United States v. McMullin 05-CR-142-SM 07/18/06 UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
United States of America
v. Criminal No. 05-cr-l42-01-SM Opinion No. 2006 DNH 082 Donald McMullin
O R D E R
Defendant moved to suppress physical evidence, and
subsequent incriminatory statements he made to police, on grounds
that the search of his home that led to the discovery of that
evidence, and which prompted his statements, was
unconstitutional. He argues that the warrant authorizing the
search was not supported by probable cause and that the good
faith exception to the exclusionary rule, established in United
States v. Leon. 468 U.S. 897 (1984), is inapplicable under the
circumstances. An evidentiary hearing was held and, for the
following reasons, the motion to suppress (document no. 14) and
supplemental motion to suppress (document no. 23) are denied.
Background
Although the eventual criminal charges brought against the
defendant related to his unlawful possession of drugs and firearms, this case began as an investigation into the poisoning,
or attempted poisoning, of his neighbor's well.
On November 17, 2004, New Hampshire District Judge Pamela
Albee issued a warrant authorizing a search of defendant's home
and property based upon an application and supporting affidavit
filed by Sergeant Mark O'Brien of the Wakefield Police
Department. Sergeant O'Brien's affidavit informed the judge that
James Fitzpatrick, defendant's next door neighbor, had filed a
complaint with the New Hampshire Department of Environmental
Services ("DES"), stating that the well providing his home with
water had been contaminated by the deliberate introduction of the
chemical pesticide Diazinon, and that he believed the defendant
had done i t .
At Fitzpatrick's request, the DES tested material obtained
from his well and from plumbing fixtures in the home, as well as
a water sample from the well, and found Diazinon to be present.1
1 Defense counsel says, and repeats, in his pleadings, that two water samples were submitted to DES and that the first "tested negative for Diazinon," implying that the well had not in fact been contaminated. But the record is clear that the first submitted sample was not tested for Diazinon. At the end of the plea colloquy on June 21, 2006, defense counsel agreed that if the first sample was not tested for the presence of Diazinon it would be incorrect to suggest that the sample "tested negative" for that substance, and that results of testing for other chemicals on that sample are entirely irrelevant to any issue
2 DES referred the matter to New Hampshire's Attorney General, and
the Attorney General, in turn, referred it to the Wakefield
Police Department, noting that her office would no longer be
investigating the matter.2
Sergeant O'Brien followed up on the Attorney General's
referral by conducting an investigation. His affidavit related
that he began by interviewing Fitzpatrick. Fitzpatrick told
O'Brien that in August of 2004 he noticed that water pressure in
his home was getting low, so he called a plumber to check the
system. Fitzpatrick identified the plumber by name, Arnold Lord,
and said Lord found brown material on faucet and shower fixtures
in the home. Fitzpatrick said the plumber then removed the well
pump (which was 147 feet below the surface) and found that a
granular substance was stuck in and clogging it. Fitzpatrick
told O'Brien that he had the particulate matter tested by DES and
it was found to contain Diazinon, a chemical pesticide.
Fitzpatrick gave O'Brien the granular substance removed from the
well. O'Brien also noted that DES testing disclosed that, as of
pending he r e .
2 Defense counsel characterizes the referral as the Attorney General's having "declined to prosecute," implying that the complaint was deemed to be without merit, or was of insufficient merit to warrant enforcement action, which seems an overstatement.
3 the time of testing, the pesticide had dissolved sufficiently to
be present in the water sample at levels of 4 parts per billion.
According to the warrant application, the accepted safe levels in
drinking water is less than 6 parts per billion.
Sergeant O'Brien examined the well location, finding it to
be half way down the driveway, close to the boundary of
defendant's driveway, separated by a few trees. Fitzpatrick told
O'Brien that the plumber checked the well cover and found that
the bolts showed no sign of tampering, but the well cap had a
threaded breather cap that can be unscrewed, opening a 2-3 inch
diameter hole directly into the well. Fitzpatrick also told
O'Brien that the previous owner of his property, identified as
Frank Covie, had been in a dispute with defendant over the
purchase of the property, and that Covie, too, found the well
contaminated, with dead fish.
Water samples were taken by O'Brien from the filter on the
main well pipe, and from the faucet at the kitchen sink. Those
samples, and the granular substance provided by Fitzpatrick, were
brought to the DES by O'Brien to be examined, but theaffidavit
does not refer to any additional test results.
4 O'Erien also related, presumably based upon his
investigation, that Diazinon is a pesticide that exists in
several forms, has a low presence in soil, with a half-life of 2-
4 weeks, and seldom migrates past the first Va inch of topsoil.
O'Erien informed the judge that Fitzpatrick believed
defendant put the Diazinon in his well because they had a history
of disputes, court cases were pending in which Fitzpatrick was a
potential witness against defendant, and defendant could easily
access the well from his own property. O'Erien checked the
records of the Wakefield Police Department and found a number of
reports "between Mr. Fitzpatrick and Mr. McMullin,"3 confirming
that indeed there was an acrimonious relationship of long
standing duration. O'Erien summarized the reports in short-hand
fashion, giving the police incident number, the date, and a short
statement of the jist of the complaint at issue. Some twenty-two
reports were referenced, eighteen of which seem to have been
complaints by Fitzpatrick and four by defendant.
3 Defense counsel argues that defendant did not know about some of the complaints made by Fitzpatrick related to him, and so could not have been motivated to retaliate, at least not based upon those specific complaints. The summary of reports did, however, plainly disclose a rather continuous state of animosity between both men.
5 O'Erien also related that defendant "has numerous complaints
and problems with the other neighbors on the road" and that two
civil lawsuits involving defendant were pending in which
Fitzpatrick was a potential witness - one involving the Town of
Wakefield, and one the Crew Road Association, alleging road
damage by defendant (defendant lives on Crew Road), as well as a
criminal matter in which allegations of vandalism to Crew Road
were brought against defendant. Fitzpatrick was expected to be a
witness in the criminal case as well. Judge Albee, the issuing
judge, noted that O'Erien also supplemented his affidavit by
adding that the well was located approximately 300 - 350 feet
down the Fitzpatrick driveway, on the edge of the defendant's
driveway, giving defendant access to the well.
The warrant was executed by Lieutenant Kenneth Fifield.
Lieutenant Fifield told defendant that he had a search warrant,
explained the nature of the investigation, and described the
items police would be looking for. Defendant volunteered that he
had a bag of Diazinon in his shed, but said it was unopened.
Lieutenant Fifield, noting that the material in Fitzpatrick's
well could not have come from an unopened bag, explained that a
full search would be conducted, beginning with the residence,
presumably for receipts or other indicia of purchase.
6 Defendant was asked if he had any receipts for the Diazinon.
He said he kept receipts but did not think he could find them. A
searching officer found a loaded AR-15 rifle in a kitchen closet,
and, after a cursory search of the first floor, the search team
moved to the basement, where a weighing scale and a glassine
baggy containing what appeared to be marijuana were seen. The
search was stopped while the police sought to enlarge the scope
of the warrant. The court twice enlarged the scope and the
subsequent searches led to the discovery of the multiple firearms
and drugs supporting the charges pending now. Defendant only
challenges the initial search warrant.
The Search Warrant
"For evidence to avert suppression, normally the warrant
application must demonstrate probable cause to believe that a
particular person has committed a crime - /the commission
element'’ - and that enumerated evidence relevant to the probable
criminality likely is located at the place to be searched - 'the
"nexus" element.'’" United States v. Zavas-Diaz. 95 F.3d 105,
110-111 (1st Cir. 1996)(citations omitted). To meet the probable
cause standard, the "totality of the circumstances" disclosed in
the supporting affidavit(s) and exhibit(s) must establish a "fair
probability that contraband or evidence of a crime will be found
7 in a particular place." Illinois v. Gates. 462 U.S. 213, 238
(1983) .
"Reviewing courts, including both the district court and the
court of appeals, must accord ■'considerable deference' to the
'probable cause' determination made by the issuing magistrate."
Zavas-Diaz, at 111 (citing United States v. Tavlor, 985 F.2d 3, 5
(1st Cir. 1993) ("[T]he duty of a reviewing court is simply to
ensure that the magistrate had a 'substantial basis for . . .
conclud[ing]' that probable cause existed.")). Moreover, the
reviewing court must examine "the affidavit in 'a practical,
"common sense" fashion, and [ ] accord considerable deference to
reasonable inferences [the issuing] magistrate may have drawn
from the attested facts.'" I d . (citing United States v.
Bucuvalas, 970 F.2d 937, 940 (1st Cir. 1992)). And, "given the
strong preference for warrants under our Fourth Amendment
jurisprudence, normally a reviewing court will defer to an
issuing magistrate's 'probable cause' determination in a doubtful
or marginal case." I d . (citing United States v. Ventresca. 380
U.S. 102, 109 (1965); United States v. Craig. 861 F.2d 818, 823
(5th Cir. 1988)).
Considering all of the circumstances as presented. Judge
Albee determined that a fair probability existed that evidence of the apparent poisoning of Fitzpatrick's well (e.g., chemicals
containing Diazinon, pesticides, lawn care products, receipts and
evidence of purchase of same) would likely be found on
defendant's premises. See Illinois v. Gates. 462 U.S. at 238-39.
Defendant challenges that finding.
This was arguably a marginal case, and Judge Albee fully
recognized that fact. She noted that the evidence supporting the
warrant application was "circumstantial" in nature when she
issued the warrant. But, it is also a case in which the issuing
magistrate could have drawn reasonable inferences from the
attested facts sufficient to support a probable cause
determination, and, in any event, sufficient to satisfy this
court that she had a substantial basis upon which to conclude
that probable cause existed.
Based upon the affidavit and supporting exhibits filed by
O'Brien, Judge Albee determined that: "Given the level of
animosity between Fitzpatrick and [defendant], and the fact that
Fitzpatrick is a witness in pending cases against [defendant],
[defendant] can be said to have motive as well. Although the
evidence is circumstantial, the court finds a sufficient basis to
support probable cause to issue a search warrant of [defendant's]
property, vehicles, sheds and other out buildings and curtilage."
9 Judge Albee found sufficient evidence to believe that crimes
probably had been committed, (i.e., attempted second degree
assault and criminal mischief), and that evidence of those crimes
"may be found at the Residence, Curtilage, Outside containers,
trailers, and Vehicles, and or Trailer/Containers located at the
[defendant's] residence at 441 Crew Road in Wakefield, New
Hampshire." She authorized a search of the premises for
"chemicals containing Diazinon including pesticides,
insecticides, lawn care products, granular, pellet, and pow[d]er
or liquid or receipts and documentation of purchase of the same."
See Search Warrant dated November 17, 2004.
First, it was apparent that Fitzpatrick's well had been
intentionally contaminated with the pesticide Diazinon. The
affidavit and exhibits disclosed that the chemical is not
naturally occurring, would not penetrate through the ground to
the level of the well by natural means, and yet it was found in
the filter of the well pump in granular form, as well as in
faucets and a shower head in the home. It was discovered by a
third party - a plumber called in to investigate low water
pressure - and the contaminant and water sample tested positive
for the chemical. Those tests were conducted by a state agency.
Necessarily, then, Diazinon was intentionally put into the well
10 by someone, likely through the breather cap opening on the well
cover. That act was unarguably criminal in nature.4
Second, putting aside the implausible "Fitzpatrick might
have done it to himself" theory implied by defendant, and
considering the totality of the circumstances, the most likely
suspect was plainly the defendant. He had a motive. The near-
continuous past history of animosity toward, and confrontations
with Fitzpatrick demonstrated that defendant did not like
Fitzpatrick and was not above deliberately causing him problems
(e.g., running his truck and other vehicles in a manner that
caused fumes to blow into Fitzpatrick's home, seemingly
intentionally). See Defendant's Hearing Exhibit X. Fitzpatrick
described the ongoing problems with defendant to Sergeant
O'Brien, and O'Brien confirmed the antagonistic relationship when
he reviewed the Wakefield Police Department records, which he
summarized for the judge.
4 Defendant seems to imply that Fitzpatrick could be completely fabricating, and in fact could have put the Diazinon in his own well. That would be one, but not the most likely, explanation for the Diazinon's presence in the well and home water system. But Fitzpatrick's family also lived in the home, so even if he poisoned his own well, the act would still constitute a crime.
11 Defense counsel says that some of Fitzpatrick's complaints
were not meritorious, or the problems were not tied to the
defendant, and that the relationship had not been all that
antagonistic for some time. But the police records confirmed
Fitzpatrick's appraisal in the main, and both the police and
issuing judge had no reason to seriously doubt Fitzpatrick's
description of the relationship as having been continuously
antagonistic. The point here is not, of course, which neighbor
was in the right all or most of the time with respect to the
complaints made. The point is that Fitzpatrick reported that
strong ill-feeling existed, and many confrontational incidents
occurred, between them on a fairly regular basis over the years,
and that the police department's records supported that
assessment.
Defendant also reportedly did not get along with many others
in town. The town and a local association were involved in
litigation with defendant over damage he allegedly caused Crew
Road, the road in front of his house. Fitzpatrick was a
potential witness against defendant in that civil litigation, as
well as in a criminal prosecution against defendant for alleged
vandalism to Crew Road. And, Fitzpatrick related that the
previous owner of his home also had a difficult relationship with
defendant, and he also found his well contaminated - in that case
12 with dead fish (also unlikely to find their way into a well by
natural means).
Third, defendant not only had a motive, but he also had the
best opportunity to put Diazinon in Fitzpatrick's well. Sergeant
O'Brien's investigation revealed that the well was located near
the boundary line between Fitzpatrick's and defendant's property,
along the driveway, about 300-350 feet from the road. Defendant
was presumably familiar with his boundary and the well's location
relative to it, and he had ready access to the well from his own
property at any time, night or day. While others may also have
known where the well was located, and possibly could have gained
undetected access to it, the person best-positioned to do so was
the defendant.
All in all, while more might have been done to develop facts
in support of the warrant application, still, motive and
opportunity, under these circumstances, provided Judge Albee with
at least a "substantial basis for concluding that probable cause
existed" to believe that evidence of the crime would likely be
found on defendant's premises. It was not unreasonable for her
to determine that a crime was committed, and to infer that
defendant committed it, and, therefore, that he would likely
possess pesticides containing Diazinon identical to those found
13 in the well. Pesticides containing Diazinon are the kind of
materials likely to be found in a garage, shed, basement, home,
etc., and, given the relatively small amounts found in the well,
more was likely to have been in the possession of the perpetrator
(pesticides usually come in volumes larger than the amounts that
were found in the well, and are usually used completely or stored
for quite some time).
Concededly, the probable cause determination made by Judge
Albee depended on inferences drawn from the facts disclosed, as
well as her recognition that defendant had both a motive and the
opportunity to contaminate Fitzpatrick's well. "Motive and
opportunity" are concepts that, under some circumstances,
strongly point to a particular person and place, but, under
others, only weakly. See e.g.. Nugent v. Haves. 88 F. Supp. 2d
862 (N.D. 111. 2000); Kaltner v. Pebbles. 62 8 F. Supp. 9 6 (E.D.
Mich. 1986). Here, reasonable jurists might well have determined
that, at best, the affidavit and exhibits supporting the warrant
application raised only a solid suspicion that defendant might
have had something to do with the contamination. But, as noted
above, this court's obligation is not to redetermine probable
cause de novo, but to ensure that the issuing magistrate had a
substantial basis for concluding that probable cause existed.
According considerable deference to the reasonable inferences
14 Judge Albee could have drawn from the facts presented, and
granting that this was a close call, still, she had a substantial
basis for concluding that probable cause existed to believe that
defendant contaminated Fitzpatrick's well with Diazinon. And, it
follows that if he did contaminate the well, a fair probability
existed that the pesticide he used would still be found in his
possession at his property.
The Leon Good Faith Exception
In any event, while reasonable jurists might disagree about
whether probable cause to search was established, and even about
whether Judge Albee "had a substantial basis" for so concluding,
the defendant's suppression motion must also be denied on other,
perhaps more solid, grounds - the good faith exception described
in United States v. Leon. 468 U.S. 897 (1984) . In Leon the
Supreme Court recognized a "good faith" exception to the
exclusionary rule, holding that when police obtain evidence in
good faith reliance upon a search warrant that subsequently is
found to be deficient, that evidence still may be used in a
criminal trial. As the court explained, the exclusionary rule is
intended as a deterrent designed to ensure compliance with the
Fourth Amendment. The deterrent is aimed at police, not neutral
and detached magistrates. Generally, when police seek, obtain,
and rely upon a warrant issued by a neutral and detached
15 magistrate, "there is no police illegality and thus nothing to
deter." Leon, at 921.
The Leon rule does not apply, however, in the absence of
good faith. That is, where a law enforcement officer had
knowledge, or may be charged with knowledge, that the search was
unconstitutional under the Fourth Amendment, the Leon exception
does not apply. I d . at 919. Here, defendant says the warrant
application and supporting affidavit are, in effect, "so lacking
in indicia of probable cause as to render official belief in its
existence entirely unreasonable," notwithstanding issuance of the
warrant. I d . at 923.
As noted above, other judges may have concluded differently
than Judge Albee, finding that the application and supporting
affidavit provided a solid basis for suspecting defendant, but
not quite enough to establish probable cause to believe he put
the Diazinon in Fitzpatrick's well (and, therefore, that the
remaining pesticide would likely be found on his property). But
the issue is a fairly debatable one, and Leon "[favors] non
exclusion in situations where the warrant is based on ■'evidence
sufficient to create disagreement among thoughtful and competent
judges as to the existence of probable cause.'" United States v.
16 Ricciardelli, 998 F.2d 8, 15 (1st Cir. 1993) (citing Leon, at
926) .
The Leon good faith exception applies here. Police officers
conducting the search of defendant's home and property reasonably
relied upon the warrant issued by Judge Albee, and Sergeant
O'Brien's supporting affidavit had ample indicia of probable
cause "'to render official belief in its existence'" reasonable.
Leon, at 923 (quoting Brown v. Illinois. 422 U.S. 590, 610-11
(1975)). Lawyers and judges might legitimately debate the
matter, but the police officers involved had no reason to think
the warrant plainly defective.
Of course, police also may not rely on a search warrant
under Leon if the issuing magistrate was misled by information in
a supporting affidavit that the affiant knew was false, or would
have known was false except for his or her reckless disregard of
the truth. Leon, at 924. In Franks v. Delaware. 438 U.S. 154
(1978), the Supreme Court recognized a strong presumption of
validity with respect to affidavits supporting search warrants,
but allowed criminal defendants to challenge that validity upon
showing that a false statement, knowingly and intentionally made,
or made with reckless disregard for the truth, was included in
17 the affidavit, and, that the false statement was essential to the
finding of probable cause.
"The Franks test also applies when affiants omit material
facts ■'with the intent to make, or in reckless disregard of
whether they thereby made the affidavit misleading.''" United
States v. Colklev, 899 F.2d 297, 300 (4th Cir. 1990) (quoting
United States v. Reivich. 793 F.2d 957, 961 (8th Cir. 1986)).
Obviously, where material facts are intentionally or recklessly
omitted from the affidavit, and those facts, if included, would
have precluded the probable cause finding, "good faith" under
Leon could not be found. See e.g.. United States v. Vigeant. 176
F .3d 565 (1st Cir. 1999) .
Here, defendant says that Sergeant O'Brien intentionally
omitted material facts from his affidavit that necessarily
affected Judge Albee's probable cause determination. He
complains that O'Brien should have included all of the police
reports related to the numerous incidents between him and
Fitzpatrick, rather than just providing short summaries of each
complaint or incident. Perhaps that additional information may
have been useful in determining whether Fitzpatrick was likely
fabricating the entire incident, but nothing in this record
suggests that O'Brien intentionally omitted the reports in order
18 to mislead the judge into finding probable cause when there was
none, or where he thought there might have been a serious
question. O'Brien, rightly or wrongly, was convinced that
probable cause existed. O'Brien's summaries were accurate and,
more to the point, the information was provided as corroboration
of the fact that these two men did have an ongoing antagonistic
relationship, as Fitzpatrick claimed, and that fact was relevant
to motive. As the prosecutor points out, additional detail from
the reports themselves would have, if anything, strengthened, not
undermined, the proposition that defendant had a motive for
contaminating Fitzpatrick's well.
To the extent the police reports, if analyzed in terms of
who was right and who wrong on particular occasions, might
reflect negatively on Fitzpatrick's credibility, as defense
counsel argues, they were not particularly significant, and would
not have affected the probable cause determination. That
Fitzpatrick sometimes complained about defendant over trivial
matters, or was wrong, or defendant wasn't aware of a specific
complaint, would not have altered the "motive and opportunity"
analysis that Judge Albee performed. Besides, nothing in this
record suggests that O'Brien either intentionally, or with
reckless disregard for the truth, omitted the actual reports in
19 favor of summaries of their contents, for the purpose of
manipulating the probable cause finding.
Defendant has failed to make the requisite showing entitling
him to a Franks hearing, and, to the extent he obtained one de
facto, he has not established that any material omission was made
by O'Brien, and certainly none intentionally, or with reckless
disregard for the truth. Nor has defendant shown that if the
alleged omissions had been included, the probable cause finding
would be undermined. Accordingly, the police were entitled to
rely upon the warrant, and suppressing the evidence obtained
during the search would not have a substantial deterrent effect
on the police.
Scope of the Search
Defendant claims the initial search exceeded the scope
authorized by the warrant in that the warrant limited the search
to "[defendant's] property, vehicles, sheds, and other out
buildings and curtilage," and, therefore, did not authorize a
search of his home. Defendant acknowledges that a warrant
authorizing a search of "premises" includes the authority to
search buildings on the identified land. See United States v.
Bonner, 808 F.2d 864, 868 (1st Cir. 1986).
20 Defendant misreads the warrant. The search warrant
(Government's Exhibit 1) identified the items to be searched for,
recited that the specified evidence may be found "at the
Residence, Curtilage, Outside containers. Trailers, and Vehicles,
and or Trailer/Containers located at the [defendant's]
residence," and specifically identified the places to be
searched:
[Evidence] may be found in the possession of [the defendant] at premises located at: 441 Crew Road Wakefield, including curtilage, outside containers, storage units and, vehicles [.] We Therefore command you . . . to make an immediate search of: [The defendant's] property located at 441 Crew Road, including curtilage, outside containers, storage units, and vehicles [.]
Search Warrant, Government's Exhibit 1 (emphasis supplied).
Here the term "Residence," and both the terms "premises" and
"property" were used to designate the place where evidence may be
found, and the places to be searched, which terms are essentially
synonymous and adequate to include the defendant's house (which
was plainly intended). See Bonner, supra.
Conclusion
The Motion to Suppress (document no. 14) and amended Motion
to Suppress (document no. 23) are denied.
21 SO ORDERED.
Chief Judge
July 18 , 2006
cc : Debra M. Walsh, Esq. Jonathan R. Saxe, Esq. U.S. Probation