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State v. Stacey

Supreme Court of New Hampshire, Strafford

November 1, 2018


          Argued: June 27, 2018

          Gordon J. MacDonald, attorney general (Gordon P. Landrigan, attorney, on the brief and orally), for the State.

          Sisti Law Offices, of Chichester (Wade Harwood on the brief and orally), for the defendant.

          HICKS, J.

         The defendant, Sean F. Stacey, appeals his convictions on one felony count and one misdemeanor count of possession of a controlled drug. See RSA 318-B:2 (2017). On appeal, he argues that the Superior Court (Fauver, J.) erred by denying his motion to suppress evidence of the drugs he was convicted of possessing. We affirm.

         The trial court recited, or the record supports, the following facts. On June 30, 2016, a state trooper on "speed detail" on Route 16 in Dover pulled over the vehicle that the defendant was driving for speeding. The vehicle did not belong to the defendant, but belonged to someone who had let him borrow it. Once the vehicle was stopped, the trooper approached it, identified himself, and asked the defendant for his license and registration. The defendant was the vehicle's sole occupant. While speaking with him, the trooper detected an odor of marijuana emanating from the vehicle. When questioned about it, the defendant appeared nervous; he no longer made eye contact with the trooper and continually glanced at the console and at a backpack that was on the vehicle's passenger side. As the defendant retrieved his driver's license from his wallet, the trooper noticed that the wallet contained a "stack of cash" folded and wrapped in a blue rubber band. As recounted by the trial court, according to the trooper, the cash was "not inside the designated area [of the wallet] where most people keep their cash."

         Believing there to be probable cause that the vehicle contained marijuana, the trooper asked the defendant if he would consent to a search of it. When the defendant declined, the trooper informed him that the trooper could seize the vehicle and obtain a search warrant. The defendant again declined to consent to a search and said that he would like the trooper to apply for a search warrant.

         As the defendant was arranging for a ride, another trooper arrived on the scene and was asked to provide the defendant with a "courtesy transport" to the next highway exit. Before entering the second trooper's cruiser, the defendant was subjected to a pat down search during which the trooper felt "a wad of something," which the defendant said was cash to purchase a vehicle. Once the second trooper transported the defendant, the vehicle was seized and secured at the troop barracks pending the issuance of a search warrant.

         The first trooper resumed speed detail until his shift ended at 9:00 p.m. He was not scheduled to work again until Sunday, July 3. That day, he signed an affidavit before a circuit court judge in support of a warrant to search the vehicle. However, the trooper did not present the search warrant application to a judge for issuance of the warrant until Tuesday, July 5. At the motion to suppress hearing, the trooper testified that he did not believe that the situation was sufficiently urgent to merit calling an on-call judge on a Sunday or holiday and that he did not ask another trooper to prepare the application because it was his case and he wanted to see it through to the end. As a result, the search warrant in this case was not issued until July 5, approximately five days after the vehicle was seized.

         Before trial, the defendant moved to suppress all evidence obtained as a result of the seizure and subsequent search of the vehicle. See State v. Boyer, 168 N.H. 553, 557 (2016) (explaining that, under the State Constitution, a defendant may have standing to object to a search or seizure based upon: "(1) being charged with a crime in which possession of an item or thing is an element, which confers automatic standing; or (2) having a legitimate expectation of privacy in the place searched or the item seized"); see also United States v. Sugar, 322 F.Supp.2d 85, 94 (D. Mass. 2004) ("Generally speaking, persons who borrow cars have standing to challenge searches of the borrowed vehicles." (citing cases)). Among his theories was the assertion that the seizure of the vehicle, although lawful at its inception, became unlawful because of the five-day delay in securing a search warrant. The trial court denied the defendant's motion, and this appeal followed.

         On appeal, the defendant argues that the delay between the seizure of the vehicle and obtaining a search warrant rendered the seizure unconstitutional under both the State and Federal Constitutions. See N.H. CONST. pt. I, art. 19; U.S. CONST. amends. IV, XIV. When we review a trial court's ruling on a motion to suppress, we accept its factual findings unless they lack support in the record or are clearly erroneous. State v. McInnis, 169 N.H. 565, 569 (2017). Our review of the trial court's legal conclusions is de novo. Id. We first address the issues under the State Constitution and rely upon federal law only to aid our analysis. State v. Ball, 124 N.H. 226, 231-33 (1983).

         Part I, Article 19 of the State Constitution provides that "[e]very subject hath a right to be secure from all unreasonable searches and seizures of his person, his houses, his papers, and all his possessions." N.H. CONST. pt. I, art. 19. "Evidence that is obtained in violation of Part I, Article 19 may be subject to exclusion from evidence in a criminal trial." State v. Davis, 161 N.H. 292, 295 (2010).

         "Warrantless seizures are per se unreasonable under Part I, Article 19 of the State Constitution, unless they fall within the narrow confines of a judicially crafted exception." State v. Nieves, 160 N.H. 245, 247 (2010). In the instant case, there is no dispute that the initial seizure of the vehicle was lawful. As defense counsel acknowledged during oral argument, the vehicle was seized based upon probable cause and exigent circumstances. See State v. Stern, 150 N.H. 705, 708 (2004) (describing the exigent circumstances exception to the warrant requirement); see also State v. Gilson, 116 N.H. 230, 233 (1976) (holding that "[a]n officer with sufficient experience to recognize the odor of burning marijuana has probable cause to suspect its presence when he detects the odor within the confines of an automobile"); cf. State v. Cora, 170 N.H. 186, 196 (2017) (holding that the police do not need a warrant to enter a vehicle that has been stopped in transit pursuant to a lawful stop when they have probable cause to believe that a plainly visible item in the vehicle is contraband).

         Nonetheless, "a seizure reasonable at its inception because based upon probable cause may become unreasonable as a result of its duration." Segura v. United States, 468 U.S. 796, 812 (1984). Thus, "[a] temporary warrantless seizure supported by probable cause is reasonable as long as 'the police diligently obtain[ ] a warrant in a reasonable period of time.'" United States v. Laist, 702 F.3d 608, 613 (11th Cir. 2012) (quoting Illinois v. McArthur, 531 U.S. 326, 334 (2001)); see United States v. Martin, 157 F.3d 46, 54 (2d Cir. 1998) (explaining ...

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