Daniel Pelletier is a delusional informant well-known to the Derry, New Hampshire Police Department. In the several years leading up to 2010, Pelletier had contacted the department on “numerous occasions.” On one occasion he claimed he was cheated out of the ownership of several gas stations; on two other occasions, he claimed he was beaten by six unidentified men and that his home had been broken into. Ensuing investigations could not find any evidence to support these claims. Pelletier was also known locally to have claimed in 2005 that he won ten million dollars in the lottery, although there was no evidence he had received such winnings and he continued to live with his mother.
In July 2010, Pelletier again went to the Derry Police Department—this time to report a complaint against his acquaintance Anthony Silva. He spoke to an officer named O’Donaghue. He told the officer that Silva had just given him $150 in counterfeit currency to pay for $100 worth of repairs he had performed on Silva’s silver Cadillac sedan. Pelletier gave O’Donaghue the $150 counterfeit currency in a plastic bag. He then informed the officer that Silva was not only producing counterfeit currency but counterfeit drivers’ licenses as well. He also told O’Donaghue that Silva was living out of the Cadillac and had $300 to $400 more in counterfeit currency in a white Sovereign Bank envelope. Pelletier informed O’Donaghue that the Cadillac was parked in a lot at 25 Linlew Drive. O’Donaghue questioned Pelletier about why he was providing this information. The informant said he was “fed up” with being “burned” in business transactions with Silva.
Officer O’Donaghue was unaware of Pelletier’s delusional informant history. He passed the Silva information on to a Sergeant Muncey and Officer Phillips who were dispatched to the lot where the Cadillac was parked. They found the vehicle, and as reported by Pelletier, it was full of personal belongings and occupied by a “shirtless man” sitting in the driver’s seat. The officers walked up to the vehicle and asked its occupant for his driver’s license. The man refused at which time Muncey threatened to arrest him for “failing to comply with an order from a policeman.” The man then produced a New Hampshire license which identified him as “Anthony Silva.” Armed with this information, Officer Phillips ran a background check which revealed Silva had an “outstanding warrant for an unpaid motor vehicle fine.”
After having Silva get out of the vehicle, the officers placed him under arrest. They then searched him incident to the arrest, finding a fake New York driver’s license with his photograph as well as a number of bills believed to be counterfeit “based on their texture, coloring, and missing watermarks.” Silva was escorted to the police station where, after being informed of his Miranda rights, told the officers he received the bills during transactions at one or more local businesses. When asked, he refused to give the officers consent to search his Cadillac.
Without a consent to search, the officers were forced to arrange to have the vehicle towed to the police station until they could obtain a search warrant. A Detective Muise was assigned to obtain a search warrant, prompting the detective to speak to Pelletier “in order to gain probable cause” for the need search warrant. Pelletier informed Muise that he had just received a call from Silva who “lamented” that he was “screwed” because the trunk had $3,000 in counterfeit currency.
At this juncture a Derry prosecutor decided to pass the case to the Secret Service because it involved counterfeit currency. Muise provided the information he had collected on Silva to Secret Service Special Agent Brian Coffee. The record is unclear whether the detective knew or shared the information about Pelletier’s history of delusional “false reports” to the police. Coffee sought, and secured, a search warrant based on information that included Pelletier’s accusations against Silva. But no information about Pelletier’s “mental health or his personal antipathy towards Silva” was provided to the Federal magistrate. The agent in his affidavit nonetheless told the magistrate that Pelletier’s information was “trustworthy and reliable.”
Armed with the search warrant, Secret Service agents searched the Cadillac and discovered $2,880 in counterfeit currency, a copier/scanner, and a paper cutter in the trunk. They also found another $200 in counterfeit currency in the glove compartment.
Silva was indicted, and subsequently convicted, for possessing with intent to defraud counterfeit United States currency in violation of 18 U.S.C. § 472. On appeal to the First Circuit Court of Appeals, Silva raised the following three challenges to the district court admitting evidence seized by the police during and after his arrest: the investigative stop, the seizure of his Cadillac, and the warrant application.
The U.S. Supreme Court in 1968, in Terry v. Ohio, held that the police can conduct an investigative stop if they have “reasonable suspicion that criminal activity may be afoot.” Silva alleged that officers Muncey and Phillips did not have reliable information upon which to form a “reasonable suspicion” that he had engaged in any criminal activity. The First Court defines reasonable suspicion in a Terry stop as “presumptively reliable information about criminal activity … provided by third parties.” On this issue, the appeals court on February 5, 2014, in United States v. Silva, said:
“At the time Officers Muncey and Phillips approached Silva, they had received information from a third party alleging that Silva was producing and in possession of counterfeit currency. The officers who received Pelletier’s complaint had no knowledge of Pelletier’s prior eccentricities that may have led them to question the reliability of his account. Pelletier’s accusations were corroborated by the fact that he produced an exemplar of counterfeit currency allegedly handed to him by Silva, as well as by the officers’ own observations of Silva’s car at 25 Linlew Road. Even if Pelletier’s account would not have provided ‘probable cause’ for a full-scale search of Silva and his vehicle, the partially corroborated complaint created a ‘reasonable suspicion’ sufficient to justify the police’s actions in approaching Silva and requesting basic identification. At that point, Silva’s refusal to provide his driver’s license—coupled with Pelletier’s specific allegations that Silva was producing counterfeit identification—gave police officers reasonable grounds to run a routine warrant check on his license.”
With respect to the seizure of Silva’s Cadillac, the U.S. Supreme Court and the First Circuit have held that under the “automobile exception” to the Fourth Amendment, the police “may seize and search an automobile prior to obtaining a warrant where they have probable cause to believe that the automobile contains contraband.” The appeals court rejected Silva’s unlawful seizure claim because:
“In this case, the record suggests at the time the police seized Silva’s vehicle they had ample evidence supporting a finding of probable cause for a search. After the officers discovered Silva’s outstanding warrant, their search incident to arrest yielded several counterfeit bills and a counterfeit driver’s license in Silva’s wallet. The seized material corroborated Pelletier’s complaint, in which Pelletier had insisted that Silva was producing both counterfeit currency and counterfeit identification. Furthermore, the officers’ observations of Silva’s car, which suggested that the defendant was currently living out of the vehicle, gave them reason to believe that further evidence of counterfeiting might be found inside the vehicle. Together with Pelletier’s initial report, which alleged that Silva had an additional $300 of counterfeit bills in his glove compartment, this evidence more than sufficed to suggest there existed a ‘fair probability’ that searching Silva’s car would lead the officers to further contraband.
“Silva insists that the officers’ decision to forestall searching his car until they had obtained a proper warrant reveals their own doubts as to whether they had probable cause at the time of seizure. Setting aside the fact that the officers’ procedural diligence in obtaining a warrant hardly proves their subjective uncertainty about the quality of their evidence, Silva’s argument misreads the law of probable cause.”
Finally, the First Circuit addressed the issue of whether Agent Coffee’s failure to include Pelletier’s history of delusional complaints and/or his own hostility against Silva in his affidavit undermined the magistrate’s finding of probable cause. Silva argued that Coffee’s failure to note Pelletier’s motives to fabricate and the agent’s own assertion that the informant was “trustworthy and reliable” amounted to a reckless disregard for truth or falsity. The appeals court disagreed, finding:
“ … When the police seized Silva’s vehicle, they already had ample evidence to obtain a warrant, including Pelletier’s partially corroborated complaints, police officers’ own observations, and the counterfeit bills and driver’s license found in Silva’s wallet. By the time he applied for the warrant, Agent Coffee additionally had the benefit of Pelletier’s report that Silva claimed to have $3,000 worth of counterfeit currency in his car trunk. While Pelletier objects to Coffee’s omission of Pelletier’s past history and false reports, the district court properly found that the disclosure of this additional information would not have undercut the magistrate’s finding of probable cause. Much of Coffee’s most damning evidence, including actual counterfeit bills, existed independently of Pelletier’s statements. Furthermore, several of Pelletier’s statements about Silva’s involvement with counterfeit goods had been corroborated by the officers’ arrest, lending credibility to his other statement. Finally, as the district court noted, Silva has produced no evidence suggesting that Coffee’s omission of the evidence was ‘intentional’ or even ‘reckless.’ Aside from potentially Officer Muise, there is no evidence that any of the officers involved with the investigation had any knowledge of Pelletier’s history, nor that they shared this history with Coffee.”
We would feel more comfortable with the probable cause, a resulting search warrant, had the Derry police or the prosecutor shared Pelletier’s delusional informant history with Agent Coffee. We feel confident the agent would have included this information in his affidavit requesting the issuance of a warrant from the Federal magistrate. The magistrate could then have decided the probable cause issue with all the information.