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State v. Norman

Supreme Court of New Hampshire

July 6, 2018

THE STATE OF NEW HAMPSHIRE
v.
ROBERT NORMAN

          Argued: May 15, 2018

          Hillsborough-northern judicial district

          Gordon J. MacDonald, attorney general (Katherine A. Triffon, attorney, on the brief and orally), for the State.

          Thomas Barnard, senior assistant appellate defender, of Concord, on the brief and orally, for the defendant.

          HANTZ MARCONI, J.

         The defendant, Robert Norman, appeals his convictions on seven counts of possession of child sexual abuse images following a bench trial on stipulated facts in Superior Court (Brown, J.). See RSA 649-A:3, I(a) (2016). On appeal, he argues that the superior court erred by denying his motion to suppress in which he argued that the affidavit submitted in support of the search warrant application failed to establish probable cause that his electronic devices would contain child sexual abuse images. He also argues that the evidence was insufficient to prove, beyond a reasonable doubt, that the images associated with the seven indictments depict sexually explicit conduct. See RSA 649-A:2, III (2016), :3, I(a). He further challenges three of the indictments on the ground that the images associated with them do not depict a child. See RSA 649-A:2, I (2016), :3, I(a). We reverse and remand.

         I. Motion to Suppress

         A. Affidavit

         The following facts are drawn from the affidavit submitted in support of the search warrant application. In February 2016, members of the Hillsborough County Street Crimes Task Force were conducting surveillance in the Wal-Mart parking lot in Amherst. The officers observed a man, later identified as the defendant, who appeared to be passed out in the driver's seat of his pick-up truck. Concerned that he might have overdosed, they approached the vehicle.

         Upon reaching the vehicle, the officers knocked on the window, and the defendant sat up. They noticed that his pants were pulled down to his ankles and that his genitals were exposed. They further observed a cell phone, and a laptop computer displaying a partially nude adult female in a provocative position.

         After some discussion with the defendant, he consented to a search of his laptop, cell phone, and vehicle. On the laptop, the police found "numerous folders . . . which contained images of women in various stages of undress and positions." Interspersed among those images were images of children whom the officers estimated were "between the ages of 6 and 15." "The younger of the children were in sundresses," and "[t]he teenage females were in cheerleader outfits." When questioned about the images, the defendant stated that he did not have any nieces or nephews and that there were no photographs of family members on his computer. The defendant also "admitted that he was inclined to have images of younger females if they were wearing pantyhose or tights."

         The defendant was subsequently arrested for indecent exposure and lewdness. See RSA 645:1 (2016). The police seized his cell phone, his laptop, and an external hard drive that they found in the vehicle. At the police station, the defendant was questioned further about the images observed on his computer. He told the police that "there were some folders on his laptop which contained pornography" and "estimated that there were approximately 500 images." He denied that his cell phone contained pornography. The defendant also stated that he used the external hard drive found in his vehicle "to back up his computer," and that he "used the public access wifi service at the Nashua Library to access the Torrent website to download movies and television shows . . . so that the downloads would not be traced back to him." The defendant told the police that he does not use "the Torrent network for pornography"; instead, he "uses Google and Yahoo!" to search for pornography.

         "When asked specifically about the images of the children, [the defendant] stated that the images sometimes appear when he searches for his fetishes[:] pantyhose, legs, and/or feet." The defendant told the police that, to his knowledge, none of the images were "of someone who is pre-teen." He "added that he likes 'cheesecake pictures, '" which are "images that are meant to be a tease, not nude, but suggestive." The officer-affiant who later applied for the search warrant averred that "[t]his description matches that of what officers observed mixed within the adult pornography observed," and that "[t]hese types of images are referred to as child erotica, which is typically a prelude to sexually explicit images of children."

         The defendant was also questioned about his conduct in the pick-up truck. He initially told the police that "his pants were down as a result of preparing to change his underwear when his girlfriend called," but later "admitted that his laptop was open with one of his images to 'stimulate' himself."

         During the interview, the police questioned the defendant about "a similar situation" that had occurred in Salem. The defendant claimed that he was arrested by the Salem police for disorderly conduct after giving someone the middle finger. The interviewing detectives contacted the Salem police who reported that the defendant had actually been arrested for indecent exposure and lewdness as well as disorderly conduct in August 2014, after he was found in a parked vehicle in a similar state of undress, viewing adult pornography on his laptop. Although this information established that the defendant had not been fully forthcoming in his description of his Salem arrest, it provided no evidence that he had been found in possession of child pornography.

         Near the end of the February 2016 interview, the defendant refused a request by the police to provide the password to his laptop, stating that "there were banking records on his computer." The police thereafter applied for a warrant to search the defendant's laptop, external hard drive, and cell phone for evidence of the crime of possession of child sexual abuse images.

         In addition to the information recounted above, the affidavit supporting the search warrant application contained information based on the training and experience of the officer-affiant. He averred that, "[b]ased on [his] previous investigative experience related to child pornography investigations, [his] training, and the experience of other law enforcement officers with whom [he has] had discussions, [he] know[s] there are certain characteristics common to individuals who . . . possess . . . child pornography." He averred that such individuals: (1) "may receive sexual gratification, stimulation, and satisfaction from . . . fantasies they may have [when] viewing children engaged in sexual activity or in sexually suggestive poses, . . . in person, in photographs, or other visual media, or from literature describing such activity"; (2) "may collect sexually explicit or suggestive materials" and "often use these materials for their own sexual arousal and gratification"; (3) "almost always possess and maintain their 'hard copies' of child pornographic material . . . in the privacy and security of their home" and "typically retain pictures, films, photographs, . . . child erotica, and videotapes for many years"; (4) "often maintain their child pornography images in a digital or electronic format in a safe, secure and private environment, such as a computer"; (5) "may correspond with and/or meet others to share information and materials" related to child pornography; (6) "generally have knowledge about how to access hidden and secretive cloud based locations involved with child pornography"; and (7) "typically prefer not to be without their child pornography for a prolonged time period."

         The Circuit Court (Ryan, J.) granted the search warrant application based upon the submitted affidavit. A forensic examination of the defendant's laptop and external hard drive revealed the images that later served as the basis for the charges of possession of child sexual abuse images. Each charge was based upon a separate digital image found on the defendant's electronic devices. Before trial, the defendant moved to suppress the images, arguing that the affidavit supporting the search warrant application failed to establish probable cause. The superior court denied the motion, after determining that the affidavit established "a fair probability that evidence of child pornography would be found on [the] defendant's computer and hard drive."

         B. Analysis

         The defendant argues that the search warrant was not supported by probable cause, in violation of the State and Federal Constitutions. See N.H. CONST. pt. I, art. 19; U.S. CONST. amends. IV, XIV. We first address the defendant's claim under the State Constitution and rely upon ...


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