State v. Pseudae
| Decision Date | 27 September 2006 |
| Docket Number | No. 2005–628.,2005–628. |
| Citation | 908 A.2d 809,154 N.H. 196 |
| Court | New Hampshire Supreme Court |
| Parties | The STATE of New Hampshire v. Jae PSEUDAE. |
Kelly A. Ayotte, attorney general (Susan P. McGinnis, assistant attorney general, on the brief and orally), for the State.
David M. Rothstein, deputy chief appellate defender, of Concord, on the brief and orally, for the defendant.
The defendant, Jae Pseudae, appeals his conviction of one misdemeanor count of criminal threatening, see RSA 631:4 (Supp.2005), which was subject to an enhanced penalty, see RSA 651:6, I(g) (Supp. 2005), one misdemeanor count of disorderly conduct, see RSA 644:2 (1996) (amended 2005), and one misdemeanor count of resisting arrest or detention, see RSA 642:2 (1996), following a jury trial in Superior Court (Smukler, J.). We affirm.
The record supports the following facts. On January 12, 2005, Concord police officers were dispatched to 42 Dunklee Street in Concord in response to a report that an individual was threatening to kill himself with a gun. The Concord police dispatcher made telephone contact with the individual, later identified as the defendant, and informed him that Concord police officers were outside his residence to ensure his safety. The dispatcher continued to speak with the defendant and asked him to go outside to speak with the officers. One of the officers on the scene testified that during this time, "[i]t looked like there were two females moving about the house."
Eventually, the defendant came out of the house yelling and began to walk toward Officer Cebollero with his hands in his pockets. Cebollero ordered the defendant to take his hands out of his pockets, but he refused and continued to advance. Cebollero repeatedly ordered the defendant to take his hands out of his pockets, but he still refused. The defendant continued to advance until his chest was pressed against Cebollero's rifle. Eventually, Cebollero cast his rifle aside and tackled the defendant. A search of the defendant revealed that he was not armed.
After the defendant was in custody and taken to a secure location, several officers entered the residence without consent or a warrant. Upon entering the residence, the police confronted a twenty-three-year-old female, a sixteen-year-old female, a fifteen-year-old female and a three-year-old male, and asked them to wait outside while they secured the area. On the second floor of the residence, the officers found some guns in the owner's bedroom but did not seize them. While searching the second floor the officers also came upon a locked door which they had been told was the defendant's bedroom. They knocked, announced their presence and then kicked the door down. They saw a loaded .22 caliber rifle on the bed and a summons with the defendant's name on it tacked to the wall. The officers determined the rifle belonged to the defendant and seized it.
Prior to trial, the defendant moved to suppress the rifle and other items found inside his room. He argued that the State failed to prove by a preponderance of the evidence that the warrantless search was constitutionally permissible. During the suppression hearing, Officer Wright testified that he "took up a position with several other officers to secure the ... house, because ... [they] didn't know if [the defendant] was ... the only person in there that was armed or what was happening." He testified that they were concerned because they "didn't know if there were any more children in there or if there ... was another subject in there with a gun." The Trial Court (Fitzgerald, J.) denied the motion to suppress, finding that the " situation was sufficiently exigent to justify the entry under the exigent circumstances exception." The rifle was introduced at trial in support of the criminal threatening charge. The jury convicted the defendant of all charges. This appeal followed.
On appeal, the defendant argues that the trial court erred in denying his motion to suppress the rifle. The defendant contends that the seizure violated his rights under the Fourth and Fourteenth Amendments to the United States Constitution, and Part I, Article 19 of the New Hampshire Constitution.
We first address the defendant's claim under the State Constitution, relying on federal case law only for guidance. State v. Ball, 124 N.H. 226, 231–33, 471 A.2d 347 (1983). Under Part I, Article 19, warrantless entries are per se unreasonable and illegal unless they fall within one of the exceptions to the warrant requirement. See State v. Santana, 133 N.H. 798, 803, 586 A.2d 77 (1991). The warrant requirement applies not only to criminal searches, but to noncriminal searches as well. See State v. Beede, 119 N.H. 620, 625–26, 406 A.2d 125 (1979), cert. denied, 445 U.S. 967, 100 S.Ct. 1659, 64 L.Ed.2d 244 (1980). The search of a home is subject to a particularly stringent warrant requirement because the occupant has a high expectation of privacy. See State v. Theodosopoulos, 119 N.H. 573, 580, 409 A.2d 1134 (1979), cert. denied, 446 U.S. 983, 100 S.Ct. 2964, 64 L.Ed.2d 839 (1980). The State has the burden to show that the search was validly executed under one of the exceptions to the warrant requirement. See State v. Ricci, 144 N.H. 241, 243, 739 A.2d 404 (1999).
The defendant argues that the trial court erred in finding that there were exigent circumstances sufficient to justify the officers' warrantless entry into his locked bedroom and the seizure of the rifle. We agree.
When reviewing a trial court's motion to suppress, we accept the trial court's findings unless they are unsupported by the record or clearly erroneous. See State v. Johnston, 150 N.H. 448, 451, 839 A.2d 830 (2004). We review the trial court's legal conclusions de novo. See id.
The State contends that the search and seizure were valid under the "emergency aid" and "exigent circumstances" exceptions to the warrant requirement. However, the defendant contends that "both the State, and the trial court, expressly relied on the exigent circumstances exception, rather than the emergency aid doctrine," and therefore "only the exigent circumstances exception is properly at issue." The State agrees with the defendant that the trial court relied on the exigent circumstances exception to the warrant requirement, but contends that it is clear from the arguments advanced during the suppression hearing that the State had "blurred the distinction between the ‘emergency’ exception and the ‘emergency aid’ exception," and that both arguments are properly before the court.
A review of the record shows that the emergency aid exception was not specifically asserted by the State. However, the State did argue, among other things, that there were exigent circumstances to justify entering the defendant's room because the officers were not certain if there were other persons inside the home who might have access to a gun. Although the emergency aid exception was not addressed by the trial court, a review of the record shows that sufficient facts were presented during the suppression hearing such that we may review this issue on appeal. See State v. Berry, 148 N.H. 88, 92, 803 A.2d 593 (2002) (). Therefore, we find that both the exigent circumstances and emergency aid exceptions are properly before us.
On appeal, the State argues that the defendant's ambiguous response to the 911 operator's question whether he was alone is sufficient to trigger one or both of the exceptions. This evidence, however, was not presented to the trial court at the suppression hearing. The parties may not rely on evidence presented only at trial (e.g., the transcript of the Concord police dispatch appended to the State's brief) because this evidence was not before the trial court at the suppression hearing. See State v. Gonzalez, 143 N.H. 693, 700, 738 A.2d 1247 (1999) ().
Under the exigent circumstances exception, the police can make a seizure without a warrant where they have probable cause to seize and exigent circumstances exist. State v. MacElman, 149 N.H. 795, 797–98, 834 A.2d 322 (2003). Exigent circumstances exist where the police face a compelling need for immediate official action and a risk that the delay inherent in obtaining a warrant will present a substantial threat of imminent danger to life or public safety or create a likelihood that evidence will be destroyed. Id. at 798, 834 A.2d 322; Santana, 133 N.H. at 803, 586 A.2d 77.
Here the trial court determined that "[b]ecause there were several people in the house, any of who [sic ] could have removed the defendant's gun before a search warrant was obtained, ... that exigent circumstances justif [ied] the officers' warrantless search of the defendant's room and seizure of the rifle therein." We are not convinced that this situation was sufficiently exigent to justify the entry into the defendant's locked bedroom and seizure of the rifle under the exigent circumstances exception. At the time the officers entered the defendant's room he had already been taken into custody. His bedroom door was locked and there was no reason why the officers could not have obtained a warrant before kicking down the door. When the officers asked the women they initially encountered inside if anyone was upstairs, the women responded that "they didn't believe anyone else was in the house." It was the defendant who had been suicidal and irate. He was securely in custody at the time of the warrantless search.
The facts of this case do not rise to the level of urgency demonstrated in previous cases where we have upheld warrantless...
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