State v. Caicedo
| Decision Date | 06 December 1991 |
| Docket Number | No. 90-549,90-549 |
| Citation | 135 N.H. 122,599 A.2d 895 |
| Parties | The STATE of New Hampshire v. Raul A. CAICEDO. |
| Court | New Hampshire Supreme Court |
John P. Arnold, Atty. Gen. (David S. Peck, Senior Asst. Atty. Gen., on the brief and orally), for the State.
Robert R. Renfro, Portsmouth, and Frank G. Kelleher and Rosemary Curran Scapicchio, Boston, Mass. (Robert R. Renfro, Rosemary Curran Scapicchio and Frank G. Kelleher on the brief, and Rosemary Curran Scapicchio orally), for defendant.
The defendant, Raul Caicedo, was indicted for possession of cocaine in violation of RSA 318-B:2 (Supp.1990). The State appeals under RSA 606:10, II, from an order of the Superior Court (Groff, J.), granting the defendant's motion to suppress evidence seized pursuant to a search warrant issued by Judge Marshall of the Salem District Court. We reverse and remand.
On December 21, 1989, Trooper Terrence Kinneen of the New Hampshire State Police applied for a warrant to search the premises at 5 Chagnon Lane in Pelham, and the curtilage thereof, for cocaine and other contraband. In support of his application, Trooper Kinneen executed an affidavit which stated the following facts.
During the week of November 29, 1989, Trooper Kinneen met with a confidential informant, who stated that the defendant sold cocaine at 5 Chagnon Lane and that the informant could make "controlled buys" at that address. Trooper Kinneen arranged a "controlled buy," in the course of which he searched the informant and the informant's vehicle for drugs, gave the informant $200 of serialized currency, and followed the informant to 5 Chagnon Lane. Trooper Kinneen watched the informant park the car in the driveway of 5 Chagnon Lane, exit the vehicle, and walk toward the residence. The affidavit then states that, "After [the informant] left the residence ... [Trooper Kinneen] followed [the informant] back to a predetermined meeting spot." The informant then gave Trooper Kinneen 3.53 grams of cocaine.
Once again, on December 20, 1989, Trooper Kinneen searched the informant and the informant's vehicle, gave the informant $200 of serialized currency, followed the informant to 5 Chagnon Lane, and watched the informant pull into the driveway. Again, Officer Kinneen stated in the affidavit that, "After [the informant] left the residence [Trooper Kinneen] followed [the informant] back to a predetermined meeting spot." The informant then gave Trooper Kinneen more cocaine.
In addition to the two controlled buys, the affidavit describes an incident on December 6, 1989, in which Trooper Kinneen and a State agent were introduced to the defendant by the informant. The defendant examined weapons which the undercover officers were offering for sale. The defendant indicated that he desired to purchase a 9mm pistol in exchange for one-half ounce of cocaine.
Based on the above information in the affidavit, the issuing magistrate found that probable cause existed to believe that contraband would be found at 5 Chagnon Lane and issued the search warrant. When the police executed the search warrant, they discovered cocaine in two cans, partially buried, in the ground next to the house. This evidence led to the defendant's indictment for possession of cocaine.
The defendant moved to suppress the evidence seized, on the basis that the warrant was invalid because the supporting affidavit failed to establish probable cause and that the search, therefore, violated his rights under part I, article 19 of the New Hampshire Constitution and under the fourth and fourteenth amendments to the United States Constitution. The defendant argued in his motion to suppress that the affidavit did not set forth information that cocaine or other contraband was stored at 5 Chagnon Lane, nor did it allege that the controlled buy was from the defendant; therefore, the affidavit did not establish probable cause to believe that drugs could be found at 5 Chagnon Lane. The defendant also asserted that the search of the yard was outside the scope of the warrant, because the warrant did not specifically authorize a search of the curtilage.
The superior court granted the defendant's motion to suppress. At the outset, the court held that the warrant authorized the search of the area surrounding the house because a warrant authorizing the search of premises identified by street number includes the curtilage of that premises. See United States v. Griffin, 827 F.2d 1108, 1114 (7th Cir.1987), cert. denied, 485 U.S. 909, 108 S.Ct. 1085, 99 L.Ed.2d 243 (1988). The court then found that the "confidential informant was never seen entering the premises, nor was the defendant seen at the premises" and that Trooper Kinneen's affidavit failed to establish that the informant was credible or reliable and completely lacked corroborating evidence. The State then made a motion to reconsider, which was denied.
The State raises two issues in this appeal: (1) whether the court's finding that the informant was never seen entering the premises at 5 Chagnon Lane was clearly erroneous, and (2) whether the court erred in finding no probable cause to search 5 Chagnon Lane.
We begin by considering whether the court erred in determining that the informant was not seen entering 5 Chagnon Lane. In his affidavit, in describing the first "controlled buy," Trooper Kinneen stated that he followed the informant to 5 Chagnon Lane and, Trooper Kinneen's affidavit, in describing the second "controlled buy," states that, While there is some ambiguity in Trooper Kinneen's affidavit as to whether he actually saw the informant enter 5 Chagnon Lane, the affidavit as a whole supports the magistrate's finding that the informant did in fact enter 5 Chagnon Lane. This court has often stated the rule that "[r]eviewing courts should pay great deference to a magistrate's determination of probable cause and should not invalidate a warrant by interpreting the evidence...
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...confuse the need for probable cause to search a premises with the need for probable cause to arrest the defendant. State v. Caicedo, 135 N.H. 122, 599 A.2d 895, 897 (1991). In United States v. Melvin, 596 F.2d 492, 495 (1st Cir.), cert. denied, 444 U.S. 837, 100 S.Ct. 73, 62 L.Ed.2d 48 (197......
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...Turner v. State, 826 A.2d 289 (Del.2003)(similar); State v. Toler, 246 Kan. 269, 787 P.2d 711 (1990)(similar); State v. Caicedo, 135 N.H. 122, 599 A.2d 895 (1991)(similar); State v. Frohlich, 506 N.W.2d 729 (N.D.1993)(similar); State v. Lodermeier, 481 N.W.2d 614 Therefore, we conclude the ......
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