United States Court of Appeals For the First Circuit
No. 18-1914
UNITED STATES OF AMERICA,
Appellant,
v.
JAMIL ROMAN,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Mark G. Mastroianni, U.S. District Judge]
Before
Lynch, Stahl, and Lipez, Circuit Judges.
Randall E. Kromm, Assistant United States Attorney, with whom Andrew E. Lelling, United States Attorney, was on brief, for appellant. Ashley P. Allen, with whom Patricia A. DeJuneas was on brief, for appellee.
November 5, 2019 STAHL, Circuit Judge. This appeal arises out of an order
suppressing evidence obtained from a search of Defendant-Appellee
Jamil Roman's residence. The district court found that the warrant
affidavit, reformed after a Franks hearing, did not establish
probable cause to search either Roman's business or his home.
Here, the government appeals the district court's order with
respect to the search of Roman's residence only, contending the
court erred in its probable cause determination. After careful
review, we affirm.
I. Factual Background
We recite the facts "as the trial court found them,
consistent with record support." United States v. Andrade, 551
F.3d 103, 106 (1st Cir. 2008) (citation omitted).
A. The Confidential Informant
In January 2014, federal agents seized three kilograms
of cocaine from an individual known as "Confidential Human Source
1" ("CS"), who was under surveillance for suspected involvement in
narcotics trafficking. CS subsequently agreed to cooperate with
law enforcement as a confidential informant. At the local FBI
office, CS provided a statement about his involvement in the
narcotics operation to federal agents and law enforcement
officers, including DEA Task Force member Robert Alberti, who
transcribed CS's statement. CS stated that the cocaine agents had
seized "came from Javier Gonzalez" and that Gonzalez had "had
- 2 - [Roman] drop the kilos off" at CS's business at 712 Boston Road in
Springfield, Massachusetts. CS initialed the written statement
paragraph by paragraph and confirmed its accuracy.
Approximately a week after CS's statement was taken, DEA
Special Agent Scott Smith joined the investigation. Smith, who
was not present when CS's statement was taken, was not informed of
the existence of the statement, nor did any DEA reports on the
record reference it.
B. The Affidavit
After approximately two months of surveilling the
Gonzalez organization, Smith drafted an affidavit supporting
search warrant applications for seven locations purportedly
connected to the enterprise.1 These included Roman's Holyoke,
Massachusetts, business, TWC, as well as a residence located in
Chicopee, Massachusetts, which agents believed to be Roman's home.
A single affidavit was used to support all seven warrant
applications.
1While the opinion below states that the affidavit supported applications to search six locations, in the affidavit the government sought to search seven locations: (1) JGL Truck Sales ("JGL"), owned by Gonzalez; (2) 654, 656, and 658 South Summer Street in Holyoke, Massachusetts, a series of parcels owned by Gonzalez which together compromised a parking lot across the street from JGL; (3) Cano Used Tire, a business adjacent to JGL; (4) Gonzalez's residence; (5) TWC Auto Body ("TWC"), owned by Roman; (6) a property believed to be Roman's residence in Chicopee, Massachusetts; and (7) the residence of another suspected participant.
- 3 - The affidavit set forth the following information that
between January and March 2014, the DEA had conducted an
investigation that included in its scope a series of meetings
between CS, Gonzalez, and, on occasion, Roman, some of which were
recorded. At a January meeting between Gonzalez, Roman, and CS,
held the day after CS told Gonzalez that the cocaine agents seized
had been stolen, Gonzalez and Roman discussed the "robbery" of the
drugs. During this meeting, as CS reported to law enforcement,
Roman showed CS a firearm when discussing CS's safety during drug
transactions. At a March meeting between CS and Roman, Roman
discussed with CS the quality of the "traps" in certain vehicles
and stated the "trapped vehicles" were in the garage of Cano Used
Tire.2 Roman also stated at this meeting that he suspected law
enforcement was nearby and he would "shut down for a while and
cool off" if he thought he was being surveilled. Three days later,
at another meeting with Gonzalez, CS, and Roman, Roman stated they
were "'dry'," which Agent Smith explained meant "they [did] not
currently have a supply of drug[s]." According to the affidavit,
Gonzalez told CS during the same conversation that CS needed to
"repay his drug debt" and "should bring the money to either him
2 According to the affidavit, "traps" are hidden compartments designed to conceal drugs and drug proceeds in vehicles. The investigation focused on the organization's transportation of drugs from Texas to Massachusetts in vehicles outfitted with those compartments.
- 4 - (Gonzalez) or Roman as soon as possible." The affidavit also
differed from CS's transcribed statement in that it alleged the
drug transaction between Roman and CS had taken place at Roman's
Holyoke business rather than at CS's business in Springfield.
The affidavit alleged further that Gonzalez had
transported fifty to sixty kilograms of cocaine from Texas to
Massachusetts "approximately every three months over the past 7-8
years" and had on recent trips "been obtaining approximately 20
kilograms of heroin." It stated that CS had identified Roman as
a "close criminal associate of Gonzalez" who "overs[aw]
distribution of the narcotics for" him, as well as that CS had
"relayed that . . . he would obtain kilogram quantities of cocaine"
at TWC. The affidavit also alleged that Roman was "a known cocaine
trafficker," though it did not identify the source of this
information. Smith stated further in the affidavit that, based on
his training and experience, drug traffickers commonly store drugs
or drug-related inventory, proceeds, and records at their
residences.
In the affidavit, the government identified three
reasons it had probable cause to search the Chicopee property: (1)
law enforcement believed it was Roman's primary residence; (2)
Roman had initiated a utility service at this address in October
2013; and (3) "[o]n numerous occasions . . . , agents ha[d]
observed Roman driving a blue colored Acura SUV," which was
- 5 - "registered to Tanya Roman, believed to be [Roman's] wife," and
which had been "seen at th[e] residence as recently as on March
16, 2014." The affidavit also sought to establish probable cause
to search Cano Used Tire, stating that agents had seen Roman "park
his vehicle on the side walk of Cano Used Tire and carry a weighted
bag into the business," then drive his vehicle into the garage and
leave "a few minutes later."
Based on the warrant affidavit, on March 21, 2014, the
magistrate judge authorized the warrants, which were executed four
days later on TWC and the Chicopee residence. Roman was arrested
at TWC and his person was searched incident to the arrest.
II. Procedural Background
A. The Franks Hearing
On March 24, 2016, a grand jury indicted Roman on one
count of conspiracy to distribute and possess with intent to
distribute cocaine and heroin in violation of 21 U.S.C. § 846 and
one count of distribution and possession with intent to distribute
cocaine in violation of 21 U.S.C. § 841. On May 10, 2017, Roman
moved to suppress the fruits of the searches of TWC, his person,
and his residence. See United States v. Roman, No. 16-30020-MGM-
2, 2017 WL 4517963, at *1 (D. Mass. Oct. 10, 2017) ("Roman I").
Roman also requested a hearing under Franks v. Delaware, 438 U.S.
154, 155-56 (1978), on the grounds that the government
intentionally or recklessly misrepresented the location of the
- 6 - drug transaction in the affidavit as being at TWC when it had in
fact taken place at CS's Springfield business, as set forth in
CS's written statement. Roman I, 2017 WL 4517963, at *2. The
court granted a Franks hearing as to the alleged
misrepresentations. Id. at *3-4.
Following the Franks hearing, the district court granted
Roman's motion to suppress fruits obtained from the search of TWC.
See United States v. Roman, 311 F. Supp. 3d 427, 441 (D. Mass.
2018) ("Roman II"). The court found that the affidavit contained
material misrepresentations and omissions made with reckless
disregard for the truth and without which a finding of probable
cause would not have been made. Id. Specifically, the court found
that CS's statement that he had received the drugs at his
Springfield business—not at TWC—was accurate and, further, that
the statement in the affidavit that CS "would obtain kilogram
quantities of cocaine" at TWC was false.3 Id. at 435-36. The
court also found that the statement in the affidavit that Roman
was "a known cocaine trafficker" was "conclusory" and lacked
evidentiary support. Id. at 440-41.
Regarding recklessness, the district court found that a
series of "easily preventable errors" demonstrated agents had
3 The court also concluded that the affidavit involved an omission, which was "the failure to divulge CS's . . . written statement." Id. at 436.
- 7 - acted with reckless disregard for the truth. Id. at 437. These
included in particular the failure of officials to retain, place
in the case file, or inform Agent Smith of the existence or content
of CS's written statement, or to reference it in DEA reports.4 Id.
The district court focused on the testimony of Smith, Alberti, and
another agent, John McGrath, and had the opportunity to evaluate
their credibility. Id. at 432. When questioned about the source
of the statement that CS would obtain kilogram quantities of
cocaine from TWC, Smith could not identify the source of the
information, but thought it came from CS, McGrath, or Alberti,
while McGrath and Alberti gave "inconsistent testimony" regarding
its source. Id. As such, the court found that Smith's affidavit
misstated his own personal knowledge. Id.
The court also found that several "less egregious
errors," while "not determinative, support[ed] an inference" of
reckless disregard for the truth. Id. at 437. These included a
finding that Smith had "falsely quoted [Roman] as using the word
'dry'" in one recorded meeting, when Roman had actually stated
"[t]here is nothing around brother, nothing." Id. at 433, 437.
4 The district court also found that CS's written statement had been taken in a "chaotic atmosphere." Id. at 430. It found that Alberti had "struggled at times keeping up with CS's responses because of significant disorganization in the multi-agent questioning process" conducted by both FBI and DEA agents, who "asked questions [to CS] rapidly and seemingly in random fashion" during the interview. Id.
- 8 - These also included agents' failure to notice and follow up on an
FBI report in the case file referencing CS's written statement.
Id. at 437.
Accordingly, the district court removed statements that
CS "would obtain kilogram quantities of cocaine" at TWC and that
Roman was "a known cocaine trafficker" from the reformed affidavit
"for lack of evidentiary support." United States v. Roman, 327 F.
Supp. 3d 312, 325 (D. Mass. 2018) ("Roman III"). It also reformed
the affidavit by altering statements indicating the drug
transaction occurred at TWC to properly state it instead took place
at CS's business address. See id. It found that the reformed
affidavit failed to establish probable cause to search TWC. Roman
II, 311 F. Supp. 3d at 439-41.
B. The Fruits of the Residential Search
The district court also found that the reformed
affidavit did not support a finding of probable cause to search
Roman's residence. See Roman III, 327 F. Supp. 3d at 325-28.
Specifically, the court held that the reformed affidavit's
allegations "d[id] not create a sufficient link between the
criminal activity and" the home. Id. at 325 (citation omitted).
The court concluded that the government had not sufficiently set
forth facts showing Roman had a "long-time" history of drug dealing
to permit the inference Roman would keep drug-related evidence in
his residence. Id. at 326. It observed that, unlike other cases
- 9 - from this Court identifying such a nexus, there was no evidence in
the affidavit as to the length of time Roman was engaged in drug
trafficking, facts that directly connected the residence with drug
activity, or any evidence Roman had left or returned to that
location in connection with drug transactions.5 Id. Moreover,
the court noted that the affidavit alleged that "the vehicles,
used to conceal the cash and drugs, were stored near Gonzalez's
business" and that Gonzalez "clearly occupied the main focus of
the affidavit." Id. at 327 (citation omitted). As such, it found
that "any inference that could permissibly be drawn from [Roman's]
status as a drug dealer regarding the location of evidence is
significantly weakened where . . . it is more likely that such
evidence would be found at the residence or business of another
individual"—Gonzalez. Id. (citation omitted).
Accordingly, the district court suppressed the fruits of
the search of Roman's residence, that is, $438,560 in cash, a
firearm, and photographic identification documents. Id. at 328.
It is from this ruling that this timely appeal followed.
5 The court also found "the force and weight of [Smith's] assertion" that it was common for drug traffickers to store inventory, paraphernalia and records at the home to be "significantly compromised" given the findings in the Franks hearing. Id. at 327.
- 10 - III. Analysis
In reviewing a ruling on a motion to suppress, this court
"accepts the district court's factual findings to the extent that
they are not clearly erroneous, and review[s] its legal conclusions
de novo." United States v. Davis, 909 F.3d 9, 16 (1st Cir. 2018)
(alteration in original) (internal quotation marks and citation
omitted). We afford "due weight to inferences drawn from
[historical facts]" by lower courts. United States v. Dapolito,
713 F.3d 141, 147 (1st Cir. 2013) (alteration in original) (quoting
Ornelas v. United States, 517 U.S. 690, 699 (1996)). In applying
this standard, "we take the record evidence in the light most
favorable to the suppression ruling." United States v. Arnott,
758 F.3d 40, 43 (1st Cir. 2014). We may affirm "on any basis
apparent in the record." Id.
The government argues on appeal that the district court
erred in ruling that the reformed affidavit did not establish
probable cause to search Roman's residence. We find no such error
for the reasons below.
The "very core" of the Fourth Amendment is to be "free
from unreasonable governmental intrusion" into one's home.
Florida v. Jardines, 569 U.S. 1, 6 (2013) (quoting Silverman v.
United States, 365 U.S. 505, 511 (1961)). Indeed, the home is
"first among equals" in Fourth Amendment protection. Jardines,
569 U.S. at 6; see also Morse v. Cloutier, 869 F.3d 16, 23 (1st
- 11 - Cir. 2017) (the home "is shielded by the highest level of Fourth
Amendment protection") (internal quotation marks omitted). These
bedrock principles guide our analysis and disposition.
An application for a warrant "must demonstrate probable
cause to believe that (1) a crime has been committed—the
'commission' element, and (2) enumerated evidence of the offense
will be found at the place searched—the so-called 'nexus' element."
United States v. Dixon, 787 F.3d 55, 59 (1st Cir. 2015) (quoting
United States v. Feliz, 182 F.3d 82, 86 (1st Cir. 1999)). A
magistrate judge considering the "nexus" element must "make a
practical, common-sense decision whether, given all the
circumstances set forth in the affidavit before him," there exists
a "fair probability" evidence will be found in the place to be
searched. Feliz, 182 F.3d at 86 (quoting Illinois v. Gates, 462
U.S. 213, 238 (1983)). And, while reviewing courts generally
afford substantial deference to a magistrate's determination of
probable cause, where "[a]llegations of intentional or reckless
misstatements or omissions" are proven true, we owe "no deference
to a magistrate's decision" because this "implicate[s] the very
truthfulness, not just the sufficiency, of a warrant application."
Burke v. Town of Walpole, 405 F.3d 66, 82 (1st Cir. 2005).
The government claims it had probable cause to search
Roman's residence on two grounds. First, it argues that the
reformed affidavit contained direct evidence establishing a nexus
- 12 - between drug activity and the home. It also contends that absent
direct evidence, the reformed affidavit set forth facts permitting
the inference that drug-related evidence would be found at the
residence. We address these assertions in turn.
As to the government's first contention, we find that
the reformed affidavit contained insufficient evidence to directly
tie drug activity to Roman's residence. The affidavit is devoid
of information from CS or any other source connecting drug activity
to the home. CS did not state or indicate that he believed Roman
conducted drug-related business from or kept drug-related evidence
at the home, that any of the "trapped" vehicles could be found at
or had traveled to the home, that any meetings of the conspiracy
or drug deals had taken place there, or that Gonzalez had been
observed at the residence. Rather, the government's case depends
entirely on inferences in the affidavit made by Smith, drawn
largely from stricken material.
The government offers a single statement from the
reformed affidavit in support of its argument there existed direct
evidence: that agents observed Roman parking his vehicle outside
of and carrying a "weighted bag" into Cano Used Tire. It contends
this "supports the drawing of at least an inferential link between
Roman's car . . . and his criminal activities," which extends to
Roman's home because the car was "registered to his wife at their
shared residence."
- 13 - We do not agree. The nexus element requires a showing
that "enumerated evidence of the offense will be found at the place
searched." Dixon, 787 F.3d at 59 (emphasis added). The inquiry
is not whether "the owner of the property is suspected of crime"
but rather whether "there is reasonable cause to believe that the
specific things to be searched for and seized are located on the
property to which entry is sought." Zurcher v. Stanford Daily,
436 U.S. 547, 556 (1978) (internal quotation marks omitted).
Tested against this standard, the government's argument fails.
First, the affidavit does not establish that the vehicle
Roman parked at Cano Used Tire is the same "blue colored Acura
SUV" that agents on separate occasions observed Roman driving and
saw parked at the residence. It also does not suggest that the
"weighted bag" contained drugs or drug-related evidence. Nor does
it allege that Roman had driven the car to or from his residence
on the day he carried the weighted bag, a factor we have previously
found supports an inference of nexus. See Dixon, 787 F.3d at 60;
United States v. Barnes, 492 F.3d 33, 37-38 (1st Cir. 2007); United
States v. Ribeiro, 397 F.3d 43, 49-50 (1st Cir. 2005).
The government argues that "at a minimum," surveillance
of Roman carrying the weighted bag from a car into Cano Used Tire
"provides some additional support for the proposition that
activities associated with the operation occurred at multiple
locations and involved the use of a vehicle." Even if true, these
- 14 - additional facts do not sufficiently link Roman's suspected crimes
to his home—"the place searched"—such that there was probable cause
to search the residence. Dixon, 787 F.3d at 59. A proper reading
of the reformed affidavit is that agents observed Roman carrying
a weighted bag, contents unknown, into Cano Used Tire from "his
vehicle," which may or may not be the same vehicle seen at Roman's
residence. We see no basis to conclude on these facts that drug-
related evidence would be present at Roman's home.
The government argues next that absent direct evidence,
the reformed affidavit "provided ample reason" to infer relevant
evidence would be found in Roman's home. We disagree.
A "nexus . . . need not, and often will not, rest on
direct observation, but rather 'can be inferred from the type of
crime, the nature of the items sought, the extent of an opportunity
for concealment and normal inferences as to where a criminal would
hide [evidence of a crime].'" Feliz, 182 F.3d at 88 (alteration
in original) (quoting United States v. Charest, 602 F.2d 1015,
1017 (1st Cir. 1979)). This follows from the well-settled
principle that "a probable cause determination is fundamentally a
fact-specific inquiry" where "[n]o one factor possesses talismanic
powers." United States v. Khounsavanh, 113 F.3d 279, 285 (1st
Cir. 1997).
But we have not permitted this inference to be applied
lightly. We have made clear that we "do not suggest that, in all
- 15 - criminal cases, there will automatically be probable cause to
search a suspect's residence." Feliz, 182 F.3d at 88. As such,
we have rejected a per se rule automatically permitting the search
of a defendant's home when he has engaged in drug activity.
Khounsavanh, 113 F.3d at 285. We have further "expressed
skepticism that probable cause can be established by the
combination of the fact that a defendant sells drugs and general
information from police officers that drug dealers tend to store
evidence in their homes." United States v. Bain, 874 F.3d 1, 23-
24 (1st Cir. 2017) (citation omitted), cert. denied, 138 S. Ct.
1593 (2018). Accordingly, we have found that "generalized
observations" of this type should be "combined with specific
observations," or facts "connecting the drug dealing to the home"
to permit an inference of nexus to a defendant's residence.
Ribeiro, 397 F.3d at 50-51; Bain, 874 F.3d at 24. Examples of
such "specific observations" include evidence that drug
distribution "was being organized from [the defendant's]
residence," United States v. Keene, 341 F.3d 78, 82 (1st Cir.
2003), that the defendant used his home as a communications hub
for drug activity, United States v. Rivera, 825 F.3d 59, 64-65
(1st Cir. 2016), or that the defendant "move[d] back and forth
from his residence in relation to drug transactions," Ribeiro, 397
F.3d at 51.
- 16 - The government argues that, when "[t]aken together,"
facts drawn from the reformed affidavit permit the inference that
Roman "would have a need to keep drugs, proceeds, and records" at
his residence. We find that they do not. Here, the reformed
affidavit, unlike the affidavits in the cases above and cited by
the government, contains no specific facts or observations
connecting Roman's alleged drug activity to his home. Indeed, it
fails to even on one occasion place Roman himself at the residence,
let alone in connection with drug crimes.
We have, however, in narrow circumstances inferred a
nexus to a defendant's residence absent such specific facts. In
Feliz, we permitted this inference where the affidavit established
the defendant was "a long-time, successful, drug trafficker,"
identified "[n]o other residence or drug-dealing headquarters,"
and contained a statement from a law enforcement affiant that drug
traffickers commonly keep drug-related evidence at their homes.
182 F.3d at 87-88. Accordingly, we found that it was not
"unreasonable" for the issuing magistrate to have "relied upon
. . . common sense, buttressed by affiant's opinion as a law
enforcement officer," to infer a nexus between drug activity and
the defendant's residence. Id. at 88.
The government argues that the reformed affidavit
permits the inference of a nexus to Roman's residence under our
holding in Feliz. Again, we find that it does not.
- 17 - We agree with the district court that the facts here are
"a far cry" from the facts in Feliz. Roman III, 327 F. Supp. 3d
at 326 (citation omitted). As an initial matter, the Feliz
affidavit did not contain any recklessly made material
misrepresentations or present any questions of credibility as to
the affiant. Accordingly, the Feliz court afforded "considerable
deference" to the magistrate judge's probable cause determination.
182 F.3d at 86 (internal quotation marks omitted). Further, the
affidavit there included information from two reliable
confidential informants who averred that the defendant trafficked
drugs, including direct testimony from one informant that the
defendant was a "long-time, successful, drug trafficker" from whom
the informant had purchased drugs on several prior occasions,
dating back approximately twelve years. Id. at 86-87. The court
found there that "[i]n sum, the affidavit contained substantial,
detailed information indicating that [the defendant] had engaged
in illegal drug trafficking for at least twelve years," supporting
the conclusion that "Feliz's drug trafficking was of a continuous
and ongoing nature." Id. at 87. The affidavit also identified
"[n]o other residence or drug-dealing headquarters of [the
defendant's]," supporting the inference that a "likely place to
seek to find incriminating items" would be his home. Id. at 88.
The reformed affidavit here establishes no such record.
It offers no evidence pertaining to the length of Roman's
- 18 - involvement with drug trafficking in general or the Gonzalez
organization in particular. See id. at 87. Nor does it suggest
that Roman had any prior drug-related criminal convictions or that
any drug activity had been conducted from the residence. Cf.
United States v. Hicks, 575 F.3d 130, 137 (1st Cir. 2009) (holding
that "the circumstances set forth in the affidavit—which included
. . . appellant's prior convictions and his connections to known
drug dealers who operated out of [the residence]" established
probable cause). Further, unlike the affidavit in Feliz, which
offered testimony from two experienced informants, the reformed
affidavit here relies on the testimony of only one informant, CS,
whose credibility as a source was not established. The affidavit
also does not offer corroboration through law enforcement
surveillance, other informants, or any other source, of CS's
statement that Roman was a "close criminal associate" of Gonzalez's
or "overs[aw] the narcotics" operation. See Keene, 341 F.3d at
81-82 ("Factors to be considered in determining whether a search
warrant should issue include 'the value of corroboration of details
of an informant's tips by independent police work.'" (quoting
Gates, 462 U.S. at 241)).
Our conclusion is further bolstered by the fact that the
reformed affidavit supported warrant applications for several
other locations purportedly connected to the organization. As we
asked in Feliz, "[i]f [the defendant] did not maintain his accounts
- 19 - and records, and the presumably large sums of money received in
the course of his dealings, at his apartment, where else would he
keep them?" 182 F.3d at 88. We do not face that question here.
The reformed affidavit supported searches of six other locations,
including TWC and JGL, which the government itself characterizes
as the "headquarters" of the organization.6 It establishes that
police believed that drug activity did take place at those
locations, suggesting that vehicles the organization used to
conceal drugs and drug proceeds would be found at or had traveled
through JGL and Cano Used Tire; drug transactions had taken place
at JGL and the residence of another suspect; and meetings between
Gonzalez, CS, and, on occasion, Roman, had taken place at JGL and
TWC.7 We agree with the district court's conclusion that "any
inference that could permissibly be drawn from [Roman's] status as
a drug dealer regarding the location of evidence is significantly
weakened where, as here, it is more likely that such evidence would
be found at the residence or business of another individual"—
6 The government argues that Roman would have kept drug- related evidence at his home because TWC was "frequented by employees and/or customers and [the home] would thus be more likely to keep contraband away from prying eyes." However, the fact that the government also sought a warrant to search TWC in connection with alleged drug activity lessens the force of this contention. 7 We find the government's theory that Roman could not have returned proceeds to JGL when Gonzalez was out of town and, as such, would "logical[ly]" have stored items at his home, to be speculative and without factual basis.
- 20 - Gonzalez. Roman II, 311 F. Supp. 3d at 440 (citing Feliz, 182
F.3d at 88).
Moreover, as the affidavit here contained "reckless
misstatements," unlike the affidavit in Feliz, we afford no
deference to the magistrate judge's determination. Burke, 405
F.3d at 82. Accordingly, we cannot infer from the facts before us
that Roman was a "long-time, successful, drug trafficker" with
"continuous and ongoing" involvement sufficient to establish a
nexus to his residence under Feliz. 182 F.3d at 87-88. We hold
so even if considered in tandem with Smith's statement that
traffickers commonly store relevant evidence at their homes.8
Relatedly, the government contends that the "large-
scale" nature of the conspiracy and Roman's allegedly central role
in it prove Roman was an "experienced trafficker" sufficient to
infer a nexus under Feliz. We afford due weight to the factual
inference made by the district court that the record is "simply
not sufficient to substantiate the affidavit's assertions that
. . . [Roman] was an established drug dealer." Roman III, 327 F.
8 The government contends in reply that the district court's findings as to Smith's credibility "do not preclude consideration of his statements." We recognize that "[w]e have, with a regularity bordering on the echolalic, endorsed the concept that a law enforcement officer's training and experience may yield insights that support a probable cause determination." United States v. Floyd, 740 F.3d 22, 35 (1st Cir. 2014). However, we need not reach this issue, given our conclusion that there was not probable cause to search Roman's home even assuming we can consider the statements made by Smith based on his training and experience.
- 21 - Supp. 3d at 324. Further, the government cites no basis in law
for the proposition that a nexus to a defendant's residence may be
inferred where the defendant plays a "central role" in a large-
scale enterprise. As previously stated, we consider the totality
of circumstances in making a probable cause determination. See
Feliz, 182 F.3d at 88. Accordingly, we consider factors such as
Roman's role and the size of the operation but find neither fact,
alone or in combination, dispositive as to the issue of whether
Roman was an established trafficker, nor sufficient to upset the
district court's factual inference that there was insufficient
evidence to support this conclusion.9
9 We do wish to address the government's assertion that "[i]n its scale, Gonzalez's operation, and Roman's alleged role in it, far exceeds that [which] courts have found sufficient" to establish probable cause to search a defendant's residence. The cases the government cites are distinguishable on the facts. In Ribeiro, while we did consider the size and scope of the defendant's drug activity, we did not make our determination on this factor alone. See 397 F.3d at 50. The affidavit there contained specific facts connecting the defendant's drug activity to his residence, as "the police observed [him] on several occasions when it was virtually certain that he left his residence carrying the ecstasy tablets" he would later sell in a controlled buy. Id. at 50, 52. Similarly, in United States v. Hodge, 246 F.3d 301, 306-07 (3d Cir. 2001), the Third Circuit considered the amount of cocaine the defendant possessed as part of its finding of probable cause, but also noted that the affidavit suggested he was an "experienced and repeat drug dealer who would need to store evidence of his illicit activities somewhere." The court found further that the defendant's home was more likely to be that location in part because the defendant's residence was in the same city as an anticipated drug delivery and the defendant conceded that there was probable cause to arrest him on drug-related charges. Id.
- 22 - Further, even if we were to accept the government's
contention that the "large scale of the operation provide[s] strong
grounds for concluding that relevant evidence might be kept at
multiple locations," this does not relieve the government of its
burden to provide specific evidence as to each "place [to be]
searched." Dixon, 787 F.3d at 59. The government has not met
this burden.
This is not a "case where the affidavit recite[s] facts
establishing a clear and substantial connection between the
illegal activity and the place searched"; rather, the government's
argument relies upon "speculative inferences piled upon
inferences" that Roman's residence would yield relevant evidence.
United States v. Rodrigue, 560 F.3d 29, 33-34 (1st Cir. 2009).
Accordingly, because the reformed affidavit fails to establish
probable cause to search Roman's residence, the fruits of the
search of the residence were properly suppressed.
IV. Conclusion
For the foregoing reasons, the district court's grant of
the motion to suppress evidence obtained from Roman's residence is
AFFIRMED.
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