APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE. Hon. Joseph N. Laplante, U.S. District Judge.
J. Martin Richey, Federal Defender Office, for appellant.
Seth R. Aframe, Assistant United States Attorney, with whom John P. Kacavas, United States Attorney, was on brief, for appellee.
Before Barron, Selya and Stahl, Circuit Judges.
SELYA, Circuit Judge.
It is common ground that a police officer seeking to obtain a search warrant should include in the affidavit accompanying the warrant application any facts known to her that are material to the existence vel non of probable cause. See United States v. Stewart, 337 F.3d 103, 107 (1st Cir.), as amended (Oct. 14, 2003). Under some limited circumstances, however, the officer's duty may be broader: she may be obliged to inquire further in order to dispel serious doubts about either the credibility of an informant upon whom she relies or the veracity of the allegations underlying the attempted showing of probable cause. This duty of further inquiry is not well understood, and the court below ruled categorically that no such duty ever exists. Because this statement of the law is insufficiently nuanced, we remand for further factfinding consistent with this opinion.
We briefly rehearse the facts as supportably found by the district court, along with the travel of the case. The reader who hungers for more exegetic detail may wish to consult the district court's comprehensive account. See United States v. Tanguay, 907 F.Supp.2d 165, 167-76 (D.N.H. 2012).
In February of 2010, the Conway police department received an e-mail, ostensibly
from " Jim Garrold," relating that he had seen child pornography on the laptop computer of " John Tanguway." The e-mail described " Tanguway" as an emergency medical child pornography had been observed during a sexual encounter a few days earlier. This e-mail served to draw the attention of the police to defendant-appellant Jonathan Tanguay, a selectman in the nearby town of Bartlett.
A New Hampshire state trooper, Sgt. Carrie Nolet, took charge of the ensuing investigation. After searching without success for a Jim Garrold, Nolet called the telephone number provided in the e-mail. A voicemail message identified the owner of the telephone as Josh Wiggin. Nolet then asked Sgt. Alan Broyer, a Conway police officer, whether he knew anyone by that name. Broyer responded 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). Nolet did not ask Broyer for more details nor did she make any effort to find out what other " scrapes" Wiggin may have had.
Nolet proceeded to contact Wiggin (a 28-year-old Conway resident). He admitted having sent the accusatory e-mail and agreed to an interview. During this interview, Wiggin disclosed that he and the appellant had maintained a casual sexual relationship, off and on, since Wiggin's teenage years. He added that, on a recent evening, he had gone to the appellant's home for that purpose. When he walked in, the appellant was watching a pornographic video on his laptop. Wiggin described the subjects of this video as boys of " maybe eight, thirteen, fifteen, sixteen."  He also reported seeing thumbnail previews of a " bunch of pictures" and three or four videos depicting children engaging in sex acts with adults.
About a week after the interview, Nolet applied for and obtained a warrant to search the appellant's home, vehicle, and workplace for computer systems. In the affidavit supporting the warrant application, Nolet communicated the substance of Wiggin's interview, emphasizing that Wiggin had come forward despite the potential embarrassment of having his sexual interest in men revealed to his parents and girlfriend. The affidavit did not contain any of the information that Nolet had learned from Broyer regarding Wiggin's history and reputation. Nor did she incorporate the typewritten notes that Wiggin had prepared and brought to the interview. See supra note 1.
A state judge issued the warrant. During the search, police seized a computer, hard drive, and compact disc that were found to contain a profusion of sexually explicit images and videos depicting minors.
A federal indictment followed charging the appellant with a single count of possession of child pornography. See 18 U.S.C. § 2252A(a)(5)(B). The appellant moved for an evidentiary hearing, see Franks v. Delaware, 438 U.S. 154, 155-56, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), and to suppress the evidence seized during the
search. He asserted that Nolet had either deliberately or recklessly omitted material ...