State v. BradburyState v. Bradbury
- Reporters:
- , ,
- Before:
- Kenison
The defendant was indicted for possession of marijuana.
The agreed statement of facts in its entirety reads as follows:
“Police investigating marijuana use in the Durham area determined, through surveillance and informants, that they had reason to believe that one Carol Ann Chipman had marijuana in her room at the University. They applied to the Durham District Court for ‘a warrant and order of seizure authorizing the search of (identify premises and the person or persons to be searched) Room 001, located on the first floor, first door on the left in the right corridor of the women’s dormitory known as Scott Hall which is located on the campus of the University of New Hampshire in said Durham, N. H. and directing that if
“In the course of the extensive investigation, defendant was never named, involved, suspected or connected with Miss Chipman or marijuana use in any way. He was not known to the officers who executed the search warrant.
“At about 11:45 a.m. on May 27, 1967, the officers, in Miss Chipman’s absence, entered the room as directed by the warrant, found the defendant sitting in the room, and immediately searched him. They found on his person a substance which they believed, and later confirmed, to be marijuana in the course of their search of his pocket. They then arrested defendant and charged him with possession of marijuana. Then they searched Miss Chipman’s room and found marijuana concealed in the room.
“ The foregoing statement of agreed facts is stipulated by prosecution and defense to be controlling in the determination of the issue raised by defendant’s Motion to Suppress Evidence of Possession. ”
The specific and limited question which the agreed case was designed to present is whether a valid search warrant to search designated premises authorizes the search of any individual who happens to be on the premises. While the authorities are sparse and not particularly recent it is the general rule that the answer to the question is no.
State
v. Massie, 95 W. Va. 233;
State
v. Grames, 68 Maine 418; Cornelius, Search and Seizure,
s.
233 (2d
ed.
1930); Davis, Federal Searches and Seizures,
s.
2.83 (1964 ). In
Purkey
v.
Maby,
33 Idaho 281 it was stated that a search warrant to search a certain place “ . . . cannot be extended so as to constitute authority for the officer to whom it was issued to search a person, not connected in any way with the place being searched, who merely happens to be upon the premises and who is not mentioned or described in the affidavit of probable cause upon which the warrant was issued.” See 1 Varon, Searches, Seizures and Immunities, 378 (1961). Additional authority, by way of dictum, is found in
United States
v.
Di Re,
332 U. S. 581, 587, where it was observed that a
During the oral argument of this case it was suggested that the officers were entitled to “frisk” the defendant for dangerous weapons. In the factual posture of this case, the suggestion is more imaginative than realistic but the short answer is that there is no evidence in the agreed case to support it directly or indirectly.
Terry
v.
Ohio,
88 Sup. Ct. 1868. It is also argued that finding marijuana in the room of a person known to be a “pusher” or seller gave the officer probable cause to arrest the defendant under
Finally, it is argued that under all the circumstances there was probable cause to arrest the defendant for possession of marijuana and to search him incident to the arrest. Again the agreed facts provide no basis for a finding of probable cause to arrest the defendant in advance of the search of his person. Whether, as argued by counsel, the defendant went to the room to borrow a “Pall Mall” or whether the defendant was observed by the officers to be propped up against the wall in a euphoric state are matters upon which the agreed case throws no light. All these arguments point up the pertinency of the following observation in Sibron v. New York, 88 Sup. Ct. 1889, 1901: “The constitutional validity of a warrantless search is preeminently the sort of question which can only be decided in the concrete factual context of the individual case.”
Under the well-established law in this state an agreed case is decided in this court on the record before it. If there is to be any amendment or change of the agreed facts permission must be obtained from the Trial Court so to do.
State
v.
Corron,
73 N. H. 434, 461-462;
Bull
v.
Gowing,
85 N. H. 483, 486. We in haste no opinion favorable to the prosecution or to the defense
Remanded.
All concurred.