

                  UNITED STATES COURT OF APPEALS
                      FOR THE FIRST CIRCUIT
                                           

No. 92-2332
                    UNITED STATES OF AMERICA,

                            Appellee,

                                v.

                       SHERWOOD K. JORDAN,

                      Defendant, Appellant.

                                           

           APPEAL FROM THE UNITED STATES DISTRICT COURT

                    FOR THE DISTRICT OF MAINE

             [Hon. Gene Carter, U.S. District Judge]                                                             

                                           

                              Before

                       Selya, Circuit Judge,                                                     

                 Friedman, Senior Circuit Judge,                                                         

                     and Cyr, Circuit Judge.                                                     

                                           

   David G. Webbert  with whom Berman &amp;  Simmons, P.A. was  on brief                                                                
for appellant.
   F.  Mark Terison,  Assistant United  States  Attorney, with  whom                             
Richard S.  Cohen,  United States  Attorney,  and Richard  W.  Murphy,                                                                             
Assistant United States Attorney, were on brief for appellee.

                                           
                          July 16, 1993
                                           

                                      

*Of the Federal Circuit, sitting by designation.

          CYR, Circuit  Judge.   On December 3,  1991, Maine  law                    CYR, Circuit  Judge.                                       

enforcement  personnel executed a  search warrant at  the home of

appellant  Sherwood Jordan,  seizing  more  than  a  kilogram  of

marijuana, a triple beam scale, $5,880 in cash, six firearms, and

nearly 1000 rounds of assault-rifle  ammunition.  A federal grand

jury subsequently indicted Jordan on six counts of  possession of

firearms  or ammunition by a  felon, 18 U.S.C.    922(g)(1), 924,

and one count of possessing marijuana with  intent to distribute,

18 U.S.C.   841(a)(1), (b)(1)(D).

          Jordan moved to suppress all evidence seized during the

search, contending that  the warrant was issued  without probable

cause.   Although  it  expressed "grave  reservations  as to  the

sufficiency of the  probable cause showing," the  district court,

relying on the  "good faith" exception to  the exclusionary rule,

see United States v. Leon, 468 U.S. 897 (1984), denied the motion                                   

to  suppress.   Jordan  subsequently entered  conditional  guilty

pleas to three firearms charges and the drug distribution charge,

reserving the right  to appeal the suppression ruling.   See Fed.                                                                      

R. Crim. P. 11(a)(2).

A.   The Supporting Affidavit.          A.   The Supporting Affidavit                                       

          The search warrant was issued by a state court judge on

the  strength of  the affidavit  of Agent  Winston McGill  of the

Maine  Bureau of Intergovernmental Drug Enforcement.  The affida-

vit  related in  great detail  two  controlled marijuana  "buys,"

within the preceding ten days, from one Donald Moyse, a convicted

                                2

drug  offender,  by  a confidential  informant  acting  under the

direct control and surveillance of Agent McGill.  McGill attested

that the confidential informant  previously had provided reliable

tips and  had  cooperated with  local authorities  in other  con-

trolled  marijuana "buys."   The  affidavit  related that  Donald

Moyse told the confidential informant that the marijuana involved

in both controlled  "buys" had come from Jordan's  residence, and

that  both "buys"  had  been conducted  in  essentially the  same

manner:   the confidential  informant  would meet  with one  Cary

LaFrance  at a  local rest  stop area  and turn  over the  agreed

purchase price (supplied by Agent McGill).  LaFrance  would drive

to Donald  Moyse's residence,  and the two  would proceed  to the

Jordan residence where the marijuana was kept.  Moyse and LaFran-

ce would  then meet  with  the informant  at a  local school  and

deliver the marijuana.

          On  the  occasion  of  each  controlled  "buy,"  McGill

searched the  confidential informant  for contraband  immediately

prior to providing the purchase money; prior to the second "buy,"

he searched the informant's vehicle as well.  McGill then survei-

lled  the  unfolding  transaction,  observing  as  the  informant

delivered  the "buy"  money to  LaFrance,  following LaFrance  to

Moyse's house, and watching LaFrance and Moyse  as they proceeded

to  Jordan's residence,  then to the  local school.   In each in-

stance,  McGill's affidavit  attests, the  informant told  McGill

that the  marijuana had  been  turned over  to him  by Moyse  and

LaFrance at the  school and that it had  been obtained, according

                                3

to Moyse, at Jordan's residence.  Following the second "buy," the

informant  told McGill  that Moyse  had stated  that there  was a

"large quantity" of  marijuana at the Jordan residence.  Finally,

the affidavit represented  that urinalysis conducted while  Moyse

was  on  probation  occasionally  revealed  positive results  for

marijuana use.

B.   The District Court Decision.          B.   The District Court Decision.                                          

          Contrary to Jordan's contention on appeal, the district

court's "grave reservations as to the sufficiency of the probable

cause showing" did not  amount to a finding that the  warrant was

not  based on  probable cause.    "Grave reservations"  do not  a

ruling make.   Rather,  the district  court plainly  bypassed any

"probable cause"  ruling in  favor of  its functionally  distinct

reliance on the "good faith"  exception to the exclusionary rule.

In addition, we agree with the government that the McGill affida-

vit made a sufficient showing of probable cause.1

C.   Probable Cause.          C.   Probable Cause.                             

          We must  accord  the issuing  judge's "probable  cause"

determination "great  deference," United States  v. Scalia,  slip                                                                    

op.  No. 93-1018  at 4  (1st Cir.  May 21, 1993)  (quoting United                                                                           

States  v. Ciampa,  793  F.2d 19,  22  (1st Cir.  1986)), with  a                           

                                                  

     1As  there  was  no evidentiary  hearing  on  the motion  to
suppress,  we examine the only supporting  evidence    the McGill
affidavit    to  determine the sufficiency of the  probable cause
showing.   Cf. Leon, 468 U.S. at 925 (reviewing court may resolve                             
sufficiency of "probable cause" showing before  considering "good
faith" exception).

                                4

common-sense  view to whether the "totality of the circumstances"

related in the supporting affidavit, Illinois v. Gates,  462 U.S.                                                                

213, 238 (1983), gave rise to a fair probability that a search of

the  target premises would  uncover contraband  or evidence  of a

crime.  See United States v. Caggiano, 899 F.2d 99, 102 (1st Cir.                                               

1990) (citing Gates, 462 U.S. at 238-39).  The "fair probability"                             

threshold  does not  require a  prima  facie showing  of criminal

activity.   Ciampa, 793  F.2d at  22 (citing  Gates, 462  U.S. at                                                             

235).

          Jordan makes a spirited attack on the McGill affidavit:

neither  McGill nor  the  informant had  any direct  contact with

Jordan, nor  directly observed  any drug buy  or transfer  at the

Jordan residence; Moyse's representations that the marijuana came

from Jordan's  home are "double hearsay"; Moyse, a marijuana user

and convicted drug offender, was not a reliable hearsay declarant

and, finally,  the affidavit  did not demonstrate  a "fair  prob-

ability" that marijuana  or related contraband would  be found at

the  Jordan residence  since  the  marijuana  Moyse sold  to  the

informant could  have come from  LaFrance, Moyse, the  school, or

Jordan's residence.

          We  agree that nothing in the McGill affidavit excluded

the possibility that the marijuana  may have come from some place

other  than  the  Jordan residence.    Nevertheless,  viewing the

totality  of the circumstances  related in the  affidavit, rather

than  judging  "bits  and pieces  of  information  in isolation,"

United States v.  Cochrane, 896 F.2d 635, 637  (1st Cir.) (citing                                    

                                5

Massachusetts v. Upton, 466 U.S.  727, 732 (1984)), cert. denied,                                                                          

496 U.S. 929 (1990), the  affidavit was sufficient to support the

issuing judge's "common-sense" determination of probable cause.

          Hearsay  statements, like those of Moyse and the infor-

mant, often  are the  stuff of search  warrant affidavits.   See,                                                                          

e.g., Scalia,  slip op. at 2,  3; Ciampa, 793 F.2d at  24.  Their                                                  

reliability may  be  corroborated  by  various  means,  including

direct surveillance  or circumstantial evidence, or vouchsafed by

the affiant    in this  case a highly experienced law enforcement

officer.   See, e.g., Scalia, slip  op. at 6-8.   McGill attested                                      

that the confidential informant had provided reliable information

and investigative assistance to the police in the past, which may

have  been sufficient in  itself to establish  the reliability of

the informant's  hearsay statements.  See, e.g., Ciampa, 793 F.2d                                                                 

at  24 (hearsay  conveyed by  "proven  reliable informant");  cf.                                                                           

United States  v. Campbell, 732  F.2d 1017, 1019 (1st  Cir. 1984)                                    

(double  hearsay  unacceptable  basis for  probable  cause  where

neither  informant nor confidential contact had dealt with police                                

in the past).  Moreover, McGill also attested  that (i) Moyse was

an  unwitting participant  in  the  controlled  "buy,"  and  (ii)

unbeknownst to Moyse, McGill observed Moyse's entrance to Jordan-

's residence on  both occasions, thereby establishing  that Moyse

was in  a position to know  whether Jordan kept  marijuana at his

residence.  See Ciampa, 793 F.2d at 24.                                

          Finally,   McGill   contemporaneously   surveilled  all

conspicuous steps taken in the  course of both controlled "buys,"

                                6

which  proceeded exactly as  foretold by the  confidential infor-

mant,  and included  stops  at  Jordan's home,  the  site of  the

search.  Thus, independent corroboration lent further credence to

the confidential informant's  statements (i.e.,  the location  of                                                        

the marijuana).  See United States  v. Jorge, 865 F.2d 6, 9  (1st                                                      

Cir. 1989), cert.  denied, 490 U.S. 1027 (1989);  see also Gates,                                                                          

462 U.S. at 244 (White, J., concurring) ("Because an informant is

right about  some things, he  is more probably right  about other

facts . . . .").

          Appellant  nevertheless correctly  observes that  these

factors in combination do not exclude the possibility  that Moyse

might have  obtained the marijuana  at some place along  the drug

"buy" route other than Jordan's  residence.  But given the exper-

ience and training  of the affiant, the  confidential informant's

proven  reliability, and the corroboration of the informant's and

Moyse's hearsay reports  by means of direct  police surveillance,

the  issuing judge  was not  required to  credit the  speculative

possibility that the marijuana might have been obtained elsewhere

along the drug route than Jordan's residence.  Nor may we  do so.

See  Scalia, slip  op.  at 4  (issuing  judge's "probable  cause"                     

determination  entitled to "great  deference").  Viewed  in their

totality, therefore,  the circumstances related in the supporting

affidavit, together with reasonable inferences therefrom, provid-

ed a  "substantial basis"  for the  issuing judge's  common-sense

determination that  there was  a fair  probability that  Jordan's

                                7

home contained contraband or evidence  of a crime.  Caggiano, 899                                                                      

F.2d at 102 (citing Gates, 462 U.S. at 238-39).                                   

          Affirmed.                            

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