U.S. v. Cochrane

Decision Date08 November 1989
Citation896 F.2d 635
PartiesUNITED STATES, Appellant, v. Rickie A. COCHRANE, Defendant, Appellee. UNITED STATES, Appellant, v. Joni SEPLOCHA, Defendant, Appellee. . Heard
CourtU.S. Court of Appeals — First Circuit

Michael E. Davitt, Sp. Atty., U.S. Dept. of Justice, Washington, D.C., with whom Lincoln C. Almond, U.S. Atty., Providence, R.I., and Edward J. Gale, Asst. U.S. Atty., were on brief, for appellant.

John F. Cicilline, for defendant, appellee Rickie A. Cochrane.

Lise J. Gescheidt with whom C. Leonard O'Brien, Providence, R.I., was on brief, for defendant, appellee Joni Seplocha.

Before BOWNES, Circuit Judge, VAN GRAAFEILAND, * Senior Circuit Judge, and BREYER, Circuit Judge.

VAN GRAAFEILAND, Circuit Judge.

The United States appeals from an order of the United States District Court for the District of Rhode Island, 715 F.Supp. 23, suppressing evidence against the defendants, Rickie A. Cochrane and Joni Seplocha. For reasons that follow, we reverse.

On May 18, 1988 a state district court judge issued a warrant authorizing the search of the defendants' residence on Branch Avenue in Providence, Rhode Island for controlled substances and related paraphernalia. In the course of the search, the Rhode Island State Police found and seized three firearms. Because Cochrane and Seplocha had prior felony convictions, a federal grand jury indicted them for unlawful possession of firearms in violation of 18 U.S.C. Sec. 922(g)(1). Both defendants moved to suppress evidence of the firearms, and Seplocha moved in addition to suppress a statement regarding the guns that she made at the time of the search. After an evidentiary hearing, a United States magistrate recommended to the district court that the motions to suppress be denied. The defendants objected to the magistrate's findings and recommendations, and, after further hearings, the district court granted the motions to suppress. Its stated grounds were that the affidavit in support of the search warrant contained a false statement that had been included with reckless disregard for the truth and that, after excising the false statement, the affidavit was insufficient to establish probable cause.

The affidavit was verified on May 18, 1988 by Corporal James Mullen of the Rhode Island State Police. Mullen stated therein it was his "belief" that the defendants possessed and sold illegal substances at the Branch Avenue premises. He based this belief on information supplied by a confidential informant, coupled with his own investigation which disclosed that defendants "are in the criminal business of distributing controlled substances." In the penultimate paragraphs of his affidavit, Corporal Mullen said:

During the week of May 10, 1988, your affiant was again in contact with the confidential informant and he advised that he had purchased marijuana and heroin from Ricky Cochrane and Joni Seplocha at their residence, as well as meeting them by a pre-arrangement, after discussing the sale of illegal drugs over telephone number 401-861-6708.

Your affiant is also aware of the criminal background of both Cochrane and Seplocha and attached to this affidavit are said criminal records.

Based on the previously-stated facts, it is your affiant's belief that Ricky Cochrane and Joni Seplocha are selling illegal substances and have illegal substances in their possession and control, along with other drug-related paraphernalia, at the previously-mentioned address.

A common-sense approach to this affidavit, see United States v. Ventresca, 380 U.S. 102, 109, 85 S.Ct. 741, 746, 13 L.Ed.2d 684 (1965), leads almost ineluctably to the conclusion that Mullen did not purport to rely on his own purchases of drugs at the Branch Avenue premises when he expressed his "belief" that such sales were taking place and specifically referred to purchases made by a confidential informant. If Mullen himself had purchased the drugs, which, admittedly, he had not done, he would "know", not "believe", they were being sold, and repeated references to a confidential informant would be unnecessary. Moreover, the affidavit discloses at another point that Officer Mullen was known by both Cochrane and Seplocha through prior contacts he had had with them, and, therefore, it is most unlikely that he, a police officer, would be attempting to purchase drugs from them.

The district court concluded, however, that Mullen falsely and recklessly stated at another point in his affidavit that he himself had purchased drugs at the Branch Avenue house. In pertinent part, that portion of the affidavit reads as follows:

This [confidential] informant is advising your Affiant that a narcotics nuisance is presently being conducted at the above-mentioned location which is being operated and controlled by Ricky A. Cochrane and Joni Seplocha. This informant has advised that both Cochrane and Seplocha are supplying heroin, cocaine, and marijuana to persons unknown to your Affiant's informant.

Your affiant's knowledge in this matter is predicated upon previous purchases of these illegal substances which he has made from both Cochrane and Seplocha at the above-mentioned address. This informant has provided your affiant with telephone number 401-861-6708, and is the telephone number at which to contact Cochrane and Seplocha, as both Cochrane and Seplocha have given the informant this telephone number at which to contact him.

If we were to lift the first sentence of the second above-quoted paragraph from its informative surroundings and examine it in isolation, it may be that we would reach the same conclusion as did the district court, namely, that the word "he" referred to Mullen rather than the informant. However, the legal sufficiency of a search warrant affidavit should not be determined by a process of isolated dissection. The affidavit should be read "in its entirety, giving significance to each relevant piece of information" and should not be judged in "bits and pieces of information in isolation." Massachusetts v. Upton, 466 U.S. 727, 732, 104 S.Ct. 2085, 2088, 80 L.Ed.2d 721 (1984) (per curiam); see United States v. Badessa, 752 F.2d 771, 773-74 (1st Cir.1985). Moreover, the affidavit, viewed in its entirety, must be given a common-sense and realistic, rather than a hypertechnical interpretation. Massachusetts v. Upton, supra, 466 U.S. at 732-34, 104 S.Ct. at 2087-89; Illinois v. Gates, 462 U.S. 213, 236, 103 S.Ct. 2317, 2331, 76 L.Ed.2d 527 (1983); United States v. Calle-Cardenas, 837 F.2d 30, 31 (1st Cir.), cert. denied, 485 U.S. 1024, 108 S.Ct. 1582, 99 L.Ed.2d 897 (1988); Haefeli v. Chernoff, 526 F.2d 1314, 1319 (1st Cir.1975). In the process, great deference should be given to the judicial officer who concluded in issuing the warrant that a showing of probable cause was made. Illinois v. Gates, supra, 462 U.S. at 236, 103 S.Ct. at 2331; United States v. Drake, 673 F.2d 15, 18-19 (1st Cir.1982).

The magistrate to whom the suppression motion was referred by the district court "found no confusion" in the challenged language and "understood [it] to mean that Corporal Mullen's informant purchased the illegal substances from Defendants at the Branch Avenue address." The magistrate stated that he himself was not misled by the affidavit and that, in his opinion, no other judicial officer was misled.

Guided, as we must be, by the legal principles above set forth, we conclude that the magistrate was right and that the use of the word "he" in the challenged sentence was at most a grammatical mishap, neither reckless nor intentional in nature. We reach this conclusion with full awareness that a district court's basic or historical finding of fact may be set aside only if clearly erroneous, United States v. Moore, 790 F.2d 13, 15 (1st Cir.1986), and we recognize that this rule applies even where, as here, the district court's finding is based almost entirely on documentary evidence, In re Tully, 818 F.2d 106, 108-09 (1st Cir.1987). This does not mean, however, that such a factual finding cannot be vacated if, after reviewing the record, we are firmly convinced that the district court made a mistake. See, e.g., United States v. Jobin, 535 F.2d 154, 157 (1st Cir.1976).

We are firmly convinced, after a common-sense reading of the affidavit as a whole, that, when Mullen stated "he" had purchased drugs at 875 Branch Avenue, he meant that the informant had made the purchase. This sentence comes in the middle of six paragraphs that refer to the activities and knowledge of the confidential informant. The immediately preceding sentence reads, "This informant has advised that both Cochrane and Seplocha are supplying heroin, cocaine, and marijuana to persons unknown to your Affiant's informant." It is simply unreasonable to conclude that, in the middle of talking about the informant's knowledge, Mullen suddenly would switch to a discussion of purchases by himself and then immediately switch back to the activities of the informant. When the sentence is read in context, the only logical conclusion one can reach is that the word "he" refers to the informant, not to Mullen. See United States v. Marcello, 508 F.Supp. 586, 605 (E.D.La.1981), aff'd sub nom. United States v. Roemer, 703 F.2d 805 (5th Cir.), cert. denied, 464 U.S. 935, 104 S.Ct. 341, 78 L.Ed.2d 309 (1983).

The Supreme Court's oft-quoted opinion in United States v. Ventresca, supra, 380 U.S. 102, 85 S.Ct. 741, emphasized that affidavits for search warrants are "normally drafted by nonlawyers in the midst and haste of a criminal investigation." Id. at 108, 85 S.Ct. at 746. See also Illinois v. Gates, supra, 462 U.S. at 235, 103 S.Ct. at 2331; United States v. Abrams, 615 F.2d 541, 550 (1st Cir.1980) (Campbell, J., concurring). In the unstructured progress of such an investigation, grammatical lapses similar to the one in the instant case do occur on occasion. See, e.g., United States v. Rumney, 867 F.2d 714, 720 n. 9 (1st Cir.), ...

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