State v. Bradberry

522 A.2d 1380, 129 N.H. 68, 1986 N.H. LEXIS 397
CourtSupreme Court of New Hampshire
DecidedDecember 31, 1986
DocketNo. 85-526
StatusPublished
Cited by27 cases

This text of 522 A.2d 1380 (State v. Bradberry) is published on Counsel Stack Legal Research, covering Supreme Court of New Hampshire primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Bradberry, 522 A.2d 1380, 129 N.H. 68, 1986 N.H. LEXIS 397 (N.H. 1986).

Opinions

Brock, C.J.

The defendant, Joan Bradberry, was found guilty by the Superior Court (Johnson, J.) of possession of Lysergic Acid [70]*70Diethylamide (LSD), RSA 318-B:26, 1(b)(1), possession of Valium, RSA 318-B:26,1(b)(2), and transportation of marijuana, RSA 265:80. She appeals from the trial court’s order denying her motion to suppress evidence seized from her vehicle in the course of a search pursuant to a warrant issued by the Lebanon District Court (Lovejoy, J.). We affirm the trial court’s determination.

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[71]*71idence of a known user.” It was on this basis that the search warrant was issued.

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, 114 N.H. 634, 325 A.2d 794 (1974) or Illinois v. Gates, 462 U.S. 213 (1983). Initially, the State argues that the defendant does not maintain that part I, article 19 of the New Hampshire Constitution provides her greater protection than the fourth and fourteenth amendments to the Federal Constitution, and thus federal standards should be applied in deciding this case. I disagree with the State’s claim. The fallacy of the State’s argument becomes evident upon review of the defendant’s brief, wherein she argues that this court’s approach to search and seizure law is grounded in Aguilar v. Texas, 378 U.S. 108 (1964), and Spinelli v. United States, 393 U.S. 410 (1969). If this were actually the case, the Aguilar-Spinelli analysis could in certain instances provide criminal defendants with greater protection than would be provided under the current Gates “totality-of-the-circumstances” test, Gates, supra at 233. In addition, the specific case most relied on by the defendant, State v. Mandravelis supra, and argued by her to be applicable under the State Constitution, is not necessarily consistent with current fourth amendment jurisprudence. Therefore, for the defendant’s argument to make any sense, it must be premised upon a belief that the State Constitution affords her greater protection than does the federal. The defendant purports to raise only State constitutional issues, although she does refer to the federal counterpart of part I, article 19, U.S. Const. amends. IV, XIV, from time to time. Thus, I will deal solely with the State constitutional issues in this opinion.

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, 128 N.H. 628, 517 A.2d 1163 (1986) as support for his position. I believe this reliance is misplaced inasmuch as it entails an overly broad reading of that case. Dellorfano enunciated two prerequisites for preservation of a State constitutional issue: first, the defendant must raise the issue at the trial court level, and second, he or she must “invoke a provision of the State Constitution,” id. at 632, 517 A.2d at 1166, in his or her appellate brief. Justice Souter regards each of these conditions as unfulfilled in this case. I disagree. The defendant cited the relevant State constitutional provision in her requests for findings [72]*72of fact and rulings of law. This, in my view, was sufficient to satisfy the first Dellorfano condition. The second condition was also met in that the defendant specifically stated in her appellate brief that the application of part I, article 19 of the State Constitution was the sole issue raised on appeal. This does not, contrary to my brother’s position, constitute a case of mere passing reference to the State Constitution, but, rather, given the presentation and context of the argument as a whole, a case squarely based on it. Thus, I conclude that the State issue has been preserved for appeal, and it should therefore be addressed. Parenthetically, however, I commend the general thrust of my brother’s position and explication of how issues should be properly raised and argued to members of the bar in order that the issue that divides the court in this case may be avoided in the future. The defendant’s position may correctly be characterized as confusing, and, to that extent, I am in agreement with my brother.

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

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Bluebook (online)
522 A.2d 1380, 129 N.H. 68, 1986 N.H. LEXIS 397, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-bradberry-nh-1986.