2011-606, State of New Hampshire v. Logan Schulz

Michael A. Delaney

No. 2011-606 Grafton

distribute, see

, assistant appellate defender, of Concord, on the

its execution. We reverse and remand. the search warrant for his home was unconstitutional both on its face and in Superior Court (Vaughan, J.) erred in denying his motion to suppress because

RSA 318-B:2, :26 (2011); RSA 626:8. He argues that the

626:8 (2007), and an accomplice to possession of cocaine with intent to reporter@courts.state.nh.us being an accomplice to possession of cocaine, see RSA 318-B:2 (2011); RSA BASSETT, J. The defendant, Logan Schulz, appeals his convictions for

brief and orally, for the defendant. ___________________________ Stephanie Hausman THE SUPREME COURT OF NEW HAMPSHIRE attorney general, on the brief and orally), for the State.

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

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

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as initial warrant lacked probable cause to search for all “firearms” generally and,

p. 2 and the Fourth Amendment of its federal counterpart: first, he argues that the

should have been suppressed under Part I, Article 19 of the State Constitution The defendant advances two reasons why the evidence against him

and, after a bench trial, convicted him of the two drug charges. The trial court denied the defendant’s motion to suppress after a hearing,

cocaine and money inside. warrant to search the lock box and, upon execution of that warrant, found and money. Based upon this information, the police obtained a second

mother then became upset and admitted that the lock box contained cocaine

the police had no reason to believe they had a handgun. The defendant’s

necessary. Both the defendant and his mother protested on the grounds that told the defendant to open it, noting that the officers could open it by force if large enough to contain a handgun but too small to contain a long gun, and

his bedroom to show it to them. In the room, Officer Alling observed a lock box

defendant informed them that he had a muzzle loader rifle and took them to asked the defendant whether there were any additional guns in the house. The the defendant’s mother to possess. The officers then continued the search and

near the staircase were, in fact, “BB” guns and were, therefore, not unlawful for

pursuant to the warrant. Early in the search, they learned that the three guns October 31, three officers, including Alling, searched the defendant’s home authorizing the police to search the defendant’s home for “firearms.” On

Based upon this information, the magistrate issued a warrant

guns I recall ever seeing. appeared to be too large to be a pellet gun and was longer than any pellet appeared to be a .22 caliber with a wooden stock. The barrel on the rifle

felon and, thus, prohibited from possessing firearms, see guns near a staircase. Knowing that the defendant’s mother was a convicted

was a black powder rifle and it appeared to have a chamber. Another

and harassment. While lawfully inside the home, Officer Alling saw three long

single shot. I did not observe a packing rod under the barrel indicating it One appeared to be a shotgun with a dark colored stock, possibly a

he described the guns as follows:

defendant shared with his mother to serve her with a notice against trespass Brandon Alling of the Haverhill Police Department went to the home that the The relevant facts are not disputed. On October 29, 2010, Officer

Alling sought a warrant to search the home. In his affidavit to the magistrate,

p. 3 State Constitution “protects all people, their papers, their possessions and and seizures.” U.S. CONST. amend. IV. Similarly, Part I, Article 19 of our

in their persons, houses, papers, and effects, against unreasonable searches Id The Fourth Amendment guarantees “[t]he right of the people to be secure

offended constitutional standards. reasonable. See

Id the evidence or contraband sought will be found in the place to be searched. sufficient facts and circumstances to demonstrate a substantial likelihood that

. at 80 n.1. After discovering incriminating evidence against the defendant, apartment at a certain address for controlled substances and related material. probable cause. Groh v. Ramirez In Garrison, police officers executed a warrant to search a third floor federal law only to aid in our analysis. State v. Ball address the defendant’s arguments under the State Constitution and rely on defendant, however, that the manner in which the warrant was executed Garrison, 480 U.S. at 84. independent basis for denying the defendant’s motion to suppress. We first requirements, the manner of its execution must in other respects be . Second, if the warrant satisfies the particularity and probable cause

To establish probable cause, the affiant need only present the magistrate and will aid in a particular apprehension or conviction. Orde, 161 N.H. at 269. would justifiably believe that what is sought will be found through the search N.H. 260, 269 (2010). Probable cause exists if a person of ordinary caution

warrant must be sufficiently particular and must be supported by a finding of Constitution. Maryland v. Garrison, 480 U.S. 79, 84, 86 (1987). First, a probable cause and satisfied the particularity requirement. We agree with the evaluating challenges to searches pursuant to a warrant under the Federal properly executed. The State does not rely upon the second warrant as an United States Supreme Court has established a two-step analysis for N.H. 115, 119 (2011) (quotation omitted); see N.H. CONST. pt. I, art. 19. The

We assume, without deciding, that the search warrant was supported by State argues that the initial warrant was supported by probable cause and was discovering that what they thought were firearms were, in fact, BB guns. The Beauchemin, 161 N.H. 654, 656 (2011). warrant was proper, the police should have discontinued the search upon novo. State v. the trial court’s factual findings unless they lack support in the record or are When reviewing a trial court’s ruling on a motion to suppress, we accept

(1983).

requirements; and second, he argues that even if the scope of the initial accordingly, violated state and federal constitutional particularity later-invalidated warrant. See p. 4 acquired during the search, became unreasonable in their execution. Cf

Constitution in the related context of police officers relying in good faith upon a adopt greater privacy protections than those provided by the Federal that were reasonable at their inception but, by virtue of information the police Indeed, New Hampshire’s constitutional traditions have caused us to

all unreasonable governmental intrusions into the home – even those searches under both the State and Federal Constitutions of protecting citizens against requirement of a warrant is particularly stringent” (quotations omitted)). that there was a mistake”). These cases are grounded in a strong tradition expectation of privacy and protection from government intrusion, the entry is made into an individual’s private dwelling, where there exists a strong

held in Canelo that the good faith exception to the exclusionary rule is

obligated to retreat as soon as they knew or reasonably should have known is no probable cause. See 133 N.H. 798, 803 (1991) (noting, in warrantless search case, that “when the know is unsupported by probable cause.); Pray v. City of Sandusky there be free from unreasonable governmental intrusion.”); State v. Santana cannot use the authority of the warrant . . . to conduct a search . . . that they, Fourth Amendment] stands the right of a man to retreat into his own home and Silverman v. United States officer would have realized these facts”); United States v. Ramirez, 365 U.S. 505, 511 (1961) (“At the very core [of the information available as the search proceeded.” Id house and detained the wrong person] reached such a level that a reasonable. U.S.C. § 1983 after “the degree of certainty [that they had searched the wrong

not a single-family structure); Liston v. County of Riverside

1154, 1159 (6th Cir. 1995) (noting “parties agreed that the officers were sufficient justification, when they know, or reasonably should know, that there, 49 F.3d

849, 852 (7th Cir. 1997) (“[O]nce [a] mistake is discovered, the government

The officers’ conduct and the limits of the search were based on the they might be in a unit erroneously included within the terms of the warrant. (9th Cir. 1997) (officers not entitled to qualified immunity in action under 42 respondent’s apartment as soon as they . . . were put on notice of the risk that, 120 F.3d 965, 978 authorized search of single-family residence when they learned that house was 98 (7th Cir. 2009) (police should have called off search under warrant that

principle that the police may not proceed with a search, absent some other Garrison was a particular application of the general constitutional

officers recognized, they were required to discontinue the search of time it is issued. Id. at 85-86. But the Court also observed that, “as the but based upon the information made available to the issuing magistrate at the upheld the warrant on the grounds that its validity is judged not in hindsight and that they had searched the wrong one. Id. at 80. The Supreme Court the police realized that there were, in fact, two apartments on the third floor of marijuana located near it. Bowling 5

p. 5 connecting the defendants to the marijuana plots. Id probable cause. Id

Id

defendants’ trailer after having been told that the defendants owned two plots

to suppress this evidence because the police had already performed a search

search, the agents continued searching and found incriminating items produced to corroborate those denials were not material to the determination of were informed about the initial search shortly after beginning the second agents arrived with the warrant and began a second search. Id. Although they cause still exists.” Id. at 929. Two hours later, after the defendants had departed, other federal magistrate, not the executing officers, who must determine whether probable defendant’s consent, searched the trailer but found no incriminating evidence. being prepared, other officers went to the trailer and, after obtaining one

agents of the United States Forest Service sought a warrant to search the their mistaken belief that Marin was Correa to the magistrate. Id Similarly, in United States v. Bowling, 900 F.2d 926 (6th Cir. 1990),

search because Marin’s denials that he was Correa and the identifications he was “Marin” and who produced two identification documents to prove it. Id. at 894. Nevertheless, the court upheld the subsequent

Correa. Marin-Buitrago underlying the magistrate’s determination of probable cause, it is the stating: “[W]hen a definite and material change has for evidence of narcotics trafficking and bail jumping connected to Cesar occurred in the facts cause must exist both when the warrant issues and when it is executed, The Second Circuit Court of Appeals agreed with the defendants that probable United States v. Marin-Buitrago. at 890, 893. the warrant on the grounds that the agents had a constitutional duty to report was made. Id. at 893. The defendants moved to suppress the evidence seized pursuant to

. A fingerprint check later confirmed that Marin was not Correa.

892. In spite of this, the agents executed the warrant and found illegal

defective warrant even if the officer relies upon it in good faith, Canelo agents arrested a person they believed to be Correa, but who insisted his name

warrants without probable cause.” Id Drug Enforcement Administration obtained a warrant to search an apartment illustrative of the principle reflected in Garrison. In that case, agents of the

wholly dispels the facts upon which the initial probable cause determination proceeds with a search under a valid warrant after acquiring information that N.H. at 387, it follows that it also violates our constitution when an officer

19 for an officer to conduct a search under authority of a constitutionally 913 (1984) (adopting federal good faith exception). If it violates Part I, Article

inherent in part I, article 19 and the prohibition against the issuance of “incompatible with and detrimental to our citizens’ strong right of privacy order to lessen the possibility that the facts upon which probable cause was

p. 6 issuance of the search warrant had changed before it was executed”); United

command that it be executed within fourteen days of issuance, see 6

“it is also necessary that search warrants be executed with some promptness in previously established probable cause has dissipated”); BeVier v. Hucal

circumstances related in the agent’s affidavit affording probable cause for the

Procedure 41(e)(2)(A)(i), which, in its current form, requires a warrant to or the Constitution.” Id

be given “reasonable latitude” to determine when a warrant is to be executed, was not using the wiretapped phone. Id States v. Nepstead arrest, “[a] person may not be arrested, or must be released from arrest, if, 424 F.2d 269, 271 (9th Cir. 1970) (while the police should

applications, such as: (1) effectuating arrests, see part because “there [wa]s nothing in the record to indicate that the States v. Lemmons, 527 F.2d 662, 664 (6th Cir. 1975) (upholding search in

their earlier probable cause.”); (2) interpreting Federal Rule of Criminal unsupported by probable cause or is otherwise outside the scope of the statute the Fourth Amendment when the police discover additional facts dissipating F.2d 123, 128 (7th Cir. 1986) (“The continuation of even a lawful arrest violates

Hotchkiss but learned, at some point during the interception, that Hotchkiss the totality of the facts available to them in establishing probable cause to Hernandez, 427 F.3d 567, 574 (9th Cir. 2005) (although the police may rely on

and throughout its execution is equally apparent in other Fourth Amendment in Ramirez The need for probable cause to exist both at the time the warrant issues In the context of wiretap warrants, the Seventh Circuit Court of Appeals

authority of the warrant . . . to conduct a search . . . that they know is conduct the second search even had the magistrate known about the fruitless proposition that, after discovering the mistake, “the government cannot use the

case had obtained a warrant to place a wiretap on a cellular phone used by of the same premises pursuant to the warrant.” Id acted,” Garrison, 480 U.S. at 85. Ramirez, 112 F.3d at 851. The police in that [police] conduct in light of the information available to them at the time they

applied Garrison ’s command to “judge the constitutionality of

found that a neutral magistrate would have found probable cause existed to Id. at 933. Nevertheless, the court did not suppress the evidence because it until a neutral magistrate determined that probable cause continued to exist.” the court continued, “the officers should have refrained from the second search

justified a warrant, new indicia of probable cause must exist to repeat a search “[W]here an initial fruitless consent search dissipates the probable cause that exist both when the warrant issues and when it is executed, recognizing: Buitrago, the Sixth Circuit Court of Appeals agreed that probable cause must which turned up nothing, thus eliminating probable cause. Id. As in Marin- p. 7 The important principle embodied in Garrison

the original finding of probable cause. See information acquired during the execution of a warrant may be consistent with

secured the area and no longer faced an ongoing threat. police discovered the mistake, including the degree to which the police had

not upon certainties but upon inferential chains of reasoning, and new

incorporates the perspective of a reasonable officer under the circumstances

probable cause determination, but also the circumstances under which the

warrant. Cf comprehensive review. Moreover, facts establishing probable cause are based split second, under dangerous conditions, that a reviewing court makes after a Officers executing warrants cannot be expected to make the same decision in a discussed above is that police officers must discontinue a search under the warrant is required in the first place. Cf and the other cases piece of information comes to light. Cf reconsider with sober reflection the basis of probable cause each time a new probable cause). That is why the standard articulated here and in other cases

must consider not only whether such new information undermines the initial they cast doubt on the existence of probable cause.”). Thus, a reviewing court

. id. (“Facts omitted from a warrant affidavit are not material unless

reasonable alternative explanations that confirm the original grounds of the inconsistent with probable cause as well as to the extent that there are consideration of new facts acquired during the search both insofar as they are and difficult process of making arrests and executing search warrants”). Cf. Marin-Buitrago, 734 F.2d at 895. This analysis necessarily involves to a warrant is a distinct constitutional inquiry from the question of whether a.

high-intensity searches, police officers will not have an opportunity to 246 (1983) (requiring only a “fair probability” of criminal activity to establish

some latitude for honest mistakes that are made by officers in the dangerous

criminal activity is afoot” (quotation omitted)). At bottom, these cases support permissible only if officer has “reasonable and articulable suspicion that other 480 U.S. at 80. We recognize that, in many situations involving risky and guns. But the same was also true of the officers in Garrison. See Garrison, they learned of the mistake – here, that the guns were not firearms but BB and in Bowling had already begun the process of executing the warrant when purported mistake before executing the warrant, the police in the instant case Of course, unlike in Marin-Buitrago, in which the police learned of the

stop to include investigation of other criminal activity is constitutionally N.H. 746, 748-49 (2001) (observing, in dicta, that expanding the scope of traffic “turn[] a reasonable seizure into an unreasonable one”); State v. Hight, 146 three-part test to determine when police officer’s questions during traffic stop e.g., State v. McKinnon-Andrews, 151 N.H. 19, 23, 24-25 (2004) (adopting initially based do not become dissipated”); and (3) conducting traffic stops, see, weapon, see

p. 8 committed, the crime of being a felon in possession of a firearm or other deadly no probable cause to believe the defendant’s mother was committing, or had (2007), no warrant would have been authorized because there would have been

threatened to be used” so as to constitute a deadly weapon, RSA 625:11, V justified. Cf

warrant were not, in fact, firearms. In so concluding, we are not imposing a

information as to how the BB guns were “used, intended to be used, or the police might have relied in continuing to believe that the search was

when they learned that the three guns that formed the sole factual basis for the

guns, rather than firearms, and given that the affidavit did not provide any considered deadly weapons. The warrant contained no other facts upon which constitutional precedents recited above. Even more so than in Garrison circumstances. Had the magistrate known that Officer Alling observed BB Suppression is therefore the appropriate remedy under the

Constitution. of the warrant was unreasonable under Part I, Article 19 of the State result, the officers’ continued search of the defendant’s home under authority

87 (emphasis added), here the police were required to discontinue searching of the risk that they might be” in the wrong apartment, Garrison, 480 U.S. at the police were required to discontinue searching after they “were put on notice

they had believed to be firearms were, in fact, BB guns. The State does not It bears emphasizing that both the standard we have employed and the police were required to discontinue their search after discovering that the guns Applying this standard to the facts of this case, we conclude that the RSA 159:3 (2002).

makes it especially clear that the police were on notice of the mistake. As a

information. See would not have issued the warrant had the magistrate known about the new suppression will be warranted if a reviewing court finds that the magistrate

probable cause, then the warrant will be upheld.”). warrant application, enough information remains to support a finding of that they were BB guns.” That Alling was both the affiant and executing officer three long rifles that [O]fficer Alling noticed on his previous visit and realized

. id. at 933. As the trial court noted, “[t]he officers examined the

that probable cause continues to exist. Should they fail to do so, the remedy of

484 (1988) (“If, when the disputed portions are stricken from the search

Bowling, 900 F.2d at 933; cf. State v. Stearns, 130 N.H. 475,

to refrain from continuing the search until a neutral magistrate determines doubt upon the ongoing justification for the search, they would be well-advised 84. To the extent that the police have encountered new information that casts occurred in the facts, eliminating probable cause. See Garrison, 480 U.S. at authority of a warrant when an unambiguous and material change has not reach the federal issue. See p. 9 Because the defendant prevails under our State Constitution, we need

19 of the State Constitution.

such a case. Accordingly, the execution of the warrant violated Part I, Article during the search clearly and unambiguously dispel probable cause, this is the warrant’s issuance. While it may be the rare case in which facts discovered

authorization for a full-scale search irrespective of developments subsequent to

Reversed and remanded

DALIANIS, C.J.