DocketNumber: No. 91-197
Citation Numbers: 137 N.H. 29
Judges: Thayer
Filed Date: 4/7/1993
Status: Precedential
Modified Date: 9/9/2022
The defendant, Elmer Lee Barron, was convicted by a jury in superior court of first degree murder. On appeal, the defendant contends that a nighttime search of his apartment had not been authorized by the issuing magistrate, and therefore violated RSA 595-A:2 and :3 (1986), as well as his rights under the fourth
On April 26, 1990, the New Hampshire State Police submitted an application for a search warrant with a supporting affidavit to a Derry District Court judge (the “issuing magistrate”) sometime between 10:00 and 11:00 p.m. The police sought to search the defendant’s apartment in Londonderry for “instruments for administering blunt trauma, instruments for administering injuries which would cause bleeding, blood stained items, fingerprints, hair, fibers, other microscopic or trace evidence, a body [and] any item belonging to [the victim].” The supporting affidavit indicated that the defendant was the lessee of the apartment and that he had been arrested and was in police custody at the time. There was nothing in the affidavit that indicated that anyone else lived in the apartment rented to the defendant. Based on the application and supporting affidavit, the issuing magistrate signed the warrant form commanding the police “in the daytime (or at any time of the day or night) to make an immediate search of [the defendant’s apartment].” The police immediately executed the warrant at approximately 11:20 p.m.
Before trial, the defendant moved to suppress the evidence seized from his apartment during the nighttime search. The Superior Court (McHugh, J.) denied the motion.
On appeal, the defendant argues that the nighttime search violated RSA 595-A:2 and :3; part I, article 19 of the State Constitution; and the fourth amendment to the Federal Constitution, because the issuing magistrate did not explicitly authorize the nighttime search, and the supporting affidavit did not contain sufficient facts to justify a nighttime search. Specifically, the defendant contends that the issuing magistrate “apparently signed the warrant without designating whether a nighttime search was authorized” since the magistrate did not circle or strike any of the preprinted language on the actual warrant form that directed the police to search “in the daytime (or at any time of the day or night).” Furthermore, the defendant argues that the affidavit failed to articulate any basis for a nighttime search, and thus the State cannot claim that the magistrate intended to authorize a nighttime search.
The State, however, maintains that the nighttime search was conducted in accordance with statutory requirements. The State argues that if the magistrate had decided to limit his authorization to the daytime, he would have crossed out the parenthetical phrase: “(or at any time of the day or night).” Moreover, the State argues that the affidavit and surrounding circumstances justified the authorization of a nighttime search.
The defendant next argues that the supporting affidavit neither requested a nighttime search nor contained a sufficient factual basis to justify a nighttime search. We disagree. In his argument, the defendant cites to cases from other jurisdictions which require, by statute or rule, that the application and supporting affidavit for a nighttime search include a specific request and factual basis for justifying a nighttime search. For a nighttime search warrant in New Hampshire, our statute is silent on what is required in the supporting affidavit. Before the current version of RSA chapter 595-A was enacted, the warrant statute required that a nighttime search be supported by “satisfactory evidence that any such property or thing, or any criminal, is concealed in a particular house or place, and may be removed or escape before day . . . .” RSA 595:2 (1969) (repealed) (emphasis added). In 1969, the legislature deleted this “satisfactory evidence” requirement by repealing RSA 595:2. The current warrant statute does not set forth any specific requirement for procuring a nighttime search warrant.
Finally, the defendant argues that because the nighttime search constituted a flagrant violation of RSA 595-A:2, it was unreasonable under both the State and Federal Constitutions and required suppression of the evidence. Because we have found no statutory violation at all, we reject the defendant’s constitutional claims.
Affirmed.