USCA1 Opinion

United States Court of Appeals

For the First Circuit
For the First Circuit
____________________

No. 96-1244

UNITED STATES OF AMERICA,

Appellee,

v.

THAKHONE KHOUNSAVANH,

Defendant, Appellant.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. Francis J. Boyle, Senior U.S. District Judge]

__________________________

____________________

Before

Stahl, Circuit Judge,

_____________

Bownes, Senior Circuit Judge,

____________________

and Lynch, Circuit Judge.

_____________
____________________

Jennifer Petersen,
_________________

with whom

Karl R.D. Suchecki and

___________________

Peterse
_______

Suchecki were on brief, for appellant.

________
Sheldon Whitehouse,
__________________

United States

Attorney, with

whom Zechar
______

Chafee, Assistant United States Attorney, was on brief, for appelle

______

____________________

May 16, 1997

____________________

BOWNES, Senior Circuit

Judge.

Defendant

Thakhone

BOWNES, Senior Circuit Judge.

_____________________

Khounsavanh

appeals

his

Distribute

Cocaine Base

Distribute Cocaine Base.

U.S.C.

2.

conviction

and for

for

Possession with

See 21 U.S.C.
___

He contends that

that

the

lacked

sufficient

probable cause.

information

Intent to

the district court

affidavit underlying

to

to

841(a)(1), 846; 18

denying his motion to suppress the fruits

ground

Conspiracy

erred in

of a search on the

the

search

support

warrant

finding

of

We affirm.

The Facts
The Facts
_________

On

May 23,

officers executed a

apartment

at

1995, Providence, Rhode

search warrant for the

676-678

Chalkstone

Avenue,

Island police

first floor rear

three-family

tenement building.

submitted

by

The

Detective

warrant was

Freddy

based on

Rocha.

According

affidavit, a confidential informant had told

that two men were

apartment.

informant

purchase

to

the

Detective Rocha

storing and selling crack cocaine

in that

The affidavit described the two men as "'Fat Boy'

Alias John Doe . . . an Asian Male, Unkn. Age.

170 Lbs.

an affidavit

and 'Turtle' Alias John

also told

of

the

cocaine from

Doe.

5'7" 130

detective that

this

5'6" Tall and

subject."

he

Lbs."

"could make

(The

The

affidavit

alternates several times between referring to the subjects in

the singular and in the plural.)

-22

The detective sought to corroborate the informant's

story by taking him up

on his offer to conduct

buy

the

of

cocaine

supervision.

"drove

to

informant

from

According to

the Chalkstone

for contraband.

apartment

the

under

a controlled

the

officer's

affidavit, Detective

Avenue

Finding

area

[and] searched

none the

Rocha

the

informant was

given

an

purchase

amount of

of cocaine from

Chalkstone Ave."

the

U.S. currency

building

and

directed to

make a

'Fat Boy' and

'Turtle' at 676-678

The detective watched

the informant enter

through the

rear door

later through the same door.

and exit

five minutes

The detective met the informant

at a pre-arranged location, where

the informant handed him a

quantity

which

purchased

of

suspected

from "Fat

cocaine

Boy."

he

Tests later

stated

he

had

revealed that

the

substance was indeed cocaine.

The detective then applied

the first

floor rear apartment at

and/or the two men

for

the warrant

judge) added

for a warrant to search

676-678 Chalkstone Avenue

("Fat Boy" and "Turtle").

(which was

to the

sworn to

The complaint

before a

affidavit's description the

state court

facts that

"Fat Boy" was approximately twenty-five years old with "short

hair balding," and that "Turtle" was an Asian male with black

short hair.

The court

issued the warrant,

both as

to the

premises and as to the persons of "Fat Boy" and "Turtle."

-33

The police executed the warrant the same day.

the police

fit the

entered the apartment, two

informant's descriptions fled

When

men who approximately

to a bedroom.

Three

other people were present in the apartment during the

search

but did not leave the

arrived.

One detective

front pants pocket a

bags

found,

room they had been in when

searched "Fat Boy" and found

in the ceiling of

the kitchen, a

cocaine.

cocaine was found in the bedroom.

the police seized

in his

plastic bag containing fourteen smaller

of what tested out as crack cocaine.

smaller bags of crack

the police

Another detective

bag containing 650

Another small bag

of powder

In addition to the drugs,

the wallets and identification

men who fled, one of whom is the defendant.

of the two

They also found

in

the apartment and seized a pager, bagging material, and a

gas bill on which the defendant's name appeared.

The defendant

search.

moved to suppress the

fruits of the

After hearing, the district court denied the motion.

The defendant then

entered a plea of guilty

to Counts I and

II of the indictment, and the government dismissed Count III.

In

his plea

intended

agreement, the

to appeal

the

defendant

denial of

gave notice

that he

his suppression

motion,

pursuant to Fed. R. Crim. P. 11(a)(2).

Standard of Review
Standard of Review
__________________

In reviewing a denial

district

court's

ultimate legal

of a suppression motion, the

conclusion,

including the

-44

determination that a given

cause, is a question of

set of facts constituted probable

law subject to de novo review.

_______

Ornelas v. United States,

__________________________

116 S.

Ct.

1657, 1659

See
___

(1996);

United States v. Zayas-Diaz,

___________________________

95 F.3d 105, 111 n.6

1996).

findings (if any) of historical

The district court's

(1st Cir.

facts -- "the

events which occurred leading up to

the . . .

search," Ornelas, 116 S. Ct. at 1661 -- must be upheld unless

_______

they

are clearly erroneous.

F.3d at 111 n.6.

inferences

local

reviewing court must "give due weight to

drawn from

law enforcement

1663.

But

"the

viewed

from

the

police officer,

question of

See id. at 1663; Zayas-Diaz, 95

___ ___
__________

those

facts by

officers."

Ornelas,
_______

decision whether

standpoint of

amount to . .

law and fact

resident judges

an

116 S.

Ct. at

these historical

facts,

objectively

reasonable

. probable cause" is

which we review

1661-63.

Analysis
Analysis
________

and

de novo.
_______

a mixed

Id. at
___

The

people to be

effects,

not

be

cause,

no

supported

to be

"The right

by

Oath

place to

seized."

of the

houses, papers,

searches and

Warrants

describing the

or things

states:

their persons,

against unreasonable

particularly

There

secure in

violated, and

probable

persons

Fourth Amendment

seizures, shall

shall issue,

or

and

but

affirmation,

be searched,

U.S. Const.

upon

and

and the

amend. IV.

is a strong preference for the use of search warrants.

-55

See Ornelas, 116 S. Ct. at 1663; Payton v. New York, 445 U.S.
___ _______
__________________

573,

586

(1980).

While

the

warrant

requirement may

be

dispensed with in certain exigent circumstances that are "few

in number and carefully

delineated," United States v. United

_______________________

States Dist. Court, 407 U.S.

___________________

cause

requirement is rigorously adhered to.

Hicks, 480
_____

exists

297, 318 (1972),

U.S. 321,

326-27, 329

when 'the affidavit

(1987).

upon which a

the probable

See Arizona v.
___ __________

"Probable

cause

warrant is founded

demonstrates in some trustworthy fashion the

likelihood that

an

offense has been committed and that there is sound reason

to

believe that a particular search will turn up evidence of

it'"

or that

the search

will turn

up contraband.

United
______

States v. Schaefer, 87 F.3d 562, 565 (1st Cir. 1996) (quoting

__________________

United States v. Aguirre, 839

__________________________

F.2d 854,

857-58 (1st

Cir.

determining

the

1988)).

The

standard

we

sufficiency of an affidavit is

circumstances" stated in

cause

to search

cause need

not be

in

whether the "totality of

the

the affidavit demonstrates probable

either the

Illinois v. Gates, 462

__________________

apply

premises or

U.S. 213, 238

tantamount to

the person.1

See
___

(1983).

"[P]robable

proof beyond

a reasonable

doubt.

. . . Probability

is the touchstone."

Aguirre, 839
_______

F.2d at 857 (internal quotation marks and citations omitted).

____________________

1.

"The

facts

issuing magistrate

set forth

in

warrant application."

ordinarily

considers only

supporting affidavits

accompanying the

Zayas-Diaz, 95 F.3d at 111.

__________

-66

the

See Gates, 462 U.S.

___ _____

only

probability

activity,

not an

establish

or

cause

available in

probability that

for

the

request

place."

for a

39.

Id.
___

search

of

criminal

activity.").

premises

affidavit must

magistrate a "substantial basis"

there

cause requires

chance

of such

contraband or evidence

a particular

supporting a

substantial

actual showing

probable

information

found in

at 244 n.13 ("[P]robable

search,

show "a

of a crime

at 238.

An

warrant must

To

the

fair

will be

affidavit

give

the

upon which to conclude that

is such a "fair probability."

Gates, 462 U.S. at 238_____

The facts must be judged against an objective standard:

"would the facts available to the officer at the

. . the search

'warrant a [person] of reasonable

moment of .

caution in

the belief' that the action taken was appropriate?"

Terry v.
________

Ohio, 392 U.S. 1, 21-22 (1968).

____

In

many

cases, as

probable cause derives from

obtained

developed

here,

the

basis for

information that the police have

from an informant.

part of

two-pronged test

Prior to Gates,
_____

for such

the Court had

case:

when the

warrant affidavit rests on hearsay -- an informant's report -

the affidavit must inform

underlying circumstances from

the magistrate "of

which the informant

some of the

concluded

that the narcotics were where he claimed they were [the basis

of knowledge prong], and some of the underlying circumstances

from which the officer concluded that the informant . . . was

-77

'credible'

prong]."

or

his

information

Aguilar v. Texas,
__________________

Spinelli v. United States,

_________________________

abandoned

the

notion

378

'reliable'

U.S.

[the

108,

veracity

114

393 U.S. 410, 416 (1969).

that

"these

understood as entirely separate and

elements

(1964);

Gates
_____

should

be

independent requirements

to

be rigidly exacted in every case" before a probable cause

determination

Gates
_____

may be

sustained.

Gates, 462
_____

the

two-pronged

framework of

replaced

U.S.

at 230.

Aguilar
_______

and

Spinelli with the totality of the circumstances test.

________

While eschewing

Aguilar-Spinelli
________________

a rigid

adherence to each

factors, Gates maintained

_____

the considerations set forth in those cases.

surely

did

"threaten[]

not

to

intend

'obliterate

distinctions between our

are

under the law, and

law.'"

Gates,
_____

that

462 U.S.

one

its

of

the relevancy of

The Gates Court

_____

totality

test

the

fundamental

most

form of government, where

the police-state where

at 291

of the

(Brennan, J.,

would

officers

they are the

dissenting)

(quoting Johnson v. United States, 333 U.S. 10, 17

_________________________

Nor

did

abdicate

Gates
_____

intend for

their

trial

responsibility

and

appellate courts

to

uphold

Amendment's probable cause requirement.

321.

We have

never read

standards and rules

Gates as
_____

courts

of law in determining

are writing

-88

on

the

to

Fourth

See Hicks, 480 U.S.

___ _____

a total

may intrude on a citizen's privacy.

reviewing

(1948)).

abandonment of

whether the state

Nor does Gates mean that

_____

clean

slate

when

we

confront

the

question of

when

an

informant's information

rises to the level of probable cause.

that

the

Aguilar
_______

informant's

Spinelli
________

'veracity,'

knowledge' are

factors,

'reliability'

all highly relevant in

of his report."

F.3d at

and

The Gates Court agreed

_____

566 (the

Gates, 462
_____

Aguilar and
_______

relevant," even after Gates).

_____

U.S. at

and

including

"an

'basis

of

determining the value

230; see Schaefer,

___ ________

Spinelli factors are

________

87

"highly

We

have recently offered

possible factors

that a

a non-exhaustive list of

magistrate or reviewing

court will

consider:

Among

others,

contribute

the

to

determination

factors
a

that

"probable

include

affidavit

supports

"'veracity'

or

may
cause"

whether
the

'basis of

an

probable

knowledge' of

persons

supplying

hearsay information";

whether

informant

statements are

authenticating; whether some

informant's

factual
wherever

practicable

(e.g.,

enforcement

or all

statements

corroborated

surveillance);

self-

and

were

reasonable
through
whether

affiant

the

and
police

law-

included

professional

assessment of

significance

of the facts related by the

informant,

based

expertise.

None

on
of

the probable

experience
these

or

factors is

indispensable; thus, stronger evidence on

one or more factors

may compensate for a

weaker or deficient showing on another.

Zayas-Diaz, 95 F.3d at
__________

The risk that

need not be

111 (citations and footnote omitted).

the informant is

wholly eliminated.

that "the probability

lying or in

Rather, what

of a lying or

error

is needed

is

inaccurate informer has

-99

been

sufficiently

reduced

by

corroborative

facts

and

observations."

W. LaFave, Search and Seizure: A Treatise

_______________________________

on the Fourth Amendment

__________________________

(quotation omitted).

verification

of

The

part

168

(3d

ed.

1996)

("LaFave")

judgment to be made is:

of

the

informant's

when does

story

make

it

sufficiently likely that the

crucial part of the informant's

story (i.e., allegations that

criminal activity has occurred

and

thereto will

that evidence pertaining

location to be searched)

is true, such as would

[person] of reasonable caution in the

would

be] appropriate,"

said?

See Terry, 391 U.S. at 21-22.

___ _____

In

analyzing

be found

based upon

whether

in the

"'warrant a

belief' that [a search

what the

there

informant has

is

sufficient

corroboration, in verifying the

or in

demonstrating an adequate

not particularly probative

of

reliability of the informant

details about

easily

all

and that

the

that other

people could

are not incriminating,

furniture

in

an

or

the

details

do

not

routine

activities.

Such

demonstrate

that the

informant has

a legitimate

which,

about

the defendant's

allegedly

basis for

criminal activity

after all, is what the affidavit must establish.

best, [such] details merit

has

such as

apartment

defendant's

knowing

it is

for the informant to supply a lot

irrelevant facts

know about

describing

basis for knowledge,

been

in

the

"At

the conclusion that the informant

premises

in

-1010

question

[or

knows

the

defendant's daily

that effect

hardly be

routine], but since a

direct statement to

by the informant would not carry the day, it can

enough that this particular

conclusion is reached

by inference from the statement of detail."

(footnote omitted).

circumstances,

2 LaFave

at 160

Unless such details, combined with other

would in

some

criminal conduct has occurred

way

generate suspicion

that

or that contraband or evidence

exists on the premises

or on the person to be searched, they

would not warrant a prudent police officer in the belief that

a search would

U.S.

be appropriate.

325, 332 (1990)

woman

would

leave

Cf. Alabama v. White,

___ _________________

(where anonymous caller

certain

apartment

496

told police a

building

at

particular time and get into a particularly described car and

drive

to a

certain

motel, and

where surveilling

officers

observed such behavior, these facts constitute a "close case"

to

establish merely

reasonable

suspicion to

make a

Terry
_____

stop).

In the instant

distinct

aspects

probable cause to

of the

case, the defendant

search:

whether

obtain a warrant to search

challenges two

the

police had

the apartment;

and

whether

defendant

the

when

police

they did.

aspects separately.

upon sufficient

were justified

We

will

in

analyze each

We conclude that the

facts to establish probable

the premises; then when

searching

the

of these

warrant was based

cause to search

that search was executed, additional

-1111

information came

to light

which provided probable

cause to

search the person of the defendant.

The

government

observed by the

rule is

that

not

search the apartment.

appropriate in

the

precious Fourth Amendment freedoms.

"are not mere second-class rights

of indispensable

none is so

Uncontrolled

freedoms.

effective in

spirit of the

controlled

officer, is per se sufficient to

_______

probable cause to

se
__

argues

Among

cowing a

establish

We disagree.

context of

buy,

A per
___

protecting

Fourth Amendment rights

but belong in the

catalog

deprivations of

rights,

population, crushing

individual and putting terror in

the

every heart.

search and seizure is one of the first and most

effective

weapons

government."

in

the

arsenal

of

every

Brinegar v. United States, 338 U.S.

__________________________

(1949)

(Jackson, J.,

secure

against

dissenting).

searches and

difficult to protect.

"But

seizures

the

is one

Since the officers

arbitrary

160, 180

right to

of

be

the most

are themselves the

chief invaders, there is no enforcement outside of court. . .

Courts

can protect

the innocent

only indirectly and through

obtained against those who

181.

sometimes

new

in

the

insulates the

invasions

the medium of excluding evidence

frequently are guilty."

As Justice Scalia has

nothing

against such

Id. at
___

written for the Court, "there is

realization

criminality

protect the privacy of us all."

that

of a

the

Constitution

few in

order to

Hicks, 480 U.S. at 329.

_____

-1212

Moreover,

fundamentally

fact-specific

possesses talismanic

Fourth Amendment

the fact-specific

probable

powers.

cause

determination

inquiry.

one

Because of the

freedoms to every American,

nature of

No

is

factor

importance of

and because of

the probable cause

inquiry, we

reject

the government's

contention

should

be per se sufficient
______

hard

899 F.2d 99,

buy

cause.

102 (1st

Cir.

determination of probable cause "cannot be based on

certainties

and

Wisconsin, 117 S. Ct.

_________

exception

Amendment's

to

the

rigid

"on

knock-and-announce

We hold

its

rules");

cf.
___

Richards
v.
_____________

1416, 1421 (1997) (rejecting a

reasonableness

investigations).

evaluated

a controlled

to establish probable

See United States v. Caggiano,

___ __________________________

1990) (a

that

own

California, 374 U.S. 23,

__________

requirement

instead that

facts and

element

for

of

per se
______

Fourth

felony

drug

every case

must be

circumstances,"

Ker v.
_______

33 (1963) (internal quotation marks

omitted), with due consideration to

the totality of all

the

circumstances

238.

[a

in that

particular case,

Gates, 462
_____

See also Ornelas, 116 S. Ct. at 1661.

________ _______

controlled

warranting [a

buy]

may

frequently

"[T]he fact that

present

finding of probable cause]

U.S. at

circumstances

cannot remove from

the neutral scrutiny of [a magistrate and] a reviewing

court

the

case.

[existence

of probable

Instead, in each case, it

with

the

question

to

cause]

in

a particular

is the duty of a

determine

-1313

whether

court confronted

the

facts

and

circumstances of

the particular

[affidavit in support

warrant application] justified" the issuance of

Richards,
________

117 S.

magistrates

1421.

the warrant.

Accordingly, we

hold that

and reviewing courts must carefully review every

warrant application

all

Ct. at

of a

on its

own merit, to

the facts and circumstances of

determine whether

that case are sufficient

to establish probable cause to conduct a search.

We do agree, however, that, taking into account the

totality of circumstances in the instant case, the government

had established probable

cause for the

search of the

floor rear apartment at 676-678 Chalkstone Avenue.

to the officer's

affidavit, the informant had

first

According

told him that

he knew "Fat Boy" and "Turtle" were storing and selling drugs

in the

make

apartment in question;

a purchase

(knowing

relatively

that,

from

if

down,

and

he was

several

he

would

minutes

these facts

did not

apartment

be found

informant in fact

after

offered to

in that

having been

later

out

went to the

with

had purchased the crack from

certainty, the combination of

a reckless

lying,

crack cocaine,

emerged

explaining that he

While all

those individuals

quickly); and the

apartment without

the informant had

corroborate each

patted

crack,

"Fat Boy."2

other with

facts "'reduced the chances of

or prevaricating tale,' [and]

thus provid[ed] 'a

____________________

2.

The complaint

contained additional facts

not part of the affidavit.

but those were

See infra at 20 & n.4.

___ _____

-1414

substantial basis

for crediting

the hearsay.'"

Gates, 468
_____

U.S. at 244-45 (quoting Jones v. United States, 362 U.S. 257,

______________________

269,

271

(1960)).

Taken

sufficient to give the

which to

together,

these

there was

a "fair

contraband

or evidence of a

apartment.

See Gates, 462 U.S. at 238-39.

___ _____

pattern as in

Cir. 1993).

case

contains

probability that

crime [would] be

almost

found" in the

the exact

United States v. Garcia, 983

________________________

In

were

magistrate a "substantial basis" upon

conclude that

This

facts

same

fact

F.2d 1160

(1st

Garcia, the defendant had moved

______

to suppress

evidence seized during the search of an apartment in a three-

family building, on the

the search

ground that the affidavit underlying

warrant upon which the search

team relied failed

to demonstrate probable cause for the search.

That affidavit, in essence, stated:

[the

affiant,

police detective]

that
had

reason to believe that a large-scale drug

operation was being

conducted out of the

second floor apartment of

Street;

reliable

confidential informant who told

him that

two

he

Hispanic

selling
seen

that

with

persons

were storing

and

that

the informant

had

drugs;

large

met

93-95 Gallatin

amounts

of cocaine

apartment; and that, to

information,
"controlled
The

affidavit

fully

the

corroborate this

[the detective]
buy" through

in

executed a

the informant.
described

the

"controlled buy."

Id. at 1166.
___

In Garcia, as here, the controlled buy was less

______

than

the detective

enter

ideal:

was able to

watch the informant

and leave the building through its front door, but did

-1515

not

follow

the informant

unable

to

verify with

source

of

the drugs

secreted

Id.
___

another anomaly

handed

the drugs

the building

certainty

(or even

elsewhere in

hypothesized).

into

the

whether

with the instant

In

the

had been

the defendant

had

addition, Garcia shared

______

case:

officer, he

thus was

apartment was

the drugs

building, as

at 1166-67.

to the

which

and

when

the informant

reported that

he had

purchased the

resided

the second

"the Hispanic male

the

there

were

two

Hispanic persons involved in the drug-selling operation.

Id.
___

had

floor

previously

apartment,"

[singular] who

even though

informant

in

drugs from

told

him

that

at 1167.

We

warrant

found that

and

the

reasonable inference

the state

district

judge

of probable

court judge

reviewing

the second floor apartment

Street."

Likewise, in the instant case,

contained

to

from

it

cause that there

trafficking in

Id.
___

issuing the

"drew

was drug

of 93-95 Gallatin

the affidavit

sufficient information to lead a reasonable person

believe that crack cocaine

the first

floor rear

was being stored

apartment at

in and sold

676-678 Chalkstone

Avenue, also a three-story tenement building.

The

though

the

present case

affidavit

is

there

present affidavit did not:

the informant as "reliable."

controlled by

contained one

Garcia
______

fact

that

even

the

the detective in Garcia described

______

This is a distinction without a

-1616

real difference.

A bald assertion

of reliability, with

no

allegations regarding the basis for the officer's belief that

the informant is reliable --

such as convictions obtained as

a result of information supplied in the past by the informant

-- is "entitled

Foree,
_____

43

F.3d

quotation marks

to only

1572,

heroin

from

1576

omitted); see
___

officer's statement

information

slight weight."

that

(11th

Cir.

Gates, 462
_____

'affiants have

a credible

and

1995)

(internal

U.S. at 239

received

("An

reliable

do believe'

that

is stored in a home, is likewise inadequate.").

Even

though the informant's past

person

United States v.
_________________

performance may be considered in

evaluating the credibility or reliability of the informant, a

mere

allegation

"reliable"

that any

the

that

does not

the

informant

permit the

was

of

"credible"

judicial officer

such past performance

performance

is

or

to assume

actually took place

or that

nature

such

to

merit

characterization of the informant.

Thus, it

lacks

the

present

in

is of only "slight" moment that this case

conclusory

Garcia.
______

assertion

of

The

important

more

similarities between the two cases:

that

drugs

are

being

apartment, who offered to

make

controlled

buy

stored

and

reliability

that

was

are

the

facts

an informant who alleges

sold

in

particular

make a controlled buy and

from

the

same

apartment.

who did

The

corroboration of the informant's story did not consist merely

-1717

of

corroborating

people

might

some innocent

know.

This

was

facts

that

corroboration

any number

of the

of

very

criminal activity which the police were investigating, and of

the existence of contraband or evidence on the premises to be

searched.

As such,

it supports a finding of

probable cause

in

a way that facts about furniture or routine activities do

not.

To be sure, the controlled buy in this case was, as

the defendant claims, not

free of problems.

States v. Cruz Jimenez, 894

_________________________

(informant, searched

first,

F.2d

had

1,

cocaine

Compare
_______

United
______

(1st Cir.

1990)

when

she

exited

defendant's motel room; that, plus what police overheard from

body recorder she wore during transaction, confirmed that she

obtained drugs from defendant).

F.2d

where

at 1166-67,

the

facts,

we upheld

including

But as noted, in Garcia, 983

______

a probable

the

cause determination

imperfections

of

controlled buy, were remarkably similar to those here.3

the

____________________

3.

The government

not

contain sufficient

cause to
the

contends that, even if

search, suppression

grounded in an
result,

an

knowledge of
Fuccillo,
________

"Suppression
officers

"This good faith exception, however, is

officer

is

what

the law

905 (1987)
is

because of

See United States v. Leon,

___ ______________________

objective standard of

808 F.2d

establish probable

is not appropriate

Leon good faith exception.

____

468 U.S. 897 (1984).

U.S.

corroboration to

the affidavit did

required

still

Leon,
____
an

to

have

prohibits.'"

173, 177 (1st

(quoting

reasonableness.
a

As

'reasonable

United States v.
_________________

Cir.), cert. denied, 482

_____________
468

U.S.

appropriate

at

remedy

920
when

n.20).
'the

were . . . reckless in preparing their affidavit. .

. .'"

Fuccillo, 808 F.2d at 178 (quoting

________

Leon, 468 U.S. at

____

926).

In Fuccillo, we held that the officers "were reckless

________

in not including in the affidavit information which was known

-1818

The

warrant was

defendant

further

argues

inadequate because of a

that

the

search

few minor discrepancies

or errors in some facts in the affidavit and in the officer's

testimony

conducting

disagree.

about the

name of

surveillance

The

the street

during

magistrate "may

disregard petty inconsistencies"

Schaefer,
________

115-16).

87 F.3d at 567

the

from which

controlled

buy.

reasonably choose to

in informants'

(quoted in Zayas-Diaz,
__________

he was

We

. .

statements.

95 F.3d at

We

affidavit

basis

turn

now to

contained

for

defendant's

insufficient

probable

defendant.

the

cause

This is a

claim that

information

to search

the

separate issue from

to

person
______

the

form the

of

this

the existence of

probable cause to search the premises which we have discussed

supra.
_____

by

Probable cause to search a person "must be supported

probable

person."

cause

particularized

with

respect

to

that

Ybarra v. Illinois, 444 U.S. 85, 91 (1979); United

__________________
______

States v. Sepulveda,
____________________

102 F.3d

"[A]

propinquity

person's

suspected of

mere

1313, 1315 (1st

to

others

criminal activity does not,

____________________

Cir. 1996).

independently

without more, give

or

easily accessible

officers

"simply

to them."

did

not

'take

reasonably be expected of them.'"

v. Sheppard,
___________
an

open

178.

every

step

reasonableness was

whether
met.

We

we determine

this

could

standard

reach this

the evidence is

-1919

that

In this case, it is

objective

need not

any event, on other grounds.

There, the

Id. (quoting Massachusetts

___
_____________

468 U.S. 981, 989 (1984)).

question

however, since

Id. at
___

of

question,

admissible, in

rise to probable cause

U.S.

at

91;

Sepulveda, 102
_________

discussed supra,
_____

that

the

to search that person."

F.3d

at

1315.

while providing probable

premises contained
________

contraband

Ybarra, 444
______

The

factors

cause to

believe

or

evidence of

crime, do not alone provide a sufficient basis for the police

to have searched this defendant's person (on which they found

his identification which,

coupled with the gas bill they had

found in the apartment, tied him to the premises).

The

detail"

"Turtle"

government argues

of the

are

authenticating,"

issuing a

informant's

"precise"

an

additional

search

the "specificity

descriptions of

so

warrant to

that

that

they

factor that

the person

"Fat Boy"

and

and

are

"self-

would

support

of this

defendant

(citing Zayas-Diaz,
__________

95 F.3d at

111).

We disagree.

It is

true that there may be cases where an informant provides such

wealth of detail, with

that

it is unlikely

assertions, and

such a high

that the

his veracity

specificity and detail

degree of specificity

informant is

is supported through

of his

statement.

See id.;
___ ___

States v. Caggiano, 899 F.2d 99, 102-03 (1st

__________________

the instant

case, however, the so-called

affidavit -- "'Turtle' Alias John Doe.

not

nearly enough

authenticating.

government's

to make

This

is

invitation to

inventing these

even

United
______

Cir. 1990).

In

"precision" in the

5'7" 130 Lbs." -- is

the informant's

true

the very

if

consider as well

statement self-

we

accept

the

the additional

-2020

assertions

contained

affidavit:

in

the

complaint

attached

to

the

that "Turtle" was an Asian male with black short

hair.4

Nor does the

corroborative

cure for

controlled buy in

the affidavit's

this case offer

deficiencies.

The

controlled

buy --

informant said

he had

bought drugs from "Fat

Boy," not from this defendant

-- was

sufficient to cure the

lack of probable cause to

premises but
________

cause

to

during

which the

was inadequate

believe that

to cure

a search

the

of the

search the

lack of

probable

defendant's person
__________________

would likely turn up contraband or evidence of a crime.

Nevertheless,

apartment legally

the

premises,

(approximately)

once

pursuant to

they

fit

the

officers

the legal search

observed

two

those admittedly

men

entered

the

warrant for

fleeing

who

sketchy descriptions.

This flight, coupled with the controlled buy monitored by the

detective

and the informant's

description (including height

and weight) of two alleged drug traffickers selling drugs out

___

____________________

4.

The

latter details

itself,
only

and "[t]he
the

facts

accompanying the
at

111.

before

The

were not included

issuing magistrate
set

forth

in

affidavits

Zayas-Diaz, 95 F.3d
__________

also consider

him or her, if the testimony

testimony given

was sworn to and made a

part of the affidavit.

See Fed. R. Crim. P. 41(c).

___

not decide whether the

complaint accompanying the

in this case should

be considered as part of

because we hold infra

_____
search

the defendant's

decide this issue.

-2121

regardless of

We

need

affidavit

the affidavit,

that the police had probable

person

affidavit

ordinarily considers

supporting

warrant application."

magistrate may

in the

cause to

how we

would

of that apartment, was sufficient to establish probable cause

to

even

search the defendant's person, without a warrant.5

though

the affidavit

was

insufficient

Thus,

to sustain

warrant to search the person of this defendant, the affidavit

was sufficient to sustain a

and

once

the

police

warrant to search the apartment,

entered the

apartment

legally,

the

defendant's suspicious behavior (coupled with the informant's

report and

probable

the controlled

cause to

evidence of a crime.

search

buy) was sufficient

the defendant

to establish

for contraband

or

Conclusion
Conclusion
__________

We

cannot

say

that

the

affidavit

probable cause sufficient

to justify a

floor

at

rear

apartment

Nevertheless,

we urge

affidavits as much

which

to base

police officers

lacked

search of the

Chalkstone

to include

first

Avenue.

in their

information as they can legally gather on

a finding

informant's knowledge.

reviewing courts

676-678

here

of reliability

And we will

to scrutinize

and basis

for the

require magistrates and

affidavits such as

this one

carefully.

____________________

5.

The warrantless

person was

aspect of the search of

justified by exigent circumstances

the defendant's
in this case:

two individuals
dealers fled from

who met an informant's

police officers as they

warrant, during the investigation

that

could easily be disposed

Ambulance Serv.,
_______________

descriptions of drug

77 F.3d

of.

executed a search

of a crime involving drugs

See
___

540, 545 (1st

McCabe v. Life-Line
___________________
Cir. 1996);

United
______

States v. Wihbey, 75 F.3d 761, 766 (1st Cir. 1996).

________________

-2222

As we said in

meticulously

the context of Rule 11,

"[t]he more

[a legal rule] is adhered to, the more it tends

to

discourage,

disposition of"

of the

rule.

or

at

least

to

enable

more

expeditious

a defendant's attacks on asserted violations

United States v. Martinez-Martinez,

___________________________________

69 F.3d

1215,

1225-26 (1st Cir. 1995), cert. denied, 116 S. Ct. 1343

____________

(1996)

(quoting United States v. Cotal-Crespo, 47 F.3d 1, 8

______________________________

(1st

Cir.),

cert. denied,
____________

116 S.

Ct.

94 (1995),

in turn

quoting McCarthy v. United States, 394 U.S. 459, 465 (1969)).

_________________________

Therefore, "[a]lthough

we conclude that

the [probable cause

determination] in this case was adequate, we are nevertheless

compelled

to

magistrates]

remind

that,

district

for the

sake

courts

of

[and

police

judicial economy

and

and

fundamental fairness, the best way to ensure that" the Fourth

Amendment's probable cause requirement is complied with is to

meticulously comply

1225-26 (quoting

117

S.

scrutiny

Ct. at

of

with it.

Martinez-Martinez,
_________________

Cotal-Crespo, 47 F.3d at
____________

1421 (emphasizing

police

behavior by

-2323

8); see Richards,

___ ________

importance

69 F.3d at

of

neutral

reviewing court to ensure compliance with Fourth Amendment in

particular case).

Affirmed.
Affirmed.
________

-2424