US V. Lata

US V. Lata                               CR-03-224-JD    04/08/04
                 UNITED STATES DISTRICT COURT FOR THE
                       DISTRICT OF NEW HAMPSHIRE


United States of America

       v.                             Criminal No. 03-224-01-JD
                                      Opinion No. 

James T. Lata,    Sr.


                               O R D E R


       Defendant James T. Lata,   Sr., has moved to suppress

identification testimony, physical evidence,      and statements he

allegedly made to a law enforcement officer from being used at

his upcoming trial for bank robbery.       Specifically, Lata contends

that   (1) the out-of-court identification of him as the man who

held up a bank in Nashua, New Hampshire,      on November 12, 2002,

was the product of an impermissibly suggestive photo array,         (2)

the initial warrantless search of a van registered to him was

illegal,    (3) the application for a warrant to conduct a further

search of the van was tainted by the warrantless search and

contained material omissions,     rendering that stage of the search

illegal as well,    (4) the subseguent application for a warrant to

search Lata's hotel room was tainted by the illegal searches of

the van, and    (5) the May 8, 2003, telephone conversation between

Lata and Special Agent John Mulvaney was similarly tainted.         The

government objects to suppression in its entirety.
                              Background

     The court held an evidentiary hearing on March 26, 2004, on

the sole issue of the admissibility of the identification

testimony.     The following findings are based on the testimony and

exhibits received at the hearing and the materials submitted with

the motion to suppress and the government's objection.

     On November 12, 2002, Donna Debelis was working at the

Citizens Bank branch at Trafalgar Square in Nashua when she

noticed a man standing near the bank's customer service counter.

After she approached him and identified herself as the assistant

manager,   the man asked to speak to Debelis in her office.

Debelis described the man in her testimony as white, about 5'7"

or 5'8" tall and 160 or 165 pounds,    and close to 55 years old.

She also recounted that the man's eyes "were blank, cold and

steel-like."    According to Debelis, the man was wearing a dark-

colored zip-up jacket, a ski cap, and a bandaid across his nose.

     After Debelis and the man entered her office, he produced a

note stating in substance that he had a gun and a bomb and was

robbing the bank.    He then handed Debelis a black "leather-like"

duffel bag and told her to get the money.      She exited her office,

went into the teller work area, and approached the two tellers

handling the drive-through customers.      Per instructions from

Debelis, the tellers placed some cash into the duffel bag.

Debelis then left the work area and returned the bag to the man,

                                   2
who was pacing back and forth in front of the teller stations.

The man said that the bag did not contain enough money and

instructed her to hand him more through the teller windows.

     Debelis re-entered the work area and obtained cash from two

other tellers, Kathleen Gervais and Karen Leedberg, while the

robber stood in front of Gervais's station and continued to

demand more money from her.     At the hearing, Gervais described

the perpetrator as a white man with a reddish brown mustache and

a ruddy complexion, wearing a black hat with a Nike logo and

dark-colored coat.    She also testified that estimating his age

was difficult because of the hat.      Leedberg testified that the

robber was about 5'10" and 200 pounds, with a medium brown

mustache.    She described his attire as a dark blue coat of medium

length, a wool hat, and a white piece of tape across the bridge

of his nose.    She also noticed that he was wearing black or dark

blue high-top sneakers with a silver strip on the heel.

     While Debelis was collecting money from Gervais and

Leedberg,   the perpetrator approached the station tended by

another teller, Donna Whelan,    and asked her to tell Debelis to

hurry.   Whelan left her station to give Debelis the message,

returned to find the robber still standing there,     locked her

drawer, and retreated to the back of the teller area.      She

testified that the culprit was in his fifties and wore a dark-

colored ski jacket and black hat with the Nike emblem.      She did

                                   3
not notice at the time of the robbery whether the man had facial

hair.    After receiving the additional cash, the robber left the

bank.     He had been there for between five and ten minutes.

        Debelis subsequently reviewed a surveillance video of the

robbery with responding officers from the Nashua Police

Department.     The black-and-white images from the video introduced

by the government at the hearing show a middle-aged man with a

dark mustache and wearing a dark-colored jacket and knit cap with

a white Nike "swoosh" symbol standing in front of a teller

station.    None of the other Citizens employees who testified at

the hearing have seen the video.

        On November 15, 2002, Detective Thomas McLeod of the Nashua

Police Department showed a photo array to Debelis, Gervais,       and

Whelan, as well as to the two drive-through tellers working at

the time of the robbery.     Debelis, Gervais,   and Whelan all

testified that they did not recognize anybody from among the

photographs.1



When McLeod showed Debelis, Gervais,    and Leedberg an array




     1The defendant states in the body of his motion that both of
the drive-through tellers picked a suspect out of this array with
a degree of certainty of 8 out of 10.   There was no evidence on
this point received at the hearing or otherwise submitted with
the motion, however, save for Gervais's testimony that one of the
drive-through tellers told her that she thought the perpetrator
had been depicted in one of the arrays.

                                   4
comprised of photographs of different men on November 19, 2002,

Gervais noted, with a certainty she described as a "low rating,"

that one of the people depicted "had similar features to the

robber but the robber was not in these pictures."     Leedberg told

McLeod with regard to one of the men that his "eyes look

familiar" and rated her certainty "about an eight" out of ten.

Debelis still did not recognize anybody.     In fact, no photograph

of Lata had been included in the array.

     A different branch of Citizens Bank in Nashua,    at 227 Daniel

Webster Highway, was robbed on March 14, 2003.     Witnesses

described the perpetrator as a white male between 5'7" and 5'9"

tall, wearing prescription glasses,    a dark-colored winter jacket,

and a bandaid across the bridge of his nose and carrying a black

duffel bag.   After the robber exited the bank, a customer

observed him getting into a white Ford van with a Florida license

plate bearing the number H87BYL.2     The customers followed the van

until it pulled into the parking lot of a nearby restaurant.     One

of the restaurant's employees had previously noticed that the van

had a license plate issued by Manatee County in Florida.

     McLeod later relayed this information to the office of the

Manatee County tax collector, who told him that license plate

number H87BYD had been issued to a James Lata, born September 25,



     2Another customer observed the first four digits of the
plate numbers as H87B.

                                 5
1942, for a white 1995 Ford Econoline van.       The subsequent

investigation of Lata revealed that he was 5'11" and 195 pounds

and had been found in possession of $5,000 in $100 bills and a

handgun while driving the van in April 2002.       The subsequent

investigation of the van revealed that a report of its theft had

been made to the Ocean Springs, Mississippi, police department on

April 17, 2003, by a James Lata.       In the report. Lata had

provided a description of the van consistent with that on file

with the Manatee County tax collector and had given his address

as the Villager Inn in Ocean Springs.

     The Ocean Springs police soon learned that their

counterparts in New Orleans had recovered a 1995 white Ford

Econoline van bearing Florida license plate number H87BYD on

April 28, 2003, and had it transported to a local repair shop.

Captain Louis Miller of the Ocean Springs Police Department later

examined the van, finding a navy blue medium-weight hooded

jacket, a black duffle bag, and four or five pairs of

prescription glasses inside.

      On April 30, 2002, FBI Special Agent Wendell Cosenza

obtained a warrant to search the van for evidence of a bank

robbery.   Cosenza's affidavit in support of the warrant contained

the foregoing information about the March 14, 2003, bank robbery

and the results of McLeod's investigation linking Lata to the

van, including the information obtained from Manatee County, the


                                   6
Ocean Springs police department,       and the April 2002, stop of Lata

while driving the van.   The affidavit also mentioned the items

which Miller had found inside the van and his report that Lata

had paid $1,300 in cash for his room at the Villager.

     When the FBI executed the warrant,       they recovered the jacket

and duffel bag from the van, as well as four empty eyeglass

cases, a bandaid wrapper,   a knit cap, and other items.      Another

FBI agent, Gerald D. Peralta, Jr., described the results of this

search in his May 1, 2002, affidavit in support of a warrant to

search Lata's room at the Villager.        Peralta's affidavit included

detailed accounts of the March 14, 2003, robbery and escape

obtained from the bank manager and tellers, as well from the

customers who had followed the van.        The affidavit also recounted

the investigations conducted by McLeod and Miller,       including a

description of the items Miller had found inside the van.

     The FBI found, inter alia, a black Nike cap and a box of

bandaids in Lata's hotel room when they executed the warrant.           A

federal grand jury later subpoenaed Lata to New Hampshire, where

he was photographed wearing the Nike cap and jacket seized from

the van as well as a fake mustache and a bandaid on his nose.           On

May 8, 2003, Special Agent John Mulvaney of the FBI telephoned

Lata, who represents in the motion that their conversation

consisted primarily of Mulvaney's "attempting to draw       [Lata]   into

a discussion regarding the items seized in the search of the


                                   7
defendant's van and [hotel room]

     On September 16, 2003, McLeod and Mulvaney met with Debelis,

Gervais, Leedberg,   and Whelan at their Citizens branch.      Mulvaney

had also met with the witnesses previously,    on September 4, 2003.

For the September 16 meetings, Mulvaney had created a single page

of eight numbered photographs,    one of which was the picture of

Lata wearing the cap, jacket, mustache,    and bandaid taken

pursuant to the grand jury subpoena.     Each of the other

photographs depicted a different FBI employee wearing the same

items.   Mulvaney testified that he selected the employees for the

array based on the similarity of their facial features to Lata's

and to reflect the range of ages of the November 12 robbery

suspect as reported by the witnesses.     One of the FBI employees

shown in the array was thirty-one years old at the time, three

were approximately forty, and another three were fifty or older.

     McLeod and Mulvaney met with each of the Citizens employees

separately in an office.     Each was given the opportunity to

review her prior statement to the Nashua police about the

robbery, then shown the array and advised to take as much time as

she needed to review it.     The witnesses were not told whether the

suspect was pictured in the array.     In fact, neither Mulvaney nor

McLeod said anything else to any of the witnesses before they

looked at the photographs,    save for Mulvaney's instructions that

"if they were to select an individual,    to simply initial on the
back of the photo spread" with the number of their selection.

     Debelis, the first witness to view the array, used this

method to indicate photograph number 2, which depicted Lata.        She

took approximately ten minutes to make her selection but

testified that she knew number 2 showed the robber "from the

first moment   [she] looked at the pictures."   Before the next

witness entered the office, Mulvaney used a Post-It note to

conceal what Debelis had written on the back of the array.        The

same procedure was followed for each of the other three

witnesses,   all of whom selected photograph number 2.   Leedberg,

Whelan,   and Gervais each took no more than two or three minutes

to make her selection.   After each witness made her selection,

Mulvaney instructed her not to discuss it with the others.        Each

of the employees testified that this instruction was followed.

     On December 17, 2003, a federal grand jury in this district

indicted Lata on one count of bank robbery in violation of 

(a)   arising out of the November 12 robbery.




                             Discussion



I.   Miller's Warrantless Search of the Van

     Lata seeks to suppress the physical evidence collected

during the FBI's search of the van and hotel room on the theory
that those aspects of the investigation grew out of the initial

warrantless search of the van by Miller.     Although Lata

characterizes that action as illegal because it does not gualify

as an inventory search, the government does not rely on the

inventory search exception.     Instead, the government argues that

Miller's examination of the van was supported by probable cause

to believe it contained evidence of both its reported theft and

the March 14 robbery.

        The warrantless search of an automobile based upon probable

cause to believe it contains evidence of a crime does not violate

the Fourth Amendment.     Maryland v. Dyson, 

(1999); United States v. Fiasconaro, 

      (1st Cir.

2002)    (citing Carroll v. United States, 

(1925)); United States v. Staula, 

   (1st Cir.

1996).    On March 17, 2003, Lata complained to the Ocean Springs

police that his van had been stolen from the parking lot of the

Villager Inn and provided a description of the vehicle,       including

the license plate and vehicle identification numbers.        About a

week later. Miller learned that a van matching that description

had been found in New Orleans and towed to a repair shop.        Based

on this information. Miller had probable cause to believe that

the van contained evidence that it had been stolen from Lata.

See 3 Wayne R. LaFave,    Search and Seizure § 7.4(d)   (3d ed. 1996)

("if an officer has probable cause to believe that a vehicle has


                                  10
been the subject of . . . theft, he may make a limited entry and

investigation . . .   of those areas he reasonably believes might

contain evidence of ownership")    (internal guotations omitted).

     Lata relies heavily on his assertion that Miller "searched

the vehicle with the intent to obtain evidence concerning the

bank robberies in New Hampshire," rather than to assist in any

stolen vehicle investigation.     Between the time Lata reported the

van stolen and the search took place. Miller did learn from

McLeod that the van had allegedly been used in the March 14

robbery.   The only effect this information had on Miller's

ability to search the van, however, was to furnish additional

probable cause.   Miller now had reason to believe that the

vehicle had been involved in two crimes, a theft and a robbery,

instead of just a theft.    The warrantless search of the van was

therefore supported by probable cause.3    Accordingly,   the fact

that the issuance of the subseguent warrants for the van and the

hotel was based in part on information learned from Miller's



     3According to Miller's report, McLeod told him that a
vehicle which had been reported stolen to the Ocean Springs
police "was a suspect vehicle that had been involved in a bank
robbery."   In the court's view, this information alone provided
probable cause for Miller to search the van in connection with
the robbery.   Even if it did not, however, McLeod knew enough
information at that time about the van's involvement in the March
14 robbery to establish probable cause for the search and his
knowledge is imputed to Miller under the "fellow officer rule"
whether it was communicated to him or not.   See United States v.
Meade, 

 (1st Cir. 1997).

                                  11
search has no effect on their validity.



II.   The Accuracy of the Search Warrant Applications

      Lata contends that Cosenza's affidavit in support of the

warrant to search the van omitted a number of facts learned in

the investigation of the March 14 bank robbery which tended to

exculpate Lata.    Specifically, Lata argues that Cosenza failed to

mention that none of the employees of the Citizens branch

involved in the March 14 robbery were able to pick Lata's picture

out of a photo array,    including the manager, who gave a

description of the perpetrator which does not fit Lata.

      In Franks v. Delaware, 

     (1978), the Supreme

Court recognized a defendant's right to challenge "the veracity

of a sworn statement used by police to procure a search warrant."

I d . at 155; see also United States v. Strother, 

(1st Cir. 2003).     To receive a hearing for this purpose,    a

defendant must make "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 [that] the allegedly false statement is

necessary to the finding of probable cause . . . ."        Franks,   

; United States v. Santana, 

 (1st

Cir. 2003), cert, denied, 124 S. C t . 1478    (2004).   The omission

of a material fact from the affidavit supporting a warrant is


                                  12
treated as a false statement for purposes of the Franks analysis.

United States v. Castillo, 

       (1st Cir. 2002);

United States v. Charles, 

       (1st Cir. 2000) .     In

the case of an omission,   "suppression should be ordered only if

the warrant application,   . . . clarified by disclosure of

previously withheld material, no longer demonstrates probable

cause."   United States v. Stewart, 

      (1st Cir.

2003); Castillo, 

 n.4       ("With an omission,   the

inquiry is whether its inclusion in an affidavit would have led

to a negative finding by the magistrate on probable cause.")

     The court denied Lata's request for a Franks hearing in its

order of March 26, 2004, because the facts which he accuses

Cosenza of omitting from his affidavit are not material to the

determination of probable cause.        As the government notes, while

the inability of witnesses to the March 14 robbery to pick Lata

out of a photo array arguably cuts against a finding that he

committed that crime,   it has no effect on the conclusion that

whoever robbed the bank drove away in the van for which the

warrant was issued.4


     4Lata also points out that Cosenza's affidavit did not
disclose the fact that witnesses to the November 12 robbery
"identified someone else . . . as the robber" from the photo
arrays they viewed later that month.   In fact, Cosenza's
affidavit did not mention the November 12 robbery at all, but
sought to establish a connection between the van and the March 14
robbery.  Accordingly, information potentially exculpating Lata
of the November 12 robbery was in no way material to whether

                                   13
     Cosenza's affidavit amply demonstrates probable cause to

believe that the van contained evidence of the November 14

robbery,   including the report of two bank customers that they

followed the suspect as he drove off in a vehicle matching the

description of the van right down to the first four or five

digits of the plate number.    If Cosenza had mentioned the fact

that other witnesses to the November 14 robbery did not identify

Lata as the perpetrator,   then, his affidavit would still have

supplied probable cause to search the van.        See United States v.

Higgins, 

 (1st Cir. 1993)       (finding fact that

suspected informant unsuccessfully tried to buy drugs from

defendant immaterial to probable cause to search defendant's home

because "not necessarily inconsistent" with information that

defendant later purchased guantity of drugs); c f . United States

v. Vigeant, 

       (1st Cir. 1999)   (declining to

find that good faith exception saved search under warrant not

based on probable cause where affidavit contained "numerous

omissions of material facts," including that defendant had filed

accurate report of transaction alleged to be money laundering).

     While Lata concedes that "Peralta's affidavit in support of

the warrant for the search of the       [hotel room] was without doubt

more complete" than Cosenza's affidavit, he nevertheless mounts a

Franks challenge to it as well.     The only deficiency Lata


probable cause existed to search the van.

                                  14
identifies in Peralta's affidavit, however,    is its omission of

the fact that "multiple witnesses to one of the robberies had

identified a suspect other than the defendant as the robber."

Because the affidavit refers to the differing descriptions of the

perpetrator given by the witnesses to the March 14 robbery and

their inability to pick Lata out of a photo array, the court

assumes that Lata is referring to the comments of Gervais,

Leedberg,   and possibly the drive-through tellers that one of the

men shown in the November 19 array had similar features to the

suspect in the November 12 robbery.     That information, however,

has no relevance whatsoever to whether Lata committed the March

14 robbery and Peralta's affidavit readily demonstrates probable

cause for that proposition, most notably that Lata acknowledged

owning the van reportedly used in that crime.     In fact, Peralta

did not rely at all on Lata's suspected role in the November 12

robbery in procuring the warrant for the hotel room.

     Lata has failed to show that the facts omitted from the

warrant applications would have led a magistrate not to find

probable cause to search the van and the hotel room.

Accordingly, his motion to suppress the fruits of those searches,

including whatever statements he made to Mulvaney during their

May 8 conversation,   is denied.




                                   15
III. The Legitimacy of the Witness Identifications

     Lata seeks to exclude evidence that Debelis, Gervais,

Leedberg,   and Whelan identified him as the perpetrator of the

November 12 robbery from the photo array conducted by Mulvaney on

September 16, 2003.   According to Lata, the other individuals

depicted in the array are "not the same approximate age" as and

have "distinctly different" facial features from him, rendering

the procedure impermissibly suggestive.      Lata does not challenge

the legitimacy of the identification procedure on any other

grounds, e.g., that Mulvaney or McLeod influenced any of the

witnesses to select Lata's photograph.5

     The Supreme Court "has fashioned a two-pronged test for the

exclusion of identifications based upon impermissibly suggestive

photo arrays.    The first prong involves determination of whether

the identification procedure was impermissibly suggestive."

United States v. Maguire, 

        (1st Cir. 1990)

(citing Simmons v. United States, 

        (1968)); see

also United States v. Henderson, 

        (1st Cir.

2003), cert, denied, 123 S. C t . 2597   (2004).    The defendant bears


     5Based on the series of the different witnesses' initials
which appears on the back of the array used on September 16, Lata
had argued in his motion that the procedure was tainted because
"each successive witness would have seen that the prior witnesses
had also picked out [Lata] as the robber." However, Mulvaney and
all of the Citizens employees testified at the hearing that any
prior identifications written on the array had been covered with
a Post-It by the time the next witness viewed it.

                                 16
the burden to show that the procedure fails this test.             United

States v. Meyer, 

           (6th Cir. 2004); English v.

Cody, 

   (10th Cir. 2001); accord United States

v. Guzman-Rivera, 

    (1st Cir. 1993) .

     In assessing the suggestiveness of photographic

identification procedures,       courts have considered the similarity

in appearance of the individuals depicted in the array, the

number of pictures used, and the extent to which the arrangement

of the photographs points to the defendant.            See, e.g.. United

States v. Flores, 

    (10th Cir. 1998)

(considering number of photographs and similarity of subjects'

builds, heights,      ages, and hairstyles); 2 Wayne R. LaFave et a l .,

Criminal Procedure § 7.4(e)        (2d ed. 1999).

     Based on its review of the photographic array shown to the

witnesses on September 16, the court concludes that it was not

impermissibly suggestive within the meaning of Simmons.            While

all of the others pictured in the array are in reality younger

than Lata, that fact alone does not make the use of the array

improper, because at least some of the men look to be around the

same age as Lata.       In any event, composing the array exclusively

of people nearly as old as Lata might have been unduly suggestive

in its own right, given the acknowledgment in his motion that

witnesses described the November 12 robber as, variously,            "in his

early 40's   [sic],    in his 50's, mid 30's-40's,      40-50, 40 ish


                                      17
[sic]As     Mulvaney explained,   the ages of the men selected to

appear in the array with Lata correspond closely to this range of

ages as reported by the witnesses.      See United States v. Galati,

   (7th Cir. 2000)    (upholding admission of

identifications from photo array where six men pictured "all fit

the general descriptions" provided by witnesses, even though two

were "somewhat older and heavier" than defendant).

     Finally, the court disagrees with Lata's assessment that he

has "distinctly different" facial features from the FBI employees

used for the array.   Many of the men have eyes and complexions

similar in color to Lata's.    Indeed, the court notes the strong

resemblance between the picture of Lata used in the array and

photograph number 7, which depicts a different person.6

Furthermore, each of the photographs comprising the array shows

its subject wearing the same black knit cap and navy blue jacket,

with a bandaid across the bridge of his nose.      This attire not

only corresponds with that worn by the November 12 robber, but

tends to lessen the effect of any differences in physiognomy

among the men depicted in the array.      All of the photographs also

appear to have been taken from the same distance and against the

same background.




     ^According to Mulvaney's testimony, although Gervais picked
Lata out of the array, she "said it was a close call" between his
picture and photograph number 7.

                                  18
      Because Lata has failed to show that the procedure used to

procure the witness identifications was impermissibly suggestive,

the court need not consider the second prong of the Simmons test.

See Maguire, 

.   The identifications of Lata from the

September 16 photo array are admissible.



                             Conclusion

      For the foregoing reasons. Lata's motion to suppress

(document no. 7) is denied in its entirety.

      SO ORDERED.




                                      Joseph A. DiClerico, Jr.
                                      United States District Judge

April 8, 2004

cc:   Jonathan R. Saxe, Esguire
      Clyde R.W. Garrigan, Esguire
      U.S. Probation
      U.S. Marshal




                                 19