United States v. Fleury
842 F.3d 774
1st Cir.2016Background
- Police investigated a Peabody home invasion; surveillance and an anonymous tip led to a cooperating informant (CI) who admitted participation and agreed to work with ATF Agent Eric Kotchian.
- The CI wore a recording device at meetings with suspects; an April 21, 2014 recording captured Fleury saying a gun was at his house and that he had removed the magazine previously.
- The CI later reported an April 25 meeting in which Fleury removed a pistol from a closet and put it in a shoulder holster; officers corroborated several CI details (photo ID of Fleury, residence, recent arrest, jacket location).
- Kotchian’s warrant affidavit described the CI as reliable and disclosed some recorded statements, but omitted certain CI background (limited prior informant work, recent drug use, some prior convictions) and did not recount LaFratta’s admonition to move the gun or the delay in the CI’s reporting.
- A magistrate issued a warrant on May 9, 2014; the executed search recovered a pistol and holster. Fleury moved to suppress and requested a Franks hearing; the district court denied suppression, Fleury pleaded guilty reserving this appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Kotchian’s affidavit was misleading by omission and thus invalid under Franks | Affidavit overstated CI reliability and omitted material facts about CI’s drug use, limited informant history, and delay in reporting, undermining probable cause | Affidavit contained independent recorded evidence (Fleury’s recorded admissions) sufficient for probable cause; omissions were cumulative or immaterial | Court affirmed: omissions were misleading but unnecessary to decide Franks because recorded statement alone supplied probable cause |
| Whether recorded statements were stale or showed incentive to remove the gun before the warrant | Fleury argued domestic disputes and comments about moving the gun made the April 21 recording stale and suggested he might have moved the firearm | Government argued recorded admission of a gun in the residence, plus agent’s training-based assertion firearms remain after two weeks, created a fair probability the gun remained at home | Held probable cause existed; statements not stale and provided a sound basis to search the residence |
| Whether officer acted knowingly or recklessly in omitting facts from the affidavit | Fleury alleged reckless or intentional omissions regarding CI background and drug use | Government did not need to prove officer’s mental state because recorded evidence independently provided probable cause | Court declined to decide recklessness; independent recorded evidence made the omissions immaterial to probable cause |
| Standard for reviewing magistrate’s probable cause determination on appeal | N/A (procedural) — review de novo of probable cause; factual findings reviewed for clear error | N/A | Applied de novo review and affirmed district court decision |
Key Cases Cited
- United States v. McLellan, 792 F.3d 200 (1st Cir. 2015) (standard for practical, common-sense probable cause review)
- United States v. Brunette, 256 F.3d 14 (1st Cir. 2001) (probable cause as a practical, common-sense inquiry)
- United States v. Lanza-Vázquez, 799 F.3d 134 (1st Cir. 2015) (clear-error review of district court factual findings)
- United States v. Rigaud, 684 F.3d 169 (1st Cir. 2012) (Franks framework: burden to show intentional/reckless falsity and materiality)
- United States v. Tanguay, 787 F.3d 44 (1st Cir. 2015) (probable cause definition for searches)
- Illinois v. Gates, 462 U.S. 213 (1983) (magistrate’s neutral role and probable-cause balancing of informant information)
- United States v. Jewell, 60 F.3d 20 (1st Cir. 1995) (affidavit interpreted in a common-sense manner)
- United States v. Clark, 685 F.3d 72 (1st Cir. 2012) (probable-cause standard for searches)
- Safford Unified Sch. Dist. No. 1 v. Redding, 557 U.S. 364 (2009) (quoting probable-cause formulation used in search analysis)