THE STATE OF NEW HAMPSHIRE. The State of New Hampshire. Thomas Auger Docket No. 01-S-388, 389 ORDER ON DEFENDANT'S MOTION TO SUPPRESS

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1 THE STATE OF NEW HAMPSHIRE STRAFFORD, SS. SUPERIOR COURT The State of New Hampshire v. Thomas Auger Docket No. 01-S-388, 389 ORDER ON DEFENDANT'S MOTION TO SUPPRESS The defendant is charged with one count of Manufacture of a Controlled Drug and one count of Possession of LSD. He seeks to suppress statements he made to the New York State Police on July 20, 1999, claiming the police failed to secure a knowing, voluntary and intelligent waiver of his Miranda rights. In addition, he claims the statements he made were not the product of his rational intellect or free will, and thus were involuntary. As a result, he seeks to suppress evidence the police collected from his home in Rochester as fruits of the illegally obtained statements. For the reasons stated in this order, the defendant's motion is granted. FACTS On Friday, July 16, 1999, the defendant and his friends traveled to New York State for a weekend Phish concert. They arrived at the concert location, Loring Airport, Oswego, New York, sometime that afternoon. Chase Newell, the defendant's friend who drove to the concert, testified that sometime the next day, the 1

2 defendant began to act strange. 1 Specifically, Newel testified that the defendant seemed agitated, began accusing his friends of some conspiracy and became paranoid about the police following him. In addition, the defendant claimed members of the band were directing lyrics to him as if to send him personal messages. As the day progressed, the defendant's behavior worsened. Newel testified that the defendant went to bed early Saturday evening, but was unable to sleep. The defendant appeared uncomfortable and not himself. The next morning the defendant appeared disoriented. Newel testified that the defendant's pupils were dilated and his eyes were darting back and forth. The defendant's condition continued to deteriorate until Newel encouraged the defendant to rest in the car, sometime Sunday night. Newel and the other friends returned to the concert. Newel testified that the defendant's behavior was at its worst at around 6:00 p.m. Sunday night when Newel brought the defendant to rest in the car. The defendant testified that on Saturday he began to feel "physically different;" his heart was racing, he felt shaky, agitated and nervous, and he was having difficulty expressing himself. Saturday night he was sweating and could not eat. He testified that he believed someone at the concert had injected him with hallucinogenics. 1 The court finds Newel's testimony credible. 2

3 The defendant testified that the next day, Sunday, he felt worse. He thought people, including his friends "were after him." He testified that he thought the police were at the concert looking for him and that members of the band were attempting to contact him through their music. The defendant testified that, when his friends brought him back to the car in an effort to settle him down, he became more paranoid, afraid that his friends were trying to kill him. Sometime after midnight, he left the car to get away from his friends, whom he believed were part of a conspiracy. The defendant further testified that over the next 24 to 36 hours, he hitch-hiked and slept in the woods. He said he felt delusional and was talking to himself and the animals. He continued to believe everyone was watching him and that the police were following him. In between rides, the defendant walked. Eventually, he ended up near the State police barracks in Westport, N.Y., approximately 250 miles away from the concert site. From the time he left the concert until arriving at the police barracks, the defendant had not eaten. The defendant testified that because he believed the police had been following him all weekend, he decided to turn himself in. When he arrived at approximately 9:00 a.m., he asked the police whether they were looking for him and whether they wanted to arrest him. According to the defendant, the police then asked for the defendant's license, took his bag and searched him. The State 3

4 presented no evidence to rebut this testimony. The defendant was then escorted to Investigator Burns' office, where the defendant called his father to tell him he would not be at work and that he might not be at home for a long time. The defendant apologized and said, "this is too big not to be gone for a long time." The defendant also told his father, "it involves a lot of drugs," and that he wanted his father to know about it before it was on T.V. Several hours later, the defendant's father called Attorney Arthur Hoover to ask for advice. Meanwhile, Investigator Burns met with the defendant in his office. The defendant testified that he told Burns he had been walking all day and did not feel right. The defendant also testified that he asked to go to the hospital. Though Burns testified that the defendant did not ask for medical assistance and did not appear to be in any kind of physical distress, he admitted that the defendant asked Burns to check the defendant's back for a needle mark. Burns then asked the defendant why he had come to the police department. The defendant testified that he said to Burns, "you know who I am." In addition, the defendant testified that Burns kept asking him about "bodies." The defendant told Burns that he believed the police had an active arrest warrant for his arrest. Eventually, the defendant told Burns that he had been growing plants at his home in Rochester. 4

5 Burns testified that he then read the defendant his Miranda warnings from a standard police card. Burns testified that the defendant agreed to speak with him, however, Burns did not secure a waiver in writing. In contrast, the defendant testified that the Burns did not read him his Miranda rights. Burns then asked the defendant to tell him what made him think there were warrants out for his arrest. The defendant gave a verbal statement admitting to growing marijuana plants at his home in Rochester, New Hampshire and stated that he believed a warrant had issued in his home town the week before. Burns then contacted the Rochester Police Department and determined there were no active search or arrest warrants. The detective did not, however, inform the defendant there were no active warrants for his arrest until the defendant completed his statement. Burns asked the defendant if he would agree to a search of his residence, after the Rochester Police were unable to gain entry into the defendant's home. The defendant agreed and after talking to a detective from the Rochester Police Department, signed a consent to search form. Detective Burns then asked the defendant to dictate a statement which Burns typed on a form. Burns testified that he again showed the defendant his Miranda rights which were contained in the form. The defendant described the events that lead up to his appearance at the police department, but did not directly confess to possessing drugs. At approximately 1:25 p.m. the 5

6 defendant refused to continue, indicating his desire to speak with a lawyer. In addition, the defendant refused to sign the portion of the form indicating he waived his Miranda rights. Throughout the interview, Burns did not tell the defendant he was in custody. Only after the defendant asserted his right to an attorney, however, did Burns tell the defendant he was free to leave. At that time, Burns told the defendant he could have left the police station at any time during the interview. Though the defendant appeared coherent, Burns testified that the defendant said he thought the police were following him and that every license plate containing an "A" indicated that the police were in the car. Burns described his encounter with the defendant as unusual. Sometime after the defendant refused to sign the waiver portion of the statement, Attorney Arthur Hoover called the station and spoke with the defendant. Attorney Hoover testified that the conversation with the defendant was bizarre. The defendant sounded hyper and asked Attorney Hoover "rapid-fire" questions. Specifically, the defendant asked Attorney Hoover the names of his children and where they were born; as if to confirm the identity of Attorney Hoover. The defendant appeared paranoid and afraid of who Attorney Hoover might be. In addition, the defendant told Attorney Hoover that someone was after him. While the defendant was at the police barracks, Burns provided the defendant with lunch. The defendant testified that 6

7 when he went to the bathroom and when he went outside to smoke, he was accompanied by a police officer. After the defendant asserted his right to a lawyer and refused to sign the waiver portion of the typed statement, the police told him he was free to go. The defendant waited, unaccompanied, outside the station for his father to pick him up. The defendant's father, Paul Auger, arrived later that evening. According Paul Auger, the defendant appeared paranoid. He told his father the phones were bugged, that the FBI was watching them and that airplanes had been surveilling him earlier in the day. In addition, the defendant told his father that all his friends were going to kill him or beat him up. As a result of the defendant's statements and his consent to search, the police in Rochester discovered marijuana plants and liquid acid at the defendant's home. The defendant now seeks to suppress the drugs seized and the statements he made to Detective Burns. ANALYSIS The defendant argues that the State has failed to prove a knowing, voluntary and intelligent waiver of his Miranda rights and thus, the statements and evidence collected must be suppressed. The State objects and argues first, that the defendant was not in custody and second, if the court finds he was in custody, that he knowingly, voluntarily and intelligently waived his Miranda rights. 7

8 An individual is seized for the purposes of the fourth and fourteenth amendments to the Federal Constitution, "'if, in view of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.'" State v. Green, 133 N.H. 249, 257 (1990) (citations omitted.) "In the absence of formal arrest, the trial court must determine whether a suspect's freedom of movement was sufficiently curtailed by considering 'how a reasonable man in the suspect's position would have understood his situation.'... In reaching its decision, the trial court should consider, among other factors, the suspect's familiarity with his surroundings, the number of officers present, the degree to which the suspect was physically restrained, and the interview's duration and character." Id. at 258 (internal quotations and citations omitted). The facts in this case demonstrate that the defendant was in custody at the time he was brought to detective Burns' office and throughout the interview process. First, when the defendant arrived at the barracks and asked the police whether they were looking for him, the police searched him, retained his license and seized his overnight bag. Second, at no time before or during the questioning did any officers tell the defendant he was free to leave the police barracks. Though they did not tell him he was in custody, they failed to dispel his belief that there was an active arrest warrant in place for his arrest. Indeed, Detective Burns testified that he knew as early as 9:30 a.m. that no arrest warrant existed, yet he waited to tell the defendant until after 8

9 the defendant made incriminating statements. Finally, officers accompanied the defendant to the bathroom, and when the defendant wanted to smoke, officers refused to permit him to do so outside; instead, they accompanied him to the police garage. Based on the factual circumstances of this case, the court finds that a reasonable person in the defendant's position would not feel free to leave the station. Therefore, the defendant was in custody at the time he entered the police station. Once the court determines the defendant was in custody, statements made in response to police interrogation are not admissible unless the defendant has been advised of and has waived his Miranda rights. In this case the defendant testified that Burns did not read him his Miranda rights until after the defendant dictated a statement, at which time the defendant refused to waive his rights. In contrast, Burns testified that he read the defendant his Miranda rights from a standard New York State Miranda card at the beginning of the interview and that the defendant agreed to speak with the detective at that time. The State produced a Miranda card during the suppression hearing. The card, however, contained no written indication that the defendant received his rights, understood them and waived them. While such written confirmation is not required, the State's argument that the defendant was read and waived his rights is undermined by the defendant's refusal four hours later, to sign 9

10 a written waiver, even before his attorney called the police barracks and advised the defendant to remain silent. Based on these facts, the court cannot conclude that the defendant was read his rights at the beginning of the interview. Assuming Burns did read the defendant his rights at the beginning of the interview, the State has failed to meet its burden of proving that the defendant knowingly, voluntarily and intelligently waived his rights. "Before the State can introduce a defendant's statement into evidence, the State must prove beyond a reasonable doubt that the defendant knowingly, intelligently, and voluntarily waived his Miranda rights." State v. Zysk, 123 N.H. 481, 486 (1983). (Citations omitted.) "One's mental and physical conditions are crucial in determining whether a knowing, intelligent, and voluntary waiver has occurred." Id. In this case, Burns testified that while coherent, the defendant appeared tired and was acting unusual. Witnesses who were with the defendant before, during and after his encounter with the police testified persuasively that the defendant was acting paranoid, delusional and extremely strange. All the witnesses made similar observations of the defendant's demeanor and paranoid condition. The court can reasonably infer from the evidence presented that the defendant was under the influence of a hallucinogenic drug at the time he spoke to the police, whether ingested voluntarily or injected by a third party. In addition, the defendant spent at least 24 hours walking 10

11 and hitchhiking before he arrived at the police station and had not eaten in at least 36 hours. The defendant told Burns that he had been walking all day before arriving at the police station, that he "didn't feel right" and that he wanted to go to the hospital because he believed he had been drugged. Based on the facts described above, the court finds the State has failed to meet its burden of proving a knowing, voluntary and intelligent waiver of the defendant's Miranda rights. In light of the court's rulings regarding Miranda, it need not consider the defendant's final argument that his statements were involuntary. Accordingly, the defendant's motion to suppress his statements to Burns and the evidence collected from his home is granted. SO ORDERED. Date: October 22, 2001 Tina L. Nadeau Presiding Justice 11