United States Court of Appeals 

For the First Circuit 

No. 15-1869 

UNITED STATES OF AMERICA, 

Appellee, 

v. 

JOHN FLEURY, 

Defendant, Appellant. 

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF MASSACHUSETTS 

[Hon. Denise Jefferson Casper, U.S. District Judge] 

Before 

Torruella, Lipez, and Barron, 

Circuit Judges. 

Christine DeMaso, Assistant Federal Public Defender, Federal 

Public Defender Office, was on brief, for appellant. 

Mark T. Quinlivan, Assistant United States Attorney, with 

whom Carmen M. Ortiz, United States Attorney, was on brief, for 

appellee. 

December 2, 2016 
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TORRUELLA, Circuit Judge. John Fleury appeals the 

United States District Court for the District of Massachusetts's 

denial of his motion to suppress the fruits of a search conducted 

at his residence: a pistol and ammunition. Fleury was charged 

with one count of being a felon in possession of a firearm and 

ammunition, in violation of 18 U.S.C. § 922(g)(1). After the 

district court denied his motion to suppress, Fleury pleaded 

guilty, reserving his right to challenge the denial of his motion 

to suppress. Fleury argues that the affidavit submitted by 

Special Agent Eric Kotchian of the Bureau of Alcohol, Tobacco, and 

Firearms (the "ATF") supporting an application for a warrant to 

search his house was misleading because (1) the affidavit 

overstated a confidential informant's (the "CI") record of 

providing information to the police; (2) it misrepresented the 

CI's drug use; and (3) it did not include information suggesting 

that Fleury might move the gun from his residence. 

Although aspects of the affidavit are troubling, because 

the affidavit contained information from a recording that 

supported probable cause without relying on information provided 

by the CI, we affirm. 
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I. BACKGROUND 

A. Factual Background 

On February 4, 2014, the Peabody Police Department 

responded to the report of a home invasion in Peabody, 

Massachusetts. Agent Kotchian also responded to the scene. The 

residents reported that the intruders had stolen a Ruger 9mmcaliber handgun and a diamond ring, and the Peabody Police 

Department requested Agent Kotchian's assistance with the 

investigation of the home invasion.

During the investigation, the Peabody Police Department 

obtained surveillance footage showing a male individual believed 

to be responsible for the home invasion, and officers distributed 

images from the footage to local media outlets. In March of 2014, 

the Peabody Police Department received information from an 

anonymous tipster identifying the male in the images as the CI. 

After further investigation, the Peabody Police Department 

obtained a search warrant for the CI's residence, and during the 

search, the CI agreed to work as an informant, telling officers, 

including Agent Kotchian, that he was aware of a murder-for-hire 

plot and knew a drug dealer that he could set up. 

On April 8, 2014, Agent Kotchian and a Peabody detective 

met with the CI. At the meeting, the CI admitted that he 

participated in the home invasion along with three other people: 
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Joseph LaFratta, Richard Kenney, and Fleury. The CI provided 

officers with information about each of the other three 

participants. Following the interview, officers independently 

corroborated information about Fleury, including contact 

information, his place of residence, the fact that Fleury had 

recently been arrested, and the circumstances surrounding his 

arrest. The CI also identified a photo of Fleury. 

Officers also corroborated information that the CI 

provided about the Peabody home invasion, including that a handgun 

had been stolen, that the Peabody home had a keypad on the front 

door and several locks on the rear door, and the location of the 

jacket the CI had worn during the home invasion, which Agent 

Kotchian subsequently found in a search. Finally, the CI gave 

Agent Kotchian information about a potential murder-for-hire plot, 

and Agent Kotchian was able to confirm some of the information. 

In addition to providing information, the CI wore a 

recording device at two meetings with other participants in the 

home invasion. One of those meetings, on April 21, 2014, included 

Fleury and LaFratta. During that meeting, Fleury argued on the 

phone with a person Fleury identified as his girlfriend, who lived 

with him. After one call, Fleury stated: "The fucking gun's in 

the house brother, but there's no clip, I took the clip out last 

time and left it there. . . . [I]t's kinda hidden, . . . last time 
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I left, I left on the bike . . . . So I took the clip out, I just 

took that . . . ." To which LaFratta replied: "Why do you even 

have that there? Get that out of there . . . ." Following 

Fleury's arguments with his girlfriend, the CI warned Fleury to 

"go away for a couple of days" or to "stay at my house," and Fleury 

discussed staying at his mother's place, and he moved a painting 

and his bike from his residence.

The April 21, 2014 recording also recorded the CI 

discussing drugs. In it, the CI stated that he had "been 

struggling to get clean," had "used three times in the past three 

weeks," and that he was "going to do this bump." In addition, the 

CI had told Agent Kotchian on multiple occasions that he was "using 

Suboxone that he was obtaining from people on the street."1

On May 6, 2014, the CI reported that he had met with 

Fleury on April 25, 2014, and that Fleury had removed a pistol 

from a closet in Fleury's residence and put it into a shoulder 

holster that Fleury was wearing. 

On May 9, 2014, Agent Kotchian applied for a search 

warrant for Fleury's house, seeking "firearms, ammunition, 

documents and other evidence." Agent Kotchian submitted an 

affidavit in support of the application. In the affidavit, Agent 

 

1 Suboxone is a prescription medication that is used to block 

the effect of withdrawal from opiate addiction. 
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Kotchian made the following averments concerning the CI's 

reliability: 

The CI has provided accurate, truthful, and reliable 

information to law enforcement personnel in the past. 

Information provided by the CI has led to the seizure 

of evidence. The CI has provided information during 

this investigation, which has been corroborated by 

law enforcement officers via further investigation 

and the use of investigative techniques, such as the 

use of electronic surveillance, while the CI has met 

with identified suspects, including FLEURY. 

Agent Kotchian also made averments concerning the CI's drug use 

and criminal history: 

The CI has a criminal history that includes 

convictions for violations of the law that include, 

but are not limited to, the following: Breaking & 

Entering in the Nighttime, Open and Gross Lewdness, 

Larceny Over $250.00 and Assault & Battery with a 

Dangerous Weapon. The CI told me that he/she has both 

used and sold illegal drugs in the past. 

The affidavit then summarized (1) information concerning 

the CI's April 25, 2014 meeting at Fleury's residence, in which 

Fleury removed a pistol from his closet and put it into "a shoulder 

holster worn by Fleury," and (2) evidence obtained from the CI's 

recording of his April 21, 2014 meeting with Fleury and LaFratta, 

including quoting the following excerpt: 

FLEURY: "Oh, shit." 

CI: "What?" 

FLEURY: "The fucking gun is in the house. But 

there's no clip. I took the clip out last 

time and left it (the gun) there. Ah, she 
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might . . . (Unintelligible)[.] My prints 

are all over it. Oh . . . ." 

OTHER IND: "Would she be smart enough to pick it up 

with a towel? 

FLEURY: "No. She can't pick it up. It's kind of 

hidden, but . . . . See, the last time I 

left, I left on the bike. When you were 

supposed . . . So, I took the clip out and 

just took that (the clip). That way she 

can't do nothing with it. You know what I 

mean? And I just . . . I left it (the 

clip) at my buddy's. 

Finally, Agent Kotchian averred, "based on [his] training and 

experience as an ATF Special Agent," that persons who have had a 

firearm in their residence over the course of several weeks are 

likely to still have the firearm in their residence after two 

weeks. 

Agent Kotchian's affidavit did not quote LaFratta's 

recorded admonishment to Fleury on April 21, 2014: "Why do you 

even have that [gun] there? Get that out of there . . . ." Nor 

did it explain that the CI did not report his April 25, 2015 

meeting with Fleury until May 6, 2014. It also did not include 

information about the CI's drug use during the investigation or 

some of his prior convictions, including identity theft and creditcard fraud convictions in 2004. Finally, the affidavit did not 

state that the CI first had contact with officers just one month 

before Agent Kotchian drafted the application.
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B. Procedural History 

On May 9, 2014, a magistrate judge authorized a warrant 

to search Fleury's residence in Lynn, Massachusetts based on Agent 

Kotchian's affidavit. Officers executed the search warrant on 

May 12, 2014. They discovered a Walther Model PPK/S .380 caliber 

pistol, a shoulder holster, and other potential evidence. Fleury 

was indicted on June 19, 2014 of being a felon in possession of a 

firearm, in violation of 18 U.S.C. § 922(g)(1). 

Fleury filed a motion to suppress the fruits of the 

search and for a hearing pursuant to Franks v. Delaware, 438 U.S. 

154 (1978). The district court denied the motion in a written 

opinion entered February 11, 2015. On March 19, 2015, after 

discovery related to the affidavit, Fleury renewed his motion to 

suppress. The district court held a three-day Franks hearing, and 

on April 27, 2015, the district court orally denied Fleury's 

renewed motion to suppress. Following the district court's denial 

of his motion to suppress, Fleury entered a conditional guilty 

plea, reserving his right to appeal the denial of his motion to 

suppress. The district court sentenced Fleury to fifty-five 

months' imprisonment. 

II. ANALYSIS 

We review probable cause determinations de novo. United 

States v. McLellan, 792 F.3d 200, 208 (1st Cir. 2015). In 
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conducting this review, "[o]ur task, like that of the magistrate 

judge and district court, is simply to make a practical, commonsense decision whether, given all the circumstances, there is a 

fair probability that contraband or evidence of a crime will be 

found in a particular place." Id. (ellipsis and internal 

quotation marks omitted) (quoting United States v. Brunette, 256 

F.3d 14, 16 (1st Cir. 2001)). We review the district court's 

antecedent factual findings for clear error. United States v. 

Lanza-Vázquez, 799 F.3d 134, 141 (1st Cir. 2015). 

"[A]n affidavit supporting a search warrant is 

presumptively valid." McLellan, 792 F.3d at 208 (quoting United 

States v. Gifford, 727 F.3d 92, 98 (1st Cir. 2013)). To rebut the 

presumption, Fleury must show by a preponderance of the evidence 

that (1) Agent Kotchian made a false statement or omission 

"knowingly and intentionally or with reckless disregard for the 

truth," in his affidavit, id., and (2) the affidavit would be 

insufficient to establish probable cause without any false 

statement(s) and with any omitted statement(s). United States v. 

Rigaud, 684 F.3d 169, 173 (1st Cir. 2012). There is probable 

cause if the affidavit, as reformed if necessary, shows "a fair 

probability that contraband or evidence of a crime will be found 

in a particular place." United States v. Tanguay, 787 F.3d 44, 

50 (1st Cir. 2015). 
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Although literally true, Agent Kotchian's affidavit was 

misleading because he omitted material information. He used stock 

phrases, such as "provided . . . information to law enforcement 

personnel in the past" that "led to the seizure of evidence," that 

imply the CI had a long relationship with law enforcement that had 

led to evidence against others in multiple cases. In fact, Agent 

Kotchian was aware that the CI had no history as an informant prior 

to his work with Agent Kotchian following the home invasion. The 

CI's actions in the one month following the home invasion may have 

convinced Agent Kotchian that the CI could provide reliable 

information, but Agent Kotchian needed to accurately describe the 

CI's actions so that the magistrate could form his own opinion. 

See Illinois v. Gates, 462 U.S. 213, 240 (1983) ("The essential 

protection of the warrant requirement of the Fourth Amendment . . . 

is in requiring that the usual inferences which reasonable men 

draw from evidence be drawn by a neutral and detached magistrate 

instead of being judged by the officer engaged in the often 

competitive enterprise of ferreting out crime." (brackets 

omitted)). 

Agent Kotchian also averred that the CI had "used . . . 

illegal drugs in the past." But Agent Kotchian had strong 

evidence, from the April 21, 2014 recording, that the CI used drugs 

during that meeting and was struggling to stay off drugs, and he 
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knew that the CI was buying a prescription drug "on the street." 

Again, Agent Kotchian's affidavit did not disclose information 

that the magistrate needed to effectively judge the CI's 

credibility behind a stock phrase that is literally true, but 

misleading when given a "common-sense" interpretation. See United 

States v. Jewell, 60 F.3d 20, 22 (1st Cir. 1995) ("The affidavit 

is to be interpreted in a common-sense rather than a hypothetical 

or hypertechnical manner."). 

We need not decide, however, whether Agent Kotchian 

acted intentionally or recklessly in omitting information from the 

affidavit. Fleury's statement in the April 21, 2014 recording 

that he had a gun at his residence was sufficient to establish 

probable cause, at least in conjunction with Agent Kotchian's 

averment that persons who recently had a firearm in their residence 

over the course of several weeks are likely to still have the 

firearm in their residence after two weeks. Any value added by 

information that the CI provided, including the CI's account of 

his April 25, 2014 meeting with Fleury, was merely cumulative. 

Fleury's complaints -- with one exception discussed below -- go to 

the CI's credibility, but the April 21, 2014 recording's probative 

value did not rely on the CI's credibility. 

Fleury argues that the affidavit also omitted 

information tending to show that Fleury had an incentive to move 
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the gun from his residence. Fleury points to the troubled 

relationship with his girlfriend, which is evident throughout the 

April 21, 2014 recording, and argues that the record shows that 

Fleury was concerned that she would report the gun to the police. 

Fleury also refers to LaFratta's statement that Fleury should move 

the gun, the CI's suggestion that Fleury should stay with the CI, 

Fleury's discussion about staying with his mother, and the fact 

that Fleury moved a painting and his bicycle to his mother's house. 

Simply put, Fleury argues that, by May 9, 2014, when Agent Kotchian 

sought the search warrant, the information recorded at the 

April 21, 2014 meeting was stale. 

We disagree. Fleury did discuss staying with either his 

mother or the CI, but neither indicated that Fleury could or should 

bring the gun. LaFratta told Fleury to move the gun, but Fleury 

himself never indicated that he had or would move the gun, either 

in this part of the recording or in any other. 

Even taking into account the information showing that 

Fleury was fighting with his girlfriend and might stay somewhere 

other than their joint residence, there was "sound reason to 

believe" that a search of Fleury's residence would result in 

evidence that he possessed a gun. See McLellan, 792 F.3d at 209. 

"Probability is the touchstone" of probable cause. Id. It exists 

where "a man of reasonable caution" would believe "that an offense 
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has been or is being committed and that evidence bearing on that 

offense will be found in the place to be searched." United States 

v. Clark, 685 F.3d 72, 75 (1st Cir. 2012) (quoting Safford Unified 

Sch. Dist. No. 1 v. Redding, 557 U.S. 364, 370 (2009)). Here, 

Fleury's recorded statements that he had a gun at his residence 

established probable cause. 

III. CONCLUSION 

For the foregoing reasons, the district court's denial 

of Fleury's motion to suppress is affirmed. 

Affirmed.