State v. Washburn

170 N.H. 688

184 A.3d 894

The STATE of New Hampshire

v.Darlene WASHBURN

No. 2016–0518

Supreme Court of New Hampshire.

Argued: November 14, 2017

Opinion Issued: April 13, 2018

Gordon J. MacDonald, attorney general (Susan P. McGinnis, senior assistant attorney general, on the brief and orally), for the State.

Harry N. Starbranch, of Portsmouth, on the brief and orally, for the defendant.

HICKS, J.

Following a jury trial, the defendant, Darlene Washburn, was convicted of possession of a schedule II controlled drug. See RSA 318–B:2 (2011) (amended 2013, 2015, 2016). On appeal, she argues that the Trial Court (Houran, J.) erred when it: (1) denied her motion to suppress evidence seized in warrantless searches of her purse, vehicle, and home; and (2) instructed the jury on a lesser-included offense that did not ensure jury unanimity and failed to protect her against double jeopardy. We affirm.

The issues raised by the defendant address two rulings made by the trial court at different stages of her prosecution: one ruling addressed the defendant's motion to suppress, and the other addressed her motion for judgment notwithstanding the verdict (JNOV). To review the trial court's suppression ruling, we consider the findings contained in its order and the record of the suppression hearing as summarized below. See, e.g., State v. Morrill, 169 N.H. 709, 711, 156 A.3d 1028 (2017).

In August 2013, the New Hampshire Attorney General's Drug Task Force (task force) arranged for Donald Packer, who was in police custody as the result of a drug investigation, to contact the defendant and offer to sell Percocet to her. Packer telephoned her and she agreed to meet him at their "usual place" in Somersworth to purchase 100 tablets of 30 mg Percocet at $24 per tablet. Detective Plummer, who was assigned to the task force, then drove to the defendant's home and observed her leave and travel toward Somersworth. Shortly thereafter, a marked Somersworth police cruiser stopped the defendant. An unmarked Somersworth police van pulled in front of the defendant's car and Plummer pulled his unmarked vehicle in behind her car.

Plummer approached the defendant's car and asked her if she would be willing to speak with him. Because he was part of an ongoing undercover operation at that time, when Plummer was out of his vehicle, he wore a balaclava to protect his identity. The defendant agreed to speak with him, exited her vehicle, and sat in the passenger's seat of his vehicle. While in his vehicle, Plummer removed his balaclava. Another officer was already seated in the back seat of Plummer's vehicle. After preliminary discussion during which the defendant lied about the purpose of her trip to Somersworth, Plummer advised the defendant that he knew about her arranged meeting with Packer. When Plummer asked the defendant how much money she was carrying, she reported that she had $2400, an amount consistent with the agreed-upon price for the Percocet.

Plummer then asked the defendant whether she would agree to sign a consent-to-search form for her vehicle and her purse. He advised her that her consent was voluntary, that she did not have to sign the form, and that she could stop the search at any time. The defendant agreed orally to the searches and then signed the form. Although the form listed "premises," "automobile," and "person" as search options, only the automobile option was circled.

During the search of the defendant's purse, Plummer found $2400. No evidence was obtained as a result of the search of her car. Plummer then asked the defendant what, if anything, was at her residence. She told him that there was no money there, only her prescription. At Plummer's request, the defendant then agreed to a search of her home and executed a second consent-to-search form. After arriving at her house, the defendant led the police upstairs to her bedroom, where they seized cash and narcotics. The defendant was then placed under arrest and charged with possession of a controlled drug, possession with intent to sell a controlled drug, and attempted possession with intent to sell a controlled drug. See RSA 318–B:2.

Following her arrest, the defendant filed two motions to suppress: the first sought to suppress "all evidence collected from the warrantless search of her purse, automobile and residence" and the second sought to "suppress all evidence collected both, direct and derivative, from [her] unwarned interrogation." She argued that the statements she made after exiting her vehicle were the product of an unwarned custodial interrogation in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and that the searches of her vehicle, purse, and home were illegal because her consent was either the product of her unlawful detention or otherwise involuntary. See State v. Socci, 166 N.H. 464, 473, 98 A.3d 474 (2014) (evidence obtained by consent is admissible only if consent is both voluntary and not an exploitation of prior illegality).

The trial court ruled that the defendant was in custody by the time Plummer escorted her to his vehicle, and suppressed any incriminating statements that she made after that point. The court then considered whether her consent to search her purse, car, and home was valid. The court rejected her argument that she was unlawfully detained and found that her consent to the searches was voluntary. The court also determined that "any taint of the unwarned custodial interrogation had been purged" at the time that she consented to the searches.

Following a jury trial, the defendant was acquitted of the charged offenses, but convicted of a lesser-included offense of possession of the controlled drug oxycodone.

On appeal, the defendant cites both the State and Federal Constitutions in support of her argument that the trial court erred when it denied her motion to suppress evidence seized in the warrantless searches of her purse, vehicle, and home. See N.H. CONST. pt. I, art. 19 ; U.S. CONST. amend. IV. She contends that her consent to search her purse was not freely given, but "was obtained by duress and under coercion." She further argues that because the initial search of her purse was illegal, it tainted the subsequent search of her vehicle and her home.

When we review a trial court's ruling on a motion to suppress, we accept its factual findings unless they lack support in the record or are clearly erroneous. State v. McInnis, 169 N.H. 565, 569, 153 A.3d 921 (2017). Our review of the trial court's legal conclusions is de novo. Id. We first address the issues under the State Constitution and rely upon federal law only to aid our analysis. State v. Ball, 124 N.H. 226, 231–33, 471 A.2d 347 (1983).

Part I, Article 19 of the New Hampshire Constitution 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." N.H. CONST. pt. I, art. 19. A warrantless search is per se unreasonable and invalid unless it falls within one of a few recognized exceptions. State v. Francis, 167 N.H. 598, 602, 117 A.3d 158 (2015). Voluntary consent free of duress and coercion is one of these exceptions. Socci, 166 N.H. at 473, 98 A.3d 474. The burden is on the State to prove, by a preponderance of the evidence, that the consent was free, knowing, and voluntary. Id. Whether the consent was voluntary or was the product of coercion, express or implied, is a question of fact to be determined from the totality of the circumstances. State v. McGann, 124 N.H. 101, 105–06, 467 A.2d 571 (1983) ; Schneckloth v. Bustamonte, 412 U.S. 218, 227, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). We will affirm the trial court's finding of consent unless it is not supported by the record. Socci, 166 N.H. at 473, 98 A.3d 474.

To support her argument that her consent to search was not voluntary, the defendant cites the trial court's finding that she did not receive Miranda warnings before being interrogated and its ruling that she was in custody when she was asked to give consent. She acknowledges that a Miranda violation does not automatically require a finding that her consent to search was not voluntary. See, e.g., State v. Johnston, 150 N.H. 448, 456–57, 839 A.2d 830 (2004) (observing that Miranda addresses Fifth Amendment protection against compulsory self-incrimination rather than Fourth Amendment protection against unreasonable searches and seizures); Schneckloth, 412 U.S. at 241, 93 S.Ct. 2041 ("Nothing, either in the purposes behind requiring a ‘knowing’ and ‘intelligent’ waiver of trial rights, or in the practical application of such a requirement suggests that it ought to be extended to the constitutional guarantee against unreasonable searches and seizures."). She contends, however, that a Miranda violation should create a presumption of coercion when we consider the voluntariness of consent to search just as it does in the context of custodial interrogations. Because, she argues, the procedure used by the police to obtain her consent in this case had a "potential for abuse," we should extend our previous holding barring the use of evidence obtained in violation of Miranda's safeguards to supply probable cause for search warrants, see State v. Gravel, 135 N.H. 172, 184, 601 A.2d 678 (1991), to find that it also creates a presumption of coercion in our analysis of whether a defendant's consent to search is voluntary.

Our test to determine whether consent was voluntary is based upon an examination of the totality of the circumstances. See Socci, 166 N.H. at 473, 98 A.3d 474. Given the scope of this test, we decline to hold that a Miranda violation results in a presumption of coercion when assessing the voluntariness of consent to search. See also United States v. Gonzalez–Garcia, 708 F.3d 682, 688 (5th Cir. 2013) (observing that to establish categorical rule that consent is coerced whenever police use unwarned statement to obtain consent is...