LACONIA – A Meredith man police found slumped over the wheel of his car in the Laconia Parking Garage in April is using the Laconia Police Department's own policy on towing as grounds to suppress evidence of heroin possession and being a felon in possession of a deadly weapon.
Kory MacDonald, 28, formerly of 129 Meredith Center Road, #6, is also charged with one count of falsifying physical evidence for allegedly trying to hide a spoon, a lighter, and a white baggie during his arrest.
According to MacDonald's attorney, Wade Harwood, police went to the Laconia Parking Garage on April 7, and saw MacDonald's car parked in a parking space. The officer saw what she believed to be an illegal drug and knocked on his driver's window.
When MacDonald responded, the officer removed him from his car and placed him in the back seat of her cruiser. Once he was out of the car, two officers conducted an "inventory search" of the car and found what they alleged was heroin and a knife.
According to Harwood, police had no right to conduct an inventory search in order to tow it back to the station.
He said state law states a car can only be towed for seven specific reasons – six of which have no bearing on this case. He said the seventh one is that a car can be towed if the drive has been arrested and the car is an obstruction to the normal flow of traffic.
He said the operative word in the previous sentence is "and," and in this case both criteria were not met. In MacDonald's case, Harwood argued that the car was parked in a legal parking spot in the parking garage.
"It is illegal for the police to tow any car unless authorized by RSA 262:32," wrote Harwood.
He said any evidence obtained in a search contrary to RSA 263:32 must be suppressed.
As to the inventory search, he said the law and the police department's own policy provided that an officer can only do an inventory search if a car is to be towed. The reasons for a legitimate inventory search are to prevent injury to an officer from something that may be in the car, to protect the owner's property, and to protect the police department against a later claim of theft or of mishandling of property.
Further, he said the Laconia Police Department's own police on inventory search addresses only how one should be conducted not the circumstances under which a car may be towed.
Harwood said the policy doesn't provide authority to tow a car, but only provides guidance on how the search was to be conducted once a car had been towed.
The policy also states, said Harwood, that "if an an officer has probable cause and time to get a search warrant, one should be obtained."
Harwood wrote that Subsection 3 and 4 of the LPD policy said a vehicle should be inventoried when it "is towed at the request" of the members of this department. He also said Subsection 8 states that a car can only be towed if it was involved in a crime and is to be impounded by members of this department.
He argued that since there was no legal right to tow the car, it never should have been subject to a police inventory without a search warrant.
In this case, he said the officer acted upon what she believed to be illegal drugs in the car. However, if the officer thought there was contraband in it, the officer should have gotten a warrant. Because it was legally parked, he said one of the two officers could have stayed with the car while the other got the warrant.
Dept. Belknap County Attorney Carley Ahern countered by saying that the inventory search of the vehicle was legal and she preserved her right to file a memorandum of law before the suppression hearing.
MacDonald is being held in the Belknap County House of Corrections in lieu of $10,000 cash or corporate surety bail.
Last Updated on Thursday, 31 July 2014 12:00
by Daymond Steer
CONWAY — The man accused of kidnapping 15-year-old Abby Hernandez was ordered held on $1 million cash bail, by circuit court Judge Pamela Albee Tuesday afternoon. Abby was in the court room with her mother, Zenya, and sister Sarah.
Police say Nathaniel Kibby, 34, of Gorham, kidnapped Abby on the afternoon of Oct. 9 on North-South Road. Kibby is a former Kennett High School student. Abby was a Kennett High School freshman at the time of her disappearance.
She had been missing since that day but somehow managed to send one letter home to Zenya.
Albee set a probable cause date of Aug. 12 at 2 p.m. at circuit court and she imposed a number of conditions in the event Kibby can post bail. Those include no access to guns, drugs (unless prescribed) or alcohol; no contact with the Hernandez family; and no going within 300 feet of where the Hernandez family might be. He would also have to report to the probation department every day if released. Albee explained that Kibby faces up to 7 years in prison and a fine on the kidnapping charge, which is a class-B felony.
The Conway court room was packed with reporters, police and members of the public for Kibby's arraignment on Tuesday.
The mystery of what happened to Abby has gained international media attention. Investigators were tight-lipped through the investigation and continued to be so in court despite repeated pleas from public defender Jesse Friedman.
Friedman sought investigators' probable cause and search warrant affidavits and said he had very little information to defend his client with.
"We're in the position that essentially all that we have is a piece of paper," said Friedman about the police complaint. "In order to adequately defend Nate we need an opportunity to see that (other documents)."
Friedman added that the documents would be helpful for the defense in the bail portion of the arraignment. About all Friedman received was the police complaint which is one sentence long. The complaint says Kibby committed the Class B felony crime of kidnapping and that he "knowingly confined A.H. with a purpose to commit an offense against her."
The complaint doesn't say what that offense might be.
"I have no idea what offense they are alluding to because I don't have information other than what's on this piece of paper," said Friedman of the police complaint. "I'm not sure as a matter of constitutionally defending Nate, I can even explain to him what he's being charged with because I don't know."
Associate Attorney General Jane Young argued that she just got the defense's motion to unseal minutes ago, and under court rules the prosecution has 10 days to respond. She asked for the records to remain sealed.
"This is an ongoing investigation," said Young adding they only got enough information for an arrest warrant within the last 48 hours.
She said searches are being conducted at Kibby's house and if any information got out it would compromise the investigation. Young said some information may have already leaked to the media.
"We vehemently object to this motion," said Young asking the court for 10 days to respond.
Young said the best source of information for the defense is Kibby himself.
Albee denied the defense motion. Albee said she approved the arrest warrant herself at 6:30 a.m. on Monday.
When asked at the outset if he was seeking court-appointed counsel, Kibby replied, "Yes, I am, your honor."
When reached Monday, James D. Campbell, the father of Abby's former boyfriend, said he hoped the judge wouldn't give Kibby any opportunity for bail at all. He praised the police and Abby herself.
"I am proud of her for being tough!" said Campbell on Facebook, adding Abby and her sister and mother are "awesome people."
Authorities held a press conference outside after the arraignment.
In the press conference, speakers were state Attorney General Joseph Foster, Kieran Ramsey of the FBI, and Associate AG Jane Young.
Young reiterated the facts of the case that Hernandez was 14 and on the verge of her 15th birthday when she vanished Oct. 9 and that she returned to her home July 20.
Young cautioned reporters that due to the ongoing investigation into the case, officials would not be able to answer certain questions that could compromise their efforts.
Foster said keys to the positive outcome into the investigation so far have been the consistency and intensity of the efforts of crime fighters; the efforts of the community; and the strength of the Hernandez family.
"This is an ongoing investigation and we cannot try this case in the media. Some of your questions cannot be [answered] at this time," said Foster.
Ramsey saluted the community of Conway for its efforts to publicize the case through social media, the posting of fliers and other efforts so that the case would remain at the public's forefront.
"They didn't let anyone forget about Abby," said Ramsey.
He said law enforcement examined cell phone contacts, explored social media, and used "staid old-fashioned" interview techniques of hundreds of contacts.
He and Young both saluted Abigail for her resolve and courage.
"We have seen our worst fears in some cases, but we are seeing the best in the end," said Ramsey.
Young said law enforcement officials worked tirelessly on the case.
She said Kibby's arrest is the first step in the ongoing investigation.
Young said after receiving information Sunday night, a SWAT team started planning Kibby's arrest at 2 a.m. Monday and acted at noon to arrest Kibby without incident at his home in Gorham.
"There was no harm done to him, and more importantly, to anyone in the neighborhood," said Young.
She added that the search of Kibby's property continues, and will continue, depending on what investigators find.
"As Kieran said," added Young, "several times your worst fears are realized. But, she is home." She later added, "How a child like that can endure means she has a strength that I am not sure we would have."
Paul Kirsch and Amanda Smith, the two volunteers who led the community's Bring Abby Home effort, spoke to reporters outside the court house after the press conference.
Kirsch, who has supported Zenya and Sarah and had run the Bring Abby Home effort, said they are asking the public to hold up welcome home signs for Abby.
"We want her to know how much support there was out there and how many people were thinking of her," said Kirsch adding he doesn't know if she saw any of that when she was missing.
Kirsch said the biggest struggle is that it's hard for people to understand that the ordeal isn't over for the Hernandez family.
"All they want to do is be a family again and now they have to go through this stage of justice," said Kirsch. "It's going to take a lot of strength on her part. They are survivors."
Kirsch knows the Hernandez family from the White Mountain Milers running club.
Amanda Smith, a Hernandez family friend, who ran the Bring Abby Home Facebook page, said it was "hard to describe" what it was like being in the court room with Kibby.
"It was something we needed to do to face him," said Smith. "It's for closure."
Smith said Abby is still resting and that Monday was the first time Abby began to feel safe.
"I hope he gets more than seven years," said Smith.
An employee at EMM Precision, in Conway, confirmed that Kibby had worked for the company for five years before being laid off this spring.
Reporter Tom Eastman contributed to this story.
Last Updated on Tuesday, 29 July 2014 11:57
LACONIA — With little more than five weeks remaining before the state primary election on Tuesday, Sept. 9, City Clerk Mary Reynolds told the City Council this week that no election officials have enlisted to staff the polls in Ward 5.
Reynolds said yesterday that the ward is without a moderator, ward clerk, three selectmen and three ballot clerks, which she stressed is the bare minimum required to conduct an election. She explained that the moderator, ward clerk and three selectmen must be at the polling station throughout the day, from 6:30 a.m. until the votes are counted and ballots sealed around 8 p.m. The ballot clerks, on the other hand, may work shifts and while at least three are necessary, the more there are, the fewer hours they need work.
Ward 5 has been challenged to staff its polling station in the past and recruitment was not made easier when it became the center of controversy after the last municipal primary election in 2013. The incumbent city councilor, Bob Hamel, received 39 of 47 ballots cast and the official results indicated that no one received a write-in vote that would qualify them as a candidate for the council. But, three days after the election Dave Gammon, who claimed that he, his wife and a neighbor, cast write-in votes for Tom Tardif, asked to see the ballots, which were sealed. Ultimately, at Gammon's urging, the Superior Court authorized a recount, which confirmed that Tardif received three write-in votes for city councilor, not for ward clerk as reported by election officials, qualifying him for a spot on the general election ballot.
Election officials insisted the error arose from an inadvertent oversight. However, Gammon and Tardif voiced suspicions about the propriety and integrity of the election and those who conducted it. One veteran of Ward 5 politics remarked of the two men, "we have some who are extremely civic minded in their own way."
Faced with the prospect of being unable to man the polls in Ward 5, Reynolds said that she has begun consulting with the New Hampshire Secretary of State about how to address the situation. There are primary elections for the United States Senate and House of Representatives as well as state and county offices, including governor and county commissioner, on the ballot.
Meanwhile, Reynolds encourages residents of Ward 5 to volunteer for the vacant positions. The moderator is responsible for the conduct of the election and oversees the work of the other officials at the polls. The ward clerk supervises the ballot clerks, who check the eligibility of voters coming to the polls, during the day and tabulates the results of the election after the polls closes. The three selectmen set up the polling station the evening before election day and assist whenever and wherever they are needed at the direction of the moderator while the polls are open. The ballot clerks, who must include at least one registered Republican and one registered Democrat, check the name, address and photographic identification of voters as they enter the polling station.
All election officials are compensated and provided with lunch, dinner and refreshment. The moderator and ward clerk are paid $7.50 per hour and all others $7.25 per hour. Furthermore, Reynolds emphasized that volunteers will be thoroughly trained to fulfill the responsibilities of their positions and follow the procedures of the election.
Last Updated on Tuesday, 29 July 2014 11:51
By Daymond Steer
Conway Daily Sun
CONWAY – A former Kennett High School student who was in Conway District court earlier this month on unrelated charges and has a history of psychiatric problems has been arrested for the kidnapping Abby Hernandez, the 15-year-old girl who showed up at her home eight days ago after being missing for nine months.
Nathaniel E. Kibby, 34, of 4 Brookside Drive, Gorham, was arrested and charged with one count of "felony kidnapping for knowingly confining" Hernandez on Oct. 9, 2013, "with a purpose to commit an offense against her," according to statement released by the New Hampshire Attorney General.
The arrest was made at about 12:04 p.m., Monday, without incident at Kibby's residence in Gorham.
An armored police truck was located at the Conway Police Department Monday afternoon but police wouldn't confirm or deny if it was involved.
"Over the course of the past week, law enforcement officers have worked around the clock to ascertain the facts and circumstances surrounding Abigail's disappearance and return," said a statement investigators released late Monday afternoon. "Abigail Hernandez provided the police with details of her kidnapping sufficient to warrant today's arrest."
No details were released about any of the circumstances around the alleged kidnapping or what he may have done to her, but more information is expected to come from Kibby's arraignment, which is scheduled Tuesday at 1 p.m. in Conway's District Court with a press conference scheduled to be held after. The man charged with kidnapping Abby Hernandez attended Kennett High School and has been in and out of the local court since he was a young man, including a 1998 incident when he was charged with assaulting a female classmate and spent time in the psychiatric unit of the state prison because he had threatened to harm himself.
Hernandez, 15, of North Conway, went missing on Oct. 9 and returned home under mysterious circumstances on July 20.
At the time, Abby was a ninth grader at Kennett High School. In the late 1990s, Kibby, then a teenager himself, was convicted of assaulting a girl who was a high school freshman at the time.
Kibby was in Conway Circuit Court on July 23. He was found guilty of criminal trespass and was given a $1,240 fine which was suspended pending one year of good behavior. A simple assault charge was dropped.
As a part of his plea deal, Kibby is to have no contact with the alleged victims.The assault charge alleged that Kibby pushed a woman to the ground in Redstone in early March. The trespassing charge said he trespassed at the same address where the alleged assault took place.
According to court papers filed by Kibby, the conflict between him and the victims (a man and woman) began when he rear-ended the man in a car accident. Kibby said the man became upset and began to threaten him. Kibby wanted the sheriff's office to investigate because he had no faith in the police which he called "an immoral organized criminal syndicate."
After his arrest on the assault and trespassing charges, Conway police apparently seized his gun, Kibby filed a request to the judge to get it back. In that memo to the court, Kibby described himself as living a "respectable life."
"The accusation is absurd & and not credible based upon my character & and my objectivist libertarian moral code," wrote Kibby in March. "That I am a life long NH resident, possess a stable job, own my own home outright & live a respectable life."
In another recent document he filed with the court regarding those two charges, Kibby said he worked at EMM Precision.
In December, Kibby was fined about $400 after he pleaded guilty to marijuana possession. The drug charged stemmed from an arrest on Eastman Road in Conway on October 22 at about 8:26 p.m.
According to information Abby provided investigators, the man who drove away with her on Oct. 9 was driving a navy blue pick-up truck on North South Road in Conway, north of the rotary. Abigail described the man as having darkish skin, dark brown eyes, black stubble facial hair, and a large build, who was slightly overweight and slightly taller than she was (5'4").
The complaint says Kibby is six feet one inch and weighs 165 pounds with brown hair and blue eyes. Kibby does not resemble the man in the sketch.
Kibby has a long history of involvement with local authorities. Kibby would have graduated in the class of 1999 but was banned from the school's property in a prior year, according to a 1998 Daily Sun story, which also said Kibby had been banned from the Mountain Valley Mall.
In 1998, and as a teenager, Kibby was found guilty of assaulting 16-year-old Shawna M. Bova of Bartlett, who was in ninth grade at the time. Kibby grabbed "Bova with his hands, and holding on to her jacket around the neck area preventing her from leaving."
At the 1998 trial, Bova testified that she was walking to the school bus to go home on Jan. 21 when Kibby approached her and asked if he could talk to her. She said no, that she had to get on the bus, and he grabbed her left arm with one of his hands and asked again if she would take five minutes to talk to him. Her jacket, she said, was over her right arm.
The two had some sort of relationship.
She testified that the first time she tried to walk away, he continued to hold onto her arm, which prevented her from moving forward. The second time she tried to walk away, he let go.
The pressure "was not easy or hard," she said, adding that it was enough pressure so that she knew he wanted her to stay.
While awaiting trial on the assault charge and others, Kibby spent 42 days incarcerated, most of which was spent in the psychiatric unit of the state prison because he had threatened to harm himself.
When Kibby testified in his own defense, he said he had a close relationship with Bova, which was evidenced by a stack of about 50 love letters he said he had received from her over the course of their four-month relationship. There were no flowers and roses, he said, adding that chivalry is dying. In addition, Kibby testified, he could not have assaulted Bova because he was lifting weights at the Cranmore Sports Center at the time.
According to a 1998 Daily Sun story, Kibby, who had been suspended from Kennett High and warned to stay off of the grounds, was seen on school property by Sharon Ward, the health aide, and Jonathan Freeman, assistant principal.
Kibby's lawyer, Don Ekberg, argued that Kibby, along with his father, had met with his guidance counselor that morning. Following that, Kibby testified, he decided that since school was almost out, he could ask his friends to get his textbooks, and he approached the school via the side street that leads to the parking lot in front of the junior high school.
Kibby testified that the vice principal was out to get him. "His goal was to get me out of school."
The judge found Kibby not guilty of the violation alleging unauthorized attendance at Kennett High School.
In April of 1998, the Daily Sun published another story about how Kibby, then a 17-year-old former Kennett High School student, pleaded no contest to using false information to purchase an assault rifle on Feb.13.
Also in 1998, Kibby also had a felony drug charge and theft charge thrown out by a judge who found that the warrantless arrest warrant was unjustified. In one 1998 court appearance, Kibby said he "feared" police because they pepper sprayed him.
Kibby also also written several letters to the Daily Sun endorsing President George W. Bush and criticizing President Barack Obama.
Last Updated on Tuesday, 29 July 2014 02:15
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