

instances, White drove to a prearranged location where he met the

CI, and the controlled purchase took place inside White's vehicle.

In early February 2013, the CI reported to Page that

White was planning to "restock" his cocaine supply. This led Page

to devise a scheme to stop and search White's vehicle. Page met

with the CI on February 12, 2013, and at Page's instruction, the

CI placed a call to White and ordered a "full" ounce of cocaine.

In a recorded telephone conversation, White assured the CI that he

would be leaving "pretty soon," and that he would "definitely bring

[the full] out with me." Prior to this recorded call, the CI had

told Page that he believed White had restocked his supply of

cocaine.

Previously, Page had placed White's home in Falmouth,

Maine under surveillance. Approximately ten minutes after the

call from the CI, MDEA agents stationed at White's home reported

that White and his girlfriend were leaving the premises in his

black Cadillac.1

In addition to placing White's home under surveillance,

Page had also arranged with a Maine State Police Trooper, Adam

Fillebrown, and a PPD Officer, Mark Keller, to be on standby.

1
This was the same vehicle White had used in the second
controlled purchase.

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Trooper Fillebrown was placed on standby with Aros, his drug-

sniffing canine partner.

As White left his home, he was followed in unmarked

cruisers by several MDEA agents, including Agents Jake Hall and

Andrew Haggerty. Agent Hall observed as White drove down Auburn

Street in Portland, and visually estimated that White was

travelling at twenty to twenty-five miles per hour in a fifteen-

mile-per-hour school zone. Agent Hall relayed this information to

Agent Haggerty, who then passed it on to PPD Officer Keller.

Officer Keller, who was in a marked PPD cruiser, stopped

White's vehicle on Stevens Avenue. Although Officer Keller had

been briefed on the investigation and the reasons for the traffic

stop, he informed White only that he had been pulled over for

speeding in a school zone. As Officer Keller initiated the traffic

stop, Trooper Fillebrown was summoned to the scene, where he

arrived some seven minutes later. As Fillebrown arrived, Officer

Keller told White that Fillebrown was training a new drug-sniffing

dog, and that the dog was going to conduct a sniff search of

White's vehicle as a training exercise.2

Trooper Fillebrown led Aros on a series of passes around

White's vehicle. On the fourth pass by the driver's side door,

2 This was of course untrue, though the government notes that
Officer Keller perhaps needed to lie to White in order to protect
the identity of the CI.

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Aros alerted that he had located the scent of narcotics. Once

Aros had alerted, Officer Keller asked White and his girlfriend to

exit the vehicle. He conducted a pat-down and search of White's

pockets, where he found three one-ounce baggies of cocaine.

Officer Keller then placed White under arrest. As he did so,

Trooper Fillebrown conducted a search of the vehicle, where he

discovered a gun in the driver's side door and approximately one

pound of cocaine in a sealed package in the trunk.3

After the traffic stop, Page completed a search warrant

application for White's home in Falmouth. The warrant application

was approved that day, and MDEA agents promptly began their search,

locating some 3,300 grams of cocaine, several bags of marijuana,

a handgun, cash, and assorted drug paraphernalia. White was

indicted on one count of possession with intent to distribute 500

grams or more of cocaine, in violation of 21 U.S.C. § 841(a)(1),

and one count of possession of a firearm in furtherance of a drug

trafficking crime, in violation of 18 U.S.C. § 924(c)(1).

During discovery, White requested that the government

provide him with information about the Maine State Police's use of

drug-sniffing dogs. Specifically, he asked for training and

certification records for Trooper Fillebrown and Aros. He also

3 Officers also discovered two cellphones. Pursuant to a
warrant, Page later searched the phones and discovered text
messages discussing drug sales and deposits of sale proceeds.

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asked for records and video recordings of previous sniff searches

that Aros had conducted in the field, as well as training and

certification records for a drug-sniffing dog named Caro, with

whom Trooper Fillebrown had worked prior to Caro's retirement.

The government produced the training and certification

records for Trooper Fillebrown and Aros, but refused to turn over

information about Aros's prior sniff searches or Caro's training.

The government took the position that the records of Aros's prior

sniff searches contained sensitive information about ongoing

investigations, and that the records of Caro's training were simply

not relevant.

White filed a motion for discovery seeking to compel the

government to disclose this evidence. He maintained that the

information he sought was crucial to proving that Aros's sniff

search was defective, and that officers therefore lacked probable

cause to search his vehicle. In support of his motion, White

submitted the affidavit of a canine expert, who opined that Aros's

behavior during the traffic stop - particularly his need for

multiple passes around the vehicle - was indicative of inadequate

training and improper handler "cueing."

Pursuant to a report and recommendation issued by a

magistrate judge, the district court denied White's motion for

discovery. The district court reasoned that, pursuant to a then-

recent Supreme Court decision, Florida v. Harris, __ U.S. __, 133

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S. Ct. 1050 (2013), the government was under no obligation to

disclose the information regarding either Aros's prior searches or

Caro's training.

Later, White filed a motion to suppress. In relevant

part, he argued that Officer Keller did not have probable cause to

stop his vehicle, and that Aros's alert did not provide probable

cause to search his car. Therefore, he argued, the evidence in

the car and at his home had been obtained illegally as fruit of

the poisonous tree.4

Following a two-day hearing, the district court denied

White's motion to suppress. In his oral decision, the district

court found that the stop and search of White's vehicle were

permissible under the automobile exception to the Fourth Amendment

warrant requirement. The district court reasoned that the officers

had probable cause, solely on the basis of information provided by

the CI and Page's investigation, to believe that White's car would

contain evidence of drug dealing activity at the time it was

stopped. Based on this finding, the district court declined to

separately consider whether Aros's sniff search independently

provided probable cause to initiate a search.

4 White's motion also sought to suppress incriminating
statements made at the time of his arrest. For example, after he
had been handcuffed, White stated to Officer Keller, "this isn't
a regular traffic stop, is it?"

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 After the denial of his motion to suppress, White entered

a guilty plea, conditioned on his right to seek appellate relief.

See Fed. R. Crim. P. 11(a)(2). The district court sentenced White

to a prison term of seventy months on the cocaine possession and

distribution count, and a consecutive term of sixty months on the

firearm count. This appeal followed.

II. Discussion

We begin by considering the district court's denial of

White's motion to suppress, which we review by means of a two-

tiered inquiry. United States v. Ford, 548 F.3d 1, 3 (1st Cir.

2008). We review the district court's factual findings for clear

error, and we review its legal conclusions de novo. Id. A finding

of fact will amount to clear error "only if, after considering all

the evidence, we are left with a definite and firm conviction that

a mistake has been made." United States v. Mousli, 511 F.3d 7, 11

(1st Cir. 2007) (quoting United States v. Ferreras, 192 F.3d 5, 9-

10 (1st Cir. 1999)). "So long as any reasonable view of the

evidence supports the decision, the district court's ruling will

be upheld." United States v. McLellan, 792 F.3d 200, 212 (1st

Cir. 2015).

The Fourth Amendment guarantees the right to be free

from unreasonable searches and seizures in the absence of a warrant

supported by probable cause. U.S. Const. amend. IV. Under the

automobile exception, however, "police officers may seize and

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search an automobile prior to obtaining a warrant where they have

probable cause to believe that the automobile contains

contraband." United States v. Silva, 742 F.3d 1, 7 (1st Cir.

2014); see also Florida v. White, 526 U.S. 559, 563-64 (1999)

("[W]hen federal officers have probable cause to believe that an

automobile contains contraband, the Fourth Amendment does not

require them to obtain a warrant prior to searching the car for

and seizing the contraband.").

"Probable cause exists when 'the facts and circumstances

as to which police have reasonably trustworthy information are

sufficient to warrant a person of reasonable caution in the belief

that evidence of a crime will be found.'" Silva, 742 F.3d at 7

(quoting Robinson v. Cook, 706 F.3d 25, 32 (1st Cir. 2013)); see

also Harris, 133 S. Ct. at 1055 ("A police officer has probable

cause to conduct a search when the facts available to him would

warrant a person of reasonable caution in the belief that

contraband or evidence of a crime is present." (citations omitted)

(internal quotations marks and alterations omitted)). "The test

for probable cause is not reducible to 'precise definition or

quantification.'" Harris, 133 S. Ct. at 1055 (quoting Maryland v.

Pringle, 540 U.S. 366, 371 (2003)). Rather, "[t]he standard is

satisfied when the totality of the circumstances create 'a fair

probability that . . . evidence of a crime will be found in a

particular place.'" Silva, 742 F.3d at 7 (quoting United States

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v. Hicks, 575 F.3d 130, 136 (1st Cir. 2009)). All that is required

is the kind of "fair probability on which reasonable and prudent

people, not legal technicians, act." Harris, 133 S. Ct. at 1055

(quoting Illinois v. Gates, 462 U.S. 213, 231, 238 (1983) (internal

quotation marks and alterations omitted)).

Where, as here, "the primary basis for a probable cause

determination is information provided by a confidential informant,

law enforcement must provide some information from which a court

can credit the informant's credibility." United States v. Ramírez-

Rivera, __ F.3d __, 2015 U.S. App. LEXIS 15081, at *45 (1st Cir.

Aug. 26, 2015) (citations omitted) (internal quotation marks and

alterations omitted). In other words, "a probable cause finding

may be based on an informant's tip so long as the probability of

a lying or inaccurate informer has been sufficiently reduced."

United States v. Greenburg, 410 F.3d 63, 69 (1st Cir. 2005). The

First Circuit has identified a "non-exhaustive" list of factors to

examine in deciding on an informant's reliability: (1) the probable

veracity and basis of knowledge of the informant; (2) whether an

informant's statements reflect first-hand knowledge; (3) whether

some or all of the informant's factual statements were corroborated

wherever reasonable and practicable; and (4) whether a law

enforcement officer assessed, from his professional standpoint,

experience, and expertise, the probable significance of the

informant's information. Ramírez-Rivera, 2015 U.S. App. LEXIS at

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*45-46 (citing United States v. Tiem Trinh, 665 F.3d 1, 10 (1st

Cir. 2011)).

The district court found that the warrantless search and

seizure of White's vehicle were justified by the automobile

exception. The district court reasoned that the information

gleaned from the CI and Page's subsequent investigation gave

officers adequate probable cause to believe that White's car would

contain evidence of drug dealing activity at the time of the

traffic stop. The record soundly supports these conclusions.

The investigation in this case began when the CI provided

information to Page that White was a large-scale cocaine

distributor in the Portland area.5 In his disclosures to Page,

the CI evinced a significant basis for first-hand knowledge

regarding White's activities. He reported, for example, that he

had purchased cocaine from White "many times" in the past, and

that White most frequently sold drugs from his vehicle. The CI

also provided Page with White's home address.

Subsequently, Page was able to corroborate much of the

information that the CI provided. For example, Page testified

that he was able to confirm White's home address by cross-checking

the information provided by the CI with a registry of motor

5Page testified that the CI cooperated in the hope of
receiving favorable treatment with respect to drug charges pending
against him at the time.

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vehicles database. Page also testified that, in addition to

assisting in the White investigation, the CI provided information

in another case that was later corroborated and used to further

that investigation.

Most significantly, Page corroborated the CI's tip that

White sold drugs primarily from his vehicle. Page worked with the

CI to execute two controlled purchases from White, the first taking

place in August 2012, and the second taking place in December 2012.

In both instances, the CI placed a call to White, requested a

quantity of cocaine, and arranged a time and place to meet. Again,

in both instances, White arrived in his car, the CI entered the

car and completed the purchase, then exited. During the second

purchase, White drove the same black Cadillac he would later be

using at the time of his arrest.

Page testified that, in early February 2013, the CI

informed him that White was planning to "restock" his cocaine

supply. This prompted Page to devise the operation that eventually

resulted in the stop of White's vehicle. On February 12, Page met

with the CI and directed him to call White and to order a "full"

ounce of cocaine. In a recorded call, the CI placed the order,

and White assured him that he would be leaving his house "pretty

soon," and would "definitely bring [the full] out with me." Some

ten minutes later, agents stationed at White's home observed him

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leaving in his Cadillac. Prior to the recorded call, the CI told

Page that he believed White had restocked his supply of cocaine.

Viewing these facts and circumstances in their totality,

as we must, Silva, 742 F.3d at 7, we conclude that, at the time of

the traffic stop, officers had ample reason to believe that White

was en route to conduct a sale of cocaine, and that a search of

his vehicle would yield evidence of drug dealing activity.

Therefore, pursuant to the automobile exception, officers had

probable cause to stop and search White's vehicle, including the

passenger compartment and the trunk. See United States v. Polanco,

634 F.3d 39, 42 (1st Cir. 2011) ("[The automobile exception]

provides that '[i]f there is probable cause to believe a vehicle

contains evidence of criminal activity,' agents can search without

a warrant 'any area of the vehicle in which the evidence [might]

be found.'") (quoting Arizona v. Gant, 556 U.S 332, 347 (2009)).

In theory, then, this might have been a straight-forward

probable cause case. In practice, it was anything but. Rather

than rely on the automobile exception and the probable cause they

already had, Page and his fellow officers decided to use a

pretextual speeding infraction to stop White's car and to conduct

a canine sniff search (under false pretenses) in an effort to gain

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even more probable cause.6 While we recognize that law enforcement

officers routinely face difficult questions about the adequacy of

probable cause, there can be no doubt that these decisions rendered

this investigation and the ensuing criminal prosecution

unnecessarily complicated.7

But, ultimately, neither the pretextual traffic stop nor

the canine sniff search undermine the basic finding that, at the

time that these events transpired, officers had adequate probable

cause to stop White's vehicle and to search it for evidence of

drug dealing activity. Under these circumstances, the automobile

exception and the Fourth Amendment require nothing more.

III. Conclusion

We need say nothing more, and thus decline to separately

consider the issues raised by the district court's denial of

White's motion for discovery. See PDK Labs. Inc. v. United States

Drug Enforcement Admin., 362 F.3d 786, 799 (D.C. Cir. 2004)

(Roberts, J., concurring in part and concurring in the judgment)

("[I]f it is not necessary to decide more, it is necessary not to

6
Asked why he opted to conduct the sniff search, Page
testified before the district court that he was "looking for
something extra . . . just to add to what we already had."

7
To illustrate the point, the use of a canine sniff search
led directly to a protracted discovery dispute involving extensive
briefing and dueling expert witnesses. Then, issues related to
the sniff search occupied the majority of the district court's
two-day-long suppression hearing.

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decide more . . . ."). In that motion, White sought information

he thought he might be able to use to prove that Aros's sniff

search was inadequate to give officers probable cause to search

his vehicle. However, because we find that the stop and search of

White's vehicle were independently justified on the basis of the

automobile exception, the probable cause determination as it

relates to the canine sniff search becomes a matter of idle

curiosity. The district court's denial of White's motion to

suppress is AFFIRMED.

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