State v. Gonzalez

738 A.2d 1247, 143 N.H. 693, 1999 N.H. LEXIS 59
CourtSupreme Court of New Hampshire
DecidedJuly 2, 1999
DocketNos. 97-319; 97-717
StatusPublished
Cited by13 cases

This text of 738 A.2d 1247 (State v. Gonzalez) is published on Counsel Stack Legal Research, covering Supreme Court of New Hampshire primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Gonzalez, 738 A.2d 1247, 143 N.H. 693, 1999 N.H. LEXIS 59 (N.H. 1999).

Opinion

BRODERICK, j.

The defendant, Geraldo Gonzalez, appeals his convictions on one count of possession of marijuana with intent to sell, RSA 318-B.-2 (1995), and one count of conspiracy to possess marijuana with intent to sell, RSA 318-B:2; RSA 629:3 (1996). He argues that the Superior Court (Hampsey, J.) erroneously denied his motion to suppress evidence and his motion for new trial. We affirm.

I

On July 18, 1996, the Nashua Police Department received, from the resident manager of Clovelly Apartments in Nashua, information about a suspicious package. The manager informed the police that the United Parcel Service (UPS) attempted to deliver a package addressed to “Denise Brown,” and that no one by that name lived there. He told the police that shortly after UPS retrieved the package at his request, a man he believed to be “Gerry Gonzalez” inquired if UPS had made a delivery that day. He reported that approximately ten similar packages had been sent previously to the address of the defendant’s girlfriend, Jennifer Bedell. Many were addressed to individuals he believed to be fictitious, and often “Gerry Gonzalez” took possession of them.

Following the manager’s call, the police contacted UPS and secured the package. After examining its label, the police placed the package with four other parcels, and a police canine trained to detect the presence of illicit substances indicated to its handler that the suspect package might contain drugs. The police obtained a warrant to search the package and discovered approximately twenty pounds of marijuana.

While the police had possession of the package, UPS received a phone call from a woman identifying herself as “Rachel Brown,” the addressor listed on the package, requesting its redelivery on July 19 to apartment 9-6, Bedell’s apartment. The police then obtained an anticipatory warrant to search Bedell’s apartment upon the package’s redelivery.

On July 19, UPS delivered the package to apartment 9-6 and it was signed for and accepted. Soon thereafter, the defendant and [696]*696another man arrived at the apartment. Approximately ten minutes later, Bedell answered a knock at her door. The police entered, searched the apartment, and arrested the three individuals. They seized numerous items, including a paper bag containing approximately twenty pounds of marijuana that was seen in the defendant’s possession when the police entered the apartment.

The defendant was charged with possession of a controlled drug with intent to sell and conspiracy to possess a controlled drug with intent to sell. Prior to trial, asserting automatic standing, the defendant moved unsuccessfully to suppress the introduction of the marijuana, among other items. At the suppression hearing, counsel elected to present no evidence, but offered only legal argument.

Following a jury trial, the defendant was convicted on both counts. His motion for new trial was denied. This appeal followed.

II

The defendant argues that the anticipatory search warrant was unlawfully issued and that the marijuana seized must be suppressed because: (1) the canine sniff of the package, upon which the warrant was partially predicated, was a warrantless search without justification; (2) the warrant failed to satisfy the requirements of an anticipatory warrant; and (3) the remaining observations about “suspicious” activity outlined in the warrant application’s supporting affidavit were inadequate to establish probable cause.

A

We need not decide whether the canine sniff on July 18 constituted a search, see State v. Pellicci, 133 N.H. 523, 580 A.2d 710 (1990) (plurality opinion), or whether it violated the defendant’s constitutional rights because we conclude that the defendant lacked standing under the State and Federal Constitutions to challenge it. We address the State constitutional claim first. See State v. Ball, 124 N.H. 226, 231, 471 A.2d 347, 350 (1983).

Part I, Article 19 of the New Hampshire Constitution “requires that automatic standing be afforded to all persons charged with crimes in which their possession of any item or thing is an element.” State v. Alosa, 137 N.H. 33, 36, 623 A.2d 218, 221 (1993). This doctrine affords a defendant automatic standing to contest a search and seizure when charged with a crime in which possession of the seized evidence is an element of the offense. See State v. Sidebotham, 124 N.H. 682, 687, 474 A.2d 1377, 1379-80 (1984). “[A] basic premise of the rule is that the individual have a [697]*697possessory interest in the article or thing to be searched or seized.” State v. Paige, 136 N.H. 208, 210, 612 A.2d 1331, 1332 (1992). Absent any possessory interest in the marijuana prior to, or at the time of, the canine sniff on July 18, the defendant will not be afforded automatic standing to challenge that search. See id. at 211, 612 A.2d at 1332. The defendant failed to demonstrate such a possessory interest.

The defendant initially argues that his possessory interest in the package is demonstrated by his attempt to take possession of it on July 18 when he asked the resident manager whether UPS had made a delivery. There is no indication in the suppression record, however, that the defendant specifically inquired about the suspect package.

The defendant also asserts a possessory interest from the fact that “an anonymous caller contacted] UPS and requested that the package be redelivered to [the] residence [he and Bedell shared].” The mere fact that someone at apartment 9-6 may have been expecting a package, however, does not create a possessory interest in the defendant.

The defendant further contends that he had a possessory interest in the package because he was its actual intended recipient. The package, however, was addressed to “Denise Brown,” and the record does not establish that this was an alias or alter ego for the defendant. Moreover, there is nothing in the suppression record indicating that the defendant claimed to be the intended recipient of the package. While the trial transcript may establish such a claim, the defendant does not contend that he renewed his motion to suppress at trial, and therefore we limit our review to the suppression record upon which the trial court based its decision. Cf. State v. Sterndale, 139 N.H. 445, 448, 656 A.2d 409, 411 (1995); State v. Jaroma, 137 N.H. 143, 148, 625 A.2d 1049, 1052 (1993).

The defendant also argues that his possessory interest is established by his actions on July 19. Specifically, he contends that upon receipt of the package, he treated its contents as his own by opening it and placing the marijuana into a shopping bag, which he retained. The defendant’s possession of the bag, however, on July 19 does not demonstrate a possessory interest in the package or its contents on July 18.

Finally, the defendant contends that all relevant parties treated him as having a possessory interest in the package.

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Bluebook (online)
738 A.2d 1247, 143 N.H. 693, 1999 N.H. LEXIS 59, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-gonzalez-nh-1999.