State of New Hampshire v. Damien Rousseau

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2023-0011, State of New Hampshire v. Damien
Rousseau, the court on June 18, 2024, issued the following
order:

The court has reviewed the written arguments and the record submitted
on appeal, has considered the oral arguments of the parties, and has
determined to resolve the case by way of this order. See Sup. Ct. R. 20(2). The
State of New Hampshire (the State) appeals a decision of the Superior Court
(Bornstein, J.) denying the State’s motion for reconsideration and clarification
of the trial court’s order granting the defendant’s, Damien Rousseau, motion to
suppress evidence obtained after the warrantless seizure of his vehicle by the
Lebanon Police Department (LPD). We affirm and remand.

The trial court found, or the record supports, the following facts. On
May 11, 2022, the LPD seized the defendant’s vehicle without a warrant. The
next day — after the defendant broke into the police impound lot to access his
vehicle — the LPD obtained and executed a warrant to search the defendant’s
vehicle. The police found drugs and guns in the vehicle. The State brought
charges against the defendant related to the evidence the police found in his
vehicle as well as his entry into the LPD impound lot.

The defendant moved to suppress all the evidence obtained after the
warrantless seizure of his vehicle, arguing that the seizure violated his rights
under, among other provisions, Part I, Article 19 of the New Hampshire
Constitution and was not justified by an exception to the warrant requirement.
The State objected, arguing, among other things, that the evidence should not
be suppressed because the “exigent circumstances” exception to the warrant
requirement applied. Alternatively, the State argued that, even if the vehicle
was unlawfully seized, the evidence should not be suppressed because the
“independent source” and “inevitable discovery” exceptions to the exclusionary
rule applied. At the suppression hearing, the trial court invited the parties to
submit supplemental briefing to further develop their arguments.

The trial court granted the defendant’s motion to suppress and stated
that it was suppressing the “evidence found pursuant to the tow of the vehicle.”
The State subsequently moved for clarification and reconsideration, asking the
trial court to clarify precisely what evidence was suppressed and arguing, for
the first time, that the defendant’s “distinct and separate crime” of breaking
into the police impound lot purged “the taint of any police illegality” stemming
from the warrantless tow of the defendant’s vehicle. (Quotation omitted). The
defendant objected. The trial court denied the State’s motion for
reconsideration, reasoning that the State had failed to raise its “new crime”
exception to the exclusionary rule argument at any point prior to filing its
motion to reconsider and that both the defendant and the trial court were
entitled to be informed of the grounds on which the State opposed suppression
prior to the trial court’s suppression ruling. This appeal followed.

On appeal, the State argues that the trial court unsustainably exercised
its discretion when it refused to address the State’s “new crime” argument
because it was raised for the first time in its motion for reconsideration. The
State argues that it could not have raised its “new crime” argument earlier
because, until it received the trial court’s order, the State reasonably thought
that the issue before the court was the validity of the warrantless seizure of the
defendant’s vehicle; it asserts that “the State had no knowledge or notice that
the court intended to suppress the evidence associated with the distinctly
separate offense of breaking into the impound lot and trying to remove the
incriminating evidence found in the” defendant’s vehicle. We disagree.

“We review for an unsustainable exercise of discretion a trial court’s
refusal to entertain new issues on reconsideration on the basis that the issues
could have been raised at an earlier time.” Loeffler v. Bernier, 173 N.H. 180,
187 (2020). We will reverse the trial court’s ruling only if it was clearly
untenable or unreasonable to the prejudice of the appellant’s case. See id.

The trial court sustainably exercised its discretion when it ruled that the
State was required to raise its “new crime” argument prior to the court’s
suppression ruling. “[I]t is in the interest of judicial economy to require a party
to raise all possible objections at the earliest possible time, especially when an
argument raised in a motion for reconsideration was readily apparent to the
moving party at the time it initially filed for relief.” Id. at 188 (quotation
omitted).

The State’s “new crime” argument was readily apparent both at the time
the State objected to the defendant’s motion to suppress as well as when it
submitted its post-hearing memorandum. In his motion to suppress, the
defendant argued that the warrantless seizure of his vehicle was
unconstitutional and specifically sought to suppress “all evidence obtained as a
result of [the] unlawful seizure.” The State was, therefore, on notice that it
should respond to the defendant’s arguments about the constitutionality of the
seizure of the defendant’s vehicle and its contents, as well as raise any
alternative arguments about why, even if the vehicle was unlawfully seized, the
exclusionary rule should not apply. See State v. De La Cruz, 158 N.H. 564,
566 (2009) (“The exclusionary rule is a remedy for the violation of a defendant’s
right to be free from illegal searches and seizures, requiring any evidence
obtained in violation of that right to be excluded.”). We are unpersuaded by the

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State’s argument that it reasonably thought the only issue before the trial court
was the validity of the vehicle seizure given that, in its objection to the
defendant’s motion to suppress, the State made alternative arguments
regarding two other exceptions to the exclusionary rule, but not the “new
crime” exception. This demonstrates that the State knew that it should make
alternative arguments as to why the evidence should not be suppressed —
including arguments related to the exclusionary rule — in its objection to the
defendant’s motion to suppress.

Nor has the State cited any authority from this court to support its
argument that it was reasonable for the State to respond only to the arguments
made by the defendant in his motion to suppress and to forgo raising in its
earliest objection or post-hearing memorandum all of its arguments as to why
the evidence should not be suppressed. The State bore the burden to show
that the warrantless seizure fell within one of the exceptions to the warrant
requirement, State v. Donovan, 175 N.H. 356, 360 (2022), or, alternatively, that
the taint of the illegal seizure was subsequently purged, State v. Morrill, 169
N.H. 709, 717 (2017). Neither the defendant nor the trial court is obligated to
raise issues on the State’s behalf. Cf. State v. Santana, 133 N.H. 798, 808-09
(1991) (declining to address the State’s “independent source” doctrine
argument, raised for the first time on appeal, as unpreserved in part because it
was the State’s burden to prove the warrantless search was constitutionally
permissible).

Finally, we are not persuaded by the State’s argument that its
presentation of the “new crime” argument in the motion to reconsider was
proper given that prior to the trial court’s order it had no notice that the issue
before the court included the suppression of the evidence found in the
defendant’s car “for use in” the prosecution of the charges arising from the
defendant’s entry into the impound lot. The defendant did not seek to
suppress evidence of his conduct at the impound lot. Rather, the defendant
sought to suppress all the physical evidence obtained after the police seized his
vehicle “‘pending a search warrant’ — in other words, prior to drafting an
application for a search warrant and prior to a search warrant being granted.”
The defendant’s motion to suppress identified the charges arising from the
entry and listed the separate docket number associated with those charges
and, in its objection, the State also listed the docket number for only the
impound lot crimes. Moreover, the record before us reflects that, at the time of
the suppression hearing, the only remaining charges against the defendant
were those arising out of the defendant’s entry into the impound lot.
Accordingly, the State knew that, in his motion to suppress, the defendant
sought to suppress the physical evidence related to the only charges still
pending against him — the charges associated with the defendant’s entry into
the impound lot.

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 In sum, we conclude the trial court sustainably exercised its discretion
when it declined to address the State’s “new crime” argument raised for the
first time on reconsideration. Consequently, we need not address the merits of
the State’s arguments regarding the “new crime” exception to the exclusionary
rule. See Loeffler, 173 N.H. at 189.

Affirmed and remanded.

MACDONALD, C.J., and BASSETT and DONOVAN, JJ., concurred;
HANTZ MARCONI, J., sat for oral argument but subsequently disqualified
herself and did not participate in further review of the case.

Timothy A. Gudas,
Clerk

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