United States Court of Appeals For the First Circuit

No. 21-1365

UNITED STATES,

Appellee,

v.

SEBASTIAN BATISTA, a/k/a Jonathan,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Douglas P. Woodlock, U.S. District Judge]

Before

Barron, Chief Judge, Lynch and Thompson, Circuit Judges.

Robert L. Sheketoff, with whom Sheketoff & O'Brien was on brief, for appellant. Randall E. Kromm, Assistant United States Attorney, with whom Rachael S. Rollins, United States Attorney, was on brief, for appellee.

April 25, 2022 LYNCH, Circuit Judge. Sebastian Batista appeals from

his conviction of possession with intent to distribute 40 grams or

more of fentanyl. He contends that the district court erroneously

denied his motion to suppress evidence seized during a stop and

warrantless search of his vehicle. We find that the stop and

search were lawful because law enforcement had probable cause to

believe Batista was committing a crime when they stopped his

vehicle and affirm.

I.

On February 28, 2019, law enforcement, including Special

Agents James Cryan and Tyler McNally from the Drug Enforcement

Administration ("DEA") and Detective Jason Ferranti of the Waltham

Police Department, arrested a target in their fentanyl trafficking

investigation. Prior to his arrest, the target had sold over 150

grams of fentanyl to undercover law enforcement. The target agreed

to become a cooperating witness ("CW") and to identify his drug

supplier. The CW referred to his supplier as "Jonathan" and had

a telephone number to contact him.

That evening, the CW placed two recorded calls to his

supplier at Special Agent Cryan's direction, and Special Agent

Cryan monitored the CW's side of the conversation in real time.

In the first call, at 6:28 pm, the CW asked "Jonathan" to supply

him 200 grams of fentanyl and "Jonathan" responded by asking where

the fentanyl he had given the CW the day before was, to which the

- 2 - CW replied that it was sold. The CW called "Jonathan" again at

6:41 pm, and "Jonathan" asked, "That guy [presumably, the buyer of

the previous day’s fentanyl], he's a good guy?" and the CW replied,

"Yeah, he's a good guy and he wants more, so I told him, yeah."

"Jonathan" agreed to sell the CW the requested fentanyl. He and

the CW agreed to meet "there," which the CW took to mean their

usual meeting place on Pine Vale Road in Waltham. The CW told

Special Agent Cryan that his supplier would expect to see the white

van owned by the CW's drug trafficking partner at the meeting

location.

The meeting place was a low-traffic residential

neighborhood street near the CW's residence. The CW rode in a law

enforcement vehicle with Special Agent Cryan and Detective

Ferranti to a predetermined location away from the meeting place.

At 8:19 pm, Special Agent Cryan directed the CW to place a recorded

call to his supplier to request an estimated time for the drug

deal. When "Jonathan" picked up, he said he was on his way and

would be there in 25 minutes. Special Agent Cryan, Detective

Ferranti, and the CW drove their car to a side street with a view

of the meeting place and parked.

Other law enforcement officers drove the white van which

was known to "Jonathan" as belonging to the CW's drug trafficking

partner to the meeting place. At around 9:00 pm, the officers

were driving the white van on Hardy Pond Road in the direction of

- 3 - Trapelo Road, and a black Jeep Cherokee passed them going in the

opposite direction. "Jonathan" then called the CW and they both

confirmed they were at the meeting place.1 "Jonathan," apparently

believing the CW was in the white van, called again and told the

CW that the white van was being followed and hung up abruptly.

Other officers observed the Jeep make a U-turn and speed off in

the direction of Trapelo Road shortly thereafter.

Law enforcement stopped the Jeep at the intersection of

Pine Vale Road and Trapelo Road. With their guns drawn, two

officers approached the Jeep and ordered the driver, later

identified as Batista, out of the car. A short while later,

Special Agent Cryan, driving the car the CW was in, pulled up

within a few feet of Batista, and the CW said, "that's him," to

which the agent replied, "Who?", and the CW responded, "that's

Jonathan." Special Agent Cryan reported the identification by

radio to all of the officers onsite.

Law enforcement searched the Jeep, recovering 200 grams

of fentanyl in a compartment under the driver's seat.

In their affidavits, Detective Ferranti and Special

Agent McNally attested that the vehicle was searched after the CW

identified Batista. The prosecution provided discovery to

Batista's defense counsel concerning statements made by the CW,

1 This call was not recorded because of its short duration.

- 4 - including that "when he made his identification of the defendant

as his drug supplier on the night of the defendant's arrest, the

law enforcement officers were already searching the defendant's

vehicle." From this, Batista contends that the officers may have

searched the Jeep before the CW identified him, and that the

government did not sufficiently establish that the identification

took place before the search. For reasons explained below, our

holding does not rest on the timing of the identification.

II.

Batista was indicted on one count of possession with

intent to distribute 40 grams or more of fentanyl on June 12, 2019.

On November 5, 2019, Batista filed a motion to suppress the

evidence obtained as a result of the February 28 stop and search.

Later that month, he obtained new counsel. On January 14, 2020,

he filed a second motion to suppress the fruits of the February 28

stop and search. He argued that the stop where he was pulled over

and ordered out of the car was a de facto arrest, for which law

enforcement would have needed probable cause. He also moved for

an evidentiary hearing. In an attached affidavit, Batista attested

that he was ordered from his vehicle at gunpoint after being pulled

over, that an officer told him that his license plate was not

valid, and that he heard one officer tell another that he thought

they had pulled over the wrong person. The district court heard

- 5 - argument on these motions on March 27 and April 2, 2020 but did

not hold an evidentiary hearing.

The district court denied Batista's motions to suppress

in a memorandum and order on July 9, 2020. It first concluded

that there were no inconsistencies between the government's

version of events and Batista's, though Batista alleged additional

facts. Of the additional facts Batista alleged, the district court

concluded only the contention that he had overheard an officer say

they might have stopped the wrong person was "potentially

material."

The district court found that the stop of the Jeep was

not a de facto arrest but a Terry stop, which requires law

enforcement to have only a reasonable suspicion, and law

enforcement had at that point "at least" a reasonable suspicion

that Batista was dealing drugs. The district court then found the

search of the car was appropriate under several exceptions to the

warrant requirement: the automobile exception, because there was

probable cause to believe there was contraband in the car; as a

search incident to arrest, because law enforcement had probable

cause to believe that the car contained drugs; and under the

doctrine of inevitable discovery, because, even if law enforcement

lacked probable cause to believe the car contained contraband, the

drugs would have eventually been discovered when the car was towed

incident to Batista's arrest.

- 6 - At a bench trial on November 4, 2020, Batista was found

guilty, and he was subsequently sentenced to 63 months'

imprisonment. This appeal followed.

III.

For a district court's denial of a suppression motion,

we review legal conclusions de novo and factual findings for clear

error. See United States v. Brown,

(1st Cir.

2010). "[T]he decision of whether to conduct an evidentiary

hearing is left to the sound discretion of the district court. On

appeal, our review is for an abuse of that discretion."

(citation omitted). The denial of a motion to suppress may be

affirmed for any reason apparent from the record. See United

States v. Maldonado-Peña,

(1st Cir. 2021).

Batista makes two arguments. First, he argues that the

district court abused its discretion in failing to hold an

evidentiary hearing on his motion to suppress. This is because,

he contends, among other reasons, he did not have personal

knowledge of material facts that law enforcement relied on in order

to justify the stop. He argues that as a result of this lack of

personal knowledge he cannot make the requisite threshold showing

for an evidentiary hearing that material facts are in dispute,

which, if resolved in his favor would entitle him to relief. See

United States v. Cintron,

(1st Cir. 2013). Most

importantly, he argues, he does not have personal knowledge of

- 7 - when the CW identified him, and whether it occurred before or after

the police searched the vehicle. Second, Batista argues that even

if an evidentiary hearing is not warranted, the district court

erred in denying the motion to suppress because the record shows

that Batista was de facto placed under arrest without probable

cause.

This case, however, does not turn on these arguments.

As Batista conceded at oral argument, if there was probable cause

for law enforcement to believe he was committing a crime when he

was pulled over, there was no error in denying the motion to

suppress.

"'[P]robable cause is a fluid concept -- turning on the

assessment of probabilities in particular factual contexts', and

as such 'must be evaluated in light of the totality of

circumstances.'" United States v. Martinez-Molina,

(1st Cir. 1995) (first quoting Illinois v. Gates,

(1983), and then quoting United States v. Torres-

Maldonado,

(1st Cir. 1994)). To establish probable

cause, the government "need only show that at the time of the

arrest, the facts and circumstances known to the arresting officers

were sufficient to warrant a prudent person in believing that the

defendant had committed or was committing an offense."

The government asserts that the officers had probable

cause when they stopped Batista's vehicle. Batista emphasizes

- 8 - that the district court only found that there was a reasonable

suspicion for the stop and argues that the circumstances

surrounding the stop did not add up to probable cause, particularly

because the officers did not have information beforehand about

what vehicle Batista would be driving.

The officers here had reason to credit the CW's

statements about his dealings with Batista. As we recognized in

United States v. Vongkaysone, when an informant "ha[s] been caught

dealing in drugs, it [is] to his advantage to produce accurate

information to the police so as to qualify for the leniency he

[seeks]."

(1st Cir. 2006). In this case, the CW

had been arrested in a fentanyl trafficking investigation and

agreed to cooperate. An informant's credibility is further

bolstered when the informant incriminates himself, see

(citing

United States v. Principe,

(1st Cir. 1974)),

as the CW here did in revealing his history of purchasing drugs

for resale from Batista.

The CW's recorded calls with Batista evidenced a history

of prior drug dealing. In the first call, Batista asked the CW

where the fentanyl he had given him the previous day had gone.

Batista and the CW were able to arrange a meeting for a drug sale

by referring to the meeting place simply as "there," suggesting

prior communication and meetings. In the calls from the meeting

place, Batista apparently recognized the white van, which the CW

- 9 - said his supplier knew belonged to the CW's drug trafficking

partner. These factors gave law enforcement ample reason to

believe that the CW was on the phone with his supplier and that

the drug deal would transpire as the CW told them it would. See

(noting that recorded phone calls "between [the informant] and

an individual who appeared to recognize him and eventually agreed

to sell him drugs [at a specified time and place] . . . . strongly

supported the belief that [the informant] was indeed in touch with

[his supplier] and that the arranged drug deal was as

represented."). It was apparent from the content of the recorded

calls that Batista believed that he was supplying drugs to the CW

so that the CW could resell them, and that he had supplied drugs

to the CW in the past for this purpose.

Batista's presence at the meeting place identified by

the CW around the time that the drug deal was set to take place

also gave the officers reason to think that he was there to sell

drugs to the CW. In United States v. Garcia, this court found

that probable cause was established in part because an informant

"told officers that his source was roughly ten minutes away, and

then roughly ten minutes later the [defendant's vehicle] pulled in

front of the house."

(1st Cir. 2020). The

meeting place in Waltham was a low-traffic residential

neighborhood, and the meeting took place at around 9:00 pm, so it

was unlikely that the Jeep was in the area for an unrelated reason.

- 10 - Moreover, Batista called the CW to say that he was in the area

when he passed the white van that the CW said his supplier would

recognize as belonging to the CW's drug trafficking partner.

It is true that nothing in the record suggests that law

enforcement knew what kind of car Batista would drive to the

meeting place. Cf. Garcia,

(noting that the

informant "told law enforcement that the supplier had on occasion

used a Dodge truck or silver truck to deliver drugs."). But law

enforcement had many reasons to believe that the drug supplier the

CW spoke to in the recorded phone calls was the man in the Jeep.

In addition to the Jeep's presence at the low-traffic meeting place

at the appointed time, the supplier called the CW to say that he

was in the area right after the Jeep passed the white van, then

called the CW again to tell him that the white van was being

followed, at which point the Jeep made a U-turn and sped away from

the scene.

In sum, law enforcement had probable cause to believe

that Batista was in possession of drugs with an intent to sell

them to the CW when they pulled him over on February 28. The

totality of the circumstances -- including the CW's apparent

history of dealings with his supplier, the recorded phone calls

arranging the drug deal, Batista's presence at the meeting place,

and the way that the Jeep's movements lined up with the supplier's

phone calls to the CW during the would-be drug deal -- would give

- 11 - a reasonable officer probable cause to believe that the driver of

the Jeep was the drug supplier, and that he possessed fentanyl

that he intended to sell to the CW for resale.

We need not consider whether Batista was placed under de

facto arrest when he was ordered out of the vehicle, as the

officers had probable cause to believe he was committing a crime

at that point, so, if it was an arrest, it was a lawful one. See

United States v. Raspberry,

(1st Cir. 2018)

("Probable cause is a prerequisite not only for a formal arrest

but also for a de facto arrest."). Similarly, because there was

probable cause in the record to believe there were drugs in

Batista's car at the time of the stop whether or not the CW

identified him before the search took place, no evidentiary hearing

was necessary.

IV.

The judgment of conviction is affirmed.

- 12 -