U.S. v. Ribeiro

• Citation: 397 F.3d 43
• Decision Date: 08 February 2005
• Docket Number: No. 03-2218.,03-2218.
• Parties: UNITED STATES of America, Appellee, v. Fernando RIBEIRO, Defendant, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

Page 43

397 F.3d 43

UNITED STATES of America, Appellee, v. Fernando RIBEIRO, Defendant, Appellant.

No. 03-2218.

United States Court of Appeals, First Circuit.

Heard October 7, 2004.

Decided February 8, 2005.

Anthony M. Cardinale, with whom Kimberly Homan was on brief, for appellant.

Cynthia A. Young, Assistant United States Attorney, with whom Michael J. Sullivan, United States Attorney, was on brief, for appellee.

Before LYNCH, Circuit Judge, STAHL, Senior Circuit Judge, and LIPEZ, Circuit Judge.

LIPEZ, Circuit Judge.

Fernando "Nando" Ribeiro was indicted on February 20, 2002, on eight counts charging various drug offenses. On May 13, 2002, he filed a motion to suppress evidence seized during the execution of a search warrant for his apartment. After a hearing, the district court denied the motion. On February 11, 2003, Ribeiro entered a conditional guilty plea to all counts, permitting him to appeal the denial of his motion to suppress. On August 18, 2003, he was sentenced to 180 months of imprisonment (after a downward departure for diminished capacity under U.S.S.G. § 5K2.13) and eight years of supervised release.¹

Ribeiro raises two issues on appeal relating to the search of his apartment. First, he argues that there was no probable cause for the search warrant. Second, he argues that even if there was probable cause, the drugs found and seized by the police were not within the plain-view exception to the warrant requirement.

Ribeiro frames his specific legal arguments in the context of what he sees as a larger, growing problem in law enforcement — a "new breed" of "documentary search warrants" for drug dealers' homes, which authorize searches for documents and drug paraphernalia, but not for drugs themselves. According to Ribeiro, these warrants are supported mainly with generalized observations about drug dealers' habits (for example, that they frequently keep records of their illicit business in their homes), not specific observations.

Notwithstanding Ribeiro's disapproval of the kind of warrant used in this case, we find no error in its issuance or execution, and we affirm the district court's denial of the motion to suppress.

I.

On December 19, 2001, police officers executed a search warrant for Ribeiro's apartment at 60 Reservoir Street in Brockton, Massachusetts. The warrant did not authorize a search for drugs. Instead, it covered records, currency, baggies, and other drug paraphernalia. During their search, the officers found and seized bags of cocaine, heroin, "crack" cocaine,² and ecstasy, which they said were exposed to their plain view in the bottom of a speaker cabinet.

The Affidavit

The warrant was based on an affidavit from Detective Joseph Gallarelli, a Boston police officer temporarily assigned to a Drug Enforcement Agency (DEA) task force that had been investigating the ecstasy trade in the Bridgewater, Massachusetts area since fall 2001. Det. Gallarelli's affidavit was based partly on information provided by a confidential informant, who said that Nando lived near the "Foxy Lady," a strip club, and that he and his brother were known to deal drugs in the area. The confidential informant made three controlled buys of ecstasy from Nando in October or November 2001. At the time of the buys, the informant was accompanied by Det. John Silva III of the East Bridgewater Police Department, who like Gallarelli was temporarily assigned to the DEA task force. Det. Silva did not participate in the buys. Through surveillance, booking records from another jurisdiction, and records from the Massachusetts Registry of Motor Vehicles, the police determined that "Nando" indeed referred to Fernando Ribeiro, the defendant, and that he lived at 60 Reservoir Street. Also, at times during their surveillance police saw Ribeiro driving two cars: a Mercedes, registered in his name, and a BMW, registered in his father's name.

The warrant was also based on four controlled buys of ecstasy tablets by Det. Silva, operating undercover, at a local restaurant. The first buy took place on November 20, 2001. Det. Silva called the telephone number given by the informant (apparently a cell phone). A man answering to the name "Nando" answered, and told Det. Silva to call back in fifteen minutes. Det. Silva did so and explained that he had $1,000 and wanted to buy 100 ecstasy tablets. The two arranged to meet shortly at the Charlie Horse restaurant in West Bridgewater. Police surveillance saw Ribeiro's Mercedes leave 60 Reservoir Street, and police saw the car arriving seven minutes later at the Charlie Horse, but they did not observe Ribeiro while he was in transit. Det. Silva then bought from Ribeiro 100 tablets in a plastic baggie for $900; the tablets later field-tested positive for ecstasy.

On November 29, 2001, Det. Silva again called Ribeiro, seeking to arrange another purchase of ecstasy tablets at the Charlie Horse. Ribeiro said that he could be there in twenty minutes. At the time of the call, surveillance officers did not see the Mercedes or BMW parked outside 60 Reservoir Street. About twenty-six minutes after the call, Ribeiro pulled into the Charlie Horse parking lot in the BMW, where he met Det. Silva and again sold him 100 ecstasy tablets in a plastic baggie for $900.

On December 6, 2001, Det. Silva arranged for a third buy. The police established surveillance outside 60 Reservoir Street. At 3:55 p.m., Det. Silva called Ribeiro, and they arranged to meet at the Charlie Horse in ten minutes. At 4:15 p.m., Det. Silva called Ribeiro again and told him that he would be leaving in ten minutes. Minutes later, police surveillance saw Ribeiro walk out of the apartment building with a woman and child. After installing a baby seat in the BMW, Ribeiro drove away with the woman and baby in the car around 4:35 p.m. The police followed Ribeiro for a short distance but lost him in traffic; at about 4:44 p.m., Ribeiro pulled into the Charlie Horse's parking lot (with the woman and child still in the car) and sold 100 ecstasy tablets in a plastic baggie to Det. Silva for $900.

On December 13, 2001, after several telephone calls back and forth between Det. Silva and Ribeiro, Ribeiro told Det. Silva that he could meet him at the Charlie Horse in fifteen minutes. About thirty minutes after that call, surveillance officers saw Ribeiro arrive at 60 Reservoir Street in the Mercedes. After another thirty minutes, officers saw Ribeiro drive away again; this time, they were able to follow him until his arrival at the Charlie Horse. Another $900 purchase of 100 ecstasy tablets in a baggie followed.

On December 19, 2001, Det. Gallarelli filed an application for a search warrant for Ribeiro's apartment at 60 Reservoir Street, with his affidavit attached. In addition to the details specific to Ribeiro (the three controlled buys by the confidential informant and the four by Det. Silva), Det. Gallarelli's affidavit also drew on his knowledge about drug crimes in general, distilled from his twelve years as a police officer. Since April 1999, Det. Gallarelli had been assigned to the DEA and had participated in a variety of drug investigations, from street-level dealers to large-scale traffickers and importers. As a way to tie Ribeiro's observed criminal activity to his residence, the affidavit stated:

Based upon my training and experience, I know that drug traffickers find it necessary to store large sums of cash received from the sale and distribution of controlled substances outside of the normal banking system. I also know that drug traffickers frequently maintain books, records, receipts, notes, ledgers and other documents relating to the transportation, ordering, sale and distribution of controlled substances and monetary instruments and other assets. Such documents are generally maintained where they have ready access to them, such as at their residences. They also commonly keep addresses and telephone numbers in books or papers that reflect names, addresses, telephone numbers and/or paging numbers for their criminal associates. Drug traffickers usually keep paraphernalia for packaging, weighing and distributing controlled substances that may include but are not limited to baggies and packaging materials.

Before filing the application, Det. Gallarelli consulted an Assistant U.S. Attorney, who advised him that, while the police had collected enough information to get a so-called "documentary search warrant" for Ribeiro's apartment, they did not necessarily have enough to get a warrant to search for drugs themselves. Consequently, the warrant's proposed scope was limited to six categories of materials: (1) evidence showing control over the premises, like delivered mail; (2) U.S. currency; (3) evidence of proceeds from drug sales, and records of drug trafficking; (4) baggies and other drug paraphernalia; (5) cell phones; and (6) ledgers, notes, and other records relating to the drug trade, like telephone address books and receipts. The warrant issued that same day.

The Search

Later on December 19, 2001, the police arrived outside 60 Reservoir Street to execute the search warrant. They did not enter immediately. About thirty minutes after they arrived, Ribeiro came out of the building and was arrested. The police then entered the building and knocked on his apartment's door, which was opened by his eighteen-year-old girlfriend, Erika MacFadden, who had been nursing their two-week-old baby in the bedroom. There was also a five-month-old toy poodle in the apartment.

Ribeiro owned a large tower-type speaker cabinet, which sat unplugged on the floor of his bedroom. Inside the cabinet were two speaker units, stacked one on top of the other, with the lower unit approximately six inches from the ground. Each unit was supposed to be covered by a metal grill, which required a screwdriver to remove. Once a grill had been unscrewed and taken off, however, the speaker units were attached to the cabinet by simple clips and...