State v. Robinson

• Decision Date: 12 June 2009
• Docket Number: No. 2008–009.,2008–009.
• Citation: 158 N.H. 792,973 A.2d 277
• Court: New Hampshire Supreme Court
• Parties: The STATE of New Hampshire v. Scott ROBINSON.

158 N.H. 792

973 A.2d 277

The STATE of New Hampshire

v.Scott ROBINSON.

No. 2008–009.

Supreme Court of New Hampshire.

Argued: May 6, 2009.

Opinion Issued: June 12, 2009.

Kelly A. Ayotte, attorney general (Nicholas Cort, assistant attorney general, on the brief and orally), for the State.

Theodore Lothstein, assistant appellate defender, of Concord, on the brief, and Paul Borchardt, assistant appellate defender, of Concord, orally, for the defendant.

DUGGAN, J.

Following a jury trial in the Superior Court (Barry, J.), the defendant, Scott Robinson, was convicted of robbery and first degree assault. See RSA 636:1 (2007); RSA 631:1 (2007). He appeals his convictions, arguing that the trial court erred in denying his motion to suppress. We reverse and remand.

The record supports the following facts. On March 18, 2006, around 9:50 p.m., Manchester police responded to a reported robbery at the Cross Town Variety Store. Upon arriving, witnesses told police that a white male, twenty-five to thirty years old, roughly six feet tall and weighing 200 pounds, wearing a Patriots jacket and a green hooded sweatshirt, entered the store, went behind the counter, and stabbed the clerk at least three times before leaving with cash from the register. A witness told police that he had followed the suspect as he left the store, and watched him run past a car and into an alley off Amory Street.

Upon searching the area behind the counter, police found a key ring, containing three keys, one of which belonged to a Kia automobile. After the employees denied that it belonged to any of them, the police presumed that it belonged to the suspect. Responding officers were then told to be on the lookout for a Kia in the area. Officers found a Kia nearby, and confirmed that the fleeing suspect had run past that car before turning into the alley. After relaying the license plate to dispatch, police learned that the car belonged to the defendant, that he lived eight blocks from the store in the direction the suspect had run, and that he had a prior robbery conviction. At that point, officers were sent to the defendant's apartment building.

While those officers were en route, another officer took the car key from the crime scene, inserted it into the door of the Kia and turned it; they matched. The officer relayed that information to the officers at the defendant's apartment building. By approximately 10:30 p.m., four officers were present outside the defendant's building. Officers outside the building could see movement inside, and those in the hallway outside the defendant's apartment could hear movement in the apartment. Officers also observed what appeared to be wet footprints in the hallway leading to the defendant's apartment door.

The officers knocked on the defendant's door and announced their presence but received no response. They then spoke to a neighbor and asked her if the defendant lived in that apartment. After officers brought her down to a police cruiser and showed her a picture of the defendant on a computer, she confirmed that he lived there. Upon returning to the defendant's door, police heard a female voice say something to the effect of "you're such an idiot," and again knocked and announced their presence.

When the officers heard footsteps approaching the door, they unholstered their weapons and pointed them at the ground. The defendant's girlfriend, Kimberly Dunn, opened the door, at which point the officers raised their weapons, told her to get on her knees and searched her for a weapon. The trial court found that two officers simultaneously stepped into the apartment and opened a closed closet to ensure nobody was hiding there. Upon opening the closet, the officers saw a Patriots jacket and a green hooded sweatshirt.

Dunn then told the officers that the defendant was in the bedroom with a knife to his chest. The officers went to the bedroom, found the defendant, arrested him and took him out of the apartment. After conducting only a brief search for possible threats, the officers secured the premises and applied for a search warrant. At no time prior to entering the defendant's home did the officers attempt to secure a search or arrest warrant. Upon execution of the warrant, police seized a green sweatshirt, a Patriots jacket and a knife.

Before trial, the defendant moved to suppress the evidence found in his apartment, arguing that the officers' initial warrantless entry was unconstitutional. Following a suppression hearing, the trial court denied his motion in a written order. After a jury convicted the defendant of robbery and first degree assault, he filed this appeal.

On appeal, the defendant argues that the trial court erred in denying his motion to suppress. Specifically, he argues that: (1) the officer's insertion of the key into the car door was a warrantless search and violated his constitutional rights; (2) the police lacked probable cause to enter his home; and (3) no exigent circumstances existed to justify the warrantless entry into his apartment.

When reviewing a trial court's ruling on a motion to suppress, we accept the trial court's findings unless they are unsupported by the record or clearly erroneous. State v. Pseudae, 154 N.H. 196, 199, 908 A.2d 809 (2006). We review the trial court's legal conclusions de novo. Id.

We first address the defendant's argument that the officer's insertion of the key into the Kia door was an unconstitutional search under both the Federal and State Constitutions. The trial court found that the police did not rely upon the key match in forming probable cause, and thus made no ruling on the issue. In the interests of judicial economy, however, we address the issue as it is likely to arise on remand and because there are sufficient facts in the record upon which we can reach our conclusion as a matter of law. Cf. Auger v. Town of Strafford, 156 N.H. 64, 67, 931 A.2d 1213 (2007). We initially address the defendant's claim under the New Hampshire Constitution, citing federal opinions for guidance only. See State v. Ball, 124 N.H. 226, 232–33, 471 A.2d 347 (1983).

Part I, Article 19 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." "We have ... recognized that an expectation of privacy plays a role in the protection afforded under Part I, Article 19 of the New Hampshire Constitution." State v. Goss, 150 N.H. 46, 48, 834 A.2d 316 (2003). Thus, without an invasion of the defendant's reasonable expectation of privacy, there has been no violation of the defendant's rights under Part I, Article 19. Compare Goss, 150 N.H. at 48–49, 834 A.2d 316 (holding defendant has reasonable expectation of privacy in contents of black garbage bags left out for collection), with State v. Johnston, 150 N.H. 448, 452, 839 A.2d 830 (2004) (holding defendant had no reasonable expectation of privacy in curtilage to his home when there was no gate, he had not posted "no trespassing" signs and the driveway was visible from the street).

The State argues that Part I, Article 19 does not apply in this case because the insertion of the key into the door does not constitute a search for constitutional purposes. Indeed, the defendant acknowledges that federal courts have minimized the zone of protection with regard to inserting a key into a door. He argues, however, that we should adopt a standard of greater protection under the State Constitution. Although we have recognized that our constitution does, in some circumstances, provide greater protection than the Federal Constitution, see, e.g., State v. Beauchesne, 151 N.H. 803, 812 (2005), this is not such a case.

Here, the privacy interest at stake is "so small that the officers do not need probable cause to inspect it." United States v. Concepcion, 942 F.2d 1170, 1173 (7th Cir.1991) ; accord United States v. Lyons, 898 F.2d 210, 212–13 (1st Cir.1990), cert. denied, 498 U.S. 920, 111 S.Ct. 295, 112 L.Ed.2d 249 (1990) ; United States v. DeBardeleben, 740 F.2d 440, 443–45 (6th Cir.1984), cert. denied, 469 U.S. 1028, 105 S.Ct. 448, 83 L.Ed.2d 373 (1984) ; Com. v. Alvarez, 422 Mass. 198, 661 N.E.2d 1293, 1303 (1996). Because vehicles must be registered and display license plates, see RSA 261:40 (Supp.2008) ; RSA 261:75, II (2004), who owns a car is not private information. See United States v. Grandstaff, 813 F.2d 1353, 1358 n. 6 (9th Cir.1987), cert. denied, 484 U.S. 837, 108 S.Ct. 119, 98 L.Ed.2d 78 (1987). Rather, the private information protected by Part I, Article 19 is what lies behind the door. In this case, the officer removed the key from the convenience store with the permission of the store owner, inserted the key into the lock and turned the key. He did not open the door or conduct any search of the vehicle. Because the officer did not intrude upon the defendant's reasonable expectation of privacy, the defendant's rights under Part I, Article 19 were not violated.

The defendant also argues that our ruling in this case is dictated by our prior rejection of an "identification search" exception to the warrant requirement. State v. Webber, 141 N.H. 817, 821, 694 A.2d 970 (1997). The case is inapplicable here. In Webber, a police officer reached into the defendant's wallet to remove a prescription card without the defendant's permission. Id. at 818, 694 A.2d 970. Our rejection of the exception was based upon the fact that the officer unreasonably searched the defendant's wallet, not upon the nature of what the officer sought. Id. at 821, 694 A.2d 970. Thus, Webber is inapposite to this case.

We reach the same result under the Federal Constitution. Whether the defendant's Fourth Amendment rights were violated turns upon whether he had a reasonable expectation of privacy in the thing searched. As federal courts have consistently held, the mere information of ownership obtained from inserting a key into a door is not the type of information in...