US v. Gifford

Filing

OPINION issued by Sandra L. Lynch, Chief Appellate Judge; Juan R. Torruella, Appellate Judge and Jeffrey R. Howard, Appellate Judge. Published. [12-2186]. CLERK'S NOTE: Docket entry was edited to modify the file date.

US v. Gifford

Doc. 106569146

Case: 12-2186

Document: 00116569146

Page: 1

Date Filed: 08/13/2013

Entry ID: 5756049

United States Court of Appeals
For the First Circuit
No. 12-2186
UNITED STATES OF AMERICA,
Appellant,
v.
PAUL GIFFORD,
Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Paul J. Barbadoro, U.S. District Judge]

Before
Lynch, Chief Judge,
Torruella and Howard, Circuit Judges.

Seth R. Aframe, Assistant United States Attorney, with whom
John P. Kacavas, United States Attorney, was on brief for
appellant.
Behzad Mirhashem, of the Federal Defender Office, with whom
Jeffrey S. Levin, was on brief for appellee.

August 13, 2013

Dockets.Justia.com

Case: 12-2186

Document: 00116569146

Page: 2

Date Filed: 08/13/2013

TORRUELLA, Circuit Judge.

Entry ID: 5756049

This appeal concerns the

sufficiency of a search warrant affidavit in establishing probable
cause to search defendant-appellee Paul Gifford's ("Gifford") home
for a marijuana grow operation.

The United States Government

("Government") challenges the district court's suppression of
evidence seized from Gifford's home, arguing that the search
warrant affidavit did not omit information material to a probable
cause determination. Since we find that the search warrant in fact
contained reckless material omissions, and the properly reformed
search warrant affidavit failed to establish probable cause, we
affirm the district court in all respects.
I.
A.

Background

Factual Background
On February 14, 2011, a New Hampshire state court issued

a

warrant

to

search

Gifford's

home

relying

on

a

supporting

affidavit submitted by New Hampshire State Trooper First Class
Steven D. Tarr ("Trooper Tarr").

We quote at length from Trooper

Tarr's affidavit, based in part on information received from an
unnamed informant,1 as the core issue on appeal concerns its
sufficiency for establishing probable cause:

1

During the motion to suppress hearing, the confidential
informant was identified as Gifford's brother-in-law, Donald
Desmond, Jr. However, none of the information pertaining to the
identification of the informant or his relationship to Gifford was
included in the search warrant affidavit.
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3.
During the month of November 2010, the
affiant received information reference [sic]
the possible manufacture of the controlled
drug marijuana at the following address: 46
South Road; [Town omitted], New Hampshire. By
a: Paul Gifford [DOB omitted].
This information was provided through a
reliable confidential informant with knowledge
of Gifford's personal practices as well as
knowledge of the inside of the residence.
According to the confidential informant,
Gifford is a landscaper by trade but does not
work on a regular basis.
The informant
explained that Gifford considers growing
marijuana to be his full time occupation and
means by which to earn money. Additionally,
information received from this informant on
February 9, 2001 revealed that Gifford is
currently in the process of growing marijuana
at the residence and has leftover, finished
marijuana from an autumn indoor grow within
the residence.
4. This affiant gathered information relative
to the resident of the home at that address
through Department of Motor Vehicle [sic] and
Town of [Town omitted], NH records. I learned
that the following individual resides at that
address: Paul Gifford [DOB: omitted].
. . . .
6.
On January 19, 2011[,] this affiant
received a copy of a police report from the
[Town omitted] Poilce [sic] Department that
had been generated by Officer John Ventura.
The report related to a home visit made to the
residence by Officer Ventura and Lisa Tyler of
Adult Protective Services.
While Officer
Ventura was at the residence to assist Adult
Protective Services, he made contact with
Gifford who met them at the front door of the
residence and "quickly" shut the door behind
him.
Officer Ventura was "immediately
overwhelmed by the strong odor of burnt
marijuana coming from Paul's person." Later,
when allowed into the home, Officer Ventura
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again "detected
marijuana."

Page: 4

the

Date Filed: 08/13/2013

same

odor

of

burnt

7. This affiant drove to 46 South Road, [Town
omitted], NH. I noted that the residence is a
large building with an attached barn. It is
located directly across the street from a
school.
8.
During this investigation, this affiant
requested the power records from Unitil
Corporation utilities company for 46 South
Road, [Town omitted], NH.
On November 23,
2010[,] Unitil Corporation was served with a
Subpoena for the electrical power records of
46 South Road, [Town omitted], NH. Using the
subpoena process, this affiant found that the
electric utility bill for this residence is
listed to Paul Gifford.
9. This affiant found that the electric usage
for the home appears to be exceptionally
higher than that of a home of a similar size.
In fact, the electrical usage at the address
during the past sixteen months averages
approximately 3174.06 kilowatt hours per
billing cycle.
During this period, the
residence used 2323.0 kilowatt hours during
the lowest consumption billing cycle and
4690.0 kilowatt hours during the highest
consumption billing cycle.
A billing cycle
encompasses approximately one month.
10.
This affiant also obtained electrical
power
records
from
surrounding
residences/customers of Unitil through the
subpoena process.
The electrical usage in
these homes was significantly lower than that
of 46 South Road.
Unitil records revealed
that the residence of 34 South Road utilized
an average of 717.69 kilowatt hours per
billing cycle with a lowest consumption cycle
of 551.0 kilowatt hours and a highest
consumption of 1023.0 kilowatt hours.
Similarly, the residence of 51 South Road
utilized an average of 861.19 kilowatt hours
per billing cycle with a lowest consumption

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cycle of 467.0 kilowatt hours and a highest
consumption of 1554.0 kilowatt hours.
11. As is evidenced above, the residence of
46 South Road, [Town omitted], NH utilized
over three times the average electrical
consumption per billing cycle than its
neighbors.
[Chart omitted].
Investigation
has revealed that the residence at 46 South
Road is heated by oil. There are no hot tubs,
saunas or any other additional such items to
explain a higher than usual electrical usage.
12.
Based upon this affiant's training and
experience, I know that high amounts of
electricity are needed by indoor cannabis
cultivators to power pumps, timers, heaters,
air conditioners, fans and other electrical
equipment as well as the 1000 watt lights
necessary to grow cannabis. A typical "grow
schedule"
would
show
increasing
then
decreasing electrical use in a 90 to 120 day
cycle unless the cultivator is "rotating"
young, juvenile and adult plants in an effort
to increase his yield. This would extend the
periods of high electrical use depending on
how many "rotations" of plants a grower has at
a given time.
The rest of the affidavit details Trooper Tarr's general knowledge
of marijuana grow operations.
The search warrant was executed on February 15, 2011.
Based on the items seized from Gifford's home, he was charged in
the United States District Court for the District of New Hampshire
with manufacturing marijuana, possessing marijuana with the intent
to distribute, and possessing a firearm in furtherance of a drug
trafficking crime.

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B.

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Procedural History
Following Gifford's indictment, he filed a motion to

suppress the evidence seized at his home, arguing, inter alia, that
the search warrant affidavit lacked probable cause.

Gifford

claimed that the warrant was facially insufficient to establish
probable cause.
had

material

In the alternative, he argued that the affidavit

omissions,

including

that

one

of

the

mentioned

comparator houses for purposes of measuring electricity use was
substantially smaller than the target house.
The Government objected to Gifford's motion, but before
the district court could address it, Gifford and the Government
reached a plea agreement wherein the Government agreed to dismiss
the firearm count and Gifford agreed to a 48-month disposition on
the drug charges.
district

court

sentencing.

However, Gifford withdrew his plea after the
challenged

the

agreed-upon

disposition

at

Specifically, the district court stated that it

thought that a sentence of between 18 and 24 months was appropriate
given that the count driving the high sentence was the firearm
count, and if the defendant were to proceed to trial, it was
unlikely to impose a sentence of more than 60 months.
After Gifford withdrew his plea, he refiled his motion to
suppress. The district court convened a hearing on the motion. At
the hearing, the Government acknowledged that the affiant (1) knew
that one of the comparator houses, 34 South Road, was substantially

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smaller than the target house; (2) knew that 51 South Road was
similarly sized to the target house; and (3) did not include the
fact that 34 South Road was of a substantially smaller size in the
affidavit. The Government also conceded that the affiant knew that
a horse boarding business operated out of the Gifford home, but the
affiant claimed that he saw no signs of its operation when he drove
by the residence, even though a banner advertising the business
hung outside.2

Based on these representations by the Government at

the hearing, the parties agreed that the court could rule on the
suppression issue on undisputed facts, without receiving live
testimony.
After hearing the parties' arguments, the district court
held that the suppression of the search of the target residence was
warranted under Franks v. Delaware, 438 U.S. 154 (1978), because
the affiant made a material omission from the search warrant
affidavit in reckless disregard for the truth.3

Specifically, the

2

At the hearing, Gifford proffered evidence that the horses'
frequent watering required electrically pumping several hundred
gallons of water every day, and that a large number of bucket
heaters were used to keep water from freezing. Further, fans were
used to circulate air in the barn, and depending on the season,
multiple electric space heaters or air conditioners were used to
heat or cool the farmhouse, which was poorly insulated. Finally,
Gifford offered evidence that his wife's mother, who was living
with them, was disabled and incontinent, requiring them to do
several loads of laundry in the washer and dryer on a daily basis.
3

The court declined to rule on the "close" issue of whether the
warrant failed on its face to establish probable cause, basing its
decision instead on the material omissions and misrepresentations
contained in the search warrant under Franks.
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court found that the affiant recklessly omitted from his affidavit
the fact that the comparator house at 34 South Road was one-third
the size of the target house.

The district court found this

omission to be material because, in its view, if the information
about 34 South Road had been included in the affidavit, that
affidavit would have failed to establish probable cause for a
search.

The

court

additionally

observed

that

there

were

insufficient indicia of reliability supporting the informant's tip
since very little information was provided about the informant.
Compounding the insufficiencies, the court continued, was
the fact that the affiant had not provided adequate corroborating
facts from his own investigation to permit a probable cause
finding.

The statements in the affidavit regarding the marijuana

odor, it found, were not corroborative of the informant's tip
because they demonstrated only that burnt marijuana may have been
present, not that it was grown.

The evidence of the electricity

consumption was rendered meaningless, the court stated, because the
omission

of

material

information

regarding

the

size

of

the

comparator home at 34 South Road would leave only the comparison
between the target house and 51 South Road.

The court concluded

that the information showing that 51 South Road used substantially
less electricity than the target house was meaningless since there
could be numerous innocuous explanations for the variation in

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electricity usage having nothing to do with a marijuana grow
operation.
Since neither the odor nor the electricity consumption
corroborated the informant's tip, the court concluded that the
reformed affidavit -- including the omitted information -- lacked
probable

cause.

suppressing

the

The

district

evidence

seized

court
from

thus

issued

Gifford's

an

order

home.

The

Government timely appealed the suppression order.
II.

Discussion

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.
With limited exceptions, it requires police officers to secure a
search warrant supported by probable cause prior to effecting a
search or seizure. United States v. Paneto, 661 F.3d 709, 713 (1st
Cir. 2011).

Probable cause exists when the totality of the

circumstances suggests 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)

(quoting United States v. Feliz, 182 F.3d 82, 86 (1st Cir. 1999))
(internal quotation marks omitted).
Information supporting probable cause for a warrant is
often set forth in an affidavit provided by a law enforcement
officer, as happened here.

See United States v. Rigaud, 684 F.3d

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169, 173 (1st Cir. 2012). An affidavit supporting a search warrant
is

presumptively

valid.

Id.

But

if

a

defendant

makes

a

"substantial preliminary showing that a false statement . . . with
reckless disregard for the truth[] was included by the affiant in
the warrant affidavit, and if the allegedly false statement is
necessary to the finding of probable cause, the Fourth Amendment
requires that a hearing be held at the defendant's request."
Franks v. Delaware, 438 U.S. 154, 155-56 (1978).
For a warrant to be voided and the fruits of a search
excluded, the defendant must: (1) show that the affiant in fact
made a false statement or omission "knowingly and intentionally, or
with reckless disregard for the truth," (2) make this showing by a
preponderance

of

the

evidence,

and

(3)

show

that,

with

the

recklessly omitted information added to the affidavit, the reformed
affidavit fails to establish probable cause.
Tzannos, 460 F.3d 128, 136 (1st Cir. 2006).

United States v.

An allegation is made

with "reckless disregard for the truth" if the affiant "in fact
entertained serious doubts as to the truth of the allegations or
where circumstances evinced obvious reasons to doubt the veracity
of the allegations in the application."

Burke v. Town of Walpole,

405 F.3d 66, 81 (1st Cir. 2005) (quoting United States v. Ranney,
298

F.3d

omitted).

74,

78

"In

(1st
the

Cir.
case

1999))
of

(internal

allegedly

quotation

material

marks

omissions,

recklessness may be inferred where the omitted information was

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critical to the probable cause determination."

Entry ID: 5756049

Id. at 81-82

(internal quotation marks omitted).
Where

the

primary

basis

for

a

probable

cause

determination is information provided by a confidential informant,
the affidavit must provide some information from which a magistrate
can credit the informant's credibility.
299 F.3d 90, 93 (1st Cir. 2002).

United States v. Barnard,

"[A] probable cause finding may

be based on an informant's tip so long as the probability of a
lying or inaccurate informer has been sufficiently reduced."
United States v. Greenburg, 410 F.3d 63, 69 (1st Cir. 2005).

We

apply a "nonexhaustive list of factors" to examine the affidavit's
probable cause showing, which include, among others: (1) whether
the affidavit establishes the probable veracity and basis of
knowledge of persons supplying hearsay information; (2) whether an
informant's statements reflect first-hand knowledge; (3) whether
some or all of the informant's factual statements were corroborated
wherever

reasonable

or

practicable

(e.g.,

through

police

surveillance); and (4) whether a law enforcement affiant assessed,
from his professional standpoint, experience, and expertise, the
probable significance of the informant's provided information.
United States v. Tiem Trinh, 665 F.3d 1, 10 (1st Cir. 2011).
We review a district court's legal conclusion that a
given set of facts constituted probable cause de novo, "whereas
factual findings are reviewed for clear error."

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Kearney, 672 F.3d 81, 88-89 (quoting United States v. McMullin, 568
F.3d 1, 5 (1st Cir. 2009)) (internal quotation marks omitted).

In

the absence of a reckless omission, a search warrant is reviewed
with deference to the issuing magistrate, but allegations of
reckless omission "implicate the very truthfulness, not just the
sufficiency, of a warrant application."
Therefore,

if

such

allegations

prove

Burke, 405 F.3d at 82.
to

be

true,

we

owe

no

deference to a magistrate's decision because "'no magistrate will
have made a prior probable cause determination' based on the
correct version of the material facts."

Id. (quoting Velardi v.

Walsh, 40 F.3d 569, 574 n.1 (2d Cir. 1994)).
We now turn to the questions directly on appeal: whether
the district court erred in finding the omissions in the search
warrant of Gifford's home material, and if the reformed search
warrant affidavit which includes the omitted material is sufficient
to establish probable cause.
A.

Materiality of Omissions
The Government argues on appeal that the district court

erred in finding material the omission of information pertaining to
the size of the comparator's house at 34 South Road because, even
if

the

size

of

the

house

were

added

to

the

affidavit,

or,

alternatively, the reference to the house were eliminated entirely,
the affidavit would still establish probable cause.

This is

because, the Government claims, there was ample recognized indicia

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that the informant was sufficiently reliable and there was enough
corroborating information to support probable cause.
Specifically, the Government points to the affidavit's
description of the informant as "reliable," suggesting that the
affiant knew his identity and reducing the likelihood that the
informant was lying.

The Government further suggests that a fact

included in the affidavit provided by the informant -- that the
defendant had stopped working as a landscaper to engage in fulltime marijuana production and that he was growing a new crop of
plants and storing leftover marijuana for an autumn harvest -- was
a "self-verifying detail" that is sufficiently specific that it was
likely obtained from personal observations or from a person's
statement to the informant that was against his penal interest.
See United States v. Zayas-Díaz, 95 F.3d 105, 111 (1st Cir. 1996)
(self-authenticating
determination).

statements

may

support

a

probable

cause

As corroboration for the informant's statements,

the Government points to the following: records obtained from
Unitil and the Department of Motor Vehicles ("DMV") confirming that
Gifford resided at 46 South Road; a police report of a local police
department visit to Gifford's home where the officer smelled burnt
marijuana

on

his

person

and

inside

the

house;

and

Unitil

electricity records of Gifford's home indicating that electrical
usage therein was three times the rate of the similarly-sized house
at 51 South Road.

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We are not convinced by the Government's arguments.
First, we do not agree that the information in the affidavit would
allow an issuing judge a sufficient basis for determining the
informant's reliability.

While the factors enumerated in Tiem

Trinh are non-exhaustive, it nevertheless remains the case that
none of them would favor a reliability finding.

Nothing in the

affidavit

knowledge,

indicates

the

informant's

basis

of

for

example, on whether the informant just happened to view the grow
operation, heard about it as hearsay, or had direct, first-hand
knowledge of the grow operation in the Gifford home.

See, e.g.,

Greenburg, 410 F.3d at 67 ("A specific, first-hand account of
possible criminal activity is a hallmark of a credible tip.").
Additionally, the affiant makes no mention of any past history with
the informant to establish that informant's credibility.

See,

e.g., United States v. Barnes, 492 F.3d 33, 37 (1st Cir. 2007)
(finding "ample additional evidence" to support a confidential
informant's

reliability

where

that

informant

information leading to many past arrests).

had

supplied

Nor does the affidavit

indicate how the affiant came to establish a relationship with the
informant.

See, e.g., Barnard, 299 F.3d at 93 (crediting the

reliability of an anonymous tipster where he "was known to the
police and could be held responsible if his assertions proved
inaccurate or false").

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While the Government offers the informant's statements
regarding the contemporaneous state of the marijuana grow as well
as the autumn grow as self-authenticating, without any statements
as to the informant's basis of knowledge, there is no means of
determining whether that information was obtained first-hand or
through rumor.

The information is not so specific and specialized

that it could only be known to a person with inside information.
Further, information about Gifford's former and current occupation
are not so self-verifying to establish the reliability of the
informant.
We

also

agree

with

the

district

court

that

the

informant's factual statements were not sufficiently corroborated.
There was no independent police surveillance of the Gifford home or
marijuana grow operation that could enhance the reliability of the
informant's

tip.

See,

e.g.,

Tiem

Trinh,

665

F.3d

at

11-12

(reliability of informant's tip sufficiently corroborated where
surveillance units made own observations of the targeted premises,
watched the premises to track the entry and exit of the informant
and the defendant, and monitored the defendant's movements as well
as

intercepted

phone

conversations).

The

DMV

record,

while

confirming that Gifford resided at 46 South Road, does not provide
any corroboration for the grow operation.

The police report

indicating that an odor of burnt marijuana was detected inside the
Gifford home and on Gifford's person, while suggestive of marijuana

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use, provides only little information that tends to corroborate the
tip.

The statement is undated, and there is nothing beyond it to

corroborate a link between marijuana use and the existence of a
marijuana grow operation inside the home.
Beyond the above information, we are left with the
electricity records of the Gifford home.

Given the very limited

corroboration provided by the non-electricity-related information
contained in the affidavit, and viewing the totality of the
circumstances

included

therein,

we

find

that

the

information

regarding the size of the comparator home at 34 South Road as well
as the information pertaining to the horse boarding business was
material.

Both omitted facts require that we alter in significant

ways the weight we give to the electrical usage information
contained in the affidavit.
issuing

judge's

affidavit.

probable

They were thus necessary to the

cause

determination

See Franks, 438 U.S. at 171.

based

on

that

We also agree with the

district court that the information was recklessly omitted.

The

Government stipulated to the affiant's knowledge of the smaller
size of the comparator home at 34 South Road, as well as to the
existence of a horse boarding business on the premises.

Given the

import of this information in allowing a court to evaluate whether
electrical usage in the target home was suspiciously high, the
affiant was reckless in not including it.

Since the omitted

information was critical to the probable cause determination, we

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may infer recklessness. Burke, 405 F.3d at 81-82 (citing Golino v.
New Haven, 950 F.2d 864, 871 (2d Cir. 1991)).
B.

Sufficiency of Reformed Search Warrant Affidavit
We also find that the omitted information, when included

back into the affidavit, does not sufficiently establish probable
cause.

The electrical records for 34 South Road, indicating one-

third the electrical usage of the target home, fail as an adequate
comparator to provide any useful information regarding whether the
electrical usage corroborates the informant's tip. The house on 34
South Road was a mobile home with only 1,392 square feet of heated
space while the target house was a three-bedroom home with a
basement and attic, with total square footage of 5,372 square feet.
This square-footage differential alone is enough to doubt whether
the

electrical

usage

at

46

South

Road

is

revealing

suspiciously high amount of electricity consumption.

of

a

While the

electrical usage of the similarly-sized home at 51 South Road is
more corroborative of suspiciously high use, it fails to account
for

other

including

circumstances
information

that

that

might

the

explain

Government

differential
has

stipulated

use,
the

affiant knew, namely, that a horse boarding business was operating
from the premises.
While the affidavit does include some information about
the affiant's assessment of the probable significance of the
information based on his professional standpoint, experience, and

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expertise, the nature of the information provided is very generic:
it involves primarily a general discussion of what marijuana grow
operations entail that could be placed in any marijuana grow
affidavit.

It

does

not

directly

touch

on

or

evaluate

the

informant's tip on the basis of the affiant's general knowledge of
growth operations.

See, e.g., United States v. Khounsavanh, 113

F.3d 279, 284 (1st Cir. 1997) (stating that, "[i]n analyzing
whether

there

is

sufficient

corroboration,

in

verifying

the

reliability of the informant or in demonstrating an adequate basis
of knowledge, it is not particularly probative for the informant to
supply a lot of details about irrelevant facts that other people
could easily know about and that are not incriminating").
contrary,

if

corroborating

anything,
the

the

affiant's

general

discussion

assessment

of

the

On the

goes

towards

variances

in

electrical usage between the residences at 46 and 51 South Road,
not towards corroborating the information provided by the informant
per se.
Therefore,

viewing

the

information

in

the

reformed

affidavit in its totality, all we have is an informant's tip that
lacks

any

information

regarding

basis

of

knowledge,

and

is

corroborated almost exclusively by the following: (1) DMV records
listing

the

residence

as

Gifford's;

(2)

information

about

electrical usage from only one comparator home that is revealing of
little as noted above, and (3) an undated police report providing

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Date Filed: 08/13/2013

Entry ID: 5756049

information about an odor in the Gifford home and on his person of
burnt

marijuana.

information

Taken

provided

together,

sufficiently

we

do

supports

not
a

find

that

probable

the

cause

finding.
III.

Conclusion

For all of the above-cited reasons, we agree with the
district court's decision to grant Gifford's motion to suppress.
We accordingly affirm.

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