New Hampshire Supreme Court

October 2, 2002

Oral Argument Case Summaries



Case #1



Deputy Chief Appellate Defender David M. Rothstein for the appellant, Jeffrey Grey

Attorney Laura E.B. Lombardi for the appellee, the State of New Hampshire

Issues Presented:

1. Whether by asking the police to keep an eye on his house while he was away, the owner also gave his "implied consent" to the police to enter the home if they saw something suspicious.

2. Whether the defendant, when he was questioned by police, was "in custody" and therefore, should have been advised of his right to remain silent under Miranda v. Arizona, 384 U.S. 436 (1966), when he answered questions about drugs in the house

Statement of the Case:

A Concord resident asked the police to watch his house while he was in Greece. Police found the garage open and back door unlocked. When they entered the house, they found the defendant, the owner’s grandson, asleep on the couch. When they asked for an ID, the defendant produced a passport and two baggies of white powder fell out. After the police asked the defendant if there was "anything else in the house," the defendant led them to an upstairs bedroom, which he indicated was his, where they found marijuana under the mattress and more baggies of white powder on the nightstand.

Procedural History:

Prior to trial, the defendant moved to suppress the evidence about drugs found in the upstairs bedroom and statements he had made about the location of the drugs, arguing that he was in police custody at the time and, therefore, should have been advised of his right to remain silent under Miranda v. Arizona, 384 U.S. 436 (1966). The trial court denied the motion to suppress.

At trial, the resident denied that he gave the police permission to enter the house in his absence. Rather, he anticipated that if there was a problem, the police would call one of his children or a neighbor, whose phone numbers he had provided.

The defendant was subsequently convicted of three counts of possession of controlled drugs. On appeal, he argues that the trial court erred in ruling that the resident gave the police his implied consent to enter his home while he was away on vacation, since the owner did not tell the police that they could enter his home and did not provide them with a key.

Additionally, because a reasonable person in the defendant’s position would have understood that he was not free to leave once the police seized the drugs that fell from his passport, the defendant asserts that he was in custody at the time and should have been advised of his Miranda rights when he led the police to the drugs in the upstairs bedroom.

In response, the State argues that by asking the police to watch his house during his absence, the homeowner necessarily included consent to enter the home if the police suspected that a crime had been, or was being, committed. Additionally, the State asserts that the defendant was not entitled to Miranda warnings, where he was in familiar surroundings, the officers did not physically restrain him and his interaction with the police was relatively brief and non-confrontational.

Case #2

PETITION OF WMUR CHANNEL 9 & a., No. 2002-0181


Attorney James P. Bassett for the appellants, WMUR Channel 9, The Boston Globe and the New Hampshire Association of Broadcasters; Attorney Kathleen A. Kirby, pro hac vice, for the Television News Directors Association and the Reporters Committee for the Freedom of the Press, amicus

Associate Attorney General Kelly A. Ayotte for the appellee, the State of New Hampshire

Attorney Richard C. Guerriero, Jr., for the New Hampshire Public Defender, amicus

Issues presented:

Whether blanket ban on still photography and audio and video recording of court proceedings is constitutional

Statement of the Case:

In January 2001, Half and Susanne Zantop, both professors at Dartmouth College in Hanover, were murdered in their home. The murders, investigation and subsequent arrest of two Vermont teenagers, Robert Tulloch and his best friend, generated intense media attention.

Members of the press originally filed this petition seeking to prevent the trial judge in Tulloch’s trial from enforcing his long-standing blanket ban on still photography and audio and video recording of courtroom proceedings. Rather than proceeding to trial, however, Tulloch agreed to plead guilty to the murders. At the request of the petitioners, the supreme court issued an emergency order directing the trial court to allow media access at Tulloch’s guilty plea hearing. The justices also agreed to address the underlying issues presented in the original petition about whether still photographs, video and audio recording should be allowed at court proceedings.

Procedural History:

The petition presents three issues:

(1) Whether the trial court erred when it ruled that the press had no constitutionally protected interest in utilizing still photography or audio/video recording equipment to report on pretrial, trial and post-trial proceedings;

(2) Whether the trial court articulated an improper standard of proof in requiring that the petitioners "guarantee" or "conclusively establish" that neither the trial participants nor the jurors would be affected by the presence of still cameras or audio or video equipment in the courtroom; and

(3) Whether the trial court erred and exercised unsustainable discretion when it applied its long-standing ban without undertaking a fact-specific consideration of the characteristics or impact of the three means of reporting proposed by the petitioners and when it made the finding that trial participants and the jury would be adversely affected by such reporting when there was no evidence in the record to support such a finding.

The State responds that neither the State Constitution, common law nor the First Amendment create a right to electronically record, photograph or televise criminal trials. In addition, the State asserts that the trial judge, in the sound exercise of his or her discretion, should determine whether access to electronic media should be permitted.