NH: State failed to prove basics of protective sweep here

The state neither preserved nor proved that a protective sweep was required of this house. They claimed to be looking for a “cohort” of defendant who was possibly there, but there was no indication that this person was violent or dangerous, only that he was a “convicted felon” with pending charges. State v. Holmes, 2015 N.H. LEXIS 70 (June 19, 2015):

In this case, in its objection to the motion to suppress, the State argued that the police “were under exigent circumstances to look for Ahearn, as if they left to obtain a warrant, he could flee the residence.” It did not argue that the exigency was “a substantial threat of imminent danger to life or public safety.” Pseudae, 154 N.H. at 200. As a result, the suppression record is missing evidence essential to the protective sweep exception. See id. (stating parties may rely only upon evidence presented at suppression hearing when appealing motion to suppress because this was evidence before trial court). For example, it is unclear where the officers waited after arresting the defendant’s girlfriend and before her mother arrived to take custody of the child and how long the officer was in the apartment before searching the upstairs. Furthermore, there is no evidence that the officer had specific and articulable facts upon which to believe that Ahearn was dangerous or that the upstairs harbored any other individual posing a danger to those on the arrest scene. Cf. id. (stating warrant exception not raised in trial court properly before us for review because record revealed that reasonable fact finder necessarily would reach a certain conclusion).

The State argues that a reasonable officer could have believed that Ahearn posed a danger to those on the scene because “the defendant was a convicted felon being prosecuted for two other felonies, and … Ahearn, who was also wanted [on] a warrant, was his cohort.” However, the suppression hearing transcript is devoid of evidence that the defendant was believed to be violent or dangerous. Furthermore, it does not identify the offense underlying the warrant for Ahearn. Although the officer testified that, when he went upstairs, he performed a cursory search “to make sure that there wasn’t anybody just … ready to jump out at me,” the record does not include evidence of specific and articulable facts to support such a concern.

Accordingly, we conclude that, under the specific circumstances of this case, the State has not preserved its argument that the search constituted a protective sweep. See Santana, 133 N.H. at 809; cf. Pseudae, 154 N.H. at 200. We agree with the defendant that the search was not justified under the exigent circumstances exception and note that, on appeal, the State does not argue to the contrary. See Pseudae, 154 N.H. at 200. Therefore, we reverse the trial court’s ruling that the search was constitutional and remand. In light of this decision, we need not address the defendant’s other argument.