USA v . Turcotte CR-03-177-B 11/19/03
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
United States of America
v. Criminal N o . 03-177-01-B Opinion N o . 2003 DNH 232 Travis Turcotte
MEMORANDUM AND ORDER
Travis Turcotte and Mitchell Edward were arrested February
2 6 , 2003 for conspiracy to rob McDonald’s on Fisherville Road in
Concord, New Hampshire. Turcotte now moves to suppress all
evidence gathered directly or indirectly as a result of his
arrest on the grounds that there were intentional material
omissions in the affidavit in support of the arrest warrant and,
but for those omissions, probable cause for the warrant would not
have been found.1 Citing Franks v . Delaware, 438 U.S. 154
(1978), he seeks an evidentiary hearing on his motion. Although
1 Turcotte also argues that he was questioned immediately subsequent to his arrest without being advised of his Miranda rights and that the statements he made should be suppressed. The government has informed the court that it will not use Turcotte’s statements in its case in chief. Turcotte’s Miranda claim is therefore moot and I need not consider it at this time. I agree that the affiant omitted information that should have
been brought to the attention of the judge who issued the
warrant, I reject Turcotte’s request for a hearing because the
omitted information would not have affected the issuing judge’s
probable cause finding.
“A Franks hearing is required ‘where the defendant makes a
substantial preliminary showing that a false statement knowingly
and intentionally, or with reckless disregard for the truth, was
included by the affiant in the warrant affidavit, and if the
allegedly false statement is necessary to the finding of probable
cause.’” United States v . Santana, 342 F.3d 6 0 , 66 (1st Cir.
2003) (quoting Franks, 438 U.S. at 1 5 5 ) . “A material omission of
information may also trigger a Franks hearing.” United States v .
Castillo, 287 F.3d 2 1 , 25 (1st Cir. 2002) (citing United States
v . Hadfield, 918 F.2d 9 8 7 , 992 (1st Cir. 1990)). “With an
omission, [however,] the inquiry is whether its inclusion in an
affidavit would have led to a negative finding by the magistrate
on probable cause.” Castillo, 287 F.3d at 25 n.4 (emphasis in
original). In determining probable cause for the issuance of the
warrant, I must evaluate the “totality of the circumstances” to
see if the inclusion of the omitted information would have
2 prevented a finding of probable cause. Id. at 2 6 . Turcotte must
therefore make a “substantial preliminary showing” that the
omissions he cites were “made knowingly and intentionally” or
“with reckless disregard for the truth” and that the omissions
were “necessary to the finding of probable cause.” Franks, 438
U.S. at 155-56. Because I find the omissions to not be necessary
to the finding of probable cause given the totality of the
circumstances, I deny Turcotte’s motion.
Turcotte argues that the affidavit supporting the arrest
warrant omitted three key facts that, had they been disclosed,
would have negated any finding of probable cause. He asserts
that the affiant omitted exculpatory physical characteristics of
Turcotte, omitted damaging credibility evidence regarding the
informant, Kelly Moya, and omitted information involving other
suspects who could have committed the crime. I evaluate each
omission in turn.
Turcotte contends that the affidavit fails to disclose the
fact that his physical characteristics are inconsistent with the
physical description of the assailants provided by the eye
witness, Dana Vandermark. M r . Vandermark described his
assailants as “kids,” teenagers who were less than 20 years old.
3 He described them as white males, with one around 5'1"-5'2" and
the other about 5'7" or taller, and both wearing black and white
bandanas on their faces and heads. Additionally, M r . Vandermark
heard one assailant refer to the other as “Craig.” Turcotte
notes in contrast that he is a light-skinned black male, is 6'
tall, weighs 230 pounds, is 23 years old, and neither he nor the
other party charged with the crime are named Craig.2 Turcotte
argues that the affidavit failed to disclose these exculpatory
characteristics and failed completely to describe Mitchell
Edward, the other party charged with the crime, who is a white
male, 175 pounds, and 6'1"-6'2".
The affidavit, however, does lay out some of these
discrepancies and those that are omitted are not enough to negate
the finding of probable cause. The affidavit sets out the
witnesses’ description of the two robbers as two white males,
both less than twenty years old, both with black and white
bandanas covering their faces and heads, one as 5'1"-5'2" and the
other as 5'7". It also notes that one of the robbers referred to
the other as “Craig.” What it failed to note is that Turcotte is
2 Turcotte’s first name is Travis and the other party charged with the crime is Mitchell Edward.
4 6' tall. The inclusion of a height discrepancy of a few inches,
however, is not enough to defeat a finding of probable cause
given the other information provided in the affidavit, namely the
inclusion of corroborated information from an informant, Kelly
Moya, that implicated Turcotte and Edward as the perpetrators.
Turcotte also argues that damaging credibility information
regarding Moya’s background was omitted from the affidavit, and
had it been included, her testimony would not have been relied
upon and therefore probable cause would not have been found.
Turcotte maintains that while the affidavit indicated that Moya
had been fired two days prior to the robbery attempt, it failed
to note that the police had been informed that Moya was angry at
McDonald’s because of the firing. Turcotte also complains of the
fact that the affiant fails to disclose Moya’s prior convictions
for [describe criminal record]. While Turcotte is correct in
asserting that the affidavit incorrectly fails to disclose Moya’s
past criminal record, Moya’s statement is sufficiently reliable
given the corroboration of her statement by the police.
Moya’s statement chronicles how Turcotte and Edward
approached her at a party on how to rob McDonald’s on Fisherville
Road. Moya became nervous that Turcotte and Edward were serious
5 about the robbery, and tried to distract them by offering to get
them marijuana. She said she then called McDonald’s to get the
phone number of a co-worker whom she knew could get her
marijuana. The police confirmed in the affidavit that Moya did
call McDonald’s that night. Moya also related how Turcotte
confessed information regarding the robbery to her that had not
been released to the press and would have been information only
someone involved in the robbery would have known, further
corroborating her statement. Additionally, Moya conveyed
information about a stolen car used by Turcotte and Edward for
the robbery. This car was stolen from the Market Basket parking
lot on Fort Eddy Road and abandoned in Manchester. The police
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USA v . Turcotte CR-03-177-B 11/19/03
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
United States of America
v. Criminal N o . 03-177-01-B Opinion N o . 2003 DNH 232 Travis Turcotte
MEMORANDUM AND ORDER
Travis Turcotte and Mitchell Edward were arrested February
2 6 , 2003 for conspiracy to rob McDonald’s on Fisherville Road in
Concord, New Hampshire. Turcotte now moves to suppress all
evidence gathered directly or indirectly as a result of his
arrest on the grounds that there were intentional material
omissions in the affidavit in support of the arrest warrant and,
but for those omissions, probable cause for the warrant would not
have been found.1 Citing Franks v . Delaware, 438 U.S. 154
(1978), he seeks an evidentiary hearing on his motion. Although
1 Turcotte also argues that he was questioned immediately subsequent to his arrest without being advised of his Miranda rights and that the statements he made should be suppressed. The government has informed the court that it will not use Turcotte’s statements in its case in chief. Turcotte’s Miranda claim is therefore moot and I need not consider it at this time. I agree that the affiant omitted information that should have
been brought to the attention of the judge who issued the
warrant, I reject Turcotte’s request for a hearing because the
omitted information would not have affected the issuing judge’s
probable cause finding.
“A Franks hearing is required ‘where the defendant makes a
substantial preliminary showing that a false statement knowingly
and intentionally, or with reckless disregard for the truth, was
included by the affiant in the warrant affidavit, and if the
allegedly false statement is necessary to the finding of probable
cause.’” United States v . Santana, 342 F.3d 6 0 , 66 (1st Cir.
2003) (quoting Franks, 438 U.S. at 1 5 5 ) . “A material omission of
information may also trigger a Franks hearing.” United States v .
Castillo, 287 F.3d 2 1 , 25 (1st Cir. 2002) (citing United States
v . Hadfield, 918 F.2d 9 8 7 , 992 (1st Cir. 1990)). “With an
omission, [however,] the inquiry is whether its inclusion in an
affidavit would have led to a negative finding by the magistrate
on probable cause.” Castillo, 287 F.3d at 25 n.4 (emphasis in
original). In determining probable cause for the issuance of the
warrant, I must evaluate the “totality of the circumstances” to
see if the inclusion of the omitted information would have
2 prevented a finding of probable cause. Id. at 2 6 . Turcotte must
therefore make a “substantial preliminary showing” that the
omissions he cites were “made knowingly and intentionally” or
“with reckless disregard for the truth” and that the omissions
were “necessary to the finding of probable cause.” Franks, 438
U.S. at 155-56. Because I find the omissions to not be necessary
to the finding of probable cause given the totality of the
circumstances, I deny Turcotte’s motion.
Turcotte argues that the affidavit supporting the arrest
warrant omitted three key facts that, had they been disclosed,
would have negated any finding of probable cause. He asserts
that the affiant omitted exculpatory physical characteristics of
Turcotte, omitted damaging credibility evidence regarding the
informant, Kelly Moya, and omitted information involving other
suspects who could have committed the crime. I evaluate each
omission in turn.
Turcotte contends that the affidavit fails to disclose the
fact that his physical characteristics are inconsistent with the
physical description of the assailants provided by the eye
witness, Dana Vandermark. M r . Vandermark described his
assailants as “kids,” teenagers who were less than 20 years old.
3 He described them as white males, with one around 5'1"-5'2" and
the other about 5'7" or taller, and both wearing black and white
bandanas on their faces and heads. Additionally, M r . Vandermark
heard one assailant refer to the other as “Craig.” Turcotte
notes in contrast that he is a light-skinned black male, is 6'
tall, weighs 230 pounds, is 23 years old, and neither he nor the
other party charged with the crime are named Craig.2 Turcotte
argues that the affidavit failed to disclose these exculpatory
characteristics and failed completely to describe Mitchell
Edward, the other party charged with the crime, who is a white
male, 175 pounds, and 6'1"-6'2".
The affidavit, however, does lay out some of these
discrepancies and those that are omitted are not enough to negate
the finding of probable cause. The affidavit sets out the
witnesses’ description of the two robbers as two white males,
both less than twenty years old, both with black and white
bandanas covering their faces and heads, one as 5'1"-5'2" and the
other as 5'7". It also notes that one of the robbers referred to
the other as “Craig.” What it failed to note is that Turcotte is
2 Turcotte’s first name is Travis and the other party charged with the crime is Mitchell Edward.
4 6' tall. The inclusion of a height discrepancy of a few inches,
however, is not enough to defeat a finding of probable cause
given the other information provided in the affidavit, namely the
inclusion of corroborated information from an informant, Kelly
Moya, that implicated Turcotte and Edward as the perpetrators.
Turcotte also argues that damaging credibility information
regarding Moya’s background was omitted from the affidavit, and
had it been included, her testimony would not have been relied
upon and therefore probable cause would not have been found.
Turcotte maintains that while the affidavit indicated that Moya
had been fired two days prior to the robbery attempt, it failed
to note that the police had been informed that Moya was angry at
McDonald’s because of the firing. Turcotte also complains of the
fact that the affiant fails to disclose Moya’s prior convictions
for [describe criminal record]. While Turcotte is correct in
asserting that the affidavit incorrectly fails to disclose Moya’s
past criminal record, Moya’s statement is sufficiently reliable
given the corroboration of her statement by the police.
Moya’s statement chronicles how Turcotte and Edward
approached her at a party on how to rob McDonald’s on Fisherville
Road. Moya became nervous that Turcotte and Edward were serious
5 about the robbery, and tried to distract them by offering to get
them marijuana. She said she then called McDonald’s to get the
phone number of a co-worker whom she knew could get her
marijuana. The police confirmed in the affidavit that Moya did
call McDonald’s that night. Moya also related how Turcotte
confessed information regarding the robbery to her that had not
been released to the press and would have been information only
someone involved in the robbery would have known, further
corroborating her statement. Additionally, Moya conveyed
information about a stolen car used by Turcotte and Edward for
the robbery. This car was stolen from the Market Basket parking
lot on Fort Eddy Road and abandoned in Manchester. The police
corroborated this as well. Where the affidavit shows independent
corroboration of information provided by a named informant, as it
does here, the criminal background of that informant is not
enough to make the informant unreliable and bar a probable cause
determination. See United States v . Nocella, 849 F.2d 3 3 , 41
(1st Cir. 1988) (finding an informant to be sufficiently reliable
after noting that there was independent corroboration for much of
the information that the informant had provided). For this
reason, even if the affidavit had included Moya’s criminal
6 background, as it should have, it would not have been enough to
defeat a finding of probable cause given the totality of the
circumstances because of the independent corroboration of much of
Moya’s information.
Finally, Turcotte argues that the affidavit wrongfully
excluded information regarding another suspect, Patrick Conley,
whom Turcotte claims more closely resembles the description of
one of the assailants as provided by M r . Vandermark. In fact,
the police had previously obtained a warrant to search Conley’s
residence and had focused their investigation on him until he
provided an alibi. While Turcotte is correct that this
information should have been included in the affidavit, it is
still not enough to defeat a finding of probable cause because
the affidavit contained ample evidence implicating Turcotte and
what little evidence implicated Conley was undermined by his
alibi. In short, there was sufficient information provided in
the affidavit implicating Turcotte that even if Conley’s
information had been provided, probable cause to arrest Turcotte
would still have existed.
Because the omissions in the affidavit identified by
Turcotte would not have negated a finding of probable cause even
7 if they had been included, I reject Turcotte’s request for a
Franks hearing and deny his motion to suppress (Doc. N o . 1 2 ) .
SO ORDERED.
Paul Barbadoro Chief Judge
November 1 9 , 2003
cc: Jonathan Saxe, Esq. Terry Ollila, AUSA United States Marshal United States Probation