The defendant, Jae Pseudae, appeals his conviction of one misdemeanor count of criminal threatening, see RSA 681:4 (Supp. 2005), which was subject to an enhanced penalty, see RSA 651:6, 1(g) (Supp. 2005), one misdemeanor count of disorderly conduct, see RSA 644:2 (1996) (amended 2005), and one misdemeanor count of resisting arrest or detention, see RSA 642:2 (1996), following a jury trial in Superior Court (Smukler, J.). We affirm.
The record supports the following facts. On January 12, 2005, Concord police officers were dispatched to 42 Dunklee Street in Concord in response to a report that an individual was threatening to kill himself with a gun. The Concord police dispatcher made telephone contact with the individual, later identified as the defendant, and informed him that Concord police officers were outside his residence to ensure his safety. The dispatcher continued to speak with the defendant and asked him to go outside to speak with the officers. One of the officers on the scene testified that during this time, “[i]t looked like there were two females moving about the house.”
Eventually, the defendant came out of the house yelling and began to walk toward Officer Cebollero with his hands in his pockets. Cebollero ordered the defendant to take his hands out of his pockets, but he refused and continued to advance. Cebollero repeatedly ordered the defendant to take his hands out of his pockets, but he still refused. The defendant continued to advance until his chest was pressed against Cebollero’s rifle. Eventually, Cebollero cast his rifle aside and tackled the defendant. A search of the defendant revealed that he was not armed.
After the defendant was in custody and taken to a secure location, several officers entered the residence without consent or a warrant. Upon entering the residence, the police confronted a twenty-three-year-old female, a sixteen-year-old female, a fifteen-year-old female and a three-year-old male, and asked them to wait outside while they secured the area. On the second floor of the residence, the officers found some guns in the owner’s bedroom but did not seize them. While searching the second floor the officers also came upon a locked door which they had been told was the defendant’s bedroom. They knocked, announced their presence and then kicked the door down. They saw a loaded .22 caliber rifle on the bed and a summons with the defendant’s name on it tacked to the wall. The officers determined the rifle belonged to the defendant and seized it.
Prior to trial, the defendant moved to suppress the rifle and other items found inside his room. He argued that the State failed to prove by a preponderance of the evidence that the warrantless search was constitutionally permissible. During the suppression hearing, Officer Wright testified that he “took up a position with several other officers to secure the ... house, because ... [they] didn’t know if [the defendant] was ... the only person in there that was armed or what was happening.” He testified that they were concerned because they “didn’t know if there were any more children in there or if there ... was another subject in there with a gun.” The Trial Court (Fitzgerald, J.) denied the motion to suppress, finding that the “situation was sufficiently exigent to justify the entry under the exigent circumstances exception.” The rifle was introduced at trial in support of the criminal threatening charge. The jury convicted the defendant of all charges. This appeal followed.
On appeal, the defendant argues that the trial court erred in denying his motion to suppress the rifle. The defendant contends
We first address the defendant’s claim under the State Constitution, relying on federal case law only for guidance.
State v. Ball,
The defendant argues that the trial court erred in finding that there were exigent circumstances sufficient to justify the officers’ warrantless entry into his locked bedroom and the seizure of the rifle. We agree.
When reviewing a trial court’s motion to suppress, we accept the trial court’s findings unless they are unsupported by the record or clearly erroneous.
See State v. Johnston,
The State contends that the search and seizure were valid under the “emergency aid” and “exigent circumstances” exceptions to the warrant requirement. However, the defendant contends that “both the State, and the trial court, expressly relied on the exigent circumstances exception, rather than the emergency aid doctrine,” and therefore “only the exigent circumstances exception is properly at issue.” The State agrees with the defendant that the trial court relied on the exigent circumstances exception to the warrant requirement, but contends that it is clear from the arguments advanced during the suppression hearing that the State had “blurred the distinction between the ‘emergency exception and the ‘emergency aid’ exception,” and that both arguments are properly before the court.
A review of the record shows that the emergency aid exception was not specifically asserted by the State. However, the State did argue, among other things, that there were exigent circumstances to justify entering the defendant’s room because the officers were not certain if there were other persons inside the home who might have access to a gun. Although the emergency aid exception was not addressed by the trial court, a review of the record shows that sufficient facts were presented during the suppression hearing such that we may review this issue on appeal.
See State v. Berry,
On appeal, the State argues that the defendant’s ambiguous response to the 911
Under the exigent circumstances exception, the police can make a seizure without a warrant where they have probable cause to seize and exigent circumstances exist.
State v. MacElman,
Here the trial court determined that “[b]ecause there were several people in the house, any of who [sic] could have removed the defendant’s gun before a search warrant was obtained,... that exigent circumstances justified] the officers’ warrantless search of the defendant’s room and seizure of the rifle therein.” We are not convinced that this situation was sufficiently exigent to justify the entry into the defendant’s locked bedroom and seizure of the rifle under the exigent circumstances exception. At the time the officers entered the defendant’s room he had already been taken into custody. His bedroom door was locked and there was no reason why the officers could not have obtained a warrant before kicking down the door. When the officers asked the women they initially encountered inside if anyone was upstairs, the women responded that “they didn’t believe anyone else was in the house.” It was the defendant who had been suicidal and irate. He was securely in custody at the time of the warrantless search.
The facts of this case do not rise to the level of urgency demonstrated in previous cases where we have upheld warrantless emergency entries into private dwellings. In
State v. Slade,
Accordingly, we conclude that the evidence presented is insufficient to support a reasonable belief that evidence would be destroyed or that there was a threat of imminent danger to life or public safety.
The State also argues that the search was justified under the emergency aid exception. In
MacElman,
we adopted the following
standard for applying the emergency aid exception: “The State must show: (1) the police have objectively reasonable grounds to believe that there is an emergency at hand and an immediate need for their assistance for the protection of life or property; (2) there is an objectively reasonable basis, approximating probable cause, to associate the emergency with the area or place to be searched; and (3) the search is not primarily motivated by intent to arrest and seize evidence.”
MacElman,
For the reasons given above in our discussion of the exigent circumstances exception, we rule that the evidence presented would not support a finding of an emergency sufficient to justify the warrantless entry into the defendant’s locked bedroom. Therefore, we hold that the warrantless entry was not justified under the emergency aid exception.
Finally, the State argues harmless error. It is well settled that an error is harmless only if it is determined, beyond a reasonable doubt, that the verdict was not affected by the error.
State v. Mason,
The defendant was convicted of misdemeanor criminal threatening. Although both the State and the defendant argue on appeal under the assumption that the defendant was charged with felony criminal threatening, the record shows that the defendant was in fact charged with and convicted of a misdemeanor, which was subject to an enhanced sentence. To convict the defendant of misdemeanor criminal threatening, the State had to prove that the defendant: (1) threatened to commit a crime; (2) against the person of another; (3) with a purpose to terrorize that person. RSA 631:4,1(d);
see also State v. Morabito,
In this case, the evidence of the defendant’s guilt was overwhelming. The improperly seized rifle, while relevant to demonstrate his “purpose to terrorize,” RSA 631:4,1(d), was inconsequential in relation to the strength of the State’s evidence of guilt. This evidence included testimony that, when Officer Cebollero arrived at 42 Dunklee Street to respond to a report of an armed man threatening suicide,
Further, in the defendant’s conversation with the Concord police dispatcher, which occurred immediately before the defendant emerged from the house, he expressed his disdain for police officers in general and Concord police officers in particular. He told the dispatcher that he did not want “you guys to get in my... way and meet me out front to see if I had a gun.” When the dispatcher told the defendant that she wanted to let the officers know when he’s walking out of the house, the defendant said: “So what, [s]o you don’t get [an] ambush. Listen, [i]f I wanted to ambush you ... I’d ambush you guys, ok?”
The overwhelming evidence shows that the defendant threatened to commit a crime (murder) against a person he knew was a police officer (Officer Cebollero) with the purpose to terrorize that person. Any evidence that the defendant left a rifle in a locked bedroom on the second floor before emerging from the house was largely inconsequential. Had it been excluded, the jury would still have had before it uncontroverted and overwhelming evidence of the defendant’s intent, through his words and
actions directed at Officer Cebollero.
See Smith,
Therefore, any error the trial court may have made in admitting the rifle into evidence was harmless beyond a reasonable doubt as to the criminal threatening conviction. Additionally, since the rifle was not used to support the charges of disorderly conduct and resisting arrest, its admission also constituted harmless error with regard to those convictions.
Affirmed.