2010-059 The State of New Hampshire v. Christopher Newcomb

Michael A. Delaney

No. 2010-059

Rockingham

of the Superior Court (Lewis DUGGAN, J. The defendant, Christopher Newcomb, appeals a decision

Lothstein Law Office, PLLC

inventory search of his rented U-Haul truck. We reverse and remand. obtained as a result of his arrest for criminal trespass and the subsequent

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 safety of the officers and the public. He testified that he conducted inventory p. 2 contents prior to bringing it to the police department in order to protect the truck was on someone else’s property, and he needed to determine the truck’s the men gave conflicting statements regarding what was inside the truck, the O’Sullivan then conducted an inventory search of both vehicles because

and impounded the U-Haul and car. truck, O’Sullivan arrested the defendant and Dzenowagis for criminal trespass Dzenowagis responded. After the defendant refused consent to search the that he thought the truck was loaded with furniture, neither the defendant nor told O’Sullivan that nothing was inside the U-Haul. When O’Sullivan stated previous night in the defendant’s name. The defendant and Dzenowagis both U-Haul rental agreement, which showed that the U-Haul had been rented the At this point, the defendant and Dzenowagis provided O’Sullivan with a

something.

O’Sullivan to check the house because Dzenowagis was likely stealing had told Dzenowagis that he was not allowed on the property and asked vehicles removed from the property. The property owner also stated that she property. The property owner told him that she wanted them arrested and any told the property owner that her nephew and another man were on the property owner, Melissa Dzenowagis, wanted to speak to O’Sullivan. O’Sullivan Two neighbors then arrived with a cell phone and told O’Sullivan that the

property, neither man responded. Newmarket. However, when O’Sullivan asked who drove the car to the driven the U-Haul to the property and that the car belonged to a friend from The defendant appeared extremely nervous and told O’Sullivan that he had ordered the defendant to get out of the car and put his hands on the cruiser. O’Sullivan ordered Dzenowagis to put his hands on the cruiser and also Dzenowagis’s voice was trembling and his hands were shaking. At this point, provided a New Hampshire identification card. O’Sullivan testified that owned the home. When O’Sullivan asked for identification, Dzenowagis planned to leave the truck on the property while waiting for his aunt, who approached O’Sullivan. Dzenowagis told O’Sullivan that he was moving and That man, Timothy Dzenowagis, then came out from behind the truck and man’s head pop out from behind the U-Haul and quickly dart back behind it. then get into a car parked on the property. Seconds later, O’Sullivan saw a As O’Sullivan approached, he heard the defendant yell something and

separate section in the back for item storage and transporting.” Haul was a “box-like truck, with an interior section for passengers and a observed the truck in the driveway, backed up to a closed garage door. The Uwere out of town. Captain Jeremiah O’Sullivan arrived at the home and told police that no one was supposed to be on the property because the owners arrestee has committed a crime.” State v. Vandebogart p. 3 trustworthy information to warrant a reasonable person to believe that the

An officer has probable cause to arrest when he has “sufficient,

O’Sullivan approached the property, the defendant immediately yelled suggesting that the defendant knew he was not allowed on the premises. When O’Sullivan placed the defendant under arrest, O’Sullivan had ample evidence remains in any place.” Contrary to the defendant’s argument, at the moment trespass if, knowing that he is not licensed or privileged to do so, he enters or RSA 635:2, I (2007) provides that “[a] person is guilty of criminal

cause that he “knew he was not allowed to be on the premises.” 3 Specifically, he asserts that at the time of his arrest there was no probable of that investigation did not amount to probable cause to arrest him. had reasonable suspicion to temporarily detain him for investigation, the result cause to arrest him for criminal trespass. He contends that while O’Sullivan On appeal, the defendant first argues that the police lacked probable

a stipulated facts trial and was found guilty by the trial court. and denied them in a written order. The defendant subsequently submitted to Vandebogart, 139 N.H. at 163 (quotation omitted). hearing on the defendant’s motions and similar motions filed by Dzenowagis life on which reasonable and prudent men, not legal technicians, act.” cause to obtain a search warrant. The trial court conducted a consolidated issue with a concern for the factual and practical considerations of everyday he argued that O’Sullivan’s supporting affidavit did not establish probable calculations in making this determination, but instead “must approach the search of the U-Haul was not a proper inventory search. In the second motion, 567 (1993) (quotation omitted). We are not bound by mathematical motion, he argued that he was arrested without probable cause and that the conviction or to make out a prima facie case.” State v. Jaroma, 137 N.H. 562, challenged the admissibility of evidence found in the U-Haul. In the first “reasonable probabilities and not the amount of evidence required to sustain a Prior to trial, the defendant filed two motions to suppress, both of which (1994). In determining whether the police had probable cause, we review

search. for the search warrant included a description of the fruits of the inventory immediately ended the search and applied for a search warrant. The affidavit O’Sullivan observed building materials and copper tubes, pipes and wire. He he found attached to the defendant’s belt. Inside the storage area of the truck, He unlocked the storage space of the U-Haul, which was padlocked, with a key searches of both vehicles pursuant to the department’s inventory search policy. erroneous. State v. Craveiro p. 4 the trial court’s findings unless they lack support in the record or are clearly When reviewing a trial court’s ruling on a motion to suppress, we accept

searches are per his person, his houses, his papers, and all his possessions.” Warrantless citizen has “a right to be secure from all unreasonable searches and seizures of Part I, Article 19 of the New Hampshire Constitution provides that every

a judicially crafted exception. Craveiro, 155 N.H. at 426. The State has the

se unreasonable unless they fall within the narrow confines of

purpose. N.H. 226, 237 (1983). search violated the policy because it was not conducted for a non-investigative State Constitution, we need not reach the federal issue. See used in the department’s inventory search policy. He also asserts that the State v. Ball, 124 conviction.” State v. Hutton Because we determine that the search violated the defendant’s rights under the locked storage area of a U-Haul truck fits within the meaning of a “trunk” as beyond reasonable doubt which the State must have to proceed to trial and to aid in the analysis. See padlocked U-Haul truck. He disputes the trial court’s determination that the State v. Pinkham, 141 N.H. 188, 189 (1996). officers must act quickly for the protection of society rather than with the proof our interpretation of the New Hampshire Constitution, citing federal cases only Kensington Police inventory search policy did not authorize the search of a technical concept and “deals with the reasonable probabilities upon which the trial court’s legal conclusions de the Fourth Amendment of the United States Constitution because the novo. Id. We decide this case based upon U-Haul truck violated Part I, Article 19 of the New Hampshire Constitution and, 155 N.H. 423, 426 (2007). However, we review The defendant next contends that the inventory search of his rented

We again emphasize that probable cause is a commonsense rather than

cause to arrest the defendant for criminal trespass. Accordingly, these facts, taken as a whole, provided O’Sullivan with probable

knew that the defendant rented the U-Haul and drove it to the property. the property and that she wanted both men arrested. Additionally, O’Sullivan the property owner, who told him that Dzenowagis knew he was not allowed on property with Dzenowagis. Furthermore, O’Sullivan received a phone call from was a factor supporting probable cause), and admitted that he came to the State v. Rodrigue, 127 N.H. 496, 498 (1985) (defendant’s “nervous manner” appeared “extremely nervous” throughout his interaction with O’Sullivan, see something and got into a car, which O’Sullivan found to be suspicious. He also guidance and too much discretion to police officers in the field. See p. 5 misinterpreted the policy, which demonstrates that the policy gives too little as that term is used in the policy.” The defendant contends that the trial court “may fairly be considered as fitting within the concept or meaning of a ‘trunk’ the locked back of a U-Haul vehicle,” but concluded that such a storage area acknowledged that the policy did not “expressly discuss an inventory search of In determining that the inventory search was permissible, the trial court

shall apply for a search warrant.

during the inventory search, the search shall cease and the officer

a search warrant shall be obtained. If probable cause develops If an officer has probable cause prior to the inventory search, then

search may be conducted of the glove compartment and the trunk. shall be limited to unlocked areas and/or containers, although a to protect the interest of the owner, the police and society, and

An inventory search must be non-investigative, be designed

listed on the motor vehicle inventory form in the police report.

conducted and all items located throughout the vehicle will be (physical custody by this agency) a full inventory search will be

trunk. exceed the scope of the policy because it provided for the search of a locked consistent with the objectives behind the inventory search policy and did not Whenever a vehicle is subject to police impoundment Denoncourt, 149 N.H. at 311-12. The State maintains that the search was

provides: The relevant portion of the Kensington police inventory search policy

requirement of the Fourth Amendment.” Colorado v. Bertine investigative search. Com. v. Garcia Inventory searches fall within a “well-defined exception to the warrant, 569 N.E.2d 385, 389 (Mass. 1991). police discretion to search at will and turn an inventory procedure into an must act pursuant to reasonable police regulations). Such a policy reduces Id.; see also Bertine, 479 U.S. at 374 (police conducting an inventory search permissible so long as they are conducted pursuant to a neutral police policy. N.H. at 311. We have previously recognized that inventory searches are vandalized property, and guarding the police from danger. Denoncourt, 149 while in the custody of police, insuring against claims of lost, stolen, or investigative government interests, including protecting an owner’s property 371 (1987). Such searches are permissible because they serve important non-

Denoncourt, 149 N.H. 308, 310 (2003). burden of proving that a search falls within one of the exceptions. State v. searches of locked areas and containers. See p. 6 6 could have adopted a broader search policy, but chose to narrowly limit proper scope of an inventory search. We again emphasize that Kensington plain language of the policy is contrary to O’Sullivan’s understanding of the which he construed to allow him to search the entire vehicle. Nonetheless, the United States v. Lozano, 171 F.3d 1129, 1131 (7th Cir.) (“when an inventory conducted the search according to the department’s inventory search policy, and was not a proper inventory search. See Bertine, 479 U.S. at 372; see also policy and did not exceed the scope of the policy. O’Sullivan testified that he according to the standardized procedures of the Kensington Police Department The State also argues that the search was tailored to the objectives of the crime” (quotation omitted)). Accordingly, the search was not conducted automobile.” Webster’s Third New International Dictionary are turned into a purposeful and general means of discovering evidence of The common meaning of a trunk is: “the luggage compartment of an police discretion but may not provide “so much latitude that inventory searches (1990) (explaining that an inventory search policy may leave some room for

within the meaning of a trunk. padlock. Accordingly, we cannot conclude that the back of a U-Haul truck fits was secured with a padlock and could be accessed only by opening the locked area or container that is not a trunk or glove compartment. materials and copper pipes. Additionally, unlike a trunk, the storage space an officer’s search to only two locked areas and prohibits the search of any case, the defendant and Dzenowagis used the truck to transport building procedures. However, the department specifically adopted a policy that limits average trunk and is intended to carry significantly more cargo. Indeed, in this compartments or areas of a vehicle so long as the policy incorporates standard is not. In particular, a U-Haul truck’s storage space is much larger than the adopted more general language directing the police to inventory all for a search of a locked trunk, which the back compartment of a U-Haul truck as the back of a U-Haul truck, the Kensington policy specifically provided only ed. 2002). While we recognize that a trunk serves some of the same purposes

locked areas – trunks and glove compartments. Kensington could have prohibits the search of locked areas, but allows for the search of two specific glove compartment and trunk.” (Emphases added.) Thus, the policy generally unlocked areas and/or containers, although a search may be conducted of the inventory search policy states that inventory searches “shall be limited to guidelines for searching locked “areas” and “containers.” The department’s 311. In this case, Kensington has adopted a policy that provides specific neutral policy, which gives police clear guidance. Denoncourt, 149 N.H. at Bertine, 479 U.S. at 375-7 p. 6 6, an officer must conduct a search according to a searches when that discretion is exercised in light of standardized criteria, see While the police may be afforded some discretion in conducting inventory absence of the information gleaned from the inventory search and to address p. 7 determine whether there was probable cause for the search warrant in the makes sense in the circumstances of this case to remand to the trial court to also agree that, if the inventory search of the U-Haul truck was invalid, it majority that Captain O’Sullivan had probable cause to arrest the defendant. I LYNN, J., concurring in part and dissenting in part. I agree with the

concurred in part and dissented in part. DALIANIS, C.J., and HICKS and CONBOY, JJ., concurred; LYNN, J., 7

Reversed and remanded

issue first being decided in the trial court, see warrant. While we frequently conduct a probable cause analysis without the must be excised and cannot be used to establish probable cause for the search It is clear that any evidence obtained from the back of the U-Haul truck

warrant affidavit establishes probable cause. determinations, including whether the remaining information in the search warrant affidavit. We thus remand to the trial court to make these and other defendant has standing to challenge the use of that statement in the search Dzenowagis’s statement was a fruit of the unlawful search or whether the and then sold the metal in Massachusetts. Neither party addressed whether had recently transported significant quantities of scrap metal in a U-Haul truck post-Miranda statement from Dzenowagis and information that Dzenowagis evidence, the affidavit contains other evidence of criminal activity, including a to make the determination in this case. Even without the illegally obtained (decided November 30, 2010), we believe that the trial court is best positioned probable cause. See, e.g., State v. Orde, 161 N.H. __ remainder of the affidavit examined to determine whether it establishes should be excised from the affidavit in support of the warrant and the Article 19 of our State Constitution, the information obtained from that search Because the warrantless search of the defendant’s U-Haul violated Part I, probable cause. examine the remaining information to determine whether it establishes III The State contends that we should excise the tainted information and then probable cause because the trial court has not previously considered the issue. whether the affidavit, absent the illegally obtained evidence, still establishes 1009 (2003). The defendant urges us to remand to the trial court to determine

U.S. 946 (1999). department, it tends to ensure that the intrusion is limited”), cert. denied, 528 search is carried out in accordance with standard procedures in the local police the record contains no indication that he ever raised it before the trial court. p. 8 this argument is that, although the defendant raises it in his appellate brief, acted with the purpose to conduct a search for evidence. The short answer to defendant’s argument that Captain O’Sullivan violated the policy because he O’Sullivan to inventory the box of the U-Haul truck, I must also address the Because I would find that the Kensington police policy allowed Captain

if locked. Since the box of the U-Haul truck fits this description, it may be searched even functional or generic sense, to refer to the cargo storage area of a vehicle. outside the vehicle. In my view, the policy uses the term “trunk” in a of such areas more narrowly than the search of an automobile trunk. Cf policy, a locked trunk can be searched even if it can be unlocked only from automobile, it is implausible that the policy was intended to restrict the search how this distinction has any bearing on the issue at hand because, under the U-Haul truck, which contain larger cargo areas than the trunk of a typical vehicle, the U-Haul could only be unlocked from the outside. But I fail to see automobiles where the trunk is accessible or can be unlocked from inside the interpretation of administrative regulations). It is true that, unlike many inventory search doctrine, i.e. Pittsfield “trunk” means “the luggage compartment of an automobile though it was locked. Indeed, given that the three interests which underlie the, 160 N.H. 604, 606 (2010) (principles of statutory construction govern would lead to an absurd result” (quotation omitted)); Appeal of Town of search of the trunk of a vehicle even if it is locked. As the majority notes, of the trunk of an automobile, it was subject to search under the policy even “will not interpret statutory language in a literal manner when such a reading The Kensington Police Department’s inventory search policy permits the because the cargo area or “box” of the U-Haul truck is the functional equivalent require an illogical result); Appeal of Geekie That being the case, I agree with the reasoning of the superior court that,, 157 N.H. 195, 202 (2008) (court v. Rollins-Ercolino, 149 N.H. 336, 341 (2003) (court will not interpret statute to transported or drawn upon a way”).. State mechanical device in, upon or by which any person or property is or may be

danger, are heightened – not lessened – in the case of vehicles, such as the claims against the police, and protection of the police and the public from

certain exceptions not relevant here, statute defines “vehicle” as “every carrier of goods or passengers.” Id. at 2538; see also RSA 259:122 (2004) (with But the policy applies to all vehicles, not just to automobiles. A “vehicle” is “a New International Dictionary 2456 (unabridged ed. 2002) (emphasis added).

department policy concerning such searches. with the majority’s conclusion that the inventory search violated the police the standing and “fruits” issues identified by the majority. I disagree, however, p. 9 9

would affirm the defendant’s conviction. the majority opinion that holds the inventory search invalid. I, therefore, For the reasons stated above, I respectfully dissent from that portion of

issues raised on appeal were presented to trial court). ___, 2011 WL 723133, *6 (Feb. 25, 2011) (appellant must demonstrate that For this reason, I need not consider it further. State v. Winward, 161 N.H. ___,