Appeal from two interlocutory orders of the United States District Court for the Northern District of New York (Hurd, J.). The first order suppressed cocaine seized from Defendant's person incident to his warrantless arrest, as well as statements made by Defendant, based on a lack of probable cause to support the arrest. The order also suppressed evidence seized from Defendant's residence pursuant to the execution of a search warrant on the ground that without the reference to the cocaine seized from Defendant's person, the warrant application did not establish probable cause to search the residence. The second order denied the government's motion for reconsideration of the suppression decisions in the first order. We hold that the district court erred in determining that Defendant's warrantless arrest was not supported by probable cause, and thus evidence seized from Defendant's person and residence, as well as the statements made by Defendant during and after his arrest, should not have been suppressed.
Before: JACOBS, Chief Judge, CABRANES, and WESLEY, Circuit Judges.
The government appeals two interlocutory orders of the United States District Court for the Northern District of New York (Hurd, J.), entered on August 20, 2010 and October 29, 2010, respectively. The first order suppressed cocaine seized from the person of Defendant–Appellee Dean A. Steppello incident to his warrantless arrest, as well as statements made by Steppello, based on a lack of probable cause to support the arrest. The order also suppressed evidence seized from Steppello's residence pursuant to the execution of a search warrant on the ground that without the reference to the cocaine seized from Steppello's person, the warrant application did not establish probable cause to search the residence. The second order denied the government's motion for reconsideration of the suppression decisions in the first order. The government argues that the district court erred in determining that Steppello's arrest was not supported by probable cause. We agree and conclude that the evidence seized from Steppello's person and residence, as well as the statements made by Steppello during and after his arrest, should not have been suppressed.
On June 25, 2008, James Eric Jones, an investigator with the New York State Police Community Narcotics Enforcement Team ("CNET"), executed a search warrant at the residence of Richard Szuba. During the search, Szuba agreed to cooperate with police and identified Steppello as his cocaine supplier. Investigator Jones was aware that Steppello had been the subject of an earlier drug investigation and that he had sold cocaine in the presence of a New York state trooper in November 2001. Szuba indicated that his transactions with Steppello had been ongoing for approximately four years and that Steppello would supply him with four ounces of cocaine in exchange for approximately $3600 every two weeks. Szuba then described the coded nature of their cocaine transactions-Szuba would call Steppello on his cell phone and ask "Are you good?" and Steppello would deliver the cocaine to Szuba's residence shortly thereafter. Szuba showed the police Steppello's residence on the second floor of a two-story house, and described Steppello's vehicle as an Envoy or sport utility vehicle ("SUV").*fn1
While officers were questioning Szuba at his house, others, including Investigator Sullivan, were surveilling Steppello's residence. The officers had Szuba call Steppello to determine whether he would be nearby because during their surveillance of Steppello's home, they observed a person leaving the building.*fn2 At approximately 1:14 p.m., Investigator Jones closely observed Szuba call Steppello, whose telephone number was preprogrammed as a speed dial number in Szuba'a cell phone. During the conversation, Investigator Jones heard Szuba say "you good, this afternoon, 20 minutes." Although Investigator Jones knew that someone was speaking to Szuba, he could not hear what that person said. At the completion of the call, Szuba told Investigator Jones that Steppello would arrive at Szuba's house in twenty minutes with cocaine.
At 1:34 p.m., Investigator Sullivan observed a white male arrive at Steppello's residence in a silver GMC SUV and enter the residence. Five minutes later, Investigator Sullivan observed the white male get back into the vehicle and drive away. Investigator Sullivan followed the vehicle to the vicinity of Szuba's residence, where he terminated the surveillance to avoid detection. Investigator Sullivan immediately notified the officers at Szuba's residence that the person under surveillance was coming.
Although Szuba advised officers that he usually left the garage door open when Steppello delivered cocaine,*fn3 the police closed the door and hid in the garage. The white male arrived at Szuba's house and parked his GMC Envoy in the driveway. An officer inside the house relayed to Investigator Jones, who was in the garage, that Steppello called Szuba's cell phone ten times and Szuba's house once .*fn4 When the officers heard a person exit the vehicle, they proceeded to exit the garage and arrested the white male in the driveway. As the officers took the person to the ground to handcuff him, he uttered that "he could do somebody."
The officers immediately searched the person and found a small plastic bag containing cocaine in his pants pocket. The person arrested was Steppello. Moments later, after Investigator Jones issued Miranda warnings, Steppello stated that he wanted to speak to his ...