
USCA1 Opinion

	




                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 94-2135                                    UNITED STATES,                                      Appellee,                                          v.                                    JOHN A. MEUSE,                                Defendant - Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                       [Hon. Mark L. Wolf, U.S. District Judge]                                           ___________________                                 ____________________                                        Before                          Boudin and Lynch, Circuit Judges,                                            ______________                        and Schwarzer,* Senior District Judge.                                        _____________________                                _____________________               Annemarie Hassett, Federal Defender Office, for appellant.               _________________               Gary S.  Katzmann, Assistant  United  States Attorney,  with               _________________          whom  Donald K. Stern, United  States Attorney, was  on brief for                _______________          appellee.                                 ____________________                                   August 2, 1995                                 ____________________                                        ____________________          *Of the District of Northern California, sitting by designation.                    Per Curiam.  Defendant John A. Meuse pleaded guilty  to                    Per Curiam                    __________          a charge of illegally possessing firearms as a felon (18 U.S.C.            922 (g)(1)).  Meuse appeals his conviction on the ground that the          search  that led  to the  discovery of  the firearms  was illegal          because  the affidavit  supporting the  search warrant  failed to          establish  the likelihood that the items sought would be found in          his  residence.  The items sought were burglary tools and jewelry          stolen  from   the  home  of  Genevieve   DiCarlo  ("the  DiCarlo          burglary").  Following  his indictment,  Meuse moved  to suppress          all  items recovered  during the  search of  his apartment:   the          three  firearms  referred  to   in  the  indictment,  along  with          ammunition,  a stun gun, and other  instrumentalities of an armed          robbery and burglary gang.  (None of the jewelry from the DiCarlo          burglary was recovered at Meuse's apartment.)  The district court          denied  the motion,  finding that  the officers had  proceeded in          good faith reliance  on a  facially valid warrant,  and that  the          information in the affidavit supported  the magistrate's decision          that there was a  fair probability that evidence of  a particular          crime, including jewelry stolen in the DiCarlo burglary, would be          found in Meuse's residence.  We affirm the district court.                                  STANDARD OF REVIEW                                  STANDARD OF REVIEW                    This court has jurisdiction under 28 U.S.C.   1291.  In          reviewing  a district court's  determination that the  face of an          affidavit stated  sufficient probable  cause to support  a search                                         -2-          warrant,  we  review only  for clear  error.1   United  States v.                                                          _________________          Garc a, 983 F.2d 1160, 1167 (1st Cir. 1993), citing United States          ______                                              _____________          v.  Nocella, 849 F.2d  33, 39  (1st Cir.  1988); see  also United          ___________                                      _________ ______          States  v. Taylor, 985 F.2d 3, 5 (1st Cir. 1993) (reviewing court          _________________          does  not  undertake  de  novo review  of  sufficiency  of search                                __  ____          warrant affidavit,  but accords  great deference to  the probable          cause determination).                                      BACKGROUND                                      BACKGROUND                    The  warrant was  issued  on December  10,  1991, by  a          clerk-magistrate of  the Commonwealth of Massachusetts.   The 14-          page affidavit,  signed  by Massachusetts  State Trooper  Michael          Grassia, stated in substance the following:                    On December 2, 1991, Grassia, a ten-year veteran of the          force,  attended a meeting  of police  officers from  a five-town          area of  Massachusetts (Wakefield,  Malden, Revere,  Melrose, and          Saugus).  The  purpose of the meeting was to  plan and coordinate          strategy for solving  a series of armed robberies  and burglaries          of homes  in that area.   Chief among the  suspects identified at                                        ____________________          1   Meuse  contends  that  the  "clear  error"  standard  is  not          applicable here because the district court's determination of the          sufficiency of the  underlying affidavit  was made  after a  non-          evidentiary  hearing, citing  United  States v.  Falon, 959  F.2d                                        ________________________          1143, 1147 (1st Cir. 1992).  In Falon, however, the issue was not                                          _____          the  sufficiency  of  the   search  warrant  affidavit,  but  the                                                       _________          particularity of a  broadly worded search warrant,  which did not          specifically incorporate  or attach the affidavit,  and which did          not refer to  the criminal  offenses for which  the evidence  was          sought.   We suggested that  de novo review  might be appropriate                                       _______          when,  as there, the district  court makes a  purely legal ruling          regarding  the  level  of  particularity  required  in  a  search          warrant.   We added, however, that  when reviewing conclusions in          the  nature of  fact  finding, we  would  apply the  clear  error          standard.  Id.                      ___                                         -3-          the meeting was  John Meuse.  One of  the Wakefield officers told          Grassia that a Ford  van registered to Meuse had  been identified          by witnesses as a vehicle  used in an armed robbery the  previous          month.   Meuse subsequently called  the police to  report the van          stolen; when  he was informed that  the police wanted to  talk to          him about  an armed robbery,  however, he  refused to  go to  the          police station to retrieve  the van, sending his attorney  in his          place.  The Wakefield  officer told Grassia that the  only damage          to  the van  was  a popped  ignition,  and that  everything  else          appeared intact.   Meuse subsequently re-registered  the van with          different license  plates.   Grassia  obtained other  information          about Meuse at the meeting, including information about  his past          criminal record.                    Because the  crimes of  which Meuse and  his associates          were   suspected   had   been   committed   on   Saturdays,   the          representatives  of  the  various police  departments  agreed  to          conduct a joint  surveillance of those suspects on  the following          Saturday,  December 7,  1991.    At approximately  6:30  p.m.  on          December 7th,  Grassia and the other  officers began surveillance          at  several locations  in Revere  and Everett,  including Meuse's          residence.   Earlier  that  afternoon, the  DiCarlo residence  in          Melrose  was burglarized.   Taken  in the  burglary  were several          hundred pieces of jewelry and a light green pillowcase.  Some  of          the jewelry was in a white cardboard box.                    That evening, at 8:00 p.m., a Monte Carlo registered to          Robert  Stevens, another of the suspects in the Wakefield crimes,                                         -4-          arrived at Meuse's residence.  Three men got out of Stevens'  car          and walked into Meuse's apartment building, one carrying a light-          colored  cloth bag,  and  the other  two  with valise-type  bags.          Police  observed  the three  men  walking  around inside  Meuse's          apartment.                    An hour  later, at 9:00 p.m., police saw Ronald Ferrara          enter  Meuse's  apartment, empty-handed.    Half  an hour  later,          Ferrara came out, carrying a brown shopping bag.  Police officers          followed Ferrara  to the parking lot of  a restaurant in a nearby          town.   Ferrara entered another vehicle, talked to the driver for          ten minutes, and  got out, still carrying  the shopping bag.   He          then  drove to  an  adjoining parking  lot, and  pulled alongside          Meuse's  van and  Stevens' Monte  Carlo, both  of which  had been          followed  by  police  from  Meuse's apartment.    The  police saw          Ferrara  hand what looked like  money into the  passenger side of          the  Monte Carlo, after which  he shook hands  with the passenger          and  walked back  to his  car, still  carrying the  shopping bag.          Ferrara then entered  the restaurant, where he  stayed until 1:00          a.m.                    When Ferrara left the restaurant, he was accompanied by          his wife.  Shortly thereafter, Ferrara was arrested for operating          a motor vehicle with a suspended license.  An inventory search of          his  car revealed a brown shopping bag containing over 100 pieces          of jewelry and  a white  cardboard box, all  of which were  later          identified by Mrs. DiCarlo as  the items stolen from her home  on          December 7th.                                         -5-                    When Ferrara  was questioned at the  police station, he          said he had been  at the restaurant the entire evening, from 7:30          p.m. until 1:00 a.m.  He told police he had purchased the jewelry          from  a friend of a  friend inside the  restaurant, but could not          identify either the  friend or the seller of the  jewelry.  Later          that  night, Ferrara's wife arrived at the police station to post          bail  for Ferrara, and told police the  jewelry was hers.  At the          time  the  police had  stopped  the  Ferrara  car, however,  Mrs.          Ferrara said  that the jewelry in  the car was not  hers and that          she knew nothing about the bag.                    Grassia concluded that it was  his belief, based on the          facts stated above, along  with his training and experience  as a          police officer, that the perpetrators of the DiCarlo burglary had          used  the pillowcase to carry  off the jewelry;  that the "light-          colored cloth  bag" carried into Meuse's apartment on the evening          of  December 7th was the  green pillowcase that  had been removed          from  the DiCarlo residence during the burglary; that Ferrara was          acting as  a fence for the  stolen property and  had obtained the          jewelry from Meuse's  apartment on the  evening of December  7th.          Grassia  stated  further that  he  believed  that further  stolen          property was being kept at Meuse's apartment.                                       DISCUSSION                                      DISCUSSION                    Meuse  argues  that the  affidavit  in  support of  the          search warrant failed to establish the requisite probability that          evidence of the DiCarlo burglary would be found in his residence.          He contends that the  affidavit was deficient in that  it did not                                         -6-          establish a  sufficient nexus between the stolen  jewelry and his          apartment.                    Probable   cause   exists    where   "the   facts   and          circumstances within [a police officer's] knowledge, and of which          [the officer] had reasonably trustworthy information .  . . [are]          sufficient  in themselves  to  warrant a  [person] of  reasonable          caution" to believe that a  crime has been committed or  is being          committed and that contraband or other evidence of a crime can be          found at the place to be searched.  Carroll v. United States, 267                                              ________________________          U.S. 132,  162 (1925);  United States v.  Drake, 673 F.2d  15, 17                                  _______________________          (1st  Cir. 1982).  Stated another way, probable cause exists when          there  is a "fair probability"  that contraband or  evidence of a          crime will be found  in a particular place.  See Massachusetts v.                                                       ___ ________________          Upton, 466 U.S.  727, 733  (1984); United States  v. Jordan,  999          _____                              ________________________          F.2d  11, 13 (1st Cir. 1993).  "Probable cause" is something less          than  the  "preponderance"  standard  of  proof.    "[T]he  words          'reasonable  cause' are perhaps closer to what is meant."  United                                                                     ______          States v. Melvin, 596 F.2d 492, 495 (1st Cir.), cert. denied, 444          ________________                                ____________          U.S. 837 (1979).                      Probable  cause  may be  established  in various  ways,          including  hearsay from a reliable source  or information from an          anonymous  tip  that  can  be independently  corroborated.    See                                                                        ___          Illinois  v. Gates, 462 U.S.  213, 233-34, 241  (1983).  Probable          __________________          cause  may also  be established  by the personal  observations of          police  officers.  See McDonald  v. United States,  335 U.S. 451,                             ___ __________________________          454-55  (1948); United States v.  Lee, 962 F.2d  430, 436-38 (5th                          _____________________                                         -7-          Cir.), cert.  denied, 113  S. Ct. 1057  (1992).   Police may  use                 _____________          their training,  experience, and expertise to  draw inferences of          criminal activity  from behavior  that is not  facially criminal.          Texas v. Brown, 460 U.S. 730, 742-43 (1983) (plurality opinion).          ______________                    The mandate  of the  Fourth Amendment was  satisfied in          this case so long as the "totality of the circumstances" provided          the issuing  magistrate with  a substantial basis  for concluding          that a search would  uncover evidence of wrongdoing.   Gates, 462                                                                 _____          U.S. at 236;  United States v. Ciampa, 793 F.2d  19, 22 (1st Cir.                        _______________________          1986).  The district court found that that standard was met here.                    The district  court found  that the information  in the          affidavit was  obtained primarily from  the personal observations          of trained and experienced police officers; that there had been a          rash of burglaries in  which defendant was a prime  suspect; that          defendant drove a van which was  believed to have been used in an          armed robbery; that on  the day of the DiCarlo  burglary, Ferrara          was seen entering defendant's apartment  empty-handed and leaving          with a shopping bag that was later found to contain a substantial          portion of the jewelry reported stolen by Mrs. DiCarlo just hours          before; and that Ferrara lied  about his whereabouts that evening          and told an  incredible story  about the source  of the  jewelry,          further  undercut  by his  wife's  conflicting  story.    In  the          totality of the circumstances, the court found  probable cause to          believe  that evidence of a  crime would be  found in defendant's          apartment.  Meuse argues that the conclusion that a search of his          apartment would uncover evidence relating to the DiCarlo burglary                                         -8-          relied on the inference  that the contents of the  brown shopping          bag removed from Ferrara  at 1:00 a.m. on  December 8th had  been          obtained by  Ferrara  from  Meuse's  apartment at  9:30  p.m.  on          December  7th.   He  claims that  even  though Ferrara  was  seen          leaving the apartment with a bag  that was later found to contain          the  stolen DiCarlo jewelry, the fact that Ferrara met with other          individuals  during  the  three  and  a half  hours  between  his          departure  from Meuse's  residence  and his  apprehension by  the          police makes it unreasonable  to conclude that the bag  must have          contained the stolen jewelry when Ferrara left Meuse's apartment.          This argument ignores the  fact that the full array of  facts and          circumstances presented to the  issuing court need only establish          probable  cause, not a certainty that the material sought will be          found in  the place to be  searched.  Gates, 462  U.S. at 231-35;                                                _____          accord, Ciampa, 793 F.2d at 22.          ______  ______                     Similarly  unpersuasive is  Meuse's argument  that the          affidavit does not support the inference that the DiCarlo jewelry          entered  Meuse's apartment  in the  cloth bag  at  8:00 p.m.   He          claims that  the requisite probable cause is  lacking because the          officers conducting  the surveillance described a  man carrying a          "light-colored bag"  rather than  the "green pillowcase"  missing          from  the DiCarlo residence.   This minor variation  in the terms          used to describe the bag does not preclude a finding of  probable          cause.   Search warrants are to be interpreted in a "common-sense          rather than a hypothetical or a  hypertechnical manner."  Garc a,                                                                    ______          983 F.2d at 1167.   Bits and pieces of information  are not to be                                         -9-          judged in isolation.  United States v. Badessa, 752 F.2d 771, 773                                ________________________          (1st Cir. 1985).                    Meuse's final argument is that  there were insufficient          facts  to link  him  personally  to  the  stolen  jewelry  or  to          Ferrara's criminal activities.  He claims, for  example, that the          affidavit  did  not show that Ferrara was a  known fence, that he          had  previously  fenced stolen  property for  Meuse, that  he had          previously received  stolen property  from Meuse's  apartment, or          that  he had any record for any offense involving stolen property          or relating to the robbery/burglary activity for which Meuse  was          under surveillance.   Meuse also argues that  Ferrara's lie about          his  visit to  Meuse's apartment  establishes nothing  other than          that Ferrara wished to  hide his association with Meuse,  that it          sheds  no light on  whether or not the  DiCarlo jewelry came from          Meuse's apartment.                    This  argument is  also without  merit.   The affidavit          showed that there  was a  fair probability that  evidence of  the          DiCarlo  burglary  could  be  found in  Meuse's  apartment.    In          addition  to the  reasons set forth  above, the  affidavit stated          that Meuse's  van had been tied to  an armed robbery committed in          the previous month.  The affidavit also described the activity at          Meuse's apartment on  the evening of  December 7th, during  which          this same van was parked outside.   The van was then seen at  the          parking  lot  with  Ferrara's   car  and  the  Stevens'  vehicle.          Considering the totality of the circumstances, the connection was                                         -10-          sufficiently close  to support  the magistrate's issuance  of the          search warrant.                    In any event, the denial of Meuse's motion  to suppress          is supported by  the "good faith"  exception to the  exclusionary          rule.   The Supreme Court has declared that even when information          contained in an affidavit makes only a marginal case for a search          warrant, the warrant should  nevertheless be upheld.   "[W]e have          expressed  a strong preference for warrants and declared that 'in          a doubtful  or a marginal  case a search  under a warrant  may be          sustainable  where without one it would fall.'"  United States v.                                                           ________________          Le n, 468 U.S. 897, 914 (1984).  "In the absence of an allegation          ____          that  the magistrate  abandoned  his detached  and neutral  role,          suppression is appropriate only if the officers were dishonest or          reckless in preparing their affidavit or could  not have harbored          an  objectively reasonable  belief in  the existence  of probable          cause."  Id. at 926.                   ___                    Here,  the  district  court  found  that  the  officers          proceeded in  good faith  reliance on  a facially  valid warrant,          issued by a judicial officer, and  supported by "much more than a          'bare-bones' affidavit."   Id.  Thus,  the "good-faith" exception                                     ___          applies in this case.                    Affirmed.                    ________                                         -11-
