United States Court of Appeals
For the First Circuit
No. 02-1938
UNITED STATES OF AMERICA,
Appellee,
v.
JOHN B. STEWART,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Gene Carter, U.S. District Judge]
Before
Lynch, Circuit Judge,
Coffin and Porfilio,* Senior Circuit Judges.
Bruce M. Merrill for appellant.
F. Mark Terison, Senior Litigation Counsel, with whom Paula D.
Silsby, United States Attorney, was on brief for appellee.
July 29, 2003
*
Of the Tenth Circuit, sitting by designation.
COFFIN, Senior Circuit Judge. Appellant John B. Stewart
entered a conditional guilty plea to a cocaine distribution charge
after the district court denied his motion to suppress physical
evidence seized from his home pursuant to a warrant. The district
court concluded that the state law enforcement agents who secured
the warrant recklessly left out of their affidavit negative facts
about two confidential informants, but that probable cause to
support issuance of the warrant existed even with full disclosure
of the withheld material. See United States v. Stewart, 183 F.
Supp. 2d 91, 102 (D. Me. 2002). At oral argument, appellant
acknowledged that the government's omissions did not negate
probable cause, but maintained that the seized evidence must
nonetheless be suppressed to deter future abuses of Fourth
Amendment rights. We conclude that, whether or not suppression
ever would be an available remedy for a Fourth Amendment violation
when an affidavit is otherwise adequate, it is unwarranted here
because the strength of the probable cause showing remains
unusually high even after consideration of the omitted material.
I. Background
Appellant was arrested in July 2001 after a four-year
investigation of his involvement in cocaine trafficking by the
Maine Drug Enforcement Agency (MDEA). Among the agents' sources of
information were three confidential informants, two identified
individuals, three concerned citizens, and four controlled
-2-
purchases. Search warrants were executed on appellant's residence
in Rockport, Maine, on June 18 and July 13, 2001, by federal, state
and local law enforcement authorities. In the first search, agents
seized 512.6 grams of cocaine, two sets of scales, $27,546 in cash,
and firearms. The second search yielded 490.3 grams of cocaine and
about $2,000 in cash.
Appellant challenged both warrants, arguing that the state
drug agents had misrepresented the informants' reliability by
excluding significant negative information about their histories.
With the government's agreement, the court held a Franks hearing to
explore the validity of the warrants. See Franks v. Delaware, 438
U.S. 154 (1978). After two days of testimony, the court ruled that
MDEA agents and the assistant attorney general supervising the case
had recklessly excluded multiple pieces of information from the two
warrant affidavits and intentionally omitted one material fact from
the second warrant application.
Missing from the first affidavit was the following
information: (1) one of the two prime informants, Carl Creamer, had
been hospitalized at a psychiatric facility for ten days in April
2001, two months before he became an active informant and made a
controlled purchase of cocaine from appellant; (2) Creamer was
arrested in late May 2001, at a time when he was being evaluated as
a possible informant, for operating under the influence and
marijuana possession; and (3) the other prime informant, Karen
-3-
York, had been arrested and charged with a drug-related crime in
Rhode Island in November 2000. As for the second affidavit, the
district court again characterized the exclusion of York's Rhode
Island drug arrest as reckless, and it deemed intentional the
agents' and prosecutor's failure to reveal that York had been
present at appellant's home – and in possession of a quantity of
cocaine – when the first warrant was executed.
The court concluded, however, that even if the improperly
omitted information had been included in the warrant applications,
probable cause nonetheless would have been established. It
therefore denied appellant's suppression motion, leading to his
conditional guilty plea. Because the charge stemming from the July
search was dropped, we address on appeal only the first search
warrant but consider the second affidavit to the extent that it
adds context for the earlier conduct.
II. Discussion
Appellant's concession that the first warrant application
established probable cause to search his home even when adjusted to
include all relevant information makes it unnecessary for us to
review the application's contents to determine whether the
necessary threshold was met. Indeed, the district court's analysis
of probable cause was thorough and persuasive, and had the issue
been contested, we in all likelihood would have adopted its
determination as our own. Appellant instead presses an argument
-4-
that, despite the omissions' lack of material impact on the
probable cause determination, the district court erred by not
ordering suppression as a sanction for the misconduct of the state
officials. As we now explain, whether Franks permits such a remedy
is an issue we need not reach.
Both Franks and our own related precedent suggest that
suppression should be ordered only if the warrant application,
cleansed of any false information or clarified by disclosure of
previously withheld material, no longer demonstrates probable
cause. See Franks, 438 U.S. at 156 (holding that a search warrant
must be voided and the fruits of the search suppressed if perjury
or reckless disregard for the truth is established and "the
affidavit's remaining content is insufficient to establish probable
cause"); see also United States v. Higgins, 995 F.2d 1, 4 (lst
Cir. 1993) ("When a defendant offers proof of an omission, the
'issue is whether, even had the omitted statements been included in
the affidavit, there was still probable cause to issue the
warrant.'" (citation omitted)); United States v. Young, 877 F.2d
1099, 1102 (lst Cir. 1989) (misstatements in a warrant affidavit
are "immaterial" where "there is still a more than adequate showing
of 'probable cause'").
These cases, however, while establishing that suppression is
required when a challenged warrant is stripped of facts material to
the determination of probable cause, do not explicitly prohibit a
-5-
court from utilizing suppression, as a matter of discretion, to
serve the exclusionary rule's prophylactic purpose, deterring
police misconduct. See Franks, 438 U.S. at 167 (referring to the
holding in the case as related to "when exclusion of the seized
evidence is mandated" (emphasis added)); Sanna v. DiPaolo, 265 F.3d
1, 7 (lst Cir. 2001) (exclusion of evidence derived from Fourth
Amendment violations "is designed to deter law enforcement
personnel from disregarding constitutional mandates").
But any such hurdle would be a high one. If suppression were
authorized in such circumstances, it would be utilized sparingly
and in rare and particularly egregious situations. See United
States v. Hasting, 461 U.S. 499, 506-07 (1983). Concededly, there
is evidence in this case of a disturbing pattern. Not only did the
district court supportably find four reckless omissions and one
intentional withholding of information in the two warrant
applications, but also of significance are the seeming
inconsistencies in the agents' testimony at the Franks hearing
about who knew the undisclosed information, and when.1
1
For example, Agent Deetjen testified that he told Supervisor
Connick about Creamer's psychiatric hospitalization shortly after
Creamer was interviewed on April 12, 2001, but Connick testified
that that information was not known when Agent Woodman's affidavit
was prepared for the mid-June search. Woodman and Assistant
Attorney General Nomani also testified that they did not have that
information. Former Special Agent Pease, however, testified that
he advised both Connick and Nomani of this information, and that
Connick appeared to have already known about it. In addition,
Pease testified that he discussed York's Rhode Island arrest with
Nomani and Connick before the first search warrant. They both
-6-
Yet the showing of probable cause in the first warrant
application, even taking into consideration the omissions, could
hardly have been stronger. Three days before the search warrant
was executed, during a controlled purchase by Creamer that was
recorded by agents, appellant asserted that he expected to have
"plenty" of additional cocaine the following Monday, the day of the
search. Certainly in the context of the ongoing investigation,
which included three previous controlled buys, that statement
provided compelling evidence that appellant would be found in
possession of cocaine on June 18. Although full disclosure of the
informants' pasts was necessary to meet the government's obligation
to give the magistrate judge all relevant information, see United
States v. Nelson-Rodriguez, 319 F.3d 12, 33 (lst Cir. 2003) ("an
issuing judge . . . relies on the government to present the full
case for its belief in probable cause, including any
contraindications") (footnote omitted), the other available facts
rendered the undisclosed information of extremely minor
significance in the probable cause calculus.
In these circumstances, we find no error in the district
court's denial of appellant's suppression motion and consequently
affirm the judgment of conviction. However, as we said in another
case in which we deemed the probable cause showing adequate despite
testified, however, that they were unaware of that arrest before
the warrant was obtained.
-7-
some deficiencies in the warrant application, "'the best way to
ensure that' the Fourth Amendment's probable cause requirement is
complied with is to meticulously comply with it." United States v.
Khounsavanh, 113 F.3d 279, 289 (lst Cir. 1997) (citations omitted).
Meticulous compliance involves more than an agent's own
judgment as to the ultimate importance of a piece of information to
a judgment of probable cause. The agent also has the obligation,
in the interest of both judicial economy and fairness, to ask the
further question, "Is this information so trivial, remote or
irrelevant that no reasonable official could assign it weight in
coming to a decision to issue the warrant?" Unless an affirmative
answer can be given, the information should be included – even if,
in context, its weight seems too slight to tip the balance away
from a finding of probable cause.
Indeed, this case calls for a word of caution. The
government's case has needlessly suffered from the state agents'
inappropriate decisions to sanitize the information supplied to
support the search warrant. It is clear that federal courts have
inherent supervisory authority and may issue a variety of orders
short of suppression for misconduct, including discipline of
counsel. It also is clear that the office of the United States
Attorney has some responsibility for the evidence it presents, even
when the evidence is gathered by state authorities. We stress the
need for both federal and state authorities to cooperate to the end
-8-
that applications for search warrants meet the highest standards of
professionalism and make it unnecessary for district courts to
consider the available range of escalating sanctions. We direct
the Clerk of Court to serve copies of this opinion on the Attorney
General of Maine and the head of the Maine Drug Enforcement Agency.
Affirmed.
-9-