USCA1 Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
____________________

No. 95-1910

UNITED STATES OF AMERICA,

Appellee,

v.

JUAN ZAYAS-DIAZ,

Defendant, Appellant.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Paul J. Barbadoro, U.S. District Judge]

___________________

____________________

Before

Selya, Cyr and Boudin,

Circuit Judges.
______________

____________________

Paul J. Garrity for appellant.

_______________

Terry L. Ollila, Assistant United States Attorney, with whom P

_______________
_
M. Gagnon, United States Attorney, was on brief for appellee.
_________

____________________

September 9, 1996
____________________

CYR, Circuit

Judge.

Juan Zayas-Diaz

("Zayas") chal-

CYR, Circuit Judge.

______________

lenges

two

pivotal

rulings

underlying

the

district

refusal to suppress evidence seized pursuant to a

edly based on

information that

warrant alleg-

failed to connect

Zayas to

search premises within a reasonably recent time frame.

first determined,

on the

merits, that the

contained adequate reliable

to connect Zayas to the

search premises in the past.

The court

Next, the

the

exclusionary rule inapplicable on the ground that the search

had

been

the

warrant.

See
___

in

the staleness claim

information

and held

conducted

merits of

the

affidavit supporting

the warrant application

court bypassed the

court's

"objectively

United States
_____________

v.

reasonable"

Leon,
____

468

reliance

on

U.S. 897

(1984).

Finding no error, we now affirm the district court judgment.

I
I

BACKGROUND
BACKGROUND
__________

A.
A.

The Graffam Affidavit

The Graffam Affidavit
_____________________

On

single-family

March 8, 1994, a

residence in

nineteen-page affidavit

warrant was obtained

Bedford, New

by Special

to search a

Hampshire, based

Agent Gerald Graffam

on a

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."

cy evidencing the suspected cocaine trafficking activity.

1.
1.

The Cocaine Trafficking

The Cocaine Trafficking
_______________________

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.

by a "reliable" confidential

vit related that Marcello

Based on information

provided

informant ("first CI"), the affida-

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.

had seen

club, not

Sosa and a

The first

CI confirmed that he

person known to him

only at the time

as "Juan" meet

of Sosa's arrest but

sions.

Sosa himself admitted

present

when Sosa was arrested,

that a man

too

at the

on prior occa-

named "Juan," who was

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

(height 5'6-9"; weight 130-160 pounds;

brown; glasses;

left-arm tatoo;

1999; birth date

either May 4,

for "Nelson

hair black or brown; eyes

social security number

1961 or

Martell"

001-64-

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

mants were male.

confidential infor-

for

heroin trafficking in 1992;

pending

prosecution

during which

for

and a December

cocaine

trafficking

arrest Zayas attempted

to discard

1992 arrest and

in

Connecticut,

cocaine over

highway embankment; and other aliases, including "Juan Gonzalez."

On February

the

Manchester

("second

CI").

24, 1994,

police

twelve days before

interviewed

enforcement in the

person

"Juan," surname

"currently

confidential

informant

The second CI, who had "provided reliable infor-

mation to law

named

the search,

past," advised that he

believed

controls" cocaine distribution

to

knew a

be "Esquevar,"

who

at various Manchester

business establishments, including the Oasis Social Club, and who

delivered cocaine daily

second CI

to his "workers,"

described "Juan"

including Sosa.

(Cuban, dark-skinned, height

The

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.
2.

Zayas and 16 Holbrook Road

Zayas and 16 Holbrook Road
__________________________

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-

shire. Moreover, on

February 24,

advised the authorities that Juan

large amounts of cocaine.

to

The

Juan's Bedford residence on

quantities

of cocaine

and

1994, the second

CI also

had

"lives" in Bedford and "deals"

second CI added that he had "been

several occasions and seen large

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

CI led the

authorities to the

visited "Juan."

did not enter

upon the

long

premises.

features of the

driveway

lined with

concealed video cameras; (2)

brown

interview, the second

Bedford premises at which

Presumably to avoid

scribed specific

(1)

24, 1994, after his

he had

detection, the authorities

Instead, the

second CI

de-

residential grounds, including

three

birdhouses

containing

a shack-like residence with peeling

paint; (3) five dogs outside the house, and an unspecified

number of dog houses;

cles, including a

features of the

and (4) four or five

motorcycle.

The second CI

abandoned/junk vehi-

described interior

residence itself, including (1)

a video monitor

connected to

the "birdhouse" cameras; (2)

condition" compared

and

(3) in

the

storing cocaine.

with the

basement, a

furnishings, "in good

shabby exterior of

the residence;

restaurant-style refrigerator

Subsequent aerial surveillance

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

and two (2) abandoned vehicles."

3.
3.

The "Residence" at 16 Holbrook Road

The "Residence" at 16 Holbrook Road
___________________________________
and the Zayas-Koehler "Relationship"
and the Zayas-Koehler "Relationship"
___________________________________

The

Holbrook

Graffam

Road as

affidavit

Zayas'

purported

current or

operation base, by demonstrating that

currently

or recently lived there,

currently

involved

advised

in

the authorities

recent

to

residence or

"with a girlfriend," described as a

16

drug

codefendant Brenda Koehler

and that she

close relationship.

that "Juan"

establish

lived at 16

and Zayas were

The

second CI

Holbrook Road

"white female," about thirty

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-

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

check

Road," telephone

indicated

Holbrook

Road

that

number 624-8730.

Kevin

in 1992.

reflected 16 Holbrook Road

Koehler had

June

postal delivery

received

1993 traffic

mail

at 16

accident report

as Brenda Koehler's home address.

third confidential informant ("third CI")

who supplied

confirmed that "Juan,"

cocaine to workers at the Oasis Social Club, "had a

white wife . . . in her thirties."

On

February

authorities that he

Manchester,

10,

1994,

had leased

James

a garage at

to Brenda Koehler, who

advised

425 Second

the

Street,

was accompanied by a "Nelson

Martell" at the time she signed the lease.

failed to disclose the

McDowell

The Graffam affidavit

date the lease was signed.

McDowell told

the authorities

wife,"

that he

"believed Brenda Koehler

and advised that Koehler

was Martell's

gave "16 Holbrook

Road" as her

home address, and 624-8730 as her telephone number.

Thereafter,

in late

closed

Koehler

February 1994, a

roughly

motor vehicle registration

compatible

("white female,"

physical description

thirty-four years

check dis-

for

Brenda

old, height

5' 2",

brown hair, brown

eyes), and

listed her address

as 481

Beacon

Street, Manchester.

4.
4.

Activity at 16 Holbrook Road

Activity at 16 Holbrook Road
____________________________

In

mail

was not

Moreover,

late February

1994, the

"presently" being

by this time there

for 16 Holbrook Road.

authorities learned

received at

was no longer

16 Holbrook

that

Road.

a telephone listing

The electrical utility listing nonetheless

continued to reflect that Brenda Koehler was the person responsi-

ble

oil,

for payment.

the

Moreover,

electrical

though the premises

utility reported

the

were heated by

following billings:

October-November 1993 ($565 for 4595 kw hours), November-December

1993 ($462 for

3679 kw

hours), and

($600.00 for 5024 kw hours).

December 1993-January

1994

5.
5.

Graffam's Law Enforcement Experience

Graffam's Law Enforcement Experience
____________________________________

Finally, based

on Graffam's twenty-two years

as a DEA

agent, the supporting affidavit stated that active drug traffick-

ers commonly:

es

for

(1) retain for ready reference, in their residenc-

extended

trafficking

periods,

activities;

(2)

nominees to avoid detection;

operational

attempt

bases to

records relating

assume

their

ongoing

fictitious

names

or

use

(3) establish surveillance at their

detect law

to avoid disclosure

to

enforcement activity;

or discovery of

and (4)

their actual resi-

dences

and operational

bases by

suspending mail

and telephone

service.

B.
B.

The District Court Proceedings

The District Court Proceedings
______________________________

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

Zayas and ten associates,

with conspiracy

to possess

activities.

In

due course,

including Brenda Koehler, were charged

cocaine with intent

to distribute.3

See
___

21

sought

U.S.C.

841(a)(1), 846.

to suppress

claiming among

the

Zayas and

evidence seized

other things that

at

Koehler jointly

16 Holbrook

the Graffam affidavit

Road,

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

particular that the Graffam

24,

"stale."

Zayas

stressed

in

affidavit, which identified February

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

an evidentiary hearing.

the motion to suppress after

United States v. Zayas-Diaz,

_____________
__________

No. 94-30-

____________________

3The

nine

other

defendants

government does not now contend

entered guilty

pleas.

The

that Zayas lacked an objectively

reasonable expectation of privacy in the 16 Holbrook Road premises at

States
______

the time

the

search was

conducted.

See, e.g.,
___ ____

United
______

v. Bouffard, 917 F.2d 673, 675-76 (1st Cir. 1990); United

________
______

States v. Soule, 908 F.2d 1032, 1034 (1st Cir. 1990).

______
_____

01-B (D.N.H. Dec.

22, 1994).4

First, it

ruled that the Graffam

affidavit

cause

contained sufficient

to believe

that

Zayas either

operations at 16 Holbrook Road.

the matters

afford a

determination, the

rule inapplicable based on

provide probable

resided or

conducted drug

Second, without deciding whether

affirmed in the Graffam

contemporaneous to

cause

information to

affidavit were sufficiently

substantial basis for

district court

held

the probable

the exclusionary

the so-called "good faith" exception.

See Leon, 468 U.S. at 923 (holding that the exclusionary

___ ____

not implicated

"so

unless, inter alia, the

_____ ____

lacking in indicia of

supporting affidavit was

probable cause as

to render official

belief in its existence entirely unreasonable").

II
II

DISCUSSION
DISCUSSION
__________

rule is

On

presented

appeal,

to

Zayas

the district

resurfaces

court:

(1)

two

claims

the

previously

Graffam affidavit

contained insufficient information to provide a substantial basis

for finding

it probable

that evidence

trafficking activities would

(2) the Leon "good

____

unavailing

Zayas' drug

16 Holbrook Road;

faith" exception to the exclusionary

because any

officer would know

be found at

relating to

reasonably well-trained

that the "stale"

and

rule is

law enforcement

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

the conspiracy charge.
360 months.

guilty on

The district court later sentenced him to

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.
A.

The "Probable Cause" Connection

The "Probable Cause" Connection
_______________________________
Between Zayas and 16 Holbrook Road
Between Zayas and 16 Holbrook Road
__________________________________

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.

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

innocent details and

as to incrimi-

such as Zayas-Diaz's involvement

in the cocaine

See
___

Tr. of Suppression Hearing at

United States v. Taylor, 985 F.2d

_____________
______

107-08 (citing

3, 6 (1st Cir.), cert. denied,

_____ ______

508 U.S. 944 (1993)).

1.
1.

The "Probable Cause" Standard

The "Probable Cause" Standard
_____________________________

For evidence to

v. Ohio, 367
____

avert suppression, see

___

U.S. 643 (1961),

generally Mapp
_________ ____

normally the warrant

application

must

demonstrate probable

person has committed a

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

The issuing magistrate

set

forth in

application.

Whiteley v. Warden, Wyo. State Penitentiary,

________
________________________________

10

and
___

probable criminality

be searched

Cir.), cert. denied, 482 U.S. 905 (1987).

_____ ______

ordinarily

particular

"the commission element"

evidence relevant

located at the

that a

supporting

See,
___

401 U.S. 560,

e.g.,
____

565

(1971); Aguilar v. Texas, 378 U.S. 108, 109 (1964); United States
_______
_____
_____________

v.

Klein, 565
_____

F.2d 183,

"probable cause" standard,

disclosed in

probability
___________

in a

(1983)

186 n.4

(1st Cir.

the "totality

1977).

of the

the supporting affidavits must

Under the

circumstances"

demonstrate "a fair

____

that contraband or evidence of a crime will be found

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

very specificity and

informant's

some or

corroborated

contribute to

whether

or `basis

an

whether informant

985 F.2d

support informant's

veracity

detail with which

of

the

all the informant's

reasonable

ment affiant

included a professional assessment

significance

of the

related by

it relates

place

to

be

factual state-

and

(e.g., through police surveillance);5 and whether a

facts

of

see, e.g., Taylor,

___ ____ ______

description

wherever

affidavit

of knowledge'

information," id.;
___

statements are self-authenticating,

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
___ _____
_____

that police contemporaneously corroborated "the material elements

of the [informant's] tip");
325,

331 (1990)

things,

he

("[Because

is more

see also Alabama v. White,

___ ____ _______
_____
an informant

probably right

F.2d 1578,

1581

(4th Cir.),

(1993).

11

right about

about others.");

United States, 358 U.S. 307, 313 (1959);

_____________
996

is

cert.
_____

496 U.S.

some

Draper v.
______

United States v. Lalor,

_____________
_____
denied, 510
______

U.S.

983

experience or expertise, see United States v. Hoffman, 832

___ _____________
_______

1299, 1306 (1st Cir.

were

F.2d,

1987) (noting that law-enforcement affiants

"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.

849

F.2d 33,

See Taylor, 985 F.2d at 5; United States v. Nocella,

___ ______
_____________
_______

37 (1st Cir.

F.2d 19, 22 (1986).

1988); United States

_____________

Reviewing

courts,

v. Ciampa, 793
______

including

both

the district court and the court of appeals, must accord "consid-

erable deference"

to the "probable cause"

the issuing magistrate.

of

the reviewing court is

determination made by

See Taylor, 985 F.2d at 5

___ ______

simply to ensure

("[T]he duty

that the magistrate

had

a `substantial basis for

cause existed.").

vit

in

"common sense"

deference to

magistrate] may have drawn

970

conclud[ing]' that probable

The reviewing court must

`a practical,

considerable

. . .

reasonable

examine "the affida-

fashion,

and [

] accord

the

[issuing

inferences

from the attested facts.'" Bucuvalas,

_________

F.2d at 940 (citations omitted).

Moreover, given the strong

preference for warrants under our Fourth Amendment jurisprudence,

normally a reviewing court will

"probable cause"

See
___

defer to an issuing magistrate's

determination in

a doubtful or

marginal case.

United States v. Ventresca, 380 U.S. 102, 109 (1965); United

_____________
_________
______

States v. Craig, 861 F.2d 818, 823 (5th Cir. 1988).

______
_____

2.
2.

The Connection Between Zayas and 16 Holbrook Road6

The Connection Between Zayas and 16 Holbrook Road
_________________________________________________

____________________

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

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

some respects

from the

aerial surveillance.

outset that

by the second

CI differed in

information disclosed in

the subsequent

See supra Section

___ _____

this argument

I.A.2.

We

note at the

ignores the incriminating

_____________

network of
_______ __

circumstantial evidence pointing unmistakably to 16 Holbrook Road

______________ ________

as the Bedford residence at which the second CI had visited Zayas

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,

probably led the

at which

he

attestation

reliability in the

its implicit

authorities to

had visited

that the

Zayas

second CI

is

had

past. See United States v.

___ ______________

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

premises, or

and detail" of

descriptions of search

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

___ _____

contemporaneously

corroborated

[informant's] tip").
were confirmed by the

"the

(noting that police

material elements

of

the

Further, some of the second CI's statements

third CI (e.g., the description

wife/girlfriend as a white,
tion likewise corroborated by
See Schaefer, 87
___ ________

F.2d at 1039

thirty-year-old female

of Zayas'

a descrip-

a documentation check on Koehler).

F.3d at 566 (holding that consistencies between

13

ment aimed at undermining

through aerial

the corroborative information gathered

surveillance of 16 Holbrook

since it too presumes that the

Road likewise fails,

second CI either did not know the

____

location of the premises at which he had visited Zayas on several

prior occasions

teristics.

or that

See id.
___ ___

he misrepresented its

at 567 ("When an informant's

physical charac-

statements and

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

____

stances conveyed in

issuing

of the circum-

the Graffam affidavit persuades

magistrate had

substantial basis

us that the

for crediting

the

second CI's overall reliability, and by extension his identifica-

tion

of 16 Holbrook Road as the

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

locus of his prior visits.

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

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.
B.

The Staleness Claim

The Staleness Claim
___________________

____________________

informants'

reports

"[Because an informant

may

serve

to

is right

probably right about others."

validate

both
____

about some things,

accounts).
he is

Alabama, 496 U.S. at 331.

_______

14

more

1.
1.

Leon Bypass
Leon Bypass
___________

The district court elected to

staleness claim

tial

basis

resided or

time

that the Graffam affidavit

for a

"probable

discretion,"

whether

afforded no substan-

cause" finding

conducted drug operations within

frame at 16 Holbrook Road.

slip op. at

bypass the merits of the

7.

to

Leon
____

there existed

cause determination

the

decide instead whether

a reasonably recent

customary

court, in its

"merits"

"substantial basis"

made by

Zayas either

See Zayas-Diaz, No. 94-30-01-B,

___ __________

allows the trial

bypass

that

inquiry

for the

the issuing magistrate,

the challenged search in

"informed

into

probable

and simply

all events came

within

the

"good faith"

exception

to

the exclusionary

Leon, 468 U.S. at 925; see Gates, 462 U.S. at

____
___ _____

concurring);

(U.S.

June 19,

(discussing

264-65 (White, J.,

see, e.g., United States v. Manning,

___ ____ ______________
_______

221 (1st Cir. 1996),

petition for cert. filed, ___

________ ___ _____ _____

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"

affecting Leon bypass determinations).8

____
____________________

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

future action by law enforcement officers and

magistrates,

nothing will

courts

deciding

from

prevent reviewing

that question

before

turning to the good-faith issue.

frequently

will

be

Indeed, it

difficult to

determine

whether the officers acted reasonably without

resolving the
if the

Fourth Amendment issue.

Fourth Amendment question

of broad import,

Even

is not one

reviewing courts could

de-

15

2.
2.

The Leon Exception

The Leon Exception
__________________

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

"probable cause" analysis each

include a temporal component. 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,

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
_____________
_________

(1st Cir.), cert. denied, 501 U.S. 1211 (1991).

_____ ______

As the more serious

focuses

on

its

allegedly

challenge to the Graffam affidavit

"stale" information,

describing events that occurred at

thus

arguably

some remote earlier time, see

___

____________________

cide

in

particular

cases that

under their supervision

magistrates

need to be

informed

of their errors and so evaluate the officers'

good
In

faith only
other

after finding

a violation.

circumstances, those

courts could

reject suppression motions

tant

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-

dence would suffer . . . .

Leon,
____

468 U.S. at 925.

As neither

party challenges the bypass

decision itself, we turn directly to the Leon exception.

____

16

Bucuvalas, 970 F.2d at 940, we devote particular attention to the

_________

contemporaneity of the attested

tion with

warrant

16

Holbrook Road

issued on

ultimately the

totality of

the

reliable facts

March 4,

at

facts relating to Zayas' connec-

or about

1994.

the time

As already

"probable cause" analysis takes

circumstances

reasonably

the

search

noted, however,

into account the

inferable

set forth in the Graffam affidavit.

from

the

Thus, a weak

showing on a particular

evidence

on

analysis.

another relevant

proceed with

trial court elects

the Leon
____

shifts.

in

the "probable

cause"

to bypass the

analysis, moreover, the

merits and

"probable cause"

Since no deterrent purpose is served by sanction-

ing "objectively

States
______

factor

more compelling

See supra Section II.A.1.

___ _____

Once the

focus

factor may be offset by

reasonable" law enforcement conduct, see United

___ ______

v. Ricciardelli, 998 F.2d 8, 15 (1st Cir. 1993) (citation

____________

omitted), the "extreme sanction"

evidence seized

"objectively

pursuant

to a

of exclusion is inapplicable to

search

reasonable" manner from

warrant obtained

in

an

a neutral magistrate, even

assuming the warrant or supporting affidavits were defective, see

___

Leon, 468 U.S. at 921, 926.

____

The Supreme

outline the

Court employed

ongoing role

it envisioned for

deterrence in circumstances where

a search warrant:

in

four exemplars in

"exclusionary rule"

evidence is seized pursuant to

(1) the magistrate is "misled

an affidavit that

Leon to
____

the affiant knew

was false

by information

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

failing to

be

list, with sufficient particularity,

seized] . . .

presume it to

that the executing

be valid";

"`so lacking in indicia

belief

in

is "so facially deficient [e.g.,

or (4) the

(citing Brown v.
_____

J., concurring

officers cannot reasonably

supporting affidavits

of probable cause as to

its existence

entirely

The instant Leon

____

are

render official

unreasonable.'"

Illinois, 422 U.S. 590, 610-11

________

in part)).

the evidence to

Id. at
___

923

(1975) (Powell,

dispute implicates

only the latter category.9

With

respect to the

critical temporal

"nexus," Zayas

contends

that

the

Graffam

information that he

affidavit

resided or conducted

Holbrook Road, since the second

visited

Zayas there.

cernible temporal

contained

Absent

only

"stale"

drug operations at

CI did not specify when he

other reliable evidence

nexus, says Zayas, it

16

last

of a dis-

was "entirely unreason-

able" for the executing officers to rely on the Graffam affidavit

as an adequate

See id.
___ ___

basis for the required

"probable cause" showing.

This challenge likewise impermissibly depends, in

part,

____________________

9Zayas

does not claim, for example, that the second CI told

the authorities the

Road, nor

date he

that such

last visited Zayas

at 16

information was deliberately

omitted from the Graffam

affidavit.

Holbrook

or recklessly

See, e.g., Craig,

___ ____ _____

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,

had Zayas meant to impugn

the appropriate course would have been

hearing

under

Franks.
______

(1978);

United States v.
______________

See Franks
___ ______

police motives,

to request an evidentiary
v.

Delaware, 438
________

Williams, 897 F.2d

________

U.S. 154

1034, 1038

(10th

Cir. 1990), cert. denied, 500 U.S. 937 (1991).

_____ ______

18

upon

the implicit

exterior features

despite

the

assumption

that the

of the premises,

substantially
_____________

second CI

but see supra

___ ___ _____

contemporaneous aerial
_______________

misdescribed

Section II.A,

surveillance

which

essentially

corroborated

second CI, and notwithstanding

the

description

given by

the

Graffam's vouching for the second

CI's reliability.

The lone respect

challenge differs

II.A,

from that

in which this

discussed above, see

___

Leon
____

supra Section
_____

is its focus on Graffam's undeniable failure to ascribe in

the affidavit an approximate

date to the second CI's

with Zayas at 16 Holbrook Road.

to note

able"

aspect of Zayas'

that the government must

last visit

At this juncture it is important

establish "objectively reason-

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

States
______

of any

v. Jackson,
_______

denied,
______

findings of fact,

67 F.3d

1359, 1366

see, e.g.,
___ ____

(8th Cir.

United
______

1995), cert.
_____

116 S. Ct. 1684 (1996), the ultimate determination as to

whether the

reliance

executing officers acted

on a

defective warrant

in objectively

is reviewed

reasonable

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.

16 Holbrook Road,
"deals" drugs,
at 8.

First, in describing his "several"

the second

in Bedford.

Next, the

CI stated that

Juan "lives,"

residential

follow-up aerial surveillance

grounds

and

Zayas-Diaz, No. 94-30-01-B, slip op.

__________

Road "substantially" corroborated the second CI's

the

visits to

at 16

Holbrook

Road.

of 16

Holbrook

description of
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

sion

otherwise

element presently under discus-

indiscernible within

the

four

corners of

the

Graffam affidavit, see Bucuvalas, 970 F.2d at 940, the government

___ _________

might well

have been unable

Holbrook Road.

445,

to save the

evidence seized at

16

See, e.g., United States v. Huggins, 733 F. Supp.

___ ____ _____________
_______

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

observed") (citing

(Ark.

1985)).

Herrington v.
__________

State, 697 S.W.2d

_____

of "undated

specter that "officers

[may]

899, 900-01

Ostensibly, the second CI's statement that he had

visited with Zayas at 16 Holbrook Road

prime example

criminal activity was

on several occasions is a

stale" information, which

with information of

escape embarrassment

by simply

raises the

questionable recency

omitting averments

as to

time."

Rosencranz v. United States, 356 F.2d 310, 316 (1st Cir.

__________
_____________

1966).

Moreover,

argument,

it

would

as the

seem

government all

that a

but conceded

reasonably

at oral

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

Leon, 468 U.S. at 920, n.20.

____

sufficiency,

we

essential temporal component.

See
___

Without necessarily endorsing their

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,
provided

and the

two

some further

"appear[ed] to
support for

be

husband and

a reasonable

inference that

Koehler and Zayas lived together at 16Holbrook Road.

20

wife"

Id. at 9.
___

relevant to the

required nexus

visited with Zayas at

between the date

the second

CI

16 Holbrook Road and

the date the

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

See Gates, 462 U.S. at 238 (requiring practi___ _____

cal, common-sense "probable cause" assessments

trates and

The

reviewing courts).

Thus,

by issuing magis-

Zayas adroitly

skews the

focus of

the Leon debate,

____

from whether

reasonably could have relied

a well-trained

upon a search warrant based

evidence described in the

Graffam affidavit as well as

__ ____ __

inferences
__________

whether a

therefrom, to
_________

officer

on the

all fair
___ ____

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

loses

the former

test

because the

circumstances,

the latter debate hands-down, he

under Leon's "objectively

____

Graffam affidavit

as

well

as

expert

reasonable officer"

describes a

collocation of

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

of the clerk-magistrate's actions on

mation in

review

`"bits and pieces of infor-

isolation"'") (citation omitted).

First, the Graffam

affidavit

afforded ample basis for

worthy.11

Holbrook

See supra
___ _____

Road, whether

finding the second CI trust-

Section II.A.

as

Second,

Zayas' residence

site, plainly satisfied the "probable cause"

remained

was

the temporal

"nexus" elements.

component

See supra pps. 13-15.

___ _____

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

see supra note

___ _____

reasonably

earlier

well-trained

CI was
and

a reliable
on the

about "Nelson

cocaine-related

7, which Graffam

Martell"
arrest

in

verified with the

Connecticut police before the affidavit was submitted.

22

very

As to

the "commission" element, the

Zayas' cocaine trafficking activities

amply demonstrated in the

admission

that

in the Manchester area was

supporting affidavit: first, by Sosa's

Zayas had

seized from Sosa's

ongoing nature of

supplied

residence on

the six

ounces

January 26, 1994,

of cocaine

the date

of

Sosa's

arrest; and by the second CI, who informed the Manchester

police

on February 24, 1994

search

that Zayas,

distribution

at

twelve days before the challenged

alias "Juan," "currently controls" cocaine

various

Manchester

business

establishments,

including the Oasis Social Club.

See supra Section I.A.1.

___ _____

As to the "nexus" element,

second

CI's statement

"several occasions"

cocaine and

these

that

"Juan lives"

the second

cash in

the pivotal linkage was the

CI had

in Bedford,

visited "Juan" and

substantial quantities.

temporal references were related

where on

seen

Though imprecise,

by the second

CI in the

present tense, which at the very least would permit an objective-

ly

were

reasonable officer

to infer

that the

substantially contemporaneous with

view, which in turn took place

_____ __ ____ ____ _____

application.
___________

features of

The

second CI's

16 Holbrook

occurrences described

the second

within twelve days of the warrant

______ ______ ____ __ ___ _______

description of

Road, as substantially

virtually contemporaneous aerial

CI's inter-

various exterior

corroborated by

surveillance, likewise lent

to

the probability that his last

rather

than remote in time.

second

CI's descriptive

attributable

visit had been relatively

The

account

recent,

few minor discrepancies in the

were by

to a substantial time lapse.

no means

necessarily

See Schaefer, 87 F.3d

___ ________

23

at 567 (noting that

"magistrate may reasonably

choose to . .

disregard

Finally,

lar,

petty

inconsistencies"

in

the second CI made statements

ongoing

transactions

"[S]panish males"

at

16

arrived "every
_____

informants'

statements).

that plainly imply regu-

Holbrook

Road,

Tuesday" at the

e.g.,

that

Bedford resi-

dence in automobiles bearing New York license plates.

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

speculation to credit Zayas' implicit premise that the last visit

the second CI had with Zayas at

remote

that

in time even though

Zayas was

16 Holbrook Road was necessarily

there was probable

still trafficking

before the search.

cocaine less

cause to believe

than

two weeks

See, e.g., id. at 568 ("[I]t is common ground

___ ____ __

that drug

conspiracies tend to be

timely [two- or three-year-old]

ongoing operations, rendering

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

______ ______
_____

or months); Rivera v.
______

1007, 1014 (2d Cir. 1993)

United States, 928 F.2d 592, 602

______ ______

1991) (noting that in drug trafficking cases,

(weeks

(2d Cir.

information may be

weeks or months old). Finally, it is one thing to find use of the

past tense "lived" insufficient

as Zayas

urges; quite

to indicate a current residence,

another to equate

"lives" with

"lived."

24

See
___

supra Section
_____

"dealt"

inadequate

I.A.2.

to

It is

indicate

one matter

current

another to equate "deals" with "dealt."

to find

drug

the term

dealing;

quite

See id.
___ ___

To this must be added the weight due Graffam's insights

into drug

decades as

trafficking

a DEA agent.

modi operandi,
____ ________

See supra
___ _____

based

on more

Subsections I.A.4

than

two

& I.A.5.

Given Graffam's expertise, it would be "objectively unreasonable"

to

conclude, as
__

postal deliveries

Zayas simply
_____ ______

and electrical

listing, and/or maintenance

nominee

presumes,
________

owners such

stoppage of

utility services, or

of other

as Brenda

that mere

the use,

residential addresses,

Koehler, compelled

or

an inference

that Zayas was no longer residing, conducting drug operations, or

keeping illicit drug-related records, at 16 Holbrook Road.

in no sense

would it

have been objectively

Thus,

unreasonable for

well-trained police officer to believe there was a fair probabil-

ity that

these developments were subterfuges

recent arrest and

prompted by Sosa's

designed to prevent detection, as

affidavit indicated.

See id.
___ ___

III
III

the Graffam

CONCLUSION
CONCLUSION
__________

We therefore

ment

officer

affidavit

as

reasonably

adequate

finding that there was

records

conclude that a well-trained law enforce-

would be found

could

have relied

support

for

the

upon

issuing

a fair probability that drug

at 16

Holbrook Road

Graffam

magistrate's

trafficking

on March

Accordingly, the district court judgment is affirmed.

the district court judgment is affirmed.
_______________________________________

25

the

8, 1994.