USCA1 Opinion

January 23, 1996

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

____________________

No. 94-2221
UNITED STATES OF AMERICA,

Appellee,

v.

WILLIAM R. TIBOLT,

Defendant, Appellant.

____________________

ERRATA SHEET

The opinion of this Court issued on December 29, 1995, is amen

as follows:

Page 10, line 6, should read:

". . . at the Tibolt residence.

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

____________________

No. 94-2221
UNITED STATES OF AMERICA,

Appellee,

v.

WILLIAM R. TIBOLT,

Defendant, Appellant.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. William G. Young, U.S. District Judge]

___________________

____________________

Selya, Circuit Judge,

_____________

Coffin, Senior Circuit Judge,

____________________

and Cyr, Circuit Judge.

_____________

____________________

Anthony M. Cardinale,
_____________________

with

whom Nicholas J. DiMauro and

_____________________

Offices of Anthony M. Cardinale were on brief for appellant.

_______________________________
William C. Brown, Attorney,
_________________
Justice, with whom

Appellate

Division, Department

Donald K. Stern, United States

________________

brief for appellee.

____________________

December 29, 1995

Attorney, was

____________________

CYR,
CYR,

Circuit Judge.
Circuit Judge.
_____________

money laundering charge, 18

Following

U.S.C.

his conviction

1956, in the

on a

United States

District Court for the

District of Massachusetts, William Tibolt

appeals two trial court

rulings relating to incriminating finan-

cial records seized from his

residence in a warrantless

search.

Finding no error, we affirm.

I
I

BACKGROUND
BACKGROUND
__________

Around mid-morning

activated

in the

on July 27, 1992,

Dombrowski residence

Path in Gloucester, Massachusetts.

JK Security

was

a security alarm

located at 13

Old Salem

As the security alarm company

unable to make telephone contact

with the

Dombrowski residence to determine whether

off accidentally,

the alarm.

gate

the alarm had been set

it telephoned the Gloucester

Officer Joseph Palazzola was

Police to report

dispatched to investi-

the alarm report at the Dombrowski residence, which is next

door to the Tibolt residence at 11 Old Salem Path.

Both residences are set well

and largely concealed from view.

tree

and some shrubbery

mailbox

to

of

the

Two driveways

lead to

of

the first

marked "dombrowski

second Tibolt

driveway entrance

Tibolt

13"

driveway, more
____

to the Dombrowski

Path

separated by a

the Tibolt home.

bearing "11 Old Salem Path"

the right

mailbox

back from Old Salem

The Tibolt

is located immediately

driveway.

The

Dombrowski

is located a few feet left

than
____

60 feet
__ ____

residence at

before the
______

13 Old

Salem

Path.

Upon observing the mailbox

zola mistakenly entered

dence.

the second driveway to

He checked the exterior

attempted break, or burglary

signs

marked "13," Officer Palaz-

of the residence for signs of an

in progress.

of forced entry, Palazzola

the Tibolt resi-

Although he

found an unlocked

noted no

door on the

rear deck.

occupant,

been

He opened

the door and

called inside to

but received no response.

requested to

investigate the

locked, and that Palazzola

anyone inside the

Given that

alarm, that

the police had

a door

had been unable to make

house, he

reasoned that the

alert any

was un-

contact with

alarm might

not

have been activated accidentally.

Palazzola

Thomas Williams

drove

promptly

called

for

backup,

arrived within five minutes.

to the Tibolt

residence rather than

dence,

because he saw Palazzola's

Tibolt

residence.

Officer

Williams likewise

the Dombrowski resi-

squad car parked

Williams immediately

and

next to the

recognized the

Tibolt

residence as having been the target of a prior investigation by a

Gloucester

Williams was

Police drug task force in which he had participated.

unsure, however, whether the

target (viz., Tibolt)

of the

task force

investigation still

owned the

residence, or

whether it was still under investigation for drug-related activi-

ties.

Palazzola and

warrantless

entry through

Williams decided

to make

an immediate

the unlocked

rear door,

then looked

about for possible

explanations for the

alarm (e.g., any

pants, a

"whatever").

search was

burglar,

Their

occu-

limited

in

scope, eschewing drawers, cabinets

"secured"

each room,

to

rule out

captives, or injured occupants.

the officers

discovered

growing

facility in the basement,

Later,

armed with

the Tibolt

premises and

which Tibolt subsequently

the

the

The officers

presence of

intruders,

After sweep-searching the upper

floors,

warrant.1

and containers.

well-established

then left to

a warrant, the

marijuana

obtain a search

officers searched

seized incriminating financial

sought to suppress on the

records

ground that

search warrant was invalid because the evidence relied on in

the supporting

affidavit was

warrantless search.

itself

the fruit

of the

earlier

After hearing, the district court denied the

motion to suppress, without elaboration.

Following the verdict,

Tibolt moved for a new trial on

the ground that he

had uncovered "new" evidence relating

suppression motion

which would (1) impeach

sion hearing

testimony, (2)

deliberately

planned to

demonstrate a

violation.

record

Palazzola's suppres-

suggest that the

search

Franks v. Delaware,
______
________

to the

the Tibolt

Gloucester Police

residence, and

438 U.S. 154,

155-56 (1978),

Gloucester Police Department "incident cards,"

the time,

date,

desk officer,

and

(3)

location of

which

police

assignments, disclosed that officers had been called to Old Salem

Path on at least fourteen prior occasions to investigate security

____________________

1The warrant application related the following grounds:

(1)

an intrusion alarm was reported by J.K. Systems to the Gloucester

Police Department; (2) Officers Palazzola and
to the

alarm report

and

found a

door open;

Williams responded
(3) the

officers

entered the home to

check the premises for intruders;

and (4) a

marijuana-growing facility was found in the cellar.

alarms.

The cards reflect that there were three calls to "13 Old

Salem Path" and ten others to "Old Salem Path."

One card, dating

from 1990, indicates that Officer Joseph Palazzola had

been sent

to the Dombrowski residence to investigate a security alarm.

two cards indicate that

a desk officer with the

And

initials "J.P."

had dispatched other officers to "Old Salem Path."

addition, an affidavit by Officer Theodore Lemieux, dated January

27, 1994
_

submitted

the day after the Tibolt suppression

___ ___ _____ ___ ______ ___________

in

support of

search

hearing
_______

warrant application

and

in

an

unrelated criminal proceeding, stated that

_________

an
__

informant . .
_________

that led to the

____ ___ __ ___
William
_______

. has provided information

___ ________ ___________
arrest and indictment of one
______ ___ __________ __ ___

Tibolt.
______

informant

In

provided

regard to the

well

the

detailed information

in

location of an

operation that Mr.

The

the investigation

Tibolt had

informant provided the

as other persons

the marijuana growing

mants [sic]

indoor growing
home.

name, address as

that were involved in

operation.

also described the

interior as well as

in his

The inforhome and the

a room in the

center of

the basement that [sic] the growing operation

was being conducted. (Emphasis added.)

But for the fact that it

contains no indication as to the timing

of

the events

conflict with

described

in

it,

the Lemieux

the affidavit submitted

warrant application of

July 27,

affidavit

in support of

1992, see supra

___ _____

might

the search

note 1,

which

described JK Security's call to the Gloucester Police Department,

the police

marijuana in

response, and

the officers' unexpected

__________

the Tibolt basement.

After hearing,

court denied the motion for new trial.

868 F. Supp. 380, 381-83 (D. Mass. 1994).

discovery of

the district

United States v. Tibolt,

_____________
______

II
II

DISCUSSION
DISCUSSION
__________

A.
A.

Motion to Suppress
Motion to Suppress
__________________

Tibolt first challenges

denial

of the motion to

laundering:

the financial

July 27, 1992.

able

the district court's

suppress the primary

pretrial
________

evidence of money

records seized from his residence

on

He contends that there was no objectively reason-

basis for believing that a life-threatening burglary was in

progress,

even assuming

that Officer

Palazzola reasonably

had

mistaken the Tibolt residence for the Dombrowski residence.

But
___

see infra Section

___ _____

the

exterior of

II.B.

And

he argues

the Tibolt residence

revealed no signs

entry, and no open windows or doors.

27-29 (citing United States

_____________

1993)

(suppressing

evidence

that inspection of

See Brief
___

for Appellant at

v. Erickson, 991 F.2d 529

________

seized in

residence where officers investigating

of forcible

warrantless

(9th Cir.

search

of

burglar alarm observed no

indication of forced entry)).

1.
1.

Substantive Law
Substantive Law
_______________

A warrantless search of a private residence is presump-

tively unreasonable

New York, 445

under the Fourth

U.S. 573, 586 (1980).

Amendment.

The

See
___

Payton v.
______

government therefore

________

must prove that

exception

to

the initial search

the Fourth

United States v. Doward,

_____________
______

denied,
______

probable

115

S. Ct.

cause and

Amendment

came within some

warrant

recognized

requirement.

See
___

41 F.3d 789, 791 (1st Cir. 1994), cert.

_____

1716

exigent

(1995).

Generally

speaking, absent

circumstances the

Fourth Amendment

bars

warrantless, nonconsensual

entries of

private residences.

See United States v. Curzi, 867 F.2d 36, 41 (1st Cir. 1989).2
___ _____________
_____

Probable cause

the

officers

at

the

will be found

scene

to have been

present if

collectively possessed

reasonably

trustworthy information sufficient to warrant a prudent policeman

in

believing that

committed.

criminal offense

Cir.

1979)

been or

was

being

See Hegarty v. Somerset Cty., 53 F.3d 1367, 1374 (1st

___ _______
_____________

Cir. 1995), cert. denied,

_____ ______

11, 1995);

had

No. 95-629, 1995 WL 625553

United States v. Zurosky, 614

_____________
_______

(finding probable

(U.S. Dec.

F.2d 779, 784 n.2 (1st

cause where

police investigated

possible "breaking and entering" at warehouse), cert. denied, 446

_____ ______

U.S.

967 (1980) (citing Brinegar v. United States, 338 U.S. 160,

________
_____________

175-76 (1949)).

"In dealing with

very name implies,

technical;

everyday

we deal

probable cause, . .

with probabilities.

. as the

These are

not

they are the factual and practical considerations of

life

on which

technicians, act."

Exigent

officers confront

reasonable and

prudent men,

not legal

Illinois v. Gates, 462 U.S. 213, 231 (1983).

________
_____

circumstances

exist

where

a "compelling necessity

law

enforcement

for immediate

action

____________________

2The government would have us

entry

as a

exception

so-called
applicable

characterize this warrantless

"community caretaker"
to

searches

"totally

detection, investigation, or acquisition

the
U.S.

violation of a criminal
433, 441,

disposition, we
exception.
ence"

447-48
need

statute."

(1973).
not

But see id.

___ ___ ___

In

consider

light of

at 439 (noting

warrant

divorced from

the

of evidence relating to
Cady
____

the

search, a

v. Dombrowski, 413
__________
our

"community

alternative

caretaker"

"constitutional differ-

between search of home and search of automobile); see also

___ ____

United States v. Bute, 43 F.3d 531, 535 (10th Cir. 1994) (reading
_____________
____
Cady as
____

applying only to

Erickson, 991 F.2d at

________

searches of

automobiles, not

532 (same); United States v.

_____________

homes);

Pichany, 687
_______

F.2d 204, 209 (7th Cir. 1982) (same).

that w[ould] not brook the delay of obtaining a warrant."

United
______

States v. Wilson, 36 F.3d 205, 209 (1st Cir. 1994) (citing United
______
______
______

States v. Adams, 621 F.2d 41, 44 (1st Cir. 1980));

United States

______

v.

_____

_____________

Almonte, 952 F.2d 20,

_______

U.S. 1010 (1992).

are

22 (1st Cir.

1991), cert. denied, 503

_____ ______

Although "exigency" determinations

invariably

fact-intensive, see United States v. Donlin, 982 F.2d 31, 34

___ _____________
______

(1st Cir. 1992), "exigent

`hot pursuit' of

evidence inside

a fleeing felon; (2) threatened

a residence

(3) a risk that the suspect

tected;

safety

circumstances" commonly include:

or (4) a

before a

destruction of

warrant can

be obtained;

may escape from the residence

threat, posed by

"(1)

a suspect, to

unde-

the lives or

of the public, the police officers, or to [an occupant]."

Hegarty, 53 F.3d at 1374.

_______

The "exigent circumstances" inquiry is

limited to the objective facts reasonably known

to, or discover-

able by, the officers at the time of the search.

See Illinois v.
___ ________

Rodriguez, 497 U.S. 177, 186 (1990) (upholding warrantless search

_________

where police officers

reasonably, but mistakenly, believed

they

had obtained valid "third-party consent" to search residence from

person with authority to consent) (citing Archibald v. Mosel, 677

_________
_____

F.2d 5

(1st Cir.

1982) (invoking

"good faith"

principle under

"exigent circumstances" exception)).

2.
2.

Standard of Review
Standard of Review
__________________

As

mixed

cause" and "exigent

cated review:

rise to

questions of

law

and

fact, the

"probable

circumstances" determinations require bifur-

whether a

particular set

"probable cause" or "exigent

of circumstances

gave

circumstances" is reviewed

de
__

novo and
____

findings

of fact

are

United States v.
______________

Goldman,
_______

41 F.3d

(probable cause),

cert. denied, 115

_____ ______

reviewed for

785,

clear

786 (1st

S. Ct. 1321

Cir.

error.

1994)

(1995); United
______

States v. Gooch, 6 F.3d 673, 678 (9th Cir. 1993) (exigent circum______
_____

stances).

Where, as here,

there are no

explicit factual find-

ings, the record below is assessed in the light most favorable to

the

trial court ruling.

See United States

___ _____________

v. Baldacchino, 762
___________

F.2d 170, 176 (1st Cir. 1985).

3.
3.

Application of Law
Application of Law
__________________

Tibolt does not challenge the factual findings implicit

in

the

district court

central

alarm

ruling,

to the ruling

tionably

Moreover,

support the

that the

evidence

most

the police descriptions relating to the

report, the locations of

is undisputed.3

given

the mailboxes, the unlocked door

these implicit

challenged legal

Palazzola had probable cause

findings unques-

conclusion that

to believe a breaking

Officer

and entering

had been or was being committed at the Tibolt residence.

____________________

3On
objective
_________

appeal,

Tibolt

"reasonableness"

asserts

no direct

of Palazzola's

challenge
putative

to

mistake

the

purportedly caused by the juxtaposition of the Dombrowski mailbox

and the entrance to Tibolt's

second driveway

the Tibolt residence, instead of Dombrowski's,

progress.

Rather, he questions only

in investigating

for a burglary in

whether Palazzola, despite

his protestations to the contrary, knowingly used this fortuitous

circumstance as a pretext for conducting a warrantless search for

drugs as

part of an

the Tibolt residence.

was presented
II.B.

At the

ongoing task force

investigation targeting

The only evidence of such a ruse, however,

in his post-conviction motion.

_______________
pretrial hearing,
________

the

See infra Section

___ _____

inquiry into

Palazzola's

state of mind necessarily turned, for the most part, on the trial
court's observation of Palazzola's demeanor, and
determination, matters uniquely within
of

fact.

United States v. Zapata,

______________
______

1994).

its credibility

the province of the trier

18 F.3d 971,

975 (1st Cir.

Security

security

placed

received no

a call

answer.4

likelihood that

alarm

to

been activated,

the

Dombrowski residence,

These circumstances

the security

tently by a resident.

had

and

when

JK

it

had

severely undercut any

alarm had been

activated inadver-

Moreover, upon his arrival

approximately
_____________

ten minutes later, Palazzola checked all windows and doors at the
___ _______ _____

Tibolt

residence.5

Instead of finding all doors secured, as one

____________________

4Tibolt cites cases involving

"break," see,
___
(Mass. Ct.
found

e.g., Commonwealth v.
____ ____________

various external indicia of a

Fiore, 403 N.E.2d
_____

App.) (upholding warrantless search

953, 955

where outer door

broken off hinges), cert. denied, 449 U.S. 938 (1980), but
_____ ______
___

no alarm system

activation.

See Erickson, 991 F.2d

at 530, 533

__ _____ ______

__________

___ ________

(noting that government, on appeal, had conceded that no "exigent

circumstances" had been shown, given the absence of any activated

security alarm; no visible sign of forced entry;
that

suspected

police

burglars had

officers' arrival;

announce" before
677,

679

(4th

Government

departed

and officers'

Cir.

1992) (invalidating

has formally

conceded

on that

basis,"

[external] indication

that

30 minutes

failure to

entry); United States v.

______________

gent-circumstances case' and does

here

area

witness reports

"knock and

Moss, 963
____
search

this

before

F.2d 673,

because

is not

an

not seek to uphold the

given that

police

"the

'exi-

search

officer observed

that any illegal occupant

"no

was inside" the

cabin); Commonwealth v. Bates, 548 N.E.2d 889, 892-93

____________
_____

(Mass. Ct.

App. 1990) (invalidating search where police did not even suspect
an

ongoing

crime,

but

were merely

investigating

"missing

person" report, after waiting over three hours before investigat-

ing missing person's apartment); State v. Morgavi, 794 P.2d 1289,

_____
_______
1292-93

(Wash.

Ct. App.

1990)

police observation of "a car

partially broken doors
house

and an open side

cases where "the

cerned

(invalidating

in front of the garage, opened

to the garage,
door to the

police were

search based

an open back door

on

and

to the

garage," but distinguishing

summoned to the

premises by

con-

neighbors who had witnessed the burglaries and the flight

of suspects").

We think it clear that the activation of an alarm

system is an external "sign" of a possible forced entry.

5Although
sticker,

the

and the

there was no

Dombrowski residence
Tibolt

evidence that

residence an

Security had

while

sometimes write

security

reported the
the

a "JK

"ADT Security"

Palazzola had been

dispatcher that JK
dispatchers

bore

name

Security"

sticker,

informed by

the

alarm.

Further,

of the

reporting

company on the incident cards, see infra Section II.B.,

___ _____

the investigating officers do not receive these cards for comple-

10

might reasonably expect while the residents are away, he found an

unlocked door on the

rear deck and received

no response to

his

efforts

to communicate with anyone

who might be

inside.

These

circumstances significantly enhanced the likelihood of an intrud-

er.

For similar

presented

with "exigent

warrantless

an

reasons, we

intruder

entry.

conclude

that Palazzola

circumstances" permitting

was

an immediate
_________

Without entering, he could not know but what

had managed

to get

into

the residence,

and even

injured or captured a resident, then fled; or had been caught off

guard by the police and remained in the residence with a forcibly

detained resident.

Even the authorities cited by Tibolt acknowl-

edge the potential exigencies

Erickson, 991 F.2d at 533

________

and

other circuits

attending such circumstances.

("In a wide variety of contexts,

have upheld

warrantless searches

See
___

this

conducted

during

burglary

investigations

circumstances.");

(Mass. Ct.

Commonwealth
____________

App.) ("It

without more as set

of

danger to

seems

under

the

v. Fiore,
_____

clear to

us

rubric

403

an occupant and

intruder and indicates

of the

N.E.2d

that a

out in the affidavit raises

of

exigent

953, 955

house

break

the possibility

continued presence

the need to secure the premises.

of an

In such

circumstances `(t)he right of the police to enter and investigate

in an emergency without the accompanying intent

to either search

or arrest is inherent in the very nature of their duties as peace

____________________

tion until after their investigation of the alarm report.

_____
event, Tibolt has not raised this matter.

11

In any

See supra note 3.

___ _____

officers.'")

(1980)).

mistaken.

186,

could

(citation

Hindsight

omitted),

discloses,

cert. denied,
_____ ______

of course,

449

U.S.

938

that Palazzola

was

Nevertheless, at the time, see Rodriguez, 497 U.S. at

__ ___ ____ ___ _________

an officer confronted

have concluded

lives or safety

with these

that there

was an

circumstances reasonably

imminent risk

of the public," Hegarty, 53 F.3d

_______

an injured or immobilized resident.

"to the

at 1374, or to

See, e.g., Murdock v. Stout,

___ ____ _______
_____

54

F.3d 1437, 1443 (9th Cir. 1995) (upholding warrantless search

of

residence

following

officers found some signs

when an

burglary

report,

where

investigating

that resident might have been

intruder entered dwelling,

and received no

at home

response to

their calls, thereby creating

a "fair probability

resident might

assistance") (distinguishing prior

be in need of

that . . .

circuit precedent in United States v. Erickson, 991 F.2d 529 (9th

_____________
________

Cir.

1993)).

Accordingly, the

district court

did not

err in

denying the motion to suppress.

B.
B.

Motion for New Trial

Motion for New Trial
____________________

We

trial.

turn now to the district court ruling denying a new

Tibolt contends

that the "newly

discovered" Gloucester

Police

"incident

rational inference

the

suppression

placement

cards" and

the

that Officer

hearing,

in

Lemieux

affidavit support

Palazzola committed perjury

explaining

that

the

at

misleading

of the Dombrowski mailbox at the opening of the second

Tibolt driveway, and his own unfamiliarity with the two residenc-

es, had caused him to

go to the Tibolt residence to

the reported alarm at the Dombrowski residence.

12

investigate

Tibolt maintains

that

the

incident cards

show that

Palazzola

had been

to the

Dombrowski residence at least

once before and, therefore, should

have recognized

on

his

mistake

this occasion.

Further,

he

argues, the Lemieux affidavit suggests that Palazzola's "mistake"

was actually part of

an elaborate, conspiratorial ruse, manufac-

tured by the Gloucester Police task force to enable a warrantless

search of the Tibolt residence for drugs.

Cf. Curzi, 867 F.2d at

___ _____

43 n. 6 (noting that police may not justify warrantless search by

manipulating

events to

generate "exigency").

affidavit supporting the search warrant

July 27, 1992

warrantless

the police failed

in the

application submitted on

presumably premised solely

______

search

Finally,

on the fruits of the

to disclose their prior

investigations of the Tibolt residence for suspected drug activi-

ties.

Tibolt

insists that

investigations of

the failure

to disclose

the residence constituted a

the prior

"clear violation"

of Franks v. Delaware, 438 U.S. 154 (1978).

______
________

1.
1.

Substantive Law
Substantive Law
_______________

evidence will

the

motion

(ii)

new

trial based

not be allowed unless the

evidence was:

trial,

for

(i) unknown

despite due

on

newly

movant establishes that

or unavailable

diligence,

likely to result in an acquittal upon

(iii)

at the

retrial.

(1st Cir. 1991), cert.

_____

time of

material, and

(iv)

United States v.
_____________

Ortiz, 23 F.3d 21, 27 (1st Cir. 1994); United States v.

_____
_____________

938 F.2d 302, 313

discovered

Natanel,
_______

denied, 502 U.S.

______

1079

(1992).

If, however,

the "new" evidence was within

the govern-

13

ment's

control and

its disclosure was

withheld, the

fourth criteria are less stringent:

The

usual

Blackmun's

locution,

opinion in Bagley,
______

(1985)], is that the

a

new

taken

trial

if

from

Justice

[473 U.S. 667

nondisclosure justifies

it is

"material,"

it

is

third and

"material" only
probability"
changed

if

there is

that

the

the

result,

"a

reasonable

evidence would
and

probability" is "a probability

"reasonable
sufficient to

undermine confidence in the outcome."

682.

. . .

[and a

Id. at
___

This somewhat delphic "undermine

confidence" formula suggests that

sal

have

remand for

[a] rever-

new trial]

might be

warranted in some cases even if there is less

than an even
produce

an

evidence

chance that the

acquittal.

is close

one might think

dence

creating

chance of a

After

and the

cant,

evidence would
all,

if the

penalty signifi-

that undisclosed evi-

(for example)

33 percent

different result would undermine

one's confidence

in the

result.

And while

Bagley appears to give little weight to other

______
factors--such as the

degree of fault on

prosecutor's part and the specificity

defense

request--it

is

not entirely

the

of the
clear

that these variables must be ignored.

United States v. Sepulveda,

_____________
_________

15 F.3d 1216, 1220 (1st

cert. denied, 114 S. Ct. 2714 (1994).

_____ ______

Cir. 1993),

2.
2.

Standard of Review
Standard of Review
__________________

The denial of a

for manifest abuse of

motion for new trial is

discretion.

625 F.2d 1017, 1019 (1st Cir.

trial

triggers a

See United States

___ _____________

1980).

two-tier inquiry.

reviewed only

v. Wright,
______

The instant motion for new

First,

to the

extent the

"new" evidence pertains to the disposition of the pretrial motion

to suppress financial records, wherein the district court was the

________ _____

trier of fact, Tibolt confronts the

ing

daunting task of demonstrat-

that the district court committed clear error in determining

14

that

the

factual

"new" evidence

findings.

findings and

issues

would

Zapata, 18
______

not have

F.3d at 975

show that the "new" evidence would so

case as to give

3.
3.

to suppression

Second, Tibolt must

undermine the government's

rise to a "reasonable" probability

Sepulveda, 15 F.3d at 1220.6

_________

The Incident Cards

The Incident Cards
__________________

its pretrial

(noting that factual

credibility determinations relating

are normally for the trier of fact).

upon retrial.

altered

of acquittal

We cannot say that the district court ruling constitut-

ed a manifest

abuse of

discretion.

The

district court

found,

inter alia, that the police incident reports would not suffice to
_____ ____

undermine Officer Palazzola's credibility; hence, were not likely

to result in an acquittal.

we persuaded

hearing.

that Palazzola perjured himself

one
___

conclusion

at the suppression

Dombrowski residence prior to July

the incident cards show

occasion

hearing.

Nor are

Rather, he testified simply that he could not remember

having been at the

In fact,

Tibolt, 868 F. Supp. at 382.

______

Further,

three
_____

years
_____

before

this incident

that Palazzola

residence on that prior

____ _____

that he was sent

went to,

occasion.
________

there on but

the pretrial

card did not

or secured,

27, 1992.

suppression

even compel

the

the Dombrowski

Thus, the district

court was

entitled to

find

that

the incident

Palazzola's claimed lack of memory.

cards

did

not

undermine

Cf. Natanel, 938 F.2d at 313

___ _______

____________________

6We assume,
within

the

disclosure.
did disclose

without deciding,

government's

control

that the "new"

and

potentially

evidence was
subject

to

But see infra Section II.B.4 (noting that government

___ ___ _____
essential information, later

affidavit, at pretrial suppression hearing).

15

reiterated in Lemieux

(noting somewhat lesser burden on new-trial movant where evidence

shows witness's prior testimony was "deliberately false").

their marginal

direct probative value,

incident cards

alone were sufficient to

probability

Sepulveda, 15
_________

that Tibolt would

F.3d at

evidence pertaining

we cannot

say that

the

generate a "reasonable"

be acquitted

1220 n.5

Given

(noting

upon retrial.

that newly

Cf.
__

discovered

exclusively to a government witness's credi-

bility rarely warrants new trial).

4.
4.

The Lemieux AffidaThe Lemieux Affida____________________

vit
vit
___

The district court found the Lemieux affidavit similar-

ly inconclusive.

plausible inference

Although the

of police

affidavit might contribute

conspiracy, it certainly

to a

did not

compel such a finding, especially since its temporal relevance is

______

so unclear.

For one thing, it is not unreasonable to think that

Lemieux may have been

imprecise in recollecting the sequence

________

the events which had occurred a year and a half earlier.

to say,

there is nothing

Lemieux may

that

in the affidavit

have been remembering

an informant's

tip simply

as it

is, make it

That is

but what

that Tibolt was

arrested and

corroborated what
____________

the officers

themselves accidentally discovered.

vit, vague

to suggest

of

Nor does the Lemieux affida-

probable that an

acquittal would

result upon retrial.

In

all events, we need not rest our decision solely on

the "credibility"

with

ground, since the district court found also

respect to the information in the Lemieux affidavit

that

Tibolt had not met

the first two prongs of the

Ortiz test.
_____

See
___

16

Natanel, 938 F.2d at

_______

313 (failure to

Ortiz factors defeats motion

_____

found

either

that Tibolt

had not

establish any of the

___

for new trial).

shown that

unknown or unavailable at

The

this "new"

the time of

four

court further

evidence was

the pretrial sup-

pression hearing, nor that Tibolt had exercised

discover

("What

the evidence earlier.

is

more, the

hearing the

See
___

government

fact that Tibolt's

due diligence to

Tibolt, 868 F. Supp. at 382

______

proffered

home had

at the

suppression

been the subject

of a

local drug investigation before the search, and made available to

Tibolt

one of

the officers involved

questioning.").

the

At the

government disclosed

participated in a

residence,

possible

added.)

pretrial suppression hearing, moreover,

to the

defense that

"at that

activities

time there

involving

that

This disclosure certainly should

the probability

investigation for

Officer Williams

previous task force surveillance of the Tibolt

and that

drug

in that

that

an informant

was

were some
____

reports of
_______

house."

(Emphasis

have alerted Tibolt to

involved.

Yet

Tibolt

failed to pursue information

relating to whether the warrantless

search of July 27, 1992 was a mere "ruse" designed to fabricate a

showing

of probable cause.

Since the finding that Tibolt failed

to exercise due diligence was not clearly erroneous,

18 F.2d

at 975,

he may

not rely

on this

see Zapata,
___ ______

evidence to

mount a

renewed
attackonthewarrantlesssearchorthesearchwarrantapplication.7
____________________

7As
the

noted above, see supra p. 4, Tibolt not only challenges

___ _____

pretrial determination

that Palazzola's

warrantless search
___________ ______

was valid, but cites Franks v. Delaware as authority for a direct

______
________
challenge to
entirely

the subsequent

on the

fruits of

search warrant, which

______ _______
the earlier

17

was premised

warrantless search.

The district court judgment is affirmed.

The district court judgment is affirmed.
_______________________________________

____________________

defendant

is

not

however, absent

entitled

to a

Franks
______

evidentiary

a "substantial preliminary

showing

(1)

hearing,

that a

false statement [or material omission] in the affidavit [supporting

the search warrant application] has

intentionally,
omission]
States
______

v.

and (2)

that

the false

been made knowingly and

statement [or

is necessary for a finding of probable cause."

Scalia, 993
______

United States v.
______________

F.2d 984,

Rumney, 867
______

987

F.2d 714,

(1st Cir.
720 (1st

material

United
______

1993) (citing
______

Cir.), cert.
_____

denied, 491 U.S. 908 (1989)).

______

We discern no principled basis for treating the Franks claim

______
differently than

Tibolt's direct

challenge

to the

warrantless

search.

To the

extent the "new" evidence underlying

hearing

request was available prior to

affidavit) by the exercise

Franks request based
______
Section II.B.4.

The

that the
that there

trial (i.e., the Lemieux

of due diligence, Tibolt's post-trial

on that

evidence is untimely.

marginal probative

cards in undercutting Palazzola's

cient, by itself, to

the Franks
______

value of

See
___

supra
_____

the incident

pretrial testimony is insuffi-

support a "substantial preliminary showing"

___________

evidence, if disclosed, would have altered the decision

was probable cause

supra Section II.B.3; see

_____
___

to issue

a search warrant.

also, e.g., United States

____ ____ _____________

See
___

v. Hiveley,
_______

61 F.3d 1358, 1360 (8th Cir. 1995) (noting that "the 'substantial
showing' requirement

needed to

obtain a Franks
______

lightly met").

18

hearing is

not