United States v. Rigaud

• Decision Date: 29 June 2012
• Docket Number: No. 11–1260.,11–1260.
• Citation: 684 F.3d 169
• Parties: UNITED STATES of America, Appellee, v. Carlens RIGAUD, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

684 F.3d 169

UNITED STATES of America, Appellee,

v.Carlens RIGAUD, Defendant, Appellant.

No. 11–1260.

United States Court of Appeals, First Circuit.

Heard Nov. 10, 2011.

Decided June 29, 2012.

Valerie S. Carter, with whom Carter & Doyle LLP was on brief, for appellant.

Kelly Begg Lawrence, Assistant U.S. Attorney, with whom Carmen M. Ortiz, U.S. Attorney, was on brief, for appellee.

Before BOUDIN, LIPEZ, and HOWARD, Circuit Judges.

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 so doing, Rigaud sought an evidentiary hearing to establish that there were material omissions from an affidavit submitted in support of the request for a search warrant that undermined the probable cause finding on which the warrant was issued. The district court denied Rigaud's motion. Rigaud then pleaded guilty to federal drug trafficking charges pursuant to an agreement that expressly reserved his right to appeal the denial of his motion to suppress. He now pursues that appeal. After careful review of the record, we affirm the district court's judgment.

I.

A. Factual Background

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” between the spring of 2006 and the spring of 2007, a period that included the five controlled buys.

B. Procedural Background

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.¹ The district court held a suppression hearing on July 1, 2010, and denied the motion on July 7, 2010. After the motion was denied, Rigaud entered a plea agreement with the government on December 6, 2010. Under the terms of the agreement, Rigaud pleaded guilty to three drug trafficking charges.² In return, the government dismissed two gun-related charges ³ and withdrew the information it had filed to establish two felony drug convictions justifying a sentence enhancement. Rigaud was sentenced to 188 months' imprisonment followed by four years of supervised release. As noted, pursuant to the plea agreement, Rigaud retained the right to appeal the district court's denial of his motion to suppress.

II.

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.⁴ Rigaud further argues that there was insufficient support in the Molis affidavit to justify issuing a no-knock warrant.

Rigaud also challenges the Mercer affidavit that led to his October 26, 2006 arrest, alleging that it omitted the same critical information as the Molis affidavit. Finally, Rigaud argues that the good faith exception articulated in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), does not overcome the defects in the affidavits or the lack of probable cause.

A. The Molis Affidavit1. Entitlement to a Franks Hearing

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.⁵See id. at 155–56, 98 S.Ct. 2674;Hicks, 575 F.3d at 138;United States v. Castillo, 287 F.3d 21, 25 (1st Cir.2002). Failure to make a showing on either element dooms a party's hearing request. In the event that a hearing is granted and “at that hearing the allegation of perjury or reckless disregard is established by the defendant by a preponderance of the evidence, and, with the affidavit's false material set to one side [or the omitted material included], the affidavit's ... content is insufficient to establish probable cause, the search warrant must be voided and the fruits of the search excluded to the same extent as if probable cause was lacking on the face of the affidavit.” Franks, 438 U.S. at 156, 98 S.Ct. 2674. In this case, we need not address the first Franks requirement, because Rigaud has plainly failed to meet the second (establishing the effect of the omission on the probable cause showing).

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.” The court found that because underwear and body cavity searches are not required in controlled buys, a magistrate would not find an “affidavit...