United States v. Gifford
2013 U.S. App. LEXIS 16714
| 1st Cir. | 2013Background
- In February 2011 Trooper Steven Tarr submitted a warrant affidavit (partly based on an unnamed informant) seeking to search Paul Gifford’s house for an indoor marijuana grow; the warrant was issued and executed on February 15, 2011.
- The affidavit described: an informant who claimed Gifford was a full-time marijuana grower and currently growing; DMV records tying Gifford to the address; a local police report reporting odor of burnt marijuana on Gifford and inside the home; and Unitil electrical records showing the target house used substantially more electricity than nearby houses.
- At a later suppression hearing the Government stipulated that the affiant knew (but omitted from the affidavit) that one comparator house (34 South Road) was a much smaller mobile home (1,392 sq ft) versus the target house (5,372 sq ft), and that a horse-boarding business operated at the target property.
- The district court granted Gifford’s Franks motion, finding the omissions were recklessly made and material; when the omitted facts were added the reformed affidavit failed to establish probable cause and suppression was ordered.
- The Government appealed; the First Circuit affirmed, holding the omissions were material and reckless and that the corrected affidavit did not supply probable cause.
Issues
| Issue | Government's Argument | Gifford's Argument | Held |
|---|---|---|---|
| Materiality of omitted comparator-size and business facts | Even if added or removed, the affidavit still provided probable cause via informant tip, electricity records, DMV and police odor report | Omitted facts were critical to assessing electricity comparison and would defeat probable cause | Omission was material; adding omitted facts changes weight of electricity evidence and defeats probable cause |
| Recklessness of omission | Affiant did not act recklessly in omitting comparator size and business details | Affiant recklessly omitted known, critical facts from the affidavit | Recklessness inferred: Government stipulated affiant knew the omitted facts; omission was critical to probable cause analysis |
| Informant reliability and corroboration | Affidavit described informant as "reliable" and supplied self-verifying details; corroboration existed from DMV, police odor report, and electricity records | Informant lacked shown basis of knowledge or track record; corroboration was weak | Informant reliability was not established; corroboration was minimal and insufficient to sustain probable cause |
| Sufficiency of reformed affidavit (probable cause) | Even with omitted facts added, remaining evidence (esp. electricity comparison to 51 South Road and odor report) supports a fair probability of a grow operation | Reformed affidavit lacks adequate corroboration and relies on equivocal electricity data and an undated odor report | Reformed affidavit fails to establish probable cause; suppression affirmed |
Key Cases Cited
- Franks v. Delaware, 438 U.S. 154 (establishes rule for hearing and suppression when affidavit contains deliberate or reckless falsehoods or omissions)
- United States v. Tzannos, 460 F.3d 128 (outlines Franks burden: show falsehood/omission, recklessness, and that corrected affidavit lacks probable cause)
- Burke v. Town of Walpole, 405 F.3d 66 (discusses inferring recklessness where omitted information is critical to probable cause)
- United States v. Tiem Trinh, 665 F.3d 1 (lists nonexhaustive factors for evaluating informant reliability and corroboration)
- United States v. Rigaud, 684 F.3d 169 (affidavits supporting warrants are presumptively valid absent Franks showing)