State v. Seavey , 147 N.H. 304 ( 2001 )

BROCK, C.J.

The defendant, Heidi Lee Seavey, was convicted after a bench trial in the Auburn District Court (LeFrancois, J.) of driving while intoxicated second offense (DWI), RSA 265:82(b) (1993 & Supp. 2000), and conduct after an accident, RSA 264:25 (1993 & Supp. 2000). On appeal, she argues that the trial court erred in denying her motion to suppress. We reverse and remand.

On August 3,1998, at approximately 7:30 p.m., Officer Michael Bernard was dispatched to the scene of a motor vehicle accident on Pingree Hill Road in Auburn. Also responding to the accident was Edward Gannon, a Derry paramedic firefighter. When they arrived at the scene, they found a car crashed against a telephone pole, which was broken in half. The car itself had a displaced steering" wheel and a broken windshield in which hair was found. The defendant, who was the driver of the vehicle, was not in the car. After searching the surrounding area and not finding anyone, both the officer and paramedic firefighters left the scene.

Shortly thereafter, Bernard and Gannon were dispatched to an apartment down the street from the accident. Waiting outside the apartment was David Canedy who had followed the defendant from the accident scene and telephoned her location to the Rockingham County dispatch. Bernard arrived first and spoke to Canedy. Canedy gave the officer the defendant’s driver’s license and proceeded to tell Mm his account of the situation. He told the officer that he had been in Ms house on Pingree Hill Road when he heard a loud crash. He went outside and saw the defendant get out of the vehicle. When Canedy approached the defendant, they had a conversation and she presented her driver’s license to him. He initially did not take it. Shortly after this exchange, the defendant walked behind a nearby house. When she returned, she told Canedy that she was going to her boyfriend’s house and gave him her license, which he then accepted. Canedy then watched her walk some distance down the road, where she flagged down a passing motorist, David Joyce, in a pickup truck and obtained a ride. Canedy then followed her to the apartment above the horse bam. Throughout this exchange, the only observance of any physical injury that Canedy mentioned to Bernard were cuts on the defendant’s knees.

Thereafter, Canedy told Bernard that the track that had picked up the defendant was parked in the driveway to the apartment and that he could hear voices on the second floor apartment above the horsebarn. Bernard ascended the stairway and knocked at the door. When he received no response, he descended the stairway and began to walk around, looking at the area outside of the barn.

Shortly thereafter, Gannon and other rescue personnel arrived. After Officer Bernard informed them of the defendant’s whereabouts, the rescue personnel entered the apartment. Bernard followed them into the residence and found the defendant hiding in a bathtub with Joyce. Bernard instructed her to come out of the tub. He observed that the defendant’s knees were bleeding and that she smelled of alcohol. Bernard immediately asked her why she had left the scene of the accident and how much alcohol she had consumed. Following these questions, Bernard had the rescue personnel attend to her. The defendant, however, refused medical treatment. Subsequently, the defendant agreed to perform field sobriety tests. After conducting several tests, Bernard informed the defendant that she had failed the tests and placed her under arrest for DWI.

Prior to trial, the defendant filed a motion to suppress alleging, among other things, an unconstitutional warrantless entry. The court denied the motion.

Although the defendant raises several issues on appeal, we need address only one: whether the warrantless entry into the apartment in which she was located violated her rights under the Fourth Amendment to the Federal Constitution and Part I, Article 19 of the New Hampshire Constitution. She asserts that the entry was not justified under the exigent circumstances exception. We first address the defendant’s constitutional argument under the New Hampshire Constitution, citing federal cases only to aid in our analysis. See State v. Ball, 124 N.H. 226, 232 (1983). We need not engage in a separate federal analysis because our constitution provides greater protection than does the Fourth Amendment of the Federal Constitution. See State v. Ricci, 144 N.H. 241, 243 (1999).

Under Part I, Article 19 of the New Hampshire Constitution, warrantless entries are per se unreasonable and illegal unless the entry falls within one of the exceptions to the warrant requirement. See State v. Santana, 133 N.H. 798, 803 (1991). The warrant requirement applies not only to criminal searches but to noncriminal searches as well. See State v. Beede, 119 N.H. 620, 625-26 (1979), cert. denied, 445 U.S. 967 (1980). In addition, the search of a home is subject to a particularly stringent warrant requirement because the occupant has a high expectation of privacy. See State v. Theodosopoulos, 119 N.H. 573, 580 (1979), cert. denied, 446 U.S. 983 (1980). The State has the burden to show that the search was validly executed under one of the exceptions to the warrant requirement. See Ricci, 144 N.H. at 243.

The State contends that the entry was justified by exigent circumstances, based on the “emergency” exception. While the “emergency” exception is defined as including probable cause and exigent circumstances, we need address only the question of exigent circumstances in this appeal. See Beede, 119 N.H. at 626. The existence of exigent circumstances requires “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.” Theodosopouhs, 119 N.H. at 580; see also Mincey v. Arizona, 437 U.S. 385, 392 (1978). In determining whether exigent circumstances exist, we consider the totality of the circumstances, including the overall reasonableness of the officer’s behavior prior to the entry. See Ricci, 144 N.H. at 243. Whether a situation is sufficiently exigent is largely a question of fact to be determined by the trial court, which we will disturb only if clearly erroneous. See State v. MacDonald, 129 N.H. 13, 21 (1986).

The State argues that the trial court correctly based its finding of exigency on Gannon’s conclusion, which was based on the damage to the car and telephone pole, that the defendant could have suffered critical injury as a result of the accident and needed immediate medical attention. These conclusions, however, were unfounded. Canedy bad relayed his observations that the defendant had walked away from the accident and was fully capable of walking the distance of a street. This indicated that she was not physically impaired. In addition, the defendant was mentally coherent following the accident. She carried on a conversation with Canedy and had enough sense to give him her license. These factors strongly suggest a lack of life-threatening injury that would have required immediate medical attention. In fact, the only potential injury that Canedy mentioned to Officer Bernard was that the defendant’s knees appeared cut. Although Canedy testified that the defendant appeared to walk unsteadily and had slurred some of her words, it is clear from the record that he never mentioned these observations to Officer Bernard.

Moreover, the rescue workers and police knew that the defendant was not alone in the apartment. Therefore, when the defendant did not answer the door it was not likely a result of her being debilitated and unable to respond. It was apparent that she had immediate assistance at hand if she needed or wanted it because she was not alone. In sum, from the facts that the defendant was not alone and from Canedy’s observations that she was coherent and physically unimpaired, it was not reasonable for the officer and emergency personnel to believe that the defendant was in a life-threatening physical condition.

We are -not convinced- that this situation was sufficiently exigent to justify the entry under the exigent circumstances exception. In Com. v. DiGeronimo, 652 N.E.2d 148, 150-51 (Mass. App. Ct. 1995), a case with similar facts, the defendant left the scene of an auto accident and went home. A police officer entered the defendant’s home without consent or a warrant after he received no answer from knocking on the defendant’s door. Id. at 151.. Considering, among other things, the fact that the defendant was capable of driving away from the scene and that a witness stated that he was not injured, the court held that the emergency exception did not apply. Id. at 155. The court found that the circumstances were not compelling enough to have led the officer to reasonably believe that the defendant was in life-threatening distress. Id. at 155. Similarly, here, the fact that the defendant walked down the road and was not alone indicates that she was not in dire need of immediate life-saving assistance.

The facts of the case at bar do not rise to the level of urgency demonstrated in previous cases where we have held emergency entries into private dwellings valid. In State v. Slade, 116 N.H. 436 (1976), the police responded to a reported argument between the defendant and his wife at their mobile home. An officer entered the home to search for potential victims after a gunshot was heard and after the defendant came outside. Id. at 437. This court found that the officer’s entry into the home was valid because he reasonably believed that under the circumstances there could have been a victim in need of immediate assistance inside. Id. at 438. Likewise, in Theodosopoulos, police were justified in entering the defendant’s apartment where they believed a sniper was shooting from within. See Theodosopoulos, 119 N.H. at 580-81. In these cases, there were alarming or volatile situations warranting the entry into the private residences. Even where there is a possible victim within a private dwelling but no volatile, situation, this court has not found the existence of exigent circumstances when there is time to obtain a warrant. See Beede, 119 N.H. at 629.

Here, the facts fail to establish the requisite compelling circumstances that could have led Officer Bernard and the emergency personnel to reasonably believe that the defendant was in dire, life-threatening' distress and in need of immediate assistance. The assertion of exigency here raises serious concerns that .it may have been pretextual to gain entry into the home. This is precisely why “[t]he exigent circumstances exception is narrowly drawn [in order] to cover cases of real and not contrived emergencies.” Welsh v. Wisconsin, 466 U.S. 740, 752 (1984) (quotation and brackets omitted). The solicitous protection that the New Hampshire and Federal Constitutions afford to the home must be preserved because “[a]t the very core of the Fourth Amendment stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.” State v. Chaisson, 125 N.H. 810, 816-18 (1984) (quotation omitted) (citing Silverman v. United States, 365 U.S. 505, 511 (1961)). We hold that the entry was impermissible because it falls within no recognized exception to the warrant requirement.

Reversed and remanded.

Broderick and Nadeau, JJ., concurred; Duggan, J., with whom DALIANIS, J., joined in part I, dissented.