United States Court of Appeals

For the First Circuit

No. 12-2186

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]

Before

Lynch, Chief Judge,

Torruella and Howard, Circuit Judges.

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.

August 13, 2013
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:

1 During the motion to suppress hearing, the confidential

informant was identified as Gifford's brother-in-law, Donald

Desmond, Jr. However, none of the information pertaining to the

identification of the informant or his relationship to Gifford was

included in the search warrant affidavit.

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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 Paul's person." Later,

when allowed into the home, Officer Ventura

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again "detected the same odor of burnt

marijuana."

7. This affiant drove to 46 South Road, [Town

omitted], NH. I noted that the residence is a

large building with an attached barn. It is

located directly across the street from a

school.

8. During this investigation, this affiant

requested the power records from Unitil

Corporation utilities company for 46 South

Road, [Town omitted], NH. On November 23,

2010[,] Unitil Corporation was served with a

Subpoena for the electrical power records of

46 South Road, [Town omitted], NH. Using the

subpoena process, this affiant found that the

electric utility bill for this residence is

listed to Paul Gifford.

9. This affiant found that the electric usage

for the home appears to be exceptionally

higher than that of a home of a similar size. 

In fact, the electrical usage at the address

during the past sixteen months averages

approximately 3174.06 kilowatt hours per

billing cycle. During this period, the

residence used 2323.0 kilowatt hours during

the lowest consumption billing cycle and

4690.0 kilowatt hours during the highest

consumption billing cycle. A billing cycle

encompasses approximately one month.

10. This affiant also obtained electrical

power records from surrounding

residences/customers of Unitil through the

subpoena process. The electrical usage in

these homes was significantly lower than that

of 46 South Road. Unitil records revealed

that the residence of 34 South Road utilized

an average of 717.69 kilowatt hours per

billing cycle with a lowest consumption cycle

of 551.0 kilowatt hours and a highest

consumption of 1023.0 kilowatt hours. 

Similarly, the residence of 51 South Road

utilized an average of 861.19 kilowatt hours

per billing cycle with a lowest consumption

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cycle of 467.0 kilowatt hours and a highest

consumption of 1554.0 kilowatt hours.

11. As is evidenced above, the residence of

46 South Road, [Town omitted], NH utilized

over three times the average electrical

consumption per billing cycle than its

neighbors. [Chart omitted]. Investigation

has revealed that the residence at 46 South

Road is heated by oil. There are no hot tubs,

saunas or any other additional such items to

explain a higher than usual electrical usage.

12. Based upon this affiant's training and

experience, I know that high amounts of

electricity are needed by indoor cannabis

cultivators to power pumps, timers, heaters,

air conditioners, fans and other electrical

equipment as well as the 1000 watt lights

necessary to grow cannabis. A typical "grow

schedule" would show increasing then

decreasing electrical use in a 90 to 120 day

cycle unless the cultivator is "rotating"

young, juvenile and adult plants in an effort

to increase his yield. This would extend the

periods of high electrical use depending on

how many "rotations" of plants a grower has at

a given time.

The rest of the affidavit details Trooper Tarr's general knowledge

of marijuana grow operations.

The search warrant was executed on February 15, 2011. 

Based on the items seized from Gifford's home, he was charged in

the United States District Court for the District of New Hampshire

with manufacturing marijuana, possessing marijuana with the intent

to distribute, and possessing a firearm in furtherance of a drug

trafficking crime.

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B. Procedural History

Following Gifford's indictment, he filed a motion to

suppress the evidence seized at his home, arguing, inter alia, that

the search warrant affidavit lacked probable cause. Gifford

claimed that the warrant was facially insufficient to establish

probable cause. In the alternative, he argued that the affidavit

had material omissions, including that one of the mentioned

comparator houses for purposes of measuring electricity use was

substantially smaller than the target house.

The Government objected to Gifford's motion, but before

the district court could address it, Gifford and the Government

reached a plea agreement wherein the Government agreed to dismiss

the firearm count and Gifford agreed to a 48-month disposition on

the drug charges. However, Gifford withdrew his plea after the

district court challenged the agreed-upon disposition at

sentencing. Specifically, the district court stated that it

thought that a sentence of between 18 and 24 months was appropriate

given that the count driving the high sentence was the firearm

count, and if the defendant were to proceed to trial, it was

unlikely to impose a sentence of more than 60 months.

After Gifford withdrew his plea, he refiled his motion to

suppress. The district court convened a hearing on the motion. At

the hearing, the Government acknowledged that the affiant (1) knew

that one of the comparator houses, 34 South Road, was substantially

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smaller than the target house; (2) knew that 51 South Road was

similarly sized to the target house; and (3) did not include the

fact that 34 South Road was of a substantially smaller size in the

affidavit. The Government also conceded that the affiant knew that

a horse boarding business operated out of the Gifford home, but the

affiant claimed that he saw no signs of its operation when he drove

by the residence, even though a banner advertising the business

hung outside.2

 Based on these representations by the Government at

the hearing, the parties agreed that the court could rule on the

suppression issue on undisputed facts, without receiving live

testimony.

After hearing the parties' arguments, the district court

held that the suppression of the search of the target residence was

warranted under Franks v. Delaware, 438 U.S. 154 (1978), because

the affiant made a material omission from the search warrant

affidavit in reckless disregard for the truth.3 Specifically, the

2 At the hearing, Gifford proffered evidence that the horses'

frequent watering required electrically pumping several hundred

gallons of water every day, and that a large number of bucket

heaters were used to keep water from freezing. Further, fans were

used to circulate air in the barn, and depending on the season,

multiple electric space heaters or air conditioners were used to

heat or cool the farmhouse, which was poorly insulated. Finally,

Gifford offered evidence that his wife's mother, who was living

with them, was disabled and incontinent, requiring them to do

several loads of laundry in the washer and dryer on a daily basis.

3 The court declined to rule on the "close" issue of whether the

warrant failed on its face to establish probable cause, basing its

decision instead on the material omissions and misrepresentations

contained in the search warrant under Franks.

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court found that the affiant recklessly omitted from his affidavit

the fact that the comparator house at 34 South Road was one-third

the size of the target house. The district court found this

omission to be material because, in its view, if the information

about 34 South Road had been included in the affidavit, that

affidavit would have failed to establish probable cause for a

search. The court additionally observed that there were

insufficient indicia of reliability supporting the informant's tip

since very little information was provided about the informant.

Compounding the insufficiencies, the court continued, was

the fact that the affiant had not provided adequate corroborating

facts from his own investigation to permit a probable cause

finding. The statements in the affidavit regarding the marijuana

odor, it found, were not corroborative of the informant's tip

because they demonstrated only that burnt marijuana may have been

present, not that it was grown. The evidence of the electricity

consumption was rendered meaningless, the court stated, because the

omission of material information regarding the size of the

comparator home at 34 South Road would leave only the comparison

between the target house and 51 South Road. The court concluded

that the information showing that 51 South Road used substantially

less electricity than the target house was meaningless since there

could be numerous innocuous explanations for the variation in

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electricity usage having nothing to do with a marijuana grow

operation.

Since neither the odor nor the electricity consumption

corroborated the informant's tip, the court concluded that the

reformed affidavit -- including the omitted information -- lacked

probable cause. The district court thus issued an order

suppressing the evidence seized from Gifford's home. The

Government timely appealed the suppression order.

II. Discussion

The Fourth Amendment protects "[t]he right of the people

to be secure in their persons, houses, papers, and effects, against

unreasonable searches and seizures. . . ." U.S. Const. amend. IV. 

With limited exceptions, it requires police officers to secure a

search warrant supported by probable cause prior to effecting a

search or seizure. United States v. Paneto, 661 F.3d 709, 713 (1st

Cir. 2011). Probable cause exists when the totality of the

circumstances suggests that "there is a fair probability that

contraband or evidence of a crime will be found in a particular

place." United States v. Hicks, 575 F.3d 130, 136 (1st Cir. 2009)

(quoting United States v. Feliz, 182 F.3d 82, 86 (1st Cir. 1999)) 

(internal quotation marks omitted).

Information supporting probable cause for a warrant is

often set forth in an affidavit provided by a law enforcement

officer, as happened here. See United States v. Rigaud, 684 F.3d

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169, 173 (1st Cir. 2012). An affidavit supporting a search warrant

is presumptively valid. Id. But if a defendant makes a

"substantial preliminary showing that a false statement . . . with

reckless disregard for the truth[] was included by the affiant in

the warrant affidavit, and if the allegedly false statement is

necessary to the finding of probable cause, the Fourth Amendment

requires that a hearing be held at the defendant's request." 

Franks v. Delaware, 438 U.S. 154, 155-56 (1978).

For a warrant to be voided and the fruits of a search

excluded, the defendant must: (1) show that the affiant in fact

made a false statement or omission "knowingly and intentionally, or

with reckless disregard for the truth," (2) make this showing by a

preponderance of the evidence, and (3) show that, with the

recklessly omitted information added to the affidavit, the reformed

affidavit fails to establish probable cause. United States v.

Tzannos, 460 F.3d 128, 136 (1st Cir. 2006). An allegation is made

with "reckless disregard for the truth" if the affiant "in fact

entertained serious doubts as to the truth of the allegations or

where circumstances evinced obvious reasons to doubt the veracity

of the allegations in the application." Burke v. Town of Walpole,

405 F.3d 66, 81 (1st Cir. 2005) (quoting United States v. Ranney,

298 F.3d 74, 78 (1st Cir. 1999)) (internal quotation marks

omitted). "In the case of allegedly material omissions,

recklessness may be inferred where the omitted information was

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critical to the probable cause determination." Id. at 81-82

(internal quotation marks omitted).

Where the primary basis for a probable cause

determination is information provided by a confidential informant,

the affidavit must provide some information from which a magistrate

can credit the informant's credibility. United States v. Barnard,

299 F.3d 90, 93 (1st Cir. 2002). "[A] probable cause finding may

be based on an informant's tip so long as the probability of a

lying or inaccurate informer has been sufficiently reduced." 

United States v. Greenburg, 410 F.3d 63, 69 (1st Cir. 2005). We

apply a "nonexhaustive list of factors" to examine the affidavit's

probable cause showing, which include, among others: (1) whether

the affidavit establishes the probable veracity and basis of

knowledge of persons supplying hearsay information; (2) whether an

informant's statements reflect first-hand knowledge; (3) whether

some or all of the informant's factual statements were corroborated

wherever reasonable or practicable (e.g., through police

surveillance); and (4) whether a law enforcement affiant assessed,

from his professional standpoint, experience, and expertise, the

probable significance of the informant's provided information. 

United States v. Tiem Trinh, 665 F.3d 1, 10 (1st Cir. 2011).

We review a district court's legal conclusion that a

given set of facts constituted probable cause de novo, "whereas

factual findings are reviewed for clear error." United States v.

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Kearney, 672 F.3d 81, 88-89 (quoting United States v. McMullin, 568

F.3d 1, 5 (1st Cir. 2009)) (internal quotation marks omitted). In

the absence of a reckless omission, a search warrant is reviewed

with deference to the issuing magistrate, but allegations of

reckless omission "implicate the very truthfulness, not just the

sufficiency, of a warrant application." Burke, 405 F.3d at 82. 

Therefore, if such allegations prove to be true, we owe no

deference to a magistrate's decision because "'no magistrate will

have made a prior probable cause determination' based on the

correct version of the material facts." Id. (quoting Velardi v.

Walsh, 40 F.3d 569, 574 n.1 (2d Cir. 1994)).

We now turn to the questions directly on appeal: whether

the district court erred in finding the omissions in the search

warrant of Gifford's home material, and if the reformed search

warrant affidavit which includes the omitted material is sufficient

to establish probable cause.

A. Materiality of Omissions

The Government argues on appeal that the district court

erred in finding material the omission of information pertaining to

the size of the comparator's house at 34 South Road because, even

if the size of the house were added to the affidavit, or,

alternatively, the reference to the house were eliminated entirely,

the affidavit would still establish probable cause. This is

because, the Government claims, there was ample recognized indicia

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that the informant was sufficiently reliable and there was enough

corroborating information to support probable cause.

Specifically, the Government points to the affidavit's

description of the informant as "reliable," suggesting that the

affiant knew his identity and reducing the likelihood that the

informant was lying. The Government further suggests that a fact

included in the affidavit provided by the informant -- that the

defendant had stopped working as a landscaper to engage in fulltime marijuana production and that he was growing a new crop of

plants and storing leftover marijuana for an autumn harvest -- was

a "self-verifying detail" that is sufficiently specific that it was

likely obtained from personal observations or from a person's

statement to the informant that was against his penal interest. 

See United States v. Zayas-Díaz, 95 F.3d 105, 111 (1st Cir. 1996)

(self-authenticating statements may support a probable cause

determination). As corroboration for the informant's statements,

the Government points to the following: records obtained from

Unitil and the Department of Motor Vehicles ("DMV") confirming that

Gifford resided at 46 South Road; a police report of a local police

department visit to Gifford's home where the officer smelled burnt

marijuana on his person and inside the house; and Unitil

electricity records of Gifford's home indicating that electrical

usage therein was three times the rate of the similarly-sized house

at 51 South Road.

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We are not convinced by the Government's arguments. 

First, we do not agree that the information in the affidavit would

allow an issuing judge a sufficient basis for determining the

informant's reliability. While the factors enumerated in Tiem

Trinh are non-exhaustive, it nevertheless remains the case that

none of them would favor a reliability finding. Nothing in the

affidavit indicates the informant's basis of knowledge, for

example, on whether the informant just happened to view the grow

operation, heard about it as hearsay, or had direct, first-hand

knowledge of the grow operation in the Gifford home. See, e.g.,

Greenburg, 410 F.3d at 67 ("A specific, first-hand account of

possible criminal activity is a hallmark of a credible tip."). 

Additionally, the affiant makes no mention of any past history with

the informant to establish that informant's credibility. See,

e.g., United States v. Barnes, 492 F.3d 33, 37 (1st Cir. 2007)

(finding "ample additional evidence" to support a confidential

informant's reliability where that informant had supplied

information leading to many past arrests). Nor does the affidavit

indicate how the affiant came to establish a relationship with the

informant. See, e.g., Barnard, 299 F.3d at 93 (crediting the

reliability of an anonymous tipster where he "was known to the

police and could be held responsible if his assertions proved

inaccurate or false").

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While the Government offers the informant's statements

regarding the contemporaneous state of the marijuana grow as well

as the autumn grow as self-authenticating, without any statements

as to the informant's basis of knowledge, there is no means of

determining whether that information was obtained first-hand or

through rumor. The information is not so specific and specialized

that it could only be known to a person with inside information. 

Further, information about Gifford's former and current occupation

are not so self-verifying to establish the reliability of the

informant.

We also agree with the district court that the

informant's factual statements were not sufficiently corroborated. 

There was no independent police surveillance of the Gifford home or

marijuana grow operation that could enhance the reliability of the

informant's tip. See, e.g., Tiem Trinh, 665 F.3d at 11-12

(reliability of informant's tip sufficiently corroborated where

surveillance units made own observations of the targeted premises,

watched the premises to track the entry and exit of the informant

and the defendant, and monitored the defendant's movements as well

as intercepted phone conversations). The DMV record, while

confirming that Gifford resided at 46 South Road, does not provide

any corroboration for the grow operation. The police report

indicating that an odor of burnt marijuana was detected inside the

Gifford home and on Gifford's person, while suggestive of marijuana

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use, provides only little information that tends to corroborate the

tip. The statement is undated, and there is nothing beyond it to

corroborate a link between marijuana use and the existence of a

marijuana grow operation inside the home.

Beyond the above information, we are left with the

electricity records of the Gifford home. Given the very limited

corroboration provided by the non-electricity-related information

contained in the affidavit, and viewing the totality of the

circumstances included therein, we find that the information

regarding the size of the comparator home at 34 South Road as well

as the information pertaining to the horse boarding business was

material. Both omitted facts require that we alter in significant

ways the weight we give to the electrical usage information

contained in the affidavit. They were thus necessary to the

issuing judge's probable cause determination based on that

affidavit. See Franks, 438 U.S. at 171. We also agree with the

district court that the information was recklessly omitted. The

Government stipulated to the affiant's knowledge of the smaller

size of the comparator home at 34 South Road, as well as to the

existence of a horse boarding business on the premises. Given the

import of this information in allowing a court to evaluate whether

electrical usage in the target home was suspiciously high, the

affiant was reckless in not including it. Since the omitted

information was critical to the probable cause determination, we

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may infer recklessness. Burke, 405 F.3d at 81-82 (citing Golino v.

New Haven, 950 F.2d 864, 871 (2d Cir. 1991)).

B. Sufficiency of Reformed Search Warrant Affidavit

We also find that the omitted information, when included

back into the affidavit, does not sufficiently establish probable

cause. The electrical records for 34 South Road, indicating onethird the electrical usage of the target home, fail as an adequate

comparator to provide any useful information regarding whether the

electrical usage corroborates the informant's tip. The house on 34

South Road was a mobile home with only 1,392 square feet of heated

space while the target house was a three-bedroom home with a

basement and attic, with total square footage of 5,372 square feet.

This square-footage differential alone is enough to doubt whether

the electrical usage at 46 South Road is revealing of a

suspiciously high amount of electricity consumption. While the

electrical usage of the similarly-sized home at 51 South Road is

more corroborative of suspiciously high use, it fails to account

for other circumstances that might explain differential use,

including information that the Government has stipulated the

affiant knew, namely, that a horse boarding business was operating

from the premises.

While the affidavit does include some information about

the affiant's assessment of the probable significance of the

information based on his professional standpoint, experience, and

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expertise, the nature of the information provided is very generic:

it involves primarily a general discussion of what marijuana grow

operations entail that could be placed in any marijuana grow

affidavit. It does not directly touch on or evaluate the

informant's tip on the basis of the affiant's general knowledge of

growth operations. See, e.g., United States v. Khounsavanh, 113

F.3d 279, 284 (1st Cir. 1997) (stating that, "[i]n analyzing

whether there is sufficient corroboration, in verifying the

reliability of the informant or in demonstrating an adequate basis

of knowledge, it is not particularly probative for the informant to

supply a lot of details about irrelevant facts that other people

could easily know about and that are not incriminating"). On the

contrary, if anything, the general discussion goes towards

corroborating the affiant's assessment of the variances in

electrical usage between the residences at 46 and 51 South Road,

not towards corroborating the information provided by the informant

per se.

Therefore, viewing the information in the reformed

affidavit in its totality, all we have is an informant's tip that 

lacks any information regarding basis of knowledge, and is

corroborated almost exclusively by the following: (1) DMV records

listing the residence as Gifford's; (2) information about

electrical usage from only one comparator home that is revealing of

little as noted above, and (3) an undated police report providing

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information about an odor in the Gifford home and on his person of

burnt marijuana. Taken together, we do not find that the

information provided sufficiently supports a probable cause

finding.

III. Conclusion

For all of the above-cited reasons, we agree with the

district court's decision to grant Gifford's motion to suppress. 

We accordingly affirm.

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