United States v. Tibolt

January 23, 1996
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 94-2221
UNITED STATES OF AMERICA,

Appellee,

v.

WILLIAM R. TIBOLT,

Defendant, Appellant.

ERRATA SHEET

The opinion of this Court issued on December 29, 1995, is amended
as follows:

Page 10, line 6, should read: ". . . at the Tibolt residence."

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 94-2221
UNITED STATES OF AMERICA,

Appellee,

v.

WILLIAM R. TIBOLT,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. William G. Young, U.S. District Judge]

Selya, Circuit Judge,

Coffin, Senior Circuit Judge,

and Cyr, Circuit Judge.

Anthony M. Cardinale, with whom Nicholas J. DiMauro and Law

Offices of Anthony M. Cardinale were on brief for appellant.

William C. Brown, Attorney, Appellate Division, Department of

Justice, with whom Donald K. Stern, United States Attorney, was on

brief for appellee.

December 29, 1995

2

3

CYR, Circuit Judge. Following his conviction on a
CYR, Circuit Judge.

money laundering charge, 18 U.S.C. 1956, in the United States

District Court for the District of Massachusetts, William Tibolt

appeals two trial court rulings relating to incriminating finan-

cial records seized from his residence in a warrantless search.

Finding no error, we affirm.

I
I

BACKGROUND
BACKGROUND

Around mid-morning on July 27, 1992, a security alarm

activated in the Dombrowski residence located at 13 Old Salem

Path in Gloucester, Massachusetts. As the security alarm company

JK Security was unable to make telephone contact with the

Dombrowski residence to determine whether the alarm had been set

off accidentally, it telephoned the Gloucester Police to report

the alarm. Officer Joseph Palazzola was dispatched to investi-

gate the alarm report at the Dombrowski residence, which is next

door to the Tibolt residence at 11 Old Salem Path.

Both residences are set well back from Old Salem Path

and largely concealed from view. Two driveways separated by a

tree and some shrubbery lead to the Tibolt home. The Tibolt

mailbox bearing "11 Old Salem Path" is located immediately

to the right of the first Tibolt driveway. The Dombrowski

mailbox marked "dombrowski 13" is located a few feet left

of the second Tibolt driveway, more than 60 feet before the

driveway entrance to the Dombrowski residence at 13 Old Salem

Path.

2

Upon observing the mailbox marked "13," Officer Palaz-

zola mistakenly entered the second driveway to the Tibolt resi-

dence. He checked the exterior of the residence for signs of an

attempted break, or burglary in progress. Although he noted no

signs of forced entry, Palazzola found an unlocked door on the

rear deck. He opened the door and called inside to alert any

occupant, but received no response. Given that the police had

been requested to investigate the alarm, that a door was un-

locked, and that Palazzola had been unable to make contact with

anyone inside the house, he reasoned that the alarm might not

have been activated accidentally.

Palazzola promptly called for backup, and Officer

Thomas Williams arrived within five minutes. Williams likewise

drove to the Tibolt residence rather than the Dombrowski resi-

dence, because he saw Palazzola's squad car parked next to the

Tibolt residence. Williams immediately recognized the Tibolt

residence as having been the target of a prior investigation by a

Gloucester Police drug task force in which he had participated.

Williams was unsure, however, whether the target (viz., Tibolt)

of the task force investigation still owned the residence, or

whether it was still under investigation for drug-related activi-

ties.

Palazzola and Williams decided to make an immediate

warrantless entry through the unlocked rear door, then looked

about for possible explanations for the alarm (e.g., any occu-

pants, a burglar, "whatever"). Their search was limited in

3

scope, eschewing drawers, cabinets and containers. The officers

"secured" each room, to rule out the presence of intruders,

captives, or injured occupants. After sweep-searching the upper

floors, the officers discovered a well-established marijuana

growing facility in the basement, then left to obtain a search

warrant.1 Later, armed with a warrant, the officers searched

the Tibolt premises and seized incriminating financial records

which Tibolt subsequently sought to suppress on the ground that

the search warrant was invalid because the evidence relied on in

the supporting affidavit was itself the fruit of the earlier

warrantless search. After hearing, the district court denied the

motion to suppress, without elaboration.

Following the verdict, Tibolt moved for a new trial on

the ground that he had uncovered "new" evidence relating to the

suppression motion which would (1) impeach Palazzola's suppres-

sion hearing testimony, (2) suggest that the Gloucester Police

deliberately planned to search the Tibolt residence, and (3)

demonstrate a Franks v. Delaware, 438 U.S. 154, 155-56 (1978),

violation. Gloucester Police Department "incident cards," which

record the time, date, desk officer, and location of police

assignments, disclosed that officers had been called to Old Salem

Path on at least fourteen prior occasions to investigate security

1The warrant application related the following grounds: (1)
an intrusion alarm was reported by J.K. Systems to the Gloucester
Police Department; (2) Officers Palazzola and Williams responded
to the alarm report and found a door open; (3) the officers
entered the home to check the premises for intruders; and (4) a
marijuana-growing facility was found in the cellar.

4

alarms. The cards reflect that there were three calls to "13 Old

Salem Path" and ten others to "Old Salem Path." One card, dating

from 1990, indicates that Officer Joseph Palazzola had been sent

to the Dombrowski residence to investigate a security alarm. And

two cards indicate that a desk officer with the initials "J.P."

had dispatched other officers to "Old Salem Path." I n

addition, an affidavit by Officer Theodore Lemieux, dated January

27, 1994 the day after the Tibolt suppression hearing and

submitted in support of a search warrant application in an

unrelated criminal proceeding, stated that

an informant . . . has provided information

that led to the arrest and indictment of one

William Tibolt. In the investigation the

informant provided detailed information in
regard to the location of an indoor growing
operation that Mr. Tibolt had in his home.
The informant provided the name, address as
well as other persons that were involved in
the marijuana growing operation. The infor-
mants [sic] also described the home and the
interior as well as a room in the center of
the basement that [sic] the growing operation
was being conducted. (Emphasis added.)

But for the fact that it contains no indication as to the timing

of the events described in it, the Lemieux affidavit might

conflict with the affidavit submitted in support of the search

warrant application of July 27, 1992, see supra note 1, which

described JK Security's call to the Gloucester Police Department,

the police response, and the officers' unexpected discovery of

marijuana in the Tibolt basement. After hearing, the district

court denied the motion for new trial. United States v. Tibolt,

868 F. Supp. 380, 381-83 (D. Mass. 1994).

5

II
II

DISCUSSION
DISCUSSION

A. Motion to Suppress
A. Motion to Suppress

Tibolt first challenges the district court's pretrial

denial of the motion to suppress the primary evidence of money

laundering: the financial records seized from his residence on

July 27, 1992. He contends that there was no objectively reason-

able basis for believing that a life-threatening burglary was in

progress, even assuming that Officer Palazzola reasonably had

mistaken the Tibolt residence for the Dombrowski residence. But

see infra Section II.B. And he argues that inspection of the

exterior of the Tibolt residence revealed no signs of forcible

entry, and no open windows or doors. See Brief for Appellant at

27-29 (citing United States v. Erickson, 991 F.2d 529 (9th Cir.

1993) (suppressing evidence seized in warrantless search of

residence where officers investigating burglar alarm observed no

indication of forced entry)).

1. Substantive Law
1. Substantive Law

A warrantless search of a private residence is presump-

tively unreasonable under the Fourth Amendment. See Payton v.

New York, 445 U.S. 573, 586 (1980). The government therefore

must prove that the initial search came within some recognized

exception to the Fourth Amendment warrant requirement. See

United States v. Doward, 41 F.3d 789, 791 (1st Cir. 1994), cert.

denied, 115 S. Ct. 1716 (1995). Generally speaking, absent

probable cause and exigent circumstances the Fourth Amendment

6

bars warrantless, nonconsensual entries of private residences.

See United States v. Curzi, 867 F.2d 36, 41 (1st Cir. 1989).2

Probable cause will be found to have been present if

the officers at the scene collectively possessed reasonably

trustworthy information sufficient to warrant a prudent policeman

in believing that a criminal offense had been or was being

committed. See Hegarty v. Somerset Cty., 53 F.3d 1367, 1374 (1st

Cir. 1995), cert. denied, No. 95-629, 1995 WL 625553 (U.S. Dec.

11, 1995); United States v. Zurosky, 614 F.2d 779, 784 n.2 (1st

Cir. 1979) (finding probable cause where police investigated

possible "breaking and entering" at warehouse), cert. denied, 446

U.S. 967 (1980) (citing Brinegar v. United States, 338 U.S. 160,

175-76 (1949)). "In dealing with probable cause, . . . as the

very name implies, we deal with probabilities. These are not

technical; they are the factual and practical considerations of

everyday life on which reasonable and prudent men, not legal

technicians, act." Illinois v. Gates, 462 U.S. 213, 231 (1983).

Exigent circumstances exist where law enforcement

officers confront a "compelling necessity for immediate action

2The government would have us characterize this warrantless
entry as a so-called "community caretaker" search, a warrant
exception applicable to searches "totally divorced from the
detection, investigation, or acquisition of evidence relating to
the violation of a criminal statute." Cady v. Dombrowski, 413

U.S. 433, 441, 447-48 (1973). In light of our alternative
disposition, we need not consider the "community caretaker"
exception. But see id. at 439 (noting "constitutional differ-

ence" between search of home and search of automobile); see also

United States v. Bute, 43 F.3d 531, 535 (10th Cir. 1994) (reading

Cady as applying only to searches of automobiles, not homes);

Erickson, 991 F.2d at 532 (same); United States v. Pichany, 687

F.2d 204, 209 (7th Cir. 1982) (same).

7

that w[ould] not brook the delay of obtaining a warrant." United

States v. Wilson, 36 F.3d 205, 209 (1st Cir. 1994) (citing United

States v. Adams, 621 F.2d 41, 44 (1st Cir. 1980)); United States

v. Almonte, 952 F.2d 20, 22 (1st Cir. 1991), cert. denied, 503

U.S. 1010 (1992). Although "exigency" determinations invariably

are fact-intensive, see United States v. Donlin, 982 F.2d 31, 34

(1st Cir. 1992), "exigent circumstances" commonly include: "(1)

`hot pursuit' of a fleeing felon; (2) threatened destruction of

evidence inside a residence before a warrant can be obtained;

(3) a risk that the suspect may escape from the residence unde-

tected; or (4) a threat, posed by a suspect, to the lives or

safety of the public, the police officers, or to [an occupant]."

Hegarty, 53 F.3d at 1374. The "exigent circumstances" inquiry is

limited to the objective facts reasonably known to, or discover-

able by, the officers at the time of the search. See Illinois v.

Rodriguez, 497 U.S. 177, 186 (1990) (upholding warrantless search

where police officers reasonably, but mistakenly, believed they

had obtained valid "third-party consent" to search residence from

person with authority to consent) (citing Archibald v. Mosel, 677

F.2d 5 (1st Cir. 1982) (invoking "good faith" principle under

"exigent circumstances" exception)).

2. Standard of Review
2. Standard of Review

As mixed questions of law and fact, the "probable

cause" and "exigent circumstances" determinations require bifur-

cated review: whether a particular set of circumstances gave

rise to "probable cause" or "exigent circumstances" is reviewed

8

de novo and findings of fact are reviewed for clear error.

United States v. Goldman, 41 F.3d 785, 786 (1st Cir. 1994)

(probable cause), cert. denied, 115 S. Ct. 1321 (1995); United

States v. Gooch, 6 F.3d 673, 678 (9th Cir. 1993) (exigent circum-

stances). Where, as here, there are no explicit factual find-

ings, the record below is assessed in the light most favorable to

the trial court ruling. See United States v. Baldacchino, 762

F.2d 170, 176 (1st Cir. 1985).

3. Application of Law
3. Application of Law

Tibolt does not challenge the factual findings implicit

in the district court ruling, given that the evidence most

central to the ruling the police descriptions relating to the

alarm report, the locations of the mailboxes, the unlocked door

is undisputed.3 Moreover, these implicit findings unques-

tionably support the challenged legal conclusion that Officer

Palazzola had probable cause to believe a breaking and entering

had been or was being committed at the Tibolt residence.

3On appeal, Tibolt asserts no direct challenge to the
objective "reasonableness" of Palazzola's putative mistake

purportedly caused by the juxtaposition of the Dombrowski mailbox
and the entrance to Tibolt's second driveway in investigating
the Tibolt residence, instead of Dombrowski's, for a burglary in
progress. Rather, he questions only whether Palazzola, despite
his protestations to the contrary, knowingly used this fortuitous
circumstance as a pretext for conducting a warrantless search for
drugs as part of an ongoing task force investigation targeting
the Tibolt residence. The only evidence of such a ruse, however,
was presented in his post-conviction motion. See infra Section

II.B. At the pretrial hearing, the inquiry into Palazzola's

state of mind necessarily turned, for the most part, on the trial
court's observation of Palazzola's demeanor, and its credibility
determination, matters uniquely within the province of the trier
of fact. United States v. Zapata, 18 F.3d 971, 975 (1st Cir.

1994).

9

A security alarm had been activated, and when JK

Security placed a call to the Dombrowski residence, it had

received no answer.4 These circumstances severely undercut any

likelihood that the security alarm had been activated inadver-

tently by a resident. Moreover, upon his arrival approximately

ten minutes later, Palazzola checked all windows and doors at the

Tibolt residence.5 Instead of finding all doors secured, as one

4Tibolt cites cases involving various external indicia of a
"break," see, e.g., Commonwealth v. Fiore, 403 N.E.2d 953, 955

(Mass. Ct. App.) (upholding warrantless search where outer door
found broken off hinges), cert. denied, 449 U.S. 938 (1980), but

no alarm system activation. See Erickson, 991 F.2d at 530, 533

(noting that government, on appeal, had conceded that no "exigent
circumstances" had been shown, given the absence of any activated
security alarm; no visible sign of forced entry; witness reports
that suspected burglars had departed area 30 minutes before
police officers' arrival; and officers' failure to "knock and
announce" before entry); United States v. Moss, 963 F.2d 673,

677, 679 (4th Cir. 1992) (invalidating search because "the
Government has formally conceded that this is not an 'exi-
gent-circumstances case' and does not seek to uphold the search
here on that basis," given that police officer observed "no
[external] indication that any illegal occupant was inside" the
cabin); Commonwealth v. Bates, 548 N.E.2d 889, 892-93 (Mass. Ct.

App. 1990) (invalidating search where police did not even suspect
an ongoing crime, but were merely investigating a "missing
person" report, after waiting over three hours before investigat-
ing missing person's apartment); State v. Morgavi, 794 P.2d 1289,

1292-93 (Wash. Ct. App. 1990) (invalidating search based on
police observation of "a car in front of the garage, opened and
partially broken doors to the garage, an open back door to the
house and an open side door to the garage," but distinguishing
cases where "the police were summoned to the premises by con-
cerned neighbors who had witnessed the burglaries and the flight
of suspects"). We think it clear that the activation of an alarm
system is an external "sign" of a possible forced entry.

5Although the Dombrowski residence bore a "JK Security"
sticker, and the Tibolt residence an "ADT Security" sticker,
there was no evidence that Palazzola had been informed by the
dispatcher that JK Security had reported the alarm. Further,
while dispatchers sometimes write the name of the reporting
security company on the incident cards, see infra Section II.B.,

the investigating officers do not receive these cards for comple-

10

might reasonably expect while the residents are away, he found an

unlocked door on the rear deck and received no response to his

efforts to communicate with anyone who might be inside. These

circumstances significantly enhanced the likelihood of an intrud-

er.

For similar reasons, we conclude that Palazzola was

presented with "exigent circumstances" permitting an immediate

warrantless entry. Without entering, he could not know but what

an intruder had managed to get into the residence, and even

injured or captured a resident, then fled; or had been caught off

guard by the police and remained in the residence with a forcibly

detained resident. Even the authorities cited by Tibolt acknowl-

edge the potential exigencies attending such circumstances. See

Erickson, 991 F.2d at 533 ("In a wide variety of contexts, this

and other circuits have upheld warrantless searches conducted

during burglary investigations under the rubric of exigent

circumstances."); Commonwealth v. Fiore, 403 N.E.2d 953, 955

(Mass. Ct. App.) ("It seems clear to us that a house break

without more as set out in the affidavit raises the possibility

of danger to an occupant and of the continued presence of an

intruder and indicates the need to secure the premises. In such

circumstances `(t)he right of the police to enter and investigate

in an emergency without the accompanying intent to either search

or arrest is inherent in the very nature of their duties as peace

tion until after their investigation of the alarm report. In any

event, Tibolt has not raised this matter. See supra note 3.

11

officers.'") (citation omitted), cert. denied, 449 U.S. 938

(1980)). Hindsight discloses, of course, that Palazzola was

mistaken. Nevertheless, at the time, see Rodriguez, 497 U.S. at

186, an officer confronted with these circumstances reasonably

could have concluded that there was an imminent risk "to the

lives or safety of the public," Hegarty, 53 F.3d at 1374, or to

an injured or immobilized resident. See, e.g., Murdock v. Stout,

54 F.3d 1437, 1443 (9th Cir. 1995) (upholding warrantless search

of residence following burglary report, where investigating

officers found some signs that resident might have been at home

when an intruder entered dwelling, and received no response to

their calls, thereby creating a "fair probability that . . . a

resident might be in need of assistance") (distinguishing prior

circuit precedent in United States v. Erickson, 991 F.2d 529 (9th

Cir. 1993)). Accordingly, the district court did not err in

denying the motion to suppress.

B. Motion for New Trial
B. Motion for New Trial

We turn now to the district court ruling denying a new

trial. Tibolt contends that the "newly discovered" Gloucester

Police "incident cards" and the Lemieux affidavit support a

rational inference that Officer Palazzola committed perjury at

the suppression hearing, in explaining that the misleading

placement of the Dombrowski mailbox at the opening of the second

Tibolt driveway, and his own unfamiliarity with the two residenc-

es, had caused him to go to the Tibolt residence to investigate

the reported alarm at the Dombrowski residence. Tibolt maintains

12

that the incident cards show that Palazzola had been to the

Dombrowski residence at least once before and, therefore, should

have recognized his mistake on this occasion. Further, he

argues, the Lemieux affidavit suggests that Palazzola's "mistake"

was actually part of an elaborate, conspiratorial ruse, manufac-

tured by the Gloucester Police task force to enable a warrantless

search of the Tibolt residence for drugs. Cf. Curzi, 867 F.2d at

43 n. 6 (noting that police may not justify warrantless search by

manipulating events to generate "exigency"). Finally, in the

affidavit supporting the search warrant application submitted on

July 27, 1992 presumably premised solely on the fruits of the

warrantless search the police failed to disclose their prior

investigations of the Tibolt residence for suspected drug activi-

ties. Tibolt insists that the failure to disclose the prior

investigations of the residence constituted a "clear violation"

of Franks v. Delaware, 438 U.S. 154 (1978).

1. Substantive Law
1. Substantive Law

A motion for new trial based on newly discovered

evidence will not be allowed unless the movant establishes that

the evidence was: (i) unknown or unavailable at the time of

trial, (ii) despite due diligence, (iii) material, and (iv)

likely to result in an acquittal upon retrial. United States v.

Ortiz, 23 F.3d 21, 27 (1st Cir. 1994); United States v. Natanel,

938 F.2d 302, 313 (1st Cir. 1991), cert. denied, 502 U.S. 1079

(1992). If, however, the "new" evidence was within the govern-

13

ment's control and its disclosure was withheld, the third and

fourth criteria are less stringent:

The usual locution, taken from Justice
Blackmun's opinion in Bagley, [473 U.S. 667

(1985)], is that the nondisclosure justifies
a new trial if it is "material," it is
"material" only if there is "a reasonable
probability" that the evidence would have
changed the result, and a "reasonable
probability" is "a probability sufficient to
undermine confidence in the outcome." Id. at

682. . . . This somewhat delphic "undermine
confidence" formula suggests that [a] rever-
sal [and a remand for new trial] might be
warranted in some cases even if there is less
than an even chance that the evidence would
produce an acquittal. After all, if the
evidence is close and the penalty signifi-
cant, one might think that undisclosed evi-
dence creating (for example) a 33 percent
chance of a different result would undermine
one's confidence in the result. And while
Bagley appears to give little weight to other

factors--such as the degree of fault on the
prosecutor's part and the specificity of the
defense request--it is not entirely clear
that these variables must be ignored.

United States v. Sepulveda, 15 F.3d 1216, 1220 (1st Cir. 1993),

cert. denied, 114 S. Ct. 2714 (1994).

2. Standard of Review
2. Standard of Review

The denial of a motion for new trial is reviewed only

for manifest abuse of discretion. See United States v. Wright,

625 F.2d 1017, 1019 (1st Cir. 1980). The instant motion for new

trial triggers a two-tier inquiry. First, to the extent the

"new" evidence pertains to the disposition of the pretrial motion

to suppress financial records, wherein the district court was the

trier of fact, Tibolt confronts the daunting task of demonstrat-

ing that the district court committed clear error in determining

14

that the "new" evidence would not have altered its pretrial

factual findings. Zapata, 18 F.3d at 975 (noting that factual

findings and credibility determinations relating to suppression

issues are normally for the trier of fact). Second, Tibolt must

show that the "new" evidence would so undermine the government's

case as to give rise to a "reasonable" probability of acquittal

upon retrial. Sepulveda, 15 F.3d at 1220.6

3. The Incident Cards
3. The Incident Cards

We cannot say that the district court ruling constitut-

ed a manifest abuse of discretion. The district court found,

inter alia, that the police incident reports would not suffice to

undermine Officer Palazzola's credibility; hence, were not likely

to result in an acquittal. Tibolt, 868 F. Supp. at 382. Nor are

we persuaded that Palazzola perjured himself at the suppression

hearing. Rather, he testified simply that he could not remember

having been at the Dombrowski residence prior to July 27, 1992.

In fact, the incident cards show that he was sent there on but

one occasion three years before the pretrial suppression

hearing. Further, this incident card did not even compel the

conclusion that Palazzola went to, or secured, the Dombrowski

residence on that prior occasion. Thus, the district court was

entitled to find that the incident cards did not undermine

Palazzola's claimed lack of memory. Cf. Natanel, 938 F.2d at 313

6We assume, without deciding, that the "new" evidence was
within the government's control and potentially subject to
disclosure. But see infra Section II.B.4 (noting that government

did disclose essential information, later reiterated in Lemieux
affidavit, at pretrial suppression hearing).

15

(noting somewhat lesser burden on new-trial movant where evidence

shows witness's prior testimony was "deliberately false"). Given

their marginal direct probative value, we cannot say that the

incident cards alone were sufficient to generate a "reasonable"

probability that Tibolt would be acquitted upon retrial. Cf.

Sepulveda, 15 F.3d at 1220 n.5 (noting that newly discovered

evidence pertaining exclusively to a government witness's credi-

bility rarely warrants new trial). 4. The Lemieux Affida-
4. The Lemieux Affida-

vit
vit

The district court found the Lemieux affidavit similar-

ly inconclusive. Although the affidavit might contribute to a

plausible inference of police conspiracy, it certainly did not

compel such a finding, especially since its temporal relevance is

so unclear. For one thing, it is not unreasonable to think that

Lemieux may have been imprecise in recollecting the sequence of

the events which had occurred a year and a half earlier. That is

to say, there is nothing in the affidavit to suggest but what

Lemieux may have been remembering that Tibolt was arrested and

that an informant's tip simply corroborated what the officers

themselves accidentally discovered. Nor does the Lemieux affida-

vit, vague as it is, make it probable that an acquittal would

result upon retrial.

In all events, we need not rest our decision solely on

the "credibility" ground, since the district court found also

with respect to the information in the Lemieux affidavit that

Tibolt had not met the first two prongs of the Ortiz test. See

16

Natanel, 938 F.2d at 313 (failure to establish any of the four

Ortiz factors defeats motion for new trial). The court further

found that Tibolt had not shown that this "new" evidence was

either unknown or unavailable at the time of the pretrial sup-

pression hearing, nor that Tibolt had exercised due diligence to

discover the evidence earlier. See Tibolt, 868 F. Supp. at 382

("What is more, the government proffered at the suppression

hearing the fact that Tibolt's home had been the subject of a

local drug investigation before the search, and made available to

Tibolt one of the officers involved in that investigation for

questioning."). At the pretrial suppression hearing, moreover,

the government disclosed to the defense that Officer Williams

participated in a previous task force surveillance of the Tibolt

residence, and that "at that time there were some reports of

possible drug activities involving that house." (Emphasis

added.) This disclosure certainly should have alerted Tibolt to

the probability that an informant was involved. Yet Tibolt

failed to pursue information relating to whether the warrantless

search of July 27, 1992 was a mere "ruse" designed to fabricate a

showing of probable cause. Since the finding that Tibolt failed

to exercise due diligence was not clearly erroneous, see Zapata,

18 F.2d at 975, he may not rely on this evidence to mount a

renewed
attackonthewarrantlesssearchorthesearchwarrantapplication.7

7As noted above, see supra p. 4, Tibolt not only challenges

the pretrial determination that Palazzola's warrantless search

was valid, but cites Franks v. Delaware as authority for a direct

challenge to the subsequent search warrant, which was premised

entirely on the fruits of the earlier warrantless search. A

17

The district court judgment is affirmed.
The district court judgment is affirmed.

defendant is not entitled to a Franks evidentiary hearing,

however, absent a "substantial preliminary showing (1) that a
false statement [or material omission] in the affidavit [support-
ing the search warrant application] has been made knowingly and
intentionally, and (2) that the false statement [or material
omission] is necessary for a finding of probable cause." United

States v. Scalia, 993 F.2d 984, 987 (1st Cir. 1993) (citing

United States v. Rumney, 867 F.2d 714, 720 (1st Cir.), cert.

denied, 491 U.S. 908 (1989)).

We discern no principled basis for treating the Franks claim

differently than Tibolt's direct challenge to the warrantless
search. To the extent the "new" evidence underlying the Franks

hearing request was available prior to trial (i.e., the Lemieux
affidavit) by the exercise of due diligence, Tibolt's post-trial
Franks request based on that evidence is untimely. See supra

Section II.B.4. The marginal probative value of the incident
cards in undercutting Palazzola's pretrial testimony is insuffi-
cient, by itself, to support a "substantial preliminary showing"

that the evidence, if disclosed, would have altered the decision
that there was probable cause to issue a search warrant. See

supra Section II.B.3; see also, e.g., United States v. Hiveley,

61 F.3d 1358, 1360 (8th Cir. 1995) (noting that "the 'substantial
showing' requirement needed to obtain a Franks hearing is not

lightly met").

18