United States v. Meuse

Opinion

USCA1 Opinion

[NOT FOR PUBLICATION]

                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT


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          No. 94-2135



                                    UNITED STATES,



                                      Appellee,



                                          v.



                                    JOHN A. MEUSE,



                                Defendant - Appellant.



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                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                          FOR THE DISTRICT OF MASSACHUSETTS



                       [Hon. Mark L. Wolf, U.S. District Judge]
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                                 ____________________



                                        Before



                          Boudin and Lynch, Circuit Judges,
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                        and Schwarzer,* Senior District Judge.
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                                _____________________



               Annemarie Hassett, Federal Defender Office, for appellant.
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               Gary S.  Katzmann, Assistant  United  States Attorney,  with
               _________________

          whom  Donald K. Stern, United  States Attorney, was  on brief for
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          appellee.


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                                   August 2, 1995

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          *Of the District of Northern California, sitting by designation.



Per Curiam.  Defendant John A. Meuse pleaded guilty  to
                    Per Curiam
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          a charge of illegally possessing firearms as a felon (18 U.S.C.  



          922 (g)(1)).  Meuse appeals his conviction on the ground that the



          search  that led  to the  discovery of  the firearms  was illegal



          because  the affidavit  supporting the  search warrant  failed to



          establish  the likelihood that the items sought would be found in



          his  residence.  The items sought were burglary tools and jewelry



          stolen  from   the  home  of  Genevieve   DiCarlo  ("the  DiCarlo



          burglary").  Following  his indictment,  Meuse moved  to suppress



          all  items recovered  during the  search of  his apartment:   the



          three  firearms  referred  to   in  the  indictment,  along  with



          ammunition,  a stun gun, and other  instrumentalities of an armed



          robbery and burglary gang.  (None of the jewelry from the DiCarlo



          burglary was recovered at Meuse's apartment.)  The district court



          denied  the motion,  finding that  the officers had  proceeded in



          good faith reliance  on a  facially valid warrant,  and that  the



          information in the affidavit supported  the magistrate's decision



          that there was a  fair probability that evidence of  a particular



          crime, including jewelry stolen in the DiCarlo burglary, would be



          found in Meuse's residence.  We affirm the district court.



                                  STANDARD OF REVIEW
                                  STANDARD OF REVIEW



                    This court has jurisdiction under 28 U.S.C.   1291.  In



          reviewing  a district court's  determination that the  face of an



          affidavit stated  sufficient probable  cause to support  a search


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warrant,  we  review only  for clear  error.1   United  States v.
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          Garc a, 983 F.2d 1160, 1167 (1st Cir. 1993), citing United States
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          v.  Nocella, 849 F.2d  33, 39  (1st Cir.  1988); see  also United
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          States  v. Taylor, 985 F.2d 3, 5 (1st Cir. 1993) (reviewing court
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          does  not  undertake  de  novo review  of  sufficiency  of search
                                __  ____



          warrant affidavit,  but accords  great deference to  the probable



          cause determination).



                                      BACKGROUND
                                      BACKGROUND



                    The  warrant was  issued  on December  10,  1991, by  a



          clerk-magistrate of  the Commonwealth of Massachusetts.   The 14-



          page affidavit,  signed  by Massachusetts  State Trooper  Michael



          Grassia, stated in substance the following:



                    On December 2, 1991, Grassia, a ten-year veteran of the



          force,  attended a meeting  of police  officers from  a five-town



          area of  Massachusetts (Wakefield,  Malden, Revere,  Melrose, and



          Saugus).  The  purpose of the meeting was to  plan and coordinate



          strategy for solving  a series of armed robberies  and burglaries



          of homes  in that area.   Chief among the  suspects identified at

                              
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          1   Meuse  contends  that  the  "clear  error"  standard  is  not

          applicable here because the district court's determination of the

          sufficiency of the  underlying affidavit  was made  after a  non-

          evidentiary  hearing, citing  United  States v.  Falon, 959  F.2d
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          1143, 1147 (1st Cir. 1992).  In Falon, however, the issue was not
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          the  sufficiency  of  the   search  warrant  affidavit,  but  the
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          particularity of a  broadly worded search warrant,  which did not

          specifically incorporate  or attach the affidavit,  and which did

          not refer to  the criminal  offenses for which  the evidence  was

          sought.   We suggested that  de novo review  might be appropriate
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          when,  as there, the district  court makes a  purely legal ruling

          regarding  the  level  of  particularity  required  in  a  search

          warrant.   We added, however, that  when reviewing conclusions in

          the  nature of  fact  finding, we  would  apply the  clear  error

          standard.  Id. 
                     ___



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the meeting was  John Meuse.  One of  the Wakefield officers told



          Grassia that a Ford  van registered to Meuse had  been identified



          by witnesses as a vehicle  used in an armed robbery the  previous



          month.   Meuse subsequently called  the police to  report the van



          stolen; when  he was informed that  the police wanted to  talk to



          him about  an armed robbery,  however, he  refused to  go to  the



          police station to retrieve  the van, sending his attorney  in his



          place.  The Wakefield  officer told Grassia that the  only damage



          to  the van  was  a popped  ignition,  and that  everything  else



          appeared intact.   Meuse subsequently re-registered  the van with



          different license  plates.   Grassia  obtained other  information



          about Meuse at the meeting, including information about  his past



          criminal record.



                    Because the  crimes of  which Meuse and  his associates



          were   suspected   had   been   committed   on   Saturdays,   the



          representatives  of  the  various police  departments  agreed  to



          conduct a joint  surveillance of those suspects on  the following



          Saturday,  December 7,  1991.    At approximately  6:30  p.m.  on



          December 7th,  Grassia and the other  officers began surveillance



          at  several locations  in Revere  and Everett,  including Meuse's



          residence.   Earlier  that  afternoon, the  DiCarlo residence  in



          Melrose  was burglarized.   Taken  in the  burglary  were several



          hundred pieces of jewelry and a light green pillowcase.  Some  of



          the jewelry was in a white cardboard box.



                    That evening, at 8:00 p.m., a Monte Carlo registered to



          Robert  Stevens, another of the suspects in the Wakefield crimes,


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arrived at Meuse's residence.  Three men got out of Stevens'  car



          and walked into Meuse's apartment building, one carrying a light-



          colored  cloth bag,  and  the other  two  with valise-type  bags.



          Police  observed  the three  men  walking  around inside  Meuse's



          apartment.



                    An hour  later, at 9:00 p.m., police saw Ronald Ferrara



          enter  Meuse's  apartment, empty-handed.    Half  an hour  later,



          Ferrara came out, carrying a brown shopping bag.  Police officers



          followed Ferrara  to the parking lot of  a restaurant in a nearby



          town.   Ferrara entered another vehicle, talked to the driver for



          ten minutes, and  got out, still carrying  the shopping bag.   He



          then  drove to  an  adjoining parking  lot, and  pulled alongside



          Meuse's  van and  Stevens' Monte  Carlo, both  of which  had been



          followed  by  police  from  Meuse's apartment.    The  police saw



          Ferrara  hand what looked like  money into the  passenger side of



          the  Monte Carlo, after which  he shook hands  with the passenger



          and  walked back  to his  car, still  carrying the  shopping bag.



          Ferrara then entered  the restaurant, where he  stayed until 1:00



          a.m.



                    When Ferrara left the restaurant, he was accompanied by



          his wife.  Shortly thereafter, Ferrara was arrested for operating



          a motor vehicle with a suspended license.  An inventory search of



          his  car revealed a brown shopping bag containing over 100 pieces



          of jewelry and  a white  cardboard box, all  of which were  later



          identified by Mrs. DiCarlo as  the items stolen from her home  on



          December 7th.


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When Ferrara  was questioned at the  police station, he



          said he had been  at the restaurant the entire evening, from 7:30



          p.m. until 1:00 a.m.  He told police he had purchased the jewelry



          from  a friend of a  friend inside the  restaurant, but could not



          identify either the  friend or the seller of the  jewelry.  Later



          that  night, Ferrara's wife arrived at the police station to post



          bail  for Ferrara, and told police the  jewelry was hers.  At the



          time  the  police had  stopped  the  Ferrara  car, however,  Mrs.



          Ferrara said  that the jewelry in  the car was not  hers and that



          she knew nothing about the bag.



                    Grassia concluded that it was  his belief, based on the



          facts stated above, along  with his training and experience  as a



          police officer, that the perpetrators of the DiCarlo burglary had



          used  the pillowcase to carry  off the jewelry;  that the "light-



          colored cloth  bag" carried into Meuse's apartment on the evening



          of  December 7th was the  green pillowcase that  had been removed



          from  the DiCarlo residence during the burglary; that Ferrara was



          acting as  a fence for the  stolen property and  had obtained the



          jewelry from Meuse's  apartment on the  evening of December  7th.



          Grassia  stated  further that  he  believed  that further  stolen



          property was being kept at Meuse's apartment. 



                                      DISCUSSION
                                      DISCUSSION



                    Meuse  argues  that the  affidavit  in  support of  the



          search warrant failed to establish the requisite probability that



          evidence of the DiCarlo burglary would be found in his residence.



          He contends that the  affidavit was deficient in that  it did not


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establish a  sufficient nexus between the stolen  jewelry and his



          apartment.



                    Probable   cause   exists    where   "the   facts   and



          circumstances within [a police officer's] knowledge, and of which



          [the officer] had reasonably trustworthy information .  . . [are]



          sufficient  in themselves  to  warrant a  [person] of  reasonable



          caution" to believe that a  crime has been committed or  is being



          committed and that contraband or other evidence of a crime can be



          found at the place to be searched.  Carroll v. United States, 267
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          U.S. 132,  162 (1925);  United States v.  Drake, 673 F.2d  15, 17
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          (1st  Cir. 1982).  Stated another way, probable cause exists when



          there  is a "fair probability"  that contraband or  evidence of a



          crime will be found  in a particular place.  See Massachusetts v.
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          Upton, 466 U.S.  727, 733  (1984); United States  v. Jordan,  999
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          F.2d  11, 13 (1st Cir. 1993).  "Probable cause" is something less



          than  the  "preponderance"  standard  of  proof.    "[T]he  words



          'reasonable  cause' are perhaps closer to what is meant."  United
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          States v. Melvin, 596 F.2d 492, 495 (1st Cir.), cert. denied, 444
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          U.S. 837 (1979).  



                    Probable  cause  may be  established  in various  ways,



          including  hearsay from a reliable source  or information from an



          anonymous  tip  that  can  be independently  corroborated.    See
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          Illinois  v. Gates, 462 U.S.  213, 233-34, 241  (1983).  Probable
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          cause  may also  be established  by the personal  observations of



          police  officers.  See McDonald  v. United States,  335 U.S. 451,
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          454-55  (1948); United States v.  Lee, 962 F.2d  430, 436-38 (5th
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Cir.), cert.  denied, 113  S. Ct. 1057  (1992).   Police may  use
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          their training,  experience, and expertise to  draw inferences of



          criminal activity  from behavior  that is not  facially criminal.



          Texas v. Brown, 460 U.S. 730, 742-43 (1983) (plurality opinion).
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                    The mandate  of the  Fourth Amendment was  satisfied in



          this case so long as the "totality of the circumstances" provided



          the issuing  magistrate with  a substantial basis  for concluding



          that a search would  uncover evidence of wrongdoing.   Gates, 462
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          U.S. at 236;  United States v. Ciampa, 793 F.2d  19, 22 (1st Cir.
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          1986).  The district court found that that standard was met here.



                    The district  court found  that the information  in the



          affidavit was  obtained primarily from  the personal observations



          of trained and experienced police officers; that there had been a



          rash of burglaries in  which defendant was a prime  suspect; that



          defendant drove a van which was  believed to have been used in an



          armed robbery; that on  the day of the DiCarlo  burglary, Ferrara



          was seen entering defendant's apartment  empty-handed and leaving



          with a shopping bag that was later found to contain a substantial



          portion of the jewelry reported stolen by Mrs. DiCarlo just hours



          before; and that Ferrara lied  about his whereabouts that evening



          and told an  incredible story  about the source  of the  jewelry,



          further  undercut  by his  wife's  conflicting  story.    In  the



          totality of the circumstances, the court found  probable cause to



          believe  that evidence of a  crime would be  found in defendant's



          apartment.  Meuse argues that the conclusion that a search of his



          apartment would uncover evidence relating to the DiCarlo burglary


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relied on the inference  that the contents of the  brown shopping



          bag removed from Ferrara  at 1:00 a.m. on  December 8th had  been



          obtained by  Ferrara  from  Meuse's  apartment at  9:30  p.m.  on



          December  7th.   He  claims that  even  though Ferrara  was  seen



          leaving the apartment with a bag  that was later found to contain



          the  stolen DiCarlo jewelry, the fact that Ferrara met with other



          individuals  during  the  three  and  a half  hours  between  his



          departure  from Meuse's  residence  and his  apprehension by  the



          police makes it unreasonable  to conclude that the bag  must have



          contained the stolen jewelry when Ferrara left Meuse's apartment.



          This argument ignores the  fact that the full array of  facts and



          circumstances presented to the  issuing court need only establish



          probable  cause, not a certainty that the material sought will be



          found in  the place to be  searched.  Gates, 462  U.S. at 231-35;
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          accord, Ciampa, 793 F.2d at 22.
          ______  ______



                     Similarly  unpersuasive is  Meuse's argument  that the



          affidavit does not support the inference that the DiCarlo jewelry



          entered  Meuse's apartment  in the  cloth bag  at  8:00 p.m.   He



          claims that  the requisite probable cause is  lacking because the



          officers conducting  the surveillance described a  man carrying a



          "light-colored bag"  rather than  the "green pillowcase"  missing



          from  the DiCarlo residence.   This minor variation  in the terms



          used to describe the bag does not preclude a finding of  probable



          cause.   Search warrants are to be interpreted in a "common-sense



          rather than a hypothetical or a  hypertechnical manner."  Garc a,
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          983 F.2d at 1167.   Bits and pieces of information  are not to be


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judged in isolation.  United States v. Badessa, 752 F.2d 771, 773
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          (1st Cir. 1985).



                    Meuse's final argument is that  there were insufficient



          facts  to link  him  personally  to  the  stolen  jewelry  or  to



          Ferrara's criminal activities.  He claims, for  example, that the



          affidavit  did  not show that Ferrara was a  known fence, that he



          had  previously  fenced stolen  property for  Meuse, that  he had



          previously received  stolen property  from Meuse's  apartment, or



          that  he had any record for any offense involving stolen property



          or relating to the robbery/burglary activity for which Meuse  was



          under surveillance.   Meuse also argues that  Ferrara's lie about



          his  visit to  Meuse's apartment  establishes nothing  other than



          that Ferrara wished to  hide his association with Meuse,  that it



          sheds  no light on  whether or not the  DiCarlo jewelry came from



          Meuse's apartment.



                    This  argument is  also without  merit.   The affidavit



          showed that there  was a  fair probability that  evidence of  the



          DiCarlo  burglary  could  be  found in  Meuse's  apartment.    In



          addition  to the  reasons set forth  above, the  affidavit stated



          that Meuse's  van had been tied to  an armed robbery committed in



          the previous month.  The affidavit also described the activity at



          Meuse's apartment on  the evening of  December 7th, during  which



          this same van was parked outside.   The van was then seen at  the



          parking  lot  with  Ferrara's   car  and  the  Stevens'  vehicle.



          Considering the totality of the circumstances, the connection was


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sufficiently close  to support  the magistrate's issuance  of the



          search warrant.



                    In any event, the denial of Meuse's motion  to suppress



          is supported by  the "good faith"  exception to the  exclusionary



          rule.   The Supreme Court has declared that even when information



          contained in an affidavit makes only a marginal case for a search



          warrant, the warrant should  nevertheless be upheld.   "[W]e have



          expressed  a strong preference for warrants and declared that 'in



          a doubtful  or a marginal  case a search  under a warrant  may be



          sustainable  where without one it would fall.'"  United States v.
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          Le n, 468 U.S. 897, 914 (1984).  "In the absence of an allegation
          ____



          that  the magistrate  abandoned  his detached  and neutral  role,



          suppression is appropriate only if the officers were dishonest or



          reckless in preparing their affidavit or could  not have harbored



          an  objectively reasonable  belief in  the existence  of probable



          cause."  Id. at 926.
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                    Here,  the  district  court  found  that  the  officers



          proceeded in  good faith  reliance on  a facially  valid warrant,



          issued by a judicial officer, and  supported by "much more than a



          'bare-bones' affidavit."   Id.  Thus,  the "good-faith" exception
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          applies in this case.



                    Affirmed.
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