133 N.H. 211 | N.H. | 1990
Following convictions for possession of a controlled drug with intent to sell, RSA 318-B:2 (1984) (current version in Supp. 1989), and possession of more than a pound of a cannabis-type drug, RSA 318-B:2, :26 (1984) (current version in Supp. 1989), the defendant claims that evidence introduced against him was seized under a warrant issued on insufficiently corroborated information supplied by an informer. The Superior Court (Perkins, J.) ruled otherwise, and we affirm.
The details of the defendant’s criminal activity are relevant to this appeal only insofar as they appear from the affidavit filed with the application for the warrant issued to search his Jefferson house for illicit drugs, paraphernalia and records indicative of criminal drug dealing. From that lengthy affidavit, it is sufficient to consider the following allegations.
On February 21, 1987, Manchester Police Department Detective Richard O’Leary, then assigned to the State Drug Task Force, stated
Detective O’Leary then described a telephone call placed in his presence on February 19 by the informér to the defendant at the previously verified number, resulting in a conversation intercepted and taped under the authority of RSA 570-A:2, 11(d). The informer had promised he would pay some of the money already owed to the person answering, whom he had asked to “front” another “3 pounds.” The detective described the informer’s subsequent call in his presence to the same number the next day, February 20, likewise subject to interception. According to the detective, the tape revealed that someone answering to the name of “Lewis” took the call, said he would be in Manchester on Saturday between 10 and 10:30 a.m. and, when asked if he would bring some “pot,” answered that he “would have the stuff.”
The detective summarized the results of police surveillance the next day, Saturday, February 21. The defendant drove from his Jefferson house about 8:15 a.m. and was followed as far south as Concord, where the police lost him at 10:35 a.m. They then went to the Manchester “delivery location,” where the defendant arrived about 11:30 a.m., at which point he was promptly arrested and was’ found to have $1,127 in cash on his person. (Although the affidavit described drugs and cash seized from the defendant’s car, these were later ruled to be fruits of an unlawful search. In passing on the warrant’s challenged validity, the trial court therefore excised the references to the fruits of the car search, see Franks v. Delaware, 438
The detective concluded the affidavit with personal opinions based on experience said to have been gained in some three hundred drug investigations and education at a school run by the United States Drug Enforcement Administration. He stated that because drug dealers are often drug users as well, they are apt to keep drugs for personal use at their homes, where weapons, records of dealing, dealers’ equipment, and money used in their transactions are also likely to be found.
This affidavit’s adequacy to establish probable cause for the warrant to search the defendant’s Jefferson premises (where drugs and other incriminating evidence were found) is to be judged by the following standard under both part I, article 19 of the State Constitution, and the fourth amendment of the National Constitution:
“‘[G]iven all the circumstances set forth in the affidavit before [the magistrate], including the “veracity” and “basis of knowledge” of persons supplying hearsay information, [was there] a fair probability that contraband or evidence of a crime [would] be found in [the] particular place [described in the warrant?]”’
State v. Carroll, 131 N.H. 179, 186, 552 A.2d 69, 73 (1988) (quoting Illinois v. Gates, 462 U.S. 213, 238 (1983)). In challenging the warrant under this standard, the defense rests everything on the affidavit’s supposed insufficiency to establish the informer’s truthfulness as the foundation for accepting the allegations attributed to him, and on its failure otherwise to corroborate the assertions of fact on which the finding of probable cause must have rested. On the contrary, the trial court was entitled to find the combined evidence of veracity and corroboration more than adequate to support the warrant.
It is true, of course, that corroboration before February 19 went only to details that did not of themselves incriminate the defendant, although confirmation even of such innocent facts as the informer’s description of derelict autos and T.V. antennas in the defendant’s yard lent some weight to the informer’s other statements. See State v. Hazen, 131 N.H. 196, 201, 552 A.2d 77, 80 (1988). It is likewise true that the informer’s whole story had to be taken whence it came, from the mouth of a defendant trying to save his own skin. But participation in plea bargaining imposes no automatic disqualification on an
The affidavit does not, however, force us to make nice calculations of truthfulness, for its account of the events on February 19, 20 and 21 not only points to the informer’s veracity, but supplies its own predicate for probable cause. It takes no special insight to understand that “Lewis’s” undertaking to deliver the “stuff,” and the defendant’s drive to Manchester with an abnormal amount of cash on the morning set for the delivery, revealed someone in the business of dealing in marijuana and ready to sell it to the informer who placed the order. Thus, the accounts of the phone conversations and the defendant’s trip to Manchester were significant, first, in confirming the informer’s story about prior dealings and his observations about marijuana at the Jefferson house, and, second, in supplying steps in a chain of reasoning that the defendant’s house would probably contain drugs, at least for personal use, and the other appurtenances of dealing that Detective O’Leary had said were often found in a dealer’s dwelling.
The defendant is of course correct that the Manchester trip did not result in a “controlled buy” of drugs, as in Hazen, which would have enhanced the informer’s story to a spectacular degree. But that is no matter. It is still true that the affidavit’s account of the telephone conversations and the Manchester trip capped the evidence that the defendant was currently a dealer, and that evidence was an adequate source of probable cause to expect drugs and paraphernalia in his house, sufficient to justify the warrant.
Affirmed.