Police recovered cocaine from car of drunk man who was not behind the wheel; his defense protesting search
SUPERIOR COURT — A Gilford man who is charged with one count of possession of cocaine is asking a judge to disallow all of the evidence seized from his car because he says it should not have been towed or inventoried.
Atty. Steve Mirkin says Richard Varricchio, of Lake Street was a passenger in his own car on November 30, 2013 when the driver was pulled over by a N.H. State Police Trooper on Route 11 just east of the Walmart parking lot entrance.
When the driver failed a field sobriety test he was charged with driving while intoxicated, arrested and taken to jail.
The officer spoke to Varricchio, who allegedly told police he had also been drinking and didn't think he should drive. Police took Varricchio into "protective custody," handcuffed him, and drove him less than a mile to his parent's home on Lake Street in Gilford.
While one trooper was taking Varricchio home, a second trooper conducted an inventory search of the car and allegedly found a baggie containing cocaine.
Mirkin argues that the cocaine should not be allowed into evidence because his client wasn't properly taken into protective custody and that the search was unlawful.
He said the trooper never determined Varricchio was impaired — only that he had been drinking — and that Varricchio exercised proper caution when he chose not to drive in front of a state police officer.
He said being "taken into protective custody" is not an arrest but is a seizure that may not be made without adhering to constitutional provisions against unreasonable seizure.
Mirkin said there is no exact legal definition of intoxication and the closest he could come was a 1983 case that described a person as being unable to walk five feet without stumbling or stand without supporting himself.
Mirkin said the officer who placed Varricchio into custody made none of those observations so he should not have put him into protective custody, implying Varricchio could have walked home and/or made other arrangements to get home and retrieve his car.
Mirkin also noted that from the discovery provided to him, Varricchio's car was in the breakdown lane just east of the entry to Walmart. He said the law states that only time a car is to be towed, is when "the owner of custodian of the vehicle is under arrest or otherwise incapacitated and the vehicle is a menace to traffic if permitted to remain."
He also argued that the car had to be a menace or an active threat to the safety of others at that time in order to be towed but the car was in a wide breakdown lane on Route 11.
Mirkin said that an inventory search must be conducted in a neutral manner and not in an investigatory manner. It is designed to protect the property interests of the owner and the safety interests of the police.
He said there is no indication that once the trooper found the baggie that he stopped his search and applied for a warrant. There is also no indication that Varricchio gave the police permission to search it.
Mirkin said the state police's own policy requires an inventory form to be left in the car that documents what was in the inventory search and no such form was found.
Belknap County Prosecutor Melissa Guldbrandsen countered that the trooper properly "determined that Varricchio was not fit to operate the vehicle and he was placed into protective custody."
She said the trooper's statement said that "Varricchio indicated he consumed too much alcohol and could not drive. I observed Varricchio reeked of an alcoholic beverage, had red glassy eyes and slurred speech..."
Guldbrandsen said the troopers exercised sound discretion when they honored Varricchio's own statements that he couldn't drive and provided him a courtesy ride to his parent's home."
She said it is consistent with the laws governing protective custody and in the alternative, the troopers could have brought him to the Belknap County Jail.
She said there is no reason the troopers should have left the car on the side of the road indefinitely. She also said that the inventory was done according to a neutral policy and that she will call two of three troopers involved to testify at the suppression hearing.
Last Updated on Friday, 10 October 2014 01:19
GILFORD — About 100 people signed a petition asking Selectmen to reverse their decision to make Cat Path one way and remove the speed bumps. The petition was submitted last night.
Speaking for the petitioners was Missy Perkins, who lives on Cherry Valley Road and said that many other roads in town would benefit more from the speed bumps. Perkins also said she had seen at least one resident of the road going the wrong way.
Accompanying Perkins was Sue Salmon who said they could use one way limits and speed bumps on their roads as well.
Marc Bourgeoise, who lives on Governor's Island, said people there wish their road was private but said he understands that everyone's tax dollars pay for the road so it's not. He said Cat Path is also public and paid for by tax dollars, adding the speed bumps are "extreme."
"I think the goal is to make it a private street with tax dollars," Perkins said.
Selectmen John O'Brien and Gus Benevides said the board had been talking about Cat Path for two years, that there had been public hearings about the changes, and that they wished Perkins and the others had come to those hearing.
"The board dragged its feet before we did anything," Benevides said, saying he was hoping more people than those who lived on Cat Path would have made their wishes known before the board took action.
He told them the speed going down the hill was a problem and there were a number of accidents on Cat Path.
As to the speed bumps, Benevides said they are temporary and will have to be removed before winter.
Selectman Richard Grenier said he wished he had voted against the speed bumps and in retrospect, doesn't think they were a very good idea.
Selectmen also said that if there were people going the wrong way on Cat Path it would be a police matter.
Town Administrator Scott Dunn accepted the petition.
In other business, selectmen agreed to close the portion of Belknap Mountain Road from the entrance to the town fields to the corner of Alva Wilson Road for Halloween.
In response to a speed complaint from a resident of lower Belknap Mountain Road, selectmen asked the police chief to evaluate the speeds in the area especially between 7 and 8:30 a.m.
Chief Anthony Bean Burpee said he has a growing list of places for which residents want speed and traffic studies but he agreed that the area in and around Gilford Village along Belknap Mountain Road is a priority because of all the school children.
Last Updated on Thursday, 09 October 2014 01:13
LACONIA — A psychiatrist working for the N.H. Office of Forensics Examiners has determined the former Belmont man who allegedly hacked his mother and brother to death with an ax is competent to stand trial.
Even though Dr. Daniel Comiskey determined Shawn Carter is capable of standing trial and assisting in his own defense, his attorney have requested a second evaluation, which was granted without state objection by Belknap County Superior Court Judge James O'Neill III.
Public Defender Robin Wight wrote that once Comiskey's report was submitted, she and her co-counsel met with Carter and came away with "significant concerns."
Carter's attorneys have obtained the services of Dr. Phillip Kinsler and estimate his services will cost about $5,000, however because he has no money to pay for the second evaluation, Wight and Atty. Eric Wolpin also motioned for the state to pay for Kinsler.
O'Neill approved the expense.
Carter is accused of using an ax to chop his mother and his brother to death in the Sunset Avenue home the three shared along Lake Winnisquam in May of 2013.
Their bodies were discovered by a Belmont Patrol Officer who responded to the home for a well-being check after one of Priscilla Carter's coworkers became concerned when she didn't come to work or answer her phone.
Carter was arrested by Belmont and Tilton Police about four hours after the bodies were found, while driving his mother's car along Rte. 3 in nearby Tilton.
Last Updated on Wednesday, 08 October 2014 12:56
LACONIA — Beset with financial problems, the Laconia Motorcycle Week Association has expanded its board of directors, who are seeking to restore the organization to financial solvency and place its operations on a sound footing.
The LMWA was established in 1991 as the Laconia Motorcycle Rally and Race Association at the initiative of then Mayor Paul Fitzgerald and its longtime executive director Charlie St. Clair, with the primary purpose of promoting the oldest motorcycle rally in the United States. The association publishes and distributes the Rally News magazine, solicits corporate sponsors and rally patrons, administers an annual grant from the New Hampshire Division of Travel and Tourism Development and sells concessions at the event.
The current membership of the board consists of the City of Laconia, Town of Meredith, New Hampshire Motor Speedway (NHMS), Weirs Action Committee (WAC), Laconia Harley-Davidson and three businesses at The Weirs — the Weirs Beach Lobster Pound, Half Moon Enterprises and NASWA Resort.
The board became aware of the financial troubles of the association earlier this year and, according to documents obtained by The Daily Sun, the board was still seeking to calculate their extent when it met in August. Tommy Blanchette of NHMS and a member of the financial sub-committee, reported that "the first priority is to determine the actual balances of accounts, payables, receivables, and long-term debt of the Association."
A balance sheet as of June 9, 2014 listed total liabilities of $214,490.96, of which a note payable to Charlie St. Clair represented $124,859.30. Charges against 13 credit cards accounted for another $46,453.71 and an outstanding balance on a loan from Bank of New Hampshire for another $30,000. However, in August Blanchette told the board that the debt to St. Clair was more than $178,000 while the credit card debt, carried at high interest rates, was $60,000.
After the association's financial issues came to the fore, the membership of the board was expanded. An attorney, Matt Lahey of Laconia, an accountant, Paul Simoneau of Gilford and a marketer, Amy Landers of the Lakes Region Tourism Association were added to the board. Cynthia Makris of the NASWA Resort serves as president of the association.
At the same time, the board agreed to raise the annual membership dues paid by municipalities and businesses, but not the additional three individuals, from $2,000 to $5,000. In June, the Laconia City Council included the increase the 2014-2015 municipal budget and this week Meredith Town Manager Phil Warren advised the Board of Selectmen of the pending rise in dues.
But, when the LMWA met in August Joe Driscoll of the WAC reported that his organization voted not to pay $5,000 but only $3,000. According to the minutes, Makris said that she "believes it is important for each member to be sharing the cost of dues equally." Blachette suggested that it was premature to introduce an increase in dues until the financial statements have been revised and the 2015 budget prepared.
At the same meeting, Blanchette said that retiring the debt to St. Clair should be a priority and that Landers would approach the Belknap Economic Development Council about borrowing at a rate below that charged by the credit cards to lighten the total debt. He also stressed the development of "accounting policies and procedures" as a priority.
The 2014 budget of the association was $432,764. Corporate sponsorships at $211,000 and advertising sales of $100,000 accounted for three-quarters of projected revenues, supplemented by a grant from the state of $30,064, sales during the rally of $35,000, membership dues of $22,000 and donations from Rally Patrons of $16,000. Payroll, salaries, benefits and related expense, of $132,500 from the state, was the largest single expense followed by $60,000 in print advertising, $45,000 in travel, $29,264 in producing the Rally News, and $22,200 in rent.
Blanchette suggested that the 2015 budget should include lowering expenses, retiring debt and collecting receivables. The minutes read "if a budget cannot be created,Tommy stated, then bankruptcy must be visited as a last-resort effort."
This is not the first time the association has run afoul of financial issues. In 2003, when it was called the Laconia Motorcycle Rally and Race Association, three members — the city of Laconia, Greater Laconia/Weirs Beach Chamber of Commerce and Gunstock Recreation Area — resigned their memberships over misgivings about the quality of financial reporting. A year later, after being assured that its concerns had been appropriately addressed, the City Council resolved to rejoin the organization. Neither the Chamber of Commerce nor Gunstock Recreation Area followed the city's lead.
Last Updated on Wednesday, 08 October 2014 01:58
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