UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE UNITED STATES OF AMERICA v. DANIEL RILEY Cr. No.

07-189-01-GZS

MOTION TO SUPPRESS NOW COMES the accused, Daniel Riley, by and through counsel, and moves this Honorable Court to suppress any custodial statements made by him following his unlawful arrest on June 6, 2007. He also moves to suppress any other evidence gathered as a result of that arrest and any subsequent fruits of unlawful seizure, search, and/or questioning. In support of this motion, the following is stated: 1. On June 7, 2007, law enforcement agents, including personnel from the Marshall’s Service and officers employed by the New Hampshire State Police, assaulted, injured, detained, and arrested the accused on private property in or near Plainfield, New Hampshire. These agents of the Government had no arrest warrant, search warrant, probable cause, or basis for a warrentless arrest relating to Mr. Riley. The Government has, as recently as the end of last week, indicated its intention to present evidence relating to this incident, including statements purported made by Mr. Riley while in custody, at trial of this matter. 2. While he was in custody after this unlawful arrest, Mr. Riley insisted on his right to remain silent and, he submits, at least twice refused to sign forms seeking waiver of his rights. Moreover, he submits that he invoked his right to counsel by informing the Government’s agents that he 1. That the stop of his motor vehicle was unjustified; 3. Furthermore, to the extent that they had any arguable grounds to detain the accused, the Government agents who effected the detention or arrest exceeded the bounds of any lawful threshold inquiry and any seizure or search of the accused was not justified by probable cause. Moreover the agents acted without a warrant or any legal exception to the warrant requirement.

4. Moreover, the seizure and search of the accused's person was not justified and he did not consent to any such seizure, search, or interrogation. 5. The undersigned was recently appointed, pursuant to the Criminal Justice Act, to act as the accused’s attorney in this case, after a period when the accused sought to represent himself. During that earlier period, the undersigned was appointed to act as the standby counsel for the accused, over the repeated objections by the accused to the appointment or involvement of any other person as his counsel, standby or otherwise (and after the prior appointment of another attorney for the accused in this case). During the period prior to being appointed as full trial counsel, the undersigned also experienced prolonged difficulty in meeting and consulting with the accused, due in large part to official failures to recognize and respect the accused’s desire and attempts to act as his own counsel. See, Motion to Dismiss , Continue, or Delay Start of Trial, document 334 on this Court’s docket. 7. As the undersigned has also informed the Court and other counsel, he feels that it is necessary for him, in attempting to be an effective counsel for the accused under these circumstances, to review the previous pleading filed by his client during the time that he was acting as his own counsel, and to reassert and/or resubmit some of those motions based on his own judgment of their validity and merit. By doing so (selectively submitting new motions), the undersigned does not intend to denigrate, dismiss, or waive any of the issues raised by the accused while acting as his own counsel. In particular, with respect to the instant motion, the accused, through counsel, draws this Court’s attention to his previous motions identified on the docket of this case as documents 324 (Motion to Suppress Affidavit of Andre Labier Used as Basis for a Criminal Complaint), and 136 (Motion to Suppress Evidence Unlawful Search Warrant). The accused restates the factual allegations contained therein and incorporates them herein by reference. 8. The accused submits that, in addition to the other violations of his rights (to be free from unreasonable searches and seizures pursuant to the Fourth Amendment and Part I, Article 19 of the New Hampshire Constitution) that occurred during the June 7 warrantless arrest, he was not properly advised of the Miranda warnings at the time of his arrest, during transport, during

booking, or during the subsequent questioning. During transport, during the booking process, and during the subsequent custodial interrogation, the Government’s agents inquired about many potentially inculpatory issues. Moreover, the accused submits that the agents variously threatened, accused, and otherwise induced him to make statements contrary to his interests. He submits that, despite being informed that he did not wish to speak and that he had counsel, they told him that they would be his best attorneys and that he had no other choice but to cooperate. In addition to presenting him with dire consequences for not waiving his rights and cooperating, they urged him to act as their agent to help in investigating and capturing other individuals, even offering him a monetary payment to do so. Under the circumstances, his responses were not voluntary. Furthermore, any purported waiver of his rights was not fully knowing, intelligent, or voluntary. The defendant did not make a valid Miranda waiver.

9. The Government’s agents have essentially conceded that the arrest and their subsequent actions relating to Mr. Riley on June 7, 2008 were not taken pursuant to a warrant. It is also apparent that the Government agents were not acting pursuant to any reasonable articulable suspicion of criminal activity by the accused at the time of the arrest. The statements of the United States Marshall, Stephen Monier, made in a televised press conference on the date of the illegal arrest support the accused’s contentions. See, e.g., Exhibit G (ID) (Video of Marshall’s press conference of 6/7/07) on the accused’s First Amended Exhibit List. During that press conference, the Marshall indicated that the Government agents (including both federal and state officers) were in the area to execute search warrants relating to the Brown’s commercial properties in West Lebanon, New Hampshire. He described Mr. Riley as a supporter of the Browns who had been encountered by the Government agents and detained. He indicated that the agents were “surveilling the property”(in Plainfield) in anticipation of serving the warrants. “In the context of doing that, at about 8 this morning, we had an encounter, a chance encounter, between U.S. Marshals Service personnel and one his supporters and we had to take that person into custody, which is why you are all here. The New Hampshire State Police supported us in that effort. They provided assistance to us and backed us up in our surveillance operations.” A reporter then asked what the supporter was being charged with and the Marshall said, “Um, I

don’t, that investigation is continuing, I don’t have all the facts and the circumstances. He’s being questioned as we speak and I’ll have more information on that at a later time.” A follow up question asked the Marshall to describe the encounter and the Marshall responded, “It was a chance encounter. This gentleman was walking a dog. Unfortunately, it required U.S. Marshals Service personnel during that encounter to take him into custody.” Another follow-up asked, “Why?” The Marshall answered, “Well he, because he essentially discovered us there.” 10. Mr. Riley was walking a dog and drinking a cup of coffee. He did not appear to be armed and he was not. He was engaged in no illegal activity while he was walking the dog down to the area of the mailbox at the end of the driveway on private property. 11. It is clear from the foregoing, as well as other information contained in discovery provided by the Government, that this detention/arrest and subsequent searches and questioning were conducted without a warrant, or reasonable articulable suspicion, or probable cause to arrest or search, or proper respect for the accused’s rights to be free from unreasonable searches and seizures, to remain silent, and to have counsel present for custodial questioning. WHEREFORE, Mr. Riley asks this Court to provide the following relief: A. Suppression of any custodial statements and any evidence gathered subsequent to the unlawful arrest, search, and questioning of the accused, along with the fruits of same; or, in the alternative, B. An evidentiary hearing to determine the admissibility of any of the fruits of the illegal arrest and questioning; C. Hearings at which the Government must meet its burden and demonstrate independent sources for any such evidence or statements proffered by it at trial; and D. Such other relief as may be just.

Respectfully submitted, Daniel Riley, By his attorney, /s/ Sven D. Wiberg NH Bar No. 8238 Wiberg Law Office, PLLC 2456 Lafayette Road, Suite 7 Portsmouth, NH 03801 (603) 686-5454

CERTIFICATE OF SERVICE I hereby certify that a copy of this pleading will be served upon the Government and parties by ECF filing on this 24th day of March, 2008.

/s/ Sven D. Wiberg

UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE UNITED STATES OF AMERICA v. DANIEL RILEY Cr. No. 07-189-01-GZS

MEMORANDUM IN SUPPORT OF MOTION TO SUPPRESS NOW COMES the accused, Daniel Riley, by and through counsel, and presents the following legal authorities in support of Motion to Suppress: The Fourth Amendment guarantees that citizens will be protected from unreasonable searches and seizures: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. In the instant case, Mr. Riley was seized, arrested, coerced, and subjected to custodial interrogations in the absence of a warrant. The New Hampshire Constitution and statutes provide similar and additional protections for citizens: [Art.] 19. [Searches and Seizures Regulated.] Every subject hath a right to be secure from all unreasonable searches and seizures of his person, his houses, his papers, and all his possessions. Therefore, all warrants to search suspected places, or arrest a person for examination or trial in prosecutions for criminal matters, are contrary to this right, if the cause or foundation of them be not previously supported by oath or affirmation; and if the order, in a warrant to a civil officer, to make search in suspected places, or to arrest one or more suspected persons or to seize their property, be not accompanied with a special designation of the persons or objects of search, arrest, or seizure; and no warrant ought to be issued; but in cases and with the formalities, prescribed by law.

“Our State Constitution protects all people, their papers, their possessions and their homes from unreasonable searches and seizures.” State v. Grey, 148 N.H. 666, 668-69 (2002). New Hampshire Revised Statutes: 594:10 Arrest Without a Warrant. – I. An arrest by a peace officer without a warrant on a charge of a misdemeanor or a violation is lawful whenever: (a) He has probable cause to believe that the person to be arrested has committed a misdemeanor or violation in his presence; or (b) He has probable cause to believe that the person to be arrested has within the past 12 hours committed abuse as defined in RSA 173-B:1, I against a person eligible for protection from domestic violence as defined in RSA 173-B:1, has within the past 12 hours violated a temporary or permanent protective order issued under RSA 173-B or RSA 458:16 by committing assault, criminal trespass, criminal mischief or another criminal act, or has within the last 12 hours violated stalking provisions under RSA 633:3-a. © He has probable cause to believe that the person to be arrested has committed a misdemeanor or violation, and, if not immediately arrested, such person will not be apprehended, will destroy or conceal evidence of the offense, or will cause further personal injury or damage to property. II. An arrest by a peace officer without a warrant on a charge of felony is lawful whenever: (a) A felony has actually been committed by the person arrested, regardless of the reasons which led the officer to make the arrest. (b) The officer has reasonable ground to believe that the person arrested has committed a felony. In the instant case, the Government agents and State Police had no warrant, no probable cause, no reasonable articulable suspicion, or other grounds for the arrest on June 7, 2007. In fact, as U.S. Marshall Stephen Monier stated on that date, the reason for the arrest was simply because Mr. Riley had encountered the law enforcement personnel while they were watching the Brown property in Plainfield.

After Mr. Riley was illegally detained, he was subjected to custodial interrogations, despite asserting his right to remain silent and stating that he had an attorney. He invoked these rights multiple times during his unlawful custody, indicating on at least two occasions that he would not sign proffered waiver forms. His custodial statements must therefore be suppressed pursuant to the dictates of Miranda v. Arizona , 384 U.S. 436 (1966). Moreover, Mr. Riley was subjected to additional coercion and pressure to cooperate after invoking his rights, including the

functional equivalent of interrogation. See Rhode Island v. Innis, 446 U.S. 291 (1980).

The Government seeks to introduce, at trial, the fruits of these illegal actions, including custodial statements and other evidence gathered during the arrest and gathered subsequently as a result of information provided by Mr. Riley during this encounter. The statements and other evidence must be excluded as the “fruit of the poisonous tree.” Wong Sun V. United States, 371 U.S. 471 (1963)

This Court must suppress the evidence. In the alternative, the Court must hold an evidentiary hearing on Mr. Riley’s motion at which the Government must meet its burden to show that the arrest, searches, and custodial interrogation were conducted in harmony with the protections provided by both the federal and state constitution, and, failing that, demonstrate that any subsequently gathered evidence is not the “fruit of the poisonous tree,” or has some independent source uncontaminated by the illegal actions of the Government’s agents.

Respectfully submitted, Daniel Riley, By his attorney, /s/ Sven D. Wiberg NH Bar No. 8238 Wiberg Law Office, PLLC 2456 Lafayette Road, Suite 7 Portsmouth, NH 03801 (603) 686-5454 CERTIFICATE OF SERVICE I hereby certify that a copy of this pleading will be served upon the Government and parties by ECF filing on this 20th day of March, 2008. /s/ Sven D. Wiberg

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