United States v. Strother

United States Court of Appeals
For the First Circuit

No. 02-1787

UNITED STATES,

Appellee,

v.

DARYLL J. STROTHER,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Patti B. Saris, U.S. District Judge]

Before

Torruella, Circuit Judge,
Stahl, Senior Circuit Judge,
and Howard, Circuit Judge.

Timothy G. Watkins, Federal Defender Office, for appellant.
John A. Capi, Assistant United States Attorney, with whom
Michael J. Sullivan, United States Attorney, was on brief, for
appellee.

January 28, 2003
 STAHL, Senior Circuit Judge. Defendant-appellant Daryll

J. Strother appeals from his conviction of being a felon in

possession of a firearm in violation of 18 U.S.C. § 922(g)(1). He

contends that the search that led to his arrest and conviction was

not supported by probable cause and that he was wrongly deprived of

a Franks hearing. We affirm the judgment below.

I. BACKGROUND

On April 7, 2000, the government applied for a warrant to

search Strother's residence, located on the first floor of 41

Kingsdale Street in Dorchester, Massachusetts. 41 Kingsdale is a

three-story, three-family residence.

The application in support of the search warrant featured

the affidavit of Federal Bureau of Investigation Special Agent

Nicholas B. Boshears. In his affidavit, Boshears stated that in

February and March of 2000, a cooperating witness ("CW-1") provided

Boshears with information concerning Strother's involvement in

fraudulent check cashing, drug trafficking, and possession of

firearms. Approximately a month before the warrant application,

CW-1 told Boshears that he had personal knowledge that Strother

used the first floor of 41 Kingsdale Street to store cocaine,

heroin, and firearms.1

CW-1 had provided information to Boshears on one previous

occasion, when he advised him of the location of a person wanted on

1
For convenience, we assume that CW-1 is male.

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a federal warrant. CW-1's information in that case proved accurate

and ultimately led to the individual's conviction.

Boshears's affidavit set forth the government's efforts

to corroborate CW-1's information.2 As to Strother's residence,

Boshears stated that a United States Secret Service agent involved

in the investigation had contacted officers of the United States

Postal Police [sic], who in turn interviewed the postal carrier

assigned to deliver mail to 41 Kingsdale. According to Boshears,

the postal carrier verified that mail was delivered to the Strother

family at the first floor of 41 Kingsdale Street, and postal

records also indicated that the first floor was occupied by the

Strother family. The affidavit additionally asserted that,

according to postal records, floors two and three of 41 Kingsdale

Street were occupied by the Brisco family and by Dennis and Mildred

Richardson, respectively.

Based on this information, a magistrate judge issued a

warrant authorizing the search of "the apartment residence of

Daryll J. Strother located on the first floor of 41 Kingsdale

Street, Dorchester, MA . . ." The warrant authorized the police to

search for money, cocaine, drug paraphernalia and records,

firearms, and items showing possession of the premises. The search

2
The corroboration of CW-1's statements concerning Strother's
involvement in fraudulent check cashing, drug trafficking, and
possession of firearms is set forth in detail infra, Section II(A).

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was conducted on April 17, yielding, inter alia, a twelve-gauge

shotgun and a pistol.

On June 14, 2000, the grand jury returned an indictment

charging Strother with being a felon in possession of a firearm in

violation of 18 U.S.C. § 922(g)(1). On December 28, 2001, Strother

moved to suppress evidence seized during the search on the grounds

that (1) the affidavit lacked probable cause, and (2) the affidavit

contained an error that warranted a Franks hearing. Specifically,

his Franks claim challenged Boshears’s assertion that he lived at

the searched residence. The motion attached an affidavit in which

Strother denied ever having received mail there.

In response to Strother's request for a Franks hearing,

the government submitted a second affidavit from Boshears stating

that any error in the original affidavit -- the one supporting the

warrant application -- was unintentional. In the second affidavit,

Boshears attested that he reviewed his file and found a copy of a

March 17, 2000 memorandum from the Postal Service to the Secret

Service agent that stated that 41 Kingsdale "is a three family

residence [where mail was delivered to] Dennis and Mildred

Richardson, The Brisco Family, and The Struthers [sic] Family."

The memorandum further stated that the mail carrier did not have

information as to the specific occupants of each floor. Boshears

stated that he had no recollection whether he sought more detailed

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information from the postal service concerning the occupants of 41

Kingsdale.

The district court held a non-evidentiary hearing on

January 29, 2002. Two days later, by written memorandum, it denied

Strother's motion to suppress and his request for a Franks hearing.

On February 26, 2002, Strother entered a conditional plea

of guilty to a superseding indictment charging the same offense,

pursuant to Fed. R. Crim. P. 11(a)(2). On June 10, 2002, the court

sentenced him to a term of 180 months in prison. It entered

judgment on June 18, 2002, and this appeal followed.

II. DISCUSSION

A. Probable cause

"In reviewing a denial of a suppression motion, the

district court's ultimate legal conclusion, including the

determination that a given set of facts constituted probable cause,

is a question of law subject to de novo review." United States v.

Khounsavanh, 113 F.3d 279, 282 (1st Cir. 1997) (citing Ornelas v.

United States, 517 U.S. 690, 698-99 (1996)). The district court's

findings of historical fact are reviewed for clear error. Id.

A warrant application must demonstrate probable cause to

believe that (1) a crime has been committed (the "commission"

element), and (2) enumerated evidence of the offense will be found

at the place to be searched (the "nexus" element). United States

v. Zayas-Diaz, 95 F.3d 105, 110-11 (1st Cir. 1996). "With regard

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to the 'nexus' element, the task of a magistrate . . . is 'to make

a practical, common-sense decision whether, given all the

circumstances set forth in the affidavit before him . . . there is

a fair probability that contraband or evidence of a crime will be

found in a particular place.'" United States v. Feliz, 182 F.3d

82, 86 (1st Cir. 1999) (quoting Illinois v. Gates, 462 U.S. 213,

238 (1983)).

In determining the sufficiency of an affidavit supporting

a search warrant, we consider whether the "totality of the

circumstances" stated in the affidavit demonstrates probable cause

to search the premises. Khounsavanh, 113 F.3d at 283. We examine

the affidavit "in a practical, common-sense fashion and accord

considerable deference to reasonable inferences the [issuing

judicial officer] may have drawn from the attested facts." United

States v. Barnard, 299 F.3d 90, 93 (1st Cir. 2002) (quoting

Zayas-Diaz, 95 F.3d at 111) (internal quotations omitted). Among

the factors that may contribute to a probable cause determination

are:

whether an affidavit supports the probable
veracity or basis of knowledge of persons
supplying hearsay information; whether
informant statements are self-authenticating;
whether some or all [of] the informant's
factual statements were corroborated wherever
reasonable and practicable (e.g., through
police surveillance); and whether a
law-enforcement affiant included a
professional assessment of the probable
significance of the facts related by the
informant, based on experience or expertise.

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Khounsavanh, 113 F.3d at 284 (quoting Zayas-Diaz, 95 F.3d at 111)

(internal quotations and footnote omitted). None of these factors

are individually indispensable; rather, "stronger evidence on one

or more factors may compensate for a weaker or deficient showing on

another." Id. (quoting Zayas-Diaz, 95 F.3d at 111).

Strother argues that the warrant application failed to

establish CW-1's reliability because CW-1's track record was

limited to one instance of locating an individual wanted by the

police. He also contends that the warrant application was

deficient as to the nexus element: i.e., whether there was probable

cause to believe that firearms were likely to be found at the

searched residence. We disagree and hold that the totality of the

circumstances set forth in the application demonstrates probable

cause.

We need not decide whether the supporting affidavit's

recitation of CW-1's prior assistance to the authorities is

sufficient, standing alone, to establish his reliability. Here,

CW-1's reliability was bolstered by the detail he provided about

Strother's criminal activities -- including drug trafficking,

fraudulent check cashing, and illegal firearms possession -- and by

independent corroboration thereof. See Gates, 462 U.S. at 230

(informant's truthfulness and basis of knowledge are not "entirely

separate and independent requirements to be rigidly exacted in

every case.") First, CW-1 told Boshears that in March, 2000, he

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saw Strother scooping up large quantities of cocaine, and possibly

heroin, into plastic bags on the first floor of 41 Kingsdale; that

Strother carried the narcotics in small metal tins when outside of

his apartment; and that Strother used the first floor of 41

Kingsdale to store cocaine and heroin. These allegations were

corroborated to some degree by, inter alia, Boshears's review of

Strother's criminal record, which included two convictions for

possession of cocaine with intent to distribute; an outstanding

warrant for his arrest on state drug charges; and a veteran Boston

Police Officer's statement that Strother was known to "run drug

sales."

Second, CW-1 told Boshears that Strother was cashing and

providing others with fraudulent checks. According to CW-1, the

check-cashing scheme involved computer-generated checks that were

prepared to look like payroll checks, made payable in amounts less

than $500, and cashed at supermarkets by persons who obtained check

cashing privileges at such stores. Boshears's corroboration of the

existence of and Strother's participation in this scheme included

information that (1) in January 2000, at least 41 fraudulent

payroll checks in amounts ranging from $479.00 to $499.96 were

cashed at Boston-area Stop & Shop stores; (2) also in January 2000,

a person using Strother's social security number had cashed one of

these fraudulent checks; and (3) the veteran Boston Police Officer

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stated that Strother was known to be involved in the distribution

side of a counterfeit check cashing and credit card fraud scheme.

Third, CW-1 told Boshears that in March, 2000, he had

personally observed two firearms -- a twelve-gauge pump-style

shotgun and a nine-millimeter pistol -- on the first floor of 41

Kingsdale. To determine whether Strother’s possession of these

firearms was evidence of a crime, Boshears reviewed records

maintained by the Massachusetts Criminal History Systems Board and

learned that he had been convicted of several felonies, including,

in 1985, assault to kill, assault and battery with a dangerous

weapon, and carrying a dangerous weapon. In his affidavit,

Boshears also stated that he relied on his own knowledge that

(1) under federal law, it is a criminal
offense for a previously convicted felon to
possess a firearm or ammunition that has
crossed a state line at any time after its
manufacture; (2) most firearms, and all or
almost all ammunition, recovered by law
enforcement in Massachusetts were manufactured
outside of Massachusetts; and (3) most people
store their firearms in their homes and
generally keep them for long periods of time
because firearms are expensive, do not wear
out easily, and are difficult to acquire,
especially by persons who possess them
unlawfully.

The totality of these elements -- CW-1's personal

knowledge as to the location of the drugs and firearms, the

specificity and detail of CW-1's information as to the counterfeit

check-cashing scheme, the independent corroboration of several

elements of Strother's criminal activity (including the veteran

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Boston police officer's statements), and Strother's prior

convictions -- supports the existence of probable cause in this

case. See Khounsavanh, 113 F.3d at 284. Especially when

considered in conjunction with the reliability established by CW-

1's track record, we see no error in the district court's

determination that the search warrant was lawful.

B. Franks hearing

We review the court's denial of Strother's motion for a

Franks hearing for clear error. See United States v. Grant, 218

F.3d 72, 76 (1st Cir. 2000). In Franks v. Delaware, 438 U.S. 154

(1978), the Supreme Court held that a defendant is entitled to a

hearing to challenge the truthfulness of statements made in an

affidavit supporting a search warrant if he makes a substantial

preliminary showing that (1) a statement in the affidavit was

knowingly and intentionally false, or made with reckless disregard

for the truth, and (2) the falsehood was necessary to the finding

of probable cause. Id. at 171-172.

It is undisputed that the warrant application contained

inaccurate statements as to the government's efforts to confirm

Strother's address. Boshears's initial affidavit stated that the

relevant postal carrier had verified that mail was delivered to the

Strother family at the first floor of 41 Kingsdale Street, and that

postal records indicated that the first floor was occupied by the

Strother family. Later, in response to Strother's motion to

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suppress, Boshears stated that the postal service confirmed only

that mail for "the Struthers [sic] Family" was delivered to 41

Kingsdale, and that the mail carrier did not have information as to

the specific occupants of each floor.

We agree with the district court, however, that Strother

did not satisfy the second prong of the Franks test. Even assuming

that Boshears's misstatements were made with the requisite animus,

they were not necessary to the finding of probable cause. As

discussed supra, CW-1's identification of the first floor of 41

Kingsdale as the locus of Strother's criminal activity was rendered

reliable, at least to some degree, by his track record and was

corroborated in large measure by the Postal Service's information

that Strother lived on one of the three floors of the building.

The totality of this evidence was sufficient to support the

probable cause determination absent independent corroboration that

Strother lived specifically on the first floor.

We do not condone the misstatement on the search warrant

application, regardless of whether it resulted from an innocent

oversight, negligence or willful misconduct. Because the

misinformation was not necessary to support the magistrate judge's

finding of probable cause, however, we need go no further. "[I]f,

when material that is the subject of the alleged falsity or

reckless disregard is set to one side, there remains sufficient

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content in the warrant affidavit to support a finding of probable

cause, no hearing is required." Id. at 171-172.

We AFFIRM the conviction.

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