Following a jury trial in the Superior Court {Barry, J.), the defendant, Scott Robinson, was convicted of robbery and first degree assault. See RSA 636:1 (2007); RSA 631:1 (2007). He appeals his convictions, arguing that the trial court erred in denying his motion to suppress. We reverse and remand.
The record supports the following facts. On March 18, 2006, around 9:50 p.m., Manchester police responded to a reported robbery at the Cross Town Variety Store. Upon arriving, witnesses told police that a white male, twenty-five to thirty years old, roughly six feet tall and weighing 200 pounds, wearing a Patriots jacket and a green hooded sweatshirt, entered the store, went behind the counter, and stabbed the clerk at least three times before leaving with cash from the register. A witness told police that he had followed
Upon searching the area behind the counter, police found a key ring, containing three keys, one of which belonged to a Kia automobile. After the employees denied that it belonged to any of them, the police presumed that it belonged to the suspect. Responding officers were then told to be on the lookout for a Kia in the area. Officers found a Kia nearby, and confirmed that the fleeing suspect had run past that car before turning into the alley. After relaying the license plate to dispatch, police learned that the car belonged to the defendant, that he lived eight blocks from the store in the direction the suspect had run, and that he had a prior robbery conviction. At that point, officers were sent to the defendant’s apartment building.
While those officers were en route, another officer took the car key from the crime scene, inserted it into the door of the Kia and turned it; they matched. The officer relayed that information to the officers at the defendant’s apartment building. By approximately 10:30 p.m., four officers were present outside the defendant’s building. Officers outside the building could see movement inside, and those in the hallway outside the defendant’s apartment could hear movement in the apartment. Officers also observed what appeared to be wet footprints in the hallway leading to the defendant’s apartment door.
The officers knocked on the defendant’s door and announced their presence but received no response. They then spoke to a neighbor and asked her if the defendant lived in that apartment. After officers brought her down to a police cruiser and showed her a picture of the defendant on a computer, she confirmed that he lived there. Upon returning to the defendant’s door, police heard a female voice say something to the effect of “you’re such an idiot,” and again knocked and announced their presence.
When the officers heard footsteps approaching the door, they unholstered their weapons and pointed them at the ground. The defendant’s girlfriend, Kimberly Dunn, opened the door, at which point the officers raised their weapons, told her to get on her knees and searched her for a weapon. The trial court found that two officers simultaneously stepped into the apartment and opened a closed closet to ensure nobody was hiding there. Upon opening the closet, the officers saw a Patriots jacket and a green hooded sweatshirt.
Dunn then told the officers that the defendant was in the bedroom with a knife to his chest. The officers went to the bedroom, found the defendant, arrested him and took him out of the apartment. After conducting only a brief search for possible threats, the officers secured the premises and applied for a search warrant. At no time prior to entering the defendant’s home did the officers attempt to secure a search or arrest warrant. Upon execution of the warrant, police seized a green sweatshirt, a Patriots jacket and a knife.
Before trial, the defendant moved to suppress the evidence found in his apartment, arguing that the officers’ initial warrantless entry was unconstitutional. Following a suppression hearing, the trial court denied his motion in a written order. After a jury convicted the defendant of robbery and first degree assault, he filed this appeal.
On appeal, the defendant argues that the trial court erred in denying his motion to suppress. Specifically, he argues that: (1) the officer’s insertion of the key into the car door was a warrantless search and
When reviewing a trial court’s ruling on a motion to suppress, we accept the trial court’s findings unless they are unsupported by the record or clearly erroneous.
State v. Pseudae,
We first address the defendant’s argument that the officer’s insertion of the key into the Kia door was an unconstitutional search under both the Federal and State Constitutions. The trial court found that the police did not rely upon the key match in forming probable cause, and thus made no ruling on the issue. In the interests of judicial economy, however, we address the issue as it is likely to arise on remand and because there are sufficient facts in the record upon which we can reach our conclusion as a
matter of law.
Cf. Auger v. Town of Strafford,
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.” ‘We have .. . recognized that an expectation of privacy plays a role in the protection afforded under Part I, Article 19 of the New Hampshire Constitution.”
State v. Goss,
The State argues that Part I, Article 19 does not apply in this case because the insertion of the key into the door does not constitute a search for constitutional purposes. Indeed, the defendant acknowledges that federal courts have minimized the zone of protection with regard to inserting a key into a door. He argues, however, that we should adopt a standard of greater protection under the State Constitution. Although we have recognized that our constitution does, in some circumstances, provide greater protection than the Federal Constitution,
see, e.g., State v. Beauchesne,
Here, the privacy interest at stake is “so small that the officers do not need probable cause to inspect it.”
United States v. Concepcion,
The defendant also argues that our ruling in this case is dictated by our prior rejection of an “identification search” exception to the warrant requirement.
State v. Webber,
We reach the same result under the Federal Constitution. Whether the defendant’s Fourth Amendment rights were violated turns upon whether he had a reasonable expectation of privacy in the thing searched. As federal courts have consistently held, the mere information of ownership obtained from inserting a key into a door is not the type of information in which a defendant has a reasonable expectation of privacy.
Concepcion,
As to the defendant’s second argument, we will assume, without deciding, that the police had probable cause to enter his apartment. The issue before us, therefore, is whether exigent circumstances justified the warrantless entry into his home. We first address the defendant’s claim under the New Hampshire Constitution, citing federal opinions for guidance only.
See Ball,
Under Part I, Article 19, a warrantless search or seizure is
per se
unreasonable, and evidence derived from such a search or seizure is inadmissible unless it falls within one of the recognized exceptions to the warrant requirement.
State v. Santana,
One such exception, which the State argues applies here, exists where police have probable cause to enter a home and exigent circumstances make it impracticable to obtain a warrant beforehand.
Here, the trial court determined that exigency existed because the officers, upon arriving at the defendant’s home, “were essentially in hot pursuit, without time to reflect upon the situation or obtain a warrant.” The trial court directed the majority of its analysis to the officers’ actions after the defendant’s girlfriend opened the door. Even the State acknowledges, however, that this case is not one of hot pursuit, which “requires immediate and continuous pursuit of a defendant from the scene of a crime.”
State v. Ricci,
The defendant concedes that exigent circumstances existed once Dunn told the officers that the defendant had a knife to his chest. He argues, however, that the police themselves created the exigent circumstances, which did not exist before they entered his home.
As the defendant points out, “The primary focus of our inquiry ... is not on the
sufficiency
of the exigency but rather how the exigency came about.”
Santana,
In
Rodriguez,
for example, police officers detected the odor of burning marijuana outside a hotel room while investigating an unrelated crime.
Id.
Because the officers had not gone to the hotel to investigate the drug crime, we found that the exigency was not foreseeable.
Id.
at 109. Thus, in light of the ongoing destruction of evidence in the hotel room, there was no opportunity to secure a warrant before knocking and entering.
Id.
at 110. We therefore held that the trial court’s finding of exigent circumstances was not clearly erroneous.
Id.
at 110;
see Santana,
Here, police made the deliberate determination to go to the defendant’s home to investigate the robbery. The State argues that the defendant posed a danger to others based upon the robbery, and that the police therefore faced exigent circumstances requiring immediate action. As discussed below, however, the State cannot point to any evidence that would have led the police to reasonably conclude that the defendant continued to pose a threat once he retreated to his apartment. It was not until after police entered his home that they knew of the specific exigency of the defendant holding a knife to his chest. Two officers testified that they secured Dunn and simultaneously searched a nearby closet for a concealed individual, at which time Dunn informed them that the defendant was in the bedroom with a knife to his chest. By that point, however, the officers had already entered his home without consent, and without first obtaining a warrant. Because the police had no knowledge of any exigency until after they entered the home, the State cannot now rely upon the ensuing emergency to justify the initial entry.
See Rodriguez,
The State argues, however, that exigency existed prior to the officers’ entry into the apartment and Dunn’s statement. Specifically, the State argues that the facts of this case support a “fleeing suspect” exigency. In support, the State cites
Dorman v. United States,
Although federal courts have diverged in their acceptance and application of the
Dorman
test, the United States Supreme Court remained largely silent on the matter until
Minnesota v. Olson,
On appeal, the United States Supreme Court did not expressly adopt or reject
Dorman,
but held that the Minnesota Supreme Court “applied essentially the correct standard in determining whether exigent circumstances existed.”
Olson,
We see no need to adopt
Dorman
in light of the Supreme Court’s decision in
Olson.
We, like the Court, have consistently held that the determination of exigency rests upon the totality of the circumstances.
See
Rodriguez,
The State cannot point to any substantive evidence that would have led officers to believe that the defendant would either destroy evidence or attempt to flee his home, or that he posed a risk if not immediately apprehended.
Compare State v. Morse,
The situation here is similar to that in
Olson,
where there was no risk of immediate flight, no suggestion of danger to officers, and “[t]hree or four Minneapolis police squads surrounded the house.”
Olson,
The State argues that the facts here are analogous to
Theodosopoulos,
in which we held that exigent circumstances existed.
Theodosopoulos,
Finally, we consider the fact that the officers did not even attempt to obtain a warrant after learning the location of the defendant’s home. In
Dorman,
for example, police were unable to obtain a warrant because the magistrates who were supposed to be available that night were not.
Dorman,
Because the record does not reveal any evidence that would have led the police to reasonably believe that the defendant continued to pose a danger to himself, to the police or to the other occupant in the apartment, because the police had blocked any routes of escape, and because the officers testified that they had no reason to believe evidence was being or would be destroyed, we hold that no exigent circumstances existed requiring immediate, warrantless entry. The trial court’s denial of the defendant’s motion to suppress was therefore clearly erroneous.
In light of our ruling under the State Constitution, we need not reach the federal issue.
See Ball,
Reversed and remanded.