United States v. Rigaud , 684 F.3d 169 ( 2012 )

United States Court of Appeals
For the First Circuit
No. 11-1260
UNITED STATES OF AMERICA,
Appellee,
v.
CARLENS RIGAUD,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nathaniel M. Gorton, U.S. District Judge]
Before
Boudin, Lipez, and Howard,
Circuit Judges.
Valerie S. Carter, with whom Carter & Doyle LLP was on brief,
for appellant.
Kelly Begg Lawrence, Assistant U.S. Attorney, with whom Carmen
M. Ortiz, U.S. Attorney, was on brief, for appellee.
June 29, 2012
LIPEZ, Circuit Judge. After the government disclosed new
information regarding its confidential informant ("CI") in 2010,
appellant Carlens Rigaud moved to suppress evidence recovered in
2006 during the execution of a search warrant in Malden,
Massachusetts. In so doing, Rigaud sought an evidentiary hearing
to establish that there were material omissions from an affidavit
submitted in support of the request for a search warrant that
undermined the probable cause finding on which the warrant was
issued. The district court denied Rigaud's motion. Rigaud then
pleaded guilty to federal drug trafficking charges pursuant to an
agreement that expressly reserved his right to appeal the denial of
his motion to suppress. He now pursues that appeal. After careful
review of the record, we affirm the district court's judgment.
I.
A. Factual Background
In June 2006, Sergeant Kevin Molis of the Malden Police
Department applied for a no-knock warrant to search 95 Medford
Street, relying in his affidavit on information that he received
from CI Betty Trainor (a/k/a Patriot), Trainor's five controlled
buys at 95 Medford Street in May and June 2006, his surveillance of
95 Medford Street, and other information. On June 9, 2006, a state
court judge approved Molis's application and issued a no-knock
search warrant for 95 Medford Street. Molis, other state and local
authorities, and federal agents of the Bureau of Alcohol, Tobacco,
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Firearms and Explosives ("ATF") executed the search warrant that
day and seized, among other things, two handguns and 76 bags of
crack cocaine weighing a total of 40.35 grams. Rigaud, his brother
Carlin Rigaud, Kettia Saint Louis, and others were present during
the search and were arrested and charged with state drug and
firearm violations. Rigaud was subsequently released on bail.
While Rigaud was out on bail, Trainor introduced him to
ATF Special Agent Karen Carney-Hatch, who was acting in an
undercover capacity. On August 24, 2006, Carney-Hatch met Rigaud
in a parking lot in Malden, Massachusetts, and purchased from him
approximately three grams of crack cocaine for four hundred
dollars. During the transaction, Carney-Hatch was equipped with a
body wire and recorder.
On October 26, 2006, ATF Special Agent John Mercer, Jr.,
submitted an affidavit in support of an application for arrest and
search warrants and criminal complaints pertaining to a number of
individuals, including Carlens and Carlin Rigaud, described as
members of a gang known as the "Haitian Mob." Mercer's affidavit
did not request permission to search 95 Medford Street, but instead
sought permission to search two other residences of individuals
allegedly involved with the Haitian Mob's drug trade. Based on
Mercer's affidavit, a federal magistrate judge issued arrest
warrants for Rigaud and others and search warrants for the two
residences described in the affidavit. Rigaud was arrested on
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October 26, 2006, and indicted on November 29, 2006, on multiple
federal drug trafficking and weapons charges.
At Rigaud's impending trial on the federal charges,
prosecutors planned to introduce evidence recovered during the June
2006 search of 95 Medford Street that led to Rigaud's state arrest
and charges. On February 4, 2010, during preparation for the
federal trial, Trainor admitted to prosecutors that prior to each
of the five controlled buys that she made in May and June 2006, she
hid forty dollars of her own money in her underwear. She then used
that money to buy for her personal use an additional bag of crack
cocaine, which she kept concealed from detectives by hiding it in
her vagina. The government disclosed this information to Rigaud
the day Trainor provided it. On February 19, 2010, the government
also disclosed to Rigaud that Trainor had admitted that "she
continued to regularly buy and use crack cocaine" between the
spring of 2006 and the spring of 2007, a period that included the
five controlled buys.
B. Procedural Background
On March 26, 2010, in response to the government's
disclosures, Rigaud filed a motion to suppress all of the evidence
seized as a result of the search warrant that was executed on June
9, 2006. Rigaud also sought to suppress the "fruits" of the August
24, 2006, transaction during which he sold crack cocaine to Carney-
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Hatch.1 The district court held a suppression hearing on July 1,
2010, and denied the motion on July 7, 2010. After the motion was
denied, Rigaud entered a plea agreement with the government on
December 6, 2010. Under the terms of the agreement, Rigaud pleaded
guilty to three drug trafficking charges.2 In return, the
government dismissed two gun-related charges3 and withdrew the
information it had filed to establish two felony drug convictions
justifying a sentence enhancement. Rigaud was sentenced to 188
months' imprisonment followed by four years of supervised release.
As noted, pursuant to the plea agreement, Rigaud retained the right
to appeal the district court's denial of his motion to suppress.
II.
Rigaud focuses on the alleged inadequacy of the Molis
affidavit that led to the June 9, 2006 search of 95 Medford Street.
The Molis affidavit stated that before each of Trainor's controlled
1
Although Rigaud never specifies what these fruits are, we
assume that he refers to the three grams of crack cocaine sold to
Carney-Hatch for four hundred dollars and the audio recording of
that transaction captured by Carney-Hatch's body wire.
2
Rigaud pleaded guilty to one count of Conspiracy to
Distribute and Possess with Intent to Distribute Cocaine Base in
violation of 21 U.S.C. § 846, one count of Possession with Intent
to Distribute Cocaine Base in violation of 21 U.S.C. § 841(a)(1),
and one count of Possession with Intent to Distribute and
Distribution of Cocaine Base in violation of 21 U.S.C. § 841(a)(1).
3
The government dismissed one count of Felon-in-Possession of
Firearm and Ammunition in violation of 18 U.S.C. § 922(g)(1) and
one count of Possession of Firearm in Furtherance of Drug
Trafficking Crime in violation of 18 U.S.C. § 924(c)(1)(A).
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buys, "[i]t was determined that [Trainor] was not in possession of
cocaine." However, the affidavit provided no details about how
detectives made that determination. In light of Trainor's
admission that she carried her own money into, and drugs out of, 95
Medford Street during the controlled buys, Rigaud alleges that
Trainor could not have been searched before or after the buys.
Moreover, he asserts that Trainor's dishonesty and concurrent drug
use rendered her information fatally untrustworthy. Thus, Rigaud
claims that he was entitled to an evidentiary hearing pursuant to
Franks v. Delaware, 438 U.S. 154 (1978). He argues that he could
have shown that (1) Molis recklessly omitted critical information
regarding his search of Trainor, including the failure to search
her at all; and (2) if the affidavit had disclosed the failure to
search Trainor, there would not have been sufficient probable cause
and the warrant would not have been issued.4 Rigaud further argues
that there was insufficient support in the Molis affidavit to
justify issuing a no-knock warrant.
Rigaud also challenges the Mercer affidavit that led to
his October 26, 2006 arrest, alleging that it omitted the same
critical information as the Molis affidavit. Finally, Rigaud
4
Rigaud's argument that he was entitled to an evidentiary
Franks hearing is his fallback position. He first argues that he
was entitled to suppression. We focus our analysis on the Franks
issue. If Rigaud was not able to make the showing required for a
Franks hearing, it follows that he also was not entitled to have
his motion to suppress granted.
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argues that the good faith exception articulated in United States
v. Leon, 468 U.S. 897 (1984), does not overcome the defects in the
affidavits or the lack of probable cause.
A. The Molis Affidavit
1. Entitlement to a Franks Hearing
The Fourth Amendment protects "[t]he right of the people
to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures," U.S. Const. amend. IV, and
generally requires law enforcement officers to secure a warrant
supported by probable cause prior to effecting a search or seizure,
see United States v. Paneto, 661 F.3d 709, 713 (1st Cir. 2011).
Probable cause exists when the totality of the circumstances
suggest that "there is a fair probability that contraband or
evidence of a crime will be found in a particular place." United
States v. Hicks, 575 F.3d 130, 136 (1st Cir. 2009) (internal
quotation marks omitted).
As in this case, information supporting probable cause
may be set out in an affidavit submitted with the application for
a search warrant. Although "[t]here is . . . a presumption of
validity with respect to the affidavit supporting the search
warrant," that presumption may be refuted during a so-called Franks
hearing. Franks, 438 U.S. at 171. However, to get a Franks
hearing, a party must first make two "substantial preliminary
showings": (1) that a false statement or omission in the affidavit
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was made knowingly and intentionally or with reckless disregard for
the truth; and (2) the falsehood or omission was necessary to the
finding of probable cause.5 See id. at 155-56; Hicks, 575 F.3d at
138; United States v. Castillo, 287 F.3d 21, 25 (1st Cir. 2002).
Failure to make a showing on either element dooms a party's hearing
request. In the event that a hearing is granted and "at that
hearing the allegation of perjury or reckless disregard is
established by the defendant by a preponderance of the evidence,
and, with the affidavit's false material set to one side [or the
omitted material included], the affidavit's . . . content is
insufficient to establish probable cause, the search warrant must
be voided and the fruits of the search excluded to the same extent
as if probable cause was lacking on the face of the affidavit."
Franks, 438 U.S. at 156. In this case, we need not address the
first Franks requirement, because Rigaud has plainly failed to meet
the second (establishing the effect of the omission on the probable
cause showing).
The district court noted that the "proper inquiry is not
whether probable cause would have existed if the affidavit had
5
There is "an important difference between the 'necessary'
inquiries when the challenge is to the omission of an allegedly
material fact rather than to the inclusion of an allegedly false
material statement. With an omission, the inquiry is whether its
inclusion in an affidavit would have led to a negative finding by
the magistrate on probable cause. If a false statement is in the
affidavit, the inquiry is whether its inclusion was necessary for
a positive finding by the magistrate on probable cause." United
States v. Castillo, 287 F.3d 21, 25 n.4 (1st Cir. 2002).
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revealed what Trainor hid going into and returning from the
controlled buys but rather whether probable cause could be found if
the affidavit stated that Molis did not search Trainor's underwear
and body cavities and was generally more explicit about the
searches actually performed." The court found that because
underwear and body cavity searches are not required in controlled
buys, a magistrate would not find an "affidavit fatally defective
for explicitly acknowledging a failure to do what the law does not
require." Moreover, despite Trainor's later admissions, the
district court found that the controlled buys apparently went
"exactly as planned and, on five occasions, resulted in the
purchase of drugs at the premises under investigation."
Regarding Trainor's general trustworthiness, the district
court found that "Trainor's lack of candor was, ultimately,
unnecessary to the finding of probable cause. The affidavit
provided ample grounds to credit her preliminary statements and to
corroborate what she said and did notwithstanding subsequent
disclosures of her drug use or undisclosed purchases." Based on
these findings, the district court concluded that "the totality of
the circumstances sufficiently demonstrated that Trainor was
substantially reliable and that, even had the alleged omissions
been included in Molis's affidavit, there was probable cause to
issue the search warrant."
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The district court's finding that the requisite showing
for a Franks hearing was not made will be disturbed only if it is
clearly erroneous. United States v. Cartagena, 593 F.3d 104, 112
(1st Cir. 2010). Clear error "exists only when we are left with
the definite and firm conviction that a mistake has been
committed." United States v. D'Andrea, 648 F.3d 1, 14 (1st Cir.
2011) (internal quotation mark omitted).
We agree with the district court that the disclosure that
Trainor was not searched or was searched inadequately would not
have resulted in a negative finding on probable cause. We note, as
the district court did, that the controlled buys went essentially
as planned - Trainor entered 95 Medford Street with marked
government money and exited the apartment with crack cocaine. The
fact that Trainor took her own money into 95 Medford Street and
purchased drugs for personal use would hardly undermine the
assertion that drugs were being sold in the apartment. If
anything, Trainor's side purchases would support probable cause to
believe that drugs were, in fact, being sold there.
Moreover, the Molis affidavit states that a number of
sources independent of Trainor suggested that drugs were being sold
from 95 Medford Street. For example, anonymous calls were received
by the Malden Police Drug Hotline, the Malden Police dispatcher,
and the Malden Drug Unit, each reporting ongoing drug activity at
95 Medford Street. The caller to the Drug Unit said that a dozen
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people per day visited the apartment for brief periods, which led
him to believe that drugs were being sold there. Molis also
received information from Malden Police Chief Kenneth Coye, who
told Molis that an elected official had contacted him and conveyed
constituent complaints about drug activity at 95 Medford Street.
Additionally, during the two weeks preceding the warrant
application, the Malden Police Drug Unit conducted surveillance of
95 Medford Street and observed various cars making brief visits to
the apartment. Officers ran the license plates of some of these
visitors and discovered that the registered owners of some of the
vehicles had previous drug-related convictions, and one owner had
a number of open drug-related cases.
Molis and other detectives also observed individuals
associated with 95 Medford Street engage in activity that the
detectives believed was consistent with counter surveillance
activity, including "scrutinizing activities in the area
. . . [and] monitoring any vehicles that were parked in the area
that contained occupants." Molis and the other detectives saw
individuals remain outside near the rear door of 95 Medford Street
while drug activities were occurring. On one occasion, Molis and
Sergeant Michael Goodwin attempted to follow a car that had just
dropped someone off at 95 Medford Street. Molis said that the
driver engaged in what the detectives believed to be "obvious
counter surveillance driving by traveling in a manner that appeared
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deliberately inexpedient and designed to put them behind our
unmarked vehicle in order to monitor our activities." Another
detective observed that "some males upon returning to their
vehicles after exiting . . . 95 Medford [Street] would then circle
the block before leaving the area." Molis believed this to be "a
counter surveillance maneuver designed to detect if the subject
[was] being followed."
We also agree with the district court that ample
corroboration of the information that Trainor provided neutralizes
any apparent untrustworthiness brought to light by her late
disclosures. Trainor told Molis that she had purchased crack
cocaine from seven or eight different people in an apartment at 95
Medford Street. She said that all of the people from whom she had
purchased drugs were black, and two were female. Trainor stated
that she would sometimes see as many as six men in possession of
handguns inside 95 Medford Street. She said that she had seen a
man who went by "C" with a handgun in his waistband and had also
seen handguns on a table in the apartment. Trainor also described
the door through which she had entered 95 Medford Street as being
brown and tan with a doorbell, a peephole, and the number "95"
affixed to it. Although some of the information that Trainor
provided, particularly information about the activity inside the
apartment, did not lend itself to corroboration prior to the
preparation of his affidavit, Molis was able to confirm key pieces
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of the information that Trainor provided. For example, after
speaking with Trainor, Molis visited 95 Medford Street "during the
early morning hours" and corroborated the information that Trainor
gave about the outside and entrance to the apartment. He confirmed
that the back door of 95 Medford Street had a peephole and a piece
of white tape with "95 Medford" written on it affixed to the upper
part of the door. Molis photographed the door and showed the
photograph to Trainor. Trainor confirmed that it was the door
through which she had entered 95 Medford Street to buy crack
cocaine.
Similarly, Trainor provided Molis with the telephone
number that she called to arrange purchases of crack cocaine at 95
Medford Street. She did not provide any of the sellers' actual
names but did say that she had purchased crack cocaine from two
males who went by "C" and "Little C." Trainor said that she
thought C and Little C were brothers. Detective Richard Connor of
the Everett Police Drug Unit indicated to Molis that based on
information he received from Sergeant George Keralis of the
Southern Middlesex Drug Task Force, he believed that a black man
named Little C sold crack cocaine. Connor was also in possession
of a telephone number belonging to Little C. The number Connor
showed Molis matched the number that Trainor gave Molis and was the
same number that Trainor used to set up the controlled buys. When
Molis followed up with Keralis directly, Keralis told him that his
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information about Little C came from a reliable confidential
source.
In addition, Molis discovered through the Motor Vehicles
Database that a woman named Kettia Saint Louis was registered as
residing at 95 Medford Street and confirmed with the Postal Service
that a person with the last name Saint Louis received regular mail
at that address. Molis showed Trainor a picture of Saint Louis.
Trainor identified her as one of the females that she had seen at
95 Medford Street from whom she had purchased crack cocaine.
Based on the information from Trainor and other sources
set forth in Molis's affidavit, we conclude that the district court
did not err by finding that any omission about the lack of an
underwear or body cavity search of Trainor was not critical to the
probable cause finding. Because Rigaud was unable to satisfy the
second Franks requirement, the district court did not err by
declining to hold a Franks hearing.6
2. The No-Knock Warrant
As he did before the district court, Rigaud alleges that
the contents of the Molis affidavit "failed to establish probable
6
Because we conclude that the district court did not err in
its evaluation of the affidavit, we do not reach Rigaud's argument
regarding the Leon good faith exception. See United States v.
Leon, 468 U.S. 897 (1984) (holding that evidence obtained in good
faith by law enforcement officers relying upon a search warrant may
be used in a criminal trial even if the warrant is subsequently
deemed invalid).
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cause justifying the issuance of a no-knock warrant."7 He argues
that the only justification provided for the no-knock warrant was
Trainor's statement that she had seen guns inside 95 Medford Street
on previous occasions. Rigaud alleges that Trainor's statement
alone was insufficient to justify the no-knock warrant and further
argues that, because Trainor was untruthful about the side buys,
her word does not suffice. Thus, Rigaud argues, evidence recovered
during the search of 95 Medford Street pursuant to the no-knock
warrant should have been suppressed.
The government argues that under Hudson v. Michigan, 547
U.S. 586 (2006), the exclusionary rule does not apply to violations
of the knock-and-announce rule. Thus, Rigaud was not entitled to
suppression on that basis. The government is right. See Hudson,
547 U.S. at 599; United States v. Garcia-Hernandez, 659 F.3d 108,
112 (1st Cir. 2011). Rigaud's argument for suppression fails on
that basis alone.8
7
The district court did not make a determination about the
no-knock element of the search warrant.
8
To the extent Rigaud argues that permission to forego
knocking and announcing requires its own probable cause
determination, he misstates the law. Reasonable suspicion is the
proper standard. See Richards v. Wisconsin, 520 U.S. 385, 394
(1997). That standard is easily met here in light of Trainor's
observations inside 95 Medford Street, where she had seen as many
as six men in possession of handguns as well as handguns resting on
a table inside the apartment. As discussed, despite Trainor's
failure to disclose that she carried her own money into and drugs
out of the apartment, her information was otherwise trustworthy.
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B. The Mercer Affidavit
Rigaud's suppression arguments based on the Mercer
affidavit are difficult to understand. First, he argues that the
fruits of Carney-Hatch's August 24, 2006, undercover buy should
have been suppressed because Trainor, who introduced Carney-Hatch
and Rigaud, "had been using crack without the government's
permission and her observations were undoubtedly affected by her
addiction." He also argues that the Mercer affidavit was "as
materially disingenuous as Molis'[s] . . . because he adopts the
legitimacy of the five controlled buys [and] . . . vouches for
[Trainor,] boasting that she has provided accurate, truthful, and
reliable information in the past and continues to do so in the
present" (internal quotation marks omitted). Rigaud alleges that
if Mercer's affidavit had stated that Molis had not searched
Trainor or had searched her inadequately, there would have been
insufficient probable cause to issue warrants and, thus, "any
fruits from the search and arrest should have been suppressed."
Regarding the fruits of the ATF undercover buy, the
government argues that because Rigaud did not identify a
constitutional violation related to that buy, suppression is
inappropriate. The government also argues that even if information
about Trainor's side buys and her drug use were included in the
Mercer affidavit, there was sufficient probable cause to issue the
search and arrest warrants.
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The government is correct that the buy was not a search
or seizure and hence it did not implicate Rigaud's Fourth Amendment
rights. Thus, the exclusionary rule is simply inapplicable. See
Garcia-Hernandez, 659 F.3d at 112. To the extent that Rigaud seeks
to challenge the Mercer affidavit as the basis for subsequent
search and arrest warrants, he states only that "the warrants
should not have issued and any of the fruits from the search and
arrest should have been suppressed." This undeveloped argument
fails for the same reason that the challenge to the Molis affidavit
fails.
Affirmed.
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