State of New Hampshire v. Michael Francis

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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Hillsborough - northern judicial district

No. 2013-747

THE STATE OF NEW HAMPSHIRE

v.

MICHAEL FRANCIS

Argued: November 13, 2014

Opinion Issued: May 12, 2015

Joseph A. Foster, attorney general (Geoffrey W.R. Ward, assistant

attorney general, on the brief and orally), for the State.

Christopher M. Johnson, chief appellate defender, of Concord, on the

brief and orally, for the defendant.

BASSETT, J. The defendant, Michael Francis, appeals his conviction of

possession of heroin with the intent to dispense. See RSA 318-B:2 (Supp.

2012) (amended 2013). He argues that: (1) the Superior Court (Brown, J.)

erred in denying his motion to suppress evidence obtained from a search of a

vehicle; and (2) the Superior Court (Mangones, J.) erred in denying his motion

to dismiss based upon insufficient evidence that he possessed the heroin found

in the vehicle. We affirm.

The following facts are drawn from the trial court order on the

defendant’s motion to suppress, are supported by the record, or are

undisputed by the parties. At 5:30 p.m. on January 3, 2013, Detectives

Gonzales and Donahue of the Manchester Police Department were told that the

defendant was wanted for a parole violation, that he was dealing drugs at a

Maple Street residence in Manchester, and that he might be armed. Gonzales

and Donahue conducted surveillance of the Maple Street residence in an

attempt to locate the defendant in order to arrest him for the parole violation.

They observed several individuals entering a Ford Expedition, a large sport

utility vehicle (SUV), which then drove off. The detectives identified one of the

individuals as the defendant based upon his facial appearance and the tattoo

on the side of his neck. Because the area was not well-lit, the detectives could

not determine the exact number of people in the SUV or whether they had

anything in their hands. Gonzales and Donahue followed the SUV and called

for assistance. Two officers responded and stopped the vehicle.

Gonzales and Donahue, accompanied by the other officers, approached

the stopped vehicle with their firearms drawn, and ordered each occupant out

of the SUV, one at a time. The defendant, who sat behind the front passenger

seat, was the last person to leave the vehicle, exiting approximately 30 to 45

seconds after the other occupants. The four individuals who exited the vehicle

were found to be unarmed. However, because Gonzales was unable to see

through the SUV’s tinted and dirty windows, he was unsure whether any other

persons remained in the vehicle. Therefore, the officers decided to “clear” the

vehicle to ensure that a potentially dangerous person did not remain inside the

SUV.

Without obtaining either consent or a warrant, Gonzales entered the

SUV. With his gun drawn, he “flipped” the seats and looked underneath them

to determine whether anyone was lying down in the SUV. During the sweep,

Gonzales observed a partially-opened red backpack on the floor in front of the

defendant’s seat. Gonzales could see the top of a semi-automatic handgun

inside the backpack. The “clear” took a total of eight to ten seconds.

After Boulanger, the owner of the SUV, refused to consent to a vehicle

search, the vehicle was seized and a search warrant was obtained. During the

search of the SUV, Gonzales found heroin under the driver’s seat. Upon

searching the red backpack, Gonzales found a handgun, a box of sandwich

bags, and two digital scales, one of which tested positive for heroin residue.

The defendant was arrested and charged with, among other things, possession

of heroin with the intent to dispense.

Before trial, the defendant moved to suppress evidence seized from the

SUV, alleging that the protective sweep was a warrantless search in violation of

the New Hampshire and United States Constitutions. See N.H. CONST. pt. I,

art. 19; U.S. CONST. amend. IV. The trial court denied the motion, finding

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that the evidence was “admissible pursuant to the protective sweep, exigent

circumstances, and plain view exceptions to the warrant requirement.”

Two of the vehicle’s occupants testified at trial. Boulanger testified that

he met the defendant and the other passengers at the Maple Street residence to

give them a ride. Boulanger understood that “they would take care of [him],”

which he testified meant that they would give him heroin in exchange for

driving. Additionally, Cyr, another passenger in the vehicle, testified that

immediately after the SUV was stopped, the defendant told Boulanger, “Don’t

let them search the vehicle.”

At the close of evidence, the defendant moved to dismiss the possession

of heroin with intent to dispense charge, arguing that the State did not present

sufficient evidence linking him to the heroin “that was found under the driver’s

seat.” The trial court denied the motion. The jury convicted the defendant of

possession of heroin with the intent to dispense. This appeal followed.

I. Motion to Suppress

The defendant argues that the trial court erred by denying his motion to

suppress because the police lacked a reasonable belief that: (1) there was

another person in the vehicle; and (2) any person remaining in the vehicle

posed a risk of danger. Accordingly, the defendant contends that the protective

sweep violated his rights under Part I, Article 19 of the New Hampshire

Constitution and the Fourth Amendment to the United States Constitution.

See State v. Smith, 141 N.H. 271, 274-77 (1996); Maryland v. Buie, 494 U.S.

325, 327 (1990).

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. Schulz,

164 N.H. 217, 221 (2012). We first address the issues 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).

Part I, Article 19 of the New Hampshire Constitution provides that

“[e]very 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.” State v. Graca, 142

N.H. 670, 673 (1998) (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 such exception is known as a protective sweep, which is intended to

ensure that law enforcement officers can “protect themselves from harm” at the

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scene of an arrest. Smith, 141 N.H. at 276. “A ‘protective sweep’ is a quick

and limited search of premises.” Buie, 494 U.S. at 327. “[It] 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. Fundamental to any protective sweep

is the officer’s concern that there may be other persons present “who are

dangerous and who could unexpectedly launch an attack.” Id.

In Maryland v. Buie, the United States Supreme Court stated that “as an

incident to the arrest the officers could, 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.” Id. at 334. The Court added that, if a search extends

beyond the “spaces immediately adjoining the place of arrest,” an officer “must

[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 posing a danger to those on the arrest

scene.” Id.

In State v. Smith, we adopted the second protective sweep standard

articulated in Buie, observing that “[o]ur constitution should not be interpreted

to deny police officers the right to protect themselves from harm.” Smith, 141

N.H. at 276. We stated that a protective sweep performed pursuant to this

standard “correctly balances the need to search against the invasion which the

search entails.” Id.

We have not yet addressed whether a protective sweep performed without

probable cause or reasonable suspicion — the first standard articulated in Buie

— is permitted under our State Constitution, and we need not consider the

issue in this case because the State conceded at oral argument that it did not

raise the issue before the trial court. Thus, our analysis focuses on whether,

as the State asserts, Gonzales had a reasonable belief based upon articulable

facts that a dangerous individual remained in the SUV. See Smith, 141 N.H. at

275; see also Buie, 494 U.S at 337. The scope of this type of protective sweep

must be narrowly confined to: (1) a cursory inspection of those spaces where a

person may be found; and (2) a duration that lasts no longer than 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; Smith, 141 N.H. at 275-76.

On appeal, the defendant does not challenge the scope or duration of the

protective sweep. Rather, he argues that “the police lacked a reasonable belief

that the area to be swept harbored any other person” and that “to the extent

the police had reason to think anybody remained in the car, they lacked a

reason to believe that such person posed a risk of danger.” Based upon the

record before us, we conclude that the trial court did not err when it ruled that

Gonzales reasonably believed that the searched area harbored an individual

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who posed a danger to those on the arrest scene. See Smith, 141 N.H. at 277.

As the trial court found, the defendant “was a convicted felon, had violated

parole, had access to a gun, had a history of threatening others with his gun,

and was suspected of selling heroin from his home.” Gonzales was also unsure

how many individuals were in the vehicle. The defendant was the last to exit

the vehicle and was not carrying a handgun when he exited, and, because the

windows were tinted and dirty, Gonzales could not see inside the SUV. These

findings are supported by the record. Accordingly, we conclude that the record

supports the trial court’s ruling that the officers had a reasonable belief that

the vehicle harbored another person who posed a danger to those on the scene.

See id. at 275. Therefore, the protective sweep was permissible.

Because the State Constitution provides at least as much protection as

the Federal Constitution under these circumstances, we reach the same result

under the Federal Constitution as we do under the State Constitution. See

Smith, 141 N.H. at 275; Buie, 494 U.S. at 337.

II. Insufficiency of the Evidence

The defendant next argues that the trial court erred by denying his

motion to dismiss because the State introduced insufficient evidence to prove

that he possessed the heroin found in the SUV. The defendant does not argue

that the State failed to prove intent to dispense; rather, the defendant

challenges the sufficiency of the State’s evidence only as to his possession of

the heroin. Specifically, he argues that his awareness of the presence of the

heroin does not constitute possession of the heroin, and that, because he was

“one of four occupants” and was “neither [the SUV’s] driver nor its owner,”

there is insufficient evidence that he possessed the contraband found inside

the SUV. See State v. Ward, 134 N.H. 626, 629 (1991) (concluding that

evidence of knowledge of stolen property on premises was insufficient standing

alone to prove constructive possession).

When considering a challenge to the sufficiency of the evidence, we

objectively review the record to determine whether any rational trier of fact

could have found the essential elements of the crime beyond a reasonable

doubt, considering all the evidence and all reasonable inferences therefrom in

the light most favorable to the State. State v. Germain, 165 N.H. 350, 354-55

(2013). When the evidence as to one or more elements of the charged offense is

solely circumstantial, the defendant must establish that the evidence does not

exclude all reasonable conclusions except guilt. Id. at 361. The proper

analysis is not whether every possible conclusion consistent with innocence

has been excluded, but, rather, whether all reasonable conclusions based upon

the evidence have been excluded. Id. “Further, the trier may draw reasonable

inferences from facts proved and also inferences from facts found as a result of

other inferences, provided they can be reasonably drawn therefrom.” Id. at 355

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(quotation omitted). “In reviewing the evidence, we examine each evidentiary

item in the context of all the evidence, not in isolation.” Id.

To prove possession of a controlled drug, the State must show beyond a

reasonable doubt that the defendant: (1) had knowledge of the nature of the

drug; (2) had knowledge of its presence in his vicinity; and (3) had custody of

the drug and exercised dominion and control over it. State v. Trebian, 164

N.H. 629, 632 (2013). When, as here, the defendant was not in physical

possession of the drugs, the State must prove constructive possession. State v.

Tabaldi, 165 N.H. 306, 316 (2013). This can be inferred from circumstances

linking the defendant to the controlled substance, such as the presence of the

defendant’s personal possessions near the drugs. Id. Constructive possession

of drugs need not be exclusive. Id. As we have recognized, “[w]hen more than

one person occupies the premises where drugs are found, mere proof that a

defendant is one of those occupants is insufficient to prove his constructive

possession.” State v. Smalley, 148 N.H. 66, 69 (2002). However, evidence that

the defendant’s personal possessions were in “close proximity to the controlled

substance may provide a sufficiently close nexus between the defendant and

the substance to allow the jury to infer possession.” Id. (quotation omitted).

Here, construing all reasonable inferences in the light most favorable to

the State, a reasonable juror could have found that the defendant possessed

the heroin in the SUV. Boulanger testified that he understood that he would

be given heroin in exchange for providing a ride to the defendant and the other

passengers. He also testified that, after the other passengers had left the SUV,

the defendant asked him whether he had given the police permission to search

the vehicle, and that he told the defendant, “No.” Cyr testified that immediately

after the SUV was stopped, the defendant told Boulanger, “Don’t let them

search the vehicle.” Based on this testimony, a reasonable juror could have

concluded that the defendant was aware of the presence of the heroin in the

SUV. See Trebian, 164 N.H. at 632. The evidence also supported a reasonable

conclusion that the defendant “had custody of the drug and exercised

dominion and control over it.” Id. Cyr testified that the defendant carried a red

backpack into the SUV before they left the Maple Street residence, and placed

it in front of him on the floor. Gonzales found the backpack lying open on the

floor of the SUV during the protective sweep. The contents of the backpack

included drug paraphernalia that later tested positive for heroin. Thus, the

jury could have reasonably inferred that the heroin had been in the backpack

before it was placed under the front seat. See Germain, 165 N.H. at 355.

Moreover, before the defendant exited the SUV, he was alone in the

vehicle for a period of 30 to 45 seconds. During that time, he would have had

the opportunity to remove the heroin from the backpack and place it under the

driver’s seat — an area that was easily accessible to the defendant from his

seat behind the front passenger seat. Although the defendant argues that any

one of the four occupants of the SUV could have possessed the heroin, “the

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jury could have drawn reasonable inferences based upon the evidence

presented and concluded that it belonged to the defendant.” Tabaldi, 165 N.H.

at 316-17 (quotation and brackets omitted). “The State did not have to

establish that the defendant had exclusive constructive possession of the

heroin.” Id. at 317.

We conclude that, viewing the evidence in the light most favorable to the

State, a reasonable juror could have found guilt beyond a reasonable doubt.

Accordingly, the trial court did not err when it denied the defendant’s motion to

dismiss.

Affirmed.

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

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