The defendant, Jeffery A. Grey, appeals an order denying his motion to suppress the fruits of an allegedly unconstitutional entry and custodial interrogation, which resulted in his three convictions for
The record supports the following facts. On July 11,1999, the defendant was staying at his grandparents’ home located at 70 Centre Street in Concord, while his grandparents were on an extended vacation in Greece. Unknown to the defendant, prior to their departure, his grandparents had requested the Concord Police Department (CPD) to watсh their home while they were away. With this request, the defendant’s grandparents gave the CPD a list of people who were authorized to be in the house and who were to be contacted in an emergenсy. The list included a neighbor and three of the grandparents’ children. The list, however, did not include the defendant.
While the grandparents were out of the country, the CPD conducted weekly “vacant house checks” on the premises, during which a CPD officer would walk around the house, check all of the doors to make sure they were closed and locked, and look for anything out of the ordinary. On Sunday, July 11, CPD Officer Jason Wimpеy was assigned to conduct the “vacant house check.” As he walked around the premises, Officer Wimpey noticed the garage door was open and the back door to the home was unlockеd. On prior checks both had been closed and locked.
Suspecting a potential break-in or the presence of an intruder, Officer Wimpey called for backup to assist him in securing the home. When his bаckup officer arrived, both officers entered the house through its unlocked back door to look for an intruder or evidence of a break-in. Neither officer, however, called an emergenсy contact number about this potential break-in.
Upon entry, the officers found the defendant sleeping on a sofa and woke him to learn his identity. The defendant explained that he was the homeowners’ grаndson visiting the home with his mother, who was at the races in Loudon. Upon the officers’ request for identification to confirm his story, the defendant gave them his passport. When Officer Wimpey opened the defendаnt’s passport, he found two small packets of white powder, which he suspected were illegal drugs.
The officers asked the defendant if he had any more contraband in the house and the defendant told thеm he did not, denying that he even owned the white powder in his passport. The defendant then told the officers they could look around for further contraband. When the officers searched the area immediаtely around where the defendant had been sleeping, the officers found a glass pipe in the pocket of his pants, which were lying on the floor. Upon finding this pipe, the officers again asked the defendant if there was any more contraband in the house. This time, the defendant replied there was further contraband in his bedroom. The officers placed
At trial, the defendant moved to suppress evidence of the drugs as fruit of an unconstitutional warrantless entry into his grandparents’ home. The defendant also moved to suppress the statements he made after producing his pаssport as products of an unlawful custodial interrogation. After a hearing, the trial court ruled that the warrantless entry was consensual based upon the homeowners’ request that the police watch thеir home. The trial court further ruled that the defendant was not entitled to the protections of Miranda v. Arizona,
“Our review of the superior court’s order on a motion to suppress is de novo, except as to any controlling facts determined at the superior court level in the first instance.” State v. Sawyer,
The defendant first argues his grandparents’ request that the CPD watch their home during their absence did not unambiguously manifest an implied consent to enter their home in the event of a break-in. Rather, the defendant claims the CPD should have called one of the emergency contacts on the list his grandparents left with the CPD before entering their home. We disagree.
Since the defendant relies solely upon the New Hampshire Constitution, we base our decision upon the State Constitution, using federal cаses only to aid our analysis. See State v. Baroudi,
When the State seeks to establish implied consent to enter through a homeowner’s conduct, it must prove by a preponderance of the evidence that the homeowner’s conduct unambiguously manifested consent to enter. See id. at 708. This burden is satisfied if the State objectively shows the totality of the circumstances would cause a reasonable police officer to believe he was authorized to enter. See id. at 707-08. The circumstances surrounding a homeowner’s grant of consent also limits the scope of any search authorizеd by that consent. See State v. Diaz,
The trial court found the circumstances surrounding the homeowners’ request showed implied consent to a police entry into their home to investigate criminal conduct. This finding is supported in the rеcord. The homeowners gave the CPD the names of four people who were authorized to be in the house while they were away. Three were family members, and one was a neighbor who would be chеcking the mail. The homeowners gave the CPD no other instructions or limitations on their watch over 70 Centre Street.
After conducting several weekly checks and finding all doors to the home secure, it would have been objectively unreasonable for Officer Wimpey not to have entered this vacant home when he found its doors open and unsecured. See 3 W. LaFave, Search & Seizure: A Treatise on the Fourth Amendment § 6.6(b), at 403-07 (3d ed. 1996 & Supp. 2002) (citing cases). We concur with the courts from other jurisdictions which find it both impractical and unreasonable to expect a police officer reasonably believing a burglary is in progress to ignore his duties of crime prevention by stоpping to find someone to give permission to enter the home and secure the property. See id. (citing jurisdictions); see also Bilida v. McCleod,
The defendant next argues he was entitled to Miranda warnings after the drugs fell from his passport and the police asked him if they could search the house. The defendant argues that, by that time, he was in custody because the police had formed the intent to arrest him for
For Miranda warnings to apply, the police must have a defendant both in custody and under interrogation. See id. The parties here agree the police interrogated the defendant. Wе will not overturn the trial court’s factual findings relating to custody unless they are contrary to the weight of the evidence. See State v. Hammond,
For the defendant to be in custody and entitled to Miranda protections befоre questioning, he must be either formally arrested or restrained in his freedom of movement to the degree associated with a formal arrest. See Graca,
In this case, the trial court thoroughly analyzed each of these considerations when it determined the defendant was not in custody until after he had incriminated himself. A review of the record аmply supports this ruling. The defendant made his statements in the familiar environment of his grandparents’ home to two officers who had explained their presence. Additionally, the defendant made his statements after previously denying any knowledge of the drugs in his passport and inviting the police to search the house. Finally, the defendant’s incriminating statements were made while he was engaged in a cordial conversation with the police officers about the countries that his passport showed he had visited.
The trial court found, and we agree, that these facts would not make a reasonable person feel restrained to the degree of formal arrest. Upon denying a connection with the contraband and beginning a new conversation about global travel, a reasonable person would not feel restrained in that person’s grandparents’ home. The defendant here was taken into custody only upon being handcuffed after incriminating himself
Affirmed.