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Nashua man wants evidence suppressed in baby overdose case, citing unlawful search

By KIMBERLY HOUGHTON
Union Leader Correspondent

May 22. 2018 11:19PM




CHARLES DAYE

NASHUA — Charles Daye, the Nashua man accused of charges related to a drug overdose of a one-year-old child in the Gate City, is arguing in court documents that police unlawfully searched his apartment without a warrant.

Prosecutors, however, maintain there were exigent circumstances and police faced a compelling need to take immediate action, stressing the delay in obtaining a warrant would have presented a substantial threat to life.

After the baby suffered a respiratory arrest on Sept. 1, 2017, and was being treated at an area hospital, police were dispatched to the child’s home on Elm Street to secure it as a possible crime scene.

“While they knew (the victim) was in serious medical difficulty, they had no information that his condition was the result of a crime and, therefore, no probable cause,” said attorney Elliot Friedman in court records on file at Hillsborough County Superior Court.

Friedman claims in court documents that even as the police applied for a warrant, they did not have enough information to convince “a person of ordinary caution” that the apartment contained evidence of a crime.

Prosecutors argue that Nashua police conducted a lawful, warrantless search based on probable cause and exigent circumstances.

“Officers had probable cause to enter the defendant’s apartment. Under the totality of the circumstances, there was a sufficient factual basis for the officers to enter the defendant’s apartment not only to secure the potential crime scene, but also to find the source of the child’s serious medical condition … it was readily apparent that (Daye) was involved in the incident resulting in the child’s medical condition,” Michele Battaglia, assistant county attorney, writes in court documents.

Daye has filed a motion seeking to suppress evidence seized from his apartment, including a torn plastic bag, a needle and powder on the floor and on bedding.

A court hearing will be held Friday to determine whether the evidence seized should be suppressed.

Daye, 26, previously of 89 Elm St., Apt. C, is facing charges of reckless conduct, second-degree assault, falsifying physical evidence, endangering the welfare of a child and possession of cocaine. Daye was in charge of watching the baby, now 2-years-old, at the time of the drug overdose, according to court records.

The child was unable to maintain his own airway due to the severity of his respiratory distress and he was transferred from Southern New Hampshire Medical Center to Boston Children’s Hospital for medical treatment, according to court documents.

Lab results from the boy’s urine tested positive for cocaine, benzodiazepines and fentanyl, according to a Boston physician. Blood results for the child also tested positive for fentanyl, Dr. Hiu-Fai Fong of Boston Children’s Hospital told authorities.

The baby was discharged from the Boston hospital four days after his overdose.

Meanwhile, prosecutors are asking the court to impose a suspended sentence related to a separate case in 2013. At that time, Daye pleaded guilty to first-degree assault for striking a 17-year-old in the face, fracturing the teen’s sinus bone; he was sentenced to 5-10 years in prison, all suspended for five years from his release on a different stalking sentence that ended on Dec. 30, 2013.

“Thus, he is squarely within the window during which the state may move to impose the sentence,” Battaglia writes in court records.

NashuaNews@unionleader.com


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