State v. Schulz

• Decision Date: 04 October 2012
• Docket Number: No. 2011–606.,2011–606.
• Citation: 164 N.H. 217,55 A.3d 933
• Parties: The STATE of New Hampshire v. Logan SCHULZ.
• Court: New Hampshire Supreme Court

164 N.H. 217

55 A.3d 933

The STATE of New Hampshire

v.Logan SCHULZ.

No. 2011–606.

Supreme Court of New Hampshire.

Argued: June 13, 2012.

Resubmitted: Aug. 17, 2012.

Opinion Issued: Oct. 4, 2012.

Michael A. Delaney, attorney general (Elizabeth C. Woodcock, assistant attorney general, on the brief and orally), for the State.

Stephanie Hausman, assistant appellate defender, of Concord, on the brief and orally, for the defendant.

BASSETT, J.

The defendant, Logan Schulz, appeals his convictions for being an accomplice to possession of cocaine, see RSA 318–B:2 (2011); RSA 626:8 (2007), and an accomplice to possession of cocaine with intent to distribute, see RSA 318–B:2, :26 (2011); RSA 626:8. He argues that the Superior Court (Vaughan, J.) erred in denying his motion to suppress because the search warrant for his home was unconstitutional both on its face and in its execution. We reverse and remand.

I

The relevant facts are not disputed. On October 29, 2010, Officer Brandon Alling of the Haverhill Police Department went to the home that the defendant shared with his mother to serve her with a notice against trespass and harassment. While lawfully inside the home, Officer Alling saw three long guns near a staircase. Knowing that the defendant's mother was a convicted felon and, thus, prohibited from possessing firearms, see RSA 159:3 (2002), Alling sought a warrant to search the home. In his affidavit to the magistrate, he described the guns as follows:

One appeared to be a shotgun with a dark colored stock, possibly a single shot. I did not observe a packing rod under the barrel indicating it was a black powder rifle and it appeared to have a chamber. Another appeared to be a .22 caliber with a wooden stock. The barrel on the rifle appeared to be too large to be a pellet gun and was longer than any pellet guns I recall ever seeing.

Based upon this information, the magistrate issued a warrant authorizing the police to search the defendant's home for "firearms." On October 31, three officers, including Alling, searched the defendant's home pursuant to the warrant. Early in the search, they learned that the three guns near the staircase were, in fact, "BB" guns and were, therefore, not unlawful for the defendant's mother to possess. The officers then continued the search and asked the defendant whether there were any additional guns in the house. The defendant informed them that he had a muzzle loader rifle and took them to his bedroom to show it to them. In the room, Officer Alling observed a lock box large enough to contain a handgun but too small to contain a long gun, and told the defendant to open it, noting that the officers could open it by force if necessary. Both the defendant and his mother protested on the grounds that the police had no reason to believe they had a handgun. The defendant's mother then became upset and admitted that the lock box contained cocaine and money. Based upon this information, the police obtained a second warrant to search the lock box and, upon execution of that warrant, found cocaine and money inside.

The trial court denied the defendant's motion to suppress after a hearing, and, after a bench trial, convicted him of the two drug charges.

II

The defendant advances two reasons why the evidence against him should have been suppressed under Part I, Article 19 of the State Constitution and the Fourth Amendment of its federal counterpart: first, he argues that the initial warrant lacked probable cause to search for all "firearms" generally and, accordingly, violated state and federal constitutional particularity requirements; and second, he argues that even if the scope of the initial warrant was proper, the police should have discontinued the search upon discovering that what they thought were firearms were, in fact, BB guns. The State argues that the initial warrant was supported by probable cause and was properly executed. The State does not rely upon the second warrant as an independent basis for denying the defendant's motion to suppress. We first address the defendant's arguments under the State Constitution and rely on federal law only to aid in our analysis. State v. Ball, 124 N.H. 226, 231–33, 471 A.2d 347 (1983).

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, and we review its legal conclusions de novo. State v. Beauchemin, 161 N.H. 654, 656, 20 A.3d 936 (2011).

We assume, without deciding, that the search warrant was supported by probable cause and satisfied the particularity requirement. We agree with the defendant, however, that the manner in which the warrant was executed offended constitutional standards.

The Fourth Amendment guarantees "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. CONST. amend. IV. Similarly, Part I, Article 19 of our State Constitution "protects all people, their papers, their possessions and their homes from unreasonable searches and seizures." State v. Mello, 162 N.H. 115, 119, 27 A.3d 771 (2011) (quotation omitted); see N.H. CONST. pt. I, art. 19. The United States Supreme Court has established a two-step analysis for evaluating challenges to searches pursuant to a warrant under the Federal Constitution. Maryland v. Garrison, 480 U.S. 79, 84, 86, 107 S.Ct. 1013, 94 L.Ed.2d 72 (1987). First, a warrant must be sufficiently particular and must be supported by a finding of probable cause. Groh v. Ramirez, 540 U.S. 551, 557, 124 S.Ct. 1284, 157 L.Ed.2d 1068 (2004) ; State v. Orde, 161 N.H. 260, 269, 13 A.3d 338 (2010). Probable cause exists if a person of ordinary caution would justifiably believe that what is sought will be found through the search and will aid in a particular apprehension or conviction. Orde, 161 N.H. at 269, 13 A.3d 338. To establish probable cause, the affiant need only present the magistrate sufficient facts and circumstances to demonstrate a substantial likelihood that the evidence or contraband sought will be found in the place to be searched. Id. Second, if the warrant satisfies the particularity and probable cause requirements, the manner of its execution must in other respects be reasonable. See Garrison, 480 U.S. at 84, 107 S.Ct. 1013.

In Garrison, police officers executed a warrant to search a third floor apartment at a certain address for controlled substances and related material. Id. at 80 n. 1, 107 S.Ct. 1013. After discovering incriminating evidence against the defendant, the police realized that there were, in fact, two apartments on the third floor and that they had searched the wrong one. Id. at 80, 107 S.Ct. 1013. The Supreme Court upheld the warrant on the grounds that its validity is judged not in hindsight but based upon the information made available to the issuing magistrate at the time it is issued. Id. at 85–86, 107 S.Ct. 1013. But the Court also observed that, "as the officers recognized, they were required to discontinue the search of respondent's apartment as soon as they ... were put on notice of the risk that they might be in a unit erroneously included within the terms of the warrant. The officers' conduct and the limits of the search were based on the information available as the search proceeded." Id. at 87, 107 S.Ct. 1013.

Garrison was a particular application of the general constitutional principle that the police may not proceed with a search, absent some other sufficient justification, when they know, or reasonably should know, that there is no probable cause. See, e.g., Guzman v. City of Chicago, 565 F.3d 393, 397–98 (7th Cir.2009) (police should have called off search under warrant that authorized search of single-family residence when they learned that house was not a single-family structure); Liston v. County of Riverside, 120 F.3d 965, 978 (9th Cir.1997) (officers not entitled to qualified immunity in action under 42 U.S.C. § 1983 after "the degree of certainty [that they had searched the wrong house and detained the wrong person] reached such a level that a reasonable officer would have realized these facts"); United States v. Ramirez, 112 F.3d 849, 852 (7th Cir.1997) ("[O]nce [a] mistake is discovered, the government cannot use the authority of the warrant ... to conduct a search ... that they know is unsupported by probable cause."); Pray v. City of Sandusky, 49 F.3d 1154, 1159 (6th Cir.1995) (noting "parties agreed that the officers were obligated to retreat as soon as they knew or reasonably should have known that there was a mistake"). These cases are grounded in a strong tradition under both the State and Federal Constitutions of protecting citizens against all unreasonable governmental intrusions into the home—even those searches that were reasonable at their inception but, by virtue of information the police acquired during the search, became unreasonable in their execution. Cf. Silverman v. United States, 365 U.S. 505, 511, 81 S.Ct. 679, 5 L.Ed.2d 734 (1961) ("At the very core [of the Fourth Amendment] stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion."); State v. Santana, 133 N.H. 798, 803, 586 A.2d 77 (1991) (noting, in warrantless search case, that "when the entry is made into an individual's private dwelling, where there exists a strong expectation of privacy and protection from government intrusion, the requirement of a warrant is particularly stringent" (quotations omitted)).

Indeed, New Hampshire's constitutional traditions have caused us to adopt greater privacy protections than those provided by the Federal Constitution in the related context of police officers relying in good faith upon a later-invalidated warrant. See State v. Canelo, 139 N.H. 376, 387, 653 A.2d 1097 (1995). We held in Canelo that the good faith exception to the exclusionary rule is "incompatible with and detrimental to our...