United States v. Gifford

• Decision Date: 13 August 2013
• Docket Number: No. 12–2186.,12–2186.
• Citation: United States v. Gifford, 727 F.3d 92 (1st Cir. 2013)
• Parties: UNITED STATES of America, Appellant, v. Paul GIFFORD, Defendant, Appellee.
• Court: U.S. Court of Appeals — First Circuit

727 F.3d 92

UNITED STATES of America, Appellant,

v.Paul GIFFORD, Defendant, Appellee.

No. 12–2186.

United States Court of Appeals, First Circuit.

Aug. 13, 2013.

Seth R. Aframe, Assistant United States Attorney, with whom John P. Kacavas, United States Attorney, was on brief for appellant.

Behzad Mirhashem, of the Federal Defender Office, with whom Jeffrey S. Levin, was on brief for appellee.

Before LYNCH, Chief Judge, TORRUELLA and HOWARD, Circuit Judges.

TORRUELLA, Circuit Judge.

This appeal concerns the sufficiency of a search warrant affidavit in establishing probable cause to search defendant-appelleePaul Gifford's (“Gifford”) home for a marijuana grow operation.The United States Government (“Government”) challenges the district court's suppression of evidence seized from Gifford's home, arguing that the search warrant affidavit did not omit information material to a probable cause determination.Since we find that the search warrant in fact contained reckless material omissions, and the properly reformed search warrant affidavit failed to establish probable cause, we affirm the district court in all respects.

I.Background

A.Factual Background

On February 14, 2011, a New Hampshire state court issued a warrant to search Gifford's home relying on a supporting affidavit submitted by New Hampshire State Trooper First ClassSteven D. Tarr(“Trooper Tarr”).We quote at length from Trooper Tarr's affidavit, based in part on information received from an unnamed informant,¹ as the core issue on appeal concerns its sufficiency for establishing probable cause:

3.During the month of November 2010, the affiant received information reference [sic] the possible manufacture of the controlled drug marijuana at the following address: 46 South Road; [Town omitted], New Hampshire.By a: Paul Gifford[DOB omitted].

This information was provided through a reliable confidential informant with knowledge of Gifford's personal practices as well as knowledge of the inside of the residence.According to the confidential informant, Gifford is a landscaper by trade but does not work on a regular basis.The informant explained that Gifford considers growing marijuana to be his full time occupation and means by which to earn money.Additionally, information received from this informant on February 9, 2011 revealed that Gifford is currently in the process of growing marijuana at the residence and has leftover, finished marijuana from an autumn indoor grow within the residence.

4.This affiant gathered information relative to the resident of the home at that address through Department of Motor Vehicle[sic] and Town of [Town omitted], NH records.I learned that the following individual resides at that address: Paul Gifford[DOB: omitted].

....

6.On January 19, 2011[,] this affiant received a copy of a police report from the [Town omitted] Poilce [sic] Department that had been generated by Officer John Ventura.The report related to a home visit made to the residence by Officer Ventura and Lisa Tyler of Adult Protective Services.While Officer Ventura was at the residence to assist Adult Protective Services, he made contact with Gifford who met them at the front door of the residence and “quickly” shut the door behind him.Officer Ventura was “immediately overwhelmed by the strong odor of burnt marijuana coming from Paul's person.”Later, when allowed into the home, Officer Ventura again “detected the same odor of burnt marijuana.”

7.This affiant drove to 46 South Road, [Town omitted], NH.I noted that the residence is a large building with an attached barn.It is located directly across the street from a school.

8.During this investigation, this affiant requested the power records from Unitil Corporation utilities company for 46 South Road, [Town omitted], NH.On November 23, 2010[,]Unitil Corporation was served with a Subpoena for the electrical power records of 46 South Road, [Town omitted], NH.Using the subpoena process, this affiant found that the electric utility bill for this residence is listed to Paul Gifford.

9.This affiant found that the electric usage for the home appears to be exceptionally higher than that of a home of a similar size.In fact, the electrical usage at the address during the past sixteen months averages approximately 3174.06 kilowatt hours per billing cycle.During this period, the residence used 2323.0 kilowatt hours during the lowest consumption billing cycle and 4690.0 kilowatt hours during the highest consumption billing cycle.A billing cycle encompasses approximately one month.

10.This affiant also obtained electrical power records from surrounding residences/customers of Unitil through the subpoena process.The electrical usage in these homes was significantly lower than that of 46 South Road.Unitil records revealed that the residence of 34 South Road utilized an average of 717.69 kilowatt hours per billing cycle with a lowest consumption cycle of 551.0 kilowatt hours and a highest consumption of 1023.0 kilowatt hours.Similarly, the residence of 51 South Road utilized an average of 861.19 kilowatt hours per billing cycle with a lowest consumption cycle of 467.0 kilowatt hours and a highest consumption of 1554.0 kilowatt hours.

11.As is evidenced above, the residence of 46 South Road, [Town omitted], NH utilized over three times the average electrical consumption per billing cycle than its neighbors.[Chart omitted].Investigation has revealed that the residence at 46 South Road is heated by oil.There are no hot tubs, saunas or any other additional such items to explain a higher than usual electrical usage.

12.Based upon this affiant's training and experience, I know that high amounts of electricity are needed by indoor cannabis cultivators to power pumps, timers, heaters, air conditioners, fans and other electrical equipment as well as the 1000 watt lights necessary to grow cannabis.A typical “grow schedule” would show increasing then decreasing electrical use in a 90 to 120 day cycle unless the cultivator is “rotating” young, juvenile and adult plants in an effort to increase his yield.This would extend the periods of high electrical use depending on how many “rotations” of plants a grower has at a given time.

The rest of the affidavit details Trooper Tarr's general knowledge of marijuana grow operations.

The search warrant was executed on February 15, 2011.Based on the items seized from Gifford's home, he was charged in the United States District Court for the District of New Hampshire with manufacturing marijuana, possessing marijuana with the intent to distribute, and possessing a firearm in furtherance of a drug trafficking crime.

B.Procedural History

Following Gifford's indictment, he filed a motion to suppress the evidence seized at his home, arguing, inter alia, that the search warrant affidavit lacked probable cause.Gifford claimed that the warrant was facially insufficient to establish probable cause.In the alternative, he argued that the affidavit had material omissions, including that one of the mentioned comparator houses for purposes of measuring electricity use was substantially smaller than the target house.

The Government objected to Gifford's motion, but before the district court could address it, Gifford and the Government reached a plea agreement wherein the Government agreed to dismiss the firearm count and Gifford agreed to a 48–month disposition on the drug charges.However, Gifford withdrew his plea after the district court challenged the agreed-upon disposition at sentencing.Specifically, the district court stated that it thought that a sentence of between 18 and 24 months was appropriate given that the count driving the high sentence was the firearm count, and if the defendant were to proceed to trial, it was unlikely to impose a sentence of more than 60 months.

After Gifford withdrew his plea, he refiled his motion to suppress.The district court convened a hearing on the motion.At the hearing, the Government acknowledged that the affiant (1) knew that one of the comparator houses, 34 South Road, was substantially smaller than the target house; (2) knew that 51 South Road was similarly sized to the target house; and (3) did not include the fact that 34 South Road was of a substantially smaller size in the affidavit.The Government also conceded that the affiant knew that a horse boarding business operated out of the Gifford home, but the affiant claimed that he saw no signs of its operation when he drove by the residence, even though a banner advertising the business hung outside.²Based on these representations by the Government at the hearing, the parties agreed that the court could rule on the suppression issue on undisputed facts, without receiving live testimony.

After hearing the parties' arguments, the district court held that the suppression of the search of the target residence was warranted under Franks v. Delaware,438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667(1978), because the affiant made a material omission from the search warrant affidavit in reckless disregard for the truth.³Specifically, the court found that the affiant recklessly omitted from his affidavit the fact that the comparator house at 34 South Road was one-third the size of the target house.The district court found this omission to be material because, in its view, if the information about 34 South Road had been included in the affidavit, that affidavit would have failed to establish probable cause for a search.The court additionally observed that there were insufficient indicia of reliability supporting the informant's tip since very little information was provided about the informant.

Compounding the insufficiencies, the court continued, was the fact that the affiant had not provided adequate corroboratingfacts from his own investigation to permit a probable cause finding.The statements in the affidavit regarding the marijuana odor, it found, were not...