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2017-0346, In re Search Warrant for 1832 Candia Road, Manchester, New Hampshire
(2016), and tampering with public or private records, see RSA 638:3 (2016). so described was relevant to the crime s of identity fraud, see RSA 638:26 T he warrant stated that there was probable cause to believe that the property hardware” located at 1832 Candia Road in Manchester (Exline’s residence). device, cellular telephone, smart phone, [and] commercial software and “any computer, computer system, mobile digital device, camera, router, wi - fi The relevant facts follow. In March 2017, a warrant was issued to search
seizure occurred fails to establish probable cause. We affirm. ground that the affidavit supporting the search warrant under which the J.) denying his motion for the immediate return of seized property on the HICKS, J. Richard Exline appeals an order of the Circuit Court (Gordon,
assistant attorney general, on the brief and orally), for the State. Gordon J. MacDonald, attorney general (Elizabeth C. Woodcock,
Moeckel o n the brief and orally), for Richard Exline. Tarbell & Brodich Professional Association, of Concord (Fried rich K.
Opinion Issued: June 8, 2018 Argued: March 21, 2018
HAMPSHIRE
IN RE SEARCH WARRANT FOR 1832 CANDIA ROAD, MANCHESTER, NEW
No. 2017 - 0346 6th Circuit Co urt - Concord District Division
___________________________
THE SUPREME COURT OF NEW HAMPSHIRE
http://www.courts.state.nh.us/supreme. release. The direct address of the court's home page is: Opinions are available on the Internet by 9:00 a.m. on the morning of their reported by E - mail at the following address: reporter@courts.state.nh. us. corrections may be made before the opinion goes to press. Errors may be Doe Drive, Concor d, New Hampshire 03301, of any editorial errors in order that requested to notify the Reporter, Supreme Court of New Hampshire, One Charles as formal revision before publication in the New Hampshire Reports. Readers are NOTICE: This opinion is subject to motions for rehearing under Rule 22 as well 2
“could not provide documentation on who sent the [Craigslist] post to the 54 which the post wil l be sent. The official informed the detective that Craigslist address to which the post will be sent, and again as the e - mail address from an individual must enter his or her e - mail address twice — once as the e - mail According to a Craigslist official, to forward a Craigslist post to oneself,
performa nce. communications director urging that Joseph resign because of poor work business e - mail address was used to send a message to the Governor’s Joseph and dislikes him. The detective was told that, in May 2016, Exline’s Exline’s girlfriend, a DOS employee, has had “disciplinary issues” involving addresses of DOS administrators and employees without authorization. responsible for the Craigslist post and for forwarding it by using the e - mail The det ective learned that Exline and his girlfriend might have been
recipient himself or herself, using the recipient’s government e - mail address. post. Each message appeared to have been forwarded to the recipient by the employees had received an e - mail message containing a link to the Craigslist address. Ultimately, t he detective discovered that 54 DOS adm inistrators and not done so and had not authorized anyone to use his government e - mail had forwarded the post to himself from his government e - mail address, he had to the Craigslist post. Although the body of the message stated that Oberdank of driver licensing, who had received a similar e - mail message containing a link The detective subsequently spoke with Jeffrey Oberdank, the supervisor
herself, nor had she authorized anyone to use her government e - mail address. address. Bielecki confirmed that, in fact, she had not forwarded the post to had forwarded the Craigslist post to herself, using her government e - mail of the message included a link to the Craig s list post and indicated that Bielecki the message stated: “Vote No William Joseph reapointment [sic] at.” The body “noreply@craigslist.org” on August 5, 2016, at 12:52 p.m. The subject line of The e - mail message to Bielecki indicated that it had been sent from
position as deputy director. Craigslist post concerned Joseph’s potential August 2016 reappoi ntment to his No William Joseph reapointment [sic] at NH DMV.” (Bolding omitted.) The e - mail containing a link to a “Craigslist” post. The Craig s list post stated: “Vote of DOS, who said that Elizabeth Bielecki, the director of DOS, had received an The investigating detective met with William Joseph, the deputy director
concerned that there had been a “cyber - attack.” Hampshire officials and employees. The assistant commissioner was Safety (DOS) regarding e - mail messages that had been rece ived by State of New message from the assistant commissioner o f the New Hampshire Department of on August 5, 2016, the affiant, a state police detective, received an e - mail The affidavit submitted in s upport of the warrant application avers that, 3
affidavit in a hyper - technical sense. Id. “Rather, we review the affidavit in a determination and will not invalidate warrants by reading the supporting We afford much deference to the magistrate’s probable cause
Id. the information that the police brought to the issuing magistrate’s attention. Letoile, 166 N.H. 269, 27 3 (2014). As a reviewing court, we may consider only had a substantial basis for concluding that probable cause existed. State v. Our duty as the reviewing court is to ensure that the is suing magistrate
omitted). cause.” State v. Doe, 115 N.H. 6 82, 685 (1975) (quotation and brackets and not a prima facie showing, of criminal activity is the standard of probable of a crime will be found in a particular pla ce. See i d. “Only the probability, with certainty, or even beyond a reasonable doubt, that contraband or evidence illicit objects and the place to be searched. Id. The affiant need not establish constitutional muster, affidav its must establish a sufficient nexus between the and will aid in a particular apprehension or conviction.” Id. To meet would justifiably believe that what is sought will be found through the search 207 (2012). Probable cause to search exists “if a person of ordinary caution be issued only upon a finding of probable cause. State v. Ball, 164 N.H. 204, Part I, Article 19 of the State Constitution requires that search warrants
merely to aid our analysis. See State v. Ball, 124 N.H. 226, 2 31 - 33 (1983). Constitution. Thus, to the extent that we rely upon federal law, we do so denied. He raises his arguments only under Part I, Article 19 of the State improperly issued and his motion for the return of his property improperly search warrant fails to establish probable cause, the search warrant was On appeal, Exline argues that, because the affidavit supporting the
which the circuit court denied. This appeal followed. subsequently filed a motion for the immediate return of the seized property, computers, and one computer tablet from Exline’s residence. Exline telephones, two external hard drives, two laptop computers, two desktop Thereafter, the search w arrant was executed. Police seized four cellular
account is Exline’s residence. Craigslist post originated and that the service address associated with the subscriber associated with the “Internet Protocol address” (IP) from which the approximately 12:46 p.m. Information also showed that Exline is the approximately 12: 30 p.m. and had been posted to the Craigslist website at originated from Exline’s business e - mail address. The post had been created at The detective later obtained information revealing that the Craigslist post
source computer that sent the emails.” recipients,” but that such “information could possibly be obtained from the 4
ordinary meaning. Id. at 289. We interpret legislative intent from the statute statute itself, and, if possible, construe that language according to its plain and considered as a whole. Id. at 288 - 8 9. We first look to the language of the arbiter of the intent of the legislature as expressed in the words of a statute N.H. 279, 288 (2017). In matters of statutory interpretation, we are the final review the trial cou rt’s statutory interpretation de novo. State v. Fiske, 170 Resolving this issue requires that we engage in statutory interpretation. We constitute “identity fraud” within the meaning of the pertinent statutes. Exline next asserts that the affidavit fails to allege conduct that could
Zurcher v. Stanford Daily, 436 U.S. 547, 555 (1978). warrant “need not even name the person from whom the things will be seized.” same as probable cause to arrest”). “[A]s a constitutional matter” a search see Doe, 115 N.H. at 685 (recognizing that “probable cause to search is not the sought.” Wyoming v. Houghton, 526 U.S. 295, 302 (1999) (quotation omitted); be searched for and seized are located on the property to which entry is crime but that there is reasonable cause to believe that the specific ‘things’ to a reasonable search is not that the owner of the property is suspected of a him or his girlfriend to the alleged crimes is misplaced. “The critical element in Exline’s focus upon whether the affidavit sufficiently connected either
[his girlfriend’s] actions.” but “[t]hose are the only two facts in [the] . . . affidavit relating to . . . [his] or sent an e - mail to [the] . . . Communications Director for [the] former Governor,” . . . affidavit show [he] created the Craigslist Post and, several months earlier, or his girlfriend engaged in criminal activity. He argues that “the facts in [the] fails to establish probable cause because it does not demonstrate that either he e - mail addresses to his home. Nonetheless, Exline maintains that the af fidavit communications director; and (5) the State “did link” his IP and business the Craigslist post; ( 4) he sent the May 2016 e - mail message to the Governor’s (2) he is the subscriber associated with the IP add ress at issue; (3) he created business and residence are both located at 1832 Candia Road in Manchester; For the purposes of this appeal, Exline does not contest that: (1) his
See State v. Pessetto, 160 N.H. 813, 816 (2010); see also RSA 595 - A:6 (2001). return of his property under our unsustainable exercise of discretion standard. We review the circuit court’s denial of Exline’s motion for the immediate
State v. Ward, 163 N.H. 1 56, 160 - 61 (2012); see also Letoile, 166 N.H. at 273. crime would be found in the particular place described in the warrant. See for concluding that there was a fair probability that contraband or evidence of a circumstances set forth in the affidavit, the magistrate had a substantial basis warrant application. Ball, 16 4 N.H. at 207. We examine whether, gi ven all the circumstances test to review the sufficiency of an affidavit submitted with a accorded to warrants.” Id. (quotation omitted). We apply a totality - of - the common - sense manner, and determine clo se cases by the preference to be 5
address, they are not authorized to send e - mail messages from that address. of the public are authorized to send e - mail messages to a government e - mail addresses is the authorization for their use.” We disagree. Although members on - line.” He contends that “[t]he publication and availability of the e - mail because they, “like almost all state employees’ e - mail addresses[,] are available “personal identifying information” within the meaning of RSA 638:2 5, I, Exline argues that the government e - mail addresses at issue are not
RSA 638:2 5, I.
number, account number, or c omputer password identification. credit card number, debit card number, personal identification name, demand deposit account number, savings account number, of employment, employee identification number, mother ’ s maiden driver ’ s license number, s ocial security number, employer or place an individual, including any name, address, telephone number, conjunction with any other information, to assume the identity of any name, number, or information that may be used, alone or in
mean: RSA 638:26, I. RSA 638:2 5 (2016) defines “perso nal identifying information” to
public. information about such person that is not available to the general such person, with the purpose of obtaining confidential (d) Poses as another person, without the express authorization of
to assist another to pose as such pe rson; or person without the express authorization of such person in order (c) Obtains or records personal identifying information about a
with the intent to pose as such person; another person without the express authorization of such person, (b) Obtains or records personal identifying information about
obtain money, credit, goods, services, or anything else of value; (a) Poses as another person with the purpose to defraud in order to
she: Pursuant to RSA 638:26, a person is guilty of identity fraud when he or
Id.; see RSA 62 5:3 (2016). Criminal Code according to the fair import of it s terms and to promote justice. language that the legislat ure did not see fit to include. Id. We construe the as written and will not consider what the legislat ure might have said or add 6
objects seized. substantial basis for finding probable cause to search Exline’s residence for the manner, see Letoile, 1 66 N.H. at 273, we conclude that the magistrate had a totality of the circumst ances, and viewing the affidavit in a common - sense communications director. Exline’s argument is unpersuasive. Based upon the the Craigslist post and sending the May 31, 2016 e - mail to the Governor’s that his IP and e - mail addresses were used for the lawful activities of creating his residence and in the items seized because, at best, it demonstrates only fair probability that evidence of the crime of identity fraud would be found at Exline next argues that the affidavit fails to establish that there was a
the crime of tampering with a pu blic or private record. assertions that the affidavit also fails to allege conduct that could constitute could constitute the crime of identity fraud, we need not address Exline’s Ha ving concluded that the affidavit sufficiently alleges conduct that
N.H. 722, 727 (2017). this argument, and, thus, we deem it waived. See State v. Santamaria, 1 69 not require that a third person be defrauded. In any event, Exline did not brief as an other person or persons.” RSA 638:25, II. The statutory definition does fact, to “pose” is defined as “to falsely represent oneself, directly or indirectly, had not forwarded the post to themselves, no third party was defrauded. In here, because the recipients of the forwarded Craigslist post knew that they that, to “pose” as another person requires that a third party be d efrauded and that could constitute “posing” within the meaning of the statute. He contended At oral argument, Exline asserted that the affidavit fails to allege conduct
information.” RSA 638:25, I. sufficiently similar to the enumerated items to constitute “personal identifyin g employer of the individual who owns the e - mail address. They are, thus, by the specific words”). The e - mail addresses at issue reveal the full name and are construed to embrace only objects similar in natu re to those enumerated that, when specific words in a statute follow general ones, the general words 307, 311 (2017) (explaining that the principle of ejusdem generis “provides items specifically listed.” Id. at 6; see Kurowski v. Town of Chester, 170 N.H. limits “the items intended to be covered . . . to those of the same type as the (2003). Like the phrase “including but not limited to,” the word “including” exhaustive. Conservation Law Found. v. N.H. Wetlands Council, 150 N.H. 1, 5 In fact, the use of the word “including” means that the list is not
information” in that provision “exhaustive.” the word “including” in RSA 638:25, I, renders the list of “personal identifying “personal identifying information.” Exline mistakenly asserts that the use of the list of enumerated items, they are excluded from the statutory definition of Exline next asserts that, because e - mail addresses are not included in 7
LYNN, C.J.
, and BASSETT and HANTZ MARCONI, JJ., concurred.
Affirmed.
immediate return of his pro perty. court unsustainably exercised its discretion by denying Exline’s motion for the For all of the above reasons, therefore, we cannot say that the circuit
objects seized contained evidence of the crime of identity fraud. believing that there was a fair probability that Exline’s residenc e and the conclude that the affidavit afforded the magistrate a substantial basis for done so. Accordingly, based upon the totality of these circumstances, we they forwarded the Craigslist post to themselves when, in fact, they had not employees at issue, without their authorization, in order to make it appear that were used to enter the e - mail addresses of the DOS administrators and issues,” further support the inference that Exline’s e - mail and IP addresses that Exline’s girlfriend is known to dislike Joseph because of “disciplinary director, which originated from Exline’s e - mail and IP addresses, and the fact message to Bielecki. The May 2016 e - mail to the Governor’s communications addresses were used to create the Craigslist post and to send the e - mail sent supports the common - sense inference that the same IP and e - mail posted to the Craigslist website and when the e - mail message to Bielecki was 12:5 2 p.m. The tem poral proximity between when the Craigslist post was The affidavit avers that the e - mail message to Bielecki was sent on August 5 at 2016, at 12:30 p.m. and was posted to the Craigslist website at 12:46 p.m. According to the affidavit, the Craigslist post was created on August 5,
forwarded to themselves the Craigslist pos t. issue, without their authorization, in order to make it appear that they used to enter the e - mail addresses of the DOS administrators and employees at allow the common - sense inference that Exline’s e - mail and IP addresses were concedes these facts on appeal. The affidavit also alleges facts sufficient to addresses were used to create and post the Craigslist post. Indeed, Exline The affidavit alleges facts establishing that Exline’s e - mail and IP
constitutes “recording” it for the purposes of RSA 638:26, I(b). otherwise, we assume without deciding that entering an e - mail address when, in fact, the recipient had not done so. Because Exline does not argue that the recipient forwarded to himself or herself the link to the Craig s list post which the message would be sent. By doing this, the person made it appear e - mail address from which the message originated and the e - mail address to administrators and employees at issue, without their authorization, as both the occurred when someone entered the e - mail addresses of the DOS pose as that person. See RSA 638:26, I(b). The affidavit avers that this activity belonging to another person, without that person’s authorization, in order to The criminal activity alleged concerns “recording” an e - mail address