New Hampshire Supreme Court

October 30, 2003

Oral Argument Case Summaries

 

CASE #1

STATE OF NH v. JOSEPH TURMEL, No. 2002-0589

Attorney F. Michael Keefe for the appellant, Joseph Turmel

Attorney Stephen Fuller for the appellee, State of New Hampshire.

What is this case about?

Was the behavior of the defendant, Joseph Turmel, suspicious enough to justify a state trooper’s decision to stop the defendant’s car, ask him questions and conduct a search without a warrant? Even though Turmel wasn’t under arrest, should he have been advised by the trooper of his right to remain silent before he answered any questions?

Legal Issues Presented:

Improper stop of motor vehicle; violation of right against self-incrimination.

Statement of Facts:

The twenty-year-old defendant was lawfully operating his new Lexus on Route 89. A trooper in an unmarked car passed the vehicle at a speed of between 70 and 75 miles per hour. As he passed, the trooper observed the defendant with a cigar or "blunt" – an ordinary cigar with its insides removed, commonly filled with marijuana -- which he was sharing with his passenger. Concluding that the defendant was smoking marijuana, the officer radioed to other troopers to stop the defendant’s vehicle.

After stopping the car, one trooper asked the defendant, without advising him of his right to remain silent under Miranda v. Arizona, 384 U.S. 436 (1966), if he and his passenger had been smoking marijuana. The defendant answered yes, adding that he had thrown the drugs out the window. The troopers then asked for permission to search the car, explaining that if the defendant did not consent, they would "pursue other avenues" to search the car. The search revealed a small marijuana cigarette in the ashtray. The troopers also found a gray bag in the trunk containing approximately $39,000 in cash. The passenger admitted to owning the bag but denied knowing anything about the money.

 

Procedural History:

The defendant was arrested and charged with one count of transportation/possession of a controlled substance. He subsequently asked the court to throw out the evidence arguing that the initial stop of his vehicle was without reasonable suspicion and in violation of his State and federal constitutional rights against unreasonable searches.

The trial court denied the defendant’s motion to suppress the evidence. Following a trial on stipulated facts, the defendant was convicted of the amended charge of simple possession of a controlled substance.

On appeal, the defendant argues that the trial court erred in denying his motion to throw out the evidence obtained in the search because the defendant’s conduct was consistent with a variety of lawful and innocent behaviors and, therefore, the trooper did not have the requisite facts that the defendant was engaged in criminal activity to justify the search. Additionally, he asserts that because he was not free to leave once the police officer stopped his car, the "custodial interrogation" without Miranda warnings, violated his rights against self-incrimination under the State and federal constitutions.

The government contends this was a reasonable stop made by an experienced investigator and that the defendant’s freedom of movement was not so restricted as to require the trooper to read him his Miranda warnings.

********************

 

CASE #2

HIPPOPRESS, LLC v. SMG (A PENNSYLVANIA PARTNERSHIP) d/b/a SMG OPERATIONS & THE CITY OF MANCHESTER & THE UNION LEADER, No. 2002-0786

Attorney Brenda Keith for HippoPress

Attorney Alexander Walker & Attorney Daniel Will for SMG and the City of Manchester

Attorney Gregory V. Sullivan for the Union Leader

Attorney Edward T. Clancy for NH Civil Liberties Union as amicus curiae

What is this case about?

Is it a violation of free speech if the operator of an arena decides that one newspaper will have the exclusive rights to sell papers inside that arena? Does it make a difference if the arena is owned by a government entity? When it comes to protecting free speech, is an arena, which is mostly open to ticket holders, different from a public park? Is this a question about free speech or is it really a private business deal?

 

Legal Issues Presented:

First Amendment free speech rights; regulation of conduct through contract; attorney’s fees

Statement of Facts:

HippoPress petitioned the superior court, seeking a court order that would allow it to distribute its publications within the Verizon Wireless Arena. The Arena is owned by the City of Manchester and operated by SMG Operations. The Union Leader Corporation has an exclusive contract with SMG to distribute its newspaper in the Arena.

Procedural History:

The trial court granted HippoPress’s request for a court order allowing its newspapers to be distributed. The Union Leader, SMG and the City of Manchester appealed; HippoPress cross-appealed.

SMG and the City of Manchester maintain that the trial court erred because even before the judge could consider whether there was a first amendment violation, he had to find sufficient government involvement to trigger that constitutional protection, which he did not do. Even if there was government involvement in this case, attorneys for SMG and the city contend, it was so limited that reasonable restrictions, not based on the content of the Hippo press publications, could be allowed without violating the First Amendment.

The Union Leader argues that HippoPress does not have a constitutional right to distribute newspapers inside the Arena because the Arena is not a traditional public forum and therefore reasonable restrictions could be placed on distribution. They argue the contract between SMG and the Union Leader was a reasonable regulation of speech because it was not based on content of the publication. Finally, they argue the trial court erred when it concluded that where one newspaper is permitted to distribute within the Arena, all other papers must be given an equal opportunity to distribute.

HippoPress cross-appeals, contending that the trial court erred in failing to find that Part I, Article 22 of the New Hampshire constitution grants greater protection of the press than the First Amendment to the United States constitution because it does not require "state action" to enforce first amendment protections.

Hippo-Press also contends that the court erred when it failed to order the defendants to pay attorney’s fees under 42 U.S.C. 1983 and 1988.