State v. Theodosopoulos

• Decision Date: 17 August 1979
• Docket Number: No. 78-248,78-248
• Citation: 409 A.2d 1134,119 N.H. 573
• Parties: The STATE of New Hampshire, v. Thomas H. THEODOSOPOULOS.
• Court: New Hampshire Supreme Court

Page 1134

409 A.2d 1134

119 N.H. 573

The STATE of New Hampshire, v. Thomas H. THEODOSOPOULOS.

No. 78-248.

Supreme Court of New Hampshire.

Aug. 17, 1979.

Thomas D. Rath, Atty. Gen. (Peter W. Heed, Asst. Atty. Gen., orally), for the State.

Wadleigh, Starr, Peters, Dunn & Kohls, Manchester (Eugene M. Van Loan, III, Manchester, orally), for defendant.

BROCK, Justice.

This case requires us to consider the constitutionality of a search conducted by the Manchester Police Department after a sniper shot was fired into the Manchester Police Station, seriously wounding two persons. The defendant was indicted on two counts of attempted manslaughter under RSA 630:2, 629:1. In this interlocutory appeal, the defendant excepts to the ruling of the Hillsborough County Superior Court (Flynn, J.) denying his motion to suppress physical evidence taken from his apartment and any statements he may have made at the time of the search.

Shortly after midnight on the morning of December 31, 1977, Mrs. Dorothy Perreault came to the Manchester Police Station to complain that her son had threatened her with a gun. At approximately 12:50 a. m., while she was standing at the desk in the lobby talking with police Captain Evangelos P. Xiggoros, a shot was fired. The bullet struck and seriously wounded both Mrs. Perreault and Captain Xiggoros.

The other police officers in the station reacted immediately by turning off all lighting in the building. They summoned several off-duty officers to the station, including a "Special Reaction Team" trained to respond to emergencies such as sniper fire. Because the shot was initially assumed to have been fired from within the station, the officers surrounded the station with patrol cars and uniformed officers, and thoroughly searched the interior of the station. They feared that the unknown assailant, whom they characterized as a sniper, remained positioned to fire additional shots. When Sergeant Louis Durette arrived, at 1:20 a. m., he observed policemen concealed behind cement walls and in doorways, and an officer called out to him, "Sarge, keep down. We don't know where the sniper is."

By approximately 1:45 a. m., the interior search was completed and the officers realized that the bullet had in fact come from outside the station. One group of officers then left the station environs to attempt to locate the Perreault boy as a possible suspect. A second group attempted to reconstruct the shooting to determine where the bullet had come from. A large bullet hole was discovered ten or eleven feet above the lobby floor in one of the large panes of glass that form the front wall of the police station facing Chestnut Street. With this new information, Sgt. Durette and the eighteen-man special reaction team first searched a large abandoned church building on the corner of Chestnut and Merrimack Streets, directly across Chestnut Street from the police station. When they found no evidence of the assailant, they returned to the station. Sgt. Durette and two other officers then lined up the bullet hole in the window with the victims' locations when they had been hit. They concluded that the shot had probably been fired from a row of multi-storied apartment buildings extending westward down Manchester Street from the corner of Chestnut Street. The rear windows and fire escapes of these buildings faced a wide parking area and an alley that separated them from the abandoned church. There was a direct sight line from the front wall of the police station down the alley to the rear windows on the second and third stories of the apartment buildings. The special reaction team immediately began a methodical search of that row of buildings, both rooftops and interiors, beginning with a small store located on the corner closest to the police station. By that time it was about 2:05 a. m., one hour and fifteen minutes after the shot had been fired.

The search of the first few buildings yielded nothing. At about 2:15 a. m., eight officers entered a four-story apartment building at 83 Manchester Street. The ground floor and cellar were found to be clear, and an officer was posted to prevent anyone from leaving the building. The officers awakened the occupant of the second floor apartment, told her that there had been a shooting, and searched her apartment with her consent, without finding any sign of an assailant. She told them that she had not heard any shots or noise from upstairs.

Sgt. Durette and the special reaction team then moved upstairs and pounded on the third-floor apartment door. From under the doorway, they observed that a light was on in the apartment, but heard no noise or response. Sgt. Durette then went down to the second-floor apartment to question its occupant further. According to Sgt. Durette, she told him that the third-floor resident "must be home" because his truck was parked outside. Sgt. Durette returned to the third floor and continued pounding on the door. He sent other members of his team to search the fourth floor and roof. He also communicated with officers at the police station by walkie-talkie and asked that they obtain keys to the third-floor apartment from the owner of the building. One of the special reaction team squads wanted to move on to the next building, but Sgt. Durette was determined to complete the search of that building before moving on.

When the keys arrived, none fit the doors to the third-floor apartment. Sgt. Durette felt that "the whole situation was very grave, . . . people's lives were in danger." He kicked open the weakest door and entered the apartment. It was then about 2:50 a. m., two hours after the shooting and about one-half hour after the search had focused on the third-floor apartment.

Once inside the apartment, the officers fanned out, looking for the person who had fired the shot and whom they thought might be preparing to fire additional shots. Sgt. Durette later testified that he went into the room that had lights on and saw marijuana plants growing in pots on the floor. He proceeded through the kitchen, which faced the alleyway, into a bedroom, also on the alleyway, where he found the defendant, apparently asleep. On a bureau, in plain view, were empty .350 caliber shell casings and a rifle scope. Other officers, looking for a possible second person, entered the bathroom, adjacent to the kitchen and also facing the alleyway, and noticed a broken window from which there was a clear line of sight to the glass wall of the police station where the bullet had entered. The officers, with some difficulty, managed to arouse the defendant and took him to the police station where he was booked for the shooting.

A short while later, at about 6:00 a. m., relying primarily on facts discovered during the initial entry, the police obtained a search warrant from the Manchester District Court (Capistran, J.). While executing this warrant, the police thoroughly searched the defendant's truck and apartment, including a locked closet, and found and seized several items, including a pellet rifle, a 16-gauge shotgun, and a .350 caliber rifle. The defendant moved to suppress all physical evidence taken from his apartment and his truck, as well as any statements he might have made during and immediately after the initial search.

A warrantless search is Per se unreasonable and invalid, unless it comes within one of a few recognized exceptions. Mincey v. Arizona, 437 U.S. 385, 390, 98 S.Ct. 408, 57 L.Ed.2d 290 (1978); State v. Thorp, 116 N.H. 303, 308, 358 A.2d 655, 660 (1976), Citing Coolidge v. New Hampshire, 403 U.S. 443, 454-55, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); See U.S.Const. Amend. IV; N.H.Const. pt. I, art. 19. We have held that the State has the burden of proving by a preponderance of the evidence that a warrantless search was constitutionally permissible. State v. Osborne, 119 N.H. ---, 402 A.2d 493 (1979); See Arkansas v. Sanders, 442 U.S. 753, 758, 99 S.Ct. 2586, 61 L.Ed.2d 235 (1979). The recognized exception that the State relies on in this case is that of probable cause to search plus exigent circumstances. See Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967); State v. Beede, 119 N.H. ---, 406 A.2d 125 (1979) (decided this day). The probable cause required for a warrantless search under the exigent circumstances exception is at least as great as that required to support a warrant. State v. Thorp, 116 N.H. at 306, 358 A.2d at 658, Citing Wong Sun v. United States, 371 U.S. 471, 479, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); Cf. United States v. Ferrara, 539 F.2d 799 (1st Cir. 1976) (warrantless search requires more probable cause).

In the present case, it is not our task to review the propriety of the entire sweep search conducted by members of the Manchester Police Department or of their search of stores and apartments other than the one occupied by the defendant. United States v. Scott, 520 F.2d 697 n. 1 (9th Cir. 1975), Cert. denied, 423 U.S. 1056, 96 S.Ct. 788, 46 L.Ed.2d 645 (1976). Rather, the issue before us is whether, at the moment the police officers entered the defendant's apartment, they had probable cause to search that particular apartment in connection with the shooting incident. United States v. Scott, supra. The information gained as a result of the entry cannot, of course, be used to justify the entry itself. United States v. Di Re, 332 U.S. 581, 595, 68 S.Ct. 222, 92 L.Ed. 210 (1948).

The defendant correctly points out that, prior to the entry, the State did not have any information linking him personally to the crime that had been committed. This case is therefore different from traditional "hot pursuit" cases in which police officers have some clues to the identity of the person or persons they are chasing. See, e. g., Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967); State v. Thorp, 116 N.H. 303, 358 A.2d 655 (1976). Compare Dorman v. United States, 140 U.S.App.D.C. 313, 435 F.2d 385 (...