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THE SUPREME COURT OF NEW HAMPSHIRE
___________________________
Rockingham
No. 96-124
THE STATE OF NEW HAMPSHIRE
v.
ANTONIO GRACA
March 23, 1998
Steven M. Houran, acting attorney general (Richard J. Lehmann, attorney, on the brief and orally), for the State.
Donald E. Bisson, assistant appellate defender, of Concord, by brief and orally, for the defendant.
THAYER, J. The defendant, Antonio Graca, appeals his conviction for attempted theft by unauthorized taking. See RSA 629:1 (1996); RSA 637:3 (1996). He argues that the Superior Court (McHugh, J.) erred in denying his motions to suppress statements made and evidence found at the scene of the incident. We affirm.
On June 8, 1995, at approximately 2:00 a.m., Officer Dateo of the Derry Police Department, while on routine patrol, observed the defendant and Fernando Torres walking in the parking lot of an apartment complex. The two men approached Officer Dateo's cruiser and the defendant initiated contact. The defendant, Torres, and Officer Dateo engaged in some brief conversation.
At the time of the encounter, Officer Dateo was aware of the New Hampshire loitering statute, RSA 644:6 (1996), under which he was allowed to request basic information from any individual appearing at a place and time "that warrant[s] alarm for the safety of persons or property." Id. The defendant's statements, and the initial unsatisfactory explanation of the pair's presence in the parking lot at such an hour, caused Officer Dateo concern. Officer Dateo asked the men to step in front of his cruiser so that he could exit his vehicle before continuing questioning. Out of concern for his safety, Officer Dateo asked if the men would submit to a pat-down search. They consented.
Unaware that any crime had been committed, Officer Dateo continued his questioning about the defendant's identity and reason for being in the parking lot. The defendant stated that they were there to see women they had met earlier. However, he was unable to provide either the names of the women or the apartment in which they were staying. When asked how he had arrived at the apartment complex, the defendant said that he had ridden in a blue car that he believed to be a Nissan. The defendant was unsure of the present location of the car.
Having noticed that the men's pants were damp about the ankles during his pat-down search, Officer Dateo questioned the defendant about the condition of his pants. The defendant said that he had come from a lower level of the complex, requiring him to climb a hill covered with wet grass.
While Officer Dateo was speaking to the defendant and Torres, Officer Santuccio arrived. About this time, a police dispatch operator informed the officers that two males had been seen in the area tampering with a motorcycle. Officer Dateo concluded that the description of the two males matched the appearance of Torres and the defendant. At this time, Kevin LaBelle, a resident of the apartment complex, arrived. LaBelle identified the defendant and his companion as the two men he had seen walking away from his motorcycle.
Officer Santuccio testified that Torres told him that the pair had arrived in a blue Nissan by themselves. Leaving the upper lot to check the motorcycle for damage, Officer Santuccio spotted a blue Nissan. Upon closer examination, he saw an individual lying down in the back seat. Simultaneously, he was informed over his radio that Torres had recently been arrested for armed robbery in Massachusetts. Concerned by this information and the presence of an unexpected third person, Officer Santuccio drew his gun and ordered the individual out of the car. The individual was slow to comply but eventually exited the car. At this time, Officer Santuccio noticed that the vehicle's trunk was ajar. Fearing the presence of another unexpected individual, Officer Santuccio lifted the trunk as a protective measure. In plain view, he observed a dent puller with the motorcycle's ignition lock still on it.
On LaBelle's identification, the defendant and Torres were arrested and charged with attempted theft by unauthorized taking. Prior to trial, the defendant moved to suppress both the evidence found in the trunk and his statements made after Officer Dateo exited his cruiser. The trial court denied these motions and the defendant was subsequently convicted. He now appeals the denial of his motions to suppress.
I. Motion to Suppress Evidence in Trunk
The defendant first argues that the trial court erred in denying his motion to suppress evidence found in the trunk based on part I, article 19 of the New Hampshire Constitution and the fourth amendment to the United States Constitution. We consider the defendant's claims, first, under our State Constitution, see State v. Ball, 124 N.H. 226, 232, 471 A.2d 347, 351 (1983), using federal case law only to assist our analysis. See Michigan v. Long, 463 U.S. 1032, 1049-50 (1983); State v. Smith, 141 N.H. 271, 274, 681 A.2d 1215, 1217 (1996). The Federal Constitution offers no greater protection in this context. Smith, 141 N.H. at 275, 681 A.2d at 1218.
Part I, article 19 provides that "[e]very subject hath a right to be secure from all unreasonable searches and seizures of his person, his houses, his papers, and all his possessions." "A warrantless search is per se unreasonable and invalid unless it comes within one of a few recognized exceptions." State v. Theodosopoulos, 119 N.H. 573, 578, 409 A.2d 1134, 1137 (1979), cert. denied, 446 U.S. 983 (1980). "Absent a warrant, the burden is on the State to prove that the search was valid pursuant to one of these exceptions." State v. Sterndale, 139 N.H. 445, 447, 656 A.2d 409, 410 (1995).
One such exception exists for exigent circumstances that make it impracticable to obtain a warrant. State v. MacDonald, 129 N.H. 13, 20, 523 A.2d 35, 39 (1986). "[W]hether exigent circumstances exist is largely a question of fact to be determined by the trial court which we will not disturb unless clearly erroneous." Id. at 21, 523 A.2d at 39 (emphasis added) (implying that determinations of whether exigent circumstances exist also involve questions of law). We have held that "exigent circumstances refer to those situations in which law enforcement agents will be unable or unlikely to effectuate an arrest, search, or seizure, for which probable cause exists, unless they act swiftly and, without seeking prior judicial authorization." Id. at 20, 523 A.2d at 39 (quotation omitted). Exigent circumstances also exist where there is a compelling need for immediate official action and a risk that the delay inherent in obtaining a warrant will present a substantial threat of imminent danger to life or public safety. Id. This appeal concerns the latter exigent circumstances situation.
The State argues, and the trial court found, that Officer Santuccio had a legitimate concern for his safety when he observed the vehicle's trunk ajar. He was aware that Torres had recently been arrested for armed robbery. Furthermore, Officer Santuccio had just been surprised by an unexpected person in the car and thought yet another subject awaited him in the trunk. We agree with the trial court that this concern constituted exigent circumstances.
We find instructive the case law developed in connection with concern for officer safety during residential arrests and searches. See Maryland v. Buie, 494 U.S. 325, 334 (1990); United States v. Daoust, 916 F.2d 757, 759 (1st Cir. 1990); Smith, 141 N.H. at 277, 681 A.2d at 1219. In Buie, the United States Supreme Court held that
[t]he Fourth Amendment permits a properly limited protective sweep in conjunction with an in-home arrest when the searching officer possesses a reasonable belief based on specific and articulable facts that the area to be swept harbors an individual posing a danger to those on the arrest scene.
Buie, 494 U.S. at 337. Such a sweep should be limited to a "cursory inspection of those spaces where a person may be found. The sweep [may] last[] no longer than is necessary to dispel the reasonable suspicion of danger . . . ." Id. at 335-36. See generally 3 W. LaFave, Search and Seizure: A Treatise on the Fourth Amendment