United States v. Tanguay

United States Court of Appeals
For the First Circuit

No. 14-1174

UNITED STATES OF AMERICA,

Appellee,

v.

JONATHAN TANGUAY,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Joseph N. Laplante, U.S. District Judge]

Before

Barron, Selya and Stahl,
Circuit Judges.

J. Martin Richey, Federal Defender Office, for appellant.
Seth R. Aframe, Assistant United States Attorney, with whom
John P. Kacavas, United States Attorney, was on brief, for
appellee.

May 22, 2015
 SELYA, Circuit Judge. It is common ground that a police

officer seeking to obtain a search warrant should include in the

affidavit accompanying the warrant application any facts known to

her that are material to the existence vel non of probable cause.

See United States v. Stewart, 337 F.3d 103, 107 (1st Cir.), as

amended (Oct. 14, 2003). Under some limited circumstances,

however, the officer's duty may be broader: she may be obliged to

inquire further in order to dispel serious doubts about either the

credibility of an informant upon whom she relies or the veracity of

the allegations underlying the attempted showing of probable cause.

This duty of further inquiry is not well understood, and the court

below ruled categorically that no such duty ever exists. Because

this statement of the law is insufficiently nuanced, we remand for

further factfinding consistent with this opinion.

I. BACKGROUND

We briefly rehearse the facts as supportably found by the

district court, along with the travel of the case. The reader who

hungers for more exegetic detail may wish to consult the district

court's comprehensive account. See United States v. Tanguay, 907

F. Supp. 2d 165, 167-76 (D.N.H. 2012).

In February of 2010, the Conway police department

received an e-mail, ostensibly from "Jim Garrold," relating that he

had seen child pornography on the laptop computer of "John

Tanguway." The e-mail described "Tanguway" as an emergency medical

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technician with a local ambulance service and indicated that the

child pornography had been observed during a sexual encounter a few

days earlier. This e-mail served to draw the attention of the

police to defendant-appellant Jonathan Tanguay, a selectman in the

nearby town of Bartlett.

A New Hampshire state trooper, Sgt. Carrie Nolet, took

charge of the ensuing investigation. After searching without

success for a Jim Garrold, Nolet called the telephone number

provided in the e-mail. A voicemail message identified the owner

of the telephone as Josh Wiggin. Nolet then asked Sgt. Alan

Broyer, a Conway police officer, whether he knew anyone by that

name. Broyer responded that Wiggin was known as a "police groupie"

who was "quirky," "troubled" in his teen years, and had a history

of suicidal ideation. Broyer also commented that Wiggin had

experienced "a few scrapes" with the law, specifically mentioning

that Wiggin had been convicted of uttering a false prescription (he

had altered the number of Vicodin pills on a legitimate

prescription from 30 to 80 before presenting the prescription to a

pharmacist). Nolet did not ask Broyer for more details nor did she

make any effort to find out what other "scrapes" Wiggin may have

had.

Nolet proceeded to contact Wiggin (a 28-year-old Conway

resident). He admitted having sent the accusatory e-mail and

agreed to an interview. During this interview, Wiggin disclosed

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that he and the appellant had maintained a casual sexual

relationship, off and on, since Wiggin's teenage years. He added

that, on a recent evening, he had gone to the appellant's home for

that purpose. When he walked in, the appellant was watching a

pornographic video on his laptop. Wiggin described the subjects of

this video as boys of "maybe eight, thirteen, fifteen, sixteen."1

He also reported seeing thumbnail previews of a "bunch of pictures"

and three or four videos depicting children engaging in sex acts

with adults.

About a week after the interview, Nolet applied for and

obtained a warrant to search the appellant's home, vehicle, and

workplace for computer systems. In the affidavit supporting the

warrant application, Nolet communicated the substance of Wiggin's

interview, emphasizing that Wiggin had come forward despite the

potential embarrassment of having his sexual interest in men

revealed to his parents and girlfriend. The affidavit did not

contain any of the information that Nolet had learned from Broyer

regarding Wiggin's history and reputation. Nor did she

incorporate the typewritten notes that Wiggin had prepared and

brought to the interview. See supra note 1.

1
Wiggin had prepared typewritten notes in advance of the
interview and brought those notes with him. The notes indicated
that the video depicted "young man or teen pornography." Nolet
retained Wiggin's notes after the interview ended.

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 A state judge issued the warrant. During the search, the

police seized a computer, hard drive, and compact disc that were

found to contain a profusion of sexually explicit images and videos

depicting minors.

A federal indictment followed charging the appellant with

a single count of possession of child pornography. See 18 U.S.C.

§ 2252A(a)(5)(B). The appellant moved for an evidentiary hearing,

see Franks v. Delaware, 438 U.S. 154, 155-56 (1978), and to

suppress the evidence seized during the search. He asserted that

Nolet had either deliberately or recklessly omitted material

information from her affidavit.

The district court convened what amounted to a Franks

hearing at which Nolet testified. The court reserved decision and

subsequently filed a written rescript denying the motion to

suppress. The court concluded that Nolet had "recklessly — if not

intentionally —" omitted from her affidavit three clusters of

relevant information known to her at the time she sought the

warrant: Wiggin's prior conviction for falsifying a prescription,

a crime of dishonesty; Wiggin's reputation among local police as

"troubled," "suicidal," "quirky," and a "police groupie," which the

district court said suggested a history of mental instability and

a willingness to compromise oneself to impress the police; and the

fact that Wiggin's interview statement — that the appellant was

viewing a pornographic video depicting children as young as eight

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years of age when Wiggin arrived — arguably conflicted with

Wiggin's typed notes describing the subjects of that video as young

men or teens. Tanguay, 907 F. Supp. 2d at 177-79. But these three

clusters of omitted information, the court held, did not require

suppression: there would have been probable cause to authorize the

search even if the affidavit had included the omitted facts. See

id. at 186.

The appellant had a fallback position: he argued that

Nolet's affidavit was deficient because she had neglected to make

any inquiry into the concerns voiced to her by Broyer. Had such an

inquiry been mounted, Nolet conceivably would have discovered that

one of Wiggin's prior "scrapes" was a juvenile conviction for

making a false report to the Conway police. That conviction

stemmed from Wiggin's claim that he had been shot in the leg by an

unidentified sniper when, in fact, he had shot himself to see what

it felt like. Because such a conviction was for a crime of

dishonesty, the appellant asserted, disclosing it would have cast

grave doubt on Wiggin's credibility and, thus, undermined any

showing of probable cause.

The district court rejected this plaint as well. In

doing so, the court relied on the fact that Nolet did not know of

the false report conviction at the time she executed the affidavit.

See id. at 182. Since Nolet had no duty as a matter of law to

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inquire further, the court reasoned, the false report conviction

formed no part of the Franks calculus. See id. at 182-83.

In due course, a jury convicted the appellant. The

district court sentenced him to an 84-month term of immurement.

This timely appeal followed.

II. ANALYSIS

The appellant challenges the district court's denial of

his motion to suppress on two grounds. First, he says that when

Nolet's affidavit is reformed to include the material that the

district court found intentionally or recklessly omitted, the

reformed affidavit no longer supports a finding of probable cause.

Second, he contests the district court's categorical ruling that

the Franks doctrine is never implicated by the omission from a

warrant affidavit of facts unknown to the affiant at the time of

the application.

The starting point for the consideration of both of these

claims of error is the same. In Franks, the Supreme Court

established that, under the Fourth and Fourteenth Amendments, a

defendant is entitled to an evidentiary hearing to test the

veracity of a warrant affidavit if he can make a substantial

showing that the affiant intentionally or with reckless disregard

for the truth included a false statement in the affidavit, which

statement was necessary to the finding of probable cause. See 438

U.S. at 155-56. Suppression of the evidence seized is justified

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if, at such a hearing, the defendant proves intentional or reckless

falsehood by preponderant evidence and the affidavit's creditworthy

averments are insufficient to establish probable cause. See id. at

156.

Material omissions from a warrant affidavit also may

furnish the basis for a successful Franks challenge. See United

States v. Hadfield, 918 F.2d 987, 992 (1st Cir. 1990). The

required showing is two-fold: first, the omission must have been

either intentional or reckless; and second, the omitted

information, if incorporated into the affidavit, must be sufficient

to vitiate probable cause. See United States v. Castillo, 287 F.3d

21, 25 & n.4 (1st Cir. 2002); see also United States v. Tate, 524

F.3d 449, 456-57 (4th Cir. 2008) ("A 'literally true' affidavit

. . . can be intentionally misleading if it deliberately omitted

material facts which, when included, would defeat the probable

cause showing and thus render false the original 'literally true'

affidavit."). Because there is no requirement that every shred of

known information be included in a warrant affidavit, the omission

of a particular detail, without more, is not enough to satisfy the

mens rea element of the Franks test. See United States v. Colkley,

899 F.2d 297, 300-01 (4th Cir. 1990). Rather, an omission triggers

the exclusionary rule only if it is "designed to mislead, or

. . . made in reckless disregard of whether [it] would mislead, the

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magistrate" in his appraisal of the affidavit. Id. at 301

(emphasis omitted).

Recklessness may be inferred directly from the fact of

omission only if "the omitted information was critical to the

probable cause determination." Burke v. Town of Walpole, 405 F.3d

66, 81 (1st Cir. 2005) (emphasis supplied) (internal quotation mark

omitted). Negligent omissions — even negligent omissions of highly

probative information — do not satisfy this strict standard. See

Franks, 438 U.S. at 171; see also United States v. Melvin, 596 F.2d

492, 499-500 (1st Cir. 1979) (affirming finding that omission of

key witness's recantation was merely negligent, not reckless,

because of affiant's good-faith belief that recantation was

incredible).

A. The Reformed Affidavit.

Against this backdrop, we turn to the appellant's initial

claim of error. Neither party contests the soundness of the

district court's plainly supportable finding that Nolet recklessly

omitted from her affidavit the three clusters of information limned

above. The appellant nonetheless argues that the court misjudged

the weight of those omitted facts. As he sees it, a reformed

affidavit that includes those facts falls short of establishing

probable cause.

We begin with the Fourth Amendment's command that "no

Warrants shall issue, but upon probable cause, supported by Oath or

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affirmation, and particularly describing the place to be searched."

U.S. Const. amend. IV. As a general matter, a district court

should pay great respect to the issuing magistrate's determination

of probable cause. See Illinois v. Gates, 462 U.S. 213, 236

(1983). Where relevant information has been withheld from the

magistrate, however, the district court must probe the existence of

probable cause anew. See United States v. Gifford, 727 F.3d 92, 99

(1st Cir. 2013) (citing Burke, 405 F.3d at 82). Our review of the

district court's own probable cause determination is de novo. See

Ornelas v. United States, 517 U.S. 690, 699 (1996); Gifford, 727

F.3d at 99. Findings of fact, though, are reviewed only for clear

error. See Ornelas, 517 U.S. at 699.

In giving effect to the Fourth Amendment's commands, the

principal task is "to make a practical, common-sense decision

whether, given all the circumstances set forth in the affidavit

before [us], including the veracity and basis of knowledge of

persons supplying hearsay information, there is a fair probability

that contraband or evidence of a crime will be found in a

particular place." Gates, 462 U.S. at 238 (internal quotation

marks omitted); see United States v. Schaefer, 87 F.3d 562, 565

(1st Cir. 1996) ("Probable cause exists when 'the affidavit upon

which a warrant is founded demonstrates in some trustworthy fashion

the likelihood that an offense has been committed and that there is

sound reason to believe that a particular search will turn up

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evidence of it.'" (quoting United States v. Aguirre, 839 F.2d 854,

857-58 (1st Cir. 1988))). Performance of this task must take

account of the totality of the circumstances. See Gates, 462 U.S.

at 238. Within this rubric, the statements of a law-abiding

eyewitness to a crime are generally considered reliable without

further corroboration. See United States v. Blount, 123 F.3d 831,

835-36 (5th Cir. 1997); see also United States v. Campbell, 732

F.2d 1017, 1019 (1st Cir. 1984).

Our review of the entire affidavit, supplemented only by

the three recklessly omitted clusters of information, supports the

conclusion that probable cause existed to search the appellant's

home. The most trenchant of the omitted facts — Wiggin's

conviction for uttering a false prescription — is surely relevant

to the decisional calculus. But the commission of a past crime

does not necessarily undercut a person's veracity. See United

States v. Rumney, 867 F.2d 714, 720-21 (1st Cir. 1989). Even a

prior conviction for a crime of dishonesty is not always

dispositive of a witness's reliability. See, e.g., United States

v. Meling, 47 F.3d 1546, 1554-55 (9th Cir. 1995). Here, we do not

think that the court erred in ascribing such limited significance

to the altered prescription conviction. After all, it is not

unreasonable to think that a willingness to lie to feed a drug

addiction is materially different than a willingness to level false

accusations against a third party.

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 To be sure, the second cluster of omitted information,

including Wiggin's history of mental instability and his reputation

as a "police groupie," calls for some degree of increased

skepticism. But a factfinder might reasonably think that these

black marks against Wiggin's credibility, like his altered

prescription conviction, are diminished in importance in light of

countervailing indicia of truthfulness. See United States v.

Reeves, 210 F.3d 1041, 1045 (9th Cir. 2000). An informant's

trustworthiness may be enhanced in a number of ways, including his

willingness to reveal his identity, the level of detail in his

account, the basis of his knowledge, and the extent to which his

statements are against his interest. See 2 Wayne R. LaFave, Search

& Seizure § 3.3(c)-(e) (5th ed. 2012 & Supp. 2015). A number of

such factors bolster the district court's determination that the

essence of Wiggin's account was worthy of credence. Wiggin was

willing to be identified despite his embarrassment about the

potential revelation of his sexual orientation to his loved ones;

he candidly admitted that there might be compromising pictures of

him in the appellant's possession (and, thus, likely to surface in

the search); and the record contains no credible suggestion of any

ulterior motive for reporting the crime. All of these are positive

factors in assessing Wiggin's veracity.

The third cluster of omitted information lacks any

decretory significance. The modest discrepancy between Wiggin's

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interview statements and his notes does not defeat probable cause.

The notes indicated that the appellant was watching "young man or

teen pornography" when Wiggin arrived, whereas he stated in the

interview that the subjects of the videos ranged from "maybe eight"

to sixteen years of age. But Wiggin also gave a physical

description of the subjects, stating that "there wasn't really much

of any . . . signs I guess, body hair, or facial hair and . . . you

can tell when you look at ah, a[n] eighteen year old versus you

know, a fourteen year old." Taken together, these statements

create a fair probability that one or more of the actors was a

minor. No more is exigible. See Gates, 462 U.S. at 238.

We hasten to add that Wiggin's rough guess as to the ages

of the minors in the initial video was not the only basis for the

conclusion that the appellant possessed child pornography. Wiggin

reported seeing a number of other pictures and videos containing

sexual depictions of prepubescent children. And the inference that

the appellant possessed child pornography was bolstered by

plausible indications that the appellant harbored a sexual interest

in young boys. The affidavit related that Wiggin first met the

appellant when the appellant (a counselor at a summer camp) ogled

Wiggin and other young campers as they showered; that the appellant

initiated a sexual relationship with Wiggin when Wiggin was still

a student at the high school where the appellant worked; that the

appellant became aroused when talking about a one-time rendezvous

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with a teen boy who had lied about his age; and that the appellant

had made sexual allusions to the nine-year-old son of Wiggin's

girlfriend.

We recognize that the question is close. But assuming no

duty to investigate further (an issue to which we shortly shall

return), we uphold the district court's conclusion that the

affidavit, reformed only to include the recklessly omitted facts,

remains sufficient to establish probable cause.2 There was no

error.

B. The Duty of Further Inquiry.

The appellant's second claim of error raises a question

of law, which engenders de novo review. See United States v.

Garcia-Hernandez, 659 F.3d 108, 111 (1st Cir. 2011). This claim is

premised on Nolet's omission of information not actually known to

her at the time that she prepared the warrant application, but

potentially available had she inquired further. The appellant

argues that Nolet was given ample reason to doubt Wiggin's veracity

and that her failure to undertake a further inquiry evinced a

reckless disregard for the truth. Had she undertaken such a

2
Our rejection of this claim of error should not be
understood to foreclose a reassessment of probable cause by the
district court if, on remand, it finds that Nolet was reckless in
failing to inquire further and unearth other relevant information
(such as Wiggin's false report conviction). The relative weight of
these three clusters of information might be altered if the
totality of the circumstances were to include additional data about
Wiggin's past.

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further inquiry, his argument goes, she would have learned about a

critically important fact — Wiggin's false report conviction — that

would have eviscerated the showing of probable cause.

At first blush, black-letter law may seem inhospitable to

the appellant's argument. The prevailing view is that "[t]he

failure to investigate a matter fully, to 'exhaust every possible

lead, interview all potential witnesses, and accumulate

overwhelming corroborative evidence' rarely suggests a knowing or

reckless disregard for the truth." Beard v. City of Northglenn, 24

F.3d 110, 116 (10th Cir. 1994) (quoting United States v. Dale, 991

F.2d 819, 844 (D.C. Cir. 1993)). Ordinarily, this makes good

sense: when the affiant has no substantial reason to doubt the

veracity or completeness of the information included in her

affidavit, a failure either to verify the accuracy of that

information or to go in search of contrary information is not

reckless. See, e.g., United States v. Santana, 342 F.3d 60, 66

(1st Cir. 2003); United States v. Ranney, 298 F.3d 74, 78 (1st Cir.

2002).

But this general rule — like virtually every general rule

— admits of at least one exception. To understand the operation of

this exception, some background is necessary.

The Franks Court established that a defendant is entitled

to an evidentiary hearing to test the veracity of a warrant

affidavit if he can make a substantial showing that the affiant,

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with reckless disregard for the truth, included a materially false

statement in the affidavit. See 438 U.S. at 155-56. We have

previously held that a material omission from a warrant affidavit,

no less than the inclusion of a materially false statement, may

furnish the basis for a successful Franks challenge when that

omission was made with similar recklessness. See, e.g., Hadfield,

918 F.2d at 992.

Withal, "the Supreme Court in Franks gave no guidance

concerning what constitutes a reckless disregard for the truth in

fourth amendment cases, except to state that 'negligence or

innocent mistake [is] insufficient.'" United States v. Davis, 617

F.2d 677, 694 (D.C. Cir. 1979) (alteration in original) (quoting

Franks, 438 U.S. at 171). We have added our own gloss in an

attempt to lend color to this standard. In United States v.

Ranney, we explained that reckless disregard for the truth may be

proven either by evidence that "the affiant 'in fact entertained

serious doubts as to the truth' of the allegations" contained in

the affidavit, or by inference "'from circumstances evincing

obvious reasons to doubt the veracity of the allegations.'" 298

F.3d at 78 (quoting United States v. Williams, 737 F.2d 594, 602

(7th Cir. 1984)).

With this preface, we turn to the appellant's specific

claim of error. We start with the district court's supportable

finding that, when proffering the warrant application, Nolet

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"understood full well that [Wiggin's] credibility was at issue,

based on his [altered prescription] conviction, if nothing else."3

Tanguay, 907 F. Supp. 2d at 182. Yet, Nolet "did nothing further

to check Wiggin's background," not even taking "the seemingly easy

and obvious step of asking Sergeant [Broyer] what he meant by

'scrapes.'" Id. In the district court's view, Nolet "could have

— and almost certainly should have — learned [about the false

report conviction] before seeking the warrant." Id. The court

nonetheless concluded that, as a matter of law, a failure to

investigate fully could not constitute a reckless disregard for the

truth. See id. (citing cases). The court therefore held that it

could not "treat Wiggin's false report[] conviction, or any other

part of his criminal history aside from his [altered prescription]

conviction, as a reckless omission for purposes of the Franks

analysis." Id. at 182-83.

We think that the district court painted with too broad

a brush. Its rejection of the appellant's claim rested on the

erroneous assumption that a Franks violation could not arise out of

a failure to include in a warrant affidavit facts not actually

known to the affiant. See id. at 182. The rule is simply not so

categorical.

3
Of course, this altered prescription conviction is different
from the juvenile false report conviction (about which Nolet had no
knowledge).

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 Here, Nolet had some reason to doubt the veracity of her

informant. Broyer, a fellow police officer, had portrayed Wiggin

as "quirky," "troubled," and possibly afflicted by some degree of

mental instability. In addition, Nolet knew that Wiggin's history

included the altered prescription conviction and that he had

experienced other "scrapes" with the law. Given that Nolet's case

for probable cause depended entirely on Wiggin's account, we think

that this web of circumstantial evidence sent up a red flag — and

that red flag may have been sufficient to create a duty of further

inquiry. See United States v. Chesher, 678 F.2d 1353, 1361-62 (9th

Cir. 1982).

To sum up, our holding is that the district court erred

in ruling as a matter of law that an affiant never has a duty to

make further inquiry before presenting a warrant application to a

magistrate.4 Because the court below, erroneously relying on its

categorical disavowal of any duty of further inquiry, did not pose

any of the further questions that had to be asked, we must regard

its order denying the appellant's motion to suppress as without

4
The cases cited by the district court for its categorical
proposition that no duty of further inquiry ever exists, see
Tanguay, 907 F. Supp. 2d at 182, do not mandate so rigid a rule.
In each of those cases, the Franks challenge failed because the
affiant had no reason to doubt the truthfulness of the allegations
that undergirded the showing of probable cause. See Ranney, 298
F.3d at 78; Castillo, 287 F.3d at 26; United States v. Miller, 753
F.2d 1475, 1478 (9th Cir. 1985).

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force pending the completion of the further proceedings described

below.

This holding is not at odds with our earlier holding that

the district court supportably found probable cause based on the

reformed affidavit. See supra Part II(A). All that is required to

trigger an officer's duty of further inquiry is her knowledge of an

obvious and unexplored reason to doubt the truthfulness of the

allegations. See Ranney, 298 F.3d at 78. When confronted with

such a red flag, the officer should look into the matter even if

she does not believe that what she will discover is likely to

vitiate probable cause. After all, the officer is the only party

who, in this context, has the tools to undertake any meaningful

investigative work.

The trigger for further investigation may function even

when the officer's obvious reason only serves to diminish her

confidence to some modest degree. Pieces of evidence should not be

assessed in isolation: "the whole sometimes can exceed the sum of

the parts, and the appropriate test focuses on the totality of the

circumstances." Mariko v. Holder, 632 F.3d 1, 6-7 (1st Cir. 2011).

A district court is in a different position. The court

is tasked with making a judgment based on what appears within the

four corners of the affidavit (in this case, the reformed

affidavit). It is entitled to assume that the warrant affidavit is

the product of a good-faith investigation and provides a reasonably

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complete picture of the circumstances relevant to probable cause.

See Franks, 438 U.S. at 171 (recognizing presumption of validity of

warrant affidavit). Relying on this implicit representation, a

court may reasonably find probable cause despite some level of

concern about the completeness of the investigation. While the

court below plainly entertained some doubts based on Nolet's

failure to follow investigatory leads, see Tanguay, 907 F. Supp. 2d

at 181-82, those doubts were in the end insufficient to erode

probable cause.

Of course, explanation of those doubts may paint a

different picture. If and when the court is at liberty to factor

the results of a further investigation into the mix, its judgment

may change.

The questions that remain are fact-sensitive, and the

answers are not so apparent that we can decide them without the

benefit of additional factfinding. Consequently, we must return

the case to the district court so that it can make the requisite

findings. On remand, the court must first determine whether the

information known to Nolet gave her an obvious reason to doubt

Wiggin's truthfulness and, thus, triggered a duty of further

inquiry. If so, the court then must ask whether Nolet's doubts

were of such a magnitude that her failure to conduct an additional

inquiry evinced a reckless disregard for the truth as opposed to,

say, mere negligence. See Ranney, 298 F.3d at 78. In responding

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to these two questions, the court is not bound by an affiant's

declaration that she firmly believed in the credibility of the

informant or the truth of his story. Rather, the court may

evaluate such a declaration in light of circumstantial evidence

indicating that the affiant had "obvious reasons to doubt the

veracity of the informant or the accuracy of his reports." St.

Amant v. Thompson, 390 U.S. 727, 732 (1968).

If the answers to these initial questions are in the

affirmative, the court must ask a third question: whether Nolet,

had she made a good-faith effort to dispel those doubts, would have

discovered new information that warranted inclusion in her

affidavit. And if the answer to this third question is also in the

affirmative, the court must consider yet a fourth question: whether

the affidavit, expanded to include that new information, would

continue to support a finding of probable cause. See Castillo, 287

F.3d at 26. We take no view as to either the answers to these

questions or the outcome of the proceedings on remand.

III. CONCLUSION

We need go no further. For the reasons elucidated above,

we remand to the district court for further proceedings consistent

with this opinion. The district court shall reexamine its Franks

determination in light of its further factfinding and, if it now

concludes that suppression is warranted, it shall enter an order to

that effect and transmit the order, along with a statement of its

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findings and reasons, to this court. If, however, the district

court continues to uphold the search, it shall enter an order to

that effect and transmit that order to us, along with a statement

of its findings and reasons. Should either party desire appellate

review of the district court's supplemental order and/or findings

and reasons, he or it may file a new notice of appeal within the

customary time parameters, see Fed. R. App. P. 4(b), which will be

consolidated with the present appeal.

We stay proceedings in this court pending our further

order and retain appellate jurisdiction over this matter. The

parties shall file a joint status report in this court within 60

days following the issuance of this opinion, and at 60-day

intervals thereafter.

So Ordered.

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