U.S. v. Zayas-Diaz

• Decision Date: 02 February 1996
• Docket Number: D,ZAYAS-DIA,No. 95-1910,95-1910
• Citation: 95 F.3d 105
• Parties: UNITED STATES of America, Appellee, v. Juanefendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 105

95 F.3d 105

UNITED STATES of America, Appellee, v. Juan ZAYAS-DIAZ, Defendant, Appellant.

No. 95-1910.

United States Court of Appeals First Circuit.

Heard Feb. 2, 1996.

Decided Sept. 9, 1996.

Paul J. Garrity, Londonberry, NH, for appellant.

Terry L. Ollila, 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.

CYR, Circuit Judge.

Juan Zayas-Diaz ("Zayas") challenges two pivotal rulings underlying the district court's refusal to suppress evidence seized pursuant to a warrant allegedly based on information that failed to connect Zayas to the search premises within a reasonably recent time frame. The court first determined, on the merits, that the affidavit supporting the warrant application contained adequate reliable information to connect Zayas to the search premises in the past. Next, the court bypassed the merits of the staleness claim and held the exclusionary rule inapplicable on the ground that the search had been conducted in "objectively reasonable" reliance on the warrant. See United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). Finding no error, we now affirm the district court judgment.

I BACKGROUND

A. The Graffam Affidavit

On March 8, 1994, a warrant was obtained to search a single-family residence in Bedford New Hampshire, based on a nineteen-page affidavit by Special Agent Gerald Graffam of the United States Drug Enforcement Administration ("DEA"), purporting to establish probable cause to believe that Zayas then or recently resided at 16 Holbrook Road and used it as an operational base for cocaine trafficking. ¹ The warrant application sought authorization to search for various drug-related documents and currency evidencing the suspected cocaine trafficking activity.

1. The Cocaine Trafficking

The Graffam affidavit included information purporting to establish that Zayas was supplying cocaine for distribution at various establishments in nearby Manchester, New Hampshire, including the Oasis Social Club. Based on information provided by a "reliable" confidential informant ("first CI"), the affidavit related that Marcello Sosa had been arrested on January 26, 1994, for selling cocaine at the Oasis Social Club. ² An arresting officer advised that he had noticed an individual, known to him as "Juan Rosario" alias "Nelson Martell," at the Oasis Social Club during Sosa's arrest. The first CI confirmed that he too had seen Sosa and a person known to him as "Juan" meet at the club, not only at the time of Sosa's arrest but on prior occasions. Sosa himself admitted that a man named "Juan," who was present when Sosa was arrested, had supplied the six ounces of cocaine seized from Sosa's residence shortly after the arrest.

A subsequent documentation and record check disclosed a series of roughly compatible descriptions for "Nelson Martell" (height 5'6-9"; weight 130-160 pounds; hair black or brown; eyes brown; glasses; left-arm tattoo; social security number 001-64-1999; birth date either May 4, 1961 or August 16, 1954); home address 275 Lake Avenue, Manchester; license suspension for drunk driving in 1991; New Hampshire conviction and suspended sentence for heroin trafficking in 1992; and a December 1992 arrest and pending prosecution for cocaine trafficking in Connecticut, during which arrest Zayas attempted to discard cocaine over a highway embankment; and other aliases, including "Juan Gonzalez."

On February 24, 1994, twelve days before the search, the Manchester police interviewed a confidential informant ("second CI"). The second CI, who had "provided reliable information to law enforcement in the past," advised that he knew a person named "Juan," surname believed to be "Esquevar," who "currently controls" cocaine distribution at various Manchester business establishments, including the Oasis Social Club, and who delivered cocaine daily to his "workers," including Sosa. The second CI described "Juan" (Cuban, dark-skinned, height 5'10", weight 160 pounds, black hair, brown eyes, glasses), and told the authorities that he was "aware" that "Juan" had been arrested in Connecticut on a cocaine trafficking charge, and that "Juan" had attempted to discard two kilos of cocaine at the time of the arrest by throwing it over a highway embankment.

2. Zayas and 16 Holbrook Road

Although the documentation check revealed a listed home address for "Nelson Martell" (i.e., Zayas) at 275 Lake Avenue in Manchester, the Graffam affidavit attested to facts purporting to show that Zayas currently or recently resided at 16 Holbrook Road in Bedford, New Hampshire. Following his arrest, Sosa told police that "Juan," his supplier, "lived" in Bedford, New Hampshire. Moreover, on February 24, 1994, the second CI also had advised the authorities that Juan "lives" in Bedford and "deals" large amounts of cocaine. The second CI added that he had "been to Juan's Bedford residence on several occasions and seen large quantities of cocaine and cash present," and that "[S]panish males," in two or more automobiles bearing New York license plates, arrived "every Tuesday" at the Bedford residence.

On February 24, 1994, after his interview, the second CI led the authorities to the Bedford premises at which he had visited "Juan." Presumably to avoid detection, the authorities did not enter upon the premises. Instead, the second CI described specific features of the residential grounds, including (1) a long driveway lined with three birdhouses containing concealed video cameras; (2) a shack-like residence with peeling brown paint; (3) five dogs outside the house, and an unspecified number of dog houses; and (4) four or five abandoned/junk vehicles, including a motorcycle. The second CI described interior features of the residence itself, including (1) a video monitor connected to the "birdhouse" cameras; (2) furnishings, "in good condition" compared with the shabby exterior of the residence; and (3) in the basement, a restaurant-style refrigerator for storing cocaine. Subsequent aerial surveillance at 16 Holbrook Road revealed a long driveway, a brown single-family dwelling with detached garage and shed, and "at least three (3) doghouses and two (2) abandoned vehicles."

3. The "Residence" at 16 Holbrook Road and the Zayas-Koehler

"Relationship "

The Graffam affidavit purported to establish 16 Holbrook Road as Zayas' current or recent residence or drug operation base, by demonstrating that codefendant Brenda Koehler currently or recently lived there, and that she and Zayas were currently involved in a close relationship. The second CI advised the authorities that "Juan" lived at 16 Holbrook Road "with a girlfriend," described as a "white female," about thirty years old, with brown hair, whose son also resided at 16 Holbrook Road and "attends" Trinity High School, where he "plays football." An October 1992 police incident report confirmed that a "Kevin Koehler" had sustained an injury while playing football at Trinity High School, identified his mother as Brenda Koehler, "16 Holbrook Road," telephone number 624-8730. A postal delivery check indicated that Kevin Koehler had received mail at 16 Holbrook Road in 1992. A June 1993 traffic accident report reflected 16 Holbrook Road as Brenda Koehler's home address. A third confidential informant ("third CI") confirmed that "Juan," who supplied cocaine to workers at the Oasis Social Club, "had a white wife ... in her thirties."

On February 10, 1994, James McDowell advised the authorities that he had leased a garage at 425 Second Street, Manchester, to Brenda Koehler, who was accompanied by a "Nelson Martell" at the time she signed the lease. The Graffam affidavit failed to disclose the date the lease was signed. McDowell told the authorities that he "believed Brenda Koehler was Martell's wife," and advised that Koehler gave "16 Holbrook Road" as her home address, and 624-8730 as her telephone number. Thereafter, in late February 1994, a motor vehicle registration check disclosed a roughly compatible physical description for Brenda Koehler ("white female," thirty-four years old, height 5' 2", brown hair, brown eyes), and listed her address as 481 Beacon Street, Manchester.

4. Activity at 16 Holbrook Road

In late February 1994, the authorities learned that mail was not "presently" being received at 16 Holbrook Road. Moreover, by this time there was no longer a telephone listing for 16 Holbrook Road. The electrical utility listing nonetheless continued to reflect that Brenda Koehler was the person responsible for payment. Moreover, though the premises were heated by oil, the electrical utility reported the following billings: October-November 1993 ($565 for 4595 kw hours), November-December 1993 ($462 for 3679 kw hours), and December 1993-January 1994 ($600.00 for 5024 kw hours).

5. Graffam's Law Enforcement Experience

Finally, based on Graffam's twenty-two years as a DEA agent, the supporting affidavit stated that active drug traffickers commonly: (1) retain for ready reference, in their residences for extended periods, records relating to their ongoing trafficking activities; (2) assume fictitious names or use nominees to avoid detection; (3) establish surveillance at their operational bases to detect law enforcement activity; and (4) attempt to avoid disclosure or discovery of their actual residences and operational bases by suspending mail and telephone service.

B. The District Court Proceedings

The search conducted pursuant to the challenged warrant disclosed ammunition, cocaine residue, cocaine distributing paraphernalia, substantial cash, and numerous documents detailing Zayas' ongoing cocaine trafficking activities. In due course, Zayas and ten associates, including Brenda Koehler, were charged with conspiracy to possess cocaine with intent to distribute. ³ See 21 U.S.C. §§ 841(a)(1), 846. Zayas and Koehler jointly sought...