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

(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,

(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

-2- 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

(a)(1), (2) possession of a firearm in furtherance of drug

trafficking in violation of

(c)(1)(A), and

(3) possession of a firearm by an unlawful drug user in violation

of

(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.

-3- Alexandre, No. 2:18-cr-00133-GZS,

, 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,

;

(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,

;

(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

-4- (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,"

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

-5- 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,

, at *2 (quoting United States v.

Barbosa,

(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."

at

*3 (quoting United States v. Silva,

(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

-6- 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.

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,

, at

*2 (quoting Silva,

); see, e.g., Zurcher v. Stanford

Daily,

, 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

-7- 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,

(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,

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.

-8- boarding home or any other kind of multi-unit dwelling," Alexandre,

, 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.

-9- III.

For the foregoing reasons, we affirm the District

Court's denial of Alexandre's motion to suppress and request for

a Franks hearing.

- 10 -