D.Mass.: Late disclosed information provided Franks challenge

How one defendant made a Franks challenge to get a hearing out of late disclosed information. United States v. Gonzalez, 2026 U.S. Dist. LEXIS 3229 (D. Mass. Jan. 8, 2026)*:

Despite the acknowledged importance of the 49 Norman Street address, however, neither the original nor the updated search warrant affidavit included this information, contained in the DEA-6 Investigative Report, showing further connections to 49 Norman Street and possible drug related activity on November 23, 2021. Defendant argues this newly disclosed information about 49 Norman Street was withheld from the affidavit strategically in order to promote the affiant’s opinion focusing on 8 Mereline Avenue. At this preliminary Franks stage, the circumstances here support an inference of intentional or reckless omission in order “to fit the Mereline [Avenue] theme.” Gonzalez, 707 F. Supp. 3d at 49; see also United States v. Francis, 132 F.4th 101, 108-09 (1st Cir. 2025) (“For a challenge based on omissions, [the defendant] must show that the omission ‘[wa]s designed to mislead, or … made in reckless disregard of whether [it] would mislead, the magistrate in his appraisal of the affidavit.'” (quoting Tanguay, 787 F.3d at 49)); Arias, 848 F.3d at 511 (“Recklessness may be inferred from circumstances evincing obvious reasons to doubt the veracity of the allegations.”). Moreover, in light of this court’s original conclusion that probable cause already was lacking, the court finds that including this omitted information regarding 49 Norman Street in the affidavit likely would have vitiated probable cause from the perspective of an issuing magistrate. See United States v. Murray, 2020 WL 4904758 (D. Mass. Aug. 20, 2020) (“[T]he fact is that the affidavit as submitted—without considering the alleged misrepresentations or omissions—did not make a strong nexus showing to begin with.”).

The government argues “drug dealers frequently use multiple locations to stash and prepare drugs” and the fact that probable cause may exist for one location does not mean it is lacking for a different location. (Dkt. No. 185 at 13.) But even assuming drug traffickers often keep relevant evidence at multiple locations, “this does not relieve the government of its burden to provide specific evidence as to each ‘place [to be] searched.'” Roman, 942 F.3d at 54 (quoting United States v. Dixon, 787 F.3d 55, 59 (1st Cir. 2015)). And, as explained, the affiant relied in large part on his opinion as to the location where the Walmart purchases were brought to support the nexus showing as to 8 Mereline Avenue. In fact, the government at oral argument before this court on the four-corners challenge identified the September 16, 2021 Walmart trip as “some of the most recent probable cause” with respect to 8 Mereline Avenue. (Dkt. No. 67 at 14.)8Link to the text of the note In this court’s view, the affiant’s opinion in this regard—already suspect based on the information contained in the unreformed affidavit—is undermined even more by including the omitted information regarding the November 23, 2021 surveillance of 49 Norman Street. In short, the omitted information, while not groundbreaking, weakens the already-weak nexus showing as to 8 Mereline Avenue by suggesting the movable pill-making operation was operating instead on Norman Street. See Roman, 942 F.3d at 53 (“We agree with the district court’s conclusion that ‘any inference that could permissibly be drawn from [Defendant’s] status as a drug dealer regarding the location of evidence is significantly weakened where, as here, it is more likely that such evidence would be found at the residence or business of another individual.'” (quoting Roman, 311 F. Supp. 3d at 440)).