EagleTribune.com, North Andover, MA

October 5, 2012

Top NH court throws out drug convictions for illegal search

By Lynne Tuohy Associated Press
The Eagle-Tribune

---- — CONCORD, N.H. (AP) — The state Supreme Court yesterday reversed a man’s drug convictions after saying police went beyond the bounds of a search warrant they obtained to check for guns in the home he shared with his mother, a convicted felon.

The court reversed 20-year-old Logan Schulz’s convictions on being an accomplice to cocaine possession and to possession with intent to sell, saying the search that detected the cocaine was unconstitutional.

Haverhill police Officer Brandon Alling went to the home of Schulz and his mother, Karla Schulz, on Oct. 29, 2010, to serve her with a warning against trespass and harassment. While at the home in Haverhill, about 75 miles north of Concord, Alling noticed three long guns, which would be unlawful for Karla Schulz to possess as a convicted felon if they were anything more powerful than a BB gun.

Two days later, police obtained a warrant to search the home for firearms. They confirmed that all three guns Alling had seen near a staircase were BB guns. They asked Logan Schulz if there were any other guns in the house, and he said he had a muzzle loader rifle in his bedroom and took them there to show it to them.

While in the bedroom, Alling noticed a lock box big enough to contain a handgun and instructed Logan Schulz to open it, noting they could do it by force if they wanted to. Schulz and his mother objected, saying police had no reason to believe they had a handgun. Karla Schulz then became upset and admitted the lock box contained cocaine and cash, the court said in recounting what happened.

Police obtained a second warrant to search the box and obtained the evidence used to convict Logan Schulz, after the trial judge denied a motion by his lawyer to suppress the evidence.

The Supreme Court, in its unanimous ruling, said the police were required to stop their search after discovering that the three guns, the probable cause underlying the search warrant, were BB guns and weren’t illegal for Karla Schulz to possess. The court noted that Alling, who initially saw the guns and prepared the search warrant application, should have recognized that the premise upon which the search warrant was obtained was a mistake.

“As a result, the continued search of the defendant’s home under authority of the warrant was unreasonable,” Justice James Bassett wrote, in his first opinion for the court.

Bassett, a seasoned lawyer whose areas of expertise include constitutional law, was sworn in in July.

The court ruled the evidence had to be suppressed because the search was unconstitutional. It remanded the case to the trial court.

The ruling could lead to the reversal of Schulz’s mother’s conviction as well, if she had moved to suppress the evidence at her trial, said attorney Stephanie Hausman, who represented Logan Schulz on appeal. Karla Schulz is serving a 2 1/2-to-6-year sentence for possession and sale of cocaine.

Hausman said she does not represent the mother and has no knowledge of her case.

Logan Schulz was free on bond pending the outcome of the appeal, she said.

Assistant Attorney General Elizabeth Woodcock, who argued Logan Schulz’s case for the state, said she does not believe the decision can be applied retroactively to Karla Schulz’s case unless she challenged the search at the trial court level.