United States v. Dessesaure

United States Court of Appeals
For the First Circuit

No. 04-2170

UNITED STATES OF AMERICA,

Appellant,

v.

EARL DESSESAURE,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Nancy Gertner, U.S. District Judge]

Before

Lynch, Circuit Judge,
Campbell and Cyr, Senior Circuit Judges.

Robert E. Richardson, Assistant United States Attorney, with
whom Michael J. Sullivan, United States Attorney, and Cynthia A.
Young, Assistant United States Attorney, were on brief, for
appellant.
Steven L. Winniman for appellee.

November 30, 2005
 LYNCH, Circuit Judge. The prosecution takes this

interlocutory appeal, under 18 U.S.C. § 3731, from the district

court's partial allowance of the defendant's motion to suppress

evidence and denial of the prosecution's motion for

reconsideration. United States v. Dessesaure (Dessesaure I), 314

F. Supp. 2d 81 (D. Mass. 2004); United States v. Dessesaure

(Dessesaure II), 323 F. Supp. 2d 211 (D. Mass. 2004).

In sum, the district court suppressed evidence seized

from Earl Dessesaure's apartment (consisting of heroin, drug

paraphernalia, a gun, and bullets) pursuant to a warrant because

the warrant affidavit contained information that the police

observed when they earlier illegally entered the apartment to

"freeze" it and because of material misstatements in that

affidavit. Accepting as accurate these factual conclusions, we

nonetheless disagree with the trial court's ultimate conclusion

that suppression was required. Rather, we find that, even after

striking the offending material from the warrant, there was

adequate basis for a probable cause determination and the officers

would have sought a warrant regardless. We reverse.

I.

For our purposes, a greatly streamlined version of the

facts taken from the suppression hearing, geared to the issues

described above, is all that is necessary.

-2-
 The investigation of Dessesaure began when Officer John

Broderick, Jr. received information from "different sources" that

Dessesaure was selling heroin out of a maroon Cadillac Escalade

with a particular license plate.1 Dessesaure I, 314 F. Supp. 2d at

83. The license plate number given by the sources matched that of

a maroon Cadillac Escalade registered to Dessesaure at an address

in Quincy, Massachusetts.

In the early hours of February 24, 2003, police began

surveillance on the Quincy apartment. Id. at 86. At 9:00 a.m.,

Officer Paul Quinn observed Dessesaure leave the Quincy apartment

and throw a trash bag in a dumpster before he drove off. Id.

Quinn recovered the trash bag and found a "residue of an unknown

powder substance" and a utility bill with Dessesaure's name and the

address of the Quincy apartment. The residue was not field tested

to confirm that it was heroin. Id. Officers followed Dessesaure

in his Escalade to a home in Boston's Dorchester neighborhood and

saw Dessesaure enter, carrying a black shoulder bag. Id. He

1
Broderick testified at the suppression hearing about the
information he received from these sources. The district court
described Broderick's testimony about the sources as "sloppy,
inconsistent, and worse, not credible." Dessesaure I, 314 F. Supp.
2d at 84. In particular, the court focused on the fact that
Broderick had discarded his notes about the statements made by the
sources and the lack of other evidence supporting the credibility
of the sources. Id. at 84-86. Nonetheless, the court concluded
that this "vague information from sources without any description
of their basis of knowledge" could be considered when evaluating
whether the information in the warrant affidavit could establish
probable cause. Id. at 94.

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emerged two minutes later, as did his girlfriend, Tina Tate. Id.

at 86-87. The police followed Dessesaure to Brigham and Women's

Hospital, where Tate went in and returned ten minutes later. Id.

at 87. The police then lost surveillance for some time. When they

reestablished contact with the car again at approximately 11:15

a.m., Dessesaure and Tate were returning to Quincy. Id.

Dessesaure made a number of evasive maneuvers as he drove and did

not take the most direct route back to the Quincy apartment. Id.

Officer Broderick testified that such driving is often employed by

drug traffickers to see if they are being followed by law

enforcement officers.2 Id.

Dessesaure and Tate returned to the Quincy apartment.

Approximately 20 minutes later, Dessesaure left alone and drove

into Boston, followed by the officers. Id. Once in Boston,

Dessesaure pulled his Escalade over on a street in the South End

and picked up a man, Nelson Boyd. Dessesaure drove Boyd for a few

blocks and stopped. Id. Boyd got out of the car and Dessesaure

drove away. Police officers, including Broderick, stopped Boyd and

searched him, recovering a plastic bag they supposed, based on

their experience, contained heroin. Id. Boyd lied, telling

2
In Dessesaure I, the district court found that this
conclusion "made no sense." 314 F. Supp. 2d at 87. In Dessesaure
II, however, it amended this finding "to reflect the fact that
Dessesaure may well have been driving erratically even while going
on a routine errand with his girlfriend." 323 F. Supp. 2d at 217
n.11.

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officers that he had never even been in the Escalade. As to

whether Boyd acquired the heroin while in Dessesaure's car, Officer

Juan Seoane, who, along with Broderick, had been following

Dessesaure before Dessesaure picked up Boyd, testified that Boyd

did not appear to be carrying anything when he entered the vehicle.

Id. However, Seoane also testified that he could not see an

exchange being made while Boyd was in the Escalade. The district

court noted that "the bag was small and would not necessarily have

been apparent to the surveilling officers." Id.

While Broderick remained behind with Boyd, other

officers, including Officer Seoane, continued to follow the

Escalade. Dessesaure drove erratically after dropping Boyd off.

Id. Seoane testified that, based on his experience, Dessesaure's

driving was consistent with that of drug dealers who, after

conducting a drug sale, attempt to make sure that they are not

being followed. Id. Once the officers following Dessesaure were

informed that heroin had been found on Boyd, they pulled over the

Escalade. While the officers obtained no contraband from a pat-

frisk of Dessesaure and a search of the car, Seoane noted that

Dessesaure's pants zipper was open and his shirt was pulled out

through his fly. Id. Seoane testified that in his experience, it

was common for a drug dealer to hide his wares in his rectum to

avoid detection. Id. at 87-88. The implication was that

Dessesaure had put drugs in his rectum at home and just had

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retrieved a bag to sell to Boyd. Dessesaure was arrested on the

street by Officer Seoane. Id.

Officers took Dessesaure to the station house to be

booked; Seoane followed them in Dessesaure's car. Broderick

arrived a short time later. Broderick questioned Dessesaure at the

booking desk. Both Broderick and Dessesaure testified that

Broderick told Dessesaure he was going to get a warrant to search

the Quincy apartment. When Broderick asked Dessesaure where he

lived, Dessesaure replied that he lived in Roxbury. That was not

true; he lived in Quincy. Broderick testified that he warned

Dessesaure at the booking desk that if heroin was found in his

apartment, his girlfriend could be charged. Broderick stated that

Dessesaure then informed him of the location of the heroin in the

Quincy apartment, with the hope that his girlfriend would not be

charged. Id. at 89. Dessesaure denied ever making these

statements. The district court noted that Broderick could not

satisfactorily explain why these statements were not recorded in

any way, and thus gave "no credit to Broderick's claims that

defendant made statements about drugs in his apartment."3 Id.

3
In Dessesaure I, the district court found that there was an
inconsistency between Broderick's statement that he told Dessesaure
his girlfriend could be charged and his earlier testimony that he
did not believe the girlfriend was involved. 314 F. Supp. 2d at 89
& n.11. In Dessesaure II, the district court modified this
finding, stating that the issue of "[w]hether Broderick believed
Dessesaure's girlfriend was an 'active participant' in drug dealing
or not a participant at all" was immaterial. 323 F. Supp. 2d at
215.

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After questioning Dessesaure, Broderick and other officers took

Dessesaure's keys and proceeded to the Quincy apartment for the

purpose of "freezing" it on Broderick's way to get a warrant. Id.

The goal of a "freeze," it seems, is to secure a location to

prevent its occupants from destroying evidence while a search

warrant is being obtained.

From the record, the government suggests to us and the

district court that Broderick thought he could enter the apartment

to "freeze it" absent exigent circumstances based on vague and

broad language in a state court opinion. See Dessesaure II, 323 F.

Supp. 2d at 216 & n.10 (discussing Commonwealth v. Alvarez, 661

N.E.2d 1293 (Mass. 1996)). The testimony of the officers at the

suppression hearing, however, dealt more with whether there were

exigent circumstances justifying the pre-warrant entry.

Broderick testified that at the station house Seoane told

him that as Dessesaure was being arrested, Desseaure had yelled

something to the gathering crowd about calling "his peeps."

Dessesaure I, 314 F. Supp. 2d at 88. Broderick took this statement

to be an attempt by Dessesaure to communicate the fact of his

arrest to people who might be in a position to destroy evidence; he

testified that he believed Dessesaure's statement created exigent

circumstances necessitating a "freeze" of Dessesaure's apartment.

Id. at 88. The district court did not believe Broderick, finding

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that he had "fabricated [Dessesaure's] alleged statement."4 Id.

Seoane testified that at the station house, he witnessed Dessesaure

sign a written waiver of his Miranda rights. The government,

however, was unable to produce the signed waiver, leading the

district court to the "inevitable conclusion that [the waiver]

simply never existed." Id. at 89 n.12.

At the station house, Seone followed up on his earlier

observation of Dessesaure's open pants zipper by conducting a strip

search of Dessesaure. Id. at 88. He found that Dessesaure had

secreted a plastic bag containing six smaller plastic bags of

heroin in his rectum. Seoane also found sixty dollars in

Dessesaure's shirt pocket. Id. Seoane testified that Dessesaure

later told him he was selling bags of heroin for sixty dollars, but

the district court noted that "[t]his statement was not recorded in

any police document." Id. at 88-89.

In the meantime, Broderick and the officers used

Dessesaure's keys to enter the Quincy apartment and found Tina Tate

4
In Dessesaure I, the court found that this fabrication came
"when [Broderick] knew the warrantless entry was being challenged
and he needed to come up with some exigency to justify it." 314 F.
Supp. 2d at 88. In Dessesaure II, however, the court modified this
finding, and held that "the record is not clear about what Officer
Broderick specifically knew or did not know of the Court's concerns
at the moment he took the stand, or whether he gleaned that concern
from his questioning at the hearing or from his pre-trial
preparation, or was just 'gilding the lily,' as they say, on his
own." 323 F. Supp. 2d at 214. Nonetheless, the court still
concluded that "what Broderick reported Dessesaure had said at his
arrest was not true." Id.

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inside. Id. at 89. The officers detained Tate and made a number

of observations which were used shortly thereafter in the warrant

affidavit. The items observed and recited in the affidavit

included "sixteen (16) 'bundles' of glassine bags, five (5) loose

glassine bags, a large plastic bag containing a powder believed to

be Heroin, a digital scale, a roll of tape, a box containing

hundreds of empty glassine bags, a bag of small black elastics, a

ceramic plate with two plastic [transit] passes." Broderick

testified that he then telephoned back to the station house, where

Dessesaure was being detained, and informed Seoane what the

officers had found in Dessesaure's apartment. Id. at 90. Seoane

testified that when he informed Dessesaure what was found during

the "freeze" of the apartment, Dessesaure gave him additional

information about the drugs. Id. The district court disbelieved

Seoane's testimony on this point. Id. ("I do not find Seoane's

account of Dessesaure's statements credible.").

After five to ten minutes in Dessesaure's apartment,

Broderick went to the District Attorney's office to prepare a

warrant affidavit and to apply for a search warrant, as he had

earlier said that he would, leaving behind other officers at the

apartment to maintain the freeze. In the warrant affidavit,

Broderick included the following: (1) information he received from

his sources before the police began surveillance; (2) the

registration information of the Escalade showing that it belonged

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to Dessesaure and was registered at the Quincy address; (3) a

description of the February 24th surveillance of Dessesaure, as

related above; (4) the fact that Dessesaure had concealed bags of

heroin in his body; (5) the statements Dessesaure purportedly made

at the station regarding the location of heroin in the Quincy

apartment, both before and after the freeze; and (6) the items

observed in plain view at the apartment during the freeze. Id.

The magistrate granted the warrant application. During the search

pursuant to this warrant, officers seized a gun, bullets, more

drugs and drug paraphernalia, money, and documents, in addition to

the items which been observed during the pre-warrant search. Id.

Dessesaure challenged his arrest as being without

probable cause and sought to suppress evidence from the time of the

arrest, from his person while he was at the station house, and from

his apartment. The district court found that, while it was "a

close case," there was probable cause for Dessesaure's arrest on

the street. Id. at 91. The search at the station house was, as a

result, also justified as a search incident to a lawful arrest.

Id. Nonetheless, the district court granted Dessesaure's motion to

suppress the evidence found in his apartment on the grounds that

there was no exigency that would justify a warrantless entry and

that any testimony by Broderick suggesting exigent circumstances

was not credible. Id. The district court found that absent

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exigency, the pre-warrant entry into the apartment constituted a

violation of the Fourth Amendment. Id. at 92-93.

The district court further found that the warrant

affidavit used tainted information, that is, (1) the observations

made pursuant to the illegal pre-warrant entry, and (2) Broderick

and Seoane's testimony as to statements made by Dessesaure while in

custody regarding the location of heroin in his apartment, which

the court had found to be fabricated. Id. at 93-94. The district

court concluded that the remaining untainted evidence "[did] not

suffice to create probable cause to conclude that Dessesaure kept

drugs in his apartment, or anywhere else besides his car" and so

suppressed all the evidence found in the apartment. Id. at 94.

The government appeals only this finding as to probable cause and

the suppression of the evidence from Dessesaure's apartment,

leaving unchallenged the court's underlying findings regarding the

legality of the warrantless entry and the falsity of the officers'

testimony.5

II.

We turn to whether the district court erred in

suppressing the evidence seized pursuant to the search warrant.

Our review is bifurcated; factual findings are examined for clear

5
To summarize, the evidence from Dessesaure's home that the
government argues the district court improperly suppressed includes
drugs and drug paraphernalia, glassine bags and bag ties, a digital
scale, a ceramic plate with two transit passes, a roll of tape, a
gun, bullets, money, and documents.

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error, while ultimate questions as to whether the later search

under the warrant violated the Fourth Amendment are reviewed

de novo. See United States v. Weidul, 325 F.3d 50, 51 (1st Cir.

2003).

The district court's analysis, as it correctly

articulated, was governed by Franks v. Delaware, 438 U.S. 154

(1978), and Murray v. United States, 487 U.S. 533 (1988). Under

the procedure set forth in Franks, a court faced with a warrant

affidavit which includes deliberately or reckless false statements

must set aside those false statements and determine whether the

remaining information in the affidavit sets forth sufficient facts

to support a finding of probable cause. Franks, 438 U.S. at 171-

72. Although it is not explicitly tied to the "independent source"

doctrine,6 Franks requires an analogous inquiry: whether, ignoring

the false statements, the remaining information in a warrant

application is an independent source of the discovered material.

In Murray, police officers, after conducting an illegal

search of a warehouse, obtained a search warrant for that

warehouse, although the information observed during the illegal

6
The independent source doctrine acts as a limitation on the
exclusionary rule of the Fourth Amendment. The doctrine "allows
admission of evidence that has been discovered by means wholly
independent of any constitutional violation." Nix v. Williams, 467
U.S. 431, 443 (1984); see also Wong Sun v. United States, 371 U.S.
471, 487 (1963) ("[T]he exclusionary rule has no application [when]
the Government learned of the evidence 'from an independent source'
. . . ." (quoting Silverthorne Lumber Co. v. United States, 251
U.S. 385, 392 (1920))).

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search was not included in the warrant affidavit. 487 U.S. at 535-

36. Murray held that the "ultimate question" was "whether the

search pursuant to warrant was in fact a genuinely independent

source of the information and tangible evidence at issue here."

487 U.S. at 542. The Court held that in two situations, the search

would not be an independent source: (1) "if the agents' decision to

seek the warrant was prompted by what they had seen during the

initial entry"; and (2) "if information obtained during that entry

was presented to the Magistrate and affected his decision to issue

the warrant." Id.

Unlike in Franks, the constitutional violation in this

case was not solely the inclusion of deliberate or reckless false

statements in a warrant application, but also an illegal search.

However, unlike in Murray, the observations made during the illegal

entry were included in the warrant affidavit, making this situation

ripe for a Franks analysis.

This case requires us to attempt to reconcile the Court's

instructions in Franks and Murray. Prior to Murray, this court

held that, when considering a warrant that contained information

obtained through an illegal search, a simple Franks analysis was

appropriate. See United States v. Veillette, 778 F.2d 899, 903-904

(1st Cir. 1985) ("[B]ales of marihuana [observed during an illegal

search] should be set to one side . . . and the remaining content

of the affidavit examined to determine whether there was probable

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cause to search, apart from the tainted averments."). Most other

circuits followed the same approach. See, e.g., United States v.

Alexander, 761 F.2d 1294, 1300 (9th Cir. 1985); United States v.

Antone, 753 F.2d 1301, 1307 (5th Cir. 1985); James v. United

States, 418 F.2d 1150, 1151 (D.C. Cir. 1969). The question for us

now is whether the Court's subsequent decision in Murray requires

a different analysis in the context of observations made during an

illegal search.

Murray states as a first criterion that a search pursuant

to a warrant does not come from an independent source "if the

agent's decision to seek the warrant was prompted by what they had

seen during their initial [illegal] entry." 487 U.S. at 542.

Again, there is a seeming tension between this inquiry and Franks,

which only requires a determination that the affidavit still

supports a finding of probable cause if the illegal information is

excised. See United States v. Beltran, 917 F.2d 641, 644 (1st Cir.

1990) (noting but not resolving this tension). The cases on

Murray's first prong are reconcilable, as we discuss below.

As to the second prong, read literally, the Murray

statement that a search pursuant to a warrant would not be an

"independent source" of the seized material "if information

obtained during [the initial] entry was presented to the Magistrate

and affected his decision to issue the warrant," Murray, 487 U.S.

at 542, seems in considerable tension with continued use of the

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Franks procedure for evaluating tainted material in warrant

applications. When a warrant application contains deliberate or

reckless false statements, Franks does not require a separate

evaluation of whether the warrant magistrate's decision was

"affected" by the falsehoods.

Indeed, since illegally obtained information could

"affect" the decision of the magistrate without changing the

ultimate decision to grant the warrant, broad application of the

additional analysis suggested by Murray would work against the

principle that the "fruit of the poisonous tree" doctrine not be

used to place the government in a worse position than it would have

been in absent its illegal conduct. See Nix v. Williams, 467 U.S.

431, 443 (1984); see also United States v. Jenkins, 396 F.3d 751,

758-59 (6th Cir. 2005).

Every circuit to consider the question has held that the

Court's instruction in Murray to analyze whether the tainted

information affected the magistrate's decision to issue the warrant

did not mean to change the dominant pre-existing approach under

Franks. See Jenkins, 396 F.3d at 757-60 ("[A]uthority from this

and other circuits, as well as the principles underlying the Murray

rule, support an interpretation of the independent source rule that

incorporates consideration of the sufficiency of the untainted

affidavit to see if probable cause exists without the tainted

information."); United States v. Markling, 7 F.3d 1309, 1316 (7th

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Cir. 1993) ("[T]here is no indication in Murray that the Court

intended to reject -- or even that it was considering -- the

prevailing Franks-based rule. A rule focusing on the tainted

information's actual influence on a particular magistrate would be

inconsistent with Franks; yet, the Court in Murray did not cite

Franks, much less attempt to reconcile Murray with Franks.");

United States v. Restrepo, 966 F.2d 964, 968-70 (5th Cir. 1992)

("The relevant phrase ('affected his decision to issue the

warrant'), almost certainly was simply a paraphrase -- albeit a

confusing one when considered noncontextually -- of the approach

long sanctioned in the circuits."); United States v. Herrold, 962

F.2d 1131, 1141 (3d Cir. 1992) ("[T]he Court's use of 'affect' in

Murray must be understood to signify affect in a substantive

manner." (emphasis in original)). We agree.

Furthermore, other circuits, including this one, have

implicitly adopted the same approach, applying the Franks analysis

without engaging in consideration of the effect of the illegality

on the magistrate's thought process as suggested by Murray. See

United States v. Ford, 22 F.3d 374, 379 (1st Cir. 1994); United

States v. Davis, 313 F.3d 1300, 1304 (11th Cir. 2002); United

States v. Halliman, 923 F.2d 873, 880-81 (D.C. Cir. 1991); United

States v. Gillenwaters, 890 F.2d 679, 681-82 (4th Cir. 1989).

We hold that the Court in Murray did not intend to add

anything to the pre-existing Franks approach to evaluating warrant

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applications containing tainted information when it stated that

courts should ask whether such information "affected [the

Magistrate's] decision to issue the warrant." Murray, 487 U.S. at

542. Thus, when faced with a warrant containing information

obtained pursuant to an illegal search, a reviewing court must

excise the offending information and evaluate whether what remains

is sufficient to establish probable cause.

There of course remains the separate question of whether

the first Murray requirement -- that the police would have sought

the warrant even in the absence of the tainted material -- was

meant to place an additional gloss on the Franks analysis.

III.

Two questions must be addressed here: (1) whether "the

agents' decision to seek the warrant was prompted by what they had

seen during their initial entry," Murray, 487 U.S. at 542, and (2)

whether the affidavit contained sufficient facts to support

probable cause when the offending facts were excised.7 We address

the probable cause issue first.

As to probable cause, the district court concluded that

the untainted facts in the warrant application were insufficient to

support probable cause for a search of the apartment. Dessesaure

7
We take it as given that the warrant affidavit contains
deliberate or reckless falsehoods -- the station house statements
purportedly made by Dessesaure -- and information obtained pursuant
to an illegal search -- the observations of the officers during
their "freeze" of Dessesaure's apartment.

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I, 314 F. Supp. 2d at 94. The district court framed the second

question as asking whether officers would have sought the warrant

if their illegal search had turned up nothing, and concluded that

the officers would not have continued pursuing the warrant. We

review the conclusion that the cleansed affidavit was insufficient

under the special de novo review provisions set forth in Ornelas v.

United States, 517 U.S. 690 (1996). See United States v. Smith,

423 F.3d 25, 31 n.4. (1st Cir. 2005) (explaining that under

Ornelas, review of the Fourth Amendment conclusion is de novo, but

deference is owed to the inferences drawn from facts found by the

issuing court and by law enforcement officers).8 As to the

8
There is a separate question of the lens through which the
action of the issuing magistrate is viewed. In Illinois v. Gates,
462 U.S. 213 (1983), the Court held that "after-the-fact scrutiny
by courts of the sufficiency of an affidavit should not take the
form of de novo review." Id. at 236. Rather, "[a] magistrate's
determination of probable cause should be paid great deference by
reviewing courts." Id. (internal quotation marks omitted). Thus,
the issuing magistrate's decision should be reviewed to determine
only that there was a "substantial basis for . . . [concluding]
that a search would uncover evidence of wrongdoing." Id. (omission
and alteration in original) (internal quotation marks omitted); see
also United States v. Ribeiro, 397 F.3d 43, 48 (1st Cir. 2005)
(using "substantial basis" analysis). An aspect of this deference
is that "[i]n a doubtful or marginal case, the court defers to the
issuing magistrate's determination of probable cause." United
States v. Greenburg, 410 F.3d 63, 67 (1st Cir. 2005) (quoting
United States v. Barnard 299 F.3d 90, 92-93 (1st Cir. 2002));
see also Gates, 462 U.S. at 236 n.10. There is a split of
authority on whether, in a criminal case, deference to the decision
of the issuing magistrate still applies when material portions of
an affidavit are stricken for intentional misrepresentation or
illegality. Compare United States v. Barajas-Avalos, 377 F.3d
1040, 1058 (9th Cir. 2004) (de novo review), and United States v.
Elkins, 300 F.3d 638, 651-52 (6th Cir. 2002) (same), with United
States v. Kirk, 781 F.2d 1498, 1505-06 (11th Cir. 1986) (applying

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question regarding Murray's first prong, we review the district

court's conclusions of law de novo, and, giving the defendant the

benefit here, we review the factual determination under a clear

error standard. The district court was in error.

A. Probable Cause

We find that the affidavit still contained sufficient

information to support probable cause to search the Quincy

apartment even after striking from it all evidence found by the

district court to either be untruthful or illegally obtained.

What concerned the district court was whether there was

probable cause to search Dessesaure's apartment, as opposed to his

car. The court reasoned that just because a defendant is arrested

dealing drugs from his car does not mean that there is probable

cause to believe that the defendant's home would likely yield

evidence connected with his drug dealing. Dessesaure I, 314 F.

Supp. 2d at 94. The government in response talks about the

inherent unlikelihood that the defendant would store valuable drugs

in the car, or insert drugs into his rectum while in the car. We

need not analyze the district court's proposition, because here

there was far more evidence for probable cause than simply the

drugs found in Dessesaure's car and on his person.

substantial basis test). This circuit has never squarely
confronted this issue, and the parties here do not address it.
Giving the defendant the benefit of the rule favorable to him,
arguendo, we do not rely on any presumption in favor of the issuing
magistrate's determination.

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 The vehicle in which Dessesaure was traveling and

apprehended was registered in his name at the address of the

apartment searched. The police found traces of white powder,

which, from their experience and observation, they thought (but did

not test) to be heroin, on the garbage bags Dessesaure took to the

trash from the apartment. When Dessesaure was arrested, the police

testified, he tried to lead them down a false trail, denying that

he lived where he did; a likely reason is that he had something to

hide at the apartment. When Dessesaure picked up Boyd, Dessesaure

had just come from his apartment, making it likely that the drugs

he sold to Boyd came from the apartment. Dessesaure drove

erratically as he returned under surveillance to his apartment.

The affidavit stated that he drove this way to throw off anyone

following him, again suggesting he had drugs in his apartment, a

suggestion strengthened by his subsequent lies about where he

lived. These facts were more than adequate to constitute probable

cause. See United States v. Ribeiro, 397 F.3d 43, 48-52 (1st Cir.

2005) (finding sufficient "nexus" between activities described in

warrant affidavit and defendant's residence to establish probable

cause to search residence); United States v. Keene, 341 F.3d 78,

82 (1st Cir. 2003) (same); United States v. Feliz, 182 F.3d 82, 86

(1st Cir. 1999) (same).

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B. Whether the Warrant Was Prompted by the Illegal Search

We turn back to the first Murray prong, which requires

that 'the search pursuant to warrant was in fact a genuinely

independent source' and that the agents' decision to seek the

warrant not have been prompted by what the police observed during

the prior search. Murray, 487 U.S. at 542. As the Court wrote,

"to determine whether the warrant was independent of the illegal

entry, one must ask whether it would have been sought even if what

actually happened had not occurred." Id. at 542 n.3. The second

Murray prong, is, as we have held, wholly objective in its focus.

By contrast, as articulated by Murray in 1988, the first prong

appeared to be subjective: would these particular police officers

have sought the warrant even if they had not known, as a result of

the illegal search, that drugs were present in the apartment. See

id., 487 U.S. at 542 n.3; Restrepo, 966 F.2d at 971-72.9 While the

first prong of Murray is articulated as a subjective test,

nonetheless, it should not be proven by purely subjective means.

In making the factual determination as to the police officers'

intent, the district court is not bound by after-the-fact

assurances of their intent, but instead must assess the totality of

9
Since Murray, the Court has, without commenting on Murray's
first prong, eschewed use of subjective intent in certain Fourth
Amendment analyses as to whether there is probable cause to support
an arrest. See Devenpeck v. Alford, 125 S.Ct. 588, 594 (2004);
Whren v. United States, 517 U.S. 806, 811-13 (1996). We need not
determine today whether Whren and Devenpeck have affected the
subjective analysis mandated by the first prong of Murray.

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the attendant circumstances to ascertain whether those assurances

appear "implausible." Murray, 487 U.S. at 540 n.2; see Restrepo,

966 F.2d at 971-72; see also Devenpeck v. Alford, 125 S.Ct. 588,

594 (2004) ("Subjective intent of the arresting officer, however it

is determined (and of course subjective intent is always determined

by objective means) . . . .").

Applying the first prong of Murray, it is clear that

objectively the officers were not prompted to seek the warrant by

what they saw in the apartment. Significantly, Dessesaure and

Officer Broderick both testified that Broderick informed Dessesaure

at the station prior to the initial entry into the defendant's

apartment that the police were going to apply for a search warrant.

Indeed, the freezing of the apartment (whether done for exigent

circumstances or not) was done on Broderick's way to get a warrant.

Broderick left Dessesaure's apartment after spending only five or

ten minutes there to go directly to the District Attorney's office

and prepare a warrant application. Moreover, even if there had

been no illegal entry into the apartment and the officers lacked

knowledge that drugs were present there, there is no evidence to

suggest that these officers would not have sought a warrant.

Indeed, the absence of knowledge of the evidence viewed via the

illegal access could only have encouraged them further to seek a

warrant, as that would have been their only way to have sought out

the evidence in the apartment they obviously suspected to exist and

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desired to see. The facts gathered legally, without resort to the

facts gathered illegally, provided an independent and adequate

source for the warrant application.

IV.

One other issue deserves comment. Taking it as true that

the officers lied (over the government's protest that this is an

unfair characterization), the district court was understandably

unhappy. The record shows more than a touch of frustration and

building tension. At least some members of the Boston Police

Department may have mistakenly believed that they were free, absent

a search warrant or exigent circumstances, to enter a dwelling in

order to "freeze" the scene. The district court was quite correct

to state strongly that this is not the law:

There is no question that the police had no right to
"freeze" the Quincy apartment where that meant entering
it, looking around, searching, all the while ostensibly
waiting for someone to get a warrant. Nothing in First
Circuit or Supreme Court case law remotely justifies such
a step. Nor should it. Searching without a warrant, on
the assumption that the magistrate will no doubt agree
with the officers that there is probable cause to search
that location at that time, makes a mockery of Fourth
Amendment protection. The warrant, and the review it
requires, is reduced to a technicality.

Dessesaure I, 314 F. Supp. 2d at 92.

The allowance of the motion to suppress was error and is

reversed. The case is remanded to the district court for further

proceedings consistent with this opinion.

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