FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MASSACHUSETTS [Hon. Denise Jefferson Casper, U.S. District
Christine DeMaso, Assistant Federal Public Defender, Federal
Public Defender Office, was on brief, for appellant.
T. Quinlivan, Assistant United States Attorney, with whom
Carmen M. Ortiz, United States Attorney, was on brief, for
Torruella, Lipez, and Barron, Circuit Judges.
TORRUELLA, Circuit Judge.
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.
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.
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.
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.
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.
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
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 ...