
USCA1 Opinion

	




                            United States Court of Appeals                                For the First Circuit                                For the First Circuit                                 ____________________        No. 96-1244                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                THAKHONE KHOUNSAVANH,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                 [Hon. Francis J. Boyle, Senior U.S. District Judge]                                         __________________________                                 ____________________                                        Before                                 Stahl, Circuit Judge,                                        _____________                            Bownes, Senior Circuit Judge,                                    ____________________                              and Lynch, Circuit Judge.                                         _____________                                 ____________________            Jennifer Petersen,  with whom  Karl R.D.  Suchecki and  Petersen &            _________________              ___________________      __________        Suchecki were on brief, for appellant.        ________            Sheldon Whitehouse,  United States  Attorney, with  whom Zechariah            __________________                                       _________        Chafee, Assistant United States Attorney, was on brief, for appellee.        ______                                 ____________________                                     May 16, 1997                                 ____________________                      BOWNES, Senior Circuit  Judge.  Defendant  Thakhone                      BOWNES, Senior Circuit  Judge.                              _____________________            Khounsavanh   appeals  his   conviction  for   Conspiracy  to            Distribute  Cocaine Base  and for  Possession with  Intent to            Distribute Cocaine Base.  See 21 U.S.C.    841(a)(1), 846; 18                                      ___            U.S.C.    2.   He contends that  the district court  erred in            denying his motion to suppress the fruits  of a search on the            ground  that  the  affidavit underlying  the  search  warrant            lacked  sufficient  information  to  support   a  finding  of            probable cause.  We affirm.                                      The Facts                                      The Facts                                      _________                      On  May 23,  1995, Providence, Rhode  Island police            officers executed a  search warrant for the  first floor rear            apartment   at  676-678  Chalkstone  Avenue,  a  three-family            tenement building.   The  warrant was  based on  an affidavit            submitted  by  Detective  Freddy  Rocha.   According  to  the            affidavit, a confidential informant had told  Detective Rocha            that two men were  storing and selling crack cocaine  in that            apartment.  The affidavit described the two men as "'Fat Boy'            Alias John Doe . . . an Asian Male, Unkn. Age.  5'6" Tall and            170 Lbs.  and 'Turtle' Alias John  Doe.  5'7" 130  Lbs."  The            informant  also told  the  detective that  he  "could make  a            purchase  of  cocaine from  this  subject."   (The  affidavit            alternates several times between referring to the subjects in            the singular and in the plural.)                                         -2-                                          2                      The detective sought to corroborate the informant's            story by taking him up  on his offer to conduct  a controlled            buy  of  cocaine  from  the  apartment  under  the  officer's            supervision.   According to  the  affidavit, Detective  Rocha            "drove  to  the Chalkstone  Avenue  area  [and] searched  the            informant  for contraband.   Finding  none the  informant was            given  an  amount of  U.S. currency  and  directed to  make a            purchase  of cocaine from  'Fat Boy' and  'Turtle' at 676-678            Chalkstone Ave."   The detective watched  the informant enter            the  building  through the  rear door  and exit  five minutes            later through the same door.  The detective met the informant            at a pre-arranged location, where  the informant handed him a            quantity  of  suspected  cocaine   which  he  stated  he  had            purchased  from "Fat  Boy."   Tests later  revealed that  the            substance was indeed cocaine.                      The detective then applied  for a warrant to search            the first  floor rear apartment at  676-678 Chalkstone Avenue            and/or the two men  ("Fat Boy" and "Turtle").   The complaint            for  the warrant  (which was  sworn to  before a  state court            judge) added  to the  affidavit's description the  facts that            "Fat Boy" was approximately twenty-five years old with "short            hair balding," and that "Turtle" was an Asian male with black            short hair.   The court  issued the warrant,  both as  to the            premises and as to the persons of "Fat Boy" and "Turtle."                                         -3-                                          3                      The police executed the warrant the same day.  When            the police  entered the apartment, two  men who approximately            fit the  informant's descriptions fled  to a bedroom.   Three            other people were present in the apartment during the  search            but did not leave the  room they had been in when  the police            arrived.  One detective  searched "Fat Boy" and found  in his            front pants pocket a  plastic bag containing fourteen smaller            bags  of what tested out as crack cocaine.  Another detective            found,  in the ceiling of  the kitchen, a  bag containing 650            smaller bags of crack  cocaine.  Another small bag  of powder            cocaine was found in the bedroom.   In addition to the drugs,            the police seized  the wallets and identification  of the two            men who fled, one of whom is the defendant.   They also found            in  the apartment and seized a pager, bagging material, and a            gas bill on which the defendant's name appeared.                      The defendant  moved to suppress the  fruits of the            search.  After hearing, the district court denied the motion.            The defendant then  entered a plea of guilty  to Counts I and            II of the indictment, and the government dismissed Count III.            In  his plea  agreement, the  defendant  gave notice  that he            intended  to appeal  the  denial of  his suppression  motion,            pursuant to Fed. R. Crim. P. 11(a)(2).                                  Standard of Review                                  Standard of Review                                  __________________                      In reviewing a denial  of a suppression motion, the            district  court's  ultimate legal  conclusion,  including the                                         -4-                                          4            determination that a given  set of facts constituted probable            cause, is a question of  law subject to de novo review.   See                                                    _______           ___            Ornelas  v. United  States,  116 S.  Ct.  1657, 1659  (1996);            __________________________            United States v. Zayas-Diaz,  95 F.3d 105, 111 n.6  (1st Cir.            ___________________________            1996).  The district court's  findings (if any) of historical            facts -- "the  events which occurred leading up to  the . . .            search," Ornelas, 116 S. Ct. at 1661 -- must be upheld unless                     _______            they  are clearly erroneous.  See id. at 1663; Zayas-Diaz, 95                                          ___ ___          __________            F.3d at 111 n.6.  A  reviewing court must "give due weight to            inferences  drawn from  those  facts by  resident judges  and            local  law enforcement  officers."   Ornelas,  116 S.  Ct. at                                                 _______            1663.   But  "the  decision whether  these historical  facts,            viewed  from  the  standpoint of  an  objectively  reasonable            police officer,  amount to . .  . probable cause" is  a mixed            question of  law and fact  which we review  de novo.   Id. at                                                        _______    ___            1661-63.                                       Analysis                                       Analysis                                       ________                      The  Fourth Amendment  states:   "The right  of the            people to be  secure in  their persons,  houses, papers,  and            effects,  against unreasonable  searches and  seizures, shall            not  be  violated, and  no  Warrants  shall issue,  but  upon            probable  cause,  supported  by  Oath   or  affirmation,  and            particularly  describing the  place to  be searched,  and the            persons  or things  to be  seized."   U.S. Const.  amend. IV.            There  is a strong preference for the use of search warrants.                                         -5-                                          5            See Ornelas, 116 S. Ct. at 1663; Payton v. New York, 445 U.S.            ___ _______                      __________________            573,  586  (1980).   While  the  warrant  requirement may  be            dispensed with in certain exigent circumstances that are "few            in number and carefully  delineated," United States v. United                                                  _______________________            States Dist.  Court, 407 U.S.  297, 318 (1972),  the probable            ___________________            cause  requirement is rigorously adhered to.   See Arizona v.                                                           ___ __________            Hicks, 480  U.S. 321,  326-27, 329  (1987).  "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'"  or that  the search  will turn  up contraband.   United                                                                   ______            States v. Schaefer, 87 F.3d 562, 565 (1st Cir. 1996) (quoting            __________________            United  States v.  Aguirre, 839  F.2d 854,  857-58 (1st  Cir.            __________________________            1988)).                      The   standard  we   apply   in   determining   the            sufficiency of an affidavit is  whether the "totality of  the            circumstances" stated in  the affidavit demonstrates probable            cause  to search  either the  premises or  the person.1   See                                                                      ___            Illinois v.  Gates, 462  U.S. 213, 238  (1983).   "[P]robable            __________________            cause need  not be  tantamount to  proof beyond  a reasonable            doubt.  . . . Probability  is the touchstone."   Aguirre, 839                                                             _______            F.2d at 857 (internal quotation marks and citations omitted).                                            ____________________            1.  "The  issuing magistrate  ordinarily  considers only  the            facts  set forth  in  supporting affidavits  accompanying the            warrant application."  Zayas-Diaz, 95 F.3d at 111.                                   __________                                         -6-                                          6            See Gates, 462 U.S.  at 244 n.13 ("[P]robable  cause requires            ___ _____            only   a  probability  or   substantial  chance  of  criminal            activity,  not an  actual showing  of such  activity.").   To            establish   probable  cause   for  a  premises   search,  the            information  available in  the  affidavit must  show "a  fair            probability that  contraband or evidence  of a crime  will be            found in  a particular  place."  Id.  at 238.   An  affidavit                                             ___            supporting a  request  for a  search  warrant must  give  the            magistrate a "substantial basis"  upon which to conclude that            there  is such a "fair probability."  Gates, 462 U.S. at 238-                                                  _____            39.   The facts must be judged against an objective standard:            "would the facts available to the officer at the  moment of .            . . the search  'warrant a [person] of reasonable  caution in            the belief' that the action taken was appropriate?"  Terry v.                                                                 ________            Ohio, 392 U.S. 1, 21-22 (1968).            ____                      In  many  cases, as  here,  part of  the  basis for            probable cause derives from  information that the police have            obtained  from an informant.   Prior to Gates,  the Court had                                                    _____            developed  a  two-pronged test  for such  a  case:   when the            warrant affidavit rests on hearsay -- an informant's report -            -  the affidavit must inform  the magistrate "of  some of the            underlying circumstances from  which the informant  concluded            that the narcotics were where he claimed they were [the basis            of knowledge prong], and some of the underlying circumstances            from which the officer concluded that the informant . . . was                                         -7-                                          7            'credible'   or  his  information  'reliable'  [the  veracity            prong]."   Aguilar  v.  Texas,  378  U.S.  108,  114  (1964);                       __________________            Spinelli v. United States,  393 U.S. 410, 416 (1969).   Gates            _________________________                               _____            abandoned   the  notion   that  "these  elements   should  be            understood as entirely separate and  independent requirements            to  be rigidly exacted in every case" before a probable cause            determination  may be  sustained.   Gates, 462  U.S.  at 230.                                                _____            Gates  replaced  the  two-pronged  framework of  Aguilar  and            _____                                            _______            Spinelli with the totality of the circumstances test.              ________                      While eschewing  a rigid  adherence to each  of the            Aguilar-Spinelli  factors, Gates maintained  the relevancy of            ________________           _____            the considerations set forth in those cases.  The Gates Court                                                              _____            surely  did   not  intend   that  its  totality   test  would            "threaten[]  to  'obliterate  one  of  the  most  fundamental            distinctions between our  form of government, where  officers            are  under the law, and  the police-state where  they are the            law.'"   Gates,  462 U.S.  at 291  (Brennan, J.,  dissenting)                     _____            (quoting Johnson v. United  States, 333 U.S. 10, 17  (1948)).                     _________________________            Nor  did  Gates  intend for  trial  and  appellate courts  to                      _____            abdicate   their   responsibility   to   uphold   the  Fourth            Amendment's probable cause requirement.   See Hicks, 480 U.S.                                                      ___ _____            321.   We have  never read  Gates as  a total  abandonment of                                        _____            standards and rules  of law in determining  whether the state            may intrude on a citizen's privacy.  Nor does Gates mean that                                                          _____            reviewing  courts  are writing  on  a  clean  slate  when  we                                         -8-                                          8            confront  the  question of  when  an  informant's information            rises to the level of probable cause.  The Gates Court agreed                                                       _____            that  the   Aguilar  and  Spinelli   factors,  including  "an                        _______       ________            informant's   'veracity,'   'reliability'   and   'basis   of            knowledge' are  all highly relevant in  determining the value            of his report."   Gates, 462  U.S. at  230; see Schaefer,  87                              _____                     ___ ________            F.3d at  566 (the  Aguilar and  Spinelli factors are  "highly                               _______      ________            relevant," even after Gates).                                  _____                      We  have recently offered  a non-exhaustive list of            possible factors  that a  magistrate or reviewing  court will            consider:                        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";                      whether  informant  statements are  self-                      authenticating; whether some  or all  the                      informant's   factual   statements   were                      corroborated   wherever  reasonable   and                      practicable    (e.g.,   through    police                      surveillance);   and   whether   a   law-                      enforcement     affiant    included     a                      professional  assessment of  the probable                      significance  of the facts related by the                      informant,   based   on   experience   or                      expertise.    None  of  these  factors is                      indispensable; thus, stronger evidence on                      one or more factors  may compensate for a                      weaker or deficient showing on another.             Zayas-Diaz, 95 F.3d at  111 (citations and footnote omitted).            __________                      The risk that  the informant is  lying or in  error            need not be  wholly eliminated.   Rather, what  is needed  is            that "the probability  of a lying or  inaccurate informer has                                         -9-                                          9            been   sufficiently  reduced   by  corroborative   facts  and            observations."  2  W. LaFave, Search and Seizure:  A Treatise                                          _______________________________            on  the  Fourth  Amendment   168  (3d  ed.  1996)  ("LaFave")            __________________________            (quotation omitted).  The  judgment to be made is:  when does            verification  of  part  of  the  informant's  story  make  it            sufficiently likely that the  crucial part of the informant's            story (i.e., allegations that  criminal activity has occurred            and  that evidence pertaining  thereto will  be found  in the            location to be searched)  is true, such as would  "'warrant a            [person] of reasonable caution in the  belief' that [a search            would  be] appropriate,"  based upon  what the  informant has            said?  See Terry, 391 U.S. at 21-22.                   ___ _____                      In   analyzing   whether   there    is   sufficient            corroboration, in verifying the  reliability of the informant            or in  demonstrating an adequate  basis for knowledge,  it is            not particularly probative  for the informant to supply a lot            of  details about  irrelevant facts  that other  people could            easily  know about  and that  are not incriminating,  such as            describing  all   the  furniture  in  an   apartment  or  the            defendant's  routine   activities.    Such  details   do  not            demonstrate  that the  informant has  a legitimate  basis for            knowing  about  the defendant's  allegedly  criminal activity            which,  after all, is what the affidavit must establish.  "At            best, [such] details merit  the conclusion that the informant            has   been  in  the  premises   in  question  [or  knows  the                                         -10-                                          10            defendant's daily  routine], but since a  direct statement to            that effect  by the informant would not carry the day, it can            hardly be  enough that this particular  conclusion is reached            by inference from the statement of detail."  2 LaFave  at 160            (footnote omitted).  Unless such details, combined with other            circumstances,  would in  some  way  generate suspicion  that            criminal conduct has occurred  or that contraband or evidence            exists on the premises  or on the person to be searched, they            would not warrant a prudent police officer in the belief that            a search would  be appropriate.   Cf. Alabama  v. White,  496                                              ___ _________________            U.S.  325, 332 (1990)  (where anonymous caller  told police a            woman  would   leave  a  certain  apartment   building  at  a            particular time and get into a particularly described car and            drive  to a  certain  motel, and  where surveilling  officers            observed such behavior, these facts constitute a "close case"            to  establish merely  reasonable  suspicion to  make a  Terry                                                                    _____            stop).                      In the instant  case, the defendant  challenges two            distinct  aspects  of the  search:   whether  the  police had            probable cause to  obtain a warrant to search  the apartment;            and  whether  the  police  were justified  in  searching  the            defendant  when  they did.   We  will  analyze each  of these            aspects separately.   We conclude that the  warrant was based            upon sufficient  facts to establish probable  cause to search            the premises; then when  that search was executed, additional                                         -11-                                          11            information came  to light  which provided probable  cause to            search the person of the defendant.                      The  government  argues   that  a  controlled  buy,            observed by the  officer, is per  se sufficient to  establish                                         _______            probable cause to  search the apartment.  We disagree.  A per                                                                      ___            se  rule is  not  appropriate in  the  context of  protecting            __            precious Fourth Amendment freedoms.   Fourth Amendment rights            "are not mere second-class rights  but belong in the  catalog            of indispensable  freedoms.   Among  deprivations of  rights,            none is so  effective in  cowing a  population, crushing  the            spirit of the  individual and putting terror in  every heart.            Uncontrolled  search and seizure is one of the first and most            effective  weapons   in  the   arsenal  of   every  arbitrary            government."   Brinegar v. United  States, 338 U.S.  160, 180                           __________________________            (1949)  (Jackson, J.,  dissenting).   "But  the  right to  be            secure  against  searches and  seizures  is one  of  the most            difficult to protect.  Since the officers  are themselves the            chief invaders, there is no enforcement outside of court. . .            .  Courts  can protect  the innocent  against such  invasions            only indirectly and through  the medium of excluding evidence            obtained against those who  frequently are guilty."    Id. at                                                                   ___            181.  As Justice Scalia has  written for the Court, "there is            nothing   new  in  the   realization  that  the  Constitution            sometimes  insulates the  criminality  of a  few in  order to            protect the privacy of us all."  Hicks, 480 U.S. at 329.                                             _____                                         -12-                                          12                      Moreover,   a   probable  cause   determination  is            fundamentally  a  fact-specific  inquiry.    No   one  factor            possesses talismanic  powers.   Because of the  importance of            Fourth Amendment  freedoms to every American,  and because of            the fact-specific  nature of  the probable cause  inquiry, we            reject  the government's  contention  that  a controlled  buy            should  be per se sufficient  to establish probable  cause.                         ______            See United States  v. Caggiano,  899 F.2d 99,  102 (1st  Cir.            ___ __________________________            1990) (a  determination of probable cause "cannot be based on            hard  certainties   and  rigid  rules");   cf.  Richards   v.                                                       ___  _____________            Wisconsin, 117 S. Ct.  1416, 1421 (1997) (rejecting a  per se            _________                                              ______            exception  to   the  knock-and-announce  element   of  Fourth            Amendment's  reasonableness  requirement   for  felony   drug            investigations).   We hold  instead that  every case  must be            evaluated  "on  its  own  facts and  circumstances,"  Ker  v.                                                                  _______            California, 374 U.S. 23,  33 (1963) (internal quotation marks            __________            omitted), with due consideration to  the totality of all  the            circumstances  in that  particular case,  Gates, 462  U.S. at                                                      _____            238.  See also Ornelas, 116 S. Ct. at 1661.  "[T]he fact that                  ________ _______            [a  controlled  buy]  may  frequently  present  circumstances            warranting [a  finding of probable cause]  cannot remove from            the neutral scrutiny of [a magistrate and] a reviewing  court            the  [existence  of probable  cause]  in  a particular  case.            Instead, in each case, it  is the duty of a  court confronted            with  the  question  to   determine  whether  the  facts  and                                         -13-                                          13            circumstances of  the particular  [affidavit in support  of a            warrant application] justified" the issuance of  the warrant.            Richards,  117 S.  Ct. at  1421.   Accordingly, we  hold that            ________            magistrates  and reviewing courts must carefully review every            warrant application  on its  own merit, to  determine whether            all  the facts and circumstances of  that case are sufficient            to establish probable cause to conduct a search.                      We do agree, however, that, taking into account the            totality of circumstances in the instant case, the government            had established probable  cause for the  search of the  first            floor rear apartment at 676-678 Chalkstone Avenue.  According            to the officer's  affidavit, the informant had  told him that            he knew "Fat Boy" and "Turtle" were storing and selling drugs            in the  apartment in question;  the informant had  offered to            make  a purchase  from  those individuals  in that  apartment            (knowing  that,  if  he was  lying,  he  would  be found  out            relatively  quickly); and the  informant in fact  went to the            apartment without  crack cocaine,  after  having been  patted            down,  and   emerged  several   minutes  later  with   crack,            explaining that he  had purchased the crack from  "Fat Boy."2            While all  these facts  did not  corroborate each  other with            certainty, the combination of  facts "'reduced the chances of            a reckless  or prevaricating tale,' [and]  thus provid[ed] 'a                                            ____________________            2.  The complaint  contained additional facts  but those were            not part of the affidavit.  See infra at 20 & n.4.                                        ___ _____                                         -14-                                          14            substantial basis  for crediting  the hearsay.'"   Gates, 468                                                               _____            U.S. at 244-45 (quoting Jones v. United States, 362 U.S. 257,                                    ______________________            269,  271   (1960)).    Taken  together,   these  facts  were            sufficient to give the  magistrate a "substantial basis" upon            which to  conclude that  there was  a "fair  probability that            contraband  or evidence of a  crime [would] be  found" in the            apartment.  See Gates, 462 U.S. at 238-39.                         ___ _____                      This  case  contains  almost  the exact  same  fact            pattern as in  United States  v. Garcia, 983  F.2d 1160  (1st                           ________________________            Cir. 1993).  In  Garcia, the defendant had moved  to suppress                             ______            evidence seized during the search of an apartment in a three-            family building, on the  ground that the affidavit underlying            the search  warrant upon which the search  team relied failed            to demonstrate probable cause for the search.                      That affidavit, in essence, stated:  that                      [the  affiant,  a  police detective]  had                      reason to believe that a large-scale drug                      operation was being  conducted out of the                      second floor apartment of  93-95 Gallatin                      Street;  that  he  met  with  a  reliable                      confidential informant who told  him that                      two  Hispanic  persons  were storing  and                      selling  drugs;  that  the informant  had                      seen  large  amounts  of cocaine  in  the                      apartment; and that, to  corroborate this                      information,  [the detective]  executed a                      "controlled  buy" through  the informant.                      The   affidavit   fully   described   the                      "controlled buy."             Id. at 1166.  In Garcia, as here, the controlled buy was less            ___              ______            than  ideal:  the detective  was able to  watch the informant            enter  and leave the building through its front door, but did                                         -15-                                          15            not  follow  the informant  into  the building  and  thus was            unable  to  verify with  certainty  which  apartment was  the            source  of  the drugs  (or even  whether  the drugs  had been            secreted  elsewhere in  the  building, as  the defendant  had            hypothesized).  Id.  at 1166-67.  In  addition, Garcia shared                            ___                             ______            another anomaly  with the instant  case:  when  the informant            handed  the drugs  to the  officer, he  reported that  he had            purchased the  drugs from  "the Hispanic male  [singular] who            resided  in  the second  floor  apartment,"  even though  the            informant  had  previously  told  him  that  there  were  two            Hispanic persons involved in the drug-selling operation.  Id.                                                                      ___            at 1167.                      We  found that  the state  court judge  issuing the            warrant  and   the  district  judge  reviewing   it  "drew  a            reasonable inference  of probable  cause that there  was drug            trafficking in  the second floor apartment  of 93-95 Gallatin            Street."  Id.   Likewise, in the instant case,  the affidavit                      ___            contained  sufficient information to lead a reasonable person            to  believe that crack cocaine  was being stored  in and sold            from  the first  floor rear  apartment at  676-678 Chalkstone            Avenue, also a three-story tenement building.                      The  present case  is  controlled by  Garcia   even                                                            ______            though  the  affidavit  there  contained one  fact  that  the            present affidavit did not:  the detective in Garcia described                                                         ______            the informant as "reliable."  This is a distinction without a                                         -16-                                          16            real difference.   A bald assertion  of reliability, with  no            allegations regarding the basis for the officer's belief that            the informant is reliable --  such as convictions obtained as            a result of information supplied in the past by the informant            -- is "entitled  to only  slight weight."   United States  v.                                                        _________________            Foree,  43  F.3d  1572,   1576  (11th  Cir.  1995)  (internal            _____            quotation marks  omitted); see  Gates, 462  U.S. at 239  ("An                                       ___  _____            officer's statement  that  'affiants have  received  reliable            information  from  a credible  person  and  do believe'  that            heroin  is stored in a home, is likewise inadequate.").  Even            though the informant's past  performance may be considered in            evaluating the credibility or reliability of the informant, a            mere  allegation   that  the   informant  is   "credible"  or            "reliable"  does not  permit the  judicial officer  to assume            that any  such past performance  actually took place  or that            the   performance  was   of  a   nature  to   merit   such  a            characterization of the informant.                       Thus, it  is of only "slight" moment that this case            lacks  the  conclusory  assertion  of  reliability  that  was            present  in  Garcia.    The  more  important  facts  are  the                         ______            similarities between the two cases:  an informant who alleges            that  drugs  are  being  stored  and  sold  in  a  particular            apartment, who offered to  make a controlled buy and  who did            make  a  controlled  buy  from  the  same  apartment.     The            corroboration of the informant's story did not consist merely                                         -17-                                          17            of  corroborating  some innocent  facts  that  any number  of            people  might  know.   This  was  corroboration  of the  very            criminal activity which the police were investigating, and of            the existence of contraband or evidence on the premises to be            searched.  As such,  it supports a finding of  probable cause            in  a way that facts about furniture or routine activities do            not.                      To be sure, the controlled buy in this case was, as            the defendant claims, not  free of problems.  Compare  United                                                          _______  ______            States  v.  Cruz  Jimenez, 894  F.2d  1,  3  (1st Cir.  1990)            _________________________            (informant, searched  first,  had  cocaine  when  she  exited            defendant's motel room; that, plus what police overheard from            body recorder she wore during transaction, confirmed that she            obtained drugs from defendant).  But as noted, in Garcia, 983                                                              ______            F.2d  at 1166-67,  we upheld  a probable  cause determination            where   the  facts,  including   the  imperfections   of  the            controlled buy, were remarkably similar to those here.3                                            ____________________            3.  The government  contends that, even if  the affidavit did            not  contain sufficient  corroboration to  establish probable            cause to  search, suppression  is not appropriate  because of            the  Leon good faith exception.   See United  States v. Leon,                 ____                         ___ ______________________            468 U.S. 897 (1984).  "This good faith exception, however, is            grounded in an  objective standard of  reasonableness.  As  a            result,  an  officer  is   required  to  have  a  'reasonable            knowledge of  what  the law  prohibits.'"   United States  v.                                                        _________________            Fuccillo,  808 F.2d  173, 177 (1st  Cir.), cert.  denied, 482            ________                                   _____________            U.S.  905 (1987)  (quoting  Leon,  468  U.S.  at  920  n.20).                                        ____            "Suppression  is   still  an  appropriate  remedy  when  'the            officers  were . . . reckless in preparing their affidavit. .            . .'"   Fuccillo, 808 F.2d at 178 (quoting  Leon, 468 U.S. at                    ________                            ____            926).   In Fuccillo, we held that the officers "were reckless                       ________            in not including in the affidavit information which was known                                         -18-                                          18                      The   defendant  further  argues  that  the  search            warrant was  inadequate because of a  few minor discrepancies            or errors in some facts in the affidavit and in the officer's            testimony  about the  name of  the street  from which  he was            conducting  surveillance  during  the  controlled  buy.    We            disagree.  The  magistrate "may  reasonably choose to  . .  .            disregard petty inconsistencies"  in informants'  statements.            Schaefer,  87 F.3d at 567  (quoted in Zayas-Diaz,  95 F.3d at            ________                              __________            115-16).                      We  turn  now to  the  defendant's  claim that  the            affidavit  contained  insufficient  information  to  form the            basis  for  probable  cause  to search  the  person  of  this                                                         ______            defendant.   This is a  separate issue from  the existence of            probable cause to search the premises which we have discussed            supra.   Probable cause to search a person "must be supported            _____            by  probable  cause  particularized  with  respect   to  that            person."   Ybarra v. Illinois, 444 U.S. 85, 91 (1979); United                       __________________                          ______            States  v. Sepulveda,  102 F.3d  1313, 1315 (1st  Cir. 1996).            ____________________            "[A]   person's  mere  propinquity  to  others  independently            suspected of  criminal activity does not,  without more, give                                            ____________________            or  easily accessible  to them."    Id. at  178.   There, the                                                ___            officers  "simply  did  not   'take  every  step  that  could            reasonably be expected of them.'"  Id. (quoting Massachusetts                                               ___          _____________            v. Sheppard,  468 U.S. 981, 989 (1984)).  In this case, it is            ___________            an   open  question  whether   this  objective   standard  of            reasonableness was  met.  We  need not  reach this  question,            however, since  we determine  the evidence is  admissible, in            any event, on other grounds.                                         -19-                                          19            rise to probable cause  to search that person."   Ybarra, 444                                                              ______            U.S.  at  91;  Sepulveda, 102  F.3d  at  1315.   The  factors                           _________            discussed supra,  while providing probable  cause to  believe                      _____            that  the  premises contained  contraband  or  evidence of  a                       ________            crime, do not alone provide a sufficient basis for the police            to have searched this defendant's person (on which they found            his identification which,  coupled with the gas bill they had            found in the apartment, tied him to the premises).                        The  government argues  that  the "specificity  and            detail"  of the  informant's  descriptions of  "Fat Boy"  and            "Turtle"    are   so   "precise"   that   they   are   "self-            authenticating,"  an  additional  factor that  would  support            issuing a  warrant to  search  the person  of this  defendant            (citing Zayas-Diaz,  95 F.3d at  111).   We disagree.   It is                    __________            true that there may be cases where an informant provides such            a  wealth of detail, with  such a high  degree of specificity            that  it is unlikely  that the  informant is  inventing these            assertions, and  his veracity  is supported through  the very            specificity and detail  of his  statement.   See id.;  United                                                         ___ ___   ______            States v. Caggiano, 899 F.2d 99, 102-03 (1st  Cir. 1990).  In            __________________            the instant  case, however, the so-called  "precision" in the            affidavit -- "'Turtle' Alias John Doe.   5'7" 130 Lbs." -- is            not  nearly enough  to make  the informant's  statement self-            authenticating.    This  is  true  even  if  we   accept  the            government's  invitation to  consider as well  the additional                                         -20-                                          20            assertions  contained  in  the  complaint   attached  to  the            affidavit:   that "Turtle" was an Asian male with black short            hair.4                       Nor does the  controlled buy in  this case offer  a            corroborative  cure for  the affidavit's  deficiencies.   The            controlled  buy --  during  which the  informant said  he had            bought drugs from "Fat  Boy," not from this defendant  -- was            sufficient to cure the  lack of probable cause to  search the            premises but  was inadequate  to cure  the  lack of  probable            ________            cause  to  believe that  a search  of the  defendant's person                                                       __________________            would likely turn up contraband or evidence of a crime.                      Nevertheless,   once   the  officers   entered  the            apartment legally  pursuant to  the legal search  warrant for            the   premises,   they   observed   two   men   fleeing   who            (approximately)  fit  those admittedly  sketchy descriptions.            This flight, coupled with the controlled buy monitored by the            detective  and the informant's  description (including height            and weight) of two alleged drug traffickers selling drugs out                           ___                                            ____________________            4.  The  latter details  were not included  in the  affidavit            itself,  and "[t]he  issuing magistrate  ordinarily considers            only   the  facts   set   forth   in  supporting   affidavits            accompanying the  warrant application."   Zayas-Diaz, 95 F.3d                                                      __________            at  111.  The  magistrate may  also consider  testimony given            before  him or her, if the testimony  was sworn to and made a            part of the affidavit.  See Fed. R. Crim. P. 41(c).  We  need                                    ___            not decide whether the  complaint accompanying the  affidavit            in this case should  be considered as part of  the affidavit,            because we hold infra  that the police had probable  cause to                            _____            search  the defendant's  person  regardless of  how we  would            decide this issue.                                         -21-                                          21            of that apartment, was sufficient to establish probable cause            to  search the defendant's person, without a warrant.5  Thus,            even  though  the affidavit  was  insufficient  to sustain  a            warrant to search the person of this defendant, the affidavit            was sufficient to sustain a  warrant to search the apartment,            and  once  the  police  entered the  apartment  legally,  the            defendant's suspicious behavior (coupled with the informant's            report and  the controlled  buy) was sufficient  to establish            probable  cause to  search  the defendant  for contraband  or            evidence of a crime.                                      Conclusion                                      Conclusion                                      __________                      We  cannot  say  that  the  affidavit  here  lacked            probable cause sufficient  to justify a  search of the  first            floor   rear   apartment   at   676-678   Chalkstone  Avenue.            Nevertheless,  we urge  police officers  to include  in their            affidavits as much  information as they can legally gather on            which  to base  a finding  of reliability  and basis  for the            informant's knowledge.   And we will  require magistrates and            reviewing courts  to scrutinize  affidavits such as  this one            carefully.                                              ____________________            5.  The warrantless  aspect of the search of  the defendant's            person was  justified by exigent circumstances  in this case:            two individuals  who met an informant's  descriptions of drug            dealers fled from  police officers as they  executed a search            warrant, during the investigation  of a crime involving drugs            that  could easily be disposed  of.  See  McCabe v. Life-Line                                                 ___  ___________________            Ambulance Serv.,  77 F.3d  540, 545 (1st  Cir. 1996);  United            _______________                                        ______            States v. Wihbey, 75 F.3d 761, 766 (1st Cir. 1996).            ________________                                         -22-                                          22                      As we said in  the context of Rule 11,  "[t]he more            meticulously  [a legal rule] is adhered to, the more it tends            to  discourage,  or  at  least  to  enable  more  expeditious            disposition of"  a defendant's attacks on asserted violations            of the  rule.   United States  v. Martinez-Martinez,  69 F.3d                            ___________________________________            1215,  1225-26 (1st Cir. 1995), cert. denied, 116 S. Ct. 1343                                            ____________            (1996)  (quoting United States v.  Cotal-Crespo, 47 F.3d 1, 8                             ______________________________            (1st  Cir.),  cert. denied,  116 S.  Ct.  94 (1995),  in turn                          ____________            quoting McCarthy v. United States, 394 U.S. 459, 465 (1969)).                    _________________________            Therefore, "[a]lthough  we conclude that  the [probable cause            determination] in this case was adequate, we are nevertheless            compelled  to   remind  district   courts  [and  police   and            magistrates]  that,  for the  sake  of  judicial economy  and            fundamental fairness, the best way to ensure that" the Fourth            Amendment's probable cause requirement is complied with is to            meticulously comply  with it.  Martinez-Martinez,  69 F.3d at                                           _________________            1225-26 (quoting  Cotal-Crespo, 47 F.3d at  8); see Richards,                              ____________                  ___ ________            117  S.  Ct. at  1421 (emphasizing  importance   of   neutral            scrutiny  of  police  behavior by  a                                          -23-                                          23            reviewing court to ensure compliance with Fourth Amendment in            particular case).                                          Affirmed.                                          Affirmed.                                          ________                                         -24-                                          24
