UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

United States of America, Government

v. Case No. ll-cr-176-l-SM Opinion No.

Anthony Silva, Defendant

O R D E R

Defendant, Anthony Silva, moves to suppress evidence he says

was obtained from an unconstitutional search and seizure of his

person and automobile. Having considered the evidence presented

at a suppression hearing, the briefs filed by the parties, and

the argument of counsel, the motion (document no. 17) is denied.

Findings of Fact

Daniel Pelletier, a resident of Derry, New Hampshire, went

to the Derry Police Department on the evening of July 18, 2010,

around 11:00 p.m., where he reported that Anthony Silva, the

defendant, paid him $150.00 in counterfeit United States currency

to satisfy a $100.00 bill for mechanical work Pelletier had done

on Silva's car. Pelletier gave police the counterfeit currency

he said he got from the defendant. He also told police that

defendant could be found sitting in his car, described as a

silver Cadillac, in a an apartment complex parking lot (where Pelletier lived). He said defendant was living in his car, which

contained numerous personal belongings, and that additional

counterfeit currency would be found in the car. He also told

police that defendant was making counterfeit identification

documents as well. When police asked why Pelletier was reporting

defendant, he said that he was "fed up" with defendant over past

financial transactions in which he thought Silva had taken

advantage of him.

While it is not entirely clear who did it (it was likely

Sergeant Muncie), still, the police checked Silva's name against

pertinent databases to determine whether he was the subject of

any outstanding warrants. They found an active electronic bench

warrant for an Anthony Silva, related to an unpaid fine for

driving an unregistered vehicle. Two officers (Sergeant Muncie

and Office Phillips) then went to the location described by

Pelletier. They found defendant sitting in his car. It was a

silver Cadillac, as Pelletier had said. The car was filled with

personal items, and defendant did appear to be living in it. The

officers approached the car.

Defendant was asked for his driver's license. He resisted,

claiming he had a right to be there and did not have to identify

himself. Muncie insisted, telling defendant that if he did not

2 produce his driver's license he would be arrested for disobeying

a police officer.1 Defendant then produced a New Hampshire

driver's license. Muncie handed the license to Officer Phillips,

who radioed defendant's name and date of birth to the police

dispatcher, who in turn ran another warrant check, confirming

that defendant was subject to arrest on the outstanding warrant.

Defendant was placed under arrest pursuant to that warrant, and

searched incident to that arrest.

The search of defendant's person produced an apparently

counterfeit New York driver's license that was ostensibly issued

to "John Smith" but displayed defendants' photograph. And,

police recovered a counterfeit $10.00 bill and a counterfeit

$20.00 bill from his pocket. Defendant was transported to the

police station, where he was asked to consent to a search of his

automobile. He declined, so police towed his car to a secure lot

to await execution of a search pursuant to a warrant they

intended to seek. Defendant was released from custody early in

the morning of July 20, 2010.

1 Sgt. Muncie probably had in mind New Hampshire statutes that require a person "driving" or "in charge" of a vehicle to provide his or her name, address, and date of birth, and driver's license, when requested by a law enforcement officer. See N.H. Rev. Stat. Ann. ch. 264:4 and 263:2. But, it is not certain that those laws applied under the circumstances, because defendant's car may not have been on a "way" (RSA ch. 259:125) and he may not have been "driving" (the parties do not discuss the issue).

3 The following afternoon another police officer spoke to

Pelletier about defendant. Pelletier said that he had spoken to

the defendant earlier that morning and that defendant

acknowledged that he was in "big trouble" because he had

$3,000.00 in counterfeit currency in the trunk of his car and

$200.00 to $300.00 in counterfeit currency in the glove box.

Because the case involved counterfeit currency, the Secret

Service was notified and assumed investigative responsibility.

An application for a search warrant was filed four days later, on

July 23, 2010, and a warrant issued that same day. The warrant

was executed and defendant's car searched three days later, on

July 26, 2010. In an affidavit supporting the warrant

application. Secret Service Special Agent Brian M. Coffee,

related the information Pelletier gave to the Derry Police

Department and noted the corroborating observations by police

officers. He also informed the court that other counterfeit

bills, bearing the same serial numbers that appeared on the bills

given police by Pelletier, had been passed in nearby Manchester,

New Hampshire, on July 12, 2010. Coffee also wrote that he

thought Pelletier's information was trustworthy and reliable

because he gave it voluntarily, without seeking or receiving

anything in return, and because the information was corroborated

by the counterfeit currency provided by Pelletier, the

4 counterfeit currency taken from defendant incident to his arrest

on the outstanding bench warrant, and the fact that defendant was

found where and as Pelletier described.

Having heard Pelletier and a family member testify at the

suppression hearing, it is apparent to me that Pelletier suffers

from some degree of psychological impairment. He seemed to be

decidedly confused about some major aspects of his personal

history, and seemed as well to entertain fanciful, perhaps

delusional, ideas about his circumstances. For example, he

believes he won a substantial sum (millions of dollars) in the

Massachusetts lottery (it was not shown that he did not, but

still, it seems improbable), and that he owned a number of

businesses in Derry that he frequents, which were unlawfully

taken from him (again, although not disproved, his testimony

seemed improbable). And, defendant's evidence suggested that

Pelletier had made baseless complaints to the Derry Police

Department in the past, and that he was regarded by the police

department (in general) as both an unreliable complainant and a

source of disquiet within the town. However, it is clear that

neither the police officers involved in the investigation or

arrest of defendant, nor Special Agent Coffee (who applied for

the warrant) were aware of Pelletier's potential difficulties or

his past contacts with the police department, and they had no

5 reason to think Pelletier might not be providing reliable

information or that he was anything other than an ordinary

citizen providing information about potential criminal activity.

Discussion

Defendant raises a number of related issues, but essentially

challenges the legality of the search of his person and

automobile and seeks to suppress evidence derived from those

searches. Each search, however, was completely lawful and

conducted well within constitutional bounds.

Officer Donaghue, who initially spoke to Pelletier, had no

reason to think him incapable of providing accurate information,

nor to doubt his good faith. That Pelletier handed over the

counterfeit currency he said defendant gave him provided

substantial corroboration of his report. Moreover, when police

officers subsequently verified that defendant was at the location

described, sitting in a silver Cadillac, and that he was

apparently living in the car — all as described by Pelletier —

they had, under all the circumstances, at the very least, a

reasonable and articulable suspicion that defendant had recently

engaged in criminal activity involving counterfeit currency. See

. Accordingly, the officers were entitled to

"stop" defendant and conduct a brief investigation to either

6 confirm or dispel that suspicion. Terry v. Ohio,

); United States v. Acosta-Colon,

(1st Cir. 1998).

Police officers are not limited to personal observations in

justifying Terry-stop type investigations — reasonable suspicion

justifying a brief investigatory intrusion may be based, as here,

on information provided by others. See, e.g.. United States v.

Romain,

(1st Cir. 2004) (citing Adams v .

Williams,

(1972)). Pelletier's information, as

corroborated, carried sufficient indicia of reliability to

warrant the officers' acting upon it. See

. And,

because the police had a reasonable basis to suspect criminal

activity, they were entitled to diligently pursue a means of

investigation likely to confirm or dispel their suspicions

quickly. See United States v. Sharpe,

(1985) .

Accordingly, the police officers properly approached

defendant's car and engaged the defendant. Because the Terry

"stop" (or investigation) was justified, the officers were also

justified in requiring defendant to identify himself. The

Supreme Court, in Hiibel v. Sixth Judicial Dist. Court of Nev.,

(2004), made it clear that questions concerning a

suspect's identity are a routine and accepted part of many Terry

stops, and that obtaining a suspect's identity during a valid

7 Terry stop serves important governmental interests, and is

constitutionally permissible:

Indeed, knowledge of identity may inform an officer that a suspect is wanted for another offense, or has a record of violence or mental disorder. On the other hand, knowing identity may help clear a suspect and allow the police to concentrate their efforts elsewhere.

(citation and internal punctuation omitted). See also

United States v. Hensley,

(1985) ("[t]he

ability to briefly stop [a suspect], ask questions, or check

identification in the absence of probable cause promotes the

strong government interest in solving crimes and bringing

offenders to justice."); Haves v. Florida,

(1985); Adams v. Williams,

(1972).

Accordingly, defendant's arrest pursuant to the outstanding

warrant was lawful, as was the search of his person incident to

that arrest. That counterfeit currency and a counterfeit license

were found on defendant's person, when considered in light of

Pelletier's earlier statements and his handing over of

counterfeit currency, and the fact that defendant was apparently

living in his car, all added up to probable cause to search

defendant's vehicle for evidence of criminal activity related to

counterfeiting. That is, under the circumstances it was reasonably likely that additional counterfeit currency would be

found in the car in which defendant was living.

So, police officers could have searched defendant's car at

that point — not incident to his arrest on the unrelated warrant,

but under the familiar "automobile exception," which provides

that "'[i]f there is probable cause to believe a vehicle contains

evidence of criminal activity,' agents can search without a

warrant 'any area of the vehicle in which evidence may be

found.'" United States v. Polanco,

(1st Cir.

2011) (quoting Arizona v. Gant,

(2009)); see

also Pennsylvania v. Labron,

(1996). Probable

cause, of course, requires only a fair probability that evidence

of criminal activity will be found in the place to be searched —

a standard easily met in this case. See United States v.

Woodbury,

(1st Cir. 2007).

But the police officers did not search defendant's car

pursuant to the automobile exception. Instead, they towed the

car to a secure lot and applied for a search warrant. The

warrant application was presented to the court four days later,

on July 23, 2010, a warrant issued, and it was executed on July

26, 2010. That seven (7) day delay in obtaining and executing a

search warrant was reasonable under all the circumstances and

9 provides defendant with no grounds upon which to seek suppression

of the evidence found during the search. See United States v.

McHugh,

(1st Cir. 1985) (seven day delay between

car's seizure and search not unreasonable).

Defendant finally argues that the search of his car pursuant

to the warrant was unlawful because the warrant was procured

based upon a material omission from the affidavit supporting

Agent Coffee's application. See Franks v. Delaware,

(1978). A Franks hearing is required when a defendant makes a

substantial preliminary showing that (for purposes of this case)

the affidavit supporting the warrant application suffered from a

material omission, that the material omission was intentional or

the result of a reckless disregard for the truth, and that, if

the omitted material was considered, probable cause would not be

demonstrated. See

United States v. Reiner,

(1st Cir. 2007); United States v. Stewart,

(1st Cir. 2003); United States v. Castillo,

(1st Cir. 2002 ) .

Defendant has not made the requisite preliminary showing

warranting a Franks hearing. He says that the complainant,

Pelletier, was not a credible informant because he exhibits

fanciful even delusional thinking and the Derry Police Department

10 was aware of that condition. The officers involved in the

investigation of this case, however, were not aware of that

circumstance, and Agent Coffee, the affiant, was certainly not

aware of that circumstance. It is clear that neither Agent

Coffee nor the Derry police officers involved in the

investigation intentionally omitted that information from the

supporting affidavit.

Additionally, defendant says that Agent Coffee at least

knew, or should have known, after reading pertinent Derry police

reports, that Pelletier told police at the outset that he was

upset with defendant, was "fed up" with him, felt he had been

ill-treated in the past by defendant, and so had a motive to

falsely accuse defendant of passing counterfeit currency (or

generally to "set him up"). That critical information reflecting

on Pelletier's credibility, he says, should have been included in

the supporting affidavit, but was intentionally or recklessly

left out. Had the Magistrate Judge been presented with that

information, defendant argues, probable cause to search his car

would not have been found to exist and the search warrant would

not have issued.

I agree that information related to Pelletier's potential

motive to falsely accuse defendant should have been included in

11 the affidavit for the Magistrate Judge's consideration, since it

was directly relevant to Pelletier's reliability and credibility

But, defendant offers little to suggest that Agent Coffee

intentionally omitted that fact, or that he did so with reckless

disregard for the truth, rather than simple inadvertence.

More to the point, however, had that information (motive to

fabricate), and information related to Pelletier's seemingly

delusional thinking on occasion, been included in the supporting

affidavit, probable cause to search defendant's car was still

demonstrated. That is, even discounting Pelletier's reliability

as an informant to a level at which considerable caution should

attend any reliance upon his statements, still, his statements

were sufficiently credible because they were corroborated by

substantial physical evidence and police observations:

Pelletier's claimed basis of knowledge was personal interaction

with defendant, and he handed over the counterfeit currency he

said defendant gave him; defendant was at the location Pelletier

claimed; he was in the car as Pelletier described it; he was

apparently living in the car as Pelletier said; counterfeit

currency and a counterfeit driver's license were found on

defendant's person; the serial numbers on the counterfeit

currency were the same as those on counterfeit bills passed in a

nearby town several days earlier; and a means of producing

12 counterfeit currency (an ink jet printer) was plainly visible in

the car. That is, had the omitted information defendant points

to been provided in the supporting affidavit, probable cause to

search would not have been negated. The totality of the

circumstances disclosed in the affidavit, as supplemented by the

omitted material, would still have established probable cause to

search defendant's car.

Accordingly, defendant was not entitled to a Franks hearing.

As a practical matter, however, defendant obtained a hearing on

the merits of his Franks claim during the evidentiary hearing on

his suppression motion. And, again, on the merits, even

considering the information defendant says should have been

provided in the supporting affidavit, it is clear that probable

cause still existed to search his car. "Suppression should be

ordered only if the warrant application, . . . clarified by

disclosure of previously withheld material, no longer

demonstrates probable cause." United States v. Reiner,

.

Conclusion

For the reasons given, defendant's motion to suppress

evidence (document no. Ij7) and for a Franks hearing (document no.

27) are denied.

13 SO ORDERED.

Steven J./McAuliffe Jnited States District Judge

September 19, 2012

cc: Alfred J. T. Rubega, AUSA Bruce E. Kenna, Esq. U.S. Marshal U.S. Probation

14