N.H. Arson Suspect`s Counsel Claims Client`s Rights were Violated
July 16--DOVER -- Attorneys for Gregory Potter, the former Peterborough on-call firefighter and EMT who allegedly set fire to five occupied structures in Durham in 2013, are claiming his constitutional rights were violated during the investigation against him.
They are asking that incriminating statements Potter made to Deputy Chief Keith Rodenhauser of the Peterborough Fire Department and Durham Police Sgt. Franklin Daly be suppressed from evidence at his upcoming trial because Potter's requests for an attorney were not granted during their interrogations of him.
Rodenhauser also works as an investigator and law enforcement officer for the state Fire Marshal's Office. He and Daly elicited incriminating statements from Potter on Feb. 13 and May 2 of 2013.
Potter's attorneys also allege his constitutional rights against unreasonable searches and seizures were violated because the state illegally obtained evidence from his cell phone. They claim there was no probable cause linking criminal activity and Potter's phone. In addition, the affidavit used to obtain a search warrant for it was overbroad, they said.
In two motions filed this spring, attorney Neil B. Nicholson of McCandless & Nicholson in Concord, laid out his case.
Nicholson said that after Potter became a suspect in the rash of fires that were intentionally started on Feb. 1 and 2 of 2013, Daly decided to confront him at the fire station in Peterborough. Daly was accompanied on Feb. 13 by District Fire Chief John Southwell of the New Hampshire Office of the State Fire Marshal.
Potter was working a 12-hour shift that day. Despite Potter's insistence that he be able to consult with counsel and control the time and manner of an interview, the interrogation began at 12:15 p.m.
Potter, who was 22 at the time of his arrest, told Daly that he wanted to be a firefighter for the next 30 years. Daly told Potter that Rodenhauser was very fond of him.
"Your fire chief thinks the world of you. He really does. He really does," Daly said. "Your fire chief is very loyal to you."
When Potter refused to answer questions about the fires, Rodenhauser was sent in to talk with Potter. Rodenhauser reviewed the Miranda form with Potter, and after Potter signed it, he made incriminating statements. Nicholson said that during another interrogation on May 2, Daly drove to Potter's apartment at 69 Concord St. in Peterborough. Potter said he wanted to speak with a lawyer. Daly and another sergeant from the Durham Police Department said they "would no longer be questioning him."
Potter said he would talk about "hypothetical" situations. It was at that time Potter also made a series of incriminating statements after he waived his Miranda rights, Nicholson said.
"Potter was subjected to custodial interrogation without the benefit of Miranda warnings, the questioning occurred after he had invoked his right to counsel both before and during the interrogation, and his statements were not voluntarily given," Nicholson wrote. "During the final interrogation, the police ignored Potter's prior invocations to counsel and his additional invocation for counsel."
Nicholson said evidence obtained from the cell phone Potter used to take pictures of at least one of the fires with should be suppressed because the warrant was not supported by sufficient probable cause and the "blanket search authorized here was unconstitutionally overbroad."
"Officers must be clear as to what it is they are seeking," Nicholson wrote.
In the state's objection to Nicholson's motions, Deputy County Attorney Alysia Cassotis said Potter had no objection to meeting with Daly and Southwell on Feb. 13, 2013.
"Subsequently, the police applied for and were granted a search warrant for the Defendant's phone, and located deleted photos of one of the fires," Cassotis wrote. "When confronted with the photos on the phone, the Defendant said he wanted to speak with a lawyer."
Cassotis said Potter signed a form, agreeing to waive his Miranda rights and has now moved to suppress the statements he made to law enforcement.
"The State objects," Cassotis wrote. "The totality of the circumstances did not render the Defendant's statements involuntary."
Cassotis argued it is reasonable to infer that someone who attempted to start fires at multiple occupied locations would want to watch and/or document their success.
"The Circuit Court judge had a sufficient basis for concluding that there was a fair probability that evidence of arson would be found on the Defendant's cell phone," Cassotis wrote.
Judge Stephen Morrison of the Dover District Court approved of the warrants for Daly on Feb. 25, 2013.
A hearing on Nicholson's motions to suppress will be held on Sept. 26. Potter's trial, which is expected to last between three and four weeks, is set to start with jury selection on Jan. 5, 2015.
Copyright 2014 - Foster's Daily Democrat, Dover, N.H.
