DocketNumber： 95-2342
Filed Date： 6/25/1996
Status： Precedential
Modified Date： 3/3/2016
UNITED STATES COURT OF APPEALS UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT FOR THE FIRST CIRCUIT
_________________________
No. 95-2342
UNITED STATES OF AMERICA,
Appellee,
v.
HAROLD SCHAEFER,
Defendant, Appellant.
_________________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Steven J. McAuliffe, U.S. District Judge] ___________________
_________________________
Before
Selya, Cyr and Boudin,
Circuit Judges. ______________
_________________________
David H. Bownes for appellant. _______________
Jean B. Weld, Assistant United States Attorney, with whom _____________
Paul M. Gagnon, United States Attorney, was on brief, for _______________
appellee.
_________________________
June 25, 1996
_________________________
SELYA, Circuit Judge. Defendant-appellant Harold SELYA, Circuit Judge. _______________
Schaefer stands convicted of growing marijuana, see 21 U.S.C. ___
841(a)(1); possessing marijuana with intent to distribute, see ___
id.; and conspiring to achieve those ends, see id. 846. In ___ ___ ___
this appeal, he argues that the lower court erred in denying his
motion to suppress evidence seized from (a) a barn located near
his house on Beech Hill Road in Winona Heights, New Hampshire,
and (b) the separate residence of his estranged wife, Kathleen
Schaefer, located on Winona Road in Center Harbor, New Hampshire.
Discerning no error, we affirm.
I. FACTUAL BACKGROUND I. FACTUAL BACKGROUND
We recite the facts pertinent to this appeal as they
were found by the district court, consistent with record support.
See United States v. Zapata, 18 F.3d 971, 973 (1st Cir. 1994). ___ _____________ ______
In early 1994, Susan Forey, a New Hampshire state
trooper, initiated an investigation of the appellant's suspected
marijuana-growing activities. After gathering evidence,
interviewing a confidential informant, and speaking with several
colleagues (one of whom had interviewed a second confidential
informant), Forey concluded that the appellant had been
cultivating cannabis in his barn. She then prepared an affidavit
(which relied heavily, albeit not exclusively, on clues furnished
by the informants) and sought a search warrant authorizing
inspection of the barn.
A state magistrate issued the warrant on June 27, 1994.
That morning a coterie of federal, state and local officers set
2
out to execute the warrant but temporarily refrained from doing
so when they could not locate the appellant. While members of
the search party stood guard at Beech Hill Road, two troopers,
Forey and Elizabeth D'Angelo, proceeded to Kathleen Schaefer's
residence in the hope that they would find her there. Forey
without entering the dwelling noted the distinctive aroma of
marijuana wafting from within. However, when Ms. Schaefer did
not answer the door, Forey departed (leaving D'Angelo to await
Ms. Schaefer's appearance).
Meanwhile, back at Beech Hill Road, the Schaefers'
twelve-year-old daughter, Amber, became agitated over the
continued police presence and enlisted a neighbor to drive her to
her mother's home in Center Harbor. When she arrived she found
D'Angelo patrolling the premises. Using her own key, Amber
entered the house. D'Angelo accompanied her and immediately
noticed the smell of marijuana. Once inside, the pair found Ms.
Schaefer, who explained that she had slept through the earlier
commotion. D'Angelo asked Ms. Schaefer to accompany her to Beech
Hill Road. Ms. Schaefer assented, and they repaired to that
site. By then, the search party had made an initial inspection
of the barn and had found some incriminating evidence.
Ms. Schaefer spoke freely with the officers, and Forey
eventually asked for permission to search her dwelling. Ms.
Schaefer hinted that she might seek counsel, and Forey told her
that she could contact an attorney if she so desired. After
pondering her options, Ms. Schaefer decided not to call a lawyer,
3
but, instead, gave the authorities access to her abode. She
asked only that the officers conduct their search discreetly so
as not to alarm her neighbors. The police complied. It is worth
noting that, before the search began, Ms. Schaefer forecast that
the searchers would find approximately 100 cannabis plants on the
premises. The forecast proved to be accurate.
Early that afternoon the appellant returned home from
work. The authorities promptly placed him under arrest. The
search of the barn thereafter commenced in earnest. The
searchers discovered 1,126 cannabis plants, plus an elaborate
array of equipment associated with the growing, preparation, and
distribution of marijuana.
II. PROCEDURAL BACKGROUND II. PROCEDURAL BACKGROUND
In due season a federal grand jury charged the
Schaefers with the commission of various marijuana-related
offenses.1 In addition, the government sought criminal
forfeiture of the appellant's home and barn, and certain
machinery used in the marijuana-growing process. See 21 U.S.C. ___
853. The appellant moved to suppress the evidence that had been
obtained during the searches. Following a hearing, the district
court denied the motion. See United States v. Schaefer, Crim. ___ _____________ ________
No. 94-53-1-M (D.N.H. Dec. 30, 1994) (D. Ct. Op.).
The case proceeded to trial and a jury returned a
guilty verdict. Schaefer then consented to the forfeiture and
____________________
1Kathleen Schaefer did not contest the charges against her.
She is not a party to this appeal.
4
the court imposed a sixty-three month incarcerative sentence.
This appeal ensued.
III. THE BEECH HILL ROAD SEARCH III. THE BEECH HILL ROAD SEARCH
On appeal Schaefer charges that the trial court
committed several errors in refusing to suppress the evidence
seized from his barn. His primary asseveration is that Forey's
affidavit in support of the warrant contained inadequate
information to justify a finding of probable cause. This
asseveration has two prongs. First, the appellant maintains that
the information provided by the confidential informants was
unreliable (and, therefore, unusable) because the affidavit did
not set forth sufficient bases for crediting those sources.
Second, the appellant maintains that much of the informants'
fingerpointing was predicated on outdated information (and,
therefore, unusable). The appellant insists that, if all the
untrustworthy information is stripped from the affidavit, there
is too little left to sustain a finding of probable cause.
A. Standard of Review. A. Standard of Review. __________________
The Fourth Amendment provides that "no Warrants shall
issue, but upon probable cause, supported by Oath or affirmation,
and particularly describing the place to be searched." U.S.
Const. amend. IV. Probable cause exists when "the affidavit upon
which a warrant is founded demonstrates in some trustworthy
fashion the likelihood that an offense has been committed and
that there is sound reason to believe that a particular search
will turn up evidence of it." United States v. Aguirre, 839 F.2d _____________ _______
5
854, 857-58 (1st Cir. 1988). The magistrate issuing the warrant
must look to the totality of the circumstances in order to
ascertain the existence of probable cause. See Illinois v. ___ ________
Gates, 462 U.S. 213, 238 (1983); see also United States v. _____ ___ ____ ______________
Figueroa, 818 F.2d 1020, 1024 (1st Cir. 1987). ________
This holistic approach also applies when a district
court is called upon to evaluate a magistrate's determination
that, based on the totality of the circumstances indicated in a
supporting affidavit, probable cause exists to search particular
premises. See Aguirre, 839 F.2d at 857-58. And the same ___ _______
approach holds when a reviewing tribunal is called upon to assess
the district court's denial of a suppression motion that
challenges such a probable cause determination. See id. Yet ___ ___
such review cannot start from scratch. "A magistrate's
determination of probable cause should be paid great deference by
reviewing courts." Gates, 462 U.S. at 236 (citation and internal _____
quotation marks omitted). Moreover, on an appeal from a district
court's ruling on a suppression motion, judicial scrutiny must be
filtered through a second layer of deference; although the
appellate court reviews the district court's ultimate legal
conclusion in this context, the existence vel non of probable ___ ___
cause de novo, it must accept the district court's subsidiary
findings of fact unless those findings are clearly erroneous.2
____________________
2The Court's recent decision in Ornelas v. United States, _______ _____________
116 S. Ct. 1657 (1996), reinforces this dichotomous standard of
review. In Ornelas the Court held, in the case of a warrantless _______
search pursuant to the so-called "automobile exception" to the
warrant requirement, that "the ultimate questions of reasonable
6
See Zapata, 18 F.3d at 975. ___ ______
B. Reliance on Informants. B. Reliance on Informants. ______________________
The appellant calumnizes Forey's heavy reliance on
statements of the two confidential informants, complaining that
her affidavit provides too rickety a foundation for evaluating
the informants' veracity or bases of knowledge. Relatedly, the
appellant suggests that the trooper did not adequately
corroborate the informants' statements. Though forcefully made
by able counsel, the appellant's arguments are unfounded.
The use of confidential informants in criminal
investigations is commonplace. See, e.g., United States v. ___ ____ _____________
Manning, 79 F.3d 212, 220 (1st Cir. 1996); United States v. _______ ______________
Vargas, 931 F.2d 112, 115-16 (1st Cir. 1991). The practice has ______
been characterized as a necessary part of police work. See ___
Gates, 462 U.S. at 237-38. What is more, an informant's tales _____
need not invariably be buttressed by extensive encomia to his
veracity or detailed discussions of the source of his knowledge.
While an informant's truthfulness and basis of knowledge are
"highly relevant in determining the value of his report," the
Court has cautioned that "these elements should [not] be
understood as entirely separate and independent requirements to
be rigidly exacted in every case." Id. at 230. ___
____________________
suspicion and probable cause . . . should be reviewed de novo."
Id. at 1659. By contrast, "a reviewing court should take care ___
both to review findings of historical fact only for clear error
and to give due weight to inferences drawn from those facts by
resident judges and local law enforcement officers." Id. at ___
1663. The Ornelas Court's holding is fully consistent with this _______
circuit's precedent as expressed in cases like Zapata. ______
7
Here, Forey's affidavit contains more than enough
substantiation to lend credence to the confidential informants'
reports. First, Forey expressly stated that CI-1 had a proven
track record, and fortified this statement by attesting that, to
her personal knowledge, CI-1 had assisted the police in the
apprehension of another drug felon. We heretofore have held
and today reaffirm that such an indicium of reliability may
itself be sufficient to bulwark an informant's report.3 See ___
United States v. 5 Bell Rock Rd., 896 F.2d 605, 608-09 (1st Cir. _____________ ________________
1990). Second, Forey's affidavit explains that CI-2's
information included declarations against penal interest. The
fact that an informant's statements are against his or her penal
interest adds credibility to the informant's report. See United ___ ______
States v. Fields, 72 F.3d 1200, 1214 (5th Cir. 1996), petition ______ ______ ________
for cert. filed, 64 U.S.L.W. 3709 (U.S. Apr. 8, 1996) (No. 95- ___ _____ _____
1639); Turner v. Caspari, 38 F.3d 388, 393 (8th Cir. 1994). ______ _______
In addition to these badges of veracity, circumstances
external to each informant's statements lend additional weight.
For example, CI-2 confirmed CI-1's statement that the Schaefers
were engaged in growing cannabis plants indoors in a barn located
on their property. Courts often have held that consistency
____________________
3Here, moreover, Forey convincingly explained her failure to
elaborate upon her comments. She stated that "[t]his affiant is
personally familiar with the case in which CI-1 provided
information and further detail or description of the case would
likely disclose the identity of the CI." The district court
found Forey to be credible on this and other points, and the
appellant has advanced no sound basis for rejecting this
credibility determination.
8
between the reports of two independent informants helps to
validate both accounts. See, e.g., Fields, 72 F.3d at 1214. In ___ ____ ______
a related vein, neighbors complained to the police in June of
1992 regarding the appellant's marijuana cultivation. The latter
complaints enjoy special stature since information provided by
ordinary citizens has particular value in the probable cause
equation. See United States v. Scalia, 993 F.2d 984, 987 (1st ___ _____________ ______
Cir. 1993); United States v. Campbell, 732 F.2d 1017, 1019 (1st _____________ ________
Cir. 1984).
There is more. Drawing on several sources, Forey's
affidavit depicts the appellant as a member of a loosely-knit
band of marijuana growers, known colloquially as the "sea of
green" group. In an interview with CI-1, summarized in Forey's
affidavit, Special Agent Gerald Graffam of the federal Drug
Enforcement Administration learned the names of a number of
individuals whom CI-1 claimed were part of the sea of green
operation. The roster included the Schaefers, James Crawford,
and James Spellman, to name a few. The record contains several
external data (i) confirming the identities and predilections of
Crawford, Spellman, and other growers in the group, (ii) pinning
down Crawford's and Spellman's involvement with cannabis
cultivation, and (iii) demonstrating the group's access to
marijuana plants that were being grown indoors.4
____________________
4Forey's affidavit also contains an account of an incident
that occurred in June 1993 when a fellow state trooper, Scott
Champagne, discovered marijuana plants under cultivation in the
woods, in close proximity to the appellant's camper.
9
This list of sea of green participants featured Marc
Birmingham, an aide to Crawford (who had recently been arrested
for growing marijuana).5 Forey's independent investigation
revealed that, before teaming up with Crawford, Birmingham had
worked for a company owned by the appellant. CI-2 underscored
the Schaefer/Birmingham connection, explaining to Graffam in June
1994 that Birmingham told him that his former employer "had set
up a marijuana growing operation under his horse barn."
Moreover, in April 1994, Birmingham told CI-2 that Crawford's
group had procured "eight big plants" from his (Birmingham's)
"ex-boss."
Birmingham also informed CI-2 that "his former employer
sold his finished product in New York, where he was able to
receive a higher price for it." CI-1 added an interlocking
datum: that the appellant "was the least ``controlled' member of
the group and had been arrested in New York for possession of
marijuana and ``patronizing a prostitute.'" Forey confirmed that
the police had arrested the appellant in Suffolk County, New
York, on June 8, 1993, for criminal possession of marijuana and
pandering.
Forey also attempted to verify her suspicions by
inspecting the appellant's electric bills. The bills indicated a
suspicious pattern of electricity usage: the appellant drew an
abnormally high amount of power in October of 1993 and April of
____________________
5CI-2's statements confirmed CI-1's assurance that
Birmingham served as Crawford's lieutenant.
10
1994 two months in which the New England climate often allows
consumers a brief respite from copious use of electricity for
heating or cooling. Based on Forey's substantial experience in
the investigation of marijuana farming and other narcotics
operations, she concluded that this pattern indicated periods of
intensive cultivation.
The appellant strives to undercut this latter detail by
pointing out CI-1's observation that the appellant "powers the
grow operation in the barn with propane rather than electricity."
The appellant argues that, if CI-1's statement is true,
fluctuations in the electric bills necessarily would be
meaningless. Forey herself dispelled this seeming paradox at the
suppression hearing, stating that "[t]o say that you're using a
secondary source of power and to say that you know how to use
that are two different things," and the district court accepted
her explanation. We need not pursue the point. Even were we to
find a discrepancy here, our result would remain unchanged. When
an informant's statements and the events he attempts to describe
diverge in minor ways, the magistrate may reasonably choose to
credit the statements and disregard petty inconsistencies. See, ___
e.g., United States v. Diallo, 29 F.3d 23, 26 (1st Cir. 1994). ____ _____________ ______
To sum up, the informants' credibility and bases of
knowledge are sufficiently illuminated. More importantly,
Forey's affidavit is not entirely dependent upon the informants'
assertions, but includes many external data fortifying those
assertions. Indeed, the wealth of incriminating circumstances
11
marshalled by Forey in her affidavit defenestrates Schaefer's
allegation that the trooper did not adequately corroborate the
details of the confidential informants' statements. Having
carefully examined the totality of the circumstances described in
the affidavit, we agree with the state magistrate and the
district court that probable cause to issue the warrant existed.
See Gates, 462 U.S. at 244-45 (explaining that the police need ___ _____
only independently corroborate some of the details supplied by an
informant).
C. Staleness. C. Staleness. _________
We turn now to the appellant's insistence that the
magistrate should have disregarded much of the information
disclosed in the affidavit because it was out of date. We agree
with the appellant's premise an affidavit supporting a search
warrant must contain timely information or else it will fail
but we disagree with his conclusion that Forey's affidavit
suffers from this vice.
In trying to make the case for staleness, the appellant
points to Forey's statement that, "[i]n 1991 and 1992, CI-1 knew
Harold Schaefer and his wife, Kathleen, to be involved in indoor
cannabis cultivation in a barn on their property." Building on
this introduction, he posits that CI-1's knowledge of his
activities went back two to three years, and, therefore, was old
hat. But courts confronting suppression motions do not measure
the timeliness of collected information mechanistically, merely
counting the number of days elapsed. See United States v. ___ ______________
12
Bucuvalas, 970 F.2d 937, 940 (1st Cir. 1992), cert. denied, 507 _________ _____ ______
U.S. 959 (1993). Rather, a number of integers must be factored
into the calculus e.g., the nature of the information, the
nature and characteristics of the supposed criminal activity, the
nature and characteristics of the place to be searched, the
nature of the items delineated in the warrant and the likely
endurance of the information must be gauged on that basis. See ___
id.; see also United States v. Moscatiello, 771 F.2d 589, 597 ___ ___ ____ _____________ ___________
(1st Cir. 1985), vacated on other grounds, 476 U.S. 1138 (1986). _______ __ _____ _______
The longer the expected duration of the criminal activity and the
longer the expected life of the items attendant to it, the more
likely that a datum from the seemingly distant past will be
relevant to a current investigation.
In this case, all signs point to ongoing and entrenched
activity. CI-1 told Forey that the appellant built his barn as a
haven for his illicit marijuana-growing enterprise. Both
informants expressed their belief that the appellant was a major
player in a long-term cartel that involved several independent
marijuana growers. The warrant did not target items of transient
existence, but, rather, featured chattels of relatively dear
value and solid construction (including hardware commonly used in
the growing and distribution of marijuana), likely to be in
service for several years. Since these items possessed enduring
worth and utility, information that might be considered ancient
history in considering the probable whereabouts of more transient
goods would be timely here. See United States v. McKeever, 5 ___ ______________ ________
13
F.3d 863, 866 (5th Cir. 1993) (holding that information need not
be as current when the items to be seized include hydroponic
marijuana-growing apparatuses); United States v. Sturmoski, 971 _____________ _________
F.2d 452, 457 (10th Cir. 1992) (holding to like effect regarding
laboratory equipment for the production of methamphetamine).
Then, too, the troopers proposed to search the
appellant's own barn, not a rented or appropriated facility that
could easily be used and then abandoned. The target's ownership
of the real estate to be searched influences the staleness
calculus. See Bucuvalas, 970 F.2d at 941 (explaining that ___ _________
information is more likely to be timely when it concerns items
stored at a permanent locus). Finally, it is common ground that
drug conspiracies tend to be ongoing operations, rendering timely
information that might, in other contexts, be regarded as stale.
See United States v. Nocella, 849 F.2d 33, 40 (1st Cir. 1988). ___ _____________ _______
In cumulation, these factors make us hesitant to characterize the
challenged information, even if it is not of very recent vintage,
as stale.
We need not dwell on this subject, however, since the
appellant's argument fails for an even more abecedarian reason.
When an affidavit tendered in support of a warrant application
contains information that is remote in time, a magistrate may
still hold it to be adequate if it also contains sufficient
recent facts corroborating the older data and linking that data
to the present. See id. at 39-40. Here, the affidavit cited the ___ ___
appellant's transfer of marijuana plants to Crawford's entourage
14
in April of 1994 (approximately two months before the warrant
issued), and, moreover, Forey's probe of utility company records
indicated the appellant's excessive use of electricity in the
spring of 1994. These recent details bear out the appellant's
earlier connections with marijuana growing, thus rendering the
affidavit temporally adequate.
IV. THE WINONA ROAD SEARCH IV. THE WINONA ROAD SEARCH
The appellant also challenges the warrantless search of
his wife's residence. It is settled that an individual may waive
the warrant requirement of the Fourth Amendment by consenting to
a search of her person, property, or effects, as long as the
individual's consent is freely and voluntarily given. See ___
Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973); Zapata, 18 ___________ __________ ______
F.3d at 977. Citing this caselaw, the government asserts that
Kathleen Schaefer consented to the search of her home.
The chronology of events is important. After Schaefer
lodged his suppression motion, the government filed a written
opposition. Attached to the opposition (and incorporated by
reference therein) were two key documents: (1) a copy of Forey's
report of her investigation concerning, inter alia, the events of _____ ____
June 27, 1994, and (2) a copy of the affidavit that Forey
submitted to the magistrate in conjunction with her request for a
search warrant. Judge McAuliffe heard arguments regarding the
suppression motion on two separate dates in December of 1994, and
conducted a proceeding (partially in camera) in which both Forey
and CI-1 were questioned. At the close of the second day, the
15
judge denied the appellant's motion for a Franks hearing, see ______ ___
Franks v. Delaware, 438 U.S. 154, 171 (1978), and added from the ______ ________
bench that "to the extent we've had a de facto Franks hearing I ______
find Trooper Forey to be entirely credible and I find that she
did not include any false statement or omission in her affidavit
with regard to the statements made by confidential informant No.
1."6 Shortly thereafter, the court handed down a written order
in which it denied the appellant's motion to suppress. See D. ___
Ct. Op. at 12.
The government bears the burden of proving by a
preponderance of the evidence that an individual consented to a
search of her person, property, or effects. See United States v. ___ _____________
Matlock, 415 U.S. 164, 177 (1974). Before us, the appellant _______
challenges the Winona Road search on the ground that the
government adduced no evidence of consent. The relevant
particulars follow. The suppression motion cited the absence of
a warrant as a ground for invalidating the Winona Road search,
and the government's opposition parried this thrust by asserting
that Ms. Schaefer had consented to the search. Withal, the issue
was not the subject of any testimony or argumentation at the
suppression hearing itself. The only record evidence of consent
is Forey's account of her conversation with Ms. Schaefer (set out
in the police report). Judge McAuliffe addressed the matter
briefly in his written order. He found, consistent with the
____________________
6Though one thrust of Schaefer's argument below focused on
what he termed "material misrepresentations" in Forey's
affidavit, he does not renew that claim on appeal.
16
police report,7 that "Ms. Schaefer agreed to allow the troopers
to return to her home and search it," D. Ct. Op. at 3, and
concluded that "[t]he search of the Winona Road property was
conducted only after Kathleen Schaefer gave express consent to _____
the search," id. at 9. ___
The appellant argues that the report was not properly
before the district court at the suppression hearing, and that,
in the absence of any other proof of consent, the district
court's finding is plucked out of thin air. Hence, the pivotal
question is whether the district court appropriately considered
the police report.8 We believe that it did.
We begin with bedrock. Although a suppression hearing
may be of decretory significance in a given case, it is generally
true that "the interests at stake in a suppression hearing are of
a lesser magnitude than those in the criminal trial itself."
United States v. Raddatz, 447 U.S. 667, 679 (1980). Thus, apart _____________ _______
from questions of privilege, the Federal Rules of Evidence do not
apply at suppression hearings. See Matlock, 415 U.S. at 172-74; ___ _______
see also Fed. R. Evid. 104(a) (explaining that the court is "not ___ ____
____________________
7The police report comprised Forey's report on the
investigation into the appellant's marijuana growing activities.
The report recounted extended negotiations with Ms. Schaefer
anent the proposed search, culminating in Ms. Schaefer's informed
consent to it.
8Because the appellant does not argue that Forey's account,
if properly considered by the district court, was insufficient to
show the requisite consent, he has for all intents and purposes
conceded that point. See United States v. Zannino, 895 F.2d 1, ___ _____________ _______
17 (1st Cir.) (admonishing that matters neither briefed nor
argued are waived), cert. denied, 494 U.S. 1082 (1990). _____ ______
17
bound by the rules of evidence except those with respect to
privileges," in deciding "[p]reliminary questions concerning . .
. the admissibility of evidence") & 1101(d)(1) (declaring the
Evidence Rules inapplicable to "[t]he determination of questions
of fact preliminary to admissibility of evidence when the issue
is to be determined by the court").
Consequently, a judge presiding at a suppression
hearing may receive and consider any relevant evidence, including
affidavits and unsworn documents that bear indicia of
reliability. See United States v. Lee, 541 F.2d 1145, 1146 (5th ___ _____________ ___
Cir. 1976). Consistent with this praxis, a judge may receive
hearsay evidence at a suppression hearing. See, e.g., Raddatz, ___ ____ _______
474 U.S. at 679; United States v. Merritt, 695 F.2d 1263, 1269 _____________ _______
(10th Cir. 1982); United States v. Ocampo, 650 F.2d 421, 427 (2d _____________ ______
Cir. 1981); United States v. Bolin, 514 F.2d 554, 557 (7th Cir. _____________ _____
1975).
Here, the suppression hearing itself concentrated on
only a few of the many issues raised by the appellant's motion.
It did not focus at all on the Winona Road search, and it is
apparent to even a casual observer that the district court with
the parties' tacit acquiescence intended to decide that aspect
of the motion on the papers. In implementing this intention, the
court obviously accepted and relied upon the government's proffer
of the police report. In the absence of a motion to strike and
the appellant made none the court was entitled to do so. Put
another way, the government effected a prima facie showing of
18
consent by placing a copy of the police report before the court,
see United States v. Barnes, 443 F. Supp. 137, 139 (S.D.N.Y. ___ _____________ ______
1977); and since the appellant (who cross-examined Forey but
shied away from questioning her about the Winona Road search)
adduced no evidence that impeached or contradicted the trooper's
account of the manner in which she obtained Ms. Schaefer's
consent, the court could properly base a finding on that
account.9 See, e.g., Zapata, 18 F.3d at 977 (affirming the ___ ____ ______
trial court's inference of consent in the absence of contrary
factual evidence); cf. United States v. McKneely, 6 F.3d 1447, ___ _____________ ________
1453 (10th Cir. 1993) (rejecting as clearly erroneous a finding
of coerced consent under circumstances in which the government's
evidence of the defendant's voluntary consent was "uncontroverted
by facts because defendants offered no testimony to the
contrary").
V. CONCLUSION V. CONCLUSION
We need go no further.10 Because the lower court
____________________
9The appellant claims unfair surprise, saying in effect that
he was unaware that the court would consider the police report.
But if the appellant labored under that mistaken assumption at
all, his reverie surely did not survive his receipt of the
district court's rescript. That was the time for appellant to
claim surprise and, concomitantly, to move either to reopen the
proceedings or for reconsideration. The failure to file any such
motion below undercuts the claim of surprise that he mounts in
this venue. Cf. United States v. Diaz-Villafane, 874 F.2d 43, ___ ______________ ______________
47 (1st Cir.) (finding the defendant's claim of surprise at
sentencing "severely undermined, if not entirely undone, by his
neglect [to take appropriate corrective action in the trial
court]"), cert. denied, 493 U.S. 862 (1989). _____ ______
10Inasmuch as we uphold the district court's finding that
Ms. Schaefer consented to the Winona Road search, we express no
opinion on the government's alternative argument that the
19
appropriately refused to suppress the inculpatory evidence that
the government's lawful searches had amassed, the judgment below
must be
Affirmed. Affirmed. ________
____________________
appellant lacked an expectation of privacy in his estranged
wife's residence and therefore lacked standing to contest the
search of those premises.
20
United States v. Alvaro J. Vargas , 931 F.2d 112 ( 1991 )
United States v. Raddatz , 100 S. Ct. 2406 ( 1980 )
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