State v. Diaz

• Decision Date: 04 October 1991
• Docket Number: No. 90-266,90-266
• Citation: 596 A.2d 725,134 N.H. 662
• Parties: The STATE of New Hampshire v. Carlos Gonzalez DIAZ.
• Court: New Hampshire Supreme Court

Page 725

596 A.2d 725

134 N.H. 662

The STATE of New Hampshire v.Carlos Gonzalez DIAZ.

No. 90-266.

Supreme Court of New Hampshire.

Oct. 4, 1991.

John P. Arnold, Atty. Gen. (Clyde R.W. Garrigan, Sr. Asst. Atty. Gen., on the brief and orally), for the State.

W. Kirk Abbott, Jr., Asst. Appellate Defender, Concord, on brief and orally, for defendant.

HORTON, Justice.

The defendant was convicted by a jury of possession of a controlled drug with intent to distribute, in violation of RSA 318-B:2 (Supp.1990).He appeals the denial by the Superior Court(McHugh, J.) of his motion to suppress, claiming that: (1) the police lacked the reasonable suspicion required to detain the defendant; (2) the scope of the detention exceeded its permitted purpose; (3) the subsequent entry into the defendant's room constituted a warrantless entry; and (4) the "sweep" search of the defendant's room was unreasonable.We hold that the entry into the defendant's room was not supported by probable cause or by any other permitted justification, and consequently reverse.

While on routine patrol after midnight of August 27, 1989, Salem Police Officer Paul Marchand noticed a single car parked in a remote area of the Fireside Motel parking lot, near the Fishland Restaurant, which was closed for the evening.In driving toward the vehicle, he noted four persons in it, and also spotted the defendant near the car alongside the motel.After parking his police jeep, Officer Marchand walked toward the car and observed a female passenger in the back seat emptying her pocketbook onto the floor of the car.At that point he ordered all of the car's occupants to place their hands on the seat or dashboard in front of them, and directed the defendant, who was approximately six feet from the parked car, not to move while he radioed for assistance.Two other officers arrived shortly thereafter.On the floor of the car, Officer Marchand found a pipe, a matchbox containing brown powder, and a vial containing packets of folded paper.At both the trial and the hearing on the motion to dismiss, he testified that, based upon his then twelve years of experience, he believed these items to be drug paraphernalia, and heroin or cocaine.He thereupon arrested all four occupants of the parked car.

Officer Marchand then turned his attention to the defendant.Because of his suspicion that the defendant might have been involved in a transaction with the arrested persons, he requested identification and asked the defendant what he was doing in the area.The defendant denied any particular purpose for his presence, and indicated that his identification was back in his motel room with his wife.According to the officer's testimony, he told the defendant, "let's go back to your room and get it," to which the defendant replied, "no problem."Officer Marchand and two additional officers escorted the defendant back to his motel room door and knocked on the door.A woman with a child opened the door, and she and the defendant conversed briefly in Spanish.None of the officers understood Spanish, but they thought they understood the words "social security."The defendant and the woman entered their motel room.Although not invited into the room, the three police officers followed the defendant and the woman, neither of whom protested, into the room.

Once inside, the defendant remained by the door while the woman, apparently at his direction, went to a nightstand in the room.When she opened the nightstand drawer, Officer Marchand followed her and observed cut-up magazine strips, commonly used to package drugs, on top of the nightstand.Inside the drawer he saw small packets similar to those found in the car.The police thereupon arrested the defendant.A search of the room revealed a beaker and vial in the kitchen area, a paper bag containing forty-five additional packets of cocaine, and a golfball-size "rock" of cocaine.

The defendant contends on appeal that the warrantless entry of the motel room was unreasonable under part I, article 19 of the New Hampshire Constitution and the fourth and fourteenth amendments to the Federal Constitution.The State argues that this issue was not properly preserved for appeal, and that the defendant consented to the police's entry into the room.The State carries the burden of establishing, based upon the totality of the surrounding circumstances, that the consent was free, knowing and voluntary.SeeState v. Jones, 131 N.H. 726, 728, 560 A.2d 1159, 1160(1989).This burden must be sustained by a preponderance of the evidence.Seeid.

As a preliminary matter, we will analyze the defendant's argument under the protections afforded by part I, article 19 of the New Hampshire Constitution.SeeState v. Ball, 124 N.H. 226, 231, 471 A.2d 347, 350(1983).To that extent, we look to federal cases merely for guidance.SeeIn re Certain Scholarship Funds, 133 N.H. 227, 229-30, 575 A.2d 1325, 1326-27(1990).

Our review of the motion to suppress indicates that the validity of the warrantless entry was raised below.The motion asserts that "the Police Officer abused and exceeded his authority under the initial investigation of the motor vehicle" through his "expansion of the scope of his investigation to the Defendant and the Defendant's hotel room."In addition to the oral argument presented to the court, this adequately raised before the trial court the issue of the validity of the warrantless entry of the defendant's motel room.SeeState v. Baird, 133 N.H. 637, 640, 581 A.2d 1313, 1315(1990)(although defense counsel's arguments did not clearly address specific issue, he nevertheless brought the defendant's claim to the trial court's attention).

In response to the request to produce identification, the defendant indicated that it was in his nearby room, and readily agreed to get it.Given the defendant's response, it appears that there was ample evidence from which the court could conclude that " 'the consent given [to go to the motel room] was free, knowing and voluntary.' "State v. McGann, 124 N.H. 101, 105, 467 A.2d 571, 574(1983)(quotingState v. Osborne, 119 N.H. 427, 433, 402 A.2d 493, 498(1979)).

While the facts as to the change of location from the parking lot to the motel door reveal the defendant's voluntary consent, the actions thereafter require us to conclude that the entry was not consensual.Our analysis begins with the scope of the consent given by the defendant.SeeState v. Pinder, 126 N.H. 220, 224, 489 A.2d 653, 655(1985).Officer Marchand and two other officers went with the defendant to the door.Of note on the issue of authority, it was Officer Marchand, not the defendant, who knocked at the door.This begins the chain of circumstances which suggest that the officers were leading, and expanding the scope of consent, rather than accepting an invitation by the defendant to enter the premises.

The request to which the defendant consented entailed going "back to your room to get it."Accepting an invitation to return to one's residence in order to produce identification sufficient to answer an officer's questions is significantly different from inviting the police to enter a private area and observe all subsequent...