U.S. v. Badessa

• Citation: 752 F.2d 771
• Decision Date: 23 January 1985
• Docket Number: No. 83-1928,83-1928
• Parties: UNITED STATES of America, Appellee, v. Michael BADESSA, Jr., Defendant, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

Page 771

752 F.2d 771

UNITED STATES of America, Appellee, v. Michael BADESSA, Jr., Defendant, Appellant.

No. 83-1928.

United States Court of Appeals First Circuit.

Argued June 1, 1984.

Decided Jan. 23, 1985.

Michael F. Natola, Everett, Mass., with whom Alfred Paul Farese, Everett, Mass., was on brief, for defendant, appellant.

James E. O'Neil, Asst. U.S. Atty., Boston, Mass., with whom Lincoln C. Almond, U.S. Atty., Providence, R.I., was on brief, for appellee.

Before BOWNES and BREYER, Circuit Judges, and DOYLE, ^* Senior District Judge.

JAMES E. DOYLE, Senior District Judge.

Defendant was indicted on three counts: the first and second, for possession of cocaine and marijuana, respectively, with intent to distribute, and the third for receiving a firearm after having been convicted of a felony. On the third count, a defense motion for a directed verdict was granted; the jury found defendant not guilty on the second count and guilty on the first (cocaine). This appeal is taken from the conviction and sentence (3 years' imprisonment and a $5000 fine) on count one. Defendant-appellant contends the district court erred in denying a suppression motion; in denying a motion for mistrial on the ground of prosecutorial misconduct; and in implicitly denying a subsequent motion for mistrial on the ground of prejudice in the trial on count one, resulting from revelation to the jury, in connection with eventually dismissed count three, that defendant had once been convicted of a crime.

I.

Promptly following arraignment, defendant moved to suppress all items seized in the course of a warranted search on February 6, 1983. The principal ground was that there was no probable cause for issuance of the warrant. ¹ At a hearing on the motion to suppress, the evidence was that the search warrant had been issued by a United States Magistrate on the basis of a handwritten affidavit executed February 6, 1983. The entire content of the affidavit follows:

AFFIDAVIT IN SUPPORT OF APPLICATION FOR SEARCH WARRANT

AUTHORIZING ENTRY INTO:

The basement, first, and second floor of a two-family three-story wooden frame building, being yellow in color with white trim, located at 272 Knight Street, Providence, R.I. I, Vincent A. Furtado, a Special Agent with the Drug Enforcement Administration of the U.S. Dept. of Justice, do hereby depose and state:

1. Since July, 1982 I have been assigned to the District of Rhode Island to direct the operations of the Rhode Island Drug Task Force, which is a Federal, State, and Local Law Enforcement effort designed to interdict controlled substances being smuggled into the District of Rhode Island.

2. In that capacity, I have become acquainted with certain individuals who have been the subjects of local law enforcement investigation efforts.

3. Amongst those individuals who have been the subjects of local law enforcement efforts is one Michael Badessa, Jr. who has also been the subject of the investigative efforts of the local office of the D.E.A. located in Providence, RI.

4. I have determined as a result of my inquiry of the New England Telephone Company that Michael Badessa, Jr. is a subscriber to a telephone located at 272 Knight Street, Providence, RI.

5. Fellow agents of the R.I. Drug Task Force have advised me that Michael Badessa, Jr. has an automobile registered to him by the State of Rhode Island bearing the number UT-6, said registration number is assigned to Michael Badessa, Jr. at the address of 272 Knight Street, Providence, RI.

6. On February 4, 1983 I received a telephone call from an unidentified individual who advised me that Michael Badessa, Jr. would be travelling from Florida to Providence, RI with a large shipment of cocaine.

7. As a result of the aforementioned information I, along with fellow Drug Task Force Agents, initiated surveillance of 272 Knight St., Providence, RI on Feb. 5, 1983.

8. On February 5, 1983 I observed Michael Badessa, Jr.'s automobile bearing a R.I. registration UT-6 parked in the driveway of 272 Knight Street, Providence, RI where he occupies the one lower level unit of that two-family residence.

9. Michael Badessa, Jr. is also known by me to be an associate of Joseph Tibari who was most recently arrested by the Providence Police Dept. on Jan. 30, 1983 for possession of cocaine with intent to distribute that substance.

10. The aforementioned arrest of Joseph Tibari was executed by the Providence Police at the social club located at Decatur Square, Providence, RI which is at the intersection of Knight and Carpenter St. approximately one block from the residence of Michael Badessa, Jr. located at 272 Knight Street, Providence, RI.

11. On February 6, 1983 I was advised by the Providence Police Dept. that a confidential informant, whose information has proved reliable on prior occasions, that the confidential informant entered these subject premises at 272 Knight St., Providence, RI on February 6, 1983 and negotiated with Michael Badessa, Jr. for the purchase of a quantity of cocaine which Michael Badessa, Jr. had available for sale at 272 Knight St.

12. Based upon the foregoing, I have probable cause to believe that evidence of controlled substance violations as defined within Title 18 U.S.C. 841(a)(1) are located within 272 Knight St. at the residence of Michael Badessa, Jr.

At the conclusion of the evidentiary hearing, the district court denied suppression, holding from the bench that the affidavit provided probable cause to believe there was a controlled substance within the basement, first and second floors of the residence at 272 Knight Street. The court's statement consisted principally of a summary of the content of the affidavit. The court emphasized Furtado's experience. The court observed that the Furtado affidavit reflected a piecing together of various bits of information by an experienced law enforcement officer. The court emphasized paragraph 11, commenting that the magistrate "could realistically rely on the authenticity of information furnished to [Furtado] by the Providence Police Department ... and could expect that the Providence Police Department was going to provide reliable information to [Furtado]."

We are mindful that the magistrate was bound to refrain from "excessively technical dissection of informant's tips," Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 2330, 76 L.Ed.2d 527 (1983), and from "judging bits and pieces of information in isolation." Massachusetts v. Upton, --- U.S. ----, 104 S.Ct. 2085, 2088, 80 L.Ed.2d 721 (1984). He was bound to consider the Furtado affidavit "in its entirety, giving significance to each relevant piece of information and balancing the relative weights of all the various indicia of reliability (and unreliability) attending the tip." Upton, 104 S.Ct. at 2088. We are mindful as well that in the course of reviewing the magistrate's decision to issue the search warrant, the district court was bound to adopt, and we must adopt, this mode of analysis of the affidavit. The district court and we are under a further inhibition, "not to conduct a de novo determination of probable cause, but only to determine whether there is substantial evidence in the record supporting the magistrate's decision to issue the warrant." Massachusetts v. Upton, 104 S.Ct. at 2086; Illinois v. Gates, 103 S.Ct. at 2331.

Even in strict fidelity to this severe restraint upon our appellate function, we find uncomfortably close the question whether there is substantial evidence in the record supporting the magistrate's finding of probable cause. The Furtado affidavit's sufficiency hangs on the interplay of four factors: (1) the February 4 tip to Furtado; (2) the February 6 tip to the Providence Police Department; (3) defendant's occupancy of 272 Knight Street; and (4) defendant's association with Joseph Tibari. The February 6 tip supports the February 4 tip: as of February 6, defendant was in Providence negotiating a sale of cocaine, as predicted by the February 4 informant. The February 6 tip is supported by: (a) the February 4 tip; (b) the vouching by the Providence police department that information given on prior occasions by the February 6 informant had proved reliable; ² and (c) independent evidence that defendant did occupy the building in which the informant says defendant was present on February 6. Both tips enjoy a smidgen of support from Furtado's knowledge that defendant is "an associate of Joseph Tibari" and that Tibari had been arrested--not convicted--seven days earlier for possession of cocaine with intent to distribute it.

It cannot be ascertained from the record, and it may have been beyond the capacity of Furtado and the Providence police to determine, whether the February 4 informant and the February 6 informant are the same person. On the one hand, cause is more probable if a bit of information is furnished by one person and a compatible bit by another. On the other hand, unlike the February 4 informant, the February 6 informant is vouched for by Providence police; if it was he or she who had also provided information on February 4, the February 4 information may be thought more reliable than it might be otherwise.

The magistrate could not properly have attached any significance to Furtado's allegations that: defendant had been the subject of investigative efforts by local authorities and D.E.A.; Tibari had been arrested on a previous occasion or occasions on an unspecified charge or charges; and the recent arrest of Tibari had occurred at a social club located approximately one block from 272 Knight Street.

The only significance we can perceive in the allegations concerning defendant's subscription to a telephone at 272 Knight Street and the presence of his automobile in the driveway is that he resided there and it was he, not someone else, with whom the February 6 informant negotiated in that building. The allegation concerning initiation of surveillance of 272 Knight Street on February...