State v. Westover , 140 N.H. 375 ( 1995 )

BROCK, C. J.

The defendant, Daniel Westover, was convicted in the Lebanon District Court (Cirone, J.) of possession of a controlled drug, RSA 318-B:2 (Supp. 1994), a class B misdemeanor. The defendant appeals his conviction, arguing that evidence presented at trial should have been suppressed. This case also presents the question whether an indigent defendant, convicted of a class B misdemeanor without the possibility of imprisonment, is entitled to have counsel appointed on appeal. We reverse and remand.

On January 6, 1993, an individual entered the Canaan Police Department and informed Lieutenant Kevin Copp that Daniel “Chipper” Westover, Robert “Icky” Kendall, Jr., and another individual were in a car at the Mascoma Savings Bank and were rolling a marijuana cigarette. Meanwhile, Chief Jonathan Putnam of the Canaan Police had already spotted the car and had determined to stop it because it did not have a proper inspection sticker and “looked like an absolute piece of junk.” Before Chief Putnam had an opportunity to stop it, however, the uninspected vehicle pulled into the Mascoma Savings Bank. In an effort to prevent traffic congestion at the bank, Chief Putnam decided to wait across the street for the vehicle to return to the road.

While waiting, Chief Putnam communicated by radio with Lieutenant Copp, who informed him of the report he had received. The vehicle eventually left the bank and turned into Evans Fuel Mart, where Chief Putnam pulled in behind it. Lieutenant Copp also arrived at the scene,. After Lieutenant Copp had spoken with the driver, Robert Kendall, for a short time, the defendant, who was in the passenger seat, asked whether he could exit the vehicle. The police told him he could, and he got out, carrying a crumpled piece of gray material. It was later determined that this material comprised a sweatshirt and a T-shirt.

The defendant walked from the car toward the store at Evans Fuel Mart. Chief Putnam observed the defendant “gently” throw what he was carrying, in an underhand fashion, to the ground, before entering the store. Chief Putnam walked over to the clump of material the defendant had left outside, kicked it aside and discovered what he recognized to be a marijuana pipe and a bag of marijuana. The defendant was arrested and charged with possession of a controlled drug.

On appeal, the defendant first argues that he has a right to have counsel appointed for his class B misdemeanor appeal. The maximum fine for the offense set by the legislature is $1,200, RSA 651:2, IV(a) (Supp. 1994), without the possibility of imprisonment, RSA 651:2, III (Supp. 1994). The defendant relies on the due process and equal protection guarantees of the State and Federal Constitutions. See N.H. CONST, pt. I, art. 15; U.S. CONST, amend. XIV. We hold that the defendant does not have a right to appointed counsel.

As is our duty, we begin with an analysis under our State Constitution. State v. Ball, 124 N.H. 226, 232, 471 A.2d 347, 350 (1983). We look to the decisions of other jurisdictions for assistance in resolving the State constitutional issues before us. See State v. Maya, 126 N.H. 590, 594, 493 A.2d 1139, 1143 (1985).

The defendant clearly can find no support in that portion of part I, article 15 which provides: “Every person held to answer in any crime or offense punishable by deprivation of liberty shall have the right to counsel at the expense of the state if need is shown.” N.H. CONST, pt. I, art. 15; see State v. Cook, 125 N.H. 452, 455, 481 A.2d 823, 825 (1984). Therefore, as to due process, he is left with recourse only to the general due process principles embodied in part I, article 15.

In Argersinger v. Hamlin, 407 U.S. 25, 40 (1972), the Supreme Court held that, when an indigent criminal defendant’s liberty is at stake, “the accused will receive the benefit of ‘the guiding hand of counsel’ so necessary when one’s liberty is in jeopardy.” Accordingly, in Scott v. Illinois, 440 U.S. 367, 369 (1979), the Court held that an indigent defendant whose liberty has not been compromised has no right to appointed counsel. This distinction is drawn because “any deprivation of liberty is a serious matter,” Argersinger, 407 U.S. at 41 (Burger, C.J., concurring), and “as a litigant’s interest in personal liberty diminishes, so does his right to appointed counsel,” Lassiter v. Department of Social Services, 452 U.S. 18, 26 (1981).

The Supreme Court has also addressed the right to counsel in criminal appeals. In Douglas v. California, 372 U.S. 353, 355 (1963), the Court held that the indigent defendant, sentenced to imprisonment, should have had counsel appointed on appeal. The Court has also held, however, that some defendants have no right to appointed counsel on appeal. Ross v. Moffitt, 417 U.S. 600, 618-19 (1974). The Court in Ross distinguished Douglas on the basis that Douglas involved the defendant’s first appeal as of right, while Ross involved a second, discretionary appeal. Id. at 614-15. The Supreme Court, therefore, has not directly considered whether indigent defendants, faced with no deprivation of liberty, are entitled to appointed counsel on appeal.

The Ross Court, however, did rely on the differences between trial and appeal in reaching its decision. The Court found these differences to be significant because, “while no one would agree that the State may simply dispense with the trial stage of proceedings without a criminal defendant’s consent, it is clear that the State need not provide any appeal at all.” Id. at 611. We conclude that, because a defendant facing no loss of liberty does not have a right to appointed counsel at trial, he does not have such a right at the appellate level, where the constitutional concerns are lessened. See id. at 610-11.

The right to counsel at trial under the Federal Constitution is derived generally from the sixth amendment. The defendant argues that the right to appointed counsel he asserts is not to be determined by sixth amendment jurisprudence; rather, it arises from due process and equal protection guarantees, which provide a broader right to counsel. We disagree that there is a broader right under these constitutional guarantees. The Supreme Court has explicitly recognized that the rights at issue in Douglas and Ross were derived from the fourteenth amendment’s due process and equal protection clauses. E.g., Evitts v. Lucey, 469 U.S. 387, 403 (1985). So too is our decision today based on due process and equal protection principles embodied in the New Hampshire Constitution. As one court has stated, “While violations of an accused’s right to counsel are encompassed within the concept of due process, the due process clauses [of the fifth and fourteenth amendments] neither expand nor contract the constitutional protection provided by the Sixth Amendment right to counsel.” In re Grand Jury Subpoena Served Upon Doe, 781 F.2d 238, 246 (2d Cir. 1985), cert. denied, 475 U.S. 1108 (1986).

In Douglas, the Court recognized that “a State can, consistently with the Fourteenth Amendment, provide for differences so long as the result does not amount to a denial of due process or an invidious discrimination.” Douglas, 372 U.S. at 356 (quotation omitted). For the above reasons, this is such an instance.

Although our decision is based upon the New Hampshire Constitution, our thorough consideration of federal precedent in reaching our conclusion manifests that the United States Constitution provides no greater protection. See Michigan v. Long, 463 U.S. 1032, 1041 (1983); State v. Cooper, 127 N.H. 119, 129, 498 A.2d 1209, 1216 (1985).

We now turn to the evidentiary issue. The defendant argues that the marijuana should have been suppressed because the warrantless search of his sweatshirt violated part I, article 19 of the New Hampshire Constitution. The State counters that the defendant had abandoned his sweatshirt and the warrantless search was therefore constitutional. See State v. Jarret, 116 N.H. 590, 364 A.2d 624 (1976). The State bears the burden of proving by a preponderance of the evidence that a warrantless search was constitutionally permissible. State v. Theodosopoulos, 119 N.H. 573, 578, 409 A.2d 1134, 1137 (1979), cert. denied, 446 U.S. 983 (1980).

We base our decision on State constitutional law and need not address issues under the Federal Constitution because the defendant’s rights are fully protected under part I, article 19 of the New Hampshire Constitution. See Ball, 124 N.H. at 232, 471 A.2d at 350. Many jurisdictions approach searches ostensibly justified on abandonment grounds under the expectation of privacy analysis first articulated in Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring). E.g., United States v. Jones, 707 F.2d 1169, 1172 (10th Cir.), cert. denied, 464 U.S. 859 (1983). This court, however, has not adopted this test under part I, article 19 of the State Constitution. State v. Sterndale, 139 N.H. 445, 449, 656 A.2d 409, 411 (1995).

The Court of Appeals of Oregon, interpreting a provision of the Oregon Constitution similar to part I, article 19 of the New Hampshire Constitution, held that an expectation of privacy analysis was unnecessary where police action involved “a physical trespass to a personal effect expressly entitled to constitutional protection.” State v. Rounds, 698 P.2d 71, 73 (Or. Ct. App. 1985). We need not decide whether an expectation of privacy analysis is appropriate in other circumstances because the defendant’s clothing is certainly protected by his “right to be secure from all unreasonable searches and seizures of his person, his houses, his papers, and all his possessions.” N.H. CONST, pt. I, art. 19; see Rounds, 698 P.2d at 73.

When a person abandons a possession, however, he or she gives up the right to be secure from unreasonable searches of that possession. Jarret, 116 N.H. at 590, 364 A.2d at 625.

Whether property has been abandoned is generally a question of fact based upon evidence of a combination of act and intent. Intention is a prime factor in considering whether there has been an abandonment; it is to be ascertained from what the actor said and did since intent, although subjective, is determined from objective facts at hand.

Morton v. State, 397 A.2d 1385, 1388-89 (Md. 1979) (quotation and citation omitted). Also relevant to a determination of abandonment are “where and for what length of time the property is relinquished and the condition of the property.” O’Shaughnessy v. State, 420 So. 2d 377, 379 (Fla. Dist. Ct. App. 1982).

To prove abandonment, the State relies, in part, on an inference that the defendant was “trying to disassociate himself from the contraband” and therefore intended to abandon his sweatshirt. “The insidiousness of this suggestion is that an intent to abandon can be inferred in every case where the ultimate search turns up incriminating evidence, as unpalatable a proposition as that a search can be justified by what it uncovers.” Id. at 378.

Whether property has been abandoned is generally a question of fact. Morton, 397 A.2d at 1388-89. Therefore, the factfinder’s findings on abandonment will be upheld unless clearly erroneous. See State v. Conant, 139 N.H. 728, 730, 662 A.2d 283, 285 (1995). The trial court found that the defendant had temporarily abandoned his property. While the possibility of a generalized intent to return to the property at some time does not per se preclude a finding of abandonment, see United States v. Thomas, 864 F.2d 843, 846 (D.C. Cir. 1989), there must be a significant dissociation of the property from the defendant for a finding of abandonment, see generally 1 W. LAFAVE, SEARCH AND SEIZURE § 2.6(b) (1987 & Supp. 1995). “Temporary abandonment,” therefore, is not a valid general exception to the warrant requirement.

The trial court also found that the defendant did not intend to abandon his property permanently. We agree. The defendant took his sweatshirt with him from the car. He gently tossed it aside as he entered the store. Moments later, with the defendant having said or done nothing more, the police searched his sweatshirt. These facts support the conclusion that the defendant did not abandon his property. Accord Kelly v. State, 536 So. 2d 1113, 1114 (Fla. Dist. Ct. App. 1988) (police searched backpack minutes after defendant left and nothing suggested defendant would not soon return); Morton, 397 A.2d at 1390 (lying to police officer and “brief relinquishment of possession” insufficient to show abandonment). The evidence obtained through the search of the defendant’s sweatshirt should have been suppressed.

Reversed and remanded.

BATCHELDER, J., concurred; JOHNSON, J., concurred specially; THAYER, J., with whom HORTON, J., joined, dissented.