State v. Crotty

• Decision Date: 09 October 1991
• Docket Number: No. 90-562,90-562
• Citation: 597 A.2d 1078,134 N.H. 706
• Parties: The STATE of New Hampshire v. Michael J. CROTTY.
• Court: New Hampshire Supreme Court

Page 1078

597 A.2d 1078

134 N.H. 706

The STATE of New Hampshire v.Michael J. CROTTY.

No. 90-562.

Supreme Court of New Hampshire.

Oct. 9, 1991.

John P. Arnold, Atty. Gen. (Ann M. Rice, Asst. Atty. Gen., on the brief and orally), for the State.

Kenna, Johnston, Craighead & Sharkey, P.A., Manchester (Bruce E. Kenna, on the brief and orally), for defendant.

BATCHELDER, Justice.

The defendant, Michael Crotty, was convicted for displaying a fictitious driver's license, RSA 263:12, I, and driving while certified as an habitual offender, RSA 262:23, following a jury-waived trial.The defendant appeals the Superior Court's (Murphy, J.) denial of his motion to suppress evidence obtained by the State as a result of the warrantless search of his automobile and the Superior Court's (Dalianis, J.) denial of his motion to dismiss, which was based on the State's failure to prove that he was properly certified as an habitual offender.Finding no error, we affirm.

At approximately 3:00 a.m. on February 19, 1989, Manchester police officer Peter Bartlett stopped a car driven by the defendant for speeding.At the officer's request for his license, the defendant produced a Massachusetts driver's license identifying him as Joseph Crotty of Lawrence, Massachusetts.He also provided the officer with the vehicle registration which indicated that the defendant was not the owner of the vehicle.

While the officer was talking with the defendant, he observed an Alpine car stereo on the floor of the car behind the driver's seat.The officer became suspicious when he noticed that the serial number, which through prior experience the officer knew was attached by a sticker, had been partially removed.After obtaining the defendant's consent, the officer examined the stereo more closely and found that it did not have a serial number.He arrested the defendant for possession of property without a serial number, RSA 637:7-a.

At the Manchester police station, the officer learned that the defendant's name was actually Michael J. Crotty, and a check on his motor vehicle record revealed that he had been certified as an habitual offender.As a result, the defendant was charged with additional crimes: disobeying an officer, RSA 265:4, I(b); driving while certified as an habitual offender, RSA 262:23; and a violation, it is apparent from the record, of RSA 263:12, I, which makes it a misdemeanor for any person to "[d]isplay or cause or permit to be displayed any revoked, suspended, fictitious or fraudulently altered driver's license or permit."

Prior to trial, the defendant moved to suppress all evidence obtained as a result of his arrest, arguing that the officer did not have probable cause to make the arrest.The trial court denied the motion.

At trial, Officer Roy Roberts of the New Hampshire Department of Safety testified that, on July 14, 1988, he served the defendant with an order to appear at an habitual offender certification hearing scheduled for August 22, 1988.He further testified that he had read the following warning to the defendant regarding the consequences of a default: "Failure to appear for this hearing will result in the revocation of your driver's license and/or driving privileges and, further, shall after a review of your record and by reason of default result in your being certified as an habitual offender."The officer also testified that he advised the defendant of the convictions on which the certification was based, and issued the defendant a forty-five day driver's license.Officer Roberts explained to the defendant that the license was temporary and would expire on the date of the hearing.

At the close of the State's case, the defendant moved to dismiss the habitual offender charge on the basis that the State failed to prove that the defendant was knowingly in violation of his habitual offender status on February 19, 1989.The trial court denied the motion and found the defendant guilty of both displaying a fictitious license, and driving while an habitual offender.This appeal followed.

The defendant argues that the facts available to Officer Bartlett did not constitute sufficient probable cause to arrest defendant for violating RSA 637:7-a, possession of property without a serial number.He contends that the officer lacked probable cause to believe that the defendant actually or constructively possessed the stereo or knew the sticker had been removed.We disagree.

An officer is authorized to conduct a warrantless arrest whenever "[h]e has probable cause to believe that the person to be arrested has committed a misdemeanor or violation in his presence."RSA 594:10, I(a).Probable cause exists when the facts and circumstances presented"warrant a person of reasonable caution and prudence in believing that the arrestee has committed an offense."State v. Vachon, 130 N.H. 37, 40, 533 A.2d 384, 386(1987)."In determining probable cause to arrest, we are dealing only with reasonable probabilities and not the amount of evidence required to sustain a conviction or to make out a prima facie case."State v. Birmingham, 122 N.H. 1169, 1172, 453 A.2d 1329, 1331(1982).See alsoBrinegar v. United States, 338 U.S. 160, 172-73, 69 S.Ct. 1302, 1309, 93 L.Ed. 1879(1949)(probable cause to arrest does not require same amount of evidence as required to sustain conviction), reh. den., 338 U.S. 839, 70 S.Ct. 31, 94 L.Ed. 513(1949).

The defendant relies on State v. Fossett, 119 N.H. 155, 399 A.2d 966(1979), andUnited States v. Romano, 382 U.S. 136, 86 S.Ct. 279, 15 L.Ed.2d 210(1965), to support his argument that no facts were available to Officer Bartlett from which he could infer that the defendant possessed the stereo.His reliance on Fossett and Romano is misplaced, however, because those cases addressed whether evidence was sufficient to sustain a conviction, and thus required the courts to apply a more stringent standard than that necessary to establish probable cause to arrest.

Under the reasonable probability standard, Officer Bartlett was justified in his belief that the defendant was in possession of the stereo, as it was located in plain view behind the driver's seat.Although the defendant did not own the vehicle, it was in his custody and control at the time of the offense.Viewing the "factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act,"Brinegar v. United States, supra338 U.S. at 175, 69 S.Ct. at 1310, Officer Bartlett could logically conclude that the stereo was in the defendant's possession.SeeUnited States v. Ruigomez, 702 F.2d 61, 66(5th Cir.1983)(probable cause to arrest for possession of handgun existed, because police found gun on passenger side of car where defendant was sitting).

The defendant also...