State v. Socci

• Decision Date: 08 July 2014
• Docket Number: No. 2013–182,2013–182
• Citation: 166 N.H. 464,98 A.3d 474
• Parties: The STATE of New Hampshire v. Stephen SOCCI
• Court: New Hampshire Supreme Court

166 N.H. 464

98 A.3d 474

The STATE of New Hampshire

v.Stephen SOCCI

No. 2013–182

Supreme Court of New Hampshire.

Argued: February 12, 2014

Opinion Issued: July 8, 2014

Joseph A. Foster, attorney general (John J. Kennedy, attorney, on the brief and orally), for the State.

Lothstein Guerriero, PLLC, of Concord (Theodore M. Lothstein on the brief and orally), for the defendant.

HICKS, J.

The defendant, Stephen Socci, appeals an order of the Superior Court (Delker, J.) denying his motion to suppress evidence leading to his convictions, following a bench trial upon stipulated facts, on charges of manufacturing a controlled drug and possession of a controlled drug with intent to sell. See RSA 318–B:2, I (2011). He argues that the court erred in denying the motion because the evidence resulted from: (1) an unlawful search of his property; and (2) a subsequent consent to search that was given involuntarily and/or tainted by the prior unlawful search. We vacate and remand.

The trial court found, or the record supports, the following facts. On August 10, 2011, officers from the Rockingham County Drug Task Force traveled to the defendant's home after learning that he allegedly had purchased from a Massachusetts company equipment customarily used for growing marijuana. The officers intended to conduct a "knock and talk" in order to secure the defendant's consent to search the premises.

Four officers arrived at the property in two vehicles. Lieutenant Joel Johnson, of the Kingston Police Department, and Chris St. Onge, a deputy sheriff for Rockingham County, approached the home while Detective George Wickson and another officer remained in the driveway to inspect a detached garage where they believed marijuana was present. The driveway is paved and extends between the house and the detached garage. The court found that the pavement "completely envelop[s] the garage." Wickson testified at a suppression hearing that, when he exited his vehicle, he was "overcome immediately by the fresh smell of fresh growing marijuana." He testified that, upon walking toward the garage—unimpeded by any object blocking his path—he observed that its windows were covered, and that there was mildew on its doors and windows. He walked around the perimeter of the garage and observed an electric meter spinning quickly as well as a smoke stack and blower. These observations were, in his experience, consistent with what the court called a "marijuana grow operation."

Meanwhile, Johnson and St. Onge knocked on the door to the defendant's house. Melissa Socci, the defendant's wife, answered the door and allowed the officers into her home after they identified themselves. The officers asked for consent to search the property, but Melissa declined, explaining that she would not consent without talking to her husband. During this conversation, the officers received a radio communication from Wickson regarding his observations of the garage. Melissa testified that she overheard this communication, and Johnson confirmed that she may well have overheard the radio transmission. Melissa called her husband at his workplace, and St. Onge asked the defendant, over the phone, for his consent to search the premises. The defendant declined, but said he would return home to speak with the officers.

The defendant arrived approximately twenty minutes later and spoke with Johnson and St. Onge in the driveway. Johnson informed the defendant of the evidence against him, and asked for consent to search the garage. In addition, the defendant spoke privately with St. Onge. The parties offered conflicting testimony regarding the events that transpired next. The defendant and Melissa offered nearly identical testimony that, in Melissa's words, Johnson threatened the defendant that he would "leave an officer on the premises[,] ... get a search warrant and ... come back with sledgehammers and crowbars, and that things would get messy, people would be arrested" if the defendant did not consent. Melissa further testified that, when she asked St. Onge whether the officers would take her children, he replied, "Just as long as you cooperate, no one[ ] wants to take your kids." Johnson recalled that he assured the defendant that no one would be arrested that day and explained that an indictment would follow if incriminating evidence was found on the property. He testified that no threats were made, and that the defendant appeared calm as he was read his Miranda rights, see Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and reviewed a consent form the officers provided.

The defendant ultimately consented to a search of his property by signing the consent form. The officers searched the premises after the defendant provided them with a key to the garage; they found a "marijuana grow operation" in the garage and other incriminating evidence within the home. The defendant was indicted by a Rockingham County grand jury on two counts under the Controlled Drug Act: (1) knowingly manufacturing at least five pounds of marijuana; and (2) knowingly possessing at least five pounds of marijuana with the intent to sell. See RSA 318–B:2, I.

The defendant filed a motion to suppress "all evidence ... acquired as a result of the entry upon [his] property, ... and the subsequent search" of the curtilage of his home, on the grounds that the search "was not done pursuant to any warrant or pursuant to any recognized exception to the warrant requirement." The suppression hearing included testimony from Wickson, Johnson, the defendant, and Melissa Socci. The trial court denied the motion and determined that: (1) the defendant's driveway was "semi-private" and thus "not deserving of traditional curtilage protection"; (2) the defendant had no reasonable expectation of privacy in the exterior of his garage; and (3) his consent to search "was given freely, knowingly, and voluntarily." He was found guilty on both counts. This appeal followed.

On appeal, the defendant argues that the trial court erred in denying his motion to suppress. He argues that the initial, warrantless search of the exterior of his garage violated his 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, and that "[t]he unlawful search tainted [the] consent" that he later provided to search his property. Alternatively, he argues that, "even if the [initial] garage search was not unlawful, when the totality of the circumstances is considered, [his subsequent] consent [to search] was not given freely, knowingly and voluntarily," but "[i]nstead, ... was coerced."

The State asserts that "[t]he defendant's consent to search his residence was free, knowing, and voluntary, and was not tainted by any prior illegal police activity." In support of this claim, it first argues that "[t]he only evidence that the defendant was confronted with before he gave his consent to search was the strong odor of fresh marijuana, which [the police] lawfully smelled from the defendant's driveway." It contends that this "lawfully smelled odor" was detected during the first of "two distinct searches," when Wickson "stepped out of [his] vehicle"—which was "parked ... on a paved portion of the driveway between the defendant's home and his garage" constituting a "direct access route to the defendant's house"—and "immediately smelled a strong odor of fresh marijuana." The State contends that this first search violated neither Part I, Article 19 of the New Hampshire Constitution nor the Fourth Amendment to the United States Constitution. It argues that a second search, which it does not contend was lawful, occurred when Wickson "proceeded to walk toward the defendant's garage" and made visual "observations from the area around [the] garage." The State concludes that, "[e]ven if these observations ... were an unconstitutional search, the defendant's consent was not vitiated because his consent was not obtained by exploitation of the unlawful search[, and,] ... [a]lternatively, the primary taint of that search was purged." Finally, the State argues that "[t]he totality of the circumstances establishes that the defendant gave free, knowing, and voluntary consent to search his residence."

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. Dalton, 165 N.H. 263, 264, 75 A.3d 1140 (2013), cert. denied , ––– U.S. ––––, 134 S.Ct. 1313, 188 L.Ed.2d 330 (2014). Because the defendant places significant emphasis upon whether the pre-consent search was lawful under the Federal Constitution, we first address this issue under the Federal Constitution. See State v. McLeod, 165 N.H. 42, 47, 66 A.3d 1221 (2013).

The Fourth Amendment to the United States Constitution provides, in pertinent part, that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated." U.S. CONST. amend. IV. "It is a basic principle of Fourth Amendment law that searches and seizures inside a home without a warrant are presumptively unreasonable." Brigham City v. Stuart, 547 U.S. 398, 403, 126 S.Ct. 1943, 164 L.Ed.2d 650 (2006) (quotations omitted). "Nevertheless, because the ultimate touchstone of the Fourth Amendment is ‘reasonableness,’ the warrant requirement is subject to certain exceptions," id. including objectively reasonable searches under exigent circumstances, see id. and objectively reasonable searches "with the voluntary consent of an individual possessing authority" over the premises, Georgia v. Randolph, 547 U.S. 103, 109, 126 S.Ct. 1515, 164 L.Ed.2d 208 (2006).

In its recent decision in Florida v. Jardines, ––– U.S. ––––, 133 S.Ct. 1409, 185 L.Ed.2d 495 (2013), the United States Supreme Court clarified that the Fourth Amendment ...