Preview:

NOTICE: This opinion is subject to motions for rehearing under Rule 22 as well as formal revision before publication in the New Hampshire Reports. Readers are requested to notify the Reporter, Supreme Court of New Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any editorial errors in order that corrections may be made before the opinion goes to press. Errors may be reported by E-mail at the following address: reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 a.m. on the morning of their release. The direct address of the court's home page is: http://www.courts.state.nh.us/supreme. THE SUPREME COURT OF NEW HAMPSHIRE ___________________________ Concord District Court No. 2005-261 THE STATE OF NEW HAMPSHIRE v. MICHAEL COHEN Argued: May 17, 2006 Opinion Issued: August 22, 2006 Kelly A. Ayotte, attorney general (Stephen D. Fuller, senior assistant attorney general, on the brief and orally), for the State. John G. Vanacore, of Concord, by brief and orally, for the defendant. BRODERICK, C.J. The defendant, Michael Cohen, appeals an order from the Concord District Court (Cullen, J.) denying his motion for return of property. We affirm. The record supports the following. Cohen owns a record store in Concord. In 2002, the State executed a search warrant at the store and seized several hundred compact discs belonging to Cohen, which he had been offering for sale. Cohen was charged with seven misdemeanor counts of transferring, with intent to sell, copies of recordings made without the express written consent of

their owners or performers. See RSA 352-A:2 (Supp. 2005). Cohen was never convicted of any of the charges, as some were dismissed and the State chose not to prosecute others. It appears that the State was unable to prove that Cohen knew or should have known that the tapes were created without the permission of the owners or performers. Cohen then moved to have the compact discs returned to him. The State objected, arguing that the compact discs were contraband. During the hearing, Cohen's attorney stated, "In fact, we concede if the CDs ended up back up in his store, he was selling those CDs again, it would be an entirely new offense." Cohen makes similar concessions on appeal. The trial court denied Cohen's motion, stating, "The items in question were being offered for sale when they were seized. It would be illegal to sell these items knowing that they are counterfeit." The defendant then filed a motion to reconsider, to which the State objected. That motion was denied, and this appeal followed. The legislature has established procedures governing the protection and return of property seized for possible use at trial. RSA 595-A:6 (2001). These rules state, in relevant part: Upon application by a prosecutor, defendant, or civil claimants, the court . . . shall, upon notice to a defendant and hearing, and except for good cause shown, order returned to the rightful owners any . . . property of evidential value, not constituting contraband. . . . All other property seized in execution of a search warrant or otherwise coming into the hands of the police shall be returned to the owner of the property, or shall be disposed of as the court or justice orders, which may include forfeiture and either sale or destruction as the public interest requires, in the discretion of the court or justice, and in accordance with due process of law. Id. On appeal, Cohen argues that the compact discs are not contraband, and additionally that there is no public interest that would require their forfeiture. We review a trial court's ruling on the disposition of property under RSA 595-A:6 for an unsustainable exercise of discretion. State v. Gero, 152 N.H. 379, 381 (2005). To show that the trial court's decision is not sustainable, a party must demonstrate that the court's ruling was clearly untenable or unreasonable to the prejudice of his case. Id. Cohen concedes that an innocent party may lose his property under forfeiture statutes. See Bennis v. Michigan, 516 U.S. 442, 453 (1996) (upholding forfeiture of wife's car when used by husband to solicit prostitute); Dobbins's Distillery v. United States, 96 U.S. 395, 402 (1877) (upholding forfeiture of lessor's property when used for illegal purposes by lessee); The

2

Palmyra, 25 U.S. 1, 14 (1827) (upholding forfeiture of ship by owner where he did not know it was used for privateering). This concept is, in part, rooted in the notion that "[t]he thing is here primarily considered as the offender," even if its owner is not. The Palmyra, 25 U.S. at 14. Cohen argues, however, that his case is distinguishable from others because "no crime was committed by anybody with regard to the one CD for which he was tried, [but] was not found guilty." We agree that nothing in RSA 352-A:2, II(b) prohibits the possession of compact discs produced without the permission of the owners or performers. However, we disagree with Cohen's conclusion that such a determination is dispositive as to whether these discs are contraband and should be returned to him. That the possession of such compact discs is not illegal under this particular statute does not mean that the discs themselves do not constitute contraband pursuant to other statutes. Indeed, we conclude that they may constitute such contraband, or, in the alternative, that they may be derivative contraband. Contraband materials are those which are "prohibited or excluded by law or treaty: forbidden." Webster's Third New International Dictionary 494 (unabridged ed. 2002). Contraband may also be defined as "[g]oods that are unlawful to . . . possess." Black's Law Dictionary 341 (8th ed. 2004). Black's Law Dictionary further elaborates on this definition: contraband per se is "[p]roperty whose possession is unlawful regardless of how it is used"; derivative contraband is "[p]roperty whose possession becomes unlawful when it is used in committing an illegal act." Id. Cohen proposes an alternative definition, that contraband is generally "any property which is unlawful to produce or possess." We need not adopt any one of these definitions for purposes of RSA 595-A:6, however, as any of them may be applicable given the facts of a particular case. We begin by examining whether the compact discs at issue could be considered contraband per se. RSA 352-A:2, II(b) is not the only statute that governs the illegal production and distribution of compact discs. To the contrary, the legislature has made it a misdemeanor to produce or publish, without permission of the author, any uncopyrighted literary, dramatic or musical composition, as well as many other works. RSA 352:1, :2 (1995). Similarly, Congress has made it a felony to willfully infringe copyrights either of works having a value of more than $1,000, or for purposes of commercial advantage or private financial gain. 17 U.S.C.

Download 2005-261, STATE OF NH v. MICHAEL COHEN.pdf

New Hampshire Law