THE STATE OF NEW HAMPSHIRE. State of New Hampshire. Howard Simpson 02-S-1896 ORDER

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1 THE STATE OF NEW HAMPSHIRE ROCKINGHAM, SS. SUPERIOR COURT State of New Hampshire v. Howard Simpson 02-S-1896 ORDER This order addresses defendant s motions to suppress incriminating evidence and statements the State obtained from him pursuant to an allegedly illegal search and interrogation. The court held a hearing on these matters on March 26, After consideration of the parties arguments, the relevant law, and the evidence presented at hearing, the court GRANTS defendant s motions. For purposes of this order, the court finds the following relevant facts. On March 2, 2002, Officer Baker of the Salem Police Department was on duty when he observed defendant driving a white Mazda at fifty-two miles per hour near Nettles Plaza on South Broadway Street in Salem, New Hampshire. Because that area has a thirty mile per hour speed limit, Officer Baker made a traffic stop of defendant for speeding. Upon approaching defendant s vehicle, Officer Baker detected an odor of alcohol. Officer Baker inquired about the odor, and in response, defendant told Officer Baker he had consumed three beers that day. Officer Baker then asked defendant to submit to field sobriety testing, and defendant agreed. The field sobriety tests showed defendant was not impaired by alcohol.

2 During the sobriety tests, Officer Wagner of the Salem Police Department arrived. After finishing defendant s field sobriety tests, Officer Baker informed Officer Wagner about what had happened and then went to his police cruiser to verify the validity of defendant s driver s license. Ultimately, Officer Baker learned defendant s license was suspended, and he arrested defendant for driving a vehicle without a valid license. Officer Baker testified that it was at this time he gave defendant Miranda warnings and ascertained that defendant understood his Miranda rights. However, Officer Baker did not ask defendant to waive his Miranda rights at that time. After Officer Baker arrested defendant, Officer Wagner decided to tow defendant s vehicle because it was on a main thoroughfare and no other person was available to drive it away from the scene. Officer Wagner told defendant he intended to tow the vehicle and was going to do an inventory search of it. Officer Wagner testified that after explaining his intentions to defendant, he obtained defendant s consent to search the interior of the vehicle. However, Officer Wagner did not tell defendant he had the right to refuse permission to search his vehicle. Nor did Officer Wagner use a standard consent form to obtain defendant s consent. Officer Wagner subsequently asked defendant if he needed anything from the vehicle before it was towed. In response, defendant asked Officer Wagner to retrieve his black bag from the vehicle. When Officer Wagner went to get defendant s bag and perform the inventory search, he saw a suspiciously folded dollar bill in plain view on top of the center console in the front of the vehicle. Because he believed the dollar bill was 2

3 folded in the same way a drug user would fold it as a container for illicit drugs, Officer Wagner opened the bill and observed what appeared to be cocaine. After informing Officer Baker of his discovery, Officer Wagner performed an inventory search of defendant s vehicle, which he admitted did not technically comply with the police policy. Upon learning of Officer Wagner s discovery, Officer Baker told defendant about it. Defendant answered that he forgot the drugs were in his vehicle. Officer Baker then drove defendant to the police station where, according to Officer Baker, he asked defendant to sign a written Miranda waiver. However, the Miranda waiver is incomplete. The waiver form calls for the signatures of two witnesses, which the police failed to obtain. Moreover, the form requires that the exact time and date of defendant s arrest as well as his signing of the waiver be filled in, but in this instance that information is inexplicably missing. In fact, the only date on the form indicates it was processed on March 4, 2002, two days after defendant s motor vehicle stop and arrest. Among other things, defendant argues that he did not consent to the search of his vehicle, that Officer Wagner s search was invalid because he admittedly did not execute it according to the police inventory policy, and that Officer Wagner s search of the dollar bill containing the drugs was improper because the officer failed to obtain a warrant to search the container. Defendant also argues that the State has not met its burden of proving that defendant voluntarily, knowingly, and intelligently waived his Miranda rights before making incriminating statements. The State contends that defendant fully consented to the search which was 3

4 properly conducted in accordance with the police inventory policy. In addition, the State proffers that Officer Wagner found the suspiciously folded bill in plain view when defendant asked him to retrieve the bag from the vehicle, thereby validating his search. Furthermore, the State argues that Officer Baker properly gave defendant the Miranda warnings and appropriately ascertained that defendant understood them and waived his rights accordingly. The state constitution provides at least as much protection as the federal constitution provides in these areas. See State v. Westover, 140 N.H. 375, 379 (1995). Accordingly, the court will address defendant's claims under the state constitution, referring to federal authority only to assist in its analysis. See State v. Ball, 124 N.H. 226, 232 (1983). Part I, Article 19 of the New Hampshire Constitution states that every citizen has "a right to be secure from all unreasonable searches and seizures of his person, his house, his papers, and all his possessions." To this end, it is well settled in New Hampshire that all warrantless searches are per se unreasonable unless they fall within one of the judicially recognized exceptions, State v. Graca, 142 N.H. 670, 673 (1998). One of these exceptions is the defendant s consent to the search. See State v. MacDonald, 129 N.H. 13 (1986). Another is that the incriminating evidence was found in plain view of the Officer who made the seizure. See State v. Smith, 141 N.H. 271 (1996). Yet another is that the search was conducted and the seizure was made in accordance with a police inventory policy. See State v. Finn, 146 N.H. 59 (2001). The State has the burden of proving the validity of the search under any of the exceptions to 4

5 the warrant requirement. State v. Brunelle, 145 N.H. 656, 659 (2000). In this case, the State has not met its burden of proving that Officer Wagner s warrantless search fell within one of the judicially recognized exceptions to the warrant requirement upon which the State is relying. As to the inventory search exception, the court agrees with defendant that the search was not properly conducted according to the police inventory policy. Officer Wagner candidly acknowledged he technically did not comply with the inventory policy. Moreover, the State did not even prove what the provisions of the policy were. See Finn, 146 N.H. 59. As to the consent exception, the State must prove "by a preponderance of the evidence that the defendant's consent was free, knowing, and voluntary." State v. Prevost, 141 N.H. 647, 650 (citing State v. Osborne, 119 N.H. 427, 433 (1979)). "Voluntary consent is a question of fact that the trial court must determine from the totality of the circumstances." State v. Diaz, 134 N.H. 662, 664 (1991). The defendant's consent is determined by his outward, objective manifestations, rather than any subjective or unarticulated beliefs. State v. Baroudi, 137 N.H. 62, (1993). Having considered the totality of the circumstances, the court cannot find defendant s consent was free, knowing and voluntary. Specifically, Officer Wagner testified that he told defendant he was going to tow defendant s vehicle and perform an inventory search of it. It is unclear why Officer Wagner would then ask for defendant s consent to search the vehicle after telling defendant he was going to search it anyway. From these circumstances, it appears that as a practical matter defendant had no real 5

6 choice as to the search of the vehicle, because, according to Officer Wagner, he would have searched the vehicle regardless of defendant s consent. Therefore, defendant s consent was effectively meaningless and was not the product of a free and voluntary act. Furthermore, the New Hampshire Supreme Court has admonished that it is good policy for police officers to advise persons that they have a right to refuse to consent to a warrantless search. State v. Hight, 146 N.H. 746, 751 (2001). Not only did Officer Wagner fail to advise defendant of his right to refuse consent to a search, but he also failed to use the appropriate form to document defendant s consent. For the reasons stated above, the State has failed to show that defendant s consent to search the vehicle was free, knowing and voluntary. As to the plain view exception, defendant did ask Officer Wagner to retrieve his bag from the vehicle. When Officer Wagner entered the vehicle to do so, he found the suspiciously folded dollar bill in plain view. To justify a seizure of evidence under the plain view exception, the State must prove by a preponderance of the evidence that (1) the initial intrusion which afforded the view [was] lawful; (2) the discovery of the evidence [was] inadvertent; and (3) the incriminating nature of the evidence [was] immediately apparent. Smith, 141 N.H. at 275 (citation omitted). It is undisputed that Officer Wagner s initial intrusion into defendant s vehicle allowing his discovery of the evidence was lawful because defendant asked Officer Wagner to get the bag from inside the vehicle. It is also undisputed that Officer Wagner s discovery of the evidence was inadvertent. 6

7 The parties do dispute the third requirement of the plain view exception, the apparently incriminating nature of the evidence. According to defendant, it was not immediately apparent that the folded dollar bill contained an illegal drug, especially considering the circumstances giving rise to defendant s arrest. On the other hand, according to the State, it was immediately apparent to Officer Wagner that his discovery involved incriminating evidence, given his training and experience as a police officer. As to this facet of the parties dispute, the court agrees with the State. Officer Wagner testified that the bill was folded in such a way that it looked like a container for drugs such as he had observed during his police training. See Ball, 124 N.H. at 236 (police officers expertise and experience relevant to plain view exception). According to Officer Wagner, because of the way the bill was folded, he was able to identify it immediately as a container for illegal drugs. In fact, the only times he has ever seen a bill folded in that way was when the bill was intended to be used as a container for illegal drugs. The illegal character of the specially folded bill was immediately apparent to the officer, and based on his expertise, Officer Wagner had probable cause to believe defendant was using it in the commission of a criminal offense. Therefore, Officer Wagner s seizure of the apparently incriminating evidence was proper. Nevertheless, Officer Wagner s warrantless search of the folded bill, that is, his opening it up, was unlawful. Officer Wagner himself described the folded bill as a container for drugs. Any search that fails to fall into one of the narrow exceptions to the warrant requirement is per se unreasonable. See Brunelle, 145 N.H. at 659. In 7

8 particular, a police officer may not open an opaque container without first obtaining a warrant, see State v. Webber, 141 N.H. 817, (1997) (warrantless search of container during investigatory stop invalid); cf. State v. Denoncourt, 149 N.H., (Apr. 11, 2003) (slip op. at 4-5) (warrantless search of container pursuant to community caretaking exception invalid because no guidance to limit police discretion), except when he has consent, see State v. Sawyer, 147 N.H. 191 (2001); Baroudi, 137 N.H. 62, when his department s inventory policy allows it, see Finn, 146 N.H. 59, or when it is necessary for the officer s own protection, the defendant s, or that of others, see State v. Harlow, 123 N.H. 547, 552 (1983). This is not a case where the contents of the incriminating container were themselves in plain view. The State has not claimed in any way that Officer Wagner could see inside the folded bill, see, e.g., State v. Maguire, 129 N.H. 165 (1987), or feel or smell its contents, cf. 1 RICHARD B. MCNAMARA, N.H. PRACTICE, CRIMINAL PRACTICE AND PROCEDURE 92 & 97 n.93 (1997 & Supp. 2002) (referencing Donald M. Zupanec, Annotation, Odor of Narcotics as Providing Probable Cause for Warrantless Search, 5 A.L.R. 4th 681 (1981)). Under the present state of the law in New Hampshire, a warrantless search of an opaque container seized under the plain view exception is per se unreasonable unless it falls within one of the narrow exceptions to the warrant requirement. See Brunelle, 145 N.H. at 659. Therefore, the warrantless search of the container was unreasonable and in violation of Part I, Article 19 of the New Hampshire Constitution. State v. Webber, 141 8

9 N.H. 817, (1997). Accordingly, the court will suppress the evidence obtained as a result of the warrantless search, including the inculpatory statements defendant made to the police after Officer Baker told him that Officer Wagner had discovered the illegal drugs in the vehicle. The statements must be suppressed as fruit of the poisonous tree. See State v. Gravel, 135 N.H. 171 (1991). For the reasons stated above, defendant s motions to suppress are GRANTED. So ORDERED. April 23, 2003 DATE PHILIP S. HOLLMAN, Presiding Justice 9