State of New Hampshire v. Charles L. Barcus

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2016-0281, State of New Hampshire v. Charles
L. Barcus, the court on February 15, 2017, 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, Charles L. Barcus, appeals his conviction, following a
bench trial in Superior Court (Wageling, J.), on a charge of possession of
marijuana with intent to distribute. See RSA 318-B:2 (Supp. 2016). He argues
that the trial court erred by denying his motion to suppress evidence seized
from his hotel room without a warrant. When reviewing an order on a motion
to suppress evidence, we accept the trial court’s findings of fact unless they
lack support in the record or are clearly erroneous. State v. Mouser, 168 N.H.
19, 22 (2015). We review its legal conclusions de novo. Id.

In this case, the trial court found that a housekeeper at the hotel had
entered the defendant’s room through its open door to notify him that his dog
had gotten loose, that she smelled marijuana, and that she observed a large
trash bag in the bathroom tub; the defendant was not there. The hotel’s
manager contacted the defendant to tell him that his dog had escaped, and he
told her that he would return to the hotel. She subsequently notified Salem
police detective O’Brien of the housekeeper’s observations, and of her
conversation with the defendant. Approximately an hour after the manager
had contacted the defendant, O’Brien arrived at the hotel with Detective-
Lieutenant Fitzgerald and a third detective, spoke with the housekeeper and
manager, and reviewed hotel records regarding the defendant.

O’Brien and Fitzgerald subsequently approached the defendant’s room,
which was accessible only by a door opening onto an exterior second-floor
walkway, detected an odor of marijuana coming from the room, and knocked
on the door and a window; no one answered. Fitzgerald then called for a
uniformed officer to come and keep the room secure while they returned to the
police station to apply for a search warrant. Because the hotel is associated
with drug activity, and because an hour had elapsed from the time that the
manager had contacted the defendant, O’Brien and Fitzgerald decided to enter
the room and confirm that it in fact was empty prior to stationing an officer
outside of it. Using a key provided by the hotel, they walked into the room, saw
that it was empty, and left, closing the door behind them. Inside the room,
they smelled marijuana and saw a trash bag in the tub. They did not, however,
touch or seize anything, and were inside of the room for less than ten seconds.

Five minutes later, as O’Brien and Fitzgerald were leaving the balcony
area to speak with the uniformed officer who had arrived, O’Brien saw a car
matching the description of the defendant’s car pull up. The defendant exited
the car and came up to the part of the balcony where O’Brien was standing.
O’Brien asked him if he was the defendant. The defendant confirmed that he
was, and expressed concern for his dog. O’Brien told him that, at that time,
officers were out looking for his dog, but that he and the other detectives had
been called to the hotel because its staff had earlier gone into his room to tell
him that his dog had escaped, and had reported smelling marijuana inside it.
O’Brien did not disclose that he and Fitzgerald had also entered the room.
O’Brien then asked if there was marijuana in the room, to which the defendant
responded that he had approximately twenty pounds of marijuana in the room
that he used for medicinal purposes. He further stated that there were
marijuana oils in his car. After O’Brien asked the defendant if there were other
drugs, weapons, or money inside the room, he answered that there was
approximately $100,000 in cash inside the room. Prior to asking these
questions, O’Brien did not administer Miranda warnings.

Of the three detectives, only O’Brien spoke with the defendant; Fitzgerald
was on the phone with a police prosecutor, and the third detective stood
nearby. During this conversation, none of the detectives blocked the
defendant’s path, displayed a weapon, handcuffed or restrained him, told him
that he was not free to leave, or asked that he surrender his car keys. The trial
court found that, although the defendant appeared to be nervous, he was
cooperative. After the defendant disclosed the marijuana and cash, O’Brien
asked if he would consent to a search of the room and car, explaining that he
was not required to consent. The defendant both orally consented and
executed a consent-to-search form. The subsequent search yielded
incriminating evidence, including approximately twenty pounds of marijuana in
the trash bag and approximately $100,000 in cash.

The defendant moved to suppress the evidence under the State and
Federal constitutions, arguing that the initial entry into his room by O’Brien
and Fitzgerald was unlawful, that he was entitled to Miranda warnings, and
that the evidence was fruit of the unlawful entry and interrogation. In denying
the motion, the trial court noted that the entry was justified by exigent
circumstances because it was reasonable to suspect that the defendant or an
associate might be inside the room destroying evidence. The trial court did not
rely upon this justification, however, but instead assumed that the entry was
unlawful, and concluded that the defendant’s consent purged any taint from it.
In finding that the consent purged any taint, the trial court emphasized that
there was no causal link between the entry and the consent, that the detectives
did not exploit the entry or utilize information obtained from it to obtain
consent, that the defendant was unaware of the entry, that the detectives had a
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good faith basis to seek, and intended to seek, a warrant, that the detectives’
sole purpose in entering the room was to confirm its vacancy, and that the
entry was brief and consistent with this purpose. In finding that the consent
was voluntary, the trial court emphasized that the detectives did not coerce or
threaten the defendant, that O’Brien told him he did not have to consent, that
the defendant was unaware of the earlier entry, and that his interaction with
the detectives was “congenial.” Finally, the trial court concluded that the
defendant was not in “custody” for purposes of Miranda, noting that the
questioning was in a neutral location, that he was not handcuffed, threatened
with arrest, shown a weapon, or restrained in any way, that the questioning
lasted a total of ten to fifteen minutes, that the detectives did not surround
him, and that only O’Brien questioned him.

On appeal, the defendant first argues that he had a reasonable
expectation of privacy in his hotel room, that any exigency was “created” by the
detectives because there was no possibility that someone was in the room, and
that no other exception to the warrant requirement justified the initial entry.
He next argues that his consent did not purge the taint of the warrantless entry
because, he claims, O’Brien was aware that “there was a good-sized amount of
marijuana in [the] room,” and because the detectives were aware that he was
motivated by concern for his dog. He further contends that his consent was
not free and voluntary because his paramount concern was for his dog,
because he did not receive Miranda warnings, because he was never told that
he was free to leave, because he knew that there was a significant amount of
marijuana in the room and that the detectives were also allegedly aware of this
fact, and because he knew that if he did not consent, the detectives would
likely obtain a warrant. Finally, he argues that, because he did not receive
Miranda warnings, and because O’Brien’s questions were “tainted” by the
warrantless entry, the evidence seized constituted “fruit of the poisonous tree.”
Thus, he argues that the evidence should have been suppressed pursuant to
both the State and Federal Constitutions.

As the appealing party, the defendant has the burden of demonstrating
reversible error. Gallo v. Traina, 166 N.H. 737, 740 (2014). Based upon our
review of the trial court’s well-reasoned order, the defendant’s challenges to
that order, the relevant law, and the transcript of the hearing on the motion to
suppress, we conclude that the defendant has not demonstrated reversible
error. See id.

Affirmed.

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

Eileen Fox,
Clerk

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