Argued November 13, 2014.
Under New Hampshire procedural rule this decision is subject to motion for rehearing, as well as formal revision before publication in the New Hampshire reports.
Hillsborough-northern judicial district.
Joseph A. Foster, attorney general ( Geoffrey W.R. Ward, assistant attorney general, on the brief and orally), for the State.
Christopher M. Johnson, chief appellate defender, of Concord, on the brief and orally, for the defendant.
BASSETT, J. DALIANIS, C.J., and HICKS, CONBOY, and LYNN, JJ., concurred.
The defendant, Michael Francis, appeals his conviction of possession of heroin with the intent to dispense. See RSA 318-B:2 (Supp. 2012) (amended 2013). He argues that: (1) the Superior Court ( Brown, J.) erred in denying his motion to suppress evidence obtained fro a search of a vehicle; and (2) the Superior Court ( Mangones, J.) erred in denying his motion to dismiss based upon insufficient evidence that he possessed the heroin found in the vehicle. We affirm.
The following facts are drawn from the trial court order on the defendant's motion to suppress, are supported by the record, or are undisputed by the parties. At 5:30 p.m. on January 3, 2013, Detectives Gonzales and Donahue of the Manchester Police Department were told that the defendant was wanted for a parole violation, that he was dealing drugs at a Maple Street residence in Manchester, and that he might be armed. Gonzales and Donahue conducted surveillance of the Maple Street residence in an attempt to locate the defendant in order to arrest him for the parole violation. They observed several individuals entering a Ford Expedition, a large sport utility vehicle (SUV), which then drove off. The detectives identified one of the individuals as the defendant based upon his facial appearance and the tattoo on the side of his neck. Because the area was not well-lit, the detectives could not determine the exact number of people in the SUV or whether they had anything in their hands. Gonzales and Donahue followed the SUV and called for assistance. Two officers responded and stopped the vehicle.
Gonzales and Donahue, accompanied by the other officers, approached the stopped vehicle with their firearms drawn, and ordered each occupant out of the SUV, one at a time. The defendant, who sat behind the front passenger seat, was the last person to leave the vehicle, exiting approximately 30 to 45 seconds after the other occupants. The four individuals who exited the vehicle were found to be unarmed. However, because Gonzales was unable to see through the SUV's tinted and dirty windows, he was unsure whether any other persons remained in the vehicle. Therefore, the officers decided to " clear" the vehicle to ensure that a potentially dangerous person did not remain inside the SUV.
Without obtaining either consent or a warrant, Gonzales entered the SUV. With his gun drawn, he " flipped" the seats and looked underneath them to determine whether anyone was lying down in the SUV. During the sweep, Gonzales observed a partially-opened red backpack on the floor in front of the defendant's seat. Gonzales could see the top of a semi-automatic handgun inside the backpack. The " clear" took a total of eight to ten seconds.
After Boulanger, the owner of the SUV, refused to consent to a vehicle search, the vehicle was seized and a search warrant was obtained. During the search of the SUV, Gonzales found heroin under the driver's seat. Upon searching the red backpack, Gonzales found a handgun, a box of sandwich bags, and two digital scales, one of which tested positive for heroin residue. The defendant was arrested and charged with, among other things, possession of heroin with the intent to dispense.
Before trial, the defendant moved to suppress evidence seized from the SUV, alleging that the protective sweep was a warrantless search in violation of the New Hampshire and United States Constitutions. See N.H. Const. pt. I, art. 19; U.S. Const. amend. IV. The trial court denied the motion, finding that the evidence was " admissible pursuant to the protective ...