Lead Opinion
The defendant, Joan Bradberry, was found guilty by the Superior Court (Johnson, J.) of possession of Lysergic Acid
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 res
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,
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,
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,
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,
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,
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,
“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,
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.
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,
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,
In addition, this court has never expressly adopted State v. Mandravelis,
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.
Concurrence Opinion
concurring specially: I concur in the result today because the search warrant issued in this case was valid under State v. Mandravelis,
The issue before us is not a novel one. Simply stated, it comes down to this: How much support and propping up must be required of otherwise inadmissible hearsay in order for a magistrate to accept it as a basis for determining probable cause sufficient to permit the government to invade a right of privacy protected by part I, article 19 of the New Hampshire Constitution and the fourth amendment to the United States Constitution. When considering the meaning and effect of part I, article 19 of the New Hampshire Constitution, it is worthwhile to consider Justice Jackson’s admonition in Brinegar v. United States,
“[The rights of the people to be free from unreasonable searches and seizures] are not mere second-class rights but belong in the catalog of indispensable freedoms. Among deprivations of rights, none is so effective in cowing a population, crushing the spirit of the individual and putting terror in every heart. Uncontrolled search and seizure is one of the first and most effective weapons in the arsenal of every arbitrary government. ...
But the right to be secure against searches and seizures is one of the most difficult to protect. Since the officers are themselves the chief invaders, there is no enforcement outside of court.”
Id. at 180-81 (dissenting opinion). The lead opinion disregards the dangers of eroding these precious rights by undermining court review of police activity based on informants’ tips.
Under part I, article 19 of the New Hampshire Constitution, search warrants must be supported by probable cause. See, e.g., State v. Pinder,
“the basic requirements for a valid search warrant . . . [mandate that w]hen all or part of the information comes from the informer, the police officer should: (a) state what part comes from the informer; (b) state the facts received from the informer not merely his 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,
In the present case, one of the officers received an informant’s tip which indicated that the defendant was a drug user who kept cocaine in her car. As noted in the lead opinion, the officer related the specific facts which he had received from the informant to the magistrate, indicated that the information was based on the informant’s personal observations, and advised the magistrate that the informant was a businessman whom he had never known to be untrustworthy over the course of a 15-year acquaintance. In addition, the other officer involved testified before the magistrate that the defendant had been at the home of a known drug user. Cf. Mandravelis,
I reject the lead opinion’s reliance on a “totality-of-the-circumstances” approach to probable cause determinations. The problem with reliance on this approach in this case is that it is unnecessary because the challenged search warrant is valid under Mandravelis. As a matter of prudence, this court should not “decide questions of a constitutional nature unless absolutely necessary to a decision of the case.” Ashwander v. Tennessee Valley Authority,
More importantly, adoption of the “totality-of-the-circumstances” approach would be unwise. See generally 1 LaFave, SEARCH AND Seizure § 3.3 (Supp. 1986). Mandravelis is good law. It sets forth a workable standard and set of guidelines which, when applied in a practical rather than a stilted or wooden manner, has served the State well for more than a decade. I see no reason to abandon its teachings for the uncertain and unpredictable currents of fourth amendment law presently being written in the federal judiciary, albeit relied upon only for guidance by the lead opinion.
By definition, only reliable information can establish probable cause. Information which is less than reliable would not justify the person of “ordinary caution” in the belief that a search or seizure was proper. Cf. State v. Doe,
The analytical framework adopted in Mandravelis attempts to balance the needs of law enforcement and our citizens’ rights to be free from unreasonable searches and seizures. Under Mandravelis, warrants may be issued on the basis of informants’ tips, but only if a magistrate is able to determine that the informer and the information supplied by him are reliable. Moreover, probable cause determinations are often difficult, and Mandravelis provides useful guidance to those court officers charged with enforcing the command of part I, article 19 of our Constitution “by directing [their] attention to relevant factors.” Comment, Illinois v. Gates: Re-Structuring Hearsay Analysis in Probable Cause Determinations, 35 Syracuse L. Rev. 1067, 1111 (1984).
Although this case is not a difficult one, the problems which are inherent in the new approach are clear in the lead opinion today. It is suggested that an informer’s credibility and basis of knowledge would remain central to the probable cause determination but that “these factors would be flexible in the sense that a deficiency in one could be offset by an abundance in another. . . .” This statement defies logic insofar as it suggests that an informer who recites his information in minute detail, but who is not at all credible, may supply all the information necessary to establish probable cause. This cannot be so because the reasonable person would surely recognize that if the informer “were concocting a story out of the whole cloth, he could fabricate in fine detail as easily as with rough brush strokes. Minute detail tells us nothing about ‘veracity.’” Stanley v. State,
Similarly, the lead opinion is off the mark if the suggestion is that an informer of known credibility who has no identifiable basis of knowledge can provide information which, standing alone, can establish probable cause. This result is forbidden by Nathanson v. United States,
“[A magistrate] may not properly issue a warrant to search a private dwelling unless he can find probable cause therefor from facts or circumstances presented to him under oath or affirmation. Mere affirmance of belief or suspicion is not enough.”
I realize that my position represents a minority view; most States which have considered this issue have accepted the “totality-of-theeircumstances” approach as a guide to probable cause determinations. See, e.g., State v. Arrington,
“To perform the constitutionally prescribed function, rather than being a rubber stamp, a magistrate requires an affidavit which informs him of the underlying circumstances which lead the officer to conclude that the informant was credible and obtained the information in a reliable way. Only in this way ... can the magistrate make the proper independent judgement....”
State v. Jackson,
The faults in the “totality-of-the-circumstances” approach to probable cause determinations arise from the failure to recognize that information from unnamed police informers, who either do not relate their basis of knowledge or who are not known to be credible, should be used only as a starting point for police investigation and not as a basis for probable cause. In some cases, reliance on informer’s tips may be a necessary evil, but, because the motivations of the informer are often questionable, courts should encourage police to conduct their own investigations and thereby minimize reliance on the unnamed informer in the criminal justice process.
Concurrence Opinion
concurring specially: This appeal presents an issue of suppression under the fourth and fourteenth amendments of the Constitution of the United States, and in deciding this federal issue I concur in the result reached by the other members of the court who have filed opinions concluding that the challenged evidence is admissible. Like Justice Batchelder, I believe that the warrant may be sustained'under the earlier federal rule summarized in State v. Mandravelis,
In State v. Dellorfano,
The defendant’s motion to suppress, filed in the trial court, cites two cases applying federal standards, State v. Mandravelis supra and State v. Gilson,
Although this failure behooves us to restrict our consideration to the application of federal standards, I think it is worthwhile to indicate why the defendant has also failed to satisfy the second Dellorfano condition, which requires her to address the State issue in her brief presented to us. I recognize that the actual language in Dellorfano, requiring a defendant to “invoke” the State Constitution in his appellate brief, can be read so narrowly as to suggest that a mere citation is sufficient to preserve a State issue on appeal. We cannot, however, accept such a limited view of Dellorfano or of a defendant’s responsibility. Advocacy consists of something more than citation or incantation, and we have held in other contexts that a brief’s mere passing reference to an issue does not suffice to present that issue for appellate adjudication. See D.W. Clark Road Equip., Inc. v. Murray Walter, Inc.,
The defendant has not satisfied this obligation. In order to decide this appeal on State constitutional grounds we would first have to adopt a State standard for weighing hearsay derived from an unnamed informant, when such hearsay is offered to demonstrate probable cause. Given the current terms of the debate on this subject, we would have to choose between the Mandravelis demand for separate affirmative demonstrations of reliability and credibility, on the one hand, and the more generalized Gates totality-of-circumstances test, on the other. See opinions of Brock, C.J., and Batchelder, J., supra.
The defendant’s brief does not address this issue. It is written, rather, on the assumption that the law as articulated in State v. Mandravelis supra is already a State constitutional standard. Although the defendant recognizes that Mandravelis itself applied federal law as articulated in Aquilar v. Texas,
Whether Mandravelis should be adopted as a State constitutional standard is therefore wholly an open question, which the defendant does not address because of her reading of Corey. Instead, she restricts herself to an argument that application of the Mandravelis standard requires suppression of the evidence seized. She qualifies this approach only by two réferences to the general State requirement that there be probable cause for issuance of a warrant and by three other citations to article 19 in support of wholly conclusory statements. In sum, the defendant does not confront the novel issue of State constitutional law that underlies her position, and she does not address the debate between the views expressed in the preceding opinions of my brothers. The appeal is therefore inadequate to present an issue of State constitutional law for our review.
Perhaps it is worthwhile to add a word about the need that underlies the insistence on the standard I have tried to express. It is the need of every appellate court for the participation of the bar in the process of trying to think sensibly and comprehensively about the questions that the judicial power has been established to answer. Nowhere is the need greater than in the field of State constitutional