United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
DENISE J. CASPER, District Judge.
Defendant John Fleury ("Fleury") has moved to suppress the fruits of a search conducted at his residence on May 12, 2014. D. 46. Specifically, he has moved for a hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1978) on the grounds that the affiant failed to include material information bearing upon the reliability of the confidential informant and undermining the likelihood that the firearm, the focus of the search, would be on the premises at the time of the search and the inclusion of these omissions would have eviscerated the basis for probable cause. Having considered the motion, D. 46, the supporting exhibits submitted in support of the motion, D. 46-1 to 46-6; D. 51, the government's opposition, D. 48, and counsel's arguments at the January 30, 2015 hearing, D. 50, the Court DENIES the motion. Accordingly, the Court makes its findings of fact and legal analysis below.
II. Factual and Procedural Background
On May 9, 2014, Bureau of Alcohol, Tobacco, Firearms and Explosives ("ATF") Special Agent Kotchian ("SA Kotchian") applied to this Court (Dein, M.J) for a search of Fleury's residence at 83 Parkland Avenue, Lynn, Massachusetts ("Fleury's residence"). The search warrant sought "firearms, ammunition, documents and other evidence." D. 46-5 ¶ 3. The Court authorized search warrant on the same day, May 9th, and local and federal officers executed the search warrant a few days later, on May 12, 2014. The search uncovered a Walther Model PPK/S.380 caliber, semi-automatic pistol bearing the serial number S03553, assorted unidentified pills, a shoulder holster, two boxes of clear plastic sandwich bags and two ski masks. See D. 48 at 5.
Fleury was subsequently charged with being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). D. 1, 11. This charge arises out of the May 12, 2014 seizure of the firearm from Fleury's residence, which is the subject of Fleury's motion to suppress.
B. Search Warrant Affidavit
SA Kotchian submitted an affidavit in support of the search warrant application for Fleury's residence "based on [his] personal involvement in th[e] investigation, [his] training and experience, information provided to [him] by other law enforcement officers, and information provided to [him] by a confidential informant." D. 46-5 ¶ 4. The affidavit provided a brief summary of SA Kotchian's background and experience. Id. ¶¶ 1, 2. Specifically, SA Kotchian stated that he had been employed with the ATF for approximately twelve years, during which time he had been assigned to a task force focused on "federal firearms, explosives and controlled substance violations." Id. The affidavit acknowledged that it did not contain every fact known to SA Kotchian regarding the investigation, but stated that SA Kotchian had included facts that he thought were sufficient to establish probable cause for the search. Id. ¶ 4.
With regard to the Fleury investigation, SA Kotchian attested that he had personally met and interviewed a confidential informant ("CI"), who had provided information during the course of the investigation that had been corroborated by law enforcement officers, including through the use of electronic surveillance. Id. ¶ 5. Moreover, SA Kotchian stated that this CI had "provided accurate, truthful, and reliable information to law enforcement personnel in the past." Id. ¶ 5. SA Kotchian disclosed that the CI had a criminal history that included violations for breaking and entering in the nighttime, open and gross lewdness, larceny over $250 and assault and battery with a dangerous weapon. Id. The affidavit further disclosed that the CI had told SA Kotchian that "he/she has both used and sold illegal drugs in the past." Id.
The affidavit then provided a summary of the investigation and the information obtained through the CI. Id. ¶¶ 6-10. The affidavit detailed that on April 21, 2014 the CI met with Fleury and another individual in Massachusetts. Id. ¶ 8. Prior to this meeting, SA Kotchian had provided the CI with an audio recorder and authorized the CI to record the meeting. Id. SA Kotchian was able to listen to the recording of the meeting some time later. Id. During the meeting, Fleury received a phone call from his girlfriend and, at some point during the conversation, Fleury activated the speakerphone so that the CI and the other individual could hear his girlfriend yelling at him. Id. ¶ 9. Fleury engaged in a heated argument with his girlfriend, at one point walking away from the CI and the recording device, before returning and telling the CI and the other individual about threats that his girlfriend had made against him during the telephone conversation. Id. ¶ 10. Fleury then can be heard on the recording remembering that he left a gun at the home he shared with his girlfriend and expressing concern that she would find the weapon. Id.
Later, the CI informed SA Kotchian that on April 25, 2014 the CI observed Fleury "in possession of a silver-colored, semi-automatic pistol" inside Fleury's home. Id. ¶ 7. The affidavit explains that the CI saw Fleury remove the gun from a closet in the basement of Fleury's home, insert a loaded magazine into the pistol and then strap the pistol into a shoulder holster on his person. Id.
SA Kotchian stated in the affidavit that he reviewed Massachusetts Registry of Motor Vehicles records to confirm Fleury's home address and identity. Id. ¶ 11. Furthermore, SA Kotchian stated that he had conducted surveillance of Fleury's residence, observing a car registered to Fleury at this location. Id. ¶ 15. SA Kotchian also reviewed Fleury's criminal record maintained by the Massachusetts Criminal History Systems Board. Id. ¶ 12.
The affidavit explained that, based on SA Kotchian's training and experience, SA Kotchian knew that people who own and possess firearms usually maintain them for long periods of time, usually on their person, in their residences or in their vehicles and that a person who had a firearm in their residence as recently as two weeks ago "is highly likely to still possess a firearm in that residence." Id. ¶ 17. SA Kotchian further stated that based on his participation in the execution of other firearm-related warrants he knew that people who possess firearms usually possess other related items, including ammunition, holsters and documents reflect their dominion and control over a residence. Id. ¶¶ 18, 19. Ultimately, SA Kotchian attested that he believed that ...