Cited by

“This may well have been a sensible decision, but it was a decision that does not now entitle the defendant to the drastic and wholly unnecessary alternative of declaring a mistrial.” State v. Cote, 126 N.H. 514, 531 (1985).

Our case law concerning the inadvertence requirement is “not ‘settled.’ ” Davis, 149 N.H. at 701 (quoting State v. Cote, 126 N.H. 514, 526 (1985)).

In Cote, we considered the lawfulness of the search of a basement where the warrant described the place to be searched as “72 1/2 West Hollis Street, Nashua, New Hampshire doing business as Rosie’s Rusty Nail, situated on the first floor of a three story building.” State v. Cote, 126 N.H. 514, 518 (1985) (quotation omitted).

that discovery is inadvertent if, immediately prior to the discovery, the police lacked sufficient information to establish probable cause to obtain a warrant to search for the object.” State v. Cote, 126 N.H. 514, 526 (1985) (citation omitted).

A mere reference by a witness to a defendant’s silence, without more, however, does not necessarily require a mistrial.

at 665, 484 A.2d at 1173; compare State v. Cote, 126 N.H. 514, 519-20, 493 A.2d 1170, 1174 (1985) (statutory variants of element “purpose to deprive” need not be specifically alleged in indictment) with Shannon, 125 N.H. at 665, 484 A.2d at 1173 (elements in RSA 636:1, III must be specified in indictment).

We first note that the State may not insulate itself against attack on double jeopardy grounds merely by charging the triggering elements of the crime in the alternative.

The “immediately apparent” requirement is met “‘if, at the time of the seizure, the officer has probable cause to believe that the object seized is incriminating evidence.’” State v. Maguire, 129 N.H. 165, 169, 523 A.2d 120, 123 (1987) (quoting State v. Cote, 126 N.H. *616 514, 526, 493 A.2d 1170, 1178 (1985)).

State v. Cote, 126 N.H. 514, 519, 493 A.2d 1170, 1174 (1986); R. MCNAMARA, 1 NEW HAMPSHIRE'PRACTICE, Criminal Practice and Procedure § 466, at 312 (1980).

State v. Jaroma, 128 N.H. 423, 430, 514 A.2d 1274, 1278 (1986) (probable cause context); State v. Cote, 126 N.H. 514, 527, 493 A.2d 1170, 1179 (1985) (same); see Siemieniec supra; Temple supra.

State v. Cote, 126 N.H. 514, 519, 493 A.2d 1170, 1174 (1986); State v. Davis, 99 N.H. 88, 89, 105 A.2d 47, 48 (1954); 1 R. McNamara, New Hampshire Practice, Criminal Practice and Procedure § 309 (1980).

State v. Cote, 126 N.H. 514, 525, 493 A.2d 1170, 1178 (1985) (plain view doctrine applicable only if police officer is lawfully at place where he inadvertently perceives item); State v. Morse, 125 N.H. 403, 405, 480 A.2d 183, 185 (1984) (evidence seized pursuant to arrest in violation of fourth amendment rights is inadmissible).

This court has ruled that incriminating evidence in plain view may be seized under both the State and National Constitutions.

In State v. Cote, 126 N.H. 514, 493 A.2d 1170 (1985), we stated that the statutory purpose to deprive requires a state of mind that creates “at the least, a ‘substantial risk of loss to the owner’ of the stolen property.” Id.

In State v. Cote, 126 N.H. 514, 520-21, 493 A.2d 1170, 1174-75 (1985), this court held that in cases involving receipt of stolen property, an indictment need not allege any one of the variants of “purpose to deprive” specifically, and that the variants of the “purpose to deprive” mental state are not elements of the offense that must be specifical

The defendant’s notice of appeal cites the State Constitution as well as Ball and Berthiaume, and the defendant’s brief cites Ball and State v. Cote, 126 N.H. 514, 493 A.2d 1170 (1985) (State constitutional analysis as to specificity of indictment and the plain view exception for a warrantless search).

The issue of an omission’s materiality is a “[question] of law, for which this court is ultimately responsible.” State v. Chaisson, 125 N.H. 810, 814, 486 A.2d 297, 300 (1984); see also State v. Cote, 126 N.H. 514, 522, 493 A.2d 1170, 1175-76 (1985).

This court has construed the constitutional provision to require an indictment to “inform the defendant of the offense for which he is charged with sufficient specificity so that he knows what he must be prepared to meet and so that he is protected from being put in jeopardy again for the same offense.” State v. Cote, 126 N.H. 514, 519, 493 A.2d 1170, 1174 (1985) (citations omitted).