United States v. Siciliano

United States Court of Appeals
For the First Circuit

No. 08-1745

UNITED STATES OF AMERICA,

Appellant,

v.

MICHAEL A. SICILIANO,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Rya W. Zobel, U.S. District Judge]

Before

Boudin, Stahl, and Lipez,
Circuit Judges.

Randall E. Kromm, Assistant United States Attorney, with whom
Michael J. Sullivan, United States Attorney, was on brief, for
appellant.
Robert M. Strasnick, with whom Andrews & Updegraph, P.C. was
on brief, for appellee.

August 26, 2009
 LIPEZ, Circuit Judge. After obtaining evidence that

Michael Siciliano ("Siciliano") had ordered chemicals used in the

manufacture of Methylenedioxymethamphetamine ("MDMA"), a controlled

substance, agents from the Drug Enforcement Agency ("DEA") began an

investigation. While interviewing Siciliano in his residence with

his consent, a DEA agent, along with other law enforcement

officers, conducted a protective sweep of the apartment. During

the sweep, officers observed materials used in the manufacture of

MDMA and a plastic bag containing an unidentified powder. On the

basis of an affidavit containing this information, agents obtained

a search warrant and searched the premises. Siciliano moved to

suppress the evidence discovered in the search, arguing, inter

alia, that the protective sweep was unlawful and that the agents

would not have sought a warrant if they had not discovered what

they believed to be contraband during the sweep. The district

court granted the motion to suppress, and then denied the

government's motion for reconsideration on the basis of newly

discovered evidence.

On appeal, the government argues that the district court

clearly erred in finding that the agents would not have sought the

search warrant if they had not made the protective sweep, and that

the court abused its discretion in refusing to grant the motion for

reconsideration. After reviewing the record, we affirm.

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 I.

"We recite the facts as found by the district court,

consistent with record support." United States v. Vilches-

Navarrete, 523 F.3d 1, 5 n.3 (1st Cir. 2008).

A. The Investigation

In 2006, the Royal Canadian Mounted Police ("RCMP")

informed the DEA that, in February 2005, Siciliano had purchased

chemicals for use in manufacturing MDMA. The chemicals were

delivered to 85 Surrey Street #1, in Brighton, Massachusetts.

Sometime thereafter, the DEA issued an administrative subpoena to

eBay Inc. ("eBay"), seeking the transaction history on an account

registered to Siciliano at the Surrey Street address. eBay

provided the DEA with a transaction log on the account for June

2002 to August 2006. The log included purchases of chemicals,

glassware, and other equipment, all delivered to 85 Surrey Street

#1. According to testimony from DEA Special Agent Anthony Roberto

("Agent Roberto"), the materials ordered are used in the

manufacture of MDMA.

Agent Roberto testified at the suppression hearing that

the information from RCMP and eBay was the basis for his

investigation of Siciliano. After receiving the information from

RCMP and eBay, he said, he decided to "obtain other evidence that

there was manufacturing going on." In October 2006, Agent Roberto

established surveillance at 85 Surrey Street #1, and followed

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Siciliano from the apartment to nearby Northeastern University

("Northeastern"). Also in October, Agent Roberto looked through

Siciliano's trash, and discovered financial statements bearing his

name and the 85 Surrey Street #1 address. According to Agent

Roberto's testimony, the discovery didn't "ha[ve] any bearing" on

the purchase of chemicals, and he did not apply for a warrant as a

result of what was found. At that time, he testified, he did not

know whether there was an MDMA lab on the premises or not, and he

had never observed anyone come to the apartment to purchase drugs.1

On November 16, 2006, Agent Roberto, accompanied by DEA

Special Agent David DiTulio ("Agent DiTulio"), went to the

apartment at 85 Surrey Street #1.2 Both agents wore plain clothes

but were displaying their DEA badges. When the agents knocked on

the door, Siciliano answered. The agents identified themselves and

asked if he was Michael Siciliano. Siciliano initially denied his

identity, but then admitted it after the agents produced a copy of

his driver's license photo. Agent Roberto told Siciliano that they

wanted to ask him some questions, and Siciliano invited them in.

1
As Agent Roberto acknowledged at the suppression hearing,
the possession of these chemicals is not in itself unlawful. In
contrast, using the chemicals to manufacture a controlled substance
is unlawful. See 21 U.S.C. § 841(a)(1).
2
At the suppression hearing, Agent DiTulio spelled his
named "DiTullio." To avoid confusion, we use the same spelling of
the name as the district court and the government.

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 The agents entered the apartment and followed Siciliano

down a hallway leading to the rear of the residence. Halfway down

the hallway, Agent DiTulio turned around and headed back out the

door onto the porch, where he motioned to four law enforcement

officers who had been waiting in their cars on the street. Agent

DiTulio told the officers that Siciliano had agreed to speak with

"us" and that they could come in. The officers entered the

apartment and, along with Agent DiTulio, conducted a protective

sweep of the premises. Three officers started in the front of the

apartment, while two went to the rear. In the front, Agent DiTulio

and Boston Police Detective Kevin M. Guy ("Detective Guy") opened

the first doorway on the left, which led to Siciliano's bedroom.

In the bedroom, Agent DiTulio found a dresser. The bottom drawer

of the dresser was open, and in it Agent DiTulio observed an empty

package of gelatin capsules. Elsewhere, in the "office," DEA Group

Supervisor Jonathan Scheffler observed a plastic bag containing

powder. The powder was not field-tested. Officers in the rear of

the apartment discovered one of Siciliano's roommates in a bedroom

adjacent to the kitchen.

Meanwhile, Agent Roberto continued to follow Siciliano

down the hallway, which led to the kitchen at the rear of the

apartment. As they walked, Agent Roberto asked Siciliano if there

was anyone else in the apartment. Siciliano replied first that

there was not, and then said that he was not sure and did not know.

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In the kitchen, Agent Roberto told Siciliano that he wanted to talk

about orders of chemicals. Siciliano claimed that he had not

ordered any chemicals. Agent Roberto said that he had, and

Siciliano disagreed, whereupon Agent Roberto said that he had a

list of Siciliano's purchases. Siciliano said that the orders had

taken place six years ago, but when Agent Roberto disagreed, he

said they occurred four years ago. At this point, the other

officers in the apartment had completed their protective sweep and

joined Agent Roberto in the kitchen.

Agent Roberto told Siciliano that the chemical orders had

occurred that year. Siciliano said that the purchases had been for

"Frank," a person he knew from Northeastern. Agent Roberto asked

for Frank's last name, address, and phone number, but Siciliano

could not or would not provide the information. By this point,

Siciliano had become hostile; he was yelling, and, at one point, he

pushed Agent Roberto. When one of the officers asked Siciliano if

they could search the apartment, Siciliano said no. The officers,

along with Siciliano, then left the apartment. Siciliano told the

officers that he wanted to call his mother and an attorney. During

Siciliano's phone call, Agent Roberto overheard Siciliano say that

he "did something stupid" and "ordered chemicals."

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 Agent Roberto and Agent DiTulio testified that they then

decided to "freeze" the apartment.3 Agent Roberto testified that

what led him to freeze the apartment was "[p]art of the interview

and part what was observed during the protective sweep." Agent

DiTulio testified that "a series of factors led to us freezing the

apartment. . . . [T]here were conflicting statements, along with

what we saw during the protective sweep." While two officers kept

the apartment "frozen," Agent Roberto, Agent DiTulio, and the other

officers left to seek a warrant.

Detective Guy prepared the affidavit supporting the

warrant application. The affidavit set forth the information

obtained from RCMP and eBay, Siciliano's evasive responses to

questioning from the officers, his agitated demeanor, the gel

capsules and powder observed during the protective sweep, and the

overheard contents of the phone call. The warrant was issued and

the search executed the same day. In Sicilano's bedroom, officers

discovered 1.3 grams of 82 percent pure MDMA, a digital scale,

plastic baggies, a plastic spatula, and the gel capsules observed

earlier. In the apartment office, the officers discovered

documents containing pictures and text describing how to make MDMA.

Next to the documents were two computers and a hard drive, which

3
As we explained in United States v. Dessesaure, "[t]he
goal of a 'freeze' . . . is to secure a location to prevent its
occupants from destroying evidence while a search warrant is being
obtained." 429 F.3d 359, 363 (1st Cir. 2005). See infra section
II(A)(2).

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the officers seized. The officers also located a basement in the

apartment, where they discovered glassware and chemicals consistent

with the manufacture of MDMA. Siciliano was arrested on state

charges of possession with intent to distribute controlled

substances.

In March 2007, several months after the search of the

apartment, DEA computer forensic examiner Jill Mossman began a

search of the seized computers pursuant to a second warrant issued

specifically for that purpose. During the course of this search,

she discovered what she believed to be files containing child

pornography. After additional investigation not material here, a

third warrant was obtained to search the computers for child

pornography.

B. District Court Proceedings

In May 2007, Siciliano was indicted by a federal grand

jury, and the state charges were dismissed. The federal indictment

charged Siciliano with, among other things, possessing child

pornography and attempting to manufacture MDMA. On August 15,

2007, Siciliano filed a motion to suppress the evidence obtained in

the November 16, 2006 search of his apartment and the subsequent

search of his computers. The government opposed the motion, and

hearings were held on February 14 and 15, 2008.

On March 14, 2008, the district court issued an order

granting the motion to suppress. The court held that Siciliano had

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not given consent for the four officers waiting on the street to

enter his apartment, and that the protective sweep performed by the

officers and Agent DiTulio was unlawful. Applying the rule set out

in Dessesaure, 429 F.3d at 359, the court concluded that, because

information obtained during the sweep had been incorporated into

the affidavit supporting the November 16 warrant, the evidence

obtained pursuant to that warrant should be suppressed unless (1)

after excising the unlawfully obtained information from the warrant

affidavit, there remained information sufficient to establish

probable cause; and (2) the warrant would have been sought even if

the illegal entry had not occurred. See Dessesaure, 429 F.3d at

367. The court concluded that probable cause still existed, but

found that the government had failed to establish that the officers

would have sought a warrant absent their discovery, during the

protective sweep, of gel capsules and powder in the apartment.

On April 11, 2008, the government filed a motion for

reconsideration of the district court's order. Among other things,

the government stated that it had discovered the existence of a

draft warrant affidavit, prepared by Agent Roberto in October 2006.

The government attached an affidavit from Agent Roberto discussing

the preparation of the draft affidavit and stating that he had

intended to apply for a search warrant once the interview was

completed. Siciliano opposed the motion for reconsideration,

arguing that the agents' intention to seek a warrant was a factual

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determination that had been properly made on the basis of testimony

at the suppression hearing. On May 22, 2008, the district court

denied the government's motion in a written order, stating, among

other things, that it was "not inclined to reconsider its

determination that the officers would not have sought a warrant

absent the protective sweep."

The government then filed this interlocutory appeal. It

does not challenge the district court's determination that the

protective sweep was unlawful. Instead, the government argues (1)

that the district court committed clear error in finding that the

agents would not have sought a warrant absent the information

obtained from the protective sweep, and (2) that the court abused

its discretion in denying the motion for reconsideration.

Siciliano opposes the government on both counts, and offers an

alternative ground for affirmance based on the government's search

of the computers for child pornography.

II.

We apply a mixed standard of review to the district

court's suppression order. We review "the court's findings of fact

for clear error and the application of the law to those facts de

novo." Vilches-Navarrete, 523 F.3d at 12 (internal quotation marks

and citation omitted). "To find clear error, an inquiring federal

court must form a strong, unyielding belief, based on the whole of

the record, that a mistake has been made." In re Grand Jury

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Investigation, 545 F.3d 21, 24 (1st Cir. 2008). We affirm under

the clear error standard "if any reasonable view of the evidence

supports" the district court's finding. United States v. Rivera-

Rivera, 555 F.3d 277, 283 (1st Cir. 2009).

A. The Decision to Seek the Warrant

1. Legal principles

The exclusionary rule prohibits the introduction into

evidence of tangible materials and knowledge acquired during an

unlawful search. Murray v. United States, 487 U.S. 533, 536

(1988). In addition, the exclusionary rule prohibits the

introduction of "tangible and testimonial" evidence "that is the

product of the primary evidence, or that is otherwise acquired as

an indirect result of the unlawful search, up to the point at which

the connection with the unlawful search becomes so attenuated as to

dissipate the taint." Id. at 536-37 (internal quotation marks and

citation omitted). In this case, Siciliano argued that the

exclusionary rule should bar introduction of the evidence obtained

during the November 16 search and subsequently obtained in the

search of the seized computers, since the November 16 search

warrant was based on an affidavit containing information obtained

during the unlawful protective sweep.

However, under the independent source doctrine, "evidence

acquired by an untainted search which is identical to . . .

evidence unlawfully acquired" is admissible. Id. at 538 (emphasis

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omitted). In this context, the question is whether the November 16

search was an independent source of the evidence discovered as a

result of the unlawful protective sweep. Where, as here, a search

warrant is supported by an affidavit containing unlawfully obtained

information, the independence of the search depends on two factors:

"(1) whether the agents' decision to seek the warrant was prompted

by what they had seen during their initial entry, and (2) whether

the affidavit contained sufficient facts to support probable cause

when the offending facts were excised." Dessesaure, 429 F.3d at

367 (internal quotation marks and citation omitted).

It is the government's burden to establish, by a

preponderance of the evidence, that the search was an independent

source of the evidence in question. United States v. Forbes, 528

F.3d 1273, 1279 (10th Cir. 2008) ("The government bears the burden

of showing, by a preponderance of the evidence, that there is truly

an independent source for the challenged evidence."); United States

v. Lewis, 738 F.2d 916, 920-21 (8th Cir. 1984) (same); United

States v. Bonczeck, No. 08 Cr. 361 (PAC), 2008 U.S. Dist LEXIS

87436, at *17 (S.D.N.Y. Oct. 16, 2008) (same); United States v.

Nguyen, No. 07-10050-PBS, 2008 WL 346114, at *4 (D. Mass. Feb. 7,

2008) (applying preponderance standard to Dessesaure inquiry); cf.

Nix v. Williams, 467 U.S. 431, 444 & n.5 (1984) ("If the

prosecution can establish by a preponderance of the evidence that

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the information ultimately or inevitably would have been discovered

by lawful means . . . the evidence should be received.").4

Moreover, as the government acknowledges, the court's

determination of the first Dessesaure prong -- whether the agents'

decision to seek the warrant was prompted by unlawfully acquired

information -- is a factual finding subject to clear error review.

See Dessesaure, 429 F.3d at 369 (describing the "factual

determination as to the police officers' intent" to seek a

warrant); United States v. Stierhoff, 477 F. Supp. 2d 423, 450

(D.R.I. 2007) (quoting "factual determination" language from

Dessesaure); cf. United States v. Gonzalez, 555 F.3d 579, 582 (7th

Cir. 2009) (holding that, for purposes of the identical inquiry

under Murray, "it was not clear error, based on the record before

us, for the district court to find that the officers would have

sought a warrant had the box not been opened"); United States v.

Restrepo, 966 F.2d 964, 972 (5th Cir. 1992) (describing the Murray

determination of whether the officers were prompted to seek the

warrant because of unlawfully obtained information as "a question

4
As Justice Scalia explained in Murray, the inevitable
discovery doctrine is a close relative of the independent source
doctrine. Murray, 487 U.S. at 539. Under the inevitable discovery
doctrine, unlawfully obtained evidence that "inevitably would have
been discovered by lawful means" is admissible. Nix, 467 U.S. at
444. Because unlawfully obtained evidence so admitted is not in
fact lawfully "rediscovered," but only inevitably would have been,
it is not admissible under the independent source doctrine, which
requires lawful discovery of the evidence. See Murray, 487 U.S. at
538-39.

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of fact"); United States v. Halliman, 923 F.2d 873, 880 (D.C. Cir.

1991) (Clarence Thomas, J.) ("The district court first found that

the officers had not decided to obtain the emergency warrant on the

basis of what they had seen in room 900. That finding is not

clearly erroneous." (citation omitted)).

Clear error review is appropriate because, as we have

said, the first prong of Dessesaure is "subjective," concerning

"the police officers' intent," in contrast to the objective

determination of probable cause under the second prong.

Dessesaure, 429 F.3d at 369; cf. Restrepo, 966 F.2d at 972

("[U]nlike the objective test of whether the expurgated affidavit

constitutes probable cause to issue the warrant, the core judicial

inquiry before the district court . . . is a subjective one:

whether information gained in the illegal search prompted the

officers to seek a warrant . . . ."). To be sure, although the

inquiry is subjective, proof "should not be . . . by purely

subjective means," and the district court must assess "the totality

of the attendant circumstances" in determining the plausibility of

the officers' "assurances." Dessesaure, 429 F.3d at 369. In so

doing, the court may assume that the officers are reasonable, and

would have intended to act as a "reasonable officer" would act in

the circumstances. See United States v. Silva, 554 F.3d 13, 19

(1st Cir. 2009). Nevertheless, the ultimate determination of the

officers' intent is a subjective one, and must remain distinct from

the other Dessesaure prong -- the objective determination of

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whether there existed probable cause to search absent the

unlawfully obtained information. As Murray itself illustrated, the

inquiries may point in different directions. See Murray, 487 U.S.

at 542 (holding that, where probable cause to search had not been

challenged, the question of whether the search was "in fact a

genuinely independent source" depended in part on what prompted the

agents to seek a warrant).5

2. Application to this case

a. Legal error

We address first the government's argument that the

district court committed a legal error in conducting the

independent source inquiry. The government writes: "The focus of

the independent source inquiry is not on whether the officers in

fact considered tainted information (as the court appears to have

thought), but 'whether [the warrant] would have been sought even if

what actually happened had not occurred.'" We agree that it would

5
The government notes in its brief that in Dessesaure we
reserved the question of whether subsequent decisions by the
Supreme Court that "eschewed use of subjective intent in certain
Fourth Amendment analyses . . . have affected the subjective
analysis mandated by the first prong of Murray." Dessesaure, 429
F.3d at 369 n.9. We did not reach this question in Dessesaure
because it was unnecessary for the resolution of the case. We
again decline to reach the question, though for a different reason.
The Supreme Court has repeatedly instructed lower courts that only
it has the prerogative to overrule its own decisions. Nat'l Rifle
Ass'n of Am., Inc. v. City of Chicago, Ill., 567 F.3d 856, 857 (7th
Cir. 2009) (Easterbrook, C.J.) ("Repeatedly . . . the Justices have
directed trial and appellate judges to implement the Supreme
Court's holdings even if the reasoning in later opinions has
undermined their rationale." (citing Rodriguez de Quijas v.
Shearson/Am. Express, Inc., 490 U.S. 477, 484 (1989)).

-15-
have been legal error for the court to conclude that the November

16 search was not an independent source because the agents relied

in fact on tainted information in seeking the search warrant. See

Dessesaure, 429 F.3d at 367. But there is no indication that the

district court believed that this was the relevant inquiry.

Rather, the court cited the agents' testimony that they were "led

. . . to" seek the warrant by "the combination of Siciliano's

statements and the items observed during the protective sweep."

From this testimony, along with other evidence in the record, the

court concluded that "the government has not established that the

officers would have sought the warrant absent the knowledge that

gel capsules and powder were in the apartment." The legal standard

employed by the court is precisely the one we recommended in

Dessesaure: "'[O]ne must ask whether [the warrant] would have been

sought if what actually happened [i.e., the unlawful search] had

not occurred.'" Dessesaure, 429 F.3d at 369 (quoting Murray, 487

U.S. at 542).

b. Factual error

The core of the government's argument on appeal is that

the district court clearly erred in concluding that the government

did not establish that the agents were not prompted to seek the

November 16 search warrant by information acquired during the

unlawful protective sweep. The government makes two related

arguments to this end. First, it argues that the district court

clearly erred in stating that the agents testified that "it was the

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combination of Siciliano's statements and the items observed during

the protective sweep that led them to seek the search warrant."

According to the government, the agents testified only that these

factors led them to freeze the apartment. Second, the government

argues that the record does not support the contention that the gel

capsules and powder observed during the protective sweep were

"pivotal" to the agents' decision to seek the search warrant. In

support of this claim, the government points out that Siciliano's

demeanor and evasive answers to questions during the interview

would have made it unlikely, in the agents' minds, that the

chemicals were purchased for a lawful purpose. Moreover, there

would have been little reason for the agents to wait to seek a

warrant, since after the interview Siciliano knew he was being

investigated, and would have stopped criminal activity and might

have destroyed evidence.

i. The agents' testimony

As we have previously explained, officers freeze a

property because they intend to seek a warrant and wish to preserve

evidence. Dessesaure, 429 F.3d at 363. For this reason, testimony

as to why officers froze a property may also reveal why they sought

a search warrant. Here, Agent Roberto testified that what "led to

the premises being frozen" was "[p]art . . . the interview and part

what was observed during the protective sweep." Agent DiTulio

testified that what "led to us freezing the apartment" was a

"series of factors," namely, "the conflicting statements, along

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with what we saw during the protective sweep." The factors cited

are plainly relevant to a decision to seek a warrant. They would

suggest, to a reasonable officer, the presence of criminal

activity.

Moreover, the agents' testimony on this point does not

necessarily imply that they would have sought the search warrant if

the protective sweep had not occurred. Agent Roberto's testimony

that what led to the freezing was "[p]art . . . the interview and

part what was observed" might have meant that the interview and the

protective sweep were each sufficient to prompt him to seek the

warrant -- in other words, that he sought the warrant for two

independent reasons. However, Agent Roberto also might have meant

that the combination of the interview and the protective sweep

prompted him to seek the warrant, such that he would not have

sought the warrant if either condition were absent. It was the

government's burden to rule out the second interpretation. For

reasons we explain below, it was not clear error for the district

court to choose that interpretation.

ii. The significance of the protective sweep

Contrary to the government's suggestion, the district

court's conclusion that the agents might not have sought the

November 16 search warrant if the protective sweep had not occurred

is well supported by the record. At the suppression hearing, Agent

Roberto testified that after receiving information from RCMP and

eBay, he was not concerned "about the chemicals being in

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[Siciliano's] house," and decided to "obtain other evidence that

there was manufacturing going on." Surveillance and the trash pull

did not provide the agents with this evidence. According to

testimony at the suppression hearing, the agents did not observe

Siciliano interact with anyone while under surveillance. The

results of the trash pull did not have "any bearing" on the

chemical ordering, and Agent Roberto testified that he did not

apply for a warrant "as a result of what [was] found." As of

November 16, the date of the interview, Agent Roberto testified

that he had no knowledge that anyone had visited Siciliano's

apartment to purchase drugs. While Agent Roberto had concluded

that "chemicals were delivered" to 85 Surrey Street #1, he remained

uncertain about the manufacturing of MDMA on the premises. When

asked, "There could have been a lab. There might not have been.

You didn't know, did you?," he agreed.

This testimony suggests that the agents desired to obtain

evidence, besides the record of chemical orders, of MDMA

manufacturing in the apartment before seeking a warrant. Yet

nothing that occurred between August and November 16, 2006,

provided the agents with that evidence. Moreover, the November 16

interview itself, while strongly suggestive of criminal wrongdoing,

also did not supply the agents with evidence of manufacturing at

Siciliano's address. During the interview, Siciliano told the

agents that he had purchased the chemicals for someone named

"Frank," whose identifying information he did not disclose.

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Reasonable agents might have concluded that while Siciliano was

involved in drugs, manufacturing was not occurring at the 85 Surrey

Street #1 address. After all, they had investigated the address

for over a month and discovered nothing. As the district court

noted, the only evidence of drugs on the premises was discovered

during the protective sweep. It was thus the protective sweep that

provided the agents with what they sought -- further evidence that

Siciliano was involved in manufacturing MDMA on the premises.

Moreover, absent evidence of drugs or chemicals in the

Surrey Street apartment, the agents may not have been concerned, as

the government suggests they were, with the destruction of evidence

at that location. Indeed, the district court could fairly infer

that the fear of the officers that Siciliano would destroy physical

evidence was generated by the physical evidence observed during the

protective sweep.

The record, as it existed at the time of the suppression

hearing, does not leave us with a "strong, unyielding belief" that

the district court erred in concluding that the government did not

establish that the agents would have sought the November 16 warrant

even if the unlawful protective sweep had not occurred. Rather,

the district court's finding is supported by "a reasonable view of

the evidence" -- testimony from both Agent Roberto and Agent

DiTulio about what led them to freeze the premises, as well as

testimony about the goal of the investigation and earlier decisions

not to seek a warrant. Therefore, the district court did not

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commit clear error. Pursuant to Dessesaure and the district

court's findings, the November 16 search was not an independent

source of the evidence discovered in the apartment and subsequently

on the seized computers. See Dessesaure, 429 F.3d at 367. The

evidence was therefore rightly suppressed.

B. The Government's Motion for Reconsideration

The district court's denial of a motion to reconsider is

reviewed for abuse of discretion. United States v. Roberts, 978

F.2d 17, 20 (1st Cir. 1992). A district court abuses its

discretion when "a relevant factor deserving of significant weight

is overlooked, or when an improper factor is accorded significant

weight, or when the court considers the appropriate mix of factors,

but commits a palpable error of judgment in calibrating the

decisional scales." Id. at 21.

When faced with a motion for reconsideration, district

courts should apply an interests-of-justice test. See Greene v.

Union Mut. Life Ins. Co. of Am., 764 F.2d 19, 23 (1st Cir. 1985).

The government contends that, under our decision in Roberts,

district courts should consider seven "rules of thumb" in making

the interests-of-justice determination. It insists that the

district court's ruling is inconsistent with the reasoning of

Roberts, and that the court abused its discretion by failing to

consider all of the issues presented in the government's motion.

In particular, in that motion, the government argued that it had

discovered new evidence of dispositive significance for the

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defendant's prior motion to suppress. Attached to the government's

motion was an affidavit from Agent Roberto stating that he had

prepared a draft affidavit in October 2006 to support a search

warrant for the 85 Surrey Street #1 apartment, and that he had

intended to apply for a warrant once the November 16 interview was

completed.

The district court did not abuse its discretion in

denying the motion for reconsideration. First, the Roberts

factors, on which the government's analysis heavily relies, are

neither necessary to determining the interests of justice in every

evaluation of a motion for reconsideration, nor are they

particularly appropriate in this case. See Roberts, 978 F.2d at

22. In Roberts, a district court summarily granted the defendant's

motion to suppress after the government failed to timely file an

opposition, missing the deadline by several days. Id. at 18. The

government moved for reconsideration, explaining that it had

misinterpreted the local rule governing filing deadlines. The

court accepted the government's explanation and agreed to

reconsider, but nevertheless refused to determine the suppression

issue on the merits, concluding that the circumstances constituted

neither "good cause" nor "excusable neglect" for the late filing.

Id. at 19.

We vacated the court's order. Id. at 20. After

reaffirming that motions for reconsideration are subject to an

interests-of-justice test, we stated, "[i]n determining this motion

-22-
to reconsider the court's response to the belated filing before us,

it would have helped had the district court examined the following

seven factors . . . ."6 Id. at 21 (emphasis added). Predictably,

several of these factors concerned timeliness, the reason for the

late filing, and prejudice to the other party because of the late

filing. As we explained, "[w]e do not say that courts must

necessarily look at each and all of these factors in every case, or

that courts cannot, in a proper case, examine other factors." Id.

at 22.

Indeed, in a recent case examining a district court's

denial of a motion to reconsider based on new evidence, we did not

mention the Roberts factors. See Douglas v. York County, 360 F.3d

286, 290-91 (1st Cir. 2004); see also Ruiz-Rivera v. IRS, 93 Fed.

Appx. 244, 246 (1st Cir. 2004) (applying interests-of-justice test

without discussing Roberts). Moreover, the government did not ask

the district court to apply the Roberts factors to its motion

below. There is thus no reason to conclude, as the government

suggests we should, that "the [district] court's failure to address

substantively the Roberts factors . . . undercuts the deference

6
The seven factors we identified were: (1) nature of the
case, (2) degree of tardiness, (3) reasons for tardiness, (4)
character of the omission, (5) prejudice, (6) institutional
interests, and (7) utility of the pleading. See Roberts, 978 F.2d
at 22-23.

-23-
that would ordinarily be due a district court's order denying

reconsideration."7

Moreover, in contrast to Roberts, this case does not

concern an initial order summarily entered after one party failed

to make a timely filing. Instead, we have a fully reasoned

decision entered after a suppression hearing. Also, the language

of the court's order denying the motion for reconsideration

suggests that the court did test the government's arguments against

the merits of its earlier suppression decision, but simply decided

not to change its position. Consequently, several of the Roberts

factors -- "degree of tardiness," "reasons for tardiness," and the

"utility of the pleading" -- do not apply because the court never

asked why the government had not presented the newly discovered

evidence at the time of the suppression hearing. Instead, the

court's order denying the motion for reconsideration appears to

have reflected an evaluation of the merits of the suppression order

in light of the arguments made in the motion for reconsideration.

The government's suggestion that the district court

"simply did not consider the issues presented in the government's

7
To be sure, Siciliano does not contest the government's
argument that the Roberts factors apply to this case. For the
purposes of our own analysis, however, we are not bound by the way
the parties have analyzed an issue when we conclude their analysis
is legally incorrect. Cf. Doe v. Anrig, 728 F.2d 30, 32 (1st Cir.
1984) (Breyer, J.) ("We are, of course, free to affirm a district
court's decision on any ground supported by the record even if the
issue was not pleaded, tried, or otherwise referred to in the
proceedings below." (internal quotation marks and citation
omitted)).

-24-
motion" is unfounded. In fact, in its order denying the motion for

reconsideration, the district court discussed the substance of some

of the government's claims. The government had asked the district

court to revisit its holding that the protective sweep was unlawful

because the agents who performed the sweep lacked an articulable

basis for suspecting that the apartment harbored dangerous

individuals. The government argued that the district court should

consider the "collective knowledge" of the officers in the

apartment, including Agent Roberto, who was aware of Siciliano's

conduct during the interview and thus did have an articulable basis

for suspecting that there could be others in the apartment involved

in manufacturing MDMA who posed a danger to the officers. In its

motion denying reconsideration, the court analyzed the government's

argument. It concluded that the argument did not require it to

revise its previous holding, since even if the "collective

knowledge" doctrine applied, the officers who conducted the sweep

were summoned before Agent Roberto began the interview.

Notably, the government does not appeal the district

court's treatment of the collective knowledge issue. Instead,

because the court's order does not include a similarly detailed

analysis of its rejection of the significance of the October 2006

draft affidavit, the government argues that the court abused its

discretion in denying the motion for reconsideration. The premise

of this argument -- that a court denying a motion for

reconsideration must offer a reasoned explanation of its

-25-
disposition of every argument made in the motion, or otherwise risk

abusing its discretion -- is hopeless. See Roque-Rodriguez v. Lema

Moya, 926 F.2d 103, 105 & n.3 (1st Cir. 1991) (noting that, in the

Rule 56 context, a district court's "deni[al] [of a] motion without

explanation" is "permissible" (citing Domegan v. Fair, 859 F.2d

1059, 1065-66 (1st Cir. 1988)); Earnhardt v. Puerto Rico, 744 F.2d

1, 3 (1st Cir. 1984) (district court did not abuse discretion by

declining to give reasons for denying motion to alter or amend

judgment, but "we must assume that the motion received careful

consideration").

Moreover, even in the absence of an explanation of the

court's reasons for rejecting the significance of Agent Roberto's

affidavit, the language of the court's order suggests that it did

consider all of the arguments but chose to address one

specifically: "The court is not inclined to reconsider its

determination that the officers would not have sought a warrant

absent the protective sweep. With regard to the government's

collective knowledge argument . . . ."

Also, the government has overstated the legal

significance of the October 2006 draft affidavit. Contrary to the

government's assertion, none of the cases cited stand for the

proposition that the mere existence of a partially completed "draft

affidavit," written sometime before the execution of an unlawful

search, proves that the government would have sought the subsequent

search warrant regardless of the unlawful search. Rather, in the

-26-
authorities cited by the government, officers were actively

preparing a search warrant affidavit when an unlawful search

occurred. See United States v. Hobbs, 509 F.3d 353, 362 (7th Cir.

2007) (officers writing affidavit at the same time unlawful search

occurred); United States v. Walton, 56 F.3d 551, 554 (4th Cir.

1995) (officers "had been preparing the search warrant affidavit

for several days prior to the garage entry, and added the

observations from that illegal entry only at the last moment").8

From the fact that the officers were actively preparing a search

warrant affidavit, as well as other facts, the courts inferred that

the officers would have acquired the warrant even if the unlawful

search had not occurred. See, e.g., Hobbs, 509 F.3d at 357-58

(describing how, while two officers "met at the Peoria Police

Department to prepare a complaint for a search warrant for [the

defendant's] home," other officers independently conducted an

unlawful search of the home).

Here, in contrast, Agent Roberto testified at the

suppression hearing that he decided not to obtain a warrant after

8
The government cites United States v. Register, 931 F.2d
308, 311 (5th Cir. 1991), in support of its position, but this case
is not on point. The Register court was not expressly analyzing
whether the officers would have sought the warrant had the unlawful
search not occurred, and noted that the unlawfully obtained
information was not included in the search warrant affidavit, in
contrast to this case. Id. In another case cited by the
government, United States v. Salas, 879 F.2d 530, 538 (9th Cir.
1991), the record contained "uncontradicted" subjective evidence
that the officers had decided to obtain the search warrant in
question before the unlawful entry occurred. Id.

-27-
completing the trash pull, which occurred on October 30, 2006.

Instead, he had decided to seek "other evidence that there was

manufacturing going on," and, as he characterized the trash pull,

it did not have "any bearing" on the chemical ordering. Thus, even

if Agent Roberto drafted an affidavit for a search warrant sometime

in October 2006, he decided after that point not to obtain a

warrant because he lacked evidence of manufacturing. In short, the

October 2006 draft warrant is not dispositive evidence that the

officers would have sought the November 16 search warrant even if

they had not observed gel capsules and powder during the protective

sweep.

For all of the reasons stated, the district court did not

abuse its discretion in concluding that the government's submission

did not require it to reconsider its determination that the

officers would not have sought a warrant without the evidence

discovered during the unlawful protective sweep.

Affirmed.

- Dubitante Opinion Follows -

-28-
 BOUDIN, Circuit Judge, dubitante. In May 2006, Drug

Enforcement Administration ("DEA") agents obtained a detailed tip

from Canadian police that in February 2005 a Canadian company had

shipped chemicals ordered by Michael Siciliano, which were

delivered to 85 Surrey Street, Apartment #1 in Brighton,

Massachusetts. The chemicals were useful in the manufacture of

methylenedioxymethamphetamine ("MDMA" or "ecstasy"), a drug

unlawful under U.S. law. DEA then subpoenaed eBay's records for an

account registered to Siciliano at the 85 Surrey Street address.

The records revealed ten purchases by Siciliano between

January 2004 and August 2006 of chemicals, glassware, and

laboratory equipment consistent with manufacture of MDMA; the

glassware included a specialized type designed for this purpose.

DEA agents kept sight of Siciliano and collected trash from his

apartment building, confirming that he resided at 85 Surrey Street.

At this point, given the recency of several of the eBay orders, the

officers had some reason to think that drug manufacturing

paraphernalia and chemicals would likely be found in the

apartment.9

9
Later, one agent stated he began preparing an affidavit in
support of a warrant application in October 2006, after discovering
the eBay transaction log but before the surveillance and trash
collection. However, the evidence of his affidavit preparation was
first presented in the government's motion to reconsider the
district court's suppression order and the district court was
permissibly unsympathetic to such belated evidence. See F.A.C.,
Inc. v. Cooperativa de Seguros de Vida de Puerto Rico, 563 F.3d 1,
2-3 (1st Cir. 2009); NLRB v. Magnesium Casting Co., 427 F.2d 114,
118 (1st Cir. 1970).

-29-
 On November 16, 2006, the agents interviewed Siciliano at

his apartment; Siciliano behaved suspiciously, offering various

lies, evasions, and finally an admission that he had ordered

chemicals. However, at this point the agents stumbled: although

two DEA agents had been invited into Siciliano's apartment when

they asked to speak with him, four other agents entered--uninvited

by Siciliano--and Siciliano refused to consent to a search of the

apartment. The agents engaged in a protective sweep of the

apartment, which was arguably pretextual but in any case conducted

in part by agents who had not been invited.

The sweep revealed plain-sight evidence, including gel

capsules and powder potentially associated with MDMA production.

The agents promptly sought such a warrant with a supporting

affidavit that recounted--along with the Canadian tip, eBay

records, and Siciliano's behavior in the interview--the further

confirmatory evidence observed during the sweep. When the warrant

issued, agents completed their search, which yielded firm evidence

of unlawful drug activity;10 the agents also seized two computers

in the apartment later found to contain child pornography.

Siciliano was indicted for drug offenses and possession

of child pornography, and he moved to suppress the evidence seized

in the search. The district court held that the sweep had been

10
The evidence included 1.3 grams of 82% pure MDMA, a digital
scale, plastic baggies, a plastic spatula, gelatin capsules,
documents containing instructions for manufacturing MDMA, and
chemicals and glassware consistent with MDMA production.

-30-
unlawful, that reliance on its fruits contaminated the warrant

application and that no exception rescued the search. United

States v. Siciliano, No. 07-10146, 2008 WL 724032, at *5-6, *8-9

(D. Mass. Mar. 14, 2008). The court suppressed the evidence seized

in the warrant-based search as well as the original sweep evidence.

The panel now sustains the district court's action.

With exceptions, the exclusionary rule bars the use of

evidence acquired as a result of an unlawful search.11 The

exception relevant here, confusingly associated with the phrase

"independent source," amounts to this: reliance on wrongfully

obtained evidence to secure a warrant does not matter if (a) the

remaining validly provided evidence in the affidavit creates

probable cause for the later search and (b) the police would have

sought the warrant even if the wrongfully obtained evidence had

never been acquired. Murray, 487 U.S. at 536-37, 542; United

States v. Dessesaure, 429 F.3d 359, 367 (1st Cir. 2005).

In this case, the affidavit easily established probable

cause--not itself a demanding standard, L.A. County v. Rettele, 550

U.S. 609, 615 (2007) (per curiam)--without regard for the sweep

evidence. The tip and the nature and quantities of the shipments

11
Mapp v. Ohio, 367 U.S. 643 (1961); Boyd v. United States,
116 U.S. 616 (1886); see 35 Geo. L.J. Ann. Rev. Crim. Proc. 186-201
(2006). For exceptions, see Murray v. United States, 487 U.S. 533,
536-38 (1988) (independent source exception); United States v.
Leon, 468 U.S. 897, 913, 919-21 (1984) (good faith exception); and
Nix v. Williams, 467 U.S. 431, 444-47 (1984) (inevitable discovery
exception).

-31-
(shown by eBay records) to a private address were arguably enough,

see, e.g., United States v. Hofstatter, 8 F.3d 316, 319-20, 322

(6th Cir. 1993) (per curiam); United States v. Coppage, 635 F.2d

683, 685 (8th Cir. 1980); Siciliano's lies and evasions were icing

on the cake. Thus, the suppression order rested on the district

court's separate finding that the agents failed to show that,

absent the sweep evidence, they would have sought a warrant.

Murray's "would have sought" test has been treated as

directed to the police officers' state of mind, Dessesaure, 429

F.3d at 369, but objective evidence of what reasonable officers

would have done--as in many contexts, see Devenpeck v. Alford, 543

U.S. 146, 154-55 (2004)--is highly relevant where subjective

evidence is absent (or to buttress or rebut direct testimony as to

intent).12 Indeed, in "the usual case," where subjective evidence

is absent, "a court must infer [the police officers'] motivation

from the totality of facts and circumstances." Restrepo, 966 F.2d

at 972.

Here, one would think that a reasonable police officer

would have sought a warrant after the interview even if no sweep

had occurred. The agents already had evidence amply providing

probable cause; and, Siciliano now having been alerted to their

interest in him and the apartment, they could hardly have deferred

12
See United States v. Silva, 554 F.3d 13, 19 (1st Cir. 2009);
Dessesaure, 429 F.3d at 369; United States v. Chaves, 169 F.3d 687,
693 (11th Cir. 1999); United States v. Restrepo, 966 F.2d 964, 972
(5th Cir. 1992).

-32-
seeking a warrant to investigate further, lest Siciliano now

destroy or conceal any evidence in the apartment. As the agents

were not asked what they would have done absent the sweep, the

objective likelihood favors the government's position. The

district court concluded otherwise for two reasons.

First, it emphasized--not quite accurately13--that two of

the agents had testified that "the combination of Siciliano's

statements and the items observed during the protective sweep . .

. led them to seek the search warrant." Siciliano, 2008 WL 724032,

at *8. No doubt the agents subjectively relied on everything

incriminating that they had found to date (how could it be

otherwise), but this offers no reasonable inference, either way, as

to what they would have done in the absence of the sweep evidence.

Cf. United States v. Lauzon, 938 F.2d 326, 331 (1st Cir. 1991).

The case law makes quite clear that reliance on unlawful

evidence is not enough for suppression; the critical question,

where the evidence was not essential to probable cause, is whether

the officers would have sought the warrant even if the unlawful

evidence had not been available. See Murray, 487 U.S. at 542 n.3;

Dessesaure, 429 F.3d at 367, 369. The independent source rule in

13
As the government points out, the transcript shows that the
agent testimony was directed to the reason for the freeze, not the
warrant; and the evidence discovered in the sweep would have been
especially relevant to the concern to prevent destruction of
evidence via the freeze. Whether or not the freeze was itself
unlawful does not affect the outcome here. See Segura v. United
States, 468 U.S. 796, 816 (1984).

-33-
this respect, although less demanding, acts very much like the

harmless error test by disregarding a mistake that did not alter

the outcome.

The district court's second stated reason was that the

gel capsules and powder found during the sweep were "the only

concrete indication that the previously-delivered chemicals might

still be on the premises." Siciliano, 2008 U.S. Dist. LEXIS 20152,

at *25. But nothing more "concrete" than the deliveries of such

materials in bulk to the apartment in recent months was required

for such probable cause, see Hofstatter, 8 F.3d at 319-20, 322,

especially after Siciliano's behavior negated any innocent

explanation for the materials.

Of course, even though the shipments were regular and

some were fairly recent, the materials could have been swiftly

moved out of the apartment as they were received. But probable

cause does not require certainty or even a high probability, United

States v. Winchenbach, 197 F.3d 548, 555-56 (1st Cir. 1999); all

that was needed is "a reasonable likelihood," Valente v. Wallace,

332 F.3d 30, 32 (1st Cir. 2003), that some of the shipped

materials, or other traces of the illegal business, might be found.

Accord United States v. Sturmoski, 971 F.2d 452, 457-58 (10th Cir.

1992); United States v. Landis, 726 F.2d 540, 541-42 (9th Cir.

1984).

It might be argued in Siciliano's favor that the agents

must have thought that the tip and the eBay records were not enough

-34-
for probable cause or else they would not have conducted the

interview and sweep. But the agents had little to lose and a good

deal to gain by conducting a consensual interview--which might

either produce an innocent explanation or, more likely, reinforce

probable cause by admissions or evasions and also thereby provide

evidence for trial. In all events, after the interview the agents

clearly had probable cause.

The other, perhaps more telling, point is that the

prosecutor failed to ask the agents in the suppression hearing

whether they would have sought a warrant based solely on the tip,

the eBay records and the interview. Of course, the prosecutor

could easily have thought this unnecessary but the failure to ask

the ultimate question might allow a modest adverse inference.

Still, this modest inference cannot easily overcome the ample

objective reasons for the officers to seek the warrant after the

interview regardless of the sweep evidence.

Murray's subjective intent inquiry calls for a counter-

factual "what if" fact-finding by the district judge which is

nevertheless reviewed only for "clear error," see Murray, 487 U.S.

at 543-44; but whether the suppression order in this case was

"clear error" or merely a close-call probable mistake protected by

the standard of review, it is well for the sake of future cases to

explain why the pertinent doctrine largely favors the government's

position and why the outcome here is at best very doubtful.

-35-