Petition for Writ of Certiorari — Young v. New Hampshire
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a Supreme Court, U.S
FILED
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ONE. g7) AA . FEB 2/7 4988
JOSEPH F. SPANIOL, JRL
In the asta
Supreme Court of the United States.
OCTOBER TERM, 1987.
STEPHEN YOUNG, ANTIMO DIMATTEO,
BENJAMIN VALENZUELA,
PETITIONERS,
V.
STATE OF NEW HAMPSHIRE,
RESPONDENT.
Petition for a Writ of Certiorari to
the Supreme Court of the State of New Hampshire.
ALBERT F. CULLEN, JR.,*
JOHN WALL,
141 Tremont Street,
Boston, Massachusetts 02111.
(617) 482-8650
STEPHEN GORDON,
5 Green Street,
Concord, New Hampshire 03301.
(603) 228-1109
Harry C. MEZER, P.C.,
89 Broad Street,
Boston, Massachusetts 02110.
(617) 482-7777
Attorneys for Petitioners
*Counsel of Record
BATEMAN & SLADE, INC. BOSTON, MASSACHUSETTS
Questions Presented.
I. Whether the Fourth Amendment requires a showing of
probable cause and a search warrant for the installation on
telephone lines of monitoring equipment which had capabilities
of surreptitiously intercepting private conversations.
II. Whether a search warrant issued by a judge who only
hours earlier had been consulted by and given advice to law
enforcement officers regarding the underlying investigation
was issued by a neutral and detached magistrate in compliance
with the Fourth Amendment.
Table of Contents.
Opinions Below
Jurisdiction
Constitutional Provisions Involved
Statement of the Case
A. Telephone Monitoring
1. Material Facts
2. Preservation of the Issue
B. Neutral Magistrate
1. Material Facts
2. Preservation of the Issue
Reasons for Granting the Writ
SNynNnunnn hk & WW WN NN
A. Telephone Monitoring
B. Neutral Magistrate
Conclusion 16
—
We
Appendix follows p. 16
Table of Authorities.
CASES.
Baggett v. State, 132 Ga. App. 266, 208 S.E.2d23(1974) 14
California v. Ciraolo, 476 U.S. 207, 106 S.Ct. 1809 (1986)
11, 12, 13
City of Akron v. Akron Center for Reproductive Health,
462 U.S. 416 (1983) 10
Commonwealth v. Beauford, 327 Pa. Super. 253, 475
A.2d 783 (1984), appeal dismissed, 496 A.2d 1143
(Pa. 1985) 9
Connally v. Georgia, 429 U.S. 245 (1977) 13, 14, 15
Coolidge v. New Hampshire, 403 U.S. 443(1971) 13,14, 15
il TABLE OF AUTHORITIES CITED.
Dow Chemical Co. v. United States, 476 U.S. 227, 106
S.Ct. 1819 (1986) 12, 13
Ellis v. State, 256 Ga. 751, 353 S.E.2d 19 (1987) 9
Johnson v. United States, 333 U.S. 10 (1948) 13
Katz v. United States, 389 U.S. 347 (1967) 1]
Lo-Ji Sales, Inc. v. New York, 442 U.S. 319 (1979) 13
People v. Blair, 25 Cal.3d 640, 159 Cal.Rptr. 818,
602 P.2d 738 (1979) 9
People v. Payne, 424 Mich. 475, 381 N.W.2d 391 (1985) 14
People v. Sporleder, 666 P.2d 135 (Colo. 1983) 9
Rochin v. California, 342 U.S. 165 (1952) 13
Shadwick v. City of Tampa, 407 U.S. 345 (1972) 13
Smith v. Maryland, 442 U.S. 735 (1979) 5,7,8,9, 10 etseq.
State v. Guhl, 140 Ga.App. 23, 230 S.E.2d 22 (1976) 14
State v. Gunwall, 106 Wash.2d 54, 720 P.2d 808 (1986) 9
Thomason v. State, 148 Ga. App. 513, 251 S.E.2d 598
(1978) 14
United States v. Jeffers, 342 U.S. 48 (1951) 13
United States v. New York Telephone Company, 434
U.S. 159 (1977) 7n
United States v. United States District Court, 407 U.S.
297 (1972) 13
Vaughn v. State, 160 Ga. App. 283, 287 S.E.2d277(1981) 14
Ward v. Village of Monroeville, 409 U.S. 57 (1972) 14
Young v. United States, U.S. , 107 S.Ct. 2124
(1987) 15n
TABLE OF AUTHORITIES CITED.
CONSTITUTIONAL PROVISIONS.
28 U.S.C. § 1257
United States Constitution
Amendment IV
Federal Rules of Criminal Procedure Rule 41
Supreme Court Rule 20
MISCELLANEOUS.
Comment, “Pen Registers After Smith v. Maryland,”
15 Harv.C.R.-C.L. L. Rev. 753 (1980)
Fishman, “Pen Registers and Privacy: Risks, Expecta-
tions, and the Nullification of Congressional Intent,”
29 Cath.U. L. Rev. 557 (1980)
Guzik, “The Assumption of the Risk Doctrine: Erosion
of Fourth Amendment Protection Through Fictitious
Consent to Search and Seizure,” 22 Santa Clara L.
Rev. 1051 (1982)
1 LaFave, Search and Seizure, § 2.7(b) (1987)
ili
passim
4
2
10
No. 87-
In the
Supreme Court of the United States.
OcTOBER TERM, 1987.
STEPHEN YOUNG, ANTIMO DIMATTEO,
BENJAMIN VALENZUELA,
PETITIONERS,
Vv.
STATE OF NEW HAMPSHIRE,
RESPONDENT.
Petition for a Writ of Certiorari to
the Supreme Court of the State of New Hampshire.
Stephen Young, Antimo DiMatteo and Benjamin Valenzuela
petition for a writ of certiorari to review the judgment of the
Supreme Court of the State of New Hampshire entered in this
case on December 31, 1987.
2
Opinions Below.
The plurality and dissenting opinions of the Supreme Court
of the State of New Hampshire affirming the convictions of
the petitioners in the Rockingham County New Hampshire
Superior Court were issued on December 31, 1987. These
opinions are not yet generally reported and are set out in the
Appendix, infra at la-34a.
Prior to trial, the petitioners moved in the Rockingham
County Superior Court to suppress evidence which the petition-
ers contended was obtained in violation of the Fourth Amend-
ment as a result of the warrantless installation of monitoring
equipment on telephone lines, and as a result of search warrants
which had not been issued by a neutral and detached magistrate.
The motions were denied by opinions issued by the Rocking-
ham County Superior Court on August 14, 1985 and September
4, 1985. Portions of those unreported opinions are set out in
the Appendix, infra at 35a-37a, 38a-42a.
Jurisdiction.
The judgment of the Supreme Court of the State of New
Hampshire was entered on December 31, 1987. This petition
is being filed within sixty days of that date. This petition is
timely filed pursuant to Supreme Court Rule 20. Jurisdiction
to review the judgment of the Supreme Court of the State of
New Hampshire is conferred by 28 U.S.C. § 1257.
3
Constitutional Provision Involved.
The Fourth Amendment to the United States Constitution
provides:
The right of the people to be secure in their per-
sons, houses, papers, and effects, against unreason-
able searches and seizures, shall not be violated, and
no warrants shall issue, but upon probable cause,
supported by oath or affirmation, and particularly
describing the place to be searched and the persons
or things to be seized.
Statement of the Case.
The homes of the petitioners Stephen Young, Antimo Di-
Matteo and Benjamin Valenzuela in Nottingham and adjacent
Epping, New Hampshire were searched for more than sixty
hours by New Hampshire State Police from the morning of
January 15, 1984 throughout January 16, 1984 and into the
evening of January 17, 1984. As a result of evidence unearthed
in the searches, the petitioners were charged with drug-related
offenses in the Rockingham County Superior Court. Upon the
denial of their pre-trial motions to suppress this evidence on
grounds including violations of their Fourth Amendment rights,
the petitioners were tried without a jury and convicted on
December 13, 1985. These convictions were affirmed by a
plurality opinion of the New Hampshire Supreme Court issued
on December 31, 1987.
4
A. Telephone Monitoring.
1. Material Facts.
As part of an investigation of petitioner Stephen Young and
his alleged associates, on October 13, 1983, officers of the
New Hampshire State Police requested that federal agents ob-
tain permission pursuant to Fed. R. Crim. P. 41 from a federal
judge to install pen registers on both the published and unpub-
lished telephone lines listed to petitioner Young at Young’s
home. There was no police showing or judicial finding of
probable cause.
The machines which were installed on Young’s telephone
lines were actually more than pen registers because they could
not only record the fact that calls had been made to particular
numbers, but could also intercept the conversations them-
selves. The police had only to insert headphones or a tape
recorder into a jack in the front panel of the machines to listen
to or record any conversations taking place over those lines
without notice to the participants and without leaving a trace
of any interception.
At the hearing on pre-trial motions to suppress, the police
testified that the machines were not used to intercept conver-
sations until, on January 5, 1984, the police sought and re-
ceived authorization from a Hillsborough County New Hamp-
shire Superior Court judge to conduct wiretaps on these same
telephone lines. Under New Hampshire state law, the wiretaps
required a police showing and a judicial finding of probable
cause. The material submitted by the police in applying for
the wiretaps had relied upon the results of the federally au-
thorized monitoring of the telephone lines as well as other
information obtained by the police in the course of their con-
tinuing investigation.
5
2. Preservation of the Issue.
The issue of the propriety of the pen registers was raised
and preserved in the courts below. Prior to trial, the petitioners
moved to suppress the results of the pen registers as violative
of their rights to privacy. In an opinion issued on September
4, 1985, Justice Gray of the Rockingham Superior Court denied
the motions, relying upon this Court’s decision in Smith v.
Maryland, 442 U.S. 735 (1979), that the use of a pen register
does not entail a search, and declining to find greater protection
under the New Hampshire Constitution. On appeal, a plurality
of the New Hampshire Supreme Court upheld this decision.
Justice Batchelder dissented from this decision.
B. Neutral Magistrate.
1. Material Facts.
On January 13, 1984, as a result of what the police overheard
on petitioner Young’s telephones and their continuing investi-
gation, the police arrested Alvin Kanigher and Robert Hol-
lingworth without warrants.' The officers involved in the inves-
tigation devised a plan\to attempt to obtain information from
Kanigher and Hollingworth by holding them and interrogating
them without allowing them to use the telephone.
The officers were unsure of the effect this might have on
their ongoing investigation. Therefore, the police sought out
the advice and counsel of Justice Edward Gage of the Exeter
New Hampshire District Court. Justice Gage advised the police
that, at worst, they might not be able to use statements made
or information gathered from the arrestees after the police
refused to let them use the telephone.
'Kanigher and Hollingworth were charged in the Rockingham County
Superior Court. Their cases were disposed of by plea bargains. They were not
parties to the trial, or to the appeal to the New Hampshire Supreme Court.
They are not parties to this petition.
6
A few hours later on January 14, 1984, the police again
sought out Justice Gage, this time for the purpose of issuing
search warrants to search the petitioners’ homes. The warrants
were issued by Justice Gage on the basis of material submitted
by the police which relied upon the results of the monitoring
and interceptions of conversations on Young’s telephone lines,
the statements made by Kanigher and Hollingworth, as well
as other information which had been obtained in the continuing
investigation.
2. Preservation of the Issue.
The issue of Justice Gage’s neutrality was raised and pre-
served in the courts below. Prior to trial, the petitioners moved
to suppress the evidence derived from the searches conducted
under Justice Gage’s warrants as violative of their rights under
the Fourth Amendment because the warrants were not issued
by a neutral and detached magistrate. In an opinion issued on
August 14, 1985, Justice Gray of the Rockingham Superior
Court denied the motions, finding as a fact that Justice Gage
had not lost the requisite neutrality because there was no proof
that he was aware of the connection between the police inquiry
and the warrant applications. On appeal, the New Hampshire
Supreme Court upheld this decision. Both the Rockingham
Superior Court and the New Hampshire Supreme Court
cautioned that police and judges should take care to assure
that this issue did not arise again.
7
Reasons for Granting the Writ.
A. Telephone Monitoring.
In Smith v. Maryland, 442 U.S. 735 (1979), a plurality of
the Court decided that the use of a pen register’ was not a
search within the meaning of the Fourth Amendment. The
plurality reasoned that there was no invasion of any recognized
expectation of privacy because such a device only acquired
for the government the information concerning the numbers
dialed which the subscriber knew he had already voluntarily
given to the telephone company.
A fundamental premise of the Smith plurality was that a pen
register’s “limited capabilities” to record only dialing informa-
tion was not a search because the person using the telephone
could not have a legitimate expectation of privacy in dialing
information. Jd. at 742. This case presents the Court with an
opportunity to determine whether Smith should control the
result where the machine’s capabilities are not limited to re-
cording the dialing information.
The result in Smith has not escaped criticism. Justices
Stewart, Brennan and Marshall dissented from the Smith plur-
ality opinion. They rejected the notions that a caller could
have no reasonable expectation of privacy or that he assumed
the risk that the telephone company would disclose information
to the police.
It seems clear to me that information obtained by
pen register surveillance of a private telephone is
? The devices dealt with in this Court’s prior opinions have been described
as “. . . a mechanical device that records the numbers dialed on a telephone
by monitoring the electrical impulses caused when the dial of the telephone is
released. It does not overhear oral communications and does not indicate
whether calls are actually completed.” Smith v. Maryland, 442 U.S. at 736
n.1, quoting United States v. New York Telephone Company, 434 U.S. 159,
161 n.1 (1977).
8
information in which the telephone subscriber has a
legitimate expectation of privacy. The information
captured by such surveillance emanates from private
conduct within a person’s home or office — locations
that without question are entitled to Fourth and Four-
teenth Amendment protection. Further, that informa-
tion is an integral part of the telephonic communica-
tion that under Katz [v. United States, 389 U.S. 347
(1967)] is entitled to constitutional protection,
whether or not captured by a trespass into such an
area.
The numbers dialed from a private telephone —
although certainly more prosaic than the conversation
itself — are not without “content.” Most private
telephone subscribers may have their own numbers
listed in a publicly distributed directory, but I doubt
there are any who would be happy to have broadcast
to the world a list of the local or long distance num-
bers they have called. This is not because such a list
might in some sense be incriminating, but because
it easily could reveal the identities of the persons
and places called, and thus reveal the most intimate
details of a person’s life.
OE SL nee eee are ty
Id., 442 U.S. at 747-748 (Stewart, J., dissenting) (footnote
omitted).
Justice Marshall’s concerns were similar, emphasizing “the
vital role telephonic communication plays in our personal and
professional relationships.” /d., 442 U.S. at 751 (Marshall,
J., dissenting).
In my view, whether privacy expectations are le-
gitimate with the meaning of Katz [v. United States,
389 U.S. 347 (1967)] depends not on the risks an
9
individual can be presumed to accept when imparting
information to third parties, but on the risks he should
be forced to assume in a free and open society.
Id., 442 U.S. at 750 (Marshall, J., dissenting).
Just as one who enters a public telephone booth
is “entitled to assume that the words he utters into
the mouthpiece will not be broadcast to the world,”
Katz v. United States, 389 U.S. at 352, [88 S.Ct.
at 512,] so too, he should be entitled to assume that
the numbers he dials in the privacy of his home will
be recorded, if at all, solely for the phone company’s
business purposes. Accordingly, I would require law
enforcement officials to obtain a warrant before they
enlist telephone companies to secure information
otherwise beyond the government’s reach.
Id., 442 U.S. at 752 (Marshall, J., dissenting).
A number of state courts construing the protections of their
own constitutions or statues have rejected Smith and have held
that a person does have a reasonable expectation of privacy
in the numbers dialed from a telephone. See, e.g., People v.
Blair, 25 Cal.3d 640, 159 Cal.Rptr. 818, 602 P.2d 738 (1979);
People v. Sporleder, 666 P.2d 135 (Colo. 1983); Common-
wealth v. Beauford, 327 Pa. Super. 253, 475 A.2d 783 (1984),
appeal dismissed, 496 A.2d 1143 (Pa. 1985)); State v. Gun-
wall, 106 Wash.2d 54, 720 P.2d 808 (1986); Ellis v. State,
256 Ga. 751, 353 S.E.2d 19 (1987). A number of commen-
tators have similarly criticized Smith. See, e.g., Comment,
“Pen Registers After Smith v. Maryland,” 15 Harv.C.R.-C.L.
L. Rev. 753 (1980); Fishman, “Pen Registers and Privacy:
is
10
Risks, Expectations, and the Nullification of Congressional
Intent,” 29 Cath.U. L. Rev. 557 (1980); Guzik, “The Assump-
tion of the Risk Doctrine: Erosion of Fourth Amendment Pro-
tection Through Fictitious Consent to Search and Seizure,” 22
Santa Clara L. Rev. 1051 (1982); 1 LaFave, Search and Sei-
zure, § 2.7(b) (1987).
Common to the criticisms of the Smith plurality in the dis-
sents, state opinions and commentators is the apprehension
that measuring Fourth Amendment rights either by the degree
to which modern technology has compromised privacy or by |
the degree to which modern life has deprived the individual
of the choice to be left alone will inevitably erode the Fourth
Amendment. :
The line between reasonable and unreasonable expectations
of privacy cannot be drawn as it was by the Smith plurality
merely in reference to either the extent to which the individual
is forced to compromise privacy as a cost of modern life or
the extent to which intrusive technology may be commercially
available. Under the rationale of the Smith plurality the indi-
vidual may no longer choose to have his privacy protected by
the Fourth Amendment simply because the technology avail-
able for intruding on privacy exists and has outstripped the
sophistication of the technology available for maintaining pri-
vacy. One danger of such an approach is that lines may never
be drawn with confidence because any line is blurred by ad-
vancing technology almost as soon as it is drawn. This was
noted in another context by Justices O’Connor, White and
Rehnquist in dissent in City of Akron v. Akron Center for
Reproductive Health, 462 U.S. 416, 453-459 (1983). The
dissenters there argued for a flexible balancing approach to
abortion regulation rather than the established trimester ap-
proach because medical advances are continually prolonging
the point in a pregnancy at which safe abortions may be per-
formed and continually shortening the point in a pregnancy at
which a viable child may be born.
11
Petitioners submit that a line must be drawn at some point
beyond which the individual may be confidently secure and
beyond which the police know they may not intrude without
the requirement of demonstrating probable cause to a magis-
trate.
The Fourth Amendment should be defined by a flexible
balancing approach considering the nature of the individual’s
interest in privacy and the quality of the police intrusion. The
essence of reasonableness of an expectation of privacy under
the Fourth Amendment must be found in a recognition of
societal values based upon the extent to which an individual
may be able to choose to preserve his privacy and the steps
actually taken as balanced against the nature and intensity of
the measures employed to breach that privacy.
The wavering line drawn by the New Hampshire Supreme
Court and the Smith plurality engages in no such balancing
and divides the non-private from the private in an irrational
and unacceptable manner. If, as demonstrated by Katz v.
United States, 389 U.S. 347 (1967), a person has a constitu-
tionally recognized and protected reasonable and legitimate
expectation of privacy in the words he utters over a public
telephone, does that person not have a similar right to an
equally reasonable expectation of privacy in the means by
which one makes the connection or in the identity or location
of the person with whom one is conversing? Does an expecta-
tion of privacy protected by the Fourth Amendment which the
Smith plurality found lacking in the act of dialing a telephone
to place a call in the privacy of one’s home suddenly spring
into existence only when someone answers the call?
In later opinions supposedly faithful to both Smith and Kazz,
the Court has indicated that a line should be drawn without
respect to the advances in technology. In opinions dealing with
aerial surveillance, the Court has held that even where a person
took normal precautions to maintain privacy, California v.
12
Ciraolo, 476 U.S. 207, , 106 S.Ct. 1809, 1812 (1986),
or even where a manufacturer has maintained elaborate security
around the perimeter of an industrial complex, Dow Chemical
Co. v. United States, 476 U.S. 227, , 106 S.Ct. 1819,
1822 (1986), any actual subjective expectations of privacy
were unreasonable and not protected by the Fourth Amend-
ment.
Answering criticism that such a holding might leave nothing
to privacy, the Court held that there were limits and a line to
be drawn somewhere. Even the Government conceded in Dow
Chemical,
that surveillance of private property by using highly
sophisticated surveillance equipment not generally
available to the public, such as satellite technology,
might be constitutionally proscribed without a war-
rant.
476 U.S. at , 106 S.Ct. at 1826.
Justices Powell, Brennan, Marshall and Blackmun dissented
from both these decisions. In Ciraolo, the dissenters criticized
the majority because
the Court fails to acknowledge the qualitative differ-
ence between police surveillance and other uses made
of the air space. Members of the public use the air
space for travel, business or pleasure, not for the
purpose of observing activities taking place within
residential yards. Here, police conducted an over-
flight at low altitude solely for the purpose of discov-
ering evidence of crime within a private enclave into
which they were constitutionally forbidden to intrude
at ground level without a warrant. It is not easy to
believe that our society is prepared to force individu-
;
:
j
13
als to bear the risk of this type of warrantless police
intrusion into their residential areas.
California v. Ciraolo, 476 U.S. 207, , 106 S.Ct. 1809,
1818-1819 (1986) (Powell, J., dissenting) (footnote omitted).
In Dow Chemical, the dissenters cautioned that the relative
ease with which a particular technology could be acquired by
the public should not delimit the reasonableness of an expec-
tation of privacy. /d., 476 U.S. at , 106 S.Ct. at 1833
(1986) (Powell, J., dissenting).
While there may be dispute as to the propriety of its precise
placement, a line was drawn in Dow Chemical based upon a
qualitative distinction not unlike that drawn in Rochin v.
California, 342 U.S. 165 (1952). Regardless of whether the
technology for the intrusion has become available or accepted,
society is not prepared to let the police engage in such intrusions
without compelling justification and without procedural
safeguards. The same rationale ought to apply to pen registers
and should lead to a re-examination of the result reached in
Smith and by the New Hampshire Supreme Court in the opinion
below.
B. Neutral Magistrate.
In cases such as Johnson v. United States, 333 U.S. 10
(1948), United States v. Jeffers, 342 U.S. 48 (1951), Coolidge
v. New Hampshire, 403 U.S. 443 (1971), United States v.
United States District Court, 407 U.S. 297 (1972), Shadwick
v. City of Tampa, 407 U.S. 345 (1972), Connally v. Georgia,
429 U.S. 245 (1977) and Lo-Ji Sales, Inc. v. New York, 442
U.S. 319 (1979) the Court has stressed the importance of
separating executive and judicial functions and of interposing
the unbiased judgment of a neutral and detached magistrate
14
between the rights of the individual and the zeal of police
officers engaged in the often competitive enterprise of ferreting
out crime.
In several instances, the Court has found a per se lack of
neutrality and detachment. In Coolidge, the Court held that a
warrant could not properly be issued by the state attorney
general who was chief investigator and prosecutor in the matter.
In Connally, the Court disqualified a magistrate who was paid
for issuing warrants but not for refusing to do so. Even though
the magistrate’s fee or interest in deciding to issue a warrant
was a paltry five dollars, a unanimous Court held that this
personal financial interest in issuing awarrant was a “*possible
temptation to the average man as a judge . . . or which might
lead him not to hold the balance nice, clean and true between
the State and the accused.’” Connally, supra, 429 U.S. at 250,
quoting Ward v. Village of Monroeville, 409 U.S. 57, 60
(1972).
State courts have similarly disqualified judges who by reason
of position or actions lacked the necessary impartiality or even
gave an appearance of interest. See, e.g., Baggett v. State,
132 Ga.App. 266, 208 S.E.2d 23 (1974) (magistrate who was
a part time police dispatcher disqualified); State v~ Guhl, 140
Ga.App. 23, 230 S.E.2d 22 (1976) (judge involved in inves-
tigatory grand jury was so affiliated with prosecution as to be
disqualified); Thomason v. State, 148 Ga.App. 513, 251
S.E.2d 598 (1978) (judge’s practice of accompanying officers
executing warrants created the impression that the judge had
sided with the police and given up his role as a neutral magis-
trate); Vaughn v. State, 160 Ga.App. 283, 287 S.E.2d 277
(1981) (honorary deputy sheriff disqualified); People v. Payne,
424 Mich. 475, 381 N.W.2d 391 (1985) (magistrate who was
a deputy sheriff disqualified because the loyalty of the issuing
magistrate to the judiciary must be unfettered).
15
Indeed, Coolidge itself rejected any effort to assess actual
impartiality on a case-by-case basis. Coolidge, supra, 403
U.S. at 450. It is submitted that the Court’s opinions must
disqualify a magistrate where there is an appearance or possi-
bility that a magistrate will view a warrant application with a
clouded eye. In the opinions below, both the Rockingham
Superior Court and the New Hampshire Supreme Court did
precisely what Coolidge sought to avoid. Whether this magis-
trate in this setting in fact was impartial is simply not the issue.
Rather, the proper inquiry under Coolidge and Connally should
have been whether there was an appearance of partiality or a
possible temptation not to be neutral and detached.’ This,
again, depends not upon nice calculations or a magistrate’s
post hoc disavowals of interest or bias but upon the perception
of whether neutrality could have been compromised.
Here, what is most significant is not that the magistrate was
in fact prejudiced but that the police felt so comfortably allied
with the magistrate as to seek him out for advice and assistance;
and that the magistrate felt so comfortably allied with the
police as to assist them without question, even to the point of
advising them as to the relative risks and rewards of their
contemplated illegal conduct. Both the Rockingham Superior
Court and the New Hampshire Supreme Court recognized as
much by cautioning magistrates to avoid putting themselves
in similarly potentially compromising positions in the future.
However, such a prospective approach is faithless to
Coolidge and Connally. Granting the writ in this case will give
the Court the opportunity to assert the continued vitality of its
precedents.
* Similarly, in Young v. United States, US. ,107S.Ct. 2124(1987),
the Court struck down the appointment of counsel for a beneficiary of an
injunction as private prosecutor in a related contempt action merely because
of the potential for misconduct or conflict of interest.
16
Conclusion.
For the foregoing reasons it is respectfully submitted that
this petition should be granted.
Respectfully submitted,
ALBERT F. CULLEN, JR.,*
JOHN WALL,
141 Tremont Street,
Boston, Massachusetts 02111.
(617) 482-8650
STEPHEN GORDON,
5 Green Street,
Concord, New Hampshire 03301.
(603) 228-1109
HARRY C. MEZER, P.C.,
89 Broad Street,
Boston, Massachusetts 02110.
(617) 482-7777
Attorneys for Petitioners
*Counsel of Record .
Table of Contents.
Appendix.
Opinions of the Supreme Court of the State of New
Hampshire dated December 31, 1987 la
Opinion of the Rockingham County Superior Court
dated August 15, 1985 35a
Opinion of the Rockingham County Superior Court
dated September 4, 1985 38a
pieeenenencanni eet iinetaaenaniciniin an eae ie
la
THE SUPREME COURT OF NEW HAMPSHIRE
Rockingham
No. 86-073
THE STATE OF NEW HAMPSHIRE
Vv.
BENJAMIN VALENZUELA & A
December 31, 1987
| SOUTER. J. These consolidated appeals follow convictions
: of the three defendants on a total of seventeen charges under
| the controlled drug act, RSA chapter 318-B, including posses-
sion of large quantities of cocaine with intent to sell. The
defendants claim that the Superior Court (Wyman, J.) erred in
authorizing the interception of the contents of communications
transmitted over defendant Stephen Young’s telephone lines
on the basis, inpart, of information obtained by the use of pen
registers, previously installed on the same lines under a federal
court’s order unsupported by probable cause; that Gray. J.,
committed error in refusing to conduct a hearing under State
v. Spero, 117 N.H. 199, 371 A.2d 1155 (1977) in response
to the defendants’ claim that the superior court’s interception
order rested on false statements knowingly or recklessly made,
and in failing to suppress the evidentiary fruits of the intercep-
tion as illegally obtained; and that Gray. J., erred further in
denying motions to suppress evidence seized under warrants
to search the defendants’ houses, after rejecting the defendants’
claim that the issuing magistrate was not neutral and detached,
and after likewise rejecting the claim that the police exceeded
the scope of their authority to enter Young’s house, by execut-
2a
ing the warrant in the nighttime, and by seizing so much
material as to convert the enterprise into an unlawful general
search. We affirm.
In 1983, during the course of an investigation into the illegal
sale and distribution of controlled drugs, the New Hampshire
State Police obtained an unlisted telephone number assigned
to the defendant Young, toll call records for his two telephones,
and an authorization to install a pen register on each of his
two telephone lines. A pen register is a mechanical device to
detect outgoing signals produced on a telephone line when a
number is dialed. It decodes the signals, prints the number,
records the date and time, and indicates whether the call is
answered. See RSA 570-A:1, XII (Supp. 1986). The pen regis-
ter model used by the State Police can also be used to record
the presence of an incoming call signal and to indicate whether
the receiving telephone was removed from the hook in re-
sponse, and by the addition of supplementary mechanisms the
police could intercept and record the content of an oral com-
munication over the line. There is, however, no indication in
this case that the police used the device to detect incoming
Signals. or to intercept the content of any communication over
Young’s lines to or from any other telephone.
Prior to January | , 1987, the effective date of RSA 570-A:9-a
(Supp. 1986) the New Hampshire wiretapping statute contained
no express reference to pen registers as such. Although the
State Police assumed that the superior court’s authority to order
the interception of communications over a telephone line under
RSA chapter 570-A was broad enough to authorize the instal-
lation of a pen register, the statute did not appear to include
the operation of a pen register within the scope of “intercept,”
for which the statute required judicial authorization. See RSA
570-A:1. HI and :7. Given this uncertainty, the police did not
wish to follow the State statutory process, because RSA 570-
A:9, V would have limited any authorization to a period of ten
ne
3a
days, subject to renewals for like periods. Since the police
wished to monitor calls on Young’s two lines for a longer
period, they asked federal agents to act on their behalf in
obtaining pen register authorizations from the United States
District Court for the District of New Hampshire under Federal
Rule of Criminal Procedure 57(b) and the All Writs Act, 28
U.S.C. § 1651(a). The federal court authorized the installation
of the pen registers for thirty days, and later renewed the order,
upon finding that the application was made in good faith for
the purpose of furthering a pending investigation, and with
reason to believe that the telephone lines in question were and
would be used to further criminal activity. The court directed
the telephone company to permit and facilitate the installation,
with the right to be compensated for any expense it might
incur in doing so.
On January 5, 1984, Sergeant Henry Carpenito of the State
Police prepared an affidavit that combined data provided by
the pen registers about calls made from Young’s telephones,
records of toll calls made from those same telephones and
from telephones assigned to the defendants Benjamin Valen-
zuela and Antimo DiMatteo, and information about the three
defendants obtained from police records, investigators, and
informers. On this basis he obtained a superior court wiretap
order under RSA 570-A:9 for an interception of the contents
of communications during completed calls over the same tele-
phone lines assigned to Young that the pen registers had pre-
viously monitored for numbers dialed in outgoing calls. These
interceptions provided information on the basis of which the
police, in turn, obtained warrants on January 15, 1984, to
search the houses of all three defendants. The ensuing searches
yielded, inter alia, 65 pounds of cocaine, nearly a ton of
marijuana, LSD tablets, jewels, over $200,000 in cash, ledgers
— and other documentary evidence of drug traffic, and an assort-
ment of pistols, revolvers, and ammunition.
4a
After unsuccessfully litigating motions to suppress the
State’s evidence, the defendants waived jury trial and submitted
their cases to the superior court on the basis of the existing
records and certain stipulations. The Trial Court (Gray, J.)
returned guilty verdicts on the seventeen charges and proceeded
to sentence Valenzuela and DiMatteo to prison terms of 15 to
40 years, and Young to a term of 25 to 70 years. These appeals
followed.
As our statement of facts indicates, the accumulation of
evidence upon which the search warrants ultimately rested
began with the acquisition of Young’s one unlisted number,
followed by the disclosures of toll records for his telephones
(as well as for the telephones assigned to DiMatteo and Valen-
zuela) and the production by the pen registers of lists of num-
bers called on each of Young’s lines. The defendants maintain
that the State acquired all of this information in violation of
Part I, article 19 of the Constitution of New Hampshire. In
this appeal, however, the defendants address their specific
arguments solely to the acquisition of telephone numbers by
use of the pen registers, apparently on the assumption that all
of their claims will stand or fall together. We will limit our
decision accordingly, to the constitutional significance of using
a pen register to record and disclose numbers dialed to make
outgoing calls from a defendant’s telephone. (In view of our
conclusion about the requirements of article 19 on the theory
of the case as it has been presented to us, there is no need to
reach the State’s objection that Valenzuela and DiMatteo lack
standing even to object to the use of the pen register evidence,
and on like reasoning there is no call to consider any issue
about the propriety of the State Police’s reliance on federal
- process for authorization to install the devices.)
Article 19 prohibits unreasonable searches and seizures of
an individual’s “person, his houses, his papers, and all his
possessions.” The defendants argue the State was thereby
a
Sa
barred from access to evidentiary information about numbers
dialed on Young’s telephones without first obtaining a warrant
or comparable process, supported by a showing of probable
cause to believe that the information sought would include
evidence of a crime. Because the State made no such demon-
stration, the defendants submit that the information and all
subsequent evidence obtained through its use should be sup-
pressed.
The State concedes that the orders authorizing installation
of the pen registers did not rest on any findings by the federal
judge that probable cause existed to believe that the telephone
lines would be used to make outgoing calls for criminal pur-
poses or that such purposes would be revealed by examination
of numbers called on the lines. The State takes the position
that it had no obligation to demonstrate such probable cause
because the use of a pen register to record the number dialed
to make an outgoing call on the line to which the register is
attached is not a search of the person or property of the sub-
scriber to whom the line is assigned, so as to be subject to the
restrictions imposed by article 19. (That, we infer, is also the
assumption underlying the recently enacted statute regulating
the use of pen registers, RSA 570-A:9-a (Supp. 1986) which
imposes no probable cause requirement. See id., subparagraph
III.)
Ironically, the parties-purport to rest their differing conclu-
sions on a Common assumption, that the scope of article 19
protection should be judged by reference to the concept of
privacy adopted by the Supreme Court of the United States in
Katz v. United States, 389 U.S. 347 (1967) as a criterion for
determining the extent of fourth amendment protection. De-
spite the parties’ agreement, however, this common ground
has no support in our prior case law. See State v. Kilgus, 128
N.H. 577, 591, 519 A.2d 231, 240 (1986) (decided on the
assumption “‘arguendo” that article 19 applies to electronic
6a
eavesdropping, on analogy with the fourth amendment
rationale developed in Katz). Indeed, so far as we are aware,
this court has never been asked to construe article 19 by choos-
ing from among the possibilities ranging from the holding of
the Katz majority, see Katz v. United States, supra at 353
through other generalized principles of privacy, to the position
taken by Justice Black, who dissented in Katz, see id. at 364.
Nor do the parties address these interpretive alternatives here,
where neither side has briefed the background of article 19
and the history of its application as bearing on the extent to
which Katz may be a sound guide to our own Constitution.
Although we might, therefore, set the case down for reargu-
ment addressed to the fundamental issue, we have decided
against doing so because we are satisfied that even under Katz
the defendants are entitled to no relief. We are thus able to
rule on the defendants’ claim in the posture in which the parties
have presented it, and we leave it for another day to decide
whether the view of the Katz majority should be taken to reflect
a theory inherent in article 19. (In so confining our decision,
we do not, of course, cast any doubt upon the vitality of prior
cases recognizing civil rights of action for violations of privacy
interests. See Sawyer v. Boufford, 113 N.H. 627, 630, 312
A.2d 693, 695 (1973); Hamberger v. Eastmarr, 106 N.H. 107,
206 A.2d 239 (1964).)
On the Katz analysis, protection against unreasonable
searches and seizures is not limited by references to private
physical premises, or to persons or to tangible evidence. While
the fourth amendment, like article 19, speaks in terms of sec-
urity against unreasonable searches and seizures of a person,
his houses, papers, and effects (or possessions), Katz held that
the intangible contents of a defendant’s statement may be sub-
ject to fourth amendment protection from discovery, without
reference to physical invasions of constitutionally protected
areas. Katz, 389 U.S. at 353 (citing Silverman v. United States,
7a
365 U.S. 505, 511 (1961)). “{T]he Fourth Amendment protects
people, not places,” id. at 351, and even without a traditional
physical intrusion upon a defendant or his property, the gov-
ernment’s effort to obtain information communicated by him
may be a “search” subject to constitutional regulation. Two
generally applicable criteria must be satisfied, however: the
defendant objecting to the use of such evidence must have
entertained a subjective expectation that the evidence would
remain private, and his expectation must have been one that
society is prepared to honor as reasonable or legitimate. /d.
at 361 (Harlan, J., concurring).
Katz did not, of course, hold that its theory of privacy
circumscribed the extent of protection against unreasonable
searches and seizures. /d. at 350. But when the government’s
effort to obtain evidence does not take the form of a physical
search of or for a defendant’s person, house, papers, or prop-
erty, an understanding of the Katz privacy concept is necessary
to determine whether the effort is a search subject to constitu-
tional review.
Such an understanding is not easily gained, however. Katz
held that a person making a telephone call may reasonably
expect privacy as against the government’s warrantless use of
an electronic eavesdropping device to overhear the statements
he utters within a public telephone booth. Katz, supra at 353.
Although this holding might have invited broad conceptualiza-
tion, the Katz majority were plain to say that they had no
intention of engrafting a general theory of privacy protection
onto the trunk of the fourth amendment. See Katz, supra at 350.
Katz does not leave its readers without further guidance,
however, since the majority opinion did describe one means
of the government’s access to evidentiary information that
would not violate any legitimate expectation of privacy, and
would not, therefore, involve a regulated “search.” The major-
ity opinion approvingly cited Lewis v. United States, 385 U.S.
8a
206, 210 (1966), reh’g denied, 386 U.S. 389 (1967), for the
proposition that the fourth amendment recognizes no claims
of privacy in what a person “knowingly exposes to the public,
even in his own home or office.” Katz, 389 U.S. at 351.
The citation to Lewis thus defines constitutionally protected
privacy, at least in the negative sense of limiting its scope,
and it must therefore be seen as integral to the Katz decision
and to an understanding of what Katz does and does not rec-
ognize under the rubric of protected privacy. In Lewis, the
court rejected a claim thatthe fourth amendment bars admission
of tangible evidence and information revealed by a defendant
in his own house to a witness who had deceptively concealed
his role as a government agent. Lewis, supra at 210-11. Lewis
was decided on the same day as Hoffa v. United States, 385
U.S. 293 (1966), reh’g denied, 386 U.S. 940 and 951 (1967),
which held that the fourth amendment is no barrier to the
testimony of an informer in whom the defendant had misplaced
his trust. id. at 302, and both Lewis and Hoffa may be grouped
with Lopez v. United States, 373 U.S. 427, 437-38 (1963),
which held that a secretly recorded tape of a defendant’s state-
ments to an Internal Revenue agent was admissible under the
fourth amendment. ‘
The significance of these cases for an understanding of con-
Stitutionally protected privacy has not waned in the years since
Katz was decided. They were affirmed as undisturbed by Katz
in United States v. White, 401 U.S. 745, 752 (1971), which
held that the contents of a conversation between the defendant
and a government agent were admissible through the testimony
of a witness who had heard the conversation broadcast by a
transmitter concealed on the agent’s person. The Supreme
Court subsequently described White’s rationale as “well-set-
tled,” United States v. Jacobsen, 466 U.S. 109, 117 (1984),
and we ourselves have called White’s logic “inescapable,”
when considering the scope of protection within the conceptual
9a
framework of Katz. State v. Kilgus, 128 N.H. at 591, 519
A.2d at 241.
‘This understanding of the agent-informer cases illuminates
the State’s position that the use of the pen registers in the
instant case did not infringe any protected privacy under Katz
and were therefore not constitutionally regulated searches. The
pen registers, installed on the telephone company’s lines, re-
ceived coded signals sent from Young’s telephones to the
company for the purpose of enabling it to connect Young’s
telephones with those he sought to call. In making a record
of the decoded signals, the registers did no more than record
voluntary communications from the defendant to the telephone
company. (Such communications to the company are to be
distinguished from the contents of communications transmitted
over the company’s lines and addressed not to the company
but to the recipients of completed calls. The latter, of course,
would be subject to protection under Katz and under RSA
chapter 570-A.) It is obvious, and is indeed undisputed, that
no constitutionally protected privacy would have been in-
fringed, and no search conducted, if the telephone company
had informed the government of numbers orally communicated
by Young to an operator. The company and its operator would
have been doing nothing different from what the agent or
informer might do, and Katz would erect no constitutional
hurdle to the government’s evidentiary use of what the com-
pany or the operator disclosed. The same conclusion should
follow by analogy when a pen register installed on the com-
pany’s line informs the government of the decoded messages
communicated to the company through the use of the com-
pany’s dialing and switching equipment. The only distinction
between the two cases is the use of mechanical rather than
human receptors of the message intended to inform the com-
pany of the caller’s desired connection, and such a distinction
should make no difference for constitutional purposes.
10a
It is of course ordinarily true today, as it is in this case, that
the company becomes an informer only in response to a court
order requiring installation of the pen register on one of its
lines. But this fact does not affect the soundness of the analogy,
since the holdings of the agent-informer cases do not require
the agent-informer either to initiate his relationship with the
government or to act with selfless disinterest. An informer,
for example, may reveal information to the police out of a
sense of civic obligation, or he may do so to obtain money”or
prosecutorial favor. See United States v. Hoffa, supra at 299.
A paid agent may testify to something he learns quite by chance
or to information he was directed to obtain as a condition of
earning his government salary. What is crucial in these cases
is the defendant’s voluntary disclosure of evidence to the agent-
informer, not the agent-informer’s interest or motivation when
he informs the government. On like reasoning it should not
matter whether the telephone company accedes to a pen register
order because it does not care one way or the other whether
such registers are used, or because it believes that cooperation
with law enforcement is in the long-term interest of a regulated
utility. Suffice it to say that neither the authorities cited nor
the facts of this case involve an agent or informer who claims
to have been unaware that he was providing information to a
third party, or who maintains any objection to disclosing it,
or who claims that his will was impermissibly overborn in
coercing him to make the disclosure.
The Supreme Court accepted this logic in Smith v. Maryland,
442 U.S. 735 (1979) where it recognized the analogy between
the oral instruction given to the operator who repeats it and
the electronic instruction given to the switching equipment
over aline to which a pen register is attached. /d. at 744. The
Supreme Court followed Katz in citing agent-informer cases
to support its holding, that when the telephone company ac-
cedes to the government’s request to provide a pen register’s
—.
lla
record of numbers dialed on a defendant’s telephone, the de-
fendant has no sustainable claim to a reasonable expectation
of privacy in the coded information that he has voluntarily
supplied to the company for the purpose of activating its switch-
ing mechanisms. /d. at 743-45. The Court thus rested the
decision on the principle, “consistently . . . held that a person
has no legitimate expectation of privacy in information he
voluntarily turns over to third parties.” /d. at 743-44.
The defendants have been quick to point out, however, that
Smith has not escaped controversy. While some state constitu-
tional analyses have reached the same result, see, e.g., People
v. Guerra, 65 N.Y.2d 60, 63-64, 489 N.Y.S.2d 718, 720,
478 N.E.2d 1319, 1321 (1985); Yarbrough v. State, 473 So.
2d 766, 767 (Fla. App. Dist. 1985); State, ex rel. Ohio Bell
v. Williams, 63 Ohio St. 2d 51, 53, 407 N.E.2d 2, 3-4 (1980),
the defendants call our attention to jurisdictions that have gone
the other way, see, e.g., State v.Gunwall, 106 Wash. 2d 54,
720 P.2d 808, 813 (1986); Commonwealth v.Beauford, 327
Pa. Super. 253, 475 A.2d 783, 789 (1984), appeal dismissed,
496 A.2d 1143 (Pa. 1985); People v. Sporleder, 666 P.2d
135, 139-40 (Colo. 1983); People v. Blair, 25 Cal. 3d 640,
654, 159 Cal. Rptr. 818, 827, 602 P.2d 738, 746-47 (1979)
and to commentary critical of the Smith opinion. See, e.g., |
LaFave, Search and Seizure, § 2.7 (Supp. 1986); Comment,
“Pen Registers After Smith v. Maryland,” 15 Harv. C.R.-C.L.
L. Rev. 753 (1980).
The defendants have proceeded to marshal some of the prin-
cipal criticisms of Smith expressed in the authorities cited, to
which we will respond by indicating why we believe that the
State’s position, and Smith’s result, are sound in the light of
Katz. At the outset, however, it is well to mention two respects
in which we decline to rest our own application of Katz on
the discussion contained in Smith. First, the Smith opinion
spent some time considering the defendant’s subjective ex-
12a
pectation of privacy in the dialed numbers, concluding that he
probably entertained no such expectation because he presum-
ably knew that the company sometimes recorded numbers
dialed in order to bill for toll calls and commercial service,
and to trace obscene communications. Smith, supra at 742.
Whatever may be the merits of this ostensibly factual conclu-
sion, it is in the last analysis unnecessary if the Court was also
correct, as we believe it was, in holding that any such expec-
tation of privacy would have been unreasonable in the light
of Katz. We will not, therefore, address the defendants’ argu-
ments that Young did in fact expect to preserve the privacy
of his activity in dialing numbers. We will, indeed, assume
with Justice Batchelder, who dissents from this opinion, that
Young entertained just such an expectation. See United States
v. Jacobsen. 466 U.S. at 122-23.
Second, the Smith Court referred t_ che defendant’s assump-
tion of the risk that the information dialed would be passed
on to the government. Smith, 442 U.S. at 744-45. Although
that reference reflected nothing more than the antecedent law
on the admissibility of information given to agents or infor-
mers, see id. at 743-44, it was a reference that risked an
appearance of circular reasoning and occasioned Justice Mar-
shall’s criticism, in dissent, that a telephone subscriber does
not voluntarily assume a risk from using the telephone when
he has no practical alternative to using it. Jd. at 750 (Marshall,
J., dissenting). We will, therefore, avoid the assumption-of-
risk terminology, and its tendency to obscure the reasons for
the result we reach.
With these disclaimers made, we turn to the defendants’
principal criticisms of Smith and objections to the State’s po-
sition. The first focuses on the notion of the governmental
activity to be regulated, when the defendants argue that any
governmental effort to obtain evidence should be treated as a
search within the meaning of the Constitution and should there-
13a
fore be subject to limitation under a standard of reasonableness
requiring justification in demonstrated probable cause. The
second focuses on the acts of a defendant that may limit oppor-
tunities to claim constitutional protection, when the defendants
argue that a waiver of privacy by disclosure to a third party
should not be equated with a waiver as against the government.
The first of these points is easily restated: there should be
no category distinction between a governmental effort to obtain
evidence and a search for purposes of constitutional protection.
The government is seeking evidence whether it examines the
contents of a desk, listens to an intercepted wire communica-
tion, or installs a pen register on telephone company equipment
to obtain the numbers that a defendant dials on his telephone.
So efficient, indeed, is this last mechanism, and so general
and comprehensive is its searching capability, that the defend-
ants discern an especially insistent call for constitutional
scrutiny.
The response to this argument may be stated just as readily,
however. To maintain the position that any effort to gather
evidence should be treated as a search regulated in law is,
ultimately, to reject the reasoning of the agent-informer cases.
This is apparent in Justice Marshall’s dissent in Smith which
begins with citations to his earlier dissents in cases like United
States v.. White, 401 U.S. 745. The defendants evidently rec-
ognize this, too, when they try to characterize the precedential
force of those cases as “tenuous” and suggest that accepting
the defendants’ own position would be an easy step to take.
Accepting their position would, on the contrary, be a con-
stitutional volte-face. The implication of a rule requiring war-
rants for pen registers installed on company equipment to re-
cord the numbers that a defendant dials would also require a
warrant before the government could utilize evidence that
might be communicated to an agent or even to an informer, —
except to the extent that the latter might volunteer information
ee
l4a
spontaneously. Such a requirement would curtail, if not effec-
tively eliminate, the use of agents, which had been described
as an “essential” law enforcement practice. Sorrells v. United
States, 287 U.S. 435, 441-42 (1932), and which less than a
year ago we held to be outside the scope of activity subject
to the warrant require menton the assumption that article 19
were to incorporate Katz. State v. Kilgus, 128 N.H. at 591-92,
519 A.2d at 240-41. Not only is there no justification for
re-examining our position so soon after Kilgus; it is simply
too late in the day to raise doubts under article 19 or the fourth
amendment about the constitutionality of using evidence ob-
tained without a warrant through a government agent or in-
former to whom a defendant has voluntarily disclosed or trans-
ferred it. See Power Comm'n v. Pipeline Co., 315 U.S. 575,
582 (1942) (regulations recognized too long as proper under
the fourteenth amendment to doubt propriety of like regulations
under the fifth amendment).
The revolutionary implication of the defendants’ position is
not limited, however, to its call to deny the persuasive authority
of federal cases from Lopez to White, or to overrule our own
decision in Kilgus. For if we followed the defendants’ lead,
we would have to redefine the very concept of privacy estab-
lished by Katz, upon which the defendants claim to rely. The
defendants fail to face the fact that the privacy held reasonably
expectable under Katz is not an immunity to the use of evidence
that a defendant has disclosed to an agent or informer who is
willing to reveal it. If the defendants will have us apply Katz,
they will have to take Lopez, Lewis, Hoffa, White, and Kilgus
along with it. They cannot have it both ways. Katz is no
support for the defendants, and Kilgus already bars their argu-
ment.
The defendants’ second objection to the State’s position
starts from the undoubted fact that a telephone subscriber who
willingly provides the telephone company with information,
a re
15a
consisting of a number dialed, does not thereby intend to
provide that information to the government. Other critics of
Smith have stressed this same fact. See, e.g., Smith v. Mary-
land, 442 U.S. at 749 (Marshall, J., dissenting); “Pen Registers
After Smith v. Maryland,” 15 Harv. C.R.-C.L. L. Rev. at
755, and it is one of Justice Batchelder’s principal concerns
in this dissent today. The fact is said to support the view that
there are “degrees of privacy,” id., so that waiver to some
degree is not waiver of all privacy protection, even against
the government.
Once again, however, the defendants’ view is at odds with-
Katz. The claims that there are degrees of privacy and that the
result in Smith v. Maryland fails to account for them rests on
a conception of privacy that is different from the conception
of constitutional privacy that Katz recognized. At one level,
the degrees-of-privacy critique describes a subjective intent or
expectation: the subscriber who dials does not mean to provide
information to the government. This subjective posture, how-
ever, has no dispositive significance under Katz; a subjective
expectation of privacy is necessary, but it does not alone suffice
to create a pale of privacy within which any intrusion by the
government is a constitutionally regulated search. Standing
alone, the recognition that there are subjectively recognized
degrees of privacy is inadequate either to ground a conclusion
under Katz or to prove that Smith was wrongly decided when
it adopted the position for which the State argues today. See
United States v. Jacobsen, 466 U.S. at 122-23.
Even if we attempt to elevate expectations of degrees of
privacy above the purely subjective level, however, Kazz still
stands in the defendants’ way. We cannot simultaneously rec-
ognize the defendants’ asserted limitations on waiver of privacy
as against the government and continue to adhere to the
rationale of the agent-informer cases, for if a defendant should
be entitled to limit his waiver of privacy as against the use of the
16a
pen register’s report of what he dialed to the company, he
should be able to limit any waiver as against the government’s
testimony of what he said to the agent. Since Katz accepted
the agent-informer cases, the defendants can not assert a con-
Stitutional theory of limited waiver without partially repudiat-
ing Katz, upon which they claim to rely. The defendants’
position would redefine Katz’s privacy by converting it from
a defendant’s right to be secure against certain means of non-
consensual access to his communications and possessions, into
a defendant’s right to control the use of evidence without
regard to how the defendant may have disclosed that evidence
to another. It would empower a defendant to enforce a kind
of evidentiary copyright, by precluding the government’s use
of information for a purpose that the defendant did not intend
when he communicated with another. Suffice it to say that we
could not accept the defendants’ position without a wholesale
overruling of the agent-informer cases including Kilgus, which
stand together as an integral limit to Katz’s concept of privacy.
In summary, we reject the defendants’ arguments, both be-
cause they would entail our repudiation of the agent-informer
cases, and because they are inconsistent with the holding of
Katz to which the agent-informer cases are an express and
essential limitation. Under Katz and the agent-informer cases,
there is no violation of constitutional privacy when the tele-
phone operator acts as a government informer by communicat-
ing what a defendant has addressed to the operator, and we
therefore find no violation when the “hearer” is not an operator
but a machine receiving functionally equivalent information
communicated by a defendant and directed to the company.
- In each case the government obtains from the company’s cho-
sen means of operating its system the information that the
defendant-customer has communicated to the system in order
to make it work for him. Since there is no violation of a
protected privacy interest when the operator repeats what the
a
17a
customer has told him, neither is there one when the record
of the pen register is disclosed.
Because we therefore conclude that the Katz conception of
protected privacy, if applied through article 19, would not
limit the use of a pen register to obtain the numbers that a
defendant dials on his telephone, it is not significant that the
federal order authorizing the installation of the devices in issue
here was unsupported by probable cause. Accordingly, the
defendants have supplied no reason to argue that the superior
court should have rejected the information provided by the
registers when it determined whether the State had established
the probable cause required by RSA 570-A:9, III for the sub-
sequent order authorizing the interception of communications
over Young’s two telephone lines.
The defendants argue that the fruits of the interceptions were
subject to suppression nevertheless, because of various inten-
tional or reckless misrepresentations allegedly made by
Sergeant Carpenito in the affidavit he submitted to the superior
court with the application for the interception order. When the
defendants raised this issue prior to trial, the superior court
first determined that the alleged misrepresentations, taken to-
gether, were not material, in the sense of being necessary for
a finding of probable cause. Having so determined, the court
refused to hold a hearing to receive evidence of the intentional
or reckless falsity claimed, and denied any relief predicated
on misrepresentation. :
The defendants concede that the superior court’s action is
consistent with the federal standard for dealing with alleged
misrepresentations in warrant applications, as established by
Franks v. Delaware, 438 U.S. 154 (1978). Under Franks a
defendant is not entitled to a hearing on a claim that a facially
sufficient warrant application rests on intentional or reckless
misrepresentations by the police unless excision of the disputed
statements would eliminate the probable cause for the issuance
18a
of the warrant. /d. at 171-72. The defendants do not claim
that excision of the misrepresentations alleged in this case
would have eliminated probable cause for issuance of the in-
terception order.
They argue, however, that State v. Spero, 117 N.H. 199,
371 A.2d 1155 (1977), and a line of cases following it, establish
more lenient standards of entitlement under State law both to
an evidentiary hearing and to relief, upon such a misrepresen-
tation claim. In the defendants’ brief, they put their understand-
ing of Spero and the succeeding cases this way:
“When a defendant makes a preliminary showing that an
affidavit in support of a warrant contains misstatements which
contribute to the finding of probable cause, the defendant is
entitled to a hearing to determine whether the affiant made
such misrepresentations intentionally or recklessly; if so the
warrant must be quashed and any evidence derived from its
execution must be suppressed.”
This statement is wrong in two significant respects.
First, it erroneously assumes that under State law a defendant
is entitled to be heard in challenging a facially valid warrant
if he makes a preliminary showing that misstatements by the
police merely “contributed” to the demonstration of probable
cause. On the contrary, the defendant is not entitled to a hearing
unless the statements subject to the preliminary showing of
falsity were material, to the degree that there would have been
no demonstration of probable cause without them. See State
v. Grimshaw, 128 N.H. 431, 436, 515 A.2d 1201, 1204 (1986)
(“In light of the fact that the information provided by the
confidential informant was unnecessary to the finding of prob-
able cause, we need not reach the defendant’s contention that
the [police] affiant fabricated the existence of that informant
.. .”); State v. Spero, supra at 204, 205, 371 A.2d at 1158,
1159 (“the misrepresentations in the affidavit . . . were clearly
material. . . . If the affidavit had been in accordance with
i
19a
the facts . . . it would not have sustained a finding of probable
cause”); see also Franks, 438 U.S. at 171-72 (no hearing
unless excision of allegations subject to preliminary showing
of falsity would eliminate probable cause); Kipperman, /nac-
curate Search Warrant Affidavits as a Ground for Suppressing
Evidence, 84 Harv. L. Rev. 825, 829 n. 35 (1971) (to be
material, disputed allegation must be necessary to establish
probable cause).
The first substantial error in the defendant’s quoted statement
leads to the second, the assumption that a defendant would be
entitled to relief by suppression of evidence upon demonstrat-
ing that any false statement contributing to probable cause was
made knowingly or with reckless disregard for its truth or
falsity. This, of course, would be entirely inconsistent with
the requirement of materiality discussed above. We would not
deny a hearing on the ground that the disputed statements were
immaterial as being unnecessary to demonstrate probable cause
if the police’s knowing and reckless falsity in-making any
statement of any significance would entitle a defendant to
relief. See State v. Chaisson, 125 N.H. 810, 814, 486 A.2d
297, 300 (1984) (because disputed statements are not material,
the court need not address claim that they were made with
reckless falsity). On the contrary, however, a defendant is
entitled to relief following an evidentiary hearing only if he
actually demonstrates both that the police knowingly or reck-
lessly misstated facts, and that the misstatements, taken to-
gether, were material in the sense described above, as necessary
for probable cause. State v. Spero, 117 N.H. at 205, 371 A.2d
at 1158.
In summary, the rule under article 19 is that a defendant is
entitled to be heard in attacking a facially valid warrant only
after a preliminary showing that in demonstrating probable
cause for issuing the warrant, the police made knowing or
reckless misstatements that were material in the sense of being
20a
necessary for the finding of probable cause. Thereafter, such
a defendant is entitled to relief only upon demonstrating that
the police in fact knowingly or recklessly made misstatements
rising to that material level. In substance, then, the New Hamp-
shire rule established by Spero is identical to the later federal
rule announced in Franks, notwithstanding any suggestion to
the contrary in State v. Renfrew, 122 N.H. 308, 444 A.2d
527 (1982); State v. Doyle, 126 N.H. 153, 489 A.2d 639
(1985) or State v. Stiles, 128 N.H. 81,512 A.2d 1084 (1986).
At this point, the only occasion for arguing that there may be
a difference between the State and federal rules is the silence
of our prior opinions on what is necessary for the requisite
“preliminary showing” of material misstatement, beyond mere
allegations. See Franks v. Delaware, 438 U.S. at 171-72.
Since, however, this issue is not before us, we confine our-
selves to holding that the trial court committed no error in
refusing to hold a Spero hearing, absent allegations of misrep-
resentation rising to the requisite degree of materiality. (Al-
though the collective materiality of the statements and omis-
sions in question is likewise not in issue, we have examined
them and agree with the trial court that they are not material.)
The defendants next attack the interception-order on the
ground that the information supplied by affidavit in support
of the State’s application was stale, and for that reason was
insufficient to demonstrate probable cause to believe that
Young’s use of his telephones would provide evidence about
the commission of an offense specified in RSA chapter 570-A.
See RSA 570-A:9, III. Although the defendants’ brief invokes
both federal and State constitutional grounds for this argument,
only the State issue is raised, the motion to suppress having
been grounded solely on part I, article 19 of the State Constitu-
tion. On this point, however, even the reference to the State
Constitution is academic, since RSA 570-A:9, III requires
probable cause for issuance of an interception order.
2la
The defendants reveal the central weakness of their staleness
claim when they state in their brief that the superior court
“relied upon stale information” in reaching the probable cause
determination. The quotation reflects a confusion between stale
probable cause and stale information. See State v. Andrews,
125 N.H. 158, 165, 480 A.2d 889, 893 (1984). Stale probable
cause, so called, is probable cause that would have justified
a warrant at some earlier moment that has already passed by
the time the warrant is sought. Speaking of the probable cause
as “stale” in such a case merely reflects the requirement that
“the police must show that at the time of the application for
the warrant there is a substantial likelihood of finding the
[evidentiary material specified].” State v. Marcotte, 123 N.H.
245, 248, 459 A.2d 278, 280 (1983).
There is not, however, any dispositive significance in the
mere fact that some information offered to demonstrate prob-
able cause may be called stale, in the sense that it concerns
events that occurred well before the date of the application for
the warrant. If such past fact contributes to an inference that
probable cause exists at the time of the application, its age is
no taint. :
The various vintages of the facts stated in the affidavit under
consideration here illustrate this point, by demonstrating how
the old and the new can combine to demonstrate current prob-
able cause. The affidavit begins with a recitation of the items
in Young’s criminal record: 1965, New York, a charge of first
degree grand larceny, but without record of court disposition;
1967, Illinois, petty theft trespass to auto, guilty; 1969, Illinois,
sale of LSD, nol prossed; 1970, Wisconsin, sale of dangerous
drugs, guilty; 1973, Arizona, possession of marijuana for sale,
and transportation of marijuana, dismissed; 1974, Massachu-
setts, possession of marijuana with intent to sell, and conspir-
acy to violate the Massachusetts Controlled Drug Act, guilty.
22a
This recitation is followed by circumstantial evidence that
Young’s contact with the illegal drug market did not end with
his 1974 conviction, for the police described an incident in
1980, when Young’s wife was arrested in his presence for
possession of a package containing cocaine and methaqualone.
The affiant further states that in 1982 Young had been about
to leave for Florida when he was found in possession of
$159,880 in cash at Logan Airport. This incident followed
others in 1980, when a person identified by one of the infor-
mants as a courier for Young was stopped at the airport with
$50,000 in cash, and in 1982, when the wife of a Rhode Island
man believed to be one of Young’s customers was stopped at
Logan with $104,000 in cash.
The affidavit proceeds from circumstantial to direct evi-
dence, as it relates information supplied by two informers
about Young and his activities. One of the informers described
his association with Young and DiMatteo in the sale and dis-
tribution of drugs between 1979 and 1981, and the other gave
information about a like association in 1981 and 1982. Each
confirmed the other’s story that DiMatteo acted as Young’s
distributor or sales agent, while the first informer identified
Valenzuela as the one who procured the drugs to ‘be sold. One
informer described the presence of cocaine and marijuana at
DiMatteo’s house as late as 1982, and admitted that he himself
purchased cocaine from DiMatteo during that year. The other
informer described cocaine and scales at DiMatteo’s house in
1979 through 1981, and a cocaine sale there in 1983.
This evidence of drug sales extending into 1983 was con-
firmed, and its implications were brought forward, by informa-
tion obtained from toll records for Young’s telephones covering
the months of January through September, 1983, and by the
notations supplied by the pen registers used from October 16,
through December 10, 1983. Among the calls recorded, 180
were to six individuals with records of drug convictions over
23a
the period from 1973 to 1981. According to the affidavit, there
- were Calls to business premises frequented by George T. Kattar,
whom an informer identified as a financier of drug transactions,
and 66 calls to an individual whose car had been driven to a
meeting observed by the police in November 1983, where
Young’s wife and another woman traded briefcases under cir-
cumstances typical of an exchange of drugs and money.
The affiant supplemented these facts with his own opinion,
based on his experience in drug investigation, that the tele-
phones were being used in a manner typical of illicit drug
transactions. The superior court could reasonably consider this
conclusion as support for the inference that illicit drug activities
for which various named individuals had been convicted over
a ten-year period were continuing into December of 1983. See
United States-v. Webster, 639 F.2d 174, 178 (4th Cir.), cert.
denied, 454 U.S. 857 (1981), modified on other grounds, 669
F.2d 185 (4th Cir), cert. denied, 456 U.S. 935 (1982) (where
facts of affidavit indicate activity over protracted period, lapse
of time from date of earlier facts is not necessarily an indication
of stale probable cause). Thus, the issuing justice could prop-
erly infer that the activity “had not mysteriously stopped within
the past month” after the pen registers had been removed. See
United States v. Hyde, 574 F.2d 856, 865 (Sth Cir. 1978).
“Indeed, the very scope of the operations described in the
affidavit made it highly likely that numerous narcotics-related
communications would take place in the future.” United States
v. Steinberg, 525 F.2d 1126, 1131 (2d Cir. 1975), cert. denied,
425 U.S. 971 (1976). In summary, the totality of the informa-
tion was not stale, and the issuing justice had probable cause
to infer that an interception would disclose the use of Young’s
telephone for communications about drug offenses. See RSA
570-A:9. II.
Before leaving the point we note that the foregoing summary
omits any alleged misrepresentations, but does refer to three
24a
items of information that the defendants claimed to be inaccur-
ate, not because they were misstated, but because the follow-
ing, related information was omitted: Young was pardoned by
the Commonwealth of Massachusetts following his 1974 drug
conviction; the charges against his wife were dismissed for
failure to prove her knowledge that the package she received
contained drugs; and in the apparent drug deal, the individuals
exchanged suitcases, not briefcases. These omissions do not,
however, affect our result, for their inclusion would not have
eliminated probable cause.
The remaining issues arise from the denial of motions to
suppress evidence seized under the warrants to search the de-
fendants’ houses. To the extent that those motions rested de-
rivatively on challenges to the legality of the telephone inter-
ceptions, the foregoing discussion supports the trial court’s
rulings. The suppression motions raise further questions, how-
ever, going to the character of the issuing magistrate and to
the manner in which the police conducted the search of Young’s
house.
First, the defendants argue that Gage J., who issued the
warrants as Justice of the Exeter District Court, was disqual-
ified to act because he lacked the neutrality and detachment
required of issuing magistrates by the fourth amendment of
the Constitution of the United States. See Coolidge v. New
Hampshire, 403 U.S. 443, 449-53 (1971); Johnson v. United
States, 333 U.S. 10, 13-14 (1948). The argument rests on the
fact that about eight hours before the judge was asked to issue
the warrants in question he gave advice to members of the
State police drug unit working on these cases. It seems that
after the State Police had arrested two individuals named Hol-
lingworth and Kanigher on drug charges, one of the officers
involved, Lieutenant Brown, called the judge to ask “what the
recourse might be, if any, in not allowing [an arrestee] to make
a phone call.” The judge advised that the police might not be
. 25a
able to make evidentiary use of information obtained from the
arrestees after the failure or refusal to allow a call. The defend-
ants claim that the judge’s response had the effect of placing
him in the position of an assistant attorney general advising
the police.
As against this claim, the superior court justice who heard
the suppression motion found that Justice Gage’s
“comments to the police played no part in the prep-
aration of the affidavits and indeed the defendants
did not show whether the Judge even knew that the
matter he discussed with Lt. Brown and the matters
dealt with .n the affidavits were in any way related.
There is nothing to even suggest that the magistrate
was improperly influenced or prejudiced by his prior
contact and conversation with the police. The magis-
trate in this case bore no relationship whatsoever to
the prosecution and was in no way improperly influ-
enced.”
These findings are dispositive on the outcome of the issue,
although we should add a further word about it with an eye
to the future. Legal advice to police officers ought to come
from city or county attorneys, or from the attorney general’s
office, not from judges. “Whatever else neutrality and detach-
ment might entail, it is clear that they require severance and
disengagement from activities of law enforcement.” Shadwick
v. City of Tampa, 407 U.S. 345, 350 (1972). Giving advice
in the manner disclosed in this case places judicial neutrality
at risk, with potentially appalling consequences, and such ju-
dicial responses to police questions generate issues on appeal
that should never be allowed to arise. All of us in the judiciary
should take care to avoid occasions for any more litigation
26a
about judicial detachment, here in the jurisdiction that produced
Coolidge.
The second ground urged for suppressing the fruits of the
search is statutory ._The police arrived at each of the defendants’
houses and began the searches on the morning of January 15,
1984; the police completed two of the searches that day, but
searched Young’s house continuously, day and night, until the
evening of January 17. Because the warrant authorized only
a “daytime” search, Young argues that the police violated the
terms of the statute, which authorizes nighttime searches only
“if the warrant so directs.” RSA 595-A:2.
The argument may be answered shortly. The traditional
reason for requiring explicit authorization for searches in the
night is a sensitivity to what Judge Friendly described as “the
peculiar abrasiveness of official intrusions” at that time. United
States v. Ravich, 421 F.2d 1196, 1201 (2d Cir.), cert. denied,
400 U.S. 834 (1970). It is thus the entry of the police in the
nighttime, not their mere presence, that is thought to call for
particular judicial authorization, and the statute should be con-
strued accordingly. The statute is therefore satisfied, as it was
here, when execution of a warrant limited to a daytime search
is begun during the daylight hours, even though the police
presence may thereafter continue into or through the night for
the purpose of completing the search lawfully begun. See State
v. Chaisson, 125 N.H. 810, 819, 486 A.2d 297, 303 (1984)
(“The police, in executing a search warrant for a dwelling,
may remain on the premises only so long as it is reasonably
necessary to conduct the search.”). This result accords with
federal cases decided under Federal Rule of Criminal Procedure
41; see United States v. Buroard, 551 F.2d 190, 193 (8th Cir.
1977); see also United States v. Joseph, 278 F.2d 504, 505
(3rd Cir.), cert. denied, 364 U.S. 823 (1960).
Young raises his final evidentiary challenge in claiming that
the police flagrantly disregarded the warrant’s limitations on
27a
the objects of search and seizure, and thus proceeded from an
initially lawful entry to a general search so unreasonable as to
call for suppression of all items seized. See United States v.
Heldt, 668 F.2d 1238, 1259 (D.C. Cir. 1981), cert. denied,
456 U.S. 926 (1982) (when search flagrantly disregards war-
rant’s terms, all items seized may be subject to suppression).
Although Young invokes both the National and State constitu-
tions, he does not independently address the latter. Since pass-
ing reference is insufficient to raise a State claim, see State
v. Dellorfano, 128 N.H. 628, 632, 517 A.2d 1163, 1166
(1986), we treat this issue as arising solely under the fourth
and fourteenth amendments.
Factually, the claim rests on the police’s removal of quan-
tities of papers, including personal letters, for examination
after the search was over, and the seizure of a number of items
never mentioned in the warrant, such as firearms and ammu-
nition, without justification under the plain view doctrine. See
Coolidge v. New Hampshire, 403 U.S. at 466, Gray, J., con-
ducted an exhaustive suppression hearing and issued a detailed
and meticulous order suppressing evidence he found to have
resulted from abuse of the plain view doctrine and from the
unjustified removal of papers without apparent evidentiary
character. Young claims, however, that this was not enough,
and that the entire search was so tainted by unwarranted
breadth, that every item taken should be suppressed.
We address this claim, as the trial judge did, under the
standard suggested in Heldt, which candidly confronted the
difficulty of regulating the execution of warrants to search for
documentary evidence of crimes. The court recognized that
when the search under such a warrant is so poorly disciplined
as to amount to “flagrant disregard” of the warrant’s terms,
the only appropriate remedy may be plenary suppression of
all evidence seized. Heldt, supra at 1259. The specific issue
here is whether the trial court could reasonably find that police
28a
error in executing the warrant did not rise to the level of
flagrant disregard. On the persuasive authority of United States
v. Whitten, 706 F.2d 1000 (9th Cir. 1983), cert. denied, 465
U.S. 1100 (1984), we affirm the trial court’s conclusion that
it did not.
The instant case, like Whitten, involved a search for papers.
In each, the police officers responsible for executing the war-
rant instructed their people on what to search for; in this case,
they also told the searching officers to get advice from more
experienced superiors when in doubt about the legality of taking
any given item. In each case, however, the officers in charge
stopped short of giving copies of the warrant to the officers
who would make the actual search, and in each case, the latter
improperly seized and removed voluminous papers for later
examination into possible evidentiary value.
The facts did not result in a finding of flagrant disregard in
Whitten, supra at 1010, and they do not compel one here. The
instructions given to the officers were inadequate, but the trial
court was entitled to make its finding that the dominant concern
of the officers was to find the evidence they were authorized
to seize. Nor was his finding that there was too much zeal and
too little study inconsistent with his conclusion that execution
of the warrant was no mere subterfuge for a general search.
As the Heldt court observed, “a good faith attempt to stay
within the boundaries of an inherently broad search warrant
will support a finding that the search — taken as a whole —
was reasonable, even though a majority of documents seized
might turn out not to qualify for inclusion on more leisurely
reflection.” 668 F.2d at 1269. Thus, the trial court could find
in this case that particularized, rather than plenary, suppression
was sufficient to vindicate the fourth amendment’s mandate.
Affirmed.
29a
THAYER, J, did not siti BATCHELDER, J., dissented; the
others concurred.
BATCHELDER, J., dissenting: I agree with the plurality
that the defendant has asked us to determine the scope of the
protections under part I, article 19 of the New Hampshire
Constitution by employing the reasonable expectation of pri-
vacy analysis in Katz v. United States, 389 U.S. 347 (1967).
I further agree that this court has not yet decided that the Katz
analysis reflects the content of article 19. See State v. Kilgus,
128 N.H. 577, 591, 519 A.2d 231, 240 (1986). Indeed, I have
previously criticized the legitimate expectation of privacy
analysis, at least as it relates to standing under article 19, as
“no boon to the general administration of the criminal justice
system . . . or clearly defined constitutional rights.” State v.
Settle, 122 N.H. 214, 219, 447 A.2d 1284, 1287 (1982).
However, assuming, as does the plurality, that an article 19
search is defined by Katz, I would conclude that the use of a
pen register to monitor dialed telephone numbers is a search,
and therefore must be based upon a finding of probable cause.
Part I, article 19 of the New Hampshire Constitution reads,
in relevant part, that every person has “a right to be secure
from all unreasonable searches and seizures of his person, his
houses, his papers, and all his possessions.” This court has
recognized that article 19 protects a citizen’s right of privacy
in his home. State v. Chaisson, 125 N.H. 810, 816, 486 A.2d
297, 301 (1984); State v. Bradberry, 129 N.H. 68, 76, 522
A.2d 1380, 1385 (1986) (Batchelder, J., concurring specially).
Further, applying Katz, article 19 would extend to protect
“people, not places,” 389 U.S. at 351, and, more specifically,
would protect information communicated by a person under
certain circumstances against governmental intrusion. /d. at
353. Noteworthy as well is that in other contexts this court
has articulated the extent to which the people of this State cher-
30a
ish their fundamental right to privacy. In Hamberger v.
Eastman, 106 N.H. 107, 206 A.2d 239 (1964), a civil case
establishing the tort of invasion of privacy, Chief Justice Keni-
son observed, in quoting Ezer, that “no right deserves greater
protection, for as Emerson has well said, solitude, the
safeguard of mediocrity, is to genius the stern friend. ” /d. at
112-13, 206 A.2d at 242; Ezer, Intrusion on Solitude: Herein
of Civil Rights and Civil Wrongs, 21 Law in Transition 63,
75 (1961). Just as tort law protects the privacy interests of
citizens against the intrusions of one another, so must the
constitution protect the privacy interests of citizens against the
intrusions of government.
The United States Supreme Court has already decided, in
a much criticized opinion, that under the Katz analysis the use
of a pen register does not constitute a search so as to give rise
to the protections of the fourth amendment. Smith v. Maryland,
442 U.S. 735 (1979). The Smith court held that the defendant
had no subjective expectation of privacy in the telephone num-
bers he dialed, nor an expectation of privacy that society is
willing to recognize. /d. at 745. The court rested this conclusion
on the premise that a defendant voluntarily discloses such
information to the telephone company, and therefore assumes
the risk that the data will be relayed to a third party, including
the government. /d. at 744.
The plurality here recognizes the weaknesses in the subjec-
tive expectation of privacy inquiry in Smith, as well as the
problematic assumption-of-the-risk analysis. The plurality,
however, does not abandon the notion, critical to Smith, that
the defendant voluntarily disclosed the data to the telephone
company. Relying on the so-called agent-informer cases, the
plurality concludes that disclosing telephone number data to
the telephone company is equivalent to divulging criminal
secrets to an untrustworthy, albeit law-abiding, confidant. I
disagree that when one dials a telephone there is a voluntary
3la
disclosure of a magnitude similar to that in the agent-informer
situation. It can be argued that the plurality cannot avoid the
assumption-of-the-risk analysis, but rely on the agent-informer
cases — the very cases that establish the assumption-of-the-risk
approach. See United States v. White, 401 U.S. 745, 752
(1971); Hoffa v. United States, 385 U.S. 293, 302-03 (1966),
reh’g denied, 386 U.S. 940, 951 (1967); Lewis v. United
States, 385 U.S. 706 (1966), reh’g denied, 386 U.S. 389
(1967); Lopez v. United States, 373 U.S. 427, 439 (1963).
The concepts of voluntary disclosure and assumption of the
risk are inextricablyintertwined, and I am of the opinion that
neither exists in this situation.
The telephone is a necessary, but not always welcome com-
ponent of modern life. It is an indispensable tool for effective
communication in today’s complex society. People v. Spor-
leder, 666 P.2d 135, 141 (Colo. 1983). When a telephone call
is made, the speakers have a reasonable expectation of privacy
in the content of their conversation, whether the call is from
a home, office, or public telephone booth. Katz, 389 U.S. at
359. This expectation is protected in our wiretapping and eaves-
dropping statute, RSA chapter 570-A. In the words of the
Sporleder court: “[t]he concomitant disclosure to the telephone
company, for internal business purposes, of the numbers dialed
. . . does not alter the caller’s expectation of privacy and
transpose it into an assumed risk of disclosure to the govern-
ment.” 666 P.2d at 141. Disclosure to the telephone company
of the number dialed is “simply the unavoidable consequence
of the . . . use of the telephone as a means of communication
and the telephone company’s method of determining the cost
of the service utilized.” Jd. The necessary, nonvolitional dis-
closure of certain facts to the telephone company for the pur-
poses of using an instrument of private communication does
not require the assumption that the company will voluntarily
share that information with others, especially the government.
Id. at 142.
32a
It is clear that a person has little choice about whether the
telephone company will have access to the numbers he dials
and the frequency with which he dials them. Commonwealth
v. Beauford, 475 A.2d 783, 789 (Pa. Super. 1984), appeal
dismissed, 496 A.2d 1143 (Pa. 1985). As Justice Marshall
stated in his dissent in Smith, “whether privacy expectations
are legitimate within the meaning of Katz depends not on the
risks an individual can be presumed to accept when imparting
information to third parties, but on the risks he should be
forced to assume in a free and open society.” 442 U.S. at 750
(Marshall, J., dissenting). “It is simply not enough to say,
after Katz, that there is no legitimate expectation of privacy
in the numbers dialed because the caller assumes the risk that
the telephone company will disclose them to the police.” Jd.
at 747 (Stewart. J., dissenting). I am convinced that a person
using the telephone fully expects that the numbers he dials
will remain as private as the content of the communication.
The numbers provide a strong, sometimes conclusive, infer-
ence as to who is being called and with what frequency, unques-
tionably a private matter. A collection of such information can
provide a virtual mosaic of a person’s private life. Sporleder,
666 P.2d at 142. A person certainly evidences no intention
“to shed his veil of privacy” merely because he uses the tele-
phone to make private contacts. Beauford, 475 A.2d at 789.
Although the foregoing provides support under the Katz
analysis for requiring the use of a pen register to be based on
probable cause, I believe the clear import of the language of
article 19 mandates the same result. Article 19 protects a per-
son’s “papers” from all unreasonable searches and seizures.
“Papers” as tangible objects, however, have little or no intrinsic
value. The value of “papers” rests in the content of the infor-
mation contained in them. The mere advance in technology
from paper as the medium for the flow of information to, for
example, telephonic communications should not alter the pro-
;
j
33a
tective force of article 19. Similarly, article 19 should not be
limited to protections against the intrusive capabilities of the
government at the time of the adoption of article 19. Rather,
the areas of protected privacy must be examined and deter-
mined on a case by case basis in light of the technology avail-
able to the government at any given time. The protected rights,
of necessity, become more sharply defined as science and
technology broaden the scope of governmental power. In the
end, I see no functional difference between government offi-
cials searching for and seizing a person’s papers, in the course
of an investigation without the benefit of a warrant based on
probable cause, and their monitoring the communicative ac-
tivities of a citizen without the burden of similar requirements.
I would note finally that since the development of this case,
the New Hampshire Legislature has amended RSA chapter
570-A specifically to authorize the installation and use of a
pen register upon the satisfaction of certain procedural and
evidentiary requirements. RSA 570-A:9-a (Supp. 1986). Al-
though the statute permits a superior court judge to authorize
such a use upon a showing of something seemingly less than
probable cause, see RSA 570-A:9-a, 11 (judge must find that
installation and use of pen register device is “reasonably cal-
culated to further the investigation . . . .”), it is clear that the
legislature has sought to provide further protection for the
citizens of this State in the maintenance of the “proper balance
between the State’s duty to protect the public and the indi-
vidual’s right to privacy and free expression.” State v. Lee,
113 N.H. 313, 315, 307 A.2d 827, 828 (1973) (articulating
the purposes behind the wiretapping and eavesdropping stat-
ute). Because I think the use of a pen register requires a prior
showing of probable cause, I do not think the legislature has
gone far enough in safeguarding the privacy interests of New
Hampshire citizens. Nevertheless, it has undertaken to preserve
what it perceives as an expectation of privacy in an area where
the plurality concludes that there is no such expectation.
34a
I would hold, therefore, that a person does possess a reason-
able expectation of privacy in the telephone numbers he dials,
and that the use of a pen register to record such information
is a search within the meaning of article 19. Accordingly,
judicial authorization of the use of a pen register must be based
upon a finding of probable cause. In this case, the defendants
were entitled to have the information obtained through the use
of the pen register and the fruits thereof excised from the
supporting affidavits, and to have the probable cause determi-
nation based only on the remaining information.
a iis Senet bMS A LIAL ONO RONEN LEN ATS ce abd aeRO —
35a
STATE OF NEW HAMPSHIRE
ROCKINGHAM SUPERIOR COURT
The State of New Hampshire
v.
Benjamin Valenzuela, & a
RULING ON MOTION TO SUPPRESS ALL EVIDENCE
AND FRUITS THEREOF SEIZED AS A RESULT OF
SEARCH AND ARREST WARRANTS, ISSUED ON
JANUARY 14, 1984 OR, INTHE ALTERNATIVE, TRANSFER
TO THE NEW HAMPSHIRE SUPREME COURT OF
THE ISSUES RAISED HEREIN
August 15, 1985
Gray, J.
Prior to the issuance of the search warrants in the above
matter, the State police had stopped a truck on Route 95 and
had arrested defendants Alvin Kanigher and Robert Hol-
lingworth and were concerned about the effect of holding them
in communicado during the preparation of the warrant af-
fidavits and the warrants. Lt. Brown called Judge Edward A.
Gage of the Exeter District Court concerning the right of the
State to hold the defendants in such a manner.
The conversation occurred on January 13, 1984. Early on
January 14, 1984, the State Police, through Sgt. Carpenito,
presented the applications for search warrants to the same
Judge Edward A. Gage and warrants were issued by him for
the search of the Young, DiMatteo and Valenzuela residences
ete Uns ie Be Pecado
36a
and for the arrest of the three named individuals. The defend-
ants move to suppress the warrants based, not so much on the
advice given to the State Police by Judge Gage, but rather on
the proposition that in giving any advice prior to the review
of the affidavits and application for the warrants, the judge
lost the status of a “neutral and detached magistrate”: required
under the New Hampshire and United States Constitutions.
See generally Coolidge v. New Hampshire, 403 U.S. 443
(1969).
A significant part of the protection that flows from the war-
rant requirement is the fact that the most essential requirement
of probable cause is being decided by some person other than
those involved in the investigation and the sought after search.
The requirement of a “neutral and detached magistrate” is
intended to insure that invasions of a citizen’s privacy are
allowed in specific instances only, and only when supported
by probable cause. It is further required that those determina-
tions not be made by the very persons or branch of government
seeking the invasions. The neutral and detached magistrate
requirement is a fundamental part of both the United States
and New Hampshire Constitutions. /d.; State v. Mandravelis,
114 N.H. 634 (1974). :
In the instant case, it cannot be said that the magistrate lost
the requisite neutrality by reason of his giving of some legal
advice or opinion to the State Police prior to the issuance of
the warrants. His comments to the police played no part in
the preparation of the affidavits and indeed the defendants did
not show whether the Judge even knew that the matter he
discussed with Lt. Brown, and the matters dealt with in the
affidavits were in any way related.
The rule set forth in Coolidge, Id., is a per se rule of
disqualification where the magistrate is also the chief prosecu-
tor. In relying on Coolidge, the defendants have presented no
evidence or argument that this case fits within its constraints.
37a
There is nothing to even suggest that the magistrate was
improperly influenced or prejudiced by his prior contact and
conversation with the police. The magistrate in this case bore
no relationship whatsoever to the prosecution and was in no
way, improperly influenced. State v. Salsman, 112 N.H. 138
(1972). While prior contact by the police and the response by
the magistrate ought perhaps to be avoided in such cir-
cumstances it is not such, in this case, as to warrant corrective
suppression.
The motion to suppress is therefore DENIED.
38a
STATE OF NEW HAMPSHIRE
ROCKINGHAM SUPERIOR COURT
The State of New Hampshire
v.
Benjamin Valenzuela, & a
RULING ON MOTION TO SUPPRESS EVIDENCE
AND THE FRUITS THEREOF OBTAINED AS A
CONSEQUENCE OF THE INSTALLATION AND USE OF
PEN REGISTER DEVICES TO TELEPHONE NUMBERS
603-679-5686 AND 603-679-2104 (NON-PUBLISHED)
September 4, 1985
Gray, J.
On October 13, 1983 application was made by the U.S.
Attorney, on behalf of the U.S.D.E.A., to the-Federal District
Court for authorization to install pen register devices on two
telephone number lines listed to defendant Stephen D. Young.
The application was granted on the same day for a period of
30 days. On November 10, 1983 the Federal Court extended
its prior order until December 11, 1983. The orders gave
authority to “special agents of the United States Drug Enforce-
ment Administration and other law enforcement officials acting
under their direction” to use and install the pen register devices.
No application was made to any state court and no state or
federal search warrant was obtained.
The defendants seek to suppress the evidence obtained from
the use of those pen registers on the grounds that, because it
Se
tek inset pitaale iia ie eatery alist. 3 cotta
39a
was in part N.H. State Police who used the devices, they
should have obtained permission pursuant to RSA 570-A and
furthermore, if the use of pen registers is not controlled by
RSA 570-A, the state officials should have obtained a search
warrant under Part I Article 19 of the New Hampshire Constitu-
tion.
During the hearing on this motion, the State Police officers
involved testified that they were uncertain whether the use of
pen registers was governed by RSA 570-A or the federal statute
(Title [11 of the Omnibus Crime Control and Safe Streets Act
of 1968), but that to be on the safe side they felt it appropriate
to obtain a court order. They testified further that they requested
the DEA to obtain the order because the federal statute allows
for 30-day periods, whereas the state statute (RSA 570-A)
allows only 10-day periods unless extension is granted under
570-A:9V . Other than the time limitations, the state and federal
wiretap statutes are identical in every section of the statute
necessarily considered in the motion and this order thereon.
The Court finds nothing imprudent in the conduct of the
law enforcement officials in seeking the order from the federal
court rather than a state court. The application fully informed
the court that both federal and state law enforcement officials
were investigating Stephen D. Young and others regarding
drug violations. Indeed, federal agents were, and apparently
still are, investigating the defendant and others whom the police
believe are involved in a drug operation.
In any case, the Court has grave doubts whether RSA 570-A
is even applicable to pen register devices. While our Supreme
Court has not addressed this specific issue, the United States
Supreme Court specifically held language identical to RSA
570-A:1, Ill and RSA 570-A:7 as not including pen register
use. United States v. New York Tel. Co. , 98 S.Ct. 364 (1977).
RSA 570-A is concerned with orders “authorizing or approv-
ing the interception of wire or oral communication” . . . RSA
40a
570-A:7. “Intercept means the aural acquisition of the contents
of any wire or oral communication through the use of any
electronic, mechanical, or other device.” RSA 570-A:1, Ill
emphasis supplied. Pen registers do not intercept because they
do not acquire the contents of any communication, nor do they
accomplish the “aural” acquisition of anything. They simply
print out the fact that a number was dialed from or to the
telephone facility to which they are attached. Moreover, the
word “aural” relates to the sense of hearing and pen registers
merely record information in a form to be interpreted by sight
not sound.
What the pen register does is print out numbers on a ther-
motape like that on a cash register, recording each time a
number is dialed either to or from the telephone facility at-
tached, regardless of whether the party called answers the
phone. For in-coming calls, the register also prints out the
number of rings. The term “voice” is printed on the tape where
the receiver has been off the hook for more than 15 seconds
and where the machine picks up sound-related energy over the
wire. Although it is possible that the machine would print the
term “voice” when no conversation was taking place, it is
generally agreed that the term “voice” indicates that the two
parties were conversing. What is being said, and who the
parties to the conversation are, however, is beyond the
capabilities of the pen register recording device.
Although the pen register machine used in this case had a
place where earphones could be attached, thereby permitting
conversations to be overheard, there is no supportable sugges-
tion that earphones were ever utilized in this case. Had ear-
phones been used, there would have been an interception of
oral communication within the purview of the statute; but, as
it was, the pen registers themselves provided no information
whatsoever to enable the State to determine the contents of
any telephone discussions. Whatever the pen register devices
4la
do, it is clear that they do not deal with the interception of
communications, and, therefore, do not fall within the scope
of RSA 570-A. See State v. Sheedy, 125 N.H. 108, 111 (1984).
Defendants also claim that the State was required to obtain
a search warrant prior to the installation of the pen register.
This issue is raised in defendants’ motion solely as a N.H.
State Constitutional issue. While the U.S. Constitution is not
at issue, it is noteworthy that the United States Supreme Court
held, in Smith v. Maryland, 99 S.Ct. 2577 (1979), that no
search warrant was needed under the Fourth Amendment.
Part I Article 19 of the New Hampshire Constitution pro-
hibits all unreasonable searches and seizures of all a citizen’s
possessions. State v. Sidebotham, 124 N.H. 682. A search
ordinarily implies a quest by an officer of the law, a prying
into hidden places for that which is concealed. A seizure con-
templates forcible dispossession of the owner. State v.
Coolidge, 106 N.H. 186 (1965). In this case, the officers
entered no property of the defendants and seized nothing of
the defendants’ which they could claim ought, by reason of
their exclusive possession of it, to be free from that seizure.
Here the officers intercepted noncommunicative information
which was readily available to and indeed used by the phone
company for its legitimate business purposes. Nothing which
any defendant had a right to safeguard has been taken from him.
While the legitimate expectation of privacy doctrine has
ceased being used by our courts regarding the issue of standing,
see e.g. State v. Sidebotham, supra, it still functions to deter-
mine whether there has been a search and seizure in the first
instance. As the Smith v. Maryland opinion noted, the infor-
mation obtained by the pen register is conveyed to the phone
company by the user and is routinely used for business purposes
by the company. It would be difficult at best to find some
legitimate expectation of privacy in the kind of information
conveyed by the fact of dialing a number.
42a
For the above reasons, the Court concludes that the instal-
lation and use of a pen register was not a search and no warrant
was required. /d. at 2583.
The motion to suppress is therefore DENIED.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.