State v. Wong

• Decision Date: 17 December 1993
• Docket Number: No. 92-302,92-302
• Citation: 635 A.2d 470,138 N.H. 56
• Parties: The STATE of New Hampshire v. Allan Y. WONG.
• Court: New Hampshire Supreme Court

Page 470

635 A.2d 470

138 N.H. 56

The STATE of New Hampshire v. Allan Y. WONG.

No. 92-302.

Supreme Court of New Hampshire.

Dec. 17, 1993.

Jeffrey R. Howard, Atty. Gen. (Mark D. Attorri, Asst. Atty. Gen., on the brief and orally), for State.

Fredella & Wheeler, Somerville, MA (Anthony M. Fredella on the brief and orally), for defendant.

HORTON, Justice.

The defendant, Allan Y. Wong, was convicted of receiving stolen property, RSA 637:7, I (1986), in connection with his purchase of an outboard motor. On appeal, he argues: (1) that the admission of evidence obtained following a warrantless search and warrantless arrest violated his federal and State constitutional rights; (2) that the State failed to prove that the outboard motor was stolen and that the defendant knew it was stolen; (3) that the prosecutor's inflammatory remarks during closing arguments prejudiced the defendant; and (4) that the Superior Court (Mohl, J.) erred by disqualifying a juror, and by failing to immediately dismiss the juror once he had been disqualified. We affirm.

On July 7, 1990, the defendant brought a Boston Whaler boat mounted with a Johnson outboard motor to Northbound Honda, Inc., a marine dealership in North Conway. The defendant, an attorney from Somerville, Massachusetts, requested that Northbound replace the Johnson with a Yamaha outboard motor he had brought with him. The Yamaha, which was packaged in the bottom half of its original shipping crate, was missing its propeller and other parts. The defendant left his business card and telephone number and arranged for Northbound to call him when it had completed the work. Sometime later, Larry Grace, Northbound's service manager, checked the Yamaha's serial number so that he could order parts missing from the motor. When Grace compared the Yamaha's serial number against a printout of outboard motors reported stolen four months earlier from Baert Marine of Danvers, Massachusetts, he discovered that the Yamaha had been stolen. Grace contacted Baert Marine, which in turn notified the police.

On July 20, 1990, Sergeant Jeffrey Dicey of the North Conway Police Department visited Northbound. He was taken into Northbound's workshop where the Yamaha was positioned on a work stand. Dicey confirmed that the Yamaha's serial number was included on the list of outboard motors stolen from Baert Marine. Grace told Dicey that the defendant had delivered the Yamaha, as well as the Boston Whaler and Johnson outboard motor, to Northbound. Grace then brought Dicey outside of the workshop to a separate, fenced-in area and showed him the Boston Whaler and the Johnson. Dicey testified that as he approached the Boston Whaler, he noticed that the serial number on the Johnson's cover was missing. Grace then removed the cover, and Dicey determined that the serial number mounted on the inside of the motor was also missing. Dicey and another police officer returned to Northbound later that day to photograph the boat and the two motors. Dicey indicated that the State was seizing these items. The police subsequently learned that the Boston Whaler and the Johnson outboard motor had also been reported stolen.

On July 27, 1990, the defendant received a telephone call from Sgt. Dicey, who identified himself as a Northbound employee and told the defendant that his boat was ready. When the defendant arrived at Northbound on the following day, he was met by Dicey, who disclosed that he was a police officer and asked the defendant if he was aware that the Yamaha had been stolen. The defendant said that he had not known the motor had been stolen. He stated that he had purchased the motor from Mystic Appliance in Charlestown, Massachusetts, for $1,200, but noted that he did not have a sales receipt. Dicey immediately arrested the defendant, who was subsequently indicted on two class A felony charges of receiving stolen property. The first indictment pertained to the Yamaha, and the second pertained to the Boston Whaler and the Johnson. The State later entered nolle prosequi on the felony charge relating to the Boston Whaler and the Johnson; the defendant's conviction for receiving stolen property concerned the Yamaha.

I. Motion to Suppress

On appeal, the defendant first contends that the warrantless seizure of the Yamaha motor was unreasonable under both part I, article 19 of the New Hampshire Constitution and the fourth amendment to the United States Constitution, and that this evidence should have been excluded from trial. We address the defendant's State constitutional claim first, State v. Ball, 124 N.H. 226, 231, 471 A.2d 347, 350 (1983), citing federal law only to aid our analysis. State v. Maya, 126 N.H. 590, 594, 493 A.2d 1139, 1143 (1985).

It is well-settled under the fourth amendment that where a third party validly consents to a search, the police may seize without a warrant any items which they have probable cause to believe are contraband, fruits of a crime, instrumentalities, or "mere evidence." See Frazier v. Cupp, 394 U.S. 731, 740, 89 S.Ct. 1420, 1425, 22 L.Ed.2d 684 (1969); Clarke v. Neil, 427 F.2d 1322, 1324 (6th Cir.1970). Part I, article 19 of the State Constitution does not require a higher standard. The defendant does not contend--nor could he--that after inspecting the motor's identification number, Sgt. Dicey did not have probable cause to believe the motor stolen. The sole inquiry for the validity of the motor's seizure, then, is whether there was valid third-party consent to the search. We find that there was.

We do not inquire into the reasonableness of a search when the police have received valid consent to search. See Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 2043, 36 L.Ed.2d 854 (1973); State v. Coyman, 130 N.H. 815, 818, 547 A.2d 307, 309-10 (1988). Consent to search is valid against a defendant when conferred by a third party with "common authority over or other sufficient relationship to the premises or effects sought to be inspected." United States v. Matlock, 415 U.S. 164, 171, 94 S.Ct. 988, 993, 39 L.Ed.2d 242 (1974); see Coyman, 130 N.H. at 819, 547 A.2d at 310. While the issue of third-party consent by a bailee is one of first impression under part I, article 19 of the State Constitution, we find fourth amendment jurisprudence instructive. The general rule distilled from fourth amendment cases is that the validity of bailee consent turns primarily on "the extent to which the bailor made efforts to secure, even as against the bailee, the privacy of his effects." 3 W. LaFave, Search and Seizure § 8.6(a) (2d ed. 1987); compare United States v. Presler, 610 F.2d 1206 (4th Cir.1979) (illegal search where bailee consented to search of locked briefcase whose keys had been retained by defendant) with United States v. Falcon, 766 F.2d 1469 (10th Cir.1985) (valid consent by brother to playing of tape marked "confidential" that defendant had left in brother's room).

Turning to the facts of the present case, we note that the defendant made no efforts to secure the privacy of the outboard motor. To begin with, the defendant delivered the motor to a business with whom he had no prior dealing. The motor was not enclosed in a container--locked or otherwise. Further, it was implicit in the defendant's instructions to switch the motors that Northbound would necessarily become thoroughly acquainted with the motor, and would perhaps refer to the serial number for such purposes as ordering parts. Finally, nothing in the record suggests that the defendant ever instructed Northbound not to show the motor to anyone else. Given these facts, we hold that Northbound validly consented to the police search.

Because the Federal Constitution provides no more protection than the State Constitution, we need not separately consider the defendant's federal claim. Maya, 126 N.H. at 594, 493 A.2d at 1143.

The defendant next contends that his arrest was unlawful because it was not supported by probable cause, and therefore his statements concerning the amount he paid for the Yamaha and the fact that he did not have a receipt for the motor should have been suppressed. The defendant relies upon part I, article 19 of the New Hampshire Constitution and the fourth amendment to the United States Constitution. Again, we begin by addressing the defendant's State constitutional claim, see State v. Ball, 124 N.H. at 231, 471 A.2d at 350, and because federal law is not more favorable to the defendant in this area, we do not go on to analyze his federal constitutional claim. Maya, 126 N.H. at 594, 493 A.2d at 1143.

The New Hampshire Constitution 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." N.H. CONST. pt. I, art. 19. A threshold question is whether the defendant had been arrested within the meaning of part I, article 19 when he made the statements at issue. If an arrest had occurred, evidence independent of the post-arrest statements must have existed to provide probable cause for the arrest. See State v. Chaisson, 125 N.H. 810, 819, 486 A.2d 297, 304 (1984). Moreover, if probable cause was lacking, the defendant's subsequent statements would not cure what was otherwise an unlawful arrest, and any evidence seized following that arrest would be inadmissible at trial. See id.

A suspect is considered seized for the purposes of part I, article 19 if, "in view of all the circumstances ... a reasonable person would have believed that he was not free to leave." State v. Noel, 137 N.H. 384, 388, 628 A.2d 692, 694-95 (1993) (quotation omitted). Assuming, for the purposes of this appeal, that the defendant had been seized when he made the statements at issue, we must consider further whether he had been arrested. "Not every seizure ... rises to the level of an arrest." Id. at 388, 628 A.2d at 695 (quotation omitted). A "reasonable perception of loss of freedom to leave...