By GAIL OBER, LACONIA DAILY SUN
LACONIA — The state Attorney General's Office has asked a Belknap County Superior Court judge to reconsider his decision to disallow the drug evidence seized in an April 2015 traffic stop to be presented in court.
Attorney Jason Carey said Judge Peter Fauver "misapplied" the law when he ruled last month that police did not have possession of the car being driven by Peter Dauphin, 43, of 19 Appleton St. when they conducted an inventory search after he was stopped for speeding and they realized the plates on the car showed a different driver.
As a result of that search, police found a small amount of methamphetamine. During the investigation, police obtained a search warrant for his home and found 6.8 ounces of methamphetamine and $11,000.
Without the evidence, the criminal case against Dauphin for possession of narcotics with intent to sell them would likely not proceed.
Fauver determined that because the towing of the car Dauphin was driving was paid for by Dauphin and was to his nearby home, the police never had official custody of it and that the inventory search was unreasonable.
Carey argues that judge's ruling depended too heavily on the destination of the car after police seized the plates and ordered it towed. He said there are multiple cases in the law, including a decision by the U.S. Court of Appeals Second District, that decided a noninvestigatory search by police is allowed if the search is conducted according to a neutral police towing policy and if the car was ordered towed by the police.
"The interests protected by an inventory search are what give rise to the officer's obligation to search an impounded vehicle, regardless of its ultimate destination when towed,'" wrote Carey, citing a Massachusetts Supreme Court decision he says is consistent with the federal ruling.
Carey also said the amount of control over the car by police was the same as if the car was being towed to a third party lot or private tow yard. In either case, he said police would not have anything more to do with the vehicle.
Inventory searches are conducted by police to protect the owner from the theft of his or her property, to protect the tow truck driver and impound lot employees from any dangerous items that may be found in a car, and to protect the police from being accused of stealing or damaging any property. The Laconia Police Department tow policy is standard as compared any other police departments, including the New Hampshire State Police, and is not being questioned. How it was applied in this case is at issue.
Carey said it is immaterial whether or not Dauphin arranged and paid for the tow because the law requires that the owner of a car pay for the tow regardless of the circumstances.
He said the court's determination that the search was "unreasonable" because it didn't serve any investigative purpose was misplaced. Carey said courts have repeatedly decided that "where the decision to inventory the contents is lawful, it follows that inventory search itself is per se lawful if conducted pursuant to 'reasonable police regulations.'"
He said that simply because Dauphin was not in custody before the inventory search is also irrelevant. Dauphin was going to be cited by police for speeding and misuse of plates until he was arrested after police found the methamphetamine in the car.
Dauphin is represented by attorney Mark Sisti, who, as of Tuesday, had not filed his response.
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