Can a homeowner be convicted of a drug felony, for allowing a tenant to sell drugs on the property, where the homeowner never possessed drugs, had no control over the drugs, and had no involvement in the tenant's illegal drug distribution scheme? This week, the NH Supreme Court answered: Yes.
In State of NH v. Lisa Fedor, No. 2014-0607, the Manchester Police prosecuted Ms. Fedor using a little-known weapon on the war on drugs, a statute entitled "Maintaining a Common Nuisance." The prosecution alleged that Ms. Fedor allowed her property to be used by a tenant for the purpose of selling drugs.
The jury acquitted Ms. Fedor of being part of a conspiracy to sell drugs. It appears that no one even claimed that she used illegal drugs. However, according to the police, she admitted to renting a room in her house to a man who sold drugs.
That man, Robert Doane, according to the court's opinion, had sold drugs in the past to Lisa's boyfriend in the past. Lisa and her boyfriend rented a room in the house to Doane. Their new tenant then sold drugs "on the premises" - on the property, but not within the residence. A dozen times, witnesses observed Doane come out of the residence, out to the street, and sell heroin to people in cars stopped out in front of the house. It appeared that he kept the drugs in his padlocked bedroom - a place that Fedor could not access.
It would be clear to anyone that Doane committed serious crimes here. But Lisa Fedor?
A "Maintaining a Common Nuisance" statute, RSA 318-B:16, provides that:
Any store, shop, warehouse, dwellinghouse, building, vehicle, boat, aircraft, or any place whatever which is resorted to by drug-dependent persons for the purpose of using controlled drugs or which is used for the illegal keeping or selling of the same shall be deemed a common nuisance. No person shall knowingly keep or maintain such a common nuisance.
The New Hampshire Supreme Court held that although there was no evidence that Doane sold drugs inside the house, his conduct nevertheless amounted to using the house for the selling of drugs. A police officer claimed that Fedor admitted that she knew Doane was selling drugs outside the residence. Fedor denied this, but the jury believed the officer, not her. Accordingly, the court upheld Lisa Fedor's conviction for "Maintaining a Common Nuisance."
We all know that landlords can be held civilly liable for allowing dangerous situations to persist, like lead paint, or slippery sidewalks. But now we know that they can be held criminally liable - knowingly renting a room to a drug dealer.
Add this statute to the list of little-known ways that the Feds, and the States, can prosecute people for drug involvement. For example, it is a federal felony for a drug-dependent person to possess a firearm, even if that person has never been convicted of a drug crime, and even if the drug they are using is legal in their State. It's my distinct feeling that many frequent pot smokers in Washington, Oregon, Colorado, or Alaska - States that have legalized marijuana - would be very surprised to know that their 2d Amendment rights have gone up in smoke.
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