2009-523, State of New Hampshire v. Matthew Sconsa

Michael A. Delaney

No. 2009-523 Hillsborough-northern judicial district

318-B:26, II(a), arguing that the Trial Court (Smukler conviction on one count of possession of a controlled drug, RSA 318-B:2; RSA BRODERICK, C.J. The defendant, Matthew Sconsa, appeals his

Wilson, Bush, Durkin & Keefe, P.C.

arrest warrant in violation of the knock and announce rule. We affirm. his motion to suppress evidence seized as a result of the police executing an

brief and orally), for the defendant.

attorney general, on the brief and orally), for the State.

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. Opinions are available on the Internet by 9:00 to press. Errors may be reported by E-mail at the following address: 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 as to implicate the State Constitution’s prohibition against unreasonable p. 2 some forcible entry occurred, any violation was technical and not so flagrant so announce rule under state law. Finally, it determined that even assuming entry was not forcible and, accordingly, did not violate the knock and support suppression” under federal law. It also determined that the police alleged violation particularly egregious or unreasonable and would thus It first concluded that the defendant did not point to any facts “that ma[de] the did not warrant suppression of the evidence under either federal or state law. testified, the trial court ruled that the entry by the police into the hotel room admitted into evidence. Following a hearing during which Officer Karoul executed the arrest warrant and that the cocaine they seized should not be police officers failed to comply with the knock and announce rule when they controlled drug. The defendant filed a motion to suppress, arguing that the The State later charged the defendant with one count of possession of a

subsequently agreed contained cocaine resting on top of the defendant’s wallet. Karoul opened the drawer, he observed a plastic baggie which the defendant his money and identification located inside a bureau drawer. When Officer Before leaving the hotel room, the defendant requested that the police retrieve date. At this point, Officer Karoul told the defendant that he was under arrest. that he was “Matthew Sconsa.” He also gave Officer Karoul an accurate birth identification, the defendant responded that he did not have any but stated remove his hands from under the pillow, and he complied. When asked for on the bed, with his hands under a pillow. He instructed the defendant to Once inside the room, Officer Karoul saw the defendant lying face down

gain entry, and no one objected to their entry. was to execute the arrest warrant. The police did not use any physical force to ask permission to follow her into the hotel room or declare that their purpose room in the direction of the bed, and two officers followed her. They did not response. Leaving the door open, the woman then turned to walk into the answer. The woman did the same and, again, Officer Karoul heard no bed from his vantage point. He called out for “Matthew” and received no then pointed to an area inside the hotel room, but the officer could not see the “Matthew” was there, and she responded, “Yes, he’s [lying] on the bed.” She four more times, a woman opened the door. Officer Karoul asked her whether sounds of scurrying, rummaging and running water. After he knocked three or Karoul knocked on the door. He received no immediate response, but heard The three fully uniformed officers approached room 311, and Officer

backup. Two officers soon arrived. dispatch, the officer confirmed that the arrest warrant was valid and requested for the defendant, who was registered as a guest in room 311. Contacting hotel clerk and discovered that an electronic bench warrant was outstanding of frequent criminal activity, he obtained a list of the registered guests from the erroneous, and we review legal conclusions de p. 3 accept its factual findings unless they lack support in the record or are clearly When reviewing the trial court’s order on a motion to suppress, we

but only a right to submit voluntarily. target of an arrest warrant, and the arrestee has no right to refuse their entry, entries, police officers have the authority to enter the private dwelling of the violations of the knock and announce rule, because unlike in warrantless State argues that the exclusionary rule is not an appropriate remedy for reasonable under the New Hampshire and Federal Constitutions. Finally, the because, as the trial court found, the method of police entry in this case was and announce rule did not infringe upon the defendant’s constitutional rights Alternatively, the State argues that any technical violation of the knock

is not required in such a circumstance. among state and federal courts, compliance with the knock and announce rule response to an officer’s knock makes little sense,” and that nearly universally to comply with the knock-and-announce rule after the door is opened in without applying any physical force. It contends that “[r]equiring police officers implicated when the police gain entry into a dwelling through an open door For its part, the State argues that the knock and announce rule is not

State Constitution, citing federal court opinions for guidance only. See State v. N.H. 323, 327 (2010). We first address the defendant’s arguments under the Constitution and Part I, Article 19 of the New Hampshire Constitution. novo. State v. Tarasuik, 160 under the Fourth and Fourteenth Amendments to the United States knock and announce rule in this case, the evidence should be suppressed constitutional sanctity of a private dwelling, and the deliberate violation of the under Part I, Article 19 of the State Constitution. He argues that given the Amendment to the Federal Constitution, and he urges us to hold the same that the rule is an element of the reasonableness inquiry under the Fourth the knock and announce rule did not have a constitutional basis. He contends Second, the defendant argues that the trial court incorrectly found that

police failed to satisfy the knock and announce rule in this case. amounts to forcible entry in the knock and announce context, and that the hotel room. He contends that police entry without invitation or permission announce rule did not apply because the police had not forcibly entered his First, he argues that the trial court erred when it ruled that the knock and and application of the knock and announce rule under federal and state law. The defendant argues that the trial court erred in both its construction

This appeal followed. found the defendant guilty of the possession charge and imposed sentence. searches and seizures. After a bench trial on stipulated facts, the trial court his dwelling constituted a forcible entry. Relying upon Jones p. 4 The defendant argues that the uninvited entry through an open door of

case, and, thus, the State knock and announce rule does not apply. the trial court correctly determined that the police entry was not forcible in this rule. We need not reach this issue today, however, because we conclude that defendant’s dwelling in a manner that violates the State knock and announce 4 police seize evidence in the course of executing a lawful arrest warrant in the We have yet to determine whether the exclusionary rule applies when

contends that we have “explicitly recognized . . . that police ‘forcibly’ enter a Jones and Coyman, he

coming, and to make request to open doors . . . .” enter. But before he breaks it, he ought to signify the cause of his do other execution of the K[ing]’s process, if otherwise he cannot not open) may break the party’s house, either to arrest him, or to “In all cases when the King . . . is party, the sheriff (if the doors be

announce] requirement.” Jones identify themselves and their purpose, and demand admittance. See, 127 N.H. at 520. warrant, police officers, before forcibly entering a dwelling, should knock, usually held that almost any force, however slight, triggers the [knock and Jones Under New Hampshire law, when executing an arrest or a search, 127 N.H. at 520. When first adopting the State rule, we noted that “it is dwelling.” State v. Coyman, 130 N.H. 815, 821 (1988) (emphases omitted); see knock and announce rule “applies only when a police officer forcibly enters a opportunity “to collect [themselves] before answering the door”). Our State breaking into private dwellings, and protecting privacy by affording occupants by avoiding unnecessary violence, protecting property by avoiding unnecessary 594 (2006) (policies underlying knock and announce rule include protecting life unannounced entries.” Id. at 518; see also Hudson v. Michigan, 547 U.S. 586, in their homes and prevent[s] unnecessary violence which could result from 195 (1604)). The knock and announce rule “protect[s] citizens’ rights to privacy , 127 N.H. at 517 (quoting Semayne’s Case, 5 Coke 91, 77 Eng. Rep. 194,

(1990). This rule is based upon common law: Jones, 127 N.H. 515, 518 (1985); State v. Thompson, 132 N.H. 730, 732-33

extent — remains an undecided issue in this State”). comparable to that of the home, or diminished from it — and if so, to what concurring specially) (“Whether the privacy interest in a hotel room is Cir. 2006). But see State v. Watson, 151 N.H. 537, 542 (2004) (Broderick, C.J., Tarasuik, 160 N.H. at 328; United States v. Pelletier, 469 F.3d 194, 199 (1st constitutional purposes because the parties do not dispute it. See, e.g., the defendant’s hotel room is comparable to his home for state and federal Ball, 124 N.H. 226, 231-33 (1983). We assume for purposes of this appeal that case comports with the policies underlying the rule. See p. 5 Our holding that the knock and announce rule is not implicated in this

defendant was heard. woman who had turned and walked into the room when no response from the was entirely peaceable through a door opened to them and left open by the answer their knock, their presence and identity were obvious, and their entry dwelling to execute an arrest warrant. Rather, a woman opened the door to disclose their presence and identity while violently or stealthily entering a the door she had opened to them.” This is not a case where the police failed to to enter. . . . The officers simply followed [the woman] into the hotel room via was there evidence that the officers had to push the door farther open in order resistance. As the trial court found, “the officers did not open any doors, nor physical force and without encountering any physical, verbal or other display of As she did so, the police followed her into the room, without any use of turned to walk into the room in the direction of the bed, leaving the door open. called out the defendant’s name and no response was heard. The woman 5 pointing to an area inside the hotel room. Both the police and the woman “Matthew” and the woman informed them that Matthew was lying on the bed, woman opened the door. The police, who were in full uniform, asked for 585, 589-90 (1968) (interpreting whether knock and announce statute applied Here, the police knocked on the door of the defendant’s hotel room, and a 518; Hudson, 547 U.S. at 594; see also Sabbath v. United States, 391 U.S.

presence was not announced prior to entry. See police entered through an open doorway or an unlocked door and their door of a dwelling without invitation or permission. He cites cases in which argue that forcible entry includes situations in which the police enter an open announce rule under the facts before us. The defendant also relies upon several cases from other jurisdictions to defendant that the entry was forcible for purposes of the State knock and without invitation, we are not persuaded by the cases relied upon by the assume that the police entered through the open door of the hotel room 1975); State v. Miller, 499 P.2d 241, 242-45 (Wash. Ct. App. 1972). Even if we 781-84 (N.D. 1985); People v. Keogh, 120 Cal. Rptr. 817, 820-22 (Ct. App. P.2d 223, 224-25 (Ariz. Ct. App. 1982); State v. Sakellson, 379 N.W.2d 779,

context of “unannounced entries,” Jones, 127 N.H. at 518. knock and announce rule as providing protection to citizens and police in the constitute forcible entry, Coyman, 130 N.H. at 821, and have characterized the announce rule. Rather, we have determined that invited entry does not without any use of physical force, necessarily implicates the State knock and explicitly or implicitly, that uninvited entry by the police through an open door, case law, however, we conclude that we have not previously held, either defendant’s dwelling when they do so without permission.” After reviewing our p. 6 6

of section 3109); see also United States v. Ramirez, 523 U.S. p. 6 65, 70 (1998) (knock and announce principle under Fourth Amendment informs the meaning analyzing the execution of state search warrants); Acosta, 502 F.3d at 57-58 Kennedy identity and purpose before attempting forcible entry.” United States v., 32 F.3d at 882 (section 3109 provides the proper framework for informing the scope of the requirement as embodied in the Fourth Amendment. officers entering a dwelling must knock on the door and announce their Thus, it is appropriate to rely upon jurisprudence relative to section 3109 as Amendment incorporates the important common law requirement that police 18 U.S.C. § 3109 (2006). Hudson We turn to the defendant’s federal constitutional argument. “The Fourth (7th Cir. 1985) (the Fourth Amendment “embraces the principles of § 3109”). The common law knock and announce rule also is codified in federal law, cert. denied, 513 U.S. 1128 (1995); United States v. Andrus, 775 F.2d 825, 844 3109 encompasses the constitutional requirement of the Fourth Amendment), § 3109); United States v. Kennedy, 32 F.3d 876, 882 (4th Cir. 1994) (section (Fourth Amendment knock and announce requirement is reflected in 18 U.S.C. Cir. 2007), cert. denied, 552 U.S. 1154 (2008); see also Young, 609 F.3d at 353 protect the same interests. See United States v. Acosta, 502 F.3d 54, 57 (2d Fourth Amendment share the same common law roots, overlap in scope, and section 3109 and the knock and announce requirement embodied in the Although the federal statute does not apply to state and local police officers,

Young, p. 6 609 F.3d 348, 353 (4th Cir. 2010). v. Arkansas, 514 U.S. 927, 931-32, 934 (1995); see also United States v. element of the reasonableness inquiry under the Fourth Amendment.” Wilson Amendment”). Compliance with the knock and announce requirement “is an at 589 (knock and announce requirement is “a command of the Fourth Segura-Baltazar, 448 F.3d 1281, 1289 (11th Cir. 2006); see Hudson, 547 U.S.

of the defendant’s state law arguments. announce rule is not implicated in this case, we do not address the remainder Because we hold that no forcible entry occurred, and, thus, the knock and as she turned and walked into the room to get the defendant’s attention. located, the police called out the defendant’s name, and the police followed her the woman in response to knocking, she pointed to where the defendant was unexpected or unannounced entry. Here, the door was voluntarily opened by privacy and dignity were not compromised by some sudden or stealthy, because the police applied no physical force whatsoever to gain entry. Finally, the interest in preventing the destruction of private property was not at issue and they followed her as she turned and walked into the room. Additionally, peaceably entered through a door opened to them and left open by the woman, case, the risk of provoking violence was de minimus given that the police in a manner that comports with purposes of the common law rule). In this p. 7 Affirmed

but DALIANIS, HICKS and CONBOY, JJ., concurred. suppression of the seized cocaine would be an available remedy in this case, 7 the direction of the defendant’s location. Therefore, even assuming that through the door that she had left open as she turned to walk into the room in and informed them that the defendant was inside the room, following her Part I, Article 19 of the New Hampshire Constitution. arrest warrant after a woman opened the door in response to their knocking Fourth and Fourteenth Amendments to the United States Constitution and Here, the police, in full uniform, entered the hotel room to execute a valid

of, a dwelling to execute a warrant. See Amendment is implicated when police forcibly enter, or break open the doors

defendant’s argument that the evidence should be suppressed under the requirement embodied in the Fourth Amendment. Accordingly, we reject the or a breaking, and, thus, did not trigger the knock and announcement conclude that the police conduct in this case did not amount to a forcible entry (1st Cir.), cert. denied, 129 S. Ct. 228 (2008); Acosta, 502 F.3d at 59, we see Hudson, 547 U.S. at 592-99; United States v. Jones, 523 F.3d 31, 37 The knock and announce requirement embodied in the Fourth

entry is not a “breaking” under the federal statute). to open the door, and thereby effect police entry into a house because such is not implicated when police use deception, without force, to cause occupant courts have held, “virtually universally,” that federal knock and announce rule statute); State v. Dixon, 924 P.2d 181, 186 (Haw. 1996) (noting that federal is not a “breaking” within the meaning of the federal knock and announce 1009 (1985) (collecting cases that hold that police entry through an open door States v. Remigio, 767 F.2d 730, 732-33 (10th Cir.), cert. denied, 474 U.S. warrant does not implicate the knock and announce rule. See, e.g., United federal jurisdictions is that police entry through an open door to execute a 549 (8th Cir.), cert. denied, 513 U.S. 949 (1994). The majority rule among denied, 516 U.S. 1001 (1995); see also United States v. Lucht, 18 F.3d 541, F.3d at 353; United States v. Gatewood, 60 F.3d 248, 250 (6th Cir.), cert.

federal statute). (using Fourth Amendment knock and announce cases to inform meaning of