State v. Jaroma, 85-368

• Decision Date: 07 August 1986
• Docket Number: No. 85-368,85-368
• Parties: The STATE of New Hampshire v. Alexander JAROMA.
• Court: New Hampshire Supreme Court

Page 1274

514 A.2d 1274

128 N.H. 423

The STATE of New Hampshire v. Alexander JAROMA.

No. 85-368.

Supreme Court of New Hampshire.

Aug. 7, 1986.

Stephen E. Merrill, Atty. Gen. (Andrew W. Serell, attorney, on the brief and orally), for State.

Joanne Green, Asst. Appellate Defender, Concord, by brief and orally, for defendant.

BROCK, Justice.

This is an interlocutory appeal from the Trial Court's (Bean, J.) ruling denying the defendant's motion to suppress. See Sup.Ct.R. 8. At issue is the legality of a police search of a Goffstown storage garage that led to the defendant's arrest and charges of receiving stolen property, RSA 637:7, and burglary, RSA 635:1. We affirm.

On July 21, 1984, the chief of the Epsom Police Department received a telephone call from a Marc Eaton and went to Eaton's home to investigate the latter's claim that the defendant had been harassing Eaton's wife by telephone. The chief stated at the motion hearing that Eaton wanted the calls to stop and the defendant arrested. In addition, the chief testified that Eaton "also stated ... that [if] there wasn't enough information on [the harassment complaint], that he would have additional information that would put Mr. Jaroma away for quite a period of time." Eaton then informed the chief that stolen property could be found stored in the center stall of a five-stall Goffstown garage that had a "Jo Burnham Real Estate" sign on it. He also furnished a description of the garage and stated that Jaroma had rented the stall.

This information was then given to New Hampshire State Police Trooper Eastman and later relayed to Corporal French of the Goffstown Police Department. Eaton spoke with several officers two days later, including Corporal French, and told them that, approximately one month before, the defendant had taken him to the garage and that he had seen tool boxes and a picnic table in the center stall. In addition, Eaton stated that the defendant had told him that if the police were to find out about the garage, the defendant would be put away for a long time.

The police investigation revealed that the garage's center stall was rented to an "Al Halston," a known alias of the defendant, and that a new padlock had been placed on the door of the stall in violation of the rental agreement. On July 25, 1984, police officers obtained the manager's permission to enter a stall adjacent to the one rented to the defendant. Using a hole in the wall between the stalls, the police peered inside the defendant's stall and saw a wide variety of items. Later that day, Corporal French submitted an application for a search warrant and a fifteen-paragraph supporting affidavit. The warrant was obtained and executed that night. Most of what was found in the tightly crammed center stall was removed and inventoried.

The defendant moved to suppress the items seized in the search. The trial court ruled that the information gleaned from the first search on July 25 was unconstitutionally obtained, and excised the portions of the supporting affidavit that contained this information. The court also ruled, however, that the remaining recitals in the affidavit were sufficient to establish probable cause for the later search, and denied the motion to suppress.

Eight questions of law were presented in the interlocutory appeal statement, only five of which were covered in the defendant's brief. We will consider only those five questions, and deem the remainder waived. See Fleming v. Martin, 122 N.H. 128, 130, 442 A.2d 584, 585 (1982). The briefed questions of law, renumbered to reflect the order in which we consider them, are as follows:

"[ (1) ] Whether the following statements contained in, or deleted from, the supporting affidavit constitutes [sic ] material misrepresentations made recklessly or intentionally, requiring suppression of the evidence obtained pursuant to the search warrant?

[ (a) ] 'The informant has no known Criminal Record to Law Enforcement' (See paragraph G of the Affidavit);

[ (b) ] The absence of any statement as to the informant's motivation for disclosing his information.

[ (2) ] Whether the conclusory statements contained in paragraphs # [ ], 12, 13, 14 and 15 of the supporting affidavit are constitutionally deficient thus requiring suppression of the evidence?

[ (3) ] Whether the search warrant was issued upon less than probable cause because the underlying bases for the informant's conclusion that the goods were stolen and the informant's credibility and reliability were not sufficiently established in the affidavit?

[ (4) ] Whether the warrant and supporting affidavit failed to establish a substantial likelihood that the items described in the actual warrant were stolen and would be found in the garage stall?

[ (5) ] Whether the fruits of an arrest warrant must be suppressed when the warrant was supported by fruits of an unlawful search?"

The defendant argues, with respect to question one, that Eaton's desire to have the defendant incarcerated was material to his credibility and was omitted recklessly from the affidavit by Corporal French. The defendant maintains that if this evidence of Eaton's vengeful motive had been added to the affidavit, the affidavit would likely have failed to establish probable cause to issue the warrant. The trial judge ruled that the omitted information was not material, stating:

"[W]here an informant contacts authorities with a motivation other than 'a sense of civic duty' the informant can still be found credible. United States v. Lefkowitz, 618 F.2d 1313, 1317 (9th Cir.1980), cert. denied, 449 U.S. 824 [101 S.Ct. 86, 66 L.Ed.2d 27] (1980).... The Court does not believe that recitation of the circumstances under which Eaton provided the information about the garage would have tipped the balance against a finding of probable cause."

The court then stated that since the information was not material, it need not determine whether its omission was reckless.

The issue of an omission's materiality is a "[question] of law, for which this court is ultimately responsible." State v. Chaisson, 125 N.H. 810, 814, 486 A.2d 297, 300 (1984); see also State v. Cote, 126 N.H. 514, 522, 493 A.2d 1170, 1175-76 (1985). The informant's supposed bad motive for providing information to the police was that the defendant had allegedly been making harassing telephone calls to the informant's wife. Assuming arguendo that this knowledge can be imputed to Corporal French, who also testified that the informant told him that the defendant and the informant had had "a bad business deal," we do not believe that the information which he failed to include in the affidavit was material. The informant's basis of knowledge was clearly stated in the warrant affidavit: he related the underlying incident which gave rise to the tip he provided to the police. Moreover, the police corroborated much of the information provided by the informant, thereby buttressing his credibility and raising an inference of truthfulness. See State v. Gilson, 116 N.H. 230, 233, 356 A.2d 689, 691 (1976). We therefore hold that the non-inclusion in the affidavit of the informant's motive for providing information to the police in this case did not constitute a material omission.

The defendant also argues that inclusion in the affidavit of the statement that "[t]he informant has no known Criminal Record to Law Enforcement" constituted an improper attempt to bolster Eaton's credibility. While the statement that the informant had no known criminal record was literally true, the informant did in fact have a record. Whatever the significance of such a record should be for the probable cause determination, the informant's record in this case consisted only of an arrest for assault and criminal mischief, not a charge of criminal activity directly relevant to veracity, such as perjury. Thus, inclusion in the affidavit of an accurate statement of Eaton's criminal record would not significantly have affected his credibility, see Cote, supra 126 N.H. at 522, 493 A.2d at 1176.

The defendant's second argument, relating to questions two through five, is that the affidavit failed to establish probable cause to believe that the named stolen items could be found in the place to be searched. This argument is comprised of two sub-arguments: (a) adding the information regarding motive weakens the reliability and credibility of the informant to the extent that a substantial basis for crediting the information provided by the informant no longer exists; and (b) numerous allegedly conclusory statements contained in the affidavit did not afford the magistrate an opportunity to assess independently the existence of probable cause. Once these statements are excised, according to the defendant, the remainder of the information does not establish probable cause.

The defendant makes these assertions under the rubric of both the State and Federal Constitutions. We therefore first analyze the issues presented under our State Constitution. See State v. Ball, 124 N.H. 226, 471 A.2d 347 (1983). In this process, we will employ decisions of the United States Supreme Court and other jurisdictions only as aids in our State constitutional analysis. See Michigan v. Long, 463 U.S. 1032, 1041, 103 S.Ct. 3469, 3476, 77 L.Ed.2d 1201 (1983). We will then analyze the federal issues raised only to the extent that federal law provides the defendant with additional protection. See Ball, supra, 124 N.H. at 232, 471 A.2d [128 N.H. 428] at 351; see also State v. Langone, 127 N.H. 49, 51-52, 498 A.2d 731, 733 (1985).

Our State Constitution provides that

"[e]very 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, or arrest a person for examination or...