USCA1 Opinion
United States Court of Appeals
For the First Circuit
For the First Circuit
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No. 96-1244
UNITED STATES OF AMERICA,
Appellee,
v.
THAKHONE KHOUNSAVANH,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Francis J. Boyle, Senior U.S. District Judge]
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Before
Stahl, Circuit Judge,
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Bownes, Senior Circuit Judge,
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and Lynch, Circuit Judge.
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Jennifer Petersen, with whom Karl R.D. Suchecki and Petersen &
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Suchecki were on brief, for appellant.
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Sheldon Whitehouse, United States Attorney, with whom Zechariah
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Chafee, Assistant United States Attorney, was on brief, for appellee.
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May 16, 1997
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BOWNES, Senior Circuit Judge. Defendant Thakhone
BOWNES, Senior Circuit Judge.
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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
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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
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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.)
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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."
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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
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In reviewing a denial of a suppression motion, the
district court's ultimate legal conclusion, including the
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determination that a given set of facts constituted probable
cause, is a question of law subject to de novo review. See
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Ornelas v. United States, 116 S. Ct. 1657, 1659 (1996);
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United States v. Zayas-Diaz, 95 F.3d 105, 111 n.6 (1st Cir.
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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
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they are clearly erroneous. See id. at 1663; Zayas-Diaz, 95
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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
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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
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1661-63.
Analysis
Analysis
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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.
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See Ornelas, 116 S. Ct. at 1663; Payton v. New York, 445 U.S.
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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
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States Dist. Court, 407 U.S. 297, 318 (1972), the probable
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cause requirement is rigorously adhered to. See Arizona v.
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Hicks, 480 U.S. 321, 326-27, 329 (1987). "Probable cause
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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
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States v. Schaefer, 87 F.3d 562, 565 (1st Cir. 1996) (quoting
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United States v. Aguirre, 839 F.2d 854, 857-58 (1st Cir.
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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
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Illinois v. Gates, 462 U.S. 213, 238 (1983). "[P]robable
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cause need not be tantamount to proof beyond a reasonable
doubt. . . . Probability is the touchstone." Aguirre, 839
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F.2d at 857 (internal quotation marks and citations omitted).
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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.
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See Gates, 462 U.S. at 244 n.13 ("[P]robable cause requires
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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
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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-
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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.
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Ohio, 392 U.S. 1, 21-22 (1968).
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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
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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
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'credible' or his information 'reliable' [the veracity
prong]." Aguilar v. Texas, 378 U.S. 108, 114 (1964);
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Spinelli v. United States, 393 U.S. 410, 416 (1969). Gates
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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.
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Gates replaced the two-pronged framework of Aguilar and
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Spinelli with the totality of the circumstances test.
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While eschewing a rigid adherence to each of the
Aguilar-Spinelli factors, Gates maintained the relevancy of
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the considerations set forth in those cases. The Gates Court
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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)
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(quoting Johnson v. United States, 333 U.S. 10, 17 (1948)).
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Nor did Gates intend for trial and appellate courts to
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abdicate their responsibility to uphold the Fourth
Amendment's probable cause requirement. See Hicks, 480 U.S.
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321. We have never read Gates as a total abandonment of
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standards and rules of law in determining whether the state
may intrude on a citizen's privacy. Nor does Gates mean that
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reviewing courts are writing on a clean slate when we
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8
confront the question of when an informant's information
rises to the level of probable cause. The Gates Court agreed
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that the Aguilar and Spinelli factors, including "an
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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
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F.3d at 566 (the Aguilar and Spinelli factors are "highly
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relevant," even after Gates).
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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).
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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
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been sufficiently reduced by corroborative facts and
observations." 2 W. LaFave, Search and Seizure: A Treatise
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on the Fourth Amendment 168 (3d ed. 1996) ("LaFave")
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(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.
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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
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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
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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
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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
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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
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probable cause to search the apartment. We disagree. A per
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se rule is not appropriate in the context of protecting
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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
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(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
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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.
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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.
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See United States v. Caggiano, 899 F.2d 99, 102 (1st Cir.
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1990) (a determination of probable cause "cannot be based on
hard certainties and rigid rules"); cf. Richards v.
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Wisconsin, 117 S. Ct. 1416, 1421 (1997) (rejecting a per se
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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.
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California, 374 U.S. 23, 33 (1963) (internal quotation marks
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omitted), with due consideration to the totality of all the
circumstances in that particular case, Gates, 462 U.S. at
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238. See also Ornelas, 116 S. Ct. at 1661. "[T]he fact that
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[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
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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
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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
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2. The complaint contained additional facts but those were
not part of the affidavit. See infra at 20 & n.4.
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substantial basis for crediting the hearsay.'" Gates, 468
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U.S. at 244-45 (quoting Jones v. United States, 362 U.S. 257,
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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.
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This case contains almost the exact same fact
pattern as in United States v. Garcia, 983 F.2d 1160 (1st
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Cir. 1993). In Garcia, the defendant had moved to suppress
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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
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than ideal: the detective was able to watch the informant
enter and leave the building through its front door, but did
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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
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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.
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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
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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
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though the affidavit there contained one fact that the
present affidavit did not: the detective in Garcia described
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the informant as "reliable." This is a distinction without a
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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.
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Foree, 43 F.3d 1572, 1576 (11th Cir. 1995) (internal
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quotation marks omitted); see Gates, 462 U.S. at 239 ("An
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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
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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
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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
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States v. Cruz Jimenez, 894 F.2d 1, 3 (1st Cir. 1990)
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(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
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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
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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,
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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.
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Fuccillo, 808 F.2d 173, 177 (1st Cir.), cert. denied, 482
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U.S. 905 (1987) (quoting Leon, 468 U.S. at 920 n.20).
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"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
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926). In Fuccillo, we held that the officers "were reckless
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in not including in the affidavit information which was known
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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
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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
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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
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by probable cause particularized with respect to that
person." Ybarra v. Illinois, 444 U.S. 85, 91 (1979); United
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States v. Sepulveda, 102 F.3d 1313, 1315 (1st Cir. 1996).
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"[A] person's mere propinquity to others independently
suspected of criminal activity does not, without more, give
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or easily accessible to them." Id. at 178. There, the
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officers "simply did not 'take every step that could
reasonably be expected of them.'" Id. (quoting Massachusetts
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v. Sheppard, 468 U.S. 981, 989 (1984)). In this case, it is
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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.
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rise to probable cause to search that person." Ybarra, 444
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U.S. at 91; Sepulveda, 102 F.3d at 1315. The factors
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discussed supra, while providing probable cause to believe
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that the premises contained contraband or evidence of a
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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
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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
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States v. Caggiano, 899 F.2d 99, 102-03 (1st Cir. 1990). In
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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
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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
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cause to believe that a search of the defendant's person
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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.
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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).
________________
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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
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reviewing court to ensure compliance with Fourth Amendment in
particular case).
Affirmed.
Affirmed.
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