U.S. v. Schaefer

Decision Date06 June 1996
Docket NumberNo. 95-2342,95-2342
Citation87 F.3d 562
PartiesUNITED STATES of America, Appellee, v. Harold SCHAEFER, Defendant, Appellant. . Heard
CourtU.S. Court of Appeals — First Circuit

David H. Bownes, Laconia, NH, for appellant.

Jean B. Weld, Assistant United States Attorney, with whom Paul M. Gagnon, United States Attorney, was on brief, Concord, NH, for appellee.

Before SELYA, CYR and BOUDIN, Circuit Judges.

SELYA, Circuit Judge.

Defendant-appellant Harold 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

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 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, 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

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 the court imposed a sixty-three month incarcerative sentence. This appeal ensued.

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.

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 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, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (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, 103 S.Ct. at 2331 (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 See Zapata, 18 F.3d at 975.

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, 103 S.Ct. at 2331-32. 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, 103 S.Ct. at 2328.

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...

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