NH: Immediate discovery that the factual basis for a warrant was wrong requires the search to stop

Officers came to defendant’s house to serve his mother with a notice for trespass and harassment, and they saw what they thought were long guns in house, and she was a convicted felon. They got a search warrant for firearms and went back, discovering that the expected long guns were actually BB guns. They continued to a lockbox and wanted to search it for a possible handgun, and the occupants at first refused, and the officers said they would open it by force if they didn’t open it. They admitted there was cocaine in the lockbox, and another warrant was obtained for the lockbox. Garrison applies, and when the officers discovered that the long guns weren’t firearms, they were required to discontinue the search. State v. Schulz, 55 A.3d 933 (N.H. 2012):

Suppression is therefore the appropriate remedy under the circumstances. Had the magistrate known that Officer Alling observed BB guns, rather than firearms, and given that the affidavit did not provide any information as to how the BB guns were “used, intended to be used, or threatened to be used” so as to constitute a deadly weapon, RSA 625:11, V (2007), no warrant would have been authorized because there would have been no probable cause to believe the defendant’s mother was committing, or had committed, the crime of being a felon in possession of a firearm or other deadly weapon, see RSA 159:3 (2002).

It bears emphasizing that both the standard we have employed and the conclusion that we reach are compelled under the well-established constitutional precedents recited above. Even more so than in Garrison, where the police were required to discontinue searching after they “were put on notice of the risk that they might be” in the wrong apartment, Garrison, 480 U.S. at 87 (emphasis added), here the police were required to discontinue searching when they learned that the three guns that formed the sole factual basis for the warrant were not, in fact, firearms. In so concluding, we are not imposing a new constitutional burden on the police; as was recognized in Garrison, police officers have a duty to reassess probable cause based upon information acquired after the warrant issues but before or during a search. The police must, of course, have some latitude to conduct searches pursuant to warrants. What the police cannot do, however, is treat the search warrant as an authorization for a full-scale search irrespective of developments subsequent to the warrant’s issuance. While it may be the rare case in which facts discovered during the search clearly and unambiguously dispel probable cause, this is such a case. Accordingly, the execution of the warrant violated Part I, Article 19 of the State Constitution.