United States v. Schaefer

UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT

No. 95-2342

UNITED STATES OF AMERICA,

Appellee,

v.

HAROLD SCHAEFER,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Steven J. McAuliffe, U.S. District Judge]

Before

Selya, Cyr and Boudin,

Circuit Judges.

David H. Bownes for appellant.

Jean B. Weld, Assistant United States Attorney, with whom

Paul M. Gagnon, United States Attorney, was on brief, for

appellee.

June 25, 1996

SELYA, Circuit Judge. Defendant-appellant Harold
SELYA, Circuit Judge.

Schaefer stands convicted of growing marijuana, see 21 U.S.C.

841(a)(1); possessing marijuana with intent to distribute, see

id.; and conspiring to achieve those ends, see id. 846. In

this appeal, he argues that the lower court erred in denying his

motion to suppress evidence seized from (a) a barn located near

his house on Beech Hill Road in Winona Heights, New Hampshire,

and (b) the separate residence of his estranged wife, Kathleen

Schaefer, located on Winona Road in Center Harbor, New Hampshire.

Discerning no error, we affirm.

I. FACTUAL BACKGROUND
I. FACTUAL BACKGROUND

We recite the facts pertinent to this appeal as they

were found by the district court, consistent with record support.

See United States v. Zapata, 18 F.3d 971, 973 (1st Cir. 1994).

In early 1994, Susan Forey, a New Hampshire state

trooper, initiated an investigation of the appellant's suspected

marijuana-growing activities. After gathering evidence,

interviewing a confidential informant, and speaking with several

colleagues (one of whom had interviewed a second confidential

informant), Forey concluded that the appellant had been

cultivating cannabis in his barn. She then prepared an affidavit

(which relied heavily, albeit not exclusively, on clues furnished

by the informants) and sought a search warrant authorizing

inspection of the barn.

A state magistrate issued the warrant on June 27, 1994.

That morning a coterie of federal, state and local officers set

2

out to execute the warrant but temporarily refrained from doing

so when they could not locate the appellant. While members of

the search party stood guard at Beech Hill Road, two troopers,

Forey and Elizabeth D'Angelo, proceeded to Kathleen Schaefer's

residence in the hope that they would find her there. Forey

without entering the dwelling noted the distinctive aroma of

marijuana wafting from within. However, when Ms. Schaefer did

not answer the door, Forey departed (leaving D'Angelo to await

Ms. Schaefer's appearance).

Meanwhile, back at Beech Hill Road, the Schaefers'

twelve-year-old daughter, Amber, became agitated over the

continued police presence and enlisted a neighbor to drive her to

her mother's home in Center Harbor. When she arrived she found

D'Angelo patrolling the premises. Using her own key, Amber

entered the house. D'Angelo accompanied her and immediately

noticed the smell of marijuana. Once inside, the pair found Ms.

Schaefer, who explained that she had slept through the earlier

commotion. D'Angelo asked Ms. Schaefer to accompany her to Beech

Hill Road. Ms. Schaefer assented, and they repaired to that

site. By then, the search party had made an initial inspection

of the barn and had found some incriminating evidence.

Ms. Schaefer spoke freely with the officers, and Forey

eventually asked for permission to search her dwelling. Ms.

Schaefer hinted that she might seek counsel, and Forey told her

that she could contact an attorney if she so desired. After

pondering her options, Ms. Schaefer decided not to call a lawyer,

3

but, instead, gave the authorities access to her abode. She

asked only that the officers conduct their search discreetly so

as not to alarm her neighbors. The police complied. It is worth

noting that, before the search began, Ms. Schaefer forecast that

the searchers would find approximately 100 cannabis plants on the

premises. The forecast proved to be accurate.

Early that afternoon the appellant returned home from

work. The authorities promptly placed him under arrest. The

search of the barn thereafter commenced in earnest. The

searchers discovered 1,126 cannabis plants, plus an elaborate

array of equipment associated with the growing, preparation, and

distribution of marijuana.

II. PROCEDURAL BACKGROUND
II. PROCEDURAL BACKGROUND

In due season a federal grand jury charged the

Schaefers with the commission of various marijuana-related

offenses.1 In addition, the government sought criminal

forfeiture of the appellant's home and barn, and certain

machinery used in the marijuana-growing process. See 21 U.S.C.

853. The appellant moved to suppress the evidence that had been

obtained during the searches. Following a hearing, the district

court denied the motion. See United States v. Schaefer, Crim.

No. 94-53-1-M (D.N.H. Dec. 30, 1994) (D. Ct. Op.).

The case proceeded to trial and a jury returned a

guilty verdict. Schaefer then consented to the forfeiture and

1Kathleen Schaefer did not contest the charges against her.
She is not a party to this appeal.

4

the court imposed a sixty-three month incarcerative sentence.

This appeal ensued.

III. THE BEECH HILL ROAD SEARCH
III. THE BEECH HILL ROAD SEARCH

On appeal Schaefer charges that the trial court

committed several errors in refusing to suppress the evidence

seized from his barn. His primary asseveration is that Forey's

affidavit in support of the warrant contained inadequate

information to justify a finding of probable cause. This

asseveration has two prongs. First, the appellant maintains that

the information provided by the confidential informants was

unreliable (and, therefore, unusable) because the affidavit did

not set forth sufficient bases for crediting those sources.

Second, the appellant maintains that much of the informants'

fingerpointing was predicated on outdated information (and,

therefore, unusable). The appellant insists that, if all the

untrustworthy information is stripped from the affidavit, there

is too little left to sustain a finding of probable cause.

A. Standard of Review.
A. Standard of Review.

The Fourth Amendment provides that "no Warrants shall

issue, but upon probable cause, supported by Oath or affirmation,

and particularly describing the place to be searched." U.S.

Const. amend. IV. Probable cause 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." United States v. Aguirre, 839 F.2d

5

854, 857-58 (1st Cir. 1988). The magistrate issuing the warrant

must look to the totality of the circumstances in order to

ascertain the existence of probable cause. See Illinois v.

Gates, 462 U.S. 213, 238 (1983); see also United States v.

Figueroa, 818 F.2d 1020, 1024 (1st Cir. 1987).

This holistic approach also applies when a district

court is called upon to evaluate a magistrate's determination

that, based on the totality of the circumstances indicated in a

supporting affidavit, probable cause exists to search particular

premises. See Aguirre, 839 F.2d at 857-58. And the same

approach holds when a reviewing tribunal is called upon to assess

the district court's denial of a suppression motion that

challenges such a probable cause determination. See id. Yet

such review cannot start from scratch. "A magistrate's

determination of probable cause should be paid great deference by

reviewing courts." Gates, 462 U.S. at 236 (citation and internal

quotation marks omitted). Moreover, on an appeal from a district

court's ruling on a suppression motion, judicial scrutiny must be

filtered through a second layer of deference; although the

appellate court reviews the district court's ultimate legal

conclusion in this context, the existence vel non of probable

cause de novo, it must accept the district court's subsidiary

findings of fact unless those findings are clearly erroneous.2

2The Court's recent decision in Ornelas v. United States,

116 S. Ct. 1657 (1996), reinforces this dichotomous standard of
review. In Ornelas the Court held, in the case of a warrantless

search pursuant to the so-called "automobile exception" to the
warrant requirement, that "the ultimate questions of reasonable

6

See Zapata, 18 F.3d at 975.

B. Reliance on Informants.
B. Reliance on Informants.

The appellant calumnizes Forey's heavy reliance on

statements of the two confidential informants, complaining that

her affidavit provides too rickety a foundation for evaluating

the informants' veracity or bases of knowledge. Relatedly, the

appellant suggests that the trooper did not adequately

corroborate the informants' statements. Though forcefully made

by able counsel, the appellant's arguments are unfounded.

The use of confidential informants in criminal

investigations is commonplace. See, e.g., United States v.

Manning, 79 F.3d 212, 220 (1st Cir. 1996); United States v.

Vargas, 931 F.2d 112, 115-16 (1st Cir. 1991). The practice has

been characterized as a necessary part of police work. See

Gates, 462 U.S. at 237-38. What is more, an informant's tales

need not invariably be buttressed by extensive encomia to his

veracity or detailed discussions of the source of his knowledge.

While an informant's truthfulness and basis of knowledge are

"highly relevant in determining the value of his report," the

Court has cautioned that "these elements should [not] be

understood as entirely separate and independent requirements to

be rigidly exacted in every case." Id. at 230.

suspicion and probable cause . . . should be reviewed de novo."
Id. at 1659. By contrast, "a reviewing court should take care

both to review findings of historical fact only for clear error
and to give due weight to inferences drawn from those facts by
resident judges and local law enforcement officers." Id. at

1663. The Ornelas Court's holding is fully consistent with this

circuit's precedent as expressed in cases like Zapata.

7

Here, Forey's affidavit contains more than enough

substantiation to lend credence to the confidential informants'

reports. First, Forey expressly stated that CI-1 had a proven

track record, and fortified this statement by attesting that, to

her personal knowledge, CI-1 had assisted the police in the

apprehension of another drug felon. We heretofore have held

and today reaffirm that such an indicium of reliability may

itself be sufficient to bulwark an informant's report.3 See

United States v. 5 Bell Rock Rd., 896 F.2d 605, 608-09 (1st Cir.

1990). Second, Forey's affidavit explains that CI-2's

information included declarations against penal interest. The

fact that an informant's statements are against his or her penal

interest adds credibility to the informant's report. See United

States v. Fields, 72 F.3d 1200, 1214 (5th Cir. 1996), petition

for cert. filed, 64 U.S.L.W. 3709 (U.S. Apr. 8, 1996) (No. 95-

1639); Turner v. Caspari, 38 F.3d 388, 393 (8th Cir. 1994).

In addition to these badges of veracity, circumstances

external to each informant's statements lend additional weight.

For example, CI-2 confirmed CI-1's statement that the Schaefers

were engaged in growing cannabis plants indoors in a barn located

on their property. Courts often have held that consistency

3Here, moreover, Forey convincingly explained her failure to
elaborate upon her comments. She stated that "[t]his affiant is
personally familiar with the case in which CI-1 provided
information and further detail or description of the case would
likely disclose the identity of the CI." The district court
found Forey to be credible on this and other points, and the
appellant has advanced no sound basis for rejecting this
credibility determination.

8

between the reports of two independent informants helps to

validate both accounts. See, e.g., Fields, 72 F.3d at 1214. In

a related vein, neighbors complained to the police in June of

1992 regarding the appellant's marijuana cultivation. The latter

complaints enjoy special stature since information provided by

ordinary citizens has particular value in the probable cause

equation. See United States v. Scalia, 993 F.2d 984, 987 (1st

Cir. 1993); United States v. Campbell, 732 F.2d 1017, 1019 (1st

Cir. 1984).

There is more. Drawing on several sources, Forey's

affidavit depicts the appellant as a member of a loosely-knit

band of marijuana growers, known colloquially as the "sea of

green" group. In an interview with CI-1, summarized in Forey's

affidavit, Special Agent Gerald Graffam of the federal Drug

Enforcement Administration learned the names of a number of

individuals whom CI-1 claimed were part of the sea of green

operation. The roster included the Schaefers, James Crawford,

and James Spellman, to name a few. The record contains several

external data (i) confirming the identities and predilections of

Crawford, Spellman, and other growers in the group, (ii) pinning

down Crawford's and Spellman's involvement with cannabis

cultivation, and (iii) demonstrating the group's access to

marijuana plants that were being grown indoors.4

4Forey's affidavit also contains an account of an incident
that occurred in June 1993 when a fellow state trooper, Scott
Champagne, discovered marijuana plants under cultivation in the
woods, in close proximity to the appellant's camper.

9

This list of sea of green participants featured Marc

Birmingham, an aide to Crawford (who had recently been arrested

for growing marijuana).5 Forey's independent investigation

revealed that, before teaming up with Crawford, Birmingham had

worked for a company owned by the appellant. CI-2 underscored

the Schaefer/Birmingham connection, explaining to Graffam in June

1994 that Birmingham told him that his former employer "had set

up a marijuana growing operation under his horse barn."

Moreover, in April 1994, Birmingham told CI-2 that Crawford's

group had procured "eight big plants" from his (Birmingham's)

"ex-boss."

Birmingham also informed CI-2 that "his former employer

sold his finished product in New York, where he was able to

receive a higher price for it." CI-1 added an interlocking

datum: that the appellant "was the least `controlled' member of

the group and had been arrested in New York for possession of

marijuana and `patronizing a prostitute.'" Forey confirmed that

the police had arrested the appellant in Suffolk County, New

York, on June 8, 1993, for criminal possession of marijuana and

pandering.

Forey also attempted to verify her suspicions by

inspecting the appellant's electric bills. The bills indicated a

suspicious pattern of electricity usage: the appellant drew an

abnormally high amount of power in October of 1993 and April of

5CI-2's statements confirmed CI-1's assurance that
Birmingham served as Crawford's lieutenant.

10

1994 two months in which the New England climate often allows

consumers a brief respite from copious use of electricity for

heating or cooling. Based on Forey's substantial experience in

the investigation of marijuana farming and other narcotics

operations, she concluded that this pattern indicated periods of

intensive cultivation.

The appellant strives to undercut this latter detail by

pointing out CI-1's observation that the appellant "powers the

grow operation in the barn with propane rather than electricity."

The appellant argues that, if CI-1's statement is true,

fluctuations in the electric bills necessarily would be

meaningless. Forey herself dispelled this seeming paradox at the

suppression hearing, stating that "[t]o say that you're using a

secondary source of power and to say that you know how to use

that are two different things," and the district court accepted

her explanation. We need not pursue the point. Even were we to

find a discrepancy here, our result would remain unchanged. When

an informant's statements and the events he attempts to describe

diverge in minor ways, the magistrate may reasonably choose to

credit the statements and disregard petty inconsistencies. See,

e.g., United States v. Diallo, 29 F.3d 23, 26 (1st Cir. 1994).

To sum up, the informants' credibility and bases of

knowledge are sufficiently illuminated. More importantly,

Forey's affidavit is not entirely dependent upon the informants'

assertions, but includes many external data fortifying those

assertions. Indeed, the wealth of incriminating circumstances

11

marshalled by Forey in her affidavit defenestrates Schaefer's

allegation that the trooper did not adequately corroborate the

details of the confidential informants' statements. Having

carefully examined the totality of the circumstances described in

the affidavit, we agree with the state magistrate and the

district court that probable cause to issue the warrant existed.

See Gates, 462 U.S. at 244-45 (explaining that the police need

only independently corroborate some of the details supplied by an

informant).

C. Staleness.
C. Staleness.

We turn now to the appellant's insistence that the

magistrate should have disregarded much of the information

disclosed in the affidavit because it was out of date. We agree

with the appellant's premise an affidavit supporting a search

warrant must contain timely information or else it will fail

but we disagree with his conclusion that Forey's affidavit

suffers from this vice.

In trying to make the case for staleness, the appellant

points to Forey's statement that, "[i]n 1991 and 1992, CI-1 knew

Harold Schaefer and his wife, Kathleen, to be involved in indoor

cannabis cultivation in a barn on their property." Building on

this introduction, he posits that CI-1's knowledge of his

activities went back two to three years, and, therefore, was old

hat. But courts confronting suppression motions do not measure

the timeliness of collected information mechanistically, merely

counting the number of days elapsed. See United States v.

12

Bucuvalas, 970 F.2d 937, 940 (1st Cir. 1992), cert. denied, 507

U.S. 959 (1993). Rather, a number of integers must be factored

into the calculus e.g., the nature of the information, the

nature and characteristics of the supposed criminal activity, the

nature and characteristics of the place to be searched, the

nature of the items delineated in the warrant and the likely

endurance of the information must be gauged on that basis. See

id.; see also United States v. Moscatiello, 771 F.2d 589, 597

(1st Cir. 1985), vacated on other grounds, 476 U.S. 1138 (1986).

The longer the expected duration of the criminal activity and the

longer the expected life of the items attendant to it, the more

likely that a datum from the seemingly distant past will be

relevant to a current investigation.

In this case, all signs point to ongoing and entrenched

activity. CI-1 told Forey that the appellant built his barn as a

haven for his illicit marijuana-growing enterprise. Both

informants expressed their belief that the appellant was a major

player in a long-term cartel that involved several independent

marijuana growers. The warrant did not target items of transient

existence, but, rather, featured chattels of relatively dear

value and solid construction (including hardware commonly used in

the growing and distribution of marijuana), likely to be in

service for several years. Since these items possessed enduring

worth and utility, information that might be considered ancient

history in considering the probable whereabouts of more transient

goods would be timely here. See United States v. McKeever, 5

13

F.3d 863, 866 (5th Cir. 1993) (holding that information need not

be as current when the items to be seized include hydroponic

marijuana-growing apparatuses); United States v. Sturmoski, 971

F.2d 452, 457 (10th Cir. 1992) (holding to like effect regarding

laboratory equipment for the production of methamphetamine).

Then, too, the troopers proposed to search the

appellant's own barn, not a rented or appropriated facility that

could easily be used and then abandoned. The target's ownership

of the real estate to be searched influences the staleness

calculus. See Bucuvalas, 970 F.2d at 941 (explaining that

information is more likely to be timely when it concerns items

stored at a permanent locus). Finally, it is common ground that

drug conspiracies tend to be ongoing operations, rendering timely

information that might, in other contexts, be regarded as stale.

See United States v. Nocella, 849 F.2d 33, 40 (1st Cir. 1988).

In cumulation, these factors make us hesitant to characterize the

challenged information, even if it is not of very recent vintage,

as stale.

We need not dwell on this subject, however, since the

appellant's argument fails for an even more abecedarian reason.

When an affidavit tendered in support of a warrant application

contains information that is remote in time, a magistrate may

still hold it to be adequate if it also contains sufficient

recent facts corroborating the older data and linking that data

to the present. See id. at 39-40. Here, the affidavit cited the

appellant's transfer of marijuana plants to Crawford's entourage

14

in April of 1994 (approximately two months before the warrant

issued), and, moreover, Forey's probe of utility company records

indicated the appellant's excessive use of electricity in the

spring of 1994. These recent details bear out the appellant's

earlier connections with marijuana growing, thus rendering the

affidavit temporally adequate.

IV. THE WINONA ROAD SEARCH
IV. THE WINONA ROAD SEARCH

The appellant also challenges the warrantless search of

his wife's residence. It is settled that an individual may waive

the warrant requirement of the Fourth Amendment by consenting to

a search of her person, property, or effects, as long as the

individual's consent is freely and voluntarily given. See

Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973); Zapata, 18

F.3d at 977. Citing this caselaw, the government asserts that

Kathleen Schaefer consented to the search of her home.

The chronology of events is important. After Schaefer

lodged his suppression motion, the government filed a written

opposition. Attached to the opposition (and incorporated by

reference therein) were two key documents: (1) a copy of Forey's

report of her investigation concerning, inter alia, the events of

June 27, 1994, and (2) a copy of the affidavit that Forey

submitted to the magistrate in conjunction with her request for a

search warrant. Judge McAuliffe heard arguments regarding the

suppression motion on two separate dates in December of 1994, and

conducted a proceeding (partially in camera) in which both Forey

and CI-1 were questioned. At the close of the second day, the

15

judge denied the appellant's motion for a Franks hearing, see

Franks v. Delaware, 438 U.S. 154, 171 (1978), and added from the

bench that "to the extent we've had a de facto Franks hearing I

find Trooper Forey to be entirely credible and I find that she

did not include any false statement or omission in her affidavit

with regard to the statements made by confidential informant No.

1."6 Shortly thereafter, the court handed down a written order

in which it denied the appellant's motion to suppress. See D.

Ct. Op. at 12.

The government bears the burden of proving by a

preponderance of the evidence that an individual consented to a

search of her person, property, or effects. See United States v.

Matlock, 415 U.S. 164, 177 (1974). Before us, the appellant

challenges the Winona Road search on the ground that the

government adduced no evidence of consent. The relevant

particulars follow. The suppression motion cited the absence of

a warrant as a ground for invalidating the Winona Road search,

and the government's opposition parried this thrust by asserting

that Ms. Schaefer had consented to the search. Withal, the issue

was not the subject of any testimony or argumentation at the

suppression hearing itself. The only record evidence of consent

is Forey's account of her conversation with Ms. Schaefer (set out

in the police report). Judge McAuliffe addressed the matter

briefly in his written order. He found, consistent with the

6Though one thrust of Schaefer's argument below focused on
what he termed "material misrepresentations" in Forey's
affidavit, he does not renew that claim on appeal.

16

police report,7 that "Ms. Schaefer agreed to allow the troopers

to return to her home and search it," D. Ct. Op. at 3, and

concluded that "[t]he search of the Winona Road property was

conducted only after Kathleen Schaefer gave express consent to

the search," id. at 9.

The appellant argues that the report was not properly

before the district court at the suppression hearing, and that,

in the absence of any other proof of consent, the district

court's finding is plucked out of thin air. Hence, the pivotal

question is whether the district court appropriately considered

the police report.8 We believe that it did.

We begin with bedrock. Although a suppression hearing

may be of decretory significance in a given case, it is generally

true that "the interests at stake in a suppression hearing are of

a lesser magnitude than those in the criminal trial itself."

United States v. Raddatz, 447 U.S. 667, 679 (1980). Thus, apart

from questions of privilege, the Federal Rules of Evidence do not

apply at suppression hearings. See Matlock, 415 U.S. at 172-74;

see also Fed. R. Evid. 104(a) (explaining that the court is "not

7The police report comprised Forey's report on the
investigation into the appellant's marijuana growing activities.
The report recounted extended negotiations with Ms. Schaefer
anent the proposed search, culminating in Ms. Schaefer's informed
consent to it.

8Because the appellant does not argue that Forey's account,
if properly considered by the district court, was insufficient to
show the requisite consent, he has for all intents and purposes
conceded that point. See United States v. Zannino, 895 F.2d 1,

17 (1st Cir.) (admonishing that matters neither briefed nor
argued are waived), cert. denied, 494 U.S. 1082 (1990).

17

bound by the rules of evidence except those with respect to

privileges," in deciding "[p]reliminary questions concerning . .

. the admissibility of evidence") & 1101(d)(1) (declaring the

Evidence Rules inapplicable to "[t]he determination of questions

of fact preliminary to admissibility of evidence when the issue

is to be determined by the court").

Consequently, a judge presiding at a suppression

hearing may receive and consider any relevant evidence, including

affidavits and unsworn documents that bear indicia of

reliability. See United States v. Lee, 541 F.2d 1145, 1146 (5th

Cir. 1976). Consistent with this praxis, a judge may receive

hearsay evidence at a suppression hearing. See, e.g., Raddatz,

474 U.S. at 679; United States v. Merritt, 695 F.2d 1263, 1269

(10th Cir. 1982); United States v. Ocampo, 650 F.2d 421, 427 (2d

Cir. 1981); United States v. Bolin, 514 F.2d 554, 557 (7th Cir.

1975).

Here, the suppression hearing itself concentrated on

only a few of the many issues raised by the appellant's motion.

It did not focus at all on the Winona Road search, and it is

apparent to even a casual observer that the district court with

the parties' tacit acquiescence intended to decide that aspect

of the motion on the papers. In implementing this intention, the

court obviously accepted and relied upon the government's proffer

of the police report. In the absence of a motion to strike and

the appellant made none the court was entitled to do so. Put

another way, the government effected a prima facie showing of

18

consent by placing a copy of the police report before the court,

see United States v. Barnes, 443 F. Supp. 137, 139 (S.D.N.Y.

1977); and since the appellant (who cross-examined Forey but

shied away from questioning her about the Winona Road search)

adduced no evidence that impeached or contradicted the trooper's

account of the manner in which she obtained Ms. Schaefer's

consent, the court could properly base a finding on that

account.9 See, e.g., Zapata, 18 F.3d at 977 (affirming the

trial court's inference of consent in the absence of contrary

factual evidence); cf. United States v. McKneely, 6 F.3d 1447,

1453 (10th Cir. 1993) (rejecting as clearly erroneous a finding

of coerced consent under circumstances in which the government's

evidence of the defendant's voluntary consent was "uncontroverted

by facts because defendants offered no testimony to the

contrary").

V. CONCLUSION
V. CONCLUSION

We need go no further.10 Because the lower court

9The appellant claims unfair surprise, saying in effect that
he was unaware that the court would consider the police report.
But if the appellant labored under that mistaken assumption at
all, his reverie surely did not survive his receipt of the
district court's rescript. That was the time for appellant to
claim surprise and, concomitantly, to move either to reopen the
proceedings or for reconsideration. The failure to file any such
motion below undercuts the claim of surprise that he mounts in
this venue. Cf. United States v. Diaz-Villafane, 874 F.2d 43,

47 (1st Cir.) (finding the defendant's claim of surprise at
sentencing "severely undermined, if not entirely undone, by his
neglect [to take appropriate corrective action in the trial
court]"), cert. denied, 493 U.S. 862 (1989).

10Inasmuch as we uphold the district court's finding that
Ms. Schaefer consented to the Winona Road search, we express no
opinion on the government's alternative argument that the

19

appropriately refused to suppress the inculpatory evidence that

the government's lawful searches had amassed, the judgment below

must be

Affirmed.
Affirmed.

appellant lacked an expectation of privacy in his estranged
wife's residence and therefore lacked standing to contest the
search of those premises.

20