Laconia Police department policy on towing comes into play in drug suppression hearing

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.