Documenti di Didattica
Documenti di Professioni
Documenti di Cultura
No. 95-1910
Appellee,
v.
JUAN ZAYAS-DIAZ,
Defendant, Appellant.
____________________
____________________
Before
Circuit Judges.
______________
____________________
____________________
September 9, 1996
____________________
CYR, Circuit
Judge.
Juan Zayas-Diaz
("Zayas") chal-
lenges
two
pivotal
rulings
underlying
the
district
edly based on
information that
warrant alleg-
failed to connect
Zayas to
first determined,
on the
The court
Next, the
the
had
been
the
warrant.
See
___
in
information
and held
conducted
merits of
the
affidavit supporting
court's
"objectively
United States
_____________
v.
reasonable"
Leon,
____
468
reliance
on
U.S. 897
(1984).
I
I
BACKGROUND
BACKGROUND
__________
A.
A.
On
single-family
March 8, 1994, a
residence in
nineteen-page affidavit
Bedford, New
by Special
to search a
Hampshire, based
on a
of the
refer collec-
1.
1.
included information
purporting
various
establishments
in
nearby
Manchester,
New
Hampshire,
Club.
by a "reliable" confidential
Based on information
provided
January 26,
An arrest-
known to
had seen
club, not
Sosa and a
The first
CI confirmed that he
as "Juan" meet
sions.
present
that a man
too
at the
on prior occa-
six ounces of
series of
brown; glasses;
left-arm tatoo;
either May 4,
for "Nelson
1961 or
Martell"
001-64-
home
____________________
2For ease
in reference,
we assume all
confidential infor-
for
pending
prosecution
during which
for
and a December
cocaine
trafficking
to discard
in
Connecticut,
cocaine over
On February
the
Manchester
("second
CI").
24, 1994,
police
interviewed
enforcement in the
person
"Juan," surname
"currently
confidential
informant
mation to law
named
the search,
believed
to
knew a
be "Esquevar,"
who
at various Manchester
second CI
to his "workers,"
described "Juan"
including Sosa.
The
5'10",
weight 160 pounds, black hair, brown eyes, glasses), and told the
authorities
Connecticut
attempted to
discard two
kilos of
cocaine at the
time of
the
2.
2.
address
in
Bedford,
New Hampshire.
Following his
arrest,
Sosa told
New Hamp-
shire. Moreover, on
February 24,
to
The
quantities
of cocaine
and
CI also
had
cash present,"
and that
"[S]panish
males,"
in two
or
more automobiles
bearing
New York
license
On February
CI led the
authorities to the
visited "Juan."
upon the
long
premises.
features of the
driveway
lined with
brown
Presumably to avoid
scribed specific
(1)
he had
Instead, the
second CI
de-
three
birdhouses
containing
cles, including a
features of the
motorcycle.
The second CI
abandoned/junk vehi-
described interior
a video monitor
connected to
condition" compared
and
(3) in
the
storing cocaine.
with the
basement, a
shabby exterior of
the residence;
restaurant-style refrigerator
long driveway,
a brown
for
at 16 Holbrook
Road
revealed a
single-family dwelling
with
detached garage and shed, and "at least three (3) doghouses
3.
3.
The
Holbrook
Graffam
Road as
affidavit
Zayas'
purported
current or
currently
currently
involved
advised
in
the authorities
recent
to
residence or
16
drug
close relationship.
that "Juan"
establish
lived at 16
The
second CI
Holbrook Road
years old, with brown hair, whose son also resided at 16 Holbrook
Road and
ball."
"attends" Trinity
An October
High School,
where he
"plays foot-
that a
Holbrook
check
Road," telephone
indicated
Holbrook
Road
that
number 624-8730.
Kevin
in 1992.
Koehler had
June
postal delivery
received
1993 traffic
at 16
accident report
who supplied
On
February
authorities that he
Manchester,
10,
1994,
had leased
James
a garage at
advised
425 Second
the
Street,
McDowell
McDowell told
the authorities
wife,"
that he
was Martell's
Road" as her
Thereafter,
in late
closed
Koehler
February 1994, a
roughly
compatible
("white female,"
physical description
thirty-four years
check dis-
for
Brenda
old, height
5' 2",
eyes), and
as 481
Beacon
Street, Manchester.
4.
4.
In
was not
Moreover,
late February
1994, the
"presently" being
authorities learned
received at
was no longer
16 Holbrook
that
Road.
a telephone listing
ble
oil,
for payment.
the
Moreover,
electrical
utility reported
the
were heated by
following billings:
3679 kw
hours), and
December 1993-January
1994
5.
5.
Finally, based
as a DEA
ers commonly:
es
for
extended
trafficking
periods,
activities;
(2)
operational
attempt
bases to
records relating
assume
their
ongoing
fictitious
names
or
use
detect law
to avoid disclosure
to
enforcement activity;
or discovery of
and (4)
dences
and operational
bases by
suspending mail
and telephone
service.
B.
B.
disclosed
ammunition,
cocaine
residue,
cocaine
distributing
Zayas' ongoing
cocaine trafficking
with conspiracy
to possess
activities.
In
due course,
to distribute.3
See
___
21
sought
U.S.C.
841(a)(1), 846.
to suppress
claiming among
the
Zayas and
evidence seized
at
Koehler jointly
16 Holbrook
Road,
did not
the
affidavit
was
irredeemably
24,
"stale."
Zayas
stressed
in
second
second CI last
an evidentiary hearing.
No. 94-30-
____________________
3The
nine
other
defendants
entered guilty
pleas.
The
the time
the
search was
conducted.
See, e.g.,
___ ____
United
______
22, 1994).4
First, it
affidavit
cause
contained sufficient
to believe
that
Zayas either
the matters
afford a
determination, the
provide probable
resided or
conducted drug
contemporaneous to
cause
information to
district court
held
the probable
the exclusionary
not implicated
"so
lacking in indicia of
probable cause as
to render official
II
II
DISCUSSION
DISCUSSION
__________
rule is
On
presented
appeal,
to
Zayas
the district
resurfaces
court:
(1)
two
claims
the
previously
Graffam affidavit
for finding
it probable
that evidence
unavailing
Zayas' drug
16 Holbrook Road;
because any
be found at
relating to
reasonably well-trained
and
rule is
law enforcement
information in the
Graffam
current resi-
____________________
guilty on
dence or drug
information
A.
A.
The
district court
held
that
the Graffam
affidavit
second CI's
identification of
because the
authorities
[his]
were "able
statement both as to
nating matters,
transaction."
16 Holbrook
It found the
Road to be
to corroborate
reliable
so much
of
as to incrimi-
in the cocaine
See
___
107-08 (citing
1.
1.
For evidence to
v. Ohio, 367
____
generally Mapp
_________ ____
application
must
demonstrate probable
that
enumerated
likely is
element".
cause
crime
to believe
place to
United States v.
______________
to the
considers
Fuccillo, 808
________
only the
affidavits
accompanying the
facts
warrant
"the `nexus'
F.2d 173,
175 (1st
set
forth in
application.
10
and
___
probable criminality
be searched
ordinarily
particular
evidence relevant
located at the
that a
supporting
See,
___
e.g.,
____
565
(1971); Aguilar v. Texas, 378 U.S. 108, 109 (1964); United States
_______
_____
_____________
v.
Klein, 565
_____
F.2d 183,
disclosed in
probability
___________
in a
(1983)
186 n.4
(1st Cir.
the "totality
1977).
of the
Under the
circumstances"
particular place."
(emphasis added);
Illinois v. Gates,
________
_____
United States
_____________
462 U.S.
213, 238
v. Bucuvalas,
_________
970 F.2d
937, 940 (1st Cir. 1992), cert. denied, 507 U.S. 959 (1993).
_____ ______
Among
"probable
supports
persons
others, the
cause"
factors
determination
the probable
include
"`veracity'
supplying hearsay
5 (noting
"through the
the
that
first-hand
searched"); whether
ments
were
affidavit may
informant's
some or
corroborated
contribute to
whether
or `basis
an
whether informant
985 F.2d
support informant's
veracity
of
the
reasonable
ment affiant
significance
of the
related by
it relates
place
to
be
factual state-
and
facts
of
description
wherever
affidavit
of knowledge'
information," id.;
___
at
that may
practicable
law-enforce-
of the probable
the informant,
based on
____________________
5See Gates, 462 U.S. at 244; Soule, 908 F.2d at 1039 (noting
___ _____
_____
331 (1990)
things,
he
("[Because
is more
probably right
F.2d 1578,
1581
(4th Cir.),
(1993).
11
right about
about others.");
is
cert.
_____
496 U.S.
some
Draper v.
______
U.S.
983
were
F.2d,
None
or
on another.
849
F.2d 33,
37 (1st Cir.
Reviewing
courts,
v. Ciampa, 793
______
including
both
the district court and the court of appeals, must accord "consid-
erable deference"
of
determination made by
simply to ensure
("[T]he duty
had
cause existed.").
vit
in
"common sense"
deference to
970
`a practical,
considerable
. . .
reasonable
fashion,
and [
] accord
the
[issuing
inferences
"probable cause"
See
___
determination in
a doubtful or
marginal case.
2.
2.
____________________
6We review
the district
(if any)
only for clear error, but we review de novo its ultimate determi__ ____
nation that a
given set of
cause."
12
because
explicitly identify 16
__________
Holbrook Road as
occasions and saw large amounts of cocaine and cash, and (ii) the
description
some respects
from the
aerial surveillance.
outset that
by the second
CI differed in
information disclosed in
the subsequent
this argument
I.A.2.
We
note at the
network of
_______ __
in
the
past, see
___
presumption that
premises
untenable
supra Section
_____
the second CI
other than
those
given Graffam's
demonstrated his
Schaefer, 87 F.3d
________
I.A.
Moreover,
at which
he
attestation
reliability in the
its implicit
authorities to
had visited
that the
Zayas
second CI
is
had
____________________
See
___
United States v.
_____________
Schaefer, 87 F.3d
________
(1st Cir.
at
by
premises, or
and detail" of
descriptions of search
activity or record).
contemporaneously
corroborated
[informant's] tip").
were confirmed by the
"the
material elements
of
the
wife/girlfriend as a white,
tion likewise corroborated by
See Schaefer, 87
___ ________
F.2d at 1039
thirty-year-old female
of Zayas'
a descrip-
13
through aerial
surveillance of 16 Holbrook
prior occasions
teristics.
or that
See id.
___ ___
he misrepresented its
physical charac-
statements and
reasonably choose
to credit
disregard petty
inconsistencies.").
Our de
__
stances conveyed in
issuing
of the circum-
magistrate had
substantial basis
us that the
for crediting
the
tion
demonstrated
substantial
reliability of
similarity in
premises, as described
aerial
surveillance
support
"probable
for the
cause"
the
issuing
second CI,
the physical
by the
of
16
together with
the
characteristics of
the
second CI and
Holbrook
magistrate's
determination
that
The
Road,
buttressed by
provided
practical,
the
the
adequate
common-sense
Zayas residence/drug
at 238.
B.
B.
____________________
informants'
reports
"[Because an informant
may
serve
to
is right
validate
both
____
accounts).
he is
14
more
1.
1.
Leon Bypass
Leon Bypass
___________
staleness claim
tial
basis
resided or
time
for a
"probable
discretion,"
whether
afforded no substan-
cause" finding
slip op. at
7.
to
Leon
____
there existed
cause determination
the
a reasonably recent
customary
court, in its
"merits"
"substantial basis"
made by
Zayas either
bypass
that
inquiry
for the
"informed
into
probable
and simply
within
the
"good faith"
exception
to
the exclusionary
concurring);
(U.S.
June 19,
(discussing
1996)
(No. 95-9375);
principles of
rule.
Craig,
_____
79 F.3d 212,
U.S.L.W. ___
861 F.2d
"judicial restraint"
at
820
and "precedent"
8Leon
____
identifies
inform the
important prudential
discretionary
bypass
decision
considerations that
at
the
suppression
stage.
If
the
Amendment
resolution
of
particular Fourth
question
is
necessary
to
guide
nothing will
courts
deciding
from
prevent reviewing
that question
before
will
be
Indeed, it
difficult to
determine
of broad import,
Even
is not one
de-
15
2.
2.
The
instant Leon
____
"good faith"
analysis fundamentally
depends
upon the
"probable
Section
II.A.1. The
cause" concept
"commission"
itself.
and "nexus"
See supra
___ _____
elements in
the
issuing
only consider
magistrate
reliability of
but must
"commission"
not
the historical
determine,
circumstances
strates
must
facts related in
inter alia,
_____ ____
reasonably inferable
"fair
probability"
of the
probable
the
accuracy
the affidavits,
whether
the totality
from
the affidavits
that evidence
crime will
be
and
material
of
the
demon-
to
the
disclosed at
the
search premises at about the time the search warrant would issue,
See Sgro v.
___ ____
U.S. 206, 210 (1932); United States v. Wilkinson, 926 F.2d 22, 27
_____________
_________
focuses
on
its
allegedly
"stale" information,
thus
arguably
____________________
cide
in
particular
cases that
magistrates
need to be
informed
faith only
other
after finding
a violation.
circumstances, those
courts could
Fourth
immediately
posing no
Amendment questions
to
officers' good
believe that our
by turning
consideration
faith.
We have
impor-
of
the
no reason to
Fourth Amendment
jurispru-
Leon,
____
As neither
16
tion with
warrant
16
Holbrook Road
issued on
ultimately the
totality of
the
reliable facts
March 4,
at
or about
1994.
the time
As already
circumstances
reasonably
the
search
noted, however,
inferable
from
the
Thus, a weak
showing on a particular
evidence
on
analysis.
another relevant
proceed with
the Leon
____
shifts.
in
the "probable
cause"
to bypass the
merits and
"probable cause"
ing "objectively
States
______
factor
more compelling
Once the
focus
evidence seized
"objectively
pursuant
to a
of exclusion is inapplicable to
search
warrant obtained
in
an
The Supreme
outline the
Court employed
ongoing role
it envisioned for
a search warrant:
in
four exemplars in
"exclusionary rule"
an affidavit that
Leon to
____
was false
by information
or would have
known was false except for his reckless disregard for the truth";
17
failing to
be
seized] . . .
presume it to
be valid";
belief
in
or (4) the
(citing Brown v.
_____
J., concurring
supporting affidavits
of probable cause as to
its existence
entirely
are
render official
unreasonable.'"
in part)).
the evidence to
Id. at
___
923
(1975) (Powell,
dispute implicates
With
respect to the
critical temporal
"nexus," Zayas
contends
that
the
Graffam
information that he
affidavit
resided or conducted
visited
Zayas there.
cernible temporal
contained
Absent
only
"stale"
drug operations at
16
last
of a dis-
as an adequate
See id.
___ ___
part,
____________________
9Zayas
date he
that such
at 16
affidavit.
Holbrook
or recklessly
861 F.2d
at 822 (noting that defendant did not contend that the Leon "good
____
faith"
exception
information from
was unavailable
the affidavit
because
the affiant
to deceive the
omitted
issuing judicial
officer).
Of course,
under
Franks.
______
(1978);
United States v.
______________
See Franks
___ ______
police motives,
to request an evidentiary
v.
Delaware, 438
________
U.S. 154
1034, 1038
(10th
18
upon
the implicit
exterior features
despite
the
assumption
that the
of the premises,
substantially
_____________
second CI
contemporaneous aerial
_______________
misdescribed
Section II.A,
surveillance
which
essentially
corroborated
the
description
given by
the
CI's reliability.
challenge differs
II.A,
from that
in which this
Leon
____
supra Section
_____
to note
able"
aspect of Zayas'
last visit
998
F.2d at
15.
Moreover, though
the "clear
error" standard
States
______
of any
v. Jackson,
_______
denied,
______
findings of fact,
67 F.3d
1359, 1366
see, e.g.,
___ ____
(8th Cir.
United
______
1995), cert.
_____
whether the
reliance
on a
defective warrant
in objectively
is reviewed
reasonable
de novo.
__ ____
United
______
10In
in Bedford.
Next, the
CI stated that
Juan "lives,"
residential
grounds
and
visits to
at 16
Holbrook
Road.
of 16
Holbrook
description of
Id.
___
Third,
Id. at 8-9.
___
19
sion
otherwise
indiscernible within
the
four
corners of
the
might well
Holbrook Road.
445,
to save the
evidence seized at
16
449 (D.D.C.
1990)
(Leon doctrine
____
unavailing where
court
could not infer, from information within "the four corners of the
affidavit . .
observed") (citing
(Ark.
1985)).
Herrington v.
__________
of "undated
[may]
899, 900-01
prime example
on several occasions is a
with information of
escape embarrassment
by simply
raises the
questionable recency
omitting averments
as to
time."
1966).
Moreover,
argument,
it
would
as the
seem
government all
that a
but conceded
reasonably
at oral
well-trained
law
principle
that both
the
"commission" and
"nexus" elements
of
"probable cause"
include an
sufficiency,
we
See
___
acknowledge that
the
circumstantial consider-
ations relied upon by the district court, see supra note 10,
___ _____
are
____________________
(Zayas) had been with Brenda Koehler when she leased the McDowell
garage,
provided
and the
two
some further
"appear[ed] to
support for
be
husband and
a reasonable
inference that
20
wife"
Id. at 9.
___
relevant to the
required nexus
the second
CI
search
for
other circumstantial
warrant issued.
Fortunately
indicia
buttress
suggested
trained,
draw
by
the
the government,
required
Zayas disregards
objectively reasonable
from the
totality of
Graffam affidavit.
the
temporal link.
salient
analysis
inferences which
law enforcement
well-
officers might
circumstances disclosed
in the
trates and
The
reviewing courts).
Thus,
by issuing magis-
Zayas adroitly
skews the
focus of
from whether
a well-trained
inferences
__________
whether a
therefrom, to
_________
officer
on the
all fair
___ ____
well-trained officer
would
loses
the former
test
because the
circumstances,
Graffam affidavit
as
well
as
expert
reasonable officer"
describes a
collocation of
law-enforcement
insights,
the
es"
defendant's invitation to
"engage in a
21
mation in
review
affidavit
worthy.11
Holbrook
See supra
___ _____
Road, whether
Section II.A.
as
Second,
Zayas' residence
remained
was
the temporal
"nexus" elements.
component
of
the link
with 16
or drug
operation
standard.
All that
the "commission"
and
____________________
11The
police
affidavit
officer to
informant,
detail
[Zayas],
second
particularly
Connecticut,
enable
conclude that
based both
of the
would
on
the second
Graffam's vouching
CI's information
the
reasonably
earlier
well-trained
CI was
and
a reliable
on the
about "Nelson
cocaine-related
7, which Graffam
Martell"
arrest
in
22
very
As to
admission
that
Zayas had
ongoing nature of
supplied
residence on
the six
ounces
of cocaine
the date
of
Sosa's
police
search
that Zayas,
distribution
at
various
Manchester
business
establishments,
second
CI's statement
"several occasions"
cocaine and
these
that
"Juan lives"
the second
cash in
CI had
in Bedford,
substantial quantities.
where on
seen
Though imprecise,
by the second
CI in the
ly
were
reasonable officer
to infer
that the
application.
___________
features of
The
second CI's
16 Holbrook
occurrences described
the second
description of
Road, as substantially
CI's inter-
various exterior
corroborated by
to
rather
second
CI's descriptive
attributable
The
account
recent,
were by
no means
necessarily
23
choose to . .
disregard
Finally,
lar,
petty
inconsistencies"
in
ongoing
transactions
"[S]panish males"
at
16
arrived "every
_____
informants'
statements).
Holbrook
Road,
Tuesday" at the
e.g.,
that
Bedford resi-
Absent
any
purposely withheld
the
warrant
indication
more precise
application, see
___
or
suggestion
that
temporal references
supra note
_____
9,
Graffam
adverse to
it would
be pure
remote
that
Zayas was
still trafficking
cocaine less
cause to believe
than
two weeks
that drug
conspiracies tend to be
F.3d
ing,
probable cause
may
continue
for
several weeks,
if
not
or months); Rivera v.
______
(weeks
(2d Cir.
information may be
as Zayas
urges; quite
another to equate
"lives" with
"lived."
24
See
___
supra Section
_____
"dealt"
inadequate
I.A.2.
to
It is
indicate
one matter
current
to find
drug
the term
dealing;
quite
See id.
___ ___
into drug
decades as
trafficking
a DEA agent.
modi operandi,
____ ________
See supra
___ _____
based
on more
Subsections I.A.4
than
two
& I.A.5.
to
conclude, as
__
postal deliveries
Zayas simply
_____ ______
and electrical
nominee
presumes,
________
owners such
stoppage of
utility services, or
of other
as Brenda
that mere
the use,
residential addresses,
Koehler, compelled
or
an inference
in no sense
would it
Thus,
unreasonable for
ity that
prompted by Sosa's
affidavit indicated.
See id.
___ ___
III
III
the Graffam
CONCLUSION
CONCLUSION
__________
We therefore
ment
officer
affidavit
as
reasonably
adequate
records
would be found
could
have relied
support
for
the
upon
issuing
at 16
Holbrook Road
Graffam
magistrate's
trafficking
on March
25
the
8, 1994.