Argued: November 9, 2016
A. Foster, attorney general (Susan P. McGinnis, senior
assistant attorney general, on the brief and orally), for the
Barnard, senior assistant appellate defender, of Concord, on
the brief and orally, for the defendant.
defendant, Scott Robinson, appeals his convictions for armed
robbery and first degree assault. See RSA 636:1
(2016); RSA 631:1 (2007). We affirm.
defendant was previously convicted on these charges and
appealed, arguing that the Trial Court (Barry, J.)
erred in denying his motion to suppress. State v.
Robinson, 158 N.H. 792, 794 (2009) (Robinson
I). We reversed his convictions, holding that the trial
court erred in concluding that exigent circumstances
permitted the warrantless entry by police into his apartment.
Id. at 802-03.
remand, the defendant again moved to suppress, inter
alia, physical evidence obtained "from the time of
the warrantless entry into his apartment" and the fruits
thereof. The Trial Court (Garfunkel, J.) denied his
request to suppress the physical evidence, after finding that
it was properly seized during a subsequent search pursuant to
a valid warrant.
defendant was convicted following a subsequent jury trial. He
thereafter filed motions for a new trial in 2013 and in 2014,
arguing in both motions that his trial counsel had been
ineffective. The motions were denied after hearings, and the
defendant has appealed. We consolidated the defendant's
direct appeal of his convictions with his appeals of the
rulings on his motions for new trial.
appeal, the defendant argues: (1) that the trial court erred
by considering, upon remand, the doctrines of independent
source and inevitable discovery; (2) that his trial counsel
was ineffective because she did not argue that the doctrines
of law of the case and waiver barred the State from raising
the independent source and inevitable discovery arguments in
the trial court following remand; and (3) that, even if the
trial court did not err in considering the State's
arguments, remand is necessary to address certain factual
issues. He also contends that our holding in Robinson
I - that the police did not violate his constitutional
rights when they inserted a key, found at the site of the
robbery, into the lock of his car, id. at 796-97 -
conflicts with recent United States Supreme Court decisions.
following facts are drawn from the trial court's June
2011 post-remand order which denied the defendant's
motion to suppress. On March 18, 2006, Manchester police
officers responded to a reported robbery at a Manchester
variety store. A witness reported that a white male, wearing
a New England Patriots jacket and green hooded sweatshirt,
entered the area behind the counter in the store, stabbed the
store clerk, and took money from the register. The police
searched the area behind the counter and found a key ring
holding three keys; one of the keys belonged to a Kia
automobile. The store employees stated that the key did not
belong to any of them, and so the police assumed that the key
belonged to the suspect. The police found a Kia parked on the
street nearby, and determined from witness reports that the
suspect had run in the direction of the vehicle before
turning into an alley. They relayed the license plate number
of the Kia to police dispatch and learned that the Kia
belonged to the defendant, who lived eight blocks from the
site of the robbery.
police officers headed to the defendant's apartment;
another officer took the key and inserted it in the door of
the Kia and determined that it fit the lock (key test). This
information was relayed to the officers at the
defendant's apartment building and was later included in
an application for a warrant to search the defendant's
apartment. It is undisputed that when the officers first
entered the defendant's apartment, they did so without a
warrant. During the initial entry, they observed a green
sweatshirt and a Patriots jacket in the defendant's
closet. Subsequently, after obtaining a warrant, they again
entered the apartment and seized the green sweatshirt, the
Patriots jacket and a knife.
defendant first argues that the trial court erred in
considering, upon remand, the independent source and
inevitable discovery exceptions to the exclusionary rule.
Before addressing the defendant's contention that the
exclusionary rule applied to the challenged evidence under
both the State and Federal Constitutions, we briefly discuss
the evolution of these doctrines.
general rule is that evidence must be excluded if it is
discovered as a result of police misconduct. State v.
Holler, 123 N.H. 195, 199 (1983). "The exclusionary
rule enjoins the Government from benefiting from evidence it
has unlawfully obtained." United States v.
Crews, 445 U.S. 463, 475 (1980). The United States
Supreme Court has recognized, however, that evidence
discovered as a result of unlawful conduct does not
automatically become forever inaccessible. Silverthorne
Lumber Co v. United States, 251 U.S. 385, 392 (1920).
"If knowledge of [facts] is gained from an independent
source they may be proved like any others." Id.
"Accordingly, information which is received through an
illegal source is considered to be cleanly obtained when it
arrives through an independent source." United
States v. Soto, 799 F.3d 68, 81-82 (1st Cir. 2015)
(quotation omitted). "The independent source doctrine
teaches us that the interest of society in deterring unlawful
police conduct and the public interest in having juries
receive all probative evidence of a crime are properly
balanced by putting the police in the same, not a
worse, position that they would have been in if no
police error or misconduct had occurred." Nix v.
Williams, 467 U.S. 431, 443 (1984).
Wong Sun v. United States, 371 U.S. 471 (1963), the
Supreme Court discussed the analysis used to determine
whether the independent source ...