2005-628, STATE OF NH v. JAE PSEUDAE

Kelly A. Ayotte

No. 2005-628 Merrimack

The record supports the following facts. On January 12, 2005, Concord

David M. Rothstein

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 642:2 (1996), following a jury trial in Superior Court (Smukler, J.). We affirm. reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 2005), and one misdemeanor count of resisting arrest or detention, see RSA one misdemeanor count of disorderly conduct, see RSA 644:2 (1996) (amended which was subject to an enhanced penalty, see RSA 651:6, I(g) (Supp. 2005), misdemeanor count of criminal threatening, see RSA 631:4 (Supp. 2005), HICKS, J. The defendant, Jae Pseudae, appeals his conviction of one

brief and orally, for the defendant.

general, on the brief and orally), for the State. to press. Errors may be reported by E-mail at the following address: , attorney general (Susan P. McGinnis, assistant attorney

editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any 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 22 as p. 2 . . . was another subject in there with a gun.” The Trial Court (Fitzgerald

because they “didn’t know if there were any more children in there or if there

was armed or what was happening.” He testified that they were concerned . . . [they] didn’t know if [the defendant] was . . . the only person in there that “took up a position with several other officers to secure the . . . house, because

permissible. During the suppression hearing, Officer Wright testified that he

preponderance of the evidence that the warrantless search was constitutionally

found inside his room. He argued that the State failed to prove by a Prior to trial, the defendant moved to suppress the rifle and other items

belonged to the defendant and seized it.

defendant’s name on it tacked to the wall. The officers determined the rifle They saw a loaded .22 caliber rifle on the bed and a summons with the They knocked, announced their presence and then kicked the door down.

upon a locked door which they had been told was the defendant’s bedroom.

did not seize them. While searching the second floor the officers also came floor of the residence, the officers found some guns in the owner’s bedroom but and asked them to wait outside while they secured the area. On the second

sixteen-year-old female, a fifteen-year-old female and a three-year-old male,

entering the residence, the police confronted a twenty-three-year-old female, a

several officers entered the residence without consent or a warrant. Upon After the defendant was in custody and taken to a secure location,

Constitution, and Part I, Article 19 of the New Hampshire Constitution. his rights under the Fourth and Fourteenth Amendments to the United States

defendant revealed that he was not armed.

motion to suppress the rifle. The defendant contends that the seizure violated

Cebollero cast his rifle aside and tackled the defendant. A search of the advance until his chest was pressed against Cebollero’s rifle. Eventually, hands out of his pockets, but he still refused. The defendant continued to On appeal, the defendant argues that the trial court erred in denying his

jury convicted the defendant of all charges. This appeal followed.

continued to advance. Cebollero repeatedly ordered the defendant to take his

rifle was introduced at trial in support of the criminal threatening charge. The

the defendant to take his hands out of his pockets, but he refused and walk toward Officer Cebollero with his hands in his pockets. Cebollero ordered Eventually, the defendant came out of the house yelling and began to exigent to justify the entry under the exigent circumstances exception.” The denied the motion to suppress, finding that the “situation was sufficiently

were two females moving about the house.” of the officers on the scene testified that during this time, “[i]t looked like there with the defendant and asked him to go outside to speak with the officers. One

outside his residence to ensure his safety. The dispatcher continued to speak identified as the defendant, and informed him that Concord police officers were hearing such that we may review this issue on appeal. See p. 3 record shows that sufficient facts were presented during the suppression emergency aid exception was not addressed by the trial court, a review of the

persons inside the home who might have access to a gun. Although the

defendant’s room because the officers were not certain if there were other things, that there were exigent circumstances to justify entering the specifically asserted by the State. However, the State did argue, among other

A review of the record shows that the emergency aid exception was not

arguments are properly before the court. the ‘emergency’ exception and the ‘emergency aid’ exception,” and that both the suppression hearing that the State had “blurred the distinction between

requirement, but contends that it is clear from the arguments advanced during

trial court relied on the exigent circumstances exception to the warrant exception is properly at issue.” The State agrees with the defendant that the the emergency aid doctrine,” and therefore “only the exigent circumstances

but the record reveals that a reasonable fact finder necessarily would reach a

trial court, expressly relied on the exigent circumstances exception, rather than

N.H. 88, 92 (2002) (“when a lower tribunal has not addressed a factual issue,

requirement. However, the defendant contends that “both the State, and the “emergency aid” and “exigent circumstances” exceptions to the warrant The State contends that the search and seizure were valid under the

erroneous. See court’s findings unless they are unsupported by the record or clearly When reviewing a trial court’s motion to suppress, we accept the trial

his locked bedroom and the seizure of the rifle. We agree.

trial court’s legal conclusions de novo. See id. privacy. See State v. Johnston, 150 N.H. 448, 451 (2004). We review the

warrant requirement. See exigent circumstances sufficient to justify the officers’ warrantless entry into The defendant argues that the trial court erred in finding that there were

relying on federal case law only for guidance. State v. Ball State v. Ricci, 144 N.H. 241, 243 (1999). validly executed under one of the exceptions to the warrant requirement. See 446 U.S. 983 (1980). The State has the burden to show that the search was

State v. Theodosopoulos, 119 N.H. 573, 580 (1979), cert. denied,

stringent warrant requirement because the occupant has a high expectation of denied, 445 U.S. 967 (1980). The search of a home is subject to a particularly searches as well. See State v. Beede, 119 N.H. 620, 625-26 (1979), cert. warrant requirement applies not only to criminal searches, but to noncriminal

unreasonable and illegal unless they fall within one of the exceptions to the 33 (1983). Under Part I, Article 19, warrantless entries are per se

We first address the defendant’s claim under the State Constitution, private dwellings. In State v. Slade p. 4 previous cases where we have upheld warrantless emergency entries into The facts of this case do not rise to the level of urgency demonstrated in

warrantless search. who had been suicidal and irate. He was securely in custody at the time of the

that “they didn’t believe anyone else was in the house.” It was the defendant

they initially encountered inside if anyone was upstairs, the women responded warrant before kicking down the door. When the officers asked the women was locked and there was no reason why the officers could not have obtained a

gunshot was heard and after the defendant came outside. Id

defendant’s room he had already been taken into custody. His bedroom door

home. An officer entered the home to search for potential victims after a

under the exigent circumstances exception. At the time the officers entered the

circumstances exist. State v. MacElman

found that the officer’s entry into the home was valid because he reasonably

to a reported argument between the defendant and his wife at their mobile presented only at trial (e.g., 116 N.H. 436 (1976), the police responded court at the suppression hearing. The parties may not rely on evidence justify the entry into the defendant’s locked bedroom and seizure of the rifle both of the exceptions. This evidence, however, was not presented to the trial therein.” We are not convinced that this situation was sufficiently exigent to officers’ warrantless search of the defendant’s room and seizure of the rifle seizure without a warrant where they have probable cause to seize and exigent Under the exigent circumstances exception, the police can make a

safety or create a likelihood that evidence will be destroyed. Id warrant will present a substantial threat of imminent danger to life or public immediate official action and a risk that the delay inherent in obtaining a

the 911 operator's question whether he was alone is sufficient to trigger one or search warrant was obtained, . . . that exigent circumstances justif[ied] the in the house, any of who [sic] could have removed the defendant’s gun before a Here the trial court determined that “[b]ecause there were several people suppression record”).

Santana, 133 N.H. at 803. court at the suppression hearing. See. at 798;

Exigent circumstances exist where the police face a compelling need for

On appeal, the State argues that the defendant's ambiguous response to

emergency aid exceptions are properly before us. support his argument on appeal, where such evidence did “not appear in the (1999) (prohibiting defendant from relying on evidence presented at trial to

appended to the State’s brief) because this evidence was not before the trial

omitted)). Therefore, we find that both the exigent circumstances and certain conclusion, we may decide that issue as a matter of law” (citation was not affected by the error. State v. Mason

p. 5 harmless only if it is determined, beyond a reasonable doubt, that the verdict Finally, the State argues harmless error. It is well settled that an error is

entry was not justified under the emergency aid exception.

strength of the State’s evidence of guilt. Id inadmissible evidence is merely cumulative or inconsequential in relation to the

MacElman

the inadmissible evidence itself. State v. Smith into the defendant’s locked bedroom. Therefore, we hold that the warrantless

defendant’s guilt is of an overwhelming nature, quantity or weight and if the

associate the emergency with the area or place to be searched; and (3) the (2) there is an objectively reasonable basis, approximating probable cause, to find that the State has met its burden of establishing harmless error.

consider the alternative evidence presented at trial as well as the character of support a finding of an emergency sufficient to justify the warrantless entry aid exception. In MacElman. In making this determination, we The State also argues that the search was justified under the emergency

be harmless beyond a reasonable doubt if the alternative evidence of a State bears the burden of proving that an error is harmless. Id. An error may

and an immediate need for their assistance for the protection of life or property;

circumstances exception, we rule that the evidence presented would not exigent circumstances when there is time to obtain a warrant. See private dwelling but no volatile situation, we have not found the existence of For the reasons given above in our discussion of the exigent exception. defendant’s bedroom is not justified under the exigent circumstances, 149 N.H. at 798 (citation and quotations omitted). question of fact). Therefore, we hold that the warrantless entry into the

a threat of imminent danger to life or public safety. See support a reasonable belief that evidence would be destroyed or that there was objectively reasonable grounds to believe that there is an emergency at hand Accordingly, we conclude that the evidence presented is insufficient to the emergency aid exception: “The State must show: (1) the police have

into the private residences. Even where there is a possible victim within a

N.H. 304, 307 (2001) (whether situation is sufficiently exigent is largely a

N.H. at 629.

In these cases, there were alarming or volatile situations warranting the entry a sniper was shooting from within. See Theodosopoulos, 119 N.H. at 580-81. police were justified in entering the defendant’s apartment when they believed of immediate assistance inside. Id. at 438. Likewise, in Theodosopoulos, believed that under the circumstances there could have been a victim in need guys to get in my . . . way and meet me out front to see if I had a gun.” When p. 6 police officers in particular. He told the dispatcher that he did not want “you

house, he expressed his disdain for police officers in general and Concord

dispatcher, which occurred immediately before the defendant emerged from the Further, in the defendant’s conversation with the Concord police

each other.

the defendant and the officer were “no more than a couple of feet” away from demeanor during this encounter was “very angry, very agitated.” At this point, directly in front of the officer. The officer testified that the defendant’s

that the comment was directed at him as the defendant made the comment

defendant said that he was going to “snipe” the officer, the officer had no doubt pocket, leading the officer to believe that he had a weapon. When the defendant was making this remark, he still had his hand raised inside his

defendant then told the officer that he was going to “snipe” him. While the

the officer, the defendant then said, “go ahead and . . . shoot me.” The

and the defendant continued to approach. When he was within several feet of responded with profanities. The officer again warned the defendant to stop, did not stop advancing, the officer would shoot him. To this, the defendant

concern that he had a gun.” The officer then warned the defendant that if he

pocket. The officer testified that “at that point I was really scared. I had a real the defendant walked towards the officer with his left hand raised inside his walking towards him. Although the officer had his rifle aimed at the defendant,

swearing.” The defendant then turned, having spotted the officer, and started

threatening suicide, the defendant emerged from the house “yelling and Cebollero arrived at 42 Dunklee Street to respond to a report of an armed man evidence of guilt. This evidence included testimony that, when Officer

RSA 631:4, I(d), was inconsequential in relation to the strength of the State’s

improperly seized rifle, while relevant to demonstrate his “purpose to terrorize,”

In this case, the evidence of the defendant’s guilt was overwhelming. The

committed, a law enforcement officer acting in the line of duty. RSA 651:6, I(g)

defendant knew that the person he threatened was, at the time the crime was To obtain the enhanced penalty for this crime, the State had to prove that the hostile or threatening event or manifestation.” RSA 631:4, III(b) (Supp. 2005).

(3) with a purpose to terrorize that person. RSA 631:4, I(d); see defendant: (1) threatened to commit a crime; (2) against the person of another;

a misdemeanor, which was subject to an enhanced sentence. the record shows that the defendant was in fact charged with and convicted of assumption that the defendant was charged with felony criminal threatening,

or dread; the state of mind induced by the apprehension of hurt from some Morabito, 153 N.H. 302, 305 (2006). “‘[T]errorize’ means to cause alarm, fright,

defendant of misdemeanor criminal threatening, the State had to prove that the

Although both the State and the defendant argue on appeal under the The defendant was convicted of misdemeanor criminal threatening. p. 7 See defendant’s intent, through his words and actions directed at Officer Cebollero. would still have had before it uncontroverted and overwhelming evidence of the A f f i r m e d

from the house was largely inconsequential. Had it been excluded, the jury

constituted harmless error with regard to those convictions.

concurred.

defendant left a rifle in a locked bedroom on the second floor before emerging Cebollero) with the purpose to terrorize that person. Any evidence that the commit a crime (murder) against a person he knew was a police officer (Officer the charges of disorderly conduct and resisting arrest, its admission also

BRODERICK, C.J.