USCA1 Opinion

[NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

____________________

No. 94-2135

UNITED STATES,

Appellee,

v.

JOHN A. MEUSE,

Defendant - Appellant.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Mark L. Wolf, U.S. District Judge]

___________________

____________________

Before

Boudin and Lynch, Circuit Judges,

______________

and Schwarzer,* Senior District Judge.

_____________________

_____________________

Annemarie Hassett, Federal Defender Office, for appellant.

_________________
Gary S. Katzmann, Assistant
_________________
whom

Donald K. Stern, United

_______________

appellee.

United

States Attorney,

States Attorney, was

with

on brief for

____________________
August 2, 1995
____________________

____________________

*Of the District of Northern California, sitting by designation.

Per Curiam.
Per Curiam
__________

Defendant John A. Meuse pleaded guilty

to

a charge of illegally possessing firearms as a felon (18 U.S.C.

922 (g)(1)).

search

that led

because

from

burglary").

all

the

home

Following

firearms

ammunition,

supporting the

the firearms

of

Genevieve

his indictment,

during the

referred

search warrant

to

DiCarlo

failed to

in

the

DiCarlo

to suppress

his apartment:

indictment,

along

the

with

instrumentalities of an armed

(None of the jewelry from the DiCarlo

burglary was recovered at Meuse's apartment.)

the motion,

("the

Meuse moved

search of

a stun gun, and other

robbery and burglary gang.

denied

was illegal

The items sought were burglary tools and jewelry

items recovered

three

discovery of

the likelihood that the items sought would be found in

residence.

stolen

to the

the affidavit

establish

his

Meuse appeals his conviction on the ground that the

finding that

The district court

the officers had

proceeded in

good faith reliance

on a

facially valid warrant,

information in the affidavit supported

that there was a

and that

the

the magistrate's decision

fair probability that evidence of

a particular

crime, including jewelry stolen in the DiCarlo burglary, would be

found in Meuse's residence.

We affirm the district court.

STANDARD OF REVIEW
STANDARD OF REVIEW

This court has jurisdiction under 28 U.S.C.

reviewing

a district court's

affidavit stated

determination that the

sufficient probable

-2-

cause to support

1291.

In

face of an

a search

warrant,

we

review only

for clear

error.1

United States v.
_________________

Garc a, 983 F.2d 1160, 1167 (1st Cir. 1993), citing United States
______
_____________

v. Nocella, 849 F.2d

___________

33, 39

(1st Cir.

1988); see also United

_________ ______

States v. Taylor, 985 F.2d 3, 5 (1st Cir. 1993) (reviewing court

_________________

does

not

undertake

warrant affidavit,

de
__

novo review
____

but accords

cause determination).

of

sufficiency

great deference to

of search

the probable

BACKGROUND
BACKGROUND

The

warrant was

clerk-magistrate of

page affidavit,

issued

on December

10,

1991, by

the Commonwealth of Massachusetts.

signed

by Massachusetts

State Trooper

The 14-

Michael

Grassia, stated in substance the following:

On December 2, 1991, Grassia, a ten-year veteran of the

force,

attended a meeting

area of

Saugus).

Massachusetts (Wakefield,

The

officers from

Malden, Revere,

purpose of the meeting was to

strategy for solving

of homes

of police

Chief among the

Melrose, and

plan and coordinate

a series of armed robberies

in that area.

a five-town

and burglaries

suspects identified at

____________________

Meuse

contends

that

the

"clear

error"

standard

is

not

applicable here because the district court's determination of the

sufficiency of the
evidentiary

underlying affidavit

hearing, citing

1143, 1147 (1st Cir. 1992).

the

sufficiency

of

particularity of a

the

sought.
when,

after a

non-

United States v. Falon, 959

________________________

F.2d

In Falon, however, the issue was not

_____
search

the criminal

offenses for which

We suggested that

de novo review
_______

as there, the district

warrant.

We added, however, that

standard.

level

fact

of

court makes a

the

nature of

affidavit,
_________

or attach the affidavit,

regarding

the

warrant

broadly worded search warrant,

specifically incorporate
not refer to

was made

particularity

finding, we

Id.
___

-3-

but

the

which did not

and which did

the evidence

was

might be appropriate

purely legal ruling

required

in

search

when reviewing conclusions in

would

apply the

clear

error

the meeting was

John Meuse.

Grassia that a Ford

him about

he was informed that

an armed robbery,

police station to retrieve

place.

to

The Wakefield

the van

was

been identified

used in an armed robbery the

Meuse subsequently called

stolen; when

the Wakefield officers told

van registered to Meuse had

by witnesses as a vehicle

month.

One of

the police to

report the van

the police wanted to

however, he

refused to

talk to

go to

the van, sending his attorney

officer told Grassia that the

a popped

previous

ignition,

and that

Meuse subsequently re-registered

different license

plates.

Grassia

in his

only damage

everything

appeared intact.

obtained other

the

else

the van with

information

about Meuse at the meeting, including information about

his past

criminal record.

Because the

were

suspected

crimes of

had

been

committed

Saturdays,

of

conduct a joint

surveillance of those suspects on

December 7,

December 7th,

at

Melrose

1991.

Earlier

in Revere

that

was burglarized.

agreed

the

to

the following

6:30

p.m.

on

officers began surveillance

and Everett,

afternoon, the

Taken

departments

At approximately

Grassia and the other

several locations

residence.

various police

on

his associates

representatives

Saturday,

the

which Meuse and

in the

including Meuse's

DiCarlo residence

burglary

in

were several

hundred pieces of jewelry and a light green pillowcase.

Some

of

the jewelry was in a white cardboard box.

That evening, at 8:00 p.m., a Monte Carlo registered to

Robert

Stevens, another of the suspects in the Wakefield crimes,

-4-

arrived at Meuse's residence.

Three men got out of Stevens'

car

and walked into Meuse's apartment building, one carrying a light-

colored

Police

cloth bag,

observed

apartment.

and

the other

the three

men

two

walking

with valise-type

around inside

bags.

Meuse's

An hour

enter

Meuse's

later, at 9:00 p.m., police saw Ronald Ferrara

apartment, empty-handed.

Half

an hour

Ferrara came out, carrying a brown shopping bag.

followed Ferrara

town.

to the parking lot of

drove to

Meuse's

followed

Ferrara

a restaurant in a nearby

an

van and

by

got out, still carrying

adjoining parking

Stevens' Monte

police

from

hand what looked like

Monte Carlo, after which

and

walked back

to his

Ferrara then entered

the shopping bag.

lot, and

Carlo, both

money into the

he shook hands

car, still

of which

The

had been

police saw

passenger side of

with the passenger

carrying the

the restaurant, where he

He

pulled alongside

Meuse's apartment.

the

a.m.

Police officers

Ferrara entered another vehicle, talked to the driver for

ten minutes, and

then

later,

shopping bag.

stayed until 1:00

When Ferrara left the restaurant, he was accompanied by

his wife.

Shortly thereafter, Ferrara was arrested for operating

a motor vehicle with a suspended license.

his

An inventory search of

car revealed a brown shopping bag containing over 100 pieces

of jewelry and

a white

cardboard box, all

identified by Mrs. DiCarlo as

of which were

later

the items stolen from her home

December 7th.

-5-

on

When Ferrara

said he had been

police station, he

at the restaurant the entire evening, from 7:30

p.m. until 1:00 a.m.

from

was questioned at the

a friend of a

identify either the

He told police he had purchased the jewelry

friend inside the

restaurant, but could not

friend or the seller of the

jewelry.

Later

that

night, Ferrara's wife arrived at the police station to post

bail

for Ferrara, and told police the

time

the

police had

Ferrara said

stopped

the

that the jewelry in

jewelry was hers.

Ferrara

car, however,

the car was not

At the

Mrs.

hers and that

she knew nothing about the bag.

Grassia concluded that it was

facts stated above, along

his belief, based on the

with his training and experience

as a

police officer, that the perpetrators of the DiCarlo burglary had

used

the pillowcase to carry

colored cloth

of

from

off the jewelry;

that the "light-

bag" carried into Meuse's apartment on the evening

December 7th was the

green pillowcase that

had been removed

the DiCarlo residence during the burglary; that Ferrara was

acting as

a fence for the

jewelry from Meuse's

Grassia

stated

stolen property and

apartment on the

further that

he

had obtained the

evening of December

believed

that further

7th.

stolen

property was being kept at Meuse's apartment.

DISCUSSION
DISCUSSION

Meuse

argues

that the

affidavit

in

support of

the

search warrant failed to establish the requisite probability that

evidence of the DiCarlo burglary would be found in his residence.

He contends that the

affidavit was deficient in that

it did not

-6-

establish a

sufficient nexus between the stolen

jewelry and his

apartment.

Probable

cause

exists

where

"the

facts

and

circumstances within [a police officer's] knowledge, and of which

[the officer] had reasonably trustworthy information .

sufficient

in themselves

to

warrant a

[person] of

. . [are]

reasonable

caution" to believe that a

crime has been committed or

is being

committed and that contraband or other evidence of a crime can be

found at the place to be searched.

U.S. 132,

(1st

there

162 (1925);

Cir. 1982).

United States v. Drake, 673 F.2d

_______________________

crime will be found

that contraband or

in a particular place.

727, 733

11, 13 (1st Cir. 1993).

than

the

"preponderance"

evidence of a

See Massachusetts v.
___ ________________

(1984); United States v. Jordan,

________________________

F.2d

'reasonable

15, 17

Stated another way, probable cause exists when

is a "fair probability"

Upton, 466 U.S.

_____

Carroll v. United States, 267

________________________

999

"Probable cause" is something less

standard

of

proof.

"[T]he

cause' are perhaps closer to what is meant."

words

United
______

States v. Melvin, 596 F.2d 492, 495 (1st Cir.), cert. denied, 444
________________
____________

U.S. 837 (1979).

Probable

cause

may be

established

including

hearsay from a reliable source

anonymous

tip

that

can

be independently

Illinois v. Gates, 462 U.S.

__________________

cause

may also

corroborated.

(1983).

by the personal

police

officers.

454-55

(1948); United States v. Lee, 962 F.2d

_____________________

See
___

Probable

observations of

See McDonald v. United States,

___ __________________________

-7-

ways,

or information from an

213, 233-34, 241

be established

in various

335 U.S. 451,

430, 436-38 (5th

Cir.), cert. denied, 113

_____________

their training,

S. Ct. 1057

(1992).

experience, and expertise to

criminal activity

from behavior

that is not

Police may

use

draw inferences of

facially criminal.

Texas v. Brown, 460 U.S. 730, 742-43 (1983) (plurality opinion).

______________

The mandate

of the

Fourth Amendment was

satisfied in

this case so long as the "totality of the circumstances" provided

the issuing

magistrate with

that a search would

U.S. at 236;

a substantial basis

for concluding

uncover evidence of wrongdoing.

United States v. Ciampa, 793 F.2d

_______________________

Gates, 462
_____

19, 22 (1st Cir.

1986).

The district court found that that standard was met here.

The district

affidavit was

court found

that the information

obtained primarily from

in the

the personal observations

of trained and experienced police officers; that there had been a

rash of burglaries in

which defendant was a prime

defendant drove a van which was

armed robbery; that on

suspect; that

believed to have been used in an

the day of the DiCarlo

was seen entering defendant's apartment

burglary, Ferrara

empty-handed and leaving

with a shopping bag that was later found to contain a substantial

portion of the jewelry reported stolen by Mrs. DiCarlo just hours

before; and that Ferrara lied

about his whereabouts that evening

and told an

about the source

further

incredible story

undercut

by his

wife's

conflicting

totality of the circumstances, the court found

of the

story.

jewelry,

In

the

probable cause to

believe

that evidence of a

apartment.

crime would be

found in defendant's

Meuse argues that the conclusion that a search of his

apartment would uncover evidence relating to the DiCarlo burglary

-8-

relied on the inference

that the contents of the

bag removed from Ferrara

obtained by

Ferrara

from

at 1:00 a.m. on

Meuse's

brown shopping

December 8th had

apartment at

9:30

p.m.

been

on

December

7th.

He

claims that

even

leaving the apartment with a bag

the

though Ferrara

was

seen

that was later found to contain

stolen DiCarlo jewelry, the fact that Ferrara met with other

individuals

departure

during

the

from Meuse's

three

and

residence

police makes it unreasonable

a half

and his

hours

between

his

apprehension by

the

to conclude that the bag

must have

contained the stolen jewelry when Ferrara left Meuse's apartment.

This argument ignores the

fact that the full array of

circumstances presented to the

facts and

issuing court need only establish

probable

cause, not a certainty that the material sought will be

found in

the place to be

searched.

Gates, 462
_____

U.S. at 231-35;

accord, Ciampa, 793 F.2d at 22.

______ ______

Similarly

unpersuasive is

Meuse's argument

that the

affidavit does not support the inference that the DiCarlo jewelry

entered

Meuse's apartment

claims that

in the

cloth bag

the requisite probable cause is

at

the surveillance described a

"light-colored bag"

rather than

the DiCarlo residence.

man carrying a

the "green pillowcase"

This minor variation

missing

in the terms

used to describe the bag does not preclude a finding of

cause.

He

lacking because the

officers conducting

from

8:00 p.m.

probable

Search warrants are to be interpreted in a "common-sense

rather than a hypothetical or a

983 F.2d at 1167.

hypertechnical manner."

Bits and pieces of information

-9-

Garc a,
______

are not to be

judged in isolation.

United States v. Badessa, 752 F.2d 771, 773

________________________

(1st Cir. 1985).

Meuse's final argument is that

facts

to link

him

personally

Ferrara's criminal activities.

affidavit

had

did

previously

the

stolen

He claims, for

not show that Ferrara was a

fenced stolen

previously received

that

to

there were insufficient

property for

stolen property

jewelry

or

to

example, that the

known fence, that he

Meuse, that

from Meuse's

he had

apartment, or

he had any record for any offense involving stolen property

or relating to the robbery/burglary activity for which Meuse

under surveillance.

his

visit to

Meuse also argues that

Meuse's apartment

that Ferrara wished to

sheds

no light on

Ferrara's lie about

establishes nothing

other than

hide his association with Meuse,

whether or not the

was

that it

DiCarlo jewelry came from

Meuse's apartment.

This

argument is

also without

merit.

The affidavit

showed that there

was a

fair probability that

evidence of

the

DiCarlo

burglary

could

be

apartment.

In

addition

to the

that Meuse's

found in

reasons set forth

van had been tied to

the previous month.

Meuse's apartment on

Meuse's

above, the

affidavit stated

an armed robbery committed in

The affidavit also described the activity at

the evening of

December 7th, during

which

this same van was parked outside.

parking

lot

with

Ferrara's

car

The van was then seen at

and

the

Stevens'

the

vehicle.

Considering the totality of the circumstances, the connection was

-10-

sufficiently close

search warrant.

to support

the magistrate's issuance

of the

In any event, the denial of Meuse's motion

is supported by

rule.

the "good faith"

exception to the

to suppress

exclusionary

The Supreme Court has declared that even when information

contained in an affidavit makes only a marginal case for a search

warrant, the warrant should

expressed

a doubtful

sustainable

nevertheless be upheld.

"[W]e have

a strong preference for warrants and declared that 'in

or a marginal

case a search

under a warrant

where without one it would fall.'"

may be

United States v.
________________

Le n, 468 U.S. 897, 914 (1984).

____

"In the absence of an allegation

that

his detached

the magistrate

abandoned

and neutral

role,

suppression is appropriate only if the officers were dishonest or

reckless in preparing their affidavit or could

an

objectively reasonable

belief in

not have harbored

the existence

of probable

cause."

Id. at 926.
___

Here,

proceeded in

the

district

good faith

court

reliance on

issued by a judicial officer, and

'bare-bones' affidavit."

Id.
___

Affirmed.
________

-11-

that

a facially

the

officers

valid warrant,

supported by "much more than a

Thus,

applies in this case.

found

the "good-faith" exception