USCA1 Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
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No. 92-2332
UNITED STATES OF AMERICA,
Appellee,
v.
SHERWOOD K. JORDAN,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Gene Carter, U.S. District Judge]
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Before
Selya, Circuit Judge,
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Friedman, Senior Circuit Judge,
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and Cyr, Circuit Judge.
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David G. Webbert

with whom Berman &

Simmons, P.A. was

on br

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for appellant.
F. Mark Terison, Assistant United States Attorney, with w
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Richard S. Cohen, United States Attorney, and Richard W. Murp
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Assistant United States Attorney, were on brief for appellee.
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July 16, 1993
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*Of the Federal Circuit, sitting by designation.

CYR, Circuit Judge.

CYR, Circuit Judge.
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enforcement
appellant

On December 3,

personnel executed a
Sherwood Jordan,

1991, Maine

search warrant at

seizing

more

than

law

the home of
kilogram

of

marijuana, a triple beam scale, $5,880 in cash, six firearms, and

nearly 1000 rounds of assault-rifle

ammunition.

jury subsequently indicted Jordan on six counts of

firearms

or ammunition by a

felon, 18 U.S.C.

and one count of possessing marijuana with

18 U.S.C.

A federal grand

possession of

922(g)(1), 924,

intent to distribute,

841(a)(1), (b)(1)(D).

Jordan moved to suppress all evidence seized during the

search, contending that

cause.

Although

it

sufficiency of the
relying on the

the warrant was issued

expressed "grave

reservations

probable cause showing," the

"good faith" exception to

without probable
as to

the

district court,

the exclusionary rule,

see United States v. Leon, 468 U.S. 897 (1984), denied the motion
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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.
A.

The Supporting Affidavit.

The Supporting Affidavit
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The search warrant was issued by a state court judge on

the
Maine
vit

strength of

the affidavit

of Agent

Winston McGill

Bureau of Intergovernmental Drug Enforcement.

related in

great detail

two

of the

The affida-

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.

that the confidential informant
tips and
trolled

had

previously had provided reliable

cooperated with

marijuana "buys."

McGill attested

local authorities

The

affidavit

in other

related that

con-

Donald

Moyse told the confidential informant that the marijuana involved

in both controlled
that

both "buys"

"buys" had come from Jordan's

had

been conducted

in

essentially the

manner:

the confidential

informant

would meet

LaFrance

at a

stop area

and turn

local rest

residence, and

with one
over the

purchase price (supplied by Agent McGill).

LaFrance

to Donald

would proceed

Moyse's residence,

and the two

same

Cary

agreed

would drive

to the

Jordan residence where the marijuana was kept.

Moyse and LaFran-

ce would

local school

then meet

with

the informant

at a

and

deliver the marijuana.

On
searched the

the

occasion

of

each

confidential informant

controlled

"buy,"

for contraband

McGill

immediately

prior to providing the purchase money; prior to the second "buy,"

he searched the informant's vehicle as well.
lled

the

unfolding

transaction,

delivered

the "buy"

money to

McGill then survei-

observing

LaFrance,

Jordan's residence,

stance,
that the

then to the

McGill's affidavit
marijuana had

LaFrance at the

been

attests, the

to

In each in-

informant told

turned over

informant

as they proceeded

local school.

school and that it had

the

following LaFrance

Moyse's house, and watching LaFrance and Moyse

to

as

to him

McGill

by Moyse

and

been obtained, according

to Moyse, at Jordan's residence.

informant

told McGill

"large quantity" of

that Moyse

on

had stated

that there

marijuana at the Jordan residence.

the affidavit represented

was

Following the second "buy," the

probation

was a

Finally,

that urinalysis conducted while

occasionally

revealed

Moyse

positive results

for

marijuana use.
B.
B.

The District Court Decision.

The District Court Decision.
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Contrary to Jordan's contention on appeal, the district

court's "grave reservations as to the sufficiency of the probable

cause showing" did not
not

based on

ruling make.

amount to a finding that the

probable cause.
Rather,

"probable cause"

"Grave reservations"

the district

ruling in

favor of

reliance on the "good faith"

warrant was

court plainly

do not

bypassed any

its functionally

distinct

exception to the exclusionary rule.

In addition, we agree with the government that the McGill affidavit made a sufficient showing of probable cause.1
C.
C.

Probable Cause.
Probable Cause.
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We must

accord

the issuing

judge's "probable

cause"

determination "great
op.

No. 93-1018

States
______

deference," United States

_____________

at 4

v. Ciampa,
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793

(1st Cir.
F.2d 19,

v. Scalia,
______

slip

May 21, 1993)

(quoting United
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22

1986)), with

(1st Cir.

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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
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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

crime.

uncover contraband

or evidence

of a

See United States v. Caggiano, 899 F.2d 99, 102 (1st Cir.
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________

1990) (citing Gates, 462 U.S. at 238-39).

_____
threshold
activity.

does not

require a

Ciampa, 793
______

F.2d at

prima

The "fair probability"

facie showing

22 (citing

of criminal

Gates, 462
_____

U.S. at

235).

Jordan makes a spirited attack on the McGill affidavit:

neither

McGill nor

Jordan, nor

the

informant had

directly observed

any direct

any drug buy

contact with

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

ability" that marijuana

the

Jordan residence

informant could

did not demonstrate

a "fair

or related contraband would

since

the

have come from

marijuana

be found at

Moyse sold

LaFrance, Moyse, the

prob-

to

the

school, or

Jordan's residence.
We

agree that nothing in the McGill affidavit excluded

the possibility that the marijuana

other

than

totality
than

the

Jordan residence.

of the circumstances

judging

"bits

United States v.
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may have come from some place

Nevertheless,

related in the

and pieces

of

affidavit, rather

information

Cochrane, 896 F.2d 635, 637

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viewing the

in isolation,"

(1st Cir.) (citing

Massachusetts v. Upton, 466 U.S.

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_____
496 U.S. 929 (1990), the

727, 732 (1984)), cert. denied,

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affidavit was sufficient to support the

issuing judge's "common-sense" determination of probable cause.

Hearsay
mant, often

statements, like those of Moyse and the infor-

are the

e.g., Scalia,
____ ______

slip op. at 2,

reliability may

be

direct surveillance
the affiant
officer.

stuff of search

warrant affidavits.

3; Ciampa, 793 F.2d at

______

corroborated

by

various

24.

means,

See,
___

Their

including

or circumstantial evidence, or vouchsafed by

in this

case a highly experienced law enforcement

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 informant's

hearsay statements.

at

conveyed by

24 (hearsay

United States
_____________

See, e.g., Ciampa, 793 F.2d

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"proven

v. Campbell, 732
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reliable informant");

F.2d 1017, 1019 (1st

probable

Cir. 1984)

hearsay

neither
_______

informant nor confidential contact had dealt with police

___

an

basis for

cf.
___

(double

in the past).

unacceptable

the reliability of

Moreover, McGill also attested

unwitting participant

in

the

controlled

cause

where

that (i) Moyse was

"buy,"

and

(ii)

unbeknownst to Moyse, McGill observed Moyse's entrance to Jordan's residence on

was in

both occasions, thereby establishing

a position to know

whether Jordan kept

that Moyse

marijuana at his

residence.

See Ciampa, 793 F.2d at 24.

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Finally,

McGill

contemporaneously

conspicuous steps taken in the

surveilled

all

course of both controlled "buys,"

6

which

proceeded exactly as

mant,

and included

search.

stops

foretold by the
at

confidential infor-

Jordan's home,

the

site of

the

Thus, independent corroboration lent further credence to

the confidential informant's

the marijuana).

statements (i.e.,
____

See United States

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Cir. 1989), cert.

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the location

v. Jorge, 865 F.2d 6, 9

_____

denied, 490 U.S. 1027 (1989);

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of

(1st

see also Gates,

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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

factors in combination do not exclude the possibility

might have

obtained the marijuana

"buy" route other than Jordan's

ience and training

at some place along

residence.

of the affiant, the

these

that Moyse

the drug

But given the exper-

confidential informant's

proven

reliability, and the corroboration of the informant's and

Moyse's hearsay reports

the

issuing judge

by means of direct

was not

required to

police surveillance,

credit the

speculative

possibility that the marijuana might have been obtained elsewhere

along the drug route than Jordan's residence.
See
___

Scalia, slip
______

determination

op.

at 4

(issuing

entitled to "great

totality, therefore,

Nor may we

do so.

judge's "probable

cause"

deference").

Viewed

in their

the circumstances related in the supporting

affidavit, together with reasonable inferences therefrom, provided a

"substantial basis"

determination that

for the

there was

issuing judge's

a fair

common-sense

probability that

Jordan's

home contained contraband or evidence

of a crime.

F.2d at 102 (citing Gates, 462 U.S. at 238-39).

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Affirmed.
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Caggiano, 899
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