State v. Smith

• Decision Date: 07 August 1996
• Docket Number: No. 94-683,94-683
• Citation: 681 A.2d 1215,141 N.H. 271
• Parties: The STATE of New Hampshire v. Brian Scott SMITH.
• Court: New Hampshire Supreme Court

Page 1215

681 A.2d 1215

141 N.H. 271

The STATE of New Hampshire v. Brian Scott SMITH.

No. 94-683.

Supreme Court of New Hampshire.

Aug. 7, 1996.

Jeffrey R. Howard, Attorney General (John A. Curran, Assistant Attorney General, on the brief, and Patrick E. Donovan, Assistant Attorney General, orally), for the State.

Nancy J. Gray, Public Defender, Concord, by brief and orally, for defendant.

JOHNSON, Justice.

Following a jury trial in the Superior Court (Morrill, J.), the defendant, Brian Scott Smith, was convicted of two counts of passing bad checks in November 1993. See RSA 638:4 (1986 & Supp.1993) (amended 1993). He appeals, arguing that the superior court erred in: (1) denying his motion to suppress evidence the police seized while searching his home; and (2) admitting evidence in the State's case in chief of nineteen prior bad check convictions under New Hampshire Rule of Evidence 404(b). We affirm.

I. Motion to Suppress

The defendant first argues that the superior court should have granted his motion to suppress evidence seized from his home. In his brief, the defendant contests the seizure of items from his living room and bedroom, but in his notice of appeal, he made no objection to the items found in his living room. He has therefore waived any objection to the admission of those items, see Sup.Ct.R. 16(3)(b); State v. Peterson, 135 N.H. 713, 714-15, 609 A.2d 749, 750-51 (1992), and we confine our discussion accordingly.

In December 1993, Detective Mark Phelps learned that the defendant had used bad checks to purchase two chain saws and a wood stove. Phelps contacted the defendant's wife, who told him that the articles were in the couple's trailer and that the police could come and retrieve them. On December 22, Phelps and two other officers drove to the trailer and knocked on the door. Phelps heard footsteps inside, but no one answered. The chain saws and wood stove were visible through a window.

Phelps left to apply for a search warrant, while the other two officers stayed behind. One of the remaining officers testified:

Two females left that trailer and then some time passed and one of the females returned, went inside the trailer, exited the trailer after a couple of minutes and got back in the vehicle and left. As she was leaving, she tooted the horn a couple of times and then left the area.

When Phelps returned with a search warrant, the officers again knocked on the trailer door, but still no one answered. The officers opened the door, which was unlocked, and entered. They saw the chain saws and wood stove in the living room, approximately twenty feet from the door.

The officers then searched the rest of the trailer. At the suppression hearing, Phelps explained:

A Chief Polland had advised us before we had entered on the search warrant that they had picked [the defendant] up from the Lebanon police department and he had two guns at that point. But the lieutenant had only taken one gun with him, so we were concerned that there may have been a subject in there from the footsteps we had heard and that there may have been a weapon in there.

Q Had Chief Polland told you where he had observed the weapons?

A In the bedroom next to the bed.

Q Was there any other reason that you continued searching the trailer?

A Also the male subject--Brian Smith--there was [a National Crime Information Center] warrant out of Lynchburg, Virginia for him.

Phelps also testified that he believed there was an outstanding bench warrant for the defendant's arrest "for jumping bail," and stated that his "primary objective" in searching the rest of the trailer was to ensure "officer safety." When the defense attorney questioned Phelps about the search, Phelps answered: "Well, are you going to immediately pick up a five hundred pound wood stove and walk out? No. We are going to have to take a few minutes to secure that, put it on a cart and remove that. In that time somebody could come down the hallway." Another officer gave a similar explanation for the decision to secure the trailer:

I had been told also that there might be a possible weapon in the trailer, because one weapon had been taken earlier in time and also I had been told by the Lebanon police department that they had a bench warrant for the respondent, who had failed to appear for a probable cause hearing.

While searching the rest of the trailer, Phelps entered the bedroom. There he or another officer found and seized the items at issue in this appeal: a check imprinting machine, a box of blank checks, and carbons from copies of checks. The officers testified that these items were "in plain view" on a counter and on the floor.

The defendant moved prior to trial to suppress the items from evidence, but the superior court ruled them admissible, citing the plain view exception to the warrant requirement. See State v. Murray, 134 N.H. 613, 615, 598 A.2d 206, 207 (1991). The court found the officers' search of the bedroom a legitimate, protective sweep, and thus determined that the officers had a right to be in the bedroom when they saw the items. See Maryland v. Buie, 494 U.S. 325, 327, 110 S.Ct. 1093, 1094-95, 108 L.Ed.2d 276 (1990); United States v. Daoust, 916 F.2d 757, 759 (1st Cir.1990).

The defendant argues that the denial of his suppression motion violated his rights under the State and Federal Constitutions. See U.S. CONST. Amend. IV; N.H. CONST. pt. I, art. 19. We affirm the court's ruling based on our interpretation of the State Constitution. See State v. Ball, 124 N.H. 226, 232, 471 A.2d 347, 351 (1983). The Federal Constitution provides the defendant with no greater protections in this context. See Buie, 494 U.S. at 327, 110 S.Ct. at 1094-95; Daoust, 916 F.2d at 759; compare Horton v. California, 496 U.S. 128, 130, 110 S.Ct. 2301, 2304, 110 L.Ed.2d 112 (1990) (under Federal Constitution, plain view exception does not require inadvertent discovery) with Murray, 134 N.H. at 615, 598 A.2d at 207 (under State Constitution, plain view exception requires inadvertent discovery). We therefore make no holding under the Federal Constitution and use federal cases only as guides to our State constitutional analysis. State v. Fitzgerald, 137 N.H. 23, 26, 622 A.2d 1245, 1246 (1993); see Michigan v. Long, 463 U.S. 1032, 1040-41, 103 S.Ct. 3469, 3476-77, 77 L.Ed.2d 1201 (1983).

The starting point for our analysis is part I, article 19 of our constitution, which 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." "[W]arrantless entries are per se unreasonable and illegal, unless the entry is made pursuant to one of a few recognized exceptions." State v. Santana, 133 N.H. 798, 803, 586 A.2d 77, 80 (1991) (quotation omitted). "Absent a warrant, the burden is on the State to prove that the search was valid pursuant to one of these exceptions." State v. Sterndale, 139 N.H. 445, 447, 656 A.2d 409, 410 (1995).

This court has recognized a plain view exception to the warrant requirement under the State Constitution.

[T]here are three criteria that the State must prove by a preponderance of the evidence for justifying a seizure under this exception: (1) [t]he initial intrusion which afforded the view must have been lawful; (2) the discovery of the evidence must have been inadvertent; and (3) the incriminating nature of the evidence must have been immediately apparent.

Murray, 134 N.H. at 615, 598 A.2d at 207 (quotation omitted). The defendant argues only the first criterion, contending that the police were not lawfully in his bedroom when they discovered the items at issue.

The State argues that the police had a legitimate concern for their safety when they entered the defendant's trailer and that this concern justified a protective sweep of the bedroom. We agree. In Buie, the United States Supreme Court held that under the principles of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983), "[t]he Fourth Amendment permits a properly limited protective sweep in conjunction with an in-home arrest when the searching officer possesses a reasonable belief based on specific and articulable facts that the area to be swept harbors an individual posing a danger to those on the arrest scene." Buie, 494 U.S. at 337, 110 S.Ct. at 1099-1100. Such a sweep, "aimed at protecting the arresting officers, if justified by the circumstances," id. at 335, 110 S.Ct. at 1099, is properly limited if it extends "only to a cursory inspection of those spaces where a person may be found. The sweep [may] last[ ] no longer than is necessary to dispel the reasonable suspicion of danger and in any event no longer than it takes to complete the arrest and depart the premises," id. See generally 3 W. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 6.4(c), at 323-35 (3d ed. 1996). The United States Court of Appeals for the First Circuit has applied the Buie holding to protective sweeps made, as here, in conjunction with a search warrant. Daoust, 916 F.2d at 759.

Professor LaFave notes that courts sometimes reject searches beyond the area permitted by the warrant, but states: "[I]t does seem that self-protection is a legitimate factor to be taken into account and that sometimes a protective sweep beyond the boundaries stated in the search warrant would be reasonable." 2 LaFave, supra § 4.10(a), at 659. Although intrusions into a person's home should never be undertaken lightly because of the "strong expectation of privacy and protection from government intrusion," Santana, 133 N.H. at 803, 586 A.2d at 80 (quotation omitted), we recognize that there an officer sometimes faces the greatest danger. An officer on an "adversary's 'turf' ... [risks] ambush in a confined setting of unknown configuration." Buie, 494 U.S. at 333, 110 S.Ct. at 1097-98.

We have previously recognized...