U.S. v. Strother, 02-1787.

• Decision Date: 28 January 2003
• Docket Number: No. 02-1787.,02-1787.
• Citation: 318 F.3d 64
• Parties: UNITED STATES, Appellee, v. Daryll J. STROTHER, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

318 F.3d 64

UNITED STATES, Appellee, v. Daryll J. STROTHER, Defendant, Appellant.

No. 02-1787.

United States Court of Appeals, First Circuit.

Heard December 5, 2002.

Decided January 28, 2003.

Timothy G. Watkins, Federal Defender Office, for appellant.

John A. Capi, Assistant United States Attorney, with whom Michael J. Sullivan, United States Attorney, was on brief, for appellee.

Before TORRUELLA, Circuit Judge, STAHL, Senior Circuit Judge, and HOWARD, Circuit Judge.

STAHL, Senior Circuit Judge.

Defendant-appellant Daryll J. Strother appeals from his conviction of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). He contends that the search that led to his arrest and conviction was not supported by probable cause and that he was wrongly deprived of a Franks hearing. We affirm the judgment below.

I. BACKGROUND

On April 7, 2000, the government applied for a warrant to search Strother's residence, located on the first floor of 41 Kingsdale Street in Dorchester, Massachusetts. 41 Kingsdale is a three-story, three-family residence.

The application in support of the search warrant featured the affidavit of Federal Bureau of Investigation Special Agent Nicholas B. Boshears. In his affidavit, Boshears stated that in February and March of 2000, a cooperating witness ("CW-1") provided Boshears with information concerning Strother's involvement in fraudulent check cashing, drug trafficking, and possession of firearms. Approximately a month before the warrant application, CW-1 told Boshears that he had personal knowledge that Strother used the first floor of 41 Kingsdale Street to store cocaine, heroin, and firearms.¹

CW-1 had provided information to Boshears on one previous occasion, when he advised him of the location of a person wanted on a federal warrant. CW-1's information in that case proved accurate and ultimately led to the individual's conviction.

Boshears's affidavit set forth the government's efforts to corroborate CW-1's information.² As to Strother's residence, Boshears stated that a United States Secret Service agent involved in the investigation had contacted officers of the United States Postal Police [sic], who in turn interviewed the postal carrier assigned to deliver mail to 41 Kingsdale. According to Boshears, the postal carrier verified that mail was delivered to the Strother family at the first floor of 41 Kingsdale Street, and postal records also indicated that the first floor was occupied by the Strother family. The affidavit additionally asserted that, according to postal records, floors two and three of 41 Kingsdale Street were occupied by the Brisco family and by Dennis and Mildred Richardson, respectively.

Based on this information, a magistrate judge issued a warrant authorizing the search of "the apartment residence of Daryll J. Strother located on the first floor of 41 Kingsdale Street, Dorchester, MA ..." The warrant authorized the police to search for money, cocaine, drug paraphernalia and records, firearms, and items showing possession of the premises. The search was conducted on April 17, yielding, inter alia, a twelve-gauge shotgun and a pistol.

On June 14, 2000, the grand jury returned an indictment charging Strother with being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). On December 28, 2001, Strother moved to suppress evidence seized during the search on the grounds that (1) the affidavit lacked probable cause, and (2) the affidavit contained an error that warranted a Franks hearing. Specifically, his Franks claim challenged Boshears's assertion that he lived at the searched residence. The motion attached an affidavit in which Strother denied ever having received mail there.

In response to Strother's request for a Franks hearing, the government submitted a second affidavit from Boshears stating that any error in the original affidavit — the one supporting the warrant application — was unintentional. In the second affidavit, Boshears attested that he reviewed his file and found a copy of a March 17, 2000 memorandum from the Postal Service to the Secret Service agent that stated that 41 Kingsdale "is a three family residence [where mail was delivered to] Dennis and Mildred Richardson, The Brisco Family, and The Struthers [sic] Family." The memorandum further stated that the mail carrier did not have information as to the specific occupants of each floor. Boshears stated that he had no recollection whether he sought more detailed information from the postal service concerning the occupants of 41 Kingsdale.

The district court held a non-evidentiary hearing on January 29, 2002. Two days later, by written memorandum, it denied Strother's motion to suppress and his request for a Franks hearing.

On February 26, 2002, Strother entered a conditional plea of guilty to a superseding indictment charging the same offense, pursuant to Fed.R.Crim.P. 11(a)(2). On June 10, 2002, the court sentenced him to a term of 180 months in prison. It entered judgment on June 18, 2002, and this appeal followed.

II. DISCUSSION

A. Probable cause

"In reviewing a denial of a suppression motion, the district court's ultimate legal conclusion, including the determination that a given set of facts constituted probable cause, is a question of law subject to de novo review." United States v. Khounsavanh, 113 F.3d 279, 282 (1st Cir.1997) (citing Ornelas v. United States, 517 U.S. 690, 698-99, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996)). The district court's findings of historical fact are reviewed for clear error. Id.

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 "nexus" element). United States v. Zayas-Diaz, 95 F.3d 105, 110-11 (1st Cir.1996). "With regard to the `nexus' element, the task of a magistrate... is `to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him ... there is a fair probability that contraband or evidence of a crime will be found in a particular place.'" United States v. Feliz, 182 F.3d 82, 86 (1st Cir. 1999) (quoting Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)).

In determining the sufficiency of an affidavit supporting a search warrant, we consider whether the "totality of the circumstances" stated in the affidavit demonstrates probable cause to search the premises. Khounsavanh, 113 F.3d at 283. We examine the affidavit "in a practical, common-sense fashion and accord considerable deference to reasonable inferences the [issuing judicial officer] may have drawn from the attested facts." United States v. Barnard, 299 F.3d 90, 93 (1st Cir.2002) (quoting Zayas-Diaz, 95 F.3d at 111) (internal quotations omitted). Among the factors that may contribute to a probable cause determination are:

whether an affidavit supports the probable veracity or basis of knowledge of persons supplying hearsay information; whether informant statements are self-authenticating; whether some or all [of] the informant's factual statements were corroborated wherever reasonable and practicable (e.g., through police surveillance); and whether a law-enforcement affiant included a professional assessment of the probable significance of the facts related by the informant, based on experience or expertise.

Khounsavanh, 113 F.3d at 284 (quoting Zayas-Diaz, 95 F.3d at 111) (internal quotations and footnote omitted). None of these factors are individually indispensable; rather, "stronger evidence on one or more factors may compensate for a weaker or deficient showing on another." Id. (quoting Zayas-Diaz, 95 F.3d at 111).

Strother argues that the warrant application failed to establish CW-1's reliability because CW-1's track record was limited to one instance of locating an individual wanted by the police. He also contends that the warrant application was deficient as to the nexus element: i.e., whether there was probable cause to believe that firearms were likely to be found at the searched residence. We disagree and hold that the totality of the circumstances set forth in the application demonstrates probable cause.

We need not decide whether the supporting affidavit's recitation of CW-1's prior assistance to the authorities is sufficient, standing alone, to establish his reliability. Here, CW-1's reliability was bolstered by the detail he provided about Strother's criminal activities — including drug trafficking, fraudulent check cashing, and illegal firearms possession — and by independent corroboration thereof. See Gates, 462 U.S. at 230, 103 S.Ct. 2317 (informant's truthfulness and basis...