United States District Court, D. New Hampshire
[Copyrighted Material Omitted]
Helen W. Fitzgibbon, Seth R. Aframe, U.S. Attorney's Office, Concord, NH, for United States of America.
Behzad Mirhashem, Jeffrey S. Levin, Federal Defender's Office, Concord, NH, for Jonathan Tanguay.
JOSEPH N. LaPLANTE, District Judge.
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, 98 S.Ct. 2674, 57 L.Ed.2d 667 (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. So, as fully explained below, Tanguay's motion to suppress is denied.
A. The pseudonymous 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 snales 356@ 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 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.
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, 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. 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.
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 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 it, 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. 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.
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 it, nor, Wiggin said, did they know about his homosexual activity. Lieutenant Nolet told Wiggin that, before coming in for the interview, he should write down anything relevant so as not to forget it.
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 10, 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. 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 16, 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, 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 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 it, 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 ha, 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 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 ...