          United States Court of Appeals
                      For the First Circuit

No. 11-1260

                    UNITED STATES OF AMERICA,

                            Appellee,

                                v.

                         CARLENS RIGAUD,

                      Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
               FOR THE DISTRICT OF MASSACHUSETTS

         [Hon. Nathaniel M. Gorton, U.S. District Judge]


                              Before

                    Boudin, Lipez, and Howard,
                         Circuit Judges.



     Valerie S. Carter, with whom Carter & Doyle LLP was on brief,
for appellant.
     Kelly Begg Lawrence, Assistant U.S. Attorney, with whom Carmen
M. Ortiz, U.S. Attorney, was on brief, for appellee.



                          June 29, 2012
           LIPEZ, Circuit Judge. After the government disclosed new

information regarding its confidential informant ("CI") in 2010,

appellant Carlens Rigaud moved to suppress evidence recovered in

2006   during    the   execution   of    a   search   warrant   in   Malden,

Massachusetts.    In so doing, Rigaud sought an evidentiary hearing

to establish that there were material omissions from an affidavit

submitted in support of the request for a search warrant that

undermined the probable cause finding on which the warrant was

issued.   The district court denied Rigaud's motion.            Rigaud then

pleaded guilty to federal drug trafficking charges pursuant to an

agreement that expressly reserved his right to appeal the denial of

his motion to suppress. He now pursues that appeal. After careful

review of the record, we affirm the district court's judgment.

                                    I.

A.   Factual Background

           In June 2006, Sergeant Kevin Molis of the Malden Police

Department applied for a no-knock warrant to search 95 Medford

Street, relying in his affidavit on information that he received

from CI Betty Trainor (a/k/a Patriot), Trainor's five controlled

buys at 95 Medford Street in May and June 2006, his surveillance of

95 Medford Street, and other information. On June 9, 2006, a state

court judge approved Molis's application and issued a no-knock

search warrant for 95 Medford Street. Molis, other state and local

authorities, and federal agents of the Bureau of Alcohol, Tobacco,


                                    -2-
Firearms and Explosives ("ATF") executed the search warrant that

day and seized, among other things, two handguns and 76 bags of

crack cocaine weighing a total of 40.35 grams. Rigaud, his brother

Carlin Rigaud, Kettia Saint Louis, and others were present during

the search and were arrested and charged with state drug and

firearm violations.      Rigaud was subsequently released on bail.

           While Rigaud was out on bail, Trainor introduced him to

ATF   Special   Agent    Karen    Carney-Hatch,    who    was   acting    in   an

undercover capacity.      On August 24, 2006, Carney-Hatch met Rigaud

in a parking lot in Malden, Massachusetts, and purchased from him

approximately    three    grams    of   crack   cocaine   for   four     hundred

dollars.   During the transaction, Carney-Hatch was equipped with a

body wire and recorder.

           On October 26, 2006, ATF Special Agent John Mercer, Jr.,

submitted an affidavit in support of an application for arrest and

search warrants and criminal complaints pertaining to a number of

individuals, including Carlens and Carlin Rigaud, described as

members of a gang known as the "Haitian Mob."             Mercer's affidavit

did not request permission to search 95 Medford Street, but instead

sought permission to search two other residences of individuals

allegedly involved with the Haitian Mob's drug trade.                  Based on

Mercer's   affidavit,     a   federal    magistrate   judge     issued    arrest

warrants for Rigaud and others and search warrants for the two

residences described in the affidavit.             Rigaud was arrested on


                                        -3-
October 26, 2006, and indicted on November 29, 2006, on multiple

federal drug trafficking and weapons charges.

           At Rigaud's impending trial on the federal charges,

prosecutors planned to introduce evidence recovered during the June

2006 search of 95 Medford Street that led to Rigaud's state arrest

and charges.    On February 4, 2010, during preparation for the

federal trial, Trainor admitted to prosecutors that prior to each

of the five controlled buys that she made in May and June 2006, she

hid forty dollars of her own money in her underwear.   She then used

that money to buy for her personal use an additional bag of crack

cocaine, which she kept concealed from detectives by hiding it in

her vagina.    The government disclosed this information to Rigaud

the day Trainor provided it.   On February 19, 2010, the government

also disclosed to Rigaud that Trainor had admitted that "she

continued to regularly buy and use crack cocaine" between the

spring of 2006 and the spring of 2007, a period that included the

five controlled buys.

B.   Procedural Background

           On March 26, 2010, in response to the government's

disclosures, Rigaud filed a motion to suppress all of the evidence

seized as a result of the search warrant that was executed on June

9, 2006. Rigaud also sought to suppress the "fruits" of the August

24, 2006, transaction during which he sold crack cocaine to Carney-




                                -4-
Hatch.1   The district court held a suppression hearing on July 1,

2010, and denied the motion on July 7, 2010.         After the motion was

denied, Rigaud entered a plea agreement with the government on

December 6, 2010. Under the terms of the agreement, Rigaud pleaded

guilty    to    three   drug   trafficking   charges.2   In   return,   the

government dismissed two gun-related charges3 and withdrew the

information it had filed to establish two felony drug convictions

justifying a sentence enhancement.           Rigaud was sentenced to 188

months' imprisonment followed by four years of supervised release.

As noted, pursuant to the plea agreement, Rigaud retained the right

to appeal the district court's denial of his motion to suppress.

                                     II.

               Rigaud focuses on the alleged inadequacy of the Molis

affidavit that led to the June 9, 2006 search of 95 Medford Street.

The Molis affidavit stated that before each of Trainor's controlled



     1
       Although Rigaud never specifies what these fruits are, we
assume that he refers to the three grams of crack cocaine sold to
Carney-Hatch for four hundred dollars and the audio recording of
that transaction captured by Carney-Hatch's body wire.
     2
       Rigaud pleaded guilty to one count of Conspiracy to
Distribute and Possess with Intent to Distribute Cocaine Base in
violation of 21 U.S.C. § 846, one count of Possession with Intent
to Distribute Cocaine Base in violation of 21 U.S.C. § 841(a)(1),
and one count of Possession with Intent to Distribute and
Distribution of Cocaine Base in violation of 21 U.S.C. § 841(a)(1).
     3
      The government dismissed one count of Felon-in-Possession of
Firearm and Ammunition in violation of 18 U.S.C. § 922(g)(1) and
one count of Possession of Firearm in Furtherance of Drug
Trafficking Crime in violation of 18 U.S.C. § 924(c)(1)(A).

                                     -5-
buys, "[i]t was determined that [Trainor] was not in possession of

cocaine."     However, the affidavit provided no details about how

detectives    made   that   determination.   In   light   of   Trainor's

admission that she carried her own money into, and drugs out of, 95

Medford Street during the controlled buys, Rigaud alleges that

Trainor could not have been searched before or after the buys.

Moreover, he asserts that Trainor's dishonesty and concurrent drug

use rendered her information fatally untrustworthy.       Thus, Rigaud

claims that he was entitled to an evidentiary hearing pursuant to

Franks v. Delaware, 438 U.S. 154 (1978).     He argues that he could

have shown that (1) Molis recklessly omitted critical information

regarding his search of Trainor, including the failure to search

her at all; and (2) if the affidavit had disclosed the failure to

search Trainor, there would not have been sufficient probable cause

and the warrant would not have been issued.4      Rigaud further argues

that there was insufficient support in the Molis affidavit to

justify issuing a no-knock warrant.

             Rigaud also challenges the Mercer affidavit that led to

his October 26, 2006 arrest, alleging that it omitted the same

critical information as the Molis affidavit.           Finally, Rigaud



     4
       Rigaud's argument that he was entitled to an evidentiary
Franks hearing is his fallback position. He first argues that he
was entitled to suppression. We focus our analysis on the Franks
issue. If Rigaud was not able to make the showing required for a
Franks hearing, it follows that he also was not entitled to have
his motion to suppress granted.

                                   -6-
argues that the good faith exception articulated in United States

v. Leon, 468 U.S. 897 (1984), does not overcome the defects in the

affidavits or the lack of probable cause.

A.   The Molis Affidavit

           1.   Entitlement to a Franks Hearing

           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, and

generally requires law enforcement officers to secure a warrant

supported by probable cause prior to effecting a search or seizure,

see United States v. Paneto, 661 F.3d 709, 713 (1st Cir. 2011).

Probable cause exists when the totality of the circumstances

suggest 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) (internal

quotation marks omitted).

           As in this case, information supporting probable cause

may be set out in an affidavit submitted with the application for

a search warrant.    Although "[t]here is . . . a presumption of

validity with respect to the affidavit supporting the search

warrant," that presumption may be refuted during a so-called Franks

hearing.   Franks, 438 U.S. at 171.      However, to get a Franks

hearing, a party must first make two "substantial preliminary

showings": (1) that a false statement or omission in the affidavit


                                 -7-
was made knowingly and intentionally or with reckless disregard for

the truth; and (2) the falsehood or omission was necessary to the

finding of probable cause.5        See id. at 155-56; Hicks, 575 F.3d at

138; United States v. Castillo, 287 F.3d 21, 25 (1st Cir. 2002).

Failure to make a showing on either element dooms a party's hearing

request.    In the event that a hearing is granted and "at that

hearing    the   allegation   of    perjury   or   reckless   disregard   is

established by the defendant by a preponderance of the evidence,

and, with the affidavit's false material set to one side [or the

omitted material included], the affidavit's . . . content is

insufficient to establish probable cause, the search warrant must

be voided and the fruits of the search excluded to the same extent

as if probable cause was lacking on the face of the affidavit."

Franks, 438 U.S. at 156.       In this case, we need not address the

first Franks requirement, because Rigaud has plainly failed to meet

the second (establishing the effect of the omission on the probable

cause showing).

            The district court noted that the "proper inquiry is not

whether probable cause would have existed if the affidavit had


     5
       There is "an important difference between the 'necessary'
inquiries when the challenge is to the omission of an allegedly
material fact rather than to the inclusion of an allegedly false
material statement. With an omission, the inquiry is whether its
inclusion in an affidavit would have led to a negative finding by
the magistrate on probable cause. If a false statement is in the
affidavit, the inquiry is whether its inclusion was necessary for
a positive finding by the magistrate on probable cause." United
States v. Castillo, 287 F.3d 21, 25 n.4 (1st Cir. 2002).

                                     -8-
revealed what Trainor hid going into and returning from the

controlled buys but rather whether probable cause could be found if

the affidavit stated that Molis did not search Trainor's underwear

and body cavities and was generally more explicit about the

searches    actually     performed."       The    court   found       that    because

underwear and body cavity searches are not required in controlled

buys, a magistrate would not find an "affidavit fatally defective

for explicitly acknowledging a failure to do what the law does not

require."       Moreover,     despite   Trainor's       later    admissions,      the

district court found that the controlled buys apparently went

"exactly as planned and, on five occasions, resulted in the

purchase of drugs at the premises under investigation."

            Regarding Trainor's general trustworthiness, the district

court   found    that   "Trainor's      lack     of   candor    was,    ultimately,

unnecessary to the finding of probable cause.                         The affidavit

provided ample grounds to credit her preliminary statements and to

corroborate     what    she   said   and   did    notwithstanding        subsequent

disclosures of her drug use or undisclosed purchases."                       Based on

these findings, the district court concluded that "the totality of

the   circumstances      sufficiently      demonstrated        that    Trainor    was

substantially reliable and that, even had the alleged omissions

been included in Molis's affidavit, there was probable cause to

issue the search warrant."




                                        -9-
            The district court's finding that the requisite showing

for a Franks hearing was not made will be disturbed only if it is

clearly erroneous.         United States v. Cartagena, 593 F.3d 104, 112

(1st Cir. 2010).          Clear error "exists only when we are left with

the    definite     and    firm    conviction       that      a    mistake   has    been

committed."       United States v. D'Andrea, 648 F.3d 1, 14 (1st Cir.

2011) (internal quotation mark omitted).

            We agree with the district court that the disclosure that

Trainor was not searched or was searched inadequately would not

have resulted in a negative finding on probable cause. We note, as

the district court did, that the controlled buys went essentially

as    planned   -   Trainor       entered   95     Medford        Street   with   marked

government money and exited the apartment with crack cocaine.                        The

fact that Trainor took her own money into 95 Medford Street and

purchased   drugs     for    personal       use    would      hardly    undermine    the

assertion   that     drugs    were    being       sold   in    the     apartment.     If

anything, Trainor's side purchases would support probable cause to

believe that drugs were, in fact, being sold there.

            Moreover, the Molis affidavit states that a number of

sources independent of Trainor suggested that drugs were being sold

from 95 Medford Street. For example, anonymous calls were received

by the Malden Police Drug Hotline, the Malden Police dispatcher,

and the Malden Drug Unit, each reporting ongoing drug activity at

95 Medford Street.         The caller to the Drug Unit said that a dozen


                                        -10-
people per day visited the apartment for brief periods, which led

him to believe that drugs were being sold there.               Molis also

received information from Malden Police Chief Kenneth Coye, who

told Molis that an elected official had contacted him and conveyed

constituent complaints about drug activity at 95 Medford Street.

             Additionally, during the two weeks preceding the warrant

application, the Malden Police Drug Unit conducted surveillance of

95 Medford Street and observed various cars making brief visits to

the apartment.     Officers ran the license plates of some of these

visitors and discovered that the registered owners of some of the

vehicles had previous drug-related convictions, and one owner had

a number of open drug-related cases.

             Molis and other detectives also observed individuals

associated with 95 Medford Street engage in activity that the

detectives    believed    was   consistent   with   counter   surveillance

activity,     including    "scrutinizing     activities   in    the   area

. . . [and] monitoring any vehicles that were parked in the area

that contained occupants."        Molis and the other detectives saw

individuals remain outside near the rear door of 95 Medford Street

while drug activities were occurring.        On one occasion, Molis and

Sergeant Michael Goodwin attempted to follow a car that had just

dropped someone off at 95 Medford Street.            Molis said that the

driver engaged in what the detectives believed to be "obvious

counter surveillance driving by traveling in a manner that appeared


                                    -11-
deliberately inexpedient and designed to put them behind our

unmarked vehicle in order to monitor our activities."                   Another

detective   observed    that    "some   males    upon    returning     to    their

vehicles after exiting . . . 95 Medford [Street] would then circle

the block before leaving the area."           Molis believed this to be "a

counter surveillance maneuver designed to detect if the subject

[was] being followed."

            We   also   agree   with    the   district    court     that     ample

corroboration of the information that Trainor provided neutralizes

any   apparent   untrustworthiness      brought    to    light    by   her   late

disclosures.      Trainor told Molis that she had purchased crack

cocaine from seven or eight different people in an apartment at 95

Medford Street.    She said that all of the people from whom she had

purchased drugs were black, and two were female.                 Trainor stated

that she would sometimes see as many as six men in possession of

handguns inside 95 Medford Street.            She said that she had seen a

man who went by "C" with a handgun in his waistband and had also

seen handguns on a table in the apartment.          Trainor also described

the door through which she had entered 95 Medford Street as being

brown and tan with a doorbell, a peephole, and the number "95"

affixed to it.      Although some of the information that Trainor

provided, particularly information about the activity inside the

apartment, did not lend itself to corroboration prior to the

preparation of his affidavit, Molis was able to confirm key pieces


                                    -12-
of the information that Trainor provided.              For example, after

speaking with Trainor, Molis visited 95 Medford Street "during the

early morning hours" and corroborated the information that Trainor

gave about the outside and entrance to the apartment. He confirmed

that the back door of 95 Medford Street had a peephole and a piece

of white tape with "95 Medford" written on it affixed to the upper

part of the door.      Molis photographed the door and showed the

photograph to Trainor.        Trainor confirmed that it was the door

through which she had entered 95 Medford Street to buy crack

cocaine.

           Similarly, Trainor provided Molis with the telephone

number that she called to arrange purchases of crack cocaine at 95

Medford Street.     She did not provide any of the sellers' actual

names but did say that she had purchased crack cocaine from two

males who went by "C" and "Little C."              Trainor said that she

thought C and Little C were brothers.          Detective Richard Connor of

the Everett Police Drug Unit indicated to Molis that based on

information   he   received    from    Sergeant   George   Keralis   of    the

Southern Middlesex Drug Task Force, he believed that a black man

named Little C sold crack cocaine.           Connor was also in possession

of a telephone number belonging to Little C.            The number Connor

showed Molis matched the number that Trainor gave Molis and was the

same number that Trainor used to set up the controlled buys.              When

Molis followed up with Keralis directly, Keralis told him that his


                                      -13-
information about Little C came from a reliable confidential

source.

          In addition, Molis discovered through the Motor Vehicles

Database that a woman named Kettia Saint Louis was registered as

residing at 95 Medford Street and confirmed with the Postal Service

that a person with the last name Saint Louis received regular mail

at that address.   Molis showed Trainor a picture of Saint Louis.

Trainor identified her as one of the females that she had seen at

95 Medford Street from whom she had purchased crack cocaine.

          Based on the information from Trainor and other sources

set forth in Molis's affidavit, we conclude that the district court

did not err by finding that any omission about the lack of an

underwear or body cavity search of Trainor was not critical to the

probable cause finding.   Because Rigaud was unable to satisfy the

second Franks requirement, the district court did not err by

declining to hold a Franks hearing.6

          2.   The No-Knock Warrant

          As he did before the district court, Rigaud alleges that

the contents of the Molis affidavit "failed to establish probable




     6
       Because we conclude that the district court did not err in
its evaluation of the affidavit, we do not reach Rigaud's argument
regarding the Leon good faith exception.     See United States v.
Leon, 468 U.S. 897 (1984) (holding that evidence obtained in good
faith by law enforcement officers relying upon a search warrant may
be used in a criminal trial even if the warrant is subsequently
deemed invalid).

                               -14-
cause justifying the issuance of a no-knock warrant."7    He argues

that the only justification provided for the no-knock warrant was

Trainor's statement that she had seen guns inside 95 Medford Street

on previous occasions.   Rigaud alleges that Trainor's statement

alone was insufficient to justify the no-knock warrant and further

argues that, because Trainor was untruthful about the side buys,

her word does not suffice. Thus, Rigaud argues, evidence recovered

during the search of 95 Medford Street pursuant to the no-knock

warrant should have been suppressed.

          The government argues that under Hudson v. Michigan, 547

U.S. 586 (2006), the exclusionary rule does not apply to violations

of the knock-and-announce rule.   Thus, Rigaud was not entitled to

suppression on that basis.   The government is right.    See Hudson,

547 U.S. at 599; United States v. Garcia-Hernandez, 659 F.3d 108,

112 (1st Cir. 2011).   Rigaud's argument for suppression fails on

that basis alone.8




     7
       The district court did not make a determination about the
no-knock element of the search warrant.
     8
        To the extent Rigaud argues that permission to forego
knocking and announcing requires its own probable cause
determination, he misstates the law. Reasonable suspicion is the
proper standard.    See Richards v. Wisconsin, 520 U.S. 385, 394
(1997). That standard is easily met here in light of Trainor's
observations inside 95 Medford Street, where she had seen as many
as six men in possession of handguns as well as handguns resting on
a table inside the apartment.     As discussed, despite Trainor's
failure to disclose that she carried her own money into and drugs
out of the apartment, her information was otherwise trustworthy.

                               -15-
B.    The Mercer Affidavit

             Rigaud's    suppression      arguments        based    on    the   Mercer

affidavit are difficult to understand.               First, he argues that the

fruits of Carney-Hatch's August 24, 2006, undercover buy should

have been suppressed because Trainor, who introduced Carney-Hatch

and   Rigaud,    "had    been   using    crack      without      the     government's

permission and her observations were undoubtedly affected by her

addiction."      He also argues that the Mercer affidavit was "as

materially disingenuous as Molis'[s] . . . because he adopts the

legitimacy of the five controlled buys [and] . . . vouches for

[Trainor,] boasting that she has provided accurate, truthful, and

reliable information in the past and continues to do so in the

present" (internal quotation marks omitted).                 Rigaud alleges that

if Mercer's affidavit had stated that Molis had not searched

Trainor or had searched her inadequately, there would have been

insufficient probable cause to issue warrants and, thus, "any

fruits from the search and arrest should have been suppressed."

             Regarding the fruits of the ATF undercover buy, the

government      argues   that   because        Rigaud      did     not   identify    a

constitutional     violation    related        to   that    buy,    suppression     is

inappropriate. The government also argues that even if information

about Trainor's side buys and her drug use were included in the

Mercer affidavit, there was sufficient probable cause to issue the

search and arrest warrants.


                                        -16-
           The government is correct that the buy was not a search

or seizure and hence it did not implicate Rigaud's Fourth Amendment

rights.   Thus, the exclusionary rule is simply inapplicable.   See

Garcia-Hernandez, 659 F.3d at 112. To the extent that Rigaud seeks

to challenge the Mercer affidavit as the basis for subsequent

search and arrest warrants, he states only that "the warrants

should not have issued and any of the fruits from the search and

arrest should have been suppressed."    This undeveloped argument

fails for the same reason that the challenge to the Molis affidavit

fails.

           Affirmed.




                               -17-
