USCA1 Opinion
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 94-2135
UNITED STATES,
Appellee,
v.
JOHN A. MEUSE,
Defendant - Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Mark L. Wolf, U.S. District Judge]
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Before
Boudin and Lynch, Circuit Judges,
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and Schwarzer,* Senior District Judge.
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Annemarie Hassett, Federal Defender Office, for appellant.
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Gary S. Katzmann, Assistant United States Attorney, with
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whom Donald K. Stern, United States Attorney, was on brief for
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appellee.
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August 2, 1995
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*Of the District of Northern California, sitting by designation.
Per Curiam. Defendant John A. Meuse pleaded guilty to
Per Curiam
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a charge of illegally possessing firearms as a felon (18 U.S.C.
922 (g)(1)). Meuse appeals his conviction on the ground that the
search that led to the discovery of the firearms was illegal
because the affidavit supporting the search warrant failed to
establish the likelihood that the items sought would be found in
his residence. The items sought were burglary tools and jewelry
stolen from the home of Genevieve DiCarlo ("the DiCarlo
burglary"). Following his indictment, Meuse moved to suppress
all items recovered during the search of his apartment: the
three firearms referred to in the indictment, along with
ammunition, a stun gun, and other instrumentalities of an armed
robbery and burglary gang. (None of the jewelry from the DiCarlo
burglary was recovered at Meuse's apartment.) The district court
denied the motion, finding that the officers had proceeded in
good faith reliance on a facially valid warrant, and that the
information in the affidavit supported the magistrate's decision
that there was a fair probability that evidence of a particular
crime, including jewelry stolen in the DiCarlo burglary, would be
found in Meuse's residence. We affirm the district court.
STANDARD OF REVIEW
STANDARD OF REVIEW
This court has jurisdiction under 28 U.S.C. 1291. In
reviewing a district court's determination that the face of an
affidavit stated sufficient probable cause to support a search
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warrant, we review only for clear error.1 United States v.
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Garc a, 983 F.2d 1160, 1167 (1st Cir. 1993), citing United States
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v. Nocella, 849 F.2d 33, 39 (1st Cir. 1988); see also United
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States v. Taylor, 985 F.2d 3, 5 (1st Cir. 1993) (reviewing court
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does not undertake de novo review of sufficiency of search
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warrant affidavit, but accords great deference to the probable
cause determination).
BACKGROUND
BACKGROUND
The warrant was issued on December 10, 1991, by a
clerk-magistrate of the Commonwealth of Massachusetts. The 14-
page affidavit, signed by Massachusetts State Trooper Michael
Grassia, stated in substance the following:
On December 2, 1991, Grassia, a ten-year veteran of the
force, attended a meeting of police officers from a five-town
area of Massachusetts (Wakefield, Malden, Revere, Melrose, and
Saugus). The purpose of the meeting was to plan and coordinate
strategy for solving a series of armed robberies and burglaries
of homes in that area. Chief among the suspects identified at
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1 Meuse contends that the "clear error" standard is not
applicable here because the district court's determination of the
sufficiency of the underlying affidavit was made after a non-
evidentiary hearing, citing United States v. Falon, 959 F.2d
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1143, 1147 (1st Cir. 1992). In Falon, however, the issue was not
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the sufficiency of the search warrant affidavit, but the
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particularity of a broadly worded search warrant, which did not
specifically incorporate or attach the affidavit, and which did
not refer to the criminal offenses for which the evidence was
sought. We suggested that de novo review might be appropriate
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when, as there, the district court makes a purely legal ruling
regarding the level of particularity required in a search
warrant. We added, however, that when reviewing conclusions in
the nature of fact finding, we would apply the clear error
standard. Id.
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the meeting was John Meuse. One of the Wakefield officers told
Grassia that a Ford van registered to Meuse had been identified
by witnesses as a vehicle used in an armed robbery the previous
month. Meuse subsequently called the police to report the van
stolen; when he was informed that the police wanted to talk to
him about an armed robbery, however, he refused to go to the
police station to retrieve the van, sending his attorney in his
place. The Wakefield officer told Grassia that the only damage
to the van was a popped ignition, and that everything else
appeared intact. Meuse subsequently re-registered the van with
different license plates. Grassia obtained other information
about Meuse at the meeting, including information about his past
criminal record.
Because the crimes of which Meuse and his associates
were suspected had been committed on Saturdays, the
representatives of the various police departments agreed to
conduct a joint surveillance of those suspects on the following
Saturday, December 7, 1991. At approximately 6:30 p.m. on
December 7th, Grassia and the other officers began surveillance
at several locations in Revere and Everett, including Meuse's
residence. Earlier that afternoon, the DiCarlo residence in
Melrose was burglarized. Taken in the burglary were several
hundred pieces of jewelry and a light green pillowcase. Some of
the jewelry was in a white cardboard box.
That evening, at 8:00 p.m., a Monte Carlo registered to
Robert Stevens, another of the suspects in the Wakefield crimes,
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arrived at Meuse's residence. Three men got out of Stevens' car
and walked into Meuse's apartment building, one carrying a light-
colored cloth bag, and the other two with valise-type bags.
Police observed the three men walking around inside Meuse's
apartment.
An hour later, at 9:00 p.m., police saw Ronald Ferrara
enter Meuse's apartment, empty-handed. Half an hour later,
Ferrara came out, carrying a brown shopping bag. Police officers
followed Ferrara to the parking lot of a restaurant in a nearby
town. Ferrara entered another vehicle, talked to the driver for
ten minutes, and got out, still carrying the shopping bag. He
then drove to an adjoining parking lot, and pulled alongside
Meuse's van and Stevens' Monte Carlo, both of which had been
followed by police from Meuse's apartment. The police saw
Ferrara hand what looked like money into the passenger side of
the Monte Carlo, after which he shook hands with the passenger
and walked back to his car, still carrying the shopping bag.
Ferrara then entered the restaurant, where he stayed until 1:00
a.m.
When Ferrara left the restaurant, he was accompanied by
his wife. Shortly thereafter, Ferrara was arrested for operating
a motor vehicle with a suspended license. An inventory search of
his car revealed a brown shopping bag containing over 100 pieces
of jewelry and a white cardboard box, all of which were later
identified by Mrs. DiCarlo as the items stolen from her home on
December 7th.
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When Ferrara was questioned at the police station, he
said he had been at the restaurant the entire evening, from 7:30
p.m. until 1:00 a.m. He told police he had purchased the jewelry
from a friend of a friend inside the restaurant, but could not
identify either the friend or the seller of the jewelry. Later
that night, Ferrara's wife arrived at the police station to post
bail for Ferrara, and told police the jewelry was hers. At the
time the police had stopped the Ferrara car, however, Mrs.
Ferrara said that the jewelry in the car was not hers and that
she knew nothing about the bag.
Grassia concluded that it was his belief, based on the
facts stated above, along with his training and experience as a
police officer, that the perpetrators of the DiCarlo burglary had
used the pillowcase to carry off the jewelry; that the "light-
colored cloth bag" carried into Meuse's apartment on the evening
of December 7th was the green pillowcase that had been removed
from the DiCarlo residence during the burglary; that Ferrara was
acting as a fence for the stolen property and had obtained the
jewelry from Meuse's apartment on the evening of December 7th.
Grassia stated further that he believed that further stolen
property was being kept at Meuse's apartment.
DISCUSSION
DISCUSSION
Meuse argues that the affidavit in support of the
search warrant failed to establish the requisite probability that
evidence of the DiCarlo burglary would be found in his residence.
He contends that the affidavit was deficient in that it did not
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establish a sufficient nexus between the stolen jewelry and his
apartment.
Probable cause exists where "the facts and
circumstances within [a police officer's] knowledge, and of which
[the officer] had reasonably trustworthy information . . . [are]
sufficient in themselves to warrant a [person] of reasonable
caution" to believe that a crime has been committed or is being
committed and that contraband or other evidence of a crime can be
found at the place to be searched. Carroll v. United States, 267
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U.S. 132, 162 (1925); United States v. Drake, 673 F.2d 15, 17
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(1st Cir. 1982). Stated another way, probable cause exists when
there is a "fair probability" that contraband or evidence of a
crime will be found in a particular place. See Massachusetts v.
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Upton, 466 U.S. 727, 733 (1984); United States v. Jordan, 999
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F.2d 11, 13 (1st Cir. 1993). "Probable cause" is something less
than the "preponderance" standard of proof. "[T]he words
'reasonable cause' are perhaps closer to what is meant." United
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States v. Melvin, 596 F.2d 492, 495 (1st Cir.), cert. denied, 444
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U.S. 837 (1979).
Probable cause may be established in various ways,
including hearsay from a reliable source or information from an
anonymous tip that can be independently corroborated. See
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Illinois v. Gates, 462 U.S. 213, 233-34, 241 (1983). Probable
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cause may also be established by the personal observations of
police officers. See McDonald v. United States, 335 U.S. 451,
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454-55 (1948); United States v. Lee, 962 F.2d 430, 436-38 (5th
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Cir.), cert. denied, 113 S. Ct. 1057 (1992). Police may use
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their training, experience, and expertise to draw inferences of
criminal activity from behavior that is not facially criminal.
Texas v. Brown, 460 U.S. 730, 742-43 (1983) (plurality opinion).
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The mandate of the Fourth Amendment was satisfied in
this case so long as the "totality of the circumstances" provided
the issuing magistrate with a substantial basis for concluding
that a search would uncover evidence of wrongdoing. Gates, 462
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U.S. at 236; United States v. Ciampa, 793 F.2d 19, 22 (1st Cir.
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1986). The district court found that that standard was met here.
The district court found that the information in the
affidavit was obtained primarily from the personal observations
of trained and experienced police officers; that there had been a
rash of burglaries in which defendant was a prime suspect; that
defendant drove a van which was believed to have been used in an
armed robbery; that on the day of the DiCarlo burglary, Ferrara
was seen entering defendant's apartment empty-handed and leaving
with a shopping bag that was later found to contain a substantial
portion of the jewelry reported stolen by Mrs. DiCarlo just hours
before; and that Ferrara lied about his whereabouts that evening
and told an incredible story about the source of the jewelry,
further undercut by his wife's conflicting story. In the
totality of the circumstances, the court found probable cause to
believe that evidence of a crime would be found in defendant's
apartment. Meuse argues that the conclusion that a search of his
apartment would uncover evidence relating to the DiCarlo burglary
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relied on the inference that the contents of the brown shopping
bag removed from Ferrara at 1:00 a.m. on December 8th had been
obtained by Ferrara from Meuse's apartment at 9:30 p.m. on
December 7th. He claims that even though Ferrara was seen
leaving the apartment with a bag that was later found to contain
the stolen DiCarlo jewelry, the fact that Ferrara met with other
individuals during the three and a half hours between his
departure from Meuse's residence and his apprehension by the
police makes it unreasonable to conclude that the bag must have
contained the stolen jewelry when Ferrara left Meuse's apartment.
This argument ignores the fact that the full array of facts and
circumstances presented to the issuing court need only establish
probable cause, not a certainty that the material sought will be
found in the place to be searched. Gates, 462 U.S. at 231-35;
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accord, Ciampa, 793 F.2d at 22.
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Similarly unpersuasive is Meuse's argument that the
affidavit does not support the inference that the DiCarlo jewelry
entered Meuse's apartment in the cloth bag at 8:00 p.m. He
claims that the requisite probable cause is lacking because the
officers conducting the surveillance described a man carrying a
"light-colored bag" rather than the "green pillowcase" missing
from the DiCarlo residence. This minor variation in the terms
used to describe the bag does not preclude a finding of probable
cause. Search warrants are to be interpreted in a "common-sense
rather than a hypothetical or a hypertechnical manner." Garc a,
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983 F.2d at 1167. Bits and pieces of information are not to be
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judged in isolation. United States v. Badessa, 752 F.2d 771, 773
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(1st Cir. 1985).
Meuse's final argument is that there were insufficient
facts to link him personally to the stolen jewelry or to
Ferrara's criminal activities. He claims, for example, that the
affidavit did not show that Ferrara was a known fence, that he
had previously fenced stolen property for Meuse, that he had
previously received stolen property from Meuse's apartment, or
that he had any record for any offense involving stolen property
or relating to the robbery/burglary activity for which Meuse was
under surveillance. Meuse also argues that Ferrara's lie about
his visit to Meuse's apartment establishes nothing other than
that Ferrara wished to hide his association with Meuse, that it
sheds no light on whether or not the DiCarlo jewelry came from
Meuse's apartment.
This argument is also without merit. The affidavit
showed that there was a fair probability that evidence of the
DiCarlo burglary could be found in Meuse's apartment. In
addition to the reasons set forth above, the affidavit stated
that Meuse's van had been tied to an armed robbery committed in
the previous month. The affidavit also described the activity at
Meuse's apartment on the evening of December 7th, during which
this same van was parked outside. The van was then seen at the
parking lot with Ferrara's car and the Stevens' vehicle.
Considering the totality of the circumstances, the connection was
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sufficiently close to support the magistrate's issuance of the
search warrant.
In any event, the denial of Meuse's motion to suppress
is supported by the "good faith" exception to the exclusionary
rule. The Supreme Court has declared that even when information
contained in an affidavit makes only a marginal case for a search
warrant, the warrant should nevertheless be upheld. "[W]e have
expressed a strong preference for warrants and declared that 'in
a doubtful or a marginal case a search under a warrant may be
sustainable where without one it would fall.'" United States v.
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Le n, 468 U.S. 897, 914 (1984). "In the absence of an allegation
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that the magistrate abandoned his detached and neutral role,
suppression is appropriate only if the officers were dishonest or
reckless in preparing their affidavit or could not have harbored
an objectively reasonable belief in the existence of probable
cause." Id. at 926.
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Here, the district court found that the officers
proceeded in good faith reliance on a facially valid warrant,
issued by a judicial officer, and supported by "much more than a
'bare-bones' affidavit." Id. Thus, the "good-faith" exception
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applies in this case.
Affirmed.
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