United States v. Fiasconaro

United States Court of Appeals
For the First Circuit

No. 02-1611

UNITED STATES,

Appellee,

v.

MICHAEL FIASCONARO,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. D. Brock Hornby, U.S. District Judge]
[Hon. David M. Cohen, U.S. Magistrate Judge]

Before

Selya, Circuit Judge,

Coffin and Bownes, Senior Circuit Judges.

Michael A. Cunniff for appellant.
Margaret D. McGaughey, Appellate Chief, with whom Paula D.
Silsby, United States Attorney, was on brief for appellee.

December 24, 2002
 BOWNES, Senior Circuit Judge. The pivotal issue in this

case is whether there was probable cause for the police to arrest

the defendant-appellant, Michael Fiasconaro, search his motor

vehicle, and seize from it $10,981 in United States currency and a

cellular telephone. The defendant appeals from the district

court's denial of his motion to suppress the currency, cellular

telephone, and incriminating statements made after his arrest. We

affirm the district court's order.1

I. The Standard of Review

The standard of review that we apply is well delineated.

We review the district court's findings of fact for clear error.

See United States v. Martinez-Molina, 64 F.3d 719, 726 (1st Cir.

1995). Because the question of probable cause is a mixed question

of law and fact, our ultimate determination is made de novo. See

United States v. Proctor, 148 F.3d 39, 41 (1st Cir. 1998). We

review the facts in the light favorable to the judgment; the denial

of a suppression motion should be upheld if a reasonable

interpretation of the record supports it. See United States v.

McCarthy, 77 F.3d 522, 529 (1st Cir. 1996).

1
The hearing on the facts was held before Magistrate Judge
David M. Cohen. The district court approved and adopted the report
of the magistrate judge which recommended that the motion to
suppress be denied.

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 II. The Indictments

Before we delve into the facts on probable cause, there

is a question arising from the filing of a criminal complaint by

Drug Enforcement Administration ("DEA") agent, Jay Stoothoff, on

June 23, 2001. Count One of the complaint charged three persons,

Murray D. Spaulding, William Albright and the defendant with

conspiracy to possess and distribute cocaine. The magistrate judge

struck "Albright from the complaint, finding no probable cause as

to him." The criminal complaint was followed by a six-count

indictment on July 18, 2001. Count One charged Murray D. Spaulding

and the defendant with conspiring to possess and distribute "500

grams or more of a substance containing cocaine." The five

additional counts charged Spaulding with intentionally distributing

quantities of cocaine at various places and dates within the state

of Maine. Spaulding entered into a plea bargain with the

government and is no longer in the case.

On September 4, 2001, the defendant moved to suppress the

cellular telephone and $10,981, as well as incriminating statements

he made to the police after his arrest. The district court denied

the motion and the defendant entered into a conditional guilty

plea, reserving his right to appeal the denial of his motion to

suppress. The defendant was sentenced on May 8, 2002, and this

timely appeal followed.

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 III. The Facts

A. The Preliminary Events

As will become evident, the key player in this case is a

confidential informant known only as CI 2182. Case Agent William

Deetjen, who had been a police officer for thirty-two years and

worked for the Maine Drug Enforcement Agency ("MDEA") for twelve

years, testified at the hearing on the defendant's motion to

suppress that in January of 2001, a person was arrested on federal

health care fraud and drug charges. This person was addicted to

the pain relievers Percocet and OxyContin and had information about

drug dealing in the Sanford, Maine area. After pleading guilty,

he began to cooperate with the government and was debriefed on

March 29, 2001.

Deetjen testified that the informant told him that

Spaulding was selling cocaine in the town of Lyman, Maine, which is

next to Sanford. The informant told Deetjen the address of

Spaulding's house and that he had various persons drive him twice

a week to his supplier in Massachusetts from whom he bought cocaine

in quarter pound packages. The informant and Spaulding had met

earlier but had lost contact until February 2001, when the

informant and his sister went to Spaulding's house so his sister

could buy cocaine. According to Deetjen, the informant told him

that Spaulding told the informant he could buy cocaine at any time.

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 After the informant's initial debriefing, Deetjen

testified that he called Officer Todd Prough in Massachusetts, who

was a member of the "cross border initiative," a task force of DEA

and local law enforcement officers who were investigating the flow

of drugs in and out of Massachusetts. Deetjen told Prough that he

was investigating a person who had substantial amounts of cocaine

in Maine and that this person's drug source appeared to be in

Massachusetts.

Deetjen testified that to show his cooperation the

informant made controlled purchases of cocaine from Spaulding at

his home. The informant also made controlled purchases of crack

cocaine from other people in the Sanford and Wells areas of Maine.

Deetjen told Prough he considered the informant to be "very

reliable" and was "the best cooperating defendant I have worked

with." Deetjen further testified that the informant's information

had resulted in federal indictments of five or six people, all of

whom pled guilty. Because of Deetjen's assessment of the

reliability of the informant, Prough also accepted the informant as

reliable.

On April 5, 2001, the informant set up a controlled buy

from Spaulding. He made a recorded call from the MDEA's office in

Lyman to Spaulding who told him to come to his house. After

searching the informant and his car, Deetjen gave the informant

currency that had been photocopied, and equipped him with an

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electronic listening device. The informant drove to Spaulding's

house followed by MDEA agents. The agents overheard the sale of

$250 worth of cocaine by Spaulding to the informant. The informant

said he would want the same amount each week. Spaulding said that

this would be no problem. The informant then drove to a

prearranged meeting place where he delivered the cocaine he had

bought to Deetjen.

Another controlled purchase using the same format took

place on April 12, 2001. There was, however, additional

conversation between the informant and Spaulding which was recorded

and heard by the agents. The informant complained that Spaulding

had used the informant's sister to provide transportation.

Spaulding replied that she was a grown woman who could make her own

decisions but said that if she agreed not to buy any more cocaine

he would not use her again for transportation. The informant then

said he would drive Spaulding himself. After being assured that

the informant had a "legal car," Spaulding told the informant that

the trip to and from Massachusetts took three hours. The

groundwork had been laid for the informant to drive Spaulding to

Spaulding's cocaine source. On June 5, 2001, a recorded telephone

call to Spaulding was made. This call was to confirm that the

informant would drive Spaulding to his Massachusetts source the

next time Spaulding made the trip. The phone was answered by

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Spaulding's girlfriend who told the informant that Spaulding had

already left for Massachusetts.

Another recorded call was made the next day. The

informant chided Spaulding for going to Massachusetts without him

and not giving him a chance to make money. Spaulding told the

informant that he made the trip when it was necessary and that he

had tried to call the informant but could not reach him. Spaulding

also agreed to a drug sale. The informant was wired and given

money that had been photocopied. As usual, MDEA agents followed

the informant to Spaulding's house.

There was a monitored conversation on Spaulding's porch

between the informant, Spaulding's girlfriend and Spaulding.

During the conversation Spaulding said he had to take his latest

trip to Massachusetts alone because he could not contact anyone to

drive him. The informant said that he would have liked to earn the

money. There was then a discussion of the purchases of kilograms

and half kilograms of cocaine. Spaulding said that half a kilogram

cost him $10,000 and that the informant could buy it for $13,000.

Spaulding said that his best week of drug sales made him a profit

of $8,000. Spaulding sold the informant an ounce of cocaine for

$1,000, which the informant subsequently turned over to MDEA

agents. The last controlled buy was on June 20, 2001. Spaulding's

girlfriend answered the recorded call to Spaulding's house and said

that Spaulding had gone to Foxwoods casino. She told the informant

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she had "between a half and three quarters." Deetjen said this

meant that she had between one-half to three-quarters of an ounce

of cocaine. The informant told her that he needed more and would

wait for Spaulding. She replied that she had enough to last her

for the meantime.

The informant was equipped with an electronic listening

device by the MDEA agents, who followed him to Spaulding's house.

When the informant arrived, Spaulding was there. The agents

overhead the sale of an eighth of an ounce of cocaine to the

informant. Deetjen, however, failed to activate the recorder, so

there was no record of the conversations between Spaulding and the

informant. After the informant returned to the MDEA office,

Deetjen had him make a recorded call to Spaulding confirming the

basis of the sale.

Deetjen and Prough testified that after each of the

controlled buys, Deetjen called Prough and gave him all the

details. It was Deetjen's opinion that the amounts of drugs

involved were getting larger and that the source was located in

either Lowell or Lawrence, Massachusetts. Prough evidently agreed

with this analysis.

B. The Main Event

After a series of recorded telephone calls between the

informant to Spaulding or people at Spaulding's house, it was

agreed that the informant would drive Spaulding to Massachusetts.

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On June 2 there was a recorded conversation between the informant

and Spaulding during which the following remarks were made by

Spaulding. The informant told Spaulding that he had been to

Portland and a buyer wanted three ounces of cocaine. Spaulding

said, "got them right here." Spaulding then said, "I'm ready to go

too. I need to dump these to go. My guy's waiting for me to come

down right now."

Deetjen testified at the suppression hearing that the

phrase "my guy" meant his cocaine source, and that the phrase "dump

these" meant that he needed to sell the cocaine he had before

driving to Massachusetts to buy more. Prough testified that

usually drug dealers do not pay in advance for the drugs they buy,

but instead sell the drugs they have and use the proceeds to pay

their source.

Spaulding told the informant to meet him within a half an

hour. The informant left Spaulding's house to change his clothes

for the trip. Deetjen testified that he discussed the conversation

with the informant and was told that Spaulding wanted him to drive

Spaulding to Massachusetts to obtain cocaine. Deetjen relayed the

information to Prough. He described the make and license plate of

the informant's car, told Prough that the informant would be wired

and asked for help in the surveillance. Deetjen left it to Prough

to decide whether to arrest the source.

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 Agents of the MDEA inspected the informant's car and then

wired it so the conversations between Spaulding and the informant

could be overheard and recorded. Agents Kenneth Pike and Gerald

Hamilton were assigned to follow the informant's car during the

drive to Massachusetts. Shortly after the informant and Spaulding

left for Massachusetts the transmitter in the informant's car was

dislodged so Hamilton could hear nothing. When the informant's car

stopped briefly at a Burger King and Spaulding went inside,

Hamilton told the informant that the transmitter was not working

and the informant got it fixed before they started up again. The

remarks by Spaulding were incriminating to say the least.

Spaulding identified his connection to the source and how the

connection was paid. Spaulding also told the informant that he put

property in other people's names so that it could not be seized.

Prough had a surveillance team assembled at a rest area

on Route 95 South, just over the border in Massachusetts. He was

in constant communication with the other agents and police officers

involved. Methuen Police Detective Thomas Donovan, who was part of

the Massachusetts surveillance team and had been informed of the

type and license plate number of the informant's automobile,

spotted the car traveling south on Route 95. In Peabody, the car

left Route 95 for Route 1. At about 6:30 p.m., Hamilton, who was

following the informant's vehicle, saw it turn into a parking lot

before the Hilltop Restaurant and notified Prough. Hamilton then

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lost sight of the car, but Prough, who was driving directly in

front of it, and Donovan saw the car turn into the Border Café, a

Mexican restaurant.

The tape of the wire transmission that then occurred was

played at the suppression hearing. Spaulding told the informant

that he might want to go somewhere else because he would have to

wait a minute. Hamilton testified that he heard a door shut and

heard someone get out of the car. Prough heard a radio report by

Donovan from the other end of the parking lot that he saw Spaulding

get out of the informant's car and go inside the Border Café.

Donovan followed Spaulding into the restaurant and saw him look

around, but he left without meeting anyone and got back into the

informant's car. Hamilton heard Spaulding tell the informant to

shut off his lights because "[h]e ain't here yet."

Both Hamilton and Prough overheard Spaulding get a cell

phone from the car. Donovan saw the informant's car go to the back

of the parking lot. Spaulding got out of the car, went to a wooden

guardrail and began using the cellular phone. A short time later,

Hamilton and Prough heard, over the transmitter, Spaulding return

to the car and tell the informant, "the guy is on his way" and

would be there in five minutes.

About fifteen minutes later, Donovan saw a green Honda

Accord pull into the parking lot. He reported this to Prough.

There were two white males in the Honda. The passenger had dark

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hair and was nearly twice the size of the driver. At the hearing

Donovan identified the driver as Michael Fiasconaro of Lynn,

Massachusetts. Donovan testified that the Honda passed Spaulding

who had gotten out of the informant's car and stopped in an access

road between the parking lots and the exit. Donovan saw Spaulding

walk over to the Honda, open the door and get into the rear

passenger seat. The informant made a report to the same effect

over the wire. Donovan testified that he saw Spaulding lean

forward between the two front seats and talk to the occupants of

the Honda, then get out and run back to the informant's car.

Spaulding was in the Honda not more than forty seconds.

Prough testified that it was his opinion that, taking all

of the circumstances into consideration, including the brevity of

the encounter between Spaulding and the occupants of the Honda,

that a drug deal had taken place. He believed that the Honda

contained money, or drugs, or both.

Hamilton heard the informant say over the wire, "Okay,

we're all set. We're taking off." Both Deetjen and Prough

testified that this meant that the sale had been made and the

informant and Spaulding were going back to Maine. The defendant's

vehicle went in another direction. Prough radioed the police in

Saugus, Massachusetts, and asked them to stop the defendant's car

with a marked cruiser. This was done. The defendant and the

passenger, William Albright, were immediately arrested. The car

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was searched and the police seized $10,981 in currency, some of

which was taken from the defendant's person, but most was found

underneath the front passenger seat. The police also seized a

cellular telephone that was connected to the car's cigarette

lighter. The defendant admitted to the police that he owned the

Honda, the money and the telephone.

As soon as the informant's car crossed over the border

into Maine, MDEA agents stopped it, searched it and seized half a

pound of cocaine.

We end this section of the opinion by noting that the

record does not show either directly or indirectly that either

Massachusetts or Maine was mentioned on the tapes of the recorded

conversations. And the agents testifying at the hearing stated

they had not seen any drugs or money change hands.

IV. The Defendant's Argument

The defendant asserts that there was no probable cause

for the police to arrest him, search his motor vehicle, and seize

therefrom $10,981 and a cellular telephone. A warrentless arrest,

like the one at issue here, must be based on probable cause. See

United States v. Watson, 423 U.S. 411, 417 (1976); United States

v. Link, 238 F.3d 106, 109 (1st Cir. 2001); United States v.

DeMasi, 40 F.3d 1306, 1312 (1st Cir. 1994). Generally, if an

arrest is not based on probable cause, then statements and evidence

obtained as a result of the arrest are inadmissible. See Brown v.

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Illinois, 422 U.S. 590, 601-02 (1975); Wong Sun v. United States,

371 U.S. 471, 484-86 (1963); United States v. Jorge, 865 F.2d 6, 9-

10 (1st Cir. 1989). In United States v. Santana, 895 F.2d 850, 852

(1st Cir. 1990), a case very similar to this one, probable cause

was defined as follows:

Probable cause exists when "'the facts and
circumstances within [the police officers']
knowledge and of which they had reasonably
trustworthy information were sufficient to
warrant a prudent [person] in believing that
the [defendant] had committed or was
committing an offense.'" United States v.
Figueroa, 818 F.2d 1020, 1023 (1st Cir. 1987)
(quoting Beck v. Ohio, 379 U.S. 89, 91
(1964)). In other words, we consider the
totality of the circumstances in evaluating
whether the government demonstrated a
sufficient "'[p]robability . . . of criminal
activity,'" Id. at 1023-24 (quoting Illinois
v. Gates, 462 U.S. 213, 235 (1983)).
"Probability is the touchstone . . . . [T]he
government need not show 'the quantum of proof
necessary to convict.'" Id. at 1023 (quoting
United States v. Miller, 589 F.2d 1117, 1128
(1st Cir. 1978)).

We have no trouble deciding that there was probable cause

here. In fact it overflowed. Officer Prough's probable cause

determination was supported by three pillars of evidence. The

first was the CI's statements to Officer Deetjen that the purpose

of Spaulding's trip to Massachusetts was to purchase cocaine. The

reliability of an informant is critical to our determination of

whether that informant's statements can support a police officer's

finding of probable cause. See Link, 238 F.3d at 109-10; United

States v. Khounsavanh, 113 F.3d 279, 284 (1st Cir. 1997) ("an

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informant's 'veracity,' 'reliability' and 'basis of knowledge' are

all highly relevant in determining the value of his report."

(quoting Gates, 462 U.S. at 230)). There is no doubt that Officer

Deetjen had grounds for believing that the CI in this case was

reliable. In Officer Deetjen's estimation this informant was the

best he had ever worked with:

He was always on time, as directed, showed up
where he was supposed to be as directed, was
self-motivating as far as contacting people
and . . . going on his own to visit people to
set up things that we could later resurrect
with phone calls. Again, he was the best
cooperating defendant I've ever worked with.

Deetjen testified that the informant's cooperation resulted in

federal indictments of five or six persons, all of whom pleaded

guilty. See Link, 238 F.3d at 110. Even more important, Deetjen

was able to corroborate specific information provided by the CI.

See Gates, 462 U.S. at 244 ("Because an informant is right about

some things, he is more probably right about other facts. . . .").

It was the CI, for example, who initially informed Deetjen about

Spaulding's drug trafficking. Deetjen was then able to confirm the

CI's claims regarding Spaulding's drug trafficking via the

controlled purchases. After each of the controlled purchases, the

CI provided Deetjen with details about the transaction; details

which were later verified by electronic recordings or follow-up

telephone calls from the CI to Spaulding. In short, Officer

Deetjen had a well founded belief that the informant was reliable.

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 The defendant attacks this first pillar of evidence by

claiming that Officer Prough could not rely on the informant's

statement that the purpose of Spaulding's trip to Massachusetts was

to purchase cocaine. This argument requires some discussion. As

we understand it, the defendant contends that when determining the

existence of probable cause for an arrest, a district court may

consider only the information possessed exclusively by the

arresting officer and his on-scene colleagues, and not the

collective knowledge possessed by all the officers involved in the

investigation. Applying this theory to the case, the defendant

argues that the arresting officer, Prough, did not have probable

cause to make an arrest because he failed to make his own

determination of the CI's reliability, and instead relied on an

assessment of the informant's reliability made by Deetjen, who was

the informant's handler, but was not at the scene of the

defendant's arrest.

Controlling precedent directly contradicts the

defendant's argument. In United States v. Taylor, 162 F.2d 12, 18

n.2 (1st Cir. 1998), this court found that information regarding an

informant's reliability could be imputed from one desk officer to

field officers cooperating in an investigation, even when the desk

officer was not the confidant's usual handler, and therefore in

less of a position to make judgments about the informant's

reliability than Officer Deetjen.

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 The defendant has overstated the case he cites in support

of his argument, United States v. Cook, 277 F.3d 82 (1st Cir.

2002). Cook does not stand for a hard and fast rule that a

probable cause determination may include only information known to

officers present at the scene of the arrest. Id. at 86. Rather,

we read Cook to offer one fact-specific scenario of how the

collective knowledge principle may be applied without promoting

illegal searches. Id. Moreover, we have recognized applications

of the collective knowledge principle that is broader than what the

defendant now urges us to adopt; we have said, for example, that

"the focus is upon the collective knowledge possessed by, and the

aggregate information available to, all the officers involved in

the investigation." See United States v. Winchenbach, 197 F.3d

548, 555 (1st Cir. 1999); see also Link, 238 F.3d at 109 (allowing

collective knowledge of officers "involved" in arrest).

Accordingly, Cook does not set the maximum reach of the collective

knowledge principle as the defendant suggests in his brief. The

district court, therefore, did not err in holding that Prough was

allowed to rely, in part, on Deetjen's assessment that the

informant was reliable.

The second pillar of evidence supporting Prough's

probable cause determination was the incriminating statements made

by Spaulding to the CI during the car ride from Maine to

Massachusetts. During the conversation, Spaulding described his

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connection to his drug source and how he was paid. Spaulding also

told the informant how he put property in other people's names so

that it would not be seized. These incriminating statements were

transmitted in real-time to the officers involved in the

investigation, including Prough.

The final evidentiary pillar consisted of the

observations made by the police in the parking lot of the Mexican

restaurant in Massachusetts. See United States v. Arvizu, 534 U.S.

266, 273 (2002) (officers permitted "to draw on their own

experience and specialized training to make inferences from and

deductions about the cumulative information available to them that

'might well elude an untrained person.'") (quoting United States v.

Cortez, 449 U.S. 411, 418 (1981); Martinez-Molina, 64 F.3d at 729.

Once Spaulding and the informant arrived in the parking lot,

Spaulding exited the car and used his cellular phone. Spaulding

then reentered the car and Prough heard him say over the

transmitter, "the guy is on his way." Shortly thereafter, a green

Honda pulled into the parking lot. Spaulding was seen leaving the

informant's car and going to the Honda. He was in the Honda not

longer than forty seconds. While in the Honda, Spaulding was

observed leaning between the front seats of the Honda, speaking

briefly to the occupants and then quickly returning to the

informant's car. Although none of the observing officers saw money

or drugs change hands, it was the opinion of the officers that

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based on their experience, there had been a purchase of drugs by

Spaulding and what had transpired was typical of a drug

transaction. In short, there consisted of ample probable cause

to support the warrentless arrest of the defendant. The

defendant's incriminating statements made after his arrest are

therefore admissible. See United States v. Curry, 751 F.2d 442,

450 (1984). It is also well established that the defendant's

lawful arrest permits the police to search his person and the

passenger compartment of his vehicle. See New York v. Belton, 453

U.S. 454, 460 (1981); United States v. Doward, 41 F.3d 789, 792-93

(1st Cir. 1994); see also Winchenbach, 197 F.3d at 552 (1st Cir.

1999) ("[I]t is settled beyond peradventure that a search of an

individual's person made incident to a valid arrest is itself

valid, despite the absence of an arrest warrant."). Thus, the

$10,981 and cellular telephone are admissible.

We also agree with the district court that there was an

independent basis for upholding the search of the defendant's

vehicle. In a case that goes back to prohibition days, the Supreme

Court held that a warrantless search of an automobile based upon

probable cause to believe that the vehicle contained evidence of a

crime did not contravene the Fourth Amendment's warrant

requirement. Carroll v. United States, 267 U.S. 132, 153 (1925).

This ruling was reaffirmed in California v. Acevedo, 500 U.S. 565,

569 (1991). We have held to the same effect. See United States v.

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Staula, 80 F.3d 596, 602 (1st Cir. 1995); Martinez-Molina, 64 F.3d

at 730. The facts described above demonstrate that Officer Prough

had probable cause to believe that the defendant's vehicle

contained evidence of a drug transaction. Therefore, the search of

the defendant's vehicle and seizure of his currency and cell phone

were lawful, and the evidence admissible.

The defendant makes one final argument which merits

discussion, albeit briefly. The defendant contends that the

district court erred in finding probable cause as to him because it

found that there was no probable cause to arrest Albright, the

passenger in the defendant's car. The defendant argues that he and

Albright were identically situated and therefore the same ruling

should have been made as to him. Whether the district court was

correct in its ruling as to Albright is not for us to decide in

this case. Our inquiry here is limited to whether, at the time of

the arrest, Officer Prough had probable cause to arrest the

defendant and search his vehicle. See United States v. Reyes, 225

F.3d 71, 75 (1st Cir. 2000); United States v. Diallo, 29 F.3d 23,

26 (1st Cir. 1994). Having answered this question in the

affirmative, we need not, and do not, delve into the district

court's ruling regarding Albright.

The judgment of the district court is affirmed.

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