UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

United States of America

v. Criminal No. 11-cr-173-JL Opinion No.

Jonathan Tanguay

MEMORANDUM ORDER

After remand by the First Circuit Court of Appeals,1 the

court revisits defendant’s motion to suppress evidence seized

pursuant to a search warrant in this child pornography possession

case. Having reviewed the parties post-remand briefs and held

oral argument, and applying the legal rubric enunciated by the

appellate panel, the court again denies the motion to suppress.2

Although the court finds that the warrant affiant’s failure to

make further inquiry into Josh Wiggin’s past was reckless and

that such inquiry would have yielded information that should have

been included in the affidavit, the court finds that the

affidavit, reformed to include the missing information, still

supports a finding of probable cause.

I. Issues on Remand

The Court of Appeals directed this court to consider four

questions on remand:

1

(1st Cir. 2015) (“Tanguay II”). 2 The parties agreed that admission of additional evidence was not necessary. 1. Did the information known to Lt. Nolet give her an obvious reason to doubt Joshua Wiggin’s truthfulness and, thus, trigger a duty of further inquiry. Tanguay II,

.

2. If such a duty was triggered, were Lt. Nolet’s doubts of such a magnitude that her failure to conduct an additional inquiry evinced a reckless disregard for the truth, rather than mere negligence. Id.

3. If the answers to the first to questions are in the affirmative, the court must then determine whether Lt. Nolet, had she made good-faith efforts to dispel her doubts, would have discovered new information that should have been included in her affidavit. Id.

4. Finally, if the court finds that the information should have been included, the court must assess whether the reformed affidavit would continue to support a finding of probable cause. Id.

II. Facts and Stipulations

This court, in its original denial of Tanguay’s motion,3 and

subsequently the Court of Appeals, provided thorough summaries of

the pertinent facts. Accordingly, with the exception of certain

post-appeal stipulations, the court eschews another factual

recitation and proceeds directly to the issues presented by the

appeals tribunal.

Prior to submitting their post-appeal memoranda, the parties

stipulated that, if Lt. Nolet had accessed Wiggin’s NCIC criminal

record, it would not have included the 1998 juvenile adjudication

for making a false report. The parties further agree that if

Nolet had asked Sergeant Boyer to provide additional information

3

(D.N.H. 2012) (“Tanguay I”).

2 about Wiggin’s “scrapes with the law,” he would have provided her

with a document showing Wiggin’s contact with the Conway Police

Department, which would have identified the juvenile false report

adjudication. Finally, the parties agree that the underlying

Conway Police reports relevant to Wiggin would have been

available to Nolet if she had asked to review them.

III. Analysis

A. Duty of Further Inquiry

The first question presented to the court requires little

discussion. Conway Police Sgt. Broyer informed Nolet that:

Wiggin was known as a “police groupie” who was “quirky,” “troubled” in his teen years, and had a history of suicidal ideation. Broyer also commented that Wiggin had experienced “a few scrapes” with the law, specifically mentioning that Wiggin had been convicted of uttering a false prescription (he had altered the number of Vicodin pills on a legitimate prescription from 30 to 80 before presenting the prescription to a pharmacist).

Tanguay II,

; Tanguay I,

.

As the government concedes, this information triggered Lt.

Nolet’s duty of further inquiry.

B. Reckless Disregard for the Truth

Having established that Lt. Nolet’s duty of further inquiry

was triggered, the court’s next task is to ascertain whether Lt.

Nolet’s doubts about Wiggin’s truthfulness were of such a

magnitude that her failure to conduct an additional inquiry

evinced a reckless disregard for the truth, rather than mere

3 negligence. Tanguay II,

(citing United States v.

Ranney,

(1st Cir. 2002)). Reckless disregard for

the truth, in turn, may be proven either by evidence that Lt.

Nolet “in fact entertained serious doubts as to the truth of the

allegations contained in the affidavit, or by inference from

circumstances evincing obvious reasons to doubt the veracity of

the allegations.”

at 52 (citing Ranney,

)

(internal quotation marks omitted)(emphasis added)).

Once again, little discussion is required for the court to

conclude that Lt. Nolet was reckless in failing to inquire

further. Indeed, absent this court's impermissible categorical

finding that there was, as a matter of law, no duty of further

inquiry, Tanguay I,

, the court likely

would have found her reckless in the original proceeding.

Specifically, the court observed that after her contact with the

Conway Police Department, Lt. Nolet

understood full well that [Wiggin’s] credibility was at issue, based on his felony falsification conviction, if nothing else. Indeed, one would have to be unusually tone-deaf to understand Sergeant Broyer’s description of Wiggin--as a “quirky” “police groupie” who had “scrapes with the law,” including a felony falsification conviction, and who, as a teenager, had been “troubled” and “suicidal”--as anything other than an alert that Lieutenant Nolet should not simply assume he was credible. Yet Lieutenant Nolet indulged just that assumption, and did nothing further to check Wiggin’s background (even the seemingly easy and obvious step of asking Sergeant Lieutenant Nolet what he meant by “scrapes”).

4 Tanguay I,

(emphasis added). Ultimately

this court found that Lt. Nolet “could have--and almost certainly

should have--learned those facts before seeking the warrant . . .

.”

It is only because the court believed – erroneously, as

the Court of Appeals held – that there could be no duty of

further inquiry, that the court excluded the remainder of

Wiggin's criminal history from consideration.

.

Against this backdrop, the court has little trouble concluding

that Lt. Nolet’s failure to further inquire as to Wiggin’s

criminal history was reckless.

The Government’s arguments on remand do little to sway the

court. The government posits that Lt. Nolet’s failure to inquire

could not have been reckless because the Court of Appeals’s

ruling that she had a duty to inquire “established new law.”

Accordingly, the argument goes, Lt. Nolet could not have had the

requisite mental state to be found reckless. The court

disagrees. In the first place, the government's “new law”

argument reads as little more than a post-hoc analysis of why the

Court of Appeals was incorrect, not why the law is new.

Next, it is not clear that the law is new. It is true that

the Court of Appeals observed that the failure to investigate

further “rarely suggests knowing or reckless disregard for the

truth.” Tanguay II,

-3 (quoting Beard v. City of

Northglenn,

(10th Cir. 1994)(quoting United

5 States v. Dale,

, 844 (D.D.C. 1993)). However, the

appellate panel, relying on circuit precedent, qualified its

assessment by noting that this “prevailing view” makes sense

“when the affiant has no substantial reason to doubt the veracity

or completeness of information included in her affidavit.” Id.;

(citing Ranney,

and United States v. Santana,

(1st Cir. 2003)). It was against this somewhat

muddled backdrop that the Circuit remanded the case – because

there may have been such a “reason to doubt” the affidavit’s

completeness.4

Ultimately, however, resolution of the “new law” question is

unnecessary because the argument fails substantively. The “new

4 Although not dispositive, the court also notes that the Court of Appeals is rarely shy about acknowledging the establishment of new precedent. See, e.g., United States v. Dávila-Ruiz,

(1st Cir. 2015) (“The matter at hand requires us to decide a question of first impression in this circuit . . .”); United States v. Mei Juan Zhang,

(“These two appeals present two questions of first impression in this circuit . . .”); United States v. Alphas,

(1st Cir. 2015) (“This appeal requires us to decide two issues of first impression in this circuit.”). Here, there was no such pronouncement. Moreover, the duty of further inquiry is not unheard of in other Fourth Amendment contexts. For example, where an officer is presented with ambiguous facts related to an individual’s authority to consent to a search, the officer has a duty to investigate further before relying on the consent. See Illinois v. Rodriguez,

(1990) (“Even when the invitation is accompanied by an explicit assertion that the person lives there, the surrounding circumstances could conceivably be such that a reasonable person would doubt its truth and not act upon it without further inquiry.”), cited with approval in United States v. Meada,

(1st Cir. 2005).

6 law” argument is part and parcel of the government’s claim that

only Lt. Nolet’s subjective state of mind is relevant to the

recklessness inquiry. (Gov't Memo (Doc. No. 217) at 9-10). But,

as previously noted, the Court of Appeals did not so hold,

reiterating the position set forth above and in Ranney that

recklessness can be “infer[red] from circumstances evincing

obvious reasons to doubt the veracity of the allegations.”

. There is nothing in Tanguay II that supports the

government's position that Nolet's knowledge of 4th Amendment

jurisprudence is one of the “circumstances” under consideration.

Instead, as Ranney explicitly instructs, the relevant

“circumstances” are those related to Wiggin’s veracity.5 Here,

the issues raised about Wiggin’s veracity, detailed supra, at 4,

were obvious. Thus, the court finds that Lt. Nolet’s failure to

conduct an additional inquiry evinced a reckless disregard for

the truth.

C. Discovery and Inclusion

The Court of Appeals next tasked this court with determining

whether Lt. Nolet, had she made good-faith efforts to dispel her

doubts about Wiggin’s veracity, would have discovered new

5 By contrast, the establishment of new law might be relevant to an officer's qualified immunity defense to a civil rights lawsuit, e.g., Mitchell v. Miller,

(1st Cir. 2015), or an officer’s mistaken belief as to the substantive law under which he is arresting a subject. E.g., Heine v. North Carolina,

(2014). Neither of those circumstances is present here.

7 information that should have been included in her affidavit. The

court finds that she would have discovered such information.

Specifically, she would have discovered Wiggin’s juvenile

adjudication for making a false report to law enforcement. While

the government argues that Lt. Nolet would have only performed a

NCIC check – which would not have revealed the juvenile

adjudication – it also candidly points out that she testified

that she never before had run such a check on a witness.

Nevertheless, because the NCIC check is the only sort of further

inquiry that Lt. Nolet even mentioned during her Franks

testimony, the government posits that that is the likely course

she would have taken. The court disagrees. It seems far more

likely to the court that Lt. Nolet would have taken the

“seemingly easy and obvious step of asking Sergeant [Broyer] what

he meant by ‘scrapes’ with the law.” Tanguay I,

.6 As the parties have stipulated, such an inquiry would

have inexorably led to the discovery of the juvenile false report

adjudication. Moreover, the government limits its argument on

this question only to how Lt. Nolet would have investigated. It

implicitly concedes that the false report adjudication, if

6 As defendant suggested at oral argument, Lt. Nolet might have pursued both avenues of investigation. Resolution of that hypothetical is not necessary, as the juvenile adjudication would only have been revealed via the Conway Police inquiry.

8 discovered, would have been included in the warrant application.7

Accordingly, having answered the first three questions posed by

the Court of Appeals in the affirmative, the court turns to the

reformed affidavit.

D. Probable Cause

As previously noted, Tanguay II affirmed this court's

conclusion that probable cause still existed when the warrant

application was reformed to include the first batch of withheld

information. Id. at 50-51. Nevertheless, the appellate panel

did not foreclose the possibility that the totality of the

circumstances might be altered by additional information about

Wiggin's false report. Id. at 51, n.2. Although the court has

answered the first three questions the Court of Appeals posed

favorably to Tanguay, those victories are ultimately empty, as

the court finds that even after inserting the recklessly omitted

7 The record reflects that Wiggin’s arrests for shoplifting and receiving stolen property did not end in convictions. Regardless, as these are not “crimes involving dishonesty or false statement” the court does not consider them with respect to Wiggin’s truthfulness. See Linskey v. Hecker,

(1st Cir. 1985) (observing that larceny, burglary, armed robbery and shoplifting are not crimes involving dishonesty or false statements within the meaning of Fed. R. Evid. 609(a)(2)). Defendant argues that the circumstances of the two charges – Wiggin first denied committing the crime in each case – is a sufficient showing of dishonesty to justify inclusion in the warrant. As the Court of Appeals has noted, however, a witness’ credibility “is not undercut merely because he made predictable denials” at first. United States v. Rumney,

(1st Cir. 1989). Regardless, adding these two crimes from 1999 to the mix does not alter the outcome.

9 facts, the corrected warrant affidavit would establish probable

cause.

“Probable cause exists whenever the circumstances alleged in

a supporting affidavit, viewed as a whole and from an objective

vantage, suggest a ‘fair probability’ that evidence of a crime

will be found in the place to be searched.” United States v.

Clark,

(1st Cir. 2012) (quoting Illinois v.

Gates,

(1983)).

The court starts with the proposition that “the statements

of a law-abiding eye-witness to a crime are generally considered

reliable without further corroboration.” Id. at 50. In the

present context, a “law-abiding eyewitness” is one not involved

in the crime being reported. Thus Wiggin, whatever his past,

qualifies. That said, the parties did not dispute the court’s

observation at oral argument that probable cause determinations

are frequently upheld where the informant is not only involved in

the crime, but is being paid or is seeking leniency in exchange

for information. Moreover, even a conviction, which requires a

much greater quantum of evidence than a probable cause

determination, can be upheld even if it is “based solely upon the

uncorroborated testimony of an accomplice . . . as long as the

jury is properly instructed and the testimony is not incredible

as a matter of law.” United States v. Peña-Lora,

,

23-24 (1st Cir. 2000). Yet here, as the Court of Appeals noted,

10 there is additional evidence that supports a finding that

“Wiggin’s account was worthy of credence”:

Wiggin was willing to be identified despite his embarrassment about the potential revelation of his sexual orientation to his loved ones; he candidly admitted that there might be compromising pictures of him in the appellant’s possession (and, thus, likely to surface in the search); and the record contains no credible suggestion of any ulterior motive for reporting the crime. All of these are positive factors in assessing Wiggin’s veracity.

Id.8

The probable cause determination thus boils down to whether

the above is overborne by the 1998 false report juvenile

adjudication. The court believes it is not. In the first place,

“[e]ven a prior conviction for a crime of dishonesty is not

always dispositive of a witness’ reliability.” Id. (citing

United States v. Meling,

(9th Cir. 1995)).

Notably, in Meling, while finding that an affiant had recklessly

omitted an informant’s 10-year old fraud and forgery convictions,

the court relied on, inter alia, the staleness of those

convictions to nevertheless affirm a finding of probable cause.

. Similarly, here, Wiggin’s false report took

place nearly twelve years before the report at issue, when he was

8 In Tanguay I, this court noted two potential ulterior motives that may have influenced Wiggin: his parents' animosity toward Tanguay, and his own anger at Tanguay’s suggestion that Wiggin harbored a sexual desire for his girlfriend’s minor son.

. The court, however, ultimately assigned them no weight.

As the parties agreed at oral argument, the Court of Appeals left this finding undisturbed.

11 sixteen years old. Cf. Eddings v. Oklahoma,

(“Our history is replete with laws and judicial recognition that

minors, especially in their earlier years, generally are less

mature and responsible than adults.”).

Tanguay argues that the similarities in the 1998 incident in

which Wiggin lied about a false shooter and his initial creation

of a false email identity in this case, “show the level of

dishonesty he is capable of . . . .” While there is a surface

similarity, there is an important difference. In the earlier

case, although he made a false report, Wiggin did not falsely

accuse a specific individual. Thus, there is nothing in the

prior conviction to suggest that Wiggin had any propensity to lie

in order to “frame” another individual, as the defense implicitly

suggests here. Tanguay further argues that the details of the

false reporting incident, which his brief describes as a reported

“assassination attempt,” and which defense counsel described in

similarly hyperbolic terms during oral argument, also subverts

the probable cause determination, essentially by making Wiggin

inherently unbelievable when considering the other facts omitted

from the warrant. The court disagrees. While Wiggin’s admission

that he shot himself in the leg “to see what it felt like” is

consistent with being a “troubled teen,” it does not support the

considerable weight that Tanguay tries to hang on it,

specifically, that it would cause a Magistrate to set aside the

12 facts suggesting a “fair probability” that evidence would be

found at Tanguay’s residence.

With the above in mind, the court finds that inserting the

false report adjudication into the probable cause calculus does

not change the result.

IV. Conclusion

“[A] court may reasonably find probable cause despite some

level of concern about the completeness of the investigation.”

Tanguay II,

. Here, the court's “concern” with the

shortcomings of Lt. Nolet’s investigation is as serious as it was

in its initial ruling. Nevertheless, that concern remains

“insufficient to erode probable cause.”

Defendant’s Motion

to Suppress9 is therefore DENIED.

SO ORDERED.

Joseph N. Laplante United States District Judge

October 7, 2015

cc: Behzad Mirhashem, Esq. Jeffrey S. Levin, Esq. Nick Abramson, AUSA Seth R. Aframe, AUSA

9 Doc. no. 34 (supplemented by Doc. no. 221)

13