United States v. Zayas-Diaz

                  UNITED STATES COURT OF APPEALS
                      FOR THE FIRST CIRCUIT
                                           
                                                     

No. 95-1910

                    UNITED STATES OF AMERICA,

                            Appellee,

                                v.

                         JUAN ZAYAS-DIAZ,

                      Defendant, Appellant.

                                           
                                                     

           APPEAL FROM THE UNITED STATES DISTRICT COURT

                FOR THE DISTRICT OF NEW HAMPSHIRE 

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

                                           
                                                     

                              Before

                      Selya, Cyr and Boudin,

                         Circuit Judges.
                                                 

                                           
                                                     

   Paul J. Garrity for appellant.
                            
   Terry L. Ollila, Assistant United States Attorney, with whom Paul
                                                                              
M. Gagnon, United States Attorney, was on brief for appellee.
                 

                                           
                                                     

                        September 9, 1996
                                           
                                                     


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

lenges  two  pivotal  rulings  underlying  the  district  court's

refusal to suppress evidence seized pursuant to a  warrant alleg-

edly based on  information that  failed to connect  Zayas to  the

search premises within a reasonably recent time frame.  The court

first determined,  on the  merits, that the  affidavit supporting

the warrant application  contained adequate reliable  information

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

court bypassed the  merits of  the staleness claim  and held  the

exclusionary rule inapplicable on the ground that the search  had

been  conducted  in  "objectively  reasonable"  reliance  on  the

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

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

                                I
                                          I

                            BACKGROUND
                                      BACKGROUND
                                                

A.   The Graffam Affidavit
          A.   The Graffam Affidavit
                                    

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

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

nineteen-page affidavit  by Special  Agent Gerald Graffam  of the

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

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

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

for cocaine trafficking.1   The warrant application sought autho-

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

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

                                2


cy evidencing the suspected cocaine trafficking activity.   

     1.   The Cocaine Trafficking 
               1.   The Cocaine Trafficking
                                           

          The Graffam affidavit  included information  purporting

to establish that Zayas was supplying cocaine for distribution at

various  establishments  in  nearby  Manchester,  New  Hampshire,

including the Oasis Social  Club.  Based on information  provided

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

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

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

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

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

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

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

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

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

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

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

          A subsequent documentation and record check disclosed a

series of  roughly compatible descriptions  for "Nelson  Martell"

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

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

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

address 275 Lake Avenue, Manchester; license suspension for drunk

driving in 1991; New  Hampshire conviction and suspended sentence

                    
                              

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

                                3


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

pending  prosecution  for  cocaine  trafficking  in  Connecticut,

during which  arrest Zayas attempted  to discard  cocaine over  a

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

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

the   Manchester  police  interviewed  a  confidential  informant

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

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

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

"currently  controls" cocaine distribution  at various Manchester

business establishments, including the Oasis Social Club, and who

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

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

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

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

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

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

arrest by throwing it over a highway embankment.  

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

          Although the documentation check revealed a listed home

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

Manchester, the Graffam affidavit attested to facts purporting to

show that Zayas currently or recently resided at 16 Holbrook Road

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

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

                                4


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

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

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

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

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

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

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

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

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

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

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

scribed specific  features of the  residential grounds, including

(1)  a  long  driveway  lined with  three  birdhouses  containing

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

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

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

cles, including a  motorcycle.  The second CI  described interior

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

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

condition" compared  with the  shabby exterior of  the residence;

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

storing cocaine.   Subsequent aerial surveillance  at 16 Holbrook

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

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

and two (2) abandoned vehicles."

          3.   The "Residence" at 16 Holbrook Road
                    3.   The "Residence" at 16 Holbrook Road
                                                            
               and the Zayas-Koehler "Relationship"
                         and the Zayas-Koehler "Relationship"
                                                            

                                5


          The  Graffam  affidavit   purported  to  establish   16
                    

Holbrook  Road as  Zayas'  current or  recent  residence or  drug

operation base, by demonstrating that  codefendant Brenda Koehler

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

currently  involved  in  a  close relationship.    The  second CI

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

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

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

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

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

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

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

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

check  indicated  that  Kevin  Koehler had  received  mail  at 16

Holbrook  Road  in 1992.   A  June  1993 traffic  accident report

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

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

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

white wife . . . in her thirties."  

          On  February  10,  1994,  James  McDowell  advised  the

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

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

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

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

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

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

                                6


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

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

closed  a  roughly  compatible  physical description  for  Brenda

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

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

Street, Manchester. 

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

          In  late February  1994, the  authorities learned  that

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

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

for 16 Holbrook Road.  The electrical utility listing nonetheless

continued to reflect that Brenda Koehler was the person responsi-

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

oil,  the  electrical  utility reported  the  following billings:

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

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

($600.00 for 5024 kw hours).  

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

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

agent, the supporting affidavit stated that active drug traffick-

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

es  for  extended  periods,  records relating  to  their  ongoing

trafficking  activities;  (2)  assume  fictitious  names  or  use

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

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

attempt  to avoid disclosure  or discovery of  their actual resi-

                                7


dences  and operational  bases by  suspending mail  and telephone

service.

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

          The search conducted pursuant to the challenged warrant

disclosed  ammunition,  cocaine  residue,   cocaine  distributing

paraphernalia, substantial cash, and numerous documents detailing

Zayas' ongoing  cocaine trafficking  activities.  In  due course,

Zayas and ten associates,  including Brenda Koehler, were charged

with conspiracy  to possess  cocaine with intent  to distribute.3

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

sought  to suppress  the  evidence seized  at  16 Holbrook  Road,

claiming among  other things that  the Graffam affidavit  did not

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

or conducted drug operations and that much crucial information in

the  affidavit  was  irredeemably  "stale."   Zayas  stressed  in

particular that the Graffam  affidavit, which identified February

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

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

visited with "Juan" at 16 Holbrook Road.

          The district court denied  the motion to suppress after

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

                    
                              

     3The  nine  other  defendants  entered guilty  pleas.    The
government does not now contend  that Zayas lacked an objectively
reasonable expectation of privacy in the 16 Holbrook Road premis-
es at  the time  the  search was  conducted.   See, e.g.,  United
                                                                           
States  v. Bouffard, 917 F.2d 673, 675-76 (1st Cir. 1990); United
                                                                           
States v. Soule, 908 F.2d 1032, 1034 (1st Cir. 1990). 
                         

                                8


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

affidavit  contained sufficient  information to  provide probable

cause  to believe  that  Zayas either  resided or  conducted drug

operations at 16 Holbrook Road.  Second, without deciding whether

the matters  affirmed in the Graffam  affidavit were sufficiently

contemporaneous to  afford a  substantial basis for  the probable

cause  determination, the  district court  held  the exclusionary

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

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

not implicated  unless, inter alia, the  supporting affidavit was
                                            

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

belief in its existence entirely unreasonable").

                                II
                                          II

                            DISCUSSION
                                      DISCUSSION
                                                

          On  appeal,  Zayas  resurfaces  two  claims  previously

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

contained insufficient information to provide a substantial basis

for finding  it probable  that evidence  relating to  Zayas' drug

trafficking activities would  be found at  16 Holbrook Road;  and

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

unavailing  because any  reasonably well-trained  law enforcement

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

affidavit was not adequate to establish probable cause to believe

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

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

                                9


dence or drug  operation site; and  the more current  information

neither cured the staleness nor provided an independent basis for

a "probable cause" determination.  

A.   The "Probable Cause" Connection
          A.   The "Probable Cause" Connection
                                              
     Between Zayas and 16 Holbrook Road 
               Between Zayas and 16 Holbrook Road 
                                                 

          The  district court  held  that  the Graffam  affidavit

afforded probable cause to believe that Zayas resided or conduct-

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

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

because the  authorities  were "able  to corroborate  so much  of

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

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

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

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

508 U.S. 944 (1993)).  

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

          For evidence to  avert suppression, see  generally Mapp
                                                                           

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

must  demonstrate probable  cause  to believe  that a  particular

person has committed a  crime    "the commission element"     and
                                                                           

that  enumerated  evidence relevant  to the  probable criminality

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

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

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

ordinarily  considers  only the  facts  set  forth in  supporting

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

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

                                10


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

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

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

disclosed in  the supporting affidavits must  demonstrate "a fair
                                                                           

probability  that contraband or evidence of a crime will be found
                     

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

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

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

          Among  others, the  factors  that may  contribute to  a

"probable  cause"  determination  include  whether  an  affidavit

supports  the probable  "`veracity'  or `basis  of knowledge'  of

persons  supplying hearsay  information," id.;  whether informant
                                                       

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

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

"through the  very specificity and  detail with which  it relates

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

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

ments  were  corroborated  wherever  reasonable  and  practicable

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

ment affiant  included a professional assessment  of the probable

significance  of the  facts  related by  the informant,  based on

                    
                              

     5See Gates, 462 U.S. at 244; Soule, 908 F.2d at 1039 (noting
                                                 
that police contemporaneously corroborated "the material elements
of the [informant's] tip");  see also Alabama v. White,  496 U.S.
                                                                
325,  331 (1990)  ("[Because  an informant  is  right about  some
things,  he  is more  probably right  about others.");  Draper v.
                                                                        
United States, 358 U.S. 307, 313 (1959);  United States v. Lalor,
                                                                          
996  F.2d 1578,  1581  (4th Cir.),  cert.  denied, 510  U.S.  983
                                                           
(1993).

                                11


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

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

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

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

or  more factors may compensate for a weaker or deficient showing

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

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

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

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

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

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

of  the reviewing court is  simply to ensure  that the magistrate

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

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

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

considerable  deference to  reasonable  inferences  the  [issuing

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

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

preference for warrants under our Fourth Amendment jurisprudence,

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

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

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

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

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

     6We review  the district  court's factual findings  (if any)
only for clear error, but we review de novo its ultimate determi-
                                                     
nation that a  given set of  facts constituted "probable  cause."

                                12


          Zayas argues that the Graffam affidavit is insufficient

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

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

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

description  of the premises given  by the second  CI differed in

some respects  from the  information disclosed in  the subsequent

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

outset that  this argument  ignores the incriminating  network of
                                                                           

circumstantial evidence pointing unmistakably to 16 Holbrook Road
                                 

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

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

presumption that  the second CI  probably led the  authorities to

premises  other than  those  at which  he  had visited  Zayas  is

untenable  given Graffam's  attestation  that the  second CI  had

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

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

See  United States v.  Schaefer, 87 F.3d  562, 565 n.2  (1st Cir.
                                         
1996) (citing Ornelas v. United States, 116 S. Ct. 1657 (1996)).
                                                

     7In addition, the second  CI related prior criminal activity
by Zayas (e.g., dumping cocaine over an embankment in 1992 at the
time he was arrested in Connecticut) and descriptions of exterior
and  interior features at 16 Holbrook Road.  See Taylor, 985 F.2d
                                                                 
at  6 (noting that a CI's overall reliability may be demonstrated
by  the "very specificity  and detail" of  descriptions of search
premises, or  of defendant's prior criminal  activity or record).
Moreover, the authorities here independently corroborated many of
these details through a documentation and record check and aerial
surveillance.   See Soule, 908  F.2d at 1039  (noting that police
                                   
contemporaneously  corroborated  "the  material elements  of  the
[informant's] tip").  Further, some of the second CI's statements
were confirmed by the  third CI (e.g., the description  of Zayas'
wife/girlfriend as a white,  thirty-year-old female    a descrip-
tion likewise corroborated by  a documentation check on Koehler).
See Schaefer, 87  F.3d at 566 (holding that consistencies between
                      

                                13


ment aimed at undermining  the corroborative information gathered

through aerial  surveillance of 16 Holbrook  Road likewise fails,

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

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

prior occasions  or that  he misrepresented its  physical charac-

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

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

reasonably choose  to credit  the statements and  disregard petty

inconsistencies.").  

          Our de  novo assessment of the totality  of the circum-
                                

stances conveyed in  the Graffam affidavit persuades  us that the

issuing  magistrate had  a  substantial basis  for crediting  the

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

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

demonstrated  reliability of  the  second CI,  together with  the

substantial  similarity in  the physical  characteristics of  the

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

aerial  surveillance  of  16  Holbrook  Road,  provided  adequate

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

"probable  cause"  determination  that  the  Zayas residence/drug

operation base previously visited by the second CI was located at

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

at 238.

B.   The Staleness Claim 
          B.   The Staleness Claim 
                                  
                    
                              

informants'  reports  may  serve   to  validate  both  accounts).
                                                               
"[Because an informant  is right  about some things,  he is  more
probably right about others."  Alabama, 496 U.S. at 331.
                                                

                                14


     1.   Leon Bypass
               1.   Leon Bypass
                               

          The district court elected to  bypass the merits of the

staleness claim  that the Graffam affidavit  afforded no substan-

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

resided or  conducted drug operations within  a reasonably recent

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

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

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

whether  there existed  a  "substantial basis"  for the  probable

cause determination  made by  the issuing magistrate,  and simply

decide instead whether  the challenged search in  all events came

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

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

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

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

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

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

affecting Leon bypass determinations).8  
                        
                    
                              

     8Leon  identifies  important prudential  considerations that
                    
inform the  discretionary  bypass  decision  at  the  suppression
stage. 

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

                                15


     2.   The Leon Exception
               2.   The Leon Exception
                                      

          The  instant Leon  "good faith"  analysis fundamentally
                                     

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

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

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

issuing  magistrate  must  not  only consider  the  accuracy  and

reliability of  the historical  facts related in  the affidavits,

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

circumstances  reasonably inferable  from  the affidavits  demon-

strates  a  "fair  probability"  that evidence  material  to  the

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

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

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

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

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

          As the more serious  challenge to the Graffam affidavit

focuses  on  its  allegedly  "stale" information,  thus  arguably

describing events that occurred at  some remote earlier time, see
                                                                           

                    
                              

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

Leon,  468 U.S. at 925.   As neither  party challenges the bypass
              
decision itself, we turn directly to the Leon exception. 
                                                       

                                16


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

contemporaneity of the attested  facts relating to Zayas' connec-

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

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

ultimately the  "probable cause" analysis takes  into account the

totality of  the  circumstances  reasonably  inferable  from  the

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

showing on a particular  factor may be offset by  more compelling

evidence  on  another relevant  factor  in  the "probable  cause"

analysis.  See supra Section II.A.1.  
                              

          Once the  trial court elects  to bypass the  merits and

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

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

ing "objectively  reasonable" law enforcement conduct, see United
                                                                           

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

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

evidence seized  pursuant  to a  search  warrant obtained  in  an

"objectively  reasonable" manner from  a neutral magistrate, even

assuming the warrant or supporting affidavits were defective, see
                                                                           

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

          The Supreme  Court employed  four exemplars in  Leon to
                                                                        

outline the  ongoing role  it envisioned for  "exclusionary rule"

deterrence in circumstances where  evidence is seized pursuant to

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

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

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

                                17


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

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

failing to  list, with sufficient particularity,  the evidence to

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

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

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

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

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

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

only the latter category.9  

          With  respect to the  critical temporal  "nexus," Zayas

contends  that  the  Graffam  affidavit  contained  only  "stale"

information that he  resided or conducted  drug operations at  16

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

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

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

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

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

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

                    
                              

     9Zayas  does not claim, for example, that the second CI told
the authorities the  date he  last visited Zayas  at 16  Holbrook
Road, nor  that such  information was deliberately  or recklessly
omitted from the Graffam  affidavit.  See, e.g., Craig,  861 F.2d
                                                                
at 822 (noting that defendant did not contend that the Leon "good
                                                                     
faith"  exception  was unavailable  because  the affiant  omitted
information from  the affidavit  to deceive the  issuing judicial
officer).  Of course,  had Zayas meant to impugn  police motives,
the appropriate course would have been  to request an evidentiary
hearing  under  Franks.   See Franks  v.  Delaware, 438  U.S. 154
                                                            
(1978);  United  States v.  Williams, 897 F.2d  1034, 1038  (10th
                                              
Cir. 1990), cert. denied, 500 U.S. 937 (1991).  
                                  

                                18


upon  the implicit  assumption  that the  second CI  misdescribed

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

despite  the  substantially  contemporaneous aerial  surveillance
                                                      

which  essentially  corroborated  the  description  given by  the

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

CI's reliability.  

          The lone respect  in which this  aspect of Zayas'  Leon
                                                                           

challenge differs  from that  discussed above, see  supra Section
                                                                   

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

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

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

to note  that the government must  establish "objectively reason-

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

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

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

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

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

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

whether the  executing officers acted  in objectively  reasonable

reliance  on a  defective warrant  is reviewed  de novo.   United
                                                                           

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

     10In  our own case, the district court relied on the follow-
ing four grounds.   First, in describing his "several"  visits to
16 Holbrook Road,  the second  CI stated that  Juan "lives,"  and
"deals" drugs,  in Bedford.  Zayas-Diaz, No. 94-30-01-B, slip op.
                                                 
at 8.   Next, the  follow-up aerial surveillance  of 16  Holbrook
Road "substantially" corroborated the second CI's  description of
the  residential  grounds  at 16  Holbrook  Road.    Id.   Third,
                                                                  
Marcello Sosa admitted that his cocaine supplier, "Juan," "lived"
in Bedford.   Id. at 8-9.  Finally, the statements James McDowell
                           

                                19


          Were the critical time  element presently under discus-

sion  otherwise  indiscernible within  the  four  corners of  the

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

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

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

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

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

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

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

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

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

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

specter that "officers  with information of  questionable recency

[may]  escape embarrassment  by simply  omitting averments  as to

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

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

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

enforcement officer should be familiar with the fundamental legal

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

"probable cause"  include an  essential temporal component.   See
                                                                           

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

sufficiency,  we  acknowledge that  the  circumstantial consider-

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

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

                                20


relevant to the  required nexus  between the date  the second  CI

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

warrant issued. 

          Fortunately  for  the government,  other circumstantial

indicia  buttress  the  required  temporal link.    The  analysis

suggested  by  Zayas disregards  salient  inferences which  well-

trained,  objectively reasonable  law enforcement  officers might

draw  from the  totality of  the  circumstances disclosed  in the

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

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

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

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

reasonably could have relied  upon a search warrant based  on the

evidence described in the  Graffam affidavit as well as  all fair
                                                                           

inferences  therefrom, to  whether a  well-trained officer  would
                               

have known that supporting affidavits whenever practicable should

provide at least approximate dates for pivotal events such as the

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

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

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

test  because the  Graffam affidavit  describes a  collocation of

circumstances,   as  well  as  expert  law-enforcement  insights,

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

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

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

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

                                21


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

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

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

affidavit  afforded ample basis for  finding the second CI trust-

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

Holbrook  Road, whether  as  Zayas' residence  or drug  operation

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

remained  was  the temporal  component  of  the "commission"  and

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

                    
                              

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

                                22


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

Zayas' cocaine trafficking activities  in the Manchester area was

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

admission  that  Zayas had  supplied  the six  ounces  of cocaine

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

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

police  on February 24, 1994    twelve days before the challenged

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

distribution  at  various  Manchester   business  establishments,

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

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

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

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

cocaine and  cash in  substantial quantities.   Though imprecise,

these  temporal references were related  by the second  CI in the

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

ly  reasonable officer  to infer  that the  occurrences described

were  substantially contemporaneous with  the second  CI's inter-

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

application.   The  second CI's  description of  various exterior
                     

features of  16 Holbrook  Road, as substantially  corroborated by

virtually contemporaneous aerial  surveillance, likewise lent  to

the probability that his last  visit had been relatively  recent,

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

second  CI's descriptive  account  were by  no means  necessarily

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

                                23


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

disregard  petty  inconsistencies"  in  informants'  statements).

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

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

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

dence in automobiles bearing New York license plates.

          Absent   any  indication  or  suggestion  that  Graffam

purposely withheld  more precise  temporal references  adverse to

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

speculation to credit Zayas' implicit premise that the last visit

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

remote  in time even though  there was probable  cause to believe

that  Zayas was  still trafficking  cocaine less  than  two weeks

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

that drug  conspiracies tend to be  ongoing operations, rendering

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

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

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

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

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

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

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

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

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

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

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

                                24


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

"dealt"  inadequate  to  indicate  current  drug  dealing;  quite

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

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

into drug  trafficking  modi operandi,  based  on more  than  two
                                               

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

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

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

postal deliveries  and electrical  utility services, or  the use,

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

nominee  owners such  as Brenda  Koehler, compelled  an inference

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

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

in no sense  would it  have been objectively  unreasonable for  a

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

ity that  these developments were subterfuges  prompted by Sosa's

recent arrest and  designed to prevent detection, as  the Graffam

affidavit indicated.  See id.
                                       

                               III
                                         III

                            CONCLUSION
                                      CONCLUSION
                                                

          We therefore  conclude that a well-trained law enforce-

ment  officer  reasonably  could  have relied  upon  the  Graffam

affidavit  as  adequate  support  for  the  issuing  magistrate's

finding that there was  a fair probability that drug  trafficking

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

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

                                25