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The State of New Hampshire v. Jack T. Ward

January 13, 2012

THE STATE OF NEW HAMPSHIRE
v.
JACK T. WARD



The opinion of the court was delivered by: Hicks, J.

a.m. on the morning of their release. The direct address of the court's home page is: http://www.courts.state.nh.us/supreme.

Argued: October 13, 2011

The defendant, Jack T. Ward, was convicted on thirteen counts of possessing child pornography. See RSA 649-A:3 (2007) (amended 2008). He appeals, arguing that the Superior Court (Smukler, J.) erred in denying his motion to suppress on the grounds that the affidavit supporting the application for a search warrant lacked probable cause to search his residence and his computer. We affirm.

On September 12, 2007, Officer Gary Allen of the Pembroke Police Department received a call from a pastor at a church in Pembroke. The pastor told Allen that he had received a call from a parishioner named Allen Brown and that Brown told him that he saw what appeared to be child pornography in his neighbor's garage.

After speaking with the pastor, Allen telephoned Brown. Brown identified the defendant as his neighbor and told Allen that he and the defendant had a verbal agreement that they could go into each other's garage to borrow tools. On September 10, he went into the defendant's detached garage to borrow a drill and noticed a stack of magazines on the floor. There were several pieces of paper on top of the magazines that contained pictures of a female juvenile performing sexual acts on adult men. It appeared to Brown that the pictures were printed from a computer.

Allen asked Brown if he would come to the police station for an interview and Brown agreed. Later that day, Detective Dawn Shea confirmed that the residence identified by Brown was owned by the defendant and his wife.

On September 13, Allen and Shea met with Brown at the police station. Brown reiterated the information he had provided Allen regarding his relationship with the defendant. He explained that when he went to the defendant's garage on September 10, he saw a piece of paper on top of a pile of magazines that appeared to be longer than standard size paper and printed from a computer. He stated that one of the papers contained a photograph of a nude girl between the ages of twelve and fourteen lying on a white sheet and the other had a photograph of what appeared to be the same girl performing oral sex on a nude adult male. The magazines appeared to be pornographic in nature but Brown could not identify if they were adult or child pornography magazines.

Brown also indicated that the defendant and his wife each have a laptop computer, which they use on a daily basis. He stated that he had observed them using their computers inside their house; however, he had never seen any computer equipment in the garage. He indicated that at one time the defendant had a desktop computer but that he did not know whether the defendant still owned it. Brown further stated that the defendant spends a lot of time in the garage but that he had never seen the defendant's wife go into the garage.

That same day, Allen applied for a warrant to search the defendant's motor vehicle, his residence, including the detached garage and a shed, and his person. In the supporting affidavit, Allen described his conversations with Brown. The attachment to the affidavit submitted in support of the search warrant outlined the property for which Allen sought the search warrant, which included "[a]ny and all computer equipment" as well as "[c]amera equipment."

A district court judge issued a warrant and members of the Pembroke Police Department executed it on September 14, 2007. Prior to trial, the defendant moved to suppress the evidence seized during the search. After a hearing, the trial court granted the defendant's motion to the extent that the search warrant affidavit failed to establish probable cause to search the defendant's motor vehicle and his person, and to search for adult pornography. However, the court found that the affidavit established probable cause to search the defendant's house and garage and, therefore, the court denied the motion to suppress evidence derived from those searches.

On appeal, the defendant argues that the trial court erred in denying his motion to suppress the evidence seized from his home and any computer in his home because the affidavit submitted in support of the warrant application did not establish probable cause to believe that evidence of child pornography would be found in those areas as required by Part I, Article 19 of the New Hampshire Constitution and the Fourth and Fourteenth Amendments to the United States Constitution. He argues that there was no information in the affidavit linking the images Brown observed in the garage to the computers Brown said he saw the defendant and his wife using nor was there any information "suggesting [he] stored child pornography in his home or on any computer in his home." We first address the defendant's claim under the State Constitution, State v. Ball, 124 N.H. 226, 231 (1983), and cite federal opinions for guidance only. Ball, 124 N.H. at 232-33.

We review the trial court's order de novo except with respect to any controlling factual findings. State v. Dalling, 159 N.H. 183, 185 (2009). Nevertheless, we afford much deference to a magistrate's determination of probable cause and will not invalidate warrants by reading the supporting affidavit in a hypertechnical sense. Id. Rather, "we review the affidavit in a common-sense manner, and determine close cases by the preference to be accorded to warrants." Id. (quotation omitted).

Part I, Article 19 of the New Hampshire Constitution requires that search warrants be issued only upon a finding of probable cause. State v. Zwicker, 151 N.H. 179, 185 (2004). Probable cause exists if a person of ordinary caution would justifiably believe that what is sought will be found through the search and will aid in a particular apprehension or conviction. State v. Orde, 161 N.H. 260, 269 (2010). To establish probable cause, the affiant need only present the magistrate with sufficient facts and circumstances to demonstrate a substantial likelihood that the evidence or contraband sought will be found in the place to be searched. Id. The affiant need not "establish with certainty, or even beyond a reasonable doubt, that the search will lead to the desired result." State v. Fish, 142 N.H. 524, 528 (1997) (quotation omitted).

We utilize a totality-of-the-circumstances test to review the sufficiency of an affidavit submitted in an ...


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