Of the Northern District of California, sitting by designation. *

United States Court of Appeals

For the First Circuit

No. 06-2586

UNITED STATES OF AMERICA,

Appellee,

v.

JUSTIN WOODBURY,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT MAINE

[Hon. D. Brock Hornby, U.S. District Judge]

Before

Boudin, Chief Judge,

Torruella, Circuit Judge,

and Schwarzer, Senior District Judge. *

Michael B. Whipple, with whom Thomas F. Hallett Law Offices,

P.A. was on brief, for appellant.

Margaret D. McGaughey, Appellate Chief, with whom Paula D.

Silsby, United States Attorney, was on brief, for appellee.

December 26, 2007
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TORRUELLA, Circuit Judge. On September 5, 2005, federal

authorities obtained a search warrant for the home of Justin

Woodbury located at 7 Leisure Lane, Windham, Maine, "believed to

be" the bottom-floor left apartment. The warrant named Woodbury as

the occupant and authorized a nighttime no-knock entry. Federal

and local authorities, directed to his second-floor apartment by

the occupant of the bottom-floor apartment, executed the warrant

and seized a .40 caliber pistol and drug paraphernalia. Woodbury

entered a plea of not guilty to a federal indictment for a single

count of possession of a firearm by a prohibited person and filed

a motion to suppress, alleging that for purposes of the Fourth

Amendment, the warrant (1) lacked probable cause and (2) was

insufficiently particular. Woodbury's suppression motion was

denied, and he now appeals. After careful consideration, we

affirm.

I. Background

On May 5, 2005, Sgt. R. Michael Denbow, a state police

officer, told federal agent Earnest MacVane that an informant had

reported that he planned to deliver cocaine to Woodbury at an

apartment on Lamb Street in Windham. Two days later, the informant

stated that Woodbury had claimed to have purchased a .40 or .44

caliber pistol and even bragged that he was a convicted felon. The

informant had previously provided the police with truthful

information.
 The reference to Lamb Street came from information the driver of 1

the speeding car gave Hunt when he stopped the car as it was

entering Route 35 from Lamb Street. Leisure Lane is the name of a

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On September 9, 2005, Windham police office Robert Hunt

stopped a speeding car. The driver was noticeably anxious and said

that he had just come from Woodbury's apartment. He informed the

police that Woodbury dealt in cocaine and possessed a .40 caliber

handgun which he did not carry outside of his apartment. Based

both on this information and that provided by the prior police

informant in May, MacVane believed there was probable cause that

Woodbury was trafficking at 7 Leisure Lane.

On September 9, 2005, a Maine state court judge granted

MacVane's request for a search warrant. The person, place, or

location to be searched read:

#7 Leisure Lane Windham, Maine believed to be

the bottom floor left apartment. Said

structure is a white multi-unit dwelling with

a covered front porch, and a grey shingled

roof.

The warrant unmistakably identified the appellant in the warrant as

"Justin WOODBURY/ DOB: 05-15-1981, White male 5'9" / 175 pound,

with brown hair and blue eyes," and authorized a nighttime no-knock

entry.

The warrant was based on a September 9 application and

affidavit submitted by MacVane. The affidavit named Woodbury as

the occupant of 7 Leisure Lane, but also described Woodbury's

apartment as being on Lamb Street. Attached to the affidavit was 1
driveway off of Lamb Street. It is clear from the application and

the affidavit that the application was for a unit on Leisure Lane.

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a black and white photograph of 7 Leisure Lane. The affidavit

provided a rough physical description of Woodbury, but stipulated

that it did not contain all of the information that MacVane

possessed in relation to Woodbury's alleged cocaine trafficking.

That same evening, federal and local authorities

attempted to execute the warrant at the location specified therein,

which directed them to the bottom-floor left apartment at 7 Leisure

Lane. Woodbury did not reside there. The agents were redirected

by the unknown occupant of the bottom-floor left apartment to the

second-floor left apartment, where the occupant believed Woodbury

resided. After knocking and waiting approximately twenty to thirty

seconds, the officers heard a commotion and movement inside of the

apartment. The agents forced open the door and saw Woodbury run

from the kitchen to the bedroom where they apprehended him.

Pursuant to the warrant, the officers searched the apartment and

found a .40 caliber pistol in a shoe box in the bedroom closet.

The shoe box also contained a copy of a bail slip issued to

Woodbury from a prior arrest which specified that one condition of

his release was a prohibition on possessing firearms. Elsewhere in

Woodbury's apartment, the police found drug paraphernalia laced

with cocaine residue. MacVane read Woodbury his Miranda rights,

which Woodbury chose to waive. Woodbury admitted to being the sole
 On appeal, Woodbury does not directly challenge the informants' 2

reliability.

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occupant of the apartment and to knowing that a gun was in his

closet. He denied owning the gun but refused to disclose how he

had acquired it. Woodbury was then arrested for possession of a

firearm by a felon.

On March 31, 2006, Woodbury moved to suppress the

evidence resulting from the search on three separate grounds: (1)

the warrant did not authorize entry into the upstairs apartment

that was actually searched; (2) regardless, there was no probable

cause to search the Leisure Lane premises because the informants

only connected Woodbury to Lamb Street; and (3) there was no

probable cause because the informants' information was

uncorroborated and unreliable.2

On May 24, 2006, the Magistrate Judge ("MJ") recommended

that the district court deny Woodbury's motion to suppress.

Addressing each argument in turn, the MJ found that (1) considered

in a common sense manner, the warrant made clear that the apartment

occupied by Woodbury was the target of the search; (2)"the

references in the affidavit to an apartment on Lamb Street were

sufficiently vague that it was reasonable to conclude that the Lamb

Street apartment was the same as #7 Leisure Lane"; and (3) a

sufficient number of factors were present to permit MacVane's

conclusion that the informants' information was reliable. Finally,
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the MJ concluded that even if the warrant was invalid, the good

faith exception to the exclusionary rule would apply under United

States v. Leon, 468 U.S. 897 (1984).

Woodbury then modified his suppression motion, alleging

that the executing officers knowingly acted outside the scope of

the warrant. In response, the MJ stated that when "most sensibly

read," the warrant was "not so facially deficient that executing

officers could not reasonably have presumed it to be valid."

Accordingly, the MJ recommended that the motion be denied. On

July 27, 2006, the district court entered an order adopting the

MJ's report and recommendation. The district court's order

concluded that the Leon good faith exception applied to this case

and found that the warrant was legally executed.

II. Discussion

On appeal, Woodbury challenges the validity of the

warrant and the district court's denial of his motion to suppress,

contending that the search violated the Fourth Amendment. His

argument is without merit. The warrant meets the probable cause

requirement, and its execution is valid under the Leon good faith

exception.

A. Standard of Review

"In this Circuit, appellate review of a suppression

motion is bifurcated." United States v. Charles, 213 F.3d 10, 18

(1st Cir. 2000). We review de novo the legal conclusions of the
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district court, "including the determination that a given set of

facts constituted probable cause." Id. at 18 (quoting United

States v. Khounsavanh, 113 F.3d 279, 282 (1st Cir. 1997)). We also

review the applicability of the Leon good faith exception de novo.

See United States v. Brunette, 256 F.3d 14, 17 (1st Cir. 2001). By

contrast, we review the district court's findings of fact for clear

error. Charles, 213 F.3d at 18. "A clear error exists only if,

after considering all of the evidence, we are left with a definite

and firm conviction that a mistake has been made." Id. (quoting

United States v. McCarthy, 77 F.3d 522, 529 (1st Cir. 1996)).

"[W]e will uphold a district court's decision to deny a suppression

motion provided that any reasonable view of the evidence supports

the decision." Id. 213 F.3d at 18 (quoting McCarthy, 77 F.3d at

529).

B. Probable Cause

The Fourth Amendment's warrant requirement is meant to

protect people from unreasonable intrusion by the government into

their homes. The Warrant Clause guarantees that "no Warrants shall

issue, but upon probable cause, supported by Oath or affirmation,

and particularly describing the place to be searched, and the

persons or things to be seized." U.S. Const. amend. IV. "Any

search intruding upon [an individual's] privacy interest must be

justified by probable cause and must satisfy the particularity

requirement, which limits the scope and intensity of the search."
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United States v. Bonner, 808 F.2d 864, 867 (1st Cir. 1986) (citing

United States v. Heldt, 688 F.2d 1238, 1256 (D.C. Cir. 1981)).

"When investigators fail to limit themselves to the particulars in

the warrant, both the particularity requirement and the probable

cause requirement are drained of all significance as restraining

mechanisms, and the warrant limitation becomes a practical

nullity." United States v. Ferreras, 192 F.3d 5, 10 (1st Cir.

1999). The issuance of a warrant must satisfy two requirements for

constitutionality under the Fourth Amendment. "A warrant

application must demonstrate probable cause to believe that (1) a

crime has been committed--the 'commission' element, and (2)

enumerated evidence of the offense will be found at the place to be

searched--the so-called 'nexus' element." United States v. Feliz,

182 F.3d 82, 86 (1st Cir. 1999) (citing United States v. ZayasDíaz, 95 F.3d 105, 111 (1st Cir. 1996)). Woodbury does not

challenge the commission element, so we need not address it here.

Woodbury asserts that the warrant was not supported by

probable cause because there was no evidence of a nexus between his

alleged criminal activities and 7 Leisure Lane. Specifically,

Woodbury contends that the officers had no personal knowledge that

he lived at 7 Leisure Lane, and he points to the discrepancy in the

affidavit over a reference to Lamb Street. He claims that because

there was not "a fair probability that contraband or evidence of a

crime [would] be found in a particular place," namely, his
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apartment, there was no probable cause to support the warrant.

Illinois v. Gates, 462 U.S. 213, 238 (1983).

Woodbury argues that MacVane's determination that

Woodbury resided at 7 Leisure Lane was the only link, and that the

resulting issuance of a warrant was a "mere ratification of the

bare conclusions of others." Id. at 239. Woodbury maintains that

conclusory statements in MacVane's affidavit could not constitute

a "substantial basis" for the issuing judge's determination of

probable cause. United States v. Caswell, 436 F.3d 894, 897 (8th

Cir. 2006) (interpreting Gates to require something more than a

"bare bones" recitation of conclusory statements by the affiant for

a substantial basis to exist).

The Government argues that the link between Woodbury's

drug trafficking and his place of residence could reasonably have

been inferred from the facts. We agree. See United States v.

Materas, 483 F.3d 27, 32 (1st Cir. 2007) ("Common sense dictates

that evidence of [defendant's] possession could probably be found

in the location where he sold drugs two days before."); Feliz, 182

F.3d at 88. The warrant clearly identified Woodbury to be the

occupant of the searched premises and also provided a physical

description of him. While MacVane's affidavit in support of the

warrant did mention that Woodbury's activities occurred at Lamb

Street, the affidavit and application for the warrant clearly

indicate that the warrant was specifically being sought for
 Leisure Lane is the name of a driveway off of Lamb Street. 3

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Woodbury's apartment, which the police determined to be on Leisure

Lane. The Government informants' mistake as to the actual street 3

name is not enough to invalidate the warrant. See United States v.

Cruz, 594 F.2d 268, 273-73 (1st Cir. 1979) (holding warrant valid

where mistake of key fact was understandable and unintentional

misstatement and not necessary to finding of probable cause since

affidavit on its face established probable cause for search of

defendant's residence).

The application for the warrant clearly indicates that

according to the informants' statements, at least part of the

criminal activity occurred at "his (WOODBURY'S) apartment." The

police were provided two first-hand accounts of criminal activity

at Woodbury's apartment by law enforcement informants. One of the

informants had just left the apartment the night the officers

sought the warrant, and told police that he had been a frequent

visitor there and personally observed Woodbury receiving drugs.

This same informant also told police that Woodbury showed him a .40

caliber handgun and that Woodbury usually kept it in his closet. 

See United States v. Capozzi, 347 F.3d 327, 333-34 (1st Cir. 2003)

(finding police had probable cause where warrant sought was based

on tip from informant and corroborated with first-hand knowledge of

weapons used in a crime).
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We "examine [an] affidavit in a practical, commonsense

fashion," Feliz, 182 F.3d at 86, and give "considerable deference"

to the issuing magistrate's conclusion that probable cause has been

established, id. (quoting Zayas-Díaz, 95 F.3d at 111). The

relevant inquiry is "whether the facts presented in the affidavit

would 'warrant a man of reasonable caution' to believe that

evidence of crime will be found." Feliz, 182 F.3d at 87 (quoting

Texas v. Brown, 460 U.S. 730, 742 (1983)). We do not require "that

the belief be shown to be necessarily correct or more likely true

than false." Id. We find that the facts MacVane presented in his

affidavit and application demonstrate that he reasonably believed

the evidence of a crime would be found at Woodbury's apartment.

In Feliz we urged a weighing of the factors in

determining probable cause while reiterating that such weighing

"may result in the inference of probable cause to believe that

criminal objects are located in a particular place, such as a

suspect's residence, to which they have not been tied by direct

evidence." Id. at 88. Even without direct evidence, "common

sense, buttressed by affiant's opinion as a law enforcement

officer," might permit the inference "that [the defendant] would be

likely to keep [evidence] relating to drug transactions at his

apartment." Id. Here, the informants actually recounted criminal

activity at Woodbury's place of residence. In light of these facts

and "the experience and training of the affiant," United States v.
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Jordan, 999 F.2d 11, 14 (1st Cir. 1993), a sufficient basis existed

to find probable cause for the warrant.

C. The Leon Good Faith Exception

Woodbury contends that the warrant fails the Fourth

Amendment's particularity requirement as it is particularized only

with respect to the Lamb Street apartment. The Government admits,

and it is plain from the face of the warrant, that the wrong unit

was specified on the warrant. We need not address Woodbury's

particularity arguments because we find that the Leon good faith

exception applies. "The usual remedy for seizures made with [a

defective warrant is suppression] in order to deter future

violations of the Fourth Amendment." Brunette, 256 F.3d at 19

(citing Weeks v. United States, 232 U.S. 383, 391-93, (1914)).

Suppression, however, is not always necessary. "This exclusionary

rule does not obtain . . . where an objectively reasonable law

enforcement officer relied in good faith on a defective warrant

because suppression in that instance would serve no deterrent

purpose." Id. (citing Leon, 468 U.S. at 920-21).

Woodbury argues that the Leon good faith exception to

suppression cannot apply because (1) the officers acted outside the

scope of the warrant, United States v. Fuccillo, 808 F.2d 173, 177

(1st Cir. 1987), and (2) the warrant was "so lacking in indicia of

probable cause," Leon, 468 U.S. at 923 (quoting Brown v. Illinois,

422 U.S. 590, 610-11 (1975) (Powell, J., concurring in part))
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(internal quotation marks omitted), that "no reasonably well

trained officer should rely on" it, id. Woodbury overstates the

alleged problem with the warrant. The warrant was not "so facially

deficient" that the officers could not have presumed it valid. Id.

The police officers mistook which apartment within the multi-unit

dwelling belonged to Woodbury, but it was reasonable for them to

believe that the warrant was valid. See Bonner, 808 F.2d at 868

(upholding scope of warrant and validating search where warrant

"did not leave so much to the discretion of the officers executing

the warrant").

Under Leon, the good faith exception applies when

government agents rely on a warrant in objective good faith and in

the interest of justice suppression is generally inappropriate.

See Brunette, 256 F.3d at 19. We find that to be the case here.

Although the good faith exception applies in some cases, it is

inapplicable in certain circumstances. The Leon good faith

exception does not apply where an officer's good faith reliance on

a warrant was "so lacking in indicia of probable cause as to render

official belief in its existence entirely unreasonable," or a

warrant that is "'so facially deficient--i.e. in failing to

particularize the place to be searched or the things to be seized--

that the executing officers cannot reasonably presume it to be

valid.'" United States v. Owens, 167 F.3d 739, 745 (1st Cir. 1999)

(quoting Leon, 486 U.S. at 923). The facts here and the analysis
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above, however, demonstrate that the warrant was issued with

probable cause. The police also reasonably presumed the warrant

to be valid.

"The good fath exception 'assumes . . . that the officers

properly executed the warrant and searched only those places and

for those objects that it was reasonable to believe were covered by

the warrant.'" Fuccillo, 808 F.2d at 178 (quoting Leon, 468 U.S.

at 918 n.19). The police officers acted within the scope of the

warrant in searching Woodbury's apartment. The warrant specifies

that it is for Woodbury's apartment. Though the warrant listed

what MacVane "believed to be" the bottom-floor left apartment, with

reasonable effort and without mistakenly searching the wrong

apartment, the police were able to execute the warrant against

their intended target. After knocking on the door to the bottomfloor left apartment, the police were told by the occupant that

Woodbury did not live there but lived in the second-floor left

apartment. The police immediately proceeded upstairs and executed

the warrant there. By refraining from searching the wrong

apartment, the officers made clear their good faith in the

warrant's limitations and their understanding that it was

restricted to the search of Woodbury's apartment. See Bonner, 808

F.2d at 866.

We cannot say that the search warrant for Woodbury's

apartment was so facially deficient that it failed the standard
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outlined in Leon and as applied by this Court. See Owens, 167 F.3d

at 745; United States v. Díaz, 841 F.2d 1, 5-6 (1st Cir. 1988).

Though listing the wrong unit, the warrant made clear reference to

the apartment occupied by Woodbury. Woodbury's claims of facial

deficiency do not rise to the level that we have found in other

cases. See United States v. Ricciardelli, 998 F.2d 8, 16 (1st Cir.

1993) (invalidating a warrant that "contained non-technical defects

readily observable to experienced postal inspectors and . . . that

the inspectors' omissions in the warrant-application process

constituted a second, independently sufficient ground for

distinguishing this case from Leon").

In Fuccillo, officers seized the contents of an entire

warehouse instead of the cartons of women's clothing specified on

the warrant. Fuccillo, 808 F.2d at 177-78. The facts in Fuccillo

precluded any assumption that the officers "'searched only those

places and for those objects that it was reasonable to believe were

covered by the warrant,'" and we thus declined to apply the Leon

good faith exception. Id. at 178 (quoting Leon, 468 U.S. at 918

n.19). We also said in Fuccillo that where "the agents were

reckless in not including in the affidavit information which was

known or easily accessible to them," we would decline to apply the

Leon good faith exception. Id. There, the agents failed to

"[take] every step that could reasonably be expected of them" by

neglecting to make any effort to obtain information that would have
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identified the criminally related goods and distinguished them from

the rest of the goods in the warehouse. Id. (quoting Massachusetts

v. Sheppard, 468 U.S. 981, 989 (1984)). In the absence of any

direction for identification of the stolen cartons, the warrant was

"facially deficient" and could not have been presumed valid by the

executing officers. Id. at 178 (quoting Leon, 468 U.S. at 923).

In seizing the contents of the entire warehouse anyway, the

executing officers acted recklessly such that we found application

of the Leon good faith exception to be improper. Id.

The facts of the present case do not rise to the same

level of defectiveness. The warrant was not so facially deficient

that the executing officers could not reasonably have presumed it

to be valid. The Leon good faith exception applies, and the

warrant was therefore legally executed.

III. Conclusion

For the reasons explained above, we affirm the judgment

of the district court denying Woodbury's motion to suppress.

Affirmed.

(Concurrence opinion follows)
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BOUDIN, Chief Judge, concurring. The panel opinion

convincingly resolves the Fourth Amendment challenge by invoking

the Leon doctrine: it shows that the police acted in good faith

even if it were assumed that the warrant itself was in some measure

defective. It may still be useful to say something about the

alleged defect because searches in multi-apartment buildings are

common and the problem of the uncertain apartment number recurs.

In this case there were two different glitches. The

first was whether the building containing Woodbury's apartment was

at 7 Leisure Lane or at Lamb Street. However, this initial

uncertainty was not in any way a defect in the warrant, which

correctly specified that the building was at 7 Leisure Lane. And,

despite the informant's reference to Lamb Street (from which

Leisure Lane is a kind of driveway), there was ample probable cause

for a warrant specifying the Leisure Lane address as the location

of well verified likely drug dealing by Woodbury.

The warrant thus said clearly that it was for a search of

Woodbury's apartment at 7 Leisure Lane--indeed, specifying the

building as "a white multi-unit dwelling with a covered front

porch, and a grey shingled roof"; the arguable defect came in the

further statement that Woodbury's own unit was "believed to be the

bottom floor left apartment." This was an accurate statement of

the officer's belief when the application and affidavit were
 Accord United States v. Vaughan, 875 F. Supp. 36, 42 (D. Mass. 4

1995) ("The particularity requirement with respect to multiunit

buildings 'may be satisfied by giving the address of the building

. . . and naming the person whose apartment is to be searched . . .

.'") (quoting United States v. Hinton, 219 F.2d 324, 326 (7th Cir.

1955)); 2 Wayne R. LaFave, Search and Seizure § 4.5(b) & n.60 (4th

ed. 2004).

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submitted; but, arriving at the building, the agents learned from

a neighbor that Woodbury's apartment was on the second floor.

Under the case law, the Woodbury warrant would be valid

and sufficient even if it had not said anything about the location

of Woodbury's apartment within the building. "[A] warrant has been

considered valid if it specifies the name of the occupant of the

apartment against which it is directed, despite the absence of any

physical description of the particular apartment." United States

v. Bedford, 519 F.2d 650, 655 (3d Cir. 1975). That the warrant 4

added that the apartment was "probably" in a specific location

ought not make it "defective" so as to imply its legal invalidity.

The supposition was correctly stated as merely "probable"

and so it is hardly surprising that the agents made further inquiry

on arriving at the building. In such cases, as where no apartment

number is specified at all, the correct apartment can often be

verified from letter boxes or building directories in the lobby; in

this case, the information was secured from a neighbor. No attempt

was made to enter the apartment until its correct location in the

building had been ascertained.
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This is thus not a case where a warrant inaccurately

authorized a search of a specific apartment: the search authorized

was of Woodbury's apartment in a specific building. It made sense

to add further information about its probable location just as it

made sense to describe the structure as a white frame building.

But no one would describe the warrant as legally "defective" if the

warrant had said that the building was at 7 Leisure Lane, adding

incorrectly that the building was "probably" gray.

So while Leon is "belt and suspenders," the premise that

there was any defect casting doubt on the validity of the warrant

is merely an arguendo assumption. Leon might well have been

essential if the warrant had definitively misstated the location of

the place to be searched. See United States v. Lora-Solano, 330

F.3d 1288, 1294-95 (10th Cir. 2003); cf. United States v. Clement,

747 F.2d 460, 461 (8th Cir. 1984). In this case, it is merely the

easiest path to affirmance.