Motion filed in arson case
Constitutional rights questioned
Former Peterborough firefighter Gregory Potter, who is accused of setting a series of fires at five residential buildings in Durham in the early morning hours of Feb. 2, 2013, while people were inside the apartments, is scheduled to stand trial early next year on five counts of arson and one count of falsifying evidence.
But first, a Strafford County Superior Court judge will have to rule on motions to suppress evidence taken from Potter’s cell phone and to suppress statements Potter made to investigators during the investigation into the fires. Potter’s attorney, Neil Nicholson of the Concord firm McCandless and Nicholson, contends in documents filed in court recently that Potter’s right to legal counsel and right against self-incrimination were violated, and that evidence was collected from his cell phone in violation of his constitutional rights against unreasonable search and seizure.
In court documents obtained by Foster’s Daily Democrat and shared with the Ledger-Transcript, Nicholson wrote that Potter had been interrogated by police on three occasions and had requested an attorney prior to the second interrogation by Sgt. Frank Daly of the Durham Police Department and District Fire Chief John Southwell of the state Fire Marshall’s Office. According to the motion, Potter had told Daly on two occasions that he wanted to consult with an attorney before being interviewed. But on Feb. 13, 2013, Daly and Southwell spoke to Potter while he was on duty at the Peterborough fire station, in the midst of a 12-hour shift.
Potter initially agreed to be questioned, Nicholson wrote, but as the conversation went on, he said he wanted to have an attorney present. At one point, according to the transcript of the conversation, Daly asked Potter, “But at this point, you don’t want to cooperate with the investigation anymore, right?” Potter responded, “That’s incorrect. I do want to cooperate with your investigation. I just don’t think I should talk to you without a lawyer present.”
Daly replied, “Okay,” and then went on to tell Potter he hadn’t been labeled as a suspect but if he was, it could jeopardize his future chances of employment as a firefighter or ambulance attendant.
“Do you realize this is gonna affect you forever?” Daly said, according to the transcript. “Okay, you’re only 21, Greg. Okay. And you realize now we also have an obligation to tell your Fire Chief?”
Later in the interview, Daly had Keith Rodenhiser, an investigator with the State Fire Marshal’s Office who is also a deputy chief in the Peterborough Fire Department, speak to Potter. Rodenhiser asked Potter if he had asked to speak to an attorney. Potter said he had and Rodenhiser asked, “Do you want me to read you your rights? So you understand them?”
“Sure,” Potter said. “Wait, I’m not under arrest, am I?”
“You’re not under arrest,” Rodenhiser said. “No. But I want to make sure you understand your rights.”
Rodenhiser then reviewed a Miranda waiver form with Potter, according to the motion, and Potter signed it. Nicholson wrote that Potter then made “what the state would allege are incriminating statements” to Rodenhiser.
Potter was interviewed again on May 2, 2013, by Daly and another Durham police officer on the back deck of Potter’s apartment in Peterborough. During that interview, according to the motion, Potter told Daly he wanted to talk to a lawyer before speaking to them. In an affidavit, Daly stated that they told Potter they would no longer be questioning him.
“Potter then told us he would be interested in talking about possible consequences and ‘hypothetical’ situations. I explained to Potter that because he had mentioned his desire to speak to an attorney, I would need to read him his Miranda warnings before we could discuss anything further. Potter said he would like to formally waive his rights. I returned to my cruiser and obtained a Miranda warnings form. I read the form to Potter and he signed the form, agreeing to waive his rights.”
After that, Potter then allegedly gave other incriminating statements, Nicholson wrote.
In his motion, Nicholson wrote that Potter’s statements from the two interviews should not be allowed as evidence in his trial.
“During the second interrogation, 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. During the final interrogation, the police ignored Potter’s prior invocations of counsel and his additional invocation for counsel.”
Nicholson wrote that Potter could have been intimidated by the location of the interview at the fire station. “Instead of waiting until [Potter] was relieved from duty and speaking with him after 6 p.m., Daly decided to press his physical advantage in trying to elicit statements from Potter by trying to get him to speak at the fire station while in the same building as his superior officers and unable to leave.”
Nicholson also objected to the approach Daly took. “Sgt. Daly’s tactic of ‘either talk to us or we will destroy your fire career’ with Potter, along with other factors that show lack of voluntariness...should cause the court to find Potter’s statements involuntary,” he wrote.
In a second motion, Nicholson said evidence gathered from Potter’s cell phone, which Daly had obtained after getting a search warrant, should be suppressed. According to an affidavit filed by Daly in 7th Circuit Court, Dover, after Potter’s arrest, Potter’s phone had six photos taken on Feb. 2, 2013, of one of the Durham fires.
Nicholson wrote that the seizure of the cell phone violated Potter’s constitutional rights against unreasonable search and seizure.
“The blanket search authorization here was unconstitutionally overbroad and lacking in the particularity required by the state and federal constitutions,” Nicholson wrote. “Officers must be clear as to what it is they are seeking on the computer and conduct the search in ways that avoids searching files of types not on the warrant.”
In an objection to Nicholson’s motion to suppress statements that Potter made to investigators, Deputy County Attorney Alysia Cassotis wrote that Potter had not objected to meeting with police officers at either interview. He requested an attorney, Cassotis wrote, after being shown the photos found on his cell phone, and when he did, Daly explained about Miranda warnings, read him his rights, and had him sign the form to waive his rights.
Cassotis wrote that Potter was not in custody at the time of the interviews, that he was never told that he was not free to leave, and he was not threatened with repercussions if he did leave. “The totality of the circumstances did not render the defendant’s statement involuntary,” Cassotis wrote.
Regarding the motion to suppress the cell phone photos, Cassotis wrote that the warrant to search Potter’s phone was justifiable.
“It is reasonable to infer,” she wrote, “that someone who attempted to start fires at multiple occupied residences would want to watch and/or document his or her 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.”
A hearing on the motions to suppress will be held on Sept. 26 and Potter’s trial is scheduled to start in January.