By GAIL OBER, LACONIA DAILY SUN
LACONIA — All of the drug evidence against a local man arrested by Gilford Police on Feb. 26 has been tossed by a superior count judge who said it was obtained through an unlawful tow of his car.
Presiding Justice James O'Neill ruled that a spoon with heroin residue found in Joshua Levesque's car during an inventory search cannot be given to a jury.
At issue was whether or not the officer followed his own department's towing policy when he determined the car couldn't safely be driven, despite the fact that it was in a private parking lot.
Levesque's car had a broken taillight assembly that had been repaired using red automotive tape and this led to the traffic stop. The officer said he noticed a crack in the windshield and the combination of those two things led his to believe the car was unsafe.
Levesque pulled into a private parking lot and parked in a legitimate parking space.
Because Levesque had a warrant for his arrest from a different jurisdiction, he was taken into custody and it was at this point the officer made the decision to tow the car because, he said, it wasn't road worthy.
Prior to any police-ordered towing, police conduct an non-investigatory inventory search designed to protect the property owner from theft by either the police and or the tow, company as well as to protect police from false claims being filed against them and/or dangerous items in the vehicle. Nearly all police department have them and most of them are similar and based on provisions in New Hampshire law.
Levesque also requested the court suppress any statements made by him to police because he was interrogated without being read his Miranda rights or warning.
O'Neill agreed and said none of his statements can be used against him.
According to court documents, when Levesque learned he was spending the weekend in jail, he began to cry. The arresting officer asked him what was wrong and he allegedly responded he was going to be sick from what he hinted was heroin withdrawal while in jail.
O'Neill said that the question "What's wrong?" may seem innocuous on the surface, but suppressed the statements because he said any officer should know that it would likely elicit a response given Levesque's condition and demeanor.
Police continued to ask Levesque questions after he was told he would be facing additional charges for the residue, and O'Neill said they should have known better and that the questions would likely result in incriminating statements.
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