State v. McEwen

• Decision Date: 26 January 2022
• Docket Number: 217-2021-CR-00449
• Court: New Hampshire Superior Court
• Parties: STATE OF NEW HAMPSHIRE v. BRENDEN MCEWEN

STATE OF NEW HAMPSHIRE v. BRENDEN MCEWEN

No. 217-2021-CR-00449

Superior Court of New Hampshire, Merrimack

January 26, 2022

…[T]ransportation to and investigative detention at the station house without probable cause or judicial authorization together violate the Fourth Amendment. -Hayes v. Fla., 470 U.S. 811, 815 (1985)

Involuntary transport to a police station for questioning is sufficiently like arrest to invoke the traditional rule that arrests may constitutionally be made only on probable cause. -Kaupp v Texas, 538 U.S. 626, 630 (2003) (internal citation, quotation marks and bracketing omitted)

…[T]he State has the burden of proving that the necessary consent was obtained and that it was freely and voluntarily given, a burden that is not satisfied by showing a mere submission to a claim of lawful authority. -Florida v. Royer, 460 U.S. 491 497 (1983)

ORDER

Andrew R. Schulman, Presiding Justice.

Table Of Contents

I. Summary And Rulings........................................ 1

II. Facts...................................................... 4

A. McEwen's Presence At The Margaritas Fire.............. 4

B. McEwen's Presence At The 20 Bog Road Fire And The Reasonable Suspicion That Led To His Detention............................................. 5

C. Detention And Transportation To The Police Station For Questioning............................... 7

D. First Words At The Police Station..................... 9

E. Stationhouse Interrogation........................... 12

F. Detention Pending The Issuance Of Search Warrants............................................. 19

G. Execution Of Search Warrants And Release From Custody.............................................. 22

II. LEGAL ANALYSIS........................................... 28

A. The Fourth Amendment and Article 19.................. 28 (1) Introduction And Orientation.................... 28

(2) McEwen Was Arrested Within The Meaning Of The Fourth Amendment And Article 19 When He Was Transported From Dunkin' Donuts To The Police Station On April 16, 2021....................... 35

(a) Introduction............................... 35

(b) McEwen Was “Seized”........................ 35

(c) The Seizure Became An Arrest When McEwen Was Transported To The Police Station...... 37

(3) McEwen's Arrest Was Not Supported By Probable Cause........................................... 47

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(4) Exclusion Of The Fruit Of The Poisonous Tree.... 48

(a) Introduction............................... 48

(b) McEwen's Statements At The Police Station On April 16, 2021.................. 49

(c) McEwen's Statements During Phone Calls From The Hospital.......................... 53

(d) McEwen's Statements At The Police Station On April 22, 2021.................. 54

(e) The Search Warrants........................ 54

(f) The Seizure Of The Cell Phone.............. 58

(g) The delay in requesting a search warrant for the phone.............................. 62

B. The Fifth Amendment And Article 15: Miranda......... 64

(1) The Framework................................... 64

(2) The April 16, 2021 Interrogation................ 69

(3) The April 22, 2021 Interrogation............... 76

C. The Fourteenth Amendment And Article 15: Voluntariness........................................ 78

III. Conclusion.............................................. 82

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I. Summary And Rulings

The matter before the court is defendant Brenden McEwen's motion to suppress. McEwen is accused of two counts of arson and one count of reckless conduct in connection with a fire that broke out in an apartment building in Concord on April 16, 2021. McEwen argues that:

A. He was unconstitutionally arrested within the meaning of the Fourth Amendment and Article 19 when he was brought to the police station on April 16, 2021 for the purpose of interrogation;

B. The statements that he made during the interrogation that followed this arrest must be suppressed as fruit of the poisonous tree;

C. Those statements must also be suppressed on Fifth Amendment/Article 15 Miranda grounds;

D. Evidence obtained from three search warrants must be suppressed as fruit of the poisonous tree because the affidavits in support of the warrants were grounded on the statements he made at the police station.

E. Evidence obtained from the three search warrants must also be suppressed because the warrants were not supported by probable cause as required by the Fourth Amendment and Article 19. F. Evidence obtained from one of the search warrants, which authorized a search of McEwen's cell phone, must also be suppressed because (i) the cell phone was seized without probable cause in violation of the Fourth Amendment and Article 19, and (ii) the detective who seized the phone waited too long to apply for the search warrant in violation of those same constitutional provisions;

G. Additional statements that McEwen made on April 22, 2021, following his formal arrest, must be suppressed on Fifth Amendment/Article 15 Miranda grounds; and

H. McEwen's Statements on April 16 and 22, 2021, and all derivative evidence, must be suppressed on the grounds that they were involuntary within the meaning of the due process clause of the Fourteenth Amendment and Article 15.

The Court held an evidentiary hearing on McEwen's suppression motion on October 26 and 28, 2021. In addition to the testimony and the exhibits, the parties agreed that the court could use the allegations in the three warrant affidavits as proof of what the Concord Police learned during the course of the defendant's detention.

For the reasons set forth below, the motion is now GRANTED IN PART. More specifically, the court makes the following rulings:

A. The court finds that McEwen was arrested on April 16, 2022, within the meaning of the Fourth Amendment and Article 19, without probable cause. The court suppresses, as 'fruit of the poisonous tree' the following:

(i) All of the statements McEwen made at the police station on April 16, 2021, and

(ii) All of the evidence derived from the three search warrants for McEwen's clothing, footwear, person, home and cell phone. The court finds that when McEwen's suppressed statements are excised from the affidavits in support of the search warrants, probable cause is lacking.

B. The court finds that McEwen's cell phone was seized without probable cause. The State did not argue or prove inevitable discovered. Therefore, any evidence obtained as a result of the search of the cell phone is suppressed on this ground as well;

C. The court finds that the defendant's mid-interrogation invocation of his Miranda rights on April 22, 2022 was not scrupulously honored. The interrogating detective refused to cut off questioning and continued to press McEwen for a confession. Therefore, the court orders the suppression of all statements made by the defendant after his invocation of rights on page 35 of the transcript;

E. The court does not reach the question of whether, putting aside the 'fruit of the poisonous tree' doctrine, the search warrants were supported by probable cause. (In other words, the court finds it unnecessary to decide whether, with the inclusion of McEwen's suppressed statements, the affidavits established probable cause.)

G. The court rejects all of the defendant's other claims. Thus, the court finds that:

(i) The delay in applying for the warrant to search the cell phone was reasonable;

(ii) There was no Miranda violation in connection with the April 16, 2021 interrogation;

(iii) McEwen made a valid initial waiver of Miranda rights on April 22, 2021; and

(iv) None of McEwen's statements were involuntary within the meaning of the due process clauses of the Fourteenth Amendment and Article 15.

II. Facts

A. McEwen's Presence At The Margaritas Fire

McEwen was working at Margaritas Restaurant in downtown Concord on the night of April 15-16, 2021. Around midnight, a fire broke out in a trashcan in the Margaritas' restroom. The restroom was located outside of the restaurant but in the same building.

The Concord Fire Department responded following a report of smoke. Firefighters arrived at approximately 12:30 am and extinguished the fire approximately three minutes after they arrived. They noted that the defendant, Brenden McEwen, was outside the building standing next to his boss.

No evidence was presented at the suppression hearing, or otherwise in the record, of a finding by fire authorities that the Margaritas' fire was incendiary. Nobody was ever charged with a criminal offense in connection with that fire.

B. McEwen's Presence At The 20 Bog Road Fire And The Reasonable Suspicion That Led To His Detention

Approximately an hour after the Margaritas' fire was extinguished, another fire broke out in a different area of Concord. The second fire occurred in an apartment building at 20 Bog Road. This section of bog road is located just off Fisherville Road (Route 3), approximately 4 miles from Margaritas.

McEwen lived about a half mile away in a single family home on the other side of Fisherville Road. To get to his home from Margaritas, McEwen would have to pass the intersection of Bog Road and Fisherville Road. Thus, he would necessarily pass within a short distance of 20 Bog Road, the scene of the second fire.

The 20 Bog Road fire was sufficiently large to require some of the tenants on the upper floor to evacuate by ladder. Numerous fire department personnel responded and extinguished the fire. Several police officers, including Officers Alcide and Scheidel and Sergeant Lovejoy, responded as well.

The police officers observed McEwen standing outside the apartment complex. McEwen drew the attention of the Concord Police and Fire Departments because (a) he was present at the...