Filed: Sep. 15, 2006
Latest Update: Feb. 21, 2020
Summary: There was no evidence that, [Trooper Ferry] stuck his head inside the car.drivers side window would have been had the window been rolled up.1, Bell concedes that Trooper Ferrys use of a flashlight to, illuminate inside the vehicle from the outside did not constitute, a Fourth Amendment search.
Not for Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 05-2505
UNITED STATES OF AMERICA,
Appellee,
v.
WAWA BELL,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Steven J. McAuliffe, U.S. District Judge]
Before
Boudin, Chief Judge,
Torruella, Circuit Judge,
and Cyr, Senior Circuit Judge.
Jeffrey S. Levin, Assistant Federal Public Defendant, for
appellant.
Aixa Maldonado-Quiñones, Assistant United States Attorney,
with whom Thomas P. Colantuono, United States Attorney, was on
brief for appellee.
September 15, 2006
CYR, Senior Circuit Judge. At 5 p.m. on February 3,
2004, New Hampshire State Trooper Greg Ferry observed appellant
Wawa Bell’s vehicle, with its four-way flashers blinking, parked in
the breakdown lane of Highway I-93 in Salem, Massachusetts.
Trooper Ferry pulled his cruiser behind Bell’s vehicle to offer
assistance. Approaching the driver’s side window, Trooper Ferry
observed that Bell was sleeping, and tapped on the rolled-up
window. Bell awakened, rolled the window all the way down, and
informed Trooper Ferry that his car had broken down. Bell declined
assistance from Trooper Ferry, however, stating that the car
probably would restart if he let it sit for a couple of minutes.
Trooper Ferry asked to see Bell's license and registration in order
to fill out a routine “checkup slip,” which the State Police use to
keep a record of patrolling officers’ contacts with motorists.
Bell stated that the car was not registered in his name, but he
would try to find the registration. As Bell leaned over toward the
glove compartment, Trooper Ferry bent down and trained his
flashlight into the vehicle in the direction of the glove
compartment. Glancing downward, Trooper Ferry observed, on the
driver’s side door armrest, a clear plastic straw with white powder
residue on its tip, and a folded dollar bill. Trooper Ferry then
shone the flashlight on the armrest, at which point Bell became
visibly nervous, and placed his wallet on top of the straw. Based
upon his law enforcement experience, Trooper Ferry concluded that
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the white powder was an illegal substance, and placed Bell under
arrest. During the ensuing search of Bell’s person incident to the
arrest, Trooper Ferry found a bag of cocaine, and a subsequent
inventory search of the vehicle disclosed crack cocaine, marijuana,
and assorted drug paraphernalia.
Following his one-count indictment for possession of
cocaine base with intent to distribute, 21 U.S.C. § 841(a)(1), Bell
submitted a motion to suppress the evidence seized during and after
his arrest, contending, inter alia, that Trooper Ferry had violated
his Fourth Amendment rights when he stuck his head into the window
of the car in order to observe the driver’s side door armrest. At
the suppression hearing, Trooper Ferry testified as follows on
cross-examination:
Q: At this point when you look down, are you
standing outside the vehicle?
A: Yes, I am.
Q: And is your head inside the vehicle?
A: I don’t believe it’s inside the vehicle.
I was adjacent to the vehicle, the
driver’s door.
Q: Did you put your head in the window?
A: It may have been in the window.
Obviously I was looking in the glove box.
Q: So that your head may have been inside
the window?
A: I wasn’t sticking my head inside the car
if that’s what you’re saying.
Q: Right. But when you look down and see
something in the door handle, are you –
A: My head’s at the window. I bent down.
Q: So is your head partially where the
window would have been, let’s say?
A: Yeah, it could have been.
(Emphasis added.). Denise Babbitt, Bell’s fiancee, testified
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regarding several photographs she had taken of the vehicle after
Bell's arrest, purporting to demonstrate that a person standing
outside the driver’s side window could not have seen the armrest
unless his head partially intruded past the plane where the rolled-
up window would have been.
The district court denied the suppression motion, noting:
Did he see those items in plain view? . . . I
find that he did. There was no evidence that
[Trooper Ferry] stuck his head inside the car.
He testified specifically that he did not. . .
. Was he at the window? He was. Was the
straw and the means of transporting the
narcotics visible to him in plain view from
outside the car at the window? It was.
The district court found the Babbitt photographs “unhelpful because
they’re not taken from the right vantage points.” The court later
stated:
If you’re suggesting that your case is going
to turn on, did two millimeters of [Trooper
Ferry’s] forehead skin pass within one micron
of the inside surface of the window had it
been up, I can’t help you there. I can’t make
that discrete a finding based on the
transcript that you have given me or the
evidence you have presented.
In due course, Bell entered a conditional guilty plea reserving the
right to appeal from the denial of his suppression motion, which he
now exercises.
On appeal, Bell reiterates his contention that Trooper
Ferry admitted that his head partially intruded inside the window
of the vehicle, and since Trooper Ferry did not observe the
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contraband on the armrest from a lawful vantage, the search is not
sustainable under the plain view doctrine.
We review the denial of a suppression motion under a
bifurcated standard, assessing the district court's legal
conclusions de novo, and its subsidiary findings of fact for clear
error. See United States v. Mahler, 454 F.3d 13, 17 (1st Cir.
2006). We accord considerable deference to the district court’s
assessments of witness credibility, see United States v. Ivery,
427
F.3d 69, 72 (1st Cir. 2005), cert. denied,
126 S. Ct. 1448 (2006),
and view all evidence and reasonable inferences therefrom in the
light most favorable to the government, see United States v. Cook,
277 F.3d 82, 84 (1st Cir. 2002).
The government justifies Trooper Ferry’s seizure of the
contraband from the Bell vehicle's armrest pursuant to the “plain
view doctrine,” which validates a seizure where “(1) the seizing
police officer lawfully reached the position from which he could
see the item in plain view; (2) the seizure satisfied the probable
cause standard; and (3) the seizing officer had a ‘lawful right of
access to the object itself.’” United States v. Antrim, 389 F.3d
276, 283 (1st Cir. 2004) (citation omitted), cert. denied,
544 U.S.
936 (2005). Bell’s argument relates only to the first criterion,
since he maintains that the record compels a finding that Trooper
Ferry’s head intruded into his car past the boundary where the
driver’s side window would have been had the window been rolled up.
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For present purposes, we shall assume, without deciding, that
Bell’s demarcation of an imaginary line, where the rolled-up window
would have been, has legal significance under the "plain view"
doctrine. However, whether Trooper Ferry leaned into the Bell
vehicle before observing the contraband is a quintessential issue
of fact.1 We discern no clear error in the district court's
negative response.
The district court explicitly credited Trooper Ferry’s
testimony that he “wasn’t sticking [his] head inside the car.” The
ensuing testimony, during which Trooper Ferry stated that his head
was “at” the window, may simply connote that he bent down outside
the window, so that his face was level with it. Plainly, it need
not connote that Trooper Ferry's head was “in” the space which
would be occupied by the rolled-up window. Trooper Ferry then
suggested simply that his head “could have been” “where the window
would have been.” It did not state that his head was where the
window would have been.
As the district court aptly noted, the suppression
hearing produced no evidence upon which the court reliably might
have determined the precise location of the trooper’s head before
he viewed the contraband. Nor was any other eyewitness testimony
1
Bell concedes that Trooper Ferry’s use of a flashlight to
illuminate inside the vehicle from the outside did not constitute
a Fourth Amendment “search.” See Texas v. Brown, 460 U.S. 730,
739-40 (1983).
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presented. Bell nevertheless invites us to engage in hyper-
technicality, unaccompanied by any statistical evidence from which
the court independently might have ascertained the question, such
as the trooper’s height, exact location in relation to the driver’s
side door, or the dimensions of the vehicle or the driver’s side
window. Tellingly, Bell has not included his fiancee’s photos of
the vehicle in the appellate record, thereby effectively conceding
the district court’s finding that the photos were “unhelpful.”
Plainly then, in these particular circumstances, it was not clear
error for the district court to credit the testimony that Trooper
Ferry “wasn’t sticking [his] head inside the car.” See, e.g.,
United States v. Stanfield, 109 F.3d 976, 979 n.1 (4th Cir. 1997)
(deferring to police officer’s version of his location during
“plain view” seizure inside vehicle). As Trooper Ferry was
lawfully positioned outside the Bell vehicle, the ensuing seizure
of the contraband from the driver’s side armrest was valid. See
Antrim, 389 F.3d at 283.2
2
None of Bell’s other arguments on appeal deserve extended
discussion. The contention that the trooper’s observation of the
contraband did not provide him with “probable cause” to make the
arrest is belied by the record evidence: Trooper Ferry, an officer
with ten years’ law enforcement experience, justifiably could
conclude that the straw with white powder, the folded currency (a
common mode of transporting illegal drugs), see, e.g., United
States v. Pittman, 418 F.3d 704, 708 (7th Cir. 2005), and Bell’s
sudden nervousness and attempt to hide the contraband, provided
more than adequate basis to arrest Bell on suspicion of drug
possession. Accordingly, the Bell challenge to the post-arrest
inventory search of the vehicle is likewise without merit.
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Affirmed.
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