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THE SUPREME COURT OF NEW HAMPSHIRE
___________________________
6th Circuit Court-Concord District Division
No. 2017-0346
IN RE SEARCH WARRANT FOR 1832 CANDIA ROAD, MANCHESTER, NEW
HAMPSHIRE
Argued: March 21, 2018
Opinion Issued: June 8, 2018
Tarbell & Brodich Professional Association, of Concord (Friedrich K.
Moeckel on the brief and orally), for Richard Exline.
Gordon J. MacDonald, attorney general (Elizabeth C. Woodcock,
assistant attorney general, on the brief and orally), for the State.
HICKS, J. Richard Exline appeals an order of the Circuit Court (Gordon,
J.) denying his motion for the immediate return of seized property on the
ground that the affidavit supporting the search warrant under which the
seizure occurred fails to establish probable cause. We affirm.
The relevant facts follow. In March 2017, a warrant was issued to search
“any computer, computer system, mobile digital device, camera, router, wi-fi
device, cellular telephone, smart phone, [and] commercial software and
hardware” located at 1832 Candia Road in Manchester (Exline’s residence).
The warrant stated that there was probable cause to believe that the property
so described was relevant to the crimes of identity fraud, see RSA 638:26
(2016), and tampering with public or private records, see RSA 638:3 (2016).
The affidavit submitted in support of the warrant application avers that,
on August 5, 2016, the affiant, a state police detective, received an e-mail
message from the assistant commissioner for the New Hampshire Department
of Safety (DOS) regarding e-mail messages that had been received by State of
New Hampshire officials and employees. The assistant commissioner was
concerned that there had been a “cyber-attack.”
The investigating detective met with William Joseph, the deputy director
of DOS, who said that Elizabeth Bielecki, the director of DOS, had received an
e-mail containing a link to a “Craigslist” post. The Craigslist post stated: “Vote
No William Joseph reapointment [sic] at NH DMV.” (Bolding omitted.) The
Craigslist post concerned Joseph’s potential August 2016 reappointment to his
position as deputy director.
The e-mail message to Bielecki indicated that it had been sent from
“noreply@craigslist.org” on August 5, 2016, at 12:52 p.m. The subject line of
the message stated: “Vote No William Joseph reapointment [sic] at.” The body
of the message included a link to the Craigslist post and indicated that Bielecki
had forwarded the Craigslist post to herself, using her government e-mail
address. Bielecki confirmed that, in fact, she had not forwarded the post to
herself, nor had she authorized anyone to use her government e-mail address.
The detective subsequently spoke with Jeffrey Oberdank, the supervisor
of driver licensing, who had received a similar e-mail message containing a link
to the Craigslist post. Although the body of the message stated that Oberdank
had forwarded the post to himself from his government e-mail address, he had
not done so and had not authorized anyone to use his government e-mail
address. Ultimately, the detective discovered that 54 DOS administrators and
employees had received an e-mail message containing a link to the Craigslist
post. Each message appeared to have been forwarded to the recipient by the
recipient himself or herself, using the recipient’s government e-mail address.
The detective learned that Exline and his girlfriend might have been
responsible for the Craigslist post and for forwarding it by using the e-mail
addresses of DOS administrators and employees without authorization.
Exline’s girlfriend, a DOS employee, has had “disciplinary issues” involving
Joseph and dislikes him. The detective was told that, in May 2016, Exline’s
business e-mail address was used to send a message to the Governor’s
communications director urging that Joseph resign because of poor work
performance.
According to a Craigslist official, to forward a Craigslist post to oneself,
an individual must enter his or her e-mail address twice — once as the e-mail
address to which the post will be sent, and again as the e-mail address from
which the post will be sent. The official informed the detective that Craigslist
“could not provide documentation on who sent the [Craigslist] post to the 54
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recipients,” but that such “information could possibly be obtained from the
source computer that sent the emails.”
The detective later obtained information revealing that the Craigslist post
originated from Exline’s business e-mail address. The post had been created at
approximately 12:30 p.m. and had been posted to the Craigslist website at
approximately 12:46 p.m. Information also showed that Exline is the
subscriber associated with the “Internet Protocol address” (IP) from which the
Craigslist post originated and that the service address associated with the
account is Exline’s residence.
Thereafter, the search warrant was executed. Police seized four cellular
telephones, two external hard drives, two laptop computers, two desktop
computers, and one computer tablet from Exline’s residence. Exline
subsequently filed a motion for the immediate return of the seized property,
which the circuit court denied. This appeal followed.
On appeal, Exline argues that, because the affidavit supporting the
search warrant fails to establish probable cause, the search warrant was
improperly issued and his motion for the return of his property improperly
denied. He raises his arguments only under Part I, Article 19 of the State
Constitution. Thus, to the extent that we rely upon federal law, we do so
merely to aid our analysis. See State v. Ball, 124 N.H. 226, 231-33 (1983).
Part I, Article 19 of the State Constitution requires that search warrants
be issued only upon a finding of probable cause. State v. Ball, 164 N.H. 204,
207 (2012). Probable cause to search exists “if a person of ordinary caution
would justifiably believe that what is sought will be found through the search
and will aid in a particular apprehension or conviction.” Id. To meet
constitutional muster, affidavits must establish a sufficient nexus between the
illicit objects and the place to be searched. Id. The affiant need not establish
with certainty, or even beyond a reasonable doubt, that contraband or evidence
of a crime will be found in a particular place. See id. “Only the probability,
and not a prima facie showing, of criminal activity is the standard of probable
cause.” State v. Doe, 115 N.H. 682, 685 (1975) (quotation and brackets
omitted).
Our duty as the reviewing court is to ensure that the issuing magistrate
had a substantial basis for concluding that probable cause existed. State v.
Letoile, 166 N.H. 269, 273 (2014). As a reviewing court, we may consider only
the information that the police brought to the issuing magistrate’s attention.
Id.
We afford much deference to the magistrate’s probable cause
determination and will not invalidate warrants by reading the supporting
affidavit in a hyper-technical sense. Id. “Rather, we review the affidavit in a
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common-sense manner, and determine close cases by the preference to be
accorded to warrants.” Id. (quotation omitted). We apply a totality-of-the-
circumstances test to review the sufficiency of an affidavit submitted with a
warrant application. Ball, 164 N.H. at 207. We examine whether, given all the
circumstances set forth in the affidavit, the magistrate had a substantial basis
for concluding that there was a fair probability that contraband or evidence of a
crime would be found in the particular place described in the warrant. See
State v. Ward, 163 N.H. 156, 160-61 (2012); see also Letoile, 166 N.H. at 273.
We review the circuit court’s denial of Exline’s motion for the immediate
return of his property under our unsustainable exercise of discretion standard.
See State v. Pessetto, 160 N.H. 813, 816 (2010); see also RSA 595-A:6 (2001).
For the purposes of this appeal, Exline does not contest that: (1) his
business and residence are both located at 1832 Candia Road in Manchester;
(2) he is the subscriber associated with the IP address at issue; (3) he created
the Craigslist post; (4) he sent the May 2016 e-mail message to the Governor’s
communications director; and (5) the State “did link” his IP and business
e-mail addresses to his home. Nonetheless, Exline maintains that the affidavit
fails to establish probable cause because it does not demonstrate that either he
or his girlfriend engaged in criminal activity. He argues that “the facts in [the]
. . . affidavit show [he] created the Craigslist Post and, several months earlier,
sent an e-mail to [the] . . . Communications Director for [the] former Governor,”
but “[t]hose are the only two facts in [the] . . . affidavit relating to . . . [his] or
[his girlfriend’s] actions.”
Exline’s focus upon whether the affidavit sufficiently connected either
him or his girlfriend to the alleged crimes is misplaced. “The critical element in
a reasonable search is not that the owner of the property is suspected of a
crime but that there is reasonable cause to believe that the specific ‘things’ to
be searched for and seized are located on the property to which entry is
sought.” Wyoming v. Houghton, 526 U.S. 295, 302 (1999) (quotation omitted);
see Doe, 115 N.H. at 685 (recognizing that “probable cause to search is not the
same as probable cause to arrest”). “[A]s a constitutional matter” a search
warrant “need not even name the person from whom the things will be seized.”
Zurcher v. Stanford Daily, 436 U.S. 547, 555 (1978).
Exline next asserts that the affidavit fails to allege conduct that could
constitute “identity fraud” within the meaning of the pertinent statutes.
Resolving this issue requires that we engage in statutory interpretation. We
review the trial court’s statutory interpretation de novo. State v. Fiske, 170
N.H. 279, 288 (2017). In matters of statutory interpretation, we are the final
arbiter of the intent of the legislature as expressed in the words of a statute
considered as a whole. Id. at 288-89. We first look to the language of the
statute itself, and, if possible, construe that language according to its plain and
ordinary meaning. Id. at 289. We interpret legislative intent from the statute
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as written and will not consider what the legislature might have said or add
language that the legislature did not see fit to include. Id. We construe the
Criminal Code according to the fair import of its terms and to promote justice.
Id.; see RSA 625:3 (2016).
Pursuant to RSA 638:26, a person is guilty of identity fraud when he or
she:
(a) Poses as another person with the purpose to defraud in order to
obtain money, credit, goods, services, or anything else of value;
(b) Obtains or records personal identifying information about
another person without the express authorization of such person,
with the intent to pose as such person;
(c) Obtains or records personal identifying information about a
person without the express authorization of such person in order
to assist another to pose as such person; or
(d) Poses as another person, without the express authorization of
such person, with the purpose of obtaining confidential
information about such person that is not available to the general
public.
RSA 638:26, I. RSA 638:25 (2016) defines “personal identifying information” to
mean:
any name, number, or information that may be used, alone or in
conjunction with any other information, to assume the identity of
an individual, including any name, address, telephone number,
driver’s license number, social security number, employer or place
of employment, employee identification number, mother’s maiden
name, demand deposit account number, savings account number,
credit card number, debit card number, personal identification
number, account number, or computer password identification.
RSA 638:25, I.
Exline argues that the government e-mail addresses at issue are not
“personal identifying information” within the meaning of RSA 638:25, I,
because they, “like almost all state employees’ e-mail addresses[,] are available
on-line.” He contends that “[t]he publication and availability of the e-mail
addresses is the authorization for their use.” We disagree. Although members
of the public are authorized to send e-mail messages to a government e-mail
address, they are not authorized to send e-mail messages from that address.
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Exline next asserts that, because e-mail addresses are not included in
the list of enumerated items, they are excluded from the statutory definition of
“personal identifying information.” Exline mistakenly asserts that the use of
the word “including” in RSA 638:25, I, renders the list of “personal identifying
information” in that provision “exhaustive.”
In fact, the use of the word “including” means that the list is not
exhaustive. Conservation Law Found. v. N.H. Wetlands Council, 150 N.H. 1, 5
(2003). Like the phrase “including but not limited to,” the word “including”
limits “the items intended to be covered . . . to those of the same type as the
items specifically listed.” Id. at 6; see Kurowski v. Town of Chester, 170 N.H.
307, 311 (2017) (explaining that the principle of ejusdem generis “provides
that, when specific words in a statute follow general ones, the general words
are construed to embrace only objects similar in nature to those enumerated
by the specific words”). The e-mail addresses at issue reveal the full name and
employer of the individual who owns the e-mail address. They are, thus,
sufficiently similar to the enumerated items to constitute “personal identifying
information.” RSA 638:25, I.
At oral argument, Exline asserted that the affidavit fails to allege conduct
that could constitute “posing” within the meaning of the statute. He contended
that, to “pose” as another person requires that a third party be defrauded and
here, because the recipients of the forwarded Craigslist post knew that they
had not forwarded the post to themselves, no third party was defrauded. In
fact, to “pose” is defined as “to falsely represent oneself, directly or indirectly,
as another person or persons.” RSA 638:25, II. The statutory definition does
not require that a third person be defrauded. In any event, Exline did not brief
this argument, and, thus, we deem it waived. See State v. Santamaria, 169
N.H. 722, 727 (2017).
Having concluded that the affidavit sufficiently alleges conduct that
could constitute the crime of identity fraud, we need not address Exline’s
assertions that the affidavit also fails to allege conduct that could constitute
the crime of tampering with a public or private record.
Exline next argues that the affidavit fails to establish that there was a
fair probability that evidence of the crime of identity fraud would be found at
his residence and in the items seized because, at best, it demonstrates only
that his IP and e-mail addresses were used for the lawful activities of creating
the Craigslist post and sending the May 31, 2016 e-mail to the Governor’s
communications director. Exline’s argument is unpersuasive. Based upon the
totality of the circumstances, and viewing the affidavit in a common-sense
manner, see Letoile, 166 N.H. at 273, we conclude that the magistrate had a
substantial basis for finding probable cause to search Exline’s residence for the
objects seized.
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The criminal activity alleged concerns “recording” an e-mail address
belonging to another person, without that person’s authorization, in order to
pose as that person. See RSA 638:26, I(b). The affidavit avers that this activity
occurred when someone entered the e-mail addresses of the DOS
administrators and employees at issue, without their authorization, as both the
e-mail address from which the message originated and the e-mail address to
which the message would be sent. By doing this, the person made it appear
that the recipient forwarded to himself or herself the link to the Craigslist post
when, in fact, the recipient had not done so. Because Exline does not argue
otherwise, we assume without deciding that entering an e-mail address
constitutes “recording” it for the purposes of RSA 638:26, I(b).
The affidavit alleges facts establishing that Exline’s e-mail and IP
addresses were used to create and post the Craigslist post. Indeed, Exline
concedes these facts on appeal. The affidavit also alleges facts sufficient to
allow the common-sense inference that Exline’s e-mail and IP addresses were
used to enter the e-mail addresses of the DOS administrators and employees at
issue, without their authorization, in order to make it appear that they
forwarded to themselves the Craigslist post.
According to the affidavit, the Craigslist post was created on August 5,
2016, at 12:30 p.m. and was posted to the Craigslist website at 12:46 p.m.
The affidavit avers that the e-mail message to Bielecki was sent on August 5 at
12:52 p.m. The temporal proximity between when the Craigslist post was
posted to the Craigslist website and when the e-mail message to Bielecki was
sent supports the common-sense inference that the same IP and e-mail
addresses were used to create the Craigslist post and to send the e-mail
message to Bielecki. The May 2016 e-mail to the Governor’s communications
director, which originated from Exline’s e-mail and IP addresses, and the fact
that Exline’s girlfriend is known to dislike Joseph because of “disciplinary
issues,” further support the inference that Exline’s e-mail and IP addresses
were used to enter the e-mail addresses of the DOS administrators and
employees at issue, without their authorization, in order to make it appear that
they forwarded the Craigslist post to themselves when, in fact, they had not
done so. Accordingly, based upon the totality of these circumstances, we
conclude that the affidavit afforded the magistrate a substantial basis for
believing that there was a fair probability that Exline’s residence and the
objects seized contained evidence of the crime of identity fraud.
For all of the above reasons, therefore, we cannot say that the circuit
court unsustainably exercised its discretion by denying Exline’s motion for the
immediate return of his property.
Affirmed.
LYNN, C.J., and BASSETT and HANTZ MARCONI, JJ., concurred.
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