2004-197, STATE OF NH v. STEVE GUBITOSI

suppress phone records in each county, arguing that the phone records had that involved the same victim. The defendant filed identical motions to (Supp. 2004). The defendant had a similar charge pending in Belknap County RSA 644:4 (Supp. 2004), and three counts of stalking pursuant to RSA 633:3 - a was charged in Merrimack County with four co unts of harassment pursuant to The record supports the following facts. The defendant, Steve Gubitosi,

records had been suppressed by the superior court. We vacate and remand. through a search warrant issued by the Franklin District Court after the finding prosecutorial misconduct and bad faith for obtaining phone records NADEAU, J., The State appeals a Superior Court (Fitzgerald, J.) order

brief and orally), for the defendant. Law Offic e of Joshua L. Gordon, of Concord (Joshua L. Gordon on the

attorney general, on the brief and orally), for the State. Kelly A. Ayotte, attorney general (Stephen D. Fuller, senior assistant

No. 20 04 - 197 Merrimack

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. O pinions are available on the Internet by 9:00 Errors may be reported by E - mail at the following address: errors in order that corrections may be made before the opinion goes to press. Hampshire, One Noble Drive, Concord, New Hampshire 03301, of any editorial Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as 2

conclude that continuation of the tainted proceeding would result in his develop that seriously prejudice the defendant, causing him reasonably to gross negligence or intentional misconduct, cause aggravated circums tances to To constitute prosecutorial overreaching, the government must, through

suppressed the records as a sanction after it found bad faith. warrant was an unsustainab le exercise of discretion because the trial court that the suppression of the telephone records seized pursuant to the search to seize the challenged records from U.S. Cellular. Further, the State argues court ’s earlier ruling had no legal bearing on whether there was probable cause suppression; ( p. 2 2) there was no legal bar to seeking a search warrant; and (3) the suppressed the records without a hearing or discussion of the grounds for the constitute prosecutorial misconduct or bad faith where: (1) the court initially the telephone records that had been seized earlier without a warr ant did not On appeal the State argues that its act of obtaining a search warrant for

State’s motion for reconsideration was denied, and this appeal followed. ruled that the State’s actions amou nted to prosecutorial misconduct. The warrant application that the evidence had been previously suppressed, and the State not to have informed the Franklin District Court judge reviewing the p. 2 2004. The Merrimack County Superior Court found that it was bad faith for day, the court granted the defendant’s motion by order issued on January 15, of the defendant’s telephone records. After a hearing on the record that same filed a motion in limine asking the court to exclude any evidence or testimony representations” in the warrant affidavit. On January 12, 2004, the defendant obtained the records in bad faith through “less than complete and forthright inadmissible under the “poisonous tree” doctrine, and that the State had records. The defendant moved to supp ress, claiming that the new records were Franklin District Court and obtained a search warrant for the same phone Thereafter, the State submitted an application and affidavit to the

reconsider without comment. p. 2 200 p. 3 3, the Merrimack Count y Superior Court denied the State’s motion to The defendant objected to the State’s motion to reconsider. On December 12, court to consider the merits of the motion in light of the Belknap County order. stating th at “no objection was filed.” The State moved to reconsider, asking the Court issued an order granting the defendant’s motion to suppress the records, in Merrimack County. On October 31, 2003, the Merrimack County Superior waited to receive the written order before responding to the same motion filed suppress from the bench and said that a written order would foll ow. The State first to go to trial. The Belknap County Superior Court denied the motion to records through a grand jury subpoena. The Belknap County case was the Constitution. The State had initi ally obtained the U.S. Cellular telephone United States Constitution and Part I, Article 19 of the New Hampshire been obtained without a warrant in violation of the Fourth Amendment to the 3

the State because it sought and obtained a search warrant from the district search warrant for the records. There was no “gross negligence” on the part of actions intending to comply with constitutional requirements by ob tain ing a constitutional claim. After its motion to reconsider was denied, the State took to object, and made no other comments with respect to the defendant’s trial court granted the defendant’s motio n to suppress because the State failed therefore the seizure of the records required a warrant. In its initial order, the records, he argued that he had an expectation of privacy in the records, and jury proceeding. In the defendant’s original motion to suppress the phone State first obtained the telephone records from U.S. Cellular through a grand faith by obtaining the search warrant from the Franklin District Court. The A careful review of the record reveals that the State did not act in bad

Merrimack County Superior Cour t. Court or to inform the Franklin District Court of the previous action of the warrant for the defendant’s phone records to the Merrimack County Superior was not required to submit an application and affidavit to get the search not relevant to the existence of probable cause. Thus, in this case, the State magistrate of another court about matters in the case when those matters are must go before the trial court to get a search warrant or inform the issuing Id. at 552. However, Delisle does not stand for the pro position that a party procedure for obtaining the evidence would have been by motion to that court. since the defendant was already before the superior court, the preferred assistance of counsel. Id. In t he final sentence of the opinion, we noted that taking of blood was not a critical stage of the proceedings requiring the Constitution was violated. Id. We rejected that argument, ruling that the under the Sixth Amendment and Part I, Article 15 of the New Hampshire was denied. Id. On appeal, the defendant argued that his right to couns el asked to speak to his attorney before the samples were taken, but his request been appointed. Id. at 550. After the warrant was read to the defendant, he blood from the defendant after he had already been arraigned and counsel had In Delisle, the State obtained a search warrant to seize body hair and

here. Id. to that court. Delisle, 1 p. 3 37 N.H. at 552. However, Delisle is not controlling evidence against a defendant already before the superior court is by a motion suppressed. In Delisle, we noted that the preferred method of obtaining who reviewed the search warrant application that the evidence had been that i t was bad faith for the prosecution not to inform the district court judge The trial court relied upon State v. Delisle, 137 N.H. 549 (1993), in ruling

amount to such misconduct or bad faith. were initially suppressed by the Merrimack County Superior Court did not obtaining a search warr ant for the defendant’s cellular phone records after they conviction. State v. Sylvia, 1 p. 3 36 N.H. p. 4 428, 431 (1992). The State’s act in 4

(2001) (explaining unsustainable exercise of discretion standard). To show an State v. Bain 1 p. 4 45 N.H. 367, 372 (2000); State v. Lambert, 147 N.H. 295, 296 overturn its determination absent an unsustainable exercise of discretion. Cf. misconduct is a question for the trial court’s sound discretion, and we will no t telephone records. The suppression of evidence as a sanction for prosecutorial Next, we consider the trial court’s ruling suppressing the defendant’s

order. the part of the State for not informing the district court of t he suppression Thus, as a matter of law there was no prosecutorial misconduct or bad faith on court was immaterial to the district court’s determination of probable cause. warrant affidavit that the telephone record s had been suppressed by the trial 7 p. 4 45. In looking at the facts of this case we find the omission from the search extent that it would negative its support for a finding of probable cause.” Id. at affidavit for the search warrant . .. did not materially affect its integrity to the Id. We further held that “the omission of the items complained of in the process requirement that it be disclosed in an affidavit for a search warrant.” undisclosed in formation might have helped the defendant does not create a due of all police investigatory work on a case. The mere possibility that an item of does not require that the government make a complete and detailed accounting consent and had found nothing. Id. On appeal, we held that “[d]ue process and the fact that the police had searched the defendant’s car before wi th his gotten into a car that was different from the one the police sought to search, The omitted information included a witness’s statement that the victim had affiant had intentionally omitted certain exculpat ory information. Id. at 744. challenged the sufficiency of a search warrant affidavit on the grounds that the Similarly, in State v. Breest, 116 N.H. 734 (1976), the defendant

determination of probable cause. facts of this case, we find that the omission had no effect on the district court’s probable cause. State v. Wilkinson, 136 N.H. 170, 17 p. 4 4 (1992). Based on the probable cause. An omission is material if it is necessary for the finding of by whether, if the omitted statement s were included, there would still be before the degree of the affiant’s intent is considered. Materiality is determined materiality of an omission is a question of law which must be determined misrepresent ations for the purposes of an affidavit in certain cases. The Omissions, as well as positive misstatements, can be construed as

whether the probable cause existed to obtain them. that the records had been suppressed because that fact had no bearing on Likewise, the State did not act in bad faith by not informing the district court misconduct” or bad faith on the part of the State. Boetti, 1 p. 4 42 N.H. at 260. search warrant after charges have been filed. There was no “intentional There i s no requirement that the State must go to the original court to obtain a court rather than the superior court. State v. Boetti, 142 N.H. 2 p. 5 55, 260 (1997). 5

concurred. BRODERICK, C.J., a nd DALIANIS, DUGGAN and GALWAY, JJ.,

on this basis. was an unsustainable exercise of discretion to suppress the telephone records court of the suppression order, no sanction was justified. Thus, we hold that it misconduct or bad faith on the part of the State for not informing the district case. See Lambert, 147 N.H. at 296. Since there was no prosecutorial court’s ruling was clearly untenable or unreasonable to the prejudice of its unsustainable exerc ise of discretion, the State must demonstrate that the