United States v. Almeida

          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


                                    -2-
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


                                       -3-
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


                                    -4-
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.

                                 -5-
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);


                                   -6-
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


                                     -7-
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


                                      -8-
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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