
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                              _________________________          No. 95-2342                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                   HAROLD SCHAEFER,                                Defendant, Appellant.                              _________________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF NEW HAMPSHIRE                   [Hon. Steven J. McAuliffe, U.S. District Judge]                                              ___________________                              _________________________                                        Before                                Selya, Cyr and Boudin,                                   Circuit Judges.                                   ______________                              _________________________               David H. Bownes for appellant.               _______________               Jean B.  Weld, Assistant  United States Attorney,  with whom               _____________          Paul M.  Gagnon,  United  States  Attorney,  was  on  brief,  for          _______________          appellee.                              _________________________                                    June 25, 1996                              _________________________                    SELYA,   Circuit   Judge.  Defendant-appellant   Harold                    SELYA,   Circuit   Judge.                             _______________          Schaefer stands convicted  of growing marijuana, see  21 U.S.C.                                                             ___          841(a)(1); possessing marijuana  with intent  to distribute,  see                                                                        ___          id.; and conspiring  to achieve those  ends, see id.    846.   In          ___                                          ___ ___          this appeal, he argues that the  lower court erred in denying his          motion to suppress evidence  seized from (a) a barn  located near          his  house on Beech Hill  Road in Winona  Heights, New Hampshire,          and  (b) the separate  residence of his  estranged wife, Kathleen          Schaefer, located on Winona Road in Center Harbor, New Hampshire.          Discerning no error, we affirm.          I.  FACTUAL BACKGROUND          I.  FACTUAL BACKGROUND                    We recite  the facts pertinent  to this appeal  as they          were found by the district court, consistent with record support.          See United States v. Zapata, 18 F.3d 971, 973 (1st Cir. 1994).          ___ _____________    ______                    In  early  1994, Susan  Forey,  a  New Hampshire  state          trooper, initiated an investigation  of the appellant's suspected          marijuana-growing   activities.      After  gathering   evidence,          interviewing a confidential informant, and speaking  with several          colleagues  (one of  whom had  interviewed a  second confidential          informant),   Forey  concluded   that  the  appellant   had  been          cultivating cannabis in his barn.  She then prepared an affidavit          (which relied heavily, albeit not exclusively, on clues furnished          by  the  informants)  and  sought a  search  warrant  authorizing          inspection of the barn.                    A state magistrate issued the warrant on June 27, 1994.          That morning a coterie  of federal, state and local  officers set                                          2          out to  execute the warrant but temporarily  refrained from doing          so when they could  not locate the appellant.   While members  of          the  search party stood guard  at Beech Hill  Road, two troopers,          Forey  and Elizabeth D'Angelo,  proceeded to  Kathleen Schaefer's          residence in  the hope that they  would find her there.   Forey            without entering  the dwelling    noted the distinctive  aroma of          marijuana wafting from  within.  However,  when Ms. Schaefer  did          not  answer the door,  Forey departed (leaving  D'Angelo to await          Ms. Schaefer's appearance).                    Meanwhile,  back  at Beech  Hill  Road,  the Schaefers'          twelve-year-old   daughter,  Amber,  became   agitated  over  the          continued police presence and enlisted a neighbor to drive her to          her  mother's home in Center Harbor.   When she arrived she found          D'Angelo patrolling  the  premises.   Using  her own  key,  Amber          entered  the house.    D'Angelo accompanied  her and  immediately          noticed the smell of marijuana.   Once inside, the pair found Ms.          Schaefer,  who explained that  she had slept  through the earlier          commotion.  D'Angelo asked Ms. Schaefer to accompany her to Beech          Hill  Road.   Ms. Schaefer  assented, and  they repaired  to that          site.   By then, the search party  had made an initial inspection          of the barn and had found some incriminating evidence.                    Ms. Schaefer spoke freely  with the officers, and Forey          eventually asked  for  permission to  search her  dwelling.   Ms.          Schaefer hinted that she  might seek counsel, and Forey  told her          that  she could contact  an attorney  if she  so desired.   After          pondering her options, Ms. Schaefer decided not to call a lawyer,                                          3          but,  instead, gave  the authorities  access to  her abode.   She          asked only that  the officers conduct their  search discreetly so          as not to alarm her neighbors.  The police complied.  It is worth          noting that, before  the search began, Ms. Schaefer forecast that          the searchers would find approximately 100 cannabis plants on the          premises.  The forecast proved to be accurate.                    Early that afternoon the  appellant returned home  from          work.  The  authorities promptly  placed him under  arrest.   The          search  of  the  barn  thereafter  commenced  in  earnest.    The          searchers  discovered  1,126 cannabis  plants, plus  an elaborate          array of equipment associated  with the growing, preparation, and          distribution of marijuana.          II.  PROCEDURAL BACKGROUND          II.  PROCEDURAL BACKGROUND                    In  due  season  a   federal  grand  jury  charged  the          Schaefers  with  the   commission  of  various  marijuana-related          offenses.1     In  addition,   the  government   sought  criminal          forfeiture  of  the  appellant's   home  and  barn,  and  certain          machinery used in the marijuana-growing process.  See 21 U.S.C.                                                              ___          853.  The appellant moved to  suppress the evidence that had been          obtained during the searches.   Following a hearing, the district          court  denied the motion.   See United States  v. Schaefer, Crim.                                      ___ _____________     ________          No. 94-53-1-M (D.N.H. Dec. 30, 1994) (D. Ct. Op.).                    The case  proceeded  to trial  and  a jury  returned  a          guilty verdict.   Schaefer then  consented to the  forfeiture and                                        ____________________               1Kathleen Schaefer did not  contest the charges against her.          She is not a party to this appeal.                                          4          the  court imposed  a sixty-three  month incarcerative  sentence.          This appeal ensued.          III.  THE BEECH HILL ROAD SEARCH          III.  THE BEECH HILL ROAD SEARCH                    On  appeal  Schaefer  charges  that  the   trial  court          committed  several errors  in refusing  to suppress  the evidence          seized from his barn.   His primary asseveration is  that Forey's          affidavit  in  support  of   the  warrant  contained   inadequate          information to  justify  a  finding  of  probable  cause.    This          asseveration has two prongs.  First, the appellant maintains that          the  information  provided  by  the confidential  informants  was          unreliable  (and, therefore, unusable)  because the affidavit did          not  set  forth sufficient  bases  for  crediting those  sources.          Second,  the appellant  maintains  that much  of the  informants'          fingerpointing  was  predicated  on  outdated  information  (and,          therefore,  unusable).   The appellant  insists that, if  all the          untrustworthy information  is stripped from the  affidavit, there          is too little left to sustain a finding of probable cause.                               A.  Standard of Review.                               A.  Standard of Review.                                   __________________                    The Fourth  Amendment provides that  "no Warrants shall          issue, but upon probable cause, supported by Oath or affirmation,          and  particularly describing  the  place to  be searched."   U.S.          Const. amend. IV.  Probable cause exists when "the affidavit upon          which  a  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."  United States v. Aguirre, 839 F.2d                                         _____________    _______                                          5          854,  857-58 (1st Cir. 1988).  The magistrate issuing the warrant          must  look to  the  totality of  the  circumstances in  order  to          ascertain  the existence  of  probable cause.    See Illinois  v.                                                           ___ ________          Gates,  462 U.S.  213,  238 (1983);  see  also United  States  v.          _____                                ___  ____ ______________          Figueroa, 818 F.2d 1020, 1024 (1st Cir. 1987).          ________                    This holistic  approach also  applies  when a  district          court  is called  upon to  evaluate a  magistrate's determination          that, based on the  totality of the circumstances indicated  in a          supporting affidavit, probable cause  exists to search particular          premises.    See Aguirre,  839  F.2d  at 857-58.    And the  same                       ___ _______          approach holds when a reviewing tribunal is called upon to assess          the  district  court's  denial   of  a  suppression  motion  that          challenges such a  probable cause  determination.  See  id.   Yet                                                             ___  ___          such  review   cannot  start  from  scratch.     "A  magistrate's          determination of probable cause should be paid great deference by          reviewing courts."  Gates, 462 U.S. at 236 (citation and internal                              _____          quotation marks omitted).  Moreover, on an appeal from a district          court's ruling on a suppression motion, judicial scrutiny must be          filtered  through  a  second  layer of  deference;  although  the          appellate court  reviews  the  district  court's  ultimate  legal          conclusion   in this  context, the existence vel non  of probable                                                       ___ ___          cause   de novo,  it must accept the district  court's subsidiary          findings of  fact unless  those findings are  clearly erroneous.2                                        ____________________               2The Court's  recent decision  in Ornelas v.  United States,                                                 _______     _____________          116 S. Ct. 1657  (1996), reinforces this dichotomous  standard of          review.  In Ornelas the Court  held, in the case of a warrantless                      _______          search pursuant  to the  so-called "automobile exception"  to the          warrant requirement,  that "the ultimate questions  of reasonable                                          6          See Zapata, 18 F.3d at 975.          ___ ______                             B.  Reliance on Informants.                             B.  Reliance on Informants.                                 ______________________                    The  appellant  calumnizes  Forey's heavy  reliance  on          statements  of the two  confidential informants, complaining that          her affidavit  provides too  rickety a foundation  for evaluating          the informants' veracity or  bases of knowledge.  Relatedly,  the          appellant   suggests  that   the  trooper   did   not  adequately          corroborate the  informants' statements.  Though  forcefully made          by able counsel, the appellant's arguments are unfounded.                    The   use  of   confidential  informants   in  criminal          investigations  is  commonplace.   See,  e.g.,  United States  v.                                             ___   ____   _____________          Manning,  79  F.3d 212,  220 (1st  Cir.  1996); United  States v.          _______                                         ______________          Vargas,  931 F.2d 112, 115-16 (1st Cir.  1991).  The practice has          ______          been  characterized  as a  necessary part  of  police work.   See                                                                        ___          Gates,  462 U.S. at 237-38.   What is  more, an informant's tales          _____          need not invariably  be buttressed  by extensive  encomia to  his          veracity  or detailed discussions of the source of his knowledge.          While  an informant's  truthfulness  and basis  of knowledge  are          "highly  relevant in  determining the value  of his  report," the          Court  has  cautioned  that   "these  elements  should  [not]  be          understood as entirely separate  and independent requirements  to          be rigidly exacted in every case."  Id. at 230.                                              ___                                        ____________________          suspicion and probable cause .  . . should be reviewed  de novo."          Id. at 1659.   By contrast, "a reviewing  court should take  care          ___          both to review findings  of historical fact only for  clear error          and  to give due  weight to inferences drawn  from those facts by          resident  judges and  local  law enforcement  officers."   Id. at                                                                     ___          1663.   The Ornelas Court's holding is fully consistent with this                      _______          circuit's precedent as expressed in cases like Zapata.                                                         ______                                          7                    Here,  Forey's  affidavit  contains  more  than  enough          substantiation to  lend credence to the  confidential informants'          reports.   First, Forey expressly  stated that CI-1  had a proven          track record, and  fortified this statement by attesting that, to          her personal  knowledge,  CI-1 had  assisted  the police  in  the          apprehension  of another drug felon.   We heretofore  have held            and today reaffirm    that  such an indicium  of reliability  may          itself  be sufficient  to bulwark  an  informant's report.3   See                                                                        ___          United States v. 5 Bell Rock  Rd., 896 F.2d 605, 608-09 (1st Cir.          _____________    ________________          1990).      Second,  Forey's   affidavit  explains   that  CI-2's          information  included declarations against  penal interest.   The          fact  that an informant's statements are against his or her penal          interest adds credibility  to the informant's report.  See United                                                                 ___ ______          States  v. Fields, 72 F.3d  1200, 1214 (5th  Cir. 1996), petition          ______     ______                                        ________          for  cert. filed, 64 U.S.L.W.  3709 (U.S. Apr.  8, 1996) (No. 95-          ___  _____ _____          1639); Turner v. Caspari, 38 F.3d 388, 393 (8th Cir. 1994).                 ______    _______                    In addition to these badges  of veracity, circumstances          external  to each informant's  statements lend additional weight.          For example,  CI-2 confirmed CI-1's statement  that the Schaefers          were engaged in growing cannabis plants indoors in a barn located          on  their property.    Courts often  have  held that  consistency                                        ____________________               3Here, moreover, Forey convincingly explained her failure to          elaborate  upon her comments.  She stated that "[t]his affiant is          personally  familiar  with  the   case  in  which  CI-1  provided          information and further  detail or description of  the case would          likely  disclose the  identity of  the CI."   The  district court          found  Forey to  be credible on  this and  other points,  and the          appellant  has  advanced  no   sound  basis  for  rejecting  this          credibility determination.                                          8          between  the  reports  of  two independent  informants  helps  to          validate both  accounts.  See, e.g., Fields, 72 F.3d at 1214.  In                                    ___  ____  ______          a related vein,  neighbors complained  to the police  in June  of          1992 regarding the appellant's marijuana cultivation.  The latter          complaints enjoy  special stature since  information provided  by          ordinary  citizens has  particular  value in  the probable  cause          equation.   See United States v.  Scalia, 993 F.2d  984, 987 (1st                      ___ _____________     ______          Cir. 1993); United States  v. Campbell, 732 F.2d 1017,  1019 (1st                      _____________     ________          Cir. 1984).                    There  is more.   Drawing  on several  sources, Forey's          affidavit depicts  the appellant  as a  member of  a loosely-knit          band  of marijuana  growers,  known colloquially  as the  "sea of          green" group.  In  an interview with CI-1, summarized  in Forey's          affidavit,  Special  Agent Gerald  Graffam  of  the federal  Drug          Enforcement  Administration  learned the  names  of  a number  of          individuals  whom  CI-1 claimed  were part  of  the sea  of green          operation.   The roster  included the Schaefers,  James Crawford,          and James Spellman, to name  a few.  The record  contains several          external data (i) confirming  the identities and predilections of          Crawford, Spellman, and other growers  in the group, (ii) pinning          down   Crawford's  and   Spellman's  involvement   with  cannabis          cultivation,  and  (iii)  demonstrating  the  group's  access  to          marijuana plants that were being grown indoors.4                                        ____________________               4Forey's affidavit  also contains an account  of an incident          that occurred in  June 1993  when a fellow  state trooper,  Scott          Champagne, discovered  marijuana plants under  cultivation in the          woods, in close proximity to the appellant's camper.                                          9                    This list  of sea  of green participants  featured Marc          Birmingham, an aide  to Crawford (who had  recently been arrested          for  growing  marijuana).5    Forey's  independent  investigation          revealed that,  before teaming  up with Crawford,  Birmingham had          worked  for a company owned  by the appellant.   CI-2 underscored          the Schaefer/Birmingham connection, explaining to Graffam in June          1994 that Birmingham told  him that his former employer  "had set          up  a   marijuana  growing  operation  under   his  horse  barn."          Moreover,  in April  1994, Birmingham  told CI-2  that Crawford's          group  had procured  "eight big  plants" from  his (Birmingham's)          "ex-boss."                    Birmingham also informed CI-2 that "his former employer          sold  his finished  product in  New York,  where he  was  able to          receive  a  higher price  for it."    CI-1 added  an interlocking          datum:   that the appellant "was the least `controlled' member of          the group  and had been  arrested in  New York for  possession of          marijuana and `patronizing a  prostitute.'"  Forey confirmed that          the  police had  arrested the  appellant in  Suffolk County,  New          York, on June 8,  1993, for criminal possession of  marijuana and          pandering.                    Forey  also  attempted  to  verify  her  suspicions  by          inspecting the appellant's electric bills.  The bills indicated a          suspicious pattern of electricity usage:   the appellant drew  an          abnormally  high amount of power in October  of 1993 and April of                                        ____________________               5CI-2's   statements   confirmed   CI-1's   assurance   that          Birmingham served as Crawford's lieutenant.                                          10          1994   two  months in which the New  England climate often allows          consumers a  brief respite  from copious  use of  electricity for          heating  or cooling.  Based on  Forey's substantial experience in          the  investigation  of  marijuana  farming  and  other  narcotics          operations, she concluded that  this pattern indicated periods of          intensive cultivation.                    The appellant strives to undercut this latter detail by          pointing out  CI-1's observation  that the appellant  "powers the          grow operation in the barn with propane rather than electricity."          The  appellant   argues  that,  if  CI-1's   statement  is  true,          fluctuations   in  the  electric   bills  necessarily   would  be          meaningless.  Forey herself dispelled this seeming paradox at the          suppression  hearing, stating that "[t]o  say that you're using a          secondary  source of power  and to say  that you know  how to use          that are two different  things," and the district court  accepted          her explanation.  We need not pursue the point.  Even  were we to          find a discrepancy here, our result would remain unchanged.  When          an informant's statements and the  events he attempts to describe          diverge in minor  ways, the magistrate  may reasonably choose  to          credit the statements and  disregard petty inconsistencies.  See,                                                                       ___          e.g., United States v. Diallo, 29 F.3d 23, 26 (1st Cir. 1994).          ____  _____________    ______                    To  sum up,  the informants'  credibility and  bases of          knowledge  are  sufficiently  illuminated.     More  importantly,          Forey's affidavit is not  entirely dependent upon the informants'          assertions, but  includes  many external  data  fortifying  those          assertions.   Indeed, the wealth  of incriminating  circumstances                                          11          marshalled  by Forey  in her  affidavit defenestrates  Schaefer's          allegation that  the trooper  did not adequately  corroborate the          details  of  the  confidential  informants' statements.    Having          carefully examined the totality of the circumstances described in          the  affidavit,  we  agree  with  the  state magistrate  and  the          district court  that probable cause to issue the warrant existed.          See  Gates, 462 U.S. at  244-45 (explaining that  the police need          ___  _____          only independently corroborate some of the details supplied by an          informant).                                    C.  Staleness.                                    C.  Staleness.                                        _________                    We  turn now  to  the appellant's  insistence that  the          magistrate  should  have  disregarded  much  of  the  information          disclosed in the affidavit because it was out of date.   We agree          with the appellant's premise    an affidavit supporting a  search          warrant  must contain timely information  or else it  will fail            but  we  disagree  with  his conclusion  that  Forey's  affidavit          suffers from this vice.                    In trying to make the case for staleness, the appellant          points  to Forey's statement that, "[i]n 1991 and 1992, CI-1 knew          Harold  Schaefer and his wife, Kathleen, to be involved in indoor          cannabis cultivation in a  barn on their property."   Building on          this  introduction,  he  posits  that  CI-1's  knowledge  of  his          activities  went back two to three years, and, therefore, was old          hat.  But courts  confronting suppression motions do not  measure          the timeliness of  collected information mechanistically,  merely          counting  the number  of  days elapsed.    See United  States  v.                                                     ___ ______________                                          12          Bucuvalas, 970 F.2d 937,  940 (1st Cir. 1992), cert.  denied, 507          _________                                      _____  ______          U.S.  959 (1993).  Rather, a number  of integers must be factored          into  the calculus    e.g.,  the nature  of the  information, the          nature and characteristics of the supposed criminal activity, the          nature and  characteristics  of the  place  to be  searched,  the          nature of  the items delineated  in the warrant    and the likely          endurance of the information must  be gauged on that basis.   See                                                                        ___          id.; see also  United States  v. Moscatiello, 771  F.2d 589,  597          ___  ___ ____  _____________     ___________          (1st  Cir. 1985), vacated on other grounds, 476 U.S. 1138 (1986).                            _______ __ _____ _______          The longer the expected duration of the criminal activity and the          longer the expected life  of the items attendant to it,  the more          likely  that  a datum  from the  seemingly  distant past  will be          relevant to a current investigation.                    In this case, all signs point to ongoing and entrenched          activity.  CI-1 told Forey that the appellant built his barn as a          haven  for  his  illicit   marijuana-growing  enterprise.    Both          informants  expressed their belief that the appellant was a major          player in  a long-term  cartel that involved  several independent          marijuana growers.  The warrant did not target items of transient          existence,  but,  rather, featured  chattels  of relatively  dear          value and solid construction (including hardware commonly used in          the  growing  and distribution  of  marijuana), likely  to  be in          service for several years.  Since these  items possessed enduring          worth and  utility, information that might  be considered ancient          history in considering the probable whereabouts of more transient          goods would  be timely here.   See United  States v. McKeever,  5                                         ___ ______________    ________                                          13          F.3d  863, 866 (5th Cir. 1993) (holding that information need not          be  as current  when the  items to  be seized  include hydroponic          marijuana-growing apparatuses);  United States v.  Sturmoski, 971                                           _____________     _________          F.2d  452, 457 (10th Cir. 1992) (holding to like effect regarding          laboratory equipment for the production of methamphetamine).                    Then,  too,  the   troopers  proposed  to   search  the          appellant's own barn, not a rented  or appropriated facility that          could  easily be used and then abandoned.  The target's ownership          of  the  real estate  to  be  searched influences  the  staleness          calculus.   See  Bucuvalas,  970  F.2d  at 941  (explaining  that                      ___  _________          information  is more likely to  be timely when  it concerns items          stored at a permanent locus).  Finally, it is common ground  that          drug conspiracies tend to be ongoing operations, rendering timely          information that might, in other contexts, be  regarded as stale.          See  United States v. Nocella,  849 F.2d 33,  40 (1st Cir. 1988).          ___  _____________    _______          In cumulation, these factors make us hesitant to characterize the          challenged information, even if it is not of very recent vintage,          as stale.                    We need  not dwell on this subject,  however, since the          appellant's argument  fails for an even  more abecedarian reason.          When an  affidavit tendered in  support of a  warrant application          contains information  that is  remote in  time, a magistrate  may          still  hold  it to  be adequate  if  it also  contains sufficient          recent facts corroborating the  older data and linking that  data          to the present.  See id. at 39-40.  Here, the affidavit cited the                           ___ ___          appellant's transfer of marijuana plants to Crawford's  entourage                                          14          in  April of  1994 (approximately two  months before  the warrant          issued), and, moreover, Forey's  probe of utility company records          indicated  the appellant's  excessive use  of electricity  in the          spring  of 1994.  These  recent details bear  out the appellant's          earlier connections  with marijuana growing,  thus rendering  the          affidavit temporally adequate.          IV.  THE WINONA ROAD SEARCH          IV.  THE WINONA ROAD SEARCH                    The appellant also challenges the warrantless search of          his wife's residence.  It is settled that an individual may waive          the warrant requirement of the Fourth Amendment by consenting  to          a search of  her person,  property, or  effects, as  long as  the          individual's  consent  is  freely  and voluntarily  given.    See                                                                        ___          Schneckloth  v. Bustamonte, 412 U.S.  218, 219 (1973); Zapata, 18          ___________     __________                             ______          F.3d  at 977.  Citing  this caselaw, the  government asserts that          Kathleen Schaefer consented to the search of her home.                    The chronology of events  is important.  After Schaefer          lodged  his suppression  motion, the  government filed  a written          opposition.   Attached  to  the opposition  (and incorporated  by          reference therein) were two key documents:  (1) a copy of Forey's          report of her investigation concerning, inter alia, the events of                                                  _____ ____          June  27,  1994, and  (2)  a  copy of  the  affidavit that  Forey          submitted to the magistrate in conjunction with her request for a          search warrant.   Judge  McAuliffe heard arguments  regarding the          suppression motion on two separate dates in December of 1994, and          conducted a proceeding (partially in camera)  in which both Forey          and CI-1  were questioned.  At  the close of the  second day, the                                          15          judge  denied the  appellant's motion for  a Franks  hearing, see                                                       ______           ___          Franks v. Delaware, 438  U.S. 154, 171 (1978), and added from the          ______    ________          bench that "to  the extent we've had a de  facto Franks hearing I                                                           ______          find  Trooper Forey to be  entirely credible and  I find that she          did  not include any false statement or omission in her affidavit          with regard  to the statements made by confidential informant No.          1."6  Shortly thereafter,  the court handed down a  written order          in which  it denied the appellant's  motion to suppress.   See D.                                                                     ___          Ct. Op. at 12.                     The  government  bears  the  burden of  proving  by  a          preponderance of the  evidence that an individual  consented to a          search of her person, property, or effects.  See United States v.                                                       ___ _____________          Matlock,  415 U.S.  164, 177  (1974).   Before us,  the appellant          _______          challenges  the  Winona  Road  search  on  the  ground  that  the          government  adduced  no  evidence   of  consent.    The  relevant          particulars follow.  The suppression motion  cited the absence of          a  warrant as a ground  for invalidating the  Winona Road search,          and the government's opposition  parried this thrust by asserting          that Ms. Schaefer had consented to the search.  Withal, the issue          was  not the  subject of  any testimony  or argumentation  at the          suppression hearing itself.  The only record evidence  of consent          is Forey's account of her conversation with Ms. Schaefer (set out          in the  police  report).   Judge McAuliffe  addressed the  matter          briefly  in his  written order.   He  found, consistent  with the                                        ____________________               6Though one  thrust of Schaefer's argument  below focused on          what  he   termed   "material  misrepresentations"   in   Forey's          affidavit, he does not renew that claim on appeal.                                          16          police report,7  that "Ms. Schaefer agreed to  allow the troopers          to  return to  her home  and search  it,"  D. Ct.  Op. at  3, and          concluded  that "[t]he  search  of the  Winona Road  property was          conducted only  after Kathleen  Schaefer gave express  consent to                          _____          the search," id. at 9.                       ___                      The appellant argues that the report was not properly          before the district court  at the suppression hearing,  and that,          in  the absence  of  any other  proof  of consent,  the  district          court's finding  is plucked out of thin  air.  Hence, the pivotal          question is whether  the district court appropriately  considered          the police report.8  We believe that it did.                    We begin with bedrock.   Although a suppression hearing          may be of decretory significance in a given case, it is generally          true that "the interests at stake in a suppression hearing are of          a lesser  magnitude than  those in  the  criminal trial  itself."          United States v. Raddatz, 447 U.S.  667, 679 (1980).  Thus, apart          _____________    _______          from questions of privilege, the Federal Rules of Evidence do not          apply  at suppression hearings.  See Matlock, 415 U.S. at 172-74;                                           ___ _______          see also Fed. R. Evid. 104(a)  (explaining that the court is "not          ___ ____                                        ____________________               7The  police   report  comprised   Forey's  report  on   the          investigation into the appellant's marijuana  growing activities.          The  report recounted  extended  negotiations  with Ms.  Schaefer          anent the proposed search, culminating in Ms. Schaefer's informed          consent to it.               8Because the appellant does  not argue that Forey's account,          if properly considered by the district court, was insufficient to          show the requisite consent,  he has for all intents  and purposes          conceded that  point.  See United States  v. Zannino, 895 F.2d 1,                                 ___ _____________     _______          17  (1st  Cir.) (admonishing  that  matters  neither briefed  nor          argued are waived), cert. denied, 494 U.S. 1082 (1990).                              _____ ______                                          17          bound  by  the rules  of evidence  except  those with  respect to          privileges," in deciding "[p]reliminary  questions concerning . .          .  the admissibility  of evidence")  & 1101(d)(1)  (declaring the          Evidence Rules inapplicable to "[t]he determination  of questions          of fact preliminary to admissibility  of evidence when the  issue          is to be determined by the court").                    Consequently,   a  judge  presiding  at  a  suppression          hearing may receive and consider any relevant evidence, including          affidavits   and  unsworn   documents   that   bear  indicia   of          reliability.  See  United States v. Lee, 541 F.2d 1145, 1146 (5th                        ___  _____________    ___          Cir. 1976).   Consistent with  this praxis, a  judge may  receive          hearsay  evidence at a suppression hearing.   See, e.g., Raddatz,                                                        ___  ____  _______          474 U.S. at 679;  United States v. Merritt,  695 F.2d 1263,  1269                            _____________    _______          (10th Cir. 1982); United States v. Ocampo, 650  F.2d 421, 427 (2d                            _____________    ______          Cir. 1981); United States  v. Bolin, 514 F.2d 554,  557 (7th Cir.                      _____________     _____          1975).                    Here,  the suppression  hearing itself  concentrated on          only a few of the  many issues raised by the  appellant's motion.          It did  not focus at  all on  the Winona Road  search, and  it is          apparent to even a casual observer that the district court   with          the parties' tacit acquiescence   intended to decide  that aspect          of the motion on the papers.  In implementing this intention, the          court obviously accepted and relied upon the government's proffer          of the police report.  In the absence of a motion to strike   and          the appellant made none   the court  was entitled to do so.   Put          another way,  the government  effected a prima  facie showing  of                                          18          consent by placing a copy of the police report before the  court,          see  United States  v. Barnes,  443 F.  Supp. 137,  139 (S.D.N.Y.          ___  _____________     ______          1977);  and since  the  appellant (who  cross-examined Forey  but          shied away  from questioning  her about  the Winona Road  search)          adduced no evidence that  impeached or contradicted the trooper's          account  of  the  manner in  which  she  obtained  Ms. Schaefer's          consent,  the  court  could  properly  base  a  finding  on  that          account.9    See, e.g.,  Zapata, 18  F.3d  at 977  (affirming the                       ___  ____   ______          trial court's  inference of  consent in  the absence  of contrary          factual evidence); cf.  United States v.  McKneely, 6 F.3d  1447,                             ___  _____________     ________          1453 (10th Cir.  1993) (rejecting as clearly  erroneous a finding          of coerced consent under  circumstances in which the government's          evidence of the defendant's voluntary consent was "uncontroverted          by  facts   because  defendants  offered  no   testimony  to  the          contrary").            V.  CONCLUSION          V.  CONCLUSION                    We need  go  no further.10    Because the  lower  court                                        ____________________               9The appellant claims unfair surprise, saying in effect that          he was unaware that  the court would consider the  police report.          But if  the appellant labored  under that mistaken  assumption at          all,  his reverie  surely  did not  survive  his receipt  of  the          district  court's rescript.  That  was the time  for appellant to          claim  surprise and, concomitantly, to move  either to reopen the          proceedings or for reconsideration.  The failure to file any such          motion  below undercuts the claim  of surprise that  he mounts in          this  venue.  Cf.  United  States v. Diaz-Villafane, 874 F.2d 43,                        ___  ______________    ______________          47 (1st  Cir.)  (finding the  defendant's  claim of  surprise  at          sentencing "severely  undermined, if not entirely  undone, by his          neglect  [to  take appropriate  corrective  action  in the  trial          court]"), cert. denied, 493 U.S. 862 (1989).                    _____ ______               10Inasmuch as  we uphold  the district court's  finding that          Ms. Schaefer consented to  the Winona Road search, we  express no          opinion  on  the  government's   alternative  argument  that  the                                          19          appropriately refused  to suppress the inculpatory  evidence that          the government's lawful searches  had amassed, the judgment below          must be          Affirmed.          Affirmed.          ________                                        ____________________          appellant  lacked  an expectation  of  privacy  in his  estranged          wife's  residence and  therefore lacked  standing to  contest the          search of those premises.                                          20
