United States Court of Appeals
For the First Circuit
For the First Circuit
No. 96-1535
UNITED STATES OF AMERICA,
Appellee,
v.
TARIQ PERVAZ,
Defendant, Appellant.
No. 96-1536
UNITED STATES OF AMERICA,
Appellee,
v.
JIMMIE ALZAMORA,
Defendant, Appellant.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Mary M. Lisi, U.S. District Judge]
Before
Boudin, Circuit Judge,
Bownes, Senior Circuit Judge,
and Lynch, Circuit Judge.
William J. Murphy for appellant Tariq Pervaz, Thomas G. Briody,
for appellant Jimmie Alzamora.
Sheldon Whitehouse, United States Attorney, with whom Andrew J.
Reich, Assistant United States Attorney, was on brief for appellee.
June 24, 1997
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BOWNES, Senior Circuit Judge.
BOWNES, Senior Circuit Judge.
Defendants/Appellants Jimmie Alzamora and Tariq Pervaz were
indicted and charged with seven counts of fraud and related
activities involving access devices to telephone calls
transmitted by cellular phones, in violation of 18 U.S.C.
1029(a)(1), (a)(2), (a)(3), (a)(4), (a)(5), (a)(6), and
1029(b)(2) (conspiracy to commit offenses).
There was a hearing in the district court on a
motion to suppress filed by Alzamora and Pervaz. The
suppression motion was denied. Alzamora and Pervaz entered
conditional pleas of guilty to all seven counts of the
indictment, reserving their right to appeal the district
court's denial of the suppression motion.
Alzamora was sentenced to fourteen months
imprisonment and ordered to pay restitution in the amount of
$190,275,33. Pervaz was sentenced to eighteen months
imprisonment and ordered to pay restitution in the same
amount as Alzamora -- $190,275,33. Both defendants appeal
their convictions and the restitution order. Pervaz has not
filed a brief on appeal; he has chosen to rely on the brief
filed by his co-defendant Alzamora. Except as noted
otherwise, we treat both defendants as one in this opinion.
STANDARD OF REVIEW
STANDARD OF REVIEW
The applicable standard of review has been set
forth in detail in Ornelas v. United States, 116 S. Ct. 1657,
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1661-63 (1996). We condensed that teaching in the recent
case of United States v. Khounsavanh, No. 96-1244, slip op.
at 4-5 (1st Cir. May 16, 1997):
In reviewing a denial of a
suppression motion, the district court's
ultimate legal conclusion, including the
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
1661-63.1
1. We are surprised in light of Ornelas by the government's
statement in its brief at page 27:
The magistrate's finding of probable
cause to support the warrant is entitled
to great deference. United States v.
Ciampa, 793 F.2d 19, 22 (1st Cir.
1996)[sic].
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THE FACTS
THE FACTS
A) Background
A) Background
Defendants were convicted of taking part in a
telephone "cloning" operation. Some background information
is necessary. Cellular phones transmit messages by radio
waves, not wires. Telephone companies, e.g., AT&T, Sprint,
and MCI, offer their customers the use of an access device
number called a mobile identification number (MIN), which
allows customers to make and receive both local and long
distance telephone calls through their cellular telephone
carriers, e.g., Cellular One, Mobile Communications, SNET,
and COMCAST. Cellular telephone customers are also assigned
Electronic Serial Numbers (ESN) for their phones. Both MINs
and ESNs are access devices within the meaning of the
statute, 18 U.S.C. 1029(e)(1).
Cellular telephone subscribers are assigned a
combination of an MIN and an ESN to access cellular service.
The MIN/ESN combination number also is used by the carrier
for billing its cellular phone subscribers. The MIN/ESN
access combination is programmed on "Erasable Programmable
Read Only Memory" (EPROM) located on a computer chip which is
part of the circuitry of the telephone.
A cellular telephone "cloning" operation is a
scheme to defraud in which MIN/ESN combinations issued to
subscribers are stolen and reprogrammed on a nonsubscriber's
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cellular telephone so as to obtain use of the subscriber's
account. The cloning is accomplished by attaching the
nonsubscriber's cellular phone to a personal computer through
a specially designed interface cable. The cable, used with
customized cloning software, gains access to the "EPROM"
computer chip and the stolen MIN/ESN number is programmed
onto the computer chip in the nonsubscriber's cellular phone.
Customers pay those running the fraudulent scheme a fee to
use the stolen MIN/ESN numbers to make local, long distance
or international phone calls which are billed to the stolen
account. The fee is, of course, less than the regular rates.
The subscriber does not know that his access number is being
used by others until he gets his telephone bill.
B) Suppression Hearing Evidence
B) Suppression Hearing Evidence
At the outset of our rehearsal of the evidence
adduced at the suppression hearing, we caution the reader
that the dates of conversations and events are an important
factor in our determination whether the employees of Cellular
One of Boston (COB) were acting as government agents. The
case, for our purposes, begins on September 13, 1995, when
employees of Southern New England Telephone Company (SNET)
and Cellular One of Rhode Island (CORI) informed the U.S.
Secret Service that a disproportionately large number of
international telephone calls were being made from a cellular
phone (or phones) located in Cranston, Rhode Island.
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The Secret Service, through Special Agent James
Barnard, called CORI the next day (September 14) for further
information and talked to Dan Mott, a service technician.
Mott told Barnard that a number of the international calls
had been made with MINs which were not in the calling area to
which the MINs were ordinarily designated. Barnard was
further informed by Mott that the calls were being made
through one cellular phone location. Barnard asked if Mott
had any equipment that could pinpoint the exact site of the
calls; Mott said that he did not have such equipment.
On September 14, 1995, Barnard called the Secret
Service Office in Boston and inquired whether it had any
site-location equipment. He was told that it did have such
equipment but that it was not available. Barnard was also
told that COB might be able to help him.
Barnard called COB later the same day (September
14) and talked to Ron Anderson. He explained the situation
and asked if COB had equipment that could locate the source
of the cloned calls. Barnard advised Anderson that COB
customers were among those being defrauded by the cloning
operation. Anderson told Barnard that COB had equipment that
would help locate the exact source of the calls, but that he
would have to check with COB's legal department to see
whether the equipment could be used in Rhode Island. After
being told by Anderson that COB's customers were being
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defrauded, COB's legal department advised Anderson that the
tracking equipment could be used in Rhode Island. Instead of
calling Barnard back as promised, Anderson and two other COB
employees went to Cranston, Rhode Island, the afternoon of
September 14 in a van carrying the tracking equipment.
The frequencies used to make the international
calls were obtained by Anderson from SNET. Using these
frequencies, Anderson and his crew proceeded in the van to
the general source area of the calls. The tracking equipment
was then put into operation. Anderson and the two other men
(Dan Valios and Rick Wade) monitored the frequency of the
cellular phone calls and also listened to telephone
conversations. Wade testified that they could have
determined the source of the phone calls without listening to
the phone conversations, but that the audio interception
established that the tracking equipment was working properly.
He also testified that the intercepted conversations were not
in English and that none of those in the van understood what
was being said. After driving around Cranston for about half
an hour, the tracking equipment pointed to two adjacent
houses as the probable source site. Wade got out of the van
and using a hand-tracking device pinpointed the source of the
calls as the left side of the first floor of a multi-family
dwelling with the address of 156-158 Woodbine Street.
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Anderson called Agent Barnard after the source
phone site had been pinpointed and informed Barnard of what
had been done. The following day, September 15, Barnard
applied for and obtained a warrant to search the apartment on
the left side of the building at 156 Woodbine Street,
Cranston, Rhode Island. The warrant was executed on
September 15. Federal agents arrested defendants on the
premises and seized a number of cellular telephones, computer
equipment and other evidence of the cloning operation.
THE ISSUES
THE ISSUES
Before we address the main issues -- whether COB's
employees were acting as government agents, and the legality
of the search warrant -- we consider two issues raised by the
government. The first is the government's argument, not
raised in the district court, that because neither defendant
had a privacy interest in the apartment searched, neither had
standing to challenge the legality of the warrant. The
government argues that it had no duty to assert a lack of
privacy interest below because defendants had the burden of
proving it. We are reluctant to allow the government to trap
an unwary defendant by raising a lack of privacy interest for
the first time on appeal unless it is absolutely clear that
the defendant had no privacy interest in the premises,
vehicle, or container searched. See United States v. Soule,
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908 F.2d 1032, 1034-36 (1st Cir. 1990); United States v.
Miller, 636 F.2d 850, 853-54 (1st Cir. 1980).
This is not such a case. The following facts can
be fairly found or inferred from the record: Defendant Peraz
leased the premises. He and defendant Alzamora were friends
or, at least, partners in crime. Alzamora moved into the
apartment where the fraudulent phone calls were made and
remained there several days with the blinds drawn. Both
defendants were in the apartment when the warrant was
executed. These facts are not sufficient for us to decide
the privacy question one way or the other.
In Combs v. United States, 408 U.S. 224, 226-27
(1972), the Court held that where the court of appeals had
found no standing and the government had not challenged
defendant's standing in the district court, the issue should
be remanded to the district court so the defendant could have
an opportunity to show standing. In United States v.
Bouffard, 917 F.2d 673 (1st Cir. 1990), the government
conceded standing in the district court and on appeal, but a
privacy interest was not apparent on the record. We held:
"Considerations of fundamental fairness warrant remand in
order to afford the defendant an opportunity to attempt to
establish the requisite expectation of privacy." Id. at 677.
There are cases in other circuits that are directly critical
of the government's failure to address standing in the
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district court. In United States v. Dewitt, 946 F.2d 1497,
1500 (10th Cir. 1991), the court held: "The government
offers no excuse for its failure to raise the standing issue
in a timely fashion at the suppression hearing. Accordingly,
the argument is waived." The court relied on Steagald v.
United States, 451 U.S. 204 (1981). In United States v.
Morales, 737 F.2d 761, 763 (8th Cir. 1984) (footnote
omitted), the Eighth Circuit held:
Despite appellant's failure to prove that
he had a legitimate expectation of
privacy in room 141, we nonetheless find
that because of the inconsistent
positions the government has taken at
trial and on appeal concerning
appellant's alleged disclaimer of
knowledge of the key, the government has
lost its right to challenge appellant's
standing.
If the privacy question was vital, we would, at the
very least, remand to the district court for factual
findings. Because, however, it is not, we will assume
standing for purposes of this appeal.
The other argument the government makes is purely
legal: There was no violation of the Electronic
Communications Privacy Act because locating a transmitter
broadcasting on a radio frequency does not constitute
"intercepting" a communication under the Electronic
Communications Privacy Act (ECPA), 18 U.S.C. 2510 et seq.
We are aware that there are cases holding that users of
cellular phones are not protected by the Fourth Amendment.
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See In Re Askin, 47 F.3d 100, 104 (4th Cir. 1995); United
States v. Smith, 978 F.2d 171, 174-76 (5th Cir. 1992). The
operative facts in these cases, however, took place before
the provision in 18 U.S.C. 2510(1) expressly excluding the
radio portion of a cordless telephone communication from the
protection of the Act was deleted by amendment in 1994. See
Pub. L. No. 103-414 202(a)(1). Moreover, in the instant
case, more took place than just locating the source of a
radio frequency; those tracking the broadcast frequency
listened to the actual conversations being transmitted. This
appears to be covered by the Act. We see no point, however,
in deciding what appears to be a thorny question not
necessary to our decision. We follow the district court's
lead and assume, without deciding, that the Act applies.
A) Issues Raised by Defendants
A) Issues Raised by Defendants
The first issue is whether the employees of
Cellular One of Boston (COB) were acting as government agents
when they tracked the radio frequency of the cloned cellular
phone. Under 18 U.S.C. 2511(2)(a)(i), it is not unlawful
for the employee of a provider of wire or electronic
communication services whose facilities are used in the
transmission of wire or electronic communication, "to
intercept, disclose, or use that communication in the normal
course of his employment while engaged in any activity which
is a necessary incident to the rendition of his service or to
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the protection of the rights or property of the provider of
that service . . . ." The following subsection, (2)(a)(ii),
authorizes such employees "to provide information,
facilities, or technical assistance to persons authorized by
law to intercept wire, oral, or electronic communications . .
. ."
It is evident that COB's employees, on learning
from Secret Service Agent Barnard that COB customers were
being defrauded by the cloning operation, had a statutory
right to track the radio frequency of the cloned phone. If
the COB employees were government agents, however, the
requirements of the Fourth Amendment would override statutory
authority.
The question remains, were the employees acting as
agents of the government? See United States v. Mendez-de
Jesus, 85 F.3d 1, 2-3 (1st Cir. 1996) (Fourth Amendment does
not apply to private action unless private party acted as
agent or instrument of government.)
Various tests have developed for determining
whether a private entity has acted as a government agent.
For example, see United States v. Pierce, 893 F.2d 669, 673
(5th Cir. 1990). The Sixth Circuit in United States v.
Lambert, 771 F.2d 83 (6th Cir. 1985) has stated the rule as
follows:
A person will not be acting as a police
agent merely because there was some
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antecedent contact between that person
and the police. United States v.
Coleman, 628 F.2d at 965. Rather, two
facts must be shown. First, the police
must have instigated, encouraged or
participated in the search. Id. Second,
the individual must have engaged in the
search with the intent of assisting the
police in their investigative efforts.
Id. at 89. The Ninth Circuit has held that, "two of the
critical factors in the 'instrument or agent' analysis are:
(1) the government's knowledge and acquiescence, and (2) the
intent of the party performing the search." United States v.
Walther, 652 F.2d 788, 792 (9th Cir. 1981). In United States
v. Attson, 900 F.2d 1427, 1433 (9th Cir. 1990), the Ninth
Circuit added a gloss to its rule:
[A] party is subject to the fourth
amendment only when he or she has formed
the necessary intent to assist in the
government's investigative or administra-
tive functions; in other words, when he
or she intends to engage in a search or
seizure. However, under this test, the
fourth amendment will not apply when the
private party was acting for a reason
that is independent of such a
governmental purpose.
In United States v. Smythe, 84 F.3d 1240, 1243 (10th Cir.
1996), the Tenth Circuit requires that the government must
"affirmatively encourage or instigate the private action."
This is determined by "the totality of the circumstances."
We think that any specific "standard" or "test" is
likely to be oversimplified or too general to be of help, and
that all of the factors mentioned by the other circuits may
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be pertinent in different circumstances: the extent of the
government's role in instigating or participating in the
search, its intent and the degree of control it exercises
over the search and the private party, and the extent to
which the private party aims primarily to help the government
or to serve its own interests.
Our review of the suppression hearing evidence and
the district court's findings of historical facts is made
through a lens adjusted for clear error viewing. It is
probably true that there would have been no search made by
COB employees were it not for Agent Barnard's telephone call
inquiring about equipment for locating the source of the
transmissions and informing COB that its customers were being
defrauded. But there is no evidence that Barnard authorized
the search or even knew about it. COB employee Anderson in
answer to Barnard's query about whether COB had source-
location equipment said that it did, but he would have to
check with the legal department to see if it could be used in
Rhode Island. Anderson told Barnard that he would call him
back. He did not do so. Instead, he and the other two
employees went to Cranston, Rhode Island, and started
tracking the radio signals on their own. Their motivation
was that COB's customers were being defrauded. Barnard was
ignorant of what was transpiring. COB had a statutory right
to investigate and search for the sources of the radio
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transmitted phone calls. It had a legitimate independent
motivation for its search: to prevent a fraud from being
perpetrated on its customers. That is the purpose of 18
U.S.C. 2511(2)(a)(i) and (ii).
Our combined clear error review of the historical
facts and de novo review of the district court's conclusion
compels a holding that there was no government action in this
case.2
B) The Affidavit and Search Warrant
B) The Affidavit and Search Warrant
We next consider defendant's claim that the search-
warrant affidavit submitted by Special Agent Barnard lacked
probable cause. Keeping in mind the standard of review, we
have examined the eight-page affidavit meticulously.
Paragraph 1 identifies the affiant and explains
that his routine duties include "the investigation of
violations of federal laws pertaining to the unauthorized use
of access devices." The next paragraph, (2), describes the
premises to be searched. This will be discussed in detail in
the next part of the opinion.
2. Ornelas called for de novo review of the district court's
conclusion that a given set of historical facts rose to the
level of probable cause. 116 S. Ct. at 1659. The Court did
not specifically decide whether a similar de novo standard
should be applied to the legal question at issue here:
whether a private entity has acted as a government agent for
Fourth Amendment purposes. Because the defendants' appeal
fails even under the more searching de novo standard, we
assume without deciding that the Ornelas de novo standard
applies.
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Paragraph 3 states that the government (Secret
Service) has been conducting an investigation of a telephone
fraud scheme in Cranston, Rhode Island. The next paragraph
gives the names and addresses of individuals with whom the
affiant had spoken in the course of the investigation.
Paragraph 5 explains the use of MIN numbers as an
access device, which we have already covered in the Facts
section of this opinion. In paragraph 6, the affiant
expresses his belief that individuals are using telephones at
the location described in paragraph 2 to commit a
telecommunications fraud scheme. This paragraph goes on to
state that individuals have "captured" valid MIN and ESN
numbers "into mobile telephones" "and are using these numbers
fraudulently to make telephone calls internationally by way
of telephone credit card account numbers."
Paragraph 7 explains that the MIN/ESN combination
is programmed on "Erasable Programmable Read Only Memory
(EPROM)", located on a computer chip within the general
circuitry of the telephone. Paragraph 8 describes a cellular
telephone cloning operation. This has already been set forth
in the Facts section of this opinion.
Paragraph 9 describes a "call sell" operation by
which a customer pays a fee for making long-distance phone
calls which are billed to the stolen credit card account
numbers. Paragraph 10 recites that long-distance calls are
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being made by unidentified individuals from 156 Woodbine
Street, Cranston, Rhode Island, from "cloned" cellular
phones. It is then stated:
After accessing a long distance carrier
the individual enters a credit card
number to which to bill the international
call. Subsequently, the individual
defrauds the mobile telephone company of
the revenues due them for air time and
defrauds the issuing credit card company
for revenues due them for tolls. The
defrauded company will have to issue the
subscriber a credit for the fraudulent
billing, thereby, incurring the monetary
loss.
Paragraph 11 states in effect that Secret Service
Agent John Enright received information from Cheryl Maher,
Fraud Manager of Cellular One Rhode Island, that individuals
were using "cloned" phones "to access long distance carriers
such as MCI, Sprint and AT&T and are using credit card
telephone numbers to make international calls." Paragraph 12
recites a telephone call received by Agent Barnard from Jan
Mott, a Cellular One technician, giving him essentially the
same information recited in paragraph 11. Paragraph 13
recites further information received from Mott. It
concludes: "Mott stated that since the telephone calls were
mostly being made from one site (site 29) it indicated that
the caller was not mobile but was stationary."
Paragraph 14 states that on September 14, 1995,
Agent Barnard (affiant) spoke with Secret Service Agent
Rodriguez of the Financial Crimes Division of the Secret
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Service. Rodriguez told him that when a caller using a
cellular phone accesses a credit card company such as MCI,
Sprint or AT&T through an access number, the credit card
number used is not recorded by Cellular One. Paragraph 15
recites briefly the same facts we have described fully in the
government-agency section of this opinion.
Paragraph 16 states that Rick Wade, an employee of
Cellular One, had its telephone switch office monitor the
international telephone calls from Cranston, Rhode Island.3
This established that twenty-five telephone numbers were
identified as originating from 156 Woodbine Street, Cranston,
Rhode Island. The total time of the calls was 151 hours,
normally billed at $.75 per minute. The calls continued over
a 24-hour period. Paragraph 17 states that Maher (Fraud
Manager of Cellular One Rhode Island, see paragraph 11),
provided a partial list of telephones that appear to have
been cloned and are being used in the Cranston, Rhode Island,
area. The numbers are listed.
Paragraphs 18, 19, and 20 recite the experience and
training of the affiant. Paragraph 21 is the affiant's
"probable cause" statement.
3. It is clear from Wade's testimony at the suppression
hearing that this was done after the apartment at 156
Woodbine Street had been pinpointed as the source of the
cloned calls.
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Based on our de novo review of the affidavit and
the facts leading to the district court's conclusion that
there was probable cause to issue the warrant, we hold that
there was probable cause for issuing the search warrant.
The next issue is the validity of the warrant.
Defendant claims that the warrant was defective because it
inaccurately described the place to be searched. The warrant
affidavit described the premises to be searched as follows:
I make this affidavit in support of a
search warrant for the two bedroom first
floor apartment of the residence located
at 156 Woodbine Street, Cranston, Rhode
Island, further described as a three
story, wood framed building with a yellow
front, brown trim and brown sides. The
number 156 appears on a post next to the
door on the left as one faces the
building. On the first floor are two
apartments which are accessed through the
door marked 156. The apartment for which
this warrant is sought is the two bedroom
apartment on the left side of the first
floor.
The pertinent part of the search warrant states:
In the Matter of the Search of
(Name, address or brief description of
premises, property or premises to be
searched)
Two bedroom first floor
apartment of the residence SEARCH
SEARCH
WARRANT
WARRANT
located at 156 Woodbine CASE NUMBER:
St., Cranston, RI, further 1:95-M-
020816
described as a three story,
wood framed building with
a yellow front, brown
trim and brown sides.
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TO: Any Special Agent of the
Secret Service and any Authorized
Officer of the United States
Affidavit(s) having been made before me
by James M. Barnard who has
reason to believe that on the person
of or x on the property or premises
known as (name, description and/or
location)
Two bedroom first floor apartment of the
residence located at 156 Woodbine St.,
Cranston, RI, further described as a
three story, wood framed building with a
yellow front, brown trim and brown sides.
The number 156 appears on a post next to
the door on the left as one faces the
building. On the first floor are two
apartments which are accessed through the
door marked 156. The apartment for which
this warrant is sought is the two bedroom
apartment on the left side of the first
floor.
Defendants argue that the warrant did not meet the
particularity requirement of the Fourth Amendment. They
point out correctly that the number 156 was on the left post
at the top of the stairs leading to the entrance landing and
that the number 158 was on the right post at the top of the
stairs. It is stated in defendant's brief at page 26: "But
the warrant does not indicate which direction one must face
in determining right from left." This statement is not
correct. The warrant states: "The number 156 appears on a
post next to the door on the left as one faces the building."
(Emphasis added).
Defendant also argues that, because of the two
different address numbers, those executing the warrant should
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have called the Magistrate and clarified what apartment was
to be searched. The record of the suppression hearing
establishes conclusively that Agent Barnard knew exactly what
apartment was to be searched and proceeded directly to it.
Barnard testified in effect as follows.
There were two entrance doors to the building
containing the apartment to be searched. There were two
posts on either side of the steps when you get to the
entrance landing. The post on the right-hand side of the
steps as one faced the building had the number 158 on it.
The post on the left side carried the number 156 on it.
Barnard entered the building through the 156 door entrance.
He took a short step to the right and proceeded down a
hallway to an apartment on the left side of the first floor
of the building. This apartment had the number 156A on the
door. This was the apartment that was searched.
One of defendants' arguments is that the defendants
actually lived at 158 Woodbine Street, not 156. The number
on the door of the apartment searched -- 156A -- effectively
refutes this claim.
We find and rule that an objective law enforcement
officer would not be confused by the two different address
numbers and that the particularity requirement of the Fourth
Amendment was met. The only confusion was that sown by the
attorneys for the defendants at the suppression hearing.
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Even, however, if the address given in the warrant
may have been somewhat suspect our circuit case law teaches
that any uncertainty raised by the two address numbers did
not invalidate the search warrant.
The leading case in this circuit on the adequacy of
the description of the location to be searched is United
Statesv. Bonner, 808 F.2d 864 (1st Cir. 1986). In Bonner we
stated:
The manifest purpose of the particularity
requirement of the Fourth Amendment is to
prevent wide-ranging general searches by
the police.
The test for determining the
adequacy of the description of the
location to be searched is whether the
description is sufficient "to enable the
executing officer to locate and identify
the premises with reasonable effort, and
whether there is any reasonable
probability that another premise might be
mistakenly searched."
Id. at 866 (citations omitted). In Bonner the affidavit
contained a detailed physical description of the premises to
be searched and its address. The address, however, was
omitted from the warrant. We upheld the validity of the
warrant, stating:
We hold that the Bonner residence was
described with sufficient particularity,
and although the address was
inadvertently omitted, there was no
reasonable probability that another
premises might be mistakenly searched;
thus, the search warrant was valid.
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Id. at 867. Three subsequent cases have relied on the Bonner
analysis and holding: United States v. Cunningham, No. 96-
1828 (1st Cir. May 19, 1997); United States v. Estrella, 104
F.3d 3, 9 (1st Cir. 1997); United States v. Hinds, 856 F.2d
438, 441 (1st Cir. 1988). This precedent seals the issue.
We are aware, of course, that the district court
decided the warrant issue on the basis of United States v.
Leon, 468 U.S. 897 (1984). We do not reach the Leon
approach, and therefore, there is no need to discuss
defendant'sclaim oflack ofgood faithby thesearching officers.
Defendant also claims that the district court
abused its discretion when it raised the issue of the
accuracy of Cellular One's Boston Tracking Equipment, but
then denied defendant's motion to have the equipment
independently examined. The record of the suppression
hearing discloses that this is not exactly what happened.
The district court questioned COB employee Wade about how the
source-location was determined. She asked Wade "to tell us
how the equipment works in order for you to be able to make
the determination in laymen's terms." Wade then explained
what he did and how the equipment worked. The court then
asked further questions about what Wade did, and what he did
or did not tell Barnard. The court's examination of Wade
ended with the following colloquy:
Q. So that before the warrant issued,
you hadn't shown the equipment to the
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Government agents and explained how you
were able to isolate the signal?
A. I don't believe I did.
Q. Did they ever ask you what kind of
equipment you were going to use to do
this?
A. No.
Q. Did they ever ask you the
reliability of the equipment you were
going to use?
A. No.
We construe the court's questions, not as evincing
doubt on its part as to the reliability of the tracking
equipment, but as seeking what information about the
equipment had been given to the government, which was very
little.
We agree with the district court that the motion
came too late for consideration. Under Fed. R. Crim. P.
16(a)(1)(C) defendant had a right to inspect the tracking
equipment prior to trial. Clearly, defendant never thought
about inspecting the equipment until the court's last
question to Wade. This was too late. We have examined the
record carefully and there is nothing to even suggest that
the tracking equipment was unreliable in any way. We hold
that the district court did not err in denying defendant's
motion.
The final issue is whether the district court erred
in determining the amount of loss. The district court
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ordered each defendant to pay restitution in the amount of
$190,275.33. This sum represented the amount that the
defrauded telephone companies would have been paid if the
calls had been made legitimately. Under U.S.S.G. 2B1.1,
application note 2 states in pertinent part: "Loss means the
value of the property taken, damaged, or destroyed.
Ordinarily, when property is taken or destroyed the loss is
the fair market value of the particular property at issue."
The pertinent part of note 3 states: "For the purposes of
subsection (b)(1), the loss need not be determined with
precision. The court need only make a reasonable estimate of
the loss, given the available information."
Defendants assert that the amount used was
erroneous because it "reflects both the costs associated with
processing the calls and a profit margin for the various
cellular phone carriers and providers." No cases are cited
for this novel proposition. Defendants rely on the following
sentence in application note 2 of U.S.S.G. 2B1.1: "Loss
does not include the interest that could have been earned had
the funds not been stolen."
We are not persuaded. We do not think that profit
can be equated with interest. Profit is an ingredient of the
fair market value of goods or services that can be sold and
purchased.
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We discern no error, plain or otherwise, in the
district court's determination of the amount of restitution.
The judgment of the district court is affirmed.
affirmed.
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