CA1 affirms suppression order; reforming affidavit after Franks hearing shows no nexus to def’s house

The affidavit for the search warrant, reformed after a Franks hearing, did not establish probable cause to search defendant’s home. The affidavit did not set forth facts showing defendant had a history of drug dealing to permit an inference that he would keep drug related evidence in his home. There was no affidavit evidence as to the time defendant was engaged in drug trafficking, facts connecting his residence to drug activity, or evidence that defendant had left or returned to the residence in connection with drug activity. The fact that defendant was seen near a car with a weighted bag did not suggest that this car was the one parked at the home or that it contained drugs. Suppression order affirmed. United States v. Roman, 2019 U.S. App. LEXIS 33060 (1st Cir. Nov. 5, 2019):

Relatedly, the government contends that the “large-scale” nature of the conspiracy and Roman’s allegedly central role in it prove Roman was an “experienced trafficker” sufficient to infer a nexus under Feliz. We afford due weight to the factual inference made by the district court that the record is “simply not sufficient to substantiate the affidavit’s assertions that … [Roman] was an established drug dealer.” Roman III, 327 F. Supp. 3d at 324. Further, the government cites no basis in law for the proposition that a nexus to a defendant’s residence may be inferred where the defendant plays a “central role” in a large-scale enterprise. As previously stated, we consider the totality of circumstances in making a probable cause determination. See Feliz, 182 F.3d at 88. Accordingly, we consider factors such as Roman’s role and the size of the operation but find neither fact, alone or in combination, dispositive as to the issue of whether Roman was an established trafficker, nor sufficient to upset the district court’s factual inference that there was insufficient evidence to support this conclusion.

Further, even if we were to accept the government’s contention that the “large scale of the operation provide[s] strong grounds for concluding that relevant evidence might be kept at multiple locations,” this does not relieve the government of its burden to provide specific evidence as to each “place [to be] searched.” Dixon, 787 F.3d at 59. The government has not met this burden.

This is not a “case where the affidavit recite[s] facts establishing a clear and substantial connection between the illegal activity and the place searched”; rather, the government’s argument relies upon “speculative inferences piled upon inferences” that Roman’s residence would yield relevant evidence. United States v. Rodrigue, 560 F.3d 29, 33-34 (1st Cir. 2009). Accordingly, because the reformed affidavit fails to establish probable cause to search Roman’s residence, the fruits of the search of the residence were properly suppressed.

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