Appendix — Theodosopoulos v. New Hampshire

‘Supreme Court, U. &

FILED

APR 4 1980

IN THE

SUPREME COURT OF THE UNITED STATE HAEL RODAK, JR.,

OCTOBER TERM, 1979

no. 9@9- 1558

THOMAS H. THEODOSOPOULOS,

Petitioner

Vv.

STATE OF NEW HAMPSHIRE,

Respondent

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF NEW HAMPSHIRE

APPENDICES

Eugene M. Van Loan, III, Esquire

95 Market Street

Manchester, New Hampshire 03101

(603) 669-4140

Counsel for the Petitioner

Appendix A:

Opinion and Order of New Hampshire

Supreme Court (August 17, 1979)

modified (January 4, 1980)

Appendix B:

Rulings and Findings of Hillsborough

County Superior Court (April 25, 1978)

Appendix C:

Petitioner's Motion For Rehearing

in New Hampshire Supreme Court

(September 24, 1979)

Pages

1-13

1-12

1-5

APPENDIX A.

THe StaTe OF NEw HAMPSHIRE

SUPREME COURT

ROSEN MACK ESL XR 1980 lice ieailids sais

PERS SOT ye SUPREME COURT eUILOING

CAROL A. EL MAIN January 7 Conconro. N. H. 0330!

(@03) a71-

03) 271-2666

Peter W. Heed, Esq.

Assistant Attorney General

State House Annex

Concord, NH 03301

Eugene M. Van Loan, III

Wadleigh, Starr, Peters, Dunn & Kohls

95 Market St.

Manchester, NH 03101

In re 78-248 State v. Thomas H. Theodosovoulos

Gentlemen:

On January 4, 1980, the supreme ccurt denied the defendant's

motion for rehearing and modified the opinion that had been issued

on August 17, 1979 (distributed 9/14/79). I enclose a copy of the

order.

The modifications appear on pages 7 and 13 of the enclosed

copy of the manuscript.

Very truly yours,

Office of the Clerk

Donna R. Craig

cc: Flynn, J.

Capistran, J.

Robert Murphy, Comm'r

Enclosures

—

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. . 297248, State v. Thomas H. Theodosopoulos

eereeeeeeeeeee eeereeeee ee eee eee ee eee eee ee eee eeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeee

the court upon teteesseceereeeee ADUary. Ay, .1A80 ebesaessaeen ..+.,made the following order:

Motion for rehearing denied; opinion modified.

ter W. Heed, Esq.'

gene M. Van Loan, III, Bsq. Clerk,

bert Murphy, Comm'r

ynn, J.

41317

Hills -erough

No. 78-243

THE STATE OF NEW HAMPSHIRE {~~

v. ae

THOMAS H. THEODOSOPOULOS

August 17, 1979 ,

Thomas D. Rath, attorney general, ezd( Peter W. Heed,

Jrruch,

assistant attorney general [rm aie,

at

orally), for the State.

Wadleigh, Starr, Peters, Dunn & Kohls, of Manchester -

(Rugene M. Van Loan, ITI orally), for the defendant.

BROCK, J. This case requires us to consider the

constitutionality of a search conducted by the Manchester

Police Department after a sniper shot was .fired into the

Manchester Police Station, seriously wounding two persons. the

defendant was indicted on two counts of attempted manslaughter

under RSA 630:2, 629:1. In this interlocutory appeal, the

defendant excepts to the ruling of the Hillsborough County

Superior Court (Flynn, J.) denying his motion to sappesas

physical evidence taken Erom his apartment and any statements

he may have made at the time of the search.

“Shortly after midnight on the morning of December 31, 1977,

Mrs. Dorothy Perreault came to the Manchester Police Station to

complain that her son had threatened her with a gun. At

approximately 12:50 a.m., while she was standing at the desk in

the lobby talking with police Captain Evangelos P. Xiggoros, a

shot was fired. The bullet struck and seriously wounded both

Mrs. Perreault and Captain Xiggoros.

—_

t heelle fepou los

Che

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_come from outside the station.

The othe: police officers in t'.2 station reacted

immediately by turning of€ all lighting in the building. Trey

summoned several off-duty officers to the station, including a

"Special Reaction Team" trained to respond to emergencies such

as sniper fire. Because the shot was initially assumed to have

been fired from within the station, the officers surrounded the

station with patrol cars and uniforred officers, and thoroughly

searched the interior of the station. They feared that tho

unknown assailant, whom they characterized as a sniper,

remained positioned to fire additional shots. When Sergeant

Louis Durette arrived, at 1:20 a.m., he observed policemen

concealed behind cement walls and in doorways, and an officer

called out to-him, "Sarge, keep down. We don't know where the

sniper is." |

By approximately 1:45 a.m., the intericr search was

comple=ed and the officers realized that the Dellet had in fact

One group of officers then lett

the station environs to attempt to locate the Perreault boy as

a possible suspect. A second group attempted to reconstruct

the shooting to determine where the bullet had come from. A

large bullet hole was discovered ten or eleven feet above the

lobby floor in one of the large panes of glas3 that form the

front wall of the police station facing Chestnut Street. With

this new information, Sgt. Durette and the eighteen-man special

reaction team first searched a large abandoned church building

on the corner of Chestnut and Merrimack Streets, directly

across Chestnut Street from the police station. When they

found no evidence of the assailant, they returned to the

station. Sgt. Durette and two other officers then lined up the

2

bullet hoie in t:e window with the victims’ locations when they

had been hit. They concluded that the shot had probably beer

fired from a row of multi-storied apartment buildings extending

westward down Manchester Street fromthe corner of Chestnut

Street. The rear windows and fire escapes of these buildings

faced a wide parking area and an alley that separated them from

the abandoned church. There was a direct sight line from the

front wall of the police station down the alley to the rear

windows on the second and third stories of the apartment

buildings. The special reaction team immediately began a

methodical search of that row of buildings, both rooftops and

-interiors, beginning with a small store located on the corner

closest to the police station. By that time it was about 2:05

a.m., one hour and fifteen minutes after the shot had been

fired.

The search of the first few buildings yielded nothing. At

about 2:15 a.m., eight officers entered a four-story apartment

building at 83 Manehester Street. . The ground floor and cellar

were found to be clear, and an officer vas costed to prevent

anyone from leaving the building. The officers awakened the

occupant of the second fioor apartment, tol¢ her that there had

been a shooting, and searched her apartment with her consent,

without finding any sign of an assailant. She told them that

she had not heard any shots or noise from upstairs.

Sgt. Durette and the special reaction eam then moved

upstairs and pounded on the third-floor apartment door. ‘rom

under the doorway, they observed that a light was on in the

apartment, but heard no noise or response. Sgt. Durette

soteahonie. nimc

*~

then went dowr. to the sscond-floor apartmeni: to question its

occupant ‘further. According to Sgt. Durett2, she told him that

the thicd-floor resident "must be home" because his truck was

parked outside. Sgt. Durette returned to the third floor ar.

continued pounding on the door. He sent other members of his

team to search the fourth floor and roof. He also communicated

with officers at the police station by walkie-talkie and asked

that they obtain keys to the third-floor apartment from the

owner of the building. One of the special reaction team squads

wanted to move on to the next building, but Sgt. Durette was

determined to complete the search of that building before

moving on.

When the keys arrived, none fit the doors to the

third=floor apartment. Sgt. Durette felt that "the whole

situation was very grav@, .. - people's lives were in

dancer.” He kicked open the weakest door anc entered the

apartment. It was then about 2:50 a.m., two hours after the

shooting and about one-half hour after the search had focused

on the third-£loor apactment.

Once inside the apartment, the officers fanned out, looking

for the person who had fired the shot anc whom they thought

might be preparing to fire additional shots. Sst. Durette

later testified that he went into the room thrt had Lights on

and saw marijuana plants growing in pots on the floor. He

proceeded through the kitchen, which faced the alleyway, into a

bedroom, also on the alleyway, where he founc the defendant,

apparently asleep. On a bureau, in plain view, were empty .350

caliber shell casings and a rifle scope. Other officers,

ooo ns fo Fo OUemlUlUMOlUCUNSULUCUC

10

looking for a possil:le second person, entered the bathroom,

adjacent to the kitchen and also facing the alleyway, and

noticed a broken window from which there was a clear line ot

sight to the glass wall of the police station where the bullet

had entered. The officers, with some difficulty, managed to

arouse the defendant and took him to the police station where

he was booked for the shooting.

A short while later, at avout 6:00 a.m., relying primarily

on facts discovered during the initial entry, the police

obtained a search warrant from the Manchester District Court

(Capistran, J.).

thoroughly searched the defendant's truck and apartment,

While executing this warrant, the police

including a locked closet, and found and seized several items,

including a pellet rifle, a l6-gauge shotgun, and a .350

caliber cifle. The defendant moved to suppress all physical

evidence taken from his apartment and his truck, as well as any

statements he might have made during and immaciately after the

initial search.

A warrantless search is per se‘ unreasonable and invalid,

unless it comes within one of a few recognized exceptions.

Mincey v. Arizona, 437 J3.S. 385, 390 (1978); State v. Thorp,

116 N.H. 303, 308, 358 A.2d 655, 660 (1976), citing Coolidge v.

New Hampshire, 403 U.S. 443, 454-55 (1971); see U.S. CONST.

amend. IV; N.H. CONST. pt. I, art. 19. We have held that the

State has the burden of proving by a preponderance of the

evidence that a warrantless search was constitutionally

, 402 A.2d 493

permissible. State v. Osborne, 119 N.H.

(1979); see Arkansas v. Sanders, 47 U.S.L.W. 4783, 4783 (June

et a Ae ce a Coe ln mY Rem dan menue

20, 1979). The recognized exception that the State relies on

in this case is that of probable cause to search plus exigent

circumstances. -See Warden v. Hayden, 387 U.S. 294 (1967);

NIAH. ,» Aad CLitre)(decided tris Giz).

“State v. Beede ae The probable cause required for a

warrantless search under the exigent circumstances exception is

at least as great as that required to support a warrant. State

v. Thorp, 115 N.H. at 306, 355 A.2d at 658, citing Wong Sun v.

United States, 371 U.S. 471, 479 (1963); cf. United States v.

Ferrara, 539 F.2d 799 (lst Cir. 1976) (warrantless search

requires more probable cause).

In the present case, it is not our task to review the

propriety of the entire sweep search conducted oy members of

the Manchester Police Department or of their search of stores

and apartments other than the one occupied by the defendant.

United States v. Scott, 520 F.2d 697 n.l (9th Cir. 1975), cert.

denied, 423 U.S. 1056 (1976). Rather, the issze before us is

whether, at the moment the police officers entered the

defendant's apartment, they had probable cause =9 search that

particular apartment in connection with the shooting incident.

United States v. Scott suora. The information cained as a

result of the entry cannot, of course, be used to justify the

entry itself. United States v. Di Re, 332 U.S. 581, 595 (1948).

The defendant correctly points out that, crior to the

entry, the State did not have any information linking hia

personally to the crime that had been committed. This case is

therefore different from traditional “hot pursuit" cases in

which police officers have some clues to the identity of the

person or persons they are chasing. See, e.g., Warden v.

eo ss Ce ] a ®@ Ca es» ewe

-

i)

ry

po

Havden, 387 U.S. 294 (1967); State v. Thorp, 116 N.H. 303, 358

A.2d 655 (1976). Compare Dorman v. United States, 435 F.2d 385

(D.C. Cir. 1970), with United States v. Lindsay, 506 F.2d 166

(D.C. Cir. 1974). In the present case, the determination

whether probable cause for the search existed turns on whether,

at the time of the entry, the officers reasonably believed that

the “thing” sought, the sniper, was located in the place to be

entered and searched. Zurcher v. The Stanford Daily, 436 U.S.

547, 556 (1978); State v. Doe, 115 N.H. 682, 685, 371 A.2d 167,

169 (1975); People v. Superior Court, 150 Cal. Rptr. 227, 232,

86 Cel. App. 34 366, 373 (1978); People v. Mitchel] 39 N.Y.2d

173, 347 N.E.2d 607, 383 N.¥.S.2d 246, cert. denied, 426 U.S.

953 (1976); Grimes, Probable Cause in the Zurcher Case, 17

Judces' Journal 25 (1978).

The record shows that the officers had calculated the

bullet trajectory sufficiently to focus theiz search on a

particular row of buildings along Manchester Street. By the

time they reached the defendant's apartment, they had searched

number ThAEse / f ‘We

a significant postion of #ne buildings pire ti ews Steg

which were

‘ s

ehe—pelice—sctatios, and had secured che buildings, closer to the

police station than the defendant's. Cf. People v. Bradford,

28 Cal. App. 3d 695, 104 Cal. Rpt-. 852 (1972) (apartment

house); People v. Mitchell, 39 N.¥.2d 173, 347 N.E.2d 607, 383

N.¥.S.24 246 , cert. denied, 426 U.S. 953, (1976) (hotel). The

d@efendant's apartment was on the third floor, at a height

compatible with the bullet path. Lights were on in the

apartment and the defendant's truck was parked outside, leading

the officecs to believe that the apartment was occupied. When

ne one responded to their persiste:t knocking, they had reason

to conclude that the occupant wished to conceal his presence,

United States v. Scott, 520 F.2d 697, 700 (9th Cir. 1975),

cert. denied, 423 U.S. 1056 (1976). The evidence supports ti»

tricl court's finding that the State had sufficient probat’.»

cause to search the defendant's apartment.

Probable cause alone, however, is not sufficient to justify

the search conducted in this cas. See State v. Becde, 119

> 4. (1979) Glecided t1.is, day,

N.H./ (72S FE ©=Ordinarily, any search must be performed

pursuant to a judicially issued search warrant,

Arkansas v.

Sanders, 47 U.S.L.W. 4783, 4785 (June 20, 1979). The warract

reguirement is particularly stringent for a search of a private

dwelling, in which the occupant has a strong expectation of

privacy and protection from government intrusion. See United

Stet 7s v. Martinez-Fuerte, 428 U.S. 543, 561 (1976); State v.

suse .

Bee: - feeee 242

Nevertheless, exigent circumstances may justify a

warrantless search where there is a compelling need for

immediate official action and a risk that the Celay inherent in

obtaining a warrant will present a substantial threat oz

imminent danger to life or public safety. Sa2e “Mincey v.

Arizona, 437 U.S. 385, 392 (1978); Warden v. Raden, 387 U.S.

294, 298-99 (1967); State v. Slads, 116 N.B. 426, 362 A.2d 194

(1976); Mascolo, The Emergency Doctrine Excestion to the

Warrant Requirement under the Fourth Amendment, 22 Buffalo L.

Rev. 419, 426 (1973).

By statute and at common law, police officers have a duty

to act as “conservators of the peace." RSA 105:3; Blais v.

ee <a

~~ Mm

- Ss

—_— )-— Aad t1YCdecided ths da 45

Town of Goffstown, 119 N.H./CSssece State v. Grant, 107 N.H.

1, 2, 216 A.2d 790, 791 (1966). As such, they have the right,

and in some circumstances the obligation, to act expeditiously

to protect the public from an armed person, known to be at

large, who has just shot and wounded two other persons. See

generally Mincey v. Arizona, 437 U.S. at 392; United State: v.

Barone, 330 F.2d 543, 545 (2d Cir.), cert. denied, 377 U.S.

1004 (1964); Mascolo, supra at 426; Note, 43 Fordham L. Rev.

571, 582 (1975). Whether a situation was sufficiently urgent

to permit a warrantless search depends on the totality of the

circumstances. United States v. Evans, 481 F.2d 990, 993 (9th

Cir. 1973); State v. Mollberg, 310 Minn. 376, 246 N.W.2d 463

(1976). Even if it can be shown after the fact that no

emergency existed, the warrantless entry may be sustained as

long as the offivers' perception of the emergency was

reasonably grounded in the facts known to them at the time.

Mascolo, supra at 427 n.33.

The record sustains the trial court's finding that a

"highly volatile” emergency existed that justified the police

entry into the defendant's apartment. A shot fired into the

- police station at midnight led the police to believe that there

was a sniper at large in the immediate vicinity of the police

station. Deputy Chief of Police Edmund LeBoeuf, who arrived at

the station at 1:20 a.m., testified that the officers "knew a

shot was fired and a couple people had been hit. They...

expected alm st anything . . . another shot.” They knew that

finding a magistrate and obtaining a warrant in the middle of

the night could easily take an hour or two. Sce N.H. Attorney

General, Law Enforcement Manual, ch. 7 § 8, at 52 (1972).

9

— a a

At some point, the passage of time during which a w.:-rant

could have been obtained destroys the State's claim of

exigency. See, e.g., Michigan Vv. Tyler, 436 U.S. 499 (1978)

(several days); G.m. Leasing Corp. v. United States, 429 U.S.

338, 358-92 (1977) (several days); State v. Beede ¥ 72 sey :

(two days). People-v, Hampton, 587 P.2d 275 (Colo. 1978) (40

hours).

"[T) he presence or absence of an ample Opportunity for

getting a search warrant" is a relevant factor in considering

the reasonableness of any warrantless search. United States v.

Rabinowitz, 339 u.s. 56, 84 (1950) (Frankfurter, J.,

dissenting); see McDonald v. United States, 335 u.s. 451, 455

(1948).

On the other hand, police officers responding to an

emergency are not required to initiate a search or arrest at

the first moment that Probable cause exists. United States rv,

Weinrich, 586 F.2d 481, 493 (Sth Cir. 1978).

In the instant case, the defendant's apartment was searched

approximately two hours aftar the shooting incident, and about

One half-hour after the police had sufficien- information to

constitute probable cause. That delay did noc, in and of

itself, Gestroy the emergency and render the search

“unreasonable” under the fourth amendment. See United States

v. Simmons, 444 F, Supp. 500, 506 (B.D. Pa. 1978), afé'd, $91

F.2d 206 (3d Cir. 1979) (search Sustainable ever though

considerable time had elapsed since onset of exigent

circumstances). The police activity here was 2 methodical,

continuous and vigorous attemot to apprehend an armed and

dangerous person. See People v.Mitchell, 39 N.¥.2d 173, 383

N.Y.S.2d 246, 347 N.8.24 246, 347 N.E.2d 607, cert, denied, 426

10

oe (ose oS - se ew

U.S. 953 (1975). There is no suggestion that the emergency wa:

artificially created by the State's own action or inaction.

See Williamson, The Supreme Court, Warrantless Searches, and

Exigent Circumstances, 31 Okla. L. Rev. 110, 123 (1978). Nor

are there facts tending to show that the State's failure to

obtain a warrant reflected an absence of concern for protecting

fourth amendment values. See McDonald v. United States, 335

U.S. 451, 455 (1948); United States v. Brightwell, 563 F.2d

569, 576 (3d Cir. 1977) (Lord, J. dissenting). The

- constitutionality of a given search does not turn on this

court's after-the-fact evaluation of whether, as a tactical

matter, the police could have deployed their forces differently

United States

in response to a confusing emergency situation.

v. Weinrich, 586 F.2d at 494. We affirm the trial court's

ruling that the warrantless entry into the defendant's

apartment was both supported by probable cause and justified by

a life-endangering emergency created by sniper fire.

e The defendant further contends that even if the initial

entry was justified, the subsequent search of his apartment

exceeded its permissible scope. See United States v.

Goldenstein, 456 F.2d 1006 (8th Cir. 1972), cart. denied 416

U.S. 943 (1974); State v. Slad2, 116 N.H. 436, 362 A.2d 194

(1976). In particular, he challenges the admissibility of a

spent shell found in the living room and the broken bathroom

window.

The emergency doctrine cannot be used to justify a search

primarily directed towards gathering evidence of past criminal

activity, no matter how violent the crime. Mincey v. Arizon:2,

ll

ts

~~

437 @.S. 385 (1978); Michigan v. Tyler, 436 U.S. 499 (1978);

Peopte v. Mitchel? 39 N.¥.2d 173, 383 ".¥.S.2¢ 246, 347 N.F.2¢

607, cert. denied, 426 U.S. 953 (1976). An emergency search is

"“stcictly circumscribed by the exigencies which justify its

initiation." Mincey v. Arizona, 437 U.S. at 393, quoting Terry

v. Chio, 392 U.S. 1, 25-26 (1968). Once inside the apartment,.

however, the officers were authorized to conduct a limited

search confined to what was reasonably necessary for the

Purpose of the entry. State v. Slade, 116 N.H. at 438, 362

A.2d at 196. Because the officers did not know the identity or

the number of persons involved in the shooting, it was

reasonable for them to look for one or more persons, as well as

for weapons, in all the rooms of the apartment, especially

those with windows facing the alleyway and the police station.

See People v. Olajos, 397 Mich. 629, 246 N.W.2¢ 828 (1976);

State .v. Max, 263 N.W.2c 685 (S.D. 1978). Once in these rooms,

they were not required to close their eyes to items of apparent

evidentiary value that confirmed the link between the deferdant

and the shooting. See Coclidce v..New Hamoshire, 403 U.S. 443,

468 (1971); Warden v. Hayden, 387 U.S. 294, 390-01 (1967);

State v. Hardin, 90 Nev. 10, 15, $13 P.24 151, 154 (1974);

Mascolo, supra at 426-27.

Pursuant to a warrant supported by an affi¢avit relying on

information gained during the warrantless entry, the officers

searched the defendant's truck and apartment, and seized

weapons, live and expended ammunition, and marijuzra. These

items are admissible because the initial warrantless entry was

not constitutionally invalid. State v. Osborne, 119 N.R. ’

12

_—

oo 8 fO G2 8B eH

10°

402 A.24 493, 496 (1979), citing Wong Sun v. United States, 371

U.S. 471 (1963). he trial court did not err in denying the

defendant's motion to suppress this evidence.

The defendant also seeks to exclude “any and all statements

issued by the defendant contemporaneous OF subsequent to

the entry of his apartment,” on the ground that these

t ts, as well as the physical evidence, were tainted by

“aoa ngs ¢ Since He uphold the constitutionality of the

the illegal search./ +

search, it= iprovides no basis for suppressing such statemer

-.

See State v. Beaulieu, 119 N.H. , 402 A.2da 178 (1979. Furthermore,

the record before us fails to ir.dicate that the defendant ever _made

any vexcamente ey ra tees oer or subsequent to the entry 0. his

Shee OO ents atovisions cf Rule 98 (now Rule 99)

of the Rules of the Superior Court, neither counsel was able to

represent at oral argument that any such statements actually exist.

On this interlocutory appeal, we refuse to speculate ‘iether

as to the existence of such statements or as <9 bases for their

suppression other than the claim made here that the search was

illegal.

Exceptions overruled; remanded,

All concurred.

13

APPENDIX B

THE STATE OF NiW HAMPSIILRE

SUPERIOR COURT

HILLSBOROUGH COUNTY . APRIL TERM, 1978.

i ee 2 2 2

STATE

v. STATE #1054A and 1055A

THOMAS H. THEODOSOPOULOS,

Defendanc.

sep eee eee Se

SRR RHR RRR

RULINGS AND FINDINGS

on

DEFENDANT'S MOTION TO SUPPRESS

The defendant, Thomas H. Theodosopoulos, has been indicted under two

indictments for atcempted manslaughter. Both indicements substantially allege

that che defendant on December 31, 1977, "in the general area of 83 Manchester

Street, Manchester, New Hampshire, did attempt to commit the crime of manslaughter

in thac he did commit the following acts, which under che circumstances as he

believed them co be, constituted a substantial step coward the commission of

said crime of manslaughter in chat he did recklessly in the night time fire

@ loaded rifle... through a plate glass window into che illuminated lobby

of the Manchester Police Station, situated et 351 Chestnut Street, Manchescer,

New Hampshire, thereby Striking ..." pulice Captain Evangelos P. Xiggoros and

Dorothy Perreault Causing them bodily injury.

The defendant moves to suppress all physical evidence taken from hia

“in his apartmenc on the third floor ac $3 Manchester Street, in Manchester

and/or his mocor vehicle, New Hampshice Regiscracion EA=2666, and any and all

statements, whether (sic) er oral, issued by che defendant contemporaneous or

Subsequent to the entry of his apartment ac 33 ‘fanchescer Street, on December

TP Lt PR

ee

o-l-

At approximately 12:50 a.m., on December 31, 1977, Captain Xiggoros

and Mrs. Perreault were standing at the desk in the lobby of che Manchester

Police Station when a shoc was fired through a window striking both of then.

Mrs. Perreault was in the stacion complaining that her son had made threats

on her life.

Initially, the police thought that the shot had been fired by Mrs.

Perreault's son, and that che individual responsible for firing che shot was

wichin che stacion.

Captain Xiggoros and Mrs. erreaulc were removed from the station

and taken to a hospital. The lights inthe station were immediately darkened

so that, if any further shots were fired, personnel inside would be protected

from further attack. Between 1:00 a.m. and 1:20 a.m., the area around che

police station was cordoned off. Numerous~ police officers were also deployed

around che station to prevent the ascape of che assailant. After it was

determined chat the assailunc was not in the station and the station was found

to be secure, three Special Reaction Team forces, including the one lead by

Sergeanc Louis Durette, wenc into operation shortly after his arrival ac

1:20 a.a.

Durette was che first to observe che bullet hole in the window which

was about five to six inches in diameter and, due to che angle and height of

entry, it was thought thac che shot had been fired from one of che surrounding

buildings. Sergeant Durette'’s team left the stacionhouse and searched a church

om the corner of Merrimack and Chestnut Streets. A search of this building and

observation of the roof revealed nothing. The search next proceeded to a

grinder or sub shop om the wesc side of Chestnuc Street, facing che station.

The police could noc gain entry, but observation chrough the windows revealed

notching.

-3-

Regrouping back inside the station, che SRT team tried co determine

the trajectory of the bullec by lining up the bullec hole in the window and

the location where Captain Xiggoros and Mrs. Perreault had been standing. Ic

was determined chac the shot probably had been fired from the direction of the

tear of apartment buildings facing Manchester Street. The search was then

widened to include chese neighborhood buildings and rooftops as the police

were now looking for a sniper.

Te was now about 2:00 a.m. or 2:15 a.m., when the SRT began its search

and observations of these Manchester Street buildings. Coming to the building

im question at 83 Manchester Street, a search was conducted of the ground floor

and nothing was found. On the second floor, a tenant, Mrs. Irene Berlinguecte,

was aroused from her sleep who, upon questioning, told the police that che

defendanc lived upstairs but that she had neither seen nor heard anything. Her

apartment was also searched with her consent. While the search of the building

in question was proceeding, two other tcams were also conducting a search of the

alley and other buildings in the general vicinity.

The SRT team chen wenc co the third floor where they knocked on the

door of the defendant's apartment. Sergeant Durectte knew that there was a

light on in the apartment. Obtaining no response, the officers inquired of

Mrs. Berlinguette whecher anyone lived ebeekiee or was ac home. She advised

Sergeant Durecte that the defendane occupied che apartmont and that, if his

truck was parked outside, che defendant aust be at home. It was discovered

that the truck was outside. The police then continued to knock on the dcor

to che defendant's apartment with their nightsticks and knuckles, and still

there was no response. Sergeant Durette was determined not to leave the

building, because to leave the building without checking the apartment would

have been contrary co stondard operacing procedure in a search of this type.

abe

Arrangements were then made through Officer Murphy at the station

to obtain the keys from che landlord. The keys turned out to be the wrong

ones, as they failed to fit any of the doors to che defendant's apartmenc.

Having exhausted all efforts an gain entrance to the apartment and

sensing a grave situation where the lives of the police and others could be

in danger, Sergeant Duretce, ac about 3:00 a.m., as ‘team captain, made a

decision to enter the apartment without either a search warrant Or an arrest

Warrant. One of the locked doors to the apartment was somewhat loose.

Sergeant Durette kicked it open and made an entry.

When che police entered the apartment, they saw nobody in che living

room. Having found nothing amiss in che living room, the police continued to

investigate the remainder of the premises. In an adjacent room, they observed

marijuana. Proceeding through a hallway, they went to che kitchen, which was

ac the rear facing an alley. The bedroom was to the tight of the kitchen, and

the bach was to the left. In the bedroom, empty shell casings were observed

on a bureau as well as a telescopic sight for a rifle. They chen saw the

defendanc in bed. They shook him and had difficulty in arousing him. The

police did not know whecher che defendant's drowsiness was due to sleepiness

or intoxication or whether it was being feigned. Two men were left to guard

him and further investigacion of the apartmenet continued. The police thea

observed a broken bathroom window chat faced the police station. Deputy Chief

LeBoeuf was chen summoned by Sergeant Ourette from che police station across

the street. The police also uoticed a padlocked closet which they did noc

attempt co open.

The police managed to wake up che defendane and had him puc on his

clothes. Deputy LeBoeuf upon his arrival looked at the broken bachroom window

and spent cartridges and chen advised che defendant chat he was to be detained

-5-

at che station concerning a shooting incidenc. Around 3:15 a.m., the defendant

was brought to the station and booked.

Later in che morning, at about 6:00 a.m., a search warrant was

obtained from Judge Capistran, of the Manchester District Court, on che basis

of an affidavic by Lieucenanc Crotty that included details from Sergeanc

Durette, observation of the shell casings, che broken bathroom window and

the trajectory of the path from che window to the police station. Around

6:30 a.m., a search of the locked closet was conducted under the search

warrant and additional items were removed.

The defendant claims that: (1) che police conducted an invalid

search by entering his aparcmenc without probable cause and without a

search warrant; and (2) che issuance of a search warrant by Judge Capistran

was a product of che prior illegal entry and was also invalid. The defendant

shicibeliens maintains chat all items or evidence obtained by either search

should be suppressed.

The United Scaces Supreme Court has stated that the "core" of che

Fourth Amendment is che individual's "privacy against arbitrary intrusion by

the police." Wolf v. Colorado, 338 U.S. 25, 27 (1949). Implementing this

principle, che Court has mandated thac warrantless police invasions of per-

sonal privacy “are per se unreasonable under the Fourth Amendment - subject

only co a few specifically established and well-delineated exceptions.” Kacz

v. United States, 389 U.S. 347, 357 (1967); Vale v. Louisiana, 399 U.S. 30

(1970); Lidge v. New tlampshire, 403 U.S. 443, 454, 455 (1971). The burden

rests upon chose seeking exemption from the general rule requiring a warrant

to prove that the “exigencies of the situation made that course imperative.”

McDonald v. United States, 335 U.S. 451, 456 (1956). Subject to chac burden,

an “emergency doctrine” exception to the Fourth Amendment is recognized.

’ ~6-

Warden v. Hayden, 387 U.S. 294, 289 (1967). In short, the fourth Amendment

does not outlaw all warrantless searches, but only those that are unreasonable.

State v. Floyd, 116 N.H. 632, 634 (1976); South Dakota v. Opperman, 428 U.S. 364 -

(1976). The reasonableness of each case must be decided on its own facts and

circumstances. Go-Bart Co. v. United States, 282 U.S. 344, 357 (1931); Harris

v. United States, 331 U.S. 145 (1947).

New Hampshire applies these principles and follows the rule that the

exigencies of a situation with probable cause may juscify a warrantless und

which might have been unreasonable if emergency circumstances had not existed.

State v. Thorp, 116 N.H. 303, 308 (1976); State v. Slade, 116 N.H. 436, 437

(1976); see Coolidge v. New Hampshire, supra at 468.

A threshold issue is whether chere was probable cause to make che

initial entry. Evidence required to establish probable cause need noc amount

to what is required to convict. [tc is not necessary “to prove guilt beyond

@ reasonable doubt, to make out a prima facie case or even to establish chat

guilt is more probable than not." State v. Thorp, supra, at 307. The cese

simply is “whether a reasonable and prudent person in the position of the

officer who conducts the search or makes the arrest and possessed of his know=

ledge would believe seizable items can be found or that an offense has been or

is being committed.” State v. Thorp, id.

A life~endangercing crime had becn committed by someone unknown,

scill ac large. The angle and height of entry of the bullet limited che range

of possible firing locations cto the swildings ou Manchester and Chestnut Streets,

within view of the scution. While the trajectory calculations were noc nade

with a surveyor'’s precision, che approximation was enough co give the police

sufficient information to form a reasonable belief that the shot had been fired

from the area of 83 Manchester Strcec. At the Cime cthac the defendanc's

~ . -T-

apartment was entered, a significant portion of the suspected area had already

been searched, so that the probability that che shot was fired from che remaining

unsearched area increased.

As the search by Sergeant Durecte’s team focused on the defendant's

apartment, cheir reason to believe that it might be connected with che attack

datensified. A light was observed, which indicated to the officers that someone

was present in the epercaent. Their belief chat someone was present in the aparct-

ment was strengthened by the presence of che defendant's cruck which, as che

police were informed, indicaced chat che defendant was at home. With a reason-

able belief chat someone was present in an apartment chat was the reasonable

object of suspicion, the police were met with no response to their persistenc

loud knocking. Under these circumstances, the entry was made with probable

cause to believe that the apartment's search was necessary in connection with

che iavestigation of the attack on the station.

Having found chac probsble cause existed for the initial search, che

question next becomes whether there were exigent circumstances which justified

this search wichout a a an In chis case, the exigenc circumstances are

demonstrated by che facts preceding che search by the police.

The myriad of situations, which have been legally recognized as exigenc

cagcumstances, preclude che facile resolution by application of precise cules.

Courts have generally tailored the definitions of “emergency” and “exigenc

circumstances” co the facts of each case. Here, che police were confronced

with a totally unforeseeable shooting, perpetrated by um unknown sniper in che

dead of aight. The shot caused severe bodily injury to a police captain anc

a civilian standing in che lobby of che police stacion. Police reaction vas

gvitt, and che lights in che stacion were immediately derkened co obscure the

vision of che asenilanc. The area around che station was cordoned off and

” -8-

numerous police oftseors were deployed around the station to prevent the

assailanc’s escape. Observations of the bullet's path soon led police to

conclude that che shot had been fired from a building within view of the

Chestnut Streec entrance. This corroborated their assumption chat che shoc

had been fired by a sniper. Reacting to this gcave and uncertain situation, the

SRT teams began to search che suspected buildings.

The nature of sniper fire is such chac it cannot be known if and when

it will be repeated. With che denefic of hindsight, ic could be said one one

shoc was insufficient co create an emergency, but the severity of the crime,

coupled with uncertainty about its recurrence, rightfully caused the police

to be in conscanc fear for their own, as well as the general public's safecy.

This late night emergency did not give police sufficient cime to execute an

affidavit and presenc it to a judge to obtain a warrant.

Tc would have been unreasonable in such a pressing emergency period

to require the police, as the defendant urges, to obtain a search warrant to

pursue a possibly armed and dangerous assailant. The totality of che circum-

stances, along with every reasonable inference to be drawn sherefrom, Jemon-

strated an immediate need for the police to locate and disarm che suspect as

quickly as possible, not only for cheir own’ safety buc for the Protection of

che local citizenry as well. There was a need for a prompce response in an

urgent sicuacion fraughc with imminent danger to thwart another attack. The

police could noc afford to lose valuable cime during che cricical phase of

this criminal invescigation. To cake the time to sevk a Warrant would probably

have frustrated che purpose behind che search, and che delay could make the

subsequenc search meaningless.

The defendant argues chat che police had no specific information

that linked his apartment to any offense or to any offender. The solice

according co the evidence searched the area on che first and second floors vith

-9-

consent and found nothing and then proceeded to the third floor. The defendanc

argues that the systematic search of these units constituted a general search

that could not be justified under the circumstances.

It should be pointed out énee sont with respect co chis argument,

chat a pressing emergency existed. Under the circumstances, where a sniper

could probably be operating from an apartment building in direct line to the

station, it was not unreasonable for che police in hoc pursuit to have conducted

& search of the apartment in the line of fire, for suspects and weapons. "The

law recognizes thac fresh pursuit of a flecing suspect who has committed a grave

offense and remains dangerous to life and limb may conscitute ‘exceptional

circumstances’ sufficient to justify a search without a warrant...." People

v. Smith, 63 Cal.2d 779, 797, 48 Cal. Reper. 382, 394, 409 P.2d 222, 234 (1966);

ia apie Shiai v. Ohio, 392 U.S. 1 (1968), where che cours referred to hot

pursuit as an inscance of exigent circumstances.

In Dorman v. United States, 435 F.2d 385, 392-393 (1970), che Court

listed a number of considerations cthac can be useful if a warrancless search

is reasonable. These include: (1) che existence of a grave offense, particu-

larly « crime of violence; (2) the reasonable belief chat the suspecc is armed;

(3) a clear showing of probable cause ta believe the suspect commicted che

crime; (4) strong reason to believe the suspecc is in the premises being

entered; (5) a likelihood cthac the suspect will escape if noc swiftly appre-

hended; and (6) 3 peaceable entry. Ic should be noted that all these considera~

tions were present in this case with che possible exception of che sixth.

In Warden v. Hayden, supra, at 298-299, the Court staced, “The

Fourth Amendment does not require police officers to delay in che course of

an investigation if to do so would gravely endanger cheir lives or che lives

of others. Speed here was essential, and only through a thorough search of

-10-

the house for persons and weapons could have insured that Hayden was the only

man present and thac the police had control of all the weapons which could

be used againsc chem or to effect an escape." (Emphasis added).

There is no doube that the systematic search in question was an

invasion of privacy which ordinarily would be unreasonable and in violation

of che Fourth Amendment in che absence of some exigent circumstances. However,

as previously indicated, che need for fast and cffective law enforcement was

overwhelming under the circumstances of this case. It was imperative that the

police conduct an immediate and thoroughly intensive search of the area surround-

ing the police station for persons and weapons involved in the highly volatile

situation.

In testing the reasonableness of this search, we should inquire how

the situation would have appeared if che sniper had shoe and possibly killed

ocher police officers or citizens wiile che police were taking the time to

seek out, present and explain the matter to a magiscrace in the early morning

hours. It is very possible thac somebody could have been wounded or killed

if the police had acted wich che calm deliberation associated with che judicial

process. In this situation, che preservation of human life was Paramount to

one's privacy under the Fourth Amendment.

One author has summarized che emergency doctrine as follows:

"Law enforcemenc officers may encer peivace premises withouc

either an arrest or a search warrant to preserve life or property,

to render first aid and asyistance, or to conduct a general inquiry

into an unsolved crime, provided they have reasonable grounds co

believe chat there is an urgent need for such assistance and

procective action, or to promptly Launch a criminal invescigacion

involving a subscancial chreac of imminent danger to either life,

health or property, and provided further, chat they do noc enter

with an accompany ing incenc co eicher arrest or search. [f,

while on che premises, they imadvertently discover incriminating

evidence in plain view, or as a result of some activicy on cheir

parc chat bears a material relevance to the initial purpose for

their entry, chey may lawfully seize ic withouc a warranc.” 2.

Mascolo, The Emergency Doctrine Exception to the Warrant

elle

Requirement Under che Fourth Amendment, 22 Buff. L. Rev.

419, 426-427 (1973).

In summary, the police were confronted with a violent crime which

reasonably justified fears that the unknown perpetrator or perpetrators,

who appeared to be armed, posed a substantial threat of imminent danger tc

life and property and might strike repeatedly if not swiftly apprehended.

The police also had reason to believe thac there was an urgent need for

their assistance so that they should launch and pursue a "fan out" or

"protective search" (see 3 Search and Seizure Law Report #8, August, 1976).

The investigation was begun, not as a quesc for incriminating evidence, but

racher to protece life and property by hopefully apprehending che sniper.

After che invescigation was begun, chere was also a reasonable basis,

amounting to probable cause, as previously indicated, to believe that the

dangerous criminal was in the apartment building and a furcher likelihood

thac he could escape if not apprehended ac once. After all efforts of

gaining the defendant's attention to enter the apartment without force

proved unavailing, pushing in the door to che defendant's apartment at che

time was reasonably directed toward an emergency purpose and was not exploracory.

This was not a planned warrantless search, but rather it was one thac was made

in good faich in response co an emergency bed not co circumvenc the warrant

requirement.

In the Court's view, the conduct of the police, under che emergency

circumstances and considering the cime of the night, was reasonable, and «

warrant was not required to enter the defendant's apartment. Therefore, che

items obtained in che defendanc's apartmenc after this warrancless duc Lawful

entry, which were inadvertently observed by che police in plain view from a

juscified position, will noc be suppressed. Since che initial encry was

o12-

lawful, the subsequent search by a warrant was also lawful, and che icems

seized under the warrant will not be suppressed.

The defendant, in his motion, also requests that certain statements

obtained by che police after the defendanc's detention be suppressed. Although

che State had the burden of proof under Rule 96 to establish chat the scatements

were legally obtained, the burden of going forward was on the defendanc as the

movant. Then che burden of persuasion and proof with respecc to the admissibil-

ity of che statements would shift co che State. The defendane offered no

evidence suggesting thac che statements were illegally obtained. Not having

satisfied his burden of going forward by introducing some evidence, the

defendant's motion to suppress the statements will be denied. If the basis

for the suppression of the statements was that they were tainted as a result

of illegal searches, then the motion is denied in that it has been ruled chat

both searches were legally conducted.

In view of the above findings and rulings, the defendant's motion to

suppress is denied.

Dated: April 25, 1978.

—haratee 3. OE

Presiding tice

APPENDIX C

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

1979 Term

September Session

HILLSBOROUGH, SS.

THE STATE OF NEW HAMPSHIRE

ve

THOMAS H. THEODOSOPOULOS

4

NO. 76-248

a

MOTION ING

. NOW COMES the defendant and respectfully moves that the Court order a rehearing upon

its decision of September 14, 1979, for the following reasons:

l. The Court has erroneously determined that objective probable cause, without 4

subjective belief by agents of the state that the thing sought was located in the place

to be entered and searched, is sufficient to justify a warrantless entry and search.

As was detailed in the defendant's brief on appeal, there was absolutely no testimony

whatsoever at the hearing on the defendant's motion to suppress to the effect that the

police officers involved actually believed that the object of their sweep search, the

"sniper", was located in the defendant's apartment at the time that they broke in. On the

contrary, the evidence revealed that the officers waited outside the defendant's apartment

for approximately one half (1/2) hour while awaiting the keys. When the keys which did

arrive were determined not to fit, the police officers broke into the defendant's apartme:

Sargent Ourette, the leader of the soarch team, testified quite clearly at the heari:

as to why the defendant's apartment was entered and searched. ile stated that hu had made

the decision at the very commencoment of the sweep search that he would “move down

Manchester Street and search everyone of these buildings”. (Transcript, p. 32). Sargent

Durette testified that it was “our policy and our SOP in building searches” that when @

sweep search was conducted, “you didn’t leave a building until we searched ict thoroughly”

(Transcript, p. 49).

This Court states in its opinion, “in the present case, it is not our task to review

the propriety of the entire sweep search conducted by members of the Manchester Police

Department”. (Opinion, p.4). By so stating the issue, the Court erroneously ignores the

precedent conduct and decisions of the police which predetermined their entry into the

defendant's apartment. The decision by the Court to slice out and review only “the moment

the police officers entered the defendant’s apartment” (Opinion, p. 4) thereafter leads

the Court to its erroneous decision on the wnatbies of probable cause.

The Court makes no finding that the police officers subjectively believed that the

person for whom they were searching was in the defendant's apartment, nor would the

record support such a finding. The Court's holding that the police officers “had reason”

to believe that the apartment contained their target is, of course, challenged by the

defendant. On the other hand, regardless of the propriety of that conclusion, it is

Fespectfully suggested that a finding of objective probable cause is Constitutionally

insufficient to sustain the validity of a warrantless entry and search.

If the purpose of the exclusionary rule is to discipline the police, the Court must

be concerned with. the intentions and motivations af the police. State v. Spero, 117 N.H.

199 (1977). On the very same day that the present case was decided, the Court issued

an admonition in another search and seizure case as follows, “Police are strongly urged

net to act without a warrant when they doubt they heave a basis to obtain one". State v.

Court expects law officers to heed that advice, its desire will not be accomplished by

NLM. (Ovcided Auyust 17, 1979, distribuced September 14, 1979). If the

the ruling in the present case. So long as one may safely run the risk that the hind-

signt of a reviewing Court may determine that sufficient facts existed to “give reason”

for the search, the police will have no real incentive to restrain themselves in cases

of doubt.

2. ‘The Court has erroneously justified its conclusion that probable cause existed

upon @ misstatement of the evidence that “by the time they roached the defcadant's apart-

ment, they had searched a significant portion of the buildingsthat had windows facing che

police station”.

OOP

At the hearing before the Superior Court, the prosecution offered no evidence what=_

soever as to the number of buildings or number of apartments located along Manchester

Street where the sweep search was conducted. The evidence indicated that the series of

epertaents in which the defemlant's upartment was located was in only the thied building

searched by Sargent Ourette and his teaa. (Transcript, p- 34 - 37). As was clear from

the evidence indicating that certain mcmbers of the team wanted to continue down the row

of buildings on Manchester Street, the police had not searched the remaining available

sites on Manchester Street before they came to the defendant's apartment.

The Coust relies in its opinion upon this mistaken conclusion for obvious reasons.

Clearly, if the search had narrowed down to the defendant's apartment, those cases which

hold that probable cause may be created by excluding alternative locations where the

thing sought may be found would be applicable. E.G., United States v. Scott, 520 F. 2d.

697 (CA 9, 1975). On the other hand, where there has been no focusing in upon the parti-

culag location, as there was none in this case, such cases are not germane.

The fact of the matter is that there was no evidence that the police had singled out

the defendant's apartment at the time that they broke in. Again, as Sargent Ourette

testified, the reason that the apartment was searched was because, “you didn't leave a

building until we searched it thoroughly”. (Transcript, p. 49).

3. The Court erroneously failed to rule that the probable cause required for a

warrantless search is greater than that required to support a warrant and to apply such

Suling to the facts of this case.

The Court in its opinion states that the probable cause required for a warrantless

search is “at least as great as that required to support a warrant”, but sakes no deter-

mination as to whether or not it is yreater. A number of courts have determined that a

warrantless search sust be supportcd by a greater degree of probeble cause than a search

which is preceded by the neutral and detached review of a magistrate. 8 v.

Ferrara, 339 F. 2d. 799 (CA 1, 1976): Dorman v. United States, 435 F. 24 385 (US App. OC,

1970); United Staces v. Brightwell, $6) fF. 2d. $69, $71 (1977) (Dissenting opinion).

te is respectfully suggested that these Courts are correct and that a greater

degree of probable cause exists to justify a@ warrantless search. [In light of the

defendant's other arguments concerning probable cause, the defendant also obviously

suggests that such higher stundard was not act in this case.

4. The Court erroneously refused to suppress statements allegedly made by the

Gefendant on the incorrect basis that “no other grounds for suppressing such statements

(other than as a result of an illegul search] has been asserted.

The defendant need only point to argument F of its brief to support its contention

that “other grounds” were asserted as a basis for suppressing statements allegedly made

by the defendant. By both brief and oral argument before this Court, the defendant has

repeatedly asserted that the failure of the prosecution to introduce any evidence of

such statementsconstitutes a failure to satisfy its burden of going forward. Likcwise,

the defendant by both brief and oral argument contended that any such statements were

inadmissible because of the testimony by Lieutenant Crotty that the defendant exercised

his Constitutional right to silence. (Transcript, p. 86).

Qn its face, therefore, the statement by the Court that “no other ground for sup-

Pressing such statements has been asserted" is palpably untrue. [f the Court is intendin:

by its language to suggest that such additional grounds were not raised before the Trial

Court, that is likewise untrue. The defendant did file, through counsel, a detailed

juinntintiie with the Trial Court prior to its determination of the case which raised the

very same objections asserted in the Supromy Const.

The State did not even respond in its brief on appeal to the defendant's objections

to the admission of statements. Indeed, it is the recollection of counsel for the defen-

Gant that the State conceded this point to the defendant in oral argument. [t therefore,

comes 48 somewhat of a shock to have the Court dismiss the issue with a statement thet it

had never been raised.

$. The Court erroneously determined that sufficient exigent circumstances existed

te authorize 4 warrantless search.

Again, the Court apparently has held that the test of exigency, as well as probable

cause, is objective rather than subjective. This is illustrated by the Court's statement

that, “(the police] knew that finding a magistrate and obtaining a warrant in the middle

of the night could easily take an hour or two". Although that may well be something that

@ police officer might assume, there was absolutely no evidence whetsocever in the case

at bar that any of the officers made such an assumption. Indeed, the only evidence on the

issue at all indicated that a warrant could have been obtained from the magistrate who

ultimately issued the post-entry warrant. (Transcript, p. 83, 89 6 90).

To the extent that the Court relies upon such an assumption as stated in its opinion,

the Court again ignores the issue of whether or not the police officers subjectively

believed an emergency to exist. As detailed in the defendant's brief, the actions of

the officers in awaiting the keys to the defendant's apartment clearly established that

they had concluded that “exigent circumstances” did not exist.

Respectfully submitted,

THOMAS H. THEODOSOPOULOS

By his attorneys,

BY: »

.

Date: September 24, 1979

I do hereby certify that on the 24th day of September, 1979, a copy of the foregoing

Motion wes forwarded to Peter W. Meed, Assistant Attorney General, and Peter McDonough,

Assistant Hillsborough County Attorney.