U.S. v . Benedict CR-05-059-JD 10/06/05 P UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

United States of America v. Criminal N o . 05-cr-059-01-JD Opinion N o .

Dervon Benedict

O R D E R

Dervon Benedict has moved to suppress evidence allegedly

seized from his person during his warrantless arrest on the

ground that it was not supported by probable cause.1 The

government objects to suppression. The court held an evidentiary

hearing on the motion on September 8 , 2005.

Background

The court makes the following findings of fact based on the

testimony of Officer Matthew A . Nelson, his investigative report,

and his fellow officer’s affidavit made in support of a warrant

to search Benedict’s vehicle following his arrest. Although

Benedict also submitted an audiotape of certain telephone

conversations he had prior to his arrest, the poor quality of the

recording made it largely unintelligible when played at the

1 Benedict also moves to suppress a brief comment he allegedly made to the arresting officers. hearing. The tape therefore has little evidentiary value, though

the court has considered it to the extent possible.

In June 2004, the Concord, New Hampshire, Police Department

received a tip from a confidential informant (“CI N o . 1”) that an

Hispanic male known as “D” regularly traveled to the city to ply

crack cocaine, arriving on Thursday night and leaving on Saturday night or Sunday morning after his supply ran out. CI N o . 1 added

that D, who lived in the Boston area, drove a beige Cadillac and,

while in Concord, stayed with a woman named Heidi Rowell on

Pierce Street. Around that time, the police saw a beige Cadillac

with Massachusetts plates parked around the corner from Rowell’s

residence. A check on the plates revealed that the car was

registered to the defendant.

In November, 2004, “D” was identified to the Concord Police

by a second confidential informant (“CI N o . 2") as Dervon Benedict, a “big time dealer” of crack. CI N o . 2 said that

Benedict typically arrived in Concord around 7 p.m. each Thursday

and stayed until his supply was exhausted, usually on Saturday,

when he returned to the Boston area. According to this

informant, Benedict generally brought about five hundred rocks,

which he sold for $50 or $100 each, and stayed with Heidi Rowell

on Pierce Street. CI N o . 2 also gave what he remembered to be

Benedict’s cellphone number and described his vehicle as a dark

2 green four-door sedan. Checking on this last piece of

information, the police learned that a green four-door Toyota

Avalon was registered to Benedict in Massachusetts.

A third confidential informant on Benedict’s alleged

activities emerged when the Concord police arrested a man for

selling prescription pills in Concord. This man (“CI N o . 3 ” ) , an admitted crack user, told Nelson on February 1 6 , 2005, that

Dervon Benedict or “D” would be arriving at the residence of CI

N o . 3 the next day to deliver the drug for him to sell in

Concord. CI N o . 3 added that Benedict had two vehicles, a

champagne-colored Cadillac and a green Toyota, but that he

sometimes used CI N o . 3’s car, which had New Hampshire plates,

while delivering drugs in Concord in an attempt to avoid the

suspicion Benedict thought his own Massachusetts plates would

attract. CI N o . 3 said that Benedict sold half-gram rocks for $50 each and gram rocks for $100 each, keeping his wares in the

front waistband or crotch of his pants. Like the other

informants, CI N o . 3 related that Benedict traveled to Concord

from the Boston area every Thursday to conduct these sales.

CI N o . 3 also knew that Benedict’s cellphone number was

(617) 816-4894–-one digit off from the number given by CI N o . 2 .

Nelson acknowledged in his testimony at the suppression hearing

that he does not know one way or the other about any prior

3 relationship among the informants. At any rate, with CI N o . 3’s

assent and authorization from the county attorney, Nelson

proceeded to monitor and record CI N o . 3’s call to Benedict

around 11 p.m. on November 1 6 . Again, although the tape of this

conversation is unclear, Nelson recalls that Benedict said he was

“getting the shit together” and would arrive on Thursday around 2 p.m. Nelson understood this to mean that Benedict was preparing

the crack to bring to Concord at that time. Based on his review

of the tape, however, Benedict’s counsel says that his client had

also mentioned “trying to get the girls together,” to which CI

N o . 3 replied, “You always say that, man.” Benedict therefore

argues that “while one might infer that the conversation was

about drugs, one might just as easily infer that it was not.”

The next morning, with Nelson and another officer listening

pursuant to further authorization from the county attorney, CI N o . 3 made several calls to Benedict’s number. Although the

informant’s first attempts reached only an answering machine,

which played a message indicating that the caller had reached D,

CI N o . 3 eventually spoke to Benedict at 11:40 a.m. According to

Nelson, Benedict said that he planned to “get the shit together”

and leave for Allenstown, New Hampshire, not far from Concord,

around 2 p.m. that day. Benedict’s lawyer, however, believes

based on his review of the tape that his client might have

4 actually used the less suspicious expression “get my shit

together,” as in “get my act together” as one would before

leaving on any trip. Benedict added that he would not be driving

the Cadillac, because he wanted to avoid putting additional miles

on it before he tried to sell i t . The police inferred that

Benedict would be driving the Avalon instead. The Concord police contacted their counterparts in Boston,

who provided a photograph of Benedict from his January 2 5 ,

2005,arrest there on an assault charge. Nelson and other law

enforcement officers then set up surveillance near the spot in

Allenstown where Benedict had said he was headed. At around 3:30

p.m., one of the officers saw a green Avalon bearing the plates

registered to Benedict with a man matching his booking photo

behind the wheel. The police stopped the vehicle, arrested the

driver, and during the incident search found two large plastic bags containing a number of individually packaged white rock-like

objects in the waistband and crotch of his pants. The driver,

identified as Benedict, was taken into custody; the vehicle was

impounded. Testing revealed the rocks to be crack cocaine.

Discussion

“A warrantless arrest of an individual in a public place for

a felony . . . is consistent with the Fourth Amendment if the

5 arrest is supported by probable cause.” Maryland v . Pringle,

(2003). As Benedict recognizes, “‘[p]robable 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.’” Mot. Suppress ¶ 10 (quoting United States v .

Fiasconaro,

8 , 34-35 (1st Cir. 2002)) (further internal

quotation marks and bracketing omitted). Whether probable cause

exists depends on the totality of these circumstances. Pringle,

(citing Illinois v . Gates,

(1983)); see also, e.g., Fiasconaro, 315 F.3d at 3 5 .

Where the information in question came from one or more

confidential informants, the First Circuit has assembled a non-

exhaustive list of factors to consider in evaluating probable cause, including the informants’ apparent veracity or basis of

knowledge, whether their statements are self-authenticating, the

extent to which their statements were corroborated where

reasonable and practicable, and any professional assessment of

the probable significance of their statements made by the law

enforcement officers in question. United States v . Zayas-Diaz,

(1st Cir. 1996); see also, e.g., United States

v . Capozzi,

2 7 , 333 (1st Cir. 2003); United States v .

6 Barnard,

0 , 93 (1st Cir. 2002). “‘None of these

factors is indispensable;’ the ultimate issue is whether the

totality of the circumstances establishes the credibility of the

informant’s story.” Capozzi,

(quoting Zayas-

Diaz,

1 1 ) .

Benedict argues that the circumstances here fail to show that the information provided by the confidential informants was,

in fact, credible, particularly because it lacked sufficient

detail to be considered self-authenticating and was not

corroborated by independent police investigation in any

significant respect. The court disagrees. First, rather than

simply identifying Benedict as a drug dealer, each of the

informants provided specific facts about Benedict’s activities,

including the schedule on which he visited Concord from Boston to

sell crack, the vehicle he drove, and, in the case of CI N o . 1 and CI N o . 2 , even the full name of the person he stayed with in

Concord and the street where she lived. Furthermore, CI N o . 2

and CI N o . 3 specified the prices and quantities of the drugs

which Benedict peddled. The informants’ credibility was

therefore “bolstered by the detail [they] provided about

[Benedict’s] criminal activities.” United States v . Strother,

4 , 68 (1st Cir. 2003); see also United States v .

Taylor,

, 6 & n.1 (1st Cir. 1993) (noting that

7 providing names and dates supports informant’s credibility).

This level of detail also undermines Benedict’s suggestion

that the informants’ accounts were not necessarily based on their

personal knowledge because Nelson’s report does not specifically

reference that fact. Indeed, any fair construction of the

information garnered from CI N o . 3 leads to the opposite conclusion. Not only did this informant claim that he had

provided his vehicle to Benedict for the purpose of delivering

drugs, but CI N o . 3 also knew Benedict’s phone number and the

precise date and approximate time when he would next be arriving

in the Concord area.2 Moreover, CI N o . 3 was able to engage

Benedict in two separate conversations where he discussed his

immediate plans in detail, right down to his decision to forego

mileage on his Cadillac in hopes of selling it. 3

These facts indicate that CI N o . 3’s knowledge of Benedict’s illegal activities was based on CI N o . 3’s participation in those

activities, rather than any intermediate source, and therefore

2 CI N o . 2 also thought he knew Benedict’s phone number, missing by only one digit. This suggests that CI N o . 2 also had prior dealings with Benedict. 3 Benedict has not directed the court’s attention to any exchange during these conversations suggesting that he did not readily recognize the caller. Indeed, according to Benedict, his comment about “getting the girls together” caused CI N o . 3 to remark, “You always say that, man,” suggesting that the two had talked about the subject often.

8 supports his credibility. “A specific, first-hand account of

possible criminal activity is a hallmark of a credible tip.”

United States v . Greenburg,

3 , 67 (1st Cir. 2005); see

also Barnard,

(“The credibility of an informant is

enhanced to the extent he has provided information that indicates

first-hand knowledge,” particularly of “concealed illegal activity as opposed to easily knowable, nonincriminating facts”).

Furthermore, CI N o . 3 , whom the police had arrested for his own

drug dealing, implicated himself in further criminal activity

through the information he gave about Benedict. Courts have

recognized such circumstances as tending to support the

informant’s credibility, given the disincentive to falsely

incriminate oneself. See, e.g., United States v . Harris,

(1971); United States v . Schaefer,

6 2 ,

566 (1st Cir. 1996) (citing cases). Benedict, of course, points out that neither of his recorded

conversations with CI N o . 3 specifically referenced drugs,

suggesting that the men could just as easily have been making

plans involving women or some other ostensibly innocent pursuit.

This reading, however, ignores everything else the police had

heard about Benedict, both from CI N o . 3 and the other

informants, at the time of those calls. All of these sources

said that Benedict routinely traveled to Concord with a sizeable

9 quantity of crack every Thursday. In light of this information,

it was reasonable to understand Benedict’s statements about

“getting . . . shit together” for his arrival in the Concord area

on Thursday afternoon to refer to the crack he regularly brought

with him.4 After all, “the probable cause standard is a

‘practical, nontechnical conception that deals with the factual and practical considerations of everyday life on which reasonable

and prudent men, not legal technicians, act.’” Pringle,

(quoting Gates,

) (further internal

quotation marks omitted). Furthermore, the police were entitled

to interpret Benedict’s comments in light of their experience

investigating drug crimes, see, e.g., Barnard,

4 ,

which, as Nelson testified at the suppression hearing, had taught

them that “getting the shit together” can serve as code for

readying drugs for sale. In a similar vein, Benedict argues that the information

actually corroborated by the police through independent

investigation consisted only of unremarkable details, such as his

ownership of vehicles meeting the description provided by the

informants and his parking near Rowell’s residence in Concord.

4 For this reason, Benedict’s suggestion that he actually used the phrase “get my shit together” makes no difference to the probable cause analysis.

10 But even “[c]orroboration of innocent activity can establish the

reliability of the informant because the activity might come to

appear suspicious in light of the initial tip.” Greenburg,

(citing Gates,

n.13). Thus, while the

presence of Benedict’s car near Rowell’s home did not in and of

itself indicate criminal activity, it confirmed part of the stories of CI N o . 1 and CI N o . 2 that Benedict regularly stayed

with Rowell after he drove to Concord to sell crack. See

(finding error in court’s conclusion that agent’s mere

observation of trucks entering and leaving defendant’s facility,

at time identified by informant as next scheduled fraudulent

repackaging of delivered meat, failed to corroborate informant’s

story); accord Gates,

.

In any event, Benedict’s argument in this regard ignores the

fact that “consistency between the reports of two independent informants helps to validate both accounts.” Schaefer,

. Here, among other similarities, all three informants

gave virtually identical accounts of Benedict’s schedule, two

provided similar descriptions of each of his two vehicles, and CI

No. 1 and CI N o . 2 both mentioned Rowell by name and street. The

informants’ stories therefore served to corroborate each other.

Finally, while Benedict faults the police for not resorting

to other investigative techniques, such as continued surveillance

11 or a controlled buy, to attempt to confirm the informants’

accounts, the circuit has answered a similar argument with the

reminder that the authorities need corroborate tips only insofar

as it is “‘reasonable and practicable’” to do s o . Greenburg,

n.3 (quoting Zayas-Diaz,

1 1 ) . As Nelson

testified at the hearing, because CI N o . 3 told police on February 16 that Benedict would be traveling to the Concord area

with a quantity of crack the very next day, there was

insufficient time to set up a controlled buy or otherwise try to

confirm that Benedict was in possession of the drugs as the

informant had claimed. The police therefore corroborated the

informants’ tips to a reasonable and practicable extent given the

circumstances of the investigation.

In any event, whether the authorities properly corroborated

an informant’s story through their own efforts is but one of the factors which goes into the credibility assessment. E.g.,

Capozzi,

. Even if the police should have done

more by way of independent investigation, then, it does not

follow that the informants’ accounts were not credible,

particularly in light of the other factors already discussed.

The same is true with regard to Benedict’s suggestion that the

informants could not have been credible because they had not

provided reliable information in the past. See, e.g., Greenburg,

12

7 ; Barnard,

4 . Based on the totality

of the circumstances, the court concludes that the informants’

accounts of Benedict’s illegal activities were credible.

Given this conclusion, the court also rules that the police

had probable cause to believe that Benedict was in possession of

more than five grams of cocaine base, a felony, see

(a), at the time of his arrest. The police had information

from all the informants that Benedict regularly traveled to the

Concord area on Thursdays with a large quantity of crack to sell.

Moreover, CI N o . 3 told the authorities that Benedict planned to

come to the area to provide him with crack on the day Benedict

was ultimately arrested, and confirmed those plans through two

calls where details of the meeting, such as the time and the car

he would be driving, were discussed. During these calls, the

police themselves understood Benedict to say that he would head to the Concord area after preparing the drugs for sale. This

information was adequate to furnish probable cause to arrest

Benedict when the police saw him driving his Avalon toward the

appointed meeting place on November 1 7 . See, e.g., United States

v . Link,

(1st Cir. 2001).

13 Conclusion

For the foregoing reasons, Benedict’s motion to suppress

(document n o . 10) is DENIED.

SO ORDERED.

CIfrttiWu, • f, Joseph A. DiClerico, Jr. United States District Judge October 6, 2005 cc: Jonathan Saxe, Esquire Clyde R.W. Garrigan, Esquire U.S. Probation U.S. Marshal

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