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United States v. Fleury

United States Court of Appeals, First Circuit

December 2, 2016

JOHN FLEURY, Defendant, Appellee.


          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.

          Before Torruella, Lipez, and Barron, Circuit Judges.

          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.

         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 9mm-caliber 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: 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 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 ...

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