United States v. Tanguay , 787 F.3d 44 ( 2015 )

United States Court of Appeals
For the First Circuit
No. 14-1174
UNITED STATES OF AMERICA,
Appellee,
v.
JONATHAN TANGUAY,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Joseph N. Laplante, U.S. District Judge]
Before
Barron, Selya and Stahl,
Circuit Judges.
J. Martin Richey, Federal Defender Office, for appellant.
Seth R. Aframe, Assistant United States Attorney, with whom
John P. Kacavas, United States Attorney, was on brief, for
appellee.
May 22, 2015
SELYA, Circuit Judge. It is common ground that a police
officer seeking to obtain a search warrant should include in the
affidavit accompanying the warrant application any facts known to
her that are material to the existence vel non of probable cause.
See United States v. Stewart, 337 F.3d 103, 107 (1st Cir.), as
amended (Oct. 14, 2003). Under some limited circumstances,
however, the officer's duty may be broader: she may be obliged to
inquire further in order to dispel serious doubts about either the
credibility of an informant upon whom she relies or the veracity of
the allegations underlying the attempted showing of probable cause.
This duty of further inquiry is not well understood, and the court
below ruled categorically that no such duty ever exists. Because
this statement of the law is insufficiently nuanced, we remand for
further factfinding consistent with this opinion.
I. BACKGROUND
We briefly rehearse the facts as supportably found by the
district court, along with the travel of the case. The reader who
hungers for more exegetic detail may wish to consult the district
court's comprehensive account. See United States v. Tanguay, 907
F. Supp. 2d 165, 167-76 (D.N.H. 2012).
In February of 2010, the Conway police department
received an e-mail, ostensibly from "Jim Garrold," relating that he
had seen child pornography on the laptop computer of "John
Tanguway." The e-mail described "Tanguway" as an emergency medical
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technician with a local ambulance service and indicated that the
child pornography had been observed during a sexual encounter a few
days earlier. This e-mail served to draw the attention of the
police to defendant-appellant Jonathan Tanguay, a selectman in the
nearby town of Bartlett.
A New Hampshire state trooper, Sgt. Carrie Nolet, took
charge of the ensuing investigation. After searching without
success for a Jim Garrold, Nolet called the telephone number
provided in the e-mail. A voicemail message identified the owner
of the telephone as Josh Wiggin. Nolet then asked Sgt. Alan
Broyer, a Conway police officer, whether he knew anyone by that
name. Broyer responded that Wiggin was known as a "police groupie"
who was "quirky," "troubled" in his teen years, and had a history
of suicidal ideation. Broyer also commented that Wiggin had
experienced "a few scrapes" with the law, specifically mentioning
that Wiggin had been convicted of uttering a false prescription (he
had altered the number of Vicodin pills on a legitimate
prescription from 30 to 80 before presenting the prescription to a
pharmacist). Nolet did not ask Broyer for more details nor did she
make any effort to find out what other "scrapes" Wiggin may have
had.
Nolet proceeded to contact Wiggin (a 28-year-old Conway
resident). He admitted having sent the accusatory e-mail and
agreed to an interview. During this interview, Wiggin disclosed
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that he and the appellant had maintained a casual sexual
relationship, off and on, since Wiggin's teenage years. He added
that, on a recent evening, he had gone to the appellant's home for
that purpose. When he walked in, the appellant was watching a
pornographic video on his laptop. Wiggin described the subjects of
this video as boys of "maybe eight, thirteen, fifteen, sixteen."1
He also reported seeing thumbnail previews of a "bunch of pictures"
and three or four videos depicting children engaging in sex acts
with adults.
About a week after the interview, Nolet applied for and
obtained a warrant to search the appellant's home, vehicle, and
workplace for computer systems. In the affidavit supporting the
warrant application, Nolet communicated the substance of Wiggin's
interview, emphasizing that Wiggin had come forward despite the
potential embarrassment of having his sexual interest in men
revealed to his parents and girlfriend. The affidavit did not
contain any of the information that Nolet had learned from Broyer
regarding Wiggin's history and reputation. Nor did she
incorporate the typewritten notes that Wiggin had prepared and
brought to the interview. See supra note 1.
1
Wiggin had prepared typewritten notes in advance of the
interview and brought those notes with him. The notes indicated
that the video depicted "young man or teen pornography." Nolet
retained Wiggin's notes after the interview ended.
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A state judge issued the warrant. During the search, the
police seized a computer, hard drive, and compact disc that were
found to contain a profusion of sexually explicit images and videos
depicting minors.
A federal indictment followed charging the appellant with
a single count of possession of child pornography. See 18 U.S.C.
§ 2252A(a)(5)(B). The appellant moved for an evidentiary hearing,
see Franks v. Delaware, 438 U.S. 154, 155-56 (1978), and to
suppress the evidence seized during the search. He asserted that
Nolet had either deliberately or recklessly omitted material
information from her affidavit.
The district court convened what amounted to a Franks
hearing at which Nolet testified. The court reserved decision and
subsequently filed a written rescript denying the motion to
suppress. The court concluded that Nolet had "recklessly — if not
intentionally —" omitted from her affidavit three clusters of
relevant information known to her at the time she sought the
warrant: Wiggin's prior conviction for falsifying a prescription,
a crime of dishonesty; Wiggin's reputation among local police as
"troubled," "suicidal," "quirky," and a "police groupie," which the
district court said suggested a history of mental instability and
a willingness to compromise oneself to impress the police; and the
fact that Wiggin's interview statement — that the appellant was
viewing a pornographic video depicting children as young as eight
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years of age when Wiggin arrived — arguably conflicted with
Wiggin's typed notes describing the subjects of that video as young
men or teens. Tanguay, 907 F. Supp. 2d at 177-79. But these three
clusters of omitted information, the court held, did not require
suppression: there would have been probable cause to authorize the
search even if the affidavit had included the omitted facts. See
id. at 186.
The appellant had a fallback position: he argued that
Nolet's affidavit was deficient because she had neglected to make
any inquiry into the concerns voiced to her by Broyer. Had such an
inquiry been mounted, Nolet conceivably would have discovered that
one of Wiggin's prior "scrapes" was a juvenile conviction for
making a false report to the Conway police. That conviction
stemmed from Wiggin's claim that he had been shot in the leg by an
unidentified sniper when, in fact, he had shot himself to see what
it felt like. Because such a conviction was for a crime of
dishonesty, the appellant asserted, disclosing it would have cast
grave doubt on Wiggin's credibility and, thus, undermined any
showing of probable cause.
The district court rejected this plaint as well. In
doing so, the court relied on the fact that Nolet did not know of
the false report conviction at the time she executed the affidavit.
See id. at 182. Since Nolet had no duty as a matter of law to
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inquire further, the court reasoned, the false report conviction
formed no part of the Franks calculus. See id. at 182-83.
In due course, a jury convicted the appellant. The
district court sentenced him to an 84-month term of immurement.
This timely appeal followed.
II. ANALYSIS
The appellant challenges the district court's denial of
his motion to suppress on two grounds. First, he says that when
Nolet's affidavit is reformed to include the material that the
district court found intentionally or recklessly omitted, the
reformed affidavit no longer supports a finding of probable cause.
Second, he contests the district court's categorical ruling that
the Franks doctrine is never implicated by the omission from a
warrant affidavit of facts unknown to the affiant at the time of
the application.
The starting point for the consideration of both of these
claims of error is the same. In Franks, the Supreme Court
established that, under the Fourth and Fourteenth Amendments, a
defendant is entitled to an evidentiary hearing to test the
veracity of a warrant affidavit if he can make a substantial
showing that the affiant intentionally or with reckless disregard
for the truth included a false statement in the affidavit, which
statement was necessary to the finding of probable cause. See 438
U.S. at 155-56. Suppression of the evidence seized is justified
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if, at such a hearing, the defendant proves intentional or reckless
falsehood by preponderant evidence and the affidavit's creditworthy
averments are insufficient to establish probable cause. See id. at
156.
Material omissions from a warrant affidavit also may
furnish the basis for a successful Franks challenge. See United
States v. Hadfield, 918 F.2d 987, 992 (1st Cir. 1990). The
required showing is two-fold: first, the omission must have been
either intentional or reckless; and second, the omitted
information, if incorporated into the affidavit, must be sufficient
to vitiate probable cause. See United States v. Castillo, 287 F.3d
21, 25 & n.4 (1st Cir. 2002); see also United States v. Tate, 524
F.3d 449, 456-57 (4th Cir. 2008) ("A 'literally true' affidavit
. . . can be intentionally misleading if it deliberately omitted
material facts which, when included, would defeat the probable
cause showing and thus render false the original 'literally true'
affidavit."). Because there is no requirement that every shred of
known information be included in a warrant affidavit, the omission
of a particular detail, without more, is not enough to satisfy the
mens rea element of the Franks test. See United States v. Colkley,
899 F.2d 297, 300-01 (4th Cir. 1990). Rather, an omission triggers
the exclusionary rule only if it is "designed to mislead, or
. . . made in reckless disregard of whether [it] would mislead, the
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magistrate" in his appraisal of the affidavit. Id. at 301
(emphasis omitted).
Recklessness may be inferred directly from the fact of
omission only if "the omitted information was critical to the
probable cause determination." Burke v. Town of Walpole, 405 F.3d
66, 81 (1st Cir. 2005) (emphasis supplied) (internal quotation mark
omitted). Negligent omissions — even negligent omissions of highly
probative information — do not satisfy this strict standard. See
Franks, 438 U.S. at 171; see also United States v. Melvin, 596 F.2d
492, 499-500 (1st Cir. 1979) (affirming finding that omission of
key witness's recantation was merely negligent, not reckless,
because of affiant's good-faith belief that recantation was
incredible).
A. The Reformed Affidavit.
Against this backdrop, we turn to the appellant's initial
claim of error. Neither party contests the soundness of the
district court's plainly supportable finding that Nolet recklessly
omitted from her affidavit the three clusters of information limned
above. The appellant nonetheless argues that the court misjudged
the weight of those omitted facts. As he sees it, a reformed
affidavit that includes those facts falls short of establishing
probable cause.
We begin with the Fourth Amendment's command that "no
Warrants shall issue, but upon probable cause, supported by Oath or
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affirmation, and particularly describing the place to be searched."
U.S. Const. amend. IV. As a general matter, a district court
should pay great respect to the issuing magistrate's determination
of probable cause. See Illinois v. Gates, 462 U.S. 213, 236
(1983). Where relevant information has been withheld from the
magistrate, however, the district court must probe the existence of
probable cause anew. See United States v. Gifford, 727 F.3d 92, 99
(1st Cir. 2013) (citing Burke, 405 F.3d at 82). Our review of the
district court's own probable cause determination is de novo. See
Ornelas v. United States, 517 U.S. 690, 699 (1996); Gifford, 727
F.3d at 99. Findings of fact, though, are reviewed only for clear
error. See Ornelas, 517 U.S. at 699.
In giving effect to the Fourth Amendment's commands, the
principal task is "to make a practical, common-sense decision
whether, given all the circumstances set forth in the affidavit
before [us], including the veracity and basis of knowledge of
persons supplying hearsay information, there is a fair probability
that contraband or evidence of a crime will be found in a
particular place." Gates, 462 U.S. at 238 (internal quotation
marks omitted); see United States v. Schaefer, 87 F.3d 562, 565
(1st Cir. 1996) ("Probable cause exists when 'the affidavit upon
which a warrant is founded demonstrates in some trustworthy fashion
the likelihood that an offense has been committed and that there is
sound reason to believe that a particular search will turn up
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evidence of it.'" (quoting United States v. Aguirre, 839 F.2d 854,
857-58 (1st Cir. 1988))). Performance of this task must take
account of the totality of the circumstances. See Gates, 462 U.S.
at 238. Within this rubric, the statements of a law-abiding
eyewitness to a crime are generally considered reliable without
further corroboration. See United States v. Blount, 123 F.3d 831,
835-36 (5th Cir. 1997); see also United States v. Campbell, 732
F.2d 1017, 1019 (1st Cir. 1984).
Our review of the entire affidavit, supplemented only by
the three recklessly omitted clusters of information, supports the
conclusion that probable cause existed to search the appellant's
home. The most trenchant of the omitted facts — Wiggin's
conviction for uttering a false prescription — is surely relevant
to the decisional calculus. But the commission of a past crime
does not necessarily undercut a person's veracity. See United
States v. Rumney, 867 F.2d 714, 720-21 (1st Cir. 1989). Even a
prior conviction for a crime of dishonesty is not always
dispositive of a witness's reliability. See, e.g., United States
v. Meling, 47 F.3d 1546, 1554-55 (9th Cir. 1995). Here, we do not
think that the court erred in ascribing such limited significance
to the altered prescription conviction. After all, it is not
unreasonable to think that a willingness to lie to feed a drug
addiction is materially different than a willingness to level false
accusations against a third party.
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To be sure, the second cluster of omitted information,
including Wiggin's history of mental instability and his reputation
as a "police groupie," calls for some degree of increased
skepticism. But a factfinder might reasonably think that these
black marks against Wiggin's credibility, like his altered
prescription conviction, are diminished in importance in light of
countervailing indicia of truthfulness. See United States v.
Reeves, 210 F.3d 1041, 1045 (9th Cir. 2000). An informant's
trustworthiness may be enhanced in a number of ways, including his
willingness to reveal his identity, the level of detail in his
account, the basis of his knowledge, and the extent to which his
statements are against his interest. See 2 Wayne R. LaFave, Search
& Seizure § 3.3(c)-(e) (5th ed. 2012 & Supp. 2015). A number of
such factors bolster the district court's determination that the
essence of Wiggin's account was worthy of credence. Wiggin was
willing to be identified despite his embarrassment about the
potential revelation of his sexual orientation to his loved ones;
he candidly admitted that there might be compromising pictures of
him in the appellant's possession (and, thus, likely to surface in
the search); and the record contains no credible suggestion of any
ulterior motive for reporting the crime. All of these are positive
factors in assessing Wiggin's veracity.
The third cluster of omitted information lacks any
decretory significance. The modest discrepancy between Wiggin's
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interview statements and his notes does not defeat probable cause.
The notes indicated that the appellant was watching "young man or
teen pornography" when Wiggin arrived, whereas he stated in the
interview that the subjects of the videos ranged from "maybe eight"
to sixteen years of age. But Wiggin also gave a physical
description of the subjects, stating that "there wasn't really much
of any . . . signs I guess, body hair, or facial hair and . . . you
can tell when you look at ah, a[n] eighteen year old versus you
know, a fourteen year old." Taken together, these statements
create a fair probability that one or more of the actors was a
minor. No more is exigible. See Gates, 462 U.S. at 238.
We hasten to add that Wiggin's rough guess as to the ages
of the minors in the initial video was not the only basis for the
conclusion that the appellant possessed child pornography. Wiggin
reported seeing a number of other pictures and videos containing
sexual depictions of prepubescent children. And the inference that
the appellant possessed child pornography was bolstered by
plausible indications that the appellant harbored a sexual interest
in young boys. The affidavit related that Wiggin first met the
appellant when the appellant (a counselor at a summer camp) ogled
Wiggin and other young campers as they showered; that the appellant
initiated a sexual relationship with Wiggin when Wiggin was still
a student at the high school where the appellant worked; that the
appellant became aroused when talking about a one-time rendezvous
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with a teen boy who had lied about his age; and that the appellant
had made sexual allusions to the nine-year-old son of Wiggin's
girlfriend.
We recognize that the question is close. But assuming no
duty to investigate further (an issue to which we shortly shall
return), we uphold the district court's conclusion that the
affidavit, reformed only to include the recklessly omitted facts,
remains sufficient to establish probable cause.2 There was no
error.
B. The Duty of Further Inquiry.
The appellant's second claim of error raises a question
of law, which engenders de novo review. See United States v.
Garcia-Hernandez, 659 F.3d 108, 111 (1st Cir. 2011). This claim is
premised on Nolet's omission of information not actually known to
her at the time that she prepared the warrant application, but
potentially available had she inquired further. The appellant
argues that Nolet was given ample reason to doubt Wiggin's veracity
and that her failure to undertake a further inquiry evinced a
reckless disregard for the truth. Had she undertaken such a
2
Our rejection of this claim of error should not be
understood to foreclose a reassessment of probable cause by the
district court if, on remand, it finds that Nolet was reckless in
failing to inquire further and unearth other relevant information
(such as Wiggin's false report conviction). The relative weight of
these three clusters of information might be altered if the
totality of the circumstances were to include additional data about
Wiggin's past.
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further inquiry, his argument goes, she would have learned about a
critically important fact — Wiggin's false report conviction — that
would have eviscerated the showing of probable cause.
At first blush, black-letter law may seem inhospitable to
the appellant's argument. The prevailing view is that "[t]he
failure to investigate a matter fully, to 'exhaust every possible
lead, interview all potential witnesses, and accumulate
overwhelming corroborative evidence' rarely suggests a knowing or
reckless disregard for the truth." Beard v. City of Northglenn, 24
F.3d 110, 116 (10th Cir. 1994) (quoting United States v. Dale, 991
F.2d 819, 844 (D.C. Cir. 1993)). Ordinarily, this makes good
sense: when the affiant has no substantial reason to doubt the
veracity or completeness of the information included in her
affidavit, a failure either to verify the accuracy of that
information or to go in search of contrary information is not
reckless. See, e.g., United States v. Santana, 342 F.3d 60, 66
(1st Cir. 2003); United States v. Ranney, 298 F.3d 74, 78 (1st Cir.
2002).
But this general rule — like virtually every general rule
— admits of at least one exception. To understand the operation of
this exception, some background is necessary.
The Franks Court established that a defendant is entitled
to an evidentiary hearing to test the veracity of a warrant
affidavit if he can make a substantial showing that the affiant,
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with reckless disregard for the truth, included a materially false
statement in the affidavit. See 438 U.S. at 155-56. We have
previously held that a material omission from a warrant affidavit,
no less than the inclusion of a materially false statement, may
furnish the basis for a successful Franks challenge when that
omission was made with similar recklessness. See, e.g., Hadfield,
918 F.2d at 992.
Withal, "the Supreme Court in Franks gave no guidance
concerning what constitutes a reckless disregard for the truth in
fourth amendment cases, except to state that 'negligence or
innocent mistake [is] insufficient.'" United States v. Davis, 617
F.2d 677, 694 (D.C. Cir. 1979) (alteration in original) (quoting
Franks, 438 U.S. at 171). We have added our own gloss in an
attempt to lend color to this standard. In United States v.
Ranney, we explained that reckless disregard for the truth may be
proven either by evidence that "the affiant 'in fact entertained
serious doubts as to the truth' of the allegations" contained in
the affidavit, or by inference "'from circumstances evincing
obvious reasons to doubt the veracity of the allegations.'" 298
F.3d at 78 (quoting United States v. Williams, 737 F.2d 594, 602
(7th Cir. 1984)).
With this preface, we turn to the appellant's specific
claim of error. We start with the district court's supportable
finding that, when proffering the warrant application, Nolet
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"understood full well that [Wiggin's] credibility was at issue,
based on his [altered prescription] conviction, if nothing else."3
Tanguay, 907 F. Supp. 2d at 182. Yet, Nolet "did nothing further
to check Wiggin's background," not even taking "the seemingly easy
and obvious step of asking Sergeant [Broyer] what he meant by
'scrapes.'" Id. In the district court's view, Nolet "could have
— and almost certainly should have — learned [about the false
report conviction] before seeking the warrant." Id. The court
nonetheless concluded that, as a matter of law, a failure to
investigate fully could not constitute a reckless disregard for the
truth. See id. (citing cases). The court therefore held that it
could not "treat Wiggin's false report[] conviction, or any other
part of his criminal history aside from his [altered prescription]
conviction, as a reckless omission for purposes of the Franks
analysis." Id. at 182-83.
We think that the district court painted with too broad
a brush. Its rejection of the appellant's claim rested on the
erroneous assumption that a Franks violation could not arise out of
a failure to include in a warrant affidavit facts not actually
known to the affiant. See id. at 182. The rule is simply not so
categorical.
3
Of course, this altered prescription conviction is different
from the juvenile false report conviction (about which Nolet had no
knowledge).
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Here, Nolet had some reason to doubt the veracity of her
informant. Broyer, a fellow police officer, had portrayed Wiggin
as "quirky," "troubled," and possibly afflicted by some degree of
mental instability. In addition, Nolet knew that Wiggin's history
included the altered prescription conviction and that he had
experienced other "scrapes" with the law. Given that Nolet's case
for probable cause depended entirely on Wiggin's account, we think
that this web of circumstantial evidence sent up a red flag — and
that red flag may have been sufficient to create a duty of further
inquiry. See United States v. Chesher, 678 F.2d 1353, 1361-62 (9th
Cir. 1982).
To sum up, our holding is that the district court erred
in ruling as a matter of law that an affiant never has a duty to
make further inquiry before presenting a warrant application to a
magistrate.4 Because the court below, erroneously relying on its
categorical disavowal of any duty of further inquiry, did not pose
any of the further questions that had to be asked, we must regard
its order denying the appellant's motion to suppress as without
4
The cases cited by the district court for its categorical
proposition that no duty of further inquiry ever exists, see
Tanguay, 907 F. Supp. 2d at 182, do not mandate so rigid a rule.
In each of those cases, the Franks challenge failed because the
affiant had no reason to doubt the truthfulness of the allegations
that undergirded the showing of probable cause. See Ranney, 298
F.3d at 78; Castillo, 287 F.3d at 26; United States v. Miller, 753
F.2d 1475, 1478 (9th Cir. 1985).
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force pending the completion of the further proceedings described
below.
This holding is not at odds with our earlier holding that
the district court supportably found probable cause based on the
reformed affidavit. See supra Part II(A). All that is required to
trigger an officer's duty of further inquiry is her knowledge of an
obvious and unexplored reason to doubt the truthfulness of the
allegations. See Ranney, 298 F.3d at 78. When confronted with
such a red flag, the officer should look into the matter even if
she does not believe that what she will discover is likely to
vitiate probable cause. After all, the officer is the only party
who, in this context, has the tools to undertake any meaningful
investigative work.
The trigger for further investigation may function even
when the officer's obvious reason only serves to diminish her
confidence to some modest degree. Pieces of evidence should not be
assessed in isolation: "the whole sometimes can exceed the sum of
the parts, and the appropriate test focuses on the totality of the
circumstances." Mariko v. Holder, 632 F.3d 1, 6-7 (1st Cir. 2011).
A district court is in a different position. The court
is tasked with making a judgment based on what appears within the
four corners of the affidavit (in this case, the reformed
affidavit). It is entitled to assume that the warrant affidavit is
the product of a good-faith investigation and provides a reasonably
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complete picture of the circumstances relevant to probable cause.
See Franks, 438 U.S. at 171 (recognizing presumption of validity of
warrant affidavit). Relying on this implicit representation, a
court may reasonably find probable cause despite some level of
concern about the completeness of the investigation. While the
court below plainly entertained some doubts based on Nolet's
failure to follow investigatory leads, see Tanguay, 907 F. Supp. 2d
at 181-82, those doubts were in the end insufficient to erode
probable cause.
Of course, explanation of those doubts may paint a
different picture. If and when the court is at liberty to factor
the results of a further investigation into the mix, its judgment
may change.
The questions that remain are fact-sensitive, and the
answers are not so apparent that we can decide them without the
benefit of additional factfinding. Consequently, we must return
the case to the district court so that it can make the requisite
findings. On remand, the court must first determine whether the
information known to Nolet gave her an obvious reason to doubt
Wiggin's truthfulness and, thus, triggered a duty of further
inquiry. If so, the court then must ask whether Nolet's doubts
were of such a magnitude that her failure to conduct an additional
inquiry evinced a reckless disregard for the truth as opposed to,
say, mere negligence. See Ranney, 298 F.3d at 78. In responding
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to these two questions, the court is not bound by an affiant's
declaration that she firmly believed in the credibility of the
informant or the truth of his story. Rather, the court may
evaluate such a declaration in light of circumstantial evidence
indicating that the affiant had "obvious reasons to doubt the
veracity of the informant or the accuracy of his reports." St.
Amant v. Thompson, 390 U.S. 727, 732 (1968).
If the answers to these initial questions are in the
affirmative, the court must ask a third question: whether Nolet,
had she made a good-faith effort to dispel those doubts, would have
discovered new information that warranted inclusion in her
affidavit. And if the answer to this third question is also in the
affirmative, the court must consider yet a fourth question: whether
the affidavit, expanded to include that new information, would
continue to support a finding of probable cause. See Castillo, 287
F.3d at 26. We take no view as to either the answers to these
questions or the outcome of the proceedings on remand.
III. CONCLUSION
We need go no further. For the reasons elucidated above,
we remand to the district court for further proceedings consistent
with this opinion. The district court shall reexamine its Franks
determination in light of its further factfinding and, if it now
concludes that suppression is warranted, it shall enter an order to
that effect and transmit the order, along with a statement of its
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findings and reasons, to this court. If, however, the district
court continues to uphold the search, it shall enter an order to
that effect and transmit that order to us, along with a statement
of its findings and reasons. Should either party desire appellate
review of the district court's supplemental order and/or findings
and reasons, he or it may file a new notice of appeal within the
customary time parameters, see Fed. R. App. P. 4(b), which will be
consolidated with the present appeal.
We stay proceedings in this court pending our further
order and retain appellate jurisdiction over this matter. The
parties shall file a joint status report in this court within 60
days following the issuance of this opinion, and at 60-day
intervals thereafter.
So Ordered.
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