United States Court of Appeals
For the First Circuit
Nos. 14-1174
15-2209
UNITED STATES OF AMERICA,
Appellee,
v.
JONATHAN TANGUAY,
Defendant, Appellant.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Joseph N. Laplante, U.S. District Judge]
Before
Barron, Selya and Stahl,
Circuit Judges.
J. Martin Richey, Federal Defender Office, on brief for
appellant.
Seth R. Aframe, Assistant United States Attorney, and Donald
Feith, Acting United States Attorney, on brief for appellee.
February 5, 2016
SELYA, Circuit Judge. This is the second go-round in
our appellate review of the denial of a motion to suppress filed
by defendant-appellant Jonathan Tanguay. After the district court
refused to suppress vital evidence, see United States v. Tanguay
(Tanguay I), 907 F. Supp. 2d 165, 186 (D.N.H. 2012), the defendant
went to trial. The jury convicted him on a charge of possession
of child pornography. See 18 U.S.C. § 2252A(a)(5)(B).
Following the imposition of sentence, the defendant
appealed. He raised an array of issues that centered on the
district court's refusal to suppress evidence that had been
gathered in a police search of the defendant's home and computer.
That search was made possible by a state magistrate's finding of
probable cause, which led to her issuance of a search warrant.
The magistrate's actions were based on the affidavit of a state
trooper, then-Sgt. Carrie Nolet, that relied on information
obtained from an informant, Joshua Wiggin (a private citizen).
Although the district court reformed Nolet's affidavit to include
some facts that it concluded had been recklessly omitted, see
Tanguay I, 907 F. Supp. 2d at 177-78, the court still found
probable cause, see id. at 183.
In the defendant's first appeal, we rejected most of his
proffered arguments. See United States v. Tanguay (Tanguay II),
787 F.3d 44, 50-51 (1st Cir. 2015). We held, however, that the
district court had erred in ruling as a matter of law that a police
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officer affiant never has a duty to make further inquiry into the
credibility of an informant before presenting a warrant
application to a magistrate. See id. at 52-53. Accordingly, we
withheld a final ruling on the denial of the motion to suppress,
retained appellate jurisdiction, and remanded the case to the
district court for further findings. See id. at 54. We took pains
to delineate the scope of the remand:
On remand, the court must first determine whether the
information known to Nolet gave her an obvious reason to
doubt Wiggin's truthfulness and, thus, triggered a duty
of further inquiry. If so, the court then must ask
whether Nolet's doubts were of such a magnitude that her
failure to conduct an additional inquiry evinced a
reckless disregard for the truth as opposed to, say,
mere negligence. . . .
If the answers to these initial questions are in
the affirmative, the court must ask a third question:
whether Nolet, had she made a good-faith effort to dispel
those doubts, would have discovered new information that
warranted inclusion in her affidavit. And if the answer
to this third question is also in the affirmative, the
court must consider yet a fourth question: whether the
affidavit, expanded to include that new information,
would continue to support a finding of probable cause.
Id.
The district court, consonant with our remand order,
conducted further proceedings. On October 7, 2015, the district
court issued a rescript that responded fully to the questions we
had posed. See United States v. Tanguay (Tanguay III), No. 11-
173, slip op. at 3-13 (D.N.H. Oct. 7, 2015). In that rescript,
the court made additional findings and reiterated both its earlier
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determination of probable cause and its original denial of the
defendant's motion to suppress. See id. at 9-13.
The defendant filed a second notice of appeal. We
consolidated this second appeal with the still-pending first
appeal and set a supplemental briefing schedule. The supplemental
briefs having now been docketed, the consolidated appeals are ripe
for consideration.
We assume the reader's familiarity with the three
earlier opinions in this case. Those opinions recount the
pertinent facts in great detail, see Tanguay II, 787 F.3d at 46-
48; Tanguay III, slip op. at 2-3; Tanguay I, 907 F. Supp. 2d at
167-76, and it would be pleonastic to rehearse them here. For
present purposes, it suffices to say that the district court, on
remand, answered the first three of our four questions favorably
to the defendant: it ruled that the trooper, being on inquiry
notice, should have looked into Wiggin's criminal record; that had
she done so, she would have discovered his 1998 juvenile false
report adjudication; and that the juvenile false report
adjudication was material and should have been included in the
trooper's affidavit. See Tanguay III, slip op. at 3-9. Withal,
the district court answered the fourth and final question favorably
to the government: it concluded that the warrant affidavit, even
when further reformed to include the juvenile false report
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adjudication, continued to establish probable cause. See id. at
9-10.
In his second appeal, the defendant submits that any
showing of probable cause was vitiated when the district court
further reformed the trooper's affidavit. In his view, once the
warrant affidavit is expanded to include both the facts that we
previously ruled should be considered, see Tanguay II, 787 F.3d at
50-51, and the additional facts that the district court ruled on
remand should be considered, see Tanguay III, slip op. at 2-3, any
semblance of probable cause evaporates. We do not agree.
We review the district court's ultimate probable cause
determination de novo. See Ornelas v. United States, 517 U.S.
690, 699 (1996); Tanguay II, 787 F.3d at 49. Even so, we review
the district court's factfinding only for clear error, construe
the record in the light most hospitable to the district court's
rulings, and uphold the denial of the suppression motion as long
as that denial is supported by any particularized and objectively
reasonable view of the evidence. See Ornelas, 517 U.S. at 699;
United States v. Dancy, 640 F.3d 455, 461-62 (1st Cir. 2011).
In conducting our review, we start with the defendant's
challenge to the further reformed affidavit. That affidavit
includes three clusters of information: the facts that the trooper
recounted in her original affidavit; the additional facts that the
district court later determined should have been included in that
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affidavit (Wiggin's conviction for uttering a false prescription,
a local police officer's statement to Nolet that Wiggin was a
"troubled" teenager, a "police groupie," and "suicidal," and
Wiggin's appearance at his police interview with written notes
that conflicted in certain respects with his interview statement);
and Wiggin's juvenile false report adjudication. In our earlier
opinion, we upheld the district court's determination that the
reformed affidavit, including all of the above except for the
juvenile false report adjudication, established probable cause.
See Tanguay II, 787 F.3d at 50-51. On remand, the district court
concluded that the juvenile false report conviction should have
been included in the affidavit. See Tanguay III, slip op. at 8-
9. But the court went on to find that adding the juvenile false
report conviction to the mix did not vitiate probable cause. See
id. at 9-13.
Applying de novo review to this determination, see
Ornelas, 517 U.S. at 699, we affirm it. The district court
carefully explained its reasons for concluding that the juvenile
false report adjudication did not undermine its earlier finding of
probable cause, see Tanguay III, slip op. at 9-13, and we deem the
district court's reasoning convincing. We therefore affirm this
most recent determination for substantially the reasons explicated
by the district court. Cf. Vargas-Ruiz v. Golden Arch Dev., Inc.,
368 F.3d 1, 2 (1st Cir. 2004) (explaining that "when a trial court
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accurately sizes up a case, applies the law faultlessly to the
discerned facts, decides the matter, and articulates a convincing
rationale for the decision, there is no need for a reviewing court
to wax longiloquent").
Placing our imprimatur on that determination does not
complete our task. The defendant also contends that the court
below should have added more information to the mix. He posits,
in effect, that virtually every fact unearthed in the course of
the district court proceedings should now be factored into the
probable cause equation. He would have us consider, among other
things, Wiggin's arrests on stolen property and shoplifting
charges in 1998 and 1999, respectively, and Wiggin's 2011
conviction for making a false report. When this additional
information is factored into the decisional calculus, the
defendant says, there is no longer any showing of probable cause
sufficient to ground the issuance of the search warrant.
The defendant's contention is little more than wishful
thinking. It is nose-on-the-face plain that the district court
did not err in refusing to reform Nolet's affidavit to include
this additional information. The court reasonably determined that
the information was not material and, therefore, the trooper had
not recklessly omitted it from the warrant affidavit. This
determination was free from error.
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The controlling precedent is the Supreme Court's
decision in Franks v. Delaware, 438 U.S. 154 (1978). Under Franks,
an affidavit must be reformed to include any information that the
affiant recklessly omitted. See id. at 155-56; see also United
States v. McLellan, 792 F.3d 200, 209-10 (1st Cir. 2015). Here,
however, the defendant makes no argument that the arrests in
question are for crimes that by their very nature impugn a person's
veracity.1 Excluding from a warrant application bare arrests for
crimes that do not impugn an informant's veracity does not offend
the Franks standard. Cf. United States v. Rumney, 867 F.2d 714,
720-21 (1st Cir. 1989) (explaining that "[a] criminal record, no
matter how lengthy, does not necessarily impugn one's veracity").
We add, moreover, that even if the exclusion of these
arrests from the reformed affidavit was error — and we do not
believe that it was — any such error was harmless. The district
court concluded that "adding these two crimes . . . to the mix"
would "not alter the outcome." Tanguay III, slip op. at 9 n.7.
Given that these arrests occurred more than ten years before the
affidavit date and never ripened into convictions, we cannot fault
1 We note, moreover, that analogous precedent seems to
disfavor any such argument. See, e.g., United States v. Foster,
227 F.3d 1096, 1100 (9th Cir. 2000) (explaining, in the context of
Federal Rule of Evidence 609, that simple possession of stolen
property is not a crime that by its nature impugns one's veracity);
Linskey v. Hecker, 753 F.2d 199, 201 (1st Cir. 1985) (explaining,
in like context, that shoplifting is not a crime that by its nature
impugns one's veracity).
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that conclusion. Cf. Cheek v. Bates, 615 F.2d 559, 563 (1st Cir.
1980) (explaining that "a mere arrest without a conviction would
be clearly inadmissible to show [a] general lack of credibility").
Nor can the defendant get this information in through
the back door by relying on the police reports underlying these
arrests. Because the arrests themselves were irrelevant to
Wiggin's veracity, the trooper's duty of inquiry plainly did not
extend to obtaining the underlying police reports.
The defendant's reliance on Wiggin's 2011 conviction for
making a false report is totally misplaced. Nolet submitted the
warrant affidavit to the magistrate in 2010, and the magistrate
issued the search warrant on February 18 of that year. The search
took place shortly thereafter. A police officer is not held to a
standard of clairvoyance, and Nolet could not have been charged
with knowledge of the 2011 conviction when she executed her
affidavit in 2010.
That ends this aspect of the matter. Information that
is unknowable to an affiant at the time she executes her affidavit
cannot be part of the Franks equation.2 See Burke v. Town of
Walpole, 405 F.3d 66, 82 (1st Cir. 2005).
2 Indeed, an attempt to discredit an informant with information
that did not exist until after a police officer incorporates the
informant's statement into an affidavit would be akin to the
government arguing that a court should deem the informant credible
simply because the subsequent search turned up the contraband that
the informant predicted would be there.
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We need go no further. For the reasons elucidated above,
the judgment of the district court is
Affirmed.
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