USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 95-1910
UNITED STATES OF AMERICA,
Appellee,
v.
JUAN ZAYAS-DIAZ,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Paul J. Barbadoro, U.S. District Judge]
___________________
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Before
Selya, Cyr and Boudin,
Circuit Judges.
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Paul J. Garrity for appellant.
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Terry L. Ollila, Assistant United States Attorney, with whom Paul
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M. Gagnon, United States Attorney, was on brief for appellee.
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September 9, 1996
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CYR, Circuit Judge. Juan Zayas-Diaz ("Zayas") chal-
CYR, Circuit Judge.
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lenges two pivotal rulings underlying the district court's
refusal to suppress evidence seized pursuant to a warrant alleg-
edly based on information that failed to connect Zayas to the
search premises within a reasonably recent time frame. The court
first determined, on the merits, that the affidavit supporting
the warrant application contained adequate reliable information
to connect Zayas to the search premises in the past. Next, the
court bypassed the merits of the staleness claim and held the
exclusionary rule inapplicable on the ground that the search had
been conducted in "objectively reasonable" reliance on the
warrant. See United States v. Leon, 468 U.S. 897 (1984).
___ _____________ ____
Finding no error, we now affirm the district court judgment.
I
I
BACKGROUND
BACKGROUND
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A. The Graffam Affidavit
A. The Graffam Affidavit
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On March 8, 1994, a warrant was obtained to search a
single-family residence in Bedford, New Hampshire, based on a
nineteen-page affidavit by Special Agent Gerald Graffam of the
United States Drug Enforcement Administration ("DEA"), purporting
to establish probable cause to believe that Zayas then or recent-
ly resided at 16 Holbrook Road and used it as an operational base
for cocaine trafficking.1 The warrant application sought autho-
rization to search for various drug-related documents and curren-
____________________
1The criminal investigation was conducted by federal, state,
and local law enforcement authorities, to whom we refer collec-
tively as "the authorities."
2
cy evidencing the suspected cocaine trafficking activity.
1. The Cocaine Trafficking
1. The Cocaine Trafficking
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The Graffam affidavit included information purporting
to establish that Zayas was supplying cocaine for distribution at
various establishments in nearby Manchester, New Hampshire,
including the Oasis Social Club. Based on information provided
by a "reliable" confidential informant ("first CI"), the affida-
vit related that Marcello Sosa had been arrested on January 26,
1994, for selling cocaine at the Oasis Social Club.2 An arrest-
ing officer advised that he had noticed an individual, known to
him as "Juan Rosario" alias "Nelson Martell," at the Oasis Social
Club during Sosa's arrest. The first CI confirmed that he too
had seen Sosa and a person known to him as "Juan" meet at the
club, not only at the time of Sosa's arrest but on prior occa-
sions. Sosa himself admitted that a man named "Juan," who was
present when Sosa was arrested, had supplied the six ounces of
cocaine seized from Sosa's residence shortly after the arrest.
A subsequent documentation and record check disclosed a
series of roughly compatible descriptions for "Nelson Martell"
(height 5'6-9"; weight 130-160 pounds; hair black or brown; eyes
brown; glasses; left-arm tatoo; social security number 001-64-
1999; birth date either May 4, 1961 or August 16, 1954); home
address 275 Lake Avenue, Manchester; license suspension for drunk
driving in 1991; New Hampshire conviction and suspended sentence
____________________
2For ease in reference, we assume all confidential infor-
mants were male.
3
for heroin trafficking in 1992; and a December 1992 arrest and
pending prosecution for cocaine trafficking in Connecticut,
during which arrest Zayas attempted to discard cocaine over a
highway embankment; and other aliases, including "Juan Gonzalez."
On February 24, 1994, twelve days before the search,
the Manchester police interviewed a confidential informant
("second CI"). The second CI, who had "provided reliable infor-
mation to law enforcement in the past," advised that he knew a
person named "Juan," surname believed to be "Esquevar," who
"currently controls" cocaine distribution at various Manchester
business establishments, including the Oasis Social Club, and who
delivered cocaine daily to his "workers," including Sosa. The
second CI described "Juan" (Cuban, dark-skinned, height 5'10",
weight 160 pounds, black hair, brown eyes, glasses), and told the
authorities that he was "aware" that "Juan" had been arrested in
Connecticut on a cocaine trafficking charge, and that "Juan" had
attempted to discard two kilos of cocaine at the time of the
arrest by throwing it over a highway embankment.
2. Zayas and 16 Holbrook Road
2. Zayas and 16 Holbrook Road
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Although the documentation check revealed a listed home
address for "Nelson Martell" (i.e., Zayas) at 275 Lake Avenue in
Manchester, the Graffam affidavit attested to facts purporting to
show that Zayas currently or recently resided at 16 Holbrook Road
in Bedford, New Hampshire. Following his arrest, Sosa told
police that "Juan," his supplier, "lived" in Bedford, New Hamp-
4
shire. Moreover, on February 24, 1994, the second CI also had
advised the authorities that Juan "lives" in Bedford and "deals"
large amounts of cocaine. The second CI added that he had "been
to Juan's Bedford residence on several occasions and seen large
quantities of cocaine and cash present," and that "[S]panish
males," in two or more automobiles bearing New York license
plates, arrived "every Tuesday" at the Bedford residence.
On February 24, 1994, after his interview, the second
CI led the authorities to the Bedford premises at which he had
visited "Juan." Presumably to avoid detection, the authorities
did not enter upon the premises. Instead, the second CI de-
scribed specific features of the residential grounds, including
(1) a long driveway lined with three birdhouses containing
concealed video cameras; (2) a shack-like residence with peeling
brown paint; (3) five dogs outside the house, and an unspecified
number of dog houses; and (4) four or five abandoned/junk vehi-
cles, including a motorcycle. The second CI described interior
features of the residence itself, including (1) a video monitor
connected to the "birdhouse" cameras; (2) furnishings, "in good
condition" compared with the shabby exterior of the residence;
and (3) in the basement, a restaurant-style refrigerator for
storing cocaine. Subsequent aerial surveillance at 16 Holbrook
Road revealed a long driveway, a brown single-family dwelling
with detached garage and shed, and "at least three (3) doghouses
and two (2) abandoned vehicles."
3. The "Residence" at 16 Holbrook Road
3. The "Residence" at 16 Holbrook Road
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and the Zayas-Koehler "Relationship"
and the Zayas-Koehler "Relationship"
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5
The Graffam affidavit purported to establish 16
Holbrook Road as Zayas' current or recent residence or drug
operation base, by demonstrating that codefendant Brenda Koehler
currently or recently lived there, and that she and Zayas were
currently involved in a close relationship. The second CI
advised the authorities that "Juan" lived at 16 Holbrook Road
"with a girlfriend," described as a "white female," about thirty
years old, with brown hair, whose son also resided at 16 Holbrook
Road and "attends" Trinity High School, where he "plays foot-
ball." An October 1992 police incident report confirmed that a
"Kevin Koehler" had sustained an injury while playing football at
Trinity High School, identified his mother as Brenda Koehler, "16
Holbrook Road," telephone number 624-8730. A postal delivery
check indicated that Kevin Koehler had received mail at 16
Holbrook Road in 1992. A June 1993 traffic accident report
reflected 16 Holbrook Road as Brenda Koehler's home address. A
third confidential informant ("third CI") confirmed that "Juan,"
who supplied cocaine to workers at the Oasis Social Club, "had a
white wife . . . in her thirties."
On February 10, 1994, James McDowell advised the
authorities that he had leased a garage at 425 Second Street,
Manchester, to Brenda Koehler, who was accompanied by a "Nelson
Martell" at the time she signed the lease. The Graffam affidavit
failed to disclose the date the lease was signed. McDowell told
the authorities that he "believed Brenda Koehler was Martell's
wife," and advised that Koehler gave "16 Holbrook Road" as her
6
home address, and 624-8730 as her telephone number. Thereafter,
in late February 1994, a motor vehicle registration check dis-
closed a roughly compatible physical description for Brenda
Koehler ("white female," thirty-four years old, height 5' 2",
brown hair, brown eyes), and listed her address as 481 Beacon
Street, Manchester.
4. Activity at 16 Holbrook Road
4. Activity at 16 Holbrook Road
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In late February 1994, the authorities learned that
mail was not "presently" being received at 16 Holbrook Road.
Moreover, by this time there was no longer a telephone listing
for 16 Holbrook Road. The electrical utility listing nonetheless
continued to reflect that Brenda Koehler was the person responsi-
ble for payment. Moreover, though the premises were heated by
oil, the electrical utility reported the following billings:
October-November 1993 ($565 for 4595 kw hours), November-December
1993 ($462 for 3679 kw hours), and December 1993-January 1994
($600.00 for 5024 kw hours).
5. Graffam's Law Enforcement Experience
5. Graffam's Law Enforcement Experience
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Finally, based on Graffam's twenty-two years as a DEA
agent, the supporting affidavit stated that active drug traffick-
ers commonly: (1) retain for ready reference, in their residenc-
es for extended periods, records relating to their ongoing
trafficking activities; (2) assume fictitious names or use
nominees to avoid detection; (3) establish surveillance at their
operational bases to detect law enforcement activity; and (4)
attempt to avoid disclosure or discovery of their actual resi-
7
dences and operational bases by suspending mail and telephone
service.
B. The District Court Proceedings
B. The District Court Proceedings
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The search conducted pursuant to the challenged warrant
disclosed ammunition, cocaine residue, cocaine distributing
paraphernalia, substantial cash, and numerous documents detailing
Zayas' ongoing cocaine trafficking activities. In due course,
Zayas and ten associates, including Brenda Koehler, were charged
with conspiracy to possess cocaine with intent to distribute.3
See 21 U.S.C. 841(a)(1), 846. Zayas and Koehler jointly
___
sought to suppress the evidence seized at 16 Holbrook Road,
claiming among other things that the Graffam affidavit did not
reflect "16 Holbrook Road" as the address at which "Juan" resided
or conducted drug operations and that much crucial information in
the affidavit was irredeemably "stale." Zayas stressed in
particular that the Graffam affidavit, which identified February
24, 1994, as the date upon which the authorities interviewed the
second CI, nonetheless failed to state when the second CI last
visited with "Juan" at 16 Holbrook Road.
The district court denied the motion to suppress after
an evidentiary hearing. United States v. Zayas-Diaz, No. 94-30-
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3The nine other defendants entered guilty pleas. The
government does not now contend that Zayas lacked an objectively
reasonable expectation of privacy in the 16 Holbrook Road premis-
es at the time the search was conducted. See, e.g., United
___ ____ ______
States v. Bouffard, 917 F.2d 673, 675-76 (1st Cir. 1990); United
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States v. Soule, 908 F.2d 1032, 1034 (1st Cir. 1990).
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8
01-B (D.N.H. Dec. 22, 1994).4 First, it ruled that the Graffam
affidavit contained sufficient information to provide probable
cause to believe that Zayas either resided or conducted drug
operations at 16 Holbrook Road. Second, without deciding whether
the matters affirmed in the Graffam affidavit were sufficiently
contemporaneous to afford a substantial basis for the probable
cause determination, the district court held the exclusionary
rule inapplicable based on the so-called "good faith" exception.
See Leon, 468 U.S. at 923 (holding that the exclusionary rule is
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not implicated unless, inter alia, the supporting affidavit was
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"so lacking in indicia of probable cause as to render official
belief in its existence entirely unreasonable").
II
II
DISCUSSION
DISCUSSION
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On appeal, Zayas resurfaces two claims previously
presented to the district court: (1) the Graffam affidavit
contained insufficient information to provide a substantial basis
for finding it probable that evidence relating to Zayas' drug
trafficking activities would be found at 16 Holbrook Road; and
(2) the Leon "good faith" exception to the exclusionary rule is
____
unavailing because any reasonably well-trained law enforcement
officer would know that the "stale" information in the Graffam
affidavit was not adequate to establish probable cause to believe
that 16 Holbrook Road was either Zayas' recent or current resi-
____________________
4Following a five-day jury trial, Zayas was found guilty on
the conspiracy charge. The district court later sentenced him to
360 months.
9
dence or drug operation site; and the more current information
neither cured the staleness nor provided an independent basis for
a "probable cause" determination.
A. The "Probable Cause" Connection
A. The "Probable Cause" Connection
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Between Zayas and 16 Holbrook Road
Between Zayas and 16 Holbrook Road
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The district court held that the Graffam affidavit
afforded probable cause to believe that Zayas resided or conduct-
ed drug operations at 16 Holbrook Road in the past. It found the
second CI's identification of 16 Holbrook Road to be reliable
because the authorities were "able to corroborate so much of
[his] statement both as to innocent details and as to incrimi-
nating matters, such as Zayas-Diaz's involvement in the cocaine
transaction." See Tr. of Suppression Hearing at 107-08 (citing
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United States v. Taylor, 985 F.2d 3, 6 (1st Cir.), cert. denied,
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508 U.S. 944 (1993)).
1. The "Probable Cause" Standard
1. The "Probable Cause" Standard
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For evidence to avert suppression, see generally Mapp
___ _________ ____
v. Ohio, 367 U.S. 643 (1961), normally the warrant application
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must demonstrate probable cause to believe that a particular
person has committed a crime "the commission element" and
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that enumerated evidence relevant to the probable criminality
likely is located at the place to be searched "the `nexus'
element". United States v. Fuccillo, 808 F.2d 173, 175 (1st
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Cir.), cert. denied, 482 U.S. 905 (1987). The issuing magistrate
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ordinarily considers only the facts set forth in supporting
affidavits accompanying the warrant application. See, e.g.,
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Whiteley v. Warden, Wyo. State Penitentiary, 401 U.S. 560, 565
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10
(1971); Aguilar v. Texas, 378 U.S. 108, 109 (1964); United States
_______ _____ _____________
v. Klein, 565 F.2d 183, 186 n.4 (1st Cir. 1977). Under the
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"probable cause" standard, the "totality of the circumstances"
disclosed in the supporting affidavits must demonstrate "a fair
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probability that contraband or evidence of a crime will be found
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in a particular place." Illinois v. Gates, 462 U.S. 213, 238
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(1983) (emphasis added); United States v. Bucuvalas, 970 F.2d
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937, 940 (1st Cir. 1992), cert. denied, 507 U.S. 959 (1993).
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Among others, the factors that may contribute to a
"probable cause" determination include whether an affidavit
supports the probable "`veracity' or `basis of knowledge' of
persons supplying hearsay information," id.; whether informant
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statements are self-authenticating, see, e.g., Taylor, 985 F.2d
___ ____ ______
at 5 (noting that affidavit may support informant's veracity
"through the very specificity and detail with which it relates
the informant's first-hand description of the place to be
searched"); whether some or all the informant's factual state-
ments were corroborated wherever reasonable and practicable
(e.g., through police surveillance);5 and whether a law-enforce-
ment affiant included a professional assessment of the probable
significance of the facts related by the informant, based on
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5See Gates, 462 U.S. at 244; Soule, 908 F.2d at 1039 (noting
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that police contemporaneously corroborated "the material elements
of the [informant's] tip"); see also Alabama v. White, 496 U.S.
___ ____ _______ _____
325, 331 (1990) ("[Because an informant is right about some
things, he is more probably right about others."); Draper v.
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United States, 358 U.S. 307, 313 (1959); United States v. Lalor,
_____________ _____________ _____
996 F.2d 1578, 1581 (4th Cir.), cert. denied, 510 U.S. 983
_____ ______
(1993).
11
experience or expertise, see United States v. Hoffman, 832 F.2d,
___ _____________ _______
1299, 1306 (1st Cir. 1987) (noting that law-enforcement affiants
were "specially trained in the ways of drug trafficking"). None
of these factors is indispensable; thus, stronger evidence on one
or more factors may compensate for a weaker or deficient showing
on another. See Taylor, 985 F.2d at 5; United States v. Nocella,
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849 F.2d 33, 37 (1st Cir. 1988); United States v. Ciampa, 793
_____________ ______
F.2d 19, 22 (1986). Reviewing courts, including both
the district court and the court of appeals, must accord "consid-
erable deference" to the "probable cause" determination made by
the issuing magistrate. See Taylor, 985 F.2d at 5 ("[T]he duty
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of the reviewing court is simply to ensure that the magistrate
had a `substantial basis for . . . conclud[ing]' that probable
cause existed."). The reviewing court must examine "the affida-
vit in `a practical, "common sense" fashion, and [ ] accord
considerable deference to reasonable inferences the [issuing
magistrate] may have drawn from the attested facts.'" Bucuvalas,
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970 F.2d at 940 (citations omitted). Moreover, given the strong
preference for warrants under our Fourth Amendment jurisprudence,
normally a reviewing court will defer to an issuing magistrate's
"probable cause" determination in a doubtful or marginal case.
See United States v. Ventresca, 380 U.S. 102, 109 (1965); United
___ _____________ _________ ______
States v. Craig, 861 F.2d 818, 823 (5th Cir. 1988).
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2. The Connection Between Zayas and 16 Holbrook Road6
2. The Connection Between Zayas and 16 Holbrook Road
_________________________________________________
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6We review the district court's factual findings (if any)
only for clear error, but we review de novo its ultimate determi-
__ ____
nation that a given set of facts constituted "probable cause."
12
Zayas argues that the Graffam affidavit is insufficient
because (i) it did not explicitly identify 16 Holbrook Road as
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the address at which the second CI visited Zayas on several prior
occasions and saw large amounts of cocaine and cash, and (ii) the
description of the premises given by the second CI differed in
some respects from the information disclosed in the subsequent
aerial surveillance. See supra Section I.A.2. We note at the
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outset that this argument ignores the incriminating network of
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circumstantial evidence pointing unmistakably to 16 Holbrook Road
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as the Bedford residence at which the second CI had visited Zayas
in the past, see supra Section I.A. Moreover, its implicit
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presumption that the second CI probably led the authorities to
premises other than those at which he had visited Zayas is
untenable given Graffam's attestation that the second CI had
demonstrated his reliability in the past. See United States v.
___ ______________
Schaefer, 87 F.3d 562, 566 1st Cir. 1996).7 Finally, the argu-
________
____________________
See United States v. Schaefer, 87 F.3d 562, 565 n.2 (1st Cir.
___ _____________ ________
1996) (citing Ornelas v. United States, 116 S. Ct. 1657 (1996)).
_______ _____________
7In addition, the second CI related prior criminal activity
by Zayas (e.g., dumping cocaine over an embankment in 1992 at the
time he was arrested in Connecticut) and descriptions of exterior
and interior features at 16 Holbrook Road. See Taylor, 985 F.2d
___ ______
at 6 (noting that a CI's overall reliability may be demonstrated
by the "very specificity and detail" of descriptions of search
premises, or of defendant's prior criminal activity or record).
Moreover, the authorities here independently corroborated many of
these details through a documentation and record check and aerial
surveillance. See Soule, 908 F.2d at 1039 (noting that police
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contemporaneously corroborated "the material elements of the
[informant's] tip"). Further, some of the second CI's statements
were confirmed by the third CI (e.g., the description of Zayas'
wife/girlfriend as a white, thirty-year-old female a descrip-
tion likewise corroborated by a documentation check on Koehler).
See Schaefer, 87 F.3d at 566 (holding that consistencies between
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13
ment aimed at undermining the corroborative information gathered
through aerial surveillance of 16 Holbrook Road likewise fails,
since it too presumes that the second CI either did not know the
____
location of the premises at which he had visited Zayas on several
prior occasions or that he misrepresented its physical charac-
teristics. See id. at 567 ("When an informant's statements and
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the events he describes diverge in minor ways, the magistrate may
reasonably choose to credit the statements and disregard petty
inconsistencies.").
Our de novo assessment of the totality of the circum-
__ ____
stances conveyed in the Graffam affidavit persuades us that the
issuing magistrate had a substantial basis for crediting the
second CI's overall reliability, and by extension his identifica-
tion of 16 Holbrook Road as the locus of his prior visits. The
demonstrated reliability of the second CI, together with the
substantial similarity in the physical characteristics of the
premises, as described by the second CI and buttressed by the
aerial surveillance of 16 Holbrook Road, provided adequate
support for the issuing magistrate's practical, common-sense
"probable cause" determination that the Zayas residence/drug
operation base previously visited by the second CI was located at
16 Holbrook Road in Bedford, New Hampshire. See Gates, 462 U.S.
___ _____
at 238.
B. The Staleness Claim
B. The Staleness Claim
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informants' reports may serve to validate both accounts).
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"[Because an informant is right about some things, he is more
probably right about others." Alabama, 496 U.S. at 331.
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14
1. Leon Bypass
1. Leon Bypass
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The district court elected to bypass the merits of the
staleness claim that the Graffam affidavit afforded no substan-
tial basis for a "probable cause" finding that Zayas either
resided or conducted drug operations within a reasonably recent
time frame at 16 Holbrook Road. See Zayas-Diaz, No. 94-30-01-B,
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slip op. at 7. Leon allows the trial court, in its "informed
____
discretion," to bypass the customary "merits" inquiry into
whether there existed a "substantial basis" for the probable
cause determination made by the issuing magistrate, and simply
decide instead whether the challenged search in all events came
within the "good faith" exception to the exclusionary rule.
Leon, 468 U.S. at 925; see Gates, 462 U.S. at 264-65 (White, J.,
____ ___ _____
concurring); see, e.g., United States v. Manning, 79 F.3d 212,
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221 (1st Cir. 1996), petition for cert. filed, ___ U.S.L.W. ___
________ ___ _____ _____
(U.S. June 19, 1996) (No. 95-9375); Craig, 861 F.2d at 820
_____
(discussing principles of "judicial restraint" and "precedent"
affecting Leon bypass determinations).8
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8Leon identifies important prudential considerations that
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inform the discretionary bypass decision at the suppression
stage.
If the resolution of a particular Fourth
Amendment question is necessary to guide
future action by law enforcement officers and
magistrates, nothing will prevent reviewing
courts from deciding that question before
turning to the good-faith issue. Indeed, it
frequently will be difficult to determine
whether the officers acted reasonably without
resolving the Fourth Amendment issue. Even
if the Fourth Amendment question is not one
of broad import, reviewing courts could de-
15
2. The Leon Exception
2. The Leon Exception
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The instant Leon "good faith" analysis fundamentally
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depends upon the "probable cause" concept itself. See supra
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Section II.A.1. The "commission" and "nexus" elements in the
"probable cause" analysis each include a temporal component. The
issuing magistrate must not only consider the accuracy and
reliability of the historical facts related in the affidavits,
but must determine, inter alia, whether the totality of the
_____ ____
circumstances reasonably inferable from the affidavits demon-
strates a "fair probability" that evidence material to the
"commission" of the probable crime will be disclosed at the
search premises at about the time the search warrant would issue,
rather than at some remote time. See Sgro v. United States, 287
___ ____ _____________
U.S. 206, 210 (1932); United States v. Wilkinson, 926 F.2d 22, 27
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(1st Cir.), cert. denied, 501 U.S. 1211 (1991).
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As the more serious challenge to the Graffam affidavit
focuses on its allegedly "stale" information, thus arguably
describing events that occurred at some remote earlier time, see
___
____________________
cide in particular cases that magistrates
under their supervision need to be informed
of their errors and so evaluate the officers'
good faith only after finding a violation.
In other circumstances, those courts could
reject suppression motions posing no impor-
tant Fourth Amendment questions by turning
immediately to a consideration of the
officers' good faith. We have no reason to
believe that our Fourth Amendment jurispru-
dence would suffer . . . .
Leon, 468 U.S. at 925. As neither party challenges the bypass
____
decision itself, we turn directly to the Leon exception.
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16
Bucuvalas, 970 F.2d at 940, we devote particular attention to the
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contemporaneity of the attested facts relating to Zayas' connec-
tion with 16 Holbrook Road at or about the time the search
warrant issued on March 4, 1994. As already noted, however,
ultimately the "probable cause" analysis takes into account the
totality of the circumstances reasonably inferable from the
reliable facts set forth in the Graffam affidavit. Thus, a weak
showing on a particular factor may be offset by more compelling
evidence on another relevant factor in the "probable cause"
analysis. See supra Section II.A.1.
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Once the trial court elects to bypass the merits and
proceed with the Leon analysis, moreover, the "probable cause"
____
focus shifts. Since no deterrent purpose is served by sanction-
ing "objectively reasonable" law enforcement conduct, see United
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States v. Ricciardelli, 998 F.2d 8, 15 (1st Cir. 1993) (citation
______ ____________
omitted), the "extreme sanction" of exclusion is inapplicable to
evidence seized pursuant to a search warrant obtained in an
"objectively reasonable" manner from a neutral magistrate, even
assuming the warrant or supporting affidavits were defective, see
___
Leon, 468 U.S. at 921, 926.
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The Supreme Court employed four exemplars in Leon to
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outline the ongoing role it envisioned for "exclusionary rule"
deterrence in circumstances where evidence is seized pursuant to
a search warrant: (1) the magistrate is "misled by information
in an affidavit that the affiant knew was false or would have
known was false except for his reckless disregard for the truth";
17
(2) the magistrate "wholly abandon[s] his [detached and neutral]
judicial role"; (3) the warrant is "so facially deficient [e.g.,
failing to list, with sufficient particularity, the evidence to
be seized] . . . that the executing officers cannot reasonably
presume it to be valid"; or (4) the supporting affidavits are
"`so lacking in indicia of probable cause as to render official
belief in its existence entirely unreasonable.'" Id. at 923
___
(citing Brown v. Illinois, 422 U.S. 590, 610-11 (1975) (Powell,
_____ ________
J., concurring in part)). The instant Leon dispute implicates
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only the latter category.9
With respect to the critical temporal "nexus," Zayas
contends that the Graffam affidavit contained only "stale"
information that he resided or conducted drug operations at 16
Holbrook Road, since the second CI did not specify when he last
visited Zayas there. Absent other reliable evidence of a dis-
cernible temporal nexus, says Zayas, it was "entirely unreason-
able" for the executing officers to rely on the Graffam affidavit
as an adequate basis for the required "probable cause" showing.
See id. This challenge likewise impermissibly depends, in part,
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____________________
9Zayas does not claim, for example, that the second CI told
the authorities the date he last visited Zayas at 16 Holbrook
Road, nor that such information was deliberately or recklessly
omitted from the Graffam affidavit. See, e.g., Craig, 861 F.2d
___ ____ _____
at 822 (noting that defendant did not contend that the Leon "good
____
faith" exception was unavailable because the affiant omitted
information from the affidavit to deceive the issuing judicial
officer). Of course, had Zayas meant to impugn police motives,
the appropriate course would have been to request an evidentiary
hearing under Franks. See Franks v. Delaware, 438 U.S. 154
______ ___ ______ ________
(1978); United States v. Williams, 897 F.2d 1034, 1038 (10th
______________ ________
Cir. 1990), cert. denied, 500 U.S. 937 (1991).
_____ ______
18
upon the implicit assumption that the second CI misdescribed
exterior features of the premises, but see supra Section II.A,
___ ___ _____
despite the substantially contemporaneous aerial surveillance
_____________ _______________
which essentially corroborated the description given by the
second CI, and notwithstanding Graffam's vouching for the second
CI's reliability.
The lone respect in which this aspect of Zayas' Leon
____
challenge differs from that discussed above, see supra Section
___ _____
II.A, is its focus on Graffam's undeniable failure to ascribe in
the affidavit an approximate date to the second CI's last visit
with Zayas at 16 Holbrook Road. At this juncture it is important
to note that the government must establish "objectively reason-
able" reliance on a defective warrant, see, e.g., Leon, 468 U.S.
___ ____ ____
at 924, based on all the circumstances, id. at 923; Ricciardelli,
___ ____________
998 F.2d at 15. Moreover, though the "clear error" standard
governs our review of any findings of fact, see, e.g., United
___ ____ ______
States v. Jackson, 67 F.3d 1359, 1366 (8th Cir. 1995), cert.
______ _______ _____
denied, 116 S. Ct. 1684 (1996), the ultimate determination as to
______
whether the executing officers acted in objectively reasonable
reliance on a defective warrant is reviewed de novo. United
__ ____ ______
States v. Procopio, 88 F.3d 21, 28 (1st Cir. 1996).10
______ ________
____________________
10In our own case, the district court relied on the follow-
ing four grounds. First, in describing his "several" visits to
16 Holbrook Road, the second CI stated that Juan "lives," and
"deals" drugs, in Bedford. Zayas-Diaz, No. 94-30-01-B, slip op.
__________
at 8. Next, the follow-up aerial surveillance of 16 Holbrook
Road "substantially" corroborated the second CI's description of
the residential grounds at 16 Holbrook Road. Id. Third,
___
Marcello Sosa admitted that his cocaine supplier, "Juan," "lived"
in Bedford. Id. at 8-9. Finally, the statements James McDowell
___
19
Were the critical time element presently under discus-
sion otherwise indiscernible within the four corners of the
Graffam affidavit, see Bucuvalas, 970 F.2d at 940, the government
___ _________
might well have been unable to save the evidence seized at 16
Holbrook Road. See, e.g., United States v. Huggins, 733 F. Supp.
___ ____ _____________ _______
445, 449 (D.D.C. 1990) (Leon doctrine unavailing where court
____
could not infer, from information within "the four corners of the
affidavit . . . the time during which the criminal activity was
observed") (citing Herrington v. State, 697 S.W.2d 899, 900-01
__________ _____
(Ark. 1985)). Ostensibly, the second CI's statement that he had
visited with Zayas at 16 Holbrook Road on several occasions is a
prime example of "undated stale" information, which raises the
specter that "officers with information of questionable recency
[may] escape embarrassment by simply omitting averments as to
time." Rosencranz v. United States, 356 F.2d 310, 316 (1st Cir.
__________ _____________
1966). Moreover, as the government all but conceded at oral
argument, it would seem that a reasonably well-trained law
enforcement officer should be familiar with the fundamental legal
principle that both the "commission" and "nexus" elements of
"probable cause" include an essential temporal component. See
___
Leon, 468 U.S. at 920, n.20. Without necessarily endorsing their
____
sufficiency, we acknowledge that the circumstantial consider-
ations relied upon by the district court, see supra note 10, are
___ _____
____________________
made to the authorities in February 1994 that "Nelson Martell"
(Zayas) had been with Brenda Koehler when she leased the McDowell
garage, and the two "appear[ed] to be husband and wife"
provided some further support for a reasonable inference that
Koehler and Zayas lived together at 16Holbrook Road. Id. at 9.
___
20
relevant to the required nexus between the date the second CI
visited with Zayas at 16 Holbrook Road and the date the search
warrant issued.
Fortunately for the government, other circumstantial
indicia buttress the required temporal link. The analysis
suggested by Zayas disregards salient inferences which well-
trained, objectively reasonable law enforcement officers might
draw from the totality of the circumstances disclosed in the
Graffam affidavit. See Gates, 462 U.S. at 238 (requiring practi-
___ _____
cal, common-sense "probable cause" assessments by issuing magis-
trates and reviewing courts). Thus, Zayas adroitly skews the
focus of the Leon debate, from whether a well-trained officer
____
reasonably could have relied upon a search warrant based on the
evidence described in the Graffam affidavit as well as all fair
__ ____ __ ___ ____
inferences therefrom, to whether a well-trained officer would
__________ _________
have known that supporting affidavits whenever practicable should
provide at least approximate dates for pivotal events such as the
second CI's last visit with Zayas at 16 Holbrook Road.
While Zayas would win the latter debate hands-down, he
loses the former under Leon's "objectively reasonable officer"
____
test because the Graffam affidavit describes a collocation of
circumstances, as well as expert law-enforcement insights,
adequate to enable the recency of the critical last visit by the
second CI to be fairly inferred. See United States v. Jewell, 60
___ _____________ ______
F.3d 20, 23 (1st Cir. 1995) (citing "totality of the circumstanc-
es" test, and rejecting defendant's invitation to "engage in a
21
piecemeal examination of the affidavit, and [to] base our review
of the clerk-magistrate's actions on `"bits and pieces of infor-
mation in isolation"'") (citation omitted). First, the Graffam
affidavit afforded ample basis for finding the second CI trust-
worthy.11 See supra Section II.A. Second, the link with 16
___ _____
Holbrook Road, whether as Zayas' residence or drug operation
site, plainly satisfied the "probable cause" standard. All that
remained was the temporal component of the "commission" and
"nexus" elements. See supra pps. 13-15.
___ _____
____________________
11The affidavit would enable a reasonably well-trained
police officer to conclude that the second CI was a reliable
informant, based both on Graffam's vouching and on the very
detail of the second CI's information about "Nelson Martell"
[Zayas], particularly the earlier cocaine-related arrest in
Connecticut, see supra note 7, which Graffam verified with the
___ _____
Connecticut police before the affidavit was submitted.
22
As to the "commission" element, the ongoing nature of
Zayas' cocaine trafficking activities in the Manchester area was
amply demonstrated in the supporting affidavit: first, by Sosa's
admission that Zayas had supplied the six ounces of cocaine
seized from Sosa's residence on January 26, 1994, the date of
Sosa's arrest; and by the second CI, who informed the Manchester
police on February 24, 1994 twelve days before the challenged
search that Zayas, alias "Juan," "currently controls" cocaine
distribution at various Manchester business establishments,
including the Oasis Social Club. See supra Section I.A.1.
___ _____
As to the "nexus" element, the pivotal linkage was the
second CI's statement that "Juan lives" in Bedford, where on
"several occasions" the second CI had visited "Juan" and seen
cocaine and cash in substantial quantities. Though imprecise,
these temporal references were related by the second CI in the
present tense, which at the very least would permit an objective-
ly reasonable officer to infer that the occurrences described
were substantially contemporaneous with the second CI's inter-
view, which in turn took place within twelve days of the warrant
_____ __ ____ ____ _____ ______ ______ ____ __ ___ _______
application. The second CI's description of various exterior
___________
features of 16 Holbrook Road, as substantially corroborated by
virtually contemporaneous aerial surveillance, likewise lent to
the probability that his last visit had been relatively recent,
rather than remote in time. The few minor discrepancies in the
second CI's descriptive account were by no means necessarily
attributable to a substantial time lapse. See Schaefer, 87 F.3d
___ ________
23
at 567 (noting that "magistrate may reasonably choose to . . .
disregard petty inconsistencies" in informants' statements).
Finally, the second CI made statements that plainly imply regu-
lar, ongoing transactions at 16 Holbrook Road, e.g., that
"[S]panish males" arrived "every Tuesday" at the Bedford resi-
_____
dence in automobiles bearing New York license plates.
Absent any indication or suggestion that Graffam
purposely withheld more precise temporal references adverse to
the warrant application, see supra note 9, it would be pure
___ _____
speculation to credit Zayas' implicit premise that the last visit
the second CI had with Zayas at 16 Holbrook Road was necessarily
remote in time even though there was probable cause to believe
that Zayas was still trafficking cocaine less than two weeks
before the search. See, e.g., id. at 568 ("[I]t is common ground
___ ____ __
that drug conspiracies tend to be ongoing operations, rendering
timely [two- or three-year-old] information that might, in other
contexts, be regarded as stale."); United States v. Hernandez, 80
______ ______ _________
F.3d 1253, 1259 (9th Cir. 1996) ("With respect to drug traffick-
ing, probable cause may continue for several weeks, if not
months, [from] the last reported instance of suspect activity.");
United States v. Smith, 9 F.3d 1007, 1014 (2d Cir. 1993) (weeks
______ ______ _____
or months); Rivera v. United States, 928 F.2d 592, 602 (2d Cir.
______ ______ ______
1991) (noting that in drug trafficking cases, information may be
weeks or months old). Finally, it is one thing to find use of the
past tense "lived" insufficient to indicate a current residence,
as Zayas urges; quite another to equate "lives" with "lived."
24
See supra Section I.A.2. It is one matter to find the term
___ _____
"dealt" inadequate to indicate current drug dealing; quite
another to equate "deals" with "dealt." See id.
___ ___
To this must be added the weight due Graffam's insights
into drug trafficking modi operandi, based on more than two
____ ________
decades as a DEA agent. See supra Subsections I.A.4 & I.A.5.
___ _____
Given Graffam's expertise, it would be "objectively unreasonable"
to conclude, as Zayas simply presumes, that mere stoppage of
__ _____ ______ ________
postal deliveries and electrical utility services, or the use,
listing, and/or maintenance of other residential addresses, or
nominee owners such as Brenda Koehler, compelled an inference
that Zayas was no longer residing, conducting drug operations, or
keeping illicit drug-related records, at 16 Holbrook Road. Thus,
in no sense would it have been objectively unreasonable for a
well-trained police officer to believe there was a fair probabil-
ity that these developments were subterfuges prompted by Sosa's
recent arrest and designed to prevent detection, as the Graffam
affidavit indicated. See id.
___ ___
III
III
CONCLUSION
CONCLUSION
__________
We therefore conclude that a well-trained law enforce-
ment officer reasonably could have relied upon the Graffam
affidavit as adequate support for the issuing magistrate's
finding that there was a fair probability that drug trafficking
records would be found at 16 Holbrook Road on March 8, 1994.
Accordingly, the district court judgment is affirmed.
the district court judgment is affirmed.
_______________________________________
25
