State v. Comeau

• Decision Date: 28 June 1974
• Docket Number: No. 6850,6850
• Citation: State v. Comeau, 321 A.2d 590, 114 N.H. 431 (N.H. 1974)
• Parties: STATE of New Hampshire v. Richard W. COMEAU.
• Court: New Hampshire Supreme Court

Page 590

321 A.2d 590

114 N.H. 431

STATE of New Hampshire v.Richard W. COMEAU.

No. 6850.

Supreme Court of New Hampshire.

June 28, 1974.

Warren B. Rudman, Atty. Gen., and Thomas D. Rath, Asst. Atty. Gen., for the State.

Stebbins & Bradley and Daniel J. Connolly, Hanover, for defendant.

KENISON, Chief Justice.

The primary issue in this case is whether a police officer's affidavit on which a search warrant was issued contained sufficient facts to establish the constitutional requirement of probable cause.A further issue is whether the State met its burden of proof that the defendant had custody of certain marijuana plants in violation of RSA 318-B:26 I(b)(2)(Supp.1972)(Laws 1969, 421:1).A criminal complaint was filed against the defendant alleging that he had possession of a controlled drug on August 27, 1973 in Plymouth, New Hampshire.Upon arraignment the defendant entered a plea of not guilty and waived a trial by jury.At a subsequent arraignment, the defendant entered a plea of guilty in exchange for a recommendation by the prosecutor as to a sentence.The Court(Perkins, J.), however, indicated to the defendant that it would not follow the recommendation and permitted him to withdraw his plea of guilty.In advance of trial, the defendant filed a motion to suppress evidence seized by the police pursuant to a search warrant.After a hearing the court denied the motion subject to the defendant's exception.A jury-waived trial was held, and the defendant was found guilty.The defendant's exception to the denial of his motion to suppress and all other exceptions arising during the course of trial were reserved and transferred.

The record reveals that the defendant lived on 7 Warren Street in Plymouth, New Hampshare in a builling which contained several apartments-two above the street level and one below.The former were leased respectively to the defendant's mother and his brother.The latter was leased to the defendant's girlfriend Ellen Murdough.There was evidence that the defendant spent time in the apartments of both his mother and Miss Murdough.The marijuana plants were discovered by the police pursuant to a search warrant in a room adjacent to the rear of Miss Murdough's apartment on the lower level.This room could not be entered directly from her apartment.Rather, access could only be obtained either from a padlocked door leading into the room from a common hallway which opened on Miss Murdough's apartment and on Mrs. Comeau's apartment (through the means of a stairway) or from a door leading into the room from a shed in the rear of the building.

The affidavit on which the search warrant was issued contained information offered to the Plymouth police chief on August 27, 1973 by an undisclosed informant and stated 'I have information based on a reliable informant, who has in the past given information which led to the arrest and conviction of five persons for burgulary (sic) within the past two years, who has seen thirteen (13) or fourteen (14) marijuana plants about 8 ft. tall hanging to dry in the apartment of Richard Comeau located at 7 Warren St., Plymouth, N.H.This apartment is below street level and has a set of stairs leading from the street down to the outside porch.The apartment consists of a bath, a bedroom, a living room, kitchen and another room which is off hallway which (le)ads from the kitchen.'The police chief presented this affidavit to Murphy, J., and provided additional oral testimony.

As a preliminary matter, the defendant contends the affidavit was constitutionally defective because although it specified the informer's success in providing information relative to burglaries, it failed to establish his reliability in reference to drug offenses.We know of no constitutional mandate requiring an informer to be a specialist in reporting specific types of crime.An informer's reliability depends primarily on his proven ability to report facts in an accurate and timely fashion.

The defendant's primary argument is that the affidavit contained insufficient facts to support the informant's conclusion that the plants in the adjacent room at 7Warren Street were marijuana plants.He points out that the affidavit merely states that the informant saw 'thirteen (13) of fourteen (14) marijuana plants about 8 ft. tall hanging to dry in the apartment.'He also draws attention to the cross-examination of the police chief in which it was revealed that he had not pressed the informant for a more detailed description of the plants.The defendant claims that the police chief's failure to discover or specify the underlying facts prevented the magistrate from making an independent judgment as to the existence of probable cause and thus violates N.H. Const. pt. I, art. 19 and the standards set forth in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723(1964)andSpinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637(1969).

We are not persuaded by this argument.The alleged marijuana plants were described by the informer as being eight feet tall and hanging to dry.It is common knowledge to persons involved with the prevention of drugs that a mature marijuana plant will grow to this height and that the drying of the marijuana plant is a necessary step in the production of certain cannabis-type drugs.RSA 318-B:1 IV (Supp.1973).The magistrate could have properly decided from this evidence that there was a substantial likelihood that marijuana plants were being kept in the building at 7Warren Street.United States v. Harris, 403 U.S. 573, 577-580, 91 S.Ct. 2075, 29 L.Ed.2d 723(1971);State v. Nickerson, 114 N.H. --, 314 A.2d 648, 650(1974);State v. Moreau, 113 N.H. 303, 307, 306 A.2d 764, 766(1973);seeJones v. United States, 362 U.S. 257, 270, 80 S.Ct. 725, 4 L.Ed.2d 697(1960).The defendant suggests that the alleged marijuana plants could have been corn or sunflower plants, would commonly grow to eight feet in height, and urges that the possibility of misidentification vitiates the probable cause.An application for a search warrant is not required to contain facts sufficient to prove beyond a reasonable doubt that contraband will be found in a particular location.It is enough to establish a strong probability that the facts alleged are true.United States v. Ventresca, 380 U.S. 102, 107-109, 85 S.Ct. 741, 13 L.Ed.2d 684(1965);2 H. Underhill, Criminal...