State v. Cavanaugh , 138 N.H. 193 ( 1993 )

Thayer, J.

The State appeals from a ruling of the Superior Court {Gray, J.) granting the defendant’s motion to suppress. The trial court ruled that police officers’ failure to have a previously issued search warrant present upon the commencement of a search violated the defendant’s constitutional rights. For the reasons that follow, we reverse and remand.

The essential facts in this case are not disputed. On the evening of November 5, 1991, the Salem police planned and implemented a “controlled buy” of $50 worth of marijuana from the defendant at the defendant’s apartment. Several detectives maintained surveillance of the defendant’s apartment building during and after the controlled buy.

While this event was unfolding, Detective Kevin Swift remained at the police station preparing the paperwork to obtain a search warrant for the defendant’s apartment. After the controlled buy, a detective at the scene, Lieutenant Gould, called Detective Swift and provided Swift with details of the drug sale for his supporting affidavit. Gould soon joined Swift at the police station and reviewed the search warrant application and supporting affidavit that Swift had prepared. Swift then drove to the judge’s house (Marshall, J.) to obtain the warrant, while Gould drove to a “pre-staging” area, approximately one mile from the defendant’s apartment, and was joined there by another detective and a uniformed police officer with a drug dog. The officers waited at the pre-staging area for notification from Swift that the warrant had been issued.

At about 8:30 p.m., Judge Marshall read the affidavit and then signed the warrant. The validity of the warrant is not disputed. At about 8:50 p.m., Swift informed Gould by radio that the judge had signed the warrant they both had prepared. Swift then returned to the police station to make copies of the warrant.

Five minutes after receiving the notification from Swift, Gould and his assembled team knocked on the defendant’s door. When the defendant answered, they identified themselves as police officers and told the defendant that they had a warrant to search his premises, that this warrant was on its way, and that it would arrive in approximately fifteen minutes. The defendant did not challenge their statements or refuse them entry. Upon entering the living room, the police immediately observed items that they began to seize. The defendant was placed under arrest.

At approximately 9:15 p.m., fifteen minutes after the search had begun, Detective Swift arrived at the defendant’s apartment with the warrant, a copy of which was provided to the defendant. The entire search lasted approximately an hour.

The sole issue we must decide in this appeal is whether the police are required to have physical possession of a search warrant at the time and place they initiate a search.

The New Hampshire Constitution’s search warrant requirement, part I, article 19, was enacted to prevent the exercise of arbitrary authority to search areas over which private persons had personal dominion. State v. Pellicci, 133 N.H. 523, 539, 580 A.2d 710, 720 (1990) (Brock, C.J., concurring specially). Part I, article 19 specifically states 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.” In order for a search to be reasonable, part I, article 19 states that the “cause or foundation” upon which the warrant is grounded must be “supported by oath or affirmation” and “accompanied with a special designation of the persons or objects of search, arrest, or seizure.” We have interpreted part I, article 19 as “requiring an objective determination of probable cause by a neutral and detached magistrate.” State v. Kellenbeck, 124 N.H. 760, 764, 474 A.2d 1388, 1391 (1984).

The plain language of part I, article 19 does not require that police have a warrant physically in hand upon commencing a search authorized by that warrant. Part I, article 19 merely states that the search warrant must adhere to formalities “prescribed by law.” These statutory formalities, found in RSA chapter 595-A (1986), similarly do not expressly require physical possession of a search warrant prior to the commencement of a search. RSA 595-A:5 requires that “[t]he officer taking property under the warrant shall give to the person from whom, or from whose premises, the property was taken a copy of the warrant and a receipt for the property taken, or shall leave the copy and receipt at the place from which the property was taken.” RSA 595-A:5 (1986) (emphasis added). Thus, not only does the statute fail to require physical possession of the warrant at the start of the search, but its use of the past tense suggests that the warrant and receipt are to be provided to the property owner after the property has been seized. In the present case, the police fulfilled their statutory obligation by providing the defendant with a copy of the warrant prior to the termination of the search. Having analyzed this case under the express provisions of New Hampshire law, we now look beyond the letter of the law to examine the defendant’s argument.

The defendant does not challenge the express provisions of part I, article 19 and RSA 595-A:5, nor does the defendant contest that those express provisions have been met here. Rather, the defendant asks us to graft an additional requirement onto the constitution and the statute; namely, that the police must have physical possession of a search warrant upon the commencement of a search. Conceding that federal law does not recognize such a requirement, the defendant cites New Hampshire precedent to argue that the New Hampshire Constitution should afford him greater protection than does the Federal Constitution in this case. The defendant seeks to require the police to carry the warrant when initiating the search for two reasons: (1) to ensure that the police do not exceed the scope of their authority; and (2) to protect citizens and the police from violent confrontations that may result when the police initiate a search without a warrant in hand.

While there are no New Hampshire cases directly on point, federal law in this area is settled. Federal cases interpreting the Fourth Amendment and Federal Rule of Criminal Procedure 41(d), which parallel our constitution’s part I, article 19 and RSA 595-A:5, do not require the police to have physical possession of a search warrant upon initiation of a search. Although we are not bound by these cases, State v. Ball, 124 N.H. 226, 233, 471 A.2d 347, 351-52 (1983), we may nevertheless rely on federal precedent for guidance in construing similar provisions of the New Hampshire Constitution or statutes. Id. In Katz v. United States, 389 U.S. 347 (1967), the United States Supreme Court found that the Federal Rules of Criminal Procedure do not “impose an inflexible requirement of prior notice.” Id. at 355-56 n.16. The Court further noted that “Rule 41(d) does require federal officers to serve upon the person searched a copy of the warrant and a receipt describing the material obtained, but it does not invariably require that this be done before the search takes place.” Id. More recently, federal courts have found no violation of Rule 41(d) in cases in which police entered and began a search before the arrival of the search warrant. See United States v. Hepperle, 810 F.2d 836, 838-39 (8th Cir.), cert. denied, 483 U.S. 1025 (1987); United States v. Bonner, 808 F.2d 864, 869 (1st Cir. 1986), cert. denied, 481 U.S. 1006 (1987).

The defendant would have us summarily reject federal precedent in this area because, in his view, the New Hampshire Constitution provides broader protection than the Federal Constitution. The defendant cites our decision in State v. Settle, 122 N.H. 214, 217, 447 A.2d 1284, 1285 (1982), where we held that, especially in the area of searches and seizures, “[o]ur constitution often will afford greater protection against the action of the State than does the Federal constitution.” (Emphasis added.) See also State v. Kennison, 134 N.H. 243, 246, 590 A.2d 1099, 1101 (1991). We note that our use of the word “often” in Settle demonstrates that we do not recognize such additional protection automatically or haphazardly.

The defendant argues that requiring the police to have the search warrant in hand upon the commencement of the search would ensure that police act within the scope of the warrant. This argument begs an important question: Who is responsible for ensuring that the scope of the warrant is not exceeded, the property owner or the police? Were we to adopt a requirement that the police must possess the warrant upon commencement of the search, we would effectively empower property owners with the “right” to ensure that the warrant exists. We do not read our constitution to encompass such a right, nor do we find any common law to support it. Cf. State v. Jones, 127 N.H. 515, 520, 503 A.2d 802, 805 (1985) (holding that the “knock and announce” rule has its basis in the common law rather than the New Hampshire Constitution). As the defendant concedes, the property owner is not the party responsible for ensuring that the scope of the warrant is not exceeded during the search. Rather, it is the absolute responsibility of the police. If the police exceed the scope of the warrant, the property owner may seek recourse at a later time. “There is ample protection to the public from unlawful seizure of property by law enforcement agents, either by way of civil claims for damages or by way of the appropriate application of the exclusionary rule.” State v. Haas, 134 N.H. 480, 485, 596 A.2d 127, 131 (1991).

The defendant also argues that physical possession of the warrant at the start of the search could prevent unnecessary violence in those exceptional cases in which a property owner aggressively challenges the authority of the police to enter. Although in those rare cases it may arguably be imprudent for the police to initiate a search without having a warrant in hand, it is not unconstitutional. The State Constitution does not forbid searches without a warrant being present, despite the alleged danger of confrontations. See, e.g., State v. Santana, 133 N.H. 798, 803, 586 A.2d 77, 80 (1991). The legislature has addressed similar issues, defining the public’s right to protect property as well as its duty to cooperate with the police. See, e.g., RSA 594:5 (1986); 627:8 (1986); 642:2 (Supp. 1992); State v. Haas, 134 N.H. at 485, 596 A.2d at 131. The defendant’s policy argument for deterring possible confrontations would be better directed to the General Court than to this court.

In summary, we hold that the police are not required to possess the search warrant upon commencing the search. The trial court thus erred in suppressing the fruits of the search of the defendant’s apartment. Having ruled that the police conduct in this case complied with State law, we need not consider the defendant’s argument that this was a warrantless search.

Reversed and remanded.

Batchelder, J., with whom Brock, C.J., joined, dissented; the others concurred.