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.
-2-
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).
-3-
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
-4-
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
-5-
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.
-6-
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
-7-
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
-8-
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
-9-
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
-10-
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
-11-
content in the warrant affidavit to support a finding of probable
cause, no hearing is required." Id. at 171-172.
We AFFIRM the conviction.
-12-