U.S. V. Belton CR-04-192-JD 01/30/06 P UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

United States of America

v. Criminal No. 04-cr-192-01-JD Opinion No.

Bruce Belton

O R D E R

Bruce Belton has moved to suppress evidence allegedly seized

from his home during the execution of a search warrant on the

independent grounds that (1) the warrant application failed to

demonstrate probable cause and (2) the application intentionally

or recklessly omitted facts, which, if included, would have

undermined the determination that probable cause existed. See

Franks v. Delaware.

(1978). The government objects,

arguing that probable cause supported the warrant but, even if it

did not, suppression is inappropriate by virtue of the good-faith

exception. See United States v. Leon.

(1984) . The

government also maintains that no Franks violation occurred.

Over the government's objection, the court held an evidentiary

hearing on the Franks aspect of the motion on January 4, 2006.

Background

The following facts are drawn from the affidavit submitted

by New Hampshire State Trooper James J. Geraghty in support of the search warrant ("Geraghty Aff."), except as otherwise noted.1

Geraghty has worked as a detective in the state's Narcotics

Investigation Unit since September, 1997, and spent eighteen

months as a federal narcotics task force officer beginning in

January 2000. During that time, Geraghty has worked drug cases

exclusively, including major multi-state narcotics conspiracies,

and has also served in an undercover capacity.

Geraghty assisted the Vermont Drug Task Force with its

investigation of one Dennis W. Schofield, a member of the

Freelancers motorcycle club who was suspected of distributing

methamphetamine obtained from a source in New Hampshire. Trooper

Kevin Lane served as the case agent on the investigation for the

Vermont State Police. On September 18, 2003, police followed

Schofield to the Harley Davidson retail outlet in Tilton, New

Hampshire, where they observed him meeting with a man wearing

Freelancers "colors" who was later identified as Belton. The

authorities believed that Schofield had made the trip for the

purpose of obtaining methamphetamine, also known as "meth" or

"speed." The affidavit does not describe what, if anything, the

police saw Belton and Schofield do during the meeting. The

1The balance of the facts are drawn from Geraghty's testimony at the Franks hearing, the affidavit he swore out in support of the government's objection to the hearing ("Second Geraghty Aff."), and the police reports appended to that affidavit and received into evidence at the hearing.

2 police trailed Belton as he left the Tilton outlets in his van,

following him to the Northeast Vietnam Veterans Motorcycle

Clubhouse, a supermarket, and finally his residence, all located

in Franklin, New Hampshire. Belton lives there at 3 Lilac Lane.

Four days after this meeting, on September 22, 2003,

Schofield sold four grams of meth to an undercover agent of the

Vermont Drug Task Force and "discussed his past and current deals

. . . ." Mem. Opp'n Franks Hrg. at 3. During this discussion,

Schofield said that he "used to get his meth at a much cheaper

rate," but that his source of supply "at the time was from NH and

they had recently [been] arrested."

According to Schofield,

"2 guys were arrested for 5 pounds of meth and they cooperated

and got another 5 pounds from their source of supply in Arizona."

Schofield added that "this new [source of supply] is not as

good and it is more expensive . . . ."

None of this

information about the events of September 23 was included in the

warrant application.

On October 13, 2003, the undercover agent gave Schofield

$1,000 to buy methamphetamine. The police followed Schofield as

he traveled from Vermont to Franklin, but "[s]urveillance was

terminated approximately one (1) mile from BELTON's residence

. . . due to the fact that [he] lives in a small trailer and

vehicles would be easily detected in the immediate area."

Geraghty Aff. 5 4. The next day, Schofield presented the

3 undercover officer with 5.5 grams of meth.

A report prepared by the undercover officer about this

transaction reveals that he ultimately had to track Schofield

down at his home around 3 p.m. on October 14 to retrieve the

drugs, despite Schofield's representation that he would call the

officer for that purpose while driving back from New Hampshire

early that morning. These details were not included in the

warrant application.

After taking an hiatus from his drug distribution activities

because he suspected that he was being investigated, Schofield

went back to selling meth.2 On February 2, 2004, the undercover

Vermont narcotics officer met with Schofield again to set up

another methamphetamine buy. During the meeting, Schofield

explained that he had yet to get in touch with his source of

supply and used the agent's cell phone to attempt to contact the

source. This attempt was unsuccessful--Schofield did not end up

talking to anyone during the call--though the warrant application

omits this detail. The application also fails to mention that,

during his meeting with the undercover officer, Schofield said

that he would be heading to New Hampshire to help a friend move

2The affidavit states simply that "[b]etween October 2003 and February 2003" the undercover agent learned that Schofield had stopped dealing drugs but that he resumed doing so "[a]fter a safe period of time had elapsed . . . ." The affidavit does not offer any more specific information on the temporal parameters of Schofield's break from distributing narcotics.

4 and that he would contact the officer when the source called.

The police later determined that the number Schofield had

dialed belonged to a business. All Things Imprinted, run by

Belton and located at the same address as his residence. The

warrant application states that the authorities observed

Schofield driving back toward Vermont "from the area of

Franklin[,] New Hampshire" that night. In fact, though this

detail was omitted from the warrant application, Schofield was

five to ten miles away from Belton's residence at that point.

The warrant application also omits other details of the

undercover officer's February 2 interaction with Schofield. In

particular, the officer gave Schofield $1,000 to purchase

methamphetamine when the two met at a private residence in

Lebanon, where Schofield was helping the aforementioned friend

move. Schofield said "he would be leaving that night and would

contact [the officer] upon his return." He failed to do so,

however, and the officer was not able to get in touch with

Schofield until February 5, 2004. At that point, Schofield

explained his failure to provide the methamphetamine as the

result of having encountered a police roadblock on his way back

to Vermont, which caused him to throw the drugs out of his car

window. Schofield also said that police had used a dog to

examine his car. After the police could not independently verify

this tale, they decided to arrest Schofield, who ultimately

5 provided neither the methamphetamine nor the $1,000.

As the warrant application notes, the Vermont State Police

took Schofield into custody on February 6, 2004. He was

arraigned in the United States District Court for the District of

Vermont three days later and subsequently released after he

agreed to cooperate with the investigation of Belton.

While in custody, Schofield identified Belton as the source

of his methamphetamine supply and reported that Belton "also

sells cocaine." Geraghty Aff. 5 7. Schofield said that he had

been buying speed from Belton since the summer of 2003, in

quantities as large as a half-ounce of crystal methamphetamine

for $1,900, but that Belton also sells crystal meth for $3,600 an

ounce and $600 for an "eight ball," or eighth-ounce. Schofield

explained that Belton is a founding member and former vice

president of the Freelancers who "sells to patch wearing members"

of that organization and the Vietnam Veterans Motorcycle Club.

According to Schofield, Belton "sells from his residence as

well as the clubhouse" and "gets his methamphetamine from a place

identified as /The Store,'" known to Schofield only as such.

Although Schofield also recounted having seen an ounce of crystal

meth at Belton's residence, the affidavit does not say whether

Schofield related when, or how many times, that happened. A

check of Schofield's phone revealed that he had received a call

from Belton's number on January 31, 2004.

6 Following his apprehension, Schofield was willing to assist

the authorities by making "controlled purchases" of

methamphetamine from Belton, but believed that he would have to

wait some time before attempting one because Schofield's recent

arrest would likely make Belton suspicious of such a ruse. The

Vermont State Police therefore "decided to delay any 'active

cooperation' on Schofield's part." Second Geraghty Aff. 5 7.

Although Geraghty was aware of these developments as they

occurred, he did not mention them in the warrant application.

Through other New Hampshire State Police officers, Geraghty

eventually confirmed Belton's association with the Freelancers.

On June 21, 2004, the New Hampshire State Police received a call

on its 1-80O-NAB-DOPE hotline from an anonymous source, who

reported that "Bruce Pelton," a motorcycle club president from

Franklin, was selling speed. Geraghty believed that the tip

confirmed what Schofield had told the police about Belton. In

line with Geraghty's "aware[ness] that many honest people with

legitimate information wish to remain anonymous for fear of

reprisals," the caller explained that he would be in danger if he

gave his name. Geraghty Aff. 5 14. According to Geraghty,

motorcycle gangs dominate the methamphetamine trade and often

intimidate those who might report their activities to law

enforcement. In fact, the Freelancers had dispatched one of

their members to attend the court proceedings on Schofield's case

7 and to obtain any papers filed in it, which were brought to the

Freelancers'’ clubhouse the day after Schofield's arraignment on

February 9, 2004.

On June 24, 2004, Geraghty called the Vermont Drug Task

Force and learned that Schofield "ha[d] failed to actively

cooperate with the investigation" of Belton and that Schofield

"ha[d] subsequently been indicted and is currently awaiting

trial." Geraghty Aff. 5 16. While Geraghty's affidavit in

support of the warrant does not indicate when these events

occurred, court records show that Schofield was indicted in the

District of Vermont for a second time on April 15, 2004. The

affidavit also does not mention Lane's statement to Geraghty that

Belton "would not be indicted in Vermont unless [Schofield] came

forward with his attorney and gave an in-depth proffer." Franks

Hrg. Ex. A, at 14. When Geraghty applied for the warrant on June

30, 2004, he did state that the investigation of Belton "may be

compromised by the fact that SCHOFIELD is no longer cooperating

. . . . Any evidence that is at BELTON'S residence may be

removed or destroyed if SCHOFIELD alerts BELTON to this

investigation." Geraghty Aff. 5 17.

In his affidavit in support of the warrant, Geraghty

explained at length how his training and experience had taught

him that narcotics dealers often keep cash, weapons, drug

paraphernalia, and other evidence of their activities in their homes. Geraghty Aff. 20-34. He added that the evidence

commonly includes records of drug transactions maintained long

after those transactions take place. Id. 20, 24, 29.

Geraghty gave his "opinion that a search warrant is a vital tool

necessary to obtain evidence, which is necessary for a successful

prosecution of BRUCE BELTON. There are currently no undercover

officers or cooperating individuals that can make purchases of

controlled drugs from BRUCE BELTON." Id. 5 18. The affidavit

also noted that vehicles registered to Belton were observed at

the subject address as recently as June 28, 2004.

Based on the information contained in Geraghty's affidavit,

a justice of the Concord District Court issued a warrant on June

30, 2004, authorizing a search of Belton's residence at 3 Lilac

Lane in Franklin for evidence of drug trafficking.3 The search,

performed late that morning, turned up substantial quantities of

methamphetamine and cocaine, as well as a triple-beam balance,

three handguns, and $40,479 in cash. A grand jury subsequently

indicted Belton on charges of possessing and conspiring to

distribute methamphetamine and possessing firearms in furtherance

of drug trafficking and in spite of his status as a felon.

Discussion

3For the sake of consistency with the traditions of Fourth Amendment jurisprudence, the court will refer to the Concord District Court judge as "the magistrate."

9 The Fourth Amendment provides that "no [w]arrants shall

issue, but upon probable cause . . . Pursuant to the

exclusionary rule, "[t]he usual remedy for seizures made without

probable cause is to exclude the evidence wrongfully seized

. . . United States v. Brunette,

(1st Cir.

2001) (citing Weeks v. United States,

(1914)). Nevertheless, because "[t]he exclusionary rule is

designed to deter police misconduct rather than to punish the

errors of judges and magistrates," Leon.

, in most

cases where "an officer acting with objective good faith has

obtained a warrant from a judge or a magistrate and acted within

its scope . . . . there is no police illegality and thus nothing

to deter" by suppressing the evidence, even if the warrant issued

without probable cause.

. In such a case, then, the

exclusionary rule does not apply.

.

While maintaining that probable cause existed to support the

issuance of the warrant, the government argues in the alternative

that, even if probable cause was lacking, the police acted in

good faith in securing and executing the warrant and that the

evidence allegedly found should not be suppressed. As the

government notes, "Leon allows the trial court, in its ■'informed

discretion,'' to bypass the customary ■'merits'’ inquiry into

whether there existed a ■'substantial basis' for the probable

cause determination made by the issuing magistrate, and simply

10 decide whether the challenged search in all events came within

the ''good faith' exception to the exclusionary rule." United

States v. Zavas-Diaz.

(1st Cir. 1996) (quoting

Leon.

). The court agrees that such an approach

is warranted here, given the absence of any of the countervailing

"prudential considerations" identified by Leon.

at 112 n.8.

The government bears the burden of showing that the good faith

exception applies. United States v. Diehl.

(1st

Cir. 2002) (citing Brunette.

).

"[WJhile Leon restricts the application of the exclusionary

rule, it does not eliminate it." United States v. Capozzi.

(1st Cir. 2003). Exclusion remains appropriate in

certain circumstances, including where facts material to the

decision to issue the warrant were intentionally or recklessly

omitted from the affidavit submitted in support of it, or where

"the affidavit is so lacking in indicia of probable cause as to

render official belief in its existence entirely unreasonable."

Id.; see also Leon.

; United States v. Brunette.

(1st Cir. 2001). Belton argues that both of

these scenarios are present here. The court will address his

contentions in turn.

11 I. Whether Material Facts Were Intentionally or Recklessly Omitted from the Warrant Application

In Franks, the Supreme Court recognized a defendant's right

to challenge "the veracity of a sworn statement used by police to

procure a search warrant."

. To receive a

hearing for this purpose, a defendant must make "a substantial

preliminary showing that a false statement knowingly and

intentionally, or with reckless disregard for the truth, was

included by the affiant in the warrant affidavit, and [that] the

allegedly false statement is necessary to the finding of probable

cause . . . ."

.

The omission of a material fact from the affidavit

supporting a warrant is treated as a false statement for purposes

of the Franks analysis. United States v. Castillo.

(1st Cir. 2002); United States v. Charles.

(1st Cir. 2000). In the case of an omission, "suppression should

be ordered only if the warrant application, . . . clarified by

disclosure of previously withheld material, no longer

demonstrates probable cause." United States v. Stewart.

(1st Cir. 2003); Castillo.

n.4 ("With an

omission, the inquiry is whether its inclusion in an affidavit

would have led to a negative finding by the magistrate on

probable cause."). This court previously ruled that Belton's

written submissions succeeded in making the "substantial

preliminary showing" necessary to entitle him to a Franks

12 hearing.

. As the court stated at the

hearing, however, this was simply a preliminary determination:

"[w]hether [a defendant] will prevail at [the Franks hearing] is,

of course, a different matter" from whether he is entitled to

one."

.

Belton has identified several categories of information

which, he argues, would have led the magistrate to refuse to find

probable cause had they been included in the warrant application.

The first of these consists of Schofield's statement on September

22, 2003, that he "used to get his meth at a much cheaper rate,"

but that his source of supply "at the time was from NH and they

had recently [been] arrested" and that his "new [source of

supply] is not as good." Belton does not dispute that Schofield

could have been referring to him as the "new" source. Instead,

he argues that the "recent" arrest of the former source could

have occurred after Schofield's trip to New Hampshire to purchase

methamphetamine on September 18 and that this bit of information

tends to cast his meeting with Belton on that date in a more

innocent light, i.e.. Schofield could have gone to buy meth from

the old source either before or after he met with Belton for

another, legal purpose.

In the court's view, this is a strained interpretation of

Schofield's statement. Belton's reading would have Schofield's

old source meet with him on September 18, then get arrested.

13 agree to cooperate with the authorities, and obtain

methamphetamine from Arizona, all in enough time for Schofield to

have learned about it by September 22. The considerably more

likely scenario is that the former supplier was arrested some

time before Schofield's September 18 trip to New Hampshire--a

fact which, as Belton acknowledges, "is neutral and would not

necessarily provide the reviewer of the affidavit with relevant

or necessary information; it's [sic] omission would not be

material." Mem. Supp. Franks Hrg. at [6]. Indeed, although

Belton asked for a Franks hearing in part to ascertain the

correct interpretation of Schofield's September 22 statement, see

he failed to adduce any evidence to that effect at the

hearing itself. Accordingly, the court determines that the

September 22 statement was not relevant to the magistrate's

probable cause determination.

Belton also argues that the application's description of the

events of October 13 and 14, 2004--when the undercover officer

provided Schofield with $1,000, and Schofield later provided the

officer with a quantity of methamphetamine--creates the

impression that the authorities "had no problem pinning down

exactly when the drugs were purchased. The reality is something

quite different." Mem. Supp. Franks Hrg. at [6-7]. In reality,

although Schofield had said he would contact the undercover

officer on his way back from his trip to New Hampshire to obtain

14 the meth in the early morning hours of October 14, he failed to

do so, causing the officer to spend much of that day trying to

track him down to pick up the drugs. Belton argues that this

omitted information suggests that Schofield had ample opportunity

to obtain the methamphetamine from another source, rather than

during the trip to Belton's hometown of Franklin which is

described in the warrant application.4

The problem with this argument is that Geraghty's affidavit

candidly states that the undercover agent gave Schofield the cash

on October 13 and that Schofield gave the agent the meth on

October 14. Geraghty Aff. 5 4. As a result, the magistrate

would have been aware of the passage of time between the delivery

of the money and the delivery of the drugs and taken this fact

into consideration in deciding whether the events of October 13

and 14 implicated Belton in Schofield's illicit conduct. While

Geraghty's affidavit did not include everything the police knew

about Schofield's actions on October 14, none of those actions

(going to deliver wood, working on a tractor in his yard) readily

suggests an opportunity to obtain the methamphetamine from

4Belton also points out that, while the affidavit states that the authorities terminated their surveillance of Schofield at a point approximately one mile from Belton's residence, Geraghty testified that the distance might have actually been between five and ten minutes from Belton's residence. The court attaches no significance to this discrepancy, if in fact it can properly be characterized as such. See Capozzi.

(noting that such "technical criticism of the form of [a warrant] affidavit is insufficient to undermine its veracity").

15 another source.5 Those details were therefore immaterial to the

magistrate's probable cause determination. See United States v.

Higgins,

(1st Cir. 1993) (finding fact that

informant unsuccessfully tried to buy drugs from defendant

immaterial to probable cause to search defendant's home because

"not necessarily inconsistent" with information that defendant

later purchased quantity of drugs).

Belton also characterizes these details, as well as the rest

of the omitted facts underlying his challenge to the warrant

application, as tending to undermine Schofield's veracity. In

addition to Schofield's failure to call the undercover officer on

the way back from New Hampshire on October 14 as he had promised,

Belton points to the events of February 2, 2004, when the

undercover officer again gave Schofield $1,000 to buy

methamphetamine but he ultimately failed either to deliver the

drugs or to return the cash. As on October 13, when Schofield

accepted the buy money on February 2, he indicated that he would

call the undercover officer upon returning from New Hampshire,

5Schofield called the undercover officer at 9:30 a.m. on October 14 and arranged for him to pick up the methamphetamine at Schofield's residence at noon. When the officer arrived there at 1:30 p.m., Schofield's girlfriend said that he was not home, but that he had the meth with him; she also gave the officer directions to Schofield's location. When the details of what the police knew of Schofield's actions on October 14 but omitted from the warrant application are considered in their entirety, then, it becomes clearer than they do not seriously call the probable cause determination into question.

16 but did not do so. In fact, the undercover officer had no

contact with Schofield until the officer called him on February

5, 2004. Confronted during this call with his failure to provide

the drugs, Schofield fabricated a story about a police roadblock

that caused him to discard them--an apparent effort to cover up

the fact that he had simply misappropriated the money.

Belton argues that these facts show that "Schofield is not

and was not a credible informant. He lied and deceived . . . ."

Mem. Supp. Franks Hrg. at [10]. Given that Schofield was the

only identifiable source of first-hand information about Belton's

allegedly illegal activities, he argues that the inclusion of

these facts in the warrant application would have therefore led

the magistrate to find probable cause lacking. Although the

court shares Belton's view of the importance of Schofield's

information to the probable cause ruling, it disagrees with

Belton's ultimate conclusion in this regard.

As already discussed, Geraghty's affidavit clearly portrays

Schofield as a drug dealer, describing both a consummated and a

proposed sale of $1,000 in methamphetamine that he made

unwittingly to an undercover police officer. Geraghty testified

at the Franks hearing that, based on his experience as a

narcotics investigator, the details of Schofield's behavior which

were omitted from the warrant application simply fit this

profile. Indeed, Geraghty explained that drug dealers often

attempt to "rip off" customers who are believed to have no

17 recourse against them, as Schofield apparently attempted to do in

accepting the undercover agent's money but failing either to

provide the desired methamphetamine or to return the payment. It

is likewise unsurprising that, unlike a responsible businessman,

a drug dealer would neglect a promise to call one of his

customers at an appointed time as Schofield did to the undercover

agent on two occasions.

The omitted facts, then, would not have measurably

contributed to the portrait of Schofield as a drug dealer--and,

consequently, a potentially untrustworthy informant--which

emerges from the warrant application. In that regard, this case

is similar to United States v. Rumnev.

(1st Cir.

1989), where an informant falsely denied participating in a

robbery during two separate police interviews but, after his

arrest, admitted to driving the defendant to the crime scene.

. The police later obtained a warrant to search the

defendant's home based largely on an account of the informant's

statements which omitted any reference to his initial denials of

involvement or his criminal record.

The circuit concluded

that these omissions would not have affected the magistrate's

ruling that probable cause existed, reasoning that the

informant's "credibility was not undercut merely because he made

predictable denials until the police could produce evidence

linking him to the robbery" or by his criminal record, which

"explain[ed] in part why [the defendant] asked [the informant] to

18 participate in the robbery" in the first place.

.

Like the warrant application in Rumnev. Geraghty's affidavit

makes no secret of Schofield's criminality. Thus, despite the

omission of certain details of that criminality, the magistrate

"issuing the search warrant[] would manifestly have been aware

. . . that [Schofield] was not a model citizen" in considering

his reliability as an informant. United States v. Hall.

, 1142 (8th Cir. 1999) (finding omission of informant's full

criminal history and use of aliases from warrant application

immaterial to probable cause determination where application

mentioned her participation in prostitution and auto theft)

(internal quotation marks omitted); see also United States v.

Avery.

(10th Cir. 2002) (similar).

The First Circuit's decision in United States v. Vigeant.

(1st Cir. 1999), on which Belton heavily relies, is

not to the contrary. There, among six other omissions identified

by the circuit, the warrant application "neglected to mention the

[informant's] long criminal history, his numerous aliases, his

recent plea agreement, and other indicia of his unreliability."

(footnote omitted). In concluding that these

omissions were material, the circuit reasoned that they had

deprived the magistrate of the opportunity to assess the

"totality of the circumstances" underlying the probable cause

determination.

at 573 n.9 (internal quotation marks

omitted). The same cannot be said of Geraghty's affidavit in

19 this case, which, again, amply conveys that Schofield was

distributing methamphetamine. The court therefore concludes that

the details of the undercover agent's attempted February 2 drug

buy and Schofield's failure to call the agent on October 14 as

promised were not material to the probable cause finding.

Belton also argues that the relevant police reports, but not

the warrant application, show that Schofield "recanted or at a

minimum altered his position of cooperation." Mem. Supp. Franks

Hrg. at [10]. As an initial matter, none of the evidence

received in connection with the Franks hearing suggests that

Schofield retracted any part of his February 6, 2004, statement

inculpating Belton. Instead, while Schofield had agreed at that

time to try to make controlled purchases of drugs from Belton, he

ultimately "failed to actively cooperate with the investigation,"

Geraghty Aff. 5 15, leading to his indictment on April 15, 2004.

Although Geraghty's affidavit did not mention Schofield's

initial willingness to attempt to make a controlled buy, its

reference to the fact that Schofield failed to cooperate and was

indicted as a result fairly indicates that he had, at some prior

point, agreed to provide cooperation. The court therefore

disagrees with Belton that the warrant application "omitted" the

fact that Schofield "altered his position of cooperation."6 In

6Similarly, even if Lane's statement to Geraghty that Belton would not be indicted in Vermont unless Schofield gave an in- depth proffer could be understood to mean that Schofield had refused to do so, such a refusal would not be inconsistent with

20 any event, such an omission would not be material to the probable

cause finding, for the same reason that the omissions of the

details of Schofield's October 14 and February 2 transactions

with the undercover agent are not: that an admitted criminal

would agree to cooperate with the authorities while in custody

but fail to make good on that agreement following his release

does not further diminish his reliability to any measurable

degree.7 See Rumnev.

.

Finally, even if the facts omitted from the warrant

application were material, either individually or in the

aggregate, that determination alone does not suffice to show that

a Franks violation occurred. "Franks protects against omissions

that are designed to mislead, or that are made in reckless

disregard of whether they would mislead, the magistrate." United

States v. Colklev.

(4th Cir. 1990) (citing

United States v. Reivich.

(8th Cir. 1986)); see

also Indelicate v. United States.

(D.

Mass. 2000); United States v. Salemme.

(D.

Mass. 1997); 2 Wayne R. LaFave, Search and Seizure: A Treatise on

the Fourth Amendment § 4.4(b), at 545-46 (4th ed. 2004). The

Schofield's initial amenability to attempt controlled purchases from Belton.

7Indeed, Schofield might have simply gotten cold feet, given that a member of the Freelancers attended his arraignment on February 9, 2004, and that the club subsequently held meetings to discuss the future of Schofield's membership.

21 evidence adduced in connection with the Franks hearing does not

support the conclusion that Geraghty acted with this requisite

degree of animus in omitting any of the facts in question from

the warrant application.

Geraghty convincingly testified at the hearing that, while

he recognized the importance of Schofield's credibility to the

probable cause determination, he left the information as to the

attempt to rip off the undercover agent and the like out of the

affidavit because he considered it unremarkable based on his

experience investigating drug crimes.8 As Geraghty put it, "it

didn't seem important enough to say, 'Hey, this guy is a drug

dealer and a liar'--I think the two go hand-in-hand." The case

law on this subject discussed supra makes clear that, far from

being reckless, this was a reasonable belief on Geraghty's part.

At the Franks hearing, Belton made much of the fact that

Geraghty did not ask Lane for a copy of his investigative file

before seeking the warrant and therefore left open the

possibility that any exculpatory facts about Belton potentially

noted in the reports would not make it into the warrant

application. Though the better course might have been to obtain

8Geraghty explained that he would have included these facts in the affidavit if Schofield had behaved in that fashion while knowingly cooperating with the authorities, because they would have suggested a troubling disregard for necessary investigative protocol. Because Schofield was helping the police unwittingly, however, he was simply treating the undercover agent with the level of disregard common in dealer-user relationships, according to Geraghty.

22 the reports beforehand, Geraghty testified that he did send

multiple drafts of his affidavit to Lane before submitting it.

In any event, Franks does not provide for suppression "in

instances where police have been merely negligent in checking or

recording the facts relevant to a probable-cause determination."

. The court therefore concludes that Geraghty

did not intentionally or recklessly omit any material facts from

the warrant application within the meaning of Franks. which in

turn provides no obstacle to the government's reliance on the

good faith exception here. C f . Vigeant,

(refusing to apply good faith exception where affiant's "numerous

omissions of material facts were at least reckless" and

government "offer[ed] no rational explanation" for them).

II. Whether the Affidavit Is So Lacking in Indicia of Probable Cause as to Render Official Belief in Its Existence Entirely Unreasonable

Belton also contends that the governmentcannot rely on the

good faith exception because Geraghty's affidavit is "so lacking

in indicia of probable cause as to render official belief in its

existence entirely unreasonable." Leon.

(internal quotation marks omitted). Specifically, Belton argues

that (1) the affidavit fails to establish Schofield's reliability

as an informant and (2) in any event, neither Schofield's

statement nor the other facts set forth in the affidavit show the

requisite nexus between any illegal activity and Belton's home.

23 The court will consider these arguments in turn, keeping in mind

that "the relevant question [is] ■'whether a reasonably well-

trained officer in [Geraghty's] position would have known that

his affidavit failed to establish probable cause and that he

should not have applied for the warrant.'" Vigeant,

(quoting Mallev v. Briggs.

(1986)).

A. Schofield's Credibility

The First Circuit has assembled a non-exhaustive list of

factors to consider in evaluating probable cause where facts

supporting the issuance of a warrant originate with an informant,

including his or her apparent veracity or basis of knowledge,

whether his or her statements are self-authenticating, the extent

to which the statements were corroborated where reasonable and

practicable, and any professional assessment of the probable

significance of the statements made by the investigating

authorities. Zavas-Diaz,

; see also, e.g..

Capozzi.

; United States v. Barnard.

(1st Cir. 2002). "'None of these factors is indispensable;'

the ultimate issue is whether the totality of the circumstances

establishes the credibility of the informant's story." Capozzi.

(quoting Zavas-Diaz.

).

Belton argues that the circumstances here fail to show

that the information provided by Schofield was, in fact,

credible, particularly because (1) Schofield was an "unproven"

24 informant, (2) the "scant details" he provided cannot be

considered self-authenticating, and (3) his account was not

corroborated by independent police investigation in any

significant respect. Taking Belton's points in order, the court

notes that "an informant's tip can establish probable cause even

though the affidavit does not contain information about the

informant's past reliability" where it conveys other facts

tending to establish his or her credibility. United States v.

Greenburq.

, 67 (1st Cir. 2005).

In Greenburq. for example, though "the informant had no

track record of reliability," the circuit treated the facts that

the informant had met with the investigator face-to-face and that

the investigator therefore knew the informant's identity as

significant in bolstering his credibility. Id. The circuit

reasoned that such a meeting provided "the opportunity to

question the informant personally about the tip and take measure

of [his] credibility" as well as to "hold [him] responsible if he

provided false information." Id. This reasoning is similarly

applicable here, where Schofield gave his account of Belton's

allegedly illegal activities directly to Lane.

Belton also criticizes the level of detail about his

allegedly illegal activities which Schofield provided,

characterizing his account as a "general claim[] that [Belton]

sells drugs." Mem. Supp. Mot. Suppress at [7]. As the

25 government points out, however, Schofield provided information as

to the types of drugs Belton sold, at what prices, where he sold

them from, and to whom. Schofield's statement therefore

transcended '■'simply identifying [Belton] as a drug dealer."

United States v. Benedict.

(D.N.H. 2005)

(DiClerico, J.) (rejecting similar challenge to credibility of

informant whose story supported warrantless arrest).

Moreover, like the principal informant in Benedict,

Schofield claimed to have come by his information about Belton's

illegal activities through first-hand participation in them.

("'The credibility of an informant is enhanced

to the extent he has provided information that indicates first­

hand knowledge,' particularly of 'concealed illegal activity as

opposed to easily knowable, nonincriminating facts'") (quoting

Barnard.

). Also like his counterpart in Benedict.

Schofield implicated himself in criminal conduct beyond what the

authorities already knew, which "tend[s] to support [his]

credibility, given the disincentive to falsely incriminate

oneself."

Furthermore, contrary to Belton's third criticism of

Schofield's reliability, the authorities had independent

information corroborating a number of aspects of his story.

First, the police knew that Schofield had a relationship of some

kind with Belton because they had observed the men meeting in

26 Tilton on one occasion, and knew from the undercover agent's cell

phone and Schofield's own "caller ID" that he had placed and

received calls from a phone number listed to Belton's business.

Second, the authorities trailed Schofield to within just a short

distance from Belton's residence after the undercover agent had

given Schofield money to purchase methamphetamine on October 13,

2003, and spotted Schofield near Belton's hometown on February 2,

2004, after Schofield had placed a call to Belton's number in an

apparent attempt to procure more meth.

It is true, as Belton points out, that the police never

witnessed any inherently suspicious behavior on his part, or even

confirmed that Schofield actually came into contact with Belton

during either of the trips to New Hampshire which followed his

meetings with the undercover agent. "But even / [c ]orroboration

of innocent activity can establish the reliability of the

informant because the activity might come to appear suspicious in

light of the initial tip.'" Benedict,

(quoting Greenburq. 410 F.3d at 69). The activity which the

police did observe dovetailed with what Schofield told them about

his drug source both before and after his arrest and therefore

helped to corroborate his statement inculpating Belton. "It is

enough, for purposes of assessing probable cause, that

corroboration through other sources of information reduced the

chances of a reckless or prevaricating tale, thus providing a

27 substantial basis for crediting the [informant's] hearsay."

Illinois v. Gates.

(1983) (internal

quotation marks and bracketing omitted).

In sum, while each of Belton's criticisms of the affidavit's

indicia of Schofield's credibility has some validity, the

affidavit sets forth other aspects of Schofield's account which

tend to bolster his veracity. In any event, the deficiencies

Belton identifies do not cast Schofield's information into

sufficient doubt so as to render Geraghty's belief in the

existence of probable cause entirely unreasonable. "[An] officer

need not . . . entirely eliminate the risk that an informant is

lying or in error."9 Capozzi,

(internal

quotation marks omitted). Any shortcoming in this regard, then,

is not glaring enough to prevent the government from relying on

the good faith exception.

9Indeed, "the authorities need corroborate tips only insofar as it is "reasonable and practicable" to do so." Benedict,

(quoting Greenburq. 410 F.3d at 69 n.3) (further internal quotation marks omitted). As the warrant application explained, the police did not believe they could surveil Belton's residence without detection, due to the character of his neighborhood, and had no way to attempt a controlled buy from Belton once Schofield refused to cooperate.

28 B. Nexus to Belton's Residence

Belton also contends that the information set forth in the

warrant application fail to demonstrate probable cause that

evidence of drug-related crimes would be found at his residence.

"For evidence to avert suppression, normally the warrant

application must demonstrate probable cause to believe that a

particular person has committed a crime--the commission element--

and that enumerated evidence relevant to the probable criminality

likely is located at the place to be searched--the nexus

element." Zavas-Diaz,

(internal quotation

marks and citation omitted); see also Vigeant,

.

Belton argues that, in his case, "the nexus element is virtually

non-existent," since the only information in the affidavit

linking his home to any illegal activity was Schofield's "vague"

statements that Belton "sold drugs from his residence" and that

"he saw drugs" there. Mem. Supp. Mot. Suppress at [3] & n.2.

The court notes at the outset that this argument rests on a

narrow interpretation of Schofield's statement as set forth in

the warrant application. "In determining whether the nexus

element is satisfied, a magistrate has to make 'a practical,

common-sense decision whether, given all the circumstances set

forth in the affidavit before him, . . . there is a fair

probability that contraband or evidence of a crime will be found

in a particular place.'" United States v. Ribeiro.

,

29 48-49 (1st Cir. 2005) (quoting Gates,

). The

magistrate may draw reasonable inferences from the facts alleged

in the warrant application in making this assessment. See United

States v. Falon,

(1st Cir. 1992); United

States v. Hershenow.

(1st Cir. 1982).

The warrant application relates Schofield's statements that

he had been buying methamphetamine from Belton for several

months; that Belton "sells from his residence as well as the

clubhouse;"10 and that "SCHOFIELD has seen an ounce of

methamphetamine at BELTON's residence." Geraghty Aff. 5 7.

While other inferences are possible, e.g.. that Schofield had

only seen meth at Belton's residence on one unspecified occasion,

it is reasonable to infer from these facts that Schofield

regularly bought methamphetamine from Belton at his residence.

The information independently gathered by the authorities

supports this inference: when Schofield attempted to purchase

methamphetamine for the undercover officer, he either traveled

into the vicinity of Belton's residence or called a phone number

listed for that address.11

10It is unclear from the affidavit whether the "clubhouse" in question belongs to the Freelancers or the Vietnam Vets Motorcycle Club.

11Belton emphasizes that the phone number, registered to his business, was listed to a different street address in Franklin as well as to his home. A warrant application, however, need

30 "The probable-cause nexus between enumerated evidence of the

crime and the place 'can be inferred from the type of crime, the

nature of the items sought, the extent of an opportunity for

concealment, and normal inferences as to where a criminal would

hide evidence of a crime.'’" Ribeiro.

(quoting

United States v. Charest.

(1st Cir. 1979))

(bracketing omitted). Here, these considerations justify the

inference that Belton kept evidence of his drug dealing at his

residence. Indeed, Geraghty stated in his affidavit that, based

on his training and experience, narcotics dealers often keep

cash, weapons, drug paraphernalia, records of drug transactions,

and other evidence of their activities in their homes. While

"[a]lone, such generalized observations may not be enough to

satisfy the nexus element,"

at 50 (citing cases), they do not

stand alone in this instance, but are accompanied by the

statement of an informant with first-hand knowledge of the

connection, corroborated in material respects. See Zavas-Diaz,

; c f . State v. Silvestri.

(1992)

(reversing denial of motion to suppress based on insufficient

probable cause for warrant for defendant's home where "there was

nothing to indicate that evidence of the crime was kept at, or

demonstrate only '"a fair probability that contraband or evidence of a crime will be found in a particular place. Zavas-Diaz.

(quoting Gates.

).

31 picked up from, the defendant's residence other than the mere

fact that the defendant was suspected of being a criminal"),

discussed in Mem. Supp. Mot. Suppress at [9]-[10].

Accordingly, the court concludes that a reasonably well-

trained officer in Geraghty's position would have believed that

his affidavit established probable cause to search Belton's

residence for drugs and related evidence. Again, while it may

have been preferable for the police to extract more specifics

from Schofield about the connection between 3 Lilac Lane and

Belton's illicit dealings, the court believes that the affidavit

contains enough information supporting the link to have

reasonably convinced Geraghty that probable cause existed. The

warrant application, therefore, is not so lacking in indicia of

probable cause as to preclude the government's reliance on the

good faith exception.

Conclusion

For the foregoing reasons, Belton's motions to suppress

(document nos. 14 and 36) are DENIED.

SO ORDERED.

JNs'eph A. DiClerico, Jr. United States District Judge

January 30, 2006 cc: Paul J. Garrity, Esquire Joseph N. Laplante, Esquire U.S. Probation U.S. Marshal

32