United States v. Khounsavanh

United States Court of Appeals
For the First Circuit
For the First Circuit

No. 96-1244

UNITED STATES OF AMERICA,

Appellee,

v.

THAKHONE KHOUNSAVANH,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. Francis J. Boyle, Senior U.S. District Judge]

Before

Stahl, Circuit Judge,

Bownes, Senior Circuit Judge,

and Lynch, Circuit Judge.

Jennifer Petersen, with whom Karl R.D. Suchecki and Petersen &

Suchecki were on brief, for appellant.

Sheldon Whitehouse, United States Attorney, with whom Zechariah

Chafee, Assistant United States Attorney, was on brief, for appellee.

May 16, 1997

BOWNES, Senior Circuit Judge. Defendant Thakhone
BOWNES, Senior Circuit Judge.

Khounsavanh appeals his conviction for Conspiracy to

Distribute Cocaine Base and for Possession with Intent to

Distribute Cocaine Base. See 21 U.S.C. 841(a)(1), 846; 18

U.S.C. 2. He contends that the district court erred in

denying his motion to suppress the fruits of a search on the

ground that the affidavit underlying the search warrant

lacked sufficient information to support a finding of

probable cause. We affirm.

The Facts
The Facts

On May 23, 1995, Providence, Rhode Island police

officers executed a search warrant for the first floor rear

apartment at 676-678 Chalkstone Avenue, a three-family

tenement building. The warrant was based on an affidavit

submitted by Detective Freddy Rocha. According to the

affidavit, a confidential informant had told Detective Rocha

that two men were storing and selling crack cocaine in that

apartment. The affidavit described the two men as "'Fat Boy'

Alias John Doe . . . an Asian Male, Unkn. Age. 5'6" Tall and

170 Lbs. and 'Turtle' Alias John Doe. 5'7" 130 Lbs." The

informant also told the detective that he "could make a

purchase of cocaine from this subject." (The affidavit

alternates several times between referring to the subjects in

the singular and in the plural.)

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The detective sought to corroborate the informant's

story by taking him up on his offer to conduct a controlled

buy of cocaine from the apartment under the officer's

supervision. According to the affidavit, Detective Rocha

"drove to the Chalkstone Avenue area [and] searched the

informant for contraband. Finding none the informant was

given an amount of U.S. currency and directed to make a

purchase of cocaine from 'Fat Boy' and 'Turtle' at 676-678

Chalkstone Ave." The detective watched the informant enter

the building through the rear door and exit five minutes

later through the same door. The detective met the informant

at a pre-arranged location, where the informant handed him a

quantity of suspected cocaine which he stated he had

purchased from "Fat Boy." Tests later revealed that the

substance was indeed cocaine.

The detective then applied for a warrant to search

the first floor rear apartment at 676-678 Chalkstone Avenue

and/or the two men ("Fat Boy" and "Turtle"). The complaint

for the warrant (which was sworn to before a state court

judge) added to the affidavit's description the facts that

"Fat Boy" was approximately twenty-five years old with "short

hair balding," and that "Turtle" was an Asian male with black

short hair. The court issued the warrant, both as to the

premises and as to the persons of "Fat Boy" and "Turtle."

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The police executed the warrant the same day. When

the police entered the apartment, two men who approximately

fit the informant's descriptions fled to a bedroom. Three

other people were present in the apartment during the search

but did not leave the room they had been in when the police

arrived. One detective searched "Fat Boy" and found in his

front pants pocket a plastic bag containing fourteen smaller

bags of what tested out as crack cocaine. Another detective

found, in the ceiling of the kitchen, a bag containing 650

smaller bags of crack cocaine. Another small bag of powder

cocaine was found in the bedroom. In addition to the drugs,

the police seized the wallets and identification of the two

men who fled, one of whom is the defendant. They also found

in the apartment and seized a pager, bagging material, and a

gas bill on which the defendant's name appeared.

The defendant moved to suppress the fruits of the

search. After hearing, the district court denied the motion.

The defendant then entered a plea of guilty to Counts I and

II of the indictment, and the government dismissed Count III.

In his plea agreement, the defendant gave notice that he

intended to appeal the denial of his suppression motion,

pursuant to Fed. R. Crim. P. 11(a)(2).

Standard of Review
Standard of Review

In reviewing a denial of a suppression motion, the

district court's ultimate legal conclusion, including the

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determination that a given set of facts constituted probable

cause, is a question of law subject to de novo review. See

Ornelas v. United States, 116 S. Ct. 1657, 1659 (1996);

United States v. Zayas-Diaz, 95 F.3d 105, 111 n.6 (1st Cir.

1996). The district court's findings (if any) of historical

facts -- "the events which occurred leading up to the . . .

search," Ornelas, 116 S. Ct. at 1661 -- must be upheld unless

they are clearly erroneous. See id. at 1663; Zayas-Diaz, 95

F.3d at 111 n.6. A reviewing court must "give due weight to

inferences drawn from those facts by resident judges and

local law enforcement officers." Ornelas, 116 S. Ct. at

1663. But "the decision whether these historical facts,

viewed from the standpoint of an objectively reasonable

police officer, amount to . . . probable cause" is a mixed

question of law and fact which we review de novo. Id. at

1661-63.

Analysis
Analysis

The Fourth Amendment states: "The right of the

people to be secure in their persons, houses, papers, and

effects, against unreasonable searches and seizures, shall

not be violated, and no Warrants shall issue, but upon

probable cause, supported by Oath or affirmation, and

particularly describing the place to be searched, and the

persons or things to be seized." U.S. Const. amend. IV.

There is a strong preference for the use of search warrants.

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See Ornelas, 116 S. Ct. at 1663; Payton v. New York, 445 U.S.

573, 586 (1980). While the warrant requirement may be

dispensed with in certain exigent circumstances that are "few

in number and carefully delineated," United States v. United

States Dist. Court, 407 U.S. 297, 318 (1972), the probable

cause requirement is rigorously adhered to. See Arizona v.

Hicks, 480 U.S. 321, 326-27, 329 (1987). "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'" or that the search will turn up contraband. United

States v. Schaefer, 87 F.3d 562, 565 (1st Cir. 1996) (quoting

United States v. Aguirre, 839 F.2d 854, 857-58 (1st Cir.

1988)).

The standard we apply in determining the

sufficiency of an affidavit is whether the "totality of the

circumstances" stated in the affidavit demonstrates probable

cause to search either the premises or the person.1 See

Illinois v. Gates, 462 U.S. 213, 238 (1983). "[P]robable

cause need not be tantamount to proof beyond a reasonable

doubt. . . . Probability is the touchstone." Aguirre, 839

F.2d at 857 (internal quotation marks and citations omitted).

1. "The issuing magistrate ordinarily considers only the
facts set forth in supporting affidavits accompanying the
warrant application." Zayas-Diaz, 95 F.3d at 111.

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See Gates, 462 U.S. at 244 n.13 ("[P]robable cause requires

only a probability or substantial chance of criminal

activity, not an actual showing of such activity."). To

establish probable cause for a premises search, the

information available in the affidavit must show "a fair

probability that contraband or evidence of a crime will be

found in a particular place." Id. at 238. An affidavit

supporting a request for a search warrant must give the

magistrate a "substantial basis" upon which to conclude that

there is such a "fair probability." Gates, 462 U.S. at 238-

39. The facts must be judged against an objective standard:

"would the facts available to the officer at the moment of .

. . the search 'warrant a [person] of reasonable caution in

the belief' that the action taken was appropriate?" Terry v.

Ohio, 392 U.S. 1, 21-22 (1968).

In many cases, as here, part of the basis for

probable cause derives from information that the police have

obtained from an informant. Prior to Gates, the Court had

developed a two-pronged test for such a case: when the

warrant affidavit rests on hearsay -- an informant's report -

- the affidavit must inform the magistrate "of some of the

underlying circumstances from which the informant concluded

that the narcotics were where he claimed they were [the basis

of knowledge prong], and some of the underlying circumstances

from which the officer concluded that the informant . . . was

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'credible' or his information 'reliable' [the veracity

prong]." Aguilar v. Texas, 378 U.S. 108, 114 (1964);

Spinelli v. United States, 393 U.S. 410, 416 (1969). Gates

abandoned the notion that "these elements should be

understood as entirely separate and independent requirements

to be rigidly exacted in every case" before a probable cause

determination may be sustained. Gates, 462 U.S. at 230.

Gates replaced the two-pronged framework of Aguilar and

Spinelli with the totality of the circumstances test.

While eschewing a rigid adherence to each of the

Aguilar-Spinelli factors, Gates maintained the relevancy of

the considerations set forth in those cases. The Gates Court

surely did not intend that its totality test would

"threaten[] to 'obliterate one of the most fundamental

distinctions between our form of government, where officers

are under the law, and the police-state where they are the

law.'" Gates, 462 U.S. at 291 (Brennan, J., dissenting)

(quoting Johnson v. United States, 333 U.S. 10, 17 (1948)).

Nor did Gates intend for trial and appellate courts to

abdicate their responsibility to uphold the Fourth

Amendment's probable cause requirement. See Hicks, 480 U.S.

321. We have never read Gates as a total abandonment of

standards and rules of law in determining whether the state

may intrude on a citizen's privacy. Nor does Gates mean that

reviewing courts are writing on a clean slate when we

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confront the question of when an informant's information

rises to the level of probable cause. The Gates Court agreed

that the Aguilar and Spinelli factors, including "an

informant's 'veracity,' 'reliability' and 'basis of

knowledge' are all highly relevant in determining the value

of his report." Gates, 462 U.S. at 230; see Schaefer, 87

F.3d at 566 (the Aguilar and Spinelli factors are "highly

relevant," even after Gates).

We have recently offered a non-exhaustive list of

possible factors that a magistrate or reviewing court will

consider:

Among others, the factors that may
contribute to a "probable cause"
determination include whether an
affidavit supports the probable
"'veracity' or 'basis of knowledge' of
persons supplying hearsay information";
whether informant statements are self-
authenticating; whether some or all the
informant's factual statements were
corroborated wherever reasonable and
practicable (e.g., through police
surveillance); and whether a law-
enforcement affiant included a
professional assessment of the probable
significance of the facts related by the
informant, based on experience or
expertise. None of these factors is
indispensable; thus, stronger evidence on
one or more factors may compensate for a
weaker or deficient showing on another.

Zayas-Diaz, 95 F.3d at 111 (citations and footnote omitted).

The risk that the informant is lying or in error

need not be wholly eliminated. Rather, what is needed is

that "the probability of a lying or inaccurate informer has

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been sufficiently reduced by corroborative facts and

observations." 2 W. LaFave, Search and Seizure: A Treatise

on the Fourth Amendment 168 (3d ed. 1996) ("LaFave")

(quotation omitted). The judgment to be made is: when does

verification of part of the informant's story make it

sufficiently likely that the crucial part of the informant's

story (i.e., allegations that criminal activity has occurred

and that evidence pertaining thereto will be found in the

location to be searched) is true, such as would "'warrant a

[person] of reasonable caution in the belief' that [a search

would be] appropriate," based upon what the informant has

said? See Terry, 391 U.S. at 21-22.

In analyzing whether there is sufficient

corroboration, in verifying the reliability of the informant

or in demonstrating an adequate basis for knowledge, it is

not particularly probative for the informant to supply a lot

of details about irrelevant facts that other people could

easily know about and that are not incriminating, such as

describing all the furniture in an apartment or the

defendant's routine activities. Such details do not

demonstrate that the informant has a legitimate basis for

knowing about the defendant's allegedly criminal activity

which, after all, is what the affidavit must establish. "At

best, [such] details merit the conclusion that the informant

has been in the premises in question [or knows the

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defendant's daily routine], but since a direct statement to

that effect by the informant would not carry the day, it can

hardly be enough that this particular conclusion is reached

by inference from the statement of detail." 2 LaFave at 160

(footnote omitted). Unless such details, combined with other

circumstances, would in some way generate suspicion that

criminal conduct has occurred or that contraband or evidence

exists on the premises or on the person to be searched, they

would not warrant a prudent police officer in the belief that

a search would be appropriate. Cf. Alabama v. White, 496

U.S. 325, 332 (1990) (where anonymous caller told police a

woman would leave a certain apartment building at a

particular time and get into a particularly described car and

drive to a certain motel, and where surveilling officers

observed such behavior, these facts constitute a "close case"

to establish merely reasonable suspicion to make a Terry

stop).

In the instant case, the defendant challenges two

distinct aspects of the search: whether the police had

probable cause to obtain a warrant to search the apartment;

and whether the police were justified in searching the

defendant when they did. We will analyze each of these

aspects separately. We conclude that the warrant was based

upon sufficient facts to establish probable cause to search

the premises; then when that search was executed, additional

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information came to light which provided probable cause to

search the person of the defendant.

The government argues that a controlled buy,

observed by the officer, is per se sufficient to establish

probable cause to search the apartment. We disagree. A per

se rule is not appropriate in the context of protecting

precious Fourth Amendment freedoms. Fourth Amendment rights

"are not mere second-class rights but belong in the catalog

of indispensable freedoms. Among deprivations of rights,

none is so effective in cowing a population, crushing the

spirit of the individual and putting terror in every heart.

Uncontrolled search and seizure is one of the first and most

effective weapons in the arsenal of every arbitrary

government." Brinegar v. United States, 338 U.S. 160, 180

(1949) (Jackson, J., dissenting). "But the right to be

secure against searches and seizures is one of the most

difficult to protect. Since the officers are themselves the

chief invaders, there is no enforcement outside of court. . .

. Courts can protect the innocent against such invasions

only indirectly and through the medium of excluding evidence

obtained against those who frequently are guilty." Id. at

181. As Justice Scalia has written for the Court, "there is

nothing new in the realization that the Constitution

sometimes insulates the criminality of a few in order to

protect the privacy of us all." Hicks, 480 U.S. at 329.

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Moreover, a probable cause determination is

fundamentally a fact-specific inquiry. No one factor

possesses talismanic powers. Because of the importance of

Fourth Amendment freedoms to every American, and because of

the fact-specific nature of the probable cause inquiry, we

reject the government's contention that a controlled buy

should be per se sufficient to establish probable cause.

See United States v. Caggiano, 899 F.2d 99, 102 (1st Cir.

1990) (a determination of probable cause "cannot be based on

hard certainties and rigid rules"); cf. Richards v.

Wisconsin, 117 S. Ct. 1416, 1421 (1997) (rejecting a per se

exception to the knock-and-announce element of Fourth

Amendment's reasonableness requirement for felony drug

investigations). We hold instead that every case must be

evaluated "on its own facts and circumstances," Ker v.

California, 374 U.S. 23, 33 (1963) (internal quotation marks

omitted), with due consideration to the totality of all the

circumstances in that particular case, Gates, 462 U.S. at

238. See also Ornelas, 116 S. Ct. at 1661. "[T]he fact that

[a controlled buy] may frequently present circumstances

warranting [a finding of probable cause] cannot remove from

the neutral scrutiny of [a magistrate and] a reviewing court

the [existence of probable cause] in a particular case.

Instead, in each case, it is the duty of a court confronted

with the question to determine whether the facts and

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circumstances of the particular [affidavit in support of a

warrant application] justified" the issuance of the warrant.

Richards, 117 S. Ct. at 1421. Accordingly, we hold that

magistrates and reviewing courts must carefully review every

warrant application on its own merit, to determine whether

all the facts and circumstances of that case are sufficient

to establish probable cause to conduct a search.

We do agree, however, that, taking into account the

totality of circumstances in the instant case, the government

had established probable cause for the search of the first

floor rear apartment at 676-678 Chalkstone Avenue. According

to the officer's affidavit, the informant had told him that

he knew "Fat Boy" and "Turtle" were storing and selling drugs

in the apartment in question; the informant had offered to

make a purchase from those individuals in that apartment

(knowing that, if he was lying, he would be found out

relatively quickly); and the informant in fact went to the

apartment without crack cocaine, after having been patted

down, and emerged several minutes later with crack,

explaining that he had purchased the crack from "Fat Boy."2

While all these facts did not corroborate each other with

certainty, the combination of facts "'reduced the chances of

a reckless or prevaricating tale,' [and] thus provid[ed] 'a

2. The complaint contained additional facts but those were
not part of the affidavit. See infra at 20 & n.4.

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substantial basis for crediting the hearsay.'" Gates, 468

U.S. at 244-45 (quoting Jones v. United States, 362 U.S. 257,

269, 271 (1960)). Taken together, these facts were

sufficient to give the magistrate a "substantial basis" upon

which to conclude that there was a "fair probability that

contraband or evidence of a crime [would] be found" in the

apartment. See Gates, 462 U.S. at 238-39.

This case contains almost the exact same fact

pattern as in United States v. Garcia, 983 F.2d 1160 (1st

Cir. 1993). In Garcia, the defendant had moved to suppress

evidence seized during the search of an apartment in a three-

family building, on the ground that the affidavit underlying

the search warrant upon which the search team relied failed

to demonstrate probable cause for the search.

That affidavit, in essence, stated: that
[the affiant, a police detective] had
reason to believe that a large-scale drug
operation was being conducted out of the
second floor apartment of 93-95 Gallatin
Street; that he met with a reliable
confidential informant who told him that
two Hispanic persons were storing and
selling drugs; that the informant had
seen large amounts of cocaine in the
apartment; and that, to corroborate this
information, [the detective] executed a
"controlled buy" through the informant.
The affidavit fully described the
"controlled buy."

Id. at 1166. In Garcia, as here, the controlled buy was less

than ideal: the detective was able to watch the informant

enter and leave the building through its front door, but did

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not follow the informant into the building and thus was

unable to verify with certainty which apartment was the

source of the drugs (or even whether the drugs had been

secreted elsewhere in the building, as the defendant had

hypothesized). Id. at 1166-67. In addition, Garcia shared

another anomaly with the instant case: when the informant

handed the drugs to the officer, he reported that he had

purchased the drugs from "the Hispanic male [singular] who

resided in the second floor apartment," even though the

informant had previously told him that there were two

Hispanic persons involved in the drug-selling operation. Id.

at 1167.

We found that the state court judge issuing the

warrant and the district judge reviewing it "drew a

reasonable inference of probable cause that there was drug

trafficking in the second floor apartment of 93-95 Gallatin

Street." Id. Likewise, in the instant case, the affidavit

contained sufficient information to lead a reasonable person

to believe that crack cocaine was being stored in and sold

from the first floor rear apartment at 676-678 Chalkstone

Avenue, also a three-story tenement building.

The present case is controlled by Garcia even

though the affidavit there contained one fact that the

present affidavit did not: the detective in Garcia described

the informant as "reliable." This is a distinction without a

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real difference. A bald assertion of reliability, with no

allegations regarding the basis for the officer's belief that

the informant is reliable -- such as convictions obtained as

a result of information supplied in the past by the informant

-- is "entitled to only slight weight." United States v.

Foree, 43 F.3d 1572, 1576 (11th Cir. 1995) (internal

quotation marks omitted); see Gates, 462 U.S. at 239 ("An

officer's statement that 'affiants have received reliable

information from a credible person and do believe' that

heroin is stored in a home, is likewise inadequate."). Even

though the informant's past performance may be considered in

evaluating the credibility or reliability of the informant, a

mere allegation that the informant is "credible" or

"reliable" does not permit the judicial officer to assume

that any such past performance actually took place or that

the performance was of a nature to merit such a

characterization of the informant.

Thus, it is of only "slight" moment that this case

lacks the conclusory assertion of reliability that was

present in Garcia. The more important facts are the

similarities between the two cases: an informant who alleges

that drugs are being stored and sold in a particular

apartment, who offered to make a controlled buy and who did

make a controlled buy from the same apartment. The

corroboration of the informant's story did not consist merely

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of corroborating some innocent facts that any number of

people might know. This was corroboration of the very

criminal activity which the police were investigating, and of

the existence of contraband or evidence on the premises to be

searched. As such, it supports a finding of probable cause

in a way that facts about furniture or routine activities do

not.

To be sure, the controlled buy in this case was, as

the defendant claims, not free of problems. Compare United

States v. Cruz Jimenez, 894 F.2d 1, 3 (1st Cir. 1990)

(informant, searched first, had cocaine when she exited

defendant's motel room; that, plus what police overheard from

body recorder she wore during transaction, confirmed that she

obtained drugs from defendant). But as noted, in Garcia, 983

F.2d at 1166-67, we upheld a probable cause determination

where the facts, including the imperfections of the

controlled buy, were remarkably similar to those here.3

3. The government contends that, even if the affidavit did
not contain sufficient corroboration to establish probable
cause to search, suppression is not appropriate because of
the Leon good faith exception. See United States v. Leon,

468 U.S. 897 (1984). "This good faith exception, however, is
grounded in an objective standard of reasonableness. As a
result, an officer is required to have a 'reasonable
knowledge of what the law prohibits.'" United States v.

Fuccillo, 808 F.2d 173, 177 (1st Cir.), cert. denied, 482

U.S. 905 (1987) (quoting Leon, 468 U.S. at 920 n.20).

"Suppression is still an appropriate remedy when 'the
officers were . . . reckless in preparing their affidavit. .
. .'" Fuccillo, 808 F.2d at 178 (quoting Leon, 468 U.S. at

926). In Fuccillo, we held that the officers "were reckless

in not including in the affidavit information which was known

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The defendant further argues that the search

warrant was inadequate because of a few minor discrepancies

or errors in some facts in the affidavit and in the officer's

testimony about the name of the street from which he was

conducting surveillance during the controlled buy. We

disagree. The magistrate "may reasonably choose to . . .

disregard petty inconsistencies" in informants' statements.

Schaefer, 87 F.3d at 567 (quoted in Zayas-Diaz, 95 F.3d at

115-16).

We turn now to the defendant's claim that the

affidavit contained insufficient information to form the

basis for probable cause to search the person of this

defendant. This is a separate issue from the existence of

probable cause to search the premises which we have discussed

supra. Probable cause to search a person "must be supported

by probable cause particularized with respect to that

person." Ybarra v. Illinois, 444 U.S. 85, 91 (1979); United

States v. Sepulveda, 102 F.3d 1313, 1315 (1st Cir. 1996).

"[A] person's mere propinquity to others independently

suspected of criminal activity does not, without more, give

or easily accessible to them." Id. at 178. There, the

officers "simply did not 'take every step that could
reasonably be expected of them.'" Id. (quoting Massachusetts

v. Sheppard, 468 U.S. 981, 989 (1984)). In this case, it is

an open question whether this objective standard of
reasonableness was met. We need not reach this question,
however, since we determine the evidence is admissible, in
any event, on other grounds.

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rise to probable cause to search that person." Ybarra, 444

U.S. at 91; Sepulveda, 102 F.3d at 1315. The factors

discussed supra, while providing probable cause to believe

that the premises contained contraband or evidence of a

crime, do not alone provide a sufficient basis for the police

to have searched this defendant's person (on which they found

his identification which, coupled with the gas bill they had

found in the apartment, tied him to the premises).

The government argues that the "specificity and

detail" of the informant's descriptions of "Fat Boy" and

"Turtle" are so "precise" that they are "self-

authenticating," an additional factor that would support

issuing a warrant to search the person of this defendant

(citing Zayas-Diaz, 95 F.3d at 111). We disagree. It is

true that there may be cases where an informant provides such

a wealth of detail, with such a high degree of specificity

that it is unlikely that the informant is inventing these

assertions, and his veracity is supported through the very

specificity and detail of his statement. See id.; United

States v. Caggiano, 899 F.2d 99, 102-03 (1st Cir. 1990). In

the instant case, however, the so-called "precision" in the

affidavit -- "'Turtle' Alias John Doe. 5'7" 130 Lbs." -- is

not nearly enough to make the informant's statement self-

authenticating. This is true even if we accept the

government's invitation to consider as well the additional

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assertions contained in the complaint attached to the

affidavit: that "Turtle" was an Asian male with black short

hair.4

Nor does the controlled buy in this case offer a

corroborative cure for the affidavit's deficiencies. The

controlled buy -- during which the informant said he had

bought drugs from "Fat Boy," not from this defendant -- was

sufficient to cure the lack of probable cause to search the

premises but was inadequate to cure the lack of probable

cause to believe that a search of the defendant's person

would likely turn up contraband or evidence of a crime.

Nevertheless, once the officers entered the

apartment legally pursuant to the legal search warrant for

the premises, they observed two men fleeing who

(approximately) fit those admittedly sketchy descriptions.

This flight, coupled with the controlled buy monitored by the

detective and the informant's description (including height

and weight) of two alleged drug traffickers selling drugs out

4. The latter details were not included in the affidavit
itself, and "[t]he issuing magistrate ordinarily considers
only the facts set forth in supporting affidavits
accompanying the warrant application." Zayas-Diaz, 95 F.3d

at 111. The magistrate may also consider testimony given
before him or her, if the testimony was sworn to and made a
part of the affidavit. See Fed. R. Crim. P. 41(c). We need

not decide whether the complaint accompanying the affidavit
in this case should be considered as part of the affidavit,
because we hold infra that the police had probable cause to

search the defendant's person regardless of how we would
decide this issue.

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of that apartment, was sufficient to establish probable cause

to search the defendant's person, without a warrant.5 Thus,

even though the affidavit was insufficient to sustain a

warrant to search the person of this defendant, the affidavit

was sufficient to sustain a warrant to search the apartment,

and once the police entered the apartment legally, the

defendant's suspicious behavior (coupled with the informant's

report and the controlled buy) was sufficient to establish

probable cause to search the defendant for contraband or

evidence of a crime.

Conclusion
Conclusion

We cannot say that the affidavit here lacked

probable cause sufficient to justify a search of the first

floor rear apartment at 676-678 Chalkstone Avenue.

Nevertheless, we urge police officers to include in their

affidavits as much information as they can legally gather on

which to base a finding of reliability and basis for the

informant's knowledge. And we will require magistrates and

reviewing courts to scrutinize affidavits such as this one

carefully.

5. The warrantless aspect of the search of the defendant's
person was justified by exigent circumstances in this case:
two individuals who met an informant's descriptions of drug
dealers fled from police officers as they executed a search
warrant, during the investigation of a crime involving drugs
that could easily be disposed of. See McCabe v. Life-Line

Ambulance Serv., 77 F.3d 540, 545 (1st Cir. 1996); United

States v. Wihbey, 75 F.3d 761, 766 (1st Cir. 1996).

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As we said in the context of Rule 11, "[t]he more

meticulously [a legal rule] is adhered to, the more it tends

to discourage, or at least to enable more expeditious

disposition of" a defendant's attacks on asserted violations

of the rule. United States v. Martinez-Martinez, 69 F.3d

1215, 1225-26 (1st Cir. 1995), cert. denied, 116 S. Ct. 1343

(1996) (quoting United States v. Cotal-Crespo, 47 F.3d 1, 8

(1st Cir.), cert. denied, 116 S. Ct. 94 (1995), in turn

quoting McCarthy v. United States, 394 U.S. 459, 465 (1969)).

Therefore, "[a]lthough we conclude that the [probable cause

determination] in this case was adequate, we are nevertheless

compelled to remind district courts [and police and

magistrates] that, for the sake of judicial economy and

fundamental fairness, the best way to ensure that" the Fourth

Amendment's probable cause requirement is complied with is to

meticulously comply with it. Martinez-Martinez, 69 F.3d at

1225-26 (quoting Cotal-Crespo, 47 F.3d at 8); see Richards,

117 S. Ct. at 1421 (emphasizing importance of neutral

scrutiny of police behavior by a

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reviewing court to ensure compliance with Fourth Amendment in

particular case).

Affirmed.
Affirmed.

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