State Supreme Court to consider if police had right to search car

By BEA LEWIS, for The Laconia Daily Sun

LACONIA — Nearly two years after a city man was arrested on drug sales charges, the New Hampshire Supreme Court will have to decide what evidence if any, can be used against Peter Dauphin during his trial.

Dauphin, 43, could face a maximum sentence of up to life imprisonment if found guilty, because of a prior conviction for selling drugs. He has pleaded not guilty, and remains free on $65,000 cash bail.

At issue in the case is the Laconia Police Department's policy of doing an "inventory" search of vehicles before they are towed. The purpose of the policy which mirrors that used by the majority of law enforcement agencies in the state, is to safeguard against allegations of theft, loss of property or damage by the department and to protect others from items in the vehicle which may pose a threat of injury.

During oral arguments scheduled to be heard on March 9 at 9:30 a.m., the key question the justices will consider is the required control police must have over a vehicle in order for an inventory search to be justified under the state Constitution.

Defense attorney Mark Sisti successfully argued at the trial court level that Dauphin, not Laconia police, had control of the defendant's car when they ordered it towed, and as a result an officer had no right to inventory its contents.

Judge Peter Fauver, sitting in Belknap County Superior Court, ruled that drug evidence found in the car and Dauphin's subsequent disclosures to police were unlawfully obtained and were inadmissible at trial. Fauver held that the early model Pontiac Grand Am was neither in police custody or impounded at the time the search occurred. He also ruled that the inventory was "otherwise unreasonable because the vehicle did not meaningfully achieve any legitimate non-investigative purpose."

The ruling eviscerated the state's case, but instead of dismissing the charges, Assistant Attorney General Jason Casey asked the high court to scrutinize Judge Fauver's decision.

In his motion asking the court to suppress the evidence filed in November 2015, Sisti asserted that police had no reason to search the car Dauphin was driving as he was not under arrest, the car was not being seized and Dauphin was in the process of having a ramp truck driver remove the vehicle from the scene. There was no reason for police to suspect there was any contraband in the car, and there was no evidence in plain sight in the vehicle, Sisti wrote.

In his brief to the high court, the prosecutor 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.

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.

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 argued.

The prosecutor maintains since 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 officers' agreement to have the car towed to Dauphin's house and the defendant's expressed ability to pay the ramp truck driver, removed the 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, after a black bag containing suspected crystal meth was found by police under the driver's seat.

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.

Previously, the state obtained a forfeiture order to claim $12,000 in cash seized from the defendant as the alleged profits of drug sales.

Peter Dauphin of Laconia, foreground, with his Attorney Mark Sisti during a hearing in Belknap County Superior Court. The issue of whether an inventory search of Dauphin's car was legal will be heard by the New Hampshire Supreme Court on March 9. (Bea Lewis/ for The Laconia Daily Sun)