
USCA1 Opinion

	




                            United States Court of Appeals                                For the First Circuit                                For the First Circuit                                 ____________________        No. 96-1535                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                    TARIQ PERVAZ,                                Defendant, Appellant.        No. 96-1536                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                   JIMMIE ALZAMORA,                                Defendant, Appellant.                                 ____________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                       [Hon. Mary M. Lisi, U.S. District Judge]                                           ___________________                                 ____________________                                        Before                                Boudin, Circuit Judge,                                        _____________                            Bownes, Senior Circuit Judge,                                    ____________________                              and Lynch, Circuit Judge.                                         _____________                                 ____________________            William J.  Murphy for appellant  Tariq Pervaz,  Thomas G. Briody,            __________________                               ________________        for appellant Jimmie Alzamora.            Sheldon Whitehouse,  United States Attorney,  with whom Andrew  J.            __________________                                      __________        Reich, Assistant United States Attorney, was on brief for appellee.        _____                                 ____________________                                    June 24, 1997                                 ____________________                                         -2-                      BOWNES,        Senior        Circuit         Judge.                      BOWNES,        Senior        Circuit         Judge.                                     ___________________________________            Defendants/Appellants  Jimmie Alzamora and  Tariq Pervaz were            indicted and charged  with seven counts of  fraud and related            activities   involving  access  devices  to  telephone  calls            transmitted by cellular phones, in  violation of 18 U.S.C.               1029(a)(1),  (a)(2), (a)(3),  (a)(4), (a)(5),  (a)(6), and               1029(b)(2) (conspiracy to commit offenses).                      There was  a  hearing in  the district  court on  a            motion  to suppress  filed  by  Alzamora  and  Pervaz.    The            suppression motion  was denied.  Alzamora  and Pervaz entered            conditional  pleas  of guilty  to  all  seven  counts of  the            indictment,  reserving  their  right to  appeal  the district            court's denial of the suppression motion.                        Alzamora   was   sentenced   to   fourteen   months            imprisonment and ordered to pay restitution in the  amount of            $190,275,33.    Pervaz  was  sentenced  to   eighteen  months            imprisonment  and  ordered to  pay  restitution  in the  same            amount as  Alzamora --  $190,275,33.  Both  defendants appeal            their convictions and the restitution order.   Pervaz has not            filed a brief on appeal;  he has chosen to rely on  the brief            filed  by  his  co-defendant   Alzamora.    Except  as  noted            otherwise, we treat both defendants as one in this opinion.                                  STANDARD OF REVIEW                                  STANDARD OF REVIEW                                  __________________                      The  applicable standard  of  review has  been  set            forth in detail in Ornelas v. United States, 116 S. Ct. 1657,                               ________________________                                         -3-                                         -3-            1661-63 (1996).   We condensed  that teaching  in the  recent            case of United  States v. Khounsavanh, No. 96-1244,  slip op.                    _____________________________            at 4-5 (1st Cir. May 16, 1997):                           In   reviewing   a   denial   of   a                      suppression motion,  the district court's                      ultimate legal  conclusion, including the                      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                                             __  ____    ___                      1661-63.1                                            ____________________            1.  We are surprised  in light of Ornelas by the government's                                              _______            statement in its brief at page 27:                           The magistrate's finding of probable                      cause to support  the warrant is entitled                      to great  deference.   United  States  v.                                             __________________                      Ciampa,  793  F.2d   19,  22  (1st   Cir.                      ______                      1996)[sic].                                         -4-                                         -4-                                      THE FACTS                                      THE FACTS                                      _________            A)  Background            A)  Background                __________                      Defendants  were  convicted  of  taking  part  in a            telephone "cloning" operation.   Some background  information            is  necessary.   Cellular phones  transmit messages  by radio            waves, not  wires.  Telephone companies,  e.g., AT&T, Sprint,            and  MCI, offer their customers  the use of  an access device            number  called  a mobile  identification number  (MIN), which            allows customers  to make  and receive  both  local and  long            distance  telephone  calls through  their  cellular telephone            carriers, e.g., Cellular  One,  Mobile  Communications, SNET,            and COMCAST.  Cellular  telephone customers are also assigned            Electronic Serial Numbers (ESN) for their phones.  Both  MINs            and  ESNs  are  access  devices within  the  meaning  of  the            statute, 18 U.S.C.   1029(e)(1).                      Cellular  telephone  subscribers  are   assigned  a            combination  of an MIN and an ESN to access cellular service.            The MIN/ESN  combination number also  is used by  the carrier            for  billing its  cellular  phone subscribers.   The  MIN/ESN            access  combination is  programmed on  "Erasable Programmable            Read Only Memory" (EPROM) located on a computer chip which is            part of the circuitry of the telephone.                      A  cellular  telephone  "cloning"  operation  is  a            scheme  to defraud  in which  MIN/ESN combinations  issued to            subscribers  are stolen and reprogrammed on a nonsubscriber's                                         -5-                                         -5-            cellular telephone so  as to obtain  use of the  subscriber's            account.    The  cloning  is accomplished  by  attaching  the            nonsubscriber's cellular phone to a personal computer through            a specially  designed interface cable.  The  cable, used with            customized  cloning  software,  gains access  to  the "EPROM"            computer chip  and the stolen  MIN/ESN  number  is programmed            onto the computer chip in the nonsubscriber's cellular phone.            Customers  pay those running  the fraudulent scheme  a fee to            use the stolen MIN/ESN  numbers to make local, long  distance            or international phone calls  which are billed to  the stolen            account.  The fee is, of course, less than the regular rates.            The  subscriber does not know that his access number is being            used by others until he gets his telephone bill.            B)  Suppression Hearing Evidence            B)  Suppression Hearing Evidence                ____________________________                      At  the outset  of  our rehearsal  of the  evidence            adduced  at the  suppression hearing,  we caution  the reader            that the dates of conversations  and events are an  important            factor in our determination whether the employees of Cellular            One  of Boston (COB) were  acting as government  agents.  The            case,  for our purposes,  begins on September  13, 1995, when            employees of  Southern New  England Telephone  Company (SNET)            and  Cellular One  of Rhode Island  (CORI) informed  the U.S.            Secret Service  that  a disproportionately  large  number  of            international telephone calls were being made from a cellular            phone (or phones) located in Cranston, Rhode Island.                                         -6-                                         -6-                      The  Secret  Service, through  Special  Agent James            Barnard,  called CORI the next day (September 14) for further            information  and talked  to Dan  Mott, a  service technician.            Mott told Barnard  that a number  of the international  calls            had been made with MINs which were not in the calling area to            which  the  MINs were  ordinarily  designated.   Barnard  was            further  informed  by Mott  that  the calls  were  being made            through one cellular phone location.   Barnard asked if  Mott            had any equipment that  could pinpoint the exact site  of the            calls; Mott said that he did not have such equipment.                      On  September 14,  1995, Barnard called  the Secret            Service  Office in  Boston and  inquired whether  it had  any            site-location equipment.  He  was told that it did  have such            equipment  but that it was  not available.   Barnard was also            told that COB might be able to help him.                      Barnard  called COB later  the same  day (September            14) and talked to  Ron Anderson.  He explained  the situation            and asked if COB  had equipment that could locate  the source            of  the  cloned calls.    Barnard advised  Anderson  that COB            customers  were among  those being  defrauded by  the cloning            operation.  Anderson told Barnard that COB had equipment that            would help locate the exact source  of the calls, but that he            would  have  to check  with  COB's  legal department  to  see            whether the equipment could  be used in Rhode Island.   After            being  told  by  Anderson  that COB's  customers  were  being                                         -7-                                         -7-            defrauded, COB's legal  department advised Anderson that  the            tracking equipment could be used in Rhode Island.  Instead of            calling Barnard back as promised,  Anderson and two other COB            employees went  to Cranston,  Rhode Island, the  afternoon of            September 14 in a van carrying the tracking equipment.                        The  frequencies  used  to make  the  international            calls  were  obtained by  Anderson  from SNET.    Using these            frequencies,  Anderson and his  crew proceeded in  the van to            the general source area of the calls.  The tracking equipment            was  then put into operation.  Anderson and the two other men            (Dan Valios  and Rick  Wade) monitored the  frequency of  the            cellular  phone   calls  and   also  listened  to   telephone            conversations.     Wade  testified   that  they   could  have            determined the source of the phone calls without listening to            the  phone  conversations, but  that  the  audio interception            established that the tracking equipment was working properly.            He also testified that the intercepted conversations were not            in English and that none of those in the van understood  what            was being said.  After driving around Cranston for about half            an  hour,  the tracking  equipment  pointed  to two  adjacent            houses as the probable source site.   Wade got out of the van            and using a hand-tracking device pinpointed the source of the            calls  as the left side of  the first floor of a multi-family            dwelling with the address of 156-158 Woodbine Street.                                           -8-                                         -8-                      Anderson  called Agent  Barnard  after  the  source            phone site had  been pinpointed and informed Barnard  of what            had  been done.   The  following day,  September 15,  Barnard            applied for and obtained a warrant to search the apartment on            the  left  side  of  the building  at  156  Woodbine  Street,            Cranston,  Rhode  Island.     The  warrant  was  executed  on            September  15.   Federal  agents arrested  defendants on  the            premises and seized a number of cellular telephones, computer            equipment and other evidence of the cloning operation.                                      THE ISSUES                                      THE ISSUES                                      __________                      Before we address the  main issues -- whether COB's            employees were acting as  government agents, and the legality            of the search warrant -- we consider two issues raised by the            government.   The  first  is the  government's argument,  not            raised in the district  court, that because neither defendant            had a privacy interest in the apartment searched, neither had            standing to  challenge  the legality  of  the warrant.    The            government  argues that it  had no duty  to assert a  lack of            privacy interest  below because defendants had  the burden of            proving it.  We are reluctant to allow the government to trap            an unwary defendant by raising a lack of privacy interest for            the first time on  appeal unless it is absolutely  clear that            the  defendant  had  no  privacy interest  in  the  premises,            vehicle, or container searched.  See United States  v. Soule,                                             ___ _______________________                                         -9-                                         -9-            908  F.2d  1032, 1034-36  (1st Cir.  1990); United  States v.                                                        _________________            Miller, 636 F.2d 850, 853-54 (1st Cir. 1980).            ______                      This is not such  a case.  The following  facts can            be fairly found or inferred from the record:  Defendant Peraz            leased the premises.  He  and defendant Alzamora were friends            or, at least,  partners in  crime.  Alzamora  moved into  the            apartment  where the  fraudulent  phone calls  were made  and            remained there  several  days with  the blinds  drawn.   Both            defendants  were  in  the  apartment  when  the  warrant  was            executed.   These facts are  not sufficient for  us to decide            the privacy question one way or the other.                      In  Combs v.  United States,  408 U.S.  224, 226-27                          _______________________            (1972),  the Court held that  where the court  of appeals had            found  no  standing and  the  government  had not  challenged            defendant's standing in the  district court, the issue should            be remanded to the district court so the defendant could have            an  opportunity  to  show  standing.    In United  States  v.                                                       __________________            Bouffard,  917  F.2d  673  (1st Cir.  1990),  the  government            ________            conceded  standing in the district court and on appeal, but a            privacy  interest was not apparent  on the record.   We held:            "Considerations  of fundamental  fairness  warrant remand  in            order to afford  the defendant an  opportunity to attempt  to            establish the requisite expectation of privacy."  Id. at 677.                                                              ___            There are cases in other circuits that are  directly critical            of  the  government's  failure  to address  standing  in  the                                         -10-                                         -10-            district court.  In  United States v. Dewitt, 946  F.2d 1497,                                 _______________________            1500 (10th  Cir.  1991), the  court  held:   "The  government            offers  no excuse for its failure to raise the standing issue            in a timely fashion at the suppression hearing.  Accordingly,            the argument is  waived."   The court relied  on Steagald  v.                                                             ____________            United  States, 451  U.S. 204  (1981).   In United  States v.            ______________                              _________________            Morales,  737  F.2d  761,   763  (8th  Cir.  1984)  (footnote            _______            omitted), the Eighth Circuit held:                      Despite appellant's failure to prove that                      he  had  a   legitimate  expectation   of                      privacy  in room 141, we nonetheless find                      that   because    of   the   inconsistent                      positions  the  government  has taken  at                      trial    and    on   appeal    concerning                      appellant's    alleged   disclaimer    of                      knowledge of the key, the  government has                      lost its right  to challenge  appellant's                      standing.                        If the privacy question was vital, we would, at the            very  least,  remand  to   the  district  court  for  factual            findings.    Because, however,  it  is  not, we  will  assume            standing for purposes of this appeal.                      The other argument  the government makes is  purely            legal:     There   was   no  violation   of  the   Electronic            Communications  Privacy  Act because  locating  a transmitter            broadcasting   on  a  radio  frequency  does  not  constitute            "intercepting"   a   communication   under   the   Electronic            Communications Privacy Act (ECPA),  18 U.S.C.   2510  et seq.                                                                  ______            We  are  aware that  there are  cases  holding that  users of            cellular phones  are not  protected by the  Fourth Amendment.                                         -11-                                         -11-            See In  Re Askin, 47  F.3d 100, 104  (4th Cir.  1995); United            ___ ____________                                       ______            States v. Smith, 978 F.2d  171, 174-76 (5th Cir. 1992).   The            _______________            operative facts  in these  cases, however, took  place before            the provision in 18 U.S.C.   2510(1) expressly excluding  the            radio portion of a  cordless telephone communication from the            protection of the Act was deleted by  amendment in 1994.  See                                                                      ___            Pub.  L. No. 103-414    202(a)(1).  Moreover,  in the instant            case,  more took  place than  just locating  the source  of a            radio  frequency;  those  tracking  the  broadcast  frequency            listened to the actual conversations being transmitted.  This            appears to  be covered by the Act.  We see no point, however,            in  deciding  what  appears  to  be  a  thorny  question  not            necessary to our  decision.  We  follow the district  court's            lead and assume, without deciding, that the Act applies.               A)  Issues Raised by Defendants            A)  Issues Raised by Defendants                ___________________________                      The  first  issue  is  whether  the   employees  of            Cellular One of Boston (COB) were acting as government agents            when they  tracked the radio frequency of the cloned cellular            phone.  Under 18  U.S.C.   2511(2)(a)(i), it is  not unlawful            for  the  employee  of  a  provider  of  wire  or  electronic            communication  services  whose  facilities are  used  in  the            transmission  of  wire   or  electronic  communication,   "to            intercept, disclose, or use  that communication in the normal            course of his employment while engaged in any  activity which            is a necessary incident to the rendition of his service or to                                         -12-                                         -12-            the protection of the  rights or property of the  provider of            that  service . . . ."  The following subsection, (2)(a)(ii),            authorizes   such   employees   "to    provide   information,            facilities,  or technical assistance to persons authorized by            law to intercept wire, oral, or electronic communications . .            . ."                      It  is evident  that COB's  employees, on  learning            from  Secret Service  Agent Barnard  that COB  customers were            being  defrauded by  the cloning  operation, had  a statutory            right to track the  radio frequency of the cloned  phone.  If            the  COB  employees  were  government  agents,  however,  the            requirements of the Fourth Amendment would override statutory            authority.                      The question remains, were  the employees acting as            agents of  the government?   See United  States v.  Mendez-de                                         ___ ____________________________            Jesus,  85 F.3d 1, 2-3 (1st Cir. 1996) (Fourth Amendment does            _____            not  apply to private  action unless  private party  acted as            agent or instrument of government.)                      Various  tests  have   developed  for   determining            whether a  private entity  has acted as  a government  agent.            For example, see United  States v. Pierce, 893 F.2d  669, 673                         ___ ________________________            (5th  Cir.  1990).   The Sixth  Circuit  in United  States v.                                                        _________________            Lambert,  771 F.2d 83 (6th Cir.  1985) has stated the rule as            _______            follows:                      A person  will not be acting  as a police                      agent  merely  because  there   was  some                                         -13-                                         -13-                      antecedent  contact  between that  person                      and  the   police.    United   States  v.                                            ___________________                      Coleman,  628 F.2d at  965.   Rather, two                      _______                      facts must  be shown.  First,  the police                      must   have  instigated,   encouraged  or                      participated in the search.  Id.  Second,                                                   ___                      the individual must  have engaged in  the                      search with  the intent of  assisting the                      police in their investigative efforts.            Id. at  89.   The Ninth  Circuit has held  that, "two  of the            ___            critical factors  in the 'instrument or  agent' analysis are:            (1) the government's knowledge  and acquiescence, and (2) the            intent of the party performing the search."  United States v.                                                         ________________            Walther, 652 F.2d 788, 792 (9th Cir. 1981).  In United States            _______                                         _____________            v. Attson, 900  F.2d 1427,  1433 (9th Cir.  1990), the  Ninth            _________            Circuit added a gloss to its rule:                      [A]   party  is  subject  to  the  fourth                      amendment only when he or she has  formed                      the necessary  intent  to assist  in  the                      government's investigative or administra-                      tive functions;  in other words,  when he                      or she  intends to engage in  a search or                      seizure.  However,  under this test,  the                      fourth amendment will  not apply when the                      private party  was  acting for  a  reason                      that   is   independent    of   such    a                      governmental purpose.            In United States  v. Smythe,  84 F.3d 1240,  1243 (10th  Cir.               ________________________            1996), the  Tenth Circuit  requires that the  government must            "affirmatively  encourage or  instigate the  private action."            This is determined by "the totality of the circumstances."                      We think that any  specific "standard" or "test" is            likely to be oversimplified or too general to be of help, and            that all of the  factors mentioned by the other  circuits may                                         -14-                                         -14-            be pertinent in different  circumstances:  the extent  of the            government's role  in  instigating or  participating  in  the            search, its  intent and  the degree  of control  it exercises            over  the search  and the  private party,  and the  extent to            which the private party aims primarily to help the government            or to serve its own interests.                      Our review of the  suppression hearing evidence and            the  district court's  findings of  historical facts  is made            through  a  lens adjusted  for clear  error  viewing.   It is            probably  true that there would  have been no  search made by            COB  employees were it not for Agent Barnard's telephone call            inquiring  about equipment  for  locating the  source of  the            transmissions and informing COB that its customers were being            defrauded.  But there is  no evidence that Barnard authorized            the search  or even knew about it.   COB employee Anderson in            answer  to  Barnard's query  about  whether  COB had  source-            location equipment said  that it  did, but he  would have  to            check with the legal department to see if it could be used in            Rhode Island.  Anderson  told Barnard that he would  call him            back.   He did  not do  so.   Instead, he  and the other  two            employees  went  to  Cranston,   Rhode  Island,  and  started            tracking the radio  signals on their  own.  Their  motivation            was that COB's  customers were being defrauded.   Barnard was            ignorant  of what was transpiring.  COB had a statutory right            to investigate  and  search  for the  sources  of  the  radio                                         -15-                                         -15-            transmitted  phone calls.   It  had a  legitimate independent            motivation for its  search:   to prevent a  fraud from  being            perpetrated  on its  customers.   That is  the purpose  of 18            U.S.C.   2511(2)(a)(i) and (ii).                      Our combined clear error  review of the  historical            facts  and de novo review of  the district court's conclusion                       __ ____            compels a holding that there was no government action in this            case.2            B)  The Affidavit and Search Warrant            B)  The Affidavit and Search Warrant                ________________________________                      We next consider defendant's claim that the search-            warrant affidavit submitted  by Special Agent  Barnard lacked            probable cause.  Keeping  in mind the standard of  review, we            have examined the eight-page affidavit meticulously.                      Paragraph 1  identifies  the affiant  and  explains            that  his  routine  duties  include   "the  investigation  of            violations of federal laws pertaining to the unauthorized use            of access devices."  The  next paragraph, (2), describes  the            premises to be searched.  This will be discussed in detail in            the next part of the opinion.                                            ____________________            2.  Ornelas called for de novo review of the district court's                _______            __ ____            conclusion that a given  set of historical facts rose  to the            level of probable  cause.  116 S. Ct. at 1659.  The Court did            not specifically  decide whether  a similar de  novo standard                                                        __  ____            should  be  applied  to the  legal  question  at  issue here:            whether  a private entity has acted as a government agent for            Fourth  Amendment purposes.   Because the  defendants' appeal            fails  even under  the  more searching  de novo  standard, we                                                    __ ____            assume  without deciding  that the  Ornelas de  novo standard                                                _______ __  ____            applies.                                         -16-                                         -16-                      Paragraph  3 states  that  the  government  (Secret            Service) has been conducting  an investigation of a telephone            fraud scheme in  Cranston, Rhode Island.   The next paragraph            gives the names  and addresses of  individuals with whom  the            affiant had spoken in the course of the investigation.                      Paragraph  5 explains the use of  MIN numbers as an            access device,  which we  have already  covered in the  Facts            section  of  this  opinion.    In  paragraph 6,  the  affiant            expresses his belief that individuals are using telephones at            the   location  described   in  paragraph   2  to   commit  a            telecommunications fraud  scheme.  This paragraph  goes on to            state  that individuals  have  "captured" valid  MIN and  ESN            numbers "into mobile telephones" "and are using these numbers            fraudulently to  make telephone calls internationally  by way            of telephone credit card account numbers."                      Paragraph 7 explains  that the MIN/ESN  combination            is  programmed on  "Erasable  Programmable Read  Only  Memory            (EPROM)",  located  on a  computer  chip  within the  general            circuitry of the telephone.  Paragraph 8 describes a cellular            telephone cloning operation.  This has already been set forth            in the Facts section of this opinion.                      Paragraph 9 describes  a "call  sell" operation  by            which a  customer pays a  fee for making  long-distance phone            calls  which are  billed  to the  stolen credit  card account            numbers.   Paragraph 10 recites that  long-distance calls are                                         -17-                                         -17-            being  made  by unidentified  individuals  from  156 Woodbine            Street,  Cranston,  Rhode  Island,  from   "cloned"  cellular            phones.  It is then stated:                      After accessing a  long distance  carrier                      the  individual  enters  a   credit  card                      number to which to bill the international                      call.     Subsequently,   the  individual                      defrauds the mobile telephone  company of                      the revenues  due them for  air time  and                      defrauds the issuing credit  card company                      for revenues  due them  for  tolls.   The                      defrauded company will have to  issue the                      subscriber  a  credit for  the fraudulent                      billing, thereby,  incurring the monetary                      loss.                      Paragraph 11  states in effect that  Secret Service            Agent John Enright  received information  from Cheryl  Maher,            Fraud Manager of Cellular  One Rhode Island, that individuals            were using "cloned" phones  "to access long distance carriers            such  as MCI,  Sprint  and AT&T  and  are using  credit  card            telephone numbers to make international calls."  Paragraph 12            recites a telephone  call received by Agent  Barnard from Jan            Mott, a  Cellular One technician, giving  him essentially the            same  information  recited in  paragraph  11.   Paragraph  13            recites   further  information  received   from  Mott.     It            concludes:  "Mott  stated that since the telephone calls were            mostly being made from  one site (site 29) it  indicated that            the caller was not mobile but was stationary."                      Paragraph  14 states  that on  September 14,  1995,            Agent  Barnard  (affiant)  spoke with  Secret  Service  Agent            Rodriguez  of the  Financial  Crimes Division  of the  Secret                                         -18-                                         -18-            Service.    Rodriguez told  him that  when  a caller  using a            cellular  phone accesses a  credit card company  such as MCI,            Sprint  or AT&T  through an  access number,  the credit  card            number  used is not recorded  by Cellular One.   Paragraph 15            recites briefly the same facts we have described fully in the            government-agency section of this opinion.                      Paragraph 16 states that  Rick Wade, an employee of            Cellular  One, had  its telephone  switch office  monitor the            international telephone  calls from Cranston,  Rhode Island.3            This  established that  twenty-five  telephone  numbers  were            identified as originating from 156 Woodbine Street, Cranston,            Rhode Island.   The total  time of the  calls was  151 hours,            normally billed at $.75 per minute.  The calls continued over            a  24-hour period.   Paragraph  17 states  that Maher  (Fraud            Manager  of Cellular  One  Rhode Island,  see paragraph  11),            provided a  partial list  of telephones  that appear to  have            been cloned and are being used in the Cranston, Rhode Island,            area.  The numbers are listed.                      Paragraphs 18, 19, and 20 recite the experience and            training of  the  affiant.   Paragraph  21 is  the  affiant's            "probable cause" statement.                                            ____________________            3.  It  is clear  from  Wade's testimony  at the  suppression            hearing  that  this  was  done  after  the  apartment at  156                                            _____            Woodbine  Street had  been pinpointed  as  the source  of the            cloned calls.                                         -19-                                         -19-                      Based on our  de novo review  of the affidavit  and                                    __ ____            the  facts leading  to the  district court's  conclusion that            there was probable cause  to issue the warrant, we  hold that            there was probable cause for issuing the search warrant.                      The  next issue  is  the validity  of the  warrant.            Defendant claims  that the  warrant was defective  because it            inaccurately described the place to be searched.  The warrant            affidavit described the premises to be searched as follows:                      I make  this  affidavit in  support of  a                      search warrant for the two  bedroom first                      floor apartment of the  residence located                      at 156 Woodbine  Street, Cranston,  Rhode                      Island,  further  described  as  a  three                      story, wood framed building with a yellow                      front, brown trim and  brown sides.   The                      number 156 appears on  a post next to the                      door  on  the  left   as  one  faces  the                      building.   On  the  first floor  are two                      apartments which are accessed through the                      door marked 156.  The apartment for which                      this warrant is sought is the two bedroom                      apartment on the left  side of the  first                      floor.            The pertinent part of the search warrant states:                      In the Matter of the Search of                      (Name,  address  or brief  description of                      premises,  property  or  premises  to  be                      searched)                      Two bedroom first floor                      apartment  of  the   residence     SEARCH                                                         SEARCH                      WARRANT                      WARRANT                      located at 156 Woodbine     CASE NUMBER:                       St.,  Cranston,  RI,  further     1:95-M-                      020816                      described as a three story,                      wood framed building with                      a yellow front, brown                      trim and brown sides.                                         -20-                                         -20-                      TO:             Any Special Agent of  the                           ____________________________________                      Secret  Service       and  any Authorized                      _____________________                      Officer of the United States                      Affidavit(s) having been  made before  me                      by        James  M. Barnard       who has                         ______________________________                      reason to believe that ____ on the person                      of  or   x   on the property  or premises                             ____                      known   as   (name,  description   and/or                      location)                       Two bedroom first floor apartment  of the                      residence  located  at 156  Woodbine St.,                      Cranston,  RI,  further  described  as  a                      three story, wood framed building  with a                      yellow front, brown trim and brown sides.                      The number 156 appears  on a post next to                      the  door on  the left  as one  faces the                      building.   On  the  first floor  are two                      apartments which are accessed through the                      door marked 156.  The apartment for which                      this warrant is sought is the two bedroom                      apartment on the left  side of the  first                      floor.                      Defendants argue that the  warrant did not meet the            particularity  requirement  of the  Fourth  Amendment.   They            point  out correctly that the number 156 was on the left post            at the top of the stairs  leading to the entrance landing and            that the number 158  was on the right post at  the top of the            stairs.   It is stated in defendant's brief at page 26:  "But            the  warrant does not indicate which  direction one must face            in  determining  right from  left."   This  statement  is not            correct.  The warrant states:   "The number 156 appears on  a            post next to the door on the left as one faces the building."                                  _____________________________________            (Emphasis added).                        Defendant  also argues  that,  because  of the  two            different address numbers, those executing the warrant should                                         -21-                                         -21-            have called  the Magistrate and clarified  what apartment was            to  be  searched.   The  record  of  the suppression  hearing            establishes conclusively that Agent Barnard knew exactly what            apartment was to  be searched and  proceeded directly to  it.            Barnard testified in effect as follows.                      There  were  two  entrance doors  to  the  building            containing  the apartment  to be  searched.   There  were two            posts  on  either  side of  the  steps  when you  get  to the            entrance landing.   The post  on the right-hand  side of  the            steps as  one faced the  building had the  number 158 on  it.            The  post on  the left  side carried  the number  156 on  it.            Barnard entered  the building through the  156 door entrance.            He took  a short  step  to the  right  and proceeded  down  a            hallway to an  apartment on the left side of  the first floor            of the  building.  This apartment had  the number 156A on the            door.  This was the apartment that was searched.                      One of defendants' arguments is that the defendants            actually lived at 158  Woodbine Street, not 156.   The number            on  the door of the apartment searched -- 156A -- effectively            refutes this claim.                      We find and rule  that an objective law enforcement            officer would not  be confused by  the two different  address            numbers and that the  particularity requirement of the Fourth            Amendment was met.  The  only confusion was that sown  by the            attorneys for the defendants at the suppression hearing.                                         -22-                                         -22-                      Even, however, if the  address given in the warrant            may have been  somewhat suspect our circuit case  law teaches            that any  uncertainty raised by  the two address  numbers did            not invalidate the search warrant.                      The leading case in this circuit on the adequacy of            the  description of  the  location to  be searched  is United                                                                   ______            Statesv. Bonner, 808 F.2d 864 (1st Cir. 1986).  In Bonner  we            _______________                                    ______            stated:                      The manifest purpose of the particularity                      requirement of the Fourth Amendment is to                      prevent wide-ranging  general searches by                      the police.                           The   test   for   determining   the                      adequacy  of  the   description  of   the                      location  to be  searched is  whether the                      description is sufficient "to  enable the                      executing officer to locate  and identify                      the premises with reasonable  effort, and                      whether    there   is    any   reasonable                      probability that another premise might be                      mistakenly searched."            Id.  at 866  (citations omitted).   In  Bonner the  affidavit            ___                                     ______            contained a detailed physical  description of the premises to            be  searched and  its  address.   The  address, however,  was            omitted  from the  warrant.   We upheld  the validity  of the            warrant, stating:                      We hold  that  the Bonner  residence  was                      described with sufficient  particularity,                      and    although     the    address    was                      inadvertently   omitted,  there   was  no                      reasonable   probability   that   another                      premises  might  be mistakenly  searched;                      thus, the search warrant was valid.                                         -23-                                         -23-            Id. at 867.  Three subsequent cases have relied on the Bonner            ___                                                    ______            analysis and holding:   United States v. Cunningham,  No. 96-                                    ___________________________            1828  (1st Cir. May 19, 1997); United States v. Estrella, 104                                           _________________________            F.3d 3,  9 (1st Cir. 1997); United  States v. Hinds, 856 F.2d                                        _______________________            438, 441 (1st Cir. 1988).  This precedent seals the issue.                        We are  aware, of  course, that the  district court            decided  the warrant issue on  the basis of  United States v.                                                         ________________            Leon, 468  U.S.  897  (1984).    We do  not  reach  the  Leon            ____                                                     ____            approach,  and  therefore,  there   is  no  need  to  discuss            defendant'sclaim oflack ofgood faithby thesearching officers.                      Defendant  also  claims  that  the  district  court            abused  its  discretion  when  it raised  the  issue  of  the            accuracy  of Cellular  One's Boston  Tracking Equipment,  but            then  denied   defendant's  motion  to  have   the  equipment            independently  examined.    The  record  of  the  suppression            hearing  discloses that  this is  not exactly  what happened.            The district court questioned COB employee Wade about how the            source-location was determined.   She asked Wade "to tell  us            how  the equipment works in order for  you to be able to make            the determination  in laymen's  terms."  Wade  then explained            what he  did and how  the equipment worked.   The court  then            asked  further questions about what Wade did, and what he did            or did not  tell Barnard.   The court's  examination of  Wade            ended with the following colloquy:                      Q.   So that before  the warrant  issued,                      you  hadn't shown  the  equipment to  the                                         -24-                                         -24-                      Government agents and  explained how  you                      were able to isolate the signal?                      A.   I don't believe I did.                      Q.   Did they  ever ask you what  kind of                      equipment you  were going  to  use to  do                      this?                      A.   No.                      Q.   Did   they   ever   ask    you   the                      reliability  of  the  equipment you  were                      going to use?                      A.   No.                      We construe the court's  questions, not as evincing            doubt  on  its part  as to  the  reliability of  the tracking            equipment,  but  as   seeking  what  information  about   the            equipment  had been given  to the government,  which was very            little.                      We agree  with the  district court that  the motion            came  too late  for consideration.   Under  Fed. R.  Crim. P.            16(a)(1)(C)  defendant had  a right  to inspect  the tracking            equipment prior  to trial.  Clearly,  defendant never thought            about  inspecting  the  equipment  until   the  court's  last            question to Wade.   This was too late.   We have examined the            record carefully and  there is nothing  to even suggest  that            the  tracking equipment was unreliable  in any way.   We hold            that the  district court did  not err in  denying defendant's            motion.                      The final issue is whether the district court erred            in  determining  the amount  of  loss.   The  district  court                                         -25-                                         -25-            ordered each defendant  to pay restitution  in the amount  of            $190,275.33.    This  sum  represented the  amount  that  the            defrauded  telephone companies  would have  been paid  if the            calls had been  made legitimately.   Under U.S.S.G.    2B1.1,            application note 2 states in pertinent part:  "Loss means the            value  of   the  property   taken,  damaged,   or  destroyed.            Ordinarily,  when property is taken  or destroyed the loss is            the fair market value of  the particular property at  issue."            The  pertinent part of  note 3 states:   "For the purposes of            subsection  (b)(1),  the loss  need  not  be determined  with            precision.  The court need only make a reasonable estimate of            the loss, given the available information."                      Defendants   assert  that   the  amount   used  was            erroneous because it "reflects both the costs associated with            processing  the calls  and  a profit  margin for  the various            cellular  phone carriers and providers."   No cases are cited            for this novel proposition.  Defendants rely on the following            sentence  in application note 2  of U.S.S.G.    2B1.1:  "Loss            does not include the interest that could have been earned had            the funds not been stolen."                      We  are not persuaded.  We do not think that profit            can be equated with interest.  Profit is an ingredient of the            fair  market value of goods or  services that can be sold and            purchased.                                           -26-                                         -26-                      We  discern no  error, plain  or otherwise,  in the            district court's determination of the amount of restitution.                      The judgment of the district court is affirmed.                                                            affirmed.                                                            _________                                         -27-                                         -27-
