2008-009, STATE OF NH v. SCOTT ROBINSON

remand.

Barry

9:50 p.m., Manchester police responded to a reported robbery at the Cross The record supports the following facts. On March 18, 2006, around

that the trial court erred in denying his motion to suppress. We reverse and See RSA 636:1 (2007); RSA 631:1 (2007). He appeals his convictions, arguing defendant, Scott Robinson, was convicted of robbery and first degree assault. DUGGAN, J. Following a jury trial in the Superior Court (, J.), the

the defendant. brief, and Paul Borchardt, assistant appellate defender, of Concord, orally, for Theodore Lothstein, assistant appellate defender, of Concord, on the

general, on the brief and orally), for the State. Kelly A. Ayotte, attorney general (Nicholas Cort, assistant attorney to press. Errors may be reported by E-mail at the following address:

page is: http://www.courts.state.nh.us/supreme. THE STATE OF NEW HAMPSHIRE

No. 2008-009 editorial errors in order that corrections may be made before the opinion goes Hillsborough-northern judicial district Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New ___________________________

a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as again knocked and announced their presence. p. 2 heard a female voice say something to the effect of “you’re such an idiot,” and confirmed that he lived there. Upon returning to the defendant’s door, police sweatshirt.

officers were sent to the defendant’s apartment building.

a police cruiser and showed her a picture of the defendant on a computer, she Upon opening the closet, the officers saw a Patriots jacket and a green hooded apartment and opened a closed closet to ensure nobody was hiding there. The trial court found that two officers simultaneously stepped into the

suspect had run, and that he had a prior robbery conviction. At that point, the defendant, that he lived eight blocks from the store in the direction the to be wet footprints in the hallway leading to the defendant’s apartment door. relaying the license plate to dispatch, police learned that the car belonged to 2

her if the defendant lived in that apartment. After officers brought her down to

their weapons, told her to get on her knees and searched her for a weapon.

could hear movement in the apartment. Officers also observed what appeared the fleeing suspect had run past that car before turning into the alley. After movement inside, and those in the hallway outside the defendant’s apartment outside the defendant’s building. Officers outside the building could see

presence but received no response. They then spoke to a neighbor and asked alley off Amory Street. girlfriend, Kimberly Dunn, opened the door, at which point the officers raised unholstered their weapons and pointed them at the ground. The defendant’s When the officers heard footsteps approaching the door, they

lookout for a Kia in the area. Officers found a Kia nearby, and confirmed that belonged to the suspect. Responding officers were then told to be on the apartment building. By approximately 10:30 p.m., four officers were present employees denied that it belonged to any of them, the police presumed that it

The officers knocked on the defendant’s door and announced their the suspect as he left the store, and watched him run past a car and into an

matched. The officer relayed that information to the officers at the defendant’s containing three keys, one of which belonged to a Kia automobile. After the the crime scene, inserted it into the door of the Kia and turned it; they While those officers were en route, another officer took the car key from

leaving with cash from the register. A witness told police that he had followed went behind the counter, and stabbed the clerk at least three times before wearing a Patriots jacket and a green hooded sweatshirt, entered the store,

Upon searching the area behind the counter, police found a key ring,

twenty-five to thirty years old, roughly six feet tall and weighing 200 pounds, Town Variety Store. Upon arriving, witnesses told police that a white male, the record upon which we can reach our conclusion as a matter of law.

p. 3 New Hampshire Constitution.” of privacy plays a role in the protection afforded under Part I, Article 19 of the

issue as it is likely to arise on remand and because there are sufficient facts in

papers, and all his possessions.” “We have . . . recognized that an expectation

his apartment. on the issue. In the interests of judicial economy, however, we address the

from all unreasonable searches and seizures of his person, his houses, his

opinions for guidance only. erroneous. Compare Goss, 150 N.H. at 48-49 (holding defendant has reasonable has been no violation of the defendant’s rights under Part I, Article 19. without an invasion of the defendant’s reasonable expectation of privacy, there

warrant, police seized a green sweatshirt, a Patriots jacket and a knife. Federal and State Constitutions. The trial court found that the police did not the key into the Kia door was an unconstitutional search under both the Part I, Article 19 provides that “[e]very subject hath a right to be secure

motion in a written order. After a jury convicted the defendant of robbery and the trial court’s findings unless they are unsupported by the record or clearly Auger v. Town of Strafford, 156 N.H. 64, 67 (2007). We initially address the unconstitutional. Following a suppression hearing, the trial court denied his Cf.

constitutional rights; (2) the police lacked probable cause to enter his home; officers attempt to secure a search or arrest warrant. Upon execution of the We first address the defendant’s argument that the officer’s insertion of

court’s legal conclusions de novo. Id.

State v. Pseudae, 154 N.H. 196, 199 (2006). We review the trial

When reviewing a trial court’s ruling on a motion to suppress, we accept apartment, arguing that the officers’ initial warrantless entry was

the key into the car door was a warrantless search and violated his search warrant. At no time prior to entering the defendant’s home did the motion to suppress. Specifically, he argues that: (1) the officer’s insertion of search for possible threats, the officers secured the premises and applied for a On appeal, the defendant argues that the trial court erred in denying his arrested him and took him out of the apartment. After conducting only a brief

Before trial, the defendant moved to suppress the evidence found in his

knife to his chest. The officers went to the bedroom, found the defendant, Dunn then told the officers that the defendant was in the bedroom with a had a reasonable expectation of privacy in the thing searched. As federal

p. 4 Part I, Article 19 were not violated.

officer sought.

defendant’s Fourth Amendment rights were violated turns upon whether he

defendant’s reasonable expectation of privacy, the defendant’s rights under

unreasonably searched the defendant’s wallet, not upon the nature of what the

Federal Constitution, prior rejection of an “identification search” exception to the warrant

We reach the same result under the Federal Constitution. Whether the

any search of the vehicle. Because the officer did not intrude upon the Id. at 821. Thus, Webber is inapposite to this case. the key into the lock and turned the key. He did not open the door or conduct 818. Our rejection of the exception was based upon the fact that the officer key from the convenience store with the permission of the store owner, inserted wallet to remove a prescription card without the defendant’s permission. Id. at inapplicable here. In Webber, a police officer reached into the defendant’s

State v. Webber, 141 N.H. 817, 821 (1997). The case is constitution does, in some circumstances, provide greater protection than the

protection under the State Constitution. Although we have recognized that our The defendant also argues that our ruling in this case is dictated by our a door. He argues, however, that we should adopt a standard of greater

need probable cause to inspect it.”

I, Article 19 is what lies behind the door. In this case, the officer removed the denied, 484 U.S. 837 (1987). Rather, the private information protected by Part United States v. Grandstaff, 813 F.2d 1353, 1358 n.6 (9th Cir. 1987), cert. 2008); RSA 261:75, II (2004), who owns a car is not private information. See vehicles must be registered and display license plates, see RSA 261:40 (Supp. 1028 (1984); Com. v. Alvarez, 661 N.E.2d 1293, 1303 (Mass. 1996). Because courts have minimized the zone of protection with regard to inserting a key into DeBardeleben, 740 F.2d 440, 443-45 (6th Cir. 1984), cert. denied, 469 U.S. 13 (1st Cir. 1990), cert. denied, 498 U.S. 920 (1990); United States v. 1170, 1173 (7th Cir. 1991); accord United States v. Lyons, 898 F.2d 210, 212-

Here, the privacy interest at stake is “so small that the officers do not

this is not such a case.

constitutional purposes. Indeed, the defendant acknowledges that federal because the insertion of the key into the door does not constitute a search for The State argues that Part I, Article 19 does not apply in this case

from the street). gate, he had not posted “no trespassing” signs and the driveway was visible reasonable expectation of privacy in curtilage to his home when there was no with State v. Johnston, 1 p. 5 50 N.H. 448, 452 (2004) (holding defendant had no expectation of privacy in contents of black garbage bags left out for collection), safety or create a likelihood that evidence will be destroyed.

largely a question of fact for the trial court.

for immediate official action and a risk that the delay inherent in obtaining a Hampshire Constitution, citing federal opinions for guidance only. entry into his home. We first address the defendant’s claim under the New impracticable to obtain a warrant beforehand. circumstances unless is it clearly erroneous. Id. N.H. at 804. We will not disturb the trial court’s finding of exigent officers’ conduct prior to entry, but no single factor controls. Santana, 133 totality review includes an examination of the overall reasonableness of the crafted exceptions. Rodriguez, 1 p. 5 57 N.H. at 104. Our evidence that the warrantless entry fell within one of the narrow, judicially- circumstances exist is judged by the totality of the circumstances, and is N.H. at 104; State v. MacElman, 149 N.H. 795, 798 (2003). Whether exigent

673 (1998). Exigent circumstances exist where police face a compelling need

One such exception, which the State argues applies here, exists where

warrant requirement. State v. Rodriguez, 1 p. 5 57 N.H. 100, 103 (2008).

(2009). The State has the burden of proving by a preponderance of the secured by the Constitution. See Arizona v. Gant, 129 S. Ct. 1710, 1719 justifications lest they become incompatible with the fundamental principles warrant requirement must remain closely tethered to their underlying As the United States Supreme Court has recently made clear, exceptions to the Theodosopoulos, 119 N.H. p. 5 573, 580 (1979), cert. denied, 445 U.S. 967 (1980). because the occupant has a high expectation of privacy. State v. deciding, that the police had probable cause to enter his apartment. The issue search of a home is subject to a particularly stringent warrant requirement Beede, 119 N.H. 620, 625 (1979), cert. denied, 446 U.S. 983 (1980). The

the officer’s conduct did not violate the protections of the Fourth Amendment. inadmissible unless it falls within one of the recognized exceptions to the unreasonable, and evidence derived from such a search or seizure is Under Part I, Article 19, a warrantless search or seizure is per se has a reasonable expectation of privacy. 124 N.H. at 232-33.

As to the defendant’s second argument, we will assume, without

at 443-4 p. 5 5. Because the defendant had no expectation of privacy in this case, 898 F.2d at 212-13; Grandstaff, 813 F.2d at 1358 n.6; DeBardeleben, 740 F.2d

inserting a key into a door is not the type of information in which a defendant courts have consistently held, the mere information of ownership obtained from person’s home”); p. 6 outset [would] present a situation requiring an emergency entrance into a

for reflection, choose to pursue a course of action which they know at the

particular crime),

where “police, with ample probable cause, time to obtain a warrant, and time to which the exigency relied upon by the State was foreseeable. erroneous.

secure a warrant before knocking and entering.

cert. denied, 529 U.S. 1070 (2000).

found that the exigency was not foreseeable. “made a deliberate decision to go to the motel” to gather evidence of that finding of exigency because police encounter was inadvertent and no officer

Mendez v. People, 986 P.2d 275, 282 (Colo. 1999) (affirming

continuous pursuit of a defendant from the scene of a crime.”

an “expected exigency” to justify warrantless entry into defendant’s apartment presence or absence of “ample opportunity” to get a warrant; and (2) the degree Id. at 110; see Santana, 133 N.H. at 807 (police may not rely upon that the trial court’s finding of exigent circumstances was not clearly

warrantless entry. ongoing destruction of evidence in the hotel room, there was no opportunity to

Because the officers had not gone to the hotel to investigate the drug crime, we on the marijuana outside a hotel room while investigating an unrelated crime. Id. In Rodriguez, for example, police officers detected the odor of burning

157 N.H. at 108 (quotation omitted). that this case is not one of hot pursuit, which “requires immediate and

was the cause of the exigency, two considerations act as “guideposts”: (1) the Theodosopoulos, 119 N.H. at 581. In our analysis of whether police presence

became involved, the police cannot themselves create the exigency to justify a in his home. Santana, 133 N.H. at 805. Thus, if no exigency existed before the police sufficiency of the exigency but rather how the exigency came about.” As the defendant points out, “The primary focus of our inquiry . . . is not

did not exist before they entered his home. defendant’s girlfriend opened the door. Even the State acknowledges, however, however, that the police themselves created the exigent circumstances, which trial court directed the majority of its analysis to the officers’ actions after the told the officers that the defendant had a knife to his chest. He argues, pursuit, without time to reflect upon the situation or obtain a warrant.” The The defendant concedes that exigent circumstances existed once Dunn

delay cannot be considered hot pursuit. approximately forty to forty-five minutes after the robbery was reported; such a

Id. at 242. Here, police arrived at the defendant’s home

driver to his house, and then ran inside after him when the driver tried to hide 144 N.H. 241, 244 (1999). In Ricci, for example, police followed an intoxicated

officers, upon arriving at the defendant’s home, “were essentially in hot Here, the trial court determined that exigency existed because the ensuing emergency to justify the initial entry.

p. 7 exigency until after they entered the home, the State cannot now rely upon the

without first obtaining a warrant. Because the police had no knowledge of any however, the officers had already entered his home without consent, and that the defendant was in the bedroom with a knife to his chest. By that point,

circumstance that the entry, though not consented, is made peaceably. a likelihood that the suspect will escape if not swiftly apprehended; and (6) the

nearby closet for a concealed individual, at which time Dunn informed them and that he planned to leave town by bus.

reason to believe that the suspect is in the premises being entered; (5) there is

police surrounded the home. application of the Id. at 94. After they determined that the two women who knew where to find the defendant. Id. Later that afternoon, State cites Id. She also gave an address for Two officers testified that they secured Dunn and simultaneously searched a that the facts of this case support a “fleeing suspect” exigency. In support, the called the police and said that the defendant had driven the car in the robbery they knew of the specific exigency of the defendant holding a knife to his chest. found materials identifying the defendant. Id. The next morning, a woman retreated to his apartment. It was not until after police entered his home that was captured, but the defendant managed to escape. Id. Inside the car, police gunman was a passenger. Id. The two men fled from the car and the gunman suspect, and met another car, driven by the defendant, in which the suspected cause, but beyond that a clear showing of probable cause; (4) there is strong shooting the manager. Olson, 495 U.S. at 93. Police drove to the house of a believed to be armed; (3) there exists not merely the minimum of probable Olson, a lone gunman robbed a gas station shortly before 6:00 a.m., fatally largely silent on the matter until occurred, particularly one involving violence; (2) the suspect is reasonably Minnesota v. Olson, 495 U.S. 91 (1990). In

Dorman test, the United States Supreme Court remained

Although federal courts have diverged in their acceptance and

the actual difficulty police faced in obtaining a warrant. Id. at 394–95. entry into the apartment and Dunn’s statement. Specifically, the State argues Dorman, 435 F.2d at 392–93. Dorman also considered the time of entry and

to reasonably conclude that the defendant continued to pose a threat once he

factors that may be useful for determining exigency: (1) a grave offense United States Court of Appeals for the District of Columbia Circuit set forth six

Dorman v. United States, 435 F.2d 385 (D.C. Cir. 1970). There, the

The State argues, however, that exigency existed prior to the officers’

however, the State cannot point to any evidence that would have led the police Santana, 133 N.H. at 807. exigent circumstances requiring immediate action. As discussed below, See Rodriguez, 157 N.H. at 108; danger to others based upon the robbery, and that the police therefore faced

home to investigate the robbery. The State argues that the defendant posed a Here, police made the deliberate determination to go to the defendant’s p. 8 8

escape. did not act quickly, and no officer articulated a fear that the defendant would they had no reason to believe evidence was being destroyed or would be if they

he planned to “get his affairs together and then head south”),

to flee his home, or that he posed a risk if not immediately apprehended. own magistrate, he ought to be in a position to justify it by pointing to some officers to believe that the defendant would either destroy evidence or attempt

See Welsh, 466 U.S. at 751 (“When an officer undertakes to act as his

U.S. 934 (19 p. 8 80). Indeed, an officer at the suppression hearing testified that

(finding exigency where defendant was armed and reliable informant told police other persons inside or outside the dwelling. escape”), with United States v. Williams, 612 F.2d 735, 737 (3d Cir. 1979) need to prevent a suspect’s escape, and the risk of danger to the police or to “officers had no apparent grounds for a belief that the defendant would evidence, the gravity of the offense, the likelihood the suspect is armed, the Compare State v. Morse, 125 N.H. 403, 409 (19 p. 8 84) (holding no exigency when

The State cannot point to any substantive evidence that would have led

no exigency existed that made it impractical to secure a warrant beforehand. our examination of the totality of the circumstances forces us to conclude that the state court’s finding that no exigency occurred. gravity of the offense was serious and the defendant was believed to be armed, Welsh v. Wisconsin, 466 U.S. 740, 753 (19 p. 8 84). In this case, although the suspect is armed.” See Olson, 495 U.S. at 100;

or outside the dwelling.” suspect’s escape, or the risk of danger to the police or to other persons inside warrantless entry, should consider the danger of imminent destruction of fleeing felon, or imminent destruction of evidence, or the need to prevent a at 104; Santana, 133 N.H. at p. 8 804. Police, as well as courts reviewing a exigency rests upon the totality of the circumstances. See Rodriguez, 157 N.H. in Olson. We, like the Court, have consistently held that the determination of We see no need to adopt Dorman in light of the Supreme Court’s decision reject

with this fact-specific application of the proper legal standard,” and affirmed

the state court considered “the gravity of the crime and the likelihood that the

observed that “a warrantless intrusion may be justified by hot pursuit of a Olson, 495 U.S. at 100. The Court noted that the state supreme court the correct standard in determining whether exigent circumstances existed.” Dorman, but held that the Minnesota Supreme Court “applied essentially On appeal, the United States Supreme Court did not expressly adopt or

N.W.2d p. 9 92, 97 & n.1 (Minn. 19 p. 8 89). Dorman analysis and determined that no exigency existed. State v. Olson, 436 and with weapons drawn. Id. The Minnesota Supreme Court applied the defendant was inside, they entered the house without permission or a warrant 9

home during the night hours militates against a finding of exigency.

whereas in reason to believe that the defendant posed any danger in his current location,

area and the defendant’s apartment. protect the public from further harm justified the warrantless search of the suggest that she was actually in danger.

was happening). Indeed, the fact that the defendant had returned to his own

officer and a civilian. reasonably feared he might fire again if not apprehended.

Theodosopoulos, police were unsure of the sniper’s location and

continuous, methodical search for the suspect. Here, however, police had no case is similar in that both cases involved only one incident of violence and a circumstances whereas a suspect entering his own home does not”). Id. at 580–81. The State argues that this

578. We held that the nature of the “highly volatile” emergency and the need to based upon his conduct at the store, it cannot point to any other evidence to and spent shell casings on a table and marijuana plants on the floor. Id. at Id. at 577. They found him apparently asleep in the bedroom, with a riflescope woman through window who was unable to respond to inquiries about what neighboring buildings until forcing their way into the defendant’s apartment.

573. There, a sniper fired a shot into a police station, seriously injuring an endangerment to life justified warrantless entry), which we held that exigent circumstances existed. Theodosopoulos, 11 p. 9 9 N.H. The State argues that the facts here are analogous to Theodosopoulos, in determine whether there was a victim);

that burglary suspect fleeing into “another’s home gives rise to exigent Hathock v. Cohen, 547 F. Supp. 2d 1271, 1277 n.7 (S.D. Fla. 2008) (noting apartment. Although the State argues that he was at least a danger to Dunn See immediate danger to himself, to the police or to the other person in the knocked on his door, there was no evidence that the defendant was an exigent circumstances when police observed distraught and hyperventilating (2003); People v. McBride, 872 N.Y.S. 2d 10 p. 9 9 (N.Y. App. Div. 2009) (finding

F.3d 1331, 1336-37 (11th Cir. 2002) (listing cases and situations in which Minneapolis police squads surrounded the house.” see also United States v. Holloway, 2 p. 9 90 (1976) (holding gunshots in home justified warrantless police entry to

apartment surrounded so as to prevent flight. Furthermore, before officers information that the defendant intended to flee, and, indeed, had his apprehended.” Id. (quotation omitted). Here, police had no specific (quotation omitted). Had Olson come out, “he would have been promptly

immediate flight, no suggestion of danger to officers, and “[t]hree or four The situation here is similar to that in Olson, where there was no risk of

warrant.” (quotation omitted)). real immediate and serious consequences if he postponed action to get a therefore clearly erroneous.

p. 10 entry. The trial court’s denial of the defendant’s motion to suppress was

hold that no exigent circumstances existed requiring immediate, warrantless they had no reason to believe evidence was being or would be destroyed, we police had blocked any routes of escape, and because the officers testified that

himself, to the police or to the other occupant in the apartment, because the

reach the federal issue.

BRODERICK, C.J.