2004-160, STATE OF NH v. ROBERT B. COWLES

d efendant when he left the roa d and proceeded onto a trail. Sergeant Frank defendant to be a certified habitual offender, he gave pursuit, but lost the (ATV) on Jerusalem Road in Canaan. Because Sergeant Frank knew the Sergeant Samuel Frank saw the defendant operating an all - terrain vehicle suppress recites the following facts. On October 1, 2001, Canaan Police The Trial Court’s (Burling, J.) order on the defendant’s motion to

because it was tainted by his earlier illegal arrest. We affirm. 2001, 2003), conten ding that his confession should have been suppressed having been certified a habitual offender, see RSA 262:23 (2004) (amended NADEAU, J. The defendant appeals his conviction of operating after

brief and orally, for the defendant. David M. Rothste in, deputy chief appellate defender, of Concord, on the

general, on the brief and orally), for the State. Kelly A. Ayotte, attorney general (Karen E. Huntress, assistant attorney

No. 2004 - 160 Grafton

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. O pinions are available on the Internet by 9:00 Errors may be reported by E - mail at the following address: errors in order that corrections may be made before the opinion goes to press. Hampshire, One Noble Drive, Concord, New Hampshire 03301, of any editorial Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as 2

a statement made by the defendant outside of his home, even though the cause to arrest a suspect, the exclusionary rule does not bar the State’s use of Amendment to the United States Constitution, “w here the police have probable (1990). In Harris, the United States Supreme Court held that under the Fourth State’s implied invitation to adopt the rule of New York v. Harris, 495 U.S. 14 Before reaching the defendant’s contentions, we pause to address the

erred in analyzing these factors. denied, 5 p. 2 25 U.S. 1164 (1999). The defendant contends that the trial court State v. Gotsch, 143 N.H. 88, 90 (1998) (quotation and citation omitted), cert.

flagrancy of the official misconduct. (3) the presence of intervening circumstances; and (4) the purpo se and were given; ( p. 2 2) the temporal proximity of the arrest and the confession; we consider the following four factors: (1) whether Miranda warnings between the illegality a nd the confession. In making this determination, product of the defendant’s free will so as to break the causal connection determine whether the act of giving the statement was sufficiently a For the defendant’s statements to be admissible, we must

claims that a confession has been tainted by a prior unlawful arrest: omitted). We have applied the following test under our State Constitution to in the first instance.” State v. Szczerbiak, 148 N.H. 35 p. 2 2, 354 (2002) (quotation novo, except as to any con trolling facts determined at the superior court level “Our review of the superior court’s order on a motion to suppress is de

his subsequent statements. The defendant appeals. trial court agreed that the defendant’s arrest was invalid, but did not suppress Constitution, and that his statements were fruits of tha t unlawful arrest. The Frank’s warrantless entry into his home violated Part I, Article 19 of the State The defendant moved to suppress his statements, arguing that Sergeant

statements. See Miranda v. Arizona, 384 U.S. 436 (1966). booked. After being read his Miranda rights, the defendant made incriminating The defendant was taken to the police station, unhandcuffed and

the defendant he was under arrest, entered the mudroom and handcuffed him. defendant in the mudroom talking on the telephone. Sergeant Frank informed time, when Sergeant Frank arrived at the defendant’s house, he saw the pursued him again and tried once more to intercept him at his home. This again saw the defendant operating an ATV. Sergeant Frank unsuccessfully As Sergeant Frank was leaving the defendant’s residence, however, he

get a warrant and return to arrest the defendant. then went to the defendant’s house and informed someone there that he would p. 3 3

illegal arrest and the confession is essentially a neutral factor in the analysis. proximity). In this case, we conclude that the temp oral proximity between the (unlawful detention did not taint consent to search despite complete temporal hour after illegal seizure of defendant) with Szczerbiak, 148 N.H. at p. 3 356 567, 571 (1979) (State faile d to establish admissibility of confession made one itself, is not determinative of admissibility. Compare State v. White, 119 N.H. 337 (quotation omitted). Thus, as our case law indicates, the span of time, by serious exploita tion of an illegal arrest than a short one.” Palamia, 124 N.H. at relevant intervening circumstances, a prolonged detention may well be a more delay may be found to have exacerbated the taint because “[i]f there are no Gotsch, 143 N.H. at 91 (quotation omitted). In some cases, however, a lengthy statements were the product of the arrest as opposed to his own free will.” of “a significant period of time . . . reduces the possibility that the defendant’s confession, the more likely the taint has been attenuated, because the passage Generally, the longer the time between the unlawful arrest and the

including that taken for booking, “couldn’t be any more than 45 minutes.” took, the defendant’s trial counsel surmised that the entire elapsed time, that altho ugh there was no testimony about how long the booking process rights and before being questioned about operating an ATV that day. We note defendant underwent a booking process after being advised of his Miranda arrest and his confession. According to Sergeant Frank’s testimony, the defendant does not, however, indicate how much ti me elapsed between his [Sergeant] Frank’s review of the Miranda form at the police station.” The “ten minutes, at most, elapsed between the time of the illegal arrest and proximity and interven ing circumstances, weigh in his favor. He estimates that The defendant contends that the second and third factors, temporal

S. Ct. 674 (2004). defendant’s statements.” State v. Belton, 150 N.H. 741, 748, cert. denied, 125 admini stration of Miranda warnings “clearly favors admissibility of the illegal arrest.” State v. Palamia, 124 N.H. p. 3 333, 337 (1983). Nevertheless, the correctly points out, “Miranda warnings per se do not remove the taint of the The defendant concedes that he was read his Miranda rights, but, as he

Gotsch factors. Gotsch, the defendant’s statements are admissible. Thus, we turn now to th e State Constitution because we conclude that even under the attenuation test of We need not decide whether to adopt the Harris reasoning under our

his later statements at th e police station are admissible. though it “may have been unlawfully effectuated on the doorstep to his house,” that because the defendant’s arrest was supported by probable cause, even Harris, p. 4 495 U.S. at 21. Employing the reasoning of Harris, the State argues statement is taken after an [unconstitutional] arrest made in the home.” 4

A ccordingly, we conclude that the taint of the unlawful arrest was purged. Miranda warnings were given and the police misconduct was not flagrant. defendant’s confession, and no intervening circumstances were present, Although only a short time elapsed between the unlawful arrest and the factors, those favoring admissibility outweigh those favoring exclusion. This is a close case, but w e conclude that after balancing the Gotsch

purpose and does not constitute flagrant misconduct. Frank’s minimal intrusion inside the defendant’s home was for a legitimate consideration to this fact. We conclude, as explained above, that Sergeant review is de novo, we need not decide whether the trial court gave adequate his home, an area afforded special constitutional protection. Because our adequate consideration to the fact that the unlawful arrest took place inside The defendant neverthe less argues that the trial court failed to give

purpose. probable cause to arrest the defendant, and his conduct had a legitimate signaled his acquiescence to being arrested. In addition, Sergeant Frank had an open porch and merely “stepped into the mudroom” after the defendant was minimal: Sergeant Frank saw the defendant through a screen door from 1 p. 4 44 N.H. 241, 245 (1999). The unlawful intrusion into the defendant’s home defendant while he was committing a felony. See RSA 262:23; cf. State v. Ricci, Cf. Szczerbiak, 148 N.H. at 357. Sergeant Frank w as in hot pursuit of the On these facts, we conclude that the police misconduct was not flagrant.

opened the door, stepped into the mudroom and handcuffed the defendant. hands up and turned around for me.” It was at that point that Sergeant Frank arrest and the defendant, according to Sergeant Frank’s testimony, “put his defendant through a screen door. He then told the defendant he was under defendant’s house, walked onto an open porch and, from there, could see the head back toward his house on the ATV. Sergeant Frank we nt to the unsuccessfully attempting to chase the defendant, he heard the defendant misconduct,” Gotsch, 1 p. 4 43 N.H. at 90. Sergeant Frank testified that after Finally, we consider the “purpose and flagrancy of the official

address it here. circumstance, we have already considered it as a separate factor and need not characterized the administration of Miranda warnings as an intervening accept the defendant’s contention. We note that while the trial court no intervening circumstances, and, as the State does not identify any, we With respect to the third factor, the defendant contends that there were p. 5 5

DALIANIS, DUGGAN and GALWAY, JJ., concurred.