State v. Mcminn, 97-415
| Decision Date | 16 July 1999 |
| Docket Number | 97-415 |
| Citation | 737 A.2d 1093 |
| Parties | THE STATE OF NEW HAMPSHIRE v. ROBERT R. MCMINN, JR.THE SUPREME COURT OF NEW HAMPSHIRE |
| Court | New Hampshire Supreme Court |
Hillsborough-northern judicial district
Philip T. McLaughlin, attorney general (Brian R. Graf, assistant attorney general, on the brief and orally), for the State.
Gary Apfel, assistant appellate defender, of Orford, on the brief and orally, for the defendant.
The defendant, Robert R. McMinn, Jr., was convicted of one count of receiving stolen property, see RSA 637:7 (1996), following two searches of a storage unit pursuant to two separate warrants. The defendant appeals, arguing that the Superior Court (Abramson, J.) erred in denying his motion to suppress. We affirm.
On November 3, 1994, Corporal Michael H. Hambrook of the New Hampshire State Police applied for a warrant to search a storage unit for controlled drugs, drug paraphernalia, documentation of drug trafficking, and proceeds of drug sales. In support of this application, Hambrook executed an affidavit that stated the following facts.
While conducting an investigation into the drug dealing activities of the defendant, Hambrook received information in February 1994 from a confidential informant (CI#1) that the defendant was committing numerous burglaries with another individual (I#1). On April 7, 1994, and on several occasions thereafter, Hambrook interviewed another confidential informant (CI#2) who had provided information to law enforcement in the past resulting in numerous felony drug arrests and convictions. CI#2 informed Hambrook that the defendant was a professional burglar who favored commercial breaks. CI#2 further informed him that the defendant dealt in large quantities of marijuana. CI#2 named three sources from whom the defendant purchased drugs. One of these sources was I#1. Another source and his wife were murdered on May 19, 1993. Marijuana and drug dealing paraphernalia were discovered at the victims' residence. The final source was a known drug dealer at whose residence Hambrook had discovered drugs during an earlier search.
Sergeant Jim Noyes and Corporal Brian Hester of the New Hampshire State Police informed Hambrook that they had talked with a confidential informant (CI#3) on July 19, 1994. CI#3 stated that he had known the defendant since 1991 and that the defendant had been dealing in stolen goods and marijuana since that time. CI#3 had seen packages of marijuana at the home of defendant's sister and was told by her that the marijuana was for the defendant.
On April 20, 1994, Hambrook instructed CI#2 to meet with the defendant. Hambrook observed the meeting and was later informed by CI#2 that they had discussed past marijuana deals and the defendant's burglary activities.
On November 2, 1994, Hambrook talked with Corporal Susan Forey of the New Hampshire State Police. Forey and Agent Gerry Graffam of the United States Drug Enforcement Administration (DEA) spoke with yet another confidential informant (CI#4), and based on the information provided, Graffam obtained a DEA administrative subpoena for the tenant records of a storage facility. On November 2, 1994, Forey, Graffam, and Detective Tim Brown of the Manchester Police Department reviewed the tenant records which were provided. Forey informed Hambrook that storage unit #202 was rented to Kenna Ritzinger. While Forey, Graffam, and Brown were in the storage facility office, the defendant entered the storage facility premises and opened and closed storage unit #202. The defendant then entered the storage facility office and told the desk clerk that he was Donald Ritzinger, the husband of Kenna, and was there to pay for his wife's storage unit, which he identified as unit #202. Brown, who knew the defendant, informed Hambrook that the man who identified himself as Donald Ritzinger was in fact the defendant.
Hambrook also spoke with Detective Glenn Kramer of the Manchester Police Department, who on November 2, 1994, performed a walk past storage units #196 through #206 with his narcotics detection dog. The dog made a positive indication for drugs at storage unit #202.
A check of the defendant's criminal records by Hambrook revealed that the defendant had been convicted of, among other things: (1) possession of a narcotic drug; (2) receiving stolen property; and (3) the sale of a narcotic drug. In addition, the defendant had been arrested for burglary on September 7, 1993, and was awaiting trial.
The affidavit also contained the following information based on Hambrook's training and professional experience. Drug dealers commonly keep large quantities of drugs in storage units to safeguard them from police confiscation or being stolen by competitors. Drug dealers use fictitious names to conceal financial transactions and ownership of assets. Drug dealers maintain records of their activities to keep track of contacts, customers, and monies owed to them. Drug trafficking is a continuous activity occurring over months and years. Hambrook believed the defendant to be a large scale marijuana dealer who was renting storage unit #202.
On November 3, 1994, a search warrant was issued and executed for unit #202. The unit contained a blue Chevy Corvette, a floor safe, five three-ring binders containing baseball cards, three suitcases full of baseball memorabilia, a pair of snowpants, and numerous framed pictures of "Looney Tunes" cartoon characters. Hambrook observed that one of the framed cartoon pictures had the words "Phantom of the horse opera" written on it. Detective James Stankiewicz of the Manchester Police Department, also involved in the search, observed that one of the framed cartoon pictures had the name "Fritz Freleng" on it. Stankiewicz informed Hambrook of two separate burglaries occurring in March 1994, in which framed cartoon pictures of Looney Toon, Walt Disney, and Warner Brothers cartoon characters, including works drawn by Fritz Freleng, and baseball cards were stolen. One of the pictures stolen was described as having the words "Phantom of the horse opera" inscribed on it. Believing that a number of the items within the storage unit were stolen, Hambrook left the unit and prepared a second search warrant for stolen property. Based on this information, the second warrant was issued and executed.
The defendant moved to suppress the evidence seized from the storage unit. The superior court denied the defendant's motion, and this appeal followed.
On appeal, the defendant initially argues that the dog sniff was an unlawful search in violation of Part I, Article 19 of the New Hampshire Constitution, see State v. Pellicci, 133 N.H. 523, 580 A.2d 710 (1990), and the Fourth Amendment to the United States Constitution. We conclude that probable cause existed for the first warrant independent of the dog sniff, and thus we do not need to reach the issue of whether the dog sniff was a search.
Additionally, the defendant argues that the first search warrant lacked probable cause because: (1) the affidavit lacked sufficient information for a magistrate to make a determination of the informants' veracity and basis of knowledge; (2) the information in the affidavit was stale; and (3) the affidavit lacked a nexus between the defendant's alleged criminal activity and the storage unit. Finally, he...
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