State v. Davis

• Decision Date: 18 July 2003
• Docket Number: No. 2002–146.,2002–146.
• Citation: 828 A.2d 293,149 N.H. 698
• Court: New Hampshire Supreme Court
• Parties: The STATE of New Hampshire v. Gregory DAVIS.

149 N.H. 698

828 A.2d 293

The STATE of New Hampshire

v.Gregory DAVIS.

No. 2002–146.

Supreme Court of New Hampshire.

Argued May 8, 2003.

Opinion Issued July 18, 2003.

Peter W. Heed, attorney general (Stephen D. Fuller, senior assistant attorney general, on the brief and orally), for the State.

Twomey & Sisti Law Offices, of Chichester (Mark L. Sisti on the brief and orally), for the defendant.

NADEAU, J.

The defendant, Gregory Davis, appeals his conviction of two counts of being a felon in possession of a dangerous weapon, see RSA 159:3 (1994) (amended 2001), arguing that the Superior Court (Coffey , J.) erred in failing to suppress evidence and dismiss all indictments for lack of specificity. We affirm.

The trial court found the following relevant facts for purposes of ruling on the defendant's motion to suppress. Some time prior to June 12, 1999, an informant notified the Salem Police Department that illegal goods, including pornography, mace, pepper spray, stun guns and illegal knives, were being sold at the Salem flea market. The police planned a plain-clothes sweep of the flea market, which was carried out on June 12, 1999. Six to eight officers and detectives, led by Detective Sergeant Cavanaugh, looked for weapons declared by RSA 159:16 (2002) to be illegal to sell, possess with intent to sell, or carry. Detective Sergeant Cavanaugh determined the weapons to be seized as other officers held them up for him to see.

During the sweep, the police saw weapons displayed openly at two of the defendant's booths. After weapons at the defendant's booth were identified as illegal by Detective Sergeant Cavanaugh, and the defendant admitted that he owned the weapons, the defendant was issued a receipt for the seized weapons and a misdemeanor citation for violation of RSA 159:16. Detective Sergeant Cavanaugh later ran a check on vendors from whom the police had seized items, and, upon discovering that the defendant was a convicted felon, issued a warrant for his arrest for violation of RSA 159:3.

The defendant moved to suppress the evidence seized from his booths, arguing that the warrantless search and seizure violated Part I, Article 19 of the State Constitution and the Fourth and Fourteenth Amendments to the Federal Constitution. The trial court denied the motion to suppress, ruling that the seizure fell under the plain view exception to the warrant requirement. The defendant also moved to dismiss the indictments against him, arguing that the illegal items he was alleged to have possessed were "not set forth with sufficient specificity to [enable him to] defend against the allegation." At trial, the court dismissed all but three of the indictments, and the State elected not to proceed on one of them. The defendant was convicted on the remaining two counts of being a felon in possession of a dangerous weapon, the weapons having been specified in the indictments as stiletto knives and double-edged knives.

On appeal, the defendant argues that the trial court erred in finding that the seizure of weapons from his booths fell within the plain view exception to the warrant requirement. We first address his claim under the State Constitution, and cite federal opinions for guidance only. See State v. Ball, 124 N.H. 226, 231, 233, 471 A.2d 347 (1983). "Our review of the superior court's order is de novo , except as to any controlling facts determined at the superior court level in the first instance." State v. Hammell, 147 N.H. 313, 317, 787 A.2d 850 (2001) (quotation omitted).

Warrantless seizures are per se unreasonable under Part I, Article 19 of the State Constitution "unless they fall within the narrow confines of a judicially crafted exception." State v. Brunelle, 145 N.H. 656, 659, 766 A.2d 272 (2000) (quotation omitted). The State bears the burden of proving that a seizure falls under a recognized exception. See id.

We have recognized a plain view exception to the State Constitution's warrant requirement. See State v. Smith, 141 N.H. 271, 275, 681 A.2d 1215 (1996). To validate a seizure under this exception, the State must prove, by a preponderance of the evidence: "(1) The initial intrusion which afforded the view must have been lawful; initial intrusion which afforded the view must have been lawful; (2) the discovery of the evidence must have been inadvertent; and (3) the incriminating nature of the evidence must have been immediately apparent." Hammell , 147 N.H. at 317, 787 A.2d 850 (quotation omitted).

The trial court found it unnecessary to address the first prong of the test because "[t]he defendant d[id] not dispute that the police were lawfully on the premises of the flea market on June 12, 1999." The defendant does not challenge that ruling on appeal. He does, however, contend that the remaining two prongs are not satisfied.

The defendant argues that the discovery of weapons at the defendant's booths was not inadvertent because the police organized the sweep ahead of time, which included conducting a training session to educate the sweep team as to what kinds of weapons are illegal, and "went to the flea market with the specific intent to recover illegal weapons." While our case law has not "settled the limits of inadvertence[,] [i]t is reasonably clear ... that discovery is inadvertent if, immediately prior to the discovery, the police lacked sufficient information to establish probable cause to obtain a warrant to search for the object." State v. Cote, 126 N.H. 514, 526, 493 A.2d 1170 (1985) (citation omitted).

The trial court found that while the informant's tip "justified investigation of the flea market, it did not rise to the level of establishing probable cause to obtain a warrant to seize specific items from the defendant." We agree. There was no evidence before the trial court that the police knew anything specific about the defendant or the types of items he was selling prior to the sweep. Thus, while the police had a justifiable suspicion that they would find contraband somewhere at the flea market, they did not have probable cause to obtain a warrant to search the defendant's booths. Accordingly, discovery of the weapons at issue was inadvertent for purposes of the plain view doctrine. See id. at 526–27, 493 A.2d 1170.

The defendant next argues that the incriminating nature of the items seized from him was not immediately apparent. "The ‘immediately apparent’ requirement is met if, at the time of the seizure, the officer has probable cause to believe that the object seized is incriminating evidence." State v. Murray, 134 N.H. 613, 615, 598 A.2d 206 (1991) (quotation omitted). The probable cause required under the plain view exception "is at least as great as that required to support a warrant," but need not be greater. State v. Maguire, 129 N.H. 165, 170, 523 A.2d 120 (1987) (quotation omitted). In addition, "the expertise and experience of the law enforcement officer are relevant to the probable cause determination. Officers are entitled to draw reasonable inferences from the facts available to them in light of their knowledge and prior experience." Ball , 124 N.H. at 236, 471 A.2d 347. Thus, "in some situations, a trained policeman's observations of certain types of contraband will be deemed sufficient to meet the requirements of the plain view doctrine." Id. at 236–37, 471 A.2d 347.

Citing trial testimony, the defendant argues that because it is unclear which officer on the sweep team seized which weapon, it is impossible to determine whether that officer had the training and experience to recognize the illegality of the item. We note that this is a different argument from the one the defendant made to the trial court. The defendant argued that the seized "items were not readily recognizable as being contraband or unlawful," due to ambiguity in the definitions of what constituted illegal weapons. The defendant pointed to the sweep team members' holding up of items for Detective Sergeant Cavanaugh's inspection as confirmation of that ambiguity.

The trial court noted that Detective Sergeant Cavanaugh, "an avid knife collector and a 22–year veteran of the Salem Police Department," "testified that he could readily identify dirk knives, daggers, stilettos, [and] metallic knuckles," and "identified each of the weapons seized as falling within one of the terms listed in RSA 159:16." The court therefore found that in light of his knowledge and past experience, Detective Sergeant Cavanaugh "reasonably inferred" from the appearance of the seized weapons that they fell under the prohibition of RSA 159:16. Thus, the court found the "immediately apparent" prong satisfied, a conclusion we uphold. See Ball , 124 N.H. at 237, 471 A.2d 347.

On appeal, the defendant focuses not upon the qualifications of Detective Sergeant Cavanaugh, but upon those of the sweep team members who physically seized the weapons at issue. Testimony at the suppression hearing revealed that on the morning of the sweep, Detective Sergeant Cavanaugh held a training session for the sweep team members for the purpose of familiarizing them with the types of weapons that are illegal. Sweep team members were told that "if there was a question on a particular weapon or a knife, to bring it to [Detective Sergeant Cavanaugh's] attention" for a determination of illegality. During the sweep, when an officer wanted Detective Sergeant Cavanaugh's opinion about a specific weapon, he or she would not actually bring the item to Detective Sergeant Cavanaugh, but would merely hold it up for him to view from about six feet away. Nevertheless, Detective Sergeant Cavanaugh denied that he was a "gatekeeper" for the seizure of evidence, stating rather that he was a supervisor.

We conclude that the evidence supports a finding that the officers had probable cause to seize the weapons at issue. The specific facts of this case make it one in which "trained policem[en's] observations of certain types of contraband will be deemed sufficient to meet the requirements...