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United States v. Rivera

United States Court of Appeals, First Circuit

June 9, 2016

RANDY RAY RIVERA, Defendant, Appellee.


          David B. Hirsch, for appellant.

          Katharine A. Wagner, Assistant United States Attorney, with whom Carmen M. Ortiz, United States Attorney, was on brief, for appellee.

          Before Torruella, Lipez, and Thompson, Circuit Judges.

          THOMPSON, Circuit Judge.

         Setting the Stage

         Randy Ray Rivera pled guilty to being a felon in possession of a firearm. See 18 U.S.C. § 922(g)(1). His conditional plea reserved the right to appeal from the district judge's order denying his motion to suppress evidence seized from his home - a seizure authorized by a warrant issued by the same judge. Rivera had argued below that the affidavit DEA special agent John Barron submitted in support of the application failed to establish probable cause because it did not provide an adequate nexus between his drug dealing and his house.[1] Rivera had also asked the judge for an evidentiary hearing - dubbed a "Franks hearing, " after Franks v. Delaware, 438 U.S. 154 (1978) - so that he could challenge the truthfulness of Barron's affidavit statements. But the judge concluded that even if the affidavit failed to supply probable cause (a question the judge saw no need to decide), Rivera's suppression bid failed because Barron had obtained the warrant in good faith. See United States v. Leon, 468 U.S. 897, 922 (1984) (discussing how evidence seized in good faith, in reliance on a warrant later invalidated, may still be admissible). And the judge also concluded that Rivera had failed to make the substantial showing of probable falsity on Barron's part, thus making a Franks hearing unnecessary.

         An unhappy Rivera appeals both aspects of the judge's ruling. We affirm, though on the first issue we think law enforcement actually had probable cause for the search - which removes any need to invoke the good-faith exception.

         Probable-Cause Issue


         We cite only those facts necessary to put the probable-cause issue into workable perspective - presenting them, of course, in the light most favorable to the suppression ruling. See, e.g., United States v. McGregor, 650 F.3d 813, 823–24 (1st Cir. 2011); United States v. Owens, 167 F.3d 739, 743 (1st Cir. 1999).

         Back in 2012, a Vermont state trooper stopped an SUV for a traffic infraction. The driver, Shawn Kivela, consented to a vehicle search. And that search turned up about 5 ounces of what turned out to be crack cocaine.

         The trooper arrested and Mirandized Kivela and his passengers, Randy and Star Gaboriault. After the trio waived their Miranda rights, a series of police interviews ensued. Among other juicy tidbits, law enforcement learned from Kivela that he and the Gaboriaults had driven to Springfield, Massachusetts to meet with a "Puerto Rican male" known as "Melvin" or "Randy" (we'll use

          "Randy" for simplicity) at a third-floor apartment at 6 Beaumont Street - a very sparsely furnished apartment that "Randy" used as a drug-stash house, not (apparently) as a home. Kivela said that the Gaboriaults had bought about 5 ounces of crack from "Randy" too - paying him $7, 000, according to Star Gaboriault - and body-cavity searches of the Gaboriaults uncovered that crack amount. Kivela added that he had been buying crack from "Randy" on a weekly basis since 2009. The Gaboriaults routinely accompanied him on these drug-buying sprees - Kivela would score about 3 or 4 ounces of crack per visit, while the Gaboriaults would score between 6 and 9 ounces. Kivela and "Randy" would communicate by text, Kivela said. And he identified a photo of Rivera as "Randy."

         Rivera, it turns out, was no stranger to the Springfield police - a criminal-record check disclosed 13 prior narcotics convictions plus a prior ammunition-possession conviction. He lived at 56 Merwin Street (a street in Springfield) with his girlfriend Yayaira Guzman, a confidential source ("CS") told the police.[2] Registry-of-deeds records showed that Guzman solely owned the Merwin-Street property. The CS also identified some cars (registered to Guzman at the Merwin-Street address) - including a white Infiniti FX-35 - that Rivera used. A police-surveillance team regularly saw Rivera and Guzman entering and leaving the Merwin-Street property, and routinely saw the cars described by the CS at that address as well.

         Most helpfully for the police, the CS eventually agreed to participate in a controlled buy of crack from Rivera. On the day of the buy, but before the buy went down, a DEA agent spotted the Infiniti FX-35 at 56 Merwin Street - Rivera's home - at 9 a.m. and again at 1:45 p.m. Around 2:47 p.m., the CS phoned Rivera to say that he would be at 6 Beaumont Street - Rivera's stash house - shortly. The DEA saw the Infiniti drive away from Rivera's home around 2:50 p.m., roughly 3 minutes after the CS's call. At about 2:56 p.m., Rivera texted the CS to ...

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