By BEA LEWIS, for THE LACONIA DAILY SUN
LACONIA — The Attorney General's efforts to prosecute a city man on drug sales charges after his car was towed hinges on the outcome of a New Hampshire Supreme Court appeal.
Peter Dauphin, 43, could face a maximum sentence of up to life imprisonment if convicted, because he has a prior conviction for drug sales.
Defense attorney Mark Sisti earlier successfully argued that Dauphin, not city police, had control of the defendant's car when they ordered it towed, and as a result officers had no right to inventory its contents.
Judge Peter Fauver ruled the evidence found in the car and Dauphin's subsequent confession were unlawfully obtained and couldn't be used against him at trial. The ruling gutted the state's case but instead of deciding to drop the charges, Assistant Attorney General Jason Casey asked the state's highest court to review Fauver's ruling.
In his brief to the high court, Casey maintains city police acted lawfully when they inventoried the contents of the car that they ordered towed pursuant to the department's written policy, as the vehicle was unregistered.
At issue is the required control police must have over a vehicle in order for an inventory search to be justified under the New Hampshire Constitution.
Casey contends there is no support for Judge Fauver's conclusion that storage at a third-party facility is necessary to trigger a police officer's authority to inventory the contents of a car. As part of his efforts to convince the justices that Fauver's ruling is wrong, Casey hangs his hat on a case decided in neighboring
Massachusetts, that he claims has very similar facts.
In the 1996 case Commonwealth v. Daley, the Massachusetts Supreme Court determined that a police officer can inventory the contents of a car when it is towed at the officer's request because of an invalid
registration. In that case, as in the local case involving Dauphin, the officer agreed before conducting the inventory search to allow the defendant to have the vehicle towed to his home. The Bay State court affirmed
the trial court's denial of a defense motion to suppress. In support of their decision, they held that the interests protected by an inventory search are what give rise to an officers obligation to search an impounded vehicle, regardless of its ultimate destination where towed.
Because Laconia police had temporarily seized Dauphin's car, summoned a tow truck and directed that the car be towed against the defendant's wishes, the department was reasonably liable for injuries caused by dangerous items inside the car to the tow truck driver, Casey argues.
The prosecutor maintains as the inventory search was both lawful and reasonable under the state Constitution and that Dauphin's arrest was valid, his confession should be admissible at trial and the justices should overturn Fauver's ruling.
In arguing that the trial court made the right call, Sisti says the officer's agreement to have the car towed to Dauphin's house and the defendant's expressed ability to pay the ramp truck driver removed the officer's need to conduct an inventory search.
As police allowed Dauphin and his passenger to remain inside the car and then walk around outside it, and even gave him back his keys, Sisti asserts the state's claims that police had a duty to protect the tow truck driver from dangerous items inside the vehicle or to shield items from theft was a farce.
Dauphin was arrested at the scene of the traffic stop, and when he was searched police found $2,700 in cash.
When interrogated, Dauphin allegedly disclosed that he had more drugs and cash hidden in his home. After obtaining a search warrant, police found $9,940 in cash and nearly eight ounces of crystal meth hidden in a drop ceiling in the master bedroom of Dauphin's home. Earlier, the state obtained a forfeiture order to claim $12,000 in cash seized from the defendant as the alleged profits of drug sales.
Dauphin remains free on $65,000 cash bail. Oral arguments before the New Hampshire Supreme Court have not yet been scheduled.
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