State v. Doyle

489 A.2d 639, 126 N.H. 153, 1985 N.H. LEXIS 262
CourtSupreme Court of New Hampshire
DecidedFebruary 22, 1985
DocketNo. 83-224
StatusPublished
Cited by6 cases

This text of 489 A.2d 639 (State v. Doyle) 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. Doyle, 489 A.2d 639, 126 N.H. 153, 1985 N.H. LEXIS 262 (N.H. 1985).

Opinion

King, C.J.

In September and October of 1981, grand juries in Rockingham and Strafford Counties returned indictments against the defendants and others for violations of the Controlled Drug Act, RSA chapter 318-B. These charges arose out of a State police investigation, conducted in part by the use of wiretaps. The defendants moved to suppress the evidence obtained against them by means of the wiretaps.

The superior court consolidated the cases for a suppression hearing, which was specially scheduled for January 24, 1983, in Strafford County. Following the four-day hearing, the Trial Court (Dunn, J.) ordered the wiretap evidence suppressed.

On August 17, 1983, we accepted the State’s interlocutory appeal filed pursuant to RSA 570-A:9, IX(b). We reverse and vacate the order to suppress and remand to the trial court for consideration of the issues raised but undecided at the suppression hearing.

In 1980, the New Hampshire State Police began investigating the activities of Angelo Varagianis, whom the police had suspected of dealing in drugs in the seacoast area. The police conducted intermittent surveillance of his home and of his business, a body-building and health spa center known as The Body Shop. When neither the surveillance nor the efforts of a confidential informant to purchase drugs from Varagianis’ wife, Sandra, were successful, the State police turned their attention to Varagianis’ use of the telephone.

Telephone toll records for both the Varagianis’ home and The Body Shop were examined. In the spring of 1981, the superior court authorized the installation of a “pen register” on both of these telephones. Based on an analysis of the toll records and pen registers, as well as other information, the State, on June 26, 1981, applied for and was granted the authority to tap the telephone at the Varagianis’ home, pursuant to RSA 570-A:7.

Information obtained from the Varagianis’ wiretap and other investigative sources led to an application for an order authorizing a wiretap on the home telephone of Peter Poolitsan. The authorization [156]*156was granted on July 29, 1981, and was extended by a subsequent court order on August 8, 1981.

Following indictments in Strafford and Rockingham Counties, the defendants filed motions to suppress challenging all of the wiretap orders on a number of grounds, including misstatements in the affidavit supporting the initial application for an order to tap the Varagianis’ telephone. The superior court ruled that the initial affidavit could not support a finding of probable cause because New Hampshire State Police Corporal Henry Carpenito had made reckless misstatements in preparing the affidavit. The court declined to consider whether the affidavit, absent the misstatements, would support a finding of probable cause. The court accordingly ordered suppression of the evidentiary fruits of the Varagianis’ wiretap. See State v. Chaisson, 125 N.H. 810, 486 A.2d 297 (1984).

The State objects to the trial court’s decision to suppress on two grounds: (1) the trial court erred when it found that the misstatements in the supporting affidavit were made recklessly; and (2), even if the errors were made recklessly, the court erred when it refused to excise the erroneous statements and then to test for probable cause.

The defendants claim that the wiretap violated their rights under both the State and Federal Constitutions. See N.H. CONST, pt. I, art. 19; U.S. Const, amend. IV. We first address the claims under the State Constitution. See State v. Ball, 124 N.H. 226, 231, 471 A.2d 347, 352 (1983).

Whether an affiant recklessly misrepresented facts in an affidavit is a question of fact for the trial court. State v. Chaisson, 123 N.H. 17, 27-28, 458 A.2d 95, 101 (1983). We will not disturb the trial court’s finding unless it is unreasonable or unsupported by the evidence.

A statement in an affidavit is recklessly made as a matter of law only if the affiant had no reasonable grounds for believing the truth of the facts attested to. State v. Renfrew, 122 N.H. 308, 311, 444 A.2d 527, 529 (1982); State v. Spero, 117 N.H. 199, 205, 371 A.2d 1155, 1159 (1977). We must therefore determine whether the trial court could reasonably find that Officer Carpenito lacked a reasonable basis for believing his misstatements in the twelve-page affidavit which supported the motion for the warrant for a wiretap on the Varagianis’ telephone.

We now review each of the seven errors found by the trial court, as well as the explanation for those errors given by Officer Carpenito at the suppression hearing.

[157]*157First, the affidavit at paragraph 9(c) stated that Charles Boyle was convicted of possession of a controlled drug in 1979. He was actually convicted in 1973. All other facts about this conviction, including the month, day, court and charge were correct.

Second, paragraph 9(e) of the affidavit stated that a confidential informant “conducted drug transactions with Bruce Viel,” at Rochester Car Care. The word “transactions” should have been expressed in the singular rather than the plural, since the informant conducted only one transaction, although the informant was aware of other drug transactions of Mr. Viel.

Third, paragraph 8 of the affidavit reported that “a total of 424 telephone calls were recorded during the ten-day period for which the pen registers were authorized.” The word “period” should have been “periods,” because each of the two pen registers ran for a different ten-day period. The preceding paragraph, however, plainly stated that the two pen registers had been authorized at different times.

Fourth, paragraph 2 of the affidavit alleged that “Angelo Varagianis was convicted of possession of a narcotic drug on March 8, 1968, in Strafford County Superior Court.” The superior court records showed that the possession charge was nolle prossed on the same day that the defendant pled guilty to an information charging him with being knowingly in the presence of a controlled drug.

Officer Carpenito testified that the statement in his affidavit was based on State police records on Angelo Varagianis which had two entries for March 8, 1968, one showing a guilty plea for possession of narcotics and the other showing the same charge being nolle prossed. He testified that he had interpreted the records to mean that Varagianis had pled guilty to one of two charges and that the other was dropped. He also testified that the State police records are based on information received from courts throughout the State and that he regularly relies on them when analyzing telephone pen register records.

Fifth, the affidavit at paragraph 9(a) asserted that Sharon Doyle was “arrested” with her husband, Clifford, at Logan Airport in 1971 for possession of four-and-one-half pounds of marijuana. The affidavit also indicated that, “[t]hese arrests were nolle prossed.” Sharon Doyle testified that she was not arrested at Logan Airport, but was questioned by customs officers at the airport and then taken to the federal building in Boston for questioning by the United States Attorney’s Office.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

State v. Stern
846 A.2d 64 (Supreme Court of New Hampshire, 2004)
State v. Carroll
552 A.2d 69 (Supreme Court of New Hampshire, 1988)
State v. Valenzuela
536 A.2d 1252 (Supreme Court of New Hampshire, 1987)
State v. Bradberry
522 A.2d 1380 (Supreme Court of New Hampshire, 1986)
State v. McGann
514 A.2d 1247 (Supreme Court of New Hampshire, 1986)
State v. Corey
497 A.2d 1196 (Supreme Court of New Hampshire, 1985)

Cite This Page — Counsel Stack

Bluebook (online)
489 A.2d 639, 126 N.H. 153, 1985 N.H. LEXIS 262, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-doyle-nh-1985.