State of New Hampshire v. Shawn M. Minson

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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Cheshire
No. 2019-0124

THE STATE OF NEW HAMPSHIRE

v.

SHAWN M. MINSON

Argued: July 1, 2020
Opinion Issued: August 18, 2020

Gordon J. MacDonald, attorney general (Shane B. Goudas, attorney, on
the brief and orally), for the State.

Christopher M. Johnson, chief appellate defender, of Concord, on the
brief and orally, for the defendant.

HICKS, J. The defendant, Shawn M. Minson, following a bench trial on
stipulated facts, appeals his felony convictions for possession of cocaine,
possession with intent to dispense the controlled drug fentanyl in a quantity of
five grams or more, and possession with intent to dispense the controlled drug
crack cocaine in a quantity of five grams or more. See RSA 318-B:2 (2017), :26
(Supp. 2019). On appeal, he argues that the Superior Court (Ruoff, J.) erred by
denying his motion to suppress evidence obtained as a result of a “protective
sweep” of his motel room, and by denying his post-conviction motion effectively
seeking to reopen the motion-to-suppress record. We affirm.
I. Motion to Suppress

We draw the following facts from the trial court’s order, supplementing
as necessary from the transcript of the hearing on the motion to suppress and
other documents in the record containing facts the trial court could have
found. On January 28, 2018, a state trooper obtained information from a
confidential informant that the defendant was selling a large quantity of crack
cocaine and was staying at the Days Inn in Keene. The trooper was informed
by a Keene police officer that he had observed the defendant’s vehicle parked at
the Days Inn. That same day, the trooper secured a warrant to arrest the
defendant for an unrelated November 2017 road rage incident.

Later on January 28, the Keene police and state troopers went to the
Days Inn and were informed that the defendant was staying on the second
floor. At police request, a motel employee called the defendant and asked him
to come to the front desk. The troopers went to the second floor of the motel
and arrested the defendant as he opened the door to his room. As the
defendant was taken into custody, the ranking trooper saw three women inside
the room through the open door. One woman quickly turned around
“completely,” putting her back to the officers and the door. The trooper saw
“other movements from her arms and hands.” He also saw another woman
moving around and that the room was full of smoke. He directed the other
troopers to enter and secure the room.

Upon doing so, the troopers observed a large wad of money on the center
of the bed as well as a plastic bag containing what appeared to be crack
cocaine. When one of the women was asked for identification, she pointed to
her purse, which was open and in which could be seen a plastic bag containing
what appeared to be crack cocaine. The woman confirmed that the bag
contained crack cocaine and that it belonged to her.

Thereafter, a search warrant was obtained, and the defendant and two of
the women were transported to the Keene police department. During her police
interview, one of the women advised that she had purchased heroin from the
defendant in the motel room, but that she had not paid for it because the
police had arrived. She said that the defendant had given her the crack
cocaine in her purse for free. She also said that the defendant was keeping
drugs in a safe inside the motel room and that he had showed her
approximately three “eight balls” of crack cocaine and said that he was running
low. When the room was searched pursuant to the search warrant, heroin and
crack cocaine were found.

Before trial, the defendant moved to suppress the evidence obtained as a
result of the protective sweep of his motel room. Following a hearing, the trial
court denied the defendant’s motion. The trial court ruled that the following
facts reasonably caused the troopers to be concerned that there were others

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present in the motel room who were dangerous and could unexpectedly launch
an attack: the women were observed moving inside the motel room; one of
them quickly turned away from the troopers and the open door; the motel room
was full of smoke; and the troopers had information that the defendant was
selling large amounts of crack cocaine from the motel room. The trial court
found it “reasonable for the troopers to suspect that a room being used for a
large drug transaction with an undetermined [number] of people, who were
moving around and one suddenly turned away from the troopers, may be a
dangerous environment.”

On appeal, the defendant contends that the protective sweep of his motel
room violated his rights under Part I, Article 19 of the New Hampshire
Constitution and the Fourth Amendment of the Federal Constitution. We first
consider his argument under the State Constitution and rely upon federal law
only to aid in our analysis. State v. Ball, 124 N.H. 226, 231-33 (1983). 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. State v. Francis, 167
N.H. 598, 602 (2015).

Part I, Article 19 of the State Constitution provides in pertinent part,
“Every 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 comes within one of a few recognized exceptions.” Francis, 167 N.H.
at 602 (quotation omitted). “Absent a warrant, the burden is on the State to
prove that the search was valid pursuant to one of these exceptions.” Id.
(quotation omitted).

One exception is known as the protective sweep, which is intended to
ensure that law enforcement officers can “protect themselves from harm” at the
scene of an arrest. Id. (quotation omitted). A “‘protective sweep’ is a quick and
limited search of premises.” Maryland v. Buie, 494 U.S. 325, 327 (1990). “[I]t
occurs as an adjunct to the serious step of taking a person into custody for the
purpose of prosecuting him for a crime.” Id. at 333.

In Buie, the United States Supreme Court ruled that two types of
protective sweeps are constitutional. “First, during a search incident to an
arrest occurring inside a home, officers may, ‘as a precautionary matter and
without probable cause or reasonable suspicion, look in closets and other
spaces immediately adjoining the place of arrest from which an attack could be
immediately launched.’” United States v. Colbert, 76 F.3d 773, 776 (6th Cir.
1996) (quoting Buie, 494 U.S. at 334). “Second, officers may conduct a search
more pervasive in scope when they have ‘articulable facts which, taken together
with the rational inferences from those facts, would warrant a reasonably
prudent officer in believing that the area to be swept harbors an individual

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posing a danger to those on the arrest scene.’” Id. (quoting Buie, 494 U.S. at
334). As additional limitations, the Court emphasized that a valid sweep is

not a full search of the premises, but may extend only to a cursory
inspection of those spaces where a person may be found. The
sweep lasts no longer than is necessary to dispel the reasonable
suspicion of danger and in any event no longer than it takes to
complete the arrest and depart the premises.

Buie, 494 U.S. at 335-36 (footnote omitted).

The instant case involves the second type of protective sweep described
in Buie. In Smith, we held that “the principles stated in Buie” as to the second
type of protective sweep “are legitimate extensions of our own search and
seizure law under part I, article 19 of the New Hampshire Constitution,” and
that “[o]ur constitution should not be interpreted to deny police officers the
right to protect themselves from harm.” State v. Smith, 141 N.H. 271, 276
(1996). To be valid, such a sweep must be supported by reasonable suspicion
“that the area to be swept harbors an individual posing a danger to those on
the arrest scene.” Buie, 494 U.S. at 334; see United States v. Yarbrough, 961
F.3d 1157, 1163 (11th Cir. 2020). “Reasonable suspicion is an analysis of ‘the
totality of the circumstances—the whole picture.’” Yarbrough, 961 F.3d at
1163 (quoting United States v. Sokolow, 490 U.S. 1, 8 (1989)); see State v.
Graca, 142 N.H. 670, 674 (1998).

“To determine the sufficiency of an officer’s suspicion, we consider the
articulable facts in light of all surrounding circumstances, keeping in mind
that a trained officer may make inferences and draw conclusions from conduct
that may seem unremarkable to an untrained observer.” State v. Broadus, 167
N.H. 307, 310 (2015) (quotation omitted). “In making this determination, we do
not consider each fact in isolation or necessarily compare the facts to another
case.” Id.; see United States v. Knights, 534 U.S. 112, 117 (2001)
(characterizing as “dubious logic [the idea] that an opinion upholding the
constitutionality of a particular search implicitly holds unconstitutional any
search that is not like it”). A reasonable suspicion must be more than a
hunch, and must have a particularized and objective basis. Broadus, 167 N.H.
at 310-11. “Reasonable suspicion may be based upon activity that is
consistent with both guilty and innocent behavior.” State v. Perez, 173 N.H.
___, ___ (decided May 15, 2020) (slip op. at 7).

The defendant argues that the trial court erred by denying his motion to
suppress because “the police lacked specific and articulable suspicion that the
motel room harbored somebody who posed a danger.” We disagree.

Here, before entering the motel room, the troopers had information that
the defendant was selling crack cocaine from his motel room. When the door

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opened, the officers observed three women moving inside the room. The room
was full of smoke. One of the women quickly turned her back to the officers
and to the open door, and one trooper testified that he “could see . . . other
movements from her arms and hands.”

The information about the defendant selling narcotics coupled with the
police officers’ observations of the women’s conduct through the open door was
sufficient to lead a reasonably prudent law enforcement officer to believe that
the motel room harbored individuals dangerous to those on the arrest scene.
See Buie, 494 U.S. at 334. “[T]he fact that the door was open could cause [an]
officer to believe that anyone inside would be aware that [the defendant] had
been taken into custody . . . .” United States v. Henry, 48 F.3d 1282, 1284
(D.C. Cir. 1995); see United States v. Biggs, 70 F.3d 913, 916 (6th Cir. 1995)
(observing that because the “defendant left the motel room door open[,] . . .
anyone present in the room had a clear view of the officers, thereby threatening
their safety from an unknown person present in the room”).

Moreover, given the totality of the circumstances here, a reasonable
officer could also have believed that one or more of the women were armed.
Although, arguably, it is “uncontroversial that drug activity can cause a
rational officer to fear that . . . weapons to protect the drugs may be present,”
Yarbrough, 961 F.3d at 1164, the officers here had more than just such a
generalized suspicion. See United States v. Taylor, 248 F.3d 506, 514 (6th Cir.
2001). Rather, they saw three women moving inside a room full of smoke and
saw one of those women act furtively by quickly turning her back to the officers
and the open door while moving her arms and hands. See Yarbrough, 961
F.3d at 1164-65; see also United States v. Caraballo, 595 F.3d 1214, 1225
(11th Cir. 2010) (finding the defendants’ nervous demeanor and evasive
movements justified a protective sweep). Such conduct could have caused a
reasonable officer to rationally infer that the woman whose back was turned
had or was reaching for a weapon. That rational inference would not have
been based upon speculation, as the defendant contended at oral argument,
but rather upon specific, observable conduct.

“While it is true that the officers could not be certain that a threat existed
inside the [room], this does not impugn the reasonableness of their taking
protective action.” Henry, 48 F.3d at 1284. Certainty is not required. Nor is
probable cause. See Alabama v. White, 496 U.S. 325, 330 (1990) (“Reasonable
suspicion is a less demanding standard than probable cause not only in the
sense that reasonable suspicion can be established with information that is
different in quantity or content than that required to establish probable cause,
but also in the sense that reasonable suspicion can arise from information that
is less reliable than that required to show probable cause.”). “It is enough that
they [had] a reasonable basis for believing that their search [would] reduce the
danger of harm . . . .” Henry, 48 F.3d at 1284 (quotation omitted). “In
balancing the Government’s interests against an individual’s Fourth

5
Amendment rights, it is a bedrock principle that ‘it would be unreasonable to
require that police officers take unnecessary risks in the performance of their
duties.’” Id. at 1285 (quoting Terry v. Ohio, 392 U.S. 1, 23 (1968)). “If a
protective sweep were unlawful on these facts, the officers would be required to
do just that.” Id.

In sum, the police in the instant case had specific and articulable facts
which, viewed in their totality, gave rise to a reasonable suspicion justifying a
protective sweep. See Yarbrough, 961 F.3d at 1163-65 (deciding that police
had specific and articulable facts to justify a protective sweep where “numerous
anonymous tips suggested that the house was heavily trafficked and a source
of possible drug activity,” “the presence of two vehicles at the residence
suggested that multiple people could be present,” and the defendant’s wife “fled
to the bathroom” when the police called her name); United States v. Lawrence,
No. 3:07-CR-127, 2008 WL 5120957, at *5 (E.D. Tenn. Dec. 3, 2008) (“It was
proper for the officers to conclude that there was a danger of harm to
themselves and others, and therefore to conduct a protective sweep when there
were drugs present and the officers had discovered that [one of the defendants]
lied to them about there being others in the apartment.”).

In urging a contrary result, the defendant argues that “the fact that other
people were present and reacted to the startling event of [his] arrest by moving
does not give rise to a reasonable suspicion of danger,” and that “even if the
police supposed that [he] was using the room as a base for his drug-dealing
operations, that supposition did not support a reasonable suspicion that, after
[his] arrest, the room harbored a dangerous person.” We agree with these
general propositions, but they are beside the point. See Taylor, 248 F.3d at
514.1

It was not the mere presence of the women in the motel room or the mere
fact that the defendant was suspected of dealing drugs that justified the
protective sweep in this case. Rather, it was the totality of the circumstances
that justified the protective sweep, circumstances that included the women
moving, the room being full of smoke, and one of the women quickly turning
her back to the officers and the open door while moving her arms and hands,
that provided a basis for a reasonable officer to believe that the women could
be dangerous. We decline the defendant’s invitation to view each fact in
isolation, rather than as part of the totality of the circumstances. See Broadus,
167 N.H. at 310.

1 To the extent that the defendant contends that the police could not have inferred that he was
dealing drugs from his motel room because the informant told the police only that the defendant
dealt drugs and was in the motel room, we disagree. Such an inference was reasonable for
trained officers to make. See Broadus, 167 N.H. at 310.

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 The defendant likens this case to Colbert. Colbert is distinguishable,
however. In Colbert, the defendant was arrested next to his parked vehicle,
which was approximately 40 to 50 feet away from his girlfriend’s apartment,
where he had been staying. Colbert, 76 F.3d at 775, 777. Soon thereafter, his
girlfriend ran out of the apartment, yelling. Id. at 775. Although the police
knew that the apartment belonged to the girlfriend, and although they saw her
run out of it and had no reason to believe that anyone remained inside, they
conducted a protective sweep of it. Id. at 775, 777-78. As one of the officers
testified, he “didn’t have any information at all” as to whether anyone was in
the apartment before he conducted a protective sweep. Id. at 777-78
(quotation omitted). In that context, the court stated that a “[l]ack of
information cannot provide an articulable basis upon which to justify a
protective sweep.” Id. at 778.

By contrast, in the instant case, the defendant was arrested at the
threshold of his motel room door. Having intercepted the defendant as soon as
he opened the motel room door, the police actually saw three women inside the
room; they saw that the room was full of smoke; they saw the women moving
around; and they saw one of the women act furtively by quickly turning her
back to the police and to the open door. See Taylor, 248 F.3d at 514; see also
United States v. Maestas, 941 F.2d 273, 278 (5th Cir. 1991) (“[A] police officer’s
reasonable suspicions may arise from the rational inferences of what he sees
and hears.”). Unlike the officers in Colbert, who had no information as to
whether anyone remained in the apartment after the defendant was arrested
and his girlfriend ran out of the apartment, Colbert, 76 F.3d at 777-78, the
officers in the instant case knew that the motel room contained additional
individuals as soon as the motel room door opened. Therefore, unlike the
officers in Colbert, the officers in this case, based in part upon their own
observations, had reasonable suspicion that the motel room harbored other
individuals who posed a danger to them. See Smith, 141 N.H. at 277; Francis,
167 N.H. at 603. Because the State Constitution provides at least as much
protection as the Federal Constitution under these circumstances, we reach
the same result under both constitutions. See Francis, 167 N.H. at 604; Buie,
494 U.S. at 337.

II. Post-Trial Motion to Reopen the Motion-to-Suppress Record

Five days after the defendant was convicted but before he was sentenced,
the prosecutor sent the defense attorney a police report that had just been
provided to her. The report, authored by a Keene police officer shortly after the
defendant’s arrest, stated, in pertinent part, that, according to a state trooper,
the informant in this case had “bought an eight ball . . . from [the defendant] at
the Price Chopper in Keene” the night before his arrest and that the defendant
“was staying at the Days Inn in Keene.”

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 Based upon this report, the defendant filed a motion for a new trial,
arguing that the report supported his “position at the hearing on the motion to
suppress.” The defendant asserted that the report demonstrated that the
police lacked knowledge that he was selling large quantities of crack cocaine
from his motel room; rather, the police knew only that he was staying at the
Days Inn and that, the night before his arrest, he had sold one individual a
single “eight ball” at a different location in Keene.

The State objected, observing that two troopers averred in their affidavits
that the informant had said that the defendant “was selling a large quantity of
crack cocaine and was presently staying at the Days Inn in Keene.” (Quotation
omitted.) The trial court denied the motion, reasoning that “nothing in the
report . . . would have impacted [its] analysis in denying the motion to
suppress” because the report “is substantially corroborative of the State’s
evidence.”

On appeal, the defendant contends that the trial court erred by not “re-
open[ing] the suppression hearing to permit the introduction of further
evidence in light of [the] report.” He asserts that “after such a re-opened
hearing, the evidence in its totality would require the court to grant his motion
to suppress.”

Before addressing the parties’ arguments on this issue, we observe that
when the defendant first filed his motion in the trial court, he styled it as a
motion for a new trial. On appeal, however, he “does not claim that the [report]
would have been favorable at trial.” Rather, he “presses only the claim that the
evidence would have been favorable at the suppression hearing.” Moreover,
although in the trial court, the defendant argued that the denial of his motion
violated his constitutional right to due process under Brady v. Maryland, 373
U.S. 83 (1963), and its progeny, he does not brief that argument on appeal,
and we, therefore, deem it waived. See State v. Blackmer, 149 N.H. 47, 49
(2003).

We review the trial court’s denial of a motion to reopen the record under
our unsustainable exercise of discretion standard. State v. Comtois, 122 N.H.
1173, 1175 (1982); see State v. Lambert, 147 N.H. 295, 296 (2001) (to establish
that trial court’s decision is unsustainable defendant must demonstrate that
ruling was clearly untenable or unreasonable to the prejudice of his case).

Here, we cannot conclude that the trial court unsustainably exercised its
discretion by denying the defendant’s motion to reopen the motion-to-suppress
record. The trial court specifically stated that “nothing in the report . . . would
have impacted [its] analysis in denying the motion to suppress” because the
report “is substantially corroborative of the State’s evidence.” The new police
report corroborates the other information the police had that the defendant
sold drugs and that he was staying at the Days Inn. Even with the new report,

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the police could reasonably have inferred that the defendant had been selling
large quantities of drugs from his motel room. See Broadus, 167 N.H. at 310.
For all of the above reasons, therefore, the defendant has failed to demonstrate
that the trial court’s ruling is clearly untenable or unreasonable to the
prejudice of his case. See Lambert, 147 N.H. at 296.

Affirmed.

BASSETT, HANTZ MARCONI, and DONOVAN, JJ., concurred.

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