United States v. Vongkaysone

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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