LIPEZ, Circuit Judge.
After the government disclosed new information regarding its confidential informant ("CI") in 2010, appellant Carlens Rigaud moved to suppress evidence recovered in 2006 during the execution of a search warrant in Malden, Massachusetts.
In June 2006, Sergeant Kevin Molis of the Malden Police Department applied for a no-knock warrant to search 95 Medford Street, relying in his affidavit on information that he received from CI Betty Trainor (a/k/a Patriot), Trainor's five controlled buys at 95 Medford Street in May and June 2006, his surveillance of 95 Medford Street, and other information. On June 9, 2006, a state court judge approved Molis's application and issued a no-knock search warrant for 95 Medford Street. Molis, other state and local authorities, and federal agents of the Bureau of Alcohol, Tobacco, Firearms and Explosives ("ATF") executed the search warrant that day and seized, among other things, two handguns and 76 bags of crack cocaine weighing a total of 40.35 grams. Rigaud, his brother Carlin Rigaud, Kettia Saint Louis, and others were present during the search and were arrested and charged with state drug and firearm violations. Rigaud was subsequently released on bail.
While Rigaud was out on bail, Trainor introduced him to ATF Special Agent Karen Carney-Hatch, who was acting in an undercover capacity. On August 24, 2006, Carney-Hatch met Rigaud in a parking lot in Malden, Massachusetts, and purchased from him approximately three grams of crack cocaine for four hundred dollars. During the transaction, Carney-Hatch was equipped with a body wire and recorder.
On October 26, 2006, ATF Special Agent John Mercer, Jr., submitted an affidavit in support of an application for arrest and search warrants and criminal complaints pertaining to a number of individuals, including Carlens and Carlin Rigaud, described as members of a gang known as the "Haitian Mob." Mercer's affidavit did not request permission to search 95 Medford Street, but instead sought permission to search two other residences of individuals allegedly involved with the Haitian Mob's drug trade. Based on Mercer's affidavit, a federal magistrate judge issued arrest warrants for Rigaud and others and search warrants for the two residences described in the affidavit. Rigaud was arrested on October 26, 2006, and indicted on November 29, 2006, on multiple federal drug trafficking and weapons charges.
At Rigaud's impending trial on the federal charges, prosecutors planned to introduce evidence recovered during the June 2006 search of 95 Medford Street that led to Rigaud's state arrest and charges. On February 4, 2010, during preparation for the federal trial, Trainor admitted to prosecutors that prior to each of the five controlled buys that she made in May and June 2006, she hid forty dollars of her own money in her underwear. She then used that money to buy for her personal use an additional bag of crack cocaine, which she kept concealed from detectives by hiding it in her vagina. The government disclosed this information to Rigaud the day Trainor provided it. On February 19, 2010, the government also disclosed to Rigaud that Trainor had admitted that "she continued to regularly buy and use crack cocaine"
On March 26, 2010, in response to the government's disclosures, Rigaud filed a motion to suppress all of the evidence seized as a result of the search warrant that was executed on June 9, 2006. Rigaud also sought to suppress the "fruits" of the August 24, 2006, transaction during which he sold crack cocaine to Carney-Hatch.
Rigaud focuses on the alleged inadequacy of the Molis affidavit that led to the June 9, 2006 search of 95 Medford Street. The Molis affidavit stated that before each of Trainor's controlled buys, "[i]t was determined that [Trainor] was not in possession of cocaine." However, the affidavit provided no details about how detectives made that determination. In light of Trainor's admission that she carried her own money into, and drugs out of, 95 Medford Street during the controlled buys, Rigaud alleges that Trainor could not have been searched before or after the buys. Moreover, he asserts that Trainor's dishonesty and concurrent drug use rendered her information fatally untrustworthy. Thus, Rigaud claims that he was entitled to an evidentiary hearing pursuant to Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). He argues that he could have shown that (1) Molis recklessly omitted critical information regarding his search of Trainor, including the failure to search her at all; and (2) if the affidavit had disclosed the failure to search Trainor, there would not have been sufficient probable cause and the warrant would not have been issued.
The Fourth Amendment protects "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures," U.S. Const. amend. IV, and generally requires law enforcement officers to secure a warrant supported by probable cause prior to effecting a search or seizure, see United States v. Paneto, 661 F.3d 709, 713 (1st Cir.2011). Probable cause exists when the totality of the circumstances suggest that "there is a fair probability that contraband or evidence of a crime will be found in a particular place." United States v. Hicks, 575 F.3d 130, 136 (1st Cir.2009) (internal quotation marks omitted).
As in this case, information supporting probable cause may be set out in an affidavit submitted with the application for a search warrant. Although "[t]here is... a presumption of validity with respect to the affidavit supporting the search warrant," that presumption may be refuted during a so-called Franks hearing. Franks, 438 U.S. at 171, 98 S.Ct. 2674. However, to get a Franks hearing, a party must first make two "substantial preliminary showings": (1) that a false statement or omission in the affidavit was made knowingly and intentionally or with reckless disregard for the truth; and (2) the falsehood or omission was necessary to the finding of probable cause.
The district court noted that the "proper inquiry is not whether probable cause would have existed if the affidavit had revealed what Trainor hid going into and returning from the controlled buys but rather whether probable cause could be found if the affidavit stated that Molis did not search Trainor's underwear and body cavities and was generally more explicit about the searches actually performed."
Regarding Trainor's general trustworthiness, the district court found that "Trainor's lack of candor was, ultimately, unnecessary to the finding of probable cause. The affidavit provided ample grounds to credit her preliminary statements and to corroborate what she said and did notwithstanding subsequent disclosures of her drug use or undisclosed purchases." Based on these findings, the district court concluded that "the totality of the circumstances sufficiently demonstrated that Trainor was substantially reliable and that, even had the alleged omissions been included in Molis's affidavit, there was probable cause to issue the search warrant."
The district court's finding that the requisite showing for a Franks hearing was not made will be disturbed only if it is clearly erroneous. United States v. Cartagena, 593 F.3d 104, 112 (1st Cir.2010). Clear error "exists only when we are left with the definite and firm conviction that a mistake has been committed." United States v. D'Andrea, 648 F.3d 1, 14 (1st Cir.2011) (internal quotation mark omitted).
We agree with the district court that the disclosure that Trainor was not searched or was searched inadequately would not have resulted in a negative finding on probable cause. We note, as the district court did, that the controlled buys went essentially as planned — Trainor entered 95 Medford Street with marked government money and exited the apartment with crack cocaine. The fact that Trainor took her own money into 95 Medford Street and purchased drugs for personal use would hardly undermine the assertion that drugs were being sold in the apartment. If anything, Trainor's side purchases would support probable cause to believe that drugs were, in fact, being sold there.
Moreover, the Molis affidavit states that a number of sources independent of Trainor suggested that drugs were being sold from 95 Medford Street. For example, anonymous calls were received by the Malden Police Drug Hotline, the Malden Police dispatcher, and the Malden Drug Unit, each reporting ongoing drug activity at 95 Medford Street. The caller to the Drug Unit said that a dozen people per day visited the apartment for brief periods, which led him to believe that drugs were being sold there. Molis also received information from Malden Police Chief Kenneth Coye, who told Molis that an elected official had contacted him and conveyed constituent complaints about drug activity at 95 Medford Street.
Additionally, during the two weeks preceding the warrant application, the Malden Police Drug Unit conducted surveillance of 95 Medford Street and observed various cars making brief visits to the apartment. Officers ran the license plates of some of these visitors and discovered that the registered owners of some of the vehicles had previous drug-related convictions, and one owner had a number of open drug-related cases.
Molis and other detectives also observed individuals associated with 95 Medford Street engage in activity that the detectives believed was consistent with counter surveillance activity, including "scrutinizing
We also agree with the district court that ample corroboration of the information that Trainor provided neutralizes any apparent untrustworthiness brought to light by her late disclosures. Trainor told Molis that she had purchased crack cocaine from seven or eight different people in an apartment at 95 Medford Street. She said that all of the people from whom she had purchased drugs were black, and two were female. Trainor stated that she would sometimes see as many as six men in possession of handguns inside 95 Medford Street. She said that she had seen a man who went by "C" with a handgun in his waistband and had also seen handguns on a table in the apartment. Trainor also described the door through which she had entered 95 Medford Street as being brown and tan with a doorbell, a peephole, and the number "95" affixed to it. Although some of the information that Trainor provided, particularly information about the activity inside the apartment, did not lend itself to corroboration prior to the preparation of his affidavit, Molis was able to confirm key pieces of the information that Trainor provided. For example, after speaking with Trainor, Molis visited 95 Medford Street "during the early morning hours" and corroborated the information that Trainor gave about the outside and entrance to the apartment. He confirmed that the back door of 95 Medford Street had a peephole and a piece of white tape with "95 Medford" written on it affixed to the upper part of the door. Molis photographed the door and showed the photograph to Trainor. Trainor confirmed that it was the door through which she had entered 95 Medford Street to buy crack cocaine.
Similarly, Trainor provided Molis with the telephone number that she called to arrange purchases of crack cocaine at 95 Medford Street. She did not provide any of the sellers' actual names but did say that she had purchased crack cocaine from two males who went by "C" and "Little C." Trainor said that she thought C and Little C were brothers. Detective Richard Connor of the Everett Police Drug Unit indicated to Molis that based on information he received from Sergeant George Keralis of the Southern Middlesex Drug Task Force, he believed that a black man named Little C sold crack cocaine. Connor was also in possession of a telephone number belonging to Little C. The number Connor showed Molis matched the number that Trainor gave Molis and was the same number that Trainor used to set up the controlled buys. When Molis followed up with Keralis directly, Keralis told him that his information about Little C came from a reliable confidential source.
In addition, Molis discovered through the Motor Vehicles Database that a woman named Kettia Saint Louis was registered as residing at 95 Medford Street and confirmed
Based on the information from Trainor and other sources set forth in Molis's affidavit, we conclude that the district court did not err by finding that any omission about the lack of an underwear or body cavity search of Trainor was not critical to the probable cause finding. Because Rigaud was unable to satisfy the second Franks requirement, the district court did not err by declining to hold a Franks hearing.
As he did before the district court, Rigaud alleges that the contents of the Molis affidavit "failed to establish probable cause justifying the issuance of a no-knock warrant."
The government argues that under Hudson v. Michigan, 547 U.S. 586, 126 S.Ct. 2159, 165 L.Ed.2d 56 (2006), the exclusionary rule does not apply to violations of the knock-and-announce rule. Thus, Rigaud was not entitled to suppression on that basis. The government is right. See Hudson, 547 U.S. at 599, 126 S.Ct. 2159; United States v. Garcia-Hernandez, 659 F.3d 108, 112 (1st Cir.2011). Rigaud's argument for suppression fails on that basis alone.
Rigaud's suppression arguments based on the Mercer affidavit are difficult to understand. First, he argues that the fruits of Carney-Hatch's August 24, 2006, undercover buy should have been suppressed because Trainor, who introduced Carney-Hatch and Rigaud, "had been using crack without the government's permission and her observations were undoubtedly affected by her addiction." He also argues that the Mercer affidavit was "as materially disingenuous as Molis'[s]... because he adopts the legitimacy of
Regarding the fruits of the ATF undercover buy, the government argues that because Rigaud did not identify a constitutional violation related to that buy, suppression is inappropriate. The government also argues that even if information about Trainor's side buys and her drug use were included in the Mercer affidavit, there was sufficient probable cause to issue the search and arrest warrants.
The government is correct that the buy was not a search or seizure and hence it did not implicate Rigaud's Fourth Amendment rights. Thus, the exclusionary rule is simply inapplicable. See Garcia-Hernandez, 659 F.3d at 112. To the extent that Rigaud seeks to challenge the Mercer affidavit as the basis for subsequent search and arrest warrants, he states only that "the warrants should not have issued and any of the fruits from the search and arrest should have been suppressed." This undeveloped argument fails for the same reason that the challenge to the Molis affidavit fails.
Affirmed.
