State v. Canelo , 139 N.H. 376 ( 1995 )

BROCK, C.J.

On February 21, 1992, a justice of the Superior Court (Dalianis, J.) issued a warrant authorizing the police to search the defendant’s apartment and his person. Based on evidence seized pursuant to the search, the defendant was charged with possession of cocaine with intent to distribute in violation of RSA 318-B:2 (Supp. 1993). Following a hearing, the Superior Court (Murphy, J.) granted the defendant’s motion to suppress, finding that the search was based on a warrant issued in violation of part I, article 19 of the New Hampshire Constitution. We affirm.

The State appeals, raising two issues for our consideration: first, whether the superior court erred in finding that the search of the defendant’s residence based upon an anticipatory search warrant violated part I, article 19 of the State Constitution; second, assuming arguendo that the anticipatory search warrant in this case was impermissible, whether the superior court erred in suppressing the evidence seized where the police acted in good faith in obtaining and executing the warrant.

Subsequent to briefing and oral argument before this court, the State was notified that the defendant died on March 2, 1994. The State filed a motion requesting that we decide the issues raised in this appeal even though the defendant’s death would appear to render them moot. “[T]his court is not bound by rigid rules in determining whether an appeal is moot; rather, the question of mootness is a matter of convenience and discretion.” Moody v. Cunningham, 127 N.H. 550, 553, 503 A.2d 819, 821 (1986). Because the issues in this case are “significant constitutional issues” of public interest and are likely to occur again, resolution of them would avoid future litigation. Id. We determine, therefore, that an opinion would serve a useful purpose and grant the State’s motion. Cf. Timberlane Regional Educ. Ass’n v. State; 115 N.H. 77, 79, 333 A.2d 713, 714 (1975).

I. Anticipatory Search Warrant

On February 21, 1992, Detective Bruce Hansen of the Nashua Police Department applied for a warrant to search the defendant’s home at 20 Kessler Farm Drive, Apartment 709, in Nashua, and the person of the defendant, for evidence of drug dealing in violation of RSA 318-B:2. Detective Hansen’s affidavit in support of the warrant application set forth, in part, the following facts:

VI. In October 1991, a second independent, confidential, reliable individual, who has furnished information to the Nashua Police Department which has led to the arrest of narcotics traffickers, informed the Nashua Police Department that an individual within Building 20 Kessler Farm Drive, in the Somerset Apartment Complex, this apartment being located on the second floor, whose name is Rafael, is a cocaine dealer dealing in weights including kilograms.

X. In February 1992, the second confidential individual mentioned in this affidavit who has supplied reliable information to the Nashua Police Department which has led to the arrest of narcotics traffickers, responded to 20 Kessler Farm Drive, Apartment 709, and while within that apartment, made contact with Rafael Canelo-Valdez and while within that apartment purchased a quantity of the narcotic drug, cocaine. The suspect substance was immediately relinquished to the members of the Nashua Police Department who conducted a field test which showed a positive reaction to the presence of the illicit,. narcotic drug, cocaine. Listed informant viewed the photograph which had been supplied by the Lawrence Police Department of Rafael Canelo-Valdez and positively identified this individual as one in [sic] the same who is residing at 20 Kessler Farm Drive, Apartment 709, as the same individual dispensing quantities of cocaine from that location.

XI. On 21 February 1992, the second confidential individual mentioned in this affidavit who has supplied reliable information to the Nashua Police Department which has led to the arrest of narcotic traffickers responded to 20 Kessler Farm Drive, Apartment 709, and while within that apartment observed a quantity of the narcotic drug, cocaine.

Detective Hansen informed the magistrate, however, that the events in paragraph XI had not yet occurred but were expected to take place later that same evening. The magistrate then amended paragraph XI by striking the word “observed” and adding “did as was expected to [observe].” Detective Hansen was instructed by the magistrate that the warrant could only be executed if the informant observed cocaine as described in paragraph XI. Thereafter, the informant advised the police that he had observed cocaine in the defendant’s apartment, and the search warrant was executed.

The superior court granted the defendant’s motion to suppress evidence seized during the search, ruling that the issuance of the warrant violated part I, article 19 of the State Constitution. The court concluded that “[u]nder the specific facts of this case, it is found and ruled that the exclusionary rule mandates the suppression of the evidence obtained during the search which was based upon a ‘self-executing search warrant.’ The detached magistrate has inappropriately delegated [her] constitutional function to the prosecuting authority.”

The State argues on appeal that anticipatory search warrants should be upheld as valid generally and that the warrant in the instant case passes constitutional muster. The State contends that because a neutral and detached magistrate made the determination that probable cause to search the defendant’s residence would exist after the occurrence of the contingent event and because there is no question that the affidavit established probable cause once the contingent event occurred, there was no violation of the defendant’s rights under part I, article 19. The defendant takes the position that under the facts of this case the search warrant failed to comply with the State Constitution because there was no probable cause at the time the warrant issued to believe that the future event would occur. While we agree with the State that anticipatory search warrants do not categorically violate part I, article 19, we agree with the defendant that this warrant was unconstitutional.

Part I, article 19 provides:

Every subject hath a right to be secure from all unreasonable searches and seizures of his person, his houses, his papers, and all his possessions. Therefore, all warrants to search suspected places . . . are contrary to this right, if the cause or foundation of them be not previously supported by oath or affirmation; and if the order ... to make search in suspected places ... or to seize their property, be not accompanied with a special designation of the persons or objects of search ... or seizure; and no warrant ought to be issued; but in cases, and with the formalities, prescribed by law.

We have interpreted part I, article 19 as “requiring an objective determination of probable cause by a neutral and detached magistrate.” State v. Kellenbeck, 124 N.H. 760, 764, 474 A.2d 1388, 1391 (1984). Probable cause to search exists if a 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.” State v. Jaroma, 128 N.H. 423, 428, 514 A.2d 1274, 1277 (1986) (quotations omitted). The police must establish at the time they apply for a search warrant that there exists “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. Decoteau, 137 N.H. 106, 111, 623 A.2d 1338, 1341 (1993) (quotation omitted). In determining whether probable cause exists, the magistrate considers the search warrant application, supporting affidavit, and any oral statements made under oath by the applicant. See RSA 595-A.-4 (1986); State v. Doe, 115 N.H. 682, 684, 371 A.2d 167, 168 (1975).

An anticipatory search warrant is “a warrant that has been issued before the necessary events have occurred which will allow a constitutional search of the premises; if those events do not transpire, the warrant is void.” United States v. Garcia, 882 F.2d 699, 702 (2d Cir.), cert. denied, 493 U.S. 943 (1989). Anticipatory warrants raise the issue whether law enforcement officials may obtain from a magistrate a warrant conditioned upon a future event that, if fulfilled, would allow a search of the premises and persons identified in the warrant.

There is no express language in part I, article 19 that would prohibit the issuance of a warrant to search at a future time. In this respect we disagree with the reasoning of the superior court that the constitutional requirement that probable cause be “previously supported by oath or affirmation” prohibits the issuance of an anticipatory search warrant. This language, rather, precludes any warrant from being issued if the application is not adjoined by sworn statements setting forth facts to support the probable cause determination.

Several federal courts have upheld the use of anticipatory search warrants under the fourth amendment to the United States Constitution, primarily in cases involving the controlled delivery of contraband. See, e.g., United States v. Tagbering, 985 F.2d 946 (8th Cir. 1993); United States v. Wylie, 919 F.2d 969 (5th Cir. 1990); United States v. Goodwin, 854 F.2d 33 (4th Cir. 1988). The United States Court of Appeals for the First Circuit recently held that anticipatory search warrants do not per se violate the fourth amendment. The court stated:

[W]hen law enforcement personnel offer a magistrate reliable, independent evidence indicating that a delivery of contraband will very likely occur at a particular place, and when the magistrate conditions the warrant’s execution for the search of that place on that delivery, the warrant, if not overbroad or otherwise defective, passes constitutional muster.

United States v. Ricciardelli, 998 F.2d 8, 11 (1st Cir. 1993).

The court reasoned that in cases involving the controlled delivery of contraband,

the facts put forward in support of an anticipatory search warrant predicated on the planned delivery of contraband to a particular location establish a greater likelihood that the contraband will be found there at the time of the search (which will be contemporaneous with the arrival of the contraband, or nearly so) than do facts put forward in support of a more conventional search warrant predicated on the known recent location of contraband at the proposed search site.

Id. In addition, the court reasoned that “inserting a neutral, detached judicial officer as a buffer between a citizen’s privacy rights and potential government overreaching . . . works equally as well in connection with anticipatory warrants” because the magistrate must still determine “whether there is probable cause to think that the contraband will be at the place to he searched at the time of the contemplated intrusion.” Id.

The court, however, set out specific conditions for the issuance of anticipatory search warrants. “First, the magistrate must ensure that the triggering event is both ascertainable and preordained. The warrant should restrict the officers’ discretion in detecting the occurrence of the event to almost ministerial proportions.” Id. at 12. “Second, the contraband must be on a sure and irreversible course to' its destination, and a future search of the destination must be made expressly contingent upon the contraband’s arrival there.” Id., cf. United States v. Garcia, 882 F.2d at 703; United States v. Lowe, 575 F.2d 1193, 1194 (6th Cir.), cert. denied, 439 U.S. 869 (1978); United States v. Odland, 502 F.2d 148, 152 (7th Cir.), cert, denied, 419 U.S. 1088 (1974).

We find the logic of the First Circuit persuasive. Nevertheless, even if the conditions set forth in Ricciardelli were extended to the case before us, which does not involve a controlled delivery of contraband, it is readily apparent why the State’s position fails. The warrant was made contingent on the confidential informant observing cocaine in the defendant’s apartment. The affidavit in support of the warrant application, however, offers no facts to support a determination that that event was both “ascertainable and preordained” and on a “sure and irreversible course” to transpiring. There was, for example, no evidence to support a determination that on February 21, 1992, the informant was certain to “respond” to the listed address, that the informant would gain access to the apartment, or that there would be cocaine in the apartment for the informant to observe. If the magistrate was provided additional information by way of oral statements under oath by the applicant, those statements were not made part of the record and Detective Hansen failed to appear for the scheduled suppression hearing.

The existence of probable cause to search satisfies only part of the mandate of part I, article 19. That determination must be made by a neutral and detached magistrate. State v. Kellenbeck, 124 N.H. at 764-65, 474 A.2d at 1391; see State v. Bradberry, 129 N.H. 68, 80, 522 A.2d 1380, 1387 (1986) (Batchelder, J., concurring specially) (probable cause determinations must be made by court officers, not law enforcement officials). The only plausible interpretation of this record is that the magistrate found no probable cause to search prior to the confidential informant reporting to the police that he had observed cocaine in the defendant’s apartment. As the superior court pointed out at the suppression hearing, if the magistrate concluded there was probable cause absent the occurrence of that event, “why then is it that [she] would have made such a specific comment by deleting certain language in the affidavit and making it conditional upon some future behavior.” We therefore affirm the superior court’s ruling that because the detached magistrate “inappropriately delegated [her] constitutional function to the prosecuting authority,” this search warrant was issued in violation of part I, article 19.

The dissent argues that we must undertake an independent inquiry into the existence of probable cause and concludes that even if the anticipatory portion of the affidavit is redacted, the remaining information as a matter of law supports a finding of probable cause. In this appeal, however, the State does not argue that the superior court erred by failing to review the sufficiency of the affidavit absent the contingent event, nor does it argue that we should undertake such a review. Rather, the State addresses its specific arguments to the validity of this anticipatory search warrant under the State Constitution, contending that because “[t]he determination that probable cause to search the defendant’s residence would exist after the occurrence of the contingent event was made by a neutral and detached magistrate,” and because “[t]here is no question that this affidavit established probable cause once the contingent event occurred,” there was no violation of the defendant’s rights under part I, article 19. Accordingly, we limit our decision to “the theory of the case as it has been presented to us.” State v. Valenzuela, 130 N.H. 175, 179-80, 536 A.2d 1252, 1256 (1987), cert. denied, 485 U.S. 1008 (1988). Furthermore, a review of the transcript of the suppression hearing, the affidavit in support of the search warrant application, and the police report filed by Detective Hansen of his discussion with Judge Dalianis at the time the search warrant was issued casts serious doubt on any finding of probable cause supported by the redacted affidavit.

II. Good Faith Exception to the Exclusionary Rule

The State next argues that even if we agree with the superior court that the search warrant violated part I, article 19, we ought to adopt a good faith exception to the exclusionary rule under the New Hampshire Constitution and reverse the court’s suppression order. We hold that a good faith exception is incompatible with the guarantees contained in part I, article 19. The dissent’s suggestion that our discussion on this issue merely constitutes dicta is without foundation.

The federal exclusionary rule was adopted by the United States Supreme Court in Weeks v. United States, 232 U.S. 383 (1914). The Court held that evidence seized in violation of the fourth amendment to the Federal Constitution must be excluded because to use such evidence would involve “a denial of the constitutional rights of the accused.” Id. at 398. The Weeks Court established the exclusionary rule as a necessary corollary to the prohibition against unreasonable searches and seizures, concluding that fourth amendment guarantees would be meaningless unless courts prohibited the government from using unlawfully seized evidence. Id. at 393-94.

This court, however, declined to adopt a State exclusionary rule in the years following Weeks. New Hampshire, like a majority of jurisdictions, then subscribed to the strict common law rule that a court must admit all competent and probative evidence regardless of its source. In State v. Mara, 96 N.H. 463, 465, 78 A.2d 922, 924 (1951), Justice Kenison explained: “In this State it has been the consistent practice for a century to admit relevant evidence in criminal cases although secured illegally. . . . Although the federal rule excluding such evidence has been in effect only since 1914, it has never been followed or approved in this State.” (Citation omitted.) In support of its position, the court expressed discomfort with “decisions of the Supreme Court relating to search and seizure [which] seem to exhibit a continually changing and vacillating solution of the problem,” id. at 466, 78 A.2d at 924, and noted that a majority of the States had not adopted the exclusionary rule, id. The court did, however, recognize that “[njeither rule is entirely satisfactory to both society and the individual and both rules may be the subject of abuse.” Id. at 467, 78 A.2d at 925; see also State v. Tracey, 100 N.H. 267, 125 A.2d 774 (1956).

In 1961, the United States Supreme Court required state courts to apply the federal exclusionary rule in state prosecutions, recognizing “[t]he obvious futility of relegating the Fourth Amendment to the protection of other remedies.” Mapp v. Ohio, 367 U.S. 643, 652 (1961). The Court held that “all evidence obtained by searches and seizures in violation of the Constitution is, by that same authority, inadmissible in a state court.” Id. at 655. The Court reiterated that the exclusionary rule was mandated by the Constitution to provide a remedy to those whose fourth amendment rights are violated. In addition, the Court noted that the exclusionary rule served to deter fourth amendment violations and protect judicial integrity. Id. at 658-59.

Beginning with United States v. Calandra, 414 U.S. 338 (1974), however, the Supreme Court began to retreat from the federal exclusionary rule. In refusing to apply the rule to grand jury proceedings, the Court stated that “the purpose of the exclusionary rule is not to redress the injury to the privacy of the search victim .... Instead, the rule’s prime purpose is to deter future unlawful police conduct and thereby effectuate the guarantee of the Fourth Amendment against unreasonable searches and seizures . . . .” Id. at 347-48.

In United States v. Leon, 468 U.S. 897 (1984), the Court concluded that the fourth amendment does not require the suppression of evidence obtained pursuant to a constitutionally defective warrant, so long as the police acted in good faith reliance upon the warrant issued by a neutral and detached magistrate. The Court held that evidence obtained by officers acting in reasonable reliance on a search warrant issued by a detached and neutral magistrate, although ultimately found to be unsupported by probable cause, may be admitted in the government’s case in chief. Id. at 913. Unlike its earlier opinions in Weeks and Mapp wherein the Court recognized several interrelated purposes to the exclusionary rule, in Leon the Court took the position that the sole purpose of the rule was to deter police misconduct. Id. at 916. The Court reasoned that as long as the officer acted in good faith reliance upon a warrant, there was no police misconduct “and thus nothing to deter.” Id. at 921.

Because Mapp required New Hampshire’s courts to apply the federal exclusionary remedy whenever a fourth amendment violation was found, there was little reason to employ a State exclusionary rule. Although this court never directly returned to the issue after 1956, see State v. Tracey, 100 N.H. 267, 125 A.2d 774, since at least 1983 our cases have implicitly recognized the existence of a State exclusionary rule. During this same time, in reaction to federal decisions narrowing the scope and content of fourth amendment rights, we repeatedly emphasized the importance of undertaking independent interpretation of our State constitutional guarantees. See State v. Ball, 124 N.H. 226, 231-33, 471 A.2d 347, 350-52 (1983); see also State v. Bradberry, 129 N.H. at 73, 522 A.2d at 1382 (opinion of Brock, C.J.); State v. Koppel, 127 N.H. 286, 291, 499 A.2d 977, 979-80 (1985); State v. Sidebotham, 124 N.H. 682, 686-87, 474 A.2d 1377, 1379-80 (1984); State v. Settle, 122 N.H. 214, 217-18, 447 A.2d 1284, 1285-86 (1982) (plurality opinion).

In State v. McGann, 124 N.H. 101,106-07, 467 A.2d 571, 574 (1983), we held that a warrantless search of the defendant’s vehicle violated his rights under part I, article 19, and stated, “Since the fruits of that search provided the primary basis for the objects that were the subject of the defendant’s motion to suppress, that motion should have been granted.” Similarly, in State v. Tapply, 124 N.H. 318, 325-326,470 A.2d 900, 905 (1983), we held that an interview of the defendant while in police custody must be excluded as evidence because of a violation of the defendant’s rights under part I, article 19, reasoning that because the detention was illegal, “regardless of the Miranda warnings, even if there were a valid waiver, the article 19 and fourth amendment violations stand as a bar to the use of the . . . statements.” Id. at 326, 470 A.2d at 905.

Again, in State v. Chaisson, 125 N.H. 810, 819, 486 A.2d 297, 304 (1984), we held that the defendant’s right to be free from an unreasonable seizure under part I, article 19 had been violated and ordered that “any evidence obtained in violation of this right cannot be used at trial.” See also State v. Silvestri, 136 N.H. 522, 528, 618 A.2d 821, 824 (1992) (defendant’s motion to suppress should have been granted because seizure was illegal under State Constitution); State v. Santana, 133 N.H. 798, 809, 586 A.2d 77, 84 (1991) (illegal warrantless entry in violation of part I, article 19 requires suppression of the evidence). In none of these cases, however, was it explained why the State Constitution forbids the use of such evidence.

The warrant requirement embodied in part I, article 19 was intended to abolish general warrants and writs of assistance which had been used by the British to conduct sweeping searches based upon generalized suspicions and without specifying the places to be searched or things to be seized. See State v. Tucker, 133 N.H. 204, 206, 575 A.2d 810, 812 (1990); see also State v. Cavanaugh, 138 N.H. 193, 194, 635 A.2d 1382, 1383 (1993). When part I, article 19 was adopted as part of this State’s Constitution in 1784, therefore, its purpose plainly was to prohibit the issuance of warrants that did not satisfy the requirements of probable cause and particularity.

This court has recognized that part I, article 19 safeguards privacy and protection from government intrusion. See State v. Chaisson, 125 N.H. at 816, 486 A.2d at 301; State v. Kellenbeck, 124 N.H. at 764, 474 A.2d at 1391; State v. Theodosopoulos, 119 N.H. 573, 580, 409 A.2d 1134, 1138 (1979), cert. denied, 446 U.S. 983 (1980); see also State v. Bradberry, 129 N.H. at 76, 522 Á.2d at 1385 (Batehelder, J., concurring specially).

[W]hen. the entry is made into an individual’s private dwelling, where there exists a strong expectation of privacy and protection from government intrusion, the requirement of a warrant is particularly stringent. To have it otherwise would [be to] obliterate one of the most fundamental distinctions between our form of government, where officers are under the law, and the police-state where they are the law.

State v. Santana, 133 N.H. at 803, 586 A.2d at 80 (quotations and citation omitted). Part I, article 19 thus manifests a preference for privacy over the level of law enforcement efficiency which could be achieved if police were permitted to search without probable cause or judicial authorization.

We view the exclusionary rule as a logical and necessary corollary to achieve the purposes for which prohibitions against unreasonable searches and seizures were constitutionalized. Cf State v. Flynn, 123 N.H. 457, 465, 464 A.2d 268, 273 (1983) (suppression of evidence obtained in violation of Privacy Act, RSA chapter 359-C, is appropriate remedy to vindicate purposes behind the statute). While we do not dispute that deterrence of police misconduct is a central aim of the exclusionary rule, see State v. Gravel, 135 N.H. 172, 181, 601 A.2d 678, 683 (1991), we disagree that it is the rule’s sole purpose.

The exclusionary rule serves to redress the injury to the privacy of the search victim and guard compliance with the probable cause requirement of part I, article 19. See State v. Novembrino, 519 A.2d 820, 856 (N.J. 1987). “Enforcement of the rule places the parties in the position they would have been in had there been ... no violation of the defendant’s constitutional right to be free of searches [and seizures] made pursuant to warrants issued without probable cause.” Stringer v. State, 491 So.2d 837, 850 (Miss. 1986) (Robertson, J., concurring). In so doing, the rule also preserves the integrity of the judiciary and the warrant issuing process. See State v. Tucker, 133 N.H. at 208, 575 A.2d at 813.

We hold that the good faith exception is incompatible with and detrimental to our citizens’ strong right of privacy inherent in part I, article 19 and the prohibition against the issuance of warrants without probable cause. We draw support not only from the history of part I, article 19 and the development of our jurisprudence under that provision, but also from other States that have held that the good faith exception is inconsistent with state constitutional requirements of probable cause. See State v. Marsala, 579 A.2d 58 (Conn. 1990); State v. Gutierrez, 863 P.2d 1052 (N.M. 1993); State v. Carter, 370 S.E.2d 553 (N.C. 1988); Commonwealth v. Edmunds, 586 A.2d 887 (Pa. 1991); see also State v. Guzman, 842 P.2d 660 (Idaho 1992); People v. Bigelow, 488 N.E.2d 451 (N.Y. 1985); State v. Oakes, 598 A.2d 119 (Vt. 1991). As the Pennsylvania Supreme Court concluded:

[0]ur Constitution has historically been interpreted to incorporate a strong right of privacy, and an equally strong adherence to the requirement of probable cause .... Citizens in this Commonwealth possess such rights, even where a police officer in “good faith” carrying out his or her duties inadvertently invades the privacy or circumvents the strictures of probable cause. To adopt a “good faith” exception to the exclusionary rule . . . would virtually emasculate those clear safeguards which have been carefully developed . . . over the past 200 years.

Commonwealth v. Edmunds, 586 A.2d at 899.

“The framers did not intend the safeguards of the warrant requirement to be circumvented merely by allowing law enforcement officials to act reasonably under the circumstances.” State v. Ball, 124 N.H. at 237, 471 A.2d at 354. “[W]e are simply unable to sanction a practice in which the validity of search warrants might be determined under a standard of ‘close enough is good enough’ instead of under the ‘probable cause’ standard mandated by [part I, article 19] of our state constitution.” State v. Marsala, 579 A.2d at 68. Because the search warrant in this case was not based upon a determination of probable cause made by a neutral and detached magistrate, we affirm the superior court’s order suppressing the evidence seized pursuant to the search.

Affirmed.

BATCHELDER, J., concurred; JOHNSON, J., concurred specially; Thayer, J., with whom Horton, J., joined, dissented.