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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 ___________________________

Rockingham No. 2010-059

THE STATE OF NEW HAMPSHIRE v. CHRISTOPHER NEWCOMB Argued: February 10, 2011 Opinion Issued: April 12, 2011 Michael A. Delaney, attorney general (Jacqueline J. Rompre, assistant attorney general, on the brief and orally), for the State.

Lothstein Law Office, PLLC, of Concord, (Theodore Lothstein on the brief and orally), for the defendant.

DUGGAN, J. The defendant, Christopher Newcomb, appeals a decision of the Superior Court (Lewis, J.) denying his motion to suppress evidence obtained as a result of his arrest for criminal trespass and the subsequent inventory search of his rented U-Haul truck. We reverse and remand. The record supports the following facts. On February 25, 2008, the Kensington Police Department received a report that two men with a U-Haul truck were parked at 9 Old Amesbury Road. A neighbor of the property owners

told police that no one was supposed to be on the property because the owners were out of town. Captain Jeremiah O'Sullivan arrived at the home and observed the truck in the driveway, backed up to a closed garage door. The UHaul was a "box-like truck, with an interior section for passengers and a separate section in the back for item storage and transporting." As O'Sullivan approached, he heard the defendant yell something and then get into a car parked on the property. Seconds later, O'Sullivan saw a man's head pop out from behind the U-Haul and quickly dart back behind it. That man, Timothy Dzenowagis, then came out from behind the truck and approached O'Sullivan. Dzenowagis told O'Sullivan that he was moving and planned to leave the truck on the property while waiting for his aunt, who owned the home. When O'Sullivan asked for identification, Dzenowagis provided a New Hampshire identification card. O'Sullivan testified that Dzenowagis's voice was trembling and his hands were shaking. At this point, O'Sullivan ordered Dzenowagis to put his hands on the cruiser and also ordered the defendant to get out of the car and put his hands on the cruiser. The defendant appeared extremely nervous and told O'Sullivan that he had driven the U-Haul to the property and that the car belonged to a friend from Newmarket. However, when O'Sullivan asked who drove the car to the property, neither man responded. Two neighbors then arrived with a cell phone and told O'Sullivan that the property owner, Melissa Dzenowagis, wanted to speak to O'Sullivan. O'Sullivan told the property owner that her nephew and another man were on the property. The property owner told him that she wanted them arrested and any vehicles removed from the property. The property owner also stated that she had told Dzenowagis that he was not allowed on the property and asked O'Sullivan to check the house because Dzenowagis was likely stealing something. At this point, the defendant and Dzenowagis provided O'Sullivan with a U-Haul rental agreement, which showed that the U-Haul had been rented the previous night in the defendant's name. The defendant and Dzenowagis both told O'Sullivan that nothing was inside the U-Haul. When O'Sullivan stated that he thought the truck was loaded with furniture, neither the defendant nor Dzenowagis responded. After the defendant refused consent to search the truck, O'Sullivan arrested the defendant and Dzenowagis for criminal trespass and impounded the U-Haul and car. O'Sullivan then conducted an inventory search of both vehicles because the men gave conflicting statements regarding what was inside the truck, the truck was on someone else's property, and he needed to determine the truck's contents prior to bringing it to the police department in order to protect the safety of the officers and the public. He testified that he conducted inventory

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searches of both vehicles pursuant to the department's inventory search policy. He unlocked the storage space of the U-Haul, which was padlocked, with a key he found attached to the defendant's belt. Inside the storage area of the truck, O'Sullivan observed building materials and copper tubes, pipes and wire. He immediately ended the search and applied for a search warrant. The affidavit for the search warrant included a description of the fruits of the inventory search. Prior to trial, the defendant filed two motions to suppress, both of which challenged the admissibility of evidence found in the U-Haul. In the first motion, he argued that he was arrested without probable cause and that the search of the U-Haul was not a proper inventory search. In the second motion, he argued that O'Sullivan's supporting affidavit did not establish probable cause to obtain a search warrant. The trial court conducted a consolidated hearing on the defendant's motions and similar motions filed by Dzenowagis and denied them in a written order. The defendant subsequently submitted to a stipulated facts trial and was found guilty by the trial court. I On appeal, the defendant first argues that the police lacked probable cause to arrest him for criminal trespass. He contends that while O'Sullivan had reasonable suspicion to temporarily detain him for investigation, the result of that investigation did not amount to probable cause to arrest him. Specifically, he asserts that at the time of his arrest there was no probable cause that he "knew he was not allowed to be on the premises." An officer has probable cause to arrest when he has "sufficient, trustworthy information to warrant a reasonable person to believe that the arrestee has committed a crime." State v. Vandebogart, 139 N.H. 145, 163 (1994). In determining whether the police had probable cause, we review "reasonable probabilities and not the amount of evidence required to sustain a conviction or to make out a prima facie case." State v. Jaroma, 137 N.H. 562, 567 (1993) (quotation omitted). We are not bound by mathematical calculations in making this determination, but instead "must approach the issue with a concern for the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act." Vandebogart, 139 N.H. at 163 (quotation omitted). RSA 635:2, I (2007) provides that "[a] person is guilty of criminal trespass if, knowing that he is not licensed or privileged to do so, he enters or remains in any place." Contrary to the defendant's argument, at the moment O'Sullivan placed the defendant under arrest, O'Sullivan had ample evidence suggesting that the defendant knew he was not allowed on the premises. When O'Sullivan approached the property, the defendant immediately yelled

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something and got into a car, which O'Sullivan found to be suspicious. He also appeared "extremely nervous" throughout his interaction with O'Sullivan, see State v. Rodrigue, 127 N.H. 496, 498 (1985) (defendant's "nervous manner" was a factor supporting probable cause), and admitted that he came to the property with Dzenowagis. Furthermore, O'Sullivan received a phone call from the property owner, who told him that Dzenowagis knew he was not allowed on the property and that she wanted both men arrested. Additionally, O'Sullivan knew that the defendant rented the U-Haul and drove it to the property. We again emphasize that probable cause is a commonsense rather than technical concept and "deals with the reasonable probabilities upon which officers must act quickly for the protection of society rather than with the proof beyond reasonable doubt which the State must have to proceed to trial and conviction." State v. Hutton, 108 N.H. 279, 287 (1967) (quotation omitted). Accordingly, these facts, taken as a whole, provided O'Sullivan with probable cause to arrest the defendant for criminal trespass. II The defendant next contends that the inventory search of his rented U-Haul truck violated Part I, Article 19 of the New Hampshire Constitution and the Fourth Amendment of the United States Constitution because the Kensington Police inventory search policy did not authorize the search of a padlocked U-Haul truck. He disputes the trial court's determination that the locked storage area of a U-Haul truck fits within the meaning of a "trunk" as used in the department's inventory search policy. He also asserts that the search violated the policy because it was not conducted for a non-investigative purpose. When reviewing a trial court's ruling on a motion to suppress, we accept the trial court's findings unless they lack support in the record or are clearly erroneous. State v. Craveiro, 155 N.H. 423, 426 (2007). However, we review the trial court's legal conclusions de novo. Id. We decide this case based upon our interpretation of the New Hampshire Constitution, citing federal cases only to aid in the analysis. See State v. Pinkham, 141 N.H. 188, 189 (1996). Because we determine that the search violated the defendant's rights under the State Constitution, we need not reach the federal issue. See State v. Ball, 124 N.H. 226, 237 (1983). Part I, Article 19 of the New Hampshire Constitution provides that every citizen has "a right to be secure from all unreasonable searches and seizures of his person, his houses, his papers, and all his possessions." Warrantless searches are per se unreasonable unless they fall within the narrow confines of a judicially crafted exception. Craveiro, 155 N.H. at 426. The State has the

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burden of proving that a search falls within one of the exceptions. State v. Denoncourt, 149 N.H. 308, 310 (2003). Inventory searches fall within a "well-defined exception to the warrant requirement of the Fourth Amendment." Colorado v. Bertine, 479 U.S. 367, 371 (1987). Such searches are permissible because they serve important noninvestigative government interests, including protecting an owner's property while in the custody of police, insuring against claims of lost, stolen, or vandalized property, and guarding the police from danger. Denoncourt, 149 N.H. at 311. We have previously recognized that inventory searches are permissible so long as they are conducted pursuant to a neutral police policy. Id.; see also Bertine, 479 U.S. at 374 (police conducting an inventory search must act pursuant to reasonable police regulations). Such a policy reduces police discretion to search at will and turn an inventory procedure into an investigative search. Com. v. Garcia, 569 N.E.2d 385, 389 (Mass. 1991). The relevant portion of the Kensington police inventory search policy provides: Whenever a vehicle is subject to police impoundment (physical custody by this agency) a full inventory search will be conducted and all items located throughout the vehicle will be listed on the motor vehicle inventory form in the police report. An inventory search must be non-investigative, be designed to protect the interest of the owner, the police and society, and shall be limited to unlocked areas and/or containers, although a search may be conducted of the glove compartment and the trunk. If an officer has probable cause prior to the inventory search, then a search warrant shall be obtained. If probable cause develops during the inventory search, the search shall cease and the officer shall apply for a search warrant. In determining that the inventory search was permissible, the trial court acknowledged that the policy did not "expressly discuss an inventory search of the locked back of a U-Haul vehicle," but concluded that such a storage area "may fairly be considered as fitting within the concept or meaning of a `trunk' as that term is used in the policy." The defendant contends that the trial court misinterpreted the policy, which demonstrates that the policy gives too little guidance and too much discretion to police officers in the field. See Denoncourt, 149 N.H. at 311-12. The State maintains that the search was consistent with the objectives behind the inventory search policy and did not exceed the scope of the policy because it provided for the search of a locked trunk.

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While the police may be afforded some discretion in conducting inventory searches when that discretion is exercised in light of standardized criteria, see Bertine, 479 U.S. at 375-76, an officer must conduct a search according to a neutral policy, which gives police clear guidance. Denoncourt, 149 N.H. at 311. In this case, Kensington has adopted a policy that provides specific guidelines for searching locked "areas" and "containers." The department's inventory search policy states that inventory searches "shall be limited to unlocked areas and/or containers, although a search may be conducted of the glove compartment and trunk." (Emphases added.) Thus, the policy generally prohibits the search of locked areas, but allows for the search of two specific locked areas

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