United States of America v. John Fleury

United States Court of Appeals
For the First Circuit
No. 15-1869
UNITED STATES OF AMERICA,
Appellee,
v.
JOHN FLEURY,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Denise Jefferson Casper, U.S. District Judge]
Before
Torruella, Lipez, and Barron,
Circuit Judges.
Christine DeMaso, Assistant Federal Public Defender, Federal
Public Defender Office, was on brief, for appellant.
Mark T. Quinlivan, Assistant United States Attorney, with
whom Carmen M. Ortiz, United States Attorney, was on brief, for
appellee.
December 2, 2016

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TORRUELLA, Circuit Judge. John Fleury appeals the
United States District Court for the District of Massachusetts's
denial of his motion to suppress the fruits of a search conducted
at his residence: a pistol and ammunition. Fleury was charged
with one count of being a felon in possession of a firearm and
ammunition, in violation of 18 U.S.C. § 922(g)(1). After the
district court denied his motion to suppress, Fleury pleaded
guilty, reserving his right to challenge the denial of his motion
to suppress. Fleury argues that the affidavit submitted by
Special Agent Eric Kotchian of the Bureau of Alcohol, Tobacco, and
Firearms (the "ATF") supporting an application for a warrant to
search his house was misleading because (1) the affidavit
overstated a confidential informant's (the "CI") record of
providing information to the police; (2) it misrepresented the
CI's drug use; and (3) it did not include information suggesting
that Fleury might move the gun from his residence.
Although aspects of the affidavit are troubling, because
the affidavit contained information from a recording that
supported probable cause without relying on information provided
by the CI, we affirm.

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I. BACKGROUND
A. Factual Background
On February 4, 2014, the Peabody Police Department
responded to the report of a home invasion in Peabody,
Massachusetts. Agent Kotchian also responded to the scene. The
residents reported that the intruders had stolen a Ruger 9mm-
caliber handgun and a diamond ring, and the Peabody Police
Department requested Agent Kotchian's assistance with the
investigation of the home invasion.
During the investigation, the Peabody Police Department
obtained surveillance footage showing a male individual believed
to be responsible for the home invasion, and officers distributed
images from the footage to local media outlets. In March of 2014,
the Peabody Police Department received information from an
anonymous tipster identifying the male in the images as the CI.
After further investigation, the Peabody Police Department
obtained a search warrant for the CI's residence, and during the
search, the CI agreed to work as an informant, telling officers,
including Agent Kotchian, that he was aware of a murder-for-hire
plot and knew a drug dealer that he could set up.
On April 8, 2014, Agent Kotchian and a Peabody detective
met with the CI. At the meeting, the CI admitted that he
participated in the home invasion along with three other people:

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Joseph LaFratta, Richard Kenney, and Fleury. The CI provided
officers with information about each of the other three
participants. Following the interview, officers independently
corroborated information about Fleury, including contact
information, his place of residence, the fact that Fleury had
recently been arrested, and the circumstances surrounding his
arrest. The CI also identified a photo of Fleury.
Officers also corroborated information that the CI
provided about the Peabody home invasion, including that a handgun
had been stolen, that the Peabody home had a keypad on the front
door and several locks on the rear door, and the location of the
jacket the CI had worn during the home invasion, which Agent
Kotchian subsequently found in a search. Finally, the CI gave
Agent Kotchian information about a potential murder-for-hire plot,
and Agent Kotchian was able to confirm some of the information.
In addition to providing information, the CI wore a
recording device at two meetings with other participants in the
home invasion. One of those meetings, on April 21, 2014, included
Fleury and LaFratta. During that meeting, Fleury argued on the
phone with a person Fleury identified as his girlfriend, who lived
with him. After one call, Fleury stated: "The fucking gun's in
the house brother, but there's no clip, I took the clip out last
time and left it there. . . . [I]t's kinda hidden, . . . last time

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I left, I left on the bike . . . . So I took the clip out, I just
took that . . . ." To which LaFratta replied: "Why do you even
have that there? Get that out of there . . . ." Following
Fleury's arguments with his girlfriend, the CI warned Fleury to
"go away for a couple of days" or to "stay at my house," and Fleury
discussed staying at his mother's place, and he moved a painting
and his bike from his residence.
The April 21, 2014 recording also recorded the CI
discussing drugs. In it, the CI stated that he had "been
struggling to get clean," had "used three times in the past three
weeks," and that he was "going to do this bump." In addition, the
CI had told Agent Kotchian on multiple occasions that he was "using
Suboxone that he was obtaining from people on the street." 1
On May 6, 2014, the CI reported that he had met with
Fleury on April 25, 2014, and that Fleury had removed a pistol
from a closet in Fleury's residence and put it into a shoulder
holster that Fleury was wearing.
On May 9, 2014, Agent Kotchian applied for a search
warrant for Fleury's house, seeking "firearms, ammunition,
documents and other evidence." Agent Kotchian submitted an
affidavit in support of the application. In the affidavit, Agent
1 Suboxone is a prescription medication that is used to block
the effect of withdrawal from opiate addiction.

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Kotchian made the following averments concerning the CI's
reliability:
The CI has provided accurate, truthful, and reliable
information to law enforcement personnel in the past.
Information provided by the CI has led to the seizure
of evidence. The CI has provided information during
this investigation, which has been corroborated by
law enforcement officers via further investigation
and the use of investigative techniques, such as the
use of electronic surveillance, while the CI has met
with identified suspects, including FLEURY.
Agent Kotchian also made averments concerning the CI's drug use
and criminal history:
The CI has a criminal history that includes
convictions for violations of the law that include,
but are not limited to, the following: Breaking &
Entering in the Nighttime, Open and Gross Lewdness,
Larceny Over $250.00 and Assault & Battery with a
Dangerous Weapon. The CI told me that he/she has both
used and sold illegal drugs in the past.
The affidavit then summarized (1) information concerning
the CI's April 25, 2014 meeting at Fleury's residence, in which
Fleury removed a pistol from his closet and put it into "a shoulder
holster worn by Fleury," and (2) evidence obtained from the CI's
recording of his April 21, 2014 meeting with Fleury and LaFratta,
including quoting the following excerpt:
FLEURY: "Oh, shit."
CI: "What?"
FLEURY: "The fucking gun is in the house. But
there's no clip. I took the clip out last
time and left it (the gun) there. Ah, she

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might . . . (Unintelligible)[.] My prints
are all over it. Oh . . . ."
OTHER IND: "Would she be smart enough to pick it up
with a towel?
FLEURY: "No. She can't pick it up. It's kind of
hidden, but . . . . See, the last time I
left, I left on the bike. When you were
supposed . . . So, I took the clip out and
just took that (the clip). That way she
can't do nothing with it. You know what I
mean? And I just . . . I left it (the
clip) at my buddy's.
Finally, Agent Kotchian averred, "based on [his] training and
experience as an ATF Special Agent," that persons who have had a
firearm in their residence over the course of several weeks are
likely to still have the firearm in their residence after two
weeks.
Agent Kotchian's affidavit did not quote LaFratta's
recorded admonishment to Fleury on April 21, 2014: "Why do you
even have that [gun] there? Get that out of there . . . ." Nor
did it explain that the CI did not report his April 25, 2015
meeting with Fleury until May 6, 2014. It also did not include
information about the CI's drug use during the investigation or
some of his prior convictions, including identity theft and credit-
card fraud convictions in 2004. Finally, the affidavit did not
state that the CI first had contact with officers just one month
before Agent Kotchian drafted the application.

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B. Procedural History
On May 9, 2014, a magistrate judge authorized a warrant
to search Fleury's residence in Lynn, Massachusetts based on Agent
Kotchian's affidavit. Officers executed the search warrant on
May 12, 2014. They discovered a Walther Model PPK/S .380 caliber
pistol, a shoulder holster, and other potential evidence. Fleury
was indicted on June 19, 2014 of being a felon in possession of a
firearm, in violation of 18 U.S.C. § 922(g)(1).
Fleury filed a motion to suppress the fruits of the
search and for a hearing pursuant to Franks v. Delaware, 438 U.S.
154 (1978). The district court denied the motion in a written
opinion entered February 11, 2015. On March 19, 2015, after
discovery related to the affidavit, Fleury renewed his motion to
suppress. The district court held a three-day Franks hearing, and
on April 27, 2015, the district court orally denied Fleury's
renewed motion to suppress. Following the district court's denial
of his motion to suppress, Fleury entered a conditional guilty
plea, reserving his right to appeal the denial of his motion to
suppress. The district court sentenced Fleury to fifty-five
months' imprisonment.
II. ANALYSIS
We review probable cause determinations de novo. United
States v. McLellan, 792 F.3d 200, 208 (1st Cir. 2015). In

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conducting this review, "[o]ur task, like that of the magistrate
judge and district court, is simply to make a practical, common-
sense decision whether, given all the circumstances, there is a
fair probability that contraband or evidence of a crime will be
found in a particular place." Id. (ellipsis and internal
quotation marks omitted) (quoting United States v. Brunette, 256
F.3d 14, 16 (1st Cir. 2001)). We review the district court's
antecedent factual findings for clear error. United States v.
Lanza-Vázquez, 799 F.3d 134, 141 (1st Cir. 2015).
"[A]n affidavit supporting a search warrant is
presumptively valid." McLellan, 792 F.3d at 208 (quoting United
States v. Gifford, 727 F.3d 92, 98 (1st Cir. 2013)). To rebut the
presumption, Fleury must show by a preponderance of the evidence
that (1) Agent Kotchian made a false statement or omission
"knowingly and intentionally or with reckless disregard for the
truth," in his affidavit, id., and (2) the affidavit would be
insufficient to establish probable cause without any false
statement(s) and with any omitted statement(s). United States v.
Rigaud, 684 F.3d 169, 173 (1st Cir. 2012). There is probable
cause if the affidavit, as reformed if necessary, shows "a fair
probability that contraband or evidence of a crime will be found
in a particular place." United States v. Tanguay, 787 F.3d 44,
50 (1st Cir. 2015).

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Although literally true, Agent Kotchian's affidavit was
misleading because he omitted material information. He used stock
phrases, such as "provided . . . information to law enforcement
personnel in the past" that "led to the seizure of evidence," that
imply the CI had a long relationship with law enforcement that had
led to evidence against others in multiple cases. In fact, Agent
Kotchian was aware that the CI had no history as an informant prior
to his work with Agent Kotchian following the home invasion. The
CI's actions in the one month following the home invasion may have
convinced Agent Kotchian that the CI could provide reliable
information, but Agent Kotchian needed to accurately describe the
CI's actions so that the magistrate could form his own opinion.
See Illinois v. Gates, 462 U.S. 213, 240 (1983) ("The essential
protection of the warrant requirement of the Fourth Amendment . . .
is in requiring that the usual inferences which reasonable men
draw from evidence be drawn by a neutral and detached magistrate
instead of being judged by the officer engaged in the often
competitive enterprise of ferreting out crime." (brackets
omitted)).
Agent Kotchian also averred that the CI had "used . . .
illegal drugs in the past." But Agent Kotchian had strong
evidence, from the April 21, 2014 recording, that the CI used drugs
during that meeting and was struggling to stay off drugs, and he

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knew that the CI was buying a prescription drug "on the street."
Again, Agent Kotchian's affidavit did not disclose information
that the magistrate needed to effectively judge the CI's
credibility behind a stock phrase that is literally true, but
misleading when given a "common-sense" interpretation. See United
States v. Jewell, 60 F.3d 20, 22 (1st Cir. 1995) ("The affidavit
is to be interpreted in a common-sense rather than a hypothetical
or hypertechnical manner.").
We need not decide, however, whether Agent Kotchian
acted intentionally or recklessly in omitting information from the
affidavit. Fleury's statement in the April 21, 2014 recording
that he had a gun at his residence was sufficient to establish
probable cause, at least in conjunction with Agent Kotchian's
averment that persons who recently had a firearm in their residence
over the course of several weeks are likely to still have the
firearm in their residence after two weeks. Any value added by
information that the CI provided, including the CI's account of
his April 25, 2014 meeting with Fleury, was merely cumulative.
Fleury's complaints -- with one exception discussed below -- go to
the CI's credibility, but the April 21, 2014 recording's probative
value did not rely on the CI's credibility.
Fleury argues that the affidavit also omitted
information tending to show that Fleury had an incentive to move

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the gun from his residence. Fleury points to the troubled
relationship with his girlfriend, which is evident throughout the
April 21, 2014 recording, and argues that the record shows that
Fleury was concerned that she would report the gun to the police.
Fleury also refers to LaFratta's statement that Fleury should move
the gun, the CI's suggestion that Fleury should stay with the CI,
Fleury's discussion about staying with his mother, and the fact
that Fleury moved a painting and his bicycle to his mother's house.
Simply put, Fleury argues that, by May 9, 2014, when Agent Kotchian
sought the search warrant, the information recorded at the
April 21, 2014 meeting was stale.
We disagree. Fleury did discuss staying with either his
mother or the CI, but neither indicated that Fleury could or should
bring the gun. LaFratta told Fleury to move the gun, but Fleury
himself never indicated that he had or would move the gun, either
in this part of the recording or in any other.
Even taking into account the information showing that
Fleury was fighting with his girlfriend and might stay somewhere
other than their joint residence, there was "sound reason to
believe" that a search of Fleury's residence would result in
evidence that he possessed a gun. See McLellan, 792 F.3d at 209.
"Probability is the touchstone" of probable cause. Id. It exists
where "a man of reasonable caution" would believe "that an offense

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has been or is being committed and that evidence bearing on that
offense will be found in the place to be searched." United States
v. Clark, 685 F.3d 72, 75 (1st Cir. 2012) (quoting Safford Unified
Sch. Dist. No. 1 v. Redding, 557 U.S. 364, 370 (2009)). Here,
Fleury's recorded statements that he had a gun at his residence
established probable cause.
III. CONCLUSION
For the foregoing reasons, the district court's denial
of Fleury's motion to suppress is affirmed.
Affirmed.

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