UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
United States of America
v. Criminal No. 11-cr-173-JL
Opinion No. 2015 DNH 188
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
787 F.3d 44 (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, 787 F.3d at 54.
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
907 F. Supp. 2d 165 (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, 787 F.3d at 47; Tanguay I,
907 F. Supp. 2d at 168-69.
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, 787 F.3d at 54 (citing United States v.
Ranney,
298 F.3d 74, 78 (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.”
Id. at 52 (citing Ranney,
298 F.3d at 78)
(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, 907 F. Supp. 2d at 182, 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, 907 F. Supp. 2d at 182 (emphasis added). Ultimately
this court found that Lt. Nolet “could have--and almost certainly
should have--learned those facts before seeking the warrant . . .
.”
Id. 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.
Id. at 182-83.
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, 787 F.3d at 52-3 (quoting Beard v. City of
Northglenn,
24 F.3d 110, 116 (10th Cir. 1994)(quoting United
5
States v. Dale, 991 F.2d 819, 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,
298 F.3d at 78 and United States v. Santana,
342
F.3d 60, 66 (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, 790 F.3d 249, 250 (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,
789 F.3d 214
(“These two appeals present two questions of first impression in
this circuit . . .”); United States v. Alphas,
785 F.3d 775, 777
(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,
497 U.S. 177, 188 (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,
408 F.3d 14, 21 (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.” 298
F.3d at 78. 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, 790 F.3d 73, 78 (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,
135 S.Ct. 530 (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, 907 F. Supp. 2d
at 182.6 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, 753 F.2d 199, 201
(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,
867 F.2d 714, 720
(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, 685 F.3d 72, 75 (1st Cir. 2012) (quoting Illinois v.
Gates,
462 U.S. 213, 238 (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, 225 F.3d 17,
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, 47 F.3d 1546, 1554-55 (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.
47 F.3d at 1555. 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.
907 F. Supp. 2d at 179. The court, however, ultimately assigned
them no weight.
Id. As the parties agreed at oral argument, the
Court of Appeals left this finding undisturbed.
11
sixteen years old. Cf. Eddings v. Oklahoma, 455 U.S. 104, 115-16
(“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, 787 F.3d at 53. 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.”
Id. 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
