United States Court of Appeals
For the First Circuit
No. 20-1359
UNITED STATES OF AMERICA,
Appellee,
v.
DAVID MAGLIO,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Mark L. Wolf, U.S. District Judge]
Before
Howard, Chief Judge,
Barron, Circuit Judge,
and Singal, District Judge.
Ashley P. Allen and Sibbison Dejuneas & Allen were on brief,
for appellant.
Randall E. Kromm, Assistant United States Attorney, and
Nathaniel R. Mendell, Acting United States Attorney, were on brief,
for appellee.
December 23, 2021
Of the District of Maine, sitting by designation.
SINGAL, District Judge. Following a jury trial,
defendant-appellant David Maglio was convicted of possession with
intent to distribute marijuana in violation of 21 U.S.C.
§ 841(a)(1), and possession of a firearm and ammunition by a
convicted felon in violation of
18 U.S.C. § 922(g)(1). He was
sentenced to 96 months of imprisonment followed by 60 months of
supervised release. In this appeal, he contends that the district
court erred by not suppressing evidence obtained as a result of
the execution of a search warrant at his residence. Upon due
consideration of his asserted errors, we affirm.
I. BACKGROUND
A. The Search
On March 17, 2016, law enforcement executed a search
warrant on Maglio's residence located at 83 Main Street in Hull,
Massachusetts. This search resulted in the seizure of a handgun,
a semi-automatic rifle, ammunition, packaged marijuana, marijuana
plants in various states of cultivation, and more than $5,000 in
cash.
The warrant was issued by a Massachusetts state trial
court, which had found probable cause to believe a search would
yield evidence of criminal activity. This finding, in turn, relied
on a fourteen-page affidavit by Sergeant Detective Craig Lepro of
the Hull Police Department (the "Lepro Affidavit").
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B. The Search Warrant Application
As recounted in his affidavit, Lepro then had twenty
years of law enforcement experience, including training and prior
investigative experience related to indoor marijuana grows. Based
on that experience and months of investigation, Lepro asserted
there was probable cause to believe there was an illegal indoor
marijuana grow at 83 Main Street. In support of that assertion,
the Lepro Affidavit compiled information from a variety of sources
including an informant, surveillance of the residence, as well as
searches of government records, including the Massachusetts
Department of Criminal Justice Information System ("CJIS"), and
electricity records.
1. The Informant
Lepro described in detail information obtained from an
arrested informant, Vinicio Albuquerque. As noted by Lepro,
Albuquerque had an extensive criminal history, including prior
charges for drug distribution and a total of 39 adult criminal
appearances.
Although Lepro did not speak with Albuquerque directly,
he recounted information Albuquerque provided to Deputy Sheriff
John Campbell of the Essex County Sheriff's Department following
his arrest on January 20, 2016. On that day, the Danvers Police
Department arrested Albuquerque at the Danvers Econo Lodge after
he was found in possession of over fifteen pounds of marijuana,
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along with various items used to harvest and manufacture marijuana.
Albuquerque identified this marijuana as belonging to David Maglio
of 83 Main Street.
Albuquerque further reported that Maglio had an indoor
marijuana grow at this location with "a street value worth tens of
thousands of dollars." Albuquerque also claimed that a week prior
to his arrest he had observed "at least five firearms" in Maglio's
basement, one of which appeared to be a compact-style, fully
automatic firearm. Albuquerque indicated that marijuana was being
processed at a second location in West Roxbury. As disclosed in
the Lepro Affidavit, Albuquerque advised Campbell that he was
informing on Maglio because Maglio would not post the $1,000 bail
he needed to secure his release from the Essex County Correctional
Facility.1
Lepro also included information culled from the police
report of Albuquerque's January 20th arrest. According to that
report, Albuquerque had visible bruises and abrasions, which he
explained were the result of having been beaten up at 130 Grove
1 Beyond disclosing Albuquerque's motivations, Lepro also
disclosed Albuquerque's contacts with local law enforcement in
early January 2016. These contacts included an incident in which
Albuquerque was found unresponsive behind the wheel of an
improperly registered Hummer. At that time, he was transported to
the hospital and the vehicle was impounded. In the two days
following that incident, Albuquerque had additional contacts with
a different local police department, which resulted in him being
transported to a shelter in Quincy.
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Street in West Roxbury (which was his address in the CJIS).
Albuquerque indicated that the Boston Police were aware of this
incident and the marijuana situation. Danvers Police had in turn
confirmed with the Boston Police Albuquerque's recent involvement
in a fight.
In fact, following their response to the January 17th
fight in West Roxbury, Boston Police had obtained and executed a
search warrant at 130 Grove Street. Of Albuquerque's role in that
search warrant, Lepro asserted that the discovery of a THC
extraction lab at 130 Grove Street "demonstrates the Boston Police
were able to corroborate information supplied by Albuquerque and
the seizure of the illegal lab." Lepro further described
Albuquerque as having "provided reliable information to law
enforcement" that resulted in the "discovery of a THC lab and the
prosecution of the offenders."
2. The Surveillance
Following the receipt of information from Albuquerque,
Lepro and another detective surveilled 83 Main Street on January
29, 2016. Lepro reported observing Maglio on the premises and
detecting "a strong pungent odor of fresh [m]arijuana emanating
from approximately 50 feet from the property." Based on his
experience, Lepro asserted that this odor was indicative of a
ventilated indoor marijuana grow at 83 Main Street.
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3. The Records
Beyond this surveillance of the address, Lepro also
confirmed that two vehicles he observed frequently parked at
83 Main Street were registered to Maglio and Erika Zerkel,
respectively. Lepro's review of available records for 83 Main
Street showed Zerkel purchasing the property in September 2015 and
occupying the residence with her spouse, Maglio.
Lepro also subpoenaed monthly utility bills for 83 Main
Street. From the time that Zerkel registered as the new owner of
this residence, the monthly kilowatt hour (kWh) usage and the
monthly amounts billed, as reported in the Lepro Affidavit, were
as follows:
September 2015 172 kWh $73.82
October 2015 2377 kWh $373.82
November 2015 6661 kWh $1,066.82
December 2015 9090 kWh $2,474.35
January 2016 6302 kWh $1,998.00
In Lepro's experience based on past investigations, these amounts
reflected well above-average usage, as the average monthly usage
in Hull was 750 kWh. Moreover, Lepro explained that the kWh
figures for 83 Main Street and their pattern of increase and later
decrease indicated an indoor grow. Lepro also sampled three other
comparably sized houses in the area for the same time period and
described the average monthly bills for these residences as ranging
from $105.43 to $253.28.
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The Lepro Affidavit also noted that Maglio's criminal
record included 136 adult criminal appearances and 8 juvenile
appearances. His convictions included unlawful possession of a
firearm and ammunition, narcotics offenses, and assault with a
dangerous weapon. In July 2015, Maglio was arraigned for
possession with intent to distribute a controlled substance. The
police report associated with this arrest (the "Rutland Report")
reflected that officers had seized 59 marijuana plants from a
property in Rutland, Massachusetts. According to Lepro's
research, Maglio did not have any Massachusetts record of firearm
ownership or medical marijuana registration.
Lepro also included information regarding a November
2015 vehicle collision at 83 Main Street. According to the
responding officers, a Nissan owned by Zerkel struck another
vehicle while exiting the property's driveway. The Nissan was
being operated by Daniel Gruen, whose mailing address was,
familiarly, 130 Grove Street, West Roxbury. Maglio was the only
passenger. When the responding officer walked up the driveway to
inspect the Nissan's damage, Maglio confronted the officer and
told him he was not allowed on his property, becoming increasingly
agitated. The officer found Maglio's behavior suspicious.
C. The Initial Motions
In August 2017, Maglio moved for a hearing under Franks
v. Delaware, 438 U.S. 154 (1978), due to alleged false statements
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and omissions in the Lepro Affidavit. He also sought to suppress
all evidence obtained as a result of the search of his house.
In these motions, Maglio asserted that the Lepro
Affidavit had falsely portrayed Albuquerque's role in the search
warrant for the THC lab at 130 Grove Street. Maglio proffered
that, in reality, the relevant police reports showed that officers
responding to the fracas at 130 Grove Street had discovered the
THC lab in plain view and had obtained a search warrant on that
basis. Maglio also asserted that Lepro had disregarded a
conversation recorded in the Rutland Report, where it was intimated
that Maglio had a medical marijuana registration. Maglio contended
that given Lepro's review of the Rutland Report, he recklessly
failed to conduct a reasonable search for Maglio's medical
marijuana registration status. Maglio argued that when reformed
to correct Lepro's inclusion of false information about his
registration status and Albuquerque's prior cooperation, the Lepro
Affidavit failed to establish probable cause for the search of
83 Main Street.
In an October 2018 oral ruling, the district court
ultimately held that Maglio had not demonstrated that the
challenged statements were material to the finding of probable
cause. On this basis, the district court denied Maglio's motion
to suppress without convening a Franks hearing.
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D. The Renewed Motion
A year later, while in final preparations for trial,
Maglio filed a renewed and supplemental motion to suppress, which
sought both a Franks hearing and an evidentiary hearing.
In addition to asking the district court to reconsider
its prior denial, this motion asserted other errors and omissions
in the underlying search warrant affidavit. Specifically, Maglio
claimed inaccuracies in Lepro's analysis of the electricity
records. He faulted the inclusion of past due balances, which
inflated the billed amounts for multiple months, and questioned
Lepro's reported average power usage of 750 kWh. He also faulted
Lepro for omitting a note in the electricity records internally
discussing a "high read" for 83 Main Street. Additionally, Maglio
suggested that Lepro's asserted detection of marijuana odor
50 feet from the property could only be accurate if Lepro had
impermissibly entered the property's curtilage.
As to the informant, Maglio refined his arguments that
Albuquerque's statements lacked important indicia of reliability.
He cited the lack of direct contact between Lepro and Albuquerque.
He also asserted that Lepro made improper inferences regarding the
source of the marijuana possessed by Albuquerque as well as what
Albuquerque observed in terms of marijuana and firearms at 83 Main
Street. He called into the question the timing of Albuquerque's
interview and his actual motivations for informing on Maglio due
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to the noted amount of Albuquerque's bail, which was had been
$5,000 and was not reduced to $1,000 until January 28, 2016.
In sum, Maglio asserted that a warrant reformed to
correct all of his alleged falsehoods and omissions would contain
insufficient facts "to corroborate the informant or support
probable cause."
At an October 2019 pretrial conference, the district
court granted reconsideration and heard argument, indicating that
it was considering Maglio's arguments for suppression de novo.
The district court then again denied all requested relief without
convening any evidentiary hearing.2 This denial was ultimately
based on a finding that the Lepro Affidavit "amply" provided
probable cause and no alleged inaccuracies or omissions were
individually or cumulatively material to the probable cause
finding.3
2 In addition to the oral ruling on October 22, 2019, the
district court later docketed a written decision, which it
characterized as containing the same findings and analysis, but
adding some factual summary, discussion, and citations. We have
reviewed and considered both the oral ruling and the later docketed
memorandum in the context of resolving this appeal.
3 The district court agreed with Maglio that there were some
errors with Lepro's characterization of the extent of the
electricity usage, including the failure to acknowledge that the
amounts owed incorporated prior unpaid balances. However, as noted
by the district court, the evidence proffered by Maglio would still
support a finding that Maglio's electricity usage was triple that
of any of the comparators.
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II. DISCUSSION
A. Probable Cause
We review de novo the district court's conclusion that
the facts of a search warrant affidavit constitute probable cause.
See United States v. Austin, 991 F.3d 51, 55 (1st Cir. 2021).
Probable cause for a search "exists where there is a fair
probability that . . . evidence of a crime will be found in a
particular place."
Id. (alteration in original) (quoting United
States v. Silva,
742 F.3d 1, 7 (1st Cir. 2014)). "The probable
cause standard 'is not a high bar.'" United States v. Adams,
971
F.3d 22, 32 (1st Cir. 2020) (quoting Kaley v. United States,
571
U.S. 320, 338 (2014)). As we have previously explained, this is
a "practical, common-sense" inquiry. United States v. Dixon,
787
F.3d 55, 59 (1st Cir. 2015) (quoting United States v. Feliz,
182
F.3d 82, 86 (1st Cir. 1999)).
We normally limit our review to "the four corners of the
affidavit." Austin, 991 F.3d at 55. However, in this case, the
district court's ultimate determination rested on a reformed
version of the Lepro Affidavit that disregarded statements about
Albuquerque's role in the 130 Grove Street search, Maglio's lack
of a medical marijuana registration, as well as Maglio's other
asserted factual errors and omissions. Thus, we consider whether
this reformed version of the Lepro Affidavit supported a finding
of probable cause to search 83 Main Street.
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First, putting aside any of the information provided by
Albuquerque, it is undisputed that the affidavit accurately
summarized Maglio's criminal history, including a pending charge
related to a marijuana grow in Rutland and a previous firearms
conviction. The affidavit also recounted a local police response
to a motor vehicle accident at 83 Main Street, which involved a
suspicious encounter with an agitated Maglio. Significantly, this
accident also separately tied Maglio to a resident of 130 Grove
Street –- where police found a THC lab. In summary, these
unopposed portions of the affidavit depict Maglio as a person with
an extensive history of relevant criminal conduct, along with
recent links to illegal marijuana production, as well as
demonstrated suspicious behavior when an officer approached
83 Main Street.
Turning to Albuquerque, before the district court and in
this appeal, Maglio has raised specific concerns about omissions
and misstatements surrounding this informant. While Maglio
assails Albuquerque's credibility, his criticisms do little
damage. "An informant's trustworthiness may be enhanced in a
number of ways, including his willingness to reveal his identity,
the level of detail in his account, the basis of his knowledge,
and the extent to which his statements are against his interest."
United States v. Tanguay, 787 F.3d 44, 50 (1st Cir. 2015) (citation
omitted). "A probable cause finding may be based on an informant's
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tip so long as the probability of a lying or inaccurate informer
has been sufficiently reduced." United States v. Gifford, 727
F.3d 92, 99 (1st Cir. 2013). In addition to the factors
demonstrating probable veracity cited above, we consider "whether
some or all of the informant's factual statements were corroborated
wherever reasonable or practicable" and "whether a law enforcement
affiant assessed, from his professional standpoint, experience,
and expertise, the probable significance of the informant's
provided information." See
id.
Here, Albuquerque's identity was revealed and he was in
the custody of law enforcement. Dixon, 787 F.3d at 59 (fact that
officers "would have been able to hold the [informant] responsible
had he provided false information" was indicative of probable
veracity). As to detail, Albuquerque told Campbell that the
cultivated marijuana he was found with came from the indoor grow
in Maglio's basement, and further provided a first-hand
observation of firearms at this location. He also described the
scale of Maglio's operation, including the involvement of a second
property in West Roxbury. In short, Albuquerque indicated that he
had personally observed criminal activity within 83 Main Street.
See, e.g.,
id. (describing "specific, first-hand account of
possible criminal activity" as "a hallmark of a credible tip"
(quoting United States v. Greenburg,
410 F.3d 63, 67-68 (1st Cir.
2005))). Moreover, while Maglio argues that Albuquerque was self-
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interestedly pointing the finger at Maglio, Albuquerque was
potentially implicating himself in a larger marijuana conspiracy
via the information he provided. Thus, Albuquerque's statements
can be viewed as against his interest, which only bolsters the
reliability of this information.
In addition to these indicia of trustworthiness, the
affidavit independently corroborated critical portions of
Albuquerque's information. For instance, other independent
records corroborated his identification of Maglio as residing at
83 Main Street and Lepro observed Maglio's vehicle parked at this
location on numerous occasions. See Dixon, 787 F.3d at 59
("Corroboration of even innocent activity reported in the tip may
support a finding of probable cause." (quoting Greenburg, 410 F.3d
at 69)). Given this corroboration and the other above-noted
indicia of credibility, the information provided by Albuquerque
can be properly considered as part of the probable cause calculus.
Considering the totality of the credible evidence in the
Lepro Affidavit, as reformed by the district court, we agree that
ample probable cause existed to support the issuance of the search
warrant for 83 Main Street.
In addition to his challenge to the district court's
ultimate probable cause determination, Maglio separately contends
that the district court made several erroneous factual findings
that affected its outcome. We review the district court's factual
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findings for clear error, see United States v. Barbosa, 896 F.3d
60, 67 (1st Cir. 2018), and find none. For the reasons already
discussed, the district court's findings that Albuquerque
"provided detailed information" and "had personal knowledge of the
matters" he discussed with Campbell were well supported by the
uncontested contents of the affidavit. Although we have said that
"face-to-face contact between the agent and informant" and an
agent's opportunity to personally question him generally provides
indicia of that informant's reliability, see, e.g., Dixon,
787
F.3d at 59; Greenburg,
410 F.3d at 67, the absence of such an
opportunity does not necessarily render the tip unreliable.
Particularly here, where the tip was relayed from another officer
who had such face-to-face contact with the informant. Maglio's
other challenges to the court's factual findings, are similarly
unconvincing. The court's reading of the affidavit was reasonable,
consistent with the information provided therein, and not clearly
erroneous.
B. Lack of Hearings
Moreover, we find no error in the district court's
decision to deny the motion to suppress without convening a Franks
hearing or other evidentiary hearing.
1. Franks Hearing
As to the Franks hearing request, "we review the District
Court's factual determinations in denying a motion for a Franks
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hearing for clear error, and its determination of whether the
defendant has made a substantial preliminary showing that the
omitted information was material to the finding of probable cause
de novo." United States v. Veloz, 948 F.3d 418, 427–28 (1st Cir.
2020) (citation omitted). "[A] defendant is not entitled to a
Franks hearing as of right." Barbosa,
896 F.3d at 68. Rather,
a defendant is entitled to an evidentiary hearing to
test the veracity of a warrant affidavit if he can make
a substantial showing that (1) the affiant intentionally
or with reckless disregard for the truth included a false
statement in the affidavit, or omitted information from
the affidavit; and (2) such false statement or omitted
information was material to the probable cause inquiry.
Austin, 991 F.3d at 57 (citations omitted).
Ultimately, the district court concluded that Maglio
could not satisfy the second prong, materiality, either
cumulatively or as to any particular alleged omission or false
statement. For the same reasons supporting our finding of probable
cause based on the reformed version of the Lepro Affidavit, we
also find no error in the district court's conclusion that a Franks
hearing was not warranted because Maglio failed to make a
"substantial showing" that he could satisfy the materiality prong
of the analysis.
2. Suppression Hearing
Finally, as to Maglio's request for an evidentiary
hearing on his suppression motion, our review is for abuse of
discretion. See United States v. Maldonado-Peña, 4 F.4th 1, 23
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(1st Cir. 2021). Generally, a defendant must show "that material
facts are in doubt or dispute, and that such facts cannot reliably
be resolved on a paper record -- most critically, he must show
that there are factual disputes which, if resolved in his favor,
would entitle him to the requested relief." Id. (quoting United
States v. Ponzo,
853 F.3d 558, 572 (1st Cir. 2017)) (internal
quotation marks and additional citations omitted). On appeal,
Maglio asserts that the district court should have held an
evidentiary hearing to resolve (1) the exact position from which
Lepro surveilled the property; and (2) whether Albuquerque
obtained the marijuana from Maglio or 130 Grove Street.4
Maglio argues that it is important to know from where
Lepro surveilled his property because if Lepro had trespassed on
the property, Lepro could have committed a warrantless search under
the Fourth Amendment. In support of his request for an evidentiary
hearing on this point, however, Maglio points to nothing in the
record that suggests that Lepro was not where he was allowed to
be. He merely argues that Lepro's exact location is unknown, which
is insufficient by itself to show that "material facts are in doubt
or dispute." Id. We thus do not find that the district court
4 As to the need for an evidentiary hearing on the source of
the marijuana possessed by Albuquerque, we alternatively deem the
argument waived because it was not made to the district court.
See United States v. Rodrigues, 850 F.3d 1, 13 n.6 (1st Cir. 2017).
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abused its discretion by denying Maglio's request for an
evidentiary hearing on this ground.
We also conclude that the district court did not abuse
its discretion when it denied Maglio's request for an evidentiary
hearing to determine where Albuquerque obtained the marijuana, as
resolution of that issue in Maglio's favor would not have entitled
him to suppression even if Albuquerque had obtained the marijuana
from someone other than Maglio.
Accordingly, we find Maglio's various motions that
ultimately sought to suppress the evidence seized from his
residence were correctly denied.
III. CONCLUSION
For the foregoing reasons, Maglio's conviction is
Affirmed.
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