State v. Nieves

• Citation: 160 N.H. 245,999 A.2d 389
• Decision Date: 06 May 2010
• Docket Number: No. 2009–402.,2009–402.
• Court: Supreme Court of New Hampshire
• Parties: The STATE of New Hampshire v. Soiluis NIEVES.

160 N.H. 245

999 A.2d 389

The STATE of New Hampshire

v.Soiluis NIEVES.

No. 2009–402.

Supreme Court of New Hampshire.

Argued: March 31, 2010.

Opinion Issued: May 6, 2010.

Michael A. Delaney, attorney general (Nicholas Cort, assistant attorney general, on the brief and orally), for the State.

Pamela E. Phelan, assistant appellate defender, of Concord, on the brief and orally, for the defendant.

DUGGAN, J.

The defendant, Soiluis Nieves, was charged with possession of a controlled drug with intent to sell and conspiracy to commit sale of a controlled drug. See RSA 318–B:2 (Supp.2008) ; RSA 629:3 (2007). The State appeals an order of the Superior Court (Hicks, J.) granting the defendant's motion to suppress evidence seized under the "plain view" exception to the warrant requirement. We reverse and remand.

The following facts were found by the trial court in its order on the defendant's motion to suppress. In April 2008, Detective Kevin Rourke of the Nashua Police Department worked with a confidential informant on a drug investigation. The investigation focused on Radhames Melo and the defendant; the police suspected that both men were dealing drugs. Allegedly, the defendant, at Melo's direction, repeatedly traveled from New Hampshire to New York City and then to the Dominican Republic, where he picked up approximately 500 grams of heroin. The defendant swallowed the drugs, returned to New Hampshire, and met Melo at a hotel, where he expelled them.

Following one of these trips, Detective Rourke and the confidential informant completed two drug purchases from Melo and the defendant. The second took place at the defendant's apartment, located in a multi-family house on Perham Street in Nashua. Detective Rourke gave the informant money to buy heroin and watched him enter the apartment; shortly thereafter, the informant left and delivered a package of heroin to Detective Rourke. A surveillance team monitored the informant's movements, and the police confirmed that the substance was heroin.

Detective Rourke applied for and received a search warrant for the defendant's apartment. The warrant permitted the seizure of "Identification, documents and records relating to the trafficking of Narcotic drugs as well as other contraband listed in Attachment ‘A’, cellular phones and the information contained Therein, contrary to Revised Statutes Annotated 318–B:2." Attachment A listed many items, including United States currency, drug use paraphernalia, firearms, documents identifying the apartment's occupants, and records relating to drug trafficking. Neither the warrant nor Attachment A specifically permitted the officers to search for, or seize, "drugs"; the word "heroin" does not appear in the warrant or attachment.

On May 1, 2008, Detective Rourke and several other police officers executed the search warrant. They discovered thirty-one individually wrapped bags of heroin inside the pocket of a vest hanging in a bedroom closet. The police confiscated the drugs and arrested the defendant shortly thereafter.

Prior to trial, the defendant moved to suppress the heroin, arguing that the police unlawfully seized it under the plain view exception because they did not inadvertently discover it. The State contended that the police properly seized the heroin, noting we have "left undecided the issue of whether contraband can be seized when its discovery is not inadvertent." The State conceded that the discovery of the heroin was not inadvertent.

The trial court granted the defendant's motion to suppress, reasoning that, given our plain view jurisprudence, "it is unclear, at best, whether the New Hampshire Supreme Court would be willing to abandon the inadvertency requirement when faced with a case like the one at hand." The trial court ruled that, "as it stands, New Hampshire law requires trial courts to apply the inadvertence prong to all plain view seizures." This appeal followed.

In reviewing the trial court's rulings, we accept its factual findings unless they lack support in the record or are clearly erroneous. State v. Steeves, 158 N.H. 672, 675, 972 A.2d 1033 (2009). We review the trial court's conclusions of law de novo. Id.

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. Davis, 149 N.H. 698, 700, 828 A.2d 293 (2003). The State bears the burden of proving by a preponderance of the evidence that the seizure falls within a recognized exception, such as the plain view exception. Id. at 700–01, 828 A.2d 293.

The United States Supreme Court first set forth "criteria that generally guide ‘plain-view’ seizures" in a plurality opinion in Coolidge v. New Hampshire, 403 U.S. 443, 465–73, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). Horton v. California, 496 U.S. 128, 134, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990). Under this exception, the State must prove that: (1) the initial intrusion which afforded the view was lawful; (2) the discovery of the evidence was inadvertent; and (3) the incriminating nature of the evidence was "immediately apparent." Davis, 149 N.H. at 700–01, 828 A.2d 293; see Coolidge, 403 U.S. at 466, 469, 91 S.Ct. 2022. The police must have probable cause to believe that the evidence is incriminating under the third prong of the analysis. See Arizona v. Hicks, 480 U.S. 321, 326, 107 S.Ct. 1149, 94 L.Ed.2d 347 (1987) ; State v. Ball, 124 N.H. 226, 234–35, 471 A.2d 347 (1983) (requiring probable cause under state constitutional analysis). In Horton, however, the Court held that inadvertency would no longer be required under the Federal Constitution. Horton, 496 U.S. at 130, 110 S.Ct. 2301. Therefore, the defendant's sole claim is under the State Constitution.

With respect to the second prong, which requires that the discovery be inadvertent, the Coolidge Court reasoned that

where the discovery is anticipated, where the police know in advance the location of the evidence and intend to seize it ... [t]he requirement of a warrant to seize imposes no inconvenience ... or at least none which is constitutionally cognizable in a legal system that regards warrantless searches as "per se unreasonable" in the absence of "exigent circumstances."

If the initial intrusion is bottomed upon a warrant that fails to mention a particular object, though the police know its location and intend to seize it, then there is a violation of the express constitutional requirement of "Warrants ... particularly describing ... [the] things to be seized." The initial intrusion may, of course, be legitimated not by a warrant but by one of the exceptions to the warrant requirement.... But to extend the scope of such an intrusion to the seizure of objects—not contraband nor stolen nor dangerous in themselves—which the police know in advance they will find in plain view and intend to seize, would fly in the face of the basic rule that no amount of probable cause can justify a warrantless seizure.

Coolidge, 403 U.S. at 470–71, 91 S.Ct. 2022.

In Horton v. California, the United States Supreme Court eliminated the inadvertency requirement, holding that "even though inadvertence is a characteristic of most legitimate ‘plain-view’ seizures, it is not a necessary condition." Horton, 496 U.S. at 130, 110 S.Ct. 2301. While "[a] search compromises the individual interest in privacy," "a seizure deprives the individual of dominion over his or her person or property." Id. at 133, 110 S.Ct. 2301. As the seizure of a piece of evidence may "invade the owner's possessory interest," the Court reasoned that "[i]f ‘plain view’ justifies an exception from an otherwise applicable warrant requirement ... it must be an exception that is addressed to the concerns that are implicated by seizures rather than by searches." Id. at 134, 110 S.Ct. 2301.

The Court in Horton noted that the plurality opinion discussing the plain view doctrine in Coolidge "did not command a majority" and that the discussion was "not a binding precedent." Id. at 136, 110 S.Ct. 2301 (quotation omitted). The Court noted two flaws in the reasoning of Coolidge:

First, evenhanded law enforcement is best achieved by the application of objective standards of conduct, rather than standards that depend upon the subjective state of mind of the officer. The fact that an officer is interested in an item of evidence and fully expects to find it in the course of a search should not invalidate its seizure if the search is confined in area and duration by the terms of a warrant or a valid exception to the warrant requirement. If the officer has knowledge approaching certainty that the item will be found, we see no reason why he or she would deliberately omit a particular description of the item to be seized from the application for a search warrant.... On the other hand, if he or she has a valid warrant to search for one item and merely a suspicion concerning the second, ... we fail to see why that suspicion should immunize the second item from seizure if it is found during a lawful search for the first. .... Second, the suggestion that the inadvertence requirement is necessary to prevent the police from conducting general searches, or from converting specific warrants into general warrants, is not persuasive because that interest is already served by the requirements that no warrant issue unless it particularly describes the place to be searched and the persons or things to be seized, and that a warrantless search be circumscribed by the exigencies which justify its initiation. Scrupulous adherence to these requirements serves the interests in limiting the area and duration of the search that the inadvertence requirement inadequately protects. Once those commands have been satisfied and the officer has a lawful right of access, however, no additional Fourth Amendment interest is furthered by requiring that the discovery of evidence be inadvertent.

Id. at 138–40, 110 S.Ct. 2301 (quotation, citations and...