State v. Valenzuela, 86-073

CourtSupreme Court of New Hampshire
Citation130 N.H. 175,536 A.2d 1252
Docket NumberNo. 86-073,86-073
PartiesThe STATE of New Hampshire v. Benjamin VALENZUELA, et al.
Decision Date31 December 1987

Stephen E. Merrill, Atty. Gen. (Brian T. Tucker, Associate Atty. Gen., (orally), and Steven L. Winer, Asst. Atty. Gen., on brief), for the State.

Shaheen, Cappiello, Stein & Gordon, Concord (Katharine L. Klein, on brief and Stephen M. Gordon on brief and orally), for defendant Benjamin Valenzuela.

Cullen & Wall, Boston, Mass. (Albert F. Cullen, Jr., on brief and orally and Robert V. Carr on brief, for Young, and John Wall on brief, for DiMatteo), for defendants Antimo DiMatteo and Stephen D. Young.

SOUTER, Justice.

These consolidated appeals follow convictions of the three defendants on a total of seventeen charges under the controlled drug act, RSA chapter 318-B, including possession of large quantities of cocaine with intent to sell. The defendants claim that the Superior Court (Wyman, J.) erred in authorizing the interception of the contents of communications transmitted over defendant Stephen Young's telephone lines on the basis, in part, of information obtained by the use of pen registers, previously installed on the same lines under a federal court's order unsupported by probable cause; that Gray, J., committed error in refusing to conduct a hearing under State v. Spero, 117 N.H. 199, 371 A.2d 1155 (1977) in response to the defendants' claim that the superior court's interception order rested on false statements knowingly or recklessly made, and in failing to suppress the evidentiary fruits of the interception as illegally obtained; and that Gray, J., erred further in denying motions to suppress evidence seized under warrants to search the defendants' houses, after rejecting the defendants' claim that the issuing magistrate was not neutral and detached, and after likewise rejecting the claim that the police exceeded the scope of their authority to enter Young's house, by executing the warrant in the nighttime, and by seizing so much material as to convert the enterprise into an unlawful general search. We affirm.

In 1983, during the course of an investigation into the illegal sale and distribution of controlled drugs, the New Hampshire State Police obtained an unlisted telephone number assigned to the defendant Young, toll call records for his two telephones, and an authorization to install a pen register on each of his two telephone lines. A pen register is a mechanical device to detect outgoing signals produced on a telephone line when a number is dialed. It decodes the signals, prints the number, records the date and time, and indicates whether the call is answered. See RSA 570-A:1, XII (Supp.1986). The pen register model used by the State police can also be used to record the presence of an incoming call signal and to indicate whether the receiving telephone was removed from the hook in response, and by the addition of supplementary mechanisms the police could intercept and record the content of an oral communication over the line. There is, however, no indication in this case that the police used the device to detect incoming signals, or to intercept the content of any communication over Young's lines to or from any other telephone.

Prior to January 1, 1987, the effective date of RSA 570-A:9-a (Supp.1986), the New Hampshire wiretapping statute contained no express reference to pen registers as such. Although the State police assumed that the superior court's authority to order the interception of communications over a telephone line under RSA chapter 570-A was broad enough to authorize the installation of a pen register, the statute did not appear to include the operation of a pen register within the scope of "intercept," for which the statute required judicial authorization. See RSA 570-A:1, III and :7. Given this uncertainty, the police did not wish to follow the State statutory process, because RSA 570-A:9, V would have limited any authorization to a period of ten days, subject to renewals for like periods. Since the police wished to monitor calls on Young's two lines for a longer period, they asked federal agents to act on their behalf in obtaining pen register authorizations from the United States District Court for the District of New Hampshire under Federal Rule of Criminal Procedure 57(b) and the All Writs Act, 28 U.S.C. § 1651(a). The federal court authorized the installation of the pen registers for thirty days, and later renewed the order, upon finding that the application was made in good faith for the purpose of furthering a pending investigation, and with reason to believe that the telephone lines in question were and would be used to further criminal activity. The court directed the telephone company to permit and facilitate the installation, with the right to be compensated for any expense it might incur in doing so.

On January 5, 1984, Sergeant Henry Carpenito of the State police prepared an affidavit that combined data provided by the pen registers about calls made from Young's telephones, records of toll calls made from those same telephones and from telephones assigned to the defendants Benjamin Valenzuela and Antimo DiMatteo, and information about the three defendants obtained from police records, investigators, and informers. On this basis he obtained a superior court wiretap order under RSA 570-A:9 for an interception of the contents of communications during completed calls over the same telephone lines assigned to Young that the pen registers had previously monitored for numbers dialed in outgoing calls. These interceptions provided information on the basis of which the police, in turn, obtained warrants on January 15, 1984, to search the houses of all three defendants. The ensuing searches yielded, inter alia, 65 pounds of cocaine, nearly a ton of marijuana, LSD tablets, jewels, over $200,000 in cash, ledgers and other documentary evidence of drug traffic, and an assortment of pistols, revolvers, and ammunition.

After unsuccessfully litigating motions to suppress the State's evidence, the defendants waived jury trial and submitted their cases to the superior court on the basis of the existing records and certain stipulations. The Trial Court (Gray, J.) returned guilty verdicts on the seventeen charges and proceeded to sentence Valenzuela and DiMatteo to prison terms of 15 to 40 years, and Young to a term of 25 to 70 years. These appeals followed.

As our statement of facts indicates, the accumulation of evidence upon which the search warrants ultimately rested began with the acquisition of Young's one unlisted number, followed by the disclosures of toll records for his telephones (as well as for the telephones assigned to DiMatteo and Valenzuela), and the production by the pen registers of lists of numbers called on each of Young's lines. The defendants maintain that the State acquired all of this information in violation of part I, article 19 of the Constitution of New Hampshire. In this appeal, however, the defendants address their specific arguments solely to the acquisition of telephone numbers by use of the pen registers, apparently on the assumption that all of their claims will stand or fall together. We will limit our decision accordingly, to the constitutional significance of using a pen register to record and disclose numbers dialed to make outgoing calls from a defendant's telephone. (In view of our conclusion about the requirements of article 19 on the theory of the case as it has been presented to us, there is no need to reach the State's objection that Valenzuela and DiMatteo lack standing even to object to the use of the pen register evidence, and on like reasoning there is no call to consider any issue about the propriety of the State police's reliance on federal process for authorization to install the devices.)

Article 19 prohibits unreasonable searches and seizures of an individual's "person, his houses, his papers, and all his possessions." The defendants argue the State was thereby barred from access to evidentiary information about numbers dialed on Young's telephones without first obtaining a warrant or comparable process, supported by a showing of probable cause to believe that the information sought would include evidence of a crime. Because the State made no such demonstration, the defendants submit that the information and all subsequent evidence obtained through its use should be suppressed.

The State concedes that the orders authorizing installation of the pen registers did not rest on any findings by the federal judge that probable cause existed to believe that the telephone lines would be used to make outgoing calls for criminal purposes or that such purposes would be revealed by examination of numbers called on the lines. The State takes the position that it had no obligation to demonstrate such probable cause, because the use of a pen register to record the number dialed to make an outgoing call on the line to which the register is attached is not a search of the person or property of the subscriber to whom the line is assigned, so as to be subject to the restrictions imposed by article 19. (That, we infer, is also the assumption underlying the recently enacted statute regulating the use of pen registers, RSA 570-A:9-a (Supp.1986), which imposes no probable cause requirement. See id., subparagraph III.)

Ironically, the parties purport to rest their differing conclusions on a common assumption, that the scope of article 19 protection should be judged by reference to the concept of privacy adopted by the Supreme Court of the United States in Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), as a criterion for determining the extent of fourth amendment protection. Despite the parties' agreement, however, this common ground has no support in our prior case law. See State v. Kilgus, 128 N.H. 577, 591, 519 A.2d 231, 240 (1986) (decided on the...

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