United States v. Barnard

United States Court of Appeals
For the First Circuit
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No. 01-2762

UNITED STATES OF AMERICA,

Appellant,

v.

JEFFREY P. BARNARD,

Defendant - Appellee.

_____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. George Z. Singal, U.S. District Judge]

_____________________

Before

Torruella and Lipez, Circuit Judges,

and Schwarzer,* Senior U.S. District Judge

______________________

F. Mark Terison, Assistant U. S. Attorney, and Paula D.
Silsby, United States Attorney, appear on brief for appellant.
Marvin H. Glazier on brief for appellee.

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August 14, 2002
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*
Of the Northern District of California, sitting by
designation.
 SCHWARZER, Senior District Judge. Defendant Jeffrey P.

Barnard was charged in a single-count indictment with being a

felon-in-possession of firearms, in violation of 18 U.S.C.

§ 922(g)(1). He moved to suppress evidence of firearms seized in

a warrant search, contending that the warrant lacked sufficient

information to support a finding of probable cause. The district

court granted the motion on the papers without hearing. United

States v. Barnard, 172 F. Supp. 2d 207 (D. Me. 2001). Following

entry of the suppression order, the government sought

reconsideration, arguing the applicability of the good faith

exception under United States v. Leon, 468 U.S. 897 (1984). The

court denied the motion, and the government timely appealed. We

have jurisdiction pursuant to 18 U.S.C. § 3731 and now reverse.

FACTUAL BACKGROUND

On December 1, 2000, Detective John Glidden of the

Millinocket Police Department obtained a warrant to search

defendant's residence in Millinocket, Maine. The supporting

affidavit provided the following information.

Detective Glidden received two reports from other law

enforcement personnel. First, in a conversation on July 27, 2000,

Probation Officer Paul Kelly conveyed information from a “very

reliable” source (“source”) that defendant owns a .22 caliber rifle

and may also have another firearm at his 22 Kelly Lane residence

and that if police went to defendant’s residence there would be a

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shooting. Second, on November 30, 2000, Sergeant Donald Bolduc

passed along information from a confidential informant (“CI”) whom

Bolduc believed to be “reliable” and who was working with the

Millinocket Police Department for no consideration. The CI

reported having seen an SKS assault rifle and a .22 caliber rifle

the last time he was at defendant’s home on November 13 or 14,

2000. The CI stated that defendant had purchased the SKS

approximately four months earlier from Jason Hartley, a resident of

Millinocket. He further stated that defendant had threatened

people, including him, with the SKS and that defendant kept the

weapon beside his bed while he slept. Finally, the CI stated that

defendant was a felon.

The affidavit further stated that on November 30, 2000,

Detective Glidden ran a criminal records check on defendant that

showed four prior convictions for possessing a firearm after being

convicted of a felony, all within five years preceding the search.

Finally, Detective Glidden stated that he had been a

police officer for eleven years during which time he had written

many search warrants and investigated several cases involving

illegal possession of firearms. In his experience, people who own

firearms usually kept them at their residence.

A justice of the peace (“issuing justice”) issued the

search warrant, and police personnel executed it on December 3,

2000. The search apparently yielded three firearms in defendant’s

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possession, including a .22 caliber rifle and an SKS assault rifle.

DISCUSSION

A. Standard of Review

We review de novo the district court’s “ultimate

determination of whether a given set of facts constituted