U.S. v. Apicelli

                     UNITED STATES DISTRICT COURT
                  FOR THE DISTRICT OF NEW HAMPSHIRE


United States of America

     v.                                   Case No. 14-cr-012-01-JD
                                          Opinion No. 

Peter Apicelli


                              O R D E R


     Peter Apicelli is charged with one count of manufacturing

marijuana in violation of 

(a)(1).      Apicelli moves

to suppress evidence obtained by the government through

surveillance of areas around Apicelli’s home, evidence seized

during a search of the home, and an identification of Apicelli

as the person shown in surveillance videos taken of the area

around his home.    The government objects to the motion.


I.   Background

     The background information is summarized from the materials

submitted by Apicelli in support of his motion to suppress and

by the government in support of its objection.    The material

facts are not disputed.

     Beginning in April of 2012, Apicelli rented a house and

property located at 201 Mason Road in Campton, New Hampshire,

from Rene and Elizabeth Dubois.    While living there, Apicelli

encountered Robert “Butch” Bain and his daughter many times on
the property around the house.   Apicelli told Bain that he did

not want him on the property, and Bain responded that he had

hunted on the property for twenty years.

    When Bain continued to enter the property, Apicelli

complained to his landlord, Rene Dubois.   Dubois then prepared a

document titled “Mason Property Land Use Conditions August 27,

2013” “[i]n an effort to balance all parties.”   In the document,

Dubois stated that while Apicelli had “exclusive privacy rights”

to the property, certain exceptions were granted to Bain to hunt

and access snowmobile trails on parts of the property.

    On September 5, 2013, Detective Nicholas Blodgett and

Detective Eric Piche, members of the New Hampshire Drug Task

Force, met with Sergeant Patrick Payer of the Campton Police

Department to investigate a report of marijuana growing in the

area of Mason Road in Campton.   Blodgett stated in his report

that a “concerned citizen” told him about the “alleged grow.”

The concerned citizen also said that he had seen a lot of

traffic at a residence on Mason Road that was rented by Peter

Apicelli, that Apicelli did not want anyone on the property, and

that Apicelli seemed nervous about people being there.    Payer

noted that the property was owned by Rene Dubois.

    The same day, Blodgett, Piche, Payer, and the concerned

citizen met in the area of 201 Mason Road to look for the


                                 2
marijuana that the concerned citizen had reported was growing

there.    They walked to the back of the property, which was an

apple orchard, and in the woods next to the orchard they saw

what appeared to be marijuana growing in two different areas.

The area where the marijuana was growing was about 200 yards

away from Apicelli’s house.    They then left the property.

       Blodgett, Piche, and Payer decided to install a

surveillance camera on the marijuana plants.    Blodgett contacted

Sergeant Eric James of the Grafton County Sheriff’s Department

who said that a surveillance camera was available for them to

use.

       On the morning of September 6, Blodgett, Payer, and James

drove to 201 Mason Road to install the camera for surveillance.

They walked through the property to get to the area where

Blodgett and Payer had found marijuana growing the day before

and on the way found another group of marijuana plants.       James

noted that the plants were in clumps together on the edge of

woods next to a field or an orchard.    James also noted that the

plants had been tended by being planted in potting soil and

propped up with rocks.    Blodgett and James set up the

surveillance camera to watch the area where they first found

marijuana growing.




                                  3
    The group returned on September 9 to check the camera’s

recordings.   The plants appeared to be untouched.   They found

that no person was shown on any of the recordings and thought

that the wind had set off the camera.     They decided to check the

camera again a few days later and left.     They went back to the

area on September 12 to check for activity and found that the

plants had been knocked down in a recent thunderstorm.     Again,

there was no one shown on the recordings.

    On September 16, Blodgett, Payer, James, and Detective

Hollie Dube of the New Hampshire Drug Task Force, walked into

the area again to check the camera.     The plants showed signs of

having been tended because they were now staked and some had

been clipped or pruned.    This time two recordings showed a male

subject wearing a green shirt and tan shorts and carrying a red

back pack.    The person was seen tending the plants on two

different days.   James took the hard drive from the camera and

they left.    James made copies of the recordings and gave them to

Payer.   Payer identified Apicelli as the person shown in the

surveillance recordings based on several sources of information.

    Payer applied for a warrant to search Apicelli’s house on

September 17.   In the supporting affidavit, Payer described the

investigation of Apicelli’s property, how and where the

marijuana was found, the number and size of the plants, the


                                  4
evidence that the plants were being intentionally cultivated,

and the results of camera surveillance.    Payer also stated that

he had determined that the property was owned by Rene and

Elizabeth Dubois and was being rented by Apicelli and that a

green Ford Ranger at the house was owned by Apicelli.     Payer

further stated:   “Apicelli through police department, motor

vehicle, and criminal records fits the description of the

subject that was seen in the video.”

      Payer also explained that the residence at 201 Mason Road

“is in an area that is hunted regularly by [blank] is friends

with the Dubois, and also the [blank].”    He stated that “[blank]

identified the male subject on the video as being Peter

Apicelli.   [Blank] said that [blank] has known Apicelli for

roughly two years.   [Blank] was able to identify Apicelli based

on his attire, mannerisms, and physical descriptors.    [Blank]

said that [blank] has had roughly a dozen personal interactions

with Apicelli in the past two years.”1    Payer then provided his

opinions, based on his training and experience, about the




  1 The government refers to the person indicated by the blank
areas in the affidavit as a “concerned citizen” while Apicelli
identifies the person as Bain. The government does not dispute
Apicelli’s identification of the concerned citizen as Bain.
Therefore, for purposes of the motion to suppress only, the
concerned citizen will be presumed to be Bain.

                                 5
likelihood that other evidence related to manufacturing

marijuana for sale would be found in the house.

      The warrant application was granted the same day, September

17.   Once the search warrant was obtained, Payer, James,

Blodgett, Dube, Officer Lee of the Campton Police Department,

and State Police Trooper Shawn Torsey drove to Apicelli’s home

at 201 Mason Road.   They found that no one was home and entered

the house to conduct the search.       In the course of the search,

the officers found marijuana drying in the stairwell of the

house and marijuana growing in the basement.       They also found

growing equipment and evidence of marijuana harvesting and use.

The red back pack seen in the surveillance footage was found in

the kitchen.    The officers seized all of the evidence of

marijuana possession, cultivation, manufacturing, and sales,

which included 130 marijuana plants.



II.   Hearing

      Apicelli did not request a hearing on his motion to

suppress.   He also did not make any developed argument to show

that he would be entitled to a hearing.       Further, the record

does not support a need for a hearing.

      “A criminal defendant has no presumptive right to an

evidentiary hearing on a motion to suppress.”       United States v.


                                   6
Cintron, 

 (1st Cir. 2013).   To be granted a

hearing, “the defendant must show that there are factual

disputes which, if resolved in his favor, would entitle him to

the requested relief.”   

 (internal quotation marks omitted).

When a defendant challenges an affidavit used by the police to

obtain a search warrant, he is entitled to an evidentiary

hearing only if he first makes “two ‘substantial preliminary

showings’: (1) that a false statement or omission in the

affidavit was made knowingly and intentionally or with reckless

disregard for the truth’ and (2) the falsehood or omission was

necessary to the finding of probable cause.”   United States v.

Rigaud, 

 (1st Cir. 2012) (citing and quoting

Franks v. Delaware, 

 (1978)).

    Apicelli challenges the affidavit submitted by Sergeant

Payer in support of the search warrant application as being

“incomplete, inaccurate, and deceptive.”    His complaints focus

on the failure to identify Bain as the concerned citizen who

provided the tip about the marijuana growing on Apicelli’s

property and failure to provide details about Bain that Apicelli

believes would undermine his credibility.    As is explained in

more detail in addressing the motion to suppress, however, the

affidavit included more than sufficient information to support

probable cause for the search.   Therefore, the motion to


                                 7
suppress is decided without a hearing, based on the exhibits

submitted by Apicelli and the government.


III.    Motion to Suppress

       In support of his motion to suppress, Apicelli argues that

the government illegally obtained a search warrant for his home

based on information obtained in violation of the Fourth

Amendment.    As a result, he argues, the evidence taken in the

search of his home must be suppressed as fruit of the poisonous

tree.   In addition, he contends that Bain’s identification of

him as the person shown in the surveillance footage was

unreliable.   For those reasons, he moves to suppress all

evidence obtained through the search and to suppress Bain’s

identification.   The government objects to the motion to

suppress.

       The Fourth Amendment protects “‘[t]he right of the people

to be secure in their persons, houses, papers, and effects,

against unreasonable searches and seizures . . . .’”    United

States v. Molina-Gomez, 

 (1st Cir. 2015).       That

protection requires the police to obtain a warrant to search a

suspect’s home, absent certain limited exceptions.    United

States v. Lyons, 

 (1st Cir. 2014).    The Fourth

Amendment also provides that “‘no Warrants shall issue, but upon



                                  8
probable cause, supported by Oath or affirmation, and

particularly describing the place to be searched, and the

persons or things to be seized.’” 

     In addition, “[e]vidence

obtained during a search may be tainted by the illegality of an

earlier Fourth Amendment violation, so as to render such

evidence inadmissible as ‘fruit of the poisonous tree.’”     United

States v. Camacho, 

 (1st Cir. 2011) (quoting

Wong Sun v. United States, 

 (1963)); United

States v. D’Andrea, 

, 6 (1st Cir. 2011).


    A.   Information from Investigation

    Apicelli contends that the tip from Bain about marijuana

growing on Apicelli’s property was based on Bain’s illegal

search of his property.   He also contends that surveillance

footage of marijuana growing on his property was obtained

illegally from a camera planted by the police without a warrant.

He further contends that the search warrant was granted based on

“a selective and deceptive affidavit” that lacked material

information.


         1.    Bain’s Status

    Apicelli asserts that Bain was acting as a police agent

when he entered Apicelli’s property and gave the police




                                 9
information about marijuana that he saw growing there.    As a

result, he argues, Bain’s actions violated the Fourth Amendment.

    “A private search only implicates the Fourth Amendment if

the private party acts as a ‘government agent.’”    United States

v. Cameron, 

 (1st Cir. 2012).     That

determination requires an evaluation of three factors:    “(1)

‘the extent of the government’s role in instigating or

participating in the search’: (2) ‘[the government’s] intent and

degree of control it exercises over the search and the private

party’; and (3) ‘the extent to which the private party aims

primarily to help the government or to serve its own

interests.’”   

 (quoting United States v. Silva, 

 (1st Cir. 2009)).

    It is undisputed that Bain was not an employee of the

Campton Police Department.   Despite his conclusory statements

about Bain’s status, Apicelli provides no evidence or developed

argument that Bain was acting as a police agent when he entered

the property and then reported seeing marijuana growing there.

Specifically, Apicelli provides no evidence to show that the

Campton police instigated Bain’s search of Apicelli’s property,

that the Campton police controlled the search or Bain’s

activities, or that Bain entered the property to help the police

rather than to serve his own interests.   To the contrary,


                                10
Apicelli asserts that he had an unfriendly relationship with

Bain because Bain had entered Apicelli’s property without

permission on many occasions before the marijuana issue arose.

Apicelli also establishes that Bain entered the property to hunt

as he had done for years.

    Even if Apicelli could show that Bain had been acting as an

agent of the Campton police, he cannot establish that Bain’s

activities violated Apicelli’s Fourth Amendment rights.


         2.   Investigation

    Apicelli argues that Bain’s tip and the police

investigation in response, including the surveillance camera,

were illegal searches in violation of the Fourth Amendment.     He

contends that because the information from Bain and the

investigation was illegally obtained and provided the basis for

the warrant to search his home, the evidence obtained in the

search of his home must be suppressed.   The government contends

that Apicelli’s Fourth Amendment rights were not violated by any

of the challenged actions.

    “A search within the meaning of the Fourth Amendment

‘occurs when the government violates a subjective expectation of

privacy that society recognizes as reasonable.’”   D’Andrea, 648

F.3d at 5-6 (quoting Kyllo v. United States, 

, 33



                               11
(2001)).   Not all of an individual’s property, however, is

protected by the Fourth Amendment from warrantless searches.

Florida v. Jardines, 

 (2013); Oliver v.

United States, 

 (1984).    While the house

itself, along with the area closely associated with the house,

known as the curtilage, are protected, open fields, including

any unoccupied areas outside of the curtilage, are not.

Jardines, 

; United States v. Dunn, 

 (1987); Oliver, 

.   Therefore, a search,

even a search conducted through a common law trespass, into

unprotected areas has no significance for purposes of the Fourth

Amendment.   United State v. Jones, 

, 953 (2012);

United States v. Mathias, 

 (8th Cir. 2013);

Halloran v. Duncan, --- F. Supp. 3d ---, 

, at *6-

*7 (W.D. Tenn. Mar. 18, 2015); Pina v. Morris, 

,

at *6 (D. Mass. Mar. 28, 2013); United States v. Mendoza, 

, at *2 (E.D. Wisc. Oct. 9, 2012).

    “The protection afforded the curtilage is essentially a

protection of families and personal privacy in an area

intimately linked to the home, both physically and

psychologically, where privacy expectations are most

heightened.”   California v. Ciraolo, 

(1986); accord Jardines, 

.    Whether an area is


                                12
part of the home’s curtilage “should be resolved with particular

reference to four factors:    the proximity of the area claimed to

be curtilage to the home, whether the area is included within an

enclosure surrounding the home, the nature of the uses to which

the area is put, and the steps taken by the resident to protect

the area from observation by people passing by.”    Dunn, 

.   In contrast, any area of private property outside the

curtilage is not part of the house and, therefore, is not

protected.   Jones, 

-59.

    Bain’s tip to the police about marijuana growing on

Apicelli’s property was based on his observations while he

walked on Apicelli’s property.    He had been told not to go on

Apicelli’s property, except in the limited areas he could use

for hunting and for a snowmobile trail.    Similarly, the police

did not have permission or a warrant to enter Apicelli’s

property when they observed the marijuana growing and installed

the surveillance camera.     Apicelli asserts that because Bain and

the police were trespassing when they entered his property,

their activities violated the Fourth Amendment.

    Trespass alone, however, does not violate the Fourth

Amendment.   None of the activities by Bain and the police took

place in the curtilage of Apicelli’s home.    Instead, the

marijuana was found in a wooded area next to an apple orchard,


                                  13
200 yards east of the house.     Apicelli does not suggest that the

area where the marijuana was growing was fenced, or close to the

house, or part of his private yard, or in any way protected from

observation.     Therefore, the intrusions onto his property did

not implicate the Fourth Amendment.     See Oliver, 

; see also Dunn, 

; Mathias, 

.

    The government’s use of a surveillance camera to record

Apicelli’s activities also does not implicate the Fourth

Amendment.     A hidden surveillance camera on a suspect’s property

that is not recording activities within the curtilage does not

violate the Fourth Amendment.     United States v. Vankesteren, 

 (4th Cir. 2009); Mendoza, 

, at

*2; see also United States v. Anderson-Bagshaw, 

 (6th Cir. 2012) (distinguishing surveillance of

barnyard and pasture as open fields from backyard as curtilage).

    Therefore, the information the police obtained from Bain,

from their own observations on Apicelli’s property, and from

camera surveillance was gathered without a Fourth Amendment

violation.   The application for the search warrant properly

relied on that information, and the evidence obtained as a

result of the search was not fruit of the poisonous tree.




                                  14
    B. Affidavit for Warrant Application

    Apicelli challenges the warrant obtained to search his

house on the ground that the affidavit submitted by Sergeant

Payer in support of the application was “incomplete, inaccurate,

and deceptive.”   His primary complaint is that the affidavit did

not identify the source of the information about the marijuana

growing on Apicelli’s property as Bain but instead described the

source as a “Concerned Citizen” or a “cooperating individual.”

Apicelli argues that the affidavit omitted the information that

Bain was a town employee, Bain had previously worked with the

police, Bain had a motive to retaliate against Apicelli, Bain

had trespassed on Apicelli’s property many times, Bain’s

identification of Apicelli in the video was overly suggestive or

fabricated, Bain was a police agent, and Bain made other

patently false statements that were not included in the

affidavit.

    As discussed above, Apicelli did not request a Franks

hearing “to ‘challenge the veracity of a sworn statement used by

police to procure a search warrant.’”   United States v. Graf,

--- F.3d ---, 

 (1st Cir. Apr. 21, 2015)

(quoting Franks, 

).   Evidence obtained

pursuant to a search warrant may be suppressed “only if the



                                15
warrant application, cleansed of any false information or

clarified by disclosure of previously withheld material, no

longer demonstrates probable cause.”   United States v. Silva,

 (1st Cir. 2014) (internal quotation marks

omitted).   “Probable cause to issue a warrant exists when, given

all the circumstances set forth in the affidavit, there is a

fair probability that contraband or evidence of a crime will be

found in a particular place.”   

 (internal quotation marks

omitted).

    The information from Bain, referred to in the affidavit,

was the tip about a possible marijuana grow in the area of Mason

Road and Bain’s identification of Apicelli as the man in the

recordings from the surveillance camera.   When the police rely

on a tip from a confidential informant to provide probable cause

for a search warrant, the affidavit in support of the warrant

application must “must recite some of the underlying

circumstances from which the informant concluded that relevant

evidence might be discovered, and some of the underlying

circumstances from which the officer concluded that the

informant was credible or his information reliable.”   Graf, 

.

    In this case, however, the affidavit did not rely on Bain’s

tip alone to provide probable cause for the warrant.   Instead,


                                16
as explained in the affidavit, an investigation was done based

on the tip, which confirmed Bain’s information and found

marijuana growing on Apicelli’s property.     Additional details

about Bain, which Apicelli argues were improperly omitted from

the affidavit, pertain to Bain’s credibility and the reliability

of his information.     Because the affidavit presented evidence of

criminal activity based on the officers’ investigation of

marijuana growing on Apicelli’s property, the details about Bain

that Apicelli provides are immaterial and do not affect probable

cause for the search.    The affidavit provides ample grounds to

show a “fair probability” that evidence of marijuana

manufacturing would be found in Apicelli’s home.

    Similarly, the identification of Apicelli as the person

tending the marijuana plants, noted in the affidavit, was not

based exclusively on Bain’s identification.    The identification

was made based on police department, motor vehicle, and criminal

records involving Apicelli, along with Bain’s identification.

Therefore, the affidavit provided ample probable cause to

support the warrant application even considering the information

that Apicelli argues was improperly omitted.




                                  17
    C.    Identification

    Apicelli argues that Bain’s identification of him in the

surveillance camera recordings and any in-court identification

by Bain are inadmissible.   He contends, without citing any

supporting cases, that Bain’s identification is unreliable

because he had an improper motive to identify Apicelli and

because the video footage is so poor that no valid

identification could be made.

    The Due Process Clause is implicated in a witness’s

identification of a suspect “only when law enforcement officers

use an identification procedure that is both suggestive and

unnecessary.”   Perry v. New Hampshire, 

(2012).   Even when an improper identification procedure was

used, the resulting identification must be suppressed only if

after considering all of the circumstances there is a

“substantial likelihood of a misidentification.”     

 (internal

quotation marks omitted).   In other words, courts must determine

whether a police identification procedure “was unduly

suggestive, and, if yes, whether the identification was still

reliable given the totality of the circumstances.”    United

States v. Correa-Osorio, --- F.3d ---, 

, at *5

(1st Cir. Apr. 22, 2015).




                                18
    In this case, the police showed Bain the surveillance video

footage taken of a person tending marijuana plants on Apicelli’s

property.     Bain identified the person as Apicelli.   To the

extent Apicelli argues that showing the video footage to Bain

was unnecessarily suggestive, he provides no developed argument

to support that theory.     See Graf, 

(citing United States v. Zannino, 

 (1st Cir.

1990).    Instead, Apicelli focuses on the allegedly poor quality

of the images and Bain’s ill will toward him.

    The video footage shown to Bain is analogous to showing a

witness a single photo for identification.     See United States v.

Arruda, 

 (D. Mass. 2010); United States v.

Ortiz, 

 (D. Mass. 2010).     A single-photo

identification procedure may be, but is not always,

unnecessarily or impermissibly suggestive.     United States v.

Constant, 

, at I6 (D. Me. Feb. 5, 2013) (citing

cases).   In deciding whether an identification procedure was

impermissibly or unnecessarily suggestive, the court must

determine whether under the circumstances a better procedure was

practicable.    United States v. Holliday, 

 (1st

Cir. 2006).

    No details about the procedure used to show Bain the

surveillance footage have been provided.     Apicelli does not


                                  19
argue that another procedure would have been less suggestive.

It is not necessary to determine whether the procedure was

unnecessarily or impermissibly suggestive, however, because even

if that were the case, the totality of the circumstances shows

that Bain’s identification was sufficiently reliable to be

admissible.

    Apicelli does not dispute that Bain knew him and had seen

him on multiple occasions over a period of two years.     Bain had

encountered Apicelli while they were both walking on Apicelli’s

property.   The video footage was taken on Apicelli’s property,

showing a person tending marijuana plants there.   As a result,

Bain had a well-founded basis to identify Apicelli.     Although

Bain may also have harbored ill will against Apicelli based on

Apicelli’s efforts to exclude Bain from his property, any motive

to falsely identify Apicelli as the man shown in the video

footage is insufficient to undermine the reliability of the

identification.

    Apicelli also argues that the resolution of the video

footage was so poor that no identification could be made.

Although Apicelli characterizes the identification as “absurd”

because of the low quality of the footage, he has not shown that




                                20
to be the case.2    More importantly, Bain also identified Apicelli

based on his clothing, mannerisms, and physical characteristics

that were familiar to Bain because of his many interactions with

Apicelli over two years.    There is no likelihood in this case

that Bain misidentified Apicelli as the man shown in the video

footage.


                             Conclusion

      For the foregoing reasons, the defendant’s motion to

suppress (document no. 41) is denied.

      SO ORDERED.



                                 __________________________
                                 Joseph DiClerico, Jr.
                                 United States District Judge


May 4, 2015

cc:   Sven D. Wiberg, Esq.
      Charles L. Rombeau, Esq.
      Donald A. Feith, Esq.
      United States Marshal
      United States Probation




  2 The single frame print from the video footage that Apicelli
provides shows a forested area with identifiable trees and
underbrush and a date and time stamp of 09/14/13, 13:59:31. No
person is shown in the print. The blown up version of the print
is unrecognizable, but it is unclear what purpose the blow up
would serve.

                                  21