State v. Westover
| Citation | 127 N.H. 130,497 A.2d 1218 |
| Decision Date | 15 August 1985 |
| Docket Number | No. 84-160,84-160 |
| Parties | The STATE of New Hampshire v. Gary WESTOVER. |
| Court | Supreme Court of New Hampshire |
Gregory H. Smith, Atty. Gen. (Andrew L. Isaac, Asst. Atty. Gen., on brief and orally), for the State.
Sakellarios and Associates, Manchester (Jean-Claude Sakellarios, on brief, and Kathleen Mulcahey-Hampson, Manchester, orally), for defendant.
The defendant, Gary Westover, brings an interlocutory appeal under RSA 490:4 and Supreme Court Rule 8, from the Superior Court's (Flynn, J.) denial of his motion to suppress evidence seized from his home pursuant to a search warrant. At issue is whether the affidavit supporting the application for the search warrant contained sufficient facts to support a finding of probable cause to search under the fourth amendment to the Federal Constitution. We affirm the ruling of the superior court.
On April 13, 1983, Captain Paul Brodeur of the Manchester Police Department received information from someone he had known for several years regarding a message this person had heard on a telephone answering machine. The message stated, "624-4988, the pound is in, we also got your heroin, come on over [sic]." The police inferred that the number was a telephone number and found that it was a private Manchester listing in the name of the defendant, Gary Westover of 178 Mitchell Street, who is a paraplegic. The police confirmed this information in the city directory and census lists. In addition, a police inquiry revealed that "624-4988" was a number frequently called by subjects of an ongoing drug traffic investigation, being conducted by the State police and the Federal Drug Enforcement Agency. Police spoke to several unidentified neighbors of the defendant who stated that there were frequent visitors to his apartment at all hours.
Based on these facts, an affidavit in support of a search warrant was presented that same afternoon to the Manchester District Court (Capistran, J.), who granted the application for the warrant. The defendant's apartment was searched and several items were seized including a Sturm Ruger .357 revolver, drug paraphernalia, fourteen hundred dollars ($1,400), four bags of marijuana weighing more than one pound, and Diazapan pills.
Although the defendant refers to part I, article 19 of our State Constitution in his brief, we do not consider its application in this case because it was not relied upon in the defendant's motion to suppress. We will not consider on appeal issues or arguments not raised below. Daboul v. Town of Hampton, 124 N.H. 307, 309, 471 A.2d 1148, 1149 (1983).
The defendant argues that the affidavit in support of the warrant to search his apartment did not establish probable cause under the fourth amendment. He contends that under the "totality of the circumstances" test enunciated by the United States Supreme Court in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), the affiant failed to establish the informant's reliability and basis of knowledge and that the police did not compensate for these deficiencies by corroboration or independent information.
In Gates, the Court abandoned the two-pronged Aguilar-Spinelli test in favor of a "totality of the circumstances" approach in deciding whether or not there is probable cause to issue a search warrant. Id. at 230, 103 S.Ct. at 2328. Rather than analyzing both the veracity of the informant and the basis of knowledge independently, so that a deficiency in one is fatal to finding probable cause, Gates uses both factors as relevant considerations, to be assessed along with additional information. The magistrate then makes a "practical, common-sense judgment" to determine whether or not probable cause exists. Id. at 244, 103 S.Ct. at 2335.
Since then, the Supreme Court has clarified its position in Gates and stated that the "two-pronged test" has not been refined or qualified, but rather has been rejected as being "hypertechnical." Massachusetts v. Upton, 466 U.S. 727, 104 S.Ct. 2085, 2087, 80 L.Ed.2d 721 (1984). The affidavit must be considered in its entirety and no single piece of evidence need be conclusive. Id. 104 S.Ct. at 2088.
The veracity and reliability of the informant are still highly relevant. Gates, 462 U.S. at 230, 103 S.Ct. at 2328. Admittedly, in the present case, it is questionable whether the basis of knowledge of the informant was sufficiently established. The affidavit stated merely that the person...
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Stanfield v. State
...himself, tip contained names of defendant's roommates, and description of class ring of defendant's victim); State v. Westover, 127 N.H. 130, 497 A.2d 1218 (1985) (tip contained suspect's phone number, verified by police as a number frequently called by subjects of an ongoing drug investiga......
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Chasan v. Village Dist. of Eastman, 86-081
...in any event need not be discussed here, as the plaintiffs did not raise a federal constitutional claim below. State v. Westover, 127 N.H. 130, 131, 497 A.2d 1218, 1219 (1985) (this court will not consider arguments not specifically raised We next turn our attention to the language of RSA 5......
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State v. Cote
...rights to due process of law and effective assistance of counsel, because the issue was not raised below. See State v. Westover, 127 N.H. 130, 131, 497 A.2d 1218, 1219 (1985). We now reach the question of whether the trial court erred in granting the State's request to consolidate for trial......
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State v. Johnson
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