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
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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 18 U.S.C. § 924(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, 438 U.S. 154 

(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 
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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 21 U.S.C. 

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

trafficking in violation of 18 U.S.C. § 924(c)(1)(A), and 

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

of 18 U.S.C. § 922(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. 
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Alexandre, No. 2:18-cr-00133-GZS, 2019 WL 1560424, 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, id. at *2; 

(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, id. at *3;

(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 
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(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," id.

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 
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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, 2019 WL 1560424, at *2 (quoting United States v. 

Barbosa, 896 F.3d 60, 69 (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 drugrelated activity could be found in the Target Residence." Id. at

*3 (quoting United States v. Silva, 742 F.3d 1, 9 (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 
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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. Id. 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, 2019 WL 1560424, at 

*2 (quoting Silva, 742 F.3d at 9); see, e.g., Zurcher v. Stanford 

Daily, 436 U.S. 547, 555-59, 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 
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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, 684 F.3d 169, 173 (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, id., 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 

1 The government contends that Alexandre waived this aspect 

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

2019 WL 1560424, 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.
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III.

For the foregoing reasons, we affirm the District 

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

a Franks hearing.