THE STATE OF NEW HAMPSHIRE SUPREME COURT

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1 THE STATE OF NEW HAMPSHIRE SUPREME COURT In Case No , State of New Hampshire v. Eddie Johnson, the court on June 3, 2016, issued the following order: The defendant, Eddie Johnson, appeals his conviction, following a bench trial on stipulated facts in Superior Court (Kissinger, J.), on charges of possession with intent to sell, and conspiracy to possess with intent to sell, controlled drugs. See RSA 318-B:2 (Supp. 2015). The defendant contends that the trial court, in denying his motion to suppress, violated his state and federal constitutional rights by ruling that: (1) the police had probable cause for his warrantless arrest; (2) the subsequent warrant to search his car sufficiently described the location to be searched; (3) the warrant to search his car was supported by probable cause; and (4) the warrantless entry into his car was proper. We address his arguments first under the State Constitution and rely on federal law only to aid in our analysis. State v. Ball, 124 N.H. 226, 233 (1983). We affirm. We first address whether the police had probable cause to support the defendant s warrantless arrest. An officer has probable cause to arrest when the officer has knowledge and trustworthy information sufficient to warrant a person of reasonable caution and prudence in believing that the arrestee has committed an offense. State v. Ducharme, 167 N.H. 606, 611 (2015). In determining whether the police had probable cause, we review the reasonable probabilities and do not require the amount of evidence necessary to sustain a conviction or to make out a prima facie case. Id. We are not bound by mathematical calculations in making this determination, but instead must approach the issue with a concern for the factual and practical considerations of everyday life upon which reasonable and prudent people, not legal technicians, act. Id. In assessing whether an officer had probable cause, we do not view each item of evidence separately, but rather as a whole, and from the arresting officer s point of view at the time the arrest was made. Id. We will not overturn a trial court s determination of probable cause unless, when the evidence is viewed in the light most favorable to the State, the decision is contrary to the manifest weight of the evidence. Id. The defendant relies upon State v. Lantagne, 165 N.H. 774, 777 (2013), to argue that our standard of review is open to question. However, in that case, which pre-dates Ducharme, we simply noted that the defendant did not contest the application of this standard of review.

2 In the case at hand, the trial court found that the police had information from a reliable confidential informant [CI] that a drug dealer known as Benny, a tall black male, was going to meet him at the Keene Inn at around noon on [Thursday] October 31, 2013, to facilitate the sale of illegal drugs. The CI said that Benny often drove rental cars in his drug dealings. In the minutes prior to the arrest, the CI continued to have multiple telephonic contacts with Benny in which Benny said he was approaching the location of the Keene Inn. The car driven by the defendant (a tall black male) was seen heading towards the Keene Inn just as Benny had indicated. The police observed this car abruptly and inexplicably pull into the Keene Inn parking lot and then quickly exit the parking lot heading in the same direction. This was the only car observed entering the parking lot of the Keene Inn around that time. Furthermore, a detective testified that the car that the defendant was driving was meticulously detailed consistent with a rental vehicle. The defendant argues that merely being a black male driving into and out of a hotel parking lot where a drug transaction is supposed to shortly occur should not be enough to arrest someone. However, other than contesting whether officers could determine his height while he was sitting in the vehicle, the defendant does not challenge the facts that the trial court found. The defendant argues that the CI s description was general, with the only apparent matching descriptive feature, prior to his exit from the car, being that he was a black male. However, the defendant s actions, as well as his appearance, connected him to the planned drug transaction. The defendant argues that he did not attempt to flee. However, he does not cite, nor are we aware of, any authority requiring such an attempt to justify a warrantless arrest. The defendant argues that his situation is distinguishable from prior cases because he was only near the location of a planned crime, not a completed one. However, viewing the evidence in the light most favorable to the State, we conclude that the officers had knowledge and trustworthy information sufficient to warrant a person of reasonable caution and prudence in believing that the defendant possessed drugs. See Ducharme, 167 N.H. at 611; RSA 318-B:2. We next address whether the warrant for the search of the defendant s car adequately described the location to be searched. A warrant must describe with particularity the places that may be searched such that an officer with the warrant can, with reasonable effort, ascertain and identify the places intended. State v. Champagne, 152 N.H. 423, 430 (2005). We defer to the trial court s findings of fact, but review its conclusions of law de novo. Id. In this case, the warrant stated that there was probable cause to believe that evidence might be in the vehicle and on the persons of the defendant and 2

3 his passenger. Although at another point in the warrant the description of the vehicle was left blank, we conclude that the initial description of the vehicle identified it as the car that the defendant was driving when he was arrested and was sufficient to allow officers to identify the location to be searched because only one car was seized with the defendant. See State v. Moccia, 119 N.H. 169, 173 (1979) (stating technical attacks on warrants are not encouraged). This warrant is fundamentally different from a warrant that contains no description of the location to be searched, cf. Groh v. Ramirez, 540 U.S. 551, 557 (2004) (holding warrant invalid because it contained no description of items to be seized), or that described a location different from the one that the police searched, see United States v. Crabtree, 77 F. Supp. 3d 1192, 1194 (S.D. Ala. 2015) (holding warrant invalid because it described location to be searched completely incorrectly). We next address whether the warrant to search the defendant s car was supported by probable cause. Probable cause exists if a person of ordinary caution would justifiably believe that what is sought will be found through the search and will aid in a particular apprehension or conviction. State v. Ball, 164 N.H. 204, 207 (2012). The police must demonstrate in an application for a search warrant that there is a substantial likelihood that the items sought will be found in the place to be searched. Id. However, they need not establish with certainty, or even beyond a reasonable doubt, that the search will lead to the desired result. Id. We afford much deference to the issuing court s probable cause determination. Id. at 208. We review the affidavit in a common-sense manner and determine close cases by the preference to be accorded to warrants. Id. We consider only the information that the police brought to the issuing court s attention. Id. at 207. We review the trial court s order denying a defendant s motion to suppress de novo, except with respect to any controlling factual findings. Id. In this case, the detective s affidavit included the fact that he had observed marijuana in the defendant s car when he opened the driver s door to place the keys on the seat for the tow truck driver. The defendant argues that this information was illegally obtained and that without it no person of ordinary caution would believe there was a fair probability that drugs would be found in [the defendant s] car. On the contrary, we conclude that, even if this information were illegally obtained and therefore excised from the affidavit, the issuing court still had probable cause to issue a warrant to search the defendant s car. See State v. Letoile, 166 N.H. 269, 277 (2014) (stating that, to test validity of search warrant issued upon affidavit referencing illegally seized evidence, reviewing court excises tainted information and examines remaining information to determine whether it establishes probable cause). Although the 3

4 defendant also contends that the evidence obtained from his warrantless arrest is tainted, we have concluded above that his arrest was supported by probable cause. See Ducharme, 167 N.H. at 611. Accordingly, we do not excise from the affidavit information gleaned from his arrest. The defendant argues that if the affidavit established probable cause, then the police could have received a warrant to search the car of any unlucky black male with a drug record driving into and out of a parking lot where a drug transaction was supposed to occur. We disagree. The detective s affidavit stated that: (1) the reliable CI had made arrangements with a drug dealer to purchase illegal drugs for resale; (2) the CI spoke with the drug dealer several times by telephone as the dealer approached the meeting point; (3) the defendant arrived at the time and location that the drug dealer was expected; (4) the CI positively identified the defendant as the drug dealer whom he had arranged to meet; (5) the detective called the two phone numbers that the CI used to communicate with the drug dealer and both rang inside the defendant s car; (6) the defendant did not have a credible explanation for his presence at that location at that time; (7) the defendant s teeth were brown and rotten as, in the detective s professional experience, is typical of crack cocaine users; (8) from outside the car, the detective observed a clump of cash sitting in the cup holder, which, in his professional experience, he associated with drug dealers; and (9) the defendant and his passenger had prior convictions associated with the sale of illegal drugs. In light of the deference accorded to the trial court s finding of probable cause and the preference to be accorded to warrants, we conclude that the application for the warrant demonstrated a substantial likelihood that the items sought would be found in the defendant s car, even if the reference to the marijuana the detective observed when he opened the driver s door is stricken. See Letoile, 166 N.H. at 277. Furthermore, the defendant was not charged with possession of the marijuana that the detective saw. Thus, we need not address the propriety of the detective s entrance into the car to place the keys on the seat for the tow truck driver. In light of our conclusions that the warrant identified the defendant s vehicle with sufficient particularity and was supported by probable cause, we also need not address whether the evidence obtained during the search would have been inevitably discovered. The Federal Constitution offers the defendant no greater protection than does the State Constitution under these circumstances. Ball, 164 N.H. at 210; Champagne, 152 N.H. at 435; State v. Plch, 149 N.H. 608, 620 (2003) (addressing excision of illegally obtained information when assessing probable cause in warrant application); State v. Christy, 138 N.H. 352, 356 (1994) (addressing warrantless arrest). Accordingly, we reach the same result under the Federal Constitution as we do under the State Constitution. 4

5 Because we have not relied upon any observations resulting from the detective s opening of the car door, the State s assented-to motion to transfer exhibit is moot. HICKS, CONBOY, and LYNN, JJ., concurred. Affirmed. Eileen Fox, Clerk 5