State of New Hampshire v. Craig Michael Massua

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2015-0556, State of New Hampshire v. Craig
Michael Massua, the court on October 17, 2016, 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, Craig Michael Massua, appeals his convictions for
possession of heroin and possession of heroin with intent to distribute. See
RSA 318-B:2 (Supp. 2015). He argues that the Superior Court (Ignatius, J.)
erred in denying his motion to suppress, asserting that the police officers’
warrantless entry into his hotel room violated his rights under the State and
Federal Constitutions. See N.H. CONST. pt. I, art. 19; U.S. CONST. amend. IV.
We first address his claim under the State Constitution, and rely upon federal
law only to aid our analysis. State v. Ball, 124 N.H. 226, 231-33 (1983).

A warrantless search is per se unreasonable unless it satisfies the
requirements of a recognized exception to the warrant requirement. State v.
Francis, 167 N.H. 598, 602 (2015). “The State has the burden of proving by a
preponderance of the evidence that the warrantless search fell within one of the
narrow, judicially-crafted exceptions.” State v. Robinson, 158 N.H. 792, 797
(2009). 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. State v. Boyer, 168 N.H. 553, 556 (2016). Our review
of the trial court’s legal conclusions, however, is de novo. Id.

The trial court found that the exigent circumstances exception to the
warrant requirement justified the officers’ entry into the hotel room. “Exigent
circumstances exist where the police face a compelling need for immediate
official action and a risk that the delay caused by obtaining a search warrant
would create a substantial threat of imminent danger to life or public safety or
likelihood that evidence will be destroyed.” State v. Rodriguez, 157 N.H. 100,
103-04 (2008) (quotations and citation omitted). Whether a situation is
sufficiently urgent to permit a warrantless search depends upon the totality of
the circumstances, State v. Theodosopoulos, 119 N.H. 573, 580 (1979), and is
largely a question of fact for the trial court, whose determination we will not
disturb unless it is clearly erroneous, State v. MacDonald, 129 N.H. 13, 21
(1986).
 Our totality of circumstances review includes examining the overall
reasonableness of the officers’ conduct prior to entry, and no single factor
controls. Robinson, 158 N.H. at 798. “When reviewing the totality of the
circumstances, we consider the degree to which the exigency relied upon by the
State was foreseeable.” State v. Santana, 133 N.H. 798, 806 (1991). However,
“the extent to which exigency was foreseeable at the time the decision was
made to forego or postpone obtaining a warrant does not, by itself, control the
legality of a subsequent warrantless search triggered by that exigency.” Id.
(quotation omitted).

The record shows that the defendant’s arrest closely followed the
investigation and arrest of his brother, Steven Massua, who was believed to be
selling drugs at the Quality Inn in Merrimack. On August 31, 2014, Detective
Cassell obtained a list of guests registered at the hotel and noticed that Room
140 was registered in the defendant’s name from July 15, 2014, through
October 2, 2014. Cassell assumed that Steven had reserved the room using
his brother’s name. The police arrested Steven on September 25, 2014, shortly
after he completed an apparent drug transaction behind the hotel and left the
hotel in his vehicle. Earlier that day, the police had assigned a “containment
team” of four officers to secure Steven’s hotel room following the planned
arrest.

During the arrest, Steven informed Cassell that the defendant and one
other occupant remained in the hotel room. At the same time, the patrol
supervisor, Lieutenant Tarleton, requested that more officers report to the hotel
because people were showing up to purchase drugs. Officer Marcotte testified
that he and the other members of the containment team, who were waiting in a
nearby parking lot, were told to report to the hotel where, he learned, “there
were numerous people showing up” who “were there to pick up or make
drug . . . buys.” Officer McGuire of the containment team testified that the
individuals informed the police that they arrived to purchase heroin and
marijuana from the defendant. Cassell reported to the hotel and showed the
containment team the location of Room 140. While the officers were in the
hallway, the defendant opened the door to Room 140, stuck his head into the
hallway, saw the officers, and “jump[ed] back in and slam[med] the door.”
Marcotte testified that “[a]t that point, we were afraid that [the occupant] was
actually destroying evidence inside the room.” The officers quickly proceeded
down the hallway to Room 140, knocked, announced themselves as the police,
and after receiving no response, used the hotel’s master room key to enter
without a warrant.

Marcotte testified that upon entering the room, he observed “lots of tin
foil with burnt, brown residue,” which was consistent with heroin use. The
officer also observed “large E-cigarettes,” which are used to smoke heroin. The
officers handcuffed the defendant and the other occupant and conducted “pat
frisk” searches for weapons. In the defendant’s pocket, they found a glass pipe

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and a plastic bag with a “whitish-brown substance” later identified as heroin.
The police arrested the defendant and secured the hotel room, but they did not
search the room until they obtained a search warrant later that evening.
Cassell did not include, in his search warrant application, Marcotte’s
observations of the interior of the room or information from the pat-down
search of the defendant.

The defendant first argues that three weeks prior to the warrantless
search the police had probable cause to believe that Steven was dealing heroin
from the hotel; thus, he argues, the police had an ample opportunity to obtain
a search warrant before they arrested Steven. “Certainly the presence or
absence of an ample opportunity for getting a search warrant is pertinent to
our inquiry.” Santana, 133 N.H. at 805 (quotation omitted). However, a police
officer is not required to obtain a search warrant as soon as probable cause is
established. Id. “Likewise, an officer’s failure to avail himself of an early
opportunity to obtain a warrant will not automatically preclude him from
relying on exigent circumstances.” Id. Thus, we must consider the totality of
the circumstances to determine whether the exigency was foreseeable. See id.
at 806.

The defendant argues that any likelihood that Steven’s arrest would
result in the destruction of evidence in the hotel room was entirely foreseeable.
Cassell testified, however, that he did not believe that anyone other than
Steven was staying in Room 140 until Steven informed him, during the arrest,
that the defendant and another person were in the room. The defendant
asserts that Cassell unjustifiably assumed that Steven had reserved Room 140
with the defendant’s name; he should have assumed that the defendant was
staying in the room. However, Cassell testified that he was familiar with both
the defendant and Steven, that the defendant “had never been seen coming
and going from the hotel,” and that “Steven was always the one seen coming
and going.” Cassell also testified that based upon his experience, drug dealers
tend not to reserve rooms under their own names, in order to evade police
detection and avoid responsibility for criminal activity that may occur in the
room. Thus, the record supports a finding that, prior to Steven’s arrest, the
police did not foresee that the defendant would be in Room 140. See State v.
Boyer, 168 N.H. at 556.

Moreover, the trial court found that the exigency was created not by
Steven’s arrest, but by the arrival of individuals at the hotel to purchase drugs
from the defendant at approximately the same time as the arrest. This
circumstance distinguishes this case from Santana, the case upon which the
defendant primarily relies. In Santana, the drug buyer was arrested after
completing the first part of a two-part transaction that had been arranged by
the police. We held, first, that there was sufficient evidence of exigency to
justify a warrantless entry into the dealer’s apartment because the dealer
would have been “spooked,” and thus might have disposed of or concealed

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evidence if the buyer did not return to complete the second part of the sale.
Santana, 133 N.H. at 804. We concluded, however, that the police could not
rely upon the exigent circumstances exception because they knew in advance
that their decision not to allow the second part of the transaction to occur
would create the exigency. Id. at 807.

Here, the evidence of exigency was similarly sufficient. The police had
detained buyers in the hotel parking lot, and the defendant would have been
“spooked” if they failed to appear to complete their transactions. The police
saw the defendant peer out his hotel room door before they announced their
presence, which suggests that he may already have been “spooked.” However,
in this case, unlike Santana, the police did not create the exigency. The buyers
were not conducting transactions arranged by the police. The police did not
know that the defendant was dealing drugs from the hotel, and they did not
know that the defendant’s customers would appear for drug buys at
approximately the same time as Steven’s arrest. These circumstances created
a compelling need for immediate official action to protect the public and
prevent the destruction of evidence justifying the officers’ warrantless entry
into the hotel room. See Rodriguez, 157 N.H. 103-04.

Because our State Constitution provides at least as much protection as
does the Federal Constitution under these circumstances, see Santana, 133
N.H. at 807; Illinois v. McArthur, 531 U.S. 326, 331-33 (2001), we reach the
same result under the Federal Constitution.

Affirmed.

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

Eileen Fox,
Clerk

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