United States of America v. Jeffrey P. Barnard

*Of the Northern District of California, sitting by
designation.
United States Court of Appeals
For the First Circuit
_________________
No. 01-2762
UNITED STATES OF AMERICA,
Appellant,
v.
JEFFREY P. BARNARD,
Defendant - Appellee.
_____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. George Z. Singal, U.S. District Judge]
_____________________
Before
Torruella and Lipez, Circuit Judges,
and Schwarzer,* Senior U.S. District Judge
______________________
F. Mark Terison, Assistant U. S. Attorney, and Paula D.
Silsby, United States Attorney, appear on brief for appellant.
Marvin H. Glazier on brief for appellee.
_______________
August 14, 2002
_______________

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SCHWARZER, Senior District Judge. Defendant Jeffrey P.
Barnard was charged in a single-count indictment with being a
felon-in-possession of firearms, in violation of 18 U.S.C.
§ 922(g)(1). He moved to suppress evidence of firearms seized in
a warrant search, contending that the warrant lacked sufficient
information to support a finding of probable cause. The district
court granted the motion on the papers without hearing. United
States v. Barnard, 172 F. Supp. 2d 207 (D. Me. 2001). Following
entry of the suppression order, the government sought
reconsideration, arguing the applicability of the good faith
exception under United States v. Leon, 468 U.S. 897 (1984). The
court denied the motion, and the government timely appealed. We
have jurisdiction pursuant to 18 U.S.C. § 3731 and now reverse.
FACTUAL BACKGROUND
On December 1, 2000, Detective John Glidden of the
Millinocket Police Department obtained a warrant to search
defendant's residence in Millinocket, Maine. The supporting
affidavit provided the following information.
Detective Glidden received two reports from other law
enforcement personnel. First, in a conversation on July 27, 2000,
Probation Officer Paul Kelly conveyed information from a “very
reliable” source (“source”) that defendant owns a .22 caliber rifle
and may also have another firearm at his 22 Kelly Lane residence
and that if police went to defendant’s residence there would be a

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shooting. Second, on November 30, 2000, Sergeant Donald Bolduc
passed along information from a confidential informant (“CI”) whom
Bolduc believed to be “reliable” and who was working with the
Millinocket Police Department for no consideration. The CI
reported having seen an SKS assault rifle and a .22 caliber rifle
the last time he was at defendant’s home on November 13 or 14,
2000. The CI stated that defendant had purchased the SKS
approximately four months earlier from Jason Hartley, a resident of
Millinocket. He further stated that defendant had threatened
people, including him, with the SKS and that defendant kept the
weapon beside his bed while he slept. Finally, the CI stated that
defendant was a felon.
The affidavit further stated that on November 30, 2000,
Detective Glidden ran a criminal records check on defendant that
showed four prior convictions for possessing a firearm after being
convicted of a felony, all within five years preceding the search.
Finally, Detective Glidden stated that he had been a
police officer for eleven years during which time he had written
many search warrants and investigated several cases involving
illegal possession of firearms. In his experience, people who own
firearms usually kept them at their residence.
A justice of the peace (“issuing justice”) issued the
search warrant, and police personnel executed it on December 3,
2000. The search apparently yielded three firearms in defendant’s

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possession, including a .22 caliber rifle and an SKS assault rifle.
DISCUSSION
A. Standard of Review
We review de novo the district court’s “ultimate
determination of whether a given set of facts constituted <probable
cause.'” United States v. Zayas-Diaz, 95 F.3d 105, 111 n.6 (1st
Cir. 1996). Any factual findings made by the district court are
reviewed for clear error. Id. In determining the sufficiency of
an affidavit, we consider whether the “totality of the
circumstances” stated in the affidavit demonstrates probable cause
to search the premises. United States v. Khounsavanh, 113 F.3d
279, 283 (1st Cir. 1997). We examine the affidavit in “a
practical, common-sense fashion” and accord “considerable deference
to reasonable inferences the [issuing justice] may have drawn from
the attested facts.” Zayas-Diaz, 95 F.3d at 111 (internal
quotations omitted). “Under the ‘probable cause’ standard, the
‘totality of the circumstances’ disclosed in the supporting
affidavits must demonstrate ‘a fair probability that contraband or
evidence of a crime will be found in a particular place.’” Id.,
(quoting Illinois v. Gates, 462 U.S. 213, 238 (1983)). In a
doubtful or marginal case, the court defers to the issuing
magistrate’s determination of probable cause. Id.
B. Analysis
Where an affidavit relies on the reports of unnamed

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informants, it must provide some information upon which the issuing
justice can assess the credibility of the informant’s information.
We have adopted a nonexhaustive list of factors that a reviewing
court will consider in a probable cause determination based on
information from an informant. These include:
whether an affidavit supports the probable
veracity or basis of knowledge of persons
supplying hearsay information; whether
informant statements are self-authenticating;
whether some or all of the informant’s factual
statements were corroborated wherever
reasonable and practicable . . .; and whether
a law enforcement affiant included a
professional assessment of the probable
significance of the facts related by the
informant based on experience or expertise.
Khounsavanh, 113 F.3d at 284 (internal quotations omitted); see
also Zayas-Diaz, 95 F.3d at 111. “None of the factors is
indispensable; thus, stronger evidence on one or more factors may
compensate for a weaker or deficient show on another.” Zayas-Diaz,
95 F.3d at 111.
1. Law enforcement’s assertions of reliability
We turn first to Sergeant Bolduc’s assertion that he
believed the CI to be “reliable.” A mere assertion of reliability
without any information regarding the basis for the officer’s
belief, such as past tips leading to arrests, is entitled to only
“slight” weight. Khounsavanh, 113 F.3d at 286. However, Bolduc
not only gave his estimate of the CI’s reliability but backed it up
with information that the CI was working for the department for no

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consideration. This information at least provided some assurance
of reliability. Unlike an anonymous tipster, the CI was known to
the police and could be held responsible if his assertions proved
inaccurate or false. Florida v. J.L., 529 U.S. 266, 270 (2000)
(citing Adams v. Williams, 407 U.S. 143, 146-47 (1972)).
2. Informant’s basis of knowledge
The credibility of an informant is enhanced to the extent
he has provided information that indicates first-hand knowledge.
See United States v. Taylor, 985 F.2d 3, 6 (1st Cir. 1993) (citing
United States v. Caggiano, 899 F.2d 99, 102-03 (1st Cir. 1990)
(“reliability of informant enhanced if detailed and derived from
informant’s personal observation rather than hearsay”)); see also
Gates, 462 U.S. at 234 (stating that the informant’s “explicit and
detailed description of alleged wrongdoing, along with a statement
that the event was observed first-hand entitles the tip to greater
weight than might otherwise be the case”). Here, the CI stated
that he saw the two firearms at defendant’s house and identified
the types of guns. He also stated that defendant had threatened
him with the SKS. This first-hand information provided a link
between the illegal activity observed and the place to be searched.
It demonstrated the CI’s knowledge of concealed illegal activity as
opposed to easily knowable, nonincriminating facts. See
Khounsavanh, 113 F.3d at 284. This, in turn, allowed the
allegation of illegal activity to be corroborated. J.L., 529 U.S.

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at 272 (emphasizing that information must be reliable in its
assertion of illegality as opposed to nonincriminating facts).
These first-hand details provide some assurance of reliability.
There is no indication of personal knowledge for the
CI’s further statements that (1) defendant had purchased the SKS
from Jason Hartley four months previously, (2) defendant slept with
the SKS by his bed, and (3) defendant was a felon. While these
statements are double hearsay, they need not be disregarded because
the information conforms to the CI’s first-hand information, which
was substantially corroborated. See Gates, 462 U.S. at 244-45
(involving double hearsay) (“It is enough, for the purposes of
assessing probable cause, that corroboration through other sources
of information reduced the chances of a reckless or prevaricating
tale, thus providing a substantial basis for crediting the
hearsay.” (internal quotations omitted)).
3. Corroboration
The affidavit provided two sources of corroboration:
Probation Officer Kelly’s source’s report and Detective Glidden’s
investigation. We must determine whether the corroboration made it
sufficiently likely that the issuing justice could have concluded
that the crucial part of the CI’s story–that defendant, a felon,
was storing at least one firearm at his home–was true. See
Khounsavanh, 113 F.3d at 284. We note that the “risk that an
informant is lying or in error need not be wholly eliminated.” Id.

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Instead, we must be confident that the likelihood of lying or an
inaccurate informant is sufficiently reduced by corroborated facts
and observation. Id.
We first consider the cross-corroboration provided by
Probation Officer Kelly’s source. The district court rejected the
government’s contention that the information provided by Kelly’s
source cross-corroborated the report of Bolduc’s CI. The court
found that the affidavit provided so little information about
either informant that it is impossible to determine whether the two
are actually different people, meaning that the two reports could
not corroborate each other. Barnard, 172 F. Supp. 2d. at 211.
We disagree. First, the affidavit’s description shows
that Detective Glidden understood that they were two people. He
referred to the probation officer’s source as a “reliable source”
and “[t]his subject,” whereas, he referred to the sergeant’s source
as “confidential informant” or “CI.” Second, the informants
approached two different authorities, one a probation officer and
the other a police officer, who perform different functions in the
criminal justice system and are thus likely to have contact with
different individuals. Third, the CI provided information that the
source did not supply, namely, that defendant was a felon, that he
slept with an SKS assault rifle next to his bed, and that he had
threatened people, including the CI, with the SKS. This additional
information suggests that the CI was closer to defendant than the

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1We note that this issue was raised by the court sua sponte,
not having been raised in the briefing to the court.
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source. Fourth, both the government and the defense understood the
affidavit to refer to two people as evidenced by their papers
below.1 For these reasons, we conclude that in examining the
affidavit in a “practical, common-sense fashion” the issuing
justice could reasonably infer the existence of two informants.
See Zayas-Diaz, 95 F.3d at 111; United States v. Garcia, 983 F.2d
1160, 1167 (1st Cir. 1983).
The source’s account corroborates the CI’s allegation
that defendant was in possession of a .22 caliber rifle and
possibly another firearm at his residence. The source also warned
that a shooting would occur if police went to defendant’s
residence. This information dovetails with the CI’s statement that
defendant had threatened him and others with the SKS. As with the
CI’s report, it is relevant that the source’s account identified
criminal activity, i.e., defendant’s possession of the .22 rifle.
Detective Glidden’s criminal background check provided
further corroboration. See Taylor, 985 F.2d at 6. His
investigation corroborated the CI’s allegation that defendant was
a known felon. Taken together, the source’s account and Detective
Glidden’s investigation provide substantial corroboration for the
CI’s crucial allegation of criminal conduct by defendant at his
home. See Khounsavanh, 113 F.3d at 284; see also Taylor, 985 F.2d

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at 6 (holding that an informant’s very detailed and specific
account was corroborated where law enforcement simply conducted a
criminal background check).
4. Law enforcement’s professional assessment
Finally, the issuing justice could credit the law
enforcement affiant’s experience and pertinent expertise in
evaluating the authenticity of the informant’s description of the
target’s modus operandi. Taylor, 985 F.2d at 6; see also United
States v. Ortiz, 422 U.S. 891, 897 (1975) ([O]fficers are entitled
to draw reasonable inferences from [] facts in light of their
knowledge of the area and their prior experience . . . .”). Here,
Detective Glidden attested that during his eleven years' service on
the force, he had prior experience investigating illegal firearm
possession cases that had resulted in the seizure of the firearm
and the felon’s arrest. Based on his experience, training, and
conversations with other experienced officers, Detective Glidden
stated that individuals who own guns generally keep them at their
residences. In the eyes of the issuing justice, these statements
could have boosted the reliability of the CI’s information that
defendant kept two firearms at his home. See Taylor, 985 F.2d at
6.
CONCLUSION
We conclude that “[t]aken together, these facts were
sufficient to give the [issuing justice] a ‘substantial basis’ upon

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which to conclude that there was a ‘fair probability’” that the
firearms would be found at defendant’s home. Khounsavanh, 113 F.3d
at 286 (citing Gates, 462 U.S. at 238).
Reversed.

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