United States v. Edward

2003 DNH 183

• Court: District Court, D. New Hampshire
• Decided: October 28, 2003
• Docket: CR-03-066-M
• Status: Published

Opinion

United States v. Edward CR-03-066-M 10/28/03 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

United States of America, Plaintiff

v. Criminal No. 03-66-01-M Opinion No. 2003 DNH 183 Mitchell Edward, Defendant

O R D E R

Defendant moves to suppress evidence obtained as a direct or

indirect result of the execution of an arrest warrant, claiming

that the affidavit supporting issuance of the warrant suffered

from glaring material omissions of fact which, if they had been

included, would have effectively undermined the issuing

magistrate's finding of probable cause. See Franks v. Delaware,

438 U.S. 154 (1978). Having considered defendant's motion to

suppress (document no. 11), and having reviewed the pleadings,

memoranda, attachments, and the record, it is plain that even if

the omitted facts defendant says should have been included in the

affidavit supporting the reguest for the arrest warrant were

added to it, the affidavit still would strongly support a finding of probable cause to arrest the defendant for conspiracy to

commit robbery.

Defendant argues, in essence, that information suggesting

that other persons committed the robbery, as well as information

about the defendant (i.e., his height, race, etc.) which was

inconsistent with the robbery victim's initial descriptions of

the perpetrators, should have been included in the warrant

affidavit. But even had that material been included, the warrant

affidavit still would have provided very strong reason to believe

defendant committed the robbery.

The affidavit disclosed, among other things, that Kelly Moya

attributed statements about defendant's complicity in this

robbery to co-defendant Turcotte. Moya also reported that

Turcotte accurately described both the mechanics of the robbery,

as well as the dress of the robbers, information only the

perpetrators and victim had (i.e., that information had not been

released to the public). Moya's statement regarding pre-robbery

planning comments made by both defendant and Turcotte, in her

presence, further tied defendant to the crime. (Those comments

2 included inquiries by the conspirators about alarms at the

targeted McDonald's restaurant, security cameras on site, the

presence of employees, and whether Moya (a former employee) had

keys to the restaurant). Turcotte also commented that the local

newspaper reported, wrongly, that two white males had committed

the robbery (defendant is not Caucasian), and that a car stolen

from a local parking lot was used in the robbery (a car had

indeed been recently stolen from that lot).

Given the totality of the circumstances presented, an

issuing magistrate would, without question, have found probable

cause to believe that defendant committed the McDonald's

restaurant robbery with Turcotte, even had the magistrate been

provided with the omitted information defendant says should have

been included.

Because defendant has not made a "substantial preliminary

showing" that the warrant affidavit suffered from material

omissions that, if added to the affidavit, would undermine a

finding of probable cause, a Franks hearing (Franks v. Delaware,

supra) is not necessary, and the motion to dismiss (document no.

3 11) is denied. See United States v. Nelson-Rodriquez, 319 F.3d

12 (1st Cir. 2 003).

SO ORDERED.

Steven J. McAuliffe United States District Judge

October 28, 2003

cc: Terry L. Ollila, Esq. Paul J. Garrity, Esq. U.S. Probation U.S. Marshal