State v. Wong

635 A.2d 470, 138 N.H. 56, 1993 N.H. LEXIS 157
CourtSupreme Court of New Hampshire
DecidedDecember 17, 1993
DocketNo. 92-302
StatusPublished
Cited by28 cases

This text of 635 A.2d 470 (State v. Wong) 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. Wong, 635 A.2d 470, 138 N.H. 56, 1993 N.H. LEXIS 157 (N.H. 1993).

Opinion

HORTON, J.

The defendant, Allan Y. Wong, was convicted of receiving stolen property, RSA 637:7, I (1986), in connection with his purchase of an outboard motor. On appeal, he argues: (1) that the admission of evidence obtained following a warrantless search and warrantless arrest violated his federal and State constitutional rights; (2) that the State failed to prove that the outboard motor was stolen and that the defendant knew it was stolen; (3) that the prosecutor’s inflammatory remarks during closing arguments prejudiced the defendant; and (4) that the Superior Court {Mohl, J.) erred by disqualifying a juror, and by failing to immediately dismiss the juror once he had been disqualified. We affirm.

On July 7, 1990, the defendant brought a Boston Whaler boat mounted with a Johnson outboard motor to Northbound Honda, Inc., a marine dealership in North Conway. The defendant, an attorney from Somerville, Massachusetts, requested that Northbound replace the Johnson with a Yamaha outboard motor he had brought with him. The Yamaha, which was packaged in the bottom half of its original shipping crate, was missing its propeller and other parts. The defendant left his business card and telephone number and arranged for Northbound to call him when it had completed the work. Sometime later, Larry Grace, Northbound’s service manager, checked the Yamaha’s serial number so that he could order parts missing from the motor. When Grace compared the Yamaha’s serial number against a printout of outboard motors reported stolen four months earlier from Baert Marine of Danvers, Massachusetts, he discovered that the Yamaha had been stolen. Grace contacted Baert Marine, which in turn notified the police.

On July 20, 1990, Sergeant Jeffrey Dicey of the North Conway Police Department visited Northbound. He was taken into Northbound’s workshop where the Yamaha was positioned on a work stand. Dicey confirmed that the Yamaha’s serial number was included on the list of outboard motors stolen from Baert Marine. Grace told Dicey that the defendant had delivered the Yamaha, as well as the Boston Whaler and Johnson outboard motor, to Northbound. Grace then brought Dicey outside of the workshop to a separate, fenced-in area and showed him the Boston Whaler and the Johnson. Dicey testified that as he approached the Boston Whaler, he [60]*60noticed that the serial number on the Johnson’s cover was missing. Grace then removed the cover, and Dicey determined that the serial number mounted on the inside of the motor was also missing. Dicey and another police officer returned to Northbound later that day to photograph the boat and the two motors. Dicey indicated that the State was seizing these items. The police subsequently learned that the Boston Whaler and the Johnson outboard motor had also been reported stolen.

On July 27,1990, the defendant received a telephone call from Sgt. Dicey, who identified himself as a Northbound employee and told the defendant that his boat was ready. When the defendant arrived at Northbound on the following day, he was met by Dicey, who disclosed that he was a police officer and asked the defendant if he was aware that the Yamaha had been stolen. The defendant said that he had not known the motor had been stolen. He stated that he had purchased the motor from Mystic Appliance in Charlestown, Massachusetts, for $1,200, but noted that he did not have a sales receipt. Dicey immediately arrested the defendant, who was subsequently indicted on two class A felony charges of receiving stolen property. The first indictment pertained to the Yamaha, and the second pertained to the Boston Whaler and the Johnson. The State later entered nolle prosequi on the felony charge relating to the Boston Whaler and the Johnson; the defendant’s conviction for receiving stolen property concerned the Yamaha.

I. Motion to Suppress

On appeal, the defendant first contends that the warrantless seizure of the Yamaha motor was unreasonable under both part I, article 19 of the New Hampshire Constitution and the fourth amendment to the United States Constitution, and that this evidence should have been excluded from trial. We address the defendant’s State constitutional claim first, State v. Ball, 124 N.H. 226, 231, 471 A.2d 347, 350 (1983), citing federal law only to aid our analysis. State v. Maya, 126 N.H. 590, 594, 493 A.2d 1139, 1143 (1985).

It is well-settled under the fourth amendment that where a third party validly consents to a search, the police may seize without a warrant any items which they have probable cause to believe are contraband, fruits of a crime, instrumentalities, or “mere evidence.” See Frazier v. Cupp, 394 U.S. 731, 740 (1969); Clarke v. Neil, 427 F.2d 1322, 1324 (6th Cir. 1970). Part I, article 19 of the State Constitution does not require a higher standard. The defendant does not contend — nor could he — that after inspecting the motor’s identi[61]*61fication number, Sgt. Dicey did not have probable cause to believe the motor stolen. The sole inquiry for the validity of the motor’s seizure, then, is whether there was valid third-party consent to the search. We find that there was.

We do not inquire into the reasonableness of a search when the police have received valid consent to search. See Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973); State v. Coyman, 130 N.H. 815, 818, 547 A.2d 307, 309-10 (1988). Consent to search is valid against a defendant when conferred by a third party with “common authority over or other sufficient relationship to the premises or effects sought to be inspected.” United States v. Matlock, 415 U.S. 164, 171 (1974); see Coyman, 130 N.H. at 819, 547 A.2d at 310. While the issue of third-party consent by a bailee is one of first impression under part I, article 19 of the State Constitution, we find fourth amendment jurisprudence instructive. The general rule distilled from fourth amendment cases is that the validity of bailee consent turns primarily on “the extent to which the bailor made efforts to secure, even as against the bailee, the privacy of his effects.” 3 W. LaFave, Search and Seizure § 8.6(a) (2d ed. 1987); compare United States v. Presler, 610 F.2d 1206 (4th Cir. 1979) (illegal search where bailee consented to search of locked briefcase whose keys had been retained by defendant) with United States v. Falcon, 766 F.2d 1469 (10th Cir. 1985) (valid consent by brother to playing of tape marked “confidential” that defendant had left in brother’s room).

Turning to the facts of the present case, we note that the defendant made no efforts to secure the privacy of the outboard motor. To begin with, the defendant delivered the motor to a business with whom he had no prior dealing. The motor was not enclosed in a container — locked or otherwise.

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Cite This Page — Counsel Stack

Bluebook (online)
635 A.2d 470, 138 N.H. 56, 1993 N.H. LEXIS 157, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-wong-nh-1993.