CONCORD — The New Hampshire Supreme Court has vacated drug convictions of a man in Rockingham County Superior Court and sent the case back to Judge N. William Delker to determine if the defendant’s consent to search was valid.
The defendant, Stephen Socci, had appealed Delker’s order refusing to suppress evidence that Socci maintained was illegally obtained.
Socci, who was convicted in a bench trial, argued the evidence was the result of an unlawful search and his subsequent consent to search was given involuntarily and/or tainted by the prior unlawful search.
On Aug. 10, 2011, officers from the Rockingham County Drug Task Force went to Socci’s home after learning he allegedly had purchased from a Massachusetts company equipment customarily used for growing marijuana. The officers intended to conduct a “knock and talk” in order to secure the defendant’s consent to search the premises.
Socci argued that when he arrived home, after being called by his wife, the officers threatened to take their children away and said they already had evidence of the growing operation. Socci then signed the consent.
But Socci argued in his suppression motion that the “evidence” was illegally obtained because while three officers went to the house door, another officer conducted an illegal search.
That officer, who said he was “overcome immediately by the fresh smell of fresh growing marijuana” after exiting his vehicle in the driveway, had, without permission, walked around the garage, noting the windows were covered, there was mildew on the doors and windows, an electric meter was spinning quickly and there was a smoke stack and blower. He communicated that information to the officers inside the house.
In remanding the case, the justices said the trial court must determine “whether the defendant gave “(a) voluntary consent free of duress and coercion … the evidence obtained by the purported consent should be held admissible only if it is determined that the consent was both voluntary and not an exploitation of the prior illegality.”