State v. Santana, 88-484

• Decision Date: 28 January 1991
• Docket Number: No. 88-484,88-484
• Citation: 133 N.H. 798,586 A.2d 77
• Parties: The STATE of New Hampshire v. Nelson SANTANA.
• Court: New Hampshire Supreme Court

Page 77

586 A.2d 77

133 N.H. 798

The STATE of New Hampshire v. Nelson SANTANA.

No. 88-484.

Supreme Court of New Hampshire.

Jan. 28, 1991.

Rehearing Denied Feb. 19, 1991.

John P. Arnold, Atty. Gen. (Clyde R.W. Garrigan, Asst. Atty. Gen., on the brief and orally), for the State.

James E. Duggan, Chief Appellate Defender, Concord, by brief and orally, for defendant.

BROCK, Chief Justice.

The defendant, Nelson Santana, was convicted after trial by jury in the Superior Court (Dalianis, J.) of sale of cocaine and possession with intent to sell cocaine, contrary to RSA 318-B:2 (since amended, see Supp.1989). He was sentenced to serve five to ten years, with another five to ten year consecutive sentence suspended. On appeal he claims that the Superior Court (Mangones, J.) erred in denying his pretrial motion to suppress evidence discovered in the apartment which the police entered forcibly, without a warrant, and in which he was arrested. For reasons that follow, we reverse.

The defendant presents two issues for our consideration. He first argues that the police may not rely on "exigent circumstances" to justify a warrantless entry into a home when the police have probable cause and ample opportunity to obtain a search warrant, but when, instead, they decide to take action which they know and expect will present exigency. Second, he claims that the police failed to comply with the "knock and announce" rule, thus making their warrantless entry into the apartment unreasonable under both the New Hampshire and United States Constitutions.

The relevant facts are as follows. On March 9, 1987, the Nashua police received information from a confidential informant that Jerry Davis and Lisa Powers, individuals described as "middle men between the sellers and the buyers," were involved in drug transactions with an individual known only as a "Dominican male." According to the informant, Davis and Powers were planning a cocaine purchase on the afternoon of March 11. Based on this information, Detective James Brackett of the Nashua Police Department initiated surveillance of Davis and Powers to determine the source of the cocaine. On March 11, the police followed Davis and Powers from their residence to an apartment building located at 80 Cypress Lane in Nashua. Davis entered the building and remained inside for approximately five minutes. He and Powers then drove directly home. Later that day, the informant gave Detective Brackett a small amount of cocaine which, according to the informant, had come from Ronald Martin, who had received it from Jerry Davis.

Detective Brackett then contacted the owner of the apartment building at 80 Cypress Lane to determine whether there were any Dominican or hispanic tenants in the building. The owner related that an hispanic family, Ernesto and Rosa Santana, lived in apartment 12. Earlier, in February, the Nashua police had received information during another narcotics investigation that Ernesto Santana had acquired a firearm. The building owner told the detective that he had received complaints about the high levels of foot traffic and noise from the Santanas' apartment.

On receiving this information, the police began undercover surveillance at 80 Cypress Lane. On March 12 and 13, police officers, posing as painters, observed the daily activities outside apartment 12. During this period, the police saw Jerry Davis enter apartment 12, "stay a short time and leave." Another individual previously identified by the police as an "illicit drug trafficker" also came to apartment 12 and left.

On March 22, the informant told Detective Brackett that Davis and Powers had again visited the apartment building at 80 Cypress Lane and that sometime later Davis had made a cocaine sale. Additionally, the informant related that a shipment of cocaine was to arrive sometime on March 23 or 24 and that Davis and Powers were planning to pick up some cocaine from the apartment building on March 24. Armed with this information, Detective Brackett asked the informant to arrange the purchase of a pound of cocaine. The informant complied, arranging to buy the cocaine on the afternoon of March 24. The informant told the detective that the dealers required that the transaction be separated into two half-pound transfers. As envisioned by the dealers, Davis and Powers would bring $9,000 to the apartment building, exchange the money for drugs, return to their home, be given another $9,000 and again drive to 80 Cypress Lane to purchase the second half-pound. Detective Brackett, however, never intended to allow the second half of the exchange to take place.

Between March 22 and March 24, several significant events took place. First, while the deal, as arranged, involved the exchange of a pound of cocaine for $18,000 in two equally divided transfers, Detective Brackett only obtained $9,000 from the attorney general's office. (In the "Order on Motion to Suppress," the trial court in its findings of fact stated that Detective Brackett received $18,000. This finding, however, is clearly erroneous based on the record of the suppression hearing and the State's admission in its brief before this court.)

Second, on March 23, a full day before the forced entry into apartment 12, the police filled out a search warrant application and completed nine of twelve paragraphs of a supporting affidavit. It was not until after the police had entered apartment 12 on March 24 that the remaining three paragraphs were added to the affidavit, and the application was submitted to a judge for review.

Finally, prior to the events on March 24, Detective Brackett gathered a "special reaction team" (hereinafter SRT), comprised of ten to twelve officers. The SRT was specially trained for conducting raids when there was a need to ensure quick and safe entry into a building and to secure its occupants. During these raids the team was heavily armed and equipped with a "Kelly ball," a device used for breaking open locked or closed doors. Detective Brackett requested the SRT's assistance for a planned raid on apartment 12 on March 24 and specifically instructed them to use the "Kelly ball" to gain entry into the apartment. He also told them not to conduct a search once inside the apartment, but to secure the premises and await the arrival of the search warrant.

On March 24, the police gave the $9,000 to the informant, who, in turn, gave the cash to Ronald Martin, the informant's contact with both Davis and Powers. Martin took the money to Davis and Powers, who left their home and went to 80 Cypress Lane. The police observed Davis enter apartment 12, at which point the SRT took up a position closer to the apartment. Detective Brackett told the leader of the SRT "to grab Jerry [Davis] when he comes out."

About five or six minutes later, Davis emerged from the apartment. Davis moved only a few feet from the apartment door before he was stopped by the police. In his jacket pocket the officers found a package of cocaine. Once Davis was arrested, Detective Brackett ordered the SRT to enter the apartment and to secure it. A member of the SRT swung the "Kelly ball" at the door, breaking it open, and the team entered apartment 12 with their guns drawn.

Once inside, the police found Rosa Santana and a young girl in the living room, and the defendant and another individual, Rumardo Sanchez, hiding in a bedroom closet. Also in the bedroom, in plain view, the officers saw a "large amount of cocaine" and a scale on a dresser top, and "piles of cash" on the bed. The police arrested Sanchez and the defendant, handcuffed them, and placed them on the floor of the apartment.

On securing the apartment, the police did not seize any evidence but waited there while an officer at the police station completed paragraphs ten through twelve of the search warrant affidavit. The application and affidavit were then presented to a district court judge who was on call, and the search warrant was issued. The warrant was immediately executed, and the police seized $8,300 of the cash provided by the police, an additional $10,000 in cash, two pounds of cocaine and various other items of drug paraphernalia.

The defendant was indicted by a Hillsborough County Grand Jury for possession of cocaine, possession with intent to sell, and sale of cocaine. See RSA 318-B:2 (since amended, Supp.1989). His pre-trial motion to suppress the evidence seized in apartment 12 was denied, and he was convicted after a three-day trial.

I. Availability of Exigency Exception to the Warrant Requirement

The defendant argues that the police had probable cause and ample opportunity to obtain a search warrant for apartment 12, but that, instead of obtaining a warrant, they wrongfully chose to create exigency to justify their entry into the apartment. He argues that, under these circumstances, the failure to obtain a warrant requires suppression of the seized evidence because the search violated part I, article 19 of the New Hampshire Constitution and the fourth amendment to the United States Constitution. When presented with such a claim, we look first to the New Hampshire Constitution, and only to the extent that the Federal Constitution provides greater protection than our State Constitution will we consider the defendant's federal constitutional issues. State v. Turmelle, 132 N.H. 148, 152, 562 A.2d 196, 198 (1989) (citing State v. Ball, 124 N.H. 226, 231-32, 471 A.2d 347, 350-51 (1983)). But cf. State v. King, 131 N.H. 173, 176, 551 A.2d 973, 975 (1988).

The beginning point of our analysis is the text of the New Hampshire Constitution. Part I, article 19 provides, that "[e]very subject hath a right to be secure from all unreasonable searches and seizures of his person, his houses, his papers, and all his possessions." From this provision come two indisputable and bedrock principles. First, warrantless entries are "per se unreasonable" and illegal, unless the entry is made pursuant to one of a...