State v. Gallant, 89-104

• Decision Date: 04 May 1990
• Docket Number: No. 89-104,89-104
• Citation: 574 A.2d 385,133 N.H. 138
• Parties: The STATE of New Hampshire v. Steven A. GALLANT.
• Court: New Hampshire Supreme Court

Page 385

574 A.2d 385

133 N.H. 138

The STATE of New Hampshire v. Steven A. GALLANT.

No. 89-104.

Supreme Court of New Hampshire.

May 4, 1990.

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

Paul G. Schweizer, of Keene, and McBride, Wheeler & Widegren, Boston, Mass. (Paul G. Schweizer, John C. McBride, and Robert J. Wheeler, Jr., on the brief, and Francis T. O'Brien, Jr., orally), for defendant.

BATCHELDER, Justice.

Defendant Steven Gallant was charged with possession of cocaine with intent to sell, RSA 318-B:2, I (Supp.1989), and conspiracy to sell cocaine, RSA 629:3. Prior to trial, he moved to suppress evidence of a large amount of cocaine obtained from the search of the car he was driving immediately before his arrest. The Superior Court (Morrill, J.) denied the motion and, after a jury-waived trial, found him guilty of both charges. At a later hearing the court sentenced defendant to an enhanced term in the State Prison, pursuant to RSA 651:6: ten to twenty years for the first charge, and a consecutive five to ten years for the second. Defendant appeals his conviction and sentence to this court on several grounds. He argues that the trial court erred in denying his motion to suppress; and that granting the State's request for an enhanced sentence was error because application of RSA 651:6, 1(a), denied him due process and because the State's proof was insufficient. Defendant also contends that the county attorney's actions in seeking an enhanced sentence constituted prosecutorial misconduct. We affirm, finding neither error on the part of the trial court in denying the motion to suppress nor misconduct on the county attorney's part. The record before us reveals that defendant failed to bring to the trial court's attention his claim of error in regard to sentencing under the enhanced sentence statute, RSA 651:6, 1(a), specifically denial of due process and insufficient proof: therefore, we need not consider it on appeal. State v. Stearns, 130 N.H. 475, 486, 547 A.2d 672, 681 (1988).

In 1986, Trooper Kineen of the New Hampshire State Police arrested a drug dealer named James Willey for possession of cocaine with intent to distribute, and in June 1987, Willey agreed to cooperate with the New Hampshire Drug Task Force, in exchange for a reduced sentence recommendation. Initially, he proved his reliability to the authorities by providing information which led to the arrest and conviction of another dealer. Later, in 1988, Willey, as part of his ongoing cooperation with Kineen, arranged to purchase cocaine from another dealer known by Willey to be engaged in the unlawful marketing of drugs, Anthony Ciufo. Ciufo was also acquainted with the defendant through prior drug deals.

Willey kept Trooper Kineen closely informed of the developing sale and, as the date of the arranged transaction approached, Kineen formed a strong suspicion that the supplier in the deal was the defendant, Steven Gallant. This suspicion was partially based on information gleaned from a prior drug investigation that took place in 1986, in which Kineen was involved. During that investigation, Kineen listened to an audiotape in which a person named "Steve" discussed selling eighty kilograms of cocaine. Kineen passed the tape on to Detective Sergeant Hayes, from the North Reading (Massachusetts) Police Department, who recognized the voice as that of Steven Gallant of North Reading. Kineen also learned in the course of that investigation that "Steve" had two brothers and that his family owned an electric motor repair business--Gallant Motor Repair--in North Reading. In addition, he discovered that Gallant had a prior criminal record for possession of cocaine.

Kineen strengthened his suspicion about the identity of the supplier with information obtained from Willey as the deal progressed. The sale was to occur on March 19, 1988. At Kineen's request, Willey sought to purchase a wrapped kilo of cocaine in addition to the approximately 750 grams which Ciufo had immediately available. In order for Ciufo's supplier, "Steve." to go to Florida to obtain more cocaine, the sale date was postponed until March 21, 1988. According to the plan, Ciufo would get the drugs from his supplier, "Steve," after "Steve" returned to Massachusetts from Florida, bring them to Willey and Kineen and then take the money back to the supplier. The deal was to take place in a bowling alley parking lot in Newport, New Hampshire.

Willey informed Kineen on March 21 that the supplier, "Steve," was working at his brother's shop and would not be able to come to New Hampshire until he was done with work. At this point, based on the knowledge that the supplier was named "Steve," had Florida drug connections and worked at his brother's electric motor repair shop in North Reading, Kineen was "100 percent sure" that the "Steve" referred to was the defendant, Steven Gallant.

Kineen contacted Detective Sergeant Hayes of the North Reading Police Department and requested surveillance of the defendant at his family's home and business at 206 North Street in North Reading. Hayes had previously, during the 1986 investigation, identified defendant's taped voice. At around five o'clock, during the surveillance, Officer McCormick of the North Reading Police Department saw Gallant and his brother dismantling the door panel of the rear, driver's side door on a white Chrysler New Yorker. McCormick saw the defendant take what McCormick identified, based on his training and experience, as a wrapped kilo of cocaine from the car and put it into the house at 206 North Street. He saw the defendant then pull up the backseat of the car and transfer something that he believed to be another wrapped kilo of cocaine from the side door panel to a place underneath the backseat of the car. Finally, the defendant took a garment bag from the trunk and brought it into the house.

Shortly thereafter, defendant drove north in the Chrysler. He started out on Route I-93, continued on to Route I-89 and Route 103 west, and ended up in Newport. He was followed by several unmarked police cars from New Hampshire and Massachusetts. Defendant drove over country roads at speeds greatly in excess of the speed limit, pulled into driveways and waited for cars to drive past him, went around municipal blocks in Newport and reversed his direction. The trial court found that "all of [this] was clearly designed to avoid or detect [the] surveillance" of the six to seven unmarked police cars following him.

Believing the defendant had detected the trail of police vehicles and was on the verge of leaving the area, police stopped him on a hill along Maple Street, a residential area of Newport. He was arrested and taken, along with his car, to the Newport police station. According to the State's evidence, the car was removed from Maple Street, rather than searched at the point where it was stopped, for several reasons. Ciufo was still at large and apparently had the capability of removing or destroying the cocaine if the vehicle were left unattended by the roadside. The police also hoped to arrest him. In this regard they were concerned that he might come across the activity on Maple Street, suspect trouble and escape. In addition, the car and numerous police vehicles were blocking traffic in both directions on Maple Street. The police wanted to reopen the street to traffic. Finally, they were concerned that they were at risk in searching the automobile at the bottom of a hill, where visibility was poor.

Once at the police station, approximately ten minutes after defendant's arrest, Trooper Kineen made a warrantless search of the car. He had previously been told by the North Reading police of defendant's earlier activities in the area of the vehicle's backseat and back door panel. In the course of Kineen's search, he lifted up the backseat and found underneath a white plastic bag which was later stipulated to contain 600 to 700 grams of cocaine.

A short time later, roughly ten minutes from the time of Kineen's search, the police took custody of the car and took it to the Newport public works garage, where it was inventoried by Corporal Hunter of the New Hampshire State Police. It is not apparent from the record why the police did not carry out the inventory procedure at the police station. Corporal Hunter testified, however, that once a car is seized as evidence by the State Police, standard operating procedure is to carry out an inventory of its contents. Apparently based on the observations made during the police surveillance carried out at defendant's home and business at 206 North Street in North Reading, two Massachusetts police officers extended the inventory search by using a screwdriver to remove the rear seat back support. Behind this they found a wrapped kilogram of cocaine. All the contents of the car were seized and listed on a State Police inventory form. At no time did the police obtain a warrant to search the automobile.

After the suppression hearing held on October 6 and 10, 1988, the trial court found that there had existed probable cause to search the automobile, together with exigent circumstances, and a valid inventory search pursuant to standard procedure. The trial court upheld the warrantless search of the car and refused to suppress the evidence found in the course of that search. On October 20, 1988, the court found the defendant guilty after a jury-waived trial, basing the conviction on the State's offer of proof, evidence and testimony received during the suppression hearing, and facts to which the defendant stipulated. The State had notified the defendant on September 29, 1988, of its intention to seek an enhanced penalty pursuant to RSA 651:6. Subsequent to the suppression hearing, the defendant negotiated with the county attorney about sentencing. During negotiations, the county attorney offered to forego seeking an enhanced...