State v. Canelo

• Citation: 139 N.H. 376,653 A.2d 1097
• Decision Date: 03 February 1995
• Docket Number: No. 93-329,93-329
• Parties: , 63 USLW 2551 The STATE of New Hampshire v. Rafael CANELO a/k/a Rafael Canelo Valdez.
• Court: Supreme Court of New Hampshire

Page 1097

653 A.2d 1097

139 N.H. 376, 63 USLW 2551

The STATE of New Hampshire v. Rafael CANELO a/k/a Rafael Canelo Valdez.

No. 93-329.

Supreme Court of New Hampshire.

Feb. 3, 1995.

Jeffrey R. Howard, Atty. Gen. (Brian R. Graf, Asst. Atty. Gen., on the brief and orally), for the State.

Joachim H. Barth, Public Defender, Laconia, by brief and orally, for defendant.

BROCK, Chief Justice.

On February 21, 1992, a justice of the Superior Court (Dalianis, J.) issued a warrant authorizing the police to search the defendant's apartment and his person. Based on evidence seized pursuant to the search, the defendant was charged with possession of cocaine with intent to distribute in violation of RSA 318-B:2 (Supp.1993). Following a hearing, the Superior Court (Murphy, J.) granted the defendant's motion to suppress, finding that the search was based on a warrant issued in violation of part I, article 19 of the New Hampshire Constitution. We affirm.

The State appeals, raising two issues for our consideration: first, whether the superior court erred in finding that the search of the defendant's residence based upon an anticipatory search warrant violated part I, article 19 of the State Constitution; second, assuming arguendo that the anticipatory search warrant in this case was impermissible, whether the superior court erred in suppressing the evidence seized where the police acted in good faith in obtaining and executing the warrant.

Subsequent to briefing and oral argument before this court, the State was notified that the defendant died on March 2, 1994. The State filed a motion requesting that we decide the issues raised in this appeal even though the defendant's death would appear to render them moot. "[T]his court is not bound by rigid rules in determining whether an appeal is moot; rather, the question of mootness is a matter of convenience and discretion." Moody v. Cunningham, 127 N.H. 550, 553, 503 A.2d 819, 821 (1986). Because the issues in this case are "significant constitutional issues" of public interest and are likely to occur again, resolution of them would avoid future litigation. Id. We determine, therefore, that an opinion would serve a useful purpose and grant the State's motion. Cf. Timberlane Regional Educ. Ass'n v. State, 115 N.H. 77, 79, 333 A.2d 713, 714 (1975).

I. Anticipatory Search Warrant

On February 21, 1992, Detective Bruce Hansen of the Nashua Police Department applied for a warrant to search the defendant's home at 20 Kessler Farm Drive, Apartment 709, in Nashua, and the person of the defendant, for evidence of drug dealing in violation of RSA 318-B:2. Detective Hansen's affidavit in support of the warrant application set forth, in part, the following facts:

VI. In October 1991, a second independent, confidential, reliable individual, who has furnished information to the Nashua Police Department which has led to the arrest of narcotics traffickers, informed the Nashua Police Department that an individual within Building 20 Kessler Farm Drive, in the Somerset Apartment Complex, this apartment being located on the second floor, whose name is Rafael, is a cocaine dealer dealing in weights including kilograms.

....

X. In February 1992, the second confidential individual mentioned in this affidavit who has supplied reliable information to the Nashua Police Department which has led to the arrest of narcotics traffickers, responded to 20 Kessler Farm Drive, Apartment 709, and while within that apartment made contact with Rafael Canelo-Valdez and while within that apartment purchased a quantity of the narcotic drug, cocaine. The suspect substance was immediately relinquished to the members of the Nashua Police Department who conducted a field test which showed a positive reaction to the presence of the illicit, narcotic drug, cocaine. Listed informant viewed the photograph which had been supplied by the Lawrence Police Department of Rafael Canelo-Valdez and positively identified this individual as one in [sic] the same who is residing at 20 Kessler Farm Drive, Apartment 709, as the same individual dispensing quantities of cocaine from that location.

XI. On 21 February 1992, the second confidential individual mentioned in this affidavit who has supplied reliable information to the Nashua Police Department which has led to the arrest of narcotic traffickers responded to 20 Kessler Farm Drive, Apartment 709, and while within that apartment observed a quantity of the narcotic drug, cocaine.

Detective Hansen informed the magistrate, however, that the events in paragraph XI had not yet occurred but were expected to take place later that same evening. The magistrate then amended paragraph XI by striking the word "observed" and adding "did as was expected to [observe]." Detective Hansen was instructed by the magistrate that the warrant could only be executed if the informant observed cocaine as described in paragraph XI. Thereafter, the informant advised the police that he had observed cocaine in the defendant's apartment, and the search warrant was executed.

The superior court granted the defendant's motion to suppress evidence seized during the search, ruling that the issuance of the warrant violated part I, article 19 of the State Constitution. The court concluded that "[u]nder the specific facts of this case, it is found and ruled that the exclusionary rule mandates the suppression of the evidence obtained during the search which was based upon a 'self-executing search warrant.' The detached magistrate has inappropriately delegated [her] constitutional function to the prosecuting authority."

The State argues on appeal that anticipatory search warrants should be upheld as valid generally and that the warrant in the instant case passes constitutional muster. The State contends that because a neutral and detached magistrate made the determination that probable cause to search the defendant's residence would exist after the occurrence of the contingent event and because there is no question that the affidavit established probable cause once the contingent event occurred, there was no violation of the defendant's rights under part I, article 19. The defendant takes the position that under the facts of this case the search warrant failed to comply with the State Constitution because there was no probable cause at the time the warrant issued to believe that the future event would occur. While we agree with the State that anticipatory search warrants do not categorically violate part I, article 19, we agree with the defendant that this warrant was unconstitutional.

Part I, article 19 provides:

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 ... are contrary to this right, if the cause or foundation of them be not previously supported by oath or affirmation; and if the order ... to make search in suspected places ... or to seize their property, be not accompanied with a special designation of the persons or objects of search ... or seizure; and no warrant ought to be issued; but in cases, and with the formalities, prescribed by law.

We have interpreted part I, article 19 as "requiring an objective determination of probable cause by a neutral and detached magistrate." State v. Kellenbeck, 124 N.H. 760, 764, 474 A.2d 1388, 1391 (1984). Probable cause to search exists if a person "of ordinary caution would be justified in believing that what is sought will be found in the place to be searched ... and that what is sought, if not contraband or fruits or implements of a crime, will aid in a particular apprehension or conviction." State v. Jaroma, 128 N.H. 423, 428, 514 A.2d 1274, 1277 (1986) (quotations omitted). The police must establish at the time they apply for a search warrant that there exists "a substantial likelihood of finding the items sought; they need not establish with certainty, or even beyond a reasonable doubt, that the search will lead to the desired result." State v. Decoteau, 137 N.H. 106, 111, 623 A.2d 1338, 1341 (1993) (quotation omitted). In determining whether probable cause exists, the magistrate considers the search warrant application, supporting affidavit, and any oral statements made under oath by the applicant. See RSA 595-A:4 (1986); State v. Doe, 115 N.H. 682, 684, 371 A.2d 167, 168 (1975).

An anticipatory search warrant is "a warrant that has been issued before the necessary events have occurred which will allow a constitutional search of the premises; if those events do not transpire, the warrant is void." United States v. Garcia, 882 F.2d 699, 702 (2d Cir.), cert. denied, 493 U.S. 943, 110 S.Ct. 348, 107 L.Ed.2d 336 (1989). Anticipatory warrants raise the issue whether law enforcement officials may obtain from a magistrate a warrant conditioned upon a future event that, if fulfilled, would allow a search of the premises and persons identified in the warrant.

There is no express language in part I, article 19 that would prohibit the issuance of a warrant to search at a future time. In this respect we disagree with the reasoning of the superior court that the constitutional requirement that probable cause be "previously supported by oath or affirmation" prohibits the issuance of an anticipatory search warrant. This language, rather, precludes any warrant from being issued if the application is not adjoined by sworn statements setting forth facts to support the probable cause determination.

Several federal courts have upheld the use of anticipatory search warrants under the fourth amendment to the United States Constitution, primarily in cases involving the controlled delivery of contraband. See, e.g., United States v. Tagbering, 985 F.2d 946 (8th Cir.1993); United States v. Wylie, 919 F.2d 969 (5th Cir.1990); United States v. Goodwin, 854 F.2d 33 (4th Cir.1988). The United States Court of Appeals for the First...