
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                                                                      ____________________        No. 95-1910                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                   JUAN ZAYAS-DIAZ,                                Defendant, Appellant.                                                                                      ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF NEW HAMPSHIRE                     [Hon. Paul J. Barbadoro, U.S. District Judge]                                             ___________________                                                                                      ____________________                                        Before                                Selya, Cyr and Boudin,                                   Circuit Judges.                                   ______________                                                                                      ____________________             Paul J. Garrity for appellant.             _______________             Terry L. Ollila, Assistant United States Attorney, with whom Paul             _______________                                              ____        M. Gagnon, United States Attorney, was on brief for appellee.        _________                                                                                      ____________________                                  September 9, 1996                                                                                      ____________________                    CYR, Circuit  Judge.   Juan Zayas-Diaz  ("Zayas") chal-                    CYR, Circuit  Judge.                         ______________          lenges  two  pivotal  rulings  underlying  the  district  court's          refusal to suppress evidence seized pursuant to a  warrant alleg-          edly based on  information that  failed to connect  Zayas to  the          search premises within a reasonably recent time frame.  The court          first determined,  on the  merits, that the  affidavit supporting          the warrant application  contained adequate reliable  information          to connect Zayas to the  search premises in the past.   Next, the          court bypassed the  merits of  the staleness claim  and held  the          exclusionary rule inapplicable on the ground that the search  had          been  conducted  in  "objectively  reasonable"  reliance  on  the          warrant.    See  United States  v.  Leon,  468  U.S. 897  (1984).                      ___  _____________      ____          Finding no error, we now affirm the district court judgment.                                           I                                          I                                      BACKGROUND                                      BACKGROUND                                      __________          A.   The Graffam Affidavit          A.   The Graffam Affidavit               _____________________                    On  March 8, 1994, a  warrant was obtained  to search a          single-family  residence in  Bedford, New  Hampshire, based  on a          nineteen-page affidavit  by Special  Agent Gerald Graffam  of the          United States Drug Enforcement Administration ("DEA"), purporting          to establish probable cause to believe that Zayas then or recent-          ly resided at 16 Holbrook Road and used it as an operational base          for cocaine trafficking.1   The warrant application sought autho-          rization to search for various drug-related documents and curren-                                        ____________________               1The criminal investigation was conducted by federal, state,          and local law  enforcement authorities, to whom we  refer collec-          tively as "the authorities."                                           2          cy evidencing the suspected cocaine trafficking activity.                  1.   The Cocaine Trafficking                1.   The Cocaine Trafficking                    _______________________                    The Graffam affidavit  included information  purporting          to establish that Zayas was supplying cocaine for distribution at          various  establishments  in  nearby  Manchester,  New  Hampshire,          including the Oasis Social  Club.  Based on information  provided          by a "reliable" confidential  informant ("first CI"), the affida-          vit related that Marcello  Sosa had been arrested on  January 26,          1994, for selling cocaine at the Oasis Social Club.2   An arrest-          ing officer advised that  he had noticed an individual,  known to          him as "Juan Rosario" alias "Nelson Martell," at the Oasis Social          Club during Sosa's arrest.   The first  CI confirmed that he  too          had seen  Sosa and a  person known to him  as "Juan" meet  at the          club, not  only at the time  of Sosa's arrest but  on prior occa-          sions.   Sosa himself admitted  that a man  named "Juan," who was          present  when Sosa was arrested,  had supplied the  six ounces of          cocaine seized from Sosa's residence shortly after the arrest.                      A subsequent documentation and record check disclosed a          series of  roughly compatible descriptions  for "Nelson  Martell"          (height 5'6-9"; weight 130-160 pounds;  hair black or brown; eyes          brown; glasses;  left-arm tatoo;  social security number  001-64-          1999; birth date  either May 4,  1961 or  August 16, 1954);  home          address 275 Lake Avenue, Manchester; license suspension for drunk          driving in 1991; New  Hampshire conviction and suspended sentence                                        ____________________               2For ease  in reference,  we assume all  confidential infor-          mants were male.                                           3          for  heroin trafficking in 1992;  and a December  1992 arrest and          pending  prosecution  for  cocaine  trafficking  in  Connecticut,          during which  arrest Zayas attempted  to discard  cocaine over  a          highway embankment; and other aliases, including "Juan Gonzalez."                    On February  24, 1994,  twelve days before  the search,          the   Manchester  police  interviewed  a  confidential  informant          ("second  CI").  The second CI, who had "provided reliable infor-          mation to law  enforcement in the  past," advised that he  knew a          person  named  "Juan," surname  believed  to  be "Esquevar,"  who          "currently  controls" cocaine distribution  at various Manchester          business establishments, including the Oasis Social Club, and who          delivered cocaine daily  to his "workers,"  including Sosa.   The          second CI  described "Juan"  (Cuban, dark-skinned, height  5'10",          weight 160 pounds, black hair, brown eyes, glasses), and told the          authorities  that he was "aware" that "Juan" had been arrested in          Connecticut  on a cocaine trafficking charge, and that "Juan" had          attempted to  discard two  kilos of  cocaine at the  time of  the          arrest by throwing it over a highway embankment.                 2.   Zayas and 16 Holbrook Road               2.   Zayas and 16 Holbrook Road                    __________________________                    Although the documentation check revealed a listed home          address  for "Nelson Martell" (i.e., Zayas) at 275 Lake Avenue in          Manchester, the Graffam affidavit attested to facts purporting to          show that Zayas currently or recently resided at 16 Holbrook Road          in  Bedford,  New Hampshire.    Following his  arrest,  Sosa told          police that "Juan,"  his supplier, "lived" in Bedford,  New Hamp-                                          4          shire. Moreover, on  February 24,  1994, the second  CI also  had          advised the authorities that Juan  "lives" in Bedford and "deals"          large amounts of cocaine.  The  second CI added that he had "been          to  Juan's Bedford residence on  several occasions and seen large          quantities  of cocaine  and  cash present,"  and that  "[S]panish          males,"  in two  or  more automobiles  bearing  New York  license          plates, arrived "every Tuesday" at the Bedford residence.                      On February  24, 1994, after his  interview, the second          CI led the  authorities to the  Bedford premises at which  he had          visited "Juan."   Presumably to avoid  detection, the authorities          did not enter  upon the  premises.   Instead, the  second CI  de-          scribed specific  features of the  residential grounds, including          (1)  a  long  driveway  lined with  three  birdhouses  containing          concealed video cameras; (2)  a shack-like residence with peeling          brown  paint; (3) five dogs outside the house, and an unspecified          number of dog houses;  and (4) four or five  abandoned/junk vehi-          cles, including a  motorcycle.  The second CI  described interior          features of the  residence itself, including (1)  a video monitor          connected to  the "birdhouse" cameras; (2)  furnishings, "in good          condition" compared  with the  shabby exterior of  the residence;          and  (3) in  the  basement, a  restaurant-style refrigerator  for          storing cocaine.   Subsequent aerial surveillance  at 16 Holbrook          Road  revealed a  long driveway,  a brown  single-family dwelling          with  detached garage and shed, and "at least three (3) doghouses          and two (2) abandoned vehicles."                    3.   The "Residence" at 16 Holbrook Road                    3.   The "Residence" at 16 Holbrook Road                         ___________________________________                         and the Zayas-Koehler "Relationship"                         and the Zayas-Koehler "Relationship"                         ___________________________________                                          5                    The  Graffam  affidavit   purported  to  establish   16                              Holbrook  Road as  Zayas'  current or  recent  residence or  drug          operation base, by demonstrating that  codefendant Brenda Koehler          currently  or recently lived there,  and that she  and Zayas were          currently  involved  in  a  close relationship.    The  second CI          advised  the authorities  that "Juan"  lived at 16  Holbrook Road          "with a girlfriend," described as a  "white female," about thirty          years old, with brown hair, whose son also resided at 16 Holbrook          Road and  "attends" Trinity  High School,  where he  "plays foot-          ball."  An October  1992 police incident report confirmed  that a          "Kevin Koehler" had sustained an injury while playing football at          Trinity High School, identified his mother as Brenda Koehler, "16          Holbrook  Road," telephone  number 624-8730.   A  postal delivery          check  indicated  that  Kevin  Koehler had  received  mail  at 16          Holbrook  Road  in 1992.   A  June  1993 traffic  accident report          reflected 16 Holbrook Road  as Brenda Koehler's home address.   A          third confidential informant ("third CI")  confirmed that "Juan,"          who supplied  cocaine to workers at the Oasis Social Club, "had a          white wife . . . in her thirties."                      On  February  10,  1994,  James  McDowell  advised  the          authorities that he  had leased  a garage at  425 Second  Street,          Manchester,  to Brenda Koehler, who  was accompanied by a "Nelson          Martell" at the time she signed the lease.  The Graffam affidavit          failed to disclose the  date the lease was signed.  McDowell told          the authorities  that he  "believed Brenda Koehler  was Martell's          wife,"  and advised that Koehler  gave "16 Holbrook  Road" as her                                          6          home address, and 624-8730 as her telephone number.   Thereafter,          in late  February 1994, a  motor vehicle registration  check dis-          closed  a  roughly  compatible  physical description  for  Brenda          Koehler  ("white female,"  thirty-four years  old, height  5' 2",          brown hair, brown  eyes), and  listed her address  as 481  Beacon          Street, Manchester.                4.   Activity at 16 Holbrook Road               4.   Activity at 16 Holbrook Road                    ____________________________                    In  late February  1994, the  authorities learned  that          mail  was not  "presently" being  received at  16 Holbrook  Road.          Moreover,  by this time there  was no longer  a telephone listing          for 16 Holbrook Road.  The electrical utility listing nonetheless          continued to reflect that Brenda Koehler was the person responsi-          ble  for payment.  Moreover,  though the premises  were heated by          oil,  the  electrical  utility reported  the  following billings:          October-November 1993 ($565 for 4595 kw hours), November-December          1993 ($462 for  3679 kw  hours), and  December 1993-January  1994          ($600.00 for 5024 kw hours).                 5.   Graffam's Law Enforcement Experience               5.   Graffam's Law Enforcement Experience                    ____________________________________                    Finally, based  on Graffam's twenty-two years  as a DEA          agent, the supporting affidavit stated that active drug traffick-          ers commonly:  (1) retain for ready reference, in their residenc-          es  for  extended  periods,  records relating  to  their  ongoing          trafficking  activities;  (2)  assume  fictitious  names  or  use          nominees to avoid detection;  (3) establish surveillance at their          operational  bases to  detect law  enforcement activity;  and (4)          attempt  to avoid disclosure  or discovery of  their actual resi-                                          7          dences  and operational  bases by  suspending mail  and telephone          service.          B.   The District Court Proceedings          B.   The District Court Proceedings               ______________________________                    The search conducted pursuant to the challenged warrant          disclosed  ammunition,  cocaine  residue,   cocaine  distributing          paraphernalia, substantial cash, and numerous documents detailing          Zayas' ongoing  cocaine trafficking  activities.  In  due course,          Zayas and ten associates,  including Brenda Koehler, were charged          with conspiracy  to possess  cocaine with intent  to distribute.3          See  21  U.S.C.     841(a)(1), 846.    Zayas and  Koehler jointly          ___          sought  to suppress  the  evidence seized  at  16 Holbrook  Road,          claiming among  other things that  the Graffam affidavit  did not          reflect "16 Holbrook Road" as the address at which "Juan" resided          or conducted drug operations and that much crucial information in          the  affidavit  was  irredeemably  "stale."   Zayas  stressed  in          particular that the Graffam  affidavit, which identified February          24,  1994, as the date upon which the authorities interviewed the          second  CI, nonetheless failed to  state when the  second CI last          visited with "Juan" at 16 Holbrook Road.                    The district court denied  the motion to suppress after          an evidentiary hearing.  United States v. Zayas-Diaz,  No. 94-30-                                   _____________    __________                                        ____________________               3The  nine  other  defendants  entered guilty  pleas.    The          government does not now contend  that Zayas lacked an objectively          reasonable expectation of privacy in the 16 Holbrook Road premis-          es at  the time  the  search was  conducted.   See, e.g.,  United                                                         ___  ____   ______          States  v. Bouffard, 917 F.2d 673, 675-76 (1st Cir. 1990); United          ______     ________                                        ______          States v. Soule, 908 F.2d 1032, 1034 (1st Cir. 1990).           ______    _____                                          8          01-B (D.N.H. Dec.  22, 1994).4  First, it  ruled that the Graffam          affidavit  contained sufficient  information to  provide probable          cause  to believe  that  Zayas either  resided or  conducted drug          operations at 16 Holbrook Road.  Second, without deciding whether          the matters  affirmed in the Graffam  affidavit were sufficiently          contemporaneous to  afford a  substantial basis for  the probable          cause  determination, the  district court  held  the exclusionary          rule inapplicable based on  the so-called "good faith" exception.          See Leon, 468 U.S. at 923 (holding that the exclusionary  rule is          ___ ____          not implicated  unless, inter alia, the  supporting affidavit was                                  _____ ____          "so  lacking in indicia of  probable cause as  to render official          belief in its existence entirely unreasonable").                                          II                                          II                                      DISCUSSION                                      DISCUSSION                                      __________                    On  appeal,  Zayas  resurfaces  two  claims  previously          presented  to  the district  court:   (1)  the  Graffam affidavit          contained insufficient information to provide a substantial basis          for finding  it probable  that evidence  relating to  Zayas' drug          trafficking activities would  be found at  16 Holbrook Road;  and          (2) the Leon "good  faith" exception to the exclusionary  rule is                  ____          unavailing  because any  reasonably well-trained  law enforcement          officer would know  that the "stale"  information in the  Graffam          affidavit was not adequate to establish probable cause to believe          that 16 Holbrook Road  was either Zayas' recent or  current resi-                                        ____________________               4Following a five-day jury trial, Zayas was found  guilty on          the conspiracy charge.  The district court later sentenced him to          360 months.                                          9          dence or drug  operation site; and  the more current  information          neither cured the staleness nor provided an independent basis for          a "probable cause" determination.            A.   The "Probable Cause" Connection          A.   The "Probable Cause" Connection               _______________________________               Between Zayas and 16 Holbrook Road                Between Zayas and 16 Holbrook Road                __________________________________                    The  district court  held  that  the Graffam  affidavit          afforded probable cause to believe that Zayas resided or conduct-          ed drug operations at 16 Holbrook Road in the past.  It found the          second CI's  identification of  16 Holbrook  Road to be  reliable          because the  authorities  were "able  to corroborate  so much  of          [his]  statement both as to  innocent details and  as to incrimi-          nating matters,  such as Zayas-Diaz's involvement  in the cocaine          transaction."  See  Tr. of Suppression Hearing at  107-08 (citing                         ___          United States v. Taylor, 985 F.2d  3, 6 (1st Cir.), cert. denied,          _____________    ______                             _____ ______          508 U.S. 944 (1993)).                 1.   The "Probable Cause" Standard               1.   The "Probable Cause" Standard                    _____________________________                    For evidence to  avert suppression, see  generally Mapp                                                        ___  _________ ____          v. Ohio, 367  U.S. 643 (1961),  normally the warrant  application             ____          must  demonstrate probable  cause  to believe  that a  particular          person has committed a  crime    "the commission element"     and                                                                        ___          that  enumerated  evidence relevant  to the  probable criminality          likely is  located at the  place to  be searched     "the `nexus'          element".   United  States v.  Fuccillo, 808  F.2d 173,  175 (1st                      ______________     ________          Cir.), cert. denied, 482 U.S. 905 (1987).  The issuing magistrate                 _____ ______          ordinarily  considers  only the  facts  set  forth in  supporting          affidavits  accompanying the  warrant  application.   See,  e.g.,                                                                ___   ____          Whiteley v. Warden,  Wyo. State Penitentiary,  401 U.S. 560,  565          ________    ________________________________                                          10          (1971); Aguilar v. Texas, 378 U.S. 108, 109 (1964); United States                  _______    _____                            _____________          v.  Klein, 565  F.2d 183,  186 n.4  (1st Cir.  1977).   Under the              _____          "probable cause" standard,  the "totality  of the  circumstances"          disclosed in  the supporting affidavits must  demonstrate "a fair                                                                       ____          probability  that contraband or evidence of a crime will be found          ___________          in a  particular place."   Illinois v. Gates,  462 U.S.  213, 238                                     ________    _____          (1983)  (emphasis added);  United States  v. Bucuvalas,  970 F.2d                                     _____________     _________          937, 940 (1st Cir. 1992), cert. denied, 507 U.S. 959 (1993).                                        _____ ______                    Among  others, the  factors  that may  contribute to  a          "probable  cause"  determination  include  whether  an  affidavit          supports  the probable  "`veracity'  or `basis  of knowledge'  of          persons  supplying hearsay  information," id.;  whether informant                                                    ___          statements are self-authenticating,  see, e.g., Taylor,  985 F.2d                                               ___  ____  ______          at  5 (noting  that  affidavit may  support informant's  veracity          "through the  very specificity and  detail with which  it relates          the  informant's  first-hand  description  of  the  place  to  be          searched"); whether  some or  all the informant's  factual state-          ments  were  corroborated  wherever  reasonable  and  practicable          (e.g., through police surveillance);5 and whether a  law-enforce-          ment affiant  included a professional assessment  of the probable          significance  of the  facts  related by  the informant,  based on                                        ____________________               5See Gates, 462 U.S. at 244; Soule, 908 F.2d at 1039 (noting                ___ _____                   _____          that police contemporaneously corroborated "the material elements          of the [informant's] tip");  see also Alabama v. White,  496 U.S.                                       ___ ____ _______    _____          325,  331 (1990)  ("[Because  an informant  is  right about  some          things,  he  is more  probably right  about others.");  Draper v.                                                                  ______          United States, 358 U.S. 307, 313 (1959);  United States v. Lalor,          _____________                             _____________    _____          996  F.2d 1578,  1581  (4th Cir.),  cert.  denied, 510  U.S.  983                                              _____  ______          (1993).                                          11          experience or expertise, see United States v. Hoffman, 832  F.2d,                                   ___ _____________    _______          1299, 1306 (1st Cir.  1987) (noting that law-enforcement affiants          were  "specially trained in the ways of drug trafficking").  None          of these factors is indispensable; thus, stronger evidence on one          or  more factors may compensate for a weaker or deficient showing          on another.  See Taylor, 985 F.2d at 5; United States v. Nocella,                       ___ ______                 _____________    _______          849  F.2d 33,  37 (1st Cir.  1988); United States  v. Ciampa, 793                                              _____________     ______          F.2d 19, 22 (1986).           Reviewing  courts,  including  both          the district court and the court of appeals, must accord "consid-          erable deference"  to the "probable cause"  determination made by          the issuing magistrate.   See Taylor, 985 F.2d at 5  ("[T]he duty                                    ___ ______          of  the reviewing court is  simply to ensure  that the magistrate          had  a `substantial basis for  . . .  conclud[ing]' that probable          cause existed.").  The reviewing court must  examine "the affida-          vit  in  `a practical,  "common sense"  fashion,  and [  ] accord          considerable  deference to  reasonable  inferences  the  [issuing          magistrate] may have drawn  from the attested facts.'" Bucuvalas,                                                                 _________          970  F.2d at 940 (citations omitted).  Moreover, given the strong          preference for warrants under our Fourth Amendment jurisprudence,          normally a reviewing court will  defer to an issuing magistrate's          "probable cause"  determination in  a doubtful or  marginal case.          See  United States v. Ventresca, 380 U.S. 102, 109 (1965); United          ___  _____________    _________                            ______          States v. Craig, 861 F.2d 818, 823 (5th Cir. 1988).           ______    _____               2.   The Connection Between Zayas and 16 Holbrook Road6               2.   The Connection Between Zayas and 16 Holbrook Road                    _________________________________________________                                        ____________________               6We review  the district  court's factual findings  (if any)          only for clear error, but we review de novo its ultimate determi-                                              __ ____          nation that a  given set of  facts constituted "probable  cause."                                          12                    Zayas argues that the Graffam affidavit is insufficient          because  (i) it did not  explicitly identify 16  Holbrook Road as                                   __________          the address at which the second CI visited Zayas on several prior          occasions and saw large amounts of cocaine and cash, and (ii) the          description  of the premises given  by the second  CI differed in          some respects  from the  information disclosed in  the subsequent          aerial surveillance.   See supra Section  I.A.2.  We  note at the                                 ___ _____          outset that  this argument  ignores the incriminating  network of                                                  _____________  _______ __          circumstantial evidence pointing unmistakably to 16 Holbrook Road          ______________ ________          as the Bedford residence at which the second CI had visited Zayas          in  the  past, see  supra Section  I.A.   Moreover,  its implicit                         ___  _____          presumption that  the second CI  probably led the  authorities to          premises  other than  those  at which  he  had visited  Zayas  is          untenable  given Graffam's  attestation  that the  second CI  had          demonstrated his  reliability in the  past. See United  States v.                                                      ___ ______________          Schaefer, 87 F.3d  562, 566 1st Cir. 1996).7   Finally, the argu-          ________                                        ____________________          See  United States v.  Schaefer, 87 F.3d  562, 565 n.2  (1st Cir.          ___  _____________     ________          1996) (citing Ornelas v. United States, 116 S. Ct. 1657 (1996)).                        _______    _____________               7In addition, the second  CI related prior criminal activity          by Zayas (e.g., dumping cocaine over an embankment in 1992 at the          time he was arrested in Connecticut) and descriptions of exterior          and  interior features at 16 Holbrook Road.  See Taylor, 985 F.2d                                                       ___ ______          at  6 (noting that a CI's overall reliability may be demonstrated          by  the "very specificity  and detail" of  descriptions of search          premises, or  of defendant's prior criminal  activity or record).          Moreover, the authorities here independently corroborated many of          these details through a documentation and record check and aerial          surveillance.   See Soule, 908  F.2d at 1039  (noting that police                          ___ _____          contemporaneously  corroborated  "the  material elements  of  the          [informant's] tip").  Further, some of the second CI's statements          were confirmed by the  third CI (e.g., the description  of Zayas'          wife/girlfriend as a white,  thirty-year-old female    a descrip-          tion likewise corroborated by  a documentation check on Koehler).          See Schaefer, 87  F.3d at 566 (holding that consistencies between          ___ ________                                          13          ment aimed at undermining  the corroborative information gathered          through aerial  surveillance of 16 Holbrook  Road likewise fails,          since it too presumes that the  second CI either did not know the                                                                   ____          location of the premises at which he had visited Zayas on several          prior occasions  or that  he misrepresented its  physical charac-          teristics.  See id.  at 567 ("When an informant's  statements and                      ___ ___          the events he describes diverge in minor ways, the magistrate may          reasonably choose  to credit  the statements and  disregard petty          inconsistencies.").                      Our de  novo assessment of the totality  of the circum-                        __  ____          stances conveyed in  the Graffam affidavit persuades  us that the          issuing  magistrate had  a  substantial basis  for crediting  the          second CI's overall reliability, and by extension his identifica-          tion  of 16 Holbrook Road as the  locus of his prior visits.  The          demonstrated  reliability of  the  second CI,  together with  the          substantial  similarity in  the physical  characteristics of  the          premises, as described  by the  second CI and  buttressed by  the          aerial  surveillance  of  16  Holbrook  Road,  provided  adequate          support  for the  issuing  magistrate's  practical,  common-sense          "probable  cause"  determination  that  the  Zayas residence/drug          operation base previously visited by the second CI was located at          16 Holbrook Road in Bedford, New Hampshire.   See Gates, 462 U.S.                                                        ___ _____          at 238.          B.   The Staleness Claim           B.   The Staleness Claim                ___________________                                        ____________________          informants'  reports  may  serve   to  validate  both  accounts).                                                           ____          "[Because an informant  is right  about some things,  he is  more          probably right about others."  Alabama, 496 U.S. at 331.                                         _______                                          14               1.   Leon Bypass               1.   Leon Bypass                    ___________                    The district court elected to  bypass the merits of the          staleness claim  that the Graffam affidavit  afforded no substan-          tial  basis  for a  "probable  cause" finding  that  Zayas either          resided or  conducted drug operations within  a reasonably recent          time  frame at 16 Holbrook Road.  See Zayas-Diaz, No. 94-30-01-B,                                            ___ __________          slip op. at  7.  Leon  allows the trial  court, in its  "informed                           ____          discretion,"  to  bypass  the  customary  "merits"  inquiry  into          whether  there existed  a  "substantial basis"  for the  probable          cause determination  made by  the issuing magistrate,  and simply          decide instead whether  the challenged search in  all events came          within  the  "good faith"  exception  to  the exclusionary  rule.          Leon, 468 U.S. at 925; see Gates, 462 U.S. at  264-65 (White, J.,          ____                   ___ _____          concurring);  see, e.g., United  States v. Manning,  79 F.3d 212,                        ___  ____  ______________    _______          221 (1st Cir. 1996),  petition for cert. filed, ___  U.S.L.W. ___                                ________ ___ _____ _____          (U.S.  June 19,  1996)  (No. 95-9375);  Craig,  861 F.2d  at  820                                                  _____          (discussing  principles of  "judicial restraint"  and "precedent"          affecting Leon bypass determinations).8                      ____                                        ____________________               8Leon  identifies  important prudential  considerations that                ____          inform the  discretionary  bypass  decision  at  the  suppression          stage.                     If  the  resolution  of  a  particular Fourth                    Amendment  question  is  necessary  to  guide                    future action by law enforcement officers and                    magistrates,  nothing will  prevent reviewing                    courts  from  deciding  that question  before                    turning to the good-faith issue.   Indeed, it                    frequently  will  be  difficult to  determine                    whether the officers acted reasonably without                    resolving the  Fourth Amendment issue.   Even                    if the  Fourth Amendment question  is not one                    of broad import,  reviewing courts could  de-                                          15               2.   The Leon Exception               2.   The Leon Exception                    __________________                    The  instant Leon  "good faith"  analysis fundamentally                                 ____          depends  upon the  "probable  cause" concept  itself.   See supra                                                                  ___ _____          Section  II.A.1. The  "commission"  and "nexus"  elements in  the          "probable cause" analysis each  include a temporal component. The          issuing  magistrate  must  not  only consider  the  accuracy  and          reliability of  the historical  facts related in  the affidavits,          but must  determine,  inter alia,  whether  the totality  of  the                                _____ ____          circumstances  reasonably inferable  from  the affidavits  demon-          strates  a  "fair  probability"  that evidence  material  to  the          "commission"  of the  probable  crime will  be  disclosed at  the          search premises at about the time the search warrant would issue,          rather than at some remote time.  See Sgro v.  United States, 287                                            ___ ____     _____________          U.S. 206, 210 (1932); United States v. Wilkinson, 926 F.2d 22, 27                                _____________    _________          (1st Cir.), cert. denied, 501 U.S. 1211 (1991).                        _____ ______                    As the more serious  challenge to the Graffam affidavit          focuses  on  its  allegedly  "stale" information,  thus  arguably          describing events that occurred at  some remote earlier time, see                                                                        ___                                        ____________________                    cide  in  particular  cases that  magistrates                    under their supervision  need to be  informed                    of their errors and so evaluate the officers'                    good  faith only  after finding  a violation.                    In  other  circumstances, those  courts could                    reject suppression motions  posing no  impor-                    tant  Fourth  Amendment questions  by turning                    immediately   to   a  consideration   of  the                    officers' good  faith.  We have  no reason to                    believe that our  Fourth Amendment  jurispru-                    dence would suffer . . . .          Leon,  468 U.S. at 925.   As neither  party challenges the bypass          ____          decision itself, we turn directly to the Leon exception.                                                    ____                                          16          Bucuvalas, 970 F.2d at 940, we devote particular attention to the          _________          contemporaneity of the attested  facts relating to Zayas' connec-          tion with  16  Holbrook Road  at  or about  the time  the  search          warrant  issued on  March 4,  1994.   As already  noted, however,          ultimately the  "probable cause" analysis takes  into account the          totality of  the  circumstances  reasonably  inferable  from  the          reliable facts  set forth in the Graffam affidavit.  Thus, a weak          showing on a particular  factor may be offset by  more compelling          evidence  on  another relevant  factor  in  the "probable  cause"          analysis.  See supra Section II.A.1.                       ___ _____                    Once the  trial court elects  to bypass the  merits and          proceed with  the Leon  analysis, moreover, the  "probable cause"                            ____          focus  shifts.  Since no deterrent purpose is served by sanction-          ing "objectively  reasonable" law enforcement conduct, see United                                                                 ___ ______          States  v. Ricciardelli, 998 F.2d 8, 15 (1st Cir. 1993) (citation          ______     ____________          omitted), the "extreme sanction"  of exclusion is inapplicable to          evidence seized  pursuant  to a  search  warrant obtained  in  an          "objectively  reasonable" manner from  a neutral magistrate, even          assuming the warrant or supporting affidavits were defective, see                                                                        ___          Leon, 468 U.S. at 921, 926.           ____                    The Supreme  Court employed  four exemplars in  Leon to                                                                    ____          outline the  ongoing role  it envisioned for  "exclusionary rule"          deterrence in circumstances where  evidence is seized pursuant to          a search warrant:   (1) the magistrate is "misled  by information          in  an affidavit that  the affiant knew  was false  or would have          known was false except for his reckless disregard for the truth";                                          17          (2) the magistrate "wholly  abandon[s] his [detached and neutral]          judicial role"; (3) the warrant  is "so facially deficient [e.g.,          failing to  list, with sufficient particularity,  the evidence to          be  seized] . . .  that the executing  officers cannot reasonably          presume it to  be valid";  or (4) the  supporting affidavits  are          "`so lacking in indicia  of probable cause as to  render official          belief  in  its existence  entirely  unreasonable.'"  Id. at  923                                                                ___          (citing Brown v.  Illinois, 422 U.S. 590, 610-11  (1975) (Powell,                  _____     ________          J., concurring  in part)).   The instant Leon  dispute implicates                                                   ____          only the latter category.9                      With  respect to the  critical temporal  "nexus," Zayas          contends  that  the  Graffam  affidavit  contained  only  "stale"          information that he  resided or conducted  drug operations at  16          Holbrook Road, since the second  CI did not specify when he  last          visited  Zayas there.  Absent  other reliable evidence  of a dis-          cernible temporal  nexus, says Zayas, it  was "entirely unreason-          able" for the executing officers to rely on the Graffam affidavit          as an adequate  basis for the required  "probable cause" showing.          See id.  This challenge likewise impermissibly depends, in  part,          ___ ___                                        ____________________               9Zayas  does not claim, for example, that the second CI told          the authorities the  date he  last visited Zayas  at 16  Holbrook          Road, nor  that such  information was deliberately  or recklessly          omitted from the Graffam  affidavit.  See, e.g., Craig,  861 F.2d                                                ___  ____  _____          at 822 (noting that defendant did not contend that the Leon "good                                                                 ____          faith"  exception  was unavailable  because  the affiant  omitted          information from  the affidavit  to deceive the  issuing judicial          officer).  Of course,  had Zayas meant to impugn  police motives,          the appropriate course would have been  to request an evidentiary          hearing  under  Franks.   See Franks  v.  Delaware, 438  U.S. 154                          ______    ___ ______      ________          (1978);  United  States v.  Williams, 897 F.2d  1034, 1038  (10th                   ______________     ________          Cir. 1990), cert. denied, 500 U.S. 937 (1991).                        _____ ______                                          18          upon  the implicit  assumption  that the  second CI  misdescribed          exterior features  of the premises,  but see supra  Section II.A,                                               ___ ___ _____          despite  the  substantially  contemporaneous aerial  surveillance                        _____________  _______________          which  essentially  corroborated  the  description  given by  the          second CI, and notwithstanding  Graffam's vouching for the second          CI's reliability.                      The lone respect  in which this  aspect of Zayas'  Leon                                                                       ____          challenge differs  from that  discussed above, see  supra Section                                                         ___  _____          II.A,  is its focus on Graffam's undeniable failure to ascribe in          the affidavit an approximate  date to the second CI's  last visit          with Zayas at 16 Holbrook Road.  At this juncture it is important          to note  that the government must  establish "objectively reason-          able"  reliance on a defective warrant, see, e.g., Leon, 468 U.S.                                                  ___  ____  ____          at 924, based on all the circumstances, id. at 923; Ricciardelli,                                                  ___         ____________          998  F.2d at  15.   Moreover, though  the "clear  error" standard          governs our review  of any  findings of fact,  see, e.g.,  United                                                         ___  ____   ______          States  v. Jackson,  67 F.3d  1359, 1366  (8th Cir.  1995), cert.          ______     _______                                          _____          denied,  116 S. Ct. 1684 (1996), the ultimate determination as to          ______          whether the  executing officers acted  in objectively  reasonable          reliance  on a  defective warrant  is reviewed  de novo.   United                                                          __ ____    ______          States v. Procopio, 88 F.3d 21, 28 (1st Cir. 1996).10            ______    ________                                        ____________________               10In  our own case, the district court relied on the follow-          ing four grounds.   First, in describing his "several"  visits to          16 Holbrook Road,  the second  CI stated that  Juan "lives,"  and          "deals" drugs,  in Bedford.  Zayas-Diaz, No. 94-30-01-B, slip op.                                       __________          at 8.   Next, the  follow-up aerial surveillance  of 16  Holbrook          Road "substantially" corroborated the second CI's  description of          the  residential  grounds  at 16  Holbrook  Road.    Id.   Third,                                                               ___          Marcello Sosa admitted that his cocaine supplier, "Juan," "lived"          in Bedford.   Id. at 8-9.  Finally, the statements James McDowell                        ___                                          19                    Were the critical time  element presently under discus-          sion  otherwise  indiscernible within  the  four  corners of  the          Graffam affidavit, see Bucuvalas, 970 F.2d at 940, the government                             ___ _________          might well  have been unable  to save the  evidence seized at  16          Holbrook Road.  See, e.g., United States v. Huggins, 733 F. Supp.                          ___  ____  _____________    _______          445,  449 (D.D.C.  1990)  (Leon doctrine  unavailing where  court                                     ____          could not infer, from information within "the four corners of the          affidavit . .  . the time during which the  criminal activity was          observed") (citing  Herrington v.  State, 697 S.W.2d  899, 900-01                              __________     _____          (Ark.  1985)).  Ostensibly, the second CI's statement that he had          visited with Zayas at 16 Holbrook Road  on several occasions is a          prime example  of "undated  stale" information, which  raises the          specter that "officers  with information of  questionable recency          [may]  escape embarrassment  by simply  omitting averments  as to          time."   Rosencranz v. United States, 356 F.2d 310, 316 (1st Cir.                   __________    _____________          1966).   Moreover,  as the  government all  but conceded  at oral          argument,  it  would  seem  that a  reasonably  well-trained  law          enforcement officer should be familiar with the fundamental legal          principle  that both  the  "commission" and  "nexus" elements  of          "probable cause"  include an  essential temporal component.   See                                                                        ___          Leon, 468 U.S. at 920, n.20.  Without necessarily endorsing their          ____          sufficiency,  we  acknowledge that  the  circumstantial consider-          ations relied upon by the district court, see supra note 10,  are                                                    ___ _____                                        ____________________          made to the authorities in February 1994    that "Nelson Martell"          (Zayas) had been with Brenda Koehler when she leased the McDowell          garage,  and the  two  "appear[ed] to  be  husband and  wife"              provided  some further  support for  a reasonable  inference that          Koehler and Zayas lived together at 16Holbrook Road.  Id. at 9.                                                                  ___                                          20          relevant to the  required nexus  between the date  the second  CI          visited with Zayas at  16 Holbrook Road and  the date the  search          warrant issued.                     Fortunately  for  the government,  other circumstantial          indicia  buttress  the  required  temporal link.    The  analysis          suggested  by  Zayas disregards  salient  inferences which  well-          trained,  objectively reasonable  law enforcement  officers might          draw  from the  totality of  the  circumstances disclosed  in the          Graffam affidavit.  See Gates, 462 U.S. at 238 (requiring practi-                              ___ _____          cal, common-sense "probable cause" assessments  by issuing magis-          trates and  reviewing courts).   Thus,  Zayas adroitly  skews the          focus of  the Leon debate,  from whether  a well-trained  officer                        ____          reasonably could have relied  upon a search warrant based  on the          evidence described in the  Graffam affidavit as well as  all fair                                                       __ ____ __  ___ ____          inferences  therefrom, to  whether a  well-trained officer  would          __________  _________          have known that supporting affidavits whenever practicable should          provide at least approximate dates for pivotal events such as the          second CI's last visit with Zayas at 16 Holbrook Road.                      While Zayas would win  the latter debate hands-down, he          loses  the former  under Leon's "objectively  reasonable officer"                                   ____          test  because the  Graffam affidavit  describes a  collocation of          circumstances,   as  well  as  expert  law-enforcement  insights,          adequate to enable the recency of the critical last visit by  the          second CI to be fairly inferred.  See United States v. Jewell, 60                                            ___ _____________    ______          F.3d 20, 23 (1st Cir. 1995) (citing "totality of the circumstanc-          es"  test, and rejecting  defendant's invitation to  "engage in a                                          21          piecemeal examination of the affidavit, and [to] base our  review          of the clerk-magistrate's actions on  `"bits and pieces of infor-          mation in  isolation"'") (citation omitted).   First, the Graffam          affidavit  afforded ample basis for  finding the second CI trust-          worthy.11    See supra  Section II.A.  Second,  the link  with 16                       ___ _____          Holbrook  Road, whether  as  Zayas' residence  or drug  operation          site, plainly satisfied the "probable cause"  standard.  All that          remained  was  the temporal  component  of  the "commission"  and          "nexus" elements.  See supra pps. 13-15.                               ___ _____                                        ____________________               11The  affidavit  would  enable  a  reasonably  well-trained          police  officer to  conclude that  the second  CI was  a reliable          informant,  based both  on  Graffam's vouching  and  on the  very          detail  of the  second  CI's information  about "Nelson  Martell"          [Zayas],  particularly  the  earlier  cocaine-related  arrest  in          Connecticut,  see supra note  7, which Graffam  verified with the                        ___ _____          Connecticut police before the affidavit was submitted.                                          22                    As to  the "commission" element, the  ongoing nature of          Zayas' cocaine trafficking activities  in the Manchester area was          amply demonstrated in the  supporting affidavit: first, by Sosa's          admission  that  Zayas had  supplied  the six  ounces  of cocaine          seized from Sosa's  residence on  January 26, 1994,  the date  of          Sosa's  arrest; and by the second CI, who informed the Manchester          police  on February 24, 1994    twelve days before the challenged          search    that Zayas,  alias "Juan," "currently controls" cocaine          distribution  at  various  Manchester   business  establishments,          including the Oasis Social Club.  See supra Section I.A.1.                                             ___ _____                    As to the "nexus" element,  the pivotal linkage was the          second  CI's statement  that  "Juan lives"  in Bedford,  where on          "several occasions"  the second  CI had  visited "Juan" and  seen          cocaine and  cash in  substantial quantities.   Though imprecise,          these  temporal references were related  by the second  CI in the          present tense, which at the very least would permit an objective-          ly  reasonable officer  to infer  that the  occurrences described          were  substantially contemporaneous with  the second  CI's inter-          view, which in turn took place  within twelve days of the warrant                _____ __ ____ ____ _____  ______ ______ ____ __ ___ _______          application.   The  second CI's  description of  various exterior          ___________          features of  16 Holbrook  Road, as substantially  corroborated by          virtually contemporaneous aerial  surveillance, likewise lent  to          the probability that his last  visit had been relatively  recent,          rather  than remote in time.  The  few minor discrepancies in the          second  CI's descriptive  account  were by  no means  necessarily          attributable  to a substantial time lapse.  See Schaefer, 87 F.3d                                                      ___ ________                                          23          at 567 (noting that  "magistrate may reasonably  choose to . .  .          disregard  petty  inconsistencies"  in  informants'  statements).          Finally,  the second CI made statements  that plainly imply regu-          lar,  ongoing  transactions  at  16  Holbrook  Road,  e.g.,  that          "[S]panish males"  arrived "every  Tuesday" at the  Bedford resi-                                      _____          dence in automobiles bearing New York license plates.                    Absent   any  indication  or  suggestion  that  Graffam          purposely withheld  more precise  temporal references  adverse to          the  warrant  application, see  supra note  9,  it would  be pure                                     ___  _____          speculation to credit Zayas' implicit premise that the last visit          the second CI had with Zayas at  16 Holbrook Road was necessarily          remote  in time even though  there was probable  cause to believe          that  Zayas was  still trafficking  cocaine less  than  two weeks          before the search.  See, e.g., id. at 568 ("[I]t is common ground                              ___  ____  __          that drug  conspiracies tend to be  ongoing operations, rendering          timely [two- or three-year-old]  information that might, in other          contexts, be regarded as stale."); United States v. Hernandez, 80                                             ______ ______    _________          F.3d  1253, 1259 (9th Cir. 1996) ("With respect to drug traffick-          ing,  probable cause  may  continue  for  several weeks,  if  not          months, [from] the last reported instance of suspect activity.");          United States v. Smith, 9 F.3d  1007, 1014 (2d Cir. 1993)  (weeks          ______ ______    _____          or months); Rivera v.  United States, 928 F.2d 592, 602  (2d Cir.                      ______     ______ ______          1991) (noting that in drug trafficking cases,  information may be          weeks or months old). Finally, it is one thing to find use of the          past tense "lived" insufficient  to indicate a current residence,          as Zayas  urges; quite  another to equate  "lives" with  "lived."                                          24          See  supra Section  I.A.2.   It is  one matter  to find  the term          ___  _____          "dealt"  inadequate  to  indicate  current  drug  dealing;  quite          another to equate "deals" with "dealt."  See id.                                                    ___ ___                    To this must be added the weight due Graffam's insights          into drug  trafficking  modi operandi,  based  on more  than  two                                  ____ ________          decades as  a DEA agent.   See supra  Subsections I.A.4  & I.A.5.                                     ___ _____          Given Graffam's expertise, it would be "objectively unreasonable"          to  conclude, as  Zayas simply  presumes,  that mere  stoppage of                        __  _____ ______  ________          postal deliveries  and electrical  utility services, or  the use,          listing, and/or maintenance  of other  residential addresses,  or          nominee  owners such  as Brenda  Koehler, compelled  an inference          that Zayas was no longer residing, conducting drug operations, or          keeping illicit drug-related records, at 16 Holbrook Road.  Thus,          in no sense  would it  have been objectively  unreasonable for  a          well-trained police officer to believe there was a fair probabil-          ity that  these developments were subterfuges  prompted by Sosa's          recent arrest and  designed to prevent detection, as  the Graffam          affidavit indicated.  See id.                                ___ ___                                         III                                         III                                      CONCLUSION                                      CONCLUSION                                      __________                    We therefore  conclude that a well-trained law enforce-          ment  officer  reasonably  could  have relied  upon  the  Graffam          affidavit  as  adequate  support  for  the  issuing  magistrate's          finding that there was  a fair probability that drug  trafficking          records  would be found  at 16  Holbrook Road  on March  8, 1994.          Accordingly, the district court judgment is affirmed.                        the district court judgment is affirmed.                        _______________________________________                                          25
