United States v. Centeno-Gonzalez

2021 | Cited 0 times | First Circuit | February 24, 2021

United States Court of Appeals For the First Circuit

No. 17-1367





Defendant, Appellant.


[Hon. Francisco A. Besosa, U.S. District Judge]


Howard, Chief Judge, and Thompson, Circuit Judge.

Linda Backiel for appellant. Alexander L. Alum, Assistant United States Attorney, with whom Rosa Emilia Rodríguez-Velez, United States Attorney, Marian E. Bauzá-Almonte, Assistant United States Attorney and Chief, Appellate Division, and Thomas F. Klumper, Assistant United States Attorney, were on brief for appellee.

 Judge Torruella heard oral argument in this matter and participated in the semble, but he did not participate in the issuance of the panel's decision. The remaining two panelists therefore issued the opinion pursuant to 28 U.S.C. § 46(d).

February 24, 2021

HOWARD, Chief Judge. Although it takes many turns along

the way, this case starts and ends with the firearm that was found

inside a hidden compartment of a vehicle on May 6, 2015. On that

day, law enforcement officers pulled over Jose Centeno-González as

he drove by in a Toyota Tundra that the officers believed matched

the description of a vehicle that had just been involved in a

shooting. After arresting Centeno, the officers deployed a

firearm-detecting dog to inspect the outside of the vehicle and

used the results of the dog sniff to obtain a search warrant for

the vehicle. While searching the vehicle, officers found a

firearm, gloves, and paperwork inside a concealed compartment in

the dashboard. Following trial, a jury convicted Centeno of

unlawful possession of a firearm. Now on appeal, Centeno contends

that the district court erred by refusing to suppress the evidence

seized from his vehicle pursuant to the warrant. He also contends

that the district court erred in multiple evidentiary decisions

during his trial and that these errors infringed his right to

present a complete defense. After careful consideration, we

conclude that the district court did not err and affirm the



Because Centeno challenges his conviction on various

grounds, we will "provide a more or less neutral summary of the

key relevant evidence presented at trial." See United States v.

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Flores-Rivera, 787 F.3d 1 , 9 (1st Cir. 2015). According to the

testimony at trial, in the early evening hours of May 6, 2015, a

dispatch officer at the municipal police department in Juncos,

Puerto Rico issued a radio call alerting officers that there had

just been gunfire at Tite Curet Street in Urbanization Estancias

de la Ceiba ("UEC"). More specifically, the dispatch officer

stated that she had received two separate civilian calls reporting

the shooting and had heard detonations over the phone. The

dispatch officer also communicated that a white Toyota Tundra truck

with tinted windows had transferred weapons to a grey vehicle, had

run over a person, and was now headed toward Road 198 and Las


Officers Nilka Figueroa-Negron ("Figueroa") and Luis

Rosa-Gonzalez ("Rosa"), who worked for the municipal police

department, heard the radio transmission. In response, Figueroa

and Rosa drove down Road 198 in the direction of UEC. As they

were driving down Road 198, Figueroa and Rosa spotted a white

Toyota Tundra with tinted windows heading towards them. Believing

that this car matched the description provided in the radio call,

Officer Rosa turned the police patrol car around with the intention

of stopping the Toyota Tundra.

Officer Rosa turned on the lights and siren while Officer

Figueroa used the loudspeaker to order the driver, who was Centeno,

of the Tundra to pull over. The Tundra stopped about six seconds

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later. Officers Figueroa and Rosa stepped out of their police

vehicle and, with their weapons drawn, approached the Tundra. By

this point, two Puerto Rico Police Department ("PRPD") officers,

who had also received a radio transmission reporting gunfire at

UEC, had reached the scene. The PRPD officers ordered Centeno,

who was alone in the vehicle, to turn off the engine and lower the

window. Centeno lowered his window halfway and, approximately a

minute later, stepped out of the Tundra. The officers noted that

Centeno looked nervous and asked him where he was coming from; in

response, Centeno stated that he was coming from UEC, where he was

looking for a house to rent. The officers then placed Centeno on

the ground, and Officer Rosa handcuffed him. The parties both

agree that at this point, the stop had ripened into an arrest.

See United States v. Centeno-Gonzalez, 177 F. Supp. 3d 721 , 729

n.5 (D.P.R. 2016).

Once Centeno had been secured, Officers Figueroa and

Rosa left to investigate the crime scene at UEC.1 Meanwhile, the

PRPD police officers remained with Centeno at the scene of his

1 During the suppression hearing, Officers Figueroa and Rosa testified that, once they reached Tite Curet Street in UEC, they were directed to the residence where the shooting took place. Inside the residence, they found a man with several gunshot wounds who was non-responsive. They did not find any evidence that someone had been run over. Once the crime scene had been secured and reinforcements had arrived, Officer Rosa returned to the location where the Centeno had been pulled over and detained. Centeno was not charged federally in connection with the homicide.

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stop. Centeno watched as another officer arrived with a dog that

was trained in detecting firearms. While circling and sniffing

the exterior of the Toyota Tundra under the guidance of an officer,

the dog sat down, according to protocol and training, that

indicated that the dog had detected the scent of a firearm. The

Toyota Tundra was then sealed and towed, and Centeno was taken to

a detention center for processing.

The next day, officers obtained a warrant to search the

interior of the Toyota Tundra. While searching the vehicle,

officers found a hidden compartment in the dashboard near the

radio. Inside the compartment, officers found a firearm, magazines

for the weapon, a black glove, and two Ziploc bags with a cream-

colored substance, among other things. Subsequent testing

indicated that the cream-colored substance contained cocaine. DNA

samples collected from the firearm and the glove were tested and

found to be consistent with Centeno's DNA.


On August 6, 2015, Centeno was indicted for possession

of cocaine base with intent to distribute, in violation of 21

U.S.C. §841; possession of a firearm in furtherance of a drug

trafficking crime, in violation of 18 U.S.C. §924(c)(1)(A)(i);

and, possession of a firearm by a convicted felon, in violation of

18 U.S.C. §922(g)(1). In advance of trial, Centeno moved to

suppress all physical evidence seized from the vehicle and any

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statements attributed to him after the stop because they

constituted the fruits of an unlawful arrest. He also contended

that the affidavit submitted in support of the warrant to search

his car contained false information and requested an evidentiary

hearing under Franks v. Delaware, 438 U.S. 154 (1978). Because

the motion did not make a substantial preliminary showing that the

statements made in support of the warrant application were

knowingly or recklessly false, the district court denied Centeno's

request for a Franks hearing. United States v. Centeno-Gonzalez,

No. 15-346 (FAB), 2015 WL 13729918 at *3 (D.P.R. Dec. 31, 2015).

A hearing was held, however, before a magistrate judge

on the question of the validity of Centeno's arrest. Id. at *1-

3. In its report and recommendations, the magistrate judge

reasoned that Centeno's arrest was unlawful and recommended the

suppression of "all tangible evidence gained following the

unlawful arrest." Id. at *17. The government timely objected.

Upon review, the district court denied the motion to suppress in

full, and the evidence obtained from the search was admitted at


During trial, the government also introduced a

stipulation and officer testimony regarding Centeno's prior

firearm conviction, including evidence that his prior conviction

was based on evidence that a firearm had been recovered from a

hidden compartment in the dashboard of Centeno's car. For his

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part, Centeno called a witness who testified that the Toyota Tundra

was registered to her and had been purchased by her brother, who

had a prior drug conviction. Ultimately, the jury found Centeno

guilty of being a felon in possession of a firearm but could not

reach a unanimous verdict with respect to the drug possession

charge and the firearm possession in furtherance of drug

trafficking charge.

Centeno timely appealed.


In his primary challenge, Centeno contends that the

district court erred in denying his motion to suppress the evidence

found in the Toyota Tundra after law enforcement officers arrested

him, used a firearm-detecting dog to inspect the exterior of the

vehicle, and obtained a warrant to search the interior. Centeno

challenges the validity of each of these actions.2

When evaluating a motion to suppress, we review de novo

all legal conclusions, "including the district court's probable

cause and reasonable suspicion determinations, as well as its

ultimate decision to grant or deny the motion to suppress." United

States v. Tiru-Plaza, 766 F.3d 111 , 115 (1st Cir. 2014) (citing,

2 The government argues that Centeno has waived any challenge to the admission of evidence seized from the vehicle because he did not object when that evidence was offered at trial. Centeno fully litigated his motion to suppress and renewed this motion during the trial. And on this record we see no basis for waiver.

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among other authority, United States v. Crespo–Ríos, 645 F.3d 37 ,

41 (1st Cir. 2011)). The district court's factual determinations

are reviewed for clear error. Id. at 114-15. Throughout, we "give

appropriate weight to the inferences drawn by the district court

and the on-scene officers, recognizing that they possess the

advantage of immediacy and familiarity with the witnesses and

events." Id. at 115. Consequently, we "will affirm the district

court's decision if any reasonable view of the evidence supports

it." United States v. McFarlane, 491 F.3d 53 , 56 (1st Cir. 2007).

A. The Arrest

Centeno argues first that the district court improperly

concluded that his arrest was supported by probable cause and,

therefore, was lawful. According to Centeno, the district court

relied on only the Toyota Tundra's proximity to the events and a

"generic" vehicle description while disregarding factors that cut

against probable cause. Under the weight of both the record below

and the pertinent case law, this argument crumbles.

As a preliminary matter, Centeno does not argue that it

would have been unreasonable for law enforcement officers to stop

his car and ask him a few questions. Indeed, the magistrate judge

found, and Centeno did not dispute, that the radio transmissions,

combined with the officers' observation that Centeno's car seemed

to match the description given to the dispatch officer, was enough

to provide reasonable suspicion to pull the car over and briefly

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detain it. Centeno-Gonzalez, 2015 WL 13729918 at *5 (applying the

standard set in Terry v. Ohio, 392 U.S. 1 (1968); see also

Navarette v. California, 572 U.S. 393 , 397-98 (2014) (holding that

an anonymous tip may, in some circumstances, provide officers with

reasonable suspicion to briefly stop and question a driver).

Instead, Centeno argues, even if the officers had

reasonable suspicion to stop him, the stop did not produce any

evidence that would have given the officers probable cause to

arrest him. See McFarlane, 491 F.3d at 56 ("An arrest does not

contravene the Fourth Amendment's prohibition on unreasonable

seizures so long as the arrest is supported by probable cause.").

As we have explained, probable cause exists where "police officers,

relying on reasonably trustworthy facts and circumstances, have

information upon which a reasonably prudent person would believe

the suspect committed or was committing a crime." United States

v. Burhoe, 409 F.3d 5 , 10 (1st Cir. 2005). It does not require

law enforcement officers to have "an ironclad case . . . on the

proverbial silver platter." United States v. Diallo, 29 F.3d 23 ,

26 (1st Cir. 1994) (internal citations omitted). Instead, "[i]t

suffices if . . . a prudent law enforcement officer would

reasonably conclude that the likelihood existed that criminal

activities were afoot, and that a particular suspect was probably

engaged in them." Id. (quoting United States v. Chapdelaine, 616

F. Supp. 522 , 526 (D.R.I. 1985), aff'd 795 F.2d 75(1st Cir. 1986));

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see also Wong Sun v. United States, 371 U.S. 471 , 479 (1963)

(holding that probable cause requires only a determination that

there is "evidence which would warrant a man of reasonable caution

in the belief that a felony has been committed"). Consequently,

probable cause is not a creature of certainty and does not require

either the level of proof needed to secure a conviction or even an

"unusually high degree of assurance." United States v. Clark, 685

F.3d 72 , 76 (1st Cir. 2012); see also Maryland v. Pringle, 540

U.S. 366 , 371 (2003) (explaining that probable cause "deals with

probabilities and depends on the totality of the circumstances").

Here, the district court determined -- and neither party

disputes -- that the moment of arrest was when Centeno exited the

Toyota Tundra and was lowered to the ground and handcuffed. At

that point, the officers had in their arsenal several important

pieces of information: 1) two separate civilian calls had provided

the dispatch officer with similar details regarding an active

shooting; 2) the dispatcher herself had overhead gunfire while on

the phone with those callers; 3) the officers observed Centeno

driving a vehicle that matched the description provided in the

phone calls while traveling away from UEC; 4) the officers spotted

Centeno close in time and place to the shooting; and, 5) when

asked, Centeno told officers that he had just left the exact area

of the shooting.

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Taken together, this evidence provided the district

court with an adequate basis to conclude that officers had probable

cause to arrest Centeno. For starters, the officers had reason to

believe that criminal activity had occurred at UEC. The first

caller described seeing a man in a white Toyota Tundra with tinted

windows deliver firearms to a grey vehicle. That caller also

stated that she watched as two individuals from the grey vehicle

proceeded to shoot someone. No intellectual gymnastics are needed

to reach the conclusion that the officers' reliance on this

information was reasonable given the totality of the

circumstances, including the fact that the caller provided the

information contemporaneously. See Navarette, 572 U.S. at 399 (stating that the contemporaneous nature of a phone call reporting

criminal activity was a factor supporting the conclusion that an

anonymous tip was reliable).

Other pieces of information also connected Centeno to

the reported criminal activity. First, the vehicle that Centeno

was driving matched the multi-factored description that the

officers had been given. Both callers reported that a white Toyota

Tundra had been involved with the exchange of firearms. The first

caller added that the Toyota Tundra had tinted windows and its

occupant was a man. The second caller reported that the Tundra

was headed toward Juncos. Where the vehicle description includes

the vehicle's make, model, color, and window condition; the gender

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of the vehicle's occupant; and the direction and route in which

the vehicle was traveling, the description can hardly be described

as "generic." In addition, Centeno's geographic and temporal

proximity to the crime scene further connected him to the criminal

activity. The officers spotted Centeno only two to four minutes

after receiving the radio call reporting the shooting, and Centeno

himself confirmed that he was coming from the area where the crime

took place. To be sure, the officers never saw Centeno commit a

crime; the conduct they observed was entirely innocent but was

enough to corroborate the information provided by the two callers.

See Illinois v. Gates, 462 U.S. 213 , 241-42 (1983) (holding that,

when making a warrantless arrest, officers "may rely upon

information received through an informant . . . so long as the

informant's statement is reasonably corroborated (internal

quotations and citation omitted))"; McFarlane, 491 F.3d at 57 ("A

statement from a source can constitute the basis for probable cause

. . . so long as there is a sufficient basis for crediting the

source's reliability.").

Moreover, while any one of these factors likely would

not have been enough on its own to establish probable cause, it is

their cumulative impact with which we are concerned. See

McFarlane, 491 F.3d at 56 (recognizing that courts resolving

challenges to probable cause "should evaluate the totality of the

circumstances" (citing United States v. Jones, 432 F.3d 34 , 41

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(1st Cir. 2005))). For this reason, Centeno's argument, which

turns on excessively slicing and dicing the information that was

before the officers, falls flat. The crucial question for us is

not whether every single, conceivable factor before the officers

gestured at the defendant's criminality; instead, the question is

whether the factors that meaningfully linked the defendant with

the criminal activity, when taken together, are sufficiently

specific and compelling to establish probable cause. We conclude,

on the record before us, that the factors that linked Centeno to

the reported shooting in UEC were sufficient to support a finding

of probable cause. See, e.g., United States v. Dion, 859 F.3d

114 , 132-33 (1st Cir. 2017) (rejecting defendant's argument that

"certain other facts deserved more weight than they received from

the district court['s]" probable cause determination and declaring

that "evidence in the record supports the district court's

findings, and that is that").

We also note that Centeno's contentions that there was

no physical record of any phone calls describing a white Toyota

Tundra (though there was suppression-motion testimony on that

point) and that there was no hit-and-run do not defeat a finding

of probable cause. In determining probable cause, we consider

only the information available to the officers at the time of the

arrest. See Diallo, 29 F.3d at 25 . Even if the officers made a

mistake of fact, an arrest will still be justified if the mistake

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was "objectively reasonable" at the time. United States v. Coplin,

463 F.3d 96 , 101 (1st Cir. 2006); see also United States v.

Ruidiaz, 529 F.3d 25 , 29 (1st Cir. 2008). Here, at the time of

the arrest, the officers had no reason to believe that the

information they received from the dispatch officer was false or

misleading. They certainly had no reason to believe, as Centeno

contended at trial, that the dispatch officer never actually

received any phone calls reporting the crime or that the phone

calls never actually described the vehicle involved.

Considering the totality of the circumstances, then, we

find no error in the district court's determination that Centeno's

arrest was supported by probable cause.

B. The Dog Sniff

Centeno also argues that the officers' use of a firearm-

detecting dog to inspect the outside of the Toyota Tundra after

his arrest constituted an unlawful search that violated the Fourth

Amendment. Because we have already concluded that his arrest was

lawful, we need not address his first contention -- that the dog

sniff was tainted by an unlawful arrest. We focus instead on his

second contention -- that the dog sniff constituted an unreasonable


As a threshold matter, Centeno's Fourth Amendment

challenges to law enforcement actions that were directed at the

Toyota Tundra require a threshold finding. There can only be a

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Fourth Amendment violation where the complainant had an

expectation of privacy in the item that was searched. See Rakas

v. Illinois, 439 U.S. 128 , 133-34 (1978); see also United States

v. Almeida, 748 F.3d 41 , 47 (1st Cir. 2014) (discussing the factors

courts look at to determine "whether a person has a reasonable

expectation of privacy in a vehicle," and therefore, has standing

to challenge the admission of evidence found in that vehicle). The

government here argued before both the district court and this

court that Centeno lacked a reasonable expectation of privacy in

the vehicle and therefore could not object to the introduction of

evidence found in the vehicle. However, it did not present this

argument to the magistrate judge, meaning there were no findings

of fact on this question. Consequently, the district court

concluded that, since Centeno's motion to suppress failed on the

merits, it would assume without deciding that he had standing to

bring such a motion. Centeno, 177 F. Supp. 3d at 727-28 . Because

we affirm the district court's ruling on the merits, we will follow

its lead and assume, without deciding, that Centeno has a

reasonable expectation of privacy in the vehicle.

The question of whether a firearm-detecting dog's sniff

of the exterior of a vehicle amounted to a search under the Fourth

Amendment is a matter of first impression in this circuit.

However, because we conclude that the dog sniff was reasonable and

was supported by probable cause, we need not resolve this question.

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See United States v. Mayendia-Blanco, 905 F.3d 26 , 37 (1st Cir.

2018) (noting that "[t]he simplest way to decide a case is often

the best" (quoting Stor/Gard, Inc. v. Strathmore Ins. Co., 717

F.3d 242 , 248 (1st Cir. 2013))).

When the dog sniff took place, the officers not only had

probable cause to believe that Centeno was involved in criminal

activity at UEC, they also had confirmation from Officer Rosa that

someone had been shot and killed at UEC. As a result, the same

factors that gave the officers probable cause to arrest Centeno

also gave the officers probable cause to inspect the vehicle. And,

the manner in which the officers inspected the vehicle was

reasonable given the circumstances; as the Supreme Court has

observed, a canine sniff is "limited both in the manner in which

the information is obtained and in the content of the information

revealed." United States v. Place, 462 U.S. 696 , 702 (1983). Any

invasion of privacy, then, is minimal. Furthermore, because he is

"[t]he driver of a car on a public highway[,] [Centeno] is

considered to have a diminished expectation of privacy with regard

to his vehicle." United States v. Rodriguez-Morales, 929 F.2d

780 , 788 (1st Cir. 1991); see also Arizona v. Gant, 556 U.S. 332 ,

343 (2009) ("[C]ircumstances unique to the vehicle context justify

a search incident to a lawful arrest when it is reasonable to

believe evidence relevant to the crime of arrest might be found in

the vehicle." (internal quotations and citation omitted)).

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We therefore conclude that the dog sniff was reasonable.

C. The Search Warrant

Centeno also raises two distinct challenges to the

warrant that the officers obtained to search the interior of the

vehicle. We discuss each challenge in turn.

1. Probable Cause

First, Centeno contends that the affidavit underlying

the search warrant failed to establish probable cause because 1) it

stated that "objects" were transferred between the vehicles,

instead of specifically identifying those objects as guns; 2) it

failed to specify what the dog detected; and 3) it failed to reveal

whether the dog was adequately trained or certified. Because

Centeno did not argue, or even mention, the question of the dog's

training and certification in his original motion to suppress,

this argument is waived. United States v. Crooker, 688 F.3d 1 , 10

(1st Cir. 2012). Though the other two arguments were only hinted

at in the district court, we will nevertheless consider and reject

them on their merits.

To survive appellate review, a "warrant application must

demonstrate probable cause to believe that (1) a particular person

has committed a crime (the 'commission' element), and

(2) enumerated evidence of the offense will be found at the place

to be searched (the 'nexus' element)." United States v. Beckett,

321 F.3d 26 , 31 (1st Cir. 2003) (citing United States v. Zayas

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Diaz, 95 F.3d 105 , 110–11 (1st Cir. 1996)). We evaluate the

affidavit "in a practical, common-sense fashion and accord

considerable deference to reasonable inferences the [issuing

judicial officer] may have drawn from the attested facts." Id.

(quoting United States v. Barnard, 299 F.3d 90 , 93 (1st Cir. 2002)

(alterations in original). In light of the "great deference" that

is owed, we reverse a magistrate's decision to issue a search

warrant "only if there is no substantial basis for concluding that

probable cause existed." United States v. Procopio, 88 F.3d 21 ,

25 (1st Cir. 1996) (quoting Gates, 462 U.S. at 238-39 ) (cleaned


This standard is fatal to Centeno's challenge, which

essentially boils down to his discomfort with the fact that the

word "guns" was not expressly used in the affidavit. The problem

for Centeno, however, is the language that was employed in the

affidavit reasonably supported the inference that the object that

was transferred at the scene of the crime, and the object that the

dog detected in the car, was a firearm. The affidavit indicates

that an officer spoke with an anonymous caller who reported that

a white Toyota Tundra transferred "objects" to a grey Hyundai and

that, shortly after that transfer, detonations were heard. That

scenario -- particularly the presence of detonations -- permitted

a reasonable inference that the "objects" passed were the guns

that created the detonations. The affidavit goes on to indicate

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that a Tundra was then stopped close in place and time to the

detonations. The affidavit also specifically identifies Centeno

as the driver of the Tundra and indicates that, when stopped,

Centeno told officers that they could not search the Tundra without

a judicial order. The affidavit states that a law enforcement dog

then "inspect[ed] the vehicle going around the same" and "mark[ed]

the lateral doors."

Considering the totality of the information in the

affidavit, we see nothing improper in the issuing judge having

drawn an inference that the item that the dog detected was a gun.

Nor do we see anything improper in the issuing judge's conclusion

that the affidavit establishes sufficient probable cause to

authorize a search of the vehicle.

Moreover, in issuing the affidavit, the judge

specifically stated that officers were authorized to search the

vehicle "for weapons and any other violations of the law." In

light of this statement, then, it seems clear that a reasonable

officer would have understood that the warrant was valid. See,

e.g., Stanford v. Texas, 379 U.S. 476 , 485 (1965) (holding that,

to be valid, a warrant must be supported by probable cause and

must "particularly describe the things to be seized." (quoting

Marron v. United States, 275 U.S. 192 , 196 (1927))). Even if the

warrant was deficient, it was not so facially invalid as to require

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suppression of the evidence discovered pursuant to its terms.3

United States v. Leon, 468 U.S. 897 , 923 (1984).

2. The Claim of False Information

Centeno maintains, as he did below, that the search

warrant was granted in reliance on false information in violation

of Franks v. Delaware, 438 U.S. 154 , 155-56 (1978). According to

Centeno, the hit-and-run that is mentioned in the search warrant

affidavit never occurred, and the content from the anonymous phone

calls was greatly misrepresented. The magistrate judge denied

Centeno's request for a Franks hearing on two grounds: first,

because Centeno's complaints were "essentially a discovery issue";

and second, because Centeno failed to provide an affidavit in

support of his request, as is required. Centeno, 2015 WL 13729918 at *3. The district court, in turn, stated that it was adopting

the magistrate's legal conclusion that "Centeno failed to meet his

burden of making a substantial preliminary showing to entitle him

3 We note that it is not entirely clear on this record that law enforcement officers needed a warrant to search the car both because there was a reasonable possibility that it contained evidence related to the shooting, see generally Arizona v. Gant, 556 U.S. 332 (2009), and because it was lawfully impounded after Centeno's arrest. See generally United States v. Davis, 909 F.3d 9 (1st Cir. 2018); United States v. Coccia, 446 F.3d 233 (1st Cir. 2006). Since the government has not sought to justify the search on either basis, however, we will assume that a warrant was required to search the car, and affirm on the basis that the warrant at issue was valid.

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to a Franks hearing." We conclude that the record presents no

legitimate basis for upsetting this determination.

In Franks, the Supreme Court carved out an important

avenue for defendants to challenge the veracity of the

representations supporting an application for a search warrant.

438 U.S. at 155-56 . To be entitled to an evidentiary hearing under

Franks, a defendant must make "a substantial preliminary showing

that a false statement knowingly and intentionally, or with

reckless disregard for the truth, was included by the affiant in

the warrant affidavit[.]" United States v. Graf, 784 F.3d 1 , 3

(1st Cir. 2015) (quoting Franks, 438 U.S. at 155 –56). In addition,

for the defendant to be entitled to relief, "the allegedly false

statement [must be] necessary to the finding of probable cause."

Id. (quoting Franks, 438 U.S. at 155 –56). On appeal, this court

"reviews the denial of a Franks hearing for clear error." United

States v. Reiner, 500 F.3d 10 , 14 (1st Cir. 2007). Clear error

"exists only when we are 'left with the definite and firm

conviction that a mistake has been committed.'" United States v.

Hicks, 575 F.3d 130 , 138 (1st Cir. 2009) (quoting United States v.

Castillo, 287 F.3d 21 , 25 (1st Cir. 2002)).

We find no clear error here. We have made abundantly

clear that, because "[a]n application 'supporting a . . . warrant

is presumptively valid,'" it is incumbent on the defendant to show

that he is entitled to a Franks hearing. United States v. Barbosa,

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896 F.3d 60 , 67 (1st Cir. 2018) (quoting United States v. Gifford,

727 F.3d 92 , 98 (1st Cir. 2013)). The Supreme Court itself stated

that "allegations of deliberate falsehood or of reckless disregard

for the truth . . . must be accompanied by an offer of proof."

Franks, 438 U.S. 154 at 171. "Affidavits or sworn or otherwise

reliable statements of witnesses should be furnished, or their

absence satisfactorily explained." Id. Without explanation,

Centeno failed to provide any evidence or even an affidavit in

support of his request for a Franks hearing. Even after the

magistrate judge expressly pointed to the lack of an affidavit in

denying Centeno's request, Centeno made no attempt to correct the

inadequacy. His offer at trial of expert testimony regarding the

anonymous phone calls is not enough to make up for this deficiency.

In these circumstances, the decision to deny the hearing does not

rise to the level of clear error.

As to Centeno's contention that the failure to

adequately request a Franks hearing constituted ineffective

assistance of counsel, usually such claims "should be ventilated

in the trial court in the first instance." United States v. Wyatt,

561 F.3d 49 , 52 (1st Cir. 2009). And we see no reason not to apply

the usual rule here. We pass no judgment on the merits of the

ineffective assistance of counsel claim; instead, the claim is

remitted to a petition for collateral relief pursuant to 28 U.S.C.

§ 2255, assuming Centeno chooses to file one.

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Centeno also argues that he is entitled to a new trial

because of a series of evidentiary rulings that he contends were

erroneous and that had the cumulative effect of depriving him of

a meaningful opportunity to present a complete defense. With a

cumulative error challenge, "[w]e review the rulings for abuse of

discretion before deciding what cumulative effect any errors may

have had." United States v. Perez-Montanez, 202 F.3d 434 , 439

(1st Cir. 2000) (citing United States v. Cardales, 168 F.3d 548 ,

557 (1st Cir. 1999)). In doing so, we "must consider each such

claim against the background of the case as a whole, paying

particular weight to factors such as the nature and number of the

errors committed; their interrelationship, if any . . . ; and the

strength of the government's case." United States v. Sepulveda,

15 F.3d 1161 , 1196 (1st Cir. 1993). Applying this standard to

Centeno's trial, we find no cumulative error. We outline our

pathway to this conclusion.

A. Evidence Regarding Centeno's Prior Arrest

Over the defense's objection, the district court

permitted the government to introduce testimony from a PRPD police

officer that, in June 2011, Centeno was arrested after he was

observed placing a firearm in a homemade, hidden compartment in

the dashboard of a vehicle. When officers searched that

compartment, they found Centeno's license along with pistol

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magazines. Centeno now argues that the admission of this prior

bad act evidence constituted error. While we continue to require

district courts to carefully evaluate prior bad act evidence under

Federal Rules of Evidence 404(b) and 403 before admitting it, it

is apparent to us that, in this case, the district court did not

err in admitting the officer's testimony with respect to Centeno's

prior arrest.

To admit prior bad act evidence, a trial judge must first

determine that the proffered evidence has "a special relevance,

i.e., a non-propensity relevance," such as "motive, opportunity,

intent, preparation, plan, knowledge, identity, absence of

mistake, or lack of accident." United States v. Henry, 848 F.3d

1 , 8 (1st Cir. 2017) (internal quotations and citations omitted).

Even then, the evidence is only admissible if its probative value

is not substantially outweighed by unfair prejudice under Rule

403. Id.

The government represented to the district court that

the testimony regarding Centeno's prior arrest was intended to

show that Centeno engaged in a specific pattern of storing firearms

in hidden vehicle compartments and, therefore, would have likely

been aware that there was a firearm hidden in the Toyota Tundra.

Further, Centeno's knowledge and lack of mistake were directly at

issue here; during trial, Centeno focused his defense on his

contention that he did know there was a hidden compartment that

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contained firearms and that someone else had hidden the firearms

in the vehicle. Thus, the requirements of Rule 404(b) are

satisfied; evidence relating to Centeno's prior conviction went

directly to the question of his knowledge or lack of mistake rather

than to his propensity toward criminal activity.

However, even when initially consistent with Rule

404(b), prior bad act evidence may become troublesome if the

evidence itself is unfairly prejudicial or if it is admitted in

excess or misused by the government over the course of the trial.

The evidence here, however, was not presented in a way that posed

a risk that it would "lure the factfinder into declaring guilt on

a ground different from the proof specific to the offense charged."

Old Chief v. United States, 519 U.S. 172 , 180 (1997). Evidence of

Centeno's prior arrest was offered to the jury in the form of

(relatively brief) testimony from a single witness, who was subject

to cross-examination. And, defense counsel was given the

opportunity to argue that the prior arrest was not, in fact,

probative of Centeno's knowledge in this case. Nor did the

government misuse evidence of Centeno's prior arrest. The

government's closing illustrates that it utilized the bad act

evidence in tight keeping with the special relevance upon which it

had been admitted:

[T]he fact that this Defendant has used hidden compartments in the past goes to show that in this particular case, this wasn't a mistake.

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It wasn't an accident. He wasn't just merely in the wrong place at the wrong time. He clearly knows how to get access to hidden compartments, and he clearly knows what he wants to use them for. And what he wants to use them for or his intent is to conceal things that he is not supposed to have: [d]rugs, guns, bullets, a drug ledger.

Such restrained use of prior bad act evidence is

consistent with our case law, especially when coupled with the

court's limiting instruction. At the close of the evidence, the

district court made clear to the jury that "[e]ven if you find

that the Defendant may have committed similar acts in the past,

this is not to be considered as evidence of character to support

an inference that the Defendant committed the acts charged in this

case." See United States v. Altvater, 954 F.3d 45 , 55 (1st Cir.

2020) ("[W]e have a long-standing presumption that jurors follow

instructions," and, as a consequence, any prejudice resulting from

the admission of testimony related to the prior bad act may be

ameliorated by proper jury instructions. (internal quotations and

citation omitted)). Accordingly, there was no abuse of discretion

in the admission of officer testimony regarding Centeno's 2011


Centeno also argues that the district court's purported

error in admitting this testimony was "compounded" by errors in

the jury instruction regarding the testimony. But Centeno concedes

that he did not object to the instruction during the trial and

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that either error, in isolation, might not warrant reversal. Given

these concessions, Centeno's challenge to the jury instruction

sinks along with his argument that the admission of the testimony

relating to his prior arrest was erroneous.

B. Evidence Regarding Third Party's Prior Conviction

Next, Centeno argues that the district court erred by

preventing him from introducing testimony that the previous owner

of the Toyota Tundra, José Rondon-Bruno ("Rondon"), had several

prior convictions for both controlled substances and firearms-

related offenses. This evidence, he contends, was material to his

argument that he did not know the Toyota Tundra had a concealed

compartment that contained a firearm.

During trial, Centeno called as a witness the registered

owner of the Toyota Tundra, Zoryant Rondon-Bruno ("Zoryant").

Zoryant testified that Rondon, her brother, was the one who

primarily used the Toyota Tundra; Zoryant had simply helped with

the purchase because Rondon did not have his documents up to date

at the time of purchase. Zoryant also testified that Rondon was

fatally shot a few months before Centeno's arrest in this case.

Centeno attempted to elicit testimony from Zoryant regarding

Rondon's criminal history. The government objected. In the end,

the district court permitted Zoryant to testify that Rondon had

been convicted of drug trafficking but did not allow Zoryant to

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testify as to whether Rondon had been charged with possession of

a firearm.

Centeno now argues that the district court's decision to

prohibit Zoryant from testifying about Rondon's firearm conviction

constituted an abuse of discretion. In Centeno's view, the

exclusion of that testimony violated his right to present a

complete defense. Centeno puts no dressing on this general

assertion other than suggesting that there was a "reasonable

possibility" that introduction of Rondon's firearm-related arrest

would have created reasonable doubt.

While fundamental and robust, "a defendant's right to

present relevant evidence in his own defense 'is not unlimited,

but rather is subject to reasonable restrictions[,]'" including

the Federal Rules of Evidence. United States v. Diaz, 670 F.3d

332 , 346 (1st Cir. 2012) (quoting United States v. Scheffer, 523

U.S. 303 , 308 (1998)); see also Taylor v. Illinois, 484 U.S. 400 ,

410 (1988). Even when evidence is proffered by the defense, a

district court maintains "general discretion to exclude otherwise

relevant evidence 'if its probative value is substantially

outweighed by the danger of unfair prejudice, confusion of the

issues, . . . or by considerations of undue delay [or] waste of

time.'" United States v. DeCologero, 530 F.3d 36 , 60 (1st Cir.

2008) (quoting Fed. R. Evid. 403) (alterations in original).

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When the government objected to a question by the defense

regarding Rondon's firearm history, the district court heard

extended argument from both sides at sidebar and repeatedly asked

Centeno about the purpose of introducing Rondon's prior

involvement with firearms. Despite this opportunity, Centeno

offered no particularized argument as to the relevance of a prior

firearms conviction, much less an argument as to Rule 403


In these circumstances -- where the defendant has failed

before the district court and before us to present a fully formed

argument as to the admissibility, relevance, and import of the

contested evidence -- we must conclude that the district court

acted within its discretion in excluding the evidence. See, e.g.,

Old Chief, 519 U.S. at 183 n.7 (explaining that the defendant has

the burden of demonstrating abuse of discretion on his appeal).

C. Evidence Regarding Police Station Telephone Records

Finally, Centeno objects on appeal to the district

court's denial of his request to introduce testimony and records

from a custodian at a telephone company that serviced the Juncos

police station. According to Centeno, the evidence would have

shown that no civilian calls were received at the police station

between 6:30 and 7:30 P.M. on the day of Centeno's arrest, which

would, in turn, support his contention that the civilian calls

that the dispatch officer reported receiving did not occur as

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claimed and there was never a hit and run. This argument fares no

better than the last.

Trial judges have "discretion under Rule 403 to exclude

. . . evidence if it would distract from the main issues of the

case." DeCologero, 530 F.3d at 60 . Moreover, "[t]he decision on

whether a matter is collateral or material is within the district

court's discretion." Id. (citing United States v. Marino, 277

F.3d 11 , 24 (1st Cir. 2002)).

In excluding the telephone records, the district court

explained that they "do[] not go to a matter of guilt or innocence,

because there is nothing here in the case about the murder or

whether someone was run over by the Tundra." The district court

stressed that this "case is only about a weapon and drugs inside

a secret compartment." It was well within the district court's

discretion to decide that: 1) the core question in this trial was

whether Centeno possessed the firearm and drugs found in the Toyota

Tundra; and that 2) the phone records were too tangential to

survive an objection under Rule 403. All of the charges before

the jury related to whether Centeno possessed the firearm and drugs

found in the Toyota Tundra. While the phone calls that initially

triggered police involvement were important to the motion to

suppress and could have been presented at that juncture, Centeno

has presented no compelling argument that the calls or the dispatch

officer's credibility were critical to the questions that remained

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at trial. Indeed, the dispatch officer did not testify during the

trial, so there was no testimony of hers to impeach. We cannot

say on this record that the district court abused its discretion

in excluding this evidence. For the same reason, we cannot say

that the district court's refusal to allow evidence of the phone

records prevented Centeno from presenting a complete defense or

spared the government's case from "the crucible of meaningful

adversarial testing." Crane v. Kentucky, 476 U.S. 683 , 691 (1986)

(internal quotations and citation omitted).

Because we do not find any error in the district court's

individual evidentiary decisions, Centeno's cumulative error claim

also fails.


For the foregoing reasons, we affirm.

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