United States Court of Appeals For the First Circuit
No. 24-1386
UNITED STATES,
Appellee,
v.
MICHAEL FRANCIS,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Steven J. McAuliffe, U.S. District Judge]
Before
Montecalvo, Lynch, and Kayatta, Circuit Judges.
Richard Guerriero, with whom Oliver Bloom and Lothstein Guerriero, PLLC were on brief, for appellant. Aaron G. Gingrande, Assistant United States Attorney, with whom John J. McCormack, United States Attorney, was on brief, for appellee.
March 24, 2025 LYNCH, Circuit Judge. Michael Francis appeals from the
district court's denial of his motion to suppress evidence seized
from a search of his car pursuant to a search warrant. The evidence
seized was a firearm holster, a kilogram of cocaine, two cell
phones, $10,000 in cash, and a black bandana purported to be gang
paraphernalia. Francis pled guilty to possession with intent to
distribute cocaine and reserved his right to appeal the denial of
his motion to suppress this evidence.
After an evidentiary hearing, the district court held
that the warrant was supported by probable cause. As to claims
the supporting affidavit omitted information in violation of
Franks v. Delaware, 438 U.S. 154 (1978), the court held the
affidavit by the FBI agent in support of the warrant had not
recklessly or in bad faith omitted information allegedly going to
the veracity of a cooperating witness. The court also held that,
had the omitted information been included in the affidavit, it
would not have vitiated probable cause in support of the warrant.
We affirm.
I.
A. The Search Warrant Affidavit
Francis is a member of the Gangster Disciples criminal
street gang in Manchester, New Hampshire, and was an active state
parolee at the time of the underlying events.
- 2 - Based on the application and affidavit filed by FBI
Special Agent Ryan Burke, a federal magistrate judge on August 25,
2021, in New Hampshire, found probable cause and issued a search
warrant for Francis's car. Agent Burke's affidavit stated that he
had worked as an FBI Special Agent since October 2012, during which
time he led and was involved with investigations of drug
distribution and had "handled many cooperating sources and
witnesses." He was "familiar with the modus operandi used by
individuals engaged in the violation of" controlled substances
laws.
Agent Burke's affidavit set forth information provided
to the Manchester, New Hampshire Police Department (MPD) by a
cooperating witness1 (CW) during his post-arrest interview, after
he was given his Miranda warnings. As the district court
summarized:
The witness had been arrested on warrants relating to two prior motor vehicle stops (on June 13, 2021, and July 30, 2021), both of which led to the seizure of a large amount of drugs. During his August 19, 2021, interview, the CW admitted to possessing the drugs seized during the June and July motor vehicle stops, and admitted that he intended to distribute those drugs. He also provided significant information about his drug suppliers.
1 Though both parties refer in their briefs to this individual as an "informant," we use the term "cooperating witness" rather than "informant." The individual was not a government-paid confidential informant, and the MPD obtained the information from the CW in the normal course of his post-arrest interview.
- 3 - The CW reported that the drugs seized during the June 13 stop were provided to him by Ryan Call, a member of the Gangster Disciples whom the CW had met in prison, and with whom he had maintained a relationship. The CW said that Call informed him that the drugs came from Michael Francis, another Gangster Disciples member. After Call was arrested in the early part of July, 2021, the CW said he was contacted by Francis, who told the CW that he, Francis, would be his supplier going forward. The drugs recovered during the July 30 motor vehicle stop had been provided by Francis, said the CW.
In his post-arrest interview, the CW detailed the price and quantity of drugs he received regularly from Francis, and described the locations where those drug transactions took place. One location, according to the CW, was near Rimmon Street and Putnam Street, in Manchester, close to where the witness believed Francis lived. The CW said that Francis met with him personally to conduct the transactions. He described in detail the vehicle Francis drove (a Honda Accord), and reported that Francis routinely kept a pistol between the driver’s seat and center console of the vehicle.
The affidavit described how law enforcement corroborated
the CW's information. The officers confirmed that, as the CW said,
his initial supplier Ryan Call was a member of the Gangster
Disciples, like Francis. The officers confirmed that Call had
been arrested in early July 2021, was incarcerated, and so no
longer could supply drugs to the CW. Records checks and
surveillance corroborated the CW's description that Francis's car
was a "newer" "white Honda Accord" with "greyish," "20s"2 rims and
"permanent plates" from New Hampshire and that Francis was
2 Agent Burke explained in his Franks hearing testimony that "20" is a type of car rim.
- 4 - associated with an address close to where the CW stated his drug
transactions with Francis took place.
Agent Burke stated in his affidavit that he had not "set
forth every detail [he] or other law enforcement officers kn[e]w
about this investigation but ha[d] set forth facts that [he]
believe[d] [we]re sufficient to evaluate probable cause as it
relate[d] to the issuance of the requested warrant."
On September 1, 2021, MPD conducted surveillance at the
address associated with Francis and observed him leave in the car
described in the search warrant. MPD followed Francis to a bank,
where his car was seized pursuant to the warrant, towed to MPD
headquarters, and searched. The fruits of that search are at issue
in this appeal. Francis was arrested and federally indicted on
five counts, relevantly including possession with intent to
distribute 500 grams or more of cocaine under 21 U.S.C.
§§ 841(a)(1) and (b)(1)(B)(ii).
B. Francis's Motion to Suppress Based on Allegations at Issue
Francis filed the motion to suppress on September 27,
2022. Francis argued that: (1) the magistrate's issuance of the
search warrant was not supported by probable cause; (2) Agent Burke
had recklessly failed to disclose in his affidavit material
information to the court, particularly "that the CW ha[d] a prior
conviction for falsifying physical evidence -- a felony crime of
dishonesty"; (3) the affidavit, reformed to include this omission,
- 5 - further failed to establish probable cause; and (4) the United
States v. Leon, 468 U.S. 897 (1984), good faith exception did not
apply. From this, he argued for a Franks hearing and exclusion of
the evidence. The government opposed, arguing that Francis did
not meet the standards for exclusion or for a Franks hearing
because: (1) the issuance of the search warrant was supported by
probable cause; (2) the omission from Agent Burke's affidavit,
which pertained to the CW's conviction for "conceal[ing] what
appeared to be drugs by dropping them to the ground and stepping
on them in order to impair their availability [in a simple drug
possession investigation]" was not either intended to mislead or
reckless; (3) the omission did not undercut probable cause; and
(4) even if the magistrate's probable cause determination was in
error, the Leon good faith exception applied.
Following additional discovery from the government,
Francis supplemented his motion to suppress, alleging a second
omission from Agent Burke's affidavit: that "two of the officers
who conducted the motor vehicle stops of the [CW] were careful to
note in their reports that the [CW] was being dishonest with law
enforcement" in an attempt to exonerate himself on the spot. These
officers "said the [CW] was 'deceptive,' 'not telling me the
truth,' and 'attempting to provide deceitful answers.'" The
government also opposed this additional argument.
- 6 - C. The Franks Hearing and Denial of the Motion
The court held a Franks hearing on June 14 and July 12,
2023, at which Agent Burke testified. Agent Burke testified that
he knew the CW had a state law conviction for falsifying physical
evidence and decided not to include it:
He's -- he wasn't an informant. He hasn't been an informant for the FBI. It's been my understanding and my practice that when we're referring to some individual providing information in an affidavit and that person's described anonymously that as a means to permit the magistrate who's evaluating probable cause and, you know, the credibility of that individual's statement, in lieu of their name and full identification, we'll provide a summary of their background, criminal history, any other information they provided that we've been able to evaluate ourselves.
And in this case, because he -- he was simply an individual that was arrested and we conducted a Mirandized postarrest interview, he wasn't someone that we -- I viewed it [sic] as an informant. I've referred to him as [sic] true name in my report and the affidavit and because of that, I -- I just didn't feel at the time that it was required I include a criminal history.
He testified that he found the CW's information to be "completely
credible" because the CW "faced substantial exposure . . . were
his case to be adopted federally" and "because of the details of
the information [the CW] provided." He further explained that
though a conviction that required "a purpose to deceive law
enforcement . . . would be pretty important in assessing [an
individual's] credibility," the CW's conviction for falsifying
physical evidence "wasn't enough for [Agent Burke] to dismiss the
- 7 - other indications of [the CW's] credibility that [the CW] provided
in the interview."
As to the second omission, Agent Burke testified that the
statements in the police report
were [the other officers'] opinions. Again, I don't recall reading those words back then when I wrote the affidavit, although surely I must have read the report in its entirety, but I know that virtually everyone is deceptive to an extent when they're pulled over by the police. It's a stressful situation, so it didn't -- it wouldn't have impacted my assessment of the [CW]'s statement to me when I interviewed him.
He added that "if someone's being deceptive to law enforcement on
a car stop precluded them from providing honest information to me,
then I don't think I could probably interview anyone in this
courtroom or elsewhere." Indeed, Agent Burke testified that if he
had not found the cooperating witness's information to be credible,
he "wouldn't have wr[itten] it in an affidavit and put [his] name
on it."
On October 3, 2023, the district court denied Francis's
motion to suppress in a twenty-three-page ruling. It rejected the
challenge to the magistrate judge's finding of probable cause in
issuing the warrant. It held the affidavit was facially sufficient
to establish probable cause for the reasons it had articulated at
the hearing. At the hearing, the court reasoned that the affidavit
was "absolutely solid." In its motion to suppress ruling, the
court explained that "[t]he CW [wa]s identified by name," "plainly
- 8 - implicate[d] himself in the offenses described," provided the
information "while in custody," and, as the CW was already facing
serious charges, he risked further liability if he provided false
information. "The information provided by the CW was detailed and
comprehensive," and "law enforcement corroborated several aspects
of the information provided by the CW." Further, "Special Agent
Burke, a ten-year veteran of the FBI, assessed the significance of
the information provided by the CW based on his own professional
experience, skill, and knowledge."
The court rejected on two independent grounds Francis's
argument that nonetheless suppression was warranted under Franks
based on omissions in Agent Burke's affidavit. First, the court
rejected the argument that the alleged omissions were intentional
or reckless. Based in part on its credibility findings from the
Franks hearing, "[t]he court fully credit[ed] Special Agent
[Burke]'s testimony" and found "[t]here [wa]s no evidence
suggesting that Burke harbored any doubts at all -- let alone
serious doubts -- about the veracity of the affidavit, or that he
thought that either of the omitted facts were significant in
assessing probable cause." Second, the omitted information would
not "have so significantly diminished the CW's credibility that
the magistrate judge's probable cause determination would have
been different."
- 9 - II.
The Fourth Amendment generally "requires police officers
to secure a search warrant supported by probable cause prior to
effecting a search or seizure." United States v. Gifford, 727
F.3d 92, 98 (1st Cir. 2013). "Probable cause exists when the
totality of the circumstances suggests that 'there is a fair
probability that contraband or evidence of a crime will be found
in a particular place.'" Id. (quoting United States v. Hicks, 575
F.3d 130, 136 (1st Cir. 2009)). "[T]he probable cause standard is
not a high bar." United States v. Cortez, 108 F.4th 1, 8 (1st
Cir. 2024) (alteration in original) (quoting United States v.
Sheehan, 70 F.4th 36, 44 (1st Cir. 2023)). It is a "practical,
common-sense decision." United States v. Tanguay, 787 F.3d 44, 50
(1st Cir. 2015) (quoting Illinois v. Gates, 462 U.S. 213, 238
(1983)).
An affidavit in support of a search warrant is
"presumptively valid." Gifford, 727 F.3d at 98. "In the absence
of a reckless omission, a search warrant is reviewed with deference
to the issuing magistrate . . . ." Id. at 99. Only if allegations
of reckless omission "prove to be true" do we "owe no deference to
the magistrate's decision." Id. "We review a district court's
- 10 - legal conclusion that a given set of facts constituted probable
cause de novo . . . ." Id.
To lodge a successful Franks challenge based on the
alleged omissions, Francis must show, by a preponderance of the
evidence, that (1) "the omission[s] [were] either intentional or
reckless" and (2) "the omitted information, if incorporated into
the affidavit, [was] sufficient to vitiate probable cause."
Tanguay, 787 F.3d at 49; see also United States v. Tzannos, 460
F.3d 128, 136 (1st Cir. 2006).
We review "factual findings made by [the] district court
in connection with [the] Franks hearing" for clear error. Tzannos,
460 F.3d at 136. "[W]e are 'especially deferential to the district
court's credibility judgments,'" which we are not free to disturb
"absent objective evidence that contradicts a witness's story or
a situation where the story itself is so internally inconsistent
or implausible that no reasonable factfinder would credit it."
United States v. Guzmán-Batista, 783 F.3d 930, 937 (1st Cir. 2015)
(quoting United States v. Henderson, 463 F.3d 27, 32 (1st Cir.
2006)).
Francis's appeal makes multiple claims of error,
starting with the argument that the affidavit itself failed to
establish probable cause on its face in that it did not establish
probable veracity of the CW or the basis of the CW's knowledge,
much less the CW's firsthand knowledge, and that the corroboration
- 11 - was only of innocent facts, not of criminal conduct. Francis also
challenges the district court's findings of no Franks error. As
his counsel stated at oral argument, Francis relies more heavily
on his Franks-based argument that the court erred in finding that
Agent Burke's omissions were not reckless or knowing.
He purports to base his arguments on three principles:
(1) corroboration of innocent details from an informant is
insufficient to establish probable cause; (2) while it is
commonplace for an informant to have a criminal record, it is
inherently different when that criminal record is for a felony
crime of dishonesty; and (3) when law enforcement recklessly
excludes such information, the good faith exception cannot apply.
Francis does not assert the district court used the wrong
legal standards for assessing whether the initial issuance by the
magistrate judge of the warrant was in error. The court
extensively discussed the application of those standards to the
facts of this case, correctly citing to United States v. Tiem
Trinh, 665 F.3d 1 (1st Cir. 2011) and United States v. Tanguay,
787 F.3d at 44. Francis has shown no error of law or application
of law to the facts of this case. Because we hold that the
affidavit established probable cause on its face, we need not
- 12 - address Francis's arguments regarding the Leon good-faith
exception.
Francis argues that the affidavit failed to establish
probable cause because "law enforcement merely corroborated
publicly available, innocuous information" rather than "criminal
conduct." This court has previously rejected such an argument.
See Tiem Trinh, 665 F.3d at 12 ("[C]ase law makes clear that
'corroboration of even innocent activity reported in the tip may
support a finding of probable cause . . . .'" (quoting United
States v. Perez, 67 F.3d 1371, 1383 (9th Cir. 1995), rev'd en banc
on other grounds, 116 F.3d 840 (9th Cir. 1997))); see also Gates,
462 U.S. at 245 ("If the informant had access to accurate
information of [defendants' seemingly innocent activities] a
magistrate could properly conclude that it was not unlikely that
he also had access to reliable information of the [defendants']
alleged illegal activities.").
Francis makes another argument that the CW was not
trustworthy because he was facing pending criminal charges and
"looking for a way to avoid or mitigate criminal liability," citing
a legal treatise in support. See 2 Wayne R. LaFave, Search and
Seizure: A Treatise on the Fourth Amendment § 3.3(c) (6th ed.
2024). From this he argues that the affidavit failed to establish
probable veracity of the CW. The argument is not correct. "To be
sure, factors like an informant's . . . desire to advantage
- 13 - himself with respect to pending criminal charges are to be
considered in evaluating his reliability. But such considerations
are not dispositive." United States v. Brown, 500 F.3d 48, 55
(1st Cir. 2007). The totality of the circumstances supports the
CW's probable veracity. The CW risked further liability if he
provided false information. See Tiem Trinh, 665 F.3d at 11
(considering, in examining affidavit's probable cause showing,
that the individual upon whose account the affidavit relied was
"known to the police and [could] be held responsible if his
assertions prove[d] inaccurate or false" and provided "extensive,
detailed information" (quoting United States v. Barnard, 299 F.3d
90, 93 (1st Cir. 2002))).
Francis also argues that this court in Gifford found an
affidavit "with more detail than provided by Agent Burke's
informant" to be insufficient. Not so. Gifford, by contrast,
involved a case where "none of the [Tiem Trinh factors] would favor
a reliability finding" because "[n]othing in the affidavit
indicate[d] the informant's basis of knowledge" and "the affidavit
[did not] indicate how the affiant came to establish a relationship
with the informant." Gifford, 727 F.3d at 100.
As to the claim of Franks error based on allegedly false
statements by Agent Burke, Francis has not shown that "the affiant
'in fact entertained serious doubts as to the truth' of the
allegations." United States v. Ranney, 298 F.3d 74, 78 (1st Cir.
- 14 - 2002) (quoting United States v. Williams, 737 F.2d 594, 602 (7th
Cir. 1984)). For a challenge based on omissions, he must show
that the omission "[wa]s 'designed to mislead, or . . . made in
reckless disregard of whether [it] would mislead, the magistrate'
in his appraisal of the affidavit." Tanguay, 787 F.3d at 49
(second alteration in original) (quoting United States v. Colkley,
899 F.2d 297, 301 (4th Cir. 1990)). "Negligent omissions -- even
negligent omissions of highly probative information -- do not
satisfy this strict standard." Id. Francis has made neither
showing.
Agent Burke testified at the Franks hearing that he found
the CW's information to be "completely credible." As to the
omission of the CW's past conviction, he explained that though it
was his practice to include in the affidavit "background" and
"criminal history" for anonymous FBI informants, the CW was named
in the affidavit and was "an individual that was arrested and [for
whom officers] conducted a Mirandized postarrest interview." As
to the omission of police report statements that the CW was being
deceptive and untruthful after he was pulled over, Agent Burke
explained that "virtually everyone is deceptive to an extent when
they're pulled over by the police."
The district court found Agent Burke's testimony to be
credible. Agent Burke provided explanations that were not "so
internally inconsistent or implausible that no reasonable
- 15 - factfinder would credit it." Guzmán-Batista, 783 F.3d at 937. To
the contrary, we conclude his explanations were objectively
reasonable as to why he thought such information about the criminal
record of the CW did not undercut the credibility or the veracity
of his statements about Francis.3
Francis's appeal also fails because the district court
correctly held that the omissions, had they been included within
the affidavit, would not have undercut probable cause. The omitted
information does not "given all the circumstances" vitiate
probable cause. See Tanguay, 787 F.3d at 50-51 (affirming the
district court's conclusion that the affidavit, which relied
primarily on information from a tipster, "remain[ed] sufficient to
establish probable cause" even when reformed to include the
tipster's conviction for uttering a false prescription); United
States v. Rumney, 867 F.2d 714, 720 (1st Cir. 1989) ("[The
cooperating witness's] credibility was not undercut merely because
he made predictable denials until the police could produce evidence
linking him to the [crime].").
3 Francis also argues, citing Gifford, 727 F.3d at 101, that "recklessness should be inferred where Agent Burke admitted the affidavit for the search warrant depended on the [CW]’s credibility but omitted information about the [CW]'s credibility." (Citation omitted). This argument fails. Gifford inferred recklessness because, unlike here, "the omitted information was critical to the probable cause determination." Id. at 101.
- 16 -