USCA1 Opinion
January 23, 1996
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 94-2221
UNITED STATES OF AMERICA,
Appellee,
v.
WILLIAM R. TIBOLT,
Defendant, Appellant.
____________________
ERRATA SHEET
The opinion of this Court issued on December 29, 1995, is amended
as follows:
Page 10, line 6, should read: ". . . at the Tibolt residence."
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 94-2221
UNITED STATES OF AMERICA,
Appellee,
v.
WILLIAM R. TIBOLT,
Defendant, Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
___________________
____________________
Selya, Circuit Judge,
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Coffin, Senior Circuit Judge,
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and Cyr, Circuit Judge.
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____________________
Anthony M. Cardinale, with whom Nicholas J. DiMauro and Law
_____________________ _____________________ ___
Offices of Anthony M. Cardinale were on brief for appellant.
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William C. Brown, Attorney, Appellate Division, Department of
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Justice, with whom Donald K. Stern, United States Attorney, was on
________________
brief for appellee.
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December 29, 1995
2
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3
CYR, Circuit Judge. Following his conviction on a
CYR, Circuit Judge.
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money laundering charge, 18 U.S.C. 1956, in the United States
District Court for the District of Massachusetts, William Tibolt
appeals two trial court rulings relating to incriminating finan-
cial records seized from his residence in a warrantless search.
Finding no error, we affirm.
I
I
BACKGROUND
BACKGROUND
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Around mid-morning on July 27, 1992, a security alarm
activated in the Dombrowski residence located at 13 Old Salem
Path in Gloucester, Massachusetts. As the security alarm company
JK Security was unable to make telephone contact with the
Dombrowski residence to determine whether the alarm had been set
off accidentally, it telephoned the Gloucester Police to report
the alarm. Officer Joseph Palazzola was dispatched to investi-
gate the alarm report at the Dombrowski residence, which is next
door to the Tibolt residence at 11 Old Salem Path.
Both residences are set well back from Old Salem Path
and largely concealed from view. Two driveways separated by a
tree and some shrubbery lead to the Tibolt home. The Tibolt
mailbox bearing "11 Old Salem Path" is located immediately
to the right of the first Tibolt driveway. The Dombrowski
mailbox marked "dombrowski 13" is located a few feet left
of the second Tibolt driveway, more than 60 feet before the
____ ____ __ ____ ______
driveway entrance to the Dombrowski residence at 13 Old Salem
Path.
2
Upon observing the mailbox marked "13," Officer Palaz-
zola mistakenly entered the second driveway to the Tibolt resi-
dence. He checked the exterior of the residence for signs of an
attempted break, or burglary in progress. Although he noted no
signs of forced entry, Palazzola found an unlocked door on the
rear deck. He opened the door and called inside to alert any
occupant, but received no response. Given that the police had
been requested to investigate the alarm, that a door was un-
locked, and that Palazzola had been unable to make contact with
anyone inside the house, he reasoned that the alarm might not
have been activated accidentally.
Palazzola promptly called for backup, and Officer
Thomas Williams arrived within five minutes. Williams likewise
drove to the Tibolt residence rather than the Dombrowski resi-
dence, because he saw Palazzola's squad car parked next to the
Tibolt residence. Williams immediately recognized the Tibolt
residence as having been the target of a prior investigation by a
Gloucester Police drug task force in which he had participated.
Williams was unsure, however, whether the target (viz., Tibolt)
of the task force investigation still owned the residence, or
whether it was still under investigation for drug-related activi-
ties.
Palazzola and Williams decided to make an immediate
warrantless entry through the unlocked rear door, then looked
about for possible explanations for the alarm (e.g., any occu-
pants, a burglar, "whatever"). Their search was limited in
3
scope, eschewing drawers, cabinets and containers. The officers
"secured" each room, to rule out the presence of intruders,
captives, or injured occupants. After sweep-searching the upper
floors, the officers discovered a well-established marijuana
growing facility in the basement, then left to obtain a search
warrant.1 Later, armed with a warrant, the officers searched
the Tibolt premises and seized incriminating financial records
which Tibolt subsequently sought to suppress on the ground that
the search warrant was invalid because the evidence relied on in
the supporting affidavit was itself the fruit of the earlier
warrantless search. After hearing, the district court denied the
motion to suppress, without elaboration.
Following the verdict, Tibolt moved for a new trial on
the ground that he had uncovered "new" evidence relating to the
suppression motion which would (1) impeach Palazzola's suppres-
sion hearing testimony, (2) suggest that the Gloucester Police
deliberately planned to search the Tibolt residence, and (3)
demonstrate a Franks v. Delaware, 438 U.S. 154, 155-56 (1978),
______ ________
violation. Gloucester Police Department "incident cards," which
record the time, date, desk officer, and location of police
assignments, disclosed that officers had been called to Old Salem
Path on at least fourteen prior occasions to investigate security
____________________
1The warrant application related the following grounds: (1)
an intrusion alarm was reported by J.K. Systems to the Gloucester
Police Department; (2) Officers Palazzola and Williams responded
to the alarm report and found a door open; (3) the officers
entered the home to check the premises for intruders; and (4) a
marijuana-growing facility was found in the cellar.
4
alarms. The cards reflect that there were three calls to "13 Old
Salem Path" and ten others to "Old Salem Path." One card, dating
from 1990, indicates that Officer Joseph Palazzola had been sent
to the Dombrowski residence to investigate a security alarm. And
two cards indicate that a desk officer with the initials "J.P."
had dispatched other officers to "Old Salem Path." I n
addition, an affidavit by Officer Theodore Lemieux, dated January
27, 1994 the day after the Tibolt suppression hearing and
_ ___ ___ _____ ___ ______ ___________ _______
submitted in support of a search warrant application in an
unrelated criminal proceeding, stated that
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an informant . . . has provided information
__ _________ ___ ________ ___________
that led to the arrest and indictment of one
____ ___ __ ___ ______ ___ __________ __ ___
William Tibolt. In the investigation the
_______ ______
informant provided detailed information in
regard to the location of an indoor growing
operation that Mr. Tibolt had in his home.
The informant provided the name, address as
well as other persons that were involved in
the marijuana growing operation. The infor-
mants [sic] also described the home and the
interior as well as a room in the center of
the basement that [sic] the growing operation
was being conducted. (Emphasis added.)
But for the fact that it contains no indication as to the timing
of the events described in it, the Lemieux affidavit might
conflict with the affidavit submitted in support of the search
warrant application of July 27, 1992, see supra note 1, which
___ _____
described JK Security's call to the Gloucester Police Department,
the police response, and the officers' unexpected discovery of
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marijuana in the Tibolt basement. After hearing, the district
court denied the motion for new trial. United States v. Tibolt,
_____________ ______
868 F. Supp. 380, 381-83 (D. Mass. 1994).
5
II
II
DISCUSSION
DISCUSSION
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A. Motion to Suppress
A. Motion to Suppress
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Tibolt first challenges the district court's pretrial
________
denial of the motion to suppress the primary evidence of money
laundering: the financial records seized from his residence on
July 27, 1992. He contends that there was no objectively reason-
able basis for believing that a life-threatening burglary was in
progress, even assuming that Officer Palazzola reasonably had
mistaken the Tibolt residence for the Dombrowski residence. But
___
see infra Section II.B. And he argues that inspection of the
___ _____
exterior of the Tibolt residence revealed no signs of forcible
entry, and no open windows or doors. See Brief for Appellant at
___
27-29 (citing United States v. Erickson, 991 F.2d 529 (9th Cir.
_____________ ________
1993) (suppressing evidence seized in warrantless search of
residence where officers investigating burglar alarm observed no
indication of forced entry)).
1. Substantive Law
1. Substantive Law
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A warrantless search of a private residence is presump-
tively unreasonable under the Fourth Amendment. See Payton v.
___ ______
New York, 445 U.S. 573, 586 (1980). The government therefore
________
must prove that the initial search came within some recognized
exception to the Fourth Amendment warrant requirement. See
___
United States v. Doward, 41 F.3d 789, 791 (1st Cir. 1994), cert.
_____________ ______ _____
denied, 115 S. Ct. 1716 (1995). Generally speaking, absent
______
probable cause and exigent circumstances the Fourth Amendment
6
bars warrantless, nonconsensual entries of private residences.
See United States v. Curzi, 867 F.2d 36, 41 (1st Cir. 1989).2
___ _____________ _____
Probable cause will be found to have been present if
the officers at the scene collectively possessed reasonably
trustworthy information sufficient to warrant a prudent policeman
in believing that a criminal offense had been or was being
committed. See Hegarty v. Somerset Cty., 53 F.3d 1367, 1374 (1st
___ _______ _____________
Cir. 1995), cert. denied, No. 95-629, 1995 WL 625553 (U.S. Dec.
_____ ______
11, 1995); United States v. Zurosky, 614 F.2d 779, 784 n.2 (1st
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Cir. 1979) (finding probable cause where police investigated
possible "breaking and entering" at warehouse), cert. denied, 446
_____ ______
U.S. 967 (1980) (citing Brinegar v. United States, 338 U.S. 160,
________ _____________
175-76 (1949)). "In dealing with probable cause, . . . as the
very name implies, we deal with probabilities. These are not
technical; they are the factual and practical considerations of
everyday life on which reasonable and prudent men, not legal
technicians, act." Illinois v. Gates, 462 U.S. 213, 231 (1983).
________ _____
Exigent circumstances exist where law enforcement
officers confront a "compelling necessity for immediate action
____________________
2The government would have us characterize this warrantless
entry as a so-called "community caretaker" search, a warrant
exception applicable to searches "totally divorced from the
detection, investigation, or acquisition of evidence relating to
the violation of a criminal statute." Cady v. Dombrowski, 413
____ __________
U.S. 433, 441, 447-48 (1973). In light of our alternative
disposition, we need not consider the "community caretaker"
exception. But see id. at 439 (noting "constitutional differ-
___ ___ ___
ence" between search of home and search of automobile); see also
___ ____
United States v. Bute, 43 F.3d 531, 535 (10th Cir. 1994) (reading
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Cady as applying only to searches of automobiles, not homes);
____
Erickson, 991 F.2d at 532 (same); United States v. Pichany, 687
________ _____________ _______
F.2d 204, 209 (7th Cir. 1982) (same).
7
that w[ould] not brook the delay of obtaining a warrant." United
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States v. Wilson, 36 F.3d 205, 209 (1st Cir. 1994) (citing United
______ ______ ______
States v. Adams, 621 F.2d 41, 44 (1st Cir. 1980)); United States
______ _____ _____________
v. Almonte, 952 F.2d 20, 22 (1st Cir. 1991), cert. denied, 503
_______ _____ ______
U.S. 1010 (1992). Although "exigency" determinations invariably
are fact-intensive, see United States v. Donlin, 982 F.2d 31, 34
___ _____________ ______
(1st Cir. 1992), "exigent circumstances" commonly include: "(1)
`hot pursuit' of a fleeing felon; (2) threatened destruction of
evidence inside a residence before a warrant can be obtained;
(3) a risk that the suspect may escape from the residence unde-
tected; or (4) a threat, posed by a suspect, to the lives or
safety of the public, the police officers, or to [an occupant]."
Hegarty, 53 F.3d at 1374. The "exigent circumstances" inquiry is
_______
limited to the objective facts reasonably known to, or discover-
able by, the officers at the time of the search. See Illinois v.
___ ________
Rodriguez, 497 U.S. 177, 186 (1990) (upholding warrantless search
_________
where police officers reasonably, but mistakenly, believed they
had obtained valid "third-party consent" to search residence from
person with authority to consent) (citing Archibald v. Mosel, 677
_________ _____
F.2d 5 (1st Cir. 1982) (invoking "good faith" principle under
"exigent circumstances" exception)).
2. Standard of Review
2. Standard of Review
__________________
As mixed questions of law and fact, the "probable
cause" and "exigent circumstances" determinations require bifur-
cated review: whether a particular set of circumstances gave
rise to "probable cause" or "exigent circumstances" is reviewed
8
de novo and findings of fact are reviewed for clear error.
__ ____
United States v. Goldman, 41 F.3d 785, 786 (1st Cir. 1994)
______________ _______
(probable cause), cert. denied, 115 S. Ct. 1321 (1995); United
_____ ______ ______
States v. Gooch, 6 F.3d 673, 678 (9th Cir. 1993) (exigent circum-
______ _____
stances). Where, as here, there are no explicit factual find-
ings, the record below is assessed in the light most favorable to
the trial court ruling. See United States v. Baldacchino, 762
___ _____________ ___________
F.2d 170, 176 (1st Cir. 1985).
3. Application of Law
3. Application of Law
__________________
Tibolt does not challenge the factual findings implicit
in the district court ruling, given that the evidence most
central to the ruling the police descriptions relating to the
alarm report, the locations of the mailboxes, the unlocked door
is undisputed.3 Moreover, these implicit findings unques-
tionably support the challenged legal conclusion that Officer
Palazzola had probable cause to believe a breaking and entering
had been or was being committed at the Tibolt residence.
____________________
3On appeal, Tibolt asserts no direct challenge to the
objective "reasonableness" of Palazzola's putative mistake
_________
purportedly caused by the juxtaposition of the Dombrowski mailbox
and the entrance to Tibolt's second driveway in investigating
the Tibolt residence, instead of Dombrowski's, for a burglary in
progress. Rather, he questions only whether Palazzola, despite
his protestations to the contrary, knowingly used this fortuitous
circumstance as a pretext for conducting a warrantless search for
drugs as part of an ongoing task force investigation targeting
the Tibolt residence. The only evidence of such a ruse, however,
was presented in his post-conviction motion. See infra Section
_______________ ___ _____
II.B. At the pretrial hearing, the inquiry into Palazzola's
________
state of mind necessarily turned, for the most part, on the trial
court's observation of Palazzola's demeanor, and its credibility
determination, matters uniquely within the province of the trier
of fact. United States v. Zapata, 18 F.3d 971, 975 (1st Cir.
______________ ______
1994).
9
A security alarm had been activated, and when JK
Security placed a call to the Dombrowski residence, it had
received no answer.4 These circumstances severely undercut any
likelihood that the security alarm had been activated inadver-
tently by a resident. Moreover, upon his arrival approximately
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ten minutes later, Palazzola checked all windows and doors at the
___ _______ _____
Tibolt residence.5 Instead of finding all doors secured, as one
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4Tibolt cites cases involving various external indicia of a
"break," see, e.g., Commonwealth v. Fiore, 403 N.E.2d 953, 955
___ ____ ____________ _____
(Mass. Ct. App.) (upholding warrantless search where outer door
found broken off hinges), cert. denied, 449 U.S. 938 (1980), but
_____ ______ ___
no alarm system activation. See Erickson, 991 F.2d at 530, 533
__ _____ ______ __________ ___ ________
(noting that government, on appeal, had conceded that no "exigent
circumstances" had been shown, given the absence of any activated
security alarm; no visible sign of forced entry; witness reports
that suspected burglars had departed area 30 minutes before
police officers' arrival; and officers' failure to "knock and
announce" before entry); United States v. Moss, 963 F.2d 673,
______________ ____
677, 679 (4th Cir. 1992) (invalidating search because "the
Government has formally conceded that this is not an 'exi-
gent-circumstances case' and does not seek to uphold the search
here on that basis," given that police officer observed "no
[external] indication that any illegal occupant was inside" the
cabin); Commonwealth v. Bates, 548 N.E.2d 889, 892-93 (Mass. Ct.
____________ _____
App. 1990) (invalidating search where police did not even suspect
an ongoing crime, but were merely investigating a "missing
person" report, after waiting over three hours before investigat-
ing missing person's apartment); State v. Morgavi, 794 P.2d 1289,
_____ _______
1292-93 (Wash. Ct. App. 1990) (invalidating search based on
police observation of "a car in front of the garage, opened and
partially broken doors to the garage, an open back door to the
house and an open side door to the garage," but distinguishing
cases where "the police were summoned to the premises by con-
cerned neighbors who had witnessed the burglaries and the flight
of suspects"). We think it clear that the activation of an alarm
system is an external "sign" of a possible forced entry.
5Although the Dombrowski residence bore a "JK Security"
sticker, and the Tibolt residence an "ADT Security" sticker,
there was no evidence that Palazzola had been informed by the
dispatcher that JK Security had reported the alarm. Further,
while dispatchers sometimes write the name of the reporting
security company on the incident cards, see infra Section II.B.,
___ _____
the investigating officers do not receive these cards for comple-
10
might reasonably expect while the residents are away, he found an
unlocked door on the rear deck and received no response to his
efforts to communicate with anyone who might be inside. These
circumstances significantly enhanced the likelihood of an intrud-
er.
For similar reasons, we conclude that Palazzola was
presented with "exigent circumstances" permitting an immediate
_________
warrantless entry. Without entering, he could not know but what
an intruder had managed to get into the residence, and even
injured or captured a resident, then fled; or had been caught off
guard by the police and remained in the residence with a forcibly
detained resident. Even the authorities cited by Tibolt acknowl-
edge the potential exigencies attending such circumstances. See
___
Erickson, 991 F.2d at 533 ("In a wide variety of contexts, this
________
and other circuits have upheld warrantless searches conducted
during burglary investigations under the rubric of exigent
circumstances."); Commonwealth v. Fiore, 403 N.E.2d 953, 955
____________ _____
(Mass. Ct. App.) ("It seems clear to us that a house break
without more as set out in the affidavit raises the possibility
of danger to an occupant and of the continued presence of an
intruder and indicates the need to secure the premises. In such
circumstances `(t)he right of the police to enter and investigate
in an emergency without the accompanying intent to either search
or arrest is inherent in the very nature of their duties as peace
____________________
tion until after their investigation of the alarm report. In any
_____
event, Tibolt has not raised this matter. See supra note 3.
___ _____
11
officers.'") (citation omitted), cert. denied, 449 U.S. 938
_____ ______
(1980)). Hindsight discloses, of course, that Palazzola was
mistaken. Nevertheless, at the time, see Rodriguez, 497 U.S. at
__ ___ ____ ___ _________
186, an officer confronted with these circumstances reasonably
could have concluded that there was an imminent risk "to the
lives or safety of the public," Hegarty, 53 F.3d at 1374, or to
_______
an injured or immobilized resident. See, e.g., Murdock v. Stout,
___ ____ _______ _____
54 F.3d 1437, 1443 (9th Cir. 1995) (upholding warrantless search
of residence following burglary report, where investigating
officers found some signs that resident might have been at home
when an intruder entered dwelling, and received no response to
their calls, thereby creating a "fair probability that . . . a
resident might be in need of assistance") (distinguishing prior
circuit precedent in United States v. Erickson, 991 F.2d 529 (9th
_____________ ________
Cir. 1993)). Accordingly, the district court did not err in
denying the motion to suppress.
B. Motion for New Trial
B. Motion for New Trial
____________________
We turn now to the district court ruling denying a new
trial. Tibolt contends that the "newly discovered" Gloucester
Police "incident cards" and the Lemieux affidavit support a
rational inference that Officer Palazzola committed perjury at
the suppression hearing, in explaining that the misleading
placement of the Dombrowski mailbox at the opening of the second
Tibolt driveway, and his own unfamiliarity with the two residenc-
es, had caused him to go to the Tibolt residence to investigate
the reported alarm at the Dombrowski residence. Tibolt maintains
12
that the incident cards show that Palazzola had been to the
Dombrowski residence at least once before and, therefore, should
have recognized his mistake on this occasion. Further, he
argues, the Lemieux affidavit suggests that Palazzola's "mistake"
was actually part of an elaborate, conspiratorial ruse, manufac-
tured by the Gloucester Police task force to enable a warrantless
search of the Tibolt residence for drugs. Cf. Curzi, 867 F.2d at
___ _____
43 n. 6 (noting that police may not justify warrantless search by
manipulating events to generate "exigency"). Finally, in the
affidavit supporting the search warrant application submitted on
July 27, 1992 presumably premised solely on the fruits of the
______
warrantless search the police failed to disclose their prior
investigations of the Tibolt residence for suspected drug activi-
ties. Tibolt insists that the failure to disclose the prior
investigations of the residence constituted a "clear violation"
of Franks v. Delaware, 438 U.S. 154 (1978).
______ ________
1. Substantive Law
1. Substantive Law
_______________
A motion for new trial based on newly discovered
evidence will not be allowed unless the movant establishes that
the evidence was: (i) unknown or unavailable at the time of
trial, (ii) despite due diligence, (iii) material, and (iv)
likely to result in an acquittal upon retrial. United States v.
_____________
Ortiz, 23 F.3d 21, 27 (1st Cir. 1994); United States v. Natanel,
_____ _____________ _______
938 F.2d 302, 313 (1st Cir. 1991), cert. denied, 502 U.S. 1079
_____ ______
(1992). If, however, the "new" evidence was within the govern-
13
ment's control and its disclosure was withheld, the third and
fourth criteria are less stringent:
The usual locution, taken from Justice
Blackmun's opinion in Bagley, [473 U.S. 667
______
(1985)], is that the nondisclosure justifies
a new trial if it is "material," it is
"material" only if there is "a reasonable
probability" that the evidence would have
changed the result, and a "reasonable
probability" is "a probability sufficient to
undermine confidence in the outcome." Id. at
___
682. . . . This somewhat delphic "undermine
confidence" formula suggests that [a] rever-
sal [and a remand for new trial] might be
warranted in some cases even if there is less
than an even chance that the evidence would
produce an acquittal. After all, if the
evidence is close and the penalty signifi-
cant, one might think that undisclosed evi-
dence creating (for example) a 33 percent
chance of a different result would undermine
one's confidence in the result. And while
Bagley appears to give little weight to other
______
factors--such as the degree of fault on the
prosecutor's part and the specificity of the
defense request--it is not entirely clear
that these variables must be ignored.
United States v. Sepulveda, 15 F.3d 1216, 1220 (1st Cir. 1993),
_____________ _________
cert. denied, 114 S. Ct. 2714 (1994).
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2. Standard of Review
2. Standard of Review
__________________
The denial of a motion for new trial is reviewed only
for manifest abuse of discretion. See United States v. Wright,
___ _____________ ______
625 F.2d 1017, 1019 (1st Cir. 1980). The instant motion for new
trial triggers a two-tier inquiry. First, to the extent the
"new" evidence pertains to the disposition of the pretrial motion
to suppress financial records, wherein the district court was the
________ _____
trier of fact, Tibolt confronts the daunting task of demonstrat-
ing that the district court committed clear error in determining
14
that the "new" evidence would not have altered its pretrial
factual findings. Zapata, 18 F.3d at 975 (noting that factual
______
findings and credibility determinations relating to suppression
issues are normally for the trier of fact). Second, Tibolt must
show that the "new" evidence would so undermine the government's
case as to give rise to a "reasonable" probability of acquittal
upon retrial. Sepulveda, 15 F.3d at 1220.6
_________
3. The Incident Cards
3. The Incident Cards
__________________
We cannot say that the district court ruling constitut-
ed a manifest abuse of discretion. The district court found,
inter alia, that the police incident reports would not suffice to
_____ ____
undermine Officer Palazzola's credibility; hence, were not likely
to result in an acquittal. Tibolt, 868 F. Supp. at 382. Nor are
______
we persuaded that Palazzola perjured himself at the suppression
hearing. Rather, he testified simply that he could not remember
having been at the Dombrowski residence prior to July 27, 1992.
In fact, the incident cards show that he was sent there on but
one occasion three years before the pretrial suppression
___ _____ _____
hearing. Further, this incident card did not even compel the
conclusion that Palazzola went to, or secured, the Dombrowski
residence on that prior occasion. Thus, the district court was
____ _____ ________
entitled to find that the incident cards did not undermine
Palazzola's claimed lack of memory. Cf. Natanel, 938 F.2d at 313
___ _______
____________________
6We assume, without deciding, that the "new" evidence was
within the government's control and potentially subject to
disclosure. But see infra Section II.B.4 (noting that government
___ ___ _____
did disclose essential information, later reiterated in Lemieux
affidavit, at pretrial suppression hearing).
15
(noting somewhat lesser burden on new-trial movant where evidence
shows witness's prior testimony was "deliberately false"). Given
their marginal direct probative value, we cannot say that the
incident cards alone were sufficient to generate a "reasonable"
probability that Tibolt would be acquitted upon retrial. Cf.
__
Sepulveda, 15 F.3d at 1220 n.5 (noting that newly discovered
_________
evidence pertaining exclusively to a government witness's credi-
bility rarely warrants new trial). 4. The Lemieux Affida-
4. The Lemieux Affida-
____________________
vit
vit
___
The district court found the Lemieux affidavit similar-
ly inconclusive. Although the affidavit might contribute to a
plausible inference of police conspiracy, it certainly did not
compel such a finding, especially since its temporal relevance is
______
so unclear. For one thing, it is not unreasonable to think that
Lemieux may have been imprecise in recollecting the sequence of
________
the events which had occurred a year and a half earlier. That is
to say, there is nothing in the affidavit to suggest but what
Lemieux may have been remembering that Tibolt was arrested and
that an informant's tip simply corroborated what the officers
____________
themselves accidentally discovered. Nor does the Lemieux affida-
vit, vague as it is, make it probable that an acquittal would
result upon retrial.
In all events, we need not rest our decision solely on
the "credibility" ground, since the district court found also
with respect to the information in the Lemieux affidavit that
Tibolt had not met the first two prongs of the Ortiz test. See
_____ ___
16
Natanel, 938 F.2d at 313 (failure to establish any of the four
_______ ___
Ortiz factors defeats motion for new trial). The court further
_____
found that Tibolt had not shown that this "new" evidence was
either unknown or unavailable at the time of the pretrial sup-
pression hearing, nor that Tibolt had exercised due diligence to
discover the evidence earlier. See Tibolt, 868 F. Supp. at 382
___ ______
("What is more, the government proffered at the suppression
hearing the fact that Tibolt's home had been the subject of a
local drug investigation before the search, and made available to
Tibolt one of the officers involved in that investigation for
questioning."). At the pretrial suppression hearing, moreover,
the government disclosed to the defense that Officer Williams
participated in a previous task force surveillance of the Tibolt
residence, and that "at that time there were some reports of
____ _______
possible drug activities involving that house." (Emphasis
added.) This disclosure certainly should have alerted Tibolt to
the probability that an informant was involved. Yet Tibolt
failed to pursue information relating to whether the warrantless
search of July 27, 1992 was a mere "ruse" designed to fabricate a
showing of probable cause. Since the finding that Tibolt failed
to exercise due diligence was not clearly erroneous, see Zapata,
___ ______
18 F.2d at 975, he may not rely on this evidence to mount a
renewed
attackonthewarrantlesssearchorthesearchwarrantapplication.7
____________________
7As noted above, see supra p. 4, Tibolt not only challenges
___ _____
the pretrial determination that Palazzola's warrantless search
___________ ______
was valid, but cites Franks v. Delaware as authority for a direct
______ ________
challenge to the subsequent search warrant, which was premised
______ _______
entirely on the fruits of the earlier warrantless search. A
17
The district court judgment is affirmed.
The district court judgment is affirmed.
_______________________________________
____________________
defendant is not entitled to a Franks evidentiary hearing,
______
however, absent a "substantial preliminary showing (1) that a
false statement [or material omission] in the affidavit [support-
ing the search warrant application] has been made knowingly and
intentionally, and (2) that the false statement [or material
omission] is necessary for a finding of probable cause." United
______
States v. Scalia, 993 F.2d 984, 987 (1st Cir. 1993) (citing
______ ______ ______
United States v. Rumney, 867 F.2d 714, 720 (1st Cir.), cert.
______________ ______ _____
denied, 491 U.S. 908 (1989)).
______
We discern no principled basis for treating the Franks claim
______
differently than Tibolt's direct challenge to the warrantless
search. To the extent the "new" evidence underlying the Franks
______
hearing request was available prior to trial (i.e., the Lemieux
affidavit) by the exercise of due diligence, Tibolt's post-trial
Franks request based on that evidence is untimely. See supra
______ ___ _____
Section II.B.4. The marginal probative value of the incident
cards in undercutting Palazzola's pretrial testimony is insuffi-
cient, by itself, to support a "substantial preliminary showing"
___________
that the evidence, if disclosed, would have altered the decision
that there was probable cause to issue a search warrant. See
___
supra Section II.B.3; see also, e.g., United States v. Hiveley,
_____ ___ ____ ____ _____________ _______
61 F.3d 1358, 1360 (8th Cir. 1995) (noting that "the 'substantial
showing' requirement needed to obtain a Franks hearing is not
______
lightly met").
18