The opinion of the court was delivered by: Bassett, J.
a.m. on the morning of their release. The direct address of the court's home page is: http://www.courts.state.nh.us/supreme.
Resubmitted: August 17, 2012
The defendant, Logan Schulz, appeals his convictions for being an accomplice to possession of cocaine, see RSA 318-B:2 (2011); RSA 626:8 (2007), and an accomplice to possession of cocaine with intent to distribute, see RSA 318-B:2, :26 (2011); RSA 626:8. He argues that the Superior Court (Vaughan, J.) erred in denying his motion to suppress because the search warrant for his home was unconstitutional both on its face and in its execution. We reverse and remand.
The relevant facts are not disputed. On October 29, 2010, Officer Brandon Alling of the Haverhill Police Department went to the home that the defendant shared with his mother to serve her with a notice against trespass and harassment. While lawfully inside the home, Officer Alling saw three long guns near a staircase. Knowing that the defendant's mother was a convicted felon and, thus, prohibited from possessing firearms, see RSA 159:3 (2002), Alling sought a warrant to search the home. In his affidavit to the magistrate, he described the guns as follows:
One appeared to be a shotgun with a dark colored stock, possibly a single shot. I did not observe a packing rod under the barrel indicating it was a black powder rifle and it appeared to have a chamber. Another appeared to be a .22 caliber with a wooden stock. The barrel on the rifle appeared to be too large to be a pellet gun and was longer than any pellet guns I recall ever seeing.
Based upon this information, the magistrate issued a warrant authorizing the police to search the defendant's home for "firearms."
On October 31, three officers, including Alling, searched the defendant's home pursuant to the warrant. Early in the search, they learned that the three guns near the staircase were, in fact, "BB" guns and were, therefore, not unlawful for the defendant's mother to possess. The officers then continued the search and asked the defendant whether there were any additional guns in the house. The defendant informed them that he had a muzzle loader rifle and took them to his bedroom to show it to them. In the room, Officer Alling observed a lock box large enough to contain a handgun but too small to contain a long gun, and told the defendant to open it, noting that the officers could open it by force if necessary. Both the defendant and his mother protested on the grounds that the police had no reason to believe they had a handgun. The defendant's mother then became upset and admitted that the lock box contained cocaine and money. Based upon this information, the police obtained a second warrant to search the lock box and, upon execution of that warrant, found cocaine and money inside.
The trial court denied the defendant's motion to suppress after a hearing, and, after a bench trial, convicted him of the two drug charges.
The defendant advances two reasons why the evidence against him should have been suppressed under Part I, Article 19 of the State Constitution and the Fourth Amendment of its federal counterpart: first, he argues that the initial warrant lacked probable cause to search for all "firearms" generally and, accordingly, violated state and federal constitutional particularity requirements; and second, he argues that even if the scope of the initial warrant was proper, the police should have discontinued the search upon discovering that what they thought were firearms were, in fact, BB guns. The State argues that the initial warrant was supported by probable cause and was properly executed. The State does not rely upon the second warrant as an independent basis for denying the defendant's motion to suppress. We first address the defendant's arguments under the State Constitution and rely on federal law only to aid in our analysis. State v. Ball, 124 N.H. 226, 231-33 (1983).
When reviewing a trial court's ruling on a motion to suppress, we accept the trial court's factual findings unless they lack support in the record or are clearly erroneous, and we review its legal conclusions de novo. State v. Beauchemin, 161 N.H. 654, 656 (2011).
We assume, without deciding, that the search warrant was supported by probable cause and satisfied the particularity requirement. We agree with the defendant, however, that the manner in which the ...