State v. Scott Robinson

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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Hillsborough-northern judicial district
Nos. 2013-0480
2013-0635
2015-0429

THE STATE OF NEW HAMPSHIRE

v.

SCOTT ROBINSON

Argued: November 9, 2016
Opinion Issued: June 2, 2017

Joseph A. Foster, attorney general (Susan P. McGinnis, senior assistant
attorney general, on the brief and orally), for the State.

Thomas Barnard, senior assistant appellate defender, of Concord, on the
brief and orally, for the defendant.

CONBOY, J. The defendant, Scott Robinson, appeals his convictions for
armed robbery and first degree assault. See RSA 636:1 (2016); RSA 631:1
(2007). We affirm.

The defendant was previously convicted on these charges and appealed,
arguing that the Trial Court (Barry, J.) erred in denying his motion to suppress.
State v. Robinson, 158 N.H. 792, 794 (2009) (Robinson I). We reversed his
convictions, holding that the trial court erred in concluding that exigent
circumstances permitted the warrantless entry by police into his apartment.
Id. at 802-03.

Upon remand, the defendant again moved to suppress, inter alia,
physical evidence obtained “from the time of the warrantless entry into his
apartment” and the fruits thereof. The Trial Court (Garfunkel, J.) denied his
request to suppress the physical evidence, after finding that it was properly
seized during a subsequent search pursuant to a valid warrant.

The defendant was convicted following a subsequent jury trial. He
thereafter filed motions for a new trial in 2013 and in 2014, arguing in both
motions that his trial counsel had been ineffective. The motions were denied
after hearings, and the defendant has appealed. We consolidated the
defendant’s direct appeal of his convictions with his appeals of the rulings on
his motions for new trial.

In this appeal, the defendant argues: (1) that the trial court erred by
considering, upon remand, the doctrines of independent source and inevitable
discovery; (2) that his trial counsel was ineffective because she did not argue
that the doctrines of law of the case and waiver barred the State from raising
the independent source and inevitable discovery arguments in the trial court
following remand; and (3) that, even if the trial court did not err in considering
the State’s arguments, remand is necessary to address certain factual issues.
He also contends that our holding in Robinson I — that the police did not
violate his constitutional rights when they inserted a key, found at the site of
the robbery, into the lock of his car, id. at 796-97 — conflicts with recent
United States Supreme Court decisions.

The following facts are drawn from the trial court’s June 2011 post-
remand order which denied the defendant’s motion to suppress. On March 18,
2006, Manchester police officers responded to a reported robbery at a
Manchester variety store. A witness reported that a white male, wearing a New
England Patriots jacket and green hooded sweatshirt, entered the area behind
the counter in the store, stabbed the store clerk, and took money from the
register. The police searched the area behind the counter and found a key ring
holding three keys; one of the keys belonged to a Kia automobile. The store
employees stated that the key did not belong to any of them, and so the police
assumed that the key belonged to the suspect. The police found a Kia parked
on the street nearby, and determined from witness reports that the suspect
had run in the direction of the vehicle before turning into an alley. They
relayed the license plate number of the Kia to police dispatch and learned that
the Kia belonged to the defendant, who lived eight blocks from the site of the
robbery.

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 Several police officers headed to the defendant’s apartment; another
officer took the key and inserted it in the door of the Kia and determined that it
fit the lock (key test). This information was relayed to the officers at the
defendant’s apartment building and was later included in an application for a
warrant to search the defendant’s apartment. It is undisputed that when the
officers first entered the defendant’s apartment, they did so without a warrant.
During the initial entry, they observed a green sweatshirt and a Patriots jacket
in the defendant’s closet. Subsequently, after obtaining a warrant, they again
entered the apartment and seized the green sweatshirt, the Patriots jacket and
a knife.

The defendant first argues that the trial court erred in considering, upon
remand, the independent source and inevitable discovery exceptions to the
exclusionary rule. Before addressing the defendant’s contention that the
exclusionary rule applied to the challenged evidence under both the State and
Federal Constitutions, we briefly discuss the evolution of these doctrines.

The general rule is that evidence must be excluded if it is discovered as a
result of police misconduct. State v. Holler, 123 N.H. 195, 199 (1983). “The
exclusionary rule enjoins the Government from benefiting from evidence it has
unlawfully obtained.” United States v. Crews, 445 U.S. 463, 475 (1980). The
United States Supreme Court has recognized, however, that evidence
discovered as a result of unlawful conduct does not automatically become
forever inaccessible. Silverthorne Lumber Co v. United States, 251 U.S. 385,
392 (1920). “If knowledge of [facts] is gained from an independent source they
may be proved like any others.” Id. “Accordingly, information which is
received through an illegal source is considered to be cleanly obtained when it
arrives through an independent source.” United States v. Soto, 799 F.3d 68,
81-82 (1st Cir. 2015) (quotation omitted). “The independent source doctrine
teaches us that the interest of society in deterring unlawful police conduct and
the public interest in having juries receive all probative evidence of a crime are
properly balanced by putting the police in the same, not a worse, position that
they would have been in if no police error or misconduct had occurred.” Nix v.
Williams, 467 U.S. 431, 443 (1984).

In Wong Sun v. United States, 371 U.S. 471 (1963), the Supreme Court
discussed the analysis used to determine whether the independent source
exception would apply to challenged evidence:

We need not hold that all evidence is “fruit of the poisonous tree”
simply because it would not have come to light but for the illegal
actions of the police. Rather, the more apt question in such a case
is “whether, granting establishment of the primary illegality, the
evidence to which instant objection is made has been come at by

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 exploitation of that illegality or instead by means sufficiently
distinguishable to be purged of the primary taint.”

Wong Sun, 371 U.S. at 487-88 (citation omitted).

The Supreme Court subsequently adopted the inevitable discovery
doctrine as an exception to the exclusionary rule in Nix. Nix, 467 U.S. at 444.
Under this doctrine, “illegally seized evidence is admissible if a search was
justified, and the evidence discovered illegally would inevitably have come to
light in a subsequent legal search.” Holler, 123 N.H. at 200. “The inevitable
discovery doctrine, with its distinct requirements, is in reality an extrapolation
from the independent source doctrine: Since the tainted evidence would be
admissible if in fact discovered through an independent source, it should be
admissible if it inevitably would have been discovered.” Murray v. United
States, 487 U.S. 533, 539 (1988). We have endorsed the application of both
the inevitable discovery and the independent source exceptions to the
exclusionary rule when evaluating admissibility challenges under our State
Constitution. See, e.g., Holler, 123 N.H. at 200-01; State v. Beede, 119 N.H.
620, 629-30 (1979) (discussing inevitable discovery doctrine).

In the extensive appellate record, the parties have referred to the doctrine
implicated under the State’s alternative admissibility argument as both the
inevitable discovery doctrine and the independent source doctrine. In his brief,
in this appeal, the defendant contends that the trial court “appears to have
accepted the State’s argument” that the inevitable discovery doctrine applies to
the admissibility of the green sweatshirt and the Patriots jacket. We note that
at the 2015 hearing on the defendant’s most recent motion for new trial, the
State clarified that although the parties had “been using the term inevitable
discovery . . . this is really an independent source issue.” Regardless of which
doctrine applies, however, the substance of the defendant’s position is the
same; that is, the State was foreclosed from pressing in the post-remand trial
court its alternative argument regarding the admissibility of the derivative
evidence because it did not make that argument in Robinson I. For ease of
reference, we use “independent source” to refer to the doctrines collectively as
we address the defendant’s remaining arguments. See Murray, 487 U.S. at
539 (inevitable discovery doctrine is extrapolation of the independent source
doctrine).

We first consider the defendant’s arguments that: (1) the trial court erred
in considering, upon remand, the State’s alternative argument regarding the
admissibility of the derivative evidence; and (2) his trial counsel (who is not his
appellate counsel) was ineffective because she did not argue that the doctrines
of law of the case and waiver barred the State from raising its alternative
argument following remand. Because the defendant did not argue in the post-
remand trial court that the State was procedurally barred from presenting its

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alternative argument, he asks that we consider under our plain error rule
whether the trial court erred in considering the argument. See Sup. Ct. R. 16-
A.

For us to find plain error: (1) there must be error; (2) the error must be
plain; and (3) the error must affect substantial rights. State v. Thomas, 168
N.H. 589, 604 (2016). If all three of these criteria are met, we may then
exercise our discretion to correct a forfeited error only if the error meets a
fourth criterion: the error must seriously affect the fairness, integrity or public
reputation of judicial proceedings. Id.

In his 2007 motion to suppress, the defendant argued that the key test
was an improper search and the warrantless entry into his apartment was
unlawful because there were no exigent circumstances. The defendant
contended that, but for the key test, the police would not have been at his
apartment. He also challenged the validity of the State’s subsequently obtained
search warrant, arguing that it was based upon observations made during the
warrantless entry. The State argued that exigent circumstances authorized the
initial warrantless entry into the defendant’s apartment, and, alternatively, that
the evidence seized from the defendant’s apartment was seized pursuant to a
valid search warrant.

The trial court denied the defendant’s motion to suppress, finding that
exigent circumstances justified the warrantless entry and that “[c]ontrary to
the defendant’s assertion, the police were able to identify the defendant as the
owner of the vehicle, his physical description, prior record, and address, from
the license plate number on the vehicle.” The trial court further ruled that,
because exigent circumstances permitted the warrantless entry into the
defendant’s apartment, “it was appropriate for the [warrant] affidavit to
reference, and the issuing judge to consider, the officers’ observations.” The
court did not address the State’s alternative argument that the evidence seized
from the defendant’s apartment pursuant to the search warrant was otherwise
properly admissible.

Following his 2007 conviction, the defendant filed his first appeal, setting
forth in his notice of appeal challenges to: (1) the key test; (2) the warrantless
entry into his apartment; (3) the admissibility of the search warrant evidence;
and (4) the sufficiency of the State’s evidence at trial. In his brief, however, the
defendant expressed his sole argument as follows: “The trial court erred in
denying Robinson’s motion to suppress, because the warrantless entry into
Robinson’s home was not supported by the exigent circumstances exception to
the warrant requirement.” (Emphasis added; capitalization omitted.) The
defendant referred to the admissibility of the search warrant evidence only in
the final paragraph of his brief. Without any developed argument, he asserted:

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 The court declined to suppress the fruits of the search warrant
because it held the initial entry did not violate the State or Federal
Constitutions. Because the court erred in that regard, the
evidence gathered as a result of the search warrant must also be
suppressed. Alternatively, this Court must remand for a hearing
on the scope of the evidence that must be suppressed as a result of
the unconstitutional warrantless entry into [the defendant’s] home.

(Citation omitted.) The defendant did not address the State’s alternative
admissibility argument that had been previously presented in the trial court.

Thus, the defendant’s argument in his first appeal centered on a
challenge to the trial court’s ruling that exigent circumstances justified the
warrantless entry into his home. We agreed in Robinson I that the warrantless
entry was not justified by exigent circumstances, Robinson I, 158 N.H. at 802-
03. The question before us now is whether the State was foreclosed from
pursuing, upon remand, its alternative argument — originally raised in the
trial court prior to the defendant’s Robinson I appeal — because it did not
pursue that argument on appeal in Robinson I. Based upon the record before
us, we conclude that the State was not so foreclosed, and therefore the trial
court did not commit plain error in considering it.

At the 2015 hearing on his motion for new trial, the defendant
acknowledged that the State had raised its alternative argument before the trial
court in 2007. He argued, however, that because the State did not address
this argument in its brief filed in Robinson I, it was barred from raising the
issue in the trial court following remand. The Trial Court (Nicolosi, J.) was
unpersuaded by this argument, finding that, because in his first appeal, the
defendant had failed to address the State’s argument in his brief, and failed to
provide relevant supporting documentation, the State was not obligated to
address the issue in its brief.

Under the law of the case doctrine, “only such issues as have actually
been decided, either explicitly, or by necessary inference from the disposition
[of the first appeal], constitute the law of the case.” Saunders v. Town of
Kingston, 160 N.H. 560, 566 (2010) (quotation omitted). We recognize that a
party in a second appeal may not present an argument it omitted in the first
appeal if that argument raises points of law necessarily involved in the
disposition of the first appeal. See id. However, “points of law not reached and
decided in the first appeal remain open on remand and on a second appeal.”
Id. (quotation omitted). “The doctrine does not bar litigation of all questions
which were within the issues of the case and which, therefore, might have been
decided.” Field v. Mans, 157 F.3d 35, 40 (1st Cir. 1998) (quotations omitted).
“Questions that have not been decided do not become law of the case merely
because they could have been decided.” Charles Alan Wright, Arthur R. Miller
& Edward H. Cooper, Federal Practice & Procedure § 4478, at 789 (1981).

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Because our opinion in Robinson I determined only the legality of the key test
and whether the warrantless entry into the defendant’s home was justified by
exigent circumstances, see Robinson I, 158 N.H. at 797, 803, the law of the
case doctrine did not bar the trial court from considering, upon remand, the
additional arguments presented by the State in opposition to the defendant’s
motion to suppress.

The waiver doctrine, like the law of the case doctrine, “serves judicial
economy by forcing parties to raise issues whose resolution might spare the
court and parties later rounds of remands and appeals.” United States v.
Castillo, 179 F.3d 321, 326 (5th Cir. 1999), rev’d on other grounds, 530 U.S.
120 (2000) (citation and quotation omitted). But it “differs from the law-of-the-
case doctrine in that it arises as a consequence of a party’s inaction, not as a
consequence of a decision on our part.” Id. (citation omitted). As the First
Circuit has held, whether “there is a waiver depends not . . . on counting the
number of missed opportunities . . . to raise an issue, but on whether the party
had sufficient incentive to raise the issue in the prior proceedings.” United
States v. Ticchiarelli, 171 F.3d 24, 32-33 (1st Cir. 1999). Here, given the trial
court’s rulings on the defendant’s 2007 suppression motion and the issues
raised by the defendant in his first appeal, we cannot conclude that the State
had any incentive to address in its responsive brief the alternative argument
that it had previously made in the trial court.

Accordingly, we affirm the trial court’s decision to permit the State to
pursue, upon remand, its alternative argument regarding admissibility of the
challenged evidence.

Because the trial court did not err in allowing the State to pursue this
alternative admissibility argument, the court also did not err in finding that
defense counsel was not ineffective in failing to raise the issues of law of the
case and waiver. See, e.g., State v. Chase, 135 N.H. 209, 212 (1991) (to prevail
on claim of ineffective assistance, defendant must demonstrate both that
counsel’s performance was deficient and that, but for those errors, reasonable
probability exists that result of trial would have been different).

The defendant also argues that the independent source doctrine does not
apply in this case and that the trial court erred in not applying the
exclusionary rule. The defendant cites Murray in support of his argument. In
Murray, the Supreme Court was asked to determine whether evidence “that
had been observed in plain view at the time of a prior illegal entry” but
subsequently obtained “pursuant to an independently obtained search
warrant” must be suppressed. Murray, 487 U.S. at 535. The Court observed
that the independent source doctrine is based upon the policy “that, while the
government should not profit from its illegal activity, neither should it be
placed in a worse position than it would otherwise have occupied [had no
violation occurred].” Id. at 542. Accordingly, if a “later, lawful seizure is

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genuinely independent of an earlier, tainted one . . . , there is no reason why
the independent source doctrine should not apply.” Id. The Court then
remanded the case to allow the trial court to resolve the following issues: (1)
whether the agents’ decision to seek a warrant was prompted by what they had
seen during their initial entry; and (2) whether the information obtained during
the initial entry was presented to the magistrate and affected his decision to
issue the warrant. Id. at 542-44.

Notwithstanding the analysis in Murray, the defendant asks that we hold
that the protection of the exclusionary rule is broader under Part I, Article 19 of
the State Constitution than under the Fourth Amendment. Specifically, he
asks that we “hold that, where the police conduct an unconstitutional,
warrantless search, and where no effort was made to begin the process of
applying for a warrant at the time of the unconstitutional search, the
exclusionary rule under Part I, Article 19 . . . bars admission of the evidence
first discovered in the course of that search.” If we endorse his proposed
standard, he argues, it follows that the exclusionary rule applies in this case
because the police had not begun applying for a warrant at the time of the
entry and they included observations obtained from the illegal search in their
application. Alternatively, if we decline his request to expand the protection of
Part I, Article 19, he contends that remand to the trial court is necessary to
allow the fact finder to determine: (1) whether the officers’ decision to obtain a
search warrant was prompted by what they saw during their initial entry; and
(2) whether observations from the initial entry that were included in the
supporting affidavit affected the magistrate’s decision to issue the warrant.

We are not persuaded by the defendant’s proposal to require the process
of applying for a warrant to have begun at the time of the unconstitutional
search in order for the independent source doctrine to apply. We agree with
the Supreme Court that “if a later, lawful seizure is genuinely independent of
an earlier tainted one . . . , there is no reason why the independent source
doctrine should not apply.” Id. at 542. We see no reason to impose a
requirement that the police have begun the process of applying for a search
warrant at any particular time. The requirement that a later, lawful seizure
pursuant to a warrant be genuinely independent of an earlier, tainted one
serves to support the policy underlying the exclusionary rule by assuring
suppression of the results of the later seizure when the decision to seek the
warrant was prompted by what was seen during the initial entry. See id. at
542-44.

To the extent that the defendant requests that we remand this case to
the trial court to address whether the observations made by the police during
their initial warrantless entry into the defendant’s apartment affected either
their decision to seek the search warrant or the magistrate’s decision to issue
the warrant, we conclude that he has failed to preserve this issue for our
review. See, e.g., State v. Adams, 169 N.H. 293, 299 (2016).

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 The record before us demonstrates that, following Robinson I, the
defendant filed a renewed motion to suppress in the post-remand trial court;
the State filed an objection. The State also filed a motion to clarify “the validity
of the warrant relied upon by the police to search the defendant’s apartment
after the initial entry.” In his objection to the State’s motion to clarify, the
defendant argued that the inevitable discovery doctrine did not apply because
our precedent supported its application “only in narrowly prescribed
circumstances” and that the doctrine should not be used to “reward unlawful
conduct by the police or to avoid the search warrant requirement.” The
defendant did not ask the trial court to make the factual findings that he now
argues are required by Murray.

In its subsequent order, the trial court found that the State and the
defendant agreed “that the warrant contain[ed] information obtained during, or
tainted by, the initial unlawful entry” and that they “also agree[d] that the court
must excise and ignore the tainted language and then reevaluate probable
cause.” See State v. Plch, 149 N.H. 608, 619-20 (2003) (holding that “to test
the validity of a search warrant issued on an affidavit referencing illegally
seized evidence, the reviewing court excises the tainted information and
examines the remaining information to determine whether it establishes
probable cause”). The defendant does not challenge these findings on appeal.

Accordingly, consistent with our decision in Plch, and with the parties’
agreement, the trial court excised from the search warrant affidavit information
obtained as a result of the warrantless entry, and found that the “post-excised
affidavit established probable cause to search the apartment for the items
identified in the warrant.” The court further found that “the knife, jacket and
sweatshirt were seized during the search pursuant to the warrant and not
during the unlawful entry.” Based upon these findings, the trial court denied
the defendant’s motion to suppress the challenged physical evidence. Notably,
the defendant does not argue in this appeal that the post-remand trial court
erred in finding probable cause under Plch.

To the extent that the defendant now argues that the trial court should
have addressed the questions set forth in Murray other than through the
findings that it did make, he did not make this request in the trial court.
Accordingly, the issue of whether the trial court was required to make
additional factual findings to support its probable cause determination has not
been preserved for our review. See Adams, 169 N.H. at 299; see also United
States v. Dessesaure, 429 F.3d 359, 365-70 (1st Cir. 2005) (discussing
whether, when evaluating whether probable cause supported issuance of
search warrant, Murray requires more than excising information obtained
during prior illegal search); United States v. Herrold, 962 F.2d 1131, 1140-44
(3d Cir. 1992) (discussing exclusionary rule exceptions, including independent
source doctrine, and factual issues to be addressed in light of Murray when
warrant is tainted by illegally obtained information).

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 The defendant next argues, as he did in Robinson I, that the police
violated his rights under Part I, Article 19 of the New Hampshire Constitution
and the Fourth Amendment to the United States Constitution when they
conducted the key test. See Robinson I, 158 N.H. at 795. In Robinson I, we
held that “the privacy interest at stake is so small that the officers [did] not
need probable cause” to ascertain whether the key fit the lock to the vehicle’s
door. Id. at 796 (quotation omitted). Rather, we concluded that “the private
information protected by Part I, Article 19 is what lies behind the door.” Id.
We then reviewed his challenge under the Federal Constitution, stating that
“[w]hether the defendant’s Fourth Amendment rights were violated turns upon
whether he had a reasonable expectation of privacy in the thing searched.” Id.
at 797. We concluded that “[b]ecause the defendant had no expectation of
privacy in this case, the officer’s conduct did not violate the protections of the
Fourth Amendment.” Id.

The defendant now argues that the United States Supreme Court’s
subsequent opinion in United States v. Jones, 132 S. Ct. 945 (2012), “squarely
contradicts” our holding in Robinson I. He also cites Florida v. Jardines, 133
S. Ct. 1409 (2013), in support of this argument. He contends that “[b]ecause
Jones and Jardines are contrary to the rationale this Court relied on in the first
appeal, the law of the case doctrine does not preclude reexamination of this
issue.”

We will assume, without deciding, that the defendant has properly
preserved this argument and that the cited cases would alter the conclusion
that we reached in Robinson I that the key test was not an unreasonable
search, but see California v. Acevedo, 500 U.S. 565, 581 (1991) (Scalia, J.,
concurring) (“The Fourth Amendment does not by its terms require a prior
warrant for searches and seizures; it merely prohibits searches and seizures
that are ‘unreasonable.’ What it explicitly states regarding warrants is by way
of limitation upon their issuance rather than requirement of their use.”). We
will also assume both that the key test results should not have been included
in the search warrant affidavit and that the trial court erred in admitting the
results of the key test at trial.

We first address the search warrant affidavit. We note at the outset that
the only information obtained from the key test was that the Kia key found at
the scene of the robbery fit a Kia vehicle located on the street nearby. Prior to
conducting the key test, the police had obtained the following information: (1)
the Kia key was found on the floor behind the counter in the area where the
suspect had stabbed the victim; (2) witnesses gave a physical description of the
suspect, including that he was wearing a green hooded sweatshirt and a blue
Patriots jacket; (3) a witness pursued the suspect from the store and saw him
run to Amory Street, approximately 250 feet away; (4) a Kia vehicle was parked
in that area on Amory Street; and (5) the suspect ran out of the store “right to
the [Kia] and then down the alley, which was two houses down from where the

10
car was parked.” At the 2007 hearing on the defendant’s motion to suppress,
an investigating officer testified: “I would assume based on my knowledge that
he stopped at the vehicle and realized he didn’t have his key any more and
then went down the alley.” The trial court found in its order addressing the
motion to suppress that “the police did not rely upon the key actually fitting
the vehicle, but rather, acted upon information obtained through the vehicle’s
registration” prior to the key test when they went to the defendant’s apartment.
The court also found that the police had identified the defendant as the owner
of the vehicle and obtained his physical description, prior record, and address,
from the license plate number on the vehicle and that they were already at his
apartment when the key test was conducted.

Thus, even if we assume that the key test results were illegally obtained,
and we excise that limited information from the search warrant affidavit, see
Plch, 149 N.H. at 20, we conclude that the remaining information established
probable cause to issue the search warrant.

We turn to the evidence presented at trial. The State argues that to the
extent that the trial court erred in admitting evidence of the key test results at
trial, any error was harmless. We agree. We note that the erroneous
admission of evidence is harmless only if the State proves beyond a reasonable
doubt that the verdict was not affected by its admission. State v. Cooper, 168
N.H. 161, 165 (2015). At trial, the State presented testimony by two
eyewitnesses who identified the defendant as the individual who had stabbed
the victim and robbed the store. The State also presented evidence that the Kia
key was found on the floor in the area where the victim was stabbed, that a
witness pursued the defendant from the store and saw him run to Amory
Street and that a Kia vehicle was parked in the area on Amory Street. The jury
also heard evidence that, at the time of the robbery, it was wet outside and that
within five to twenty minutes after the robbery, the police found wet footprints
inside the apartment building where the defendant lived; the footprints
originated on the first floor and went up the stairs and led to the defendant’s
apartment.

Accordingly, given the overwhelming other evidence of the defendant’s
guilt, we conclude that the error, if any, in admitting the key test results was
harmless.

Affirmed.

DALIANIS, C.J., and HICKS, LYNN, and BASSETT, JJ., concurred.

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