U.S. v. Ciampa

• Decision Date: 05 June 1986
• Docket Number: No. 85-1729,85-1729
• Citation: 793 F.2d 19
• Parties: 20 Fed. R. Evid. Serv. 1314 UNITED STATES of America, Appellee, v. Vincent CIAMPA, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 19

793 F.2d 19

20 Fed. R. Evid. Serv. 1314

UNITED STATES of America, Appellee, v. Vincent CIAMPA, Defendant, Appellant.

No. 85-1729.

United States Court of Appeals, First Circuit.

Argued April 8, 1986.

Decided June 5, 1986.

Joan Lieberman with whom John Wall and Cullen & Wall, Boston, Mass., were on brief for defendant, appellant.

S. Theodore Merritt, Asst. U.S. Atty., with whom William F. Weld, U.S. Atty., Boston, Mass., was on brief for appellee.

Before BOWNES, BREYER and TORRUELLA, Circuit Judges.

BOWNES, Circuit Judge.

Defendant-appellant Vincent Ciampa appeals his jury trial conviction of possession of cocaine with intent to distribute in violation of 21 U.S.C. Sec. 841(a)(1). The issues before us fall into two categories: denial of defendant's motion to suppress and the conduct of the trial. We find no substance to any of defendant's contentions and affirm.

I. THE SUPPRESSION ISSUE

On April 3, 1985, defendant's apartment was searched under the authority of a warrant issued by a United States Magistrate on March 29, 1985. The warrant deadline was April 7, 1985. The search was carried out by two Special Agents of the Drug Enforcement Administration, Robert Lumsden, and Thomas Doud. The evidence seized was a mason jar containing two bags of cocaine packed in rice, a triple beam balance scale, two bottles of a cutting agent used to increase the volume of cocaine, a sifter, packaging papers, other drug paraphernalia, $850 in cash, and a money market statement showing a balance of $20,640.07 as of January 1, 1985. Also seized but not introduced into evidence were a number of blue and orange pills.

Defendant, a reserve officer for the Saugus Police Department, returned to his apartment during the search. After being advised of his constitutional rights, defendant made some statements which the agents recounted during the trial. He said that about eight months prior he came across a guy and a girl in an automobile and saw a box with the words "Ohaus scale" on it. After questioning the couple, he seized the box, put it in his cruiser and took it home. He opened the box a couple of days later and found the mason jar and drug paraphernalia in it. Defendant said that he subsequently took the stuff out of the box, played with it and placed it in different locations in his bedroom. Defendant told the agents that he was "hanging onto" the material because "he was conducting his own investigation into cocaine trafficking" and "was trying to get Mr. Big." Agent Lumsden, with Agent Doud present, went over the items seized with defendant and asked him if he was going to stick to his story or would, for consideration, assist the DEA in making a case against the supplier. Defendant replied by saying, "No I couldn't do it. All I have is my word and a big set of balls."

Defendant contends that the warrant affidavit did not provide the magistrate substantial grounds for finding probable cause for three reasons: (1) much of the affidavit information was hopelessly stale and unreliable; (2) the information obtained from an informant was unreliable and should have been excluded; and (3) the affidavit contained recklessly false statements which should have been excluded. Defendant also faults the district court for refusing to hold a hearing under the rule of Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978).

We review the affidavit under the "totality-of-the-circumstances analysis" established in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). Under this analysis, "an informant's 'veracity,' 'reliability,' and 'basis of knowledge' are all highly relevant in determining the value" of an informant's report. These factors should not be viewed as "entirely separate and independent requirements." They are to "be understood simply as closely intertwined issues that may usefully illuminate the commonsense practical question whether there is 'probable cause' to believe that contraband or evidence is located in a particular case." Id. at 230, 103 S.Ct. at 2328 (footnote omitted). The standard of probable cause is the probability, not a prima facie showing, of criminal activity. Id. at 235, 103 S.Ct. at 2330-2331. Courts should not subject the affidavit to de novo review and should give "great deference" to the magistrate's determination of probable cause. Id. at 236, 103 S.Ct. at 2331. This circuit has had occasion to apply Gates in a number of cases: United States v. Moscatiello, 771 F.2d 589, 596 (1st Cir.1985); United States v. White, 766 F.2d 22, 25 (1st Cir.1985); United States v. Butler, 763 F.2d 11, 14 (1st Cir.1985); United States v. Baldacchino, 762 F.2d 170, 175 (1st Cir.1985); United States v. Badessa, 752 F.2d 771, 773 (1st Cir.1985); United States v. Campbell, 732 F.2d 1017, 1019 (1st Cir.1984).

We turn to the affidavit which was prepared by Agent Lumsden. Paragraphs 1 and 2 state that Lumsden has been a Special DEA Agent for fifteen years, that he received extensive training as to the practices, customs, habits, and routine of cocaine dealers, and that he is familiar with the devices and materials used by cocaine dealers.

Paragraphs 3-14 are the core of the affidavit. In them, Lumsden details information given him by a confidential informant--CI-1. In paragraph 3, Lumsden states that the informant has consistently given him truthful and reliable information, that information provided by the informant led to a prior seizure of cocaine, and that the informant's information has "without exception" been verified by independent sources, including law enforcement officials. The affidavit, dated March 29, 1985, states that "during the last week" the informant gave Lumsden the following information: Ciampa was physically described. His telephone number and residence address were given. The informant personally observed that Ciampa, known to be a Saugus police officer, only occasionally wears a police uniform, that it appears that he is not working, that he always seems to have a large amount of money, that he drives a late model Corvette and wears a significant amount of gold jewelry. Paragraphs 4-6 of affidavit. Paragraphs 7-13 contain information given to the informant by one of Ciampa's former girl friends, Lisa Borum, who was not aware of Lumsden's relationship with the informant. Borum told the informer the following: Ciampa has been selling cocaine to her knowledge for the past nine months. Borum was a frequent visitor at Ciampa's apartment during this period and regularly saw cocaine and scales there. Ciampa frequently goes to Florida to replenish his supply of cocaine, which is all stored in his home. Ciampa himself uses cocaine regularly. One of Ciampa's customers is another reserve officer of the Saugus Police Department, Gary Mansfield. Borum was last in Ciampa's apartment about three weeks ago and at that time saw cocaine there. Ciampa's last Florida trip to obtain cocaine was either the end of the week of March 11, 1985, or the early part of the week of March 18. Borum had an argument with Ciampa on March 22, 1985, and they are no longer friendly.

Paragraph 14 of the affidavit recites that the informant is personally acquainted with Gary Mansfield and knows from "its" dealings with Mansfield that he regularly purchases cocaine from Ciampa.

Paragraphs 15-19 of the affidavit relate information that the affiant Lumsden received from Chief Inspector Howard Long of the Saugus Police Department. Long received information from a reliable informant about a year ago who told him that Ciampa, while working details in clubs in Saugus as a reserve police officer, stopped and searched club patrons, searched them and seized cocaine from them. Ciampa did not arrest the people from whom he seized the cocaine, and sold the cocaine which he had thus obtained. Long told Lumsden that his informant had given consistently reliable information in the past which had led to arrests and seizures of evidence, including narcotics. Based on his personal information and knowledge, Long told Lumsden: that Ciampa is a reserve police officer for the Town of Saugus but rarely works as such; that in the past Ciampa worked paid details at clubs, but recently has refused most offers to work for extra pay; Mansfield is also a Saugus reserve police officer; Ciampa also carries large quantities of cash, drives late model Corvettes, wears a significant amount of gold jewelry; and Ciampa frequently travels to Florida on trips of short duration.

Paragraphs 18-22 of the affidavit establish the phone number for Ciampa's apartment, the street number of his apartment, and his date of birth, January 3, 1954.

Paragraphs 23-25 of the affidavit contain information related to the affiant by Deputy Superintendent Edward Walsh of the Boston Police Department. Walsh told Lumsden that about eleven months ago a reliable informant who has consistently given truthful information to the Boston police told him that Ciampa was obtaining large quantities of cocaine from Arman Barouk, a Boston jeweler. On two occasions thereafter, Walsh himself saw a car registered to Ciampa in the vicinity of Barouk's jewelry store. According to Walsh's informant, Ciampa met with Barouk on both of these occasions to obtain cocaine. Walsh arrested Barouk about three months prior to his conversation with Lumsden and seized a quantity of cocaine.

Defendant's argument that "much of the information" contained in the affidavit was "hopelessly stale and unreliable" focuses on the information given to the affiant by Chief Inspector Long and Deputy Superintendent Walsh. This ignores the detailed facts given to the affiant's informant by defendant's former girl friend, Lisa Borum. We agree with the district court that, even if the Long and Walsh information were deleted from the affidavit, it still established a basis for a finding of probable cause. Following the totality-of-the-circumstances test, we find that the Long and Walsh...