State v. Carroll

• Decision Date: 09 December 1988
• Docket Number: No. 87-152,87-152
• Citation: 131 N.H. 179,552 A.2d 69
• Parties: The STATE of New Hampshire v. Peter CARROLL.
• Court: New Hampshire Supreme Court

Page 69

552 A.2d 69

131 N.H. 179

The STATE of New Hampshire v. Peter CARROLL.

No. 87-152.

Supreme Court of New Hampshire.

Dec. 9, 1988.

Stephen E. Merrill, Atty. Gen. (John S. Davis, Asst. Atty. Gen., on the brief and orally), for the State.

Shaheen, Cappiello, Stein & Gordon P.A., Dover (Judith E. Hotham and Daniel M. Cappiello, orally, on the brief), for defendant.

THAYER, Justice.

The defendant, Peter Carroll, was charged with possession of cocaine with intent to distribute in violation of RSA 318-B:26. The State appeals from an order of the Superior Court (Temple, J.) granting the defendant's motion to suppress evidence seized pursuant to a search warrant issued by a justice of the Dover District Court (Moher, J.). We reverse and remand.

On December 10, 1985, Detective Thomas Stinglen of the Dover Police Department applied for a warrant to search the premises at 860 Central Avenue, Dover, for cocaine, instrumentalities used in the weighing and packaging of cocaine, records representing the sale of drugs, and any monies which may be the proceeds of drug sales. In support of this application, Detective Stinglen executed a detailed affidavit which stated the following facts.

On December 9, 1985, Detective Stinglen received information from a confidential informant that Peter Carroll, of 860 Central Avenue, was a supplier of cocaine. In addition, the informant stated that he would be able to purchase cocaine from Carroll. Detective Stinglen then instructed the informant to make arrangements with Carroll for the purchase of cocaine. Later that day, Detective Stinglen received a call from the informant, who told him that Carroll would be receiving an unknown quantity of cocaine on that day, that Carroll had agreed to sell a certain quantity of cocaine to the informant, and that Carroll would call the informant to advise him when the cocaine became available.

Upon receipt of this information, Detective Stinglen, together with Detective Brian Miller, began surveillance of the premises at 860 Central Avenue. Detectives Stinglen and Miller observed several vehicles parked in the driveway of the residence. Two of these vehicles subsequently left the driveway and proceeded north on Central Avenue after something had been placed in the trunk of one of the vehicles. A check of the registration of these vehicles revealed that neither vehicle was registered to Peter Carroll.

Thirty-nine minutes later, Detective Stinglen received another call from the informant in which the informant reported that he had just received a call from Carroll, who had stated that he would be getting the "white" shortly, and that Carroll would call the informant when the "white" became available. Detective Stinglen understood "white" to be a common street term for cocaine. Fifteen minutes later, Detectives Stinglen and Miller observed a car arrive at 860 Central Avenue, the car appearing to be the other car which had previously been parked in the driveway. The operator exited the vehicle and carried a large brown paper bag into the residence at 860 Central Avenue.

Six minutes later, Detective Stinglen received a call from the informant stating that Carroll had contacted him and advised him that the cocaine was available. Nine minutes later, Detective Stinglen met with the informant and conducted a search of his person. Detective Stinglen placed all of the informant's personal belongings in a bag, which Stinglen retained, and provided the informant with money to make the drug purchase. Detective Stinglen then drove the informant to the area of 860 Central Avenue and personally observed him walk, without diversion, directly into the residence at 860 Central Avenue. During the time the informant was in the house, no one entered or exited the residence. The informant emerged from the residence seven minutes later and returned to the area where Detective Stinglen was located.

The informant handed Detective Stinglen the remainder of the money which had not been used for the purchase, along with a plastic bag containing a white powdery substance which Detective Stinglen determined to be consistent with cocaine. The informant stated that he had received the substance from Peter Carroll. Detective Stinglen then searched the informant to ensure that there was no additional contraband on the informant's person and returned his personal belongings to him.

In addition to this information, the affidavit also alleged that Detective Stinglen had received information from Detective Supervisor William Fenniman of the Dover Police Department. Detective Fenniman told Detective Stinglen that on November 20, 1985, another confidential informant had informed Detective Fenniman that Peter Carroll was selling cocaine in ounce quantities. Detective Fenniman's informant also stated that Peter Carroll lived in a house located just south of the BP station on the "miracle mile," Central Avenue in Dover. Detective Stinglen averred that this house was 860 Central Avenue. Detective Fenniman's informant was known to have given information in the past which had resulted in over twenty indictments.

Upon receipt of the application and supporting affidavit alleging the facts set forth above, and after consideration of said materials, Special Justice Moher of the Dover District Court found that probable cause existed to believe that cocaine would be found at 860 Central Avenue. Justice Moher then issued the search warrant. The search of 860 Central Avenue produced evidence which led to the defendant's indictment for possession of cocaine with the intent to distribute.

The defendant moved to suppress the evidence seized pursuant to the warrant on the basis that the warrant was invalid because the supporting affidavit was insufficient to support a finding of probable cause and, therefore, that the search violated his rights under part I, article 19 of the New Hampshire Constitution and under the fourth amendment to the United States Constitution, made applicable to the States through the fourteenth amendment. The defendant alleged in his motion that the confidential informant was not a reliable source, and since the affidavit lacked information from which to ascertain the informant's reliability, it could not support a finding of probable cause. In addition, the defendant alleged that the warrant contained material misrepresentations which were recklessly or intentionally made. In support of this contention, the defendant produced affidavits from two friends stating that he was not at 860 Central Avenue on the evening of December 9, 1985, between the hours of 6:30 p.m. and midnight, when the alleged sale had taken place.

The Superior Court (Temple, J.) granted the defendant's motion to suppress. The court held that Detective Stinglen's affidavit failed to establish that the informant was reliable or that the informant had a basis of knowledge for his statements concerning the defendant's activities. In addition, the trial court found that in light of the defendant's production of affidavits which "strongly suggest[ed]" that the police affidavit consisted largely of misrepresentations, and the State's failure to seek corroboration of the informant's statements, the State failed to meet its burden of demonstrating that the misrepresentations were neither intentional nor reckless.

The State raises two issues in this appeal: whether the trial court erred in finding Detective Stinglen's affidavit facially insufficient to establish probable cause to issue a search warrant; and whether the court erred in finding that the affidavit contained material misrepresentations which were intentionally or recklessly made. The State argues that the search warrant is valid under the current fourth amendment probable cause standard, the "totality-of-the-circumstances" test articulated in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). The State further urges this court to adopt the similar test proposed by Chief Justice Brock in State v. Bradberry, 129 N.H. 68, 522 A.2d 1380 (1986) as the appropriate standard under part I, article 19 of the New Hampshire Constitution by which to evaluate the validity of search warrants based upon information from confidential informants. The defendant, on the other hand, urges this court to adopt the four-part test of State v. Mandravelis, 114 N.H. 634, 325 A.2d 794 (1974) as the appropriate State constitutional standard.

When analyzing the constitutionality of the search warrant before us, we will first address the State constitutional issues independently of federal constitutional considerations. See State v. Ball, 124 N.H. 226, 231, 471 A.2d 347, 350 (1983); cf. State v. Doe, 115 N.H. 682, 685, 371 A.2d 167, 169 (1975). In our analysis of the provisions of the New Hampshire Constitution, we make reference to decisions of the United States Supreme Court and other jurisdictions only for the purpose of aiding our State constitutional analysis. See Michigan v. Long, 463 U.S. 1032, 1041, 103 S.Ct. 3469, 3476, 77 L.Ed.2d 1201 (1983). Federal constitutional issues will then be addressed only to the extent that the United States Constitution provides greater protection than the New Hampshire Constitution. State v. Ball, supra, 124 N.H. at 232, 471 A.2d at 351. In this case, we must first address the issue of the proper standard to be applied in determining whether probable cause exists under our State Constitution.

Part I, article 19 of the New Hampshire Constitution provides that search warrants shall issue only upon "cause or foundation," supported by oath or affirmation. We have long interpreted this provision to require that warrants be issued only upon a determination of probable cause. State v. Fields, 119 N.H. 249, 252, 400 A.2d 1175, 1177 (1979); see also State v. Spero, 117 N.H. 199, 204, 371 A.2d 1155, 1158 (1977).

Probable cause to search exists where a "[person] of ordinary caution would be justified in...