State v. Rodriguez

• Decision Date: 08 April 2008
• Docket Number: No. 2007-107.,2007-107.
• Citation: 157 N.H. 100,945 A.2d 676
• Court: New Hampshire Supreme Court
• Parties: The STATE of New Hampshire v. Luis A. RODRIGUEZ.

157 N.H. 100

945 A.2d 676

The STATE of New Hampshire

v.Luis A. RODRIGUEZ.

No. 2007-107.

Supreme Court of New Hampshire.

Argued: Jan. 17, 2008.

Opinion Issued: April 8, 2008.

Kelly A. Ayotte, attorney general (Thomas E. Bocian, attorney, 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.

BRODERICK, C.J.

The defendant, Luis A. Rodriguez, appeals from an order of the Superior Court (Vaughan, J.) denying his motion to suppress evidence of his possession of controlled drugs, discovered as a result of a warrantless entry by the police into his hotel room. We affirm.

I

The trial court found, or the record supports, the following facts. On the evening of March 1, 2006, Sergeant Lecuyer and Corporal Roberts of the Lebanon Police Department were investigating a recent theft at the Airport Economy Inn. After questioning individuals on the hotel's fourth floor, where the theft occurred, the police officers descended a stairway to the third floor. On entering the hallway there, they smelled the odor of "burning marijuana." After walking down the hallway, they conclusively determined that the odor was strongest immediately outside Room 308.

Hearing what sounded like a small party and the voices of several people talking inside the room, the officers positioned themselves on the right and left sides of the door, both to protect themselves and to avoid being seen through the door's peephole when someone responded to a knock. Sergeant Lecuyer then knocked on the door several times and as the voices inside the room were lowered, the officers heard one person say, "Check out there for the police." When they received no response from inside the room, the officers continued to knock on the door, identified themselves as members of the Lebanon Police Department, and ordered that the door be opened immediately. The officers testified that they could hear someone "scurrying" or running around inside the room. After repeated knocking, the police announced that if someone did not open the door, it would be opened by force.

Two to two and one-half minutes after the police first knocked, the defendant opened the door approximately six to ten inches. Both officers testified that they recognized him from previous drug arrests and investigations, and that they observed a haze of marijuana smoke inside the room, which wafted into the hallway. The officers entered the room, and ordered the defendant and two other individuals to sit on the bed with their hands visible. After securing the room, where they observed drug paraphernalia and other contraband in plain view, the officers obtained a search warrant. Upon execution of the warrant, they found substantial drug and drug-related material.

Prior to trial, the defendant unsuccessfully moved to suppress the evidence seized, claiming it was derived from an illegal warrantless entry into the hotel room. In denying the motion, the trial court stated:

Looking at the totality of the circumstances, the officers acted reasonably prior to their entry into the hotel room. The officers smelled burning marijuana coming from the room and heard a small party inside. It is reasonable, considering the fact that the evidence of the crime was, at that moment, being destroyed, for the officers to knock on the door and enter without a warrant. The destruction of the evidence was the exigency, not the knocking on the door.

After a bench trial, the defendant was convicted of the felonies of possession of heroin, cocaine, and marijuana with intent to sell. See RSA 318-B:2, :26 (2004). This appeal followed.

II

The defendant argues that the trial court erred in denying his motion to suppress when it: (1) ruled that the odor of burning marijuana created exigent circumstances, allowing the police to enter his hotel room without a warrant; and (2) rejected his argument that whatever exigency may have existed arose from the police officers' decision to knock on the door and announce their presence, rather than to watch the room while they secured a search warrant. Consequently, he contends that the warrantless entry violated his rights as guaranteed by Part I, Article 19 of the New Hampshire Constitution and the Fourth Amendment to the United States Constitution. We first address his claim under the State Constitution, State v. Ball, 124 N.H. 226, 231, 471 A.2d 347 (1983), and cite federal opinions for guidance only, id. at 232-33, 471 A.2d 347.

When reviewing a trial court's ruling on a motion to suppress, we accept the trial court's factual findings unless they lack support in the record or are clearly erroneous. State v. Stern, 150 N.H. 705, 708, 846 A.2d 64 (2004). Our review of the trial court's legal conclusions, however, is de novo. Id.

Under Part I, Article 19 of our State Constitution, warrantless entries are per se unreasonable and illegal unless they fall within the narrow confines of a judicially crafted exception to the warrant requirement. State v. Pseudae, 154 N.H. 196, 199, 908 A.2d 809 (2006). The State bears the burden of proving by a preponderance of the evidence that such an entry falls within one of these exceptions. See Stern, 150 N.H. at 708, 846 A.2d 64. At issue here is the "exigent circumstances" exception, which has two elements: probable cause and exigent circumstances. See id. As the defendant concedes that the police in this case had probable cause "to believe that people inside the hotel room possessed a user quantity of marijuana," we need not further address that element. We turn our attention to whether exigent circumstances existed.

"Exigent circumstances exist where the police face a compelling need for immediate official action," Pseudae, 154 N.H. at 200, 908 A.2d 809, and a risk that "the delay caused by obtaining a search warrant would create a substantial threat of imminent danger to life or public safety or likelihood that evidence will be destroyed,

" Stern, 150 N.H. at 709, 846 A.2d 64 (emphasis added). Whether exigent circumstances exist is judged by the totality of the circumstances, and is largely a question of fact for the trial court. Id. We will not disturb the trial court's finding of exigent circumstances unless it is clearly erroneous. Id.

III

We have not previously decided if the odor of burning marijuana is sufficient to establish exigent circumstances, and we note three things at the outset of our analysis. First, because we review the trial court's finding within a context of the totality of the circumstances, we need not decide here if such an odor establishes exigent circumstances per se.

Second, this case concerns the odor of "burning" marijuana, in contrast to "burned" marijuana. Both police officers testified regarding their experience in determining the "more potent, stronger smell" of burning marijuana, as opposed to the smell of "stale or older burned marijuana," and that they smelled burning marijuana on the night in question. See, e.g., People v. Aarness, 150 P.3d 1271, 1278 (Colo.2006) (smell of previously burned marijuana did not present exigent circumstances justifying police entry where apartment occupants already outside except for one other person asleep upstairs; "the smell of burned marijuana did not indicate any risk that evidence was being destroyed"), cert. denied, --- U.S. ----, 128 S.Ct. 54, 169 L.Ed.2d 46 (2007).

Third, in arguing that the totality of the circumstances in this case augurs against a finding of exigency, the defendant equates the expectation of privacy of the occupant of a hotel room with that of persons in their own homes. He contends that we have held the same, citing State v. Watson, 151 N.H. 537, 864 A.2d 1095 (2004) ; the State does not dispute his contention. For the purposes of this appeal only, we assume, without deciding, that the parties are correct. But see id. at 542, 864 A.2d 1095 (Broderick, C.J., concurring specially) (precise nature of defendant's privacy interest in a hotel or motel room not at issue within totality of the circumstances analysis and remains an undecided issue in this state).

Both the defendant and the State cite State v. Hess, 680 N.W.2d 314 (S.D.2004), as detailing cases in which courts have reached different results regarding whether the odor of burning marijuana provides exigent circumstances justifying a warrantless entry, see Hess, 680 N.W.2d at 325 (citing cases). More recent cases have added to the list of jurisdictions reaching varying results on this issue. For example, in Rideout v. State, 122 P.3d 201 (Wyo.2005), the Supreme Court of Wyoming concluded that sufficient exigent circumstances existed to justify police officers' warrantless entry into a private residence where the officers detected the odor of burning marijuana emanating from inside the residence, and the officers' presence was noted by the occupants. "Any evidence could have easily been destroyed before the [officers] would have had an opportunity to obtain a search warrant." Rideout, 122 P.3d at 208. In State v. Duran, 156 P.3d 795 (Utah 2007), however, the Supreme Court of Utah found that the detectable odor of burning marijuana is inadequate, standing alone, to support a reasonable belief by police officers that the destruction of evidence is "sufficiently certain." Duran, 156 P.3d at 797. Instead, the court stated: "The aroma of burning marijuana must be accompanied by some evidence that the suspects are disposing of the evidence, as opposed to casually consuming it...." Id.

Both the defendant and the State recognize that those jurisdictions cited in Hess as holding that "the smell of burning marijuana does not evince a sufficiently grave offense to justify entering a residence without a warrant ... [have done so in reliance] on the distinction between minor and serious offenses made by the United States Supreme Court in Welsh v. Wisconsin, 466 U.S. 740, 104 S.Ct. 2091, 80 L.Ed.2d 732 (1984)," Hess, 680 N.W.2d at 325. Both par...