Mills v. Merrimack

2004 DNH 111

• Court: District Court, D. New Hampshire
• Decided: June 25, 2004
• Docket: CV-03-136-B
• Status: Published

Opinion

Mills v . Merrimack CV-03-136-B 06/25/04

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Michael M . Mills

v. Civil No. 03-136-B Opinion No. 2004 DNH 111 Merrimack Police Department, et a l .

MEMORANDUM AND ORDER

Plaintiff has moved for reconsideration, arguing that the

court incorrectly granted defendants’ motion for summary

judgment. As the circumstances of this case are set forth in

detail in earlier orders, I decline to restate them here. He

contends that the court, in determining probable cause, relied on

contested facts. He also argues that the court erred as a matter

of law in concluding that Officer Grise was legally wearing a

wire when she went to his home and that his claims related to his

property were precluded by res judicata. I disagree.

In considering the defendants’ motions for summary judgment,

I construed the evidence in the light most favorable to Mills. Notably, I accepted as true all facts stated by the plaintiff in

his amended complaint. I also accepted as true all facts stated

by the defendants that were not contested by Mills in his

objection to their motion for summary judgment. See Local Rule

7.2(b)(2). For example, the defendants stated that the

investigation was based in part on their receipt of an anonymous

letter that contained allegations that a young woman had been

offered a job as a prostitute. Although Mills disputed the

identity of the letter’s author, he did not contest whether the

police actually received such a letter (see Pl.’s Mem. of Law

O b j . to Mot. Summ. J. at 1 ) . The same applies to Mills’ argument

that I erroneously believed the statements made to police by a

confidential informant. Again, I did not. He did not contest

that the police received information from one confidential

informant (see Pl.’s Mem. of Law O b j . to Mot. Summ. J. at 2 ) . I

therefore accepted as true that statements were made to the

police by an informant.

Mills argues that I should not have relied on Detective

Poirier’s statement that there was a binder in the car inside a

bag, thus justifying the search of the car. In his objection,

-2- Mills said that “there is no proof that the item . . . ever was

seen within the vehicle,” and cited to a “Property Report Form”

which states that a 2002 Saturn is to be held pending possible

search warrant . . .” (see Pl.’s Mem. of Law O b j . to Mot. Summ.

J. at 9, Ex. 5 ) . This does not amount to a refutation of Det.

Poirier’s statement in his affidavit that a binder was in the

car. (Defendant’s Mot. Summ. J. Ex. C ) . I therefore accepted as

true Defendant’s statement that a binder was in the car, but also

accepted Mill’s assertion that the police had made no property

report recording its existence. Furthermore, in finding probable

cause for the search of the car, I also relied on the other

evidence available to the police at that time which included the

information that Mills was returning from a meeting to arrange

for some of his “girls” work at a club.

Mills also now argues, for the first time, that Officer

Grise’s report did not contain any statement that she had been

offered to be paid to engage in sexual contact. In his

opposition to the motion for summary judgment, he argued only

that because she did not testify at the criminal trial, and

because he believed that the wire tap was illegal, the

-3- “information obtained from [the] wiretap cannot be used.” (Pl.’s

Mem. Supp. O b j . Def.’s Mot. Summ. J. at 4 ) . He never contested

the veracity of her affidavit. Pursuant to Local Rule 7.2(b)(2),

“All properly supported material facts set forth in the moving

party’s factual statement shall be deemed admitted unless

properly opposed by the adverse party.” Since Mills did not

challenge the truth of the matters asserted in Grise’s report, I

properly deemed them admitted. I therefore decline to reverse my

earlier ruling on this ground.

The remaining facts that Mills contests are not material.

For example, it is irrelevant to the legal inquiry whether

Detective Roy merely logged items during the search. Whether she

participated more fully in the search would not change the

legality of the search itself. I therefore need not further

consider these facts. Mills has not established that any

material facts are disputed.

I also disagree that I erred as a matter of law. In

particular, Mills argues that I erred in finding that Officer

Grise’s use of a body wire during her conversation with him was

permissible. He states that first, he was not under

-4- investigation for one of the crimes for which a body wire is

allowed by law, and second, that the police were required to

obtain permission from the Attorney General under N.H. Rev. Stat.

Ann. § 570-A:2 II(d). I disagree. New Hampshire law allows law

enforcement officers to carry an interception device for officer

safety when investigating a specific set of crimes. N.H. Rev.

Stat. Ann. § 570-A:2 II(c). The list of offenses referred to by

§ 570-A:7, II is codified at § 570-A:7, and includes “organized

crime”. State v . Kilgus, 128 N.H. 577 (1986). “Organized

crime,” defined at § 570-A:1, X I , means the “unlawful activities

of the members of a highly organized, disciplined association

engaged in supplying illegal goods and services, including but

not limited to ... prostitution.” The police had sufficient

information to suspect Mills of running a prostitution ring,

which is why Officer Grise investigated him. Officer Grise was

entitled by § 570-A:2 II(c) to wear a wire to transmit her

conversation with Mills. To the extent Mills argues that the

wiretapping was illegal because the police never obtained

permission from the Attorney General pursuant to § 570-A:2 II(d),

he is incorrect. Section 570-A:2 II(d) is inapplicable to his

case. Section 570-A:2 II(c) clearly authorizes a law enforcement

-5- officer to “carry” a wire to intercept and transmit oral

communications to ensure officer safety when investigating

specific offenses, including prostitution as organized crime.

State v . Ayers, 118 N.H. 90 (1978).

I reiterate my earlier conclusion that all of Mills’ claims

related to his property are barred because he has already sought

relief for those events in another forum. The exact list of

items taken is also immaterial, as the claim has already been

adjudicated. The styling of the claims as theft or conversion or

civil or criminal is irrelevant for res judicata purposes.

All of Mills’s other arguments for reconsideration merely

reiterate the arguments he made in his objection to the

defendants’ motion for summary judgment, and offer no new

justification for his cause.

The motion for reconsideration (doc. n o . 50) is denied.

SO ORDERED

Paul Barbadoro Chief Judge June 2 5 , 2004

cc: William G. Scott, Esq. Scott A . Ewing, Esq. Michael M . Mills

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