State v. Hazen
| Decision Date | 09 December 1988 |
| Docket Number | No. 87-289,87-289 |
| Citation | 131 N.H. 196,552 A.2d 77 |
| Parties | The STATE of New Hampshire v. Carroll HAZEN. |
| Court | New Hampshire Supreme Court |
Stephen E. Merrill, Atty. Gen. (Cynthia L. White, on the brief and orally), for the State.
Roussos & Boeckeler, Manchester (John C. Boeckeler, on the brief and orally), for defendant.
The defendant, Carroll Hazen, was found guilty after a jury-waived trial by the Superior Court (Pappagianis, J.) of possession of cocaine, and of possession of cocaine with the intent to distribute, in violation of RSA chapter 318-B. The defendant appeals from an order of the Superior Court (Dalianis, J.) denying his motion to suppress evidence seized from his person and his residence pursuant to search warrants issued by the Concord District Court (Robbins, J.). We affirm the order of the trial court.
On October 3, 1985, State Police Sergeant Gary M. Sloper applied for a warrant to search the attic room shared by Carroll Hazen and John Coyne located in the residence of Elizabeth Coyne, on School Street in Hillsborough, and to search the person of Carroll Hazen, for cocaine, weighing scales and drug paraphernalia, records of drug transactions, monies associated with drug sales, bank safe deposit keys, and firearms. In addition, Sergeant Sloper sought a second warrant to search for similar items in a brown 1974 Mercury Montego registered to Carroll Hazen. In support of these applications, Sergeant Sloper executed two identical affidavits in which he alleged the following facts.
Sergeant Sloper received information from a confidential informant that Carroll Hazen was selling cocaine in the Hillsborough area. The informant told Sergeant Sloper that Hazen commonly sold cocaine from his residence. In addition, the informant reported that Hazen commonly drove to various drinking establishments, where he would sell drugs from his vehicle, and that Hazen commonly stored drugs in his vehicle. The informant stated that Hazen shared a room with John Coyne on the third floor of Coyne's mother's residence on School Street in Hillsborough. The informant described Hazen as being 6'2"'-6'3"' tall, 35-38 years old, of stocky build, and having brown hair. The informant described John Coyne as being approximately 33 years old, short, and chubby. The informant further described Hazen's vehicle as being a brown Mercury with a New Hampshire registration.
Sergeant Sloper had personal knowledge of who Carroll Hazen was and of where Carroll Hazen lived, and was familiar with the vehicle Hazen normally operated. Thus, Sergeant Sloper was able to ascertain that the informant was accurate in his description of Hazen's vehicle and the location of his residence. In addition, Sergeant Sloper ran a check with the New Hampshire Motor Vehicle Department which revealed that Hazen owned a brown 1974 Mercury Montego, New Hampshire registration 984445. The State driver's license records revealed that Hazen was 6'2"' tall, weighed 200 pounds, and had brown hair and hazel eyes, and that his date of birth was 11/23/49.
The informant also told Sergeant Sloper that the informant had purchased cocaine from Carroll Hazen in the past. Although the informant said he had never purchased drugs from John Coyne, the informant alleged that Coyne had knowledge of Hazen's drug activities since Coyne had, on several occasions, told the informant when Hazen had had a supply of cocaine, and had been present when the informant purchased cocaine from Hazen. In addition, Sergeant Sloper checked Hazen's criminal record and discovered that Hazen had been convicted for a violation of the Controlled Drug Act (a felony) in 1975.
Sometime during the week of September 1, 1985, Sergeant Sloper had the informant conduct a "controlled buy" of cocaine in the following manner. Sergeant Sloper met with the informant and searched his person and his vehicle to ensure that the informant was not carrying contraband or cash. Sergeant Sloper then provided the informant with money sufficient to purchase a certain quantity of cocaine and followed the informant to a residence in Hillsborough that Carroll Hazen had been frequenting. After leaving the residence, the informant proceeded directly to Sergeant Sloper's location, where Sergeant Sloper conducted a search of the informant. This search produced a folded paper packet containing a white powdery substance. Sergeant Sloper found that the informant no longer had in his possession the money with which Sergeant Sloper had earlier provided him. The informant told Sergeant Sloper that he had purchased the substance from Carroll Hazen. An analysis performed by the State Police Laboratory revealed that the substance contained cocaine.
Sergeant Sloper had the informant perform a second "controlled buy" during the week of September 29, 1985. Following the same procedures outlined above, Sergeant Sloper met with the informant, searched him, provided him with a certain amount of money, and followed him to the residence of Carroll Hazen and John Coyne, where the informant entered the residence and exited shortly thereafter, proceeding directly to Sergeant Sloper's location. Sergeant Sloper then searched the informant and the informant's vehicle and discovered a folded paper packet containing a white powdery substance. The informant stated that he had purchased the substance from Carroll Hazen. Sergeant Sloper also found that the informant no longer had the money in his possession. Sergeant Sloper field tested the substance and determined it to contain cocaine.
Upon this information, a justice of the Concord District Court (Robbins, J.) subsequently issued both search warrants. The searches executed pursuant to those warrants led to the seizure of cocaine and drug paraphernalia from the defendant's person and residence. The defendant was indicted on one count of possession of cocaine and two counts of possession with the intent to distribute. The defendant subsequently moved to suppress the evidence seized pursuant to the warrants on the grounds that the searches violated part I, article 19 of the New Hampshire Constitution and the fourth amendment to the United States Constitution. The Superior Court (Dalianis, J.), applying the "totality-of-the-circumstances" test established in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), to both the State and federal constitutional claims, denied the defendant's motion to suppress. The trial court found that Sergeant Sloper had "verified where possible the information provided by the confidential informant" and, in addition, had had the confidential informant perform two "controlled buys." The trial court thus concluded that the affidavits in support of the applications for the search warrants provided sufficient information for the judge to have determined that probable cause existed.
The issue with which we are presented today is whether the trial court applied the correct standard in determining whether probable cause existed to support the issuance of the search warrants, based on information provided by an informant, and if so, whether the trial court erred in determining that probable cause existed under that standard.
We first address the defendant's State constitutional claim, and thereafter reach the federal claim only to the extent that the Federal Constitution provides greater protection. See State v. Ball, 124 N.H. 226, 231-32, 471 A.2d 347, 350-51 (1983). In an opinion which we have today issued, we adopted a totality-of-the-circumstances test, similar to the one adopted by the United States Supreme Court in Illinois v. Gates, as the appropriate standard to be applied under part I, article 19 of the New Hampshire Constitution when determining the validity of a search warrant, based upon information obtained from an informant. See State v. Carroll, 131 N.H. 179, 552 A.2d 69 (decided this day). This standard is consistent with the rule, which this court has so often stated, that "[a]ffidavits in support of search warrants must be read, tested and interpreted in a realistic fashion and with common sense ..." and that "[r]eviewing courts should not invalidate a warrant by interpreting the evidence submitted in a hypertechnical sense." State v. Sands, 123 N.H. 570, 604, 467 A.2d 202, 223 (1983). In State v. Mandravelis, 114 N.H. 634, 325 A.2d 794 (1974), this court, applying the prevailing federal constitutional analysis at that time, set forth a list of "some of the basic requirements for a valid search warrant" based upon information received from an informant. Id....
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...knowledge was personal observation, as the informant described purchasing directly from the defendant. See State v. Hazen, 131 N.H. 196, 201, 552 A.2d 77, 80 (1988). The fact that the informant made such a declaration against his penal interest supports a finding of reliability as well, bec......
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