Criminal

Natalie Laflamme
Associate at Sulloway & Hollis in Concord practicing civil litigation
Copyright 2017 Robert C Strong II

No. 2017-0413
Nov. 1, 2018
Affirmed.

  • Whether a five-day delay between seizing a vehicle and applying for a search warrant was so unreasonable as to be unconstitutional.

On June 30, the defendant was pulled over for speeding while driving a borrowed car. While speaking with the defendant, who was alone in the car, the trooper detected the smell of marijuana. When questioned, the defendant appeared nervous, avoided eye contact, and kept glancing at the console and at a backpack. The trooper asked to see his license and registration. When the defendant took his license from his wallet, the trooper noticed a “stack of cash” wrapped in a rubber band. The trooper believed there was probable cause that the vehicle contained marijuana and asked if the defendant would consent to a search. The defendant refused a search without a warrant. The vehicle was seized and held pending the search warrant. The trooper signed an affidavit before a circuit court judge in support of a warrant, but did not present an application to a judge, or obtain the warrant, until July 5.

The defendant moved to suppress all evidence obtained as a result of the search arguing that while the seizure of the vehicle was lawful at its inception, it became unlawful because of the five-day delay in securing a search warrant. The defendant presents that argument on appeal, contending that the delay rendered the seizure unconstitutional.

The Court held that the five-day delay in this case not was so long that the seizure was unreasonable. The Court acknowledged that the defendant did not own the vehicle nor did he ever assert a possessory claim in it. The vehicle’s actual owner never objected to the seizure. It also recognized a difference between searches of a vehicle and searches of a person’s home, where such delays might be unreasonable. The Court further noted that the seizure coincided with a weekend as well as a holiday, and that the trooper presented the application on the first business day after the holiday. Accordingly, the Court held that the police met the standard of diligently working to present a warrant application at the earliest reasonable time, and concluded that the five-day delay was not so unreasonable as to be unconstitutional. Thus, the trial court’s ruling was upheld.

 

Gordon J. MacDonald, attorney general (Gordon P. Landrigan, attorney), for the State. WadeHarwood, Sisti Law Offices, Chichester, for the defendant.