United States v. Zayas-Diaz

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 95-1910

UNITED STATES OF AMERICA,

Appellee,

v.

JUAN ZAYAS-DIAZ,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Paul J. Barbadoro, U.S. District Judge]

Before

Selya, Cyr and Boudin,

Circuit Judges.

Paul J. Garrity for appellant.

Terry L. Ollila, Assistant United States Attorney, with whom Paul

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

September 9, 1996

CYR, Circuit Judge. Juan Zayas-Diaz ("Zayas") chal-
CYR, Circuit Judge.

lenges two pivotal rulings underlying the district court's

refusal to suppress evidence seized pursuant to a warrant alleg-

edly based on information that failed to connect Zayas to the

search premises within a reasonably recent time frame. The court

first determined, on the merits, that the affidavit supporting

the warrant application contained adequate reliable information

to connect Zayas to the search premises in the past. Next, the

court bypassed the merits of the staleness claim and held the

exclusionary rule inapplicable on the ground that the search had

been conducted in "objectively reasonable" reliance on the

warrant. See United States v. Leon, 468 U.S. 897 (1984).

Finding no error, we now affirm the district court judgment.

I
I

BACKGROUND
BACKGROUND

A. The Graffam Affidavit
A. The Graffam Affidavit

On March 8, 1994, a warrant was obtained to search a

single-family residence in Bedford, New Hampshire, based on a

nineteen-page affidavit by Special Agent Gerald Graffam of the

United States Drug Enforcement Administration ("DEA"), purporting

to establish probable cause to believe that Zayas then or recent-

ly resided at 16 Holbrook Road and used it as an operational base

for cocaine trafficking.1 The warrant application sought autho-

rization to search for various drug-related documents and curren-

1The criminal investigation was conducted by federal, state,
and local law enforcement authorities, to whom we refer collec-
tively as "the authorities."

2

cy evidencing the suspected cocaine trafficking activity.

1. The Cocaine Trafficking
1. The Cocaine Trafficking

The Graffam affidavit included information purporting

to establish that Zayas was supplying cocaine for distribution at

various establishments in nearby Manchester, New Hampshire,

including the Oasis Social Club. Based on information provided

by a "reliable" confidential informant ("first CI"), the affida-

vit related that Marcello Sosa had been arrested on January 26,

1994, for selling cocaine at the Oasis Social Club.2 An arrest-

ing officer advised that he had noticed an individual, known to

him as "Juan Rosario" alias "Nelson Martell," at the Oasis Social

Club during Sosa's arrest. The first CI confirmed that he too

had seen Sosa and a person known to him as "Juan" meet at the

club, not only at the time of Sosa's arrest but on prior occa-

sions. Sosa himself admitted that a man named "Juan," who was

present when Sosa was arrested, had supplied the six ounces of

cocaine seized from Sosa's residence shortly after the arrest.

A subsequent documentation and record check disclosed a

series of roughly compatible descriptions for "Nelson Martell"

(height 5'6-9"; weight 130-160 pounds; hair black or brown; eyes

brown; glasses; left-arm tatoo; social security number 001-64-

1999; birth date either May 4, 1961 or August 16, 1954); home

address 275 Lake Avenue, Manchester; license suspension for drunk

driving in 1991; New Hampshire conviction and suspended sentence

2For ease in reference, we assume all confidential infor-
mants were male.

3

for heroin trafficking in 1992; and a December 1992 arrest and

pending prosecution for cocaine trafficking in Connecticut,

during which arrest Zayas attempted to discard cocaine over a

highway embankment; and other aliases, including "Juan Gonzalez."

On February 24, 1994, twelve days before the search,

the Manchester police interviewed a confidential informant

("second CI"). The second CI, who had "provided reliable infor-

mation to law enforcement in the past," advised that he knew a

person named "Juan," surname believed to be "Esquevar," who

"currently controls" cocaine distribution at various Manchester

business establishments, including the Oasis Social Club, and who

delivered cocaine daily to his "workers," including Sosa. The

second CI described "Juan" (Cuban, dark-skinned, height 5'10",

weight 160 pounds, black hair, brown eyes, glasses), and told the

authorities that he was "aware" that "Juan" had been arrested in

Connecticut on a cocaine trafficking charge, and that "Juan" had

attempted to discard two kilos of cocaine at the time of the

arrest by throwing it over a highway embankment.

2. Zayas and 16 Holbrook Road
2. Zayas and 16 Holbrook Road

Although the documentation check revealed a listed home

address for "Nelson Martell" (i.e., Zayas) at 275 Lake Avenue in

Manchester, the Graffam affidavit attested to facts purporting to

show that Zayas currently or recently resided at 16 Holbrook Road

in Bedford, New Hampshire. Following his arrest, Sosa told

police that "Juan," his supplier, "lived" in Bedford, New Hamp-

4

shire. Moreover, on February 24, 1994, the second CI also had

advised the authorities that Juan "lives" in Bedford and "deals"

large amounts of cocaine. The second CI added that he had "been

to Juan's Bedford residence on several occasions and seen large

quantities of cocaine and cash present," and that "[S]panish

males," in two or more automobiles bearing New York license

plates, arrived "every Tuesday" at the Bedford residence.

On February 24, 1994, after his interview, the second

CI led the authorities to the Bedford premises at which he had

visited "Juan." Presumably to avoid detection, the authorities

did not enter upon the premises. Instead, the second CI de-

scribed specific features of the residential grounds, including

(1) a long driveway lined with three birdhouses containing

concealed video cameras; (2) a shack-like residence with peeling

brown paint; (3) five dogs outside the house, and an unspecified

number of dog houses; and (4) four or five abandoned/junk vehi-

cles, including a motorcycle. The second CI described interior

features of the residence itself, including (1) a video monitor

connected to the "birdhouse" cameras; (2) furnishings, "in good

condition" compared with the shabby exterior of the residence;

and (3) in the basement, a restaurant-style refrigerator for

storing cocaine. Subsequent aerial surveillance at 16 Holbrook

Road revealed a long driveway, a brown single-family dwelling

with detached garage and shed, and "at least three (3) doghouses

and two (2) abandoned vehicles."

3. The "Residence" at 16 Holbrook Road
3. The "Residence" at 16 Holbrook Road

and the Zayas-Koehler "Relationship"
and the Zayas-Koehler "Relationship"

5

The Graffam affidavit purported to establish 16

Holbrook Road as Zayas' current or recent residence or drug

operation base, by demonstrating that codefendant Brenda Koehler

currently or recently lived there, and that she and Zayas were

currently involved in a close relationship. The second CI

advised the authorities that "Juan" lived at 16 Holbrook Road

"with a girlfriend," described as a "white female," about thirty

years old, with brown hair, whose son also resided at 16 Holbrook

Road and "attends" Trinity High School, where he "plays foot-

ball." An October 1992 police incident report confirmed that a

"Kevin Koehler" had sustained an injury while playing football at

Trinity High School, identified his mother as Brenda Koehler, "16

Holbrook Road," telephone number 624-8730. A postal delivery

check indicated that Kevin Koehler had received mail at 16

Holbrook Road in 1992. A June 1993 traffic accident report

reflected 16 Holbrook Road as Brenda Koehler's home address. A

third confidential informant ("third CI") confirmed that "Juan,"

who supplied cocaine to workers at the Oasis Social Club, "had a

white wife . . . in her thirties."

On February 10, 1994, James McDowell advised the

authorities that he had leased a garage at 425 Second Street,

Manchester, to Brenda Koehler, who was accompanied by a "Nelson

Martell" at the time she signed the lease. The Graffam affidavit

failed to disclose the date the lease was signed. McDowell told

the authorities that he "believed Brenda Koehler was Martell's

wife," and advised that Koehler gave "16 Holbrook Road" as her

6

home address, and 624-8730 as her telephone number. Thereafter,

in late February 1994, a motor vehicle registration check dis-

closed a roughly compatible physical description for Brenda

Koehler ("white female," thirty-four years old, height 5' 2",

brown hair, brown eyes), and listed her address as 481 Beacon

Street, Manchester.

4. Activity at 16 Holbrook Road
4. Activity at 16 Holbrook Road

In late February 1994, the authorities learned that

mail was not "presently" being received at 16 Holbrook Road.

Moreover, by this time there was no longer a telephone listing

for 16 Holbrook Road. The electrical utility listing nonetheless

continued to reflect that Brenda Koehler was the person responsi-

ble for payment. Moreover, though the premises were heated by

oil, the electrical utility reported the following billings:

October-November 1993 ($565 for 4595 kw hours), November-December

1993 ($462 for 3679 kw hours), and December 1993-January 1994

($600.00 for 5024 kw hours).

5. Graffam's Law Enforcement Experience
5. Graffam's Law Enforcement Experience

Finally, based on Graffam's twenty-two years as a DEA

agent, the supporting affidavit stated that active drug traffick-

ers commonly: (1) retain for ready reference, in their residenc-

es for extended periods, records relating to their ongoing

trafficking activities; (2) assume fictitious names or use

nominees to avoid detection; (3) establish surveillance at their

operational bases to detect law enforcement activity; and (4)

attempt to avoid disclosure or discovery of their actual resi-

7

dences and operational bases by suspending mail and telephone

service.

B. The District Court Proceedings
B. The District Court Proceedings

The search conducted pursuant to the challenged warrant

disclosed ammunition, cocaine residue, cocaine distributing

paraphernalia, substantial cash, and numerous documents detailing

Zayas' ongoing cocaine trafficking activities. In due course,

Zayas and ten associates, including Brenda Koehler, were charged

with conspiracy to possess cocaine with intent to distribute.3

See 21 U.S.C. 841(a)(1), 846. Zayas and Koehler jointly

sought to suppress the evidence seized at 16 Holbrook Road,

claiming among other things that the Graffam affidavit did not

reflect "16 Holbrook Road" as the address at which "Juan" resided

or conducted drug operations and that much crucial information in

the affidavit was irredeemably "stale." Zayas stressed in

particular that the Graffam affidavit, which identified February

24, 1994, as the date upon which the authorities interviewed the

second CI, nonetheless failed to state when the second CI last

visited with "Juan" at 16 Holbrook Road.

The district court denied the motion to suppress after

an evidentiary hearing. United States v. Zayas-Diaz, No. 94-30-

3The nine other defendants entered guilty pleas. The
government does not now contend that Zayas lacked an objectively
reasonable expectation of privacy in the 16 Holbrook Road premis-
es at the time the search was conducted. See, e.g., United

States v. Bouffard, 917 F.2d 673, 675-76 (1st Cir. 1990); United

States v. Soule, 908 F.2d 1032, 1034 (1st Cir. 1990).

8

01-B (D.N.H. Dec. 22, 1994).4 First, it ruled that the Graffam

affidavit contained sufficient information to provide probable

cause to believe that Zayas either resided or conducted drug

operations at 16 Holbrook Road. Second, without deciding whether

the matters affirmed in the Graffam affidavit were sufficiently

contemporaneous to afford a substantial basis for the probable

cause determination, the district court held the exclusionary

rule inapplicable based on the so-called "good faith" exception.

See Leon, 468 U.S. at 923 (holding that the exclusionary rule is

not implicated unless, inter alia, the supporting affidavit was

"so lacking in indicia of probable cause as to render official

belief in its existence entirely unreasonable").

II
II

DISCUSSION
DISCUSSION

On appeal, Zayas resurfaces two claims previously

presented to the district court: (1) the Graffam affidavit

contained insufficient information to provide a substantial basis

for finding it probable that evidence relating to Zayas' drug

trafficking activities would be found at 16 Holbrook Road; and

(2) the Leon "good faith" exception to the exclusionary rule is

unavailing because any reasonably well-trained law enforcement

officer would know that the "stale" information in the Graffam

affidavit was not adequate to establish probable cause to believe

that 16 Holbrook Road was either Zayas' recent or current resi-

4Following a five-day jury trial, Zayas was found guilty on
the conspiracy charge. The district court later sentenced him to
360 months.

9

dence or drug operation site; and the more current information

neither cured the staleness nor provided an independent basis for

a "probable cause" determination.

A. The "Probable Cause" Connection
A. The "Probable Cause" Connection

Between Zayas and 16 Holbrook Road
Between Zayas and 16 Holbrook Road

The district court held that the Graffam affidavit

afforded probable cause to believe that Zayas resided or conduct-

ed drug operations at 16 Holbrook Road in the past. It found the

second CI's identification of 16 Holbrook Road to be reliable

because the authorities were "able to corroborate so much of

[his] statement both as to innocent details and as to incrimi-

nating matters, such as Zayas-Diaz's involvement in the cocaine

transaction." See Tr. of Suppression Hearing at 107-08 (citing

United States v. Taylor, 985 F.2d 3, 6 (1st Cir.), cert. denied,

508 U.S. 944 (1993)).

1. The "Probable Cause" Standard
1. The "Probable Cause" Standard

For evidence to avert suppression, see generally Mapp

v. Ohio, 367 U.S. 643 (1961), normally the warrant application

must demonstrate probable cause to believe that a particular

person has committed a crime "the commission element" and

that enumerated evidence relevant to the probable criminality

likely is located at the place to be searched "the `nexus'

element". United States v. Fuccillo, 808 F.2d 173, 175 (1st

Cir.), cert. denied, 482 U.S. 905 (1987). The issuing magistrate

ordinarily considers only the facts set forth in supporting

affidavits accompanying the warrant application. See, e.g.,

Whiteley v. Warden, Wyo. State Penitentiary, 401 U.S. 560, 565

10

(1971); Aguilar v. Texas, 378 U.S. 108, 109 (1964); United States

v. Klein, 565 F.2d 183, 186 n.4 (1st Cir. 1977). Under the

"probable cause" standard, the "totality of the circumstances"

disclosed in the supporting affidavits must demonstrate "a fair

probability that contraband or evidence of a crime will be found

in a particular place." Illinois v. Gates, 462 U.S. 213, 238

(1983) (emphasis added); United States v. Bucuvalas, 970 F.2d

937, 940 (1st Cir. 1992), cert. denied, 507 U.S. 959 (1993).

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," id.; whether informant

statements are self-authenticating, see, e.g., Taylor, 985 F.2d

at 5 (noting that affidavit may support informant's veracity

"through the very specificity and detail with which it relates

the informant's first-hand description of the place to be

searched"); whether some or all the informant's factual state-

ments were corroborated wherever reasonable and practicable

(e.g., through police surveillance);5 and whether a law-enforce-

ment affiant included a professional assessment of the probable

significance of the facts related by the informant, based on

5See Gates, 462 U.S. at 244; Soule, 908 F.2d at 1039 (noting

that police contemporaneously corroborated "the material elements
of the [informant's] tip"); see also Alabama v. White, 496 U.S.

325, 331 (1990) ("[Because an informant is right about some
things, he is more probably right about others."); Draper v.

United States, 358 U.S. 307, 313 (1959); United States v. Lalor,

996 F.2d 1578, 1581 (4th Cir.), cert. denied, 510 U.S. 983

(1993).

11

experience or expertise, see United States v. Hoffman, 832 F.2d,

1299, 1306 (1st Cir. 1987) (noting that law-enforcement affiants

were "specially trained in the ways of drug trafficking"). None

of these factors is indispensable; thus, stronger evidence on one

or more factors may compensate for a weaker or deficient showing

on another. See Taylor, 985 F.2d at 5; United States v. Nocella,

849 F.2d 33, 37 (1st Cir. 1988); United States v. Ciampa, 793

F.2d 19, 22 (1986). Reviewing courts, including both

the district court and the court of appeals, must accord "consid-

erable deference" to the "probable cause" determination made by

the issuing magistrate. See Taylor, 985 F.2d at 5 ("[T]he duty

of the reviewing court is simply to ensure that the magistrate

had a `substantial basis for . . . conclud[ing]' that probable

cause existed."). The reviewing court must examine "the affida-

vit in `a practical, "common sense" fashion, and [ ] accord

considerable deference to reasonable inferences the [issuing

magistrate] may have drawn from the attested facts.'" Bucuvalas,

970 F.2d at 940 (citations omitted). Moreover, given the strong

preference for warrants under our Fourth Amendment jurisprudence,

normally a reviewing court will defer to an issuing magistrate's

"probable cause" determination in a doubtful or marginal case.

See United States v. Ventresca, 380 U.S. 102, 109 (1965); United

States v. Craig, 861 F.2d 818, 823 (5th Cir. 1988).

2. The Connection Between Zayas and 16 Holbrook Road6
2. The Connection Between Zayas and 16 Holbrook Road

6We review the district court's factual findings (if any)
only for clear error, but we review de novo its ultimate determi-

nation that a given set of facts constituted "probable cause."

12

Zayas argues that the Graffam affidavit is insufficient

because (i) it did not explicitly identify 16 Holbrook Road as

the address at which the second CI visited Zayas on several prior

occasions and saw large amounts of cocaine and cash, and (ii) the

description of the premises given by the second CI differed in

some respects from the information disclosed in the subsequent

aerial surveillance. See supra Section I.A.2. We note at the

outset that this argument ignores the incriminating network of

circumstantial evidence pointing unmistakably to 16 Holbrook Road

as the Bedford residence at which the second CI had visited Zayas

in the past, see supra Section I.A. Moreover, its implicit

presumption that the second CI probably led the authorities to

premises other than those at which he had visited Zayas is

untenable given Graffam's attestation that the second CI had

demonstrated his reliability in the past. See United States v.

Schaefer, 87 F.3d 562, 566 1st Cir. 1996).7 Finally, the argu-

See United States v. Schaefer, 87 F.3d 562, 565 n.2 (1st Cir.

1996) (citing Ornelas v. United States, 116 S. Ct. 1657 (1996)).

7In addition, the second CI related prior criminal activity
by Zayas (e.g., dumping cocaine over an embankment in 1992 at the
time he was arrested in Connecticut) and descriptions of exterior
and interior features at 16 Holbrook Road. See Taylor, 985 F.2d

at 6 (noting that a CI's overall reliability may be demonstrated
by the "very specificity and detail" of descriptions of search
premises, or of defendant's prior criminal activity or record).
Moreover, the authorities here independently corroborated many of
these details through a documentation and record check and aerial
surveillance. See Soule, 908 F.2d at 1039 (noting that police

contemporaneously corroborated "the material elements of the
[informant's] tip"). Further, some of the second CI's statements
were confirmed by the third CI (e.g., the description of Zayas'
wife/girlfriend as a white, thirty-year-old female a descrip-
tion likewise corroborated by a documentation check on Koehler).
See Schaefer, 87 F.3d at 566 (holding that consistencies between

13

ment aimed at undermining the corroborative information gathered

through aerial surveillance of 16 Holbrook Road likewise fails,

since it too presumes that the second CI either did not know the

location of the premises at which he had visited Zayas on several

prior occasions or that he misrepresented its physical charac-

teristics. See id. at 567 ("When an informant's statements and

the events he describes diverge in minor ways, the magistrate may

reasonably choose to credit the statements and disregard petty

inconsistencies.").

Our de novo assessment of the totality of the circum-

stances conveyed in the Graffam affidavit persuades us that the

issuing magistrate had a substantial basis for crediting the

second CI's overall reliability, and by extension his identifica-

tion of 16 Holbrook Road as the locus of his prior visits. The

demonstrated reliability of the second CI, together with the

substantial similarity in the physical characteristics of the

premises, as described by the second CI and buttressed by the

aerial surveillance of 16 Holbrook Road, provided adequate

support for the issuing magistrate's practical, common-sense

"probable cause" determination that the Zayas residence/drug

operation base previously visited by the second CI was located at

16 Holbrook Road in Bedford, New Hampshire. See Gates, 462 U.S.

at 238.

B. The Staleness Claim
B. The Staleness Claim

informants' reports may serve to validate both accounts).

"[Because an informant is right about some things, he is more
probably right about others." Alabama, 496 U.S. at 331.

14

1. Leon Bypass
1. Leon Bypass

The district court elected to bypass the merits of the

staleness claim that the Graffam affidavit afforded no substan-

tial basis for a "probable cause" finding that Zayas either

resided or conducted drug operations within a reasonably recent

time frame at 16 Holbrook Road. See Zayas-Diaz, No. 94-30-01-B,

slip op. at 7. Leon allows the trial court, in its "informed

discretion," to bypass the customary "merits" inquiry into

whether there existed a "substantial basis" for the probable

cause determination made by the issuing magistrate, and simply

decide instead whether the challenged search in all events came

within the "good faith" exception to the exclusionary rule.

Leon, 468 U.S. at 925; see Gates, 462 U.S. at 264-65 (White, J.,

concurring); see, e.g., United States v. Manning, 79 F.3d 212,

221 (1st Cir. 1996), petition for cert. filed, U.S.L.W.

(U.S. June 19, 1996) (No. 95-9375); Craig, 861 F.2d at 820

(discussing principles of "judicial restraint" and "precedent"

affecting Leon bypass determinations).8

8Leon identifies important prudential considerations that

inform the discretionary bypass decision at the suppression
stage.

If the resolution of a particular Fourth
Amendment question is necessary to guide
future action by law enforcement officers and
magistrates, nothing will prevent reviewing
courts from deciding that question before
turning to the good-faith issue. Indeed, it
frequently will be difficult to determine
whether the officers acted reasonably without
resolving the Fourth Amendment issue. Even
if the Fourth Amendment question is not one
of broad import, reviewing courts could de-

15

2. The Leon Exception
2. The Leon Exception

The instant Leon "good faith" analysis fundamentally

depends upon the "probable cause" concept itself. See supra

Section II.A.1. The "commission" and "nexus" elements in the

"probable cause" analysis each include a temporal component. The

issuing magistrate must not only consider the accuracy and

reliability of the historical facts related in the affidavits,

but must determine, inter alia, whether the totality of the

circumstances reasonably inferable from the affidavits demon-

strates a "fair probability" that evidence material to the

"commission" of the probable crime will be disclosed at the

search premises at about the time the search warrant would issue,

rather than at some remote time. See Sgro v. United States, 287

U.S. 206, 210 (1932); United States v. Wilkinson, 926 F.2d 22, 27

(1st Cir.), cert. denied, 501 U.S. 1211 (1991).

As the more serious challenge to the Graffam affidavit

focuses on its allegedly "stale" information, thus arguably

describing events that occurred at some remote earlier time, see

cide in particular cases that magistrates
under their supervision need to be informed
of their errors and so evaluate the officers'
good faith only after finding a violation.
In other circumstances, those courts could
reject suppression motions posing no impor-
tant Fourth Amendment questions by turning
immediately to a consideration of the
officers' good faith. We have no reason to
believe that our Fourth Amendment jurispru-
dence would suffer . . . .

Leon, 468 U.S. at 925. As neither party challenges the bypass

decision itself, we turn directly to the Leon exception.

16

Bucuvalas, 970 F.2d at 940, we devote particular attention to the

contemporaneity of the attested facts relating to Zayas' connec-

tion with 16 Holbrook Road at or about the time the search

warrant issued on March 4, 1994. As already noted, however,

ultimately the "probable cause" analysis takes into account the

totality of the circumstances reasonably inferable from the

reliable facts set forth in the Graffam affidavit. Thus, a weak

showing on a particular factor may be offset by more compelling

evidence on another relevant factor in the "probable cause"

analysis. See supra Section II.A.1.

Once the trial court elects to bypass the merits and

proceed with the Leon analysis, moreover, the "probable cause"

focus shifts. Since no deterrent purpose is served by sanction-

ing "objectively reasonable" law enforcement conduct, see United

States v. Ricciardelli, 998 F.2d 8, 15 (1st Cir. 1993) (citation

omitted), the "extreme sanction" of exclusion is inapplicable to

evidence seized pursuant to a search warrant obtained in an

"objectively reasonable" manner from a neutral magistrate, even

assuming the warrant or supporting affidavits were defective, see

Leon, 468 U.S. at 921, 926.

The Supreme Court employed four exemplars in Leon to

outline the ongoing role it envisioned for "exclusionary rule"

deterrence in circumstances where evidence is seized pursuant to

a search warrant: (1) the magistrate is "misled by information

in an affidavit that the affiant knew was false or would have

known was false except for his reckless disregard for the truth";

17

(2) the magistrate "wholly abandon[s] his [detached and neutral]

judicial role"; (3) the warrant is "so facially deficient [e.g.,

failing to list, with sufficient particularity, the evidence to

be seized] . . . that the executing officers cannot reasonably

presume it to be valid"; or (4) the supporting affidavits are

"`so lacking in indicia of probable cause as to render official

belief in its existence entirely unreasonable.'" Id. at 923

(citing Brown v. Illinois, 422 U.S. 590, 610-11 (1975) (Powell,

J., concurring in part)). The instant Leon dispute implicates

only the latter category.9

With respect to the critical temporal "nexus," Zayas

contends that the Graffam affidavit contained only "stale"

information that he resided or conducted drug operations at 16

Holbrook Road, since the second CI did not specify when he last

visited Zayas there. Absent other reliable evidence of a dis-

cernible temporal nexus, says Zayas, it was "entirely unreason-

able" for the executing officers to rely on the Graffam affidavit

as an adequate basis for the required "probable cause" showing.

See id. This challenge likewise impermissibly depends, in part,

9Zayas does not claim, for example, that the second CI told
the authorities the date he last visited Zayas at 16 Holbrook
Road, nor that such information was deliberately or recklessly
omitted from the Graffam affidavit. See, e.g., Craig, 861 F.2d

at 822 (noting that defendant did not contend that the Leon "good

faith" exception was unavailable because the affiant omitted
information from the affidavit to deceive the issuing judicial
officer). Of course, had Zayas meant to impugn police motives,
the appropriate course would have been to request an evidentiary
hearing under Franks. See Franks v. Delaware, 438 U.S. 154

(1978); United States v. Williams, 897 F.2d 1034, 1038 (10th

Cir. 1990), cert. denied, 500 U.S. 937 (1991).

18

upon the implicit assumption that the second CI misdescribed

exterior features of the premises, but see supra Section II.A,

despite the substantially contemporaneous aerial surveillance

which essentially corroborated the description given by the

second CI, and notwithstanding Graffam's vouching for the second

CI's reliability.

The lone respect in which this aspect of Zayas' Leon

challenge differs from that discussed above, see supra Section

II.A, is its focus on Graffam's undeniable failure to ascribe in

the affidavit an approximate date to the second CI's last visit

with Zayas at 16 Holbrook Road. At this juncture it is important

to note that the government must establish "objectively reason-

able" reliance on a defective warrant, see, e.g., Leon, 468 U.S.

at 924, based on all the circumstances, id. at 923; Ricciardelli,

998 F.2d at 15. Moreover, though the "clear error" standard

governs our review of any findings of fact, see, e.g., United

States v. Jackson, 67 F.3d 1359, 1366 (8th Cir. 1995), cert.

denied, 116 S. Ct. 1684 (1996), the ultimate determination as to

whether the executing officers acted in objectively reasonable

reliance on a defective warrant is reviewed de novo. United

States v. Procopio, 88 F.3d 21, 28 (1st Cir. 1996).10

10In our own case, the district court relied on the follow-
ing four grounds. First, in describing his "several" visits to
16 Holbrook Road, the second CI stated that Juan "lives," and
"deals" drugs, in Bedford. Zayas-Diaz, No. 94-30-01-B, slip op.

at 8. Next, the follow-up aerial surveillance of 16 Holbrook
Road "substantially" corroborated the second CI's description of
the residential grounds at 16 Holbrook Road. Id. Third,

Marcello Sosa admitted that his cocaine supplier, "Juan," "lived"
in Bedford. Id. at 8-9. Finally, the statements James McDowell

19

Were the critical time element presently under discus-

sion otherwise indiscernible within the four corners of the

Graffam affidavit, see Bucuvalas, 970 F.2d at 940, the government

might well have been unable to save the evidence seized at 16

Holbrook Road. See, e.g., United States v. Huggins, 733 F. Supp.

445, 449 (D.D.C. 1990) (Leon doctrine unavailing where court

could not infer, from information within "the four corners of the

affidavit . . . the time during which the criminal activity was

observed") (citing Herrington v. State, 697 S.W.2d 899, 900-01

(Ark. 1985)). Ostensibly, the second CI's statement that he had

visited with Zayas at 16 Holbrook Road on several occasions is a

prime example of "undated stale" information, which raises the

specter that "officers with information of questionable recency

[may] escape embarrassment by simply omitting averments as to

time." Rosencranz v. United States, 356 F.2d 310, 316 (1st Cir.

1966). Moreover, as the government all but conceded at oral

argument, it would seem that a reasonably well-trained law

enforcement officer should be familiar with the fundamental legal

principle that both the "commission" and "nexus" elements of

"probable cause" include an essential temporal component. See

Leon, 468 U.S. at 920, n.20. Without necessarily endorsing their

sufficiency, we acknowledge that the circumstantial consider-

ations relied upon by the district court, see supra note 10, are

made to the authorities in February 1994 that "Nelson Martell"
(Zayas) had been with Brenda Koehler when she leased the McDowell
garage, and the two "appear[ed] to be husband and wife"
provided some further support for a reasonable inference that
Koehler and Zayas lived together at 16Holbrook Road. Id. at 9.

20

relevant to the required nexus between the date the second CI

visited with Zayas at 16 Holbrook Road and the date the search

warrant issued.

Fortunately for the government, other circumstantial

indicia buttress the required temporal link. The analysis

suggested by Zayas disregards salient inferences which well-

trained, objectively reasonable law enforcement officers might

draw from the totality of the circumstances disclosed in the

Graffam affidavit. See Gates, 462 U.S. at 238 (requiring practi-

cal, common-sense "probable cause" assessments by issuing magis-

trates and reviewing courts). Thus, Zayas adroitly skews the

focus of the Leon debate, from whether a well-trained officer

reasonably could have relied upon a search warrant based on the

evidence described in the Graffam affidavit as well as all fair

inferences therefrom, to whether a well-trained officer would

have known that supporting affidavits whenever practicable should

provide at least approximate dates for pivotal events such as the

second CI's last visit with Zayas at 16 Holbrook Road.

While Zayas would win the latter debate hands-down, he

loses the former under Leon's "objectively reasonable officer"

test because the Graffam affidavit describes a collocation of

circumstances, as well as expert law-enforcement insights,

adequate to enable the recency of the critical last visit by the

second CI to be fairly inferred. See United States v. Jewell, 60

F.3d 20, 23 (1st Cir. 1995) (citing "totality of the circumstanc-

es" test, and rejecting defendant's invitation to "engage in a

21

piecemeal examination of the affidavit, and [to] base our review

of the clerk-magistrate's actions on `"bits and pieces of infor-

mation in isolation"'") (citation omitted). First, the Graffam

affidavit afforded ample basis for finding the second CI trust-

worthy.11 See supra Section II.A. Second, the link with 16

Holbrook Road, whether as Zayas' residence or drug operation

site, plainly satisfied the "probable cause" standard. All that

remained was the temporal component of the "commission" and

"nexus" elements. See supra pps. 13-15.

11The affidavit would enable a reasonably well-trained
police officer to conclude that the second CI was a reliable
informant, based both on Graffam's vouching and on the very
detail of the second CI's information about "Nelson Martell"
[Zayas], particularly the earlier cocaine-related arrest in
Connecticut, see supra note 7, which Graffam verified with the

Connecticut police before the affidavit was submitted.

22

As to the "commission" element, the ongoing nature of

Zayas' cocaine trafficking activities in the Manchester area was

amply demonstrated in the supporting affidavit: first, by Sosa's

admission that Zayas had supplied the six ounces of cocaine

seized from Sosa's residence on January 26, 1994, the date of

Sosa's arrest; and by the second CI, who informed the Manchester

police on February 24, 1994 twelve days before the challenged

search that Zayas, alias "Juan," "currently controls" cocaine

distribution at various Manchester business establishments,

including the Oasis Social Club. See supra Section I.A.1.

As to the "nexus" element, the pivotal linkage was the

second CI's statement that "Juan lives" in Bedford, where on

"several occasions" the second CI had visited "Juan" and seen

cocaine and cash in substantial quantities. Though imprecise,

these temporal references were related by the second CI in the

present tense, which at the very least would permit an objective-

ly reasonable officer to infer that the occurrences described

were substantially contemporaneous with the second CI's inter-

view, which in turn took place within twelve days of the warrant

application. The second CI's description of various exterior

features of 16 Holbrook Road, as substantially corroborated by

virtually contemporaneous aerial surveillance, likewise lent to

the probability that his last visit had been relatively recent,

rather than remote in time. The few minor discrepancies in the

second CI's descriptive account were by no means necessarily

attributable to a substantial time lapse. See Schaefer, 87 F.3d

23

at 567 (noting that "magistrate may reasonably choose to . . .

disregard petty inconsistencies" in informants' statements).

Finally, the second CI made statements that plainly imply regu-

lar, ongoing transactions at 16 Holbrook Road, e.g., that

"[S]panish males" arrived "every Tuesday" at the Bedford resi-

dence in automobiles bearing New York license plates.

Absent any indication or suggestion that Graffam

purposely withheld more precise temporal references adverse to

the warrant application, see supra note 9, it would be pure

speculation to credit Zayas' implicit premise that the last visit

the second CI had with Zayas at 16 Holbrook Road was necessarily

remote in time even though there was probable cause to believe

that Zayas was still trafficking cocaine less than two weeks

before the search. See, e.g., id. at 568 ("[I]t is common ground

that drug conspiracies tend to be ongoing operations, rendering

timely [two- or three-year-old] information that might, in other

contexts, be regarded as stale."); United States v. Hernandez, 80

F.3d 1253, 1259 (9th Cir. 1996) ("With respect to drug traffick-

ing, probable cause may continue for several weeks, if not

months, [from] the last reported instance of suspect activity.");

United States v. Smith, 9 F.3d 1007, 1014 (2d Cir. 1993) (weeks

or months); Rivera v. United States, 928 F.2d 592, 602 (2d Cir.

1991) (noting that in drug trafficking cases, information may be

weeks or months old). Finally, it is one thing to find use of the

past tense "lived" insufficient to indicate a current residence,

as Zayas urges; quite another to equate "lives" with "lived."

24

See supra Section I.A.2. It is one matter to find the term

"dealt" inadequate to indicate current drug dealing; quite

another to equate "deals" with "dealt." See id.

To this must be added the weight due Graffam's insights

into drug trafficking modi operandi, based on more than two

decades as a DEA agent. See supra Subsections I.A.4 & I.A.5.

Given Graffam's expertise, it would be "objectively unreasonable"

to conclude, as Zayas simply presumes, that mere stoppage of

postal deliveries and electrical utility services, or the use,

listing, and/or maintenance of other residential addresses, or

nominee owners such as Brenda Koehler, compelled an inference

that Zayas was no longer residing, conducting drug operations, or

keeping illicit drug-related records, at 16 Holbrook Road. Thus,

in no sense would it have been objectively unreasonable for a

well-trained police officer to believe there was a fair probabil-

ity that these developments were subterfuges prompted by Sosa's

recent arrest and designed to prevent detection, as the Graffam

affidavit indicated. See id.

III
III

CONCLUSION
CONCLUSION

We therefore conclude that a well-trained law enforce-

ment officer reasonably could have relied upon the Graffam

affidavit as adequate support for the issuing magistrate's

finding that there was a fair probability that drug trafficking

records would be found at 16 Holbrook Road on March 8, 1994.

Accordingly, the district court judgment is affirmed.
the district court judgment is affirmed.

25