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 .

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,

(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,

0 , 66 (1st Cir.

2003) (quoting Franks,

5 5 ) . “A material omission of

information may also trigger a Franks hearing.” United States v .

Castillo,

1 , 25 (1st Cir. 2002) (citing United States

v . Hadfield,

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,

. 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,

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

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