United States District Court, D. New Hampshire
JOSEPH DiCLERICO, Jr., District Judge.
Peter Apicelli is charged with one count of manufacturing marijuana in violation of 21 U.S.C. § 841(a)(1). Apicelli moves to suppress evidence obtained by the government through surveillance of areas around Apicelli's home, evidence seized during a search of the home, and an identification of Apicelli as the person shown in surveillance videos taken of the area around his home. The government objects to the motion.
The background information is summarized from the materials submitted by Apicelli in support of his motion to suppress and by the government in support of its objection. The material facts are not disputed.
Beginning in April of 2012, Apicelli rented a house and property located at 201 Mason Road in Campton, New Hampshire, from Rene and Elizabeth Dubois. While living there, Apicelli encountered Robert "Butch" Bain and his daughter many times on the property around the house. Apicelli told Bain that he did not want him on the property, and Bain responded that he had hunted on the property for twenty years.
When Bain continued to enter the property, Apicelli complained to his landlord, Rene Dubois. Dubois then prepared a document titled "Mason Property Land Use Conditions August 27, 2013" "[i]n an effort to balance all parties." In the document, Dubois stated that while Apicelli had "exclusive privacy rights" to the property, certain exceptions were granted to Bain to hunt and access snowmobile trails on parts of the property.
On September 5, 2013, Detective Nicholas Blodgett and Detective Eric Piche, members of the New Hampshire Drug Task Force, met with Sergeant Patrick Payer of the Campton Police Department to investigate a report of marijuana growing in the area of Mason Road in Campton. Blodgett stated in his report that a "concerned citizen" told him about the "alleged grow." The concerned citizen also said that he had seen a lot of traffic at a residence on Mason Road that was rented by Peter Apicelli, that Apicelli did not want anyone on the property, and that Apicelli seemed nervous about people being there. Payer noted that the property was owned by Rene Dubois.
The same day, Blodgett, Piche, Payer, and the concerned citizen met in the area of 201 Mason Road to look for the marijuana that the concerned citizen had reported was growing there. They walked to the back of the property, which was an apple orchard, and in the woods next to the orchard they saw what appeared to be marijuana growing in two different areas. The area where the marijuana was growing was about 200 yards away from Apicelli's house. They then left the property.
Blodgett, Piche, and Payer decided to install a surveillance camera on the marijuana plants. Blodgett contacted Sergeant Eric James of the Grafton County Sheriff's Department who said that a surveillance camera was available for them to use.
On the morning of September 6, Blodgett, Payer, and James drove to 201 Mason Road to install the camera for surveillance. They walked through the property to get to the area where Blodgett and Payer had found marijuana growing the day before and on the way found another group of marijuana plants. James noted that the plants were in clumps together on the edge of woods next to a field or an orchard. James also noted that the plants had been tended by being planted in potting soil and propped up with rocks. Blodgett and James set up the surveillance camera to watch the area where they first found marijuana growing.
The group returned on September 9 to check the camera's recordings. The plants appeared to be untouched. They found that no person was shown on any of the recordings and thought that the wind had set off the camera. They decided to check the camera again a few days later and left. They went back to the area on September 12 to check for activity and found that the plants had been knocked down in a recent thunderstorm. Again, there was no one shown on the recordings.
On September 16, Blodgett, Payer, James, and Detective Hollie Dube of the New Hampshire Drug Task Force, walked into the area again to check the camera. The plants showed signs of having been tended because they were now staked and some had been clipped or pruned. This time two recordings showed a male subject wearing a green shirt and tan shorts and carrying a red back pack. The person was seen tending the plants on two different days. James took the hard drive from the camera and they left. James made copies of the recordings and gave them to Payer. Payer identified Apicelli as the person shown in the surveillance recordings based on several sources of information.
Payer applied for a warrant to search Apicelli's house on September 17. In the supporting affidavit, Payer described the investigation of Apicelli's property, how and where the marijuana was found, the number and size of the plants, the evidence that the plants were being intentionally cultivated, and the results of camera surveillance. Payer also stated that he had determined that the property was owned by Rene and Elizabeth Dubois and was being rented by Apicelli and that a green Ford Ranger at the house was owned by Apicelli. Payer further stated: "Apicelli through police department, motor vehicle, and criminal records fits the description of the subject that was seen in the video."
Payer also explained that the residence at 201 Mason Road "is in an area that is hunted regularly by [blank] is friends with the Dubois, and also the [blank]." He stated that "[blank] identified the male subject on the video as being Peter Apicelli. [Blank] said that [blank] has known Apicelli for roughly two years. [Blank] was able to identify Apicelli based on his attire, mannerisms, and physical descriptors. [Blank] said that [blank] has had roughly a dozen personal interactions with Apicelli in the past two years." Payer then provided his opinions, based on his training and experience, about the likelihood that other evidence related to manufacturing marijuana for sale would be found in the house.
The warrant application was granted the same day, September 17. Once the search warrant was obtained, Payer, James, Blodgett, Dube, Officer Lee of the Campton Police Department, and State Police Trooper Shawn Torsey drove to Apicelli's home at 201 Mason Road. They found that no one was home and entered the house to conduct the search. In the course of the search, the officers found marijuana drying in the stairwell of the house and marijuana growing in the basement. They also found growing equipment and evidence of marijuana harvesting and use. The red back pack seen in the surveillance footage was found ...