*Of the Northern District of California, sitting by

designation.

United States Court of Appeals

For the First Circuit

_________________

No. 01-2762

UNITED STATES OF AMERICA,

Appellant,

v.

JEFFREY P. BARNARD,

Defendant - Appellee.

_____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. George Z. Singal, U.S. District Judge]

_____________________

Before

Torruella and Lipez, Circuit Judges,

and Schwarzer,* Senior U.S. District Judge

______________________

F. Mark Terison, Assistant U. S. Attorney, and Paula D.

Silsby, United States Attorney, appear on brief for appellant.

Marvin H. Glazier on brief for appellee.

_______________

August 14, 2002

_______________
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SCHWARZER, Senior District Judge. Defendant Jeffrey P.

Barnard was charged in a single-count indictment with being a

felon-in-possession of firearms, in violation of 18 U.S.C.

§ 922(g)(1). He moved to suppress evidence of firearms seized in

a warrant search, contending that the warrant lacked sufficient

information to support a finding of probable cause. The district

court granted the motion on the papers without hearing. United

States v. Barnard, 172 F. Supp. 2d 207 (D. Me. 2001). Following

entry of the suppression order, the government sought

reconsideration, arguing the applicability of the good faith

exception under United States v. Leon, 468 U.S. 897 (1984). The

court denied the motion, and the government timely appealed. We

have jurisdiction pursuant to 18 U.S.C. § 3731 and now reverse.

FACTUAL BACKGROUND

On December 1, 2000, Detective John Glidden of the

Millinocket Police Department obtained a warrant to search

defendant's residence in Millinocket, Maine. The supporting

affidavit provided the following information. 

Detective Glidden received two reports from other law

enforcement personnel. First, in a conversation on July 27, 2000,

Probation Officer Paul Kelly conveyed information from a “very

reliable” source (“source”) that defendant owns a .22 caliber rifle

and may also have another firearm at his 22 Kelly Lane residence

and that if police went to defendant’s residence there would be a
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shooting. Second, on November 30, 2000, Sergeant Donald Bolduc

passed along information from a confidential informant (“CI”) whom

Bolduc believed to be “reliable” and who was working with the

Millinocket Police Department for no consideration. The CI

reported having seen an SKS assault rifle and a .22 caliber rifle

the last time he was at defendant’s home on November 13 or 14,

2000. The CI stated that defendant had purchased the SKS

approximately four months earlier from Jason Hartley, a resident of

Millinocket. He further stated that defendant had threatened

people, including him, with the SKS and that defendant kept the

weapon beside his bed while he slept. Finally, the CI stated that

defendant was a felon. 

The affidavit further stated that on November 30, 2000,

Detective Glidden ran a criminal records check on defendant that

showed four prior convictions for possessing a firearm after being

convicted of a felony, all within five years preceding the search.

Finally, Detective Glidden stated that he had been a

police officer for eleven years during which time he had written

many search warrants and investigated several cases involving

illegal possession of firearms. In his experience, people who own

firearms usually kept them at their residence. 

A justice of the peace (“issuing justice”) issued the

search warrant, and police personnel executed it on December 3,

2000. The search apparently yielded three firearms in defendant’s
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possession, including a .22 caliber rifle and an SKS assault rifle.

DISCUSSION

A. Standard of Review

We review de novo the district court’s “ultimate

determination of whether a given set of facts constituted <probable

cause.'” United States v. Zayas-Diaz, 95 F.3d 105, 111 n.6 (1st

Cir. 1996). Any factual findings made by the district court are

reviewed for clear error. Id. In determining the sufficiency of

an affidavit, we consider whether the “totality of the

circumstances” stated in the affidavit demonstrates probable cause

to search the premises. United States v. Khounsavanh, 113 F.3d

279, 283 (1st Cir. 1997). We examine the affidavit in “a

practical, common-sense fashion” and accord “considerable deference

to reasonable inferences the [issuing justice] may have drawn from

the attested facts.” Zayas-Diaz, 95 F.3d at 111 (internal

quotations omitted). “Under the ‘probable cause’ standard, the

‘totality of the circumstances’ disclosed in the supporting

affidavits must demonstrate ‘a fair probability that contraband or

evidence of a crime will be found in a particular place.’” Id.,

(quoting Illinois v. Gates, 462 U.S. 213, 238 (1983)). In a

doubtful or marginal case, the court defers to the issuing

magistrate’s determination of probable cause. Id.

B. Analysis

Where an affidavit relies on the reports of unnamed
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informants, it must provide some information upon which the issuing

justice can assess the credibility of the informant’s information.

We have adopted a nonexhaustive list of factors that a reviewing

court will consider in a probable cause determination based on

information from an informant. These include:

whether an affidavit supports the probable

veracity or basis of knowledge of persons

supplying hearsay information; whether

informant statements are self-authenticating;

whether some or all of the informant’s factual

statements were corroborated wherever

reasonable and practicable . . .; and whether

a law enforcement affiant included a

professional assessment of the probable

significance of the facts related by the

informant based on experience or expertise. 

Khounsavanh, 113 F.3d at 284 (internal quotations omitted); see

also Zayas-Diaz, 95 F.3d at 111. “None of the factors is

indispensable; thus, stronger evidence on one or more factors may

compensate for a weaker or deficient show on another.” Zayas-Diaz,

95 F.3d at 111.

1. Law enforcement’s assertions of reliability

We turn first to Sergeant Bolduc’s assertion that he

believed the CI to be “reliable.” A mere assertion of reliability

without any information regarding the basis for the officer’s

belief, such as past tips leading to arrests, is entitled to only

“slight” weight. Khounsavanh, 113 F.3d at 286. However, Bolduc

not only gave his estimate of the CI’s reliability but backed it up

with information that the CI was working for the department for no
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consideration. This information at least provided some assurance

of reliability. Unlike an anonymous tipster, the CI was known to

the police and could be held responsible if his assertions proved

inaccurate or false. Florida v. J.L., 529 U.S. 266, 270 (2000)

(citing Adams v. Williams, 407 U.S. 143, 146-47 (1972)). 

2. Informant’s basis of knowledge

The credibility of an informant is enhanced to the extent

he has provided information that indicates first-hand knowledge. 

See United States v. Taylor, 985 F.2d 3, 6 (1st Cir. 1993) (citing

United States v. Caggiano, 899 F.2d 99, 102-03 (1st Cir. 1990)

(“reliability of informant enhanced if detailed and derived from

informant’s personal observation rather than hearsay”)); see also

Gates, 462 U.S. at 234 (stating that the informant’s “explicit and

detailed description of alleged wrongdoing, along with a statement

that the event was observed first-hand entitles the tip to greater

weight than might otherwise be the case”). Here, the CI stated

that he saw the two firearms at defendant’s house and identified

the types of guns. He also stated that defendant had threatened

him with the SKS. This first-hand information provided a link

between the illegal activity observed and the place to be searched.

It demonstrated the CI’s knowledge of concealed illegal activity as

opposed to easily knowable, nonincriminating facts. See

Khounsavanh, 113 F.3d at 284. This, in turn, allowed the

allegation of illegal activity to be corroborated. J.L., 529 U.S.
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at 272 (emphasizing that information must be reliable in its

assertion of illegality as opposed to nonincriminating facts).

These first-hand details provide some assurance of reliability.

There is no indication of personal knowledge for the

CI’s further statements that (1) defendant had purchased the SKS

from Jason Hartley four months previously, (2) defendant slept with

the SKS by his bed, and (3) defendant was a felon. While these

statements are double hearsay, they need not be disregarded because

the information conforms to the CI’s first-hand information, which

was substantially corroborated. See Gates, 462 U.S. at 244-45

(involving double hearsay) (“It is enough, for the purposes of

assessing probable cause, that corroboration through other sources

of information reduced the chances of a reckless or prevaricating

tale, thus providing a substantial basis for crediting the

hearsay.” (internal quotations omitted)). 

3. Corroboration

The affidavit provided two sources of corroboration:

Probation Officer Kelly’s source’s report and Detective Glidden’s

investigation. We must determine whether the corroboration made it

sufficiently likely that the issuing justice could have concluded

that the crucial part of the CI’s story–that defendant, a felon,

was storing at least one firearm at his home–was true. See

Khounsavanh, 113 F.3d at 284. We note that the “risk that an

informant is lying or in error need not be wholly eliminated.” Id.
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Instead, we must be confident that the likelihood of lying or an

inaccurate informant is sufficiently reduced by corroborated facts

and observation. Id.

We first consider the cross-corroboration provided by

Probation Officer Kelly’s source. The district court rejected the

government’s contention that the information provided by Kelly’s

source cross-corroborated the report of Bolduc’s CI. The court

found that the affidavit provided so little information about

either informant that it is impossible to determine whether the two

are actually different people, meaning that the two reports could

not corroborate each other. Barnard, 172 F. Supp. 2d. at 211.

We disagree. First, the affidavit’s description shows

that Detective Glidden understood that they were two people. He

referred to the probation officer’s source as a “reliable source”

and “[t]his subject,” whereas, he referred to the sergeant’s source

as “confidential informant” or “CI.” Second, the informants

approached two different authorities, one a probation officer and

the other a police officer, who perform different functions in the

criminal justice system and are thus likely to have contact with

different individuals. Third, the CI provided information that the

source did not supply, namely, that defendant was a felon, that he

slept with an SKS assault rifle next to his bed, and that he had

threatened people, including the CI, with the SKS. This additional

information suggests that the CI was closer to defendant than the
1We note that this issue was raised by the court sua sponte,

not having been raised in the briefing to the court. 

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source. Fourth, both the government and the defense understood the

affidavit to refer to two people as evidenced by their papers

below.1 For these reasons, we conclude that in examining the

affidavit in a “practical, common-sense fashion” the issuing

justice could reasonably infer the existence of two informants.

See Zayas-Diaz, 95 F.3d at 111; United States v. Garcia, 983 F.2d

1160, 1167 (1st Cir. 1983). 

The source’s account corroborates the CI’s allegation

that defendant was in possession of a .22 caliber rifle and

possibly another firearm at his residence. The source also warned

that a shooting would occur if police went to defendant’s

residence. This information dovetails with the CI’s statement that

defendant had threatened him and others with the SKS. As with the

CI’s report, it is relevant that the source’s account identified

criminal activity, i.e., defendant’s possession of the .22 rifle.

Detective Glidden’s criminal background check provided

further corroboration. See Taylor, 985 F.2d at 6. His

investigation corroborated the CI’s allegation that defendant was

a known felon. Taken together, the source’s account and Detective

Glidden’s investigation provide substantial corroboration for the

CI’s crucial allegation of criminal conduct by defendant at his

home. See Khounsavanh, 113 F.3d at 284; see also Taylor, 985 F.2d
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at 6 (holding that an informant’s very detailed and specific

account was corroborated where law enforcement simply conducted a

criminal background check).

4. Law enforcement’s professional assessment

Finally, the issuing justice could credit the law

enforcement affiant’s experience and pertinent expertise in

evaluating the authenticity of the informant’s description of the

target’s modus operandi. Taylor, 985 F.2d at 6; see also United

States v. Ortiz, 422 U.S. 891, 897 (1975) ([O]fficers are entitled

to draw reasonable inferences from [] facts in light of their

knowledge of the area and their prior experience . . . .”). Here,

Detective Glidden attested that during his eleven years' service on

the force, he had prior experience investigating illegal firearm

possession cases that had resulted in the seizure of the firearm

and the felon’s arrest. Based on his experience, training, and

conversations with other experienced officers, Detective Glidden

stated that individuals who own guns generally keep them at their

residences. In the eyes of the issuing justice, these statements

could have boosted the reliability of the CI’s information that

defendant kept two firearms at his home. See Taylor, 985 F.2d at

6.

CONCLUSION

We conclude that “[t]aken together, these facts were

sufficient to give the [issuing justice] a ‘substantial basis’ upon
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which to conclude that there was a ‘fair probability’” that the

firearms would be found at defendant’s home. Khounsavanh, 113 F.3d

at 286 (citing Gates, 462 U.S. at 238).

Reversed.