State v. Ricci
| Decision Date | 20 October 1999 |
| Docket Number | No. 97–613.,97–613. |
| Citation | 144 N.H. 241,739 A.2d 404 |
| Court | New Hampshire Supreme Court |
| Parties | The STATE of New Hampshire v. Robert A. RICCI, Jr. |
Philip T. McLaughlin, attorney general (Christopher H.M. Carter, assistant attorney general, on the brief and orally), for the State.
Stephen T. Jeffco, P.A., of Portsmouth (Stephen T. Jeffco and Harry N. Starbranch, Jr. on the brief, and Mr. Starbranch orally), for the defendant.
The defendant, Robert A. Ricci, Jr., appeals his conviction for driving under the influence, see RSA 265:82 (Supp.1998), arguing that the Portsmouth District Court (Giles , J.) erred in denying his motion to suppress evidence obtained from a warrantless entry into his home. We affirm.
Because no separate evidentiary hearing was held on the suppression motion, we recite the facts adduced at trial viewed in the light most favorable to the State. On the night of July 10, 1997, Officers Ferland and Russo of the Portsmouth Police Department were standing patrol in downtown Portsmouth. Around ten o'clock, the defendant, who is a police commissioner for the City of Portsmouth, and his girlfriend walked within a few feet of the officers, and the defendant greeted them. The officers noticed the defendant's staggered walk, glassy-eyed stare, and bloodshot eyes. They also detected an odor of alcohol and believed that the defendant was intoxicated. A few minutes later, the officers parted company. As Officer Russo was traveling on his police motorcycle, he saw the defendant entering a car in a nearby parking lot. Shortly thereafter, Officer Ferland drove by in his cruiser and saw the defendant behind the wheel of a car exiting the lot. Concerned about the defendant's apparent intoxication, Officer Ferland followed behind and was soon joined by Officer Russo. The defendant took a right turn without using a directional, drove through a crosswalk without yielding to pedestrians, wove between two travel lanes, and at times, traveled fifteen to thirty-five miles per hour above the posted speed limit. Officer Ferland radioed for assistance to stop the defendant's vehicle. Officer McQuate responded, and two of the three police vehicles then following the defendant activated their blue lights and sirens. The defendant, however, did not pull over. Upon seeing the lights, he indicated to his girlfriend, a passenger in the car, that he did not intend to stop until he arrived at his home, which was located approximately three-tenths of a mile away.
Once home, the defendant pulled into his driveway. McQuate brought his cruiser to a stop behind the defendant's car and immediately began walking toward it. The cruiser's headlights remained illuminated, and when the defendant alighted, McQuate noticed his flushed face, bloodshot and watery eyes, and swaying stance, and detected an odor of alcohol. He repeatedly directed the defendant to come to the front of the cruiser, but the defendant insisted that he needed to let his dog, which was tied up and barking, into the house. McQuate acquiesced but instructed him to return immediately. After the defendant let the dog inside, he quickly followed. McQuate immediately proceeded after him, ordering him to return to the cruiser. Once in the house, McQuate instructed the defendant to go outside for a field sobriety test. The defendant refused, saying: McQuate arrested the defendant for driving under the influence of alcohol. The defendant's blood test revealed an alcohol content of .16, twice the legal limit. See RSA 265:82, I (b).
The defendant was charged with two alternate counts of driving under the influence of alcohol and one count of disobeying a police officer. After a bench trial, the district court denied the defendant's suppression motion. The defendant was convicted of disobeying an officer and driving with a blood alcohol content of .08 or more. On appeal, only the defendant's conviction for driving under the influence is at issue.
The defendant argues that the warrantless entry by the police into his home to arrest him for a violation infringed upon his State and federal constitutional rights to be free from unreasonable searches and seizures, and that evidence obtained from such activity should have been suppressed. The State contends that its warrantless entry was justified by exigent circumstances. Specifically, it argues that the police were in "hot pursuit" of the defendant when they entered his home and needed to preserve evidence of the defendant's intoxication without the delay inherent in securing a warrant at night. We decide this case under the State Constitution and cite federal law only for guidance because the Federal Constitution provides no greater protection. See State v. Santana , 133 N.H. 798, 803, 586 A.2d 77, 80 (1991) ; State v. Ball , 124 N.H. 226, 231–32, 471 A.2d 347, 350–51 (1983).
Under Part I, Article 19 of our State Constitution, all warrantless police entries are per se unreasonable and thus illegal unless made pursuant to a judicially created exception. Santana , 133 N.H. at 803, 586 A.2d at 80. The warrant requirement is particularly stringent when entry into a defendant's home is involved. See id. ; see also Welsh v. Wisconsin , 466 U.S. 740, 748, 104 S.Ct. 2091, 80 L.Ed.2d 732 (1984) (). The State bears the burden of proving the existence of exigent circumstances, such as hot pursuit, to justify a warrantless home intrusion. Welsh , 466 U.S. at 749–50, 104 S.Ct. 2091.
Whether exigent circumstances exist is judged on the totality of the circumstances, "which includes an examination of the overall reasonableness of the police officers' behavior prior to the entry." Santana , 133 N.H. at 804, 586 A.2d at 81 (quotation omitted). Hot pursuit, as an exigency, "relates to the circumstances governing the officer's conduct, to the situation as reasonably perceived by the officer, and must be assessed from the officer's perspective". Com. v. Talbert , 23 Va.App. 552, 478 S.E.2d 331, 334 (1996). A suspect's elusive conduct bears on the reasonableness of a police officer's perceptions and actions. See id. We are mindful, however, that the exigency exception "can very easily swallow the rule unless applied in only restricted circumstances." Santana , 133 N.H. at 804, 586 A.2d at 81 (quotation omitted).
Whether an exigency exists is a question of fact, and we will not disturb the lower court's decision unless it is clearly erroneous. Id. But see United States v. Tibolt
, 72 F.3d 965, 969 (1st Cir.1995), cert . denied , 518 U.S. 1020, 116 S.Ct. 2554, 135 L.Ed.2d 1073 (1996). Our review of the district court's ruling in this case is somewhat complicated by the fact that it did not issue a written order, make factual findings, or expound on its reasoning when denying the defendant's motion to suppress. Viewing the facts in the light most favorable to the State, we conclude that the...
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