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United States v. Gifford

United States Court of Appeals, First Circuit

August 13, 2013

UNITED STATES OF AMERICA, Appellant,
v.
PAUL GIFFORD, Defendant, Appellee

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE HON. PAUL J. BARBADORO, U.S. DISTRICT JUDGE

Seth R. Aframe, Assistant United States Attorney, with whom John P. Kacavas, United States Attorney, was on brief for appellant.

Behzad Mirhashem, of the Federal Defender Office, with whom Jeffrey S. Levin, was on brief for appellee.

Before Lynch, Chief Judge, Torruella and Howard, Circuit Judges.

TORRUELLA, Circuit Judge.

This appeal concerns the sufficiency of a search warrant affidavit in establishing probable cause to search defendant-appellee Paul Gifford's ("Gifford") home for a marijuana grow operation. The United States Government ("Government") challenges the district court's suppression of evidence seized from Gifford's home, arguing that the search warrant affidavit did not omit information material to a probable cause determination. Since we find that the search warrant in fact contained reckless material omissions, and the properly reformed search warrant affidavit failed to establish probable cause, we affirm the district court in all respects.

I. Background

A. Factual Background

On February 14, 2011, a New Hampshire state court issued a warrant to search Gifford's home relying on a supporting affidavit submitted by New Hampshire State Trooper First Class Steven D. Tarr ("Trooper Tarr"). We quote at length from Trooper Tarr's affidavit, based in part on information received from an unnamed informant, [1] as the core issue on appeal concerns its sufficiency for establishing probable cause:

3. During the month of November 2010, the affiant received information reference [sic] the possible manufacture of the controlled drug marijuana at the following address: 46 South Road; [Town omitted], New Hampshire. By a: Paul Gifford [DOB omitted].
This information was provided through a reliable confidential informant with knowledge of Gifford's personal practices as well as knowledge of the inside of the residence. According to the confidential informant, Gifford is a landscaper by trade but does not work on a regular basis. The informant explained that Gifford considers growing marijuana to be his full time occupation and means by which to earn money. Additionally, information received from this informant on February 9, 2001 revealed that Gifford is currently in the process of growing marijuana at the residence and has leftover, finished marijuana from an autumn indoor grow within the residence.
4. This affiant gathered information relative to the resident of the home at that address through Department of Motor Vehicle [sic] and Town of [Town omitted], NH records. I learned that the following individual resides at that address: Paul Gifford [DOB: omitted].
. . . .
6. On January 19, 2011[, ] this affiant received a copy of a police report from the [Town omitted] Poilce [sic] Department that had been generated by Officer John Ventura. The report related to a home visit made to the residence by Officer Ventura and Lisa Tyler of Adult Protective Services. While Officer Ventura was at the residence to assist Adult Protective Services, he made contact with Gifford who met them at the front door of the residence and "quickly" shut the door behind him. Officer Ventura was "immediately overwhelmed by the strong odor of burnt marijuana coming from ...

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