United States v. Dickey-Bey

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellant,

v.  No. 04-4265

MAURICE NORMAN DICKEY-BEY,

Defendant-Appellee.



Appeal from the United States District Court

for the District of Maryland, at Baltimore.

Andre M. Davis, District Judge.

(CR-03-463-AMD)

Argued: October 29, 2004

Decided: December 29, 2004

Before NIEMEYER and LUTTIG, Circuit Judges,

and HAMILTON, Senior Circuit Judge.

Reversed and remanded by published opinion. Judge Niemeyer wrote

the opinion, in which Judge Luttig and Senior Judge Hamilton joined.

COUNSEL

ARGUED: James Thomas Wallner, Special Assistant United States

Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Balti-

more, Maryland, for Appellant. Kenneth Wendell Ravenell, SCHUL-

MAN, TREEM, KAMINKOW & GILDEN, P.A., Baltimore,

Maryland, for Appellee. ON BRIEF: Thomas M. DiBiagio, United

States Attorney, Baltimore, Maryland, for Appellant.

2 UNITED STATES v. DICKEY-BEY

OPINION

NIEMEYER, Circuit Judge:

Police arrested Maurice Dickey-Bey without a warrant after

Dickey-Bey picked up a sealed package at Mail Boxes Etc. in Tow-

son, Maryland, and exited from the store. Police knew before Dickey-

Bey retrieved the package that it contained two kilograms of cocaine.

Following the arrest, officers searched Dickey-Bey’s automobile,

which was approximately 30 feet away, and discovered rental receipts

and keys for other mailboxes to which other packages, also known by

police to contain cocaine, had been sent.

On Dickey-Bey’s motion to suppress the evidence seized from his

vehicle, the district court concluded that police did not have probable

cause to believe that Dickey-Bey knew that the package contained

cocaine and that, therefore, the police did not have probable cause for

his arrest and for the search. The court also concluded that even if

probable cause for the arrest existed, the search of Dickey-Bey’s vehi-

cle was not a valid search incident to an arrest. It reasoned that

Dickey-Bey’s "association with the vehicle was too attenuated at the

time of the arrest to support application of the [New York v.] Belton

bright-line rule," which holds that the passenger compartment of a

motor vehicle may be searched incident to the lawful custodial arrest

of an occupant. See New York v. Belton, 453 U.S. 454, 460-61 (1981).

Based on the totality of the facts found by the district court, we

conclude, as a matter of law, that the police officers had probable

cause to believe that Dickey-Bey was knowingly possessing cocaine

and that the police officers had independent probable cause to believe

that Dickey-Bey’s automobile was being used as an instrumentality

of a crime. Accordingly, we reverse the district court’s suppression

order and remand for further proceedings.

I

Law enforcement officials in Los Angeles notified Sergeant John

Campbell of the Maryland State Police Package Drug Interdiction

Unit on September 23, 2003, that three packages would be arriving

UNITED STATES v. DICKEY-BEY 3

in the Baltimore area by overnight delivery service from The UPS

Store in Culver City, California, and that the packages were thought

to contain cocaine. The Los Angeles officers told Campbell that a

drug-detecting dog had "alerted positive" to the packages; that the

packages had the same return address; and that they were addressed

variously to Baltimore-area UPS and Mail Boxes Etc. retail stores,1

including one addressed to "Special Design at Box 187, Mail Boxes

Etc., 727 Dulaney Valley Road, Towson, Maryland."

The next morning, September 24, members of the Maryland State

Police Package Drug Interdiction Unit intercepted the three suspected

packages at two Baltimore-area UPS distribution facilities. At that

time, they also discovered a fourth package similarly addressed and

marked with the same return address. All four packages were scanned

by a drug-detecting dog, and in each case the dog alerted positive,

indicating the presence of a controlled substance.

With this information, the Maryland State Police obtained a search

warrant to open and search the four packages. In each package, the

officers found four large plastic tubs of hair gel — consistent with the

hair care theme indicated by the addressees’ names, such as "Natural

Feels" and "Special Design" — and in each tub they found one

plastic-wrapped block of cocaine weighing approximately one-half

kilogram. The four packages thus contained in the aggregate approxi-

mately eight kilograms of cocaine, having a street value of approxi-

mately $200,000.

The officers resealed the packages and transported them to the

addressee mailboxes for pickup. They also enlisted the assistance of

Baltimore City, Baltimore County, and Anne Arundel County police

to surveil each retail location. Maryland State and Baltimore County

police officers arrived at the Mail Boxes Etc. store on Dulaney Valley

Road at approximately 11:00 a.m. to stake out that location. Corporal

Chad Hymel of the Maryland State Police delivered the package

addressed to that location to undercover Baltimore County Police

Officer Douglas Kriete, who was to act as a Mail Boxes Etc.

employee. Officer Kriete briefed the Mail Boxes Etc. employees on

1

In 2001, UPS purchased Mail Boxes Etc., and some Mail Boxes Etc.

locations have been renamed The UPS Store.

4 UNITED STATES v. DICKEY-BEY

duty, and one employee advised Officer Kriete that Box 187 was

rented to "Lisa Ruiz," with a business name "Special Design," and

that the individual who customarily retrieved mail from Box 187 was

"a black male of average height, about 5’8" or 5’9", with a heavy

build," who usually wore some type of uniform shirt or jacket. Officer

Kriete communicated this description to the surveilling officers out-

side the store. He also told the other officers that he would not exit

the store unless an individual had accepted the package and was walk-

ing out: "Unless I come out of that building," Officer Kriete said,

"there was nobody to be arrested or nobody to be stopped." Officer

Kriete then assumed his role as a Mail Boxes Etc. employee.

At approximately 11:30 a.m., Baltimore County Detective Brian

Martin observed a brown Dodge Daytona automobile pull into the

Mail Boxes Etc. parking lot and back into a parking space. In the con-

text of anticipating the arrival of someone who would make a drug

pickup, Detective Martin found this conduct suspicious. All other

vehicles in the parking lot had pulled in front-first, and a customer

would have had to go out of his way to back into a parking space

given the layout of the lot. The person who exited the automobile also

fit the description of the person who customarily had picked up pack-

ages from Box 187. In addition, Detective Martin observed that the

person looked around the parking lot before approaching the store.

Detective Martin communicated over the radio to the other officers

that the person who had exited the brown vehicle matched the

description given by the Mail Boxes Etc. employee and was about to

enter the store.

As the suspect, who was later identified to be Dickey-Bey, entered

the store, the Mail Boxes Etc. employee identified Dickey-Bey to

Officer Kriete as the one who had customarily come to pick up pack-

ages from Box 187. Dickey-Bey approached the mailbox area and

asked for "any mail" in his box, and he was handed the package

addressed to "Special Design" at that box. Moments later, he exited

the store, with Officer Kriete following him. Upon hearing the

screeching wheels of approaching police cars, Officer Kriete placed

Dickey-Bey on the ground and under arrest. The officers variously

testified that Dickey-Bey was arrested approximately three to five feet

from the brown automobile in which he had arrived. An employee of

Mail Boxes Etc., however, testified that Dickey-Bey had not gotten

UNITED STATES v. DICKEY-BEY 5

that far and was still on the sidewalk when he was arrested, approxi-

mately 30 feet from his vehicle.

After Dickey-Bey was secured, Detective Martin told the other

officers that Dickey-Bey had "arrived, parked, and exited the brown

vehicle that was backed into the spot." Approximately 15 minutes

after Dickey-Bey was first placed on the ground, the officers pro-

ceeded to search the automobile and discovered folded-up rental con-

tracts and corresponding keys for various mailboxes at other UPS

retail stores, matching perfectly the addresses on the four recovered

packages. All of the contracts were in the name of "Lisa Ruiz." Offi-

cers also discovered a contract and key to a fifth mailbox that was

later found to contain a fifth package of hair-gel tubs packed with two

kilograms of cocaine.

Dickey-Bey was indicted for possession with intent to distribute "5

kilograms or more of a mixture or substance containing a detectable

amount of cocaine" and for conspiracy to distribute five kilograms or

more of cocaine. After pleading not guilty, he filed a motion to sup-

press "any and all evidence seized as a result of the illegal search of

the defendant’s 1989 Dodge Daytona" automobile.

Following a lengthy hearing on March 29, 2004, at which six wit-

nesses testified, the district court issued an order from the bench

granting Dickey-Bey’s motion to suppress. The court concluded that

there had been no probable cause to arrest Dickey-Bey and that the

search of Dickey-Bey’s automobile had been illegal. Considering first

whether the officers had probable cause to arrest Dickey-Bey, the dis-

trict court excluded from its consideration Detective Martin’s obser-

vations of Dickey-Bey’s arrival at the parking lot, including his

backing into a parking space and looking around before entering the

Mail Boxes Etc. store, noting that this information was not communi-

cated to Detective Kriete before Kriete placed Dickey-Bey under

arrest. Taking into account the remaining evidence, the court con-

cluded that the officers did not have probable cause to believe that

Dickey-Bey knew the package he picked up at the Mail Boxes Etc.

contained cocaine. In addition, the court concluded that even if there

was probable cause to support the arrest, the search of Dickey-Bey’s

automobile was too attenuated to be a valid search incident to arrest.

Refusing to credit police officer testimony that Dickey-Bey was

6 UNITED STATES v. DICKEY-BEY

arrested within three to five feet of his automobile, the court found

that he was arrested "some 30 feet or more away" and that a vehicle

at that distance could not be searched incident to arrest.

The government filed this interlocutory appeal challenging the dis-

trict court’s March 29, 2004 order granting Dickey-Bey’s motion to

suppress. See 18 U.S.C. § 3731.

II

Because the district court addressed and determined the legality of

Dickey-Bey’s arrest as important to its determination of whether the

search of Dickey-Bey’s automobile was legal, we will begin with

Dickey-Bey’s arrest. Inasmuch as the district court’s findings of fact

relevant to these determinations are not challenged on appeal, we

review its determinations de novo. See Ornelas v. United States, 517

U.S. 690, 699 (1996).

It is well-settled under Fourth Amendment jurisprudence that a

police officer may lawfully arrest an individual in a public place with-

out a warrant if the officer has probable cause to believe that the indi-

vidual has committed, is committing, or is about to commit a crime.2

See, e.g., Maryland v. Pringle, 124 S. Ct. 795, 799 (2003); United

States v. Humphries, 372 F.3d 653, 657 (4th Cir. 2004). "‘[P]robable

cause’ to justify an arrest means facts and circumstances within the

officer’s knowledge that are sufficient to warrant a prudent person, or

one of reasonable caution, in believing, in the circumstances shown,

that the suspect has committed, is committing, or is about to commit

an offense." Michigan v. DeFillippo, 443 U.S. 31, 37 (1979).

Probable cause is judged by an analysis of the totality of the cir-

cumstances, see Illinois v. Gates, 462 U.S. 213, 230 (1983), which are

weighed "not in terms of library analysis by scholars, but as under-

stood by those versed in the field of law enforcement," id. at 232.

Under this pragmatic, common sense approach, we defer to the exper-

tise and experience of law enforcement officers at the scene. See

Ornelas, 517 U.S. at 699. At bottom, the proper standard is intended

2

If the crime is a misdemeanor, however, it must be committed in the

officer’s presence. See Atwater v. Lago Vista, 532 U.S. 318, 354 (2001).

UNITED STATES v. DICKEY-BEY 7

to protect "citizens from rash and unreasonable interferences with pri-

vacy and from unfounded charges of crime," while at the same time

giving "fair leeway for enforcing the law in the community’s protec-

tion." Pringle, 124 S. Ct. at 799 (quoting Brinegar v. United States,

338 U.S. 160, 176 (1949)) (internal quotation marks omitted). And it

is a "fluid concept" that turns on "the assessment of probabilities," not

on any formula such as is applied to proof at trial. Gates, 462 U.S.

at 232. Thus, "even ‘seemingly innocent activity’ may provide a basis

for finding probable cause." Porterfield v. Lott, 156 F.3d 563, 569

(4th Cir. 1998) (quoting Taylor v. Waters, 81 F.3d 429, 434 (4th Cir.

1996)).

Dickey-Bey contended below and argues to us on appeal that there

was no probable cause for his arrest because there was no indication

that he had any knowledge of the illegal contents of the sealed pack-

age containing cocaine. He contends that "if there was probable cause

to arrest [him], then there would also be probable cause to arrest the

UPS courier who transported the box prior to . . . and after its arrival

in Maryland."

The government contends that probable cause in this case was pro-

vided by the contextual facts known to the officers at the time they

arrested Dickey-Bey. The officers knew that Dickey-Bey possessed a

sealed package containing two kilograms of cocaine and that:

(1) a significant amount of cocaine had [otherwise] been

shipped to Maryland from California; (2) . . . the unknown

sender in California had chosen to divide the total amount

of cocaine shipped into at least four separate parcels; and (3)

Dickey-Bey although not the lessee of the mailbox or the

addressee was an individual who had on occasion previously

picked up items at [Mail Boxes Etc.] from the mailbox to

which one of the parcels was addressed.

After examining each of the factors advanced by the government,

the district court agreed with Dickey-Bey and concluded that each

factor relied on by the government was insufficient to provide proba-

ble cause. At bottom, the court was troubled by the fact that under the

facts known to the arresting officers, Dickey-Bey could simply have

been an innocent courier sent to pick up mail.

8 UNITED STATES v. DICKEY-BEY

In reaching its conclusion, however, the district court failed to step

back and look at the totality of the circumstances and the reasonable-

ness of the officers’ belief, in light of those circumstances, that

Dickey-Bey was a knowing part of a larger drug operation. Although

it might sometimes prove useful to conduct a separate analysis of

each fact presented and to determine whether it contributes to a find-

ing of probable cause, such a fractured approach in this case led, as

it often does, to an aggregation of individual conclusions of insuffi-

ciency, prompting the court to conclude that the overall conduct was

seemingly innocent activity. See Porterfield, 156 F.3d at 569. In this

same vein, Dickey-Bey argues to us that if there is probable cause to

arrest one who picks up a sealed package containing cocaine, then

there is probable cause to pick up any innocent citizen who picks up

mail or a package containing contraband. Of course, his syllogism is

a correct one as far as it goes, but it fails to take into account the total-

ity of the circumstances that led the police officers in this particular

case to arrest Dickey-Bey.

The facts known to the officers before Dickey-Bey’s arrest

revealed a sophisticated, well-planned series of transactions, involv-

ing hundreds of thousands of dollars of cocaine. Each package

involved — and at the time of Dickey-Bey’s arrest, the officers had

learned of four — had the anonymous return address of a UPS retail

store in Los Angeles; each was shipped to a box number at a different

Baltimore-area store, thereby diffusing the risk and deflecting the sus-

picion that might have arisen had the packages been sent in a collec-

tion to one location; and each box was packaged and transmitted as

a shipment of hair gel to phantom businesses at mailboxes registered

to "Lisa Ruiz." The package held by Dickey-Bey at the time of his

arrest was sent to "Special Design, Box 187." The nature of the pack-

aging was systematic and consistent: Each package was filled with

tubs of hair gel, and each tub was filled with a plastic-wrapped block

of cocaine weighing one-half kilogram with a street value of approxi-

mately $12,500. These facts suggest the existence of a careful and

clever operation dealing in large quantities of cocaine. In assessing

probabilities, an experienced officer would conclude that the person

designated to pick up the packages was likewise part of the well-

planned operation. It would have made little sense for a large, sophis-

ticated operation to go to the lengths and organization demonstrated

in this case and then casually to commit the pickup of some $200,000

UNITED STATES v. DICKEY-BEY 9

worth of drugs to an unknown, uninformed, and perhaps untrustwor-

thy courier. To the contrary, such an operation would likely have sent

someone known to be trustworthy to pick up the packages and like-

wise would have insisted that the packages be picked up promptly, as

Dickey-Bey did in this case.

That Dickey-Bey could reasonably be believed to be part of the

conspiracy was reinforced by the evidence provided by the Mail

Boxes Etc. employee who on September 24 identified Dickey-Bey as

the same person who had regularly picked up packages from Box 187.

While it certainly was possible that the person retrieving the cocaine

was one totally innocent of the whole operation, all that is at issue is

the reasonableness of the officers’ belief that just as Box 187 was

selected as a drug distribution mailbox, the one who customarily cal-

led on it was likewise selected as part of a coordinated operation. This

was further indicated by the fact that Dickey-Bey arrived promptly to

pick up the package, about one hour after the promised delivery time

of 10:30 a.m. In short, the evidence known to police officers leading

to Dickey-Bey’s arrest reasonably justified their belief that Dickey-

Bey was part of the larger, illegal operation.

As the government summarized in its argument to the district court

to justify Dickey-Bey’s arrest, the officers on the scene knew (1) that

the operation was conducted with overall sophistication; (2) that sig-

nificant quantities of cocaine with a high value were being shipped

from California by next-day air to Baltimore; (3) that the packages’

disguise indicated a level of planning consistent with "more than just

a fly-by-night kind of operation"; (4) that the multiple packages were

sent to multiple locations; (5) that at least one of the targeted mail-

boxes was rented by a woman but that a man who had been picking

up packages from the box came to pick up the package on the day of

the arrest; and (6) that Dickey-Bey arrived "just about an hour after

the package was supposed to arrive at the particular location." We

would add to the government’s list the facts that because Dickey-Bey

repeatedly picked up from Box 187, it would have been unlikely for

a well-planned operation to have used a box served by one person

without that person having been involved; that Box 187 had appar-

ently been designated by a coordinated operation to serve as a distri-

bution point for a large quantity of drugs; and that the similarity with

which each box was packaged and the high value of cocaine involved

10 UNITED STATES v. DICKEY-BEY

pointed to a larger coordinated effort that would have been inconsis-

tent with a single innocent pickup of mail by an unknowing courier.

When "viewed from the standpoint of an objectively reasonable

police officer," Ornelas, 517 U.S. at 696, and "as understood by those

versed in the field of law enforcement," Gates, 462 U.S. at 232, the

circumstances presented to the officers in this case supported their

reasonable belief that Dickey-Bey was involved in a conspiracy for

the distribution of cocaine.

That Dickey-Bey might have evidence to present at trial to prove

his innocence or to establish a defense does not bear on the question

of whether officers acted reasonably in arresting him. In the totality

of the circumstances, Dickey-Bey’s "seemingly innocent activity" of

picking up a sealed package from a Mail Boxes Etc. store was but one

of many facts causing the officers to believe that he was part of a

larger operation. See Porterfield, 156 F.3d at 569. And because Offi-

cer Kriete had probable cause to believe that Dickey-Bey was a mem-

ber of a drug distribution conspiracy, he was authorized to arrest him

without a warrant. See United States v. Watson, 423 U.S. 411, 423-24

(1976).

III

The district court concluded that because Dickey-Bey’s arrest was

illegal, the search of Dickey-Bey’s automobile was likewise illegal

inasmuch as it was not incident to a lawful arrest. Alternatively, the

court concluded that even if probable cause existed to justify Dickey-

Bey’s arrest, the search of his automobile was "too attenuated" to be

a valid search incident to an arrest under New York v. Belton, 453

U.S. 454 (1981). In Belton, the Supreme Court held that police offi-

cers may search the passenger compartment of an automobile contem-

poraneously with the lawful custodial arrest of the automobile’s

occupant without the requirement of a separate probable cause for the

search. Id. at 460. And last term, the Supreme Court concluded that

Belton also applies to vehicle searches incident to arrest "when an

officer does not make contact until the person arrested has left the

vehicle." Thornton v. United States, 124 S. Ct. 2127, 2129 (2004).

The Thornton Court, however, specifically declined to reach the issue

of whether Belton is limited "to ‘recent occupants’ who are within

UNITED STATES v. DICKEY-BEY 11

‘reaching distance’ of the car," since petitioner Thornton "was in

‘close proximity, both temporally and spatially’ to his vehicle when

he was approached by [law enforcement officers]." Id. at 2132 n.2

(quoting United States v. Thornton, 325 F.3d 189, 196 (4th Cir.

2003)).

In this case, the district court concluded that Dickey-Bey’s arrest

occurred "some 30 feet or more" from his vehicle approximately 15

minutes after he was first taken down as part of his arrest and that

these facts did not justify the application of Belton and Thornton.

We need not, however, decide whether the search of Dickey-Bey’s

automobile was properly incident to his arrest because we conclude

that the circumstances in this case provided officers independent

probable cause to search the automobile. See United States v. Ross,

456 U.S. 798, 825 (1982) (reiterating that a warrant is unnecessary for

an automobile search supported by probable cause). This probable

cause was provided by (1) the facts that supported Dickey-Bey’s

arrest; (2) the additional facts supplied by Detective Martin to fellow

officers while they were arresting Dickey-Bey, that Dickey-Bey had

arrived in the brown Dodge automobile and that he had backed it into

a parking space in unlikely circumstances; and (3) the district court’s

finding "as a matter of fact and as a matter of law, . . . [that] there

was certainly probable cause to believe that Mr. Dickey-Bey was

going to put th[e] box in his vehicle and that he was going to get in

that vehicle."

Thus, the police officers had probable cause to believe that Dickey-

Bey was involved in a drug conspiracy, which included his retrieval

of packages from rental boxes, and that as part of this conspiracy

Dickey-Bey had arrived in a brown Dodge Daytona automobile that

he used and intended to use in furtherance of the conspiracy. Accord-

ingly, the officers had probable cause to believe that the automobile

was an instrumentality of the crime. See, e.g., United States v. Patter-

son, 150 F.3d 382, 386 (4th Cir. 1998) (concluding "that a vehicle

which has been used in a robbery may be seized without a warrant as

evidence or as an instrumentality of a crime, particularly when it is

parked on a public street"). Viewing the totality of the circumstances,

therefore, we conclude that the officers had probable cause to search

12 UNITED STATES v. DICKEY-BEY

Dickey-Bey’s vehicle without a warrant under the automobile excep-

tion. See Ross, 456 U.S. at 825.

REVERSED AND REMANDED FOR FURTHER PROCEEDINGS