United States v. Jordan

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 92-2332
UNITED STATES OF AMERICA,
Appellee,
v.
SHERWOOD K. JORDAN,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Gene Carter, U.S. District Judge]
Before
Selya, Circuit Judge,
Friedman, Senior Circuit Judge,
and Cyr, Circuit Judge.
David G. Webbert with whom Berman & Simmons, P.A. was on brief
for appellant.
F. Mark Terison, Assistant United States Attorney, with whom
Richard S. Cohen, United States Attorney, and Richard W. Murphy,
Assistant United States Attorney, were on brief for appellee.
July 16, 1993
*Of the Federal Circuit, sitting by designation.
CYR, Circuit Judge. On December 3, 1991, Maine law
CYR, Circuit Judge.
enforcement personnel executed a search warrant at the home of
appellant Sherwood Jordan, seizing more than a kilogram of
marijuana, a triple beam scale, $5,880 in cash, six firearms, and
nearly 1000 rounds of assault-rifle ammunition. A federal grand
jury subsequently indicted Jordan on six counts of possession of
firearms or ammunition by a felon, 18 U.S.C. 922(g)(1), 924,
and one count of possessing marijuana with intent to distribute,
18 U.S.C. 841(a)(1), (b)(1)(D).
Jordan moved to suppress all evidence seized during the
search, contending that the warrant was issued without probable
cause. Although it expressed "grave reservations as to the
sufficiency of the probable cause showing," the district court,
relying on the "good faith" exception to the exclusionary rule,
see United States v. Leon, 468 U.S. 897 (1984), denied the motion
to suppress. Jordan subsequently entered conditional guilty
pleas to three firearms charges and the drug distribution charge,
reserving the right to appeal the suppression ruling. See Fed.
R. Crim. P. 11(a)(2).
A. The Supporting Affidavit.
A. The Supporting Affidavit
The search warrant was issued by a state court judge on
the strength of the affidavit of Agent Winston McGill of the
Maine Bureau of Intergovernmental Drug Enforcement. The affida-
vit related in great detail two controlled marijuana "buys,"
within the preceding ten days, from one Donald Moyse, a convicted
2
drug offender, by a confidential informant acting under the
direct control and surveillance of Agent McGill. McGill attested
that the confidential informant previously had provided reliable
tips and had cooperated with local authorities in other con-
trolled marijuana "buys." The affidavit related that Donald
Moyse told the confidential informant that the marijuana involved
in both controlled "buys" had come from Jordan's residence, and
that both "buys" had been conducted in essentially the same
manner: the confidential informant would meet with one Cary
LaFrance at a local rest stop area and turn over the agreed
purchase price (supplied by Agent McGill). LaFrance would drive
to Donald Moyse's residence, and the two would proceed to the
Jordan residence where the marijuana was kept. Moyse and LaFran-
ce would then meet with the informant at a local school and
deliver the marijuana.
On the occasion of each controlled "buy," McGill
searched the confidential informant for contraband immediately
prior to providing the purchase money; prior to the second "buy,"
he searched the informant's vehicle as well. McGill then survei-
lled the unfolding transaction, observing as the informant
delivered the "buy" money to LaFrance, following LaFrance to
Moyse's house, and watching LaFrance and Moyse as they proceeded
to Jordan's residence, then to the local school. In each in-
stance, McGill's affidavit attests, the informant told McGill
that the marijuana had been turned over to him by Moyse and
LaFrance at the school and that it had been obtained, according
3
to Moyse, at Jordan's residence. Following the second "buy," the
informant told McGill that Moyse had stated that there was a
"large quantity" of marijuana at the Jordan residence. Finally,
the affidavit represented that urinalysis conducted while Moyse
was on probation occasionally revealed positive results for
marijuana use.
B. The District Court Decision.
B. The District Court Decision.
Contrary to Jordan's contention on appeal, the district
court's "grave reservations as to the sufficiency of the probable
cause showing" did not amount to a finding that the warrant was
not based on probable cause. "Grave reservations" do not a
ruling make. Rather, the district court plainly bypassed any
"probable cause" ruling in favor of its functionally distinct
reliance on the "good faith" exception to the exclusionary rule.
In addition, we agree with the government that the McGill affida-
vit made a sufficient showing of probable cause.1
C. Probable Cause.
C. Probable Cause.
We must accord the issuing judge's "probable cause"
determination "great deference," United States v. Scalia, slip
op. No. 93-1018 at 4 (1st Cir. May 21, 1993) (quoting United
States v. Ciampa, 793 F.2d 19, 22 (1st Cir. 1986)), with a
1As there was no evidentiary hearing on the motion to
suppress, we examine the only supporting evidence the McGill
affidavit to determine the sufficiency of the probable cause
showing. Cf. Leon, 468 U.S. at 925 (reviewing court may resolve
sufficiency of "probable cause" showing before considering "good
faith" exception).
4
common-sense view to whether the "totality of the circumstances"
related in the supporting affidavit, Illinois v. Gates, 462 U.S.
213, 238 (1983), gave rise to a fair probability that a search of
the target premises would uncover contraband or evidence of a
crime. See United States v. Caggiano, 899 F.2d 99, 102 (1st Cir.
1990) (citing Gates, 462 U.S. at 238-39). The "fair probability"
threshold does not require a prima facie showing of criminal
activity. Ciampa, 793 F.2d at 22 (citing Gates, 462 U.S. at
235).
Jordan makes a spirited attack on the McGill affidavit:
neither McGill nor the informant had any direct contact with
Jordan, nor directly observed any drug buy or transfer at the
Jordan residence; Moyse's representations that the marijuana came
from Jordan's home are "double hearsay"; Moyse, a marijuana user
and convicted drug offender, was not a reliable hearsay declarant
and, finally, the affidavit did not demonstrate a "fair prob-
ability" that marijuana or related contraband would be found at
the Jordan residence since the marijuana Moyse sold to the
informant could have come from LaFrance, Moyse, the school, or
Jordan's residence.
We agree that nothing in the McGill affidavit excluded
the possibility that the marijuana may have come from some place
other than the Jordan residence. Nevertheless, viewing the
totality of the circumstances related in the affidavit, rather
than judging "bits and pieces of information in isolation,"
United States v. Cochrane, 896 F.2d 635, 637 (1st Cir.) (citing
5
Massachusetts v. Upton, 466 U.S. 727, 732 (1984)), cert. denied,
496 U.S. 929 (1990), the affidavit was sufficient to support the
issuing judge's "common-sense" determination of probable cause.
Hearsay statements, like those of Moyse and the infor-
mant, often are the stuff of search warrant affidavits. See,
e.g., Scalia, slip op. at 2, 3; Ciampa, 793 F.2d at 24. Their
reliability may be corroborated by various means, including
direct surveillance or circumstantial evidence, or vouchsafed by
the affiant in this case a highly experienced law enforcement
officer. See, e.g., Scalia, slip op. at 6-8. McGill attested
that the confidential informant had provided reliable information
and investigative assistance to the police in the past, which may
have been sufficient in itself to establish the reliability of
the informant's hearsay statements. See, e.g., Ciampa, 793 F.2d
at 24 (hearsay conveyed by "proven reliable informant"); cf.
United States v. Campbell, 732 F.2d 1017, 1019 (1st Cir. 1984)
(double hearsay unacceptable basis for probable cause where
neither informant nor confidential contact had dealt with police
in the past). Moreover, McGill also attested that (i) Moyse was
an unwitting participant in the controlled "buy," and (ii)
unbeknownst to Moyse, McGill observed Moyse's entrance to Jordan-
's residence on both occasions, thereby establishing that Moyse
was in a position to know whether Jordan kept marijuana at his
residence. See Ciampa, 793 F.2d at 24.
Finally, McGill contemporaneously surveilled all
conspicuous steps taken in the course of both controlled "buys,"
6
which proceeded exactly as foretold by the confidential infor-
mant, and included stops at Jordan's home, the site of the
search. Thus, independent corroboration lent further credence to
the confidential informant's statements (i.e., the location of
the marijuana). See United States v. Jorge, 865 F.2d 6, 9 (1st
Cir. 1989), cert. denied, 490 U.S. 1027 (1989); see also Gates,
462 U.S. at 244 (White, J., concurring) ("Because an informant is
right about some things, he is more probably right about other
facts . . . .").
Appellant nevertheless correctly observes that these
factors in combination do not exclude the possibility that Moyse
might have obtained the marijuana at some place along the drug
"buy" route other than Jordan's residence. But given the exper-
ience and training of the affiant, the confidential informant's
proven reliability, and the corroboration of the informant's and
Moyse's hearsay reports by means of direct police surveillance,
the issuing judge was not required to credit the speculative
possibility that the marijuana might have been obtained elsewhere
along the drug route than Jordan's residence. Nor may we do so.
See Scalia, slip op. at 4 (issuing judge's "probable cause"
determination entitled to "great deference"). Viewed in their
totality, therefore, the circumstances related in the supporting
affidavit, together with reasonable inferences therefrom, provid-
ed a "substantial basis" for the issuing judge's common-sense
determination that there was a fair probability that Jordan's
7
home contained contraband or evidence of a crime. Caggiano, 899
F.2d at 102 (citing Gates, 462 U.S. at 238-39).
Affirmed.
8