State v. Moreau, 6118
| Decision Date | 29 June 1973 |
| Docket Number | No. 6118,6118 |
| Citation | 113 N.H. 303,306 A.2d 764 |
| Parties | STATE of New Hampshire v. Jack W. MOREAU. STATE of New Hampshire v. Arthur W. MOREAU. |
| Court | New Hampshire Supreme Court |
Warren B. Rudman, Atty. Gen., and David W. Hess, Asst. Atty. Gen., for the State.
James H. Dineen, Kittery, Maine, and Myron D. Rust, Portsmouth, for defendants.
The issues in this search and seizure case are whether there was probable cause for the issuance of the search warrant and whether the scope of the search was impermissibly broad. After an exclusionary hearing before the superior court, at which the only witness was Lieutenant Inspector William Mortimer of the Portsmouth Police Department, defendants made a motion to suppress the marijuana, heroin, amphetamine, and a pistol obtained by the police during the search. The motion was denied by the Court (Grant, J.), and the defendants consented to the entry of guilty findings subject to a consolidation of their cases and a review in this court of the validity of the warrant and the legality of the search.
The defendants are brothers who resided in separate rooms in a building owned and occupied by their mother in Portsmouth, New Hampshire. Jack resided in a basement room, and Arthur's bedroom was part of the general living quarters on the main floor. The search warrant was obtained by Lieutenant Mortimer from District Court Judge Samuel Levy on January 5, 1970, upon the strength of an affidavit and oral statement of Mortimer relating his knowledge of a sale of marijuana to a police informant by Jack Moreau at the Moreau residence, and certain additional facts. The warrant specified as the place to be searched 'the living quarters of Leonra M. Moreau and Jack Moreau within the two and a half story frame building situate by said 259 Maplewood Avenue, occupied by said Lenora and Jack Moreau.' Two to three hours after the warrant was issued, Mortimer and several other officers searched each of the rooms of the Moreau residence, locating marijuana, amphetamines and a pistol in Jack's bedroom and heroin and marijuana in Arthur's bedroom.
The defendants' primary contention is that the search warrant was issued without probable cause because it was based almost solely upon the actions and information of an unreliable informant. They point to the fact that there were federal drug charges pending against the informant, Paul E. White, and conclude that he might well have had a motive to falsify his information in order to obtain a favorable disposition of his own case. We first note that we can locate no evidence in the record that anyone agreed to drop any charges against White in exchange for his help as an informant, as asserted by the defendants. See Supreme Court Rule 4, specifying that 'briefs should contain accurate page citations to the pertinent portions of the transcript' supporting material statements of fact. RSA 490:App. R. 4 (Supp.1972). Lieutenant Mortimer testified in this regard that he had merely agreed to write a letter in White's behalf to the federal authorities indicating his assistance and regardless of the outcome of the Moreau case.
The informant implicated himself in telling Mortimer, as related in the affidavit, that his awareness of drug sale activities at the Moreau residence stemmed from his own purchase of marijuana from Jack Moreau prior to becoming an informer. The United States Supreme Court has recently sustained from a lack of probable cause attack a similar affidavit which was also based upon the representations of a first-time informer of doubtful character: United States v. Harris, 403 U.S. 573, 583-584, 91 S.Ct. 2075, 2082, 29 L.Ed.2d 723, 734, (1971); accord, State v. Appleton, 297 A.2d 363 (Me.1972); Ringel, Searches & Seizure, Arrests and Confessions § 337.01 (1972), citing 5 Wigmore, Evidence § 1457, at 262-63 (3d ed. 1940).
In addition to White's purchase of marijuana at the Moreau residence on November 28, 1969, prior to his enlistment as an informer, the affidavit recites that White made a second marijuana purchase-as an informer-on December 18. On this occasion White was taken to a room in the Moreau house where he saw 'plastic bags containing marijuana, plastic bags containing a white substance and various and sundry clear plastic vials containing various pills and tablets,' as stated in Mortimer's affidavit. The affidavit further recites that White turned over to Mortimer the marijuana purchased at the Moreau house which was analyzed to be marijuana; that another party, one Alexander Berry, told White that Jack Moreau and Berry 'were in the business of selling marijuana and other 'dangerous narcotic drugs' together;' that White attempted to make another purchase at the Moreau residence on January 2, 1970, but was told by Berry 'that he and Moreau were only selling to three people;' that White was thereupon taken by Berry to another location where White purchased another bag of marijuana; and that Jack Moreau on one occasion informed Lieutenant Mortimer that he was a user of marijuana and 'speed.' Mortimer testified that he also verbally informed Judge Levy of certain other information prior to the issuance of the warrant, including White's 'legal difficulties' in connection with his own possession of marijuana, that the December 18 purchase had been made from Jack in a basement room of the Moreau premises, and that Arthur Moreau was believed to have sold LSD to an individual on a prior occasion. Mortimer also told Judge Levy that he had 'surveilled' White and had seen him enter and depart from the Moreau residence and that he had personally corroborated certain other specified incidentals to White's story and was satisfied with its veracity.
Under our practice the evidence relied upon by an officer or magistrate to justify the issuance of the search warrant is not required to be fully contained in the complaint upon which the warrant is issued. . . . The issue of probable cause in such a case, may be determined on the basis of all the evidence presented to the magistrate.' State v. Titus, 106 N.H. 219, 222, 212 A.2d 458, 460 (1965); accord, State v. Salsman, 112 N.H. 138, 290 A.2d 618 (1972); see United States v. Harris supra. The judge issuing the warrant in this case was thus 'informed of some of the underlying circumstances from which the...
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