United States Court of Appeals
For the First Circuit
No. 03-2218
United States of America,
Appellee,
v.
Fernando Ribeiro,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Patti B. Saris, U.S. District Judge]
Before
Lynch, Circuit Judge,
Stahl, Senior Circuit Judge,
and Lipez, Circuit Judge.
Anthony M. Cardinale, with whom Kimberly Homan was on brief,
for appellant.
Cynthia A. Young, Assistant United States Attorney, with whom
Michael J. Sullivan, United States Attorney, was on brief, for
appellee.
February 8, 2005
LIPEZ, Circuit Judge. Fernando "Nando" Ribeiro was indicted
on February 20, 2002, on eight counts charging various drug
offenses. On May 13, 2002, he filed a motion to suppress evidence
seized during the execution of a search warrant for his apartment.
After a hearing, the district court denied the motion. On February
11, 2003, Ribeiro entered a conditional guilty plea to all counts,
permitting him to appeal the denial of his motion to suppress. On
August 18, 2003, he was sentenced to 180 months of imprisonment
(after a downward departure for diminished capacity under U.S.S.G.
§ 5K2.13) and eight years of supervised release.1
Ribeiro raises two issues on appeal relating to the search of
his apartment. First, he argues that there was no probable cause
for the search warrant. Second, he argues that even if there was
probable cause, the drugs found and seized by the police were not
within the plain-view exception to the warrant requirement.
Ribeiro frames his specific legal arguments in the context of
what he sees as a larger, growing problem in law enforcement -- a
"new breed" of "documentary search warrants" for drug dealers'
homes, which authorize searches for documents and drug
paraphernalia, but not for drugs themselves. According to Ribeiro,
these warrants are supported mainly with generalized observations
about drug dealers' habits (for example, that they frequently keep
1
When Ribeiro was sentenced under the federal sentencing
guidelines, they were mandatory. United States v. Booker, 125 S.
Ct. 738 (2005), later held them to be advisory only.
-2-
records of their illicit business in their homes), not specific
observations.
Notwithstanding Ribeiro's disapproval of the kind of warrant
used in this case, we find no error in its issuance or execution,
and we affirm the district court's denial of the motion to
suppress.
I.
On December 19, 2001, police officers executed a search
warrant for Ribeiro's apartment at 60 Reservoir Street in Brockton,
Massachusetts. The warrant did not authorize a search for drugs.
Instead, it covered records, currency, baggies, and other drug
paraphernalia. During their search, the officers found and seized
bags of cocaine, heroin, "crack" cocaine,2 and ecstasy, which they
said were exposed to their plain view in the bottom of a speaker
cabinet.
The Affidavit
The warrant was based on an affidavit from Detective Joseph
Gallarelli, a Boston police officer temporarily assigned to a Drug
Enforcement Agency (DEA) task force that had been investigating the
ecstasy trade in the Bridgewater, Massachusetts area since fall
2001. Det. Gallarelli's affidavit was based partly on information
provided by a confidential informant, who said that Nando lived
2
Crack cocaine's technical name is cocaine base; ecstasy's is
3,4 methylenedioxymethamphetamine, or MDMA.
-3-
near the "Foxy Lady," a strip club, and that he and his brother
were known to deal drugs in the area. The confidential informant
made three controlled buys of ecstasy from Nando in October or
November 2001. At the time of the buys, the informant was
accompanied by Det. John Silva III of the East Bridgewater Police
Department, who like Gallarelli was temporarily assigned to the DEA
task force. Det. Silva did not participate in the buys. Through
surveillance, booking records from another jurisdiction, and
records from the Massachusetts Registry of Motor Vehicles, the
police determined that "Nando" indeed referred to Fernando Ribeiro,
the defendant, and that he lived at 60 Reservoir Street. Also, at
times during their surveillance police saw Ribeiro driving two
cars: a Mercedes, registered in his name, and a BMW, registered in
his father's name.
The warrant was also based on four controlled buys of ecstasy
tablets by Det. Silva, operating undercover, at a local restaurant.
The first buy took place on November 20, 2001. Det. Silva called
the telephone number given by the informant (apparently a cell
phone). A man answering to the name "Nando" answered, and told
Det. Silva to call back in fifteen minutes. Det. Silva did so and
explained that he had $1,000 and wanted to buy 100 ecstasy tablets.
The two arranged to meet shortly at the Charlie Horse restaurant in
West Bridgewater. Police surveillance saw Ribeiro's Mercedes leave
60 Reservoir Street, and police saw the car arriving seven minutes
-4-
later at the Charlie Horse, but they did not observe Ribeiro while
he was in transit. Det. Silva then bought from Ribeiro 100 tablets
in a plastic baggie for $900; the tablets later field-tested
positive for ecstasy.
On November 29, 2001, Det. Silva again called Ribeiro, seeking
to arrange another purchase of ecstasy tablets at the Charlie
Horse. Ribeiro said that he could be there in twenty minutes. At
the time of the call, surveillance officers did not see the
Mercedes or BMW parked outside 60 Reservoir Street. About twenty-
six minutes after the call, Ribeiro pulled into the Charlie Horse
parking lot in the BMW, where he met Det. Silva and again sold him
100 ecstasy tablets in a plastic baggie for $900.
On December 6, 2001, Det. Silva arranged for a third buy. The
police established surveillance outside 60 Reservoir Street. At
3:55 p.m., Det. Silva called Ribeiro, and they arranged to meet at
the Charlie Horse in ten minutes. At 4:15 p.m., Det. Silva called
Ribeiro again and told him that he would be leaving in ten minutes.
Minutes later, police surveillance saw Ribeiro walk out of the
apartment building with a woman and child. After installing a baby
seat in the BMW, Ribeiro drove away with the woman and baby in the
car around 4:35 p.m. The police followed Ribeiro for a short
distance but lost him in traffic; at about 4:44 p.m., Ribeiro
pulled into the Charlie Horse's parking lot (with the woman and
-5-
child still in the car) and sold 100 ecstasy tablets in a plastic
baggie to Det. Silva for $900.
On December 13, 2001, after several telephone calls back and
forth between Det. Silva and Ribeiro, Ribeiro told Det. Silva that
he could meet him at the Charlie Horse in fifteen minutes. About
thirty minutes after that call, surveillance officers saw Ribeiro
arrive at 60 Reservoir Street in the Mercedes. After another
thirty minutes, officers saw Ribeiro drive away again; this time,
they were able to follow him until his arrival at the Charlie
Horse. Another $900 purchase of 100 ecstasy tablets in a baggie
followed.
On December 19, 2001, Det. Gallarelli filed an application for
a search warrant for Ribeiro's apartment at 60 Reservoir Street,
with his affidavit attached. In addition to the details specific
to Ribeiro (the three controlled buys by the confidential informant
and the four by Det. Silva), Det. Gallarelli's affidavit also drew
on his knowledge about drug crimes in general, distilled from his
twelve years as a police officer. Since April 1999, Det.
Gallarelli had been assigned to the DEA and had participated in a
variety of drug investigations, from street-level dealers to large-
scale traffickers and importers. As a way to tie Ribeiro's
observed criminal activity to his residence, the affidavit stated:
Based upon my training and experience, I know that drug
traffickers find it necessary to store large sums of cash
received from the sale and distribution of controlled
substances outside of the normal banking system. I also
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know that drug traffickers frequently maintain books,
records, receipts, notes, ledgers and other documents
relating to the transportation, ordering, sale and
distribution of controlled substances and monetary
instruments and other assets. Such documents are
generally maintained where they have ready access to
them, such as at their residences. They also commonly
keep addresses and telephone numbers in books or papers
that reflect names, addresses, telephone numbers and/or
paging numbers for their criminal associates. Drug
traffickers usually keep paraphernalia for packaging,
weighing and distributing controlled substances that may
include but are not limited to baggies and packaging
materials.
Before filing the application, Det. Gallarelli consulted an
Assistant U.S. Attorney, who advised him that, while the police had
collected enough information to get a so-called "documentary search
warrant" for Ribeiro's apartment, they did not necessarily have
enough to get a warrant to search for drugs themselves.
Consequently, the warrant's proposed scope was limited to six
categories of materials: (1) evidence showing control over the
premises, like delivered mail; (2) U.S. currency; (3) evidence of
proceeds from drug sales, and records of drug trafficking; (4)
baggies and other drug paraphernalia; (5) cell phones; and (6)
ledgers, notes, and other records relating to the drug trade, like
telephone address books and receipts. The warrant issued that same
day.
The Search
Later on December 19, 2001, the police arrived outside 60
Reservoir Street to execute the search warrant. They did not enter
immediately. About thirty minutes after they arrived, Ribeiro came
-7-
out of the building and was arrested. The police then entered the
building and knocked on his apartment's door, which was opened by
his eighteen-year-old girlfriend, Erika MacFadden, who had been
nursing their two-week-old baby in the bedroom. There was also a
five-month-old toy poodle in the apartment.
Ribeiro owned a large tower-type speaker cabinet, which sat
unplugged on the floor of his bedroom. Inside the cabinet were two
speaker units, stacked one on top of the other, with the lower unit
approximately six inches from the ground. Each unit was supposed
to be covered by a metal grill, which required a screwdriver to
remove. Once a grill had been unscrewed and taken off, however,
the speaker units were attached to the cabinet by simple clips and
could thus be easily removed and quickly replaced. Ribeiro
admitted that he unscrewed the bottom grill for easier access to
the inside of the cabinet. A police officer entering the bedroom
saw the lower speaker unclipped from the cabinet and hanging off to
the side, thus exposing the cabinet's insides to plain view. In
the space where the speaker normally belonged, the officer saw a
large clear plastic bag filled with white powder, which later
proved to be 200 grams of cocaine. The police seized the cocaine,
as well as other bags also inside that contained 140 grams of
heroin, seven grams of crack, and 6,000 ecstasy tablets. Elsewhere
in the apartment, police found and seized scales, a laptop
computer, plastic baggies, $65,000 in cash, and some identifying
-8-
documents (Ribeiro's driver's license and the apartment's rental
agreement in his name).
Ribeiro's Motion to Suppress
Ribeiro moved to suppress the drugs and other items seized by
police, arguing that Det. Gallarelli's affidavit did not establish
probable cause for a warrant to search for documents and drug
paraphernalia, and that the seized drugs were not within the plain-
view exception to the warrant requirement. In support of his
motion, Ribeiro and his girlfriend offered testimony at the
suppression hearing that conflicted with the police's version of
the search. Ribeiro testified that, when he last left the
apartment just before being arrested, the speaker had been clipped
into the cabinet; the drugs, which he admitted storing there, were
thus hidden from view. He testified that he was always careful to
conceal his drugs because he did not want his girlfriend or mother,
who sometimes visited to help with the new baby, to see evidence of
his drug-dealing. He also testified that he would not have left
his drugs exposed because he knew his puppy would surely have
chewed up the bags and made a mess. MacFadden, Ribeiro's
girlfriend, corroborated this testimony, saying that when the
police knocked on the door, she was in the bedroom nursing the
baby; when she got up to answer the door, the speaker was flush
against the cabinet. She had never seen the speaker left hanging
-9-
open before, and she would have noticed if it had been open then
with the bags of drugs visible inside.
The government's witnesses gave a different account. Det.
John Khoury, of the Brockton, Massachusetts Police Department, was
among five officers who entered Ribeiro's bedroom more or less
simultaneously. He testified that when he entered the bedroom, he
saw the bottom speaker unit unclipped from the cabinet and hanging
off to the side, enabling him to see into the cabinet and exposing
a bag of white powder to his view. After taking the bag out and
examining it, he replaced the bag and asked Det. Gallarelli (who
was still outside the building with Ribeiro) to join the search
party in the bedroom. Det. Gallarelli arrived, examined the scene,
and called the Assistant U.S. Attorney on the case (whom he had
consulted about the warrant application) for advice on whether to
proceed. The Assistant U.S. Attorney instructed the police to
continue the search.
On October 29, 2002, the district court denied Ribeiro's
motion to suppress, finding that Det. Gallarelli's affidavit
adequately supported the issuance of the search warrant. The
district court also found Silva's and Gallarelli's testimony "more
credible" than Ribeiro's and MacFadden's. It therefore upheld the
seizure of the drugs under the plain-view exception to the warrant
requirement: the officers were legally authorized by the warrant to
be in Ribeiro's bedroom looking for cash and drug-related
-10-
documents, and they saw the bag of white powder in plain view. As
for Ribeiro's argument that the officers were using the documentary
search warrant as a pretext to search for drugs, the district court
said that while the police officers may have been hoping to find
drugs, there is "no evidence that the scope of the search
substantially exceeded a reasonable interpretation of its
provisions."3
II.
In reviewing a denial of a motion to suppress, a court of
appeals reviews questions of law de novo and factual findings for
clear error. United States v. Khounsavanh, 113 F.3d 279, 282 (1st
Cir. 1997). In reviewing the affidavit supporting an application
for a search warrant, we give significant deference to the
magistrate judge's initial evaluation, reversing only if we see no
"substantial basis" for concluding that probable cause existed.
United States v. Feliz, 182 F.3d 82, 86 (1st Cir. 1999).
A. Probable cause for the search warrant
"A warrant application must demonstrate probable cause to
believe that (1) a crime has been committed -- the 'commission'
3
The district court added that, even if the drugs had not
been in plain view, the warrant authorized the officers to open the
speaker anyway. The speaker cabinet "stood out like a sore thumb
in the room" and the police had seen such speakers used before as
"hides" for contraband material, cash, and drug-related records.
Without questioning the correctness of this analysis, we focus on
the plain-view issue as an adequate basis for resolving this
appeal.
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element, and (2) enumerated evidence of the offense will be found
at the place to be searched -- the so-called 'nexus' element." Id.
In determining whether the nexus element is satisfied, a magistrate
has to make "a practical, common-sense decision whether, given all
the circumstances set forth in the affidavit before him, . . .
there is 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). Put differently, the application must give
someone of "reasonable caution" reason to believe that evidence of
a crime will be found at the place to be searched. Texas v. Brown,
460 U.S. 730, 742 (1983) (plurality op.).
Ribeiro concedes that the government had probable cause to
believe that he sold ecstasy (the crime) and that he lived in an
apartment at 60 Reservoir Street (the place to be searched); he
argues only that Det. Gallarelli's affidavit failed to demonstrate
a nexus between the two. For example, Ribeiro criticizes the
affidavit's lack of details about the confidential informant's
three controlled buys from him. Further, Ribeiro notes that only
once did the police manage to maintain constant surveillance over
him from the time that he left his apartment till the time that he
arrived at the Charlie Horse. Lastly, Ribeiro stresses that the
affidavit showed him to be only a small-time street dealer, in
contrast to the defendant in Feliz, who apparently operated as a
successful drug dealer for twelve years and who had the ability to
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sell as much as a kilogram of cocaine (worth about $22,000). One
can reasonably infer that such regular, large-scale traffickers
would need to keep detailed accounts, customer lists, and money "in
some safe yet accessible place," i.e., their homes. Feliz, 182
F.3d at 87-88. Ribeiro submits that the same reasoning does not
apply to his case, at least on the facts set forth by the
affidavit.
The government responds with five reasons why Gallarelli's
affidavit provided sufficient facts from which the magistrate judge
could infer that incriminating evidence would likely be found at
Ribeiro's apartment. First, surveillance suggested that Ribeiro
drove directly from his apartment to the four controlled buys. The
police managed to tail him the whole way on one occasion, and on
two other occasions they saw him leave 60 Reservoir and arrive at
the Charlie Horse seven and nine minutes later. Second, it was
reasonable to suppose that Ribeiro needed to keep the cash he
collected and used in his business in a "safe yet accessible
place," id., which for him would be his home. The affidavit
established that Ribeiro had received $3,600 from police in their
four deals, as well as additional sums from his transactions with
the confidential informant. Third, it was also reasonable to infer
that a regular drug trafficker like Ribeiro kept records of his
deals at his home, even if the affidavit did not show him to be a
large-scale, long-time dealer as in Feliz. Fourth, the affidavit
-13-
established that Ribeiro lived at 60 Reservoir and connected his
drug-dealing to that apartment. Fifth, the magistrate judge
properly credited Gallarelli's experience derived from numerous
drug investigations, which made the affidavit more than just a
bare-bones recitation of the officer's suspicions and conclusions.
The probable-cause nexus between enumerated evidence of the
crime and the place "can be inferred from the type of crime, the
nature of the items sought, the extent of an opportunity for
concealment and normal inferences as to where a criminal would hide
[evidence of a crime]." United States v. Charest, 602 F.2d 1015,
1017 (1st Cir. 1979). Here, in going to the Charlie Horse's
parking lot for the four controlled buys, Ribeiro left from his
apartment three times and appeared to go directly to the
rendezvous.4 It is true, as Ribeiro stresses, that only once, on
December 13, were police officers able to tail him the whole way.
Two other times, however, Ribeiro was out of police sight for less
than ten minutes, which suggests that he was not stopping along the
way. Once, Ribeiro even brought his girlfriend and baby along for
the ride from home, further suggesting the extent to which his drug
dealing and home life were intertwined.
Also compelling is the readiness with which Ribeiro was able
to supply Det. Silva's requests for ecstasy. Four times in three-
4
On November 29, 2001, Ribeiro arrived at the Charlie Horse
without appearing to have come directly from his apartment.
-14-
and-a-half weeks, Det. Silva was able to call Ribeiro and arrange
to buy 100 tablets. Ribeiro never said that he would have trouble
supplying those amounts; on three occasions, within about seventy
minutes after Det. Silva's call, the two were able to meet for the
transaction. On the days of those transactions, at least, Ribeiro
had ecstasy in sufficient quantities to handle 100-tablet requests
with no trouble.
Ribeiro's behavior leading up to the December 13 sale is
especially probative of the relationship between his drug dealing
and his home. That afternoon, after a few telephone calls back and
forth between the two men (Ribeiro either did not answer or asked
Det. Silva to call back later), Ribeiro finally said that he was
ready to meet "in fifteen minutes." After this last conversation,
which took place at about 6 p.m., Det. Silva drove to the Charlie
Horse to wait. Around 6:30 p.m., surveillance saw Ribeiro pull up
to 60 Reservoir Street, go inside for about thirty minutes, then
leave and drive directly to the Charlie Horse, where he sold the
ecstasy pills to Det. Silva. Although Ribeiro could have had other
reasons for going home before meeting Silva, it is reasonable to
think that he wanted to draw on a supply of ecstasy that he kept
there.
The affidavit also established Ribeiro's need to store
significant quantities of cash. At four controlled buys, Det.
Silva handed Ribeiro a total of $3,600. A few weeks earlier,
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Ribeiro had taken part in three other controlled buys from a
confidential informant (for amounts of money unspecified in the
affidavit), for a total of at least seven drug transactions in the
last three months of 2001. Although this business was not on the
scale of the defendant in Feliz (who, according to a confidential
informant, had been regularly selling cocaine for twelve years),
Ribeiro nevertheless accumulated a substantial amount of cash that
he would have to keep in a "safe yet accessible place." Feliz, 182
F.3d at 87-88. It was reasonable to infer that Ribeiro would use
his apartment for such needs.
The affidavit also includes observations drawn from Det.
Gallarelli's general training and experience in drug cases --
namely, that drug traffickers frequently use their homes for
storing cash and records relating to their illicit activity. See
id.; Charest, 602 F.2d at 1017; United States v. McClellan, 165
F.3d 535, 546 (7th Cir. 1999) ("[I]n the case of drug dealers
evidence is likely to be found where the dealers live.") (internal
quotation marks and emphasis omitted). Alone, such generalized
observations may not be enough to satisfy the nexus element. See,
e.g., United States v. Schultz, 14 F.3d 1093, 1097 (6th Cir. 1994)
(an officer's training and experience "cannot substitute for the
lack of evidentiary nexus"); United States v. Benevento, 836 F.2d
60, 71 (2d Cir. 1987) (agent's expert opinion "standing alone,
might not be sufficient to establish a link" between the place
-16-
searched and the criminal activity), abrogated on other grounds by
United States v. Indelicato, 865 F.2d 1370 (2d Cir. 1989); see also
United States v. Rosario, 918 F. Supp. 524, 528-30 (D.R.I. 1996);
United States v. Rios, 881 F. Supp. 772, 775 (D. Conn. 1995).
However, when combined with specific observations about Ribeiro's
movements back and forth from his residence in relation to drug
transactions, these general observations contribute significantly
to the probable-cause determination.
Still, the facts of this case do provoke a question: why did
the government seek a warrant authorizing a search only for
documents and drug paraphernalia, and not for drugs themselves? We
can find no sure answers in the record. Det. Gallarelli testified
at the suppression hearing simply that: "It was determined by the
U.S. Attorney's Office that we had enough to go ahead with a
documentary search warrant, but maybe not necessarily enough to
search for drugs." At oral argument, the government's attorney
could not shed any more light on that determination, saying only
that she believed that there was probable cause to search for
drugs.
Of course, Ribeiro's explanation is that there was no probable
cause to search for drugs, and that a documentary search warrant
was a way around this problem -- a mere pretense, a way to justify
the police's entry into the apartment, at which point they could go
after what they really wanted. Moreover, Ribeiro envisions this
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phenomenon as coming "dangerously close" to gutting the nexus
requirement for searches of drug dealers' homes: "If the nexus
requirement is to maintain its central role as a bulwark against
unwarranted governmental intrusion into people's homes, then even
searches of the homes of putative drug dealers must rest upon
something more than mere supposition and boilerplate."
This disparagement of Det. Gallarelli's reliance on his
training and experience in drug cases as "boilerplate" -- i.e.,
"stereotyped or formulaic writing" -- is unpersuasive. 2 Oxford
English Dictionary 363 (2d ed. 1989).5 Sometimes formulations
become boilerplate because they are so often true and relevant. It
would be perverse for a court, bound to undertake an analysis of
"fair probability," Gates, 462 U.S. at 238, to ignore such
statements because of their broad applicability. Moreover, Ribeiro
does not cite any cases or secondary sources to support his theory
about the abuses of documentary search warrants.6
Certainly this kind of warrant (without the characterization)
is known in the case law. See, e.g., Feliz, 182 F.3d at 88; United
5
The term originally referred to the thick iron plates used
in building steam boilers, whereas "the modern sense comes from the
use of the term to refer to copy set on printing plates (or molds
to make the plates) and distributed in that form to newspapers.
The copy could not be edited." Black's Law Dictionary 185 (8th ed.
2004). Lawyers then borrowed the term.
6
A search on Westlaw for the term "documentary search
warrant" (in quotation marks) in all federal and state cases
produced zero hits. (Now, presumably, there will be one.)
-18-
States v. Thomas, 989 F.2d 1252, 1254 (D.C. Cir. 1993) (warrant
authorized police to search for "books, ledgers, records and other
documents," as well as the clothing worn by the defendant during
sale to undercover officer earlier that day); United States v.
Williams, 974 F.2d 480, 481-82 (4th Cir. 1992) (per curiam)
(affidavit establishing that known drug dealer currently resided in
a motel room was sufficient to support warrant for records,
documents, money, and paraphernalia used in the sale and
distribution of narcotics); United States v. Gonzalez, 940 F.2d
1413, 1419-20 (11th Cir. 1991) (warrant for "documents and United
States currency related to the illegal importation and distribution
of controlled substances"). Although none of these cases use the
term "documentary search warrant" or refer to it as a concept,
their discussion of warrants comparable to the one here belies any
claim that the warrant reflects a new phenomenon.
In the final analysis, we do not have to determine why the
government concluded that it might not have probable cause to
search for drugs in Ribeiro's apartment. The determinative
question is whether it established probable cause for the search
warrant it obtained. On that point we have no reservations. This
is not a case where the issuance of the warrant was based only on
Det. Gallarelli's general knowledge and experience. Here, the
police observed Ribeiro on several occasions when it was virtually
certain that he left his residence carrying the ecstasy tablets
-19-
that he would presently sell to Det. Silva. Given those
observations, there was probable cause to think that police would
find in Ribeiro's apartment the incriminating evidence listed in
the affidavit: hundreds or thousands of dollars in cash, baggies
(like the ones Ribeiro's ecstasy came packaged in) and other
packaging materials, and records relating to Ribeiro's regular drug
sales, like receipts from past sales or telephone address books
with customers' names. The details of Ribeiro's sales derived from
police surveillance, when combined with the generalities of the
illicit drug trade attested to by Det. Gallarelli, provided a
sufficient basis for the magistrate judge's finding of probable
cause to issue the search warrant.7
B. Plain-view exception to the warrant requirement
Ribeiro offers a fair statement of the plain-view issue in
this case: "The plain-view issue . . . , assuming that the Court
concludes that the warrant was supported by probable cause, can be
simply expressed: was the speaker hanging out of the cabinet,
permitting a view into the interior of the cabinet, when the
officers entered Ribeiro's bedroom or did one of them, as Ribeiro
contended, remove the speaker from the cabinet themselves?"
Ribeiro then claims that the resolution of this issue involves more
7
Because we find that the warrant was supported by probable
cause, we do not reach the government's alternative argument based
on the good-faith exception of United States v. Leon, 468 U.S. 897
(1984).
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than a simple credibility contest between the police, on the one
hand, and Ribeiro and his girlfriend, on the other. To convince
us, he offers a number of creative arguments and alternative
theories about why he would not have done what the government says
he did. We are unpersuaded.
First, in a familiar note, Ribeiro dismisses the documentary
search warrant as a mere pretense because the police intended to
search for drugs from the outset. Ribeiro emphasizes that the
police asked him where his drugs were immediately upon arrest, and
the officers in the apartment asked his girlfriend the same
question. As the district court correctly noted, however, this
argument is a dead-end. As long as the search was within the scope
of the warrant, it is no matter that the officers may have hoped to
find drugs:
The fact that an officer is interested in an item of
evidence and fully expects to find it in the course of a
search should not invalidate its seizure if the search is
confined in area and duration by the terms of a warrant
or a valid exception to the warrant requirement.
Horton v. California, 496 U.S. 128, 138-39 (1990); see also United
States v. Robles, 45 F.3d 1, 6 n.3 (1st Cir. 1995) ("'inadvertence'
is not a necessary condition of a plain view seizure"); United
States v. Giannetta, 909 F.2d 571, 578 n.6 (1st Cir. 1990) (same).
Second, Ribeiro claims that it simply "defies belief" that he
would have left the drugs in plain view because (1) he wanted to
keep his girlfriend ignorant of his dealing and (2) more
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importantly, he had a "young puppy in the apartment known for
chewing up everything in sight." If he had left the speaker open,
"the result would likely be a dead puppy and ruined drugs." The
reality is that people can be careless. That fact did not require
the district court to reject the testimony of the police officers.
Third, although Det. Khoury testified that he did not remove
the speaker cover, Ribeiro faults the government for not disproving
the possibility that another officer may have done so before Khoury
entered the room. The government's burden to prove its entitlement
to the plain-view exception8 does not mean, however, that it must
disprove all of the defendant's alternative theories, no matter how
speculative or implausible. Based on Det. Khoury's testimony, the
district court found that he and the other officers entered the
room "more or less simultaneously." Ribeiro's sheer speculation
aside, there is nothing to suggest that the district court's
finding was clearly erroneous or that the police officers had time
for the shenanigans that he suggests.
Affirmed.
8
United States v. Rutkowski, 877 F.2d 139, 141 (1st Cir.
1989) ("The government, of course, has the burden of establishing
entitlement to the exception . . . .").
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