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5 years ago

LEX LOCI

LEX LOCI

LEX

By David Ruoff State v. Logan Schulz, decided Oct. 4, 2012, involves the reversal of the trial court’s decision to admit evidence found during the search of the defendant’s home. Or, rather, his mother’s home. As discussed below, in criminal defense circles, it will probably become known as the BB Gun Warrant case. The facts relevant to the search warrant were not in dispute. As of Oct. 29, 2010, the defendant shared a home with his mother. Officer Alling of the Haverhill Police Department went to the home to serve the defendant’s mother with a notice against trespass and harassment. While inside the home, the officer observed three long guns near a staircase. He subsequently applied for a search warrant to search the home for firearms, based on his knowledge that the defendant’s mother was a convicted felon and therefore prohibited from possessing firearms. A magistrate issued the warrant and, days later, three officers, including officer Alling, searched the home. Shortly after beginning their search, the officers learned that the three guns near the staircase that had prompted officer Alling to apply for the warrant were, in fact, BB guns that the defendant’s mother could lawfully possess. The officers nevertheless continued searching the home and ultimately asked the defendant whether there were any other guns in the house. The defendant responded that he had a muzzle loader rifle, and took the officers to his bedroom to show it to them. While in the defendant’s bedroom, officer Alling saw a lockbox that was large enough to store a handgun, but not a long gun. The officer instructed the defendant to open the box, telling him that the officers could force it open if necessary. The defendant and his mother both objected to the officer’s request, noting that the police did not have any reason to believe they had a handgun. Eventually, however, the defendant’s mother became upset to the point that she admitted there was cocaine and money in the lockbox. Consequently, the police obtained a second search warrant for the lockbox and found cocaine and money inside. LEX LOCI Following a hearing, the trial court denied the defendant’s motion to suppress the contents of the lockbox. The defendant was convicted after a bench trial and appealed the trial court’s denial of his motion. On appeal, he argued first that because the warrant lacked probable cause to search for all firearms generally, it violated state and federal constitutional particularity requirements, and second, that even if the scope of the warrant was lawful, the police should have stopped their search upon discovering that what they believed to be firearms were actually BB guns. The Court began its discussion by assuming, without deciding, that the warrant was supported by probable cause and satisfied con‑ stitutional particularity requirements. Then, referring to the greater privacy protections afforded under our state constitution than under the federal constitution, the Court noted that if it violates the New Hampshire Constitution for an officer to rely on a constitutionally defective warrant in good faith, it follows that a violation of this state’s constitution also occurs when an officer searches under a valid war‑ rant after obtaining information that “wholly dispels” the facts that formed the basis for a finding of probable cause in the first place. After discussing several federal cases at length, the Court ultimately held that when an “unambiguous and material change has occurred in the facts” such that the probable cause underlying a warrant is eliminated, police officers must terminate their search. When in doubt, police should suspend their search and obtain confirmation from a neutral magistrate that probable cause to search still exists. If the police do not follow these directives, a motion to suppress should be granted if the reviewing court concludes that a magistrate would not have issued the warrant, had he or she been made aware of the new information. Turning to the facts of this particular case, the Court concluded that suppression was appropriate because once the officers discovered that the three guns initially observed by officer Alling were actually BB guns, the warrant was devoid of any other facts upon which the police could have relied in believing that a continued search was justified. The Court characterized this as being one of the rare cases in which the police actually obtained information during their search that “clearly and unambiguously” dispelled probable cause. The Court was 50 New Hampshire Bar Journal Winter 2013

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