State v. Bradberry , 129 N.H. 68 ( 1986 )

Brock, C.J.

The defendant, Joan Bradberry, was found guilty by the Superior Court (Johnson, J.) of possession of Lysergic Acid Diethylamide (LSD), RSA 318-B:26, 1(b)(1), possession of Valium, RSA 318-B:26,1(b)(2), and transportation of marijuana, RSA 265:80. She appeals from the trial court’s order denying her motion to suppress evidence seized from her vehicle in the course of a search pursuant to a warrant issued by the Lebanon District Court (Lovejoy, J.). We affirm the trial court’s determination.

On October 10, 1984, the defendant was arrested after police, armed with a. warrant, searched her vehicle and found cocaine, cutting material (an agent used to dilute the strength of the drug), Valium, marijuana pipes, straws, scalpels, scales, a calculator, a book listing weights and amounts, and a plastic vial containing three “hits,” or dosage units, of LSD. At a jury-waived trial, the defendant moved to suppress this evidence, alleging that probable cause for issuance of the warrant did not exist. The court denied the motion, ruling that the warrant had been “properly issued.”

The affidavit, which was signed by Officers Dutille and Beckett of the Lebanon Police Department, and the testimony supporting the warrant, center around two informer tips and certain police corroboration thereof. First, Sergeant Laurie, also of the Lebanon Police Department, informed Detective Beckett that he had been contacted by an anonymous informant who told him that Joan Bradberry, of Taftsville, Vermont, had a serious cocaine problem that was supposedly “ruining her life.” The caller stated that Bradberry was a dealer; that she sold the drugs from her car, a three-year-old white Saab with Vermont registration VN 817; and that she carried a gun. Second, Sergeant Dutille told Detective Beckett that he was told by a confidential informant, a trustworthy businessman whom he had known for fifteen years, that the informant had seen Brad-berry using cocaine within four days prior to October 10, the date the warrant was sought; that he had seen it in her car within those four days; that the informant recognized the drug because he had in the past used it himself; and that the informant had seen Bradberry in a car answering the first informant’s description.

The police corroborated the part of the first tip describing the car Bradberry drove, and the license plate number. It is not clear from the record whether the police told the district court judge that the businessman-informant had said he had used cocaine with Brad-berry at the time he observed her. The magistrate’s handwritten notes on the affidavit, as translated by counsel, are as follows: “October 10, 1984, Sergeant Dutille offered sworn testimony relative to the reliability of the informant and the Court concludes that the informant is reliable and trustworthy of belief. . . . Testimony was further offered by applicant Becket[t] placing the subject at the residence of a known user.” It was on this basis that the search warrant was issued.

The defendant argues on appeal that the affidavit submitted in support of the application for a warrant failed to satisfy the requirements of either State v. Mandravelis, 114 N.H. 634, 325 A.2d 794 (1974) or Illinois v. Gates, 462 U.S. 213 (1983). Initially, the State argues that the defendant does not maintain that part I, article 19 of the New Hampshire Constitution provides her greater protection than the fourth and fourteenth amendments to the Federal Constitution, and thus federal standards should be applied in deciding this case. I disagree with the State’s claim. The fallacy of the State’s argument becomes evident upon review of the defendant’s brief, wherein she argues that this court’s approach to search and seizure law is grounded in Aguilar v. Texas, 378 U.S. 108 (1964), and Spinelli v. United States, 393 U.S. 410 (1969). If this were actually the case, the Aguilar-Spinelli analysis could in certain instances provide criminal defendants with greater protection than would be provided under the current Gates “totality-of-the-circumstances” test, Gates, supra at 233. In addition, the specific case most relied on by the defendant, State v. Mandravelis supra, and argued by her to be applicable under the State Constitution, is not necessarily consistent with current fourth amendment jurisprudence. Therefore, for the defendant’s argument to make any sense, it must be premised upon a belief that the State Constitution affords her greater protection than does the federal. The defendant purports to raise only State constitutional issues, although she does refer to the federal counterpart of part I, article 19, U.S. Const. amends. IV, XIV, from time to time. Thus, I will deal solely with the State constitutional issues in this opinion.

My brother Souter argues in his special concurrence that the State constitutional issue has not been properly preserved for appeal, and hence relies on the fourth and fourteenth amendments to the United States Constitution to reach the conclusion articulated in this opinion. Justice Souter cites State v. Dellorfano, 128 N.H. 628, 517 A.2d 1163 (1986) as support for his position. I believe this reliance is misplaced inasmuch as it entails an overly broad reading of that case. Dellorfano enunciated two prerequisites for preservation of a State constitutional issue: first, the defendant must raise the issue at the trial court level, and second, he or she must “invoke a provision of the State Constitution,” id. at 632, 517 A.2d at 1166, in his or her appellate brief. Justice Souter regards each of these conditions as unfulfilled in this case. I disagree. The defendant cited the relevant State constitutional provision in her requests for findings of fact and rulings of law. This, in my view, was sufficient to satisfy the first Dellorfano condition. The second condition was also met in that the defendant specifically stated in her appellate brief that the application of part I, article 19 of the State Constitution was the sole issue raised on appeal. This does not, contrary to my brother’s position, constitute a case of mere passing reference to the State Constitution, but, rather, given the presentation and context of the argument as a whole, a case squarely based on it. Thus, I conclude that the State issue has been preserved for appeal, and it should therefore be addressed. Parenthetically, however, I commend the general thrust of my brother’s position and explication of how issues should be properly raised and argued to members of the bar in order that the issue that divides the court in this case may be avoided in the future. The defendant’s position may correctly be characterized as confusing, and, to that extent, I am in agreement with my brother.

The defendant argues that the affidavit failed to satisfy the four requirements set out in State v. Mandravelis supra, resulting in a violation of the State Constitution, part I, article 19. She also asserts that the affidavit does not provide information concerning either the informer’s credibility or the fact that evidence of a crime would be found in the Bradberry vehicle.

In State v. Mandravelis, this court stated that

“[w]hen all or part of the information [contained in an application for a search warrant] comes from an informer, the police officer should: (a) state what part comes from the informer; (b) state the facts received from the informer not merely [the informer’s] conclusions; (c) state how the informer got the information; i.e., by personal observation or from another informer or otherwise; (d) state facts from which the magistrate can determine if the informer is a credible (truthful) person.”

Id. at 637, 325 A.2d at 796.

The defendant’s argument that State v. Mandravelis applies is premised partially on a belief that it either was decided under the State Constitution or has since been adopted by this court as applicable to part I, article 19. Both formulations of the defendant’s premise are incorrect. A careful reading of State v. Mandravelis indicates that its reasoning was based upon the prevailing federal constitutional analysis in effect at the time it was decided. In addition, while some of this court’s recent pronouncements may be equivocal regarding the constitutional basis of State v. Mandravelis, see State v. Stiles, 128 N.H. 81, 84, 512 A.2d 1084, 1087 (1986) and State v. Corey, 127 N.H. 56, 59, 497 A.2d 1196, 1198-99 (1985), this court has never explicitly held that the State v. Mandravelis requirements are mandated by our State Constitution.

However, I would reject the defendant’s further assertion that the rigid two-pronged approach of Aguilar-Spinelli should be followed by this court. Rather, I would choose to adopt a more sensible and flexible approach to the determination of whether probable cause exists in cases involving the issuance of search warrants based on informants’ tips; namely, a totality-of-the-circumstances test akin to that set out by the United States Supreme Court in Illinois v. Gates, 462 U.S. 213 (1983). However, I hasten to emphasize that such a test would be our own and would not be tied to present or future federal pronouncements on the issue. In other words, recognizing the renewed vigor of State constitutional analysis, see Abrahamson, Criminal Law and State Constitutions: The Emergence of State Constitutional Law, 63 Tex. L. Rev. 1141, 1144-48 (1985), I would choose to follow our own path through the labyrinth of search and seizure law. Although the words used to describe the test would be borrowed from the United States Supreme Court, their interpretation and content would be for this court in construing part I, article 19. I note, however, that the State v. Mandravelis factors would remain factors which, among others, should be considered by our judges in determining whether probable cause exists in cases where they are applicable. These factors would be flexible in the sense that a deficiency in one could be offset by an abundance in another, and the presence of police corroboration also might affect the determination. The point, I believe, is one this court has emphasized many times in the past: that the determination of probable cause is a common-sense, fact-centered determination to be made by an independent magistrate.

This court’s definition of probable cause has been set out frequently before, and I state it again here: Probable cause exists

“ ‘if the [person] of ordinary caution would be justified in believing that what is sought will be found in the place to be searched ... and that what is sought, if not contraband or fruits or implements of a crime, will “aid in a particular apprehension or conviction.”’ ... To obtain a search warrant, the police must show that at the time of the application for the warrant there is a substantial likelihood of finding the items sought; they need not establish with certainty, or even beyond a reasonable doubt, that the search will lead to the desired result.”

State v. Marcotte, 123 N.H. 245, 248, 459 A.2d 278, 279-80 (1983) (quoting State v. Doe, 115 N.H. 682, 685, 371 A.2d 167, 169 (1975)) (citations omitted). This court has more recently stated that our review of a judge’s ruling on a suppréssion motion

“necessarily must reflect the contextual, commonsensical, and fact-based nature of any probable cause determination. See State v. Breest, 116 N.H. 734, 743, 367 A.2d 1320, 1328 (1976). In addition, another basic principle to which we adhere is the preference which we accord warrants, see Marcotte, supra at 248, 459 A.2d at 280, and the deference which we afford magistrates, especially in close cases. See State v. Sands, 123 N.H. 570, 604, 467 A.2d 202, 223 (1983).”

State v. Jaroma, 128 N.H. 423, 428, 514 A.2d 1274, 1277 (1986). The standard for the determination of probable cause in the first instance is objective, see State v. Thorp, 116 N.H. 303, 306-07, 358 A.2d 655, 658-59 (1976), and hypertechnicality in interpretation of affidavits is not favored, State v. Doyle, 126 N.H. 153, 160, 489 A.2d 639, 644 (1985). Further, this court has stated that “[a] search based on a magistrate’s determination of probable cause does not require the same standard of reliability as does a warrantless search.” State v. Beaulieu, 119 N.H. 400, 403, 402 A.2d 178, 180 (1979). However, the affidavit is not to be regarded as a mere formality; rather, its purpose “is to provide [the issuing magistrate] with information on which he [or she] can make an objective and detached determination of the existence of probable cause for the search requested. . . . The magistrate is limited to considering the information contained in the affidavit, along with any additional testimony supplied under oath.” State v. Spero, 117 N.H. 199, 204, 371 A.2d 1155, 1158 (1977). Having set out these principles, I proceed to consider the affidavit submitted to the judge in the present case and the information placed before him in the form of oral testimony.

The contents of the two informers’ tips were quite different in quality and quantity. The first tip was a telephonic tip from an anonymous informant who made several statements regarding the defendant’s use and sale of cocaine. The basis for this informant’s statements is evident neither from the affidavit nor from the testimony given by the police officers before the magistrate, and his or her credibility was not established. In addition, the only piece of information supplied by the first informant which was subsequently corroborated by the police was that concerning the type of car driven by the defendant and the vehicle’s license plate number. This tip and corroboration of a single piece thereof alone would not properly give rise to a finding of probable cause.

The second informant’s tip was significantly more complete. The basis of the information provided by this businessman-informant was stated to be his own personal knowledge and observation. This informant stated that he had seen cocaine in Bradberry’s car within the past four days, and that he knew what cocaine looked like because he had used it himself in the past. The second informant confirmed the first informant’s description of Bradberry’s car, although he did not provide as much detail regarding it as did the first informant. Officer Dutille also testified to his long acquaintanceship with the informant and that he had never known the latter to be untrustworthy.

There was some confusion at the suppression hearing regarding what the magistrate was actually told, but considering all of the undisputed information as a whole, I believe that there was probable cause to issue the warrant. The credibility of the second informant was established by Sergeant Dutille’s testimony regarding his long acquaintanceship with the informant, the informant’s lack of a criminal record, and his status as a businessman in the community. The informant could recognize cocaine because he had used it in the past and his information was explicitly stated to be based on personal observation. There was also some cross-corroboration from the first informant, whose tip, although involving a second level of hearsay, could be considered by the magistrate because Officer Beckett was entitled to rely on information from another police officer. See State v. Beaulieu, 119 N.H. at 403, 402 A.2d at 181. I would hold that this combination of information would easily lead a reasonable person to believe that the defendant was in possession of cocaine and that it was quite likely that the cocaine would be found in her car. Therefore, probable cause existed to support issuance of the warrant, the motion to suppress was properly denied, and the convictions should be affirmed.

Finally, in my brother Batchelder’s special concurrence, he expresses his fear that by adopting a totality-of-the-circumstances test, this court would thereby undermine “court review of police activity based on informants’ tips.” My brother’s apprehension would be unwarranted under such a test. Under my proposed new test, a neutral and detached judge must still be presented with information sufficient to warrant a person of ordinary caution in the belief that “‘what is sought will be found in the place to be searched.’” State v. Marcotte, 123 N.H. at 248, 459 A.2d at 279-80 (quoting State v. Doe, 115 N.H. at 685, 371 A.2d at 169). Moreover, such a test would merely allow courts to consider the totality of the circumstances in determining whether probable cause existed to support a given warrant in a particular case. It would neither remove nor lessen the judicial independence and neutrality requirements which this court has long held to be prerequisites of the probable cause determination. See, e.g., State v. Spero, 117 N.H. at 204, 371 A.2d at 1158.

In addition, this court has never expressly adopted State v. Mandravelis, 114 N.H. 634, 325 A.2d 794 (1974), a fourth amendment case, under our State Constitution, and it has been discredited as a matter of federal law. Thus, my brother’s reliance thereon is misplaced.

Further, I do not suggest that where there is a total lack of information relating to the credibility of an informant a warrant could issue. In any event, that is not the situation in this case, as my brother Batchelder must properly concede.

Affirmed.

Johnson, J., did not sit; Batchelder, J., concurred specially; Souter, J., with whom Thayer, J., joined, concurred specially.