Opinion
CRIMINAL NO. 00-10204-PBS.
January 31, 2002.
MEMORANDUM AND ORDER RE: DEFENDANT'S MOTION TO SUPPRESS
I. INTRODUCTION
Defendant Daryll J. Strother has moved to suppress the fruits of the search at 41 Kingsdale Street, Dorchester, Massachusetts on the ground that the search warrant obtained by the FBI was not supported by probable cause. In addition, he seeks a Franks hearing because he claims that the warrant application contains material omissions of fact made either to deliberately mislead the Magistrate Judge or with reckless disregard as to whether they would mislead. After a non- evidentiary hearing, the Court DENIES the Motion to Suppress on the ground that the warrant is supported by probable cause and DENIES the request for a Franks hearing because the defendant failed to make the requisite preliminary showing of materiality.
II. DISCUSSION
A search warrant affidavit is sufficient when the "totality of the circumstances" stated in the affidavit demonstrates probable cause to search. See United States v. Khounsavanh, 113 F.3d 279, 283 (lst Cir. 1997) (citing Illinois v. Gates, 462 U.S. 213, 238 (1983)). The warrant application must demonstrate probable cause to believe that a particular person has committed the crime — the "commission element" — and that enumerated evidence relevant to the probable criminality is likely located at the place to be searched — the "nexus element." United States v. Feliz, 182 F.3d 82, 86 (1st Cir. 1999); United States v. Zayas-Diaz, 95 F.3d 105, 110-11 (1st Cir. 1996).
A. Totality of Circumstances
After evaluating the affidavit of FBI Special Agent Nicholas B. Boshears, I find that it establishes probable cause for the search. The affidavit demonstrated the reliability of the confidential informant by describing the informant's past provision of accurate information, as well as by providing evidence of independent police investigation corroborative of the informant's story. Boshears' informant had previously provided information on the location of a person wanted on an outstanding federal warrant. (Affidavit of Nicholas B. Boshears in Support of Warrant Application ("Aff.") ¶ 12). See United States v. Link, 238 F.3d 106, 110 (1st Cir. 2001) (holding informant's provision of reliable information in previous investigations an indicator of reliability).
Boshears' affidavit also attested to independent police investigation corroborative of the informant's story. Such corroboration may significantly contribute to the totality of circumstances demonstrating probable cause. See Khounsavanh, 113 F.3d at 284. In Link, the police verified the informant's predictions of the defendant's movements, the details the informant provided about the defendant's criminal record, and the registration of a car used in the robbery to the person the informant stated was the defendant's accomplice. See Link, 238 F.3d at 109-11. "Verification of [these] part[s] of the informant's story made it sufficiently likely that the crucial part of the informant's story (i.e., allegations that criminal activity has occurred and that evidence pertaining thereto will be found in the location to be searched) was true." Link, 238 F.3d at 110 (internal quotations omitted). The same is true here, where the FBI corroborated the confidential informant's detailed allegations regarding Strother's involvement in an illegal check cashing scheme (Aff. ¶ 11), and learned his prior criminal record in cocaine distribution and violent felonies. (Aff. ¶ 14).
Moreover, the confidential informant had a first-hand basis for his personal knowledge that defendant possessed contraband on the first floor of 41 Kingsdale Street. See Abreu-Guzman v. Ford, 241 F.3d 69, 74 (1st Cir. 2001) ("An informant's information is considered reliable if the informant speaks with personal knowledge, as here."). Here, the informant stated that he had seen two firearms in the Kingsdale apartment while in the apartment a month before (Aff. ¶ 15), and had seen the defendant scooping cocaine or heroin into plastic bags in the apartment. (Aff. ¶ 13).
To establish probable cause, the facts presented in the affidavit need only warrant a person of reasonable caution to believe that the evidence of a crime will be found. Feliz, 182 F.3d at 86 (quoting Texas v. Brown, 460 U.S. 730, 742 (1983) (plurality opinion)). "The probable cause standard does not demand any showing that such belief be correct or more likely true than false." Id. (internal quotation omitted). Boshears' affidavit, setting forth the information from his confidential informant and the corroboration of portions of this information by independent investigation, satisfies this standard for both the commission and nexus elements.
B. Franks
The only troublesome point in this analysis is that the record demonstrates that Boshears made a misstatement of fact in the affidavit. Paragraph Seven of the search warrant application affidavit states:
United States Secret Service Special Agent David Murray ("Murray"), who is also assigned to this investigation, contacted the United States Postal Police ("USPP"). Officers assigned to USPP, in turn, interviewed the mail carrier responsible for delivering mail to 41 Kingsdale Street. The carrier verified that mail was delivered to the Strother family at Apartment One on the first floor of the residence. Postal records also indicate that Floor One is occupied by the Strother family.
Defendant submitted an affidavit denying that he had ever received mail at that address. He also made the proffer in court that no family member with the Strother surname received mail at that address. In fact, no postal records verify that defendant lived on the first floor. Instead, the USPP Memo, authored by Cpl. Sean M. Ever of the USPP dated March 17, 2000, states:
This fax is in response to your request for information about 41 Kingsdale St., Dorchester, Ma 02124. The carrier interviewed stated that this structure is a three family residence. The names receiving mail at this location are Dennis and Mildred Richardson, The Brisco Family, and The Struthers [sic] Family. The carrier did not have the specific occupants of each floor at the time we spoke. If you require any further assistance, please do not hesitate to call the office.
According to the government, the agent has no memory how he made the leap from this postal memorandum to the statement in the affidavit that the Strother family lived on the first floor. While defendant does not make the contention that the postal memorandum was fabricated, he points out that it highlights a misrepresentation by the agent and is sufficient to raise concern about recklessness or willful blindness. This discrepancy could be enough to warrant a Franks hearing if it were material to probable cause. It is not.
To be entitled to a Franks hearing, a defendant must show not only that the statement was "knowingly and intentionally false, or made with reckless disregard for the truth," but also that the statement is material to finding of probable cause to support the issuance of the warrant underlying the search. United States v. Charles, 213 F.3d 10, 24 (1st Cir. 2000) (citing Franks v. Delaware, 438 U.S. 154, 171-172, 98 S.Ct. 2674 (1978)); United States v. Vargas, 931 F.2d 112, 114 (1st Cir. 1991). Even if the postal memorandum simply corroborated that Strother lived at the address — and not on the first floor of the house — the confidential informant's information established that Strother lived on the first floor and kept guns and drugs there. Because the informant's reliability was established in the ways described above, his pinpointing of Strother's residence on the first floor suffices to establish probable cause even without postal corroboration. In short, defendant has failed to make the preliminary showing that the false statement was necessary for a finding of probable cause. United States v. Rumney, 867 F.2d 714, 719 n. 8 (1st Cir. 1989).
III. ORDER
For the reasons set forth above, the Motion to Suppress (Docket No. 51) is DENIED.