THE STATE OF NEW HAMPSHIRE
SUPREME COURT
In Case No. 2014-0249, State of New Hampshire v. Nathan
A. Holmes, the court on June 19, 2015, issued the following
order:
The defendant, Nathan A. Holmes, appeals his conviction, following a jury
trial in Superior Court (McHugh, J.), on charges of being a felon in possession of
a firearm, see RSA 159:3 (2014). He contends that the trial court erred by: (1)
denying his motion to suppress evidence obtained during a warrantless search of
“the upstairs bedrooms of [his] apartment”; and (2) excluding a defense witness.
We reverse and remand.
We first address the motion to suppress. The search of a home is subject
to a particularly stringent warrant requirement because the occupant has a high
expectation of privacy. State v. Pseudae, 154 N.H. 196, 199 (2006). The State
has the burden to show that the search was validly executed under one of the
exceptions to the warrant requirement. Id. As fact-finder, the trial court must
determine, based on the grounds identified by the State, whether the facts
presented are sufficient to meet the State’s burden. State v. Santana, 133 N.H.
798, 809 (1991). The trial court’s findings are reviewed narrowly on appeal and
will be overturned only if unsupported by the record or clearly erroneous. Id. We
review the trial court’s legal conclusions de novo. Pseudae, 154 N.H. at 199.
Because of the evidentiary burden on the State and the deference given to the
trial court’s determinations, we will not consider an issue which the trial court
did not have the opportunity to address. Santana, 133 N.H. at 809. This rule is
grounded in common sense and judicial economy, in that it gives the trial court,
as fact-finder, an opportunity to make a determination of the issue. Id. at 808.
On appeal, the State argues that the warrantless “upstairs search was
justified by the protective-sweep exception to the warrant requirement,” but
concedes that it did not make this argument to the trial court. The State
contends that its protective sweep argument is preserved by its argument to the
trial court that the search fell within the exigent circumstances exception
“because the protective-sweep exception to the warrant requirement is a subset
of the exigent-circumstances doctrine, and thus, . . . litigation which arises under
the latter doctrine necessarily encompasses the former.” We need not decide
whether, as a matter of law, an exigent circumstances argument can never
preserve a protective sweep argument because, in this case, the exigency upon
which the State relied before the trial court was different from that upon which it
now relies when arguing that the search was a protective sweep.
While both the exigent circumstances exception and the protective sweep
exception are premised upon the existence of an exigency, the breadth of the
exigency that will justify each exception differs significantly. Under the exigent
circumstances exception, the police can make a search without a warrant when
they have probable cause to search and exigent circumstances exist. Pseudae,
154 N.H. at 200. Exigent circumstances exist when the police face a compelling
need for immediate official action and a risk that the delay inherent in obtaining
a warrant will present a substantial threat of imminent danger to life or public
safety or create a likelihood that evidence will be destroyed. Id. Decisions on the
applicability of this exception depend upon the facts of a particular case and
require caution, for it is an exception which by its nature can very easily swallow
the rule unless applied only in restricted circumstances. Santana, 133 N.H. at
803-04.
In contrast, the only exigency that will justify a protective sweep is that the
area to be swept harbors an individual posing a danger to those on the arrest
scene. State v. Smith, 141 N.H. 271, 275 (1996). A protective sweep is justified
in connection with an arrest in spaces not immediately adjoining the place of
arrest only if a reasonably prudent officer would believe based upon specific and
articulable facts that this specific exigency exists. State v. Francis, 167 N.H. ___,
___ (decided May 12, 2015). The sweep must be limited in scope and may last no
longer than necessary to dispel the reasonable suspicion of danger and in any
event no longer than it takes to complete the arrest and depart the premises. Id.
While State v. Graca, 142 N.H. 670, 673-74 (1998), may be read as
conflating these two exceptions, there the exigency under each exception was
danger to the officer. We note that it is not clear what exceptions the State
argued before the trial court. See id. at 672. Graca does not stand for the
proposition that the protective sweep exception is subsumed within the exigent
circumstances exception when the same exigency is not claimed under each
exception.
Furthermore, the cases from other jurisdictions cited by the State do not
clearly support the proposition that the protective sweep exception is a “subset”
of the exigent circumstances exception. See United States v. Furrow, 229 F.3d
805, 811 (9th Cir. 2000) (stating parties “mischaracterized” issue as whether
search came within protective sweep exception and “conflate[d] the narrow
concept of the protective sweep with the more general idea of the exigent
circumstances search”), overruled on other grounds by United States v. Johnson,
256 F.3d 895, 913 n.4 (9th Cir. 2001); State v. Kendrick, 100 A.3d 821, 831-32,
835 (Conn. 2014) (stating exigent circumstances, protective sweep, and
emergency are “three exceptions to the warrant requirement that are triggered by
the need for swift action by the police,” noting that “protective sweep and exigent
circumstances doctrines share significant areas of overlap, and some notable
distinctions,” and clarifying distinctions between them); Williams v. Com., 642
S.E.2d 295, 298, 300 (Va. Ct. App. 2007) (stating, where trial court found search
justified as protective sweep, protective sweep is premised upon exigency and
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could be considered “protective weapons search of a dwelling” or “a form of
search incident to arrest” (brackets omitted)).
In this case, in its objection to the motion to suppress, the State argued
that the police “were under exigent circumstances to look for Ahearn, as if they
left to obtain a warrant, he could flee the residence.” It did not argue that the
exigency was “a substantial threat of imminent danger to life or public safety.”
Pseudae, 154 N.H. at 200. As a result, the suppression record is missing
evidence essential to the protective sweep exception. See id. (stating parties may
rely only upon evidence presented at suppression hearing when appealing motion
to suppress because this was evidence before trial court). For example, it is
unclear where the officers waited after arresting the defendant’s girlfriend and
before her mother arrived to take custody of the child and how long the officer
was in the apartment before searching the upstairs. Furthermore, there is no
evidence that the officer had specific and articulable facts upon which to believe
that Ahearn was dangerous or that the upstairs harbored any other individual
posing a danger to those on the arrest scene. Cf. id. (stating warrant exception
not raised in trial court properly before us for review because record revealed that
reasonable fact finder necessarily would reach a certain conclusion).
The State argues that a reasonable officer could have believed that Ahearn
posed a danger to those on the scene because “the defendant was a convicted
felon being prosecuted for two other felonies, and . . . Ahearn, who was also
wanted [on] a warrant, was his cohort.” However, the suppression hearing
transcript is devoid of evidence that the defendant was believed to be violent or
dangerous. Furthermore, it does not identify the offense underlying the warrant
for Ahearn. Although the officer testified that, when he went upstairs, he
performed a cursory search “to make sure that there wasn’t anybody just . . .
ready to jump out at me,” the record does not include evidence of specific and
articulable facts to support such a concern.
Accordingly, we conclude that, under the specific circumstances of this
case, the State has not preserved its argument that the search constituted a
protective sweep. See Santana, 133 N.H. at 809; cf. Pseudae, 154 N.H. at 200.
We agree with the defendant that the search was not justified under the exigent
circumstances exception and note that, on appeal, the State does not argue to
the contrary. See Pseudae, 154 N.H. at 200. Therefore, we reverse the trial
court’s ruling that the search was constitutional and remand. In light of this
decision, we need not address the defendant’s other argument.
Reversed and remanded.
HICKS, LYNN, and BASSETT, JJ., concurred.
Eileen Fox,
Clerk
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