State v. ConantState v. Conant
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- Before:
- Johnson
A jury in Superior Court (Mangones, J.) convicted the defendant, Craig Conant, of three felonies arising out of transactions involving the sale, possession, and criminal solicitation of controlled substances.
After being arrested for possessing approximately eighteen pounds of marijuana, Joel Gomarlo (the informant) agreed to assist police in their investigation of other crimes involving illegal drugs. Initially, the informant lied to the police by giving them “false names.” Later, the informant told a police detective that the defendant had told him that the defendant had “gotten one-half pound of cocaine and was looking for some pounds of pot.” The detective related this information to an assistant county attorney, who recalled that the defendant had been charged previously with possession of illegal drugs. The assistant county attorney testified that based on this information, he had determined that there was “a reasonable suspicion” that an intercepted conversation between the informant and the defendant, obtained via a body wire or telephone tap, would “yield evidence of a violation of
Thereafter, the informant met with the defendant several times. He wore an electronic intercept device to these meetings, which recorded incriminating conversations between him and the defendant.
The recordings led to the defendant’s arrest for drug-related crimes. Before trial, the defendant moved to suppress the electronically-intercepted conversations and all other evidence obtained as a result of them. The motion was denied. A jury found the defendant guilty, and he appealed, arguing that the intercept authorizations were not based on reasonable suspicion as required by
After an evidentiary hearing on the defendant’s motion to suppress, the trial court found that the assistant county attorney’s authorizations were based upon a reasonable suspicion that evidence would be derived from the interception. A trial court’s findings on reasonable suspicion will be upheld unless clearly erroneous. Cf. State v. Brown, 138 N.H. 407, 409, 640 A.2d 286, 287 (1994) (appellate review of probable cause determination).
Under
In reviewing the totality of the circumstances, we examine the informant’s veracity and basis of knowledge, as well as “other indicia of reliability.” State v. Christy, 138 N.H. 352, 357, 639 A.2d 261, 264 (1994) (probable cause analysis) (quotation omitted). “The factors used to evaluate the informant’s reliability, credibility, and basis of knowledge are the same” as those used in analyses of probable cause. Kennison, 134 N.H. at 247, 590 A.2d at 1101. However, “[t]he quantity of information needed to support reasonable suspicion is of course less than that required for probable cause.” Id.
The informant’s veracity or credibility may be inferred if the informant has “an established track record with the police [or has] offered to demonstrate her reliability,” Christy, 138 N.H. at 357-58, 639 A.2d at 265 (citations omitted); or if the tip is against the informant’s penal interest, id. at 359, 639 A.2d at 266, and the informant has “no apparent reason to he,” Dutton v. Evans, 400 U.S. 74, 89 (1970) (indicia of reliability in determining whether hearsay testimony is admissible); but see State v. Wilkinson, 136 N.H. 170, 174-75, 612 A.2d 926, 928-29 (1992) (informant’s possible desire for private vengeance against person implicated by tip did not negate informant’s credibility).
*731Absence of information concerning an informant’s reliability, in and of itself, does not require a finding of no reasonable suspicion if the basis of knowledge is otherwise sufficient. See State v. Hazen, 131 N.H. 196, 201, 552 A.2d 77, 80 (1988). An informant who has personally observed incriminating behavior has a stronger basis of knowledge than does an informant who relates not what he knows personally, but what he has heard others say. See State v. Bradberry, 129 N.H. 68, 75, 522 A.2d 1380, 1383-84 (1986). Moreover, an explicit and detailed description of alleged wrongdoing is entitled to greater weight than a general assertion of criminal activity. Compare Christy, 138 N.H. at 357, 639 A.2d at 264-65 (informant gave specific description of defendant’s modus operandi) with Kennison, 134 N.H. at 247, 590 A.2d at 1101 (anonymous informant stated only that he had observed marijuana in trunk of defendant’s car).
Police corroboration of part of an informant’s tip may compensate for an informant’s lack of credibility and basis of knowledge. Alabama v. White, 496 U.S. 325, 329-32 (1990). If law enforcement officials are able to corroborate an informant’s prediction of someone’s . future behavior, therefore, the tip may supply reasonable suspicion even if the informant was not otherwise credible and did not provide a basis of knowledge. See id.
Also relevant to our examination of reasonable suspicion is whether the police have other incriminating evidence, see, e.g., Christy, 138 N.H. at 358-59, 639 A.2d at 266 (police had received tips from other informers within narrow time frame), and whether the person implicated by the informant’s tip has a criminal reputation, United States v. Harris, 403 U.S. 573, 579-80 (1971). Abare allegation that a person has engaged in criminal activity in the past, however, without specifying the nature of the acts and how recently they occurred, does not support a finding of reasonable suspicion. See Kennison, 134 N.H. at 248-49, 590 A.2d at 1102.
Having set forth some of the relevant considerations in the totality-of-the-circumstances test, we proceed to determine whether the informant’s tip in this case created a reasonable suspicion under the totality of the circumstances.
The defendant argues that the informant lacked reliability because he had no track record with the police, because he initially lied to the police by supplying them with false names, and because he was from the “criminal milieu.” The informant’s offer to demonstrate his reliability by wearing a body wire and personally arranging a drug purchase, however, gave the assistant county attorney reason to believe that the informant was telling the truth regarding the defendant.
The defendant also argues that the informant’s basis of knowledge was minimal. The informant could have demonstrated a *732stronger basis of knowledge by describing the circumstances under which he came to be discussing illicit drugs with the defendant; however, the informant was a direct participant in the conversation regarding the defendant’s possession of cocaine and his desire to obtain marijuana. His tip was therefore based on firsthand knowledge.
Finally, the defendant cites Kennison to support his proposition that the assistant county attorney’s recollection that the defendant had been charged previously with possession of a controlled drug “is of virtually no weight.” In Kennison, however, the police officer had information only of Kennison’s “possible involvement” with illicit drugs four years earlier. Kennison, 134 N.H. at 248-49, 590 A.2d at 1102. A mere assertion of a person’s possible involvement with drugs, which is conclusory and vague, differs qualitatively from a recollection that a person had actually been charged with drug possession. While such a recollection alone would not support a finding of reasonable suspicion, it is a factor to be considered in the totality of the circumstances. See Harris, 403 U.S. at 575, 579-80.
We conclude that under the totality of the circumstances the informant’s tip exhibited sufficient indicia of reliability to justify use of electronic interception devices and that suppression of the evidence thus obtained was not warranted.
Affirmed.
All concurred.