State v. Champagne
| Decision Date | 15 July 2005 |
| Docket Number | No. 2004–092.,2004–092. |
| Citation | 152 N.H. 423,879 A.2d 1147 |
| Court | New Hampshire Supreme Court |
| Parties | The STATE of New Hampshire v. Nicholas CHAMPAGNE. |
Kelly A. Ayotte, attorney general (Susan G. Morrell, senior assistant attorney general, and Jonathan V. Gallo, assistant attorney general, on the brief, and Ms. Morrell orally), for the State.
Patrick Shanley, of Tewksbury, Massachusetts, by brief and orally, for the defendant.
The defendant, Nicholas Champagne, is charged with one count of attempted possession of five pounds or more of the controlled drug marijuana with the intent to sell, while released on cash bail, see RSA 629:1 (Supp.2004) ; RSA 318–B:2, :26 (2004); RSA 597:14–b (2001); three counts of receiving stolen property, see RSA 637:7 (Supp.2004) ; one count of theft by unauthorized taking, see RSA 637:3 (1996); and one count of conspiracy to commit the crime of theft of property valued at over $1,000.00, see RSA 629:3 (Supp.2004) ; RSA 637:1 (1996). The State appeals from a pre-trial order of the Superior Court (Conboy , J.), see RSA 606:10, II (2001), arguing that the court erred in: (1) denying the State's motion to strike the defendant's notice of affirmative defense of voluntary renunciation; (2) granting the defendant's motion to suppress evidence seized from the basement of a house in which his apartment was located; and (3) granting the defendant's motion to suppress evidence seized during a second search. We affirm in part, reverse in part and remand.
The trial court found the following facts after an evidentiary hearing on the defendant's motions to suppress. On November 26, 2001, Michael Coraluzzo, a New Hampshire State Trooper assigned to the narcotics investigation unit, spoke with a confidential informant (CI), who told the trooper that during an encounter with the defendant in Manchester, the defendant had stated that he was interested in purchasing ten pounds of marijuana for the purpose of reselling it. Based on the CI's information, the trooper commenced an investigation of the defendant for drug activity.
During the course of his investigation, Trooper Coraluzzo conducted several surveillance operations of the residence located at 24 Cypress Street in Manchester, where he believed the defendant resided. Also, on December 4, 6 and 10, the CI, under the trooper's guidance, engaged in recorded conversations with the defendant regarding the defendant's interest in purchasing marijuana. During those conversations, the defendant continued to express interest in purchasing marijuana from the CI, and the two negotiated a price. They also discussed the date on which the transaction was to occur, and eventually agreed on December 7, 2001.
The transaction did not occur on December 7, so the CI, following instructions from the State Police, contacted the defendant on December 10 to reschedule. The State Police had directed the CI to convince the defendant to conduct the transaction in a public place; however, the defendant repeatedly insisted that the CI bring the marijuana to his residence. The CI and the defendant met in front of the 24 Cypress Street residence on December 10, and the defendant told the CI he had the money for the drugs upstairs in the house. The defendant then attempted to persuade the CI to go inside the residence to conduct the transaction. The CI refused, and suggested that they conduct the transaction at a nearby convenience store. When the defendant would not agree, the CI left the area. At that point, Trooper Coraluzzo ceased his surveillance and left to complete a search warrant application.
Later that evening, the defendant left the 24 Cypress Street residence in a Nissan Pathfinder, and was arrested shortly thereafter on Interstate 93 by a State trooper. At approximately 12:41 a.m. the next day, a judge from the Manchester District Court approved Trooper Coraluzzo's application for a search warrant. The warrant authorized the police to seize evidence of ownership of the premises at 24 Cypress Street and drug trafficking, as well as drug paraphernalia.
Trooper Coraluzzo, along with Sergeant Quinn, New Hampshire State Police Field Supervisor in the narcotics investigation unit; Sergeant Moore of the Manchester Police Department, in charge of the special investigations unit; and Sergeant Mosely of the patrol division of the Manchester Police Department, executed the search warrant. Upon the officers' arrival at the residence, the defendant's mother reviewed the warrant and informed the police that the house was divided into two apartments. She explained that she lived in the first floor apartment and the defendant lived in the second floor apartment.
The officers searched the defendant's second-floor apartment and then asked the defendant's mother if they could search the garage. The defendant's mother replied that they could search the garage, but stated that they would have to exit the front door to access the garage from the outside instead of through the basement. Nevertheless, the officers proceeded downstairs to the basement. They entered an area of the basement that appeared to be used as a workspace, and observed, among other things, a Honda motorcycle that seemed to be missing parts. Trooper Coraluzzo walked closer to the motorcycle and observed its vehicle identification number (VIN), which he read aloud to the other officers in the basement. Sergeant Mosely checked the VIN number and learned that the motorcycle had been reported as stolen.
After searching the basement, the officers entered the garage. They observed two motorcycles that appeared to have been repainted, an assortment of motorcycle parts and a pneumatic paint sprayer. Sergeant Mosely checked the VIN numbers of the two motorcycles in the garage, but neither had been reported as stolen.
Before leaving the premises, the officers contacted the Traffic Division of the Manchester Police Department and requested that an officer respond to 24 Cypress Street. They did so because, during Trooper Coraluzzo's investigation, Sergeant Moore had learned that in addition to being investigated by the State Police for alleged drug activity, the defendant was under investigation by the Traffic Division for his suspected connection with stolen motorcycles in the Manchester area. Officer Piotrowski responded to the call and, upon his arrival at 24 Cypress Street, spoke with Sergeant Moore.
Sergeant Moore advised Officer Piotrowski that during a search for evidence of drug activity, officers had discovered various motorcycle parts and several motorcycles, one of which had been confirmed as stolen. Sergeant Moore and Officer Piotrowski then entered the house, and Sergeant Moore showed the officer the stolen motorcycle located in the basement. The two also went into the garage, where Sergeant Moore showed Officer Piotrowski the motorcycle parts and other motorcycles the officers had observed during their search. Officer Piotrowski then returned to the police department to prepare a search warrant application seeking authorization to search for and seize motorcycles, motorcycle parts and related items.
Later that day, Officer Piotrowski's application for a search warrant was approved and, thereafter, he and several other officers from the Manchester Police Department executed a second search of the residence located at 24 Cypress Street. As a result of the second search, officers seized three motorcycles, various motorcycle parts and paperwork pertaining to motorcycles.
The defendant was subsequently charged with one count of attempted possession of five pounds or more of the controlled drug marijuana with the intent to sell, while released on cash bail, as a result of his interactions with the CI. He was also charged with one count of receiving stolen property relating to a gun that was discovered in his bedroom during the first search of 24 Cypress Street, two counts of receiving stolen property relating to a motorcycle and motorcycle parts found in the garage at 24 Cypress Street, one count of theft by unauthorized taking pertaining to a motorcycle found in the garage at 24 Cypress Street, and one count of conspiracy to commit the crime of theft of property valued at over $1,000.00, based on allegations that the defendant agreed with another to "steel [sic ] motorcycles, strip the parts off of same and dispos[e] of the stolen parts."
Thereafter, the defendant filed a notice of the affirmative defense of renunciation in relation to the charge of attempted possession of marijuana with the intent to sell. He also moved to suppress certain items obtained during the first search for evidence of drug activity, asserting, among other things, that certain items were not found within the area described in the warrant. In a separate motion, the defendant sought to suppress items relating to motorcycle theft on the basis that the first search warrant did not authorize the police to search for such items, and the police did not have consent to search the area where the items were found. He argued that, consequently, "any evidence taken from the premises involving any motorcycle, motorcycle parts, evidence of working on motorcycles and any evidence related thereto" should be suppressed.
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