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MOTION TO DISMISS (FRANKS V. DELAWARE) Teri Buhl (the "Defendant"), pursuant to Connecticut Practice Book 4l- the Fourth and Fourteenth Amendments of the United States Constitution, Article One, Section Seven of the State Constitution, and the holdings of Franks v. Delaware, 438 U.S. 154 (1978), State v. Weinberg, 215 Conn. 231, 237, cert denied, 498 U.S. 967 (1990), and State v. Bergin, 214 Conn. 657, 666, n.8 (1990), moves this Court to enter an Order dismissing the Information. As this Motion will show, the affidavit in support of the arrest warrant (the "Affidavit") that was executed by Sergeant Carol Ogrinc of the New Canaan Police Department dated 10/18/10, and subscribed and sworn to before New Canaan Police Lieutenant (name illegible) of the New Canaan Police Department, contains false statements that were made knowingly and intentionally or with reckless disregard for the truth, and also omits material facts, that collectively were necessary to the determination that probable cause existed to arrest the Defendant. The affidavit, fails to reveal for the judicial authority important facts which would have given the Honorable, Judge Bruce Huddock an opportunity to fully understand the events, and if he believed probable cause existed, potentially require prosecuting authorities to follow statutory protocol for compelling an investigative reporter (an established member of the news media community) to disclose the sources and the posters of the Facebook Profile entitled

Tasha Moore, known also as Gossip Girl. Instead the affidavit focusses on collaborating evidence ignoring salient facts, admissions and realities which would tend to exonerate and protect Buhl and her status as an investigative reporter. The complaining witness, Meagan Brody, told the police the Defendant was an investigative reporter. The Defendant herself told the investigating New Canaan police officer Dan Gulino and explains that she is investigating under age drinking in New Canaan and that the police where turning a blind eye to it. The arrest warrant affidavit, while mentioning that she stated she was an investigative reporter, did not state that Buhl knew but would not identity her informant. Nor does the affidavit mention that the Defendant told the police she knew the creators of the Facebook profile Tasha Moore, but would not reveal her sources. Buhl candidly admits her involvement in mailing a copy of the subject personal notes belonging to Complainant Megan Brody, yet denies that she posted anything or created the Facebook profile. It excluded this important language that Buhl knew who the creators were and this should have been stated in paragraph 8., page 2 of 5 on the affidavit. The police knew or should have known, that once Buhl admitted she knew the identity of the individuals responsible for posting but WOULD NOT REVEAL HER SOURCE that she would be protected under the Section 52-146t of the Connecticut General Statutes, entitled "Protection From Compelled Disclosure of Information Obtained by New Media." Instead, the arrest affidavit glosses over, discounts, and otherwise ignores that Buhl was adamant in her knowing the identity of the source and her refusal to reveal the person responsible for the posting. The Affidavit also fails to stress that Buhl was candid about her participation as an investigative journalist acting in her news gathering capacity working with the sources that

she would not reveal - all of which would tend to exonerate her. The Affidavit states in part that Buhl denied being Tasha Moore, but does not state that Buhl explained that she knows and knew who created the fictitious Facebook profile and the reasons the individual, working with a group created Gossip Girl. While Buhl admitted her involvement in sending the an anonymous letter to Paul Brody, she clearly explained to New Canaan Police officer Dan Gulino that she did not post the Facebook information. Her explanation that she was an investigative reporter working on a story about adult-sponsored underage drinking in New Canaan, and that she knew who did create the profile should have been verified, investigated, validated. Her stating that she knew the identity of the persons responsible for posting Meagan Brodys personal notes should not have been ignored, especially when Buhl concluded and emphasized, that she would not reveal her sources. Instead of compelling Buhl to reveal her source via appropriate statutorily mandated methods, the police move forward with the arrest without regard for procedure when dealing with press. The New Canaan police assumed and jumped to the conclusion that Buhl was the perpetrator of some obscure crime and completely disregarded her insistence that she was did not post the allegedly offense material and that she would not reveal her source. The New Canaan police intentionally failed to present the balanced and fair portrayal of the facts. The arrest affidavit even goes far enough to make mention of Buhls statement that she was actively investigating a well known and highly publicly scrutinized New Canaan dilemma: the New Canaan Police Departments failure to control and prevent underage drinking occurring at private homes.

That Buhl admitted that she knew who did post the allegedly offensive writings but refused to reveal her source should have changed the course of the police investigation. Or at least expanded it. It absolutely should have been included in the arrest warrant application. New Canaan police omitted this important fact. This blatant omission deprived the judicial authority of the opportunity to follow and apply statutorily mandated procedure - an opportunity to follow the law - and to abide by the protocol as set forth under Section 52-146t of the Connecticut General Statutes, otherwise know as the Shield Law, entitled "Protection From Compelled Disclosure of Information Obtained by New Media. The Connecticut Shield Law requires that, prior to issuing a subpoena or initiating compulsory process against the news media, the party seeking information must first pursue prior negotiations with the news media. The statute is unambiguous: nowhere does is it suggest the police can abbreviate the process and simply arrest the reporter for Interfering with a police officer when the reporter refuses to name the source of information, especially where none of the information is false, privileged, or otherwise protected communication. Instead there is a format required. News Media is defined in relevant part as B) Any person who is or has been an employee, agent or independent contractor of any entity specified in subparagraph (A) of this subdivision and is or has been engaged in gathering, preparing or disseminating information to the public for such entity, or any other person supervising or assisting such person with gathering, preparing or disseminating information. Sergeant Ogrinc chose to selectively rely upon some of Ms. Buhl's statements, including, most egregiously, for the charge of Interfering with a police officer, 53a, 167 by including that Buhl denied posting the Moore Facebook profile and personal notes, (which is not a crime) and

omitting the fact that Buhl was compliant up until the police asked for the names of the parties responsible for the alleged offensive posting. In addition, Sergeant Ogrinc knowingly and intentionally included false statements, such as, that Meagan Brody first arrived at the New Canaan police department accompanied by her father when she first filed her complaint. The truth is that she came unaccompanied by her father, but with several friends. Having her appear with her father tends to make her appear more vulnerable, embarrassed and upset - directly relevant to the alleged crimes, than if she appeared alone or with peers. The omission of important material sets a tone which lead to Buhls arrest. Not including facts, that Meagan Brody went to the police unaccompanied by her parents is important. This fact tends to provide insight into the mindset of the complainant, useful to the defense as to whether the complainant felt harassed or embarrassed. It tends to demonstrate that the complainant was not so embarrassed but rather confident. And that the New Canaan police again avoid proactive measures aimed at curbing underage drinking - such as investigating the truth of the Facebook alleged content, and avoid the opportunity to interact with the parents to inform them of the dangerous alcohol distribution. The cumulative effect of these numerous material misstatements and material omissions, which were essential to the probable cause determination, is to seriously undermine the credibility of the Brodys and the affiant. These false statements and material omissions include at this time: l. The First count of the Information charges Defendant with Harassment in the Second

Degree, General Statutes 53a-183(a)(2), that on or about June 24, 2010, Teri Buhl, did with the intent to harass, annoy or alarm, Paul Brody and Megan Brody, by communication with such

persons by mail and or electronic transmitting a facsimile through a connection with a telephone network/computer network/ and any other form of written communication, in a manner that did cause annoyance or alarm. In support of this charge, Sergeant Ogrinc states in paragraph 17 of the Affidavit that Ms. Buhl is the person responsible for creating and using the fictitious Facebook profile Tasha Moore and that she did photocopy and post personal and sexually explicit journal writings and post them on Facebook. She states and swears to the above based upon none of her personal observations or dealings or even conversations with the Defendant. Most glaringly, she omits that Buhl in addition to denying her involvement in the Facebook postings, told the officer who did investigate the case, Gulino, that she KNEW who did post the notes but would not reveal the identity. This fact would require a different compulsory process, the police would not be able to simply rely upon an arrest.


In paragraph 16 of the Affidavit Buhls is listed as the identity of the subscriber that used

I.P. address between 6/22/10, 0909 hours and 6/25/10, 0707 hours (EST). Omitted is that the account is an open I.P. address wherein anyone can use the address if within range. Consistent with Buhls claim that she was not the author of the Facebook profile is the open I.P. address and Buhls stated knowledge as to the identity of those who did post the notes. This fact cannot be omitted for a fair reading to determine probable cause. Had these facts been included, the judicial authority would have had an opportunity to require that more proof be developed. Judge Huddock would have known the the reporter was triggering the Shield Law and may have order the Defendant to be held in Contempt if she did not comply.

CONCLUSION ln that all the above-referenced materially false statements and material omissions were necessary to an objective determination of probable cause to arrest the Defendant, the Defendant requests an evidentiary hearing on said Motion. The Defendant reserves her right to amend this Motion to include any additional material misstatements and/or omissions in the event they become known to him during the pendency of this case. At said hearing, in light of the intentioned and/or reckless, repeated and substantial false statements and omissions with regard to the Affidavit, which in the aggregate establish a lack of probable cause to arrest the Defendant, the Defendant will seek the dismissal of this case. No similar motion has been filed.

WHEREFORE, the Defendant requests said Motion to Dismiss be granted.


By______________________________ Francis DiScala Jr, Esquire Bachand, DiScala 11 North Main Street South Norwalk, Connecticut 06854 (203) 853-4477 Juris No. 428345

CERTIFICATION This is to certify that a copy of the Defendants foregoing motion has been hand delivered to on May 1, 2012.

________________________________ Francis DiScala Jr, Esquire

ORDER The foregoing motion having been duly presented to/heard by the Court, IT IS HEREBY ORDERED: GRANTED / Denied.

BY ORDER OF THE COURT ________________________________ Judge of the Superior Court ________________________________ Clerk

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