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UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

UNITED STATES OF AMERICA

v. Cr. No. 07-189-01-GZS

DANIEL RILEY

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 Marshalls

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 Governments 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.

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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 accuseds 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 accuseds desire and

attempts to act as his own counsel. See, Motion to Dismiss , Continue, or Delay Start of Trial,

document 334 on this Courts 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 Courts 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

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booking, or during the subsequent questioning. During transport, during the booking process,

and during the subsequent custodial interrogation, the Governments 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 Governments 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 accuseds contentions. See, e.g., Exhibit G (ID) (Video of

Marshalls press conference of 6/7/07) on the accuseds 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 Browns 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

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dont, that investigation is continuing, I dont have all the facts and the circumstances. Hes

being questioned as we speak and Ill 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 accuseds 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 thealternative,

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.

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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 24 day of March, 2008.th

/s/ Sven D. Wiberg

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UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

UNITED STATES OF AMERICA

v. Cr. No. 07-189-01-GZS

DANIEL RILEY

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.

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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 amisdemeanor 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

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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. Rileys 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 Governments 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 20 day of March, 2008.th

/s/ Sven D. Wiberg