United States v. Alexandre ( 2021 )

United States Court of Appeals
For the First Circuit
No. 19-2047
UNITED STATES OF AMERICA,
Appellee,
v.
DAVID ALEXANDRE,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. George Z. Singal, U.S. District Judge]
Before
Lynch, Thompson, and Barron,
Circuit Judges.
Robert C. Andrews and Robert C. Andrews Esquire P.C. on brief
for appellant.
Halsey B. Frank, United States Attorney, and Noah Falk,
Assistant United States Attorney, on brief for appellee.
February 25, 2021
BARRON, Circuit Judge. David Alexandre ("Alexandre")
challenges his conviction in the United States District Court for
the District of Maine for possessing a firearm in furtherance of
drug trafficking in violation of 18 U.S.C. § 924(c). He does so
based on what he contends was the District Court's error in denying
his motion for a hearing under Franks v. Delaware, 438 U.S. 154(1978), in connection with his motion to suppress evidence
uncovered during a search of his home due to alleged false
statements and omissions in the affidavit supporting the
application for the warrant to conduct that search. We affirm.
I.
The following facts are uncontroverted on appeal. On
February 28, 2018, Trooper David Coflesky of the Maine State Police
applied for a warrant to search a residence, outbuildings, and
vehicles located at 38 Beech Street in the town of Lyman, Maine.
Trooper Coflesky stated in an affidavit supporting the application
for the warrant that he believed a search of the residence would
uncover evidence "that the occupants of this residence are involved
in the Unlawful Trafficking of Schedule Drugs, most notably,
crystal methamphetamine."
A Maine state district court granted the application
that day. The Maine State Police executed the warrant later that
same day and discovered methamphetamine, a firearm, and
approximately $2,100 in U.S. currency inside a locked safe that
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was in a bedroom in which Alexandre was staying at the 38 Beech
Street location.
On September 6, 2018, a federal grand jury in the
District of Maine indicted Alexandre for (1) possession with intent
to distribute methamphetamine in violation of 21 U.S.C.
§ 841(a)(1), (2) possession of a firearm in furtherance of drug
trafficking in violation of 18 U.S.C. § 924(c)(1)(A), and
(3) possession of a firearm by an unlawful drug user in violation
of 18 U.S.C. § 922(g)(3). A little less than four months later,
on December 28, 2018, Alexandre moved to suppress the evidence
recovered from the search of the 38 Beech Street location pursuant
to Franks on the ground that certain "information in [the]
application for a search warrant . . . was false and was either
intentionally false or included with the search warrant
application with reckless disregard for the truth." Alexandre
also requested at that time that the District Court convene an
evidentiary hearing concerning his Franks challenge.
The District Court denied Alexandre's motion, including
his request for the evidentiary hearing. It explained that even
if the paragraphs in the affidavit supporting the application for
the warrant that Alexandre "assert[s] are false are set
aside . . . there is ample evidence to establish probable cause to
search the [38 Beech Street] [r]esidence." United States v.
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Alexandre, No. 2:18-cr-00133-GZS, 2019 WL 1560424, at *2 (D. Me.
Apr. 10, 2019).
The District Court based that determination on other
statements in the affidavit by Trooper Coflesky that the District
Court determined indicated that law enforcement personnel had:
(1) previously visited and seized methamphetamine from
the 38 Beech Street residence on January 7, 2018, id. at *2;
(2) observed, while surveilling the residence around
this time, "an increased amount of vehicle traffic" coming and
going from the residence with visitors who did not appear to stay
at the residence "for long," id.;
(3) discovered a baggie containing what appeared to be
methamphetamine at the site of a traffic stop of a vehicle that
had been observed "slowing down near the Target Residence and
moving towards its driveway" on February 1, 2018, id. at *3;
(4) seized approximately two grams of methamphetamine
from a vehicle during the course of another traffic stop near the
residence on February 20, 2018, after which the occupants of the
vehicle indicated that they were in the area to purchase
methamphetamine from a source there but the deal "was delayed by
concerns that law enforcement was in the area and had stopped
another vehicle departing 38 Beech Street earlier in the evening,"
id.; and
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(5) found "several hypodermic needles, 'snorting
straws,' blue baggies with gold crowns (which matched baggies found
in connection with [a] February 20, 201[8] methamphetamine
seizure), counterfeit money, a discarded cell-phone, and mail
addressed to 38 Beech Street" during a "'trash pull' of five trash
bags left outside the Target Residence on February 23, 2018," id.Alexandre, who did not challenge the truthfulness of any
of the statements on which the District Court relied in denying
his motion under Franks, thereafter entered a conditional plea of
guilty pursuant to Fed. R. Crim. P. 11(a)(2) to the charge of
possessing a firearm in furtherance of drug trafficking, while
reserving his right to appeal the District Court's denial of his
motion to suppress and request for a Franks hearing. The remaining
counts against Alexandre were dismissed on the government's
motion.
The District Court sentenced Alexandre on October 15,
2019, to a five-year prison sentence to be followed by five years
of supervised release. The District Court entered judgment that
same day, which was also the day that Alexandre filed his notice
of appeal.
II.
We first consider the District Court's response to the
aspect of Alexandre's challenge to the denial of his motion for an
evidentiary hearing under Franks that depends on his contention
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that Trooper Coflesky's affidavit contained "false information
that David Alexandre was distributing methamphetamine." In ruling
on the motion, the District Court assumed, favorably to Alexandre,
that the challenged portions of the affidavit contained such false
information. It thus "set [them] aside" and proceeded to evaluate
whether "the remaining evidence in its 'totality'" still
"establish[ed] probable cause to search the Target Residence."
Alexandre, 2019 WL 1560424, at *2 (quoting United States v.
Barbosa, 896 F.3d 60, 69 (1st Cir. 2018)).
The District Court determined from that review of the
unchallenged remaining portions of the affidavit that they
sufficed, at least when considered together, to "generate a 'fair
probability' that 'contraband' or other evidence of illegal drug-
related activity could be found in the Target Residence." Id. at
*3 (quoting United States v. Silva, 742 F.3d 1, 9 (1st Cir. 2014)).
For that reason, the District Court denied Alexandre's Franks
motion.
In arguing that the District Court erred, Alexandre
contends that "[t]he Government need[ed] to establish probable
cause that Mr. Alexandre was involved in the distribution of
drugs[,] not just that 38 Beech [S]treet was a house involved in
the distribution of drugs." For that reason, Alexandre contends
that the warrant was not supported by the requisite showing of
probable cause, because the affidavit that supported the
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application for that warrant contained no "specific information
leveling suspicion specifically at him" once the trooper's
allegedly false statements were set aside.
As the District Court observed, however, this argument
"misapprehends the nature" of the warrant in this case. Id. at *3
n.2. Because the warrant authorized the Maine State Police to
search "[t]he residence located at 38 Beech Street," (emphasis
added), the supporting affidavit needed only to establish "a fair
probability that contraband or evidence of a crime w[ould] be
found in [that] particular place," Alexandre, 2019 WL 1560424, at
*2 (quoting Silva, 742 F.3d at 9); see, e.g., Zurcher v. Stanford
Daily, 436 U.S. 547, 555-59, 556 n.6 (1978) (rejecting
"suggest[ion] that to secure a search warrant the owner or occupant
of the place to be inspected or searched must be suspected of
criminal involvement").
Alexandre separately argues that the District Court
erred in denying the Franks motion because Trooper Coflesky's
affidavit had "omitted" a key fact -- namely, that the 38 Beech
Street residence was operated as a "boarding home," which Alexandre
defines as a "home where everyone had a separate room from which
others were excluded." According to Alexandre, if the affidavit
had included that information, it would have had a "profound effect
on what is characterized by Trooper Coflesky as suspicious activity
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around 38 Beech Street and how that activity may be viewed for
purposes of probable cause."
Arguably, this contention might suffer from the same
misapprehension about the nature of the warrant as the one we have
just rejected. But, it appears Alexandre is contending that the
omission mattered because it would have revealed that 38 Beech
Street was a boarding house and that, as such, the affidavit needed
to demonstrate some form of "particularized suspicion to each
residence [within the boarding home] to be searched and not the
building in general" even if the warrant authorized only the search
of a place thought to contain evidence of a crime.1
But, while an omission in an affidavit, no less than an
outright falsehood, can warrant a Franks hearing in some
circumstances, see United States v. Rigaud, 684 F.3d 169, 173 (1st
Cir. 2012), the District Court supportably determined that
Alexandre had failed to demonstrate that any omission "necessary
to the finding of probable cause" had been made, id., because he
had "point[ed] to no specific evidence in the record that would
permit the Court to conclude that the Target Residence was a
The government contends that Alexandre waived this aspect
1
of his argument by spelling it out only on appeal, but, for reasons
that will soon become clear, we find that we need not address the
government's waiver contention or, for that matter, the legal
merits of Alexandre's position.
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boarding home or any other kind of multi-unit dwelling," Alexandre,
2019 WL 1560424, at *4.
In arguing that this record-based finding was clearly
erroneous, Alexandre points out -- and the government does not
dispute -- that the evidence in the record established that (1) at
least five people were in the 38 Beech Street residence when Maine
State Police visited it on January 7, 2018; (2) two of those people
"came out of a bedroom" and told law enforcement "that there was
another person in the house"; and (3) when police "knocked on that
person's door the person answered and identified himself." He
also points out that a police report in the record "indicated at
least 11 people were living at 38 Beech Street" and that "cars [at
the residence were] registered to three separate people."
But, this evidence, which does indicate that several
(presumably unrelated) adults were simultaneously living at 38
Beech Street, does not necessarily establish that the residence
"was run as a boarding home" in which "everyone had a separate
room from which others were excluded." Accordingly, Alexandre has
failed to show that the District Court erred -- let alone clearly
so -- in determining that Alexandre had made no substantial
preliminary showing that 38 Beech Street was a "boarding house" in
the sense that he had used that term.
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III.
For the foregoing reasons, we affirm the District
Court's denial of Alexandre's motion to suppress and request for
a Franks hearing.
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