State v. Bradbury, 5802
| Decision Date | 28 June 1968 |
| Docket Number | No. 5802,5802 |
| Citation | 109 N.H. 105,243 A.2d 302 |
| Parties | STATE v. Gerald A. BRADBURY, Jr. |
| Court | New Hampshire Supreme Court |
George S. Pappagianis, Atty. Gen., G. Wells Anderson, Asst. Atty. Gen., and Robert A. Carignan, County Atty. For the State.
John B. Ford, Salem (by brief and orally), for defendant.
The defendant was indicted for possession of marijuana. RSA 318-A:2. Prior to trial the defendant moved to suppress the evidence of possession of marijuana obtained in the course of a search of his person on the ground that the search was 'unreasonable and not pursuant to any warrant.' The prosecution and the defense submitted an agreed statement of facts and the Court, Morris, J., reserved and transferred without ruling the question raised by the motion.
The agreed statement of facts in its entirety reads as follows:
'Police investigating marijuana use in the Durham area determined, through surveillance and informants, that they had reason to believe that one Carol Ann Chipman had marijuana in her room at the University. They applied to the Durham District Court for 'a warrant and order of seizure authorizing the search of (identify premises and the person or persons to be searched) Room 001, located on the first floor, first door on the left in the right corridor of the womens dormitory known as Scott Hall which is located on the campus of the University of New Hampshire in said Durham, N.H. and directing that if such property or evidence or any part thereof be found that it be seized and brought before the court;' The warrant issued commanding the officers 'to enter and there diligently search in the daytime the premises described in the annexed affidavit for the said unknown quantity of Marijuana in tobacco form * * *.' The validity of the search warrant is not questioned by defendant.
'The foregoing statement of agreed facts is stipulated by prosecution and defense to be controlling in the determination of the issue raised by defendant's Motion to Supress Evidence of Possession.'
The specific and limited question which the agreed case was designed to present is whether a valid search warrant to search designated premises authorizes the search of any individual who happens to be on the premises. While the authorities are sparse and not particularly recent it is the general rule that the answer to the question is no. State v. Massie, 95 W.Va. 233; State v. Grames, 68 Maine 418; Cornelius, Search and Seizure, s. 233 (2nd ed. 1930); Davis, Federal Searches and Seizures, s. 2.83 (1964). In Purkey v. Mabey, 33 Idaho 281, 193 P. 79, it was stated that a search warrant to search a certain place '* * * can not be extended so as to constitute authority for the officer to whom it was issued to search a person, not connected in any way with the place being searched, who merely happens to be upon the premises and who is not mentioned or described in the affidavit of probable cause upon which the warrant was issued.' See 1 Varon, Searches, Seizures and Immunities, 378 (1961). Additional authority, by way of dictum, is found in United States v. Di Re, 332 U.S. 581, 587, 68 S.Ct. 222, 92 L.Ed. 210, where it was observed that a search...
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