USA v. Jonathan Tanguay
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Opinion
USA v . Jonathan Tanguay 11-CR-173-JL 10/29/12
UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE
United States of America
v. Criminal N o . 11-cr-173/01-JL Opinion N o . 2012 DNH 187 Jonathan Tanguay
MEMORANDUM ORDER
This case, where the defendant moves to suppress evidence
found by police executing a warrant to search his home, raises
questions over the application of Franks v . Delaware, 438 U.S.
154 (1978). Tanguay argues that, in securing the warrant--which
was based on a witness’s claim to have seen child pornography on
Tanguay’s computer--a state police sergeant deliberately or
recklessly omitted several material facts going to the witness’s
credibility and, ultimately, negating any probable cause. This
court held an evidentiary hearing on Tanguay’s motion, at which
the state trooper who obtained the warrant, Lieutenant Carrie
Nolet, was the only witness to testify.
As discussed infra, one of the facts (but not the only one)
that Lieutenant Nolet omitted from the warrant application was
that the witness had been convicted on a felony falsification
charge, and her testimony at the hearing left no doubt that she
did so recklessly, if not intentionally. Despite this serious
misconduct, however, Lieutenant Nolet’s warrant application would have demonstrated probable cause to search Tanguay’s computer for
child pornography, even if the witness’s felony falsification
conviction, and other facts that Lieutenant Nolet recklessly or
intentionally omitted, had been included. S o , as fully explained
below, Tanguay’s motion to suppress is denied.
I. Background
A. The psuedonymous tip
On February 2 , 2010, Sergeant Alan Broyer of the Conway
Police Department received a email from a sender identified as
“Jim Garrold” at the address snales356@yahoo.com. The sender
stated that he was uneasy about “what [he] saw about three days
ago” at the home of another person, whom the sender identified as
a member of the local volunteer ambulance corps named “John
Tanguway.” The sender explained that he had gone to this
person’s home “to have intercourse with him, and well before
anything happened he was watching porn on his laptop.” The email
stated that “Tanguway” possessed “a lot of child pornography on
his laptop of little boys engaging in sexual acts” and that he
spoke of his sexual desire for boys as young as nine.
The sender of the email related that, while he was “unsure
[at] first about saying anything,” he subsequently “spoke to
[his] boss about it,” and his boss encouraged him to take action,
given the access that “Tanguway” could have to children in his
2 job as an emergency medical technician. Thus, the sender stated,
“if you have any questions or would like to talk further, I would
be more than happy to tell you, but at the same time I would also
like to remain annommous [sic].” The sender concluded the email
by giving his phone number.
After receiving this message, the police identified “John
Tanguway” as Jonathan Tanguay, a selectman in the Town of
Bartlett. Perceiving a potential conflict of interest, the local
police department referred the case to Troop E of the New
Hampshire State Police, where, at the time, Lieutenant Nolet was
a detective sergeant, responsible for overseeing felony
investigations and supervising other detectives. Lieutenant
Nolet explained that, while she would not ordinarily have
investigated such a case herself, her troop’s “resident expert”
had recently been transferred and she had no other detectives
available.
Lieutenant Nolet, has since become the Troop E commander,
and has more than 19 years experience with the state police,
starting as a patrol officer and spending approximately 12 years
as a detective sergeant. She holds a degree in industrial
engineering from Worcester Polytechnic Institute and held the
rank of major in the United States Army Reserves, where, among
other assignments, she was deployed as a company commander.
3 B. The tipster’s identity and background
After hearing from the Bartlett Chief of Police, Lieutenant
Nolet checked the name used by the sender of the email, “Jim
Garrold,” but it did not appear in the state motor vehicle
records. She then called the phone number given in the email,
reaching a voicemail greeting that gave the name “Josh Wiggin.”
In light of this discrepancy, Lieutenant Nolet contacted Sergeant
Broyer, who had initially received the email, to ask whether he
knew anyone by that name. Broyer did, and, before Lieutenant
Nolet submitted the warrant application at issue here, she spoke
with both him and another Conway Police officer about Wiggin.
In an affidavit submitted to this court in response to the
motion to suppress, Lieutenant Nolet relates that Sergeant Broyer
told her that “Wiggin was known to the Conway Police Department
as ‘quirky’ and a ‘troubled teen’ . . . . Wiggin had in the past
suffered seizures, been suicidal and was having trouble ‘finding
himself.’” Lieutenant Nolet did not ask Sergeant Broyer what he
meant by “troubled” or “quirky.” Wiggin was by now 29 years old.
Either Sergeant Broyer or the other Conway Officer told
Lieutenant Nolet that Wiggin was, in that officer’s words, a
“police groupie” who had applied for a job as an officer several
times but was unable to pass the physical agility portion of the
examination. Lieutenant Nolet acknowledged at the hearing that,
4 as she understood the term, a “police groupie” is a person who
wants to spend time around the police and get in their good
graces. She also explained, however, that she did not give the
term much weight when she first heard it used to describe Wiggin.
Sergeant Broyer also told Lieutenant Nolet that Wiggin had
experienced “a few scrapes” with the Conway Police Department in
the past. Sergeant Broyer said that Wiggin had been convicted in
the Carroll County Superior Court of uttering a false
prescription for Vicodin by altering the quantity of pills from
30 to 80. 1 As Lieutenant Nolet was aware at the time, this is a
felony under New Hampshire law. See N.H. Rev. Stat. Ann. § 318-
B:2, VIII. Sergeant Broyer also told Lieutenant Nolet that, when
the police confronted Wiggin about the prescription, he
“immediately confessed his guilt” to the charge. Lieutenant
Nolet did not ask Sergeant Broyer when Wiggin’s conviction, or
the underlying conduct, had occurred. Nor did Lieutenant Nolet
ask Sergeant Broyer about any of Wiggin’s other “scrapes” with
the Conway Police Department. Lieutenant Nolet claims to have
been unaware of any other criminal activity by Wiggin at the time
she concluded her conversations with the Conway officers.
1 Under cross-examination at the hearing, Lieutenant Nolet testified--in contradiction of the affidavit she submitted in response to the motion to suppress--that Broyer had not identified the court where Wiggin had been convicted, and that she had not learned that detail until after she applied for the search warrant.
5 As it turns out, Wiggin had convictions for other offenses,
including simple assault (in 2001), misusing an emergency vehicle
(in 2003), and bail jumping (also in 2003, but arising out of a
separate incident).
Free access — add to your briefcase to read the full text and ask questions with AI
USA v . Jonathan Tanguay 11-CR-173-JL 10/29/12
UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE
United States of America
v. Criminal N o . 11-cr-173/01-JL Opinion N o . 2012 DNH 187 Jonathan Tanguay
MEMORANDUM ORDER
This case, where the defendant moves to suppress evidence
found by police executing a warrant to search his home, raises
questions over the application of Franks v . Delaware, 438 U.S.
154 (1978). Tanguay argues that, in securing the warrant--which
was based on a witness’s claim to have seen child pornography on
Tanguay’s computer--a state police sergeant deliberately or
recklessly omitted several material facts going to the witness’s
credibility and, ultimately, negating any probable cause. This
court held an evidentiary hearing on Tanguay’s motion, at which
the state trooper who obtained the warrant, Lieutenant Carrie
Nolet, was the only witness to testify.
As discussed infra, one of the facts (but not the only one)
that Lieutenant Nolet omitted from the warrant application was
that the witness had been convicted on a felony falsification
charge, and her testimony at the hearing left no doubt that she
did so recklessly, if not intentionally. Despite this serious
misconduct, however, Lieutenant Nolet’s warrant application would have demonstrated probable cause to search Tanguay’s computer for
child pornography, even if the witness’s felony falsification
conviction, and other facts that Lieutenant Nolet recklessly or
intentionally omitted, had been included. S o , as fully explained
below, Tanguay’s motion to suppress is denied.
I. Background
A. The psuedonymous tip
On February 2 , 2010, Sergeant Alan Broyer of the Conway
Police Department received a email from a sender identified as
“Jim Garrold” at the address snales356@yahoo.com. The sender
stated that he was uneasy about “what [he] saw about three days
ago” at the home of another person, whom the sender identified as
a member of the local volunteer ambulance corps named “John
Tanguway.” The sender explained that he had gone to this
person’s home “to have intercourse with him, and well before
anything happened he was watching porn on his laptop.” The email
stated that “Tanguway” possessed “a lot of child pornography on
his laptop of little boys engaging in sexual acts” and that he
spoke of his sexual desire for boys as young as nine.
The sender of the email related that, while he was “unsure
[at] first about saying anything,” he subsequently “spoke to
[his] boss about it,” and his boss encouraged him to take action,
given the access that “Tanguway” could have to children in his
2 job as an emergency medical technician. Thus, the sender stated,
“if you have any questions or would like to talk further, I would
be more than happy to tell you, but at the same time I would also
like to remain annommous [sic].” The sender concluded the email
by giving his phone number.
After receiving this message, the police identified “John
Tanguway” as Jonathan Tanguay, a selectman in the Town of
Bartlett. Perceiving a potential conflict of interest, the local
police department referred the case to Troop E of the New
Hampshire State Police, where, at the time, Lieutenant Nolet was
a detective sergeant, responsible for overseeing felony
investigations and supervising other detectives. Lieutenant
Nolet explained that, while she would not ordinarily have
investigated such a case herself, her troop’s “resident expert”
had recently been transferred and she had no other detectives
available.
Lieutenant Nolet, has since become the Troop E commander,
and has more than 19 years experience with the state police,
starting as a patrol officer and spending approximately 12 years
as a detective sergeant. She holds a degree in industrial
engineering from Worcester Polytechnic Institute and held the
rank of major in the United States Army Reserves, where, among
other assignments, she was deployed as a company commander.
3 B. The tipster’s identity and background
After hearing from the Bartlett Chief of Police, Lieutenant
Nolet checked the name used by the sender of the email, “Jim
Garrold,” but it did not appear in the state motor vehicle
records. She then called the phone number given in the email,
reaching a voicemail greeting that gave the name “Josh Wiggin.”
In light of this discrepancy, Lieutenant Nolet contacted Sergeant
Broyer, who had initially received the email, to ask whether he
knew anyone by that name. Broyer did, and, before Lieutenant
Nolet submitted the warrant application at issue here, she spoke
with both him and another Conway Police officer about Wiggin.
In an affidavit submitted to this court in response to the
motion to suppress, Lieutenant Nolet relates that Sergeant Broyer
told her that “Wiggin was known to the Conway Police Department
as ‘quirky’ and a ‘troubled teen’ . . . . Wiggin had in the past
suffered seizures, been suicidal and was having trouble ‘finding
himself.’” Lieutenant Nolet did not ask Sergeant Broyer what he
meant by “troubled” or “quirky.” Wiggin was by now 29 years old.
Either Sergeant Broyer or the other Conway Officer told
Lieutenant Nolet that Wiggin was, in that officer’s words, a
“police groupie” who had applied for a job as an officer several
times but was unable to pass the physical agility portion of the
examination. Lieutenant Nolet acknowledged at the hearing that,
4 as she understood the term, a “police groupie” is a person who
wants to spend time around the police and get in their good
graces. She also explained, however, that she did not give the
term much weight when she first heard it used to describe Wiggin.
Sergeant Broyer also told Lieutenant Nolet that Wiggin had
experienced “a few scrapes” with the Conway Police Department in
the past. Sergeant Broyer said that Wiggin had been convicted in
the Carroll County Superior Court of uttering a false
prescription for Vicodin by altering the quantity of pills from
30 to 80. 1 As Lieutenant Nolet was aware at the time, this is a
felony under New Hampshire law. See N.H. Rev. Stat. Ann. § 318-
B:2, VIII. Sergeant Broyer also told Lieutenant Nolet that, when
the police confronted Wiggin about the prescription, he
“immediately confessed his guilt” to the charge. Lieutenant
Nolet did not ask Sergeant Broyer when Wiggin’s conviction, or
the underlying conduct, had occurred. Nor did Lieutenant Nolet
ask Sergeant Broyer about any of Wiggin’s other “scrapes” with
the Conway Police Department. Lieutenant Nolet claims to have
been unaware of any other criminal activity by Wiggin at the time
she concluded her conversations with the Conway officers.
1 Under cross-examination at the hearing, Lieutenant Nolet testified--in contradiction of the affidavit she submitted in response to the motion to suppress--that Broyer had not identified the court where Wiggin had been convicted, and that she had not learned that detail until after she applied for the search warrant.
5 As it turns out, Wiggin had convictions for other offenses,
including simple assault (in 2001), misusing an emergency vehicle
(in 2003), and bail jumping (also in 2003, but arising out of a
separate incident). He had also been charged with receiving
stolen property (in 1998), shoplifting (in 1999), and felonious
sexual assault (in 2001), though all of these charges were
ultimately dismissed. Aside from the felonious sexual assault
charge, which was brought in the Carroll County Superior Court,
all of the charges against were brought in the Conway District
Court (now the Third Circuit Court, Conway Division) and had
originated with the Conway Police Department. There is no
evidence that Lieutenant Nolet knew about any of these various
items of Wiggin’s criminal history when she applied for the
warrant. Again, Lieutenant Nolet never asked Sergeant Broyer
what he meant when he said Wiggin had experienced “a few scrapes”
with the Conway Police. She also did not perform a criminal
records check on Wiggin.
Wiggin had also been charged in a juvenile petition in 1998,
when he was 16 years old, with making a false report to law
enforcement. Wiggin reported that he had been outside his
parents’ house when he heard a gunshot from across a nearby
wetland area and then felt pain in his leg, where he had suffered
three pellet wounds. The Conway Police responded by, among other
things, setting up a perimeter around the scene, blocking traffic
6 along the adjacent roadway, and calling in a canine unit to
search the area. In total, some 10 different officers were
involved (including, for some 90 minutes following Wiggin’s
report of the shooting, the entirety of the Conway Police
Department). As they investigated the scene, however, the police
began to suspect that Wiggin had shot himself. Asked about this
during a police interview at the hospital, where he had been
taken for treatment, Wiggin initially denied i t , then admitted
that he had shot himself in the leg four times with a pellet gun
“to see what it would feel like.”
During this time, Lieutenant Nolet was serving as a state
trooper for Belknap and Carroll Counties. A police report of the
incident states that she was among the officers who reported to
the scene of the shooting. Lieutenant Nolet testified that she
did not remember the incident, though she acknowledged that
reports of shootings necessitating a police perimeter and canine
search are not very common.2 She also testified that she did not
know the claimed victim had shot himself, though that fact was
reported on the front page of the local Conway newspaper the next
day, in an article that identified Wiggin by name.
2 Lieutenant Nolet suggested that the report she was there might have been mistaken because “the officer who wrote the report is no longer employed” due to “credibility issues.” As it turns out, the officer who Lieutenant Nolet identified as having been dismissed for “credibility issues” was not the one who wrote the report.
7 In any event, after talking to the Conway Police about
Wiggin, Lieutenant Nolet confirmed that he lived at his parents’
house, and went there to speak with him. As a result of this
visit, Wiggin called Lieutenant Nolet and confirmed that he was
the one who had sent the email about Tanguay. Wiggin also agreed
to submit to a formal recorded interview with Lieutenant Nolet,
though he said that he was embarrassed to reveal his planned
liaison with Tanguay because his parents, his girlfriend, and his
boss did not know about i t , nor, Wiggin said, did they know about
his homosexual activity.3 Lieutenant Nolet told Wiggin that,
before coming in for the interview, he should write down anything
relevant so as not to forget i t .
C. The interview
Lieutenant Nolet, together with an investigator from the
state Attorney General’s office, interviewed Wiggin at the Troop
E barracks on February 1 0 , 2010. Lieutenant Nolet believed at
that point that the Attorney General’s office would be taking
over the investigation, with the State Police merely assisting.
3 As already discussed, Wiggin had stated in the email that he had told his boss about what he had seen at Tanguay’s house, and that it was Wiggin’s boss who had persuaded him to report it to the police, in light of Tanguay’s job as an EMT. S o , while Wiggin’s boss may not have known about Wiggin’s sexual relationship with Tanguay, Wiggin must have told his boss, at a minimum, that he (Wiggin) somehow had occasion to be shown possible child pornography by Tanguay.
8 Lieutenant Nolet took notes during the interview, which was also
recorded and, later, transcribed. Wiggin brought a typewritten
note to the interview with him.
During the interview, Wiggin stated that he had sent the
email inculpating Tanguay under a false name because he feared
that “the police department would come back on” him for reporting
a local EMT. Wiggin did not repeat his claim that he had sought
anonymity because he did not want his parents, girlfriend, and
boss to learn of his homosexual activity, and he was not asked
about that during the interview.
Wiggin recalled that he had first met Tanguay while he was a
counselor at a summer camp that Wiggin attended in fourth or
fifth grade, and noticed Tanguay, who was in his late teens at
the time, observing Wiggin and other boys while they showered.
Wiggin further recalled that later, when he was 1 6 , he had one or
more sexual encounters with Tanguay, who at that time worked at
Wiggin’s high school. Tanguay had no further contact with Wiggin
until two years or so after he graduated high school, when
Tanguay called Wiggin and asked to meet. This marked the
beginning of an occasional sexual relationship between the men.
During this relationship, Tanguay had, a few times, invited
Wiggin over to Tanguay’s house, which Wiggin said was on
Hurricane Mountain Road in Bartlett. Upon arriving at the home
on one of these occasions, in late January 2010, Wiggin recalled,
9 Tanguay was sitting unclothed on a couch, facing the fireplace,
with a copper-colored laptop computer open on the table in front
of him. Wiggin recalled that Tanguay was “watching some, I , I
guess maybe child pornography um, videos, um, they looked too
young to be somebody that might have been eighteen.” Wiggin
explained that “there wasn’t really much of any, any signs I
guess, [of] body hair, or facial hair and you know, I mean you
can, you can tell when you look at ah, a[n] eighteen year old
versus you know, a fourteen year old.”
Asked for more detail by the state police investigator,
Wiggin stated, “well, um, there was I don’t know, a bunch of what
looked like a bunch of minors”--“boys”--engaging in oral sex and
intercourse with each other. Asked, “what would you describe
their ages to be if you had to[?]” Wiggin responded, “I don’t
know maybe eight, thirteen, fifteen, sixteen.” In the note
Wiggin had brought to the interview with him, Wiggin had written
that, when he went over to Tanguay’s house, Wiggin saw “his
laptop open and he was viewing either young men or teen
pornography on his computer.”
Wiggin further recalled that, after a brief conversation
about recent goings-on in his life, Tanguay closed the video that
had been playing and said, “this is pretty neat[,] you wanna
check this one out[?]” Tanguay then opened the “My Pictures”
folder, causing the appearance of what Wiggin described as “a
10 bunch of pictures on his computer of you could definitely tell
they were you know, younger than teens.” Wiggin said that he
“didn’t get a very good look” or even “much of a glimpse” at
these images before Tanguay said “oop[s] wrong one” and “closed
out of it really quick.”
Tanguay then opened the “My Videos” file on the computer.
This displayed, according to Wiggin, “a whole roll on the bottom
of the screen probably I don’t know, three, four um, videos that
were you know, kids engaging in sex, and i t , it only showed you
know, a glimpse . . . like a picture of what the video was
about,” or a “thumbnail.” Wiggin stated, “you could definitely
tell it was you know, a[n] eight or nine year old um, and it
looked like the eight or nine year old was having you know,
giving oral to an adult.” Tanguay did not, however “click on the
very, the ones of the kids that looked really young,” but instead
showed Wiggin “a couple” of videos of intercourse between males
of “between maybe seventeen and twenty.”
Wiggin also recalled that Tanguay made “a lot of comments
saying that you know, gee, if I had the chance I would have sex
with h a , you know, a nine year old . . . the thing that bothered
me the most is he said, you know, how, how about your
girlfriend’s son, how old is he[?]” Wiggin said he answered
that, while his girlfriend’s son was nine, that was “really none
of [Tanguay’s] business.” Tanguay then went on to ask Wiggin
11 about the time he spent with his girlfriend’s son and that, when
Wiggin explained that they spent that time doing puzzles or
playing video games, Tanguay said, “yeah, but I’d bet you’d like
to do more with him, wouldn’t you[?]” Wiggin said that he
expressed disgust at that suggestion and, after Tanguay
reiterated his own sexual desire for young boys, Wiggin left.
Wiggin claimed that this was the first time that Tanguay had
“watched videos like this or had that kind of discussion” with
him. Referring to his notes later in the interview, however,
Wiggin stated that Tanguay “talks about having sex with minors
all the time” and that he “asks [Wiggin] all the time [hey] well
why don’t you bring, why don’t you bring your girlfriend’s son
over here[?]” In any event, Wiggin said he had not been in
contact with Tanguay since the evening he had shown Wiggin the
video, aside from a couple of text and instant messages from
Tanguay to which Wiggin had not responded. In light of Tanguay’s
comments on that evening, Wiggin said, he could not “feel at ease
until this guy gets help or . . . something needs to be done.”
Wiggin added that, if the police searched Tanguay’s digital
camera, they would “probably” find a few pictures of Wiggin
performing oral sex on Tanguay.
Wiggin also said during the interview that his mother, who
frequently had occasion to deal with Tanguay during her work at a
local hospital, “doesn’t like him just because of the attitude he
12 gives off,” and that Tanguay’s “trying to act like he’s her
friend . . . absolutely infuriates” Wiggin’s parents. In fact,
Wiggin said during the interview that, when using the local
ambulance service to transport his elderly grandparents, his
parents “always will call the ambulance service and say, we do
not want Jon Tanguay on our property.”
Three days after the interview, when Lieutenant Nolet called
Wiggin to obtain Tanguay’s email address, Wiggin explained that
Tanguay had only a screen name that he used for instant messaging
(though Wiggin also provided Tanguay’s cell phone number).
Lieutenant Nolet then conducted an on-line search of the screen
name, finding some photographs of both Tanguay and his home that
had been posted. After the interview, Lieutenant Nolet obtained
a photograph of Tanguay from motor vehicle records and confirmed
that he lived on Hurricane Mountain Road. She did not do any
further investigation.
D. The warrant application
Lieutenant Nolet recalls that “at some point somebody
decided that [she] was going to be the affiant” for a search
warrant for Tanguay’s laptop and other materials. She explained
that she had been expecting the investigator from the Attorney
General’s office to serve as the affiant, “since she was the lead
in the interview.” While Lieutenant Nolet had served as the
13 affiant in support of a search warrant “a few dozens [of] times”
earlier in her career, she testified that this was the only time
in the past five or six years that she had done s o . In any
event, Lieutenant Nolet started typing an affidavit “as fast as
[she] could based upon [her] notes” of the interview with Wiggin
because, she explained, she “was concerned with the destruction
of evidence at that point should [ ] Tanguay find out that we were
investigating the matter.”
Lieutenant Nolet filed her affidavit in support of the
search warrant with the then-designated Northern Carroll County
District Court on February 1 8 , 2010, eight days after she
interviewed Wiggin. In the affidavit, Lieutenant Nolet explained
how she learned about the email from “Jim Garrold” to the Conway
Police Department, which she attached, and that she had used the
phone number from the email to locate Wiggin. She stated that
Wiggin confirmed he had sent the email wishing “to remain
anonymous due to his parents and girlfriend not being aware of
his lifestyle” but had agreed to a formal police interview
“despite his embarrassment revealing to me his sexual
relationship with Tanguay, which [Wiggin] has never disclosed to
his parents, girlfriend, or boss.”
After setting forth Wiggin’s account of how he and Tanguay
had met, commenced, and then broken off and resumed a casual
14 sexual relationship, and that Tanguay had invited Wiggin to his
home on a recent evening, the affidavit stated, in relevant part:
Tanguay was naked on the couch, facing the fireplace, watching possible child pornography videos on his laptop computer. Wiggin said the boys looked too young to be 18 because there wasn’t [ s i c ] any signs of body hair or facial hair, saying, “You can tell when you look at an 18 year old versus a 14 year old.” He described the content of the video as a bunch of minor boys in a group, maybe 8 , 1 3 , 1 5 , and possibly 16 years of age. They were engaging in both oral and sexual intercourse with each other.
. . . . Tanguay then closed the video he had been watching. Wiggin described Tanguay as first going to the start menu and clicking on “My Pictures.” Tanguay opened it up and closed it quick saying, “Wrong one.” Tanguay had a bunch of picture icons on the screen and Wiggin said based on what he saw that the males were younger than their teens.
Tanguay then clicked on “My Videos.” Wiggin said there was a whole bottom row of thumbnails of different videos on the screen and there were 3 or 4 videos showing what he believed were kids engaging in sex. Wiggin said it showed only a glimpse, the top picture for the file of what the video was about (thumbnail). Wiggin described one video thumbnail shot a s , “You could definitely tell it was an 8 or 9 year old. It looked like he was giving oral sex to an adult.” Wiggin said that Tanguay didn’t click on the videos with the kids that looked really young.
The affidavit did not mention that, in the note Wiggin had made
and brought to the interview with him, he described the video
Tanguay had been watching when he arrived as “either young men or
teen pornography on his computer.”
The affidavit related Wiggin’s remarks that “it was
difficult to talk about, but . . . [the police] would probably
15 find pictures of him performing oral sex on Tanguay” and “what
bothered [Wiggin] the most was that Tanguay had asked about
Wiggin’s girlfriend’s son who is 9 years old and commented to
Wiggin, ‘I bet you’d like to do more with him, don’t you[?]’”
The affidavit also included Wiggin’s statement that “this
incident was the first time Tanguay shared videos and had that
kind of discussion,” but did not mention Wiggin’s statements that
Tanguay “talks about having sex with minors all the time” and
“asks [him] all the time . . . why don’t you bring your
girlfriend’s son over here[?]” The affidavit concluded that
Tanguay “did knowingly possess or control three or more visual
representations of a child under the age of 18 engaging in
sexually explicit conduct . . . there is probable cause to
believe that the computer system or systems located at [Tanguay’s
home] address . . . does contain evidence of the crime of
possession of child pornography.”
The state district court issued the requested warrant to
search, among other things, Tanguay’s laptop. The search
allegedly revealed visual images of child pornography, and, in
due course, Tanguay was indicted in this court on one count of
possession of child pornography under 18 U.S.C. § 2252A(a)(5)(B).
16 E. Omissions from the affidavit, and Lieutenant Nolet’s explanations
While Lieutenant Nolet stated in the affidavit that she had
met with Sergeant Broyer of the Conway Police, she did not
include any of the information he or the other Conway officer had
provided about Wiggin. Thus, the affidavit did not mention that
“Wiggin was known to the Conway Police Department as ‘quirky’ and
a ‘troubled teen’ . . . . Wiggin had in the past suffered
seizures, been suicidal and was having trouble ‘finding
himself.’” The affidavit did not mention Sergeant Broyer’s
characterization of Wiggin as a “police groupie” or Sergeant
Broyer’s comment that Wiggin had “a few scrapes” with the Conway
Police in the past. Nor did the affidavit mention Wiggin’s
felony conviction for uttering a false prescription, of which
Sergeant Broyer had also told Lieutenant Nolet.
In her affidavit to this court, submitted in response to the
motion to suppress, Lieutenant Nolet explained that, when she
applied for the search warrant, she “did not feel that the
conviction for the false prescription was relevant in light of
all the other factors which [she] felt made [ ] Wiggin a credible
reporter.” She identified these factors as “his coming forward
despite fear of retaliation and the fact that his heretofore
private homosexual activity would be revealed.” Her affidavit to
this court does not explain why she omitted Sergeant Broyer’s
17 other comments about Wiggin, i.e., that he was “quirky” and “a
police groupie” who, as a teenager, had been “troubled” and
“suicidal.”
Lieutenant Nolet also stated in her affidavit to this court: In preparing the [search warrant] affidavit, I did not consider [ ] Wiggin to be a confidential informant or a cooperating defendant. To the contrary, I considered Wiggin to be an eyewitness to a crime and was not aware of any bias motivating Wiggin. Wiggin’s reason for using an alias [in the email] was plausible in light of the secrecy he maintained concerning his sexual orientation. In considering the information provided by Wiggin, I was guided by the New Hampshire Attorney General’s Law Enforcement Manual issued in June, 2008. That manual directs that “the victim of a crime and eye witnesses are generally considered a reliable source of information about the crime being investigated. Absent some indication the witness may not be telling the truth, such as the clear presence of bias, the police are not obligated to inquire into or to demonstrate the witness’ credibility.”
Lieutenant Nolet testified at the hearing that, based on
this statement from the manual, the only time a warrant
application needed to set forth “information about the
credibility” of a source who is neither anonymous nor
confidential is “[i]f there’s any clear bias.” Lieutenant Nolet
explained that she did not think Wiggin had such a bias because,
as she stated in her affidavit to this court, “he had a lot to
lose” by coming forward with the information about Tanguay, since
neither Wiggin’s family nor girlfriend knew about his
homosexuality. Lieutenant Nolet also perceived an absence of
bias in Wiggin’s statement during his interview that he “wanted
18 [Tanguay] to get help. He didn’t mention anything about wanting
him to be charged, convicted, go to jail, anything like that.”
Putting aside for the moment the faithfulness of this
analysis to the guidance set forth in the Attorney General’s
manual, Lieutenant Nolet acknowledged at the hearing that she did
not in fact look at the manual in preparing the application for
the search warrant, but simply relied on her “experience with
that manual.” Because this warrant application is the only one
that Lieutenant Nolet has submitted in the past five or six
years, however, it is unclear what “experience” she could have
with the relevant guidance set forth in the version of the manual
issued in June 2008, i.e., at least two years after she would
have last had occasion to consult i t . While, as it turns out,
the prior version of the manual, issued in 1993, contains a
nearly identical statement to the one that Lieutenant Nolet
identified as having “guided” her, the fact remains that
Lieutenant Nolet stated in her affidavit to this court that she
“was guided by the New Hampshire Attorney General’s Law
Enforcement Manual issued in June, 2008.”
In any event, neither version of the manual supports
Lieutenant Nolet’s claimed understanding that the only time a
warrant application needs to set forth “information about the
confidential is “[i]f there’s any clear bias.” The manual states
19 that the police are relieved of demonstrating a witness’s
credibility “[a]bsent some indication the witness may not be
telling the truth, such as the clear presence of bias” (emphasis
added). So Lieutenant Nolet patently misunderstood the manual--
to say nothing of well-established Fourth Amendment law, as
discussed infra--to mean that bias, and only bias, serves to call
a witness’s account into question such that it cannot simply be
taken at face value in establishing probable cause.
Furthermore, Wiggin did have clear reasons for bias against
Tanguay, based on several different facts known to Lieutenant
Nolet at the time she applied for the warrant. First, Wiggin and
Tanguay had been involved in a long-term, if casual, sexual
relationship that Wiggin wanted to discontinue (because, he
claimed, he had just discovered Tanguay’s sexual attraction to
children--though, as already discussed, Wiggin also stated that
Tanguay “talks about having sex with minors all the time”).
Second, Wiggin said that his parents, with whom he was living at
the time, strongly disliked Tanguay and tried to avoid any
involvement with him.
Third, Tanguay had made comments of a sexual nature about
Wiggin’s girlfriend’s son that Wiggin found disgusting. In fact,
Lieutenant Nolet testified that, when Tanguay suggested that
Wiggin might harbor sexual desire for the child, “at that point
it made it personal for [Wiggin], and it may have been one of the
20 motivating factors to report.” Lieutenant Nolet denied, however,
that this would bias Wiggin against Tanguay, explaining, “bias is
a slanting. If this in fact happened, it was just the truth.”
She elaborated that she does not “understand bias to mean the
reason one would slant information” but, rather, “the actual act
of twisting [or] slanting information in one direction.” In
other words, “bias is the act of deceiving, not a motive to
deceive.” In light of this understanding, Lieutenant Nolet
testified, she read the guidance in the Attorney General’s manual
to mean that “if it’s not clear to me that the witness is lying,
slanting the truth, there’s no reason to inquire further.”
Indeed, Lieutenant Nolet’s testimony revealed an astonishing
depth of confusion over the basic concepts of witness “bias” and
“credibility,” particularly for an officer with her impressive
background and experience. Asked whether she would include, in
warrant application, the fact that the source of the
incriminating information had five prior convictions for making
false reports to law enforcement, Lieutenant Nolet answered,
“Potentially. I may have if I felt there was a bias.” She then
explained that “five convictions in my mind would be some bias,”
i.e., “[b]ias against telling the truth.” Next, upon questioning
from the court, Lieutenant Nolet explained that she understood
“bias” as “an intentional slant of information” and “credibility”
as “the propensity for truthfulness”--but then stated that she
21 took five convictions for false reporting to indicate, again, “a
slant of information against telling the truth.”
Lieutenant Nolet testified that, based on her understanding
of the Attorney General’s manual, her warrant application did not
“need[] to address [Wiggins’s] credibility at all.” Asked why
her application nevertheless included Wiggins’s request for
anonymity lest his parents and girlfriend find out about his
lifestyle, however, Lieutenant Nolet answered that this
information “would show that he’s got a lot to lose and wouldn’t
be biased.” Lieutenant Nolet tried to explain this contradiction
based on the distinction she drew between bias and credibility.
Lieutenant Nolet also testified to reasons, aside from the
Attorney General’s manual, that her warrant application did not
mention Wiggin’s conviction for forging the prescription. She
explained that she did not deem the conviction a reason to doubt
Wigggin’s truthfulness at the time he provided the information
because “many years ago he was a troubled teen. He’s older now,
and I just didn’t consider it relevant.” She acknowledged,
however, that, at the time she submitted the warrant application,
she did not know the date or age of Wiggin’s conviction for
uttering a false prescription (again, she had not asked).
Lieutenant Nolet further explained, “I felt he had redeemed
himself . . . he confessed, as opposed to 95 percent of the
people that go to trial plead not guilty and they’re found
22 guilty.” Lieutenant Nolet also stated that, based on her
“experience” with the judge from whom she sought the warrant, if
she “felt there was an omission, [she] would ask and make notes
at the bottom on the warrant.” Lieutenant Nolet was unable to
explain, though, how this judge--or any judge--could learn of
omitted facts omitted from a warrant application so as to ask
about them before deciding to issue a warrant.
II. Analysis
The Warrant Clause of the Fourth Amendment provides, in
relevant part, that “[n]o warrants shall issue, but upon probable
cause, supported by Oath or Affirmation.” U.S. Const. Am. IV.
In Franks, the Supreme Court observed that this demand for “a
factual showing sufficient to comprise probable cause” assumes
“there will be a truthful showing . . . in the sense that the
information put forth is believed or appropriately accepted by
the affiant as true.” 438 U.S. at 164-165 (quotation marks
omitted). Thus, where an affiant’s “perjury or reckless
disregard is established by the defendant by a preponderance of
the evidence, and, with the affidavit’s false material set to one
side, the affidavit’s content is insufficient to establish
probable cause, the search warrant must be voided and the fruits
of the search excluded to the same extent as if probable cause
was lacking on the face of the affidavit.” Id. at 156.
23 This reasoning “logically extends, as lower courts have
recognized, to material omissions” from the application. 2 Wayne
R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment
§ 4.4(b), at 543-45 (4th ed. 2004); see also, e.g., United States
v . Castillo, 287 F.3d 2 1 , 25 (1st Cir. 2002); United States v .
Charles, 213 F.3d 1 0 , 23 (1st Cir. 2000). In the case of an
omission, “suppression should be ordered only if the warrant
application, . . . clarified by disclosure of previously withheld
material, no longer demonstrates probable cause.” United States
v . Stewart, 337 F.3d 103, 105 (1st Cir. 2003).
In moving to suppress the evidence allegedly discovered
through the execution of the search warrant against him, Tanguay
charges that Lieutenant Nolet intentionally or recklessly omitted
facts from her warrant application, particularly (but not
exclusively) the unflattering information as to Wiggin’s
background that she learned from the Conway Police. When those
facts are added in to the warrant application, Tanguay argues, it
no longer demonstrates probable cause for the search, since that
showing depends entirely on Wiggin’s claim to have seen child
pornography on Tanguay’s computer. For the reasons explained
below, the court agrees that Lieutenant Nolet intentionally or
recklessly omitted a number of material facts from the warrant
application, but finds that, even when those facts are added, the
application still demonstrates probable cause.
24 A. Lieutenant Nolet’s omissions were intentional or reckless
Because “‘[a]n affiant cannot be expected to include in an
affidavit every piece of information gathered in the course of an
investigation . . . , every decision not to include certain
information in the application is not ‘intentional’ insofar as it
is made knowingly.’” 2 LaFave, supra, § 4.4(b), at 545 (quoting
United States v . Colkley, 899 F.2d 297, 301 (4th Cir. 1990)).
Instead, “‘Franks protects against omissions that are designed to
mislead, or that are made in reckless disregard of whether they
would mislead, the magistrate.’” Id. at 546 (quoting Colkley,
899 F.2d at 301; see also United States v . Belton, 414 F. Supp.
2d 101, 111 (D.N.H. 2006) (citing additional cases), aff’d, 520
F.3d 80 (1st Cir. 2008). The court of appeals has held that
“‘recklessness may be inferred where the information was critical
to the probable cause determination,’” i.e., consisted of “‘facts
that any reasonable person would know that a judge would want to
know when deciding whether to issue a warrant.’” Burke v . Town
of Walpole, 405 F.3d 6 6 , 82 (1st Cir. 2005) (quoting Golino v .
New Haven, 950 F.2d 864, 871 (2d Cir. 1991) and Wilson v . Russo,
212 F.3d 781 (3d Cir. 2000)); see also United States v . Jacobs,
986 F.2d 1231, 1235 (8th Cir. 1993) (finding that a warrant
application recklessly omitted a fact where “[a]ny reasonable
25 person would have known that this was the kind of thing the judge
would wish to know”).
By this standard, Lieutenant Nolet acted recklessly--if not
intentionally--in omitting several pieces of information from the
warrant application. First, as the prosecution more or less
conceded during argument at the suppression hearing, Wiggin’s
felony conviction for forging a prescription is unquestionably a
fact that any reasonable officer would consider critical in
deciding whether Wiggin’s account established probable cause.
That crime requires, as an essential element, the making or
uttering of a false statement. N.H. Rev. Stat. Ann. § 318-B:2,
VIII. Crimes of that nature have long been taken to suggest that
those who commit them are not credible witnesses. See Fed. R.
Evid. 609(a)(2). “Any crime involving dishonesty necessarily has
an adverse effect on an informant’s credibility.” United States
v . Elliott, 322 F.3d 710, 716 (9th Cir. 2003); cf. United States
v . Rumney, 867 F.2d 714, 720-21 (1st Cir. 1989) (rejecting Franks
challenge based on omission of informant’s crimes because they
were not “ones involving perjury or false statements”).
Moreover, Lieutenant Nolet admitted at the hearing that she
intentionally omitted Wiggin’s falsification conviction from the
warrant application because, as she stated, “I just didn’t
consider it relevant.” The Supreme Court has identified “‘[t]he
point of the Fourth Amendment,” particularly, the Warrant Clause,
26 as “‘requiring that . . . inferences be drawn by a neutral and
detached magistrate instead of being judged by the officer
engaged in the often competitive enterprise of ferreting out
crime.’” Wilson, 212 F.3d at 787 (quoting Johnson v . United
States, 333 U.S. 1 0 , 13-14 (1948)). Thus, “[i]t follows that a
police officer cannot make unilateral decisions about the
materiality of information.” Id.
As the court of appeals has likewise cautioned, complying
with the Fourth Amendment demands “more than an agent’s own
judgment as to the ultimate importance of a piece of information
to a judgment of probable cause,” so that, unless it is “so
trivial, remote, or irrelevant that no reasonable official could
assign it weight in coming to a decision to issue the warrant
. . . , the information should be included.” Stewart, 337 F.3d
at 107. The felony falsification conviction of the witness upon
whose account probable cause depends is not “trivial, remote, or
irrelevant,” and Lieutenant Nolet acted recklessly--at best--in
deciding to keep that fact from the magistrate based on her own
mistaken judgment to the contrary.4
4 Lieutenant Nolet attempted to offer innocent explanations as to why she omitted the fact of Wiggin’s felony falsification conviction from the application, but those explanations were unconvincing. First, Lieutenant Nolet claimed that the conviction came from “many years ago”--but she admitted that she did not know the age or date of the conviction at the time she decided to leave it out of the application. Second, Lieutenant Nolet said that Wiggin “had redeemed himself . . . he confessed,
27 Second, any reasonable officer would also appreciate that a
magistrate deciding whether to issue a search warrant based
solely on Wiggin’s account would want to know that the local
police had told her he was “quirky,” “a police groupie,”
“troubled” (in his teenage years), and “suicidal” (at some
unspecified point in the past). While Lieutenant Nolet strove
during her testimony to lend a neutral (or, in the case of
“police groupie,” even a positive) characterization to these
terms, any reasonable person would take them to reflect poorly on
Wiggin’s credibility. The adjectives “quirky,” “troubled,” and
“suicidal,” especially when used in conjunction, readily suggest
mental instability and, hence, untrustworthiness as a witness.
See Stewart, 337 F.3d at 105-07 (criticizing “agents’
inappropriate decisions to sanitize the information supplied to
support [a] search warrant,” including that one of the informants
had been treated at a psychiatric facility); United States v .
Meling, 47 F.3d 1546, 1554 (9th Cir. 1995) (ruling that agents
had deliberately omitted material information concerning a
source’s credibility from a wiretap application, including his
“history of mental illness”).
as opposed to 95 percent of the people that go to trial plead not guilty and they’re found guilty.” Suffice it to say that the fact that a person admits to lying after getting caught does not change the fact that he lied (and the law on impeachment of witnesses draws no distinction between crimen falsi convictions obtained by plea as opposed to those obtained at trial).
28 In this context, moreover, any reasonable understanding of
the term “police groupie” would have to embrace not simply
someone who admires the police and wants to associate with them,
but someone who might be willing to compromise him or herself to
do s o . Indeed, one strong indication that a reasonable officer
would consider these aspects of Wiggin’s personality to be of
interest to someone assessing his credibility is that Sergeant
Broyer chose to alert Lieutenant Nolet to them when she contacted
the Conway Police to ask what they knew of Wiggin.
Third, a reasonable officer would have realized that a
magistrate considering a search warrant for child pornography
would have wanted to know that, in the note Wiggin had made
himself and brought to his interview with Lieutenant Nolet, he
had written that Tanguay was “viewing either young men or teen
pornography on his computer” when Wiggin arrived. This was the
same video that Wiggin described during the interview as “what
looked like a bunch of minors,” aged between 8 and 1 6 , engaged in
sex acts. As Lieutenant Nolet knew at the time, federal and New
Hampshire child pornography laws apply only to depictions of
people under age 1 8 . See 18 U.S.C. § 2256(1), N.H. Rev. Stat.
Ann. § 649-A:2, I . S o , if the video showed “young men”--which is
one way Wiggin described it in the note--then Tanguay’s
possession of the video would not be criminal, and would not
furnish probable cause for the search.
29 “[A]n affiant must establish probable cause, based on the
totality of the circumstances, that evidence of child pornography
depicting minors will be discovered at a particular location to
secure a warrant to search that location.” United States v .
Syphers, 426 F.3d 461, 466 (1st Cir. 2005). It would be apparent
to a reasonable officer, then, that a magistrate deciding whether
there was probable cause to search Tanguay’s computer for child
pornography would want to know that the witness claiming to have
seen it there had at one point called it “young men or teen
pornography,” even i f , at a later point, he described the
subjects in the video as teenaged or younger.5
Tanguay argues that Lieutenant Nolet recklessly omitted
several other material facts from the warrant application, but it
is considerably more difficult to call these pieces of
information “facts that any reasonable person would know that a
judge would want to know when deciding whether to issue a
5 Tanguay also argues that Lieutenant Nolet recklessly omitted the fact that, according to the transcript of Wiggin’s interview, he stated “I don’t know maybe eight, thirteen, fifteen, sixteen” (emphasis added) when asked to describe the ages of the subjects of the video. But, at the time she prepared her warrant application, Lieutenant Nolet did not have access to the transcript (only to her notes, which have since been destroyed). In any event, the application states that Wiggin described the subjects of the video as “maybe 8 , 1 3 , 1 5 , and possibly 16 years of age” (emphasis added), so it accurately expresses the equivocal nature of Wiggin’s answer. This was not a reckless omission.
30 warrant.” Burke, 405 F.3d at 82 (quotation marks omitted).
These facts include:
•that Wiggin brought notes with him to the interview (as opposed to the equivocation expressed in those notes as to the age of the subjects of the video, which, as just discussed, was recklessly omitted from the application);
•that Wiggin initially suggested in the interview that he was below the age of consent at the time of his first sexual encounter with Tanguay, only to acknowledge, in response to a question from the investigator, that he must have been 1 6 ;
• Wiggin’s parents’ animosity toward Tanguay; and
• Sergeant Broyer’s comment to Lieutenant Nolet that Wiggin had “scrapes with the law.”6
These facts qualify as “so trivial, remote, or irrelevant
that no reasonable official could assign [them] weight in coming
to a decision to issue the warrant.” Stewart, 337 F.3d at 107.
It is unremarkable that Wiggin brought notes to the interview,
particularly after Lieutenant Nolet suggested that he make notes
to aid his recollection. The same is true of the fact that
6 Tanguay also argues that the application omitted Wiggin’s “inconsistencies about whether this was the first time he had learned about Tanguay’s claimed interest in minors.” But Lieutenant Nolet’s affidavit recited more or less verbatim Wiggin’s statement that the recent incident was the first time Tanguay had “watched videos like this or had that kind of discussion”--referring to Tanguay’s suggestion that Wiggin harbored a sexual desire for his girlfriend’s minor son. In relating that statement, and how it had disgusted him, Wiggin did not say that this was the first time that Tanguay had mentioned his own sexual interest in minors, so his statements later in the interview to the effect that Tanguay “talks about having sex with minors all the time” were not inconsistent.
31 Wiggin did not at first precisely recall his age at the time of
his first sexual encounter with Tanguay, which happened some 12
or 13 years before the interview and was, in any event, far
removed from Wiggin’s recollection of his much more recent
experience in seeing child pornography at Tanguay’s home. Cf.
United States v . Ranney, 298 F.3d 7 4 , 78 (1st Cir. 2002) (ruling
that witness’s inconsistent statements as to a “tangential
matter” did not seriously call his “chief assertion” establishing
probable cause into doubt such that the inconsistencies were
recklessly omitted).
While perhaps less defensible, Lieutenant Nolet’s decision
to leave out Wiggin’s account of his parents’ animosity toward
Tanguay was also not reckless. The court of appeals has rejected
the view that “when an officer has knowledge of a ‘bad
relationship’ between the person under suspicion and a witness to
the alleged crime, that witness’s credibility must be considered
questionable.” Holder v . Town of Sandown, 585 F.3d 500, 505 (1st
Cir. 2009); see also, e.g., United States v . Elliott, 893 F.2d
220, 224 (9th Cir. 1990) (“antagonism toward defendant may
explain informant’s motivation in providing the government with
the tip, but it does not lessen his credibility”) (bracketing and
quotation marks omitted). 7 It follows that antagonism toward the
7 The considerably better practice, of course, is to include indications of a source’s potential animosity toward a suspect in
32 defendant by someone closely associated with the informant, such
as his parents, does not affect credibility to such a degree that
Lieutenant Nolet was reckless to exclude it from the warrant
application. In any event, Lieutenant Nolet included in the
application other facts which, as already discussed, suggest
antagonism between Wiggin and Tanguay. These included Wiggin’s
reaction to Tanguay’s suggestion that Wiggin harbored a sexual
desire for his girlfriend’s young son, as well as the very fact
that Wiggin was inculpating a person with whom he had an amorous
relationship--a fact known to any experienced investigator as at
least a possible source of animosity--so it did not leave the
misimpression that the two were on good terms by any means.
Finally, the court of appeals has held that “[a] criminal
record, no matter how lengthy, does not necessarily impugn one’s
veracity,” unless, as already discussed, it includes convictions
for crimes of dishonesty. Rumney, 867 F.2d at 720-21. The fact
that the complaining witness has experienced “scrapes with the
law,” then, is not itself “critical to the determination of
probable cause,” Burke, 405 F.3d at 8 2 , such that an officer acts
recklessly by omitting it from a warrant application. See United
States v . Adams, 305 F.3d 3 0 , 36 (1st Cir. 2002) (observing that
an informant’s crimes not involving false statements “had at most
the warrant application.
33 a remote bearing on [his] credibility” so that their omission
from a warrant application did not support a Franks challenge).
The problem here, of course, is that Lieutenant Nolet never
asked Sergeant Broyer what he meant by “scrapes with the law,”
nor did she try to find out on her own by checking Wiggin’s
criminal record o r , for that matter, asking him about it during
the interview. A further problem is that Wiggin’s “scrapes”
included a juvenile conviction for making a false report to a law
enforcement officer--a crime that reflects very poorly on a
witness’s credibility because, obviously, it “suggest[s] the
possibility that he would lie to the police” again. United
States v . Hall, 113 F.3d 157, 160 (9th Cir. 1997) (affirming the
suppression of evidence seized by a warrant procured by
withholding the witness’s prior conviction for making a false
report).
The fact remains, however, that there is simply no basis to
find that Lieutenant Nolet knew, at the time she submitted her
warrant application, that Wiggin had been convicted of making the
false report nearly 12 years prior, when he shot himself in the
leg but told police that the shots had come from across a nearby
marsh. Police records show that Lieutenant Nolet was among the
many officers that reported to that call and, while Wiggin’s
confession that his wounds were self-inflicted was procured by
another officer, it is reasonable to infer that Lieutenant Nolet
34 would have learned of that fact by talking with other officers
o r , indeed, reading it in the local newspaper. Given the very
serious nature of what Wiggin reported, and the large-scale
police response, it is nearly impossible to imagine that the
incident--including the fact that Wiggin’s report was false--was
not the subject of considerable discussion among the law
enforcement community in the sparsely populated area where the
incident occurred. But there is nothing to support the further
inference that, upon hearing Wiggin’s name again 12 years later,
Lieutenant Nolet would have remembered him as the 16-year old who
had falsely reported getting shot back in 1998. 8
None of this changes the fact that any police investigator
of Lieutenant Nolet’s experience and expertise could have, and
should have, tried to find out what Sergeant Broyer meant by
“scrapes with the law”--especially after he identified one of
those “scrapes” as a felony conviction for falsifying a
prescription (and further described Wiggin as a “police groupie”
with past mental health problems). Lieutenant Nolet’s effort to
8 This includes Lieutenant Nolet’s unfortunate suggestion that the report placing her at the scene was incorrect because the officer who completed it was later dismissed for “credibility issues.” While Lieutenant Nolet appears to have offered this explanation to defend her initial recollection that she was not at the scene, it does not follow that, not only was she at the scene, but that she must have remembered that the complainant there was the same complainant who was now accusing Tanguay of possessing child pornography.
35 explain why she did not do s o , which comprised most of her
testimony at the evidentiary hearing, raised more questions than
it answered. As set forth in detail above, see Part I.E, supra,
Lieutenant Nolet claimed that she was “guided by the New
Hampshire Attorney General’s law Enforcement Manual issued in
June, 2008,” which she understood to say that a warrant
application need set forth “information about the credibility” of
an identified source only “[i]f there’s any clear bias.” Yet:
• Lieutenant Nolet admitted that she had not actually looked at the manual in preparing the warrant application here, and had not submitted a warrant application since 2007 (before this version of the manual was issued);
• any defensible reading of the relevant passage from the manual, especially by an officer with Lieutenant Nolet’s extensive education and experience, does not support her view that only the “clear bias” of an identified complainant serves to put his credibility at issue;
• even if Lieutenant Nolet’s reading of the manual were correct, Wiggin did harbor a “clear bias” against Tanguay, because (1) the two had been involved in a long-term sexual relationship that Wiggin had discontinued, based on the fact that (2) Tanguay had suggested, to Wiggin’s disgust, that he harbored a sexual desire for his girlfriend’s minor son, and (3) Wiggin’s parents, with whom he had lived for his entire life, strongly disliked Tanguay and made no secret of i t ;
• Lieutenant Nolet expressed a serious misunderstanding of what the term “bias” means, defining it at one point in her testimony as a “bias against telling the truth” and at another point in her testimony as the act of deceiving, rather than simply a motive to deceive; and
36 • despite Lieutenant Nolet’s insistence that, based on her understanding of the manual, she did not need to address Wiggin’s credibility, she nevertheless stated in her application that Wiggin had come forward despite his claim that his parents and girlfriend did not know of his homosexual activities, and explained that she had done so to “show that he’s got a lot to lose and wouldn’t be biased.”
With due regard for Lieutenant Nolet’s impressive
accomplishments as a police officer, the only conclusion the
court can draw from this testimony is that, following her contact
with the Conway Police Department about Wiggin, she understood
full well that his credibility was at issue, based on his felony
falsification conviction, if nothing else. Indeed, one would
have to be unusually tone-deaf to understand Sergeant Broyer’s
description of Wiggin--as a “quirky” “police groupie” who had
“scrapes with the law,” including a felony falsification
conviction, and who, as a teenager, had been “troubled” and
“suicidal”--as anything other than an alert that Lieutenant Nolet
should not simply assume he was credible. Yet Lieutenant Nolet
indulged just that assumption, and did nothing further to check
Wiggin’s background (even the seemingly easy and obvious step of
asking Sergeant Lieutenant Nolet what he meant by “scrapes”).
The court of appeals has held, however, that “failure to
investigate fully is not evidence of an affiant’s reckless
disregard for the truth.” Ranney, 298 F.3d at 78 (quotation
marks omitted); see also United States v . Miller, 753 F.2d 1475,
37 1478 (9th Cir. 1985) (“It might have been prudent for the federal
agents to check on [the informant’s] background and criminal
record, but their failure to do so is not reckless disregard.”).
There is simply no evidence that--rightly or wrongly--Lieutenant
Nolet knew of Wiggin’s juvenile conviction for making a false
report, and the other aspects of his criminal history aside from
the falsification conviction, at the time she submitted her
warrant application.9 This is fatal to Tanguay’s argument that
Lieutenant Nolet recklessly omitted those facts from her warrant
application. See Castillo, 297 F.3d at 26 (ruling that affiant
had not recklessly omitted negative field test of substance
seized from defendant’s building when he “offer[ed] no evidence
. . . that the negative field test had already been performed”).
That Lieutenant Nolet could have--and almost certainly
should have--learned those facts before seeking the warrant does
not change this result. To rule otherwise would transform Franks
into a due diligence requirement for investigators which, however
desirable it might seem under the circumstances of this case, is
simply not a recognized aspect of the Fourth Amendment at
9 There is also no evidence that Sergeant Broyer, or the other Conway Police officer who spoke to Lieutenant Nolet about Wiggin, knew at that time of any of these aspects of his criminal history. So the court need not consider the theory that “[a] deliberate or reckless omission by a government official who is not the affiant can be the basis for a Franks suppression.” United States v . DeLeon, 979 F.2d 761, 763-64 (9th Cir. 1992).
38 present. Indeed, “to require that all potentially exculpatory
evidence be included in an affidavit[] places an extraordinary
burden on law enforcement officers, compelling them to follow up
and include in a warrant affidavit every hunch and detail of an
investigation in the futile attempt to prove the negative
proposition that no potentially exculpatory evidence had been
excluded.” Mays v . City of Dayton, 134 F.3d 809, 816 (6th Cir.
1998). While, under Brady v . Maryland, 373 U.S. 83 (1963), the
due process clause imposes that sort of responsibility on the
prosecution once a case reaches trial, “the non-lawyers who
normally secure warrants in the heat of a criminal investigation
should not be burdened with the same duty to assess and disclose
information as a prosecutor who possesses a mature knowledge of
the entire case and is not subject to the time pressures inherent
in the warrant process.” Mays, 134 F.3d at 816. The court
cannot treat Wiggin’s false reporting conviction, or any other
part of his criminal history aside from his felony falsification
conviction, as a reckless omission for purposes of the Franks
analysis here.
B. Probable cause
In the case of “intentional or reckless misstatements or
omissions . . . , a court owes no deference to a magistrate’s
decision to issue [a] warrant because, where officers procuring a
39 warrant have deliberately misled the magistrate about relevant
information, no magistrate will have made a prior probable cause
determination based on the correct version of the material
facts.” Burke, 405 F.3d at 82 (quotation marks omitted).
Instead, this court must “insert the facts recklessly omitted,
and then determine whether the corrected warrant affidavit would
establish probable cause.” Id. (quotation marks omitted).
“Probable cause exists whenever the circumstances alleged in a
supporting affidavit, viewed as a whole and from an objective
vantage, suggest a ‘fair probability’ that evidence of a crime
will be found in the place to be searched.” United States v .
Clark, 685 F.3d 7 2 , 75 (1st Cir. 2012) (quoting Illinois v .
Gates, 462 U.S. 213, 238 (1983)).
Lieutenant Nolet’s warrant application meets this standard,
even when the facts she recklessly omitted are taken into
account. As the government emphasizes, Wiggin was not “an
informant from the criminal milieu” but a “citizen who [was] in
position to supply information by virtue of having been a crime
victim or witness” and, as a result, is not subject to the “proof
of veracity rules which obtain in informant cases.” 2 LaFave,
supra, § 3.4(a), at 219-20. The prevailing view, in fact, is
that “when an average citizen tenders information to the police,
the police should be permitted to assume that they are dealing
with a credible person in the absence of special circumstances
40 suggesting that such might not be the case.” Id. at 225. The
court of appeals agrees. See United States v . Scalia, 993 F.2d
984, 987 (1st Cir. 1993) (citing United States v . Campbell, 732
F.2d 1017, 1019 (1st Cir. 1990)).
Here, though, there were “special circumstances” calling
Wiggin’s credibility into question, namely, his falsification
conviction and history of mental instability--and it was the
existence of those circumstances that Lieutenant Nolet omitted
from the warrant application. Indeed, it is generally only where
the source is “a private citizen with no known criminal record or
other criminal contacts, who came forward on his own” that his
“story may be more easily accepted” than that of a “professional”
informant. Id. at 987 (quotation marks, bracketing, and ellipses
omitted). S o , in deciding whether the application would
demonstrate probable cause even had Lieutenant Nolet included
these facts, the question is whether they overcome the
presumption of credibility that Wiggin would ordinarily receive
as a citizen coming forward to report a crime, with the result
that his account of what he saw on Tanguay’s computer simply
could not be taken at face value.
There is little case law assessing the effect of a source’s
criminal record, or mental health problems, on the probable cause
analysis, at least where the source is an ordinary citizen. Even
where the source is a professional informant, however, the fact
41 that he has a criminal conviction for falsification or a similar
crime of dishonesty does not mean that his account cannot
establish probable cause: in other words, “information from
dishonest informants may still provide a basis for probable
cause.” United States v . Patayan Soriano, 361 F.3d 494, 506-07
(9th Cir. 2004). It is only in the absence of “additional
evidence . . . to bolster the informant’s credibility or the
reliability of the tip” that “an informant’s criminal past
involving dishonesty is fatal to the reliability of the
informant’s information, and his/her testimony cannot support
probable cause.” United States v . Elliott, 322 F.3d 710, 716
(9th Cir. 2003).
Here, as the prosecution points out, Lieutenant Nolet’s
affidavit does set forth additional facts suggesting that,
despite his prior falsification conviction and history of mental
instability, Wiggin was telling the truth about seeing child
pornography on Tanguay’s computer. First, while Wiggin used a
false name when he initially contacted the police, he
subsequently identified himself and submitted to an in-person,
tape-recorded interview. When sources have “identified
themselves to the officers, [that] in itself bolsters their
credibility because it opens them up for charges related to
making a false report,” particularly where the sources--unlike
“confidential informants who are not identified in the affidavit
42 provided to the issuing judge and who often provide information
to police officers in exchange for leniency”--have “willingly
provided the information and received nothing in return.” United
States v . Croto, 570 F.3d 1 1 , 14 (1st Cir. 2009).
Second, by reporting Tanguay, Wiggin was not implicating
himself in any criminal activity, but he was revealing facts
that, by his account at least, he considered highly embarrassing.
Lieutenant Nolet’s warrant application recounts Wiggin’s
expressed desire, when she initially contacted him, “to remain
anonymous due to his parents and girlfriend not being aware of
his lifestyle,” as well as his understanding “that by making an
official statement he may have to testify and the information
could become public.” The application also notes Wiggin’s
statement that, though “it was difficult to talk about,” the
police “would probably find pictures of him performing oral sex
on Tanguay” if they searched his digital camera. Assuming that
Wiggin was telling the truth when he said that his parents and
girlfriend were unaware of his homosexual activity (and Tanguay
did not adduce any evidence to the contrary), it is unlikely that
Wiggin would willingly reveal that activity--and potentially
jeopardize those relationships--just to make a false report
against Tanguay.
This is not to say that Wiggin had no imaginable reason to
level false criminal charges against Tanguay, as discussed supra.
43 A warrant application “need not, however, entirely eliminate the
risk that the informant was lying or in error” to establish
probable cause. United States v . Capozzi, 347 F.3d 327, 333 (1st
Cir. 2003). Instead, as just noted, the application must merely
“suggest a ‘fair probability’ that evidence of a crime will be
found in the place to be searched.” Clark, 685 F.3d at 7 5 .
Lieutenant Nolet’s warrant application would do s o , even had it
included the facts of Wiggin’s falsification conviction and
mental instability, because the application sets forth two
powerful motives for Wiggin to tell the truth.
In this regard, this case is similar to United States v .
Robinson, 546 F.3d 884 (7th Cir. 2008), where the court ruled
that, even if a warrant application had included several omitted
facts bearing on the credibility of the sole complaining witness,
it nevertheless would have demonstrated probable cause. There,
the witness voluntarily went to the police to report that her ex-
boyfriend was illegally possessing a firearm. Id. at 886.
Though the warrant application mentioned that the witness
admitted to having “outstanding warrants” against her “regarding
damage to property” (capitalization corrected), it omitted the
details of the incident giving rise to the charges: the witness
had gone to a hotel, where the defendant was staying with another
woman and, after banging on the door to his room, “began yelling
and threatened him with a knife,” then followed him to the hotel
44 office “and proceeded to bang on the office windows.” Id. at
885-86. As a result, the witness was arrested and charged with
criminal damage to property and disorderly conduct, but later
failed to appear at a hearing, resulting in the issuance of a
warrant for bail jumping. Id. The warrant application did not
mention that development, nor did it mention that, when the
witness later had occasion to observe the defendant in possession
of the firearm, she was at his home, in further violation of the
conditions of her release. Id. at 886. The court of appeals
ruled that, “[a]lthough the information regarding [the witness’s]
conduct at the [hotel], the resulting criminal charges, and [her]
violation of bail conditions should have been included in the
affidavit, . . . it is still the case that a named informant with
long-standing ties to the defendant provided detailed first-hand
information about the alleged crime against her own interest.”
Id. at 889. The same is true here.
Finally, the warrant application demonstrates probable cause
even accounting for the last piece of information Lieutenant
Nolet recklessly omitted--that, in the note he brought to the
interview, Wiggin wrote that Tanguay was watching “young men or
teen pornography on his laptop” when Wiggin arrived at his house.
Despite the note’s equivocation on that point, Wiggin described
the content of the video in some detail during his interview, and
gave an explanation for his estimate that each of the subjects
45 was underage. The affidavit sets forth Wiggin’s statements on
those points, as well as his account that, shortly after closing
the video, Tanguay began talking of his sexual desire for
children as young as 9, and suggested that Wiggin harbored his
own sexual desire for his girlfriend’s 9-year old son. Even
adding in the statement in Wiggin’s note that the video might
have shown “young men” rather than “teens,” the totality of these
circumstances suggests a fair probability that one or more
subjects in the video was under the age of 18 such that it
constituted child pornography. Cf. Syphers, 426 F.3d at 467. 10
III. Conclusion
Because the application for the warrant to search Tanguay’s
computer demonstrates probable cause that it contained child
pornography, even when clarified by the facts that Lieutenant
Nolet intentionally or recklessly omitted, Tanguay’s motion to
suppress the evidence allegedly found during that search must be
denied. As a result of this ruling, Lieutenant Nolet’s
intentional or reckless conduct in withholding Wiggin’s felony
falsification conviction from the magistrate will go “unpunished”
10 Significantly, Tanguay does not argue that the warrant application, when taken at face value, fails to establish probable cause that the video was child pornography. So the court need not resolve that issue. Assuming, as Tanguay has, that the application demonstrates probable cause on its face, that showing is not negated by adding Wiggin’s note to himself calling the video “young men or teen pornography.”
46 in the sense that it will have no effect on Tanguay’s prosecution
here. The same can be said of her strained efforts to defend
that decision through her affidavit t o , and testimony before,
this court.
But Franks simply does not authorize the use of the
exclusionary rule as a deterrent for even intentional
misstatements or omissions in a warrant application, unless it
was those misstatements that created (or, in the case of
omissions, preserved) probable cause. Indeed, prior to Franks,
lower courts had held that “‘[t]he fullest deterrent sanctions of
the exclusionary rule should be applied to such serious and
deliberate government wrongdoing.’” 2 LaFave, supra, § 4.4(c),
at 549-50 (quoting United States v . Carmichael, 489 F.2d 983, 989
(7th Cir. 1973) and citing additional cases). Franks has been
criticized for the Court’s failure to “acknowledge[] the
existence of this body of authority,” let alone “explain[] in
some detail the reasons which justify a rejection of it,” id. at
550, and a case of this nature lends a measure of support to such
criticism.11
11 In Stewart, the court of appeals stated that Franks, “while establishing that suppression is required when a challenged warrant is stripped of facts material to the determination of probable cause, do[es] not explicitly prohibit a court from utilizing suppression, as a matter of discretion, to serve the exclusionary rule’s prophylactic purpose.” 337 F.3d at 106. The court went on to caution that “[i]f suppression were authorized in such circumstances, it would be utilized sparingly
47 But criticism is one thing, and controlling law is another.
Under that controlling law, the evidence seized through the
search warrant cannot be excluded unless the facts that
Lieutenant Nolet intentionally or recklessly omitted would have
negated probable cause for the search. They would not have, so
Tanguay’s motion to suppress12 must be DENIED.
SO ORDERED.
Jos/ph N. Laplante Un e ted States District Judge
Dated: October 2 9 , 2012
cc: Helen W . Fitzgibbon, AUSA Seth R. Aframe, AUSA Behzad Mirhashem, Esq. Jeffrey S . Levin, Esq.
and in rare and particularly egregious circumstances”--and went on to affirm the district court’s denial of the motion to suppress despite “four reckless omissions and one intentional withholding of information” and “seeming inconsistencies in the agents’ testimony at the Franks hearing” because, even accounting for that information, the warrant applications demonstrated probable cause. Id. The circumstances here are no more egregious s o , even if Stewart does authorize suppression in the case of intentional or reckless omissions that would not have negated probable cause, it does not authorize suppression here. 2 Document n o . 3 4 .
Related
Cite This Page — Counsel Stack
2012 DNH 187, Counsel Stack Legal Research, https://law.counselstack.com/opinion/usa-v-jonathan-tanguay-nhd-2012.