State v. Folds

• Citation: 216 A.3d 58,172 N.H. 513
• Decision Date: 08 August 2019
• Docket Number: No. 2018-0029,2018-0029
• Parties: The STATE of New Hampshire v. Jonathan FOLDS
• Court: Supreme Court of New Hampshire

172 N.H. 513

216 A.3d 58

The STATE of New Hampshire

v.Jonathan FOLDS

No. 2018-0029

Supreme Court of New Hampshire.

Argued: January 10, 2019

Opinion Issued: August 8, 2019

Gordon J. MacDonald, attorney general (Susan P. McGinnis, senior assistant attorney general, on the brief and orally), for the State.

Thomas Barnard, senior assistant appellate defender, of Concord, on the brief and orally, for the defendant.

HANTZ MARCONI, J.

The State appeals an order of the Superior Court (Ignatius, J.). The defendant, Jonathan Folds, filed a motion to suppress a firearm and a motion to dismiss two indictments that alleged he violated the armed career criminal statute. See RSA 159:3-a (2014) (amended 2017). The trial court granted both motions. The State argues that the court erred because (1) the firearm's seizure satisfied the requirements of the plain view exception to the warrant requirement, and (2) the armed career criminal statute does not require the defendant's qualifying felony convictions to arise from at least three separate criminal episodes. We affirm the dismissal of the armed career criminal indictments, reverse the suppression ruling, and remand.

I

The trial court found, or the record establishes, the following facts. In the fall of 2016, Detective Sergeant Scott of the Conway Police Department worked with a "cooperating individual" (CI) to conduct two controlled purchases of narcotics from the defendant. On each occasion, the CI allegedly purchased 50 grams, or "five fingers," of what appeared to be heroin from the defendant, and turned the drugs over to Scott. Both purchases took place at the defendant's residence. The CI reported that the defendant made frequent trips "down south" to obtain heroin, which the defendant then sold out of his residence, and that he typically obtained between 500 and 600 grams of heroin on these trips. Scott and the CI also discussed additional details about the defendant and his residence based on the CI's observations.

Scott applied for a warrant to search the defendant's residence and submitted an affidavit in support thereof. A search warrant was issued to search the defendant's residence for "[h]eroin, any controlled drugs, drug scales, drug packaging material and devices, drug paraphernalia, ... and firearms," among other items. Although Scott asked for authorization to search for firearms when she applied for the warrant, she later acknowledged at the motions hearing that "there was never any information that led us to believe that there was a firearm in the home." She testified that, although she often asks for firearms in warrant applications, "this isn't a case that we typically would have asked for firearms."

The police executed the warrant on October 11; Detective Sergeant Blodgett helped with the search. The police discovered drugs and money in the defendant's residence. Having already assisted with the search of other rooms, Blodgett began searching a closet, in which he discovered a box. When he looked in the box, he saw a tightly rolled shirt. He could not identify what, if anything, was inside of the shirt. Blodgett then removed the shirt from the box and unfurled it. When he did so, a firearm fell out of the shirt and onto the floor. Blodgett picked up the firearm and removed its ammunition. The firearm was then marked as evidence and secured.

Based on the discovery of the firearm, the defendant was charged with violating RSA 159:3-a, the armed career criminal statute, as well as RSA 159:3 (2014), which prohibits persons with certain types of felony convictions from owning, possessing, or controlling deadly weapons. He moved to dismiss the armed career criminal charges, arguing that his prior felonies were insufficient as a matter of law to satisfy the requirements of RSA 159:3-a. He also moved to suppress the firearm, arguing that the warrant "was unsupported by probable cause as to that object."

The State objected to both motions. With respect to the firearm, the State conceded that the search warrant affidavit did not establish probable cause to search for firearms. Nevertheless, the State argued that the firearm's seizure was justified by the plain view exception to the warrant requirement because it was discovered while conducting a lawful search for drugs pursuant to the warrant, and its incriminating nature was immediately apparent at the time it was seized.

After a hearing, the trial court granted both of the defendant's motions. On the motion to dismiss, the court ruled that the armed career criminal statute requires that the defendant's qualifying convictions stem from three separate criminal episodes. Because the court concluded that the qualifying convictions alleged in the armed career criminal indictments arose from only two criminal episodes, the court dismissed those indictments. On the motion to suppress, the trial court agreed that "there was no probable cause for firearms to be included in the search warrant," and thus the firearm's seizure could not be justified by the warrant itself. The court concluded that, although there was "no dispute that the search of the residence for drugs was lawful," the State had not demonstrated that the firearm's seizure was lawful pursuant to the plain view exception. The trial court denied the State's subsequent motions for reconsideration, and the State brought this appeal.

II

We begin with the suppression issue. When reviewing a trial court's ruling on a motion to suppress, we accept the trial court's factual findings unless they lack support in the record or are clearly erroneous. State v. Gay, 169 N.H. 232, 240, 145 A.3d 1066 (2016). Our review of the trial court's legal conclusions, however, is de novo. Id. We first address the parties' arguments under the State Constitution and rely upon federal law only to aid our analysis. State v. Ball, 124 N.H. 226, 231-33, 471 A.2d 347 (1983).

"Part I, Article 19 of our State Constitution protects all people, their papers, their possessions and their homes from unreasonable searches and seizures." State v. Schulz, 164 N.H. 217, 221, 55 A.3d 933 (2012) (quotation omitted); see N.H. CONST. pt. I, art. 19. Warrantless seizures are per se unreasonable under Part I, Article 19 unless they fall within the narrow confines of a judicially crafted exception. State v. Nieves, 160 N.H. 245, 247, 999 A.2d 389 (2010). The State bears the burden of proving by a preponderance of the evidence that a warrantless seizure falls within a recognized exception, such as the plain view exception. Id.

On appeal, the State argues that the trial court erred in its application of the plain view doctrine. Generally speaking, the plain view exception "permits a law enforcement officer to seize clearly incriminating evidence or contraband without a warrant, if such evidence is inadvertently discovered during lawful police activity." Ball, 124 N.H. at 234, 471 A.2d 347. In order for the seizure of this firearm to be justified under the plain view exception, the State must demonstrate that the officer did not violate the constitution in arriving at the place from which he viewed the firearm. See State v. Cora, 170 N.H. 186, 191, 167 A.3d 633 (2017) ; see also Nieves, 160 N.H. at 247, 251, 999 A.2d 389 (explaining that the initial intrusion which afforded the view of the item must have been lawful, meaning the intrusion must have been justified by a warrant or an exception to the warrant requirement). The State must also demonstrate that the officer had a lawful right of access to the firearm itself. See Cora, 170 N.H. at 191, 167 A.3d 633. Finally, the State must show that the incriminating nature of the firearm was immediately apparent. See id. Because the item at issue is a weapon, the State is not required to demonstrate that its discovery was inadvertent. See Nieves, 160 N.H. at 250, 999 A.2d 389.

The State contends that Blodgett did not violate the constitution in arriving at the place from which he viewed the firearm because Blodgett could permissibly search "the closet, the box, and the rolled up T-shirt" for drugs pursuant to the warrant, since they "were all places where drugs ... could have been found." We assume, as did the trial court, that the search of the residence for drugs pursuant to the warrant was lawful.¹ "It is well accepted that ‘[a] lawful search of fixed premises generally extends to the entire area in which the object of the search may be found and is not limited by the possibility that separate acts of entry or opening may be required to complete the search.’ "

United States v. Giannetta, 909 F.2d 571, 577 (1st Cir. 1990) (quoting United States v. Ross, 456 U.S. 798, 820-21, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982) ). "Any container may be searched if it is reasonable to believe that the container could conceal the object of the search." Id. As the trial court noted, "heroin can be packaged in baggies as small as a thumbnail." Since it was reasonable to believe that the closet, the box, and the rolled-up shirt could conceal heroin, we agree with the State that Blodgett did not violate the constitution in arriving at the place from which he viewed the firearm. See id. ; United States v. Evans, 966 F.2d 398, 400 (8th Cir. 1992) ("The search warrant ... authorized the police to seize ... drugs and drug paraphernalia, either of which could have been stored in a box in a closet. The police were, therefore, acting within the scope of the warrant when they opened the box ....").

For similar reasons, we conclude that Blodgett had a lawful right of access to the firearm. The difference between the requirement that the officer not have violated the constitution in arriving at the place from which the object was viewed, and the lawful right of access requirement, is that "the former refers to where the officer stands when she sees the item, and the latter to where she must be to retrieve the item." Boone v. Spurgess, 385 F.3d 923, 928 (6th Cir. 2004). The lawful right of access...