United States Court of Appeals
For the First Circuit
No. 05-1250
UNITED STATES OF AMERICA,
Appellee,
v.
B.J. ALMEIDA,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
Before
Torruella, Circuit Judge,
Campbell, Senior Circuit Judge,
and Howard, Circuit Judge.
Nicholas J.K. Mahoney for appellant.
Paula D. Silsby, United States Attorney, and Margaret D.
McGaughey, Assistant United States Attorney, Appellate Chief, for
appellee.
January 10, 2006
HOWARD, Circuit Judge. B.J. Almeida appeals the district
court’s denial of his motion to suppress evidence introduced at
trial that led to his conviction for possession with the intent to
distribute five or more grams of cocaine base. See 21 U.S.C. §§
841(a)(1) & 841(b)(1)(B). We affirm.
I.
Police officers in Lewiston, Maine, placed a residence on
Vail Street under surveillance after receiving information from
reliable sources that drugs, including cocaine base, were being
distributed from an apartment at this address. While conducting
the surveillance, Officer Gregory Boucher began to follow an
automobile after he observed it pick up a passenger, noted by
Boucher to be a black male, outside of the building. He
immediately called another officer, Eric Syphers for assistance.
After Officers Syphers and Boucher observed the car run a stop
sign, Syphers used his marked police car to pull it over into a
parking lot. Officer Wayne Clifford arrived seconds later.
Officers Syphers and Clifford approached the car and
spoke with the driver, a white male, who identified himself as
Andrew Ash. Another white male sitting in the front identified
himself as Vernon Milliken, and a black male sitting in the back
and on the right identified himself as B.J. Almeida.
Ash got out of the car and told Officer Syphers that
Almeida had asked to be dropped off on Vail Street and then picked
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up after calling Ash on his cellular telephone. This narrative was
consistent with Officer Boucher’s earlier observations. Officer
Clifford received Ash’s permission to conduct a pat-down search and
discovered $1,000 in cash. This discovery raised Clifford's
suspicion that the occupants of the car were parties to a drug
deal. Ash told Officer Clifford that he had nothing to hide and
that the officers were free to search his car. They did so and
recovered a crack pipe, which later tested positive for cocaine
residue, under the right front seat. Clifford also found marijuana
in the car’s center console.
The officers separated the suspects. Officers Clifford
and Boucher spoke to Milliken, who said that he and Ash had picked
up Almeida in Gray, Maine, driven him to Lewiston and then dropped
him off so he could “score some crack” at the Vail Street
apartment. Officer Clifford then turned to Almeida, identified
himself as a police officer, and advised Almeida that officers had
observed him purchasing or selling illegal drugs. Almeida denied
the accusation and consented to a pat-down search, which yielded
$851 in cash in a pocket of his pants. Meanwhile, Milliken told
Officer Boucher that Almeida was concealing cocaine base between
his legs. Officer Boucher approached Almeida, advised him that he
knew that he had drugs in between his legs, and suggested that he
“do the right thing” and surrender it. Almeida stated, “Yeah, I
got something.” Boucher observed him reach into his pants and
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remove a clear plastic bag that contained 11.2 grams of cocaine
base. A federal grand jury subsequently indicted the three men for
trafficking in crack cocaine.
Almeida moved to suppress the statement he made admitting
possession of drugs and his act of producing the cocaine base. He
argued that his words and conduct were custodial "statements"
obtained in violation of Miranda v. Arizona, 384 U.S. 436 (1966).
At an evidentiary hearing before a magistrate judge, the government
stipulated that Almeida was “in custody” for purposes of Miranda
when Officer Boucher asked him to surrender the hidden crack, and
that it would not offer Almeida’s statement, “Yeah, I got
something,” in its case-in-chief. But the government also took the
position that the manner in which it recovered the crack, and the
crack itself, were admissible. One of the government's arguments
was that, even if Almeida had not turned the crack over to Officer
Boucher, inevitably the contraband would have been discovered. The
government argued that probable cause to arrest Almeida existed
after Officers Boucher and Clifford found the crack pipe and
marijuana in the car, that the officers in fact would have arrested
Almeida, and that, after the arrest, Almeida would have been strip-
searched, and the drugs discovered, at the local jail. The
magistrate judge agreed and recommended that the district court
deny Almeida’s suppression motion under the inevitable discovery
doctrine. After the district court accepted the magistrate’s
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recommendation, Almeida entered a conditional guilty plea,
reserving an appeal of the suppression ruling.
II.
In assessing the denial of the suppression motion, we
review the district court's factual findings for clear error and
its legal conclusions de novo. See United States v. Maguire, 359
F.3d 71, 76 (1st Cir. 2004). As it did below, the government
argues for the inevitable discovery exception to the exclusionary
consequences of a Miranda violation. Almeida responds that the
drugs were obtained in violation of Miranda, but has not, in his
brief, challenged the asserted inevitable discovery basis for
admitting the evidence. He has therefore waived his right to
challenge the government's inevitable discovery assertion. But,
even apart from the waiver, if we consider the inevitable discovery
issue on the merits, we nevertheless believe that the district
court correctly applied the inevitable discovery exception in these
circumstances.1
The purpose of the exclusionary rule is to deter law
enforcement officers from violating a defendant’s rights. See
United States v. Capozzi, 347 F.3d 327, 332 (1st Cir. 2003). The
inevitable discovery exception recognizes that, if the evidence
would have been discovered lawfully, “the deterrence rationale has
1
We take no position on whether there was a Miranda violation
in this case.
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so little basis that the evidence should be received.” Nix v.
Williams, 467 U.S. 431, 444 (1984). The burden of proving that the
exception applies rests with the government. Id.
In evaluating inevitable discovery claims, we ask three
questions: first, whether the legal means by which the evidence
would have been discovered was truly independent; second, whether
the use of the legal means would have inevitably led to the
discovery of the evidence; and third, whether applying the
inevitable discovery rule would either provide an incentive for
police misconduct or significantly weaken constitutional
protections. See United States v. Pardue, 385 F.3d 101, 106 (1st
Cir. 2004).
We begin by considering whether Almeida's arrest, which
the government says would have set in motion the chain of events
leading to the discovery of the crack, was truly independent of any
interrogation that caused Almeida to turn over the drugs. An
arrest is considered to be independent if (1) the police, in fact,
would have arrested the defendant, even without first having
discovered the challenged evidence, and (2) in the absence of the
challenged evidence, the officers nevertheless had probable cause
to make the arrest without the challenged evidence. See, e.g.,
United States v. Glenn, 152 F.3d 1047, 1049-1050 (8th Cir. 1998);
United States v. Jones, 72 F.3d 1324, 1331-1333 (7th Cir. 1995);
United States v. Moore, 37 Fed. Appx. 963, 967 (10th Cir. 2002);
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United States v. White, No. 95-5752, 1997 WL 159540, at *4 (4th
Cir. Apr. 7, 1997) (unpublished disposition). Both conditions are
met here.
The district court credited Officers Boucher's and
Clifford’s testimony that they would have arrested Almeida after
discovering the crack pipe, and we see no basis in the record for
upsetting that determination. Discovery of the pipe, made as a
result of Ash’s consent to search the car, preceded (and thus was
independent of) Officer Boucher's request that Almeida turn over
the drugs.
So too probable cause existed for the arrest; at the time
of arrest, “the facts and circumstances within [the officers’]
knowledge and of which they had reasonably trustworthy information
were sufficient to warrant a prudent man in believing that the
petitioner had committed or was committing an offense." Beck v.
Ohio, 379 U.S. 89, 91 (1964). Under federal law, a person is
guilty of a crime if he or she actively or constructively possesses
even a small quantity of crack cocaine. 21 U.S.C. § 844(a); United
States v. Jeffers, 524 F.2d 253, 257 (7th Cir. 1975) (conviction
under 21 U.S.C. § 844(a) requires only a “trace” of a controlled
substance).
Here, the officers retrieved a crack pipe from beneath
the seat directly in front of Almeida. The officers had previously
witnessed Almeida enter and exit an apartment that they had been
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reliably told was a place where crack was being dealt. Moreover,
Milliken informed the officers that they had picked up Almeida for
the express purpose of “scoring some crack,” a substantial amount
of cash was found on Almeida, and neither Ash nor Milliken admitted
to possession of the pipe. This evidence, taken together,
established probable cause for the officers to arrest Almeida prior
to his having handed over the crack cocaine.
Turning to the question of whether the arrest inevitably
would have led to the discovery of the concealed drugs, the
government must demonstrate, to a high degree of probability, that
the evidence would have been discovered. See United States v.
Rogers, 102 F.3d 641, 646 (1st Cir. 1996).
Officers Boucher and Clifford testified that they would
have transported Almeida to the Androscoggin County Jail after they
arrested him, that the jail routinely strip-searched incoming
detainees as part of its intake processing, and that the drugs
would have been discovered at that time. Based on this testimony,
the district court found that the drugs would have been discovered
as a part of the routine search that would have followed Almeida’s
arrest. This finding is supported by the record and thus is not
clearly erroneous. See Maguire, 359 F.3d at 76.
Finally, we consider whether applying the inevitable
discovery doctrine in these circumstances would substantially
weaken Miranda protections or encourage police misconduct. See
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Pardue, 385 F.3d at 106. This inquiry is case specific and
requires an appreciation of the societal costs of the exclusionary
rule. See United States v. Scott, 270 F.3d 30, 45 (1st Cir. 2001).
Here, the government proved to the district court’s
satisfaction not only that the officers could have arrested
Almeida, but also that the officers would have arrested Almeida,
even had they not discovered the drugs he possessed. Because, as
discussed above, the officers would have eventually seized the
drugs by arresting Almeida (as they had planned to do before
questioning him), they had little incentive to try to obtain the
crack through unconstitutional means when a lawful means was
readily available. See id. (concluding that this aspect of the
inevitable discovery exception test was met where applying the
exception would "not act as an incentive to unconstitutional
behavior"). We therefore perceive no risk that applying the
inevitable discovery exception in these circumstances will erode
Miranda protections or encourage police misconduct.2
III.
For the reasons stated, we affirm Almeida's conviction
and sentence.
2
Almeida also contests his sentence on the ground that the
district court declined to give him a downward departure because
his criminal history score was inflated. The district court
declined to grant the departure because it determined that, under
the facts of the case, a departure was not warranted. The district
court's decision is thus not reviewable. See United States v.
Kornegay, 410 F.3d 89, 98 (1st Cir. 2005).
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