United States Court of Appeals
For the First Circuit
No. 08-1856
UNITED STATES OF AMERICA,
Appellee,
v.
SEAN CROTO,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
[Hon. David M. Cohen, U.S. Magistrate Judge]
Before
Howard, Selya, and Hansen,*
Circuit Judges.
Robert J. Ruffner on brief for appellant.
Margaret D. McGaughey, Appellate Chief, and Paula D. Silsby,
United States Attorney, on brief for appellee.
June 24, 2009
*
Of the Eighth Circuit, sitting by designation.
HANSEN, Circuit Judge. Sean Croto conditionally pleaded
guilty to possessing firearms after having been convicted of a
felony in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). He now
appeals the denial of his motion to suppress evidence obtained
pursuant to a search warrant – specifically, the guns that formed
the basis for his conviction – asserting that the warrant was not
supported by probable cause. We affirm.
I.
On February 24, 2007, Michael Berube and Todd Sargent
contacted the Biddeford, Maine, Police Department to make a
complaint about Sean Croto. Two Biddeford police officers were
dispatched to a residence to take the complaint. Sargent and
Berube told the officers that they were acquaintances of Sean
Croto, identified his address as 81 Foss Street, second floor, and
gave the officers his birth date. They told the officers that
Croto had been telling them for a few months about his "anarchy
plans" to blow up the Biddeford Police Department with Molotov
cocktails and to kidnap the city's mayor. Sargent explained that
Croto had outlined the plans again at Croto's apartment earlier
that day and had asked Sargent to join in the action, but Sargent
told Croto he wanted nothing to do with it. Croto had also shown
Sargent a .22 pistol and a rifle. Sargent told the officers that
Croto kept the loaded .22 pistol with a clip in his hunting vest
and that he kept his guns next to his desk in the living room.
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Sargent also told the officers that he had seen guns in Croto's
bedroom. Berube told the officers that he had visited Croto at his
prior residence located at 42 Sullivan Street where he saw all
kinds of guns and drugs.
Detective Richard Gagne conducted separate recorded
interviews with Berube and Sargent, and he asked each of them why
they had waited so long to report Croto's anarchy plans. Sargent
responded that he did not believe Croto would carry out his plans,
but he was fed up with him selling drugs to young people. Berube
responded that he was fed up with Croto selling marijuana to his
friends and that he was concerned that Croto would carry out his
plans to blow up the police station.
Detective Gagne investigated Croto's criminal history,
verifying that his birth date matched the date provided by Berube
and Sargent. He discovered that Croto had been convicted of
aggravated trafficking of scheduled drugs and of aggravated
assault, both of which were state felony convictions. Detective
Gagne sought a search warrant on February 25, 2007, authorizing the
search of a particularly described apartment on the second floor of
81 Foss Street. Justice Thomas Humphrey of the Maine Superior
Court issued the search warrant on February 26, 2007, and Biddeford
police officers executed it the same day. The officers seized
ammunition and three firearms – a .22 caliber pistol, a 12-gauge
shotgun, and a Winchester 30-30 lever action rifle.
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Croto was charged with being a felon in possession of
three firearms, and he filed a motion to suppress the firearms
seized during the February 26, 2007 warranted search.1 The
magistrate judge denied Croto's request for a Franks2 hearing and
recommended that the district court deny the motion to suppress.
The magistrate judge concluded that Detective Gagne's affidavit
provided probable cause to support the warrant, and even if it did
not, that the Leon3 good faith exception applied. The district
court adopted the magistrate judge's recommendation, and thereafter
Croto entered a conditional guilty plea to the charges, reserving
the right to appeal the denial of his motion to suppress.
II.
"In reviewing the district court's denial of a
defendant's motion to suppress, we review the district court's
finding of fact for clear error and its legal determinations,
including whether a particular set of facts constitutes probable
cause, de novo.” United States v. Rodrigue, 560 F.3d 29, 32 (1st
1
Croto was also charged with, and he pleaded guilty to,
conspiring to possess with intent to distribute and distributing
marijuana, 21 U.S.C. §§ 841(a)(1), 841(b)(1)(D), and 846, and
using and carrying a firearm during and in relation to a drug
trafficking crime, 18 U.S.C. § 924(c)(1)(A). Croto's motion to
suppress and his briefs in this court address themselves only to
the guns seized during the search and the related conviction for
being a felon in possession of a firearm. The other convictions
are not at issue in this appeal.
2
Franks v. Delaware, 438 U.S. 154 (1978).
3
United States v. Leon, 468 U.S. 897 (1984).
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Cir. 2009) (internal marks omitted). Croto is entitled to relief
only if "no reasonable view of the evidence supports" the district
court's denial of his motion. United States v. Belton, 520 F.3d
80, 82 (1st Cir.), cert. denied, 129 S. Ct. 286 (2008). We give
"great deference" to the issuance of a search warrant. United
States v. Scalia, 993 F.2d 984, 986 (1st Cir. 1993) (internal marks
omitted). Our inquiry is limited to verifying that a substantial
basis existed to support the issuing judge's "common-sense
determination that, given all the circumstances set forth in the
affidavit, including the veracity and basis of knowledge of persons
supplying hearsay information, there was a fair probability that
contraband or evidence of a crime would be found in a particular
place." Id. (internal marks and emphasis omitted).
Croto takes issue with the veracity of the individuals
providing the information contained in Detective Gagne's affidavit
but does not dispute that those facts, if credible, supply the
necessary quantum of probable cause to support the issuance of a
search warrant. Croto is correct to point out that most of the
information in Detective Gagne's affidavit was supplied by Berube
and Sargent rather than firsthand information obtained by law
enforcement personnel. Detective Gagne's affidavit repeated the
information provided by Berube and Sargent to the police officers
who took their original statements, including information about
Croto's anarchy plans and Sargent's statements that Croto had
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discussed the plans that same day and had shown Sargent two
firearms at his apartment. The two citizen informants were named
in the affidavit. The affidavit also described Detective Gagne's
own investigation as verifying Croto's date of birth, address, and
his convictions for felony crimes.
There is nothing wrong with a police officer relying on
information provided by others to support the warrant application
he makes, as long as the affidavit provided to the court
establishes a sufficient basis for crediting the informant's
reliability and his basis for knowledge of the facts supplied. See
United States v. McFarlane, 491 F.3d 53, 57 (1st Cir. 2007) (face-
to-face encounter with informant enhances officer's ability to
judge previously unknown informant's veracity and provided
sufficient basis to credit the informant's statement). Croto
relies almost exclusively on case law dealing with information
provided by confidential informants who are not identified in the
affidavit provided to the issuing judge and who often provide
information to police officers in exchange for leniency related to
their own criminal conduct. Here, Berube and Sargent identified
themselves to the officers, which in itself bolsters their
credibility because it opens them up for charges related to making
a false report. See United States v. Brown, 500 F.3d 48, 54 (1st
Cir. 2007) ("Since he was known to the police, he could have been
held accountable if his information proved inaccurate or false.").
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Further, Berube and Sargent willingly provided the information and
received nothing in return; they were concerned citizens reporting
potential criminal activity, whose stories may be more easily
accepted than those of confidential informants whose motivations
make their stories more suspect. See Scalia, 993 F.2d at 987 ("In
the absence of a prior record of reliability, we have recognized
that, where the informant was 'not a professional but a private
citizen with no known criminal record or other criminal contacts,
who came forward on his own, the informant's story may be more
easily accepted ....'") (quoting United States v. Campbell, 732
F.2d 1017, 1019 (1st Cir. 1984) (some internal marks omitted)).
The details of the information, as well as the timeliness
of it, also lend to the credibility of the information provided by
Berube and Sargent. See United States v. Strother, 318 F.3d 64, 68
(1st Cir. 2003) (noting that confidential informant's reliability
was bolstered by the level of detail he provided about the suspect
sufficient to overcome the informant's lack of a track record of
providing accurate information). Detective Gagne's affidavit
relayed that Sargent gave explicit details about the guns that
Croto showed him, describing the rifle as an "old fashion[ed] kind"
with a lever and a large brass bullet, as well as their location
inside Croto's apartment, stating that the .22 pistol was kept
loaded with a clip in Croto's hunting vest and the guns were kept
next to a desk in the living room. The affidavit also informed the
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issuing judge that Sargent had seen the guns in Croto's apartment
on the same day Sargent reported it to the officers and Detective
Gagne completed the affidavit. Finally, Berube's statements that
Croto told him about his plan to blow up the police station and
kidnap the mayor and that Berube had seen numerous firearms in
Croto's former residence corroborate Sargent's more detailed
recitation. See United States v. Schaefer, 87 F.3d 562, 566 (1st
Cir. 1996) ("[C]onsistency between the reports of two independent
informants helps to validate both accounts."). Considering the
totality of the circumstances bearing on the named informants'
"veracity, reliability, and basis of knowledge," United States v.
Romain, 393 F.3d 63, 71 (1st Cir. 2004), cert. denied, 545 U.S.
1122 (2005), we conclude that the affidavit provided sufficient
probable cause to support issuance of the search warrant.
Croto argues that the affidavit was misleading to the
extent that it omitted Berube's and Sargent's statements revealing
their bias against Croto. Croto argues that had the statements
been included in the affidavit, they would have sufficiently
undermined the informants' credibility so as to render the
affidavit inadequate to support a finding of probable cause.
Although Croto sought a Franks hearing in the district court, he
does not challenge the denial of a hearing on appeal. He addresses
the omitted information on appeal only as it bears on the probable
cause determination.
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We agree with the district court that even if Detective
Gagne had included Berube's and Sargent's statements in his
affidavit about why they delayed in contacting the police
concerning Croto's anarchy plan, the issuing judge still would have
found probable cause to issue the warrant. The district court
concluded that the omitted information did not minimize or alter
the detailed facts set out in the affidavit that provided probable
cause to believe that Croto was a convicted felon in possession of
firearms. Regardless of how long the two informants had known
about Croto's alleged anarchy plan, Sargent contacted the police on
the very day he saw firearms in Croto's apartment, establishing
probable cause that police officers would find evidence of a crime
at the place to be searched. The district court further concluded
that the omitted facts provided a plausible explanation for why
Berube and Sargent, as concerned citizens, waited to contact the
police – namely, that they had had enough of observing Croto deal
drugs to young people and of listening to his anarchy plans that
they decided to do something about it. We agree with the district
court that the omitted information would not have changed the
issuing judge's probable cause determination.
III.
The district court's denial of Croto's suppression motion
is affirmed.
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