Cited by

Valenzuela, 130 N.H. at 191 (explaining that “the rule under [Part I, Article 19 of the New Hampshire Constitution] is that a defendant is entitled to be heard in attacking a facially valid warrant” after making a preliminary showing that the police made knowing or reckless misstatements that were material for the finding of probable cause (emphasis added)); State v. Spero, 117 N.H. 199, 205 (1977) (holding that “to ensure that search warrants are issued only upon probable cause, as required by

“[A] facially sufficient but misrepresentative affidavit cannot be the basis for a search warrant as the magistrate will not have been able to make the requisite determination of probable cause.” State v. Spero, 117 N.H. 199, 204 (1977).

If so, evidence gained pursuant to the search warrant is generally suppressed.

A misrepresentation is reckless when the affiant had no reasonable ground to believe the statement to be true.

at 426, 514 A.2d at 1276; see State v. Spero, 117 N.H. 199, 205, 371 A.2d 1155, 1158 (1977).

State v. Fields, 119 N.H. 249, 252, 400 A.2d 1175, 1177 (1979); see also State v. Spero, 117 N.H. 199, 204, 371 A.2d 1155, 1158 (1977).

The motion to suppress filed by the defendant, although based on State v. Spero, 117 N.H. 199, 371 A.2d 1155 (1977) (defendant entitled to a hearing to attack a facially sufficient affidavit if he can show intentional or reckless material misrepresentation), was general in nature and did not specify which statements in the affidavit were the alleged misrepresentations.

n, J.) erred in authorizing the interception of the contents of communications transmitted over defendant Stephen Young’s telephone lines on the basis, in part, 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 in

The magistrate is limited to considering the information contained in the affidavit, along with any additional testimony supplied under oath.” State v. Spero, 117 N.H. 199, 204, 371 A.2d 1155, 1158 (1977).

Moreover, in his notice of appeal, the defendant raised the issue of whether the affidavit contained substantially erroneous statements, and he cited cases which discussed reckless and intentional material misrepresentations.

t he had “tools” for the burglary, but the evidence indicated that the defendant had told Butchka that “[e]very thing is all set [for the burglary]; all you have to do is tell us where and when.” The trial court was therefore justified in finding that Sergeant Carpenito had made no material misrepresentations that were either intentional or reckless, and in concluding that neither State v. Spero, 117 N.H. 199, 371 A.2d 1155 (1977), nor Franks v. Delaware, 438 U.S. 154, 155-56 (1978), required su

Accordingly, he relies on State v. Spero, 117 N.H. 199, 371 A.2d 1155 (1977) in asserting that the warrant was invalid.

State v. Renfrew, 122 N.H. 308, 311, 444 A.2d 527, 529 (1982); State v. Spero, 117 N.H. 199, 205, 371 A.2d 1155, 1159 (1977).

If the defendant’s contention is correct, the search warrant was invalid, and all evidence obtained as a result of the search should have been suppressed.

State v. Fields, 119 N.H. 249, 252, 400 A.2d 1175, 1177 (1979); State v. Spero, 117 N.H. 199, 204, 371 A.2d 1155, 1158 (1977).

We note that the affidavit given by the police in support of their application for a search warrant specifically stated that the victim was an “outpatient of Monadnock Family and Mental Health Service,” and thq,t the defendant has in no way made even a preliminary showing that the police misrepresented or concealed this fact from the justice who issued the warrant.

Thus, applying a commonsense analysis, we hold that the deputy sheriff’s affidavit and oral testimony provided sufficient information to allow the magistrate to make an objective and detached determination that probable cause existed.

In State v. Spero, 117 N.H. 199, 371 A.2d 1155 (1977), we held that if the defendant makes a preliminary showing that the affidavit contains material misrepresentations by the affiant, he is entitled to a hearing to attack the facial sufficiency of the affidavit.

As a consequence, we hold, again, that there was sufficient evidence for the court to find that the search-warrant affidavit contained no misrepresentations, and therefore that suppression of the evidence discovered during the search was not required by State v. Spero, 117 N.H. 199, 371 A.2d 1155 (1977).

Utilizing the analysis suggested in State v. Spero, 117 N.H. 199, 205, 371 A.2d 1155, 1158 (1977), it concluded that “the alleged misrepresentations were not intentional or reckless, and [the affiant] had reasonable grounds to believe the facts in question which he referred to were true.

State v. Spero, 117 N.H. 199, 203, 371 A.2d 1155, 1157 (1977); State v. Hutton, 108 N.H. 279, 288, 235 A.2d 117, 123 (1967).