2009-525, State of New Hampshire v. Richard S. Pessetto

Michael A. Delaney

No. 2009-525

Candia District Court

Richard S. Pessetto, by brief, pro

Candia District Court (LeFrancois HICKS, J. The defendant, Richard S. Pessetto, appeals an order from the convicted of carrying a loaded firearm without a license, see The parties do not dispute the following facts. The defendant was

of his firearm pursuant to RSA 595-A:6. With this motion, the defendant the conclusion of the criminal proceedings, the defendant moved for the return and transporting alcoholic beverages, see RSA 265-A:44 (Supp. 2009). After

property. See RSA 595-A:6 (2001). We vacate and remand.

general, on the memorandum of law), 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 p. 2 . . . shall, upon notice to a defendant and hearing, and except for or used as evidence in any trial. Upon application . . . the court

court or justice so long as necessary to permit them to be produced take, he shall seize and safely keep them under the direction of the authorized method, finds property or articles he is empowered to If an officer in the execution of a search warrant, or by some other

contraband or that the defendant could not lawfully possess it, asserting At the hearing, the State introduced no evidence that the firearm was

RSA 595-A:6 reads, in pertinent part:

rights and right to bear arms, he has abandoned those arguments on appeal. contended that submitting to a background check would violate his privacy under RSA 595-A:6 that he submit to a background check. While he further requirements of the statute. He maintained that there was no requirement returned under RSA 595-A:6 and that his affidavit was sufficient to satisfy the At the hearing, the defendant asserted that his firearm should be

RSA 595-A:6 (emphasis added).

other property of evidential value not constituting contraband. good cause shown, order returned to the rightful owner[]. . . any

15, 2009. defendant did not fill out the form and the trial court held a hearing on June misdemeanor convictions that would prohibit him from owning a firearm. The there were no outstanding protective orders or qualifying domestic violence out Form NHJB-2055-DFS so it could complete a background check to ensure Upon receipt of his affidavit, the trial court requested the defendant fill

of a domestic violence protective order. See the standard form and affidavit for the return of a firearm upon the expiration This statement is similar to the information required in Form NHJB-2055-DFS,

ammunition illegal. other legal status that would render my possession of a firearm or to the Gun Control Act of 1968, as amended, nor am I under any unlawful for me to possess any firearm and ammunition pursuant or felony offenses in any state or federal court which would make it nor bail orders and I have not been convicted of any misdemeanor . . . I have no outstanding civil protection orders issued against me, I am not subject to a Domestic Violence/Stalking Protective Order.

ownership of a confiscated Glock Model 17. The affidavit also stated: submitted an affidavit that stated his name, address, and asserted legal discretion.” State v. Gero p. 3 disposition of property under RSA 595-A:6 for an unsustainable exercise of presents a question of law. We review the “trial court’s ruling on the The parties’ arguments require us to construe RSA 595-A:6, which

or state law. firearm in the defendant’s possession would not be contraband under federal are reasonable means within the trial court’s discretion to assure that the submission of a NHJB-2055-DFS affidavit and conducting a background check property that constitutes contraband. It contends that requiring the The State responds that RSA 595-A:6 plainly prohibits the return of

the statute considered as a whole. State v. Dodds, 159 N.H. 239, 244 (2009). we are the final arbiters of the legislature’s intent as expressed in the words of case.” Id. (quotation omitted). However, in matters of statutory interpretation, court’s ruling was clearly untenable or unreasonable to the prejudice of his court’s decision is not sustainable, the defendant must demonstrate that the

not meet its burden under RSA 595-A:6. any such evidence precludes a finding of “good cause” because the State did transfer a firearm to certain enumerated persons. See to withhold his firearm. Consequently, he asserts, the State’s failure to present trial court also acknowledged its obligation under federal law not to knowingly background check prior to the hearing to determine if there was “good cause” who is prohibited from possessing one is good cause under RSA 595-A:6.” The that the State possessed all information necessary, via his arrest, to conduct a acting on [defendant]’s request” and that “[n]ot returning a firearm to a person that RSA 595-A:6 contains no such requirement. Additionally, he maintains was a condition precedent to ordering the return of [his] firearm.” He contends court ordered that “it is reasonable to require the [background] check prior to Department of Safety record check and submission of a Form NHJB 2055-DFS § 922(g)(1)-(9) (2006) or RSA 159:3 (Supp. 2009), to own a firearm. The trial The defendant argues that the trial court erred by finding “that a the defendant was not ineligible under federal or state law, such as 18 U.S.C. firearm until the defendant submitted to a background check to ensure that The trial court found “good cause” to withhold return of the defendant’s

provide the form after that time, the motion was denied. This appeal followed. submit to a background check within thirty days. When the defendant did not trial court ordered the defendant to complete form NHJB-2055-DFS and

to have a firearm.” misdemeanor which would exclude him [from] being able to carry a firearm or The State added, “I don’t know if this conviction would qualify as a until there’s been a determination that he, in fact, is able to possess them.” merely, “I don’t think this [c]ourt has the authority to give back his firearms contraband. See p. 4 This is consistent with the federal standard for forfeiture of possible standard when an item is seized as a result of a crime that is not drug related.

preponderance of the evidence.” We see no reason to deviate from that reads: “[T]he state shall have the burden of proving all material facts by a the controlled drug act, RSA chapter 318-B. RSA 318-B:17-b, IV (b) (2004) has specifically addressed the burden of proof in the context of forfeiture under on the contraband determination under RSA 595-A:6. However, the legislature We have not specifically addressed which party bears the burden of proof 4

Dodds, 159 N.H. at 244 (“We will neither consider what the legislature might RSA 595-A:6, it could do so as it did in RSA 173-B:5, X (Supp. 2009). See motion and affidavit by every movant seeking the return of a firearm under If the legislature wanted to require the submission of an NHJB-2055-DFS ownership of the property in question has been established. See RSA 595-A:6. motion and affidavit by an individual seeking the return of seized evidence once RSA 595-A:6 does not require the submission of the NHJB-2055-DFS

whether an item is contraband under RSA 595-A:6. 1999). Accordingly, we hold that the State bears the burden of proof as to

United States v. Chambers, 192 F.3d 374, 377-78 (3d Cir.

I. Contraband

A:6. property unless the State provides good cause to withhold its return. RSA 595- contraband per contraband). If the item is not contraband, the trial court must return the Contraband materials may fall into one – or both – of two categories: motion to return defendant’s seized property was proper where property was The trial court must determine if the seized property is contraband. requires. RSA 595-A:6; see Cohen, 154 N.H. at 94 (holding that denial of discretion to order forfeiture and dispose of the property as the public interest omitted). If the item is determined to be contraband, then the trial court has wrongdoer has used in the commission of a crime.” Id. at 92 (citations in committing an illegal act,’” and “includes tools or instrumentalities that a contraband is ‘[p]roperty whose possession becomes unlawful when it is used regardless of how it is used.’” Id. at 92 (citation omitted). “[D]erivative 93 (2006). “[C]ontraband per se is ‘[p]roperty whose possession is unlawful

se or derivative contraband. State v. Cohen, 154 N.H. 89, 91-

construe the terms “contraband” and “good cause.” 159 N.H. 559, 560 (2009). Our examination of RSA 595-A:6 requires us to clear on its face, its meaning is not subject to modification. State v. Mohamed, words that it did not see fit to include. Id. When the language of the statute is Id. We will neither consider what the legislature might have said nor add possible, construe that language according to its plain and ordinary meaning. When interpreting statutes, we look to the language of the statute itself, and, if p. 5 Vacated and remanded

further proceedings consistent with this opinion. order denying the defendant’s motion for return of his firearm and remand for whether an item is contraband under RSA 595-A:6. Accordingly, we vacate the the ruling we announce today – that the State bears the burden of proof as to firearm. This was error. The trial court, however, did not have the benefit of speculation by the State that he was legally disqualified from possessing the to submit to the background check, without any showing beyond mere concurred. Here, the trial court found good cause based upon the defendant’s failure BRODERICK, C.J., and DALIANIS, DUGGAN and CONBOY, JJ.,

seized item. Cf defendant’s refusal to comply with them to be good cause to withhold the requirements beyond those contained in RSA 595-A:6, and then consider the Furthermore, neither the State nor the trial court can impose

therefore, it cannot support a finding of good cause. See deprivation of those same liberties if they refuse.”). disqualified from possessing a firearm by federal or state law is not evidence; up their privacy or freedom of movement, on pain of justifying forcible to prove that fact. The State’s speculation that the defendant might be reasonable suspicion or probable cause. People do not have to voluntarily give indeed prohibited from possessing it, the State has not produced any evidence (holding that “[m]ere refusal to consent to a stop or search does not give rise to deny the motion.” While the firearm may be contraband if the defendant is open the possibility that the pistol was contraband,” providing “good cause to. United States v. Fuentes, 105 F.3d 487, 490 (9th Cir. 1997) contraband” and the “defendant’s failure to comply with the court’s request left discretion to require a background check to determine whether the pistol was of good cause. RSA 595-A:6. The State argues that “it was within the court’s The court may withhold property that is not contraband upon a showing N.H. 76, 80 (2009) (noting that State’s arguments are not evidence).

II. Good Cause

B:5, X. is disqualified by state or federal law from possessing the firearm. RSA 173domestic violence protective order to specifically determine whether the movant A:6, RSA 173-B:5, X requires a motion and hearing upon the expiration of a have said nor add words that it did not see fit to include.”). Unlike RSA 595-