United States v. Jordan

• Court: Court of Appeals for the First Circuit
• Decided: July 16, 1993
• Docket: 92-2332
• Status: Published

Opinion

USCA1 Opinion

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 &  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
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                    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

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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

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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
          _____________     ________

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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,"

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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

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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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