State v. Sawyer

Decision Date19 January 2001
Docket NumberNo. 99-259.,99-259.
Citation145 N.H. 704,764 A.2d 936
CourtNew Hampshire Supreme Court
Parties The STATE of New Hampshire v. Buffie Mary SAWYER.

Philip T. McLaughlin, attorney general (Ann M. Rice, senior assistant attorney general, on the brief and orally), for the State.

Jenifer Bensinger Ackerman and Carl Olson, assistant appellate defenders, of Concord (Ms. Ackerman, on the brief, and Mr. Olson orally), for the defendant.


The defendant, Buffie Mary Sawyer, appeals the Superior Court's (Fitzgerald , J.) denial of her motion to suppress the fruits of a warrantless entry into her dwelling. For the reasons that follow, we reverse.

On September 9, 1998, Officer Jeffrey T. Williams of the Haverhill Police Department was called to the scene of a motor vehicle stop. The driver of the vehicle could not produce identification, and he asked the defendant, a passenger, to go to the apartment they shared to obtain some form of identification. Because the defendant did not have a driver's license and the weather was inclement, Williams offered to escort her to the apartment in his police cruiser.

Upon reaching the defendant's apartment building, Williams followed the defendant inside. Once inside, he followed her up a set of stairs, unaware that the stairs were part of her apartment. At the top of the stairs, when he realized that he had entered the defendant's apartment, he stopped and waited for the defendant. Williams had not asked to enter the apartment, nor had the defendant invited him to enter. While waiting, he observed a handgun in plain view. Williams confiscated the handgun, which formed the basis of several subsequent searches and ultimately led to charges against the defendant.

The defendant moved to suppress all evidence obtained following Williams' entry into her apartment, arguing that Williams' failure to obtain her "manifest consent" to enter the premises was a violation of her State and federal constitutional rights to be free from unreasonable searches and seizures. See N.H. CONST. pt. I, art. 19 ; U.S. CONST. amend. IV.

The trial court ruled that "[t]he constitutional protections relied upon by the defendant[ ] only apply to police investigative activities that are properly classified as ‘searches.’ " The court concluded that because Williams was not engaged in a search when he was in the defendant's apartment, the evidence obtained as a result of his presence should not be suppressed.

On appeal, we look first to our State Constitution, using decisions of the United States Supreme Court and other jurisdictions only as aids in our analysis. See State v. Ball, 124 N.H. 226, 231-33, 471 A.2d 347, 350-52 (1983) ; Michigan v. Long, 463 U.S. 1032, 1040-41, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983).

Contrary to the trial court's ruling, Part I, Article 19 of our State Constitution protects individuals from warrantless police entries as well as warrantless searches. See State v. Ricci, 144 N.H. 241, ----, 739 A.2d 404, 406 (1999). In fact, because the protections provided by Part I, Article 19 "are never in sharper focus than when viewed in the protection of one's dwelling," the warrant requirement is "particularly stringent" when entry into the defendant's home is at issue. State v. Thompson, 132 N.H. 730, 733-34, 571 A.2d 266, 268-69 (1990) ; Ricci, 144 N.H. at ----, 739 A.2d at 406. Thus, the trial court erred in concluding that Williams' conduct did not trigger the defendant's State and federal constitutional protections.

The trial court did not address whether the defendant's conduct constituted consent for Williams to enter the apartment. "We ordinarily would remand this unresolved issue; however, when a lower tribunal has not addressed a factual issue, but the record reveals that a reasonable fact finder necessarily would reach a certain conclusion, we may decide that issue as a matter of law." Appeal of Cote, 139 N.H. 575, 580, 660 A.2d 1090, 1094 (1995). Because the parties fully litigated this issue below, and because the essential facts are not in dispute, we will consider whether a reasonable fact finder could conclude that the defendant's conduct constituted consent.

Warrantless police entries are per se unreasonable and thus illegal unless made pursuant to a judicially created exception. See Ricci, 144 N.H. at ----, 739 A.2d at 406; State v. MacDonald, 129 N.H. 13, 20, 523 A.2d 35, 39 (1986). When, as here, consent is the proffered justification for the warrantless entry, the State bears the burden of establishing, based upon the totality of the circumstances, that the consent was free, knowing, and voluntary. See State v. Diaz, 134 N.H. 662, 664, 596 A.2d 725, 727 (1991) ; State v. Jones, 131 N.H. 726, 728, 560 A.2d 1159, 1160 (1989). The State must establish consent by a preponderance of the evidence. See Diaz, 134 N.H. at 664, 596 A.2d at 727.

The State agrees that the defendant did not explicitly consent to the officer's entry into her apartment. Rather, the State argues that the totality of the circumstances supports a conclusion that the defendant consented to the officer's entry.

Although we consider the totality of the circumstances when determining whether consent to enter is given freely, knowingly, and voluntarily, where consent is not explicitly given, the surrounding circumstances must demonstrate by a preponderance of the evidence that the defendant's implied consent to permit entry was unambiguous. Absent an explicit invitation to enter or a grant of permission in response to a request to enter, a warrantless entry based on consent implied from the defendant's conduct will be subject to stringent review.

Such a rule is consistent with our prior decision in State v. Diaz, 134 N.H. 662, 596 A.2d 725 (1991). In Diaz, we suggested that the defendant's acquiescence to the officer's statement, "let's go back to your [motel] room and get [your...

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  • State v. Akuba
    • United States
    • South Dakota Supreme Court
    • August 18, 2004
    ...A.2d 1223 (1977); State v. Harris, 590 N.W.2d 90 (Minn.1999); State v. Middleton, 43 S.W.3d 881 (Mo.Ct.App. 2001); State v. Sawyer, 145 N.H. 704, 764 A.2d 936 (N.H.2001); State ex rel. Juvenile Dept. v. Stephens, 175 Or.App. 220, 27 P.3d 170 (2001); State v. O'Dell, 576 A.2d 425 (R.I.1990);......
  • State v. Orde
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    • New Hampshire Supreme Court
    • November 30, 2010
    ...or an exception to the warrant requirement was needed for the officer to lawfully enter the defendant's deck. See State v. Sawyer, 145 N.H. 704, 706, 764 A.2d 936 (2001) (“Warrantless police entries are per se unreasonable and thus illegal unless made pursuant to a judicially created except......
  • State v. Boyer, 2014–0725
    • United States
    • New Hampshire Supreme Court
    • February 12, 2016
    ...provided by Part I, Article 19 are never in sharper focus than when viewed in the protection of one's dwelling." State v. Sawyer, 145 N.H. 704, 706, 764 A.2d 936 (2001) (quotation omitted). Here, prior to the issuance of the bail order, the Ashland apartment was the defendant's home, in whi......
  • State v. Tarasuik
    • United States
    • New Hampshire Supreme Court
    • May 20, 2010
    ...of the evidence, "based upon the totality of the circumstances, that the consent was free, knowing, and voluntary." State v. Sawyer, 145 N.H. 704, 706–07, 764 A.2d 936 (2001). "We will disturb the trial court's finding of consent only if it is not supported by the record." Ayer, 154 N.H. at......
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