State of New Hampshire v. Stephen Socci

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2014-0792, State of New Hampshire v. Stephen
Socci, the court on December 4, 2015, issued the following
order:

Having considered the briefs and record submitted on appeal, we conclude
that oral argument is unnecessary in this case. See Sup. Ct. R. 18(1). We affirm.

The defendant, Stephen Socci, appeals an order of the Superior Court
(Delker, J.), following our remand in State v. Socci, 166 N.H. 464 (2014), denying
his motion to suppress. The defendant argues that the trial court erred by
finding that the police did not exploit their prior unconstitutional search in the
course of gaining his consent to a subsequent search. When reviewing a trial
court’s ruling on a motion to suppress, we accept the trial court’s factual findings
unless they lack support in the record or are clearly erroneous, and we review its
legal conclusions de novo. Id. at 468.

The trial court found that the only observation the police communicated to
the defendant before he gave consent to the search was “that there was an
‘obvious smell of marijuana in the area of the garage.’” The trial court further
found that “[t]he information about the smell of marijuana was based on
observations made by [officers] while standing in the area in front of the garage.”
Detective Wickson testified that he parked his vehicle in front of the garage, in
“close proximity” to it, and that when he got out of the vehicle he “was overcome
immediately by the fresh smell of fresh growing marijuana.” Similarly, Officer
Peltier testified that “[a]s soon as [he] stepped out [of the vehicle] and shut the
door, [he and Wickson] were right in front of the garage, and [he] immediately
could smell an odor of fresh marijuana.” The trial court found that the officers
parked their vehicle on “the paved area between the garage and the house [that]
was accessible to anyone visiting the [defendant’s] residence.” See State v.
Beauchemin, 161 N.H. 654, 657 (2011) (stating when conservation officers
entering private property “‘restrict their movements to places visitors could be
expected to go (e.g., walkways, driveways, porches),’ observations made from
these places” do not constitute illegal search).

The defendant argues that “Wickson’s testimony makes clear that, while he
smelled the marijuana immediately upon stepping out of his cruiser, he
determined that the garage was the source of that odor only by approaching it.”
We disagree. Wickson testified that he made numerous observations regarding
the garage during his illegal search. However, he did not testify that the search
was required to identify the area from which the smell of growing marijuana
emanated. A reasonable inference is that Wickson approached the garage
because he could smell the odor of marijuana emanating from it. Furthermore,
Wickson was not prohibited from approaching the garage while he remained “in
places visitors could be expected to go,” which includes driveways. See id. His
actions became an illegal search only when he “circle[d] [the defendant’s] garage
to gather evidence.” Socci, 166 N.H. at 470.

The defendant argues that, “when the police confronted him, they
emphasized their suspicion that the garage was the source of the marijuana
odor” and that the information was illegally obtained. On the contrary, we
conclude that, given that the officers were permitted to park near the garage and
smelled the odor of growing marijuana immediately upon leaving their vehicles,
the trial court’s finding that the information that the garage was the source of the
odor was not obtained as a result of the illegal search is supported by the
evidence and not legally erroneous. See id. at 468. Accordingly, we need not
address the defendant’s argument that the taint from the illegal search was not
purged.

Affirmed.

Dalianis, C.J., and Hicks, Conboy, Lynn, and Bassett, JJ., concurred.

Eileen Fox,
Clerk

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