USCA1 Opinion

United States Court of Appeals

For the First Circuit
For the First Circuit

____________________

No. 96-1535

UNITED STATES OF AMERICA,

Appellee,

v.

TARIQ PERVAZ,

Defendant, Appellant.

No. 96-1536

UNITED STATES OF AMERICA,

Appellee,

v.

JIMMIE ALZAMORA,

Defendant, Appellant.

____________________

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. Mary M. Lisi, U.S. District Judge]

___________________

____________________

Before

Boudin, Circuit Judge,

_____________

Bownes, Senior Circuit Judge,

____________________

and Lynch, Circuit Judge.

_____________

____________________

William J. Murphy for appellant

__________________

Tariq Pervaz,

Thomas G. Brio
______________

for appellant Jimmie Alzamora.

Sheldon Whitehouse,
__________________

United States Attorney,

with whom Andrew

_______

Reich, Assistant United States Attorney, was on brief for appellee.

_____

____________________

June 24, 1997

____________________

-2-

BOWNES,
BOWNES,

Senior
Circuit
Judge.
Senior
Circuit
Judge.
___________________________________

Defendants/Appellants

Jimmie Alzamora and

Tariq Pervaz were

indicted and charged

with seven counts of

fraud and related

activities

involving

access

devices

transmitted by cellular phones, in

1029(a)(1),

(a)(2), (a)(3),

to

telephone

calls

violation of 18 U.S.C.

(a)(4), (a)(5),

1029(b)(2) (conspiracy to commit offenses).

(a)(6), and

There was

motion

to suppress

hearing in

filed

by

suppression motion

was denied.

conditional

pleas

of guilty

indictment,

reserving

their

the district

Alzamora

and

court on

Pervaz.

The

Alzamora

and Pervaz entered

all

counts of

to

seven

right to

appeal

the

the district

court's denial of the suppression motion.

Alzamora

was

sentenced

to

fourteen

imprisonment and ordered to pay restitution in the

$190,275,33.

imprisonment

amount as

Pervaz

and

was

ordered to

Alzamora --

sentenced

pay

$190,275,33.

to

their convictions and the restitution order.

filed a brief on appeal;

filed

by

his

in the

Alzamora.

months

same

defendants appeal

Pervaz has not

he has chosen to rely on

co-defendant

amount of

eighteen

restitution

Both

months

Except

the brief

as

noted

otherwise, we treat both defendants as one in this opinion.

STANDARD OF REVIEW
STANDARD OF REVIEW
__________________

The

applicable standard

of

review has

been

set

forth in detail in Ornelas v. United States, 116 S. Ct. 1657,

________________________

-3-3-

1661-63 (1996).

We condensed

that teaching

in the

case of United States v. Khounsavanh, No. 96-1244,

_____________________________

at 4-5 (1st Cir. May 16, 1997):

In

reviewing

suppression motion,
ultimate legal

denial

of

the district court's

conclusion, including the

determination that a

given set of

facts

constituted probable cause, is a question

of law

subject to

de novo review.
__ ____

Ornelas v. United States,

__________________________
1657,

1659

(1996);

Zayas-Diaz, 95
__________
Cir.

F.3d

1996).

The

findings (if any)

116

S.

See
___
Ct.

United
States v.
___________________
105, 111

n.6

district

(1st

court's

of historical facts --

"the events which occurred leading

up to

the . . . search," Ornelas, 116 S. Ct. at

_______
1661 --

must be

clearly

erroneous.

Zayas-Diaz,
__________

95

upheld unless

F.3d

See
___
at

id.
___
111

they are
at 1663;
n.6.

recent

slip op.

reviewing court must

inferences

drawn

"give due weight to

from

those

facts

by

resident judges and local law enforcement

officers."
But

Ornelas, 116 S. Ct. at

_______

"the

decision

historical

facts,

standpoint

of an

police officer,
cause" is
fact

whether
viewed

these

from

the

objectively reasonable
amount to . . . probable

mixed question

which we

1663.

review de
__

of law

novo.
____

and

Id. at
___

1661-63.1

____________________

1.

We are surprised

in light of Ornelas by the government's

_______

statement in its brief at page 27:

The magistrate's finding of probable

cause to support
to great

the warrant is entitled

deference.

United States v.
__________________

Ciampa,
______

793

F.2d

19,

1996)[sic].

-4-4-

THE FACTS
THE FACTS
_________

A)
A)

Background
Background
__________

22

(1st

Cir.

Defendants

were

convicted

telephone "cloning" operation.

is

necessary.

waves, not

and

called

a mobile

allows customers

distance

telephone

calls through

carriers, e.g., Cellular

and COMCAST.

the use of

and receive

Cellular

One,

ESNs

are

access

statute, 18 U.S.C.

Cellular

by radio

(MIN), which

local and

long

cellular telephone

Communications, SNET,

telephone customers are also assigned

Electronic Serial Numbers (ESN) for their phones.

and

information

an access device

both

their

Mobile

in a

e.g., AT&T, Sprint,

identification number

to make

part

transmit messages

Telephone companies,

MCI, offer their customers

number

taking

Some background

Cellular phones

wires.

of

devices within

the

Both

meaning

MINs

of

the

1029(e)(1).

telephone

subscribers

are

assigned

combination

of an MIN and an ESN to access cellular service.

The MIN/ESN

combination number also

for

billing its

access

cellular

combination is

is used by

phone subscribers.

programmed on

the carrier

The

MIN/ESN

"Erasable Programmable

Read Only Memory" (EPROM) located on a computer chip which is

part of the circuitry of the telephone.

scheme

cellular

to defraud

subscribers

telephone

in which

"cloning"

operation

MIN/ESN combinations

is

issued to

are stolen and reprogrammed on a nonsubscriber's

-5-5-

cellular telephone so

account.

The

as to obtain

cloning

use of the

is accomplished

by

subscriber's

attaching

the

nonsubscriber's cellular phone to a personal computer through

a specially

customized

designed interface cable.

cloning

computer chip

software,

and the stolen

The

cable, used with

gains access

MIN/ESN

number

to

the "EPROM"

is programmed

onto the computer chip in the nonsubscriber's cellular phone.

Customers

pay those running

use the stolen MIN/ESN

the fraudulent scheme

a fee to

numbers to make local, long

distance

or international phone calls

account.

The

which are billed to

the stolen

The fee is, of course, less than the regular rates.

subscriber does not know that his access number is being

used by others until he gets his telephone bill.

B)
B)

Suppression Hearing Evidence

Suppression Hearing Evidence
____________________________

At

adduced

the outset

at the

of

our rehearsal

suppression hearing,

that the dates of conversations

of the

we caution

evidence

the reader

and events are an

important

factor in our determination whether the employees of Cellular

One

case,

of Boston (COB) were

for our purposes,

employees of

and

Southern New

Cellular One

acting as government

agents.

The

begins on September

13, 1995, when

England Telephone

Company (SNET)

of Rhode Island

(CORI) informed

the U.S.

Secret Service

that

a disproportionately

large

number

of

international telephone calls were being made from a cellular

phone (or phones) located in Cranston, Rhode Island.

-6-6-

The

Barnard,

Secret

Service, through

Special

Agent James

called CORI the next day (September 14) for further

information

and talked

Mott told Barnard

to Dan

Mott, a

that a number

service technician.

of the international

calls

had been made with MINs which were not in the calling area to

which

the

further

MINs were

informed

ordinarily

by Mott

that

designated.

the calls

through one cellular phone location.

had any equipment that

Barnard

were

was

being made

Barnard asked if

could pinpoint the exact site

Mott

of the

calls; Mott said that he did not have such equipment.

On

Service

September 14,

Office in

Boston and

site-location equipment.

equipment

1995, Barnard called

but that it was

He

inquired whether

was told that it did

not available.

told that COB might be able to help him.

the Secret

it had

any

have such

Barnard was also

Barnard

14) and talked to

and asked if COB

of

the

called COB later

Ron Anderson.

operation.

day (September

He explained

the situation

had equipment that could locate

cloned calls.

customers

the same

were among

Barnard advised

those being

the source

Anderson

defrauded by

that COB

the cloning

Anderson told Barnard that COB had equipment that

would help locate the exact source

of the calls, but that he

would

legal department

have

to check

with

whether the equipment could

being

told

by

Anderson

COB's

be used in Rhode Island.

that COB's

-7-7-

customers

were

to

see

After

being

defrauded, COB's legal

department advised Anderson that

tracking equipment could be used in Rhode Island.

calling Barnard back as promised,

employees went

to Cranston,

the

Instead of

Anderson and two other COB

Rhode Island, the

afternoon of

September 14 in a van carrying the tracking equipment.

The

calls

were

frequencies,

frequencies

obtained by

used

to make

the

international

from SNET.

Using these

crew proceeded in

the van to

Anderson

Anderson and his

the general source area of the calls.

was

then put into operation.

(Dan Valios

cellular

and Rick

phone

conversations.

calls

Wade

The tracking equipment

Anderson and the two other men

Wade) monitored the

and

also

testified

frequency of

listened

that

to

they

the

telephone

could

have

determined the source of the phone calls without listening to

the

phone

conversations, but

that

the

audio interception

established that the tracking equipment was working properly.

He also testified that the intercepted conversations were not

in English and that none of those in the van understood

was being said.

an

hour,

what

After driving around Cranston for about half

the tracking

equipment

houses as the probable source site.

pointed

to two

adjacent

Wade got out of the van

and using a hand-tracking device pinpointed the source of the

calls

as the left side of

the first floor of a multi-family

dwelling with the address of 156-158 Woodbine Street.

-8-8-

Anderson

phone site had

called Agent

Barnard

after

the

been pinpointed and informed Barnard

source

of what

had

been done.

The

following day,

September 15,

Barnard

applied for and obtained a warrant to search the apartment on

the

left

side

Cranston,

Rhode

September

15.

of

the building

Island.

Federal

The

at

156

warrant

agents arrested

Woodbine

was

Street,

executed

defendants on

on

the

premises and seized a number of cellular telephones, computer

equipment and other evidence of the cloning operation.

THE ISSUES
THE ISSUES
__________

Before we address the

employees were acting as

main issues -- whether COB's

government agents, and the legality

of the search warrant -- we consider two issues raised by the

government.

The

first

raised in the district

is the

government's argument,

not

court, that because neither defendant

had a privacy interest in the apartment searched, neither had

standing to

government

challenge

argues that it

privacy interest

proving it.

the legality

of

had no duty

the warrant.

to assert a

below because defendants had

The

lack of

the burden of

We are reluctant to allow the government to trap

an unwary defendant by raising a lack of privacy interest for

the first time on

the

defendant

had

appeal unless it is absolutely

no

privacy interest

vehicle, or container searched.

-9-9-

in

the

clear that

premises,

See United States v. Soule,

___ _______________________

908

F.2d

1032, 1034-36

(1st Cir.

1990); United States v.

_________________

Miller, 636 F.2d 850, 853-54 (1st Cir. 1980).

______

This is not such

a case.

The following

be fairly found or inferred from the record:

leased the premises.

or, at least,

apartment

He

partners in

where the

facts can

Defendant Peraz

and defendant Alzamora were friends

crime.

fraudulent

Alzamora

moved into

the

phone calls

were made

and

remained there

several

in

days with

defendants

were

the

executed.

These facts are

the blinds

apartment

when

drawn.

the

warrant

not sufficient for

Both

was

us to decide

the privacy question one way or the other.

In

(1972),

found

Combs v. United States,

_______________________

the Court held that

no

standing and

the

defendant's standing in the

408 U.S.

where the court

government

224, 226-27

of appeals had

had not

challenged

district court, the issue should

be remanded to the district court so the defendant could have

an

opportunity

Bouffard,
________

conceded

privacy

917

to

show

standing.

F.2d

673

(1st Cir.

In United States v.
__________________

1990),

the

government

standing in the district court and on appeal, but a

interest was not apparent

on the record.

We held:

"Considerations

of fundamental

fairness

order to afford

the defendant an

warrant remand

in

opportunity to attempt

to

establish the requisite expectation of privacy."

Id. at 677.
___

There are cases in other circuits that are

directly critical

of

standing

the

government's

failure

to address

-10-10-

in

the

district court.

1500 (10th

offers

In

Cir.

United States v. Dewitt, 946

_______________________

1991), the

court

held:

F.2d 1497,

"The

government

no excuse for its failure to raise the standing issue

in a timely fashion at the suppression hearing.

the argument is

waived."

The court relied

United States, 451

______________

U.S. 204

Morales,
_______

761,

737

F.2d

(1981).

763

(8th

Accordingly,

on Steagald v.
____________

In United States v.
_________________

Cir.

1984)

omitted), the Eighth Circuit held:

Despite appellant's failure to prove that

he

had

privacy
that

expectation

of

in room 141, we nonetheless find

because

positions
trial

legitimate

the
and

appellant's

of

the

government
on

appeal

alleged

inconsistent
has taken

at

concerning

disclaimer

of

(footnote

knowledge of the key, the

lost its right

government has

to challenge

appellant's

standing.

If the privacy question was vital, we would, at the

very

least,

findings.

remand

to

the

Because, however,

district

for

factual

will

assume

the government makes is

purely

it

is

court

not, we

standing for purposes of this appeal.

The other argument

legal:

There

Communications

broadcasting

"intercepting"

was

no

Privacy

on

violation

Act because

radio

We

are

aware that

communication

cellular phones

there are

are not

the

locating

frequency

Communications Privacy Act (ECPA),

of

does

a transmitter

not

under

the

18 U.S.C.

cases

Electronic

Electronic

2510

holding that

protected by the

constitute

et seq.
______

users of

Fourth Amendment.

-11-11-

See In Re Askin, 47
___ ____________

F.3d 100, 104

(4th Cir.

1995); United
______

States v. Smith, 978 F.2d

_______________

171, 174-76 (5th Cir. 1992).

operative facts

cases, however, took

in these

the provision in 18 U.S.C.

The

place before

2510(1) expressly excluding

the

radio portion of a

cordless telephone communication from the

protection of the Act was deleted by

Pub.

L. No. 103-414

case,

more took

radio

frequency;

202(a)(1).

place than

those

amendment in 1994.

Moreover,

just locating

tracking

the

in the instant

the source

broadcast

in

be covered by the Act.

deciding

what

necessary to our

of a

frequency

listened to the actual conversations being transmitted.

appears to

See
___

This

We see no point, however,

appears

to

be

thorny

question

decision.

We

follow the district

not

court's

lead and assume, without deciding, that the Act applies.

A)
A)

Issues Raised by Defendants

Issues Raised by Defendants
___________________________

The

first

issue

is

whether

the

employees

of

Cellular One of Boston (COB) were acting as government agents

when they

phone.

for

the

tracked the radio frequency of the cloned cellular

Under 18

employee

communication

transmission

U.S.C.

of

services

of

wire

2511(2)(a)(i), it is

provider

whose

or

intercept, disclose, or use

of

wire

facilities are

electronic

not unlawful

or

electronic

used

in

communication,

the

"to

that communication in the normal

course of his employment while engaged in any

activity which

is a necessary incident to the rendition of his service or to

-12-12-

the protection of the

that

rights or property of the

service . . . ."

provider of

The following subsection, (2)(a)(ii),

authorizes

such

employees

"to

provide

information,

facilities,

or technical assistance to persons authorized by

law to intercept wire, oral, or electronic communications . .

. ."

It

is evident

from

Secret Service

being

defrauded by

right to track the

that COB's

Agent Barnard

the cloning

employees, on

that COB

learning

customers were

operation, had

radio frequency of the cloned

a statutory

phone.

If

the

COB

employees

were

government

agents,

however,

the

requirements of the Fourth Amendment would override statutory

authority.

The question remains, were

agents of

Jesus,
_____

not

the government?

the employees acting as

See United States v. Mendez-de

___ ____________________________

85 F.3d 1, 2-3 (1st Cir. 1996) (Fourth Amendment does

apply to private

action unless

private party

acted as

agent or instrument of government.)

Various

whether a

tests

private entity

have

developed

has acted as

for

determining

a government

For example, see United States v. Pierce, 893 F.2d

___ ________________________

(5th

Cir.

Lambert,
_______

1990).

The Sixth

771 F.2d 83 (6th Cir.

Circuit

agent.

669, 673

in United States v.
_________________

1985) has stated the rule as

follows:

A person
agent

will not be acting

merely

because

there

as a police
was

some

-13-13-

antecedent
and

the

Coleman,
_______

contact
police.
628 F.2d at

between that

person

United
States v.
___________________
965.

Rather, two

facts must
must

be shown.

have

First,

instigated,

encouraged

participated in the search.

the individual must
search with

the police

Id.
___

Second,

have engaged in

the intent of

or

the

assisting the

police in their investigative efforts.

Id. at
___

89.

The Ninth

critical factors

Circuit has held

in the 'instrument or

(1) the government's knowledge

that, "two

of the

agent' analysis are:

and acquiescence, and (2) the

intent of the party performing the search."

United States v.
________________

Walther, 652 F.2d 788, 792 (9th Cir. 1981).

_______

In United States
_____________

v. Attson, 900
_________

F.2d 1427,

1433 (9th Cir.

1990), the

Circuit added a gloss to its rule:

[A]

party

the

fourth

amendment only when he or she has

formed

the necessary

is

subject

intent

to

to assist

in

the

government's investigative or administra-

Ninth

tive functions;
or she

in other words,

intends to engage in

seizure.

However,

that

is

was

a search or

under this test,

fourth amendment will

private party

when he

not apply when the

acting for

independent

the

of

reason

such

governmental purpose.

In United States v. Smythe,

________________________

1996), the

Tenth Circuit

"affirmatively

84 F.3d 1240,

requires that the

encourage or

instigate the

1243 (10th

Cir.

government must

private action."

This is determined by "the totality of the circumstances."

We think that any

specific "standard" or "test" is

likely to be oversimplified or too general to be of help, and

that all of the

factors mentioned by the other

-14-14-

circuits may

be pertinent in different

government's role

search, its

over

in

instigating or

intent and

the search

circumstances:

the degree

and the

the extent

participating

of control

private party,

of the

in

the

it exercises

and the

extent to

which the private party aims primarily to help the government

or to serve its own interests.

Our review of the

suppression hearing evidence and

the

district court's

through

probably

COB

findings of

lens adjusted

historical facts

for clear

true that there would

error

is made

viewing.

have been no

It is

search made by

employees were it not for Agent Barnard's telephone call

inquiring

about equipment

for

locating the

source of

the

transmissions and informing COB that its customers were being

defrauded.

But there is

the search

or even knew about it.

answer

Barnard's query

to

location equipment said

no evidence that Barnard authorized

about

that it

COB employee Anderson in

whether

COB had

did, but he

source-

would have

to

check with the legal department to see if it could be used in

Rhode Island.

back.

He did

employees

went

Anderson

not do

to

told Barnard that he would

so.

Instead, he

Cranston,

Rhode

call him

and the other

Island,

and

two

started

tracking the radio

was that COB's

ignorant

signals on their

Their

customers were being defrauded.

of what was transpiring.

to investigate

own.

and

search

for the

-15-15-

motivation

Barnard was

COB had a statutory right

sources

of

the

radio

transmitted

phone calls.

motivation for its

perpetrated

U.S.C.

on its

It

search:

had a

to prevent a

customers.

That is

fraud from

being

the purpose

of 18

2511(2)(a)(i) and (ii).

Our combined clear error

facts

legitimate independent

and de novo review of

__ ____

review of the

historical

the district court's conclusion

compels a holding that there was no government action in this

case.2

B)
B)

The Affidavit and Search Warrant

The Affidavit and Search Warrant
________________________________

We next consider defendant's claim that the search-

warrant affidavit submitted

probable cause.

Keeping

by Special Agent

Barnard lacked

in mind the standard of

review, we

have examined the eight-page affidavit meticulously.

Paragraph 1

that

his

routine

identifies

duties

the affiant

include

"the

and

explains

investigation

of

violations of federal laws pertaining to the unauthorized use

of access devices."

The

next paragraph, (2), describes

premises to be searched.

the

This will be discussed in detail in

the next part of the opinion.

____________________

2.

Ornelas called for de novo review of the district court's

_______
__ ____

conclusion that a given

level of probable
not specifically
should
whether
Fourth
fails
assume

be

set of historical facts rose

cause.

116 S. Ct. at 1659.

decide whether

applied

to the

legal

The Court did

a similar de
__
question

to the

novo standard
____
at

issue here:

a private entity has acted as a government agent for

Amendment purposes.
even under

the

without deciding

Because the

more searching
that the

defendants' appeal

de novo
__ ____

Ornelas de
_______ __

standard, we
novo standard
____

applies.

-16-16-

Paragraph

3 states

Service) has been conducting

that

the

government

(Secret

an investigation of a telephone

fraud scheme in

Cranston, Rhode Island.

gives the names

and addresses of

The next paragraph

individuals with whom

affiant had spoken in the course of the investigation.

the

Paragraph

access device,

section

of

5 explains the use of

which we

this

have already

opinion.

In

MIN numbers as an

covered in the

paragraph 6,

the

Facts

affiant

expresses his belief that individuals are using telephones at

the

location

described

telecommunications fraud

state

that individuals

in

paragraph

scheme.

have

to

This paragraph

"captured" valid

commit

goes on to

MIN and

ESN

numbers "into mobile telephones" "and are using these numbers

fraudulently to

make telephone calls internationally

by way

of telephone credit card account numbers."

Paragraph 7 explains

is

programmed on

(EPROM)",

located

"Erasable

on a

that the MIN/ESN

Programmable Read

computer

circuitry of the telephone.

chip

combination

Only

within the

Memory

general

Paragraph 8 describes a cellular

telephone cloning operation.

This has already been set forth

in the Facts section of this opinion.

Paragraph 9 describes

which a

calls

customer pays a

which are

numbers.

billed

a "call

fee for making

to the

by

long-distance phone

stolen credit

Paragraph 10 recites that

-17-17-

sell" operation

card account

long-distance calls are

being

made

by unidentified

Street,

Cranston,

Rhode

phones.

It is then stated:

Island,

After accessing a
the

individuals

individual

from

from

"cloned"

long distance
enters

156 Woodbine

cellular

carrier

credit

card

number to which to bill the international

call.

Subsequently,

the

individual

defrauds the mobile telephone

company of

the revenues

due them for

air time

and

defrauds the issuing credit

card company

for revenues

tolls.

due them

for

defrauded company will have to

subscriber

credit for

billing, thereby,

The

issue the

the fraudulent

incurring the monetary

loss.

Paragraph 11

Agent John Enright

states in effect that

received information

Secret Service

from Cheryl

Maher,

Fraud Manager of Cellular

One Rhode Island, that individuals

were using "cloned" phones

"to access long distance carriers

such

as MCI,

Sprint

and AT&T

and

are using

telephone numbers to make international calls."

recites a telephone

Mott, a

same

call received by Agent

Cellular One technician, giving

information

recites

further

concludes:

"Mott

recited in

paragraph

information

received

credit

card

Paragraph 12

Barnard from Jan

him essentially the

11.

from

Paragraph

Mott.

13

It

stated that since the telephone calls were

mostly being made from

one site (site 29) it

indicated that

the caller was not mobile but was stationary."

Paragraph

Agent

Barnard

Rodriguez

14 states

(affiant)

of the

that on

spoke with

Financial

September 14,

Secret

Crimes Division

1995,

Service

Agent

of the

Secret

-18-18-

Service.

Rodriguez told

cellular

phone accesses a

Sprint

or AT&T

through an

number

used is not recorded

him that

when

a caller

credit card company

access number,

using a

such as MCI,

the credit

by Cellular One.

card

Paragraph 15

recites briefly the same facts we have described fully in the

government-agency section of this opinion.

Paragraph 16 states that

Cellular

One, had

its telephone

international telephone

This

established that

Rick Wade, an employee of

switch office

calls from Cranston,

twenty-five

telephone

monitor the

Rhode Island.3

numbers

were

identified as originating from 156 Woodbine Street, Cranston,

Rhode Island.

The total

time of the

normally billed at $.75 per minute.

24-hour period.

Manager

of Cellular

provided a

Paragraph

One

partial list

calls was

151 hours,

The calls continued over

17 states

Rhode Island,

of telephones

that Maher

(Fraud

see paragraph

11),

that appear to

have

been cloned and are being used in the Cranston, Rhode Island,

area.

The numbers are listed.

Paragraphs 18, 19, and 20 recite the experience and

training of

the

affiant.

Paragraph

21 is

the

affiant's

"probable cause" statement.

____________________

3.

It

hearing
Woodbine

is clear
that

from

this

Street had

Wade's testimony

was

done

after
_____

been pinpointed

cloned calls.

-19-19-

the
as

at the

suppression

apartment at
the source

156

of the

Based on our

the

facts leading

de novo review
__ ____

to the

there was probable cause

of the affidavit

district court's

and

conclusion that

to issue the warrant, we

hold that

there was probable cause for issuing the search warrant.

The

next issue

Defendant claims

that the

is

the validity

of the

warrant was defective

inaccurately described the place to be searched.

warrant.

because it

The warrant

affidavit described the premises to be searched as follows:

I make

this

affidavit in

search warrant for the two

floor apartment of the
at 156 Woodbine
Island,

further

support of

bedroom first

residence located

Street, Cranston,
described

as

Rhode
three

story, wood framed building with a yellow

front, brown trim and

brown sides.

number 156 appears on

a post next to the

door

on

the

building.

left

On

the

as

one

The

faces

first floor

the

are two

apartments which are accessed through the

door marked 156.

The apartment for which

this warrant is sought is the two bedroom

apartment on the left

side of the

first

floor.

The pertinent part of the search warrant states:

In the Matter of the Search of

(Name,

address

premises,

or brief

property

or

description of
premises

to

be

searched)

Two bedroom first floor

apartment

of

the

residence

SEARCH
SEARCH

WARRANT
WARRANT
located at 156 Woodbine
St.,

Cranston,

RI,

CASE NUMBER:

further

020816
described as a three story,
wood framed building with

1:95-M-

a yellow front, brown

trim and brown sides.

-20-20-

TO:

Any Special Agent of the

____________________________________

Secret Service
and
_____________________

any Authorized

Officer of the United States

Affidavit(s) having been

by

made before

me

James M. Barnard
who has
______________________________

reason to believe that ____ on the person

of

or

known

x
____

on the property

as

(name,

or premises

description

and/or

location)

Two bedroom first floor apartment

residence

located

Cranston,

RI,

at 156

further

of the

Woodbine St.,

described

three story, wood framed building

as

with a

yellow front, brown trim and brown sides.

The number 156 appears

on a post next to

the

as one

door on

building.

the left
On

the

faces the

first floor

are two

apartments which are accessed through the

door marked 156.

The apartment for which

this warrant is sought is the two bedroom

apartment on the left

side of the

first

floor.

Defendants argue that the

particularity

point

requirement

of the

warrant did not meet the

Fourth

Amendment.

They

out correctly that the number 156 was on the left post

at the top of the stairs

leading to the entrance landing and

that the number 158

stairs.

the

in

was on the right post at

It is stated in defendant's brief at page 26:

warrant does not indicate which

determining

correct.

the top of the

right from

left."

The warrant states:

"But

direction one must face

This

statement

is not

"The number 156 appears on

post next to the door on the left as one faces the building."
_____________________________________

(Emphasis added).

Defendant

also argues

that,

because

of the

two

different address numbers, those executing the warrant should

-21-21-

have called

to

be

the Magistrate and clarified

searched.

The

record

of

what apartment was

the suppression

hearing

establishes conclusively that Agent Barnard knew exactly what

apartment was to

be searched and

proceeded directly to

it.

Barnard testified in effect as follows.

There

containing

posts

on

were

two

the apartment

either

entrance landing.

entrance doors

to be

side of

The post

the

searched.

steps

to

the

building

There

were two

when you

on the right-hand

get

to the

side of

the

steps as

The

one faced the

post on

the left

Barnard entered

He took

of the

door.

side carried

step

to the

right

number 158 on

the number

the building through the

a short

hallway to an

building had the

This apartment had

it.

156 door entrance.

and proceeded

apartment on the left side of

building.

156 on

it.

down

the first floor

the number 156A on the

This was the apartment that was searched.

One of defendants' arguments is that the defendants

actually lived at 158

on

Woodbine Street, not 156.

The number

the door of the apartment searched -- 156A -- effectively

refutes this claim.

We find and rule

officer would not

that an objective law enforcement

be confused by

numbers and that the

the two different

address

particularity requirement of the Fourth

Amendment was met.

The

only confusion was that sown

by the

attorneys for the defendants at the suppression hearing.

-22-22-

Even, however, if the

may have been

that any

address given in the warrant

somewhat suspect our circuit case

uncertainty raised by

the two address

law teaches

numbers did

not invalidate the search warrant.

The leading case in this circuit on the adequacy of

the

description of

the

location to

be searched

Statesv. Bonner, 808 F.2d 864 (1st Cir. 1986).

_______________

In Bonner
______

stated:

The manifest purpose of the particularity

requirement of the Fourth Amendment is to
prevent wide-ranging

general searches by

the police.

The

test

adequacy

of

the

location

to be

for

determining

description
searched is

description is sufficient "to

of

the
the

whether the
enable the

executing officer to locate

and identify

the premises with reasonable

effort, and

whether

there

is

any

reasonable

probability that another premise might be

mistakenly searched."

is United
______

we

Id.
___

at 866

(citations omitted).

contained a detailed physical

be

searched and

omitted

its

from the

Bonner the
______

The

address, however,

We upheld

the validity

warrant, stating:

We hold

that

the Bonner

residence

was

described with sufficient

particularity,

and

address

although

inadvertently
reasonable
premises

the
omitted,

there

probability

that

might

affidavit

description of the premises to

address.

warrant.

In

be mistakenly

was
was

another
searched;

thus, the search warrant was valid.

-23-23-

no

was

of the

Id. at 867.
___

Three subsequent cases have relied on the Bonner

______

analysis and holding:

1828

United States v. Cunningham,

___________________________

No. 96-

(1st Cir. May 19, 1997); United States v. Estrella, 104

_________________________

F.3d 3,

9 (1st Cir. 1997); United States v. Hinds, 856 F.2d

_______________________

438, 441 (1st Cir. 1988).

We are

decided

This precedent seals the issue.

aware, of

the warrant issue on

course, that the

the basis of

district court

United States v.
________________

Leon, 468
____

U.S.

approach,

and

897

(1984).

therefore,

We do

there

not

is

no

reach

need

the

to

Leon
____

discuss

defendant'sclaim oflack ofgood faithby thesearching officers.

Defendant

abused

its

accuracy

then

discretion

of Cellular

denied

independently

hearing

also

claims

when

that

it raised

One's Boston

defendant's

motion

examined.

The

discloses that

the

this is

the

Tracking Equipment,

but

record

have

of

not exactly

issue

court

of

to

the

district

the

the

equipment

suppression

what happened.

The district court questioned COB employee Wade about how the

source-location was determined.

how

She asked Wade "to tell

the equipment works in order for

the determination

what he

in laymen's

did and how

terms."

us

you to be able to make

Wade

the equipment worked.

then explained

The court

then

asked

further questions about what Wade did, and what he did

or did not

tell Barnard.

The court's

examination of

ended with the following colloquy:

Q.

So that before

you

hadn't shown

the warrant
the

-24-24-

issued,

equipment to

the

Wade

Government agents and

explained how

you

were able to isolate the signal?

A.

I don't believe I did.

Q.

Did they

ever ask you what

equipment you

were going

to

kind of

use to

do

you

the

equipment you

were

this?

A.

No.

Q.

Did

they

reliability

of

ever
the

ask

going to use?

A.

No.

We construe the court's

doubt

on

equipment,

equipment

little.

its part

but

as

as to

the

seeking

had been given

questions, not as evincing

reliability of

what

the tracking

information

to the government,

about

the

which was very

We agree

came

too late

16(a)(1)(C)

defendant had

inspecting

to trial.

the

question to Wade.

Under

a right

Clearly,

equipment

until

there is nothing

district court did

Crim. P.

the tracking

defendant never thought

tracking equipment was unreliable

that the

the motion

Fed. R.

to inspect

This was too late.

record carefully and

the

district court that

for consideration.

equipment prior

about

with the

not err in

the

court's

last

We have examined the

to even suggest

in any way.

that

We hold

denying defendant's

motion.

The final issue is whether the district court erred

in

determining

the amount

of

-25-25-

loss.

The

district

court

ordered each defendant

$190,275.33.

defrauded

This

to pay restitution

sum

represented the

telephone companies

calls had been

would have

made legitimately.

of

Ordinarily,

the

property

taken,

when property is taken

amount

damaged,

that

been paid

Under U.S.S.G.

application note 2 states in pertinent part:

value

in the amount

of

the

if the

2B1.1,

"Loss means the

or

destroyed.

or destroyed the loss is

the fair market value of

The

pertinent part of

the particular property at

note 3 states:

the loss

need

issue."

"For the purposes of

subsection

(b)(1),

not

be determined

with

precision.

The court need only make a reasonable estimate of

the loss, given the available information."

Defendants

assert

that

the

amount

used

was

erroneous because it "reflects both the costs associated with

processing

cellular

the calls

and

margin for

phone carriers and providers."

for this novel proposition.

sentence

a profit

the various

No cases are cited

Defendants rely on the following

in application note 2

of U.S.S.G.

2B1.1:

"Loss

does not include the interest that could have been earned had

the funds not been stolen."

We

are not persuaded.

We do not think that profit

can be equated with interest.

fair

Profit is an ingredient of the

market value of goods or

services that can be sold and

purchased.

-26-26-

We

discern no

error, plain

or otherwise,

in the

district court's determination of the amount of restitution.

The judgment of the district court is affirmed.

affirmed.
_________

-27-27-