NO. 00-S-1067








The defendant, Brett K. Cronin, has been indicted by the grand jury on a charge of aggravated driving while intoxicated. Because the indictment alleges that, while so driving, Cronin caused a collision resulting in serious bodily injury, the offense is a class B felony. See RSA 265:82-a, I(b); 265:82-b, I(c) (Supp. 2000). Presently before the court are the following pretrial motions filed by the defendant: (1) Motion to Exclude Results of Blood Alcohol Test (Doc. #4); (2) Motions to Suppress Statements Obtained by Trooper Harbeck (Doc. #5) and Trooper Dexter (Doc. #8); and (3) Motion to Suppress the Results of a Motor Vehicle Examination (Doc. #6).1 The court held an evidentiary hearing on these motions on November 21 and December 20, 2000. After reciting the pertinent facts, the court addresses each of the motions below.


I. Factual Background

At approximately 3:00 p.m. on March 18, 2000, New Hampshire State Police Trooper Michael Dexter was dispatched to an automobile accident on Route 93 south in Manchester. When Dexter arrived at the scene, he observed a 1995 Mitsubishi Montero sport utility vehicle, bearing Massachusetts registration number 5537BN, resting on its passenger side in the left lane of the roadway. Cronin was sitting in the roadway, and fire department personnel, who had arrived at the scene before Dexter, were in the process of attempting to extricate another individual, Vicky Tomasello, from the vehicle. As Dexter approached the overturned vehicle, he detected a strong odor of marihuana coming from the vehicle. The trooper also observed marihuana residue on the inside passenger door of the vehicle, cigarette rolling papers on the ground near the passenger side window, and a hand rolled marihuana cigarette on the ground near the passenger door of the vehicle.

Approximately 10-15 minutes after Dexter arrived, Tomasello was removed from the vehicle and transported to Elliot Hospital; she had sustained very serious injuries to her arm in the accident. Cronin, who had sustained less serious, non-life-threatening injuries, also was taken to Elliot Hospital. Dexter briefly spoke with Cronin in the back of the ambulance just before she was transported to the hospital, and in so doing the officer detected an odor of marihuana coming from her body.

Shortly after Cronin and Tomasello were taken to the hospital, Trooper Craig Harbeck was dispatched to the hospital to identify the driver of the vehicle. Hospital personnel directed Harbeck to Cronin's bed in the emergency room and, after obtaining permission from the attending nurse to speak with Cronin, Harbeck interviewed Cronin for approximately 15 minutes. Harbeck did not advise Cronin of her Miranda rights prior to the start of the interview. Although she appeared somewhat uncomfortable because of her injuries, Cronin was not in great pain and she had no difficulty in understanding the officer's questions or in communicating with him. During the interview, Harbeck noted that Cronin's eyes were glassy and blood shot, and at times during the interview she was crying.

In response to Harbeck's questions, Cronin acknowledged that she had been the driver of the Montero and that Tomasello had been a passenger. Cronin stated that at the time of the accident she and Tomasello were returning from Concord, where Cronin had picked out a wedding dress. While traveling south on Route 93 in the high speed lane, Cronin momentarily looked down; when she looked up, she saw that the vehicle was swerving into the other lane, and as she attempted to correct her steering, she lost control of the vehicle. Cronin denied that she had consumed any alcohol prior to the accident, but she admitted to smoking a "joint" of marihuana with Tomasello around noontime of that day. When asked whether she had any marihuana on her person, Cronin removed a small plastic baggie of marihuana from beneath the bed covers and gave it to Harbeck. Near the end of the interview, Cronin asked Harbeck if she was going to be arrested. Harbeck told her not to worry for the time being and that he would speak with her about that matter later.

At some point after Trooper Harbeck completed his interview of Cronin, Trooper Dexter arrived at the hospital. Dexter and Harbeck spoke briefly, during which Harbeck related that Cronin admitted to being the driver of the vehicle and to smoking marihuana earlier in the day. Harbeck also informed Dexter that Cronin had surrendered a baggie of marihuana. Harbeck told Dexter that he had not placed Cronin under arrest.

Dexter then interviewed Tomasello for approximately 2-3 minutes. With Tomasello's permission, Dexter tape recorded this interview. Tomasello admitted that she had smoked marihuana earlier in the day; she denied that Cronin had done so.

Dexter next interviewed Cronin. Prior to doing so, Dexter spoke to Dr. Lima, who was treating Cronin in the emergency room, and obtained his permission to conduct the interview. Dr. Lima indicated that Cronin had sustained a hand injury and was a candidate for microsurgery. Dexter spoke to Cronin for approximately 15 minutes. He did not administer Miranda warnings prior to commencing the interview, but he did obtain Cronin's permission to tape record the interview. Cronin provided Dexter with essentially the same explanation as she had given Harbeck as to the manner in which the accident happened. She admitted to smoking marihuana earlier in the day, but denied that she had been smoking marihuana at the time of the accident.

At the conclusion of the interview, Dexter placed Cronin under arrest for a felony aggravated DWI offense. Dexter then produced two administrative license suspension (ALS) forms, one for felony level offenses and the other for misdemeanor and violation level offenses. He read Cronin her rights pursuant to both forms, but explained to Cronin that because she was being charged with a felony level offense, she had no right to refuse to submit to a chemical test of her blood. Cronin orally indicated that she understood her ALS rights, but she did not sign the form because of the injuries to her writing hand. Two blood samples were subsequently drawn from Cronin, one at 4:50 p.m. and the other at 6:50 p.m. on March 18, 2000. No search warrant was obtained prior to taking either sample. The blood samples were subsequently analyzed by the state laboratory and revealed the presence of tetrahydrocannabinol (THC), the active ingredient of marihuana, in Cronin's blood.

On March 21, 2000, Trooper Dexter obtained a search warrant for the Montero from the Manchester District Court. The warrant authorized the state police to conduct a complete examination of the vehicle and all its components in order to determine whether any mechanical defects could have been a contributing cause of the accident. Pursuant to the warrant, Trooper Gary Waldron examined the vehicle and prepared a report of his findings.

II. Motions to Suppress Statements

At the hearing, the defendant's counsel advised the court that Cronin does not contend she was in custody at the time she was interviewed by Trooper Harbeck or Trooper Dexter. That being the case, the fact that the interviews were not proceeded by Miranda warnings is not of controlling significance, although it obviously is a factor to be considered in assessing whether the statements she made during each interview were voluntary. Cronin claims that the statements were involuntary because she was in great pain and was being treated for serious injuries at the time the interviews occurred. The court rejects this argument.

Where a defendant challenges the voluntariness of a statement made to a law enforcement officer, the State bears the burden of proving voluntariness beyond a reasonable doubt. See, e.g., State v. Phinney, 117 N.H. 145, 146-47 (1977). This determination must be based upon the court's examination of "the totality of the surrounding circumstances, including the characteristics of the accused and the details of the interrogation." State v. Portigue, 125 N.H. 352, 364 (1984); see State v. Damiano, 124 N.H. 742, 747 (1984). Although a person's physical condition at the time the statement is obtained is obviously an important factor to be considered in assessing voluntariness, see Mincey v. Arizona, 437 U.S. 385, 399-401 (1978), the mere fact that the person is experiencing some pain or distress is not sufficient to render her statement involuntary. See Evans v. Demosthenes, 98 F.3d 1174, 1176 (9th Cir. 1996) (confession voluntary despite defendant's writhing and complaints of stomach pain because confession made after the pain had subsided); Pagan v. Keane, 984 F.2d 61, 63 (2d Cir. 1993) (statement made in hospital on day after surgery for gunshot wound not involuntary where defendant was "awake, alert and oriented" at the time).

In this case, the court finds beyond a reasonable doubt that the statements made by Cronin during the interviews conducted by Trooper Harbeck and Trooper Dexter were voluntary. While Cronin undoubtedly was upset and experiencing some discomfort during both interviews, these factors did not rise to the level where they interfered with her ability to think, reason or understand, or to make a voluntary choice to speak with each officer. The other circumstances of the interviews also dispel any notion of involuntariness. Each interview lasted no more than 15 minutes. Both officers checked with appropriate medical personnel before conducting the interviews, and were given authorization to proceed. And neither interview was conducted in a confrontational or aggressive manner.

For these reasons, the defendant's motions to suppress the statements she made to Troopers Harbeck and Dexter are both hereby denied.

III. Motion to Suppress Blood Tests

Cronin seeks to suppress the results of the blood tests on the ground that the statute under which the two blood samples were taken, RSA 265:93 (Supp. 2000), is unconstitutional. This statute provides that "when a collision results in death or serious bodily injury to any person, all drivers involved, whether living or deceased, and all deceased vehicle occupants or pedestrians involved shall be tested for evidence of alcohol or controlled drugs." Prior to 1996 the statute required that before any such test could be conducted of a living driver, the police had to have "probable cause to believe that the driver was under the influence of alcohol or a controlled drug when driving the vehicle." See RSA 265:93 (1990). However, by Laws 1996, ch. 267:1, the statute was amended to eliminate the requirement of probable cause to believe the driver was operating under the influence of alcohol or controlled drugs; in its place, the legislature merely required that there be probable cause to believe a living driver had caused the collision. Thus, as amended, the statute authorizes a law enforcement officer to compel a blood test -- which unquestionably amounts to a "search" under the Fourth Amendment, see Schmerber v. California, 384 U.S. 757, 767-68 (1966) -- in circumstances where there has been no showing of any likelihood that the test will produce evidence of criminal activity.

Citing Skinner v. Railway Labor Executives' Ass'n., 489 U.S. 602 (1989) and State v. Zeta Chi Fraternity, 142 N.H. 16 (1997), the State argues that the amended statute passes muster under the so-called "special needs" exception to the warrant and probable cause requirements. These cases stand for the proposition that, under both the Fourth Amendment and part 1, article 19 of the New Hampshire Constitution, a search may be constitutionally permissible "when special needs, beyond the normal needs of law enforcement, make the warrant and probable cause requirement impracticable." Zeta Chi, 142 N.H. at 28 (citations and internal quotations omitted). In State v. Tibedo, No. 98-S-581-F (Strafford Cty.Super.Ct. Jan.20, 1999), Justice Fauver rejected the argument that RSA 265:93 could be justified under the special needs exception. Justice Fauver noted that, unlike most of the cases applying the special needs exception, searches under RSA 265:93 are (1) carried out under the direction of a law enforcement officer and (2) have as their primary purpose the gathering of evidence for use in criminal proceedings against the driver. This court finds Justice Fauver's thoughtful and comprehensive Tibedo opinion persuasive, and hereby adopts its reasoning. Accordingly, the court finds that the blood samples taken from Cronin cannot be justified under RSA 265:93 or the special needs exception.

The above finding does not end the matter, however, because in this case the police officers clearly did have probable cause to believe that Cronin was operating the Montero while under the influence of a controlled drug. The combination of facts and circumstances including (1) Cronin's admission that she lost control of the vehicle, (2) the marihuana and rolling papers found in and around the vehicle at the scene of the accident, (3) the additional quantity of the drug surrendered by Cronin at the hospital, (4) her own and Tomasello's admission that they had smoked marihuana earlier in the day, and (5) -- of particular significance2 -- the smell of marihuana emanating from Cronin's person, certainly provide sufficient justification for a person of reasonable caution to believe that evidence of marihuana use would be found in Cronin's blood and that such evidence would aid in her prosecution. See State v. Houtenbrink, 130 N.H. 385, 393 (1988) ("[p]robable cause exists `if the man of ordinary caution would be justified in believing that what is sought will be found in the place to be searched") (citing State v. Doe, 115 N.H. 682, 685 (1975)).

Despite the existence of probable cause, Cronin argues that the blood samples must be suppressed because the police did not secure a search warrant before obtaining them. At the suppression hearing, the State's toxicologist, Alex Novak, Ph.D., testified that two forms of THC are detectable in the blood. The first, referred to in the laboratory reports as Delta-9-Carboxy-THC, remains in the bloodstream for at least several days. However, the presence of this form of THC indicates only that THC has been taken into the body at some point in the past; this form of THC is not indicative of impairment of physical or mental abilities, either at the time the blood sample was drawn or in the recent past. The second form of THC is referred to in the laboratory reports as Delta-9-THC. This latter form of the drug is the one that reflects the presence of the psycho-active ingredient that can cause impairment. Delta-9-THC peaks in the bloodstream very rapidly after ingestion, and then is fairly quickly absorbed into the fatty tissue of the body. Dr. Novak indicated that Delta-9-THC can fall below detectable levels as soon as two hours after the use of marihuana. Novak also indicated that as the level of Delta-9-THC decreases over time, the level of Delta-9-Carboxy-THC rises. In most people, the point where the decreasing level of Delta-9-THC equals the increasing level of Delta-9-Carboxy-THC occurs approximately 30 minutes after marihuana is ingested.

While Novak's testimony therefore supports the conclusion that there is the same need for prompt action in order to prevent the dissipation of evidence in the case of blood tests intended to detect the presence of marihuana as exists when the tests are designed to detect the presence of alcohol, this conclusion is not by itself sufficient to justify dispensing with a search warrant. In both State v. Wong, 125 N.H. 610, 630 (1984) and State v. Schneider, 124 N.H. 242, 246 (1983), the supreme court held that it was the combination of factors, including both the metabolization of alcohol by the body and the late night hour when the pertinent events occurred, which justified the warrantless search and arrest, respectively, at issue in those cases. Moreover, in State v. Leary, 133 N.H. 46, 49 (1990), the court specifically pointed out that "this court has not held that the metabolization of alcohol in the blood, in the absence of other special circumstances, creates a situation of sufficient exigency to justify the arrest of a suspect without a warrant."

In this case, the accident occurred in Manchester shortly before 3:00 p.m. on a Saturday afternoon, March 18, 2000. The State and the defendant have stipulated that, if called as a witness, the clerk of the Manchester District Court would testify that for approximately the last five years, that court has had in place a policy under which at least one judge of the court is provided with a beeper and is available to law enforcement officers 24 hours per day seven days per week. Notwithstanding this policy of assigning a "duty judge" to be "on call" nights and weekends, the investigating officers made no effort to contact the duty judge in an effort to obtain a search warrant prior to directing hospital personnel to take the blood samples.

Despite the fact that a duty judge was likely "on call" on the afternoon of March 18, 2000, the court is satisfied that, prior to taking the first blood sample, the officers did not have sufficient time to actually obtain a search warrant without running a significant risk that the evidence they had probable cause to search for would be irretrievably compromised in the interim. Given Dr. Novak's testimony that Delta-9-THC can fall below detectable levels in as little as two hours, it is clear that the officers had no more than approximately two hours within which to secure a warrant that would likely produce the most reliable results. But in actuality, the officers could reasonably have concluded that they had considerably less than two hours -- because the following intervals would have to be subtracted from this maximum period: (1) the time between the occurrence of the accident and the time the officers arrived on the scene; (2) the time it took for the police and fire personnel to secure the accident scene, interview witnesses at the scene, and extricate Tomasello from the vehicle; (3) the time it took for the officers to travel from the accident scene to the hospital; and (4) the time it took for the officers to interview Tomasello and Cronin at the hospital. In addition to the delay attributable to these factors, the officers also could not be sure of exactly when Cronin had last ingested marihuana prior to the occurrence of the accident, and thus did not know the point from which the two hour "window" began to run. Finally, there is the time it would have taken to secure the warrant, including making contact and arranging to meet with the judge at his/her home or office, traveling back and forth from the hospital to that meeting place, and preparing the search warrant and supporting affidavit.

In sum, although the court regards this as a close case, under all the circumstances the court finds that the State has established by a preponderance of the evidence that there was a strong and legitimate need to take the first blood sample when it was drawn -- at or around 4:50 p.m. -- and that given the delay attributable to necessary investigative activities and other factors as described above, the offers acted reasonably in directing that that sample be taken without the benefit of a search warrant.

The same cannot be said, however, for the second blood sample. The second sample was not drawn until 6:50 p.m. two hours after the first sample had been taken. In the interim, the officers made no effort to seek a search warrant. The State has failed to sustain its burden of showing that there was insufficient time to secure a warrant prior to taking the second sample.

Accordingly, the defendant's motion to suppress is denied with respect to the first blood sample, but is granted with respect to the second sample.

IV. Motion to Suppress Results of Motor Vehicle Examination

In support of the warrant to search the Montero, Trooper Dexter submitted an affidavit consisting of five paragraphs. The first paragraph recited Dexter's position and summarized his training and experience as a police officer; the second and third paragraphs described the accident and noted that both occupants of the vehicle had sustained serious bodily injury; and the fifth paragraph explained the need to conduct an examination of the vehicle in order to rule out mechanical deficiencies as a possible cause of the crash. Only paragraph 4 offered any information suggesting that a crime may have been committed. Paragraph 4 stated:

That due to evidence collected as a result of this investigation, the driver of the 1995 Mitsubishi Montero Sport Utility vehicle, green in color, bearing Vehicle Identification Number JA4MR51M3SJ014701 and Massachusetts Registration Plate Number 5537BN, was arrested and stands to be charged with Aggravated Driving While Intoxicated, felony offense, (serious bodily injury resulting) and possession & transportation of controlled drugs.

Although the police undoubtedly possessed sufficient probable cause to obtain a search warrant for the vehicle, it is obvious that the warrant affidavit does not supply enough factual information for the magistrate to make a finding of probable cause. The affidavit presented to the district court judge in this case suffers from the same fatal flaw as the affidavit at issue in State v. Kellenbeck, 124 N.H. 760 (1984): it contains conclusions rather than facts. See id. at 765. In effect, the affidavit asked the judge to accept, based on the fact that Trooper Dexter had arrested the driver for aggravated DWI and possession and transportation of controlled drugs, Dexter's conclusion that there was probable cause to believe the driver had committed these offenses. But the whole point of the warrant requirement is to ensure that such conclusions and inferences are drawn by a neutral and detached magistrate, not by police officers "engaged in the often competitive business of ferreting out crime." Johnson v. United States, 333 U.S. 10, 13-14 (1948). The affidavit failed to state any underlying facts to show that there was probable cause to believe a criminal offense had been committed. Therefore, the results of the search conducted pursuant to the warrant must be suppressed.

V. Conclusion

To summarize, the defendant's motions to suppress are granted with respect to the results of the second blood sample and the results of the examination conducted pursuant to the search warrant. The motions are denied with respect to the results of the first blood sample and with respect to the statements made by the defendant to Troopers Harbeck and Dexter.




January 22, 2001              ______________________
                                            ROBERT J. LYNN
                                            Associate Justice


1 Defendant also had filed a Motion to Suppress Physical Evidence Obtained from an Inventory Search (Doc. #7). At the hearing on December 20, 2000, the defendant withdrew this motion.

2 Trooper Dexter's detection of the smell of marihuana emanating from Cronin's person when he encountered her in the ambulance before she was taken to the hospital is particularly important because it supports the inference that she had recently used marihuana.