State v. Coolidge

• Citation: 208 A.2d 322,106 N.H. 186
• Parties: STATE v. Edward H. COOLIDGE Jr.
• Decision Date: 13 April 1965
• Court: Supreme Court of New Hampshire

Page 322

208 A.2d 322

106 N.H. 186

STATE v. Edward H. COOLIDGE Jr.

Supreme Court of New Hampshire.

Argued Jan. 8, 1965.

Decided March 11, 1965.

Rehearing Denied April 13, 1965.

William Maynard, Atty. Gen., Alexander J. Kalinski, Asst. Atty. Gen., and Emile R. Bussiere, County Atty., for the State.

J. Murray Devine, Manchester (now deceased), Matthias J. Reynolds and John A. Graf, Manchester, for the defendant.

LAMPRON, Justice.

On January 13, 1964, Pamela Mason, a young girl residing in Manchester, disappeared from her home and eight days later, on January 21, 1964, her body was found. On January 28, 1964, Sergeant Doyon and Officer LeClair called at defendant's home, of which he was the sole owner, and where he lived with his wife, Joanne, aged twenty-seven, and their two-year-old daughter. In the presence of his wife, these police officers questioned him relative to 'his whereabouts, his actions and activities on January 13th.' The Trial Court found that Coolidge 'showed them some guns, at that time, which Mrs. Coolidge saw being shown to them. The police at the time did not take the guns or request the guns.' Officer LeClair asked the defendant if he was willing to take a lie-detector test. Coolidge said 'he was' and 'he would prefer to take it on a Sunday.'

February 2, 1964, the following Sunday, Officer LeClair telephoned the defendant about taking such a test. Coolidge came to the Manchester police station about one in the afternoon. About four, in the company of two police officers, he went to the State Police headquarters in Concord to take a lie-detector test. There was testimony that in the course of this test the defendant admitted the theft of some three hundred ($300) dollars from his employer; and that on the way back to Manchester, where they arrived about seven, the defendant had some conversation with an officer as to whether he would be charged with the theft. He was not formally charged therewith until two-thirty the following morning, February 3, 1964. The Trial Court found that defendant's 'presence both at the police station and in the car to and from Concord was, at least up to this point, voluntary.' The Court further found that defendant 'never at any time, requested an opportunity to leave the station prior to being charged, but that had he requested it he probably would have been detained either with a formal charge or without a formal charge being made.'

The Court found that on February 2, 1964, before the trip to Concord for the test 'Mrs. Joanne Coolidge * * * who had been informed of the requested presence of Edward * * * [her husband] at the police station, was called for * * * about two-thirty, by two policemen who took her in a police car to the station, where she had a short conversation with Captain Stipps of the police force * * * [in which] she alleges and he agrees that he urged her to tell the truth or she might be in trouble if she didn't. She returned to her home in a 1963 Chevrolet, a motor vehicle owned by her husband.'

At ten-thirty that same evening of February 2, 1964, Sergeant McBain, of the State Police, and Inspector Glennon, of the Manchester police, called at the Coolidge home. The Trial Court found that the officers 'went to the house generally for the purpose of questioning Mrs. Coolidge * * * about the theft from Cote Brothers, and further particulars about the Mason murder, on which both * * * were generally assigned * * * At this time the police and investigating authorities had no knowledge of the exact calibre or type of weapon that they were looking for, it being generally the theory of the police at that time that the weapon might very well be a small handgun or revolver.' Sergeant McBain testified that he did not know of the prior visit to the Coolidge home by other officers on January 28, 1964.

McBain and Glennon, both dressed in plain clothes, identified themselves as police officers and Mrs. Coolidge 'let them into the house.' Defendant's mother, who was babysitting there, left shortly thereafter at the request of the officers. The Trial Court found further that 'Mrs. Coolidge was almost immediately informed by the police that her husband was in trouble because of the larceny and that it was doubtful if he would return that night.' 'In the course of their questioning they inquired if Mr. Coolidge * * * had any firearms. They were informed by Mrs. Coolidge that he had, and she went, in company with them, into the bedroom, to a closet where there were four guns--two shotguns and two rifles.' 'McBain and Glennon, with the consent of Mrs. Coolidge took the four guns and certain items of clothing from the house' and gave her a receipt for them.

'At the request of the defendant the Court would find that Mrs. Coolidge * * * had no knowledge of any constitutional rights, either by explanation of the police or otherwise, to deny the police the right to examine these, but finds that at that point Mrs. Coolidge fully intended to cooperate with the police in every way and to furnish them freely with both information and guns in order, as she stated, to clear her husband of any suspicion.' The Court also found that the 'officers that called at the Coolidge residence on February 2, 1964 * * * acted courteously in every manner.'

Article 19, Part I of the Constitution of New Hampshire provides that 'Every subject hath a right to be secure from all unreasonable searches and seizures of his person, his houses, his papers, and all his possession.' It also recites the 'formalities' required for the issuance of search warrants.

The Fourth Amendment to the Constitution of the United States reads as follows: 'The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.'

The provisions of the Fourth Amendment are enforceable against the states through the Due Process Clause of the Fourteenth Amendment and all evidence obtained by searches and seizures in violation thereof is inadmissible in a state court. Mapp v. Ohio, 367 U.S. 643, 655, 81 S.Ct. 1684, 6 L.Ed.2d 1081; Ker v. California, 374 U.S. 23, 30, 83 S.Ct. 1623, 10 L.Ed.2d 726. However, if the evidence in question is not obtained by search and seizure but is voluntarily handed to the police officers these constitutional guarantees are not involved. State v. Nelson, 105 N.H. 184, 191, 196 A.2d 52; United States ex rel. Stacey v. Pate, 324 F.2d 934, 935 (7th Cir.1963); State v. Morris, 243 S.C. 225, 234, 133 S.E.2d 744. As to the four guns and certain items of defendant's clothing which the officers took from the Coolidge residence on the night of February 2, 1964, the Trial Court specifically found 'that there was no search by the police of the premises at this time by either Sergeant McBain or by Inspector Glennon.' The Court further found that these officers took those objects 'with the consent of Mrs. Coolidge.' The Trial Court also found 'as a fact that during the latter part of January and the early part of February the police were questioning many people and from time to time had taken various weapons, with the consent of the people, to be examined, in the vicinity of Manchester.'

I. A search ordinarily implies, a quest by an officer of the law, a prying into hidden places for that which is concealed. A seizure contemplates forcible dispossession of the owner. Weeks v. United States, 232 U.S. 383, 397, 34 S.Ct. 341, 58 L.Ed. 652; United States ex rel. Stacey v. Pate, 324 F.2d 934, 935 (7th Cir.1963); People v. Woods, 26 Ill.2d 557, 188 N.E.2d 1; State v. Baron, 106 N.H. ----, 207 A.2d 447 (decided February 26, 1965). The Trial Court properly found on the evidence that the principal purpose of the visit to defendant's residence by officers McBain and Glennon on the evening of February 2, 1964, 'was in connection with the Mason Murder' and 'in the pursuit of what must be considered as a very general investigation of the Mason Murder.'

McBain and Glennon testified as follows: Dressed in plain clothes they knocked at the side door of the Coolidge house, identified themselves as police officers and were invited in by defendant's wife. They all sat in the living room. Out of courtesy, they told Mrs. Coolidge that it was very possible that her husband would be detained in the station that evening. They told her that as part of their investigation of the Mason case guns owned by various other persons had been taken for tests. She stated they had four guns in the house. When she went to the bedroom closet to get the guns, they went along with her. They 'did not look into the closet, or feel around' and they did not look around any of the other areas of the house except where they were invited.

These officers further testified that Mrs. Coolidge said she had nothing to hide and had no objection to the officers taking these four guns along for tests. Also that she pointed out some of her husband's clothing and inquired if it might be something they were looking for and had no objection to their having them. They testified further that Mrs. Coolidge appeared to be very calm and very cooperative and that they had a cup of coffee with her.

Mrs. Coolidge testified that when she asked the officers if they wanted the guns one said 'No' and other said 'We might as well take them' and she said 'If you would like them, you may take them.'

The evidence warranted the Trial Court's finding that 'there was no search by the police of the premises'; and that 'Mrs. Coolidge fully intended to cooperate with the police in every way and to furnish them freely with both information and guns in order, as she stated, to clear her husband of any suspicion.'

On the facts and circumstances of this case it is our opinion that the four guns and...