State of New Hampshire v. David Larose

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2014-0254, State of New Hampshire v. David
Larose, the court on October 9, 2015, issued the following order:

Having considered the briefs and oral arguments of the parties, the court
concludes that a formal written opinion is unnecessary in the case.

The defendant, David Larose, appeals his convictions for possession of a
controlled drug and transporting drugs in a motor vehicle, see RSA 318-B:2, I
(2011); RSA 265-A:43 (2014), arguing that the Superior Court (Delker, J.) erred
in denying his motion to suppress evidence obtained as a result of a traffic
stop. The defendant contends that the court erred because: (1) the scope of the
stop was impermissibly expanded; and (2) the warrantless canine sniff of his
vehicle was an unreasonable search. We vacate the suppression order and
remand.

We set forth the following abbreviated facts as recited in the trial court’s
order. On March 3, 2013, State Trooper Harrington was on patrol in the Salem
rest area of Interstate 93, a location he knew from training and experience to
be a high crime area. Harrington testified that people who purchase drugs in
Massachusetts often stop at the Salem rest area to use them.

While patrolling the rest area, Harrington observed a vehicle with New
Hampshire license plates parked far from the facilities and other cars which, in
his experience, was unusual. Harrington noticed that the vehicle did not
display an inspection sticker, and he observed no passengers inside. While
conducting a computer check of the vehicle’s license plate number, Harrington
saw a man, later identified as the defendant, get out of the vehicle, walk past
the “rest area,” and return to the vehicle. The defendant opened the vehicle
door, put on a “button-up” shirt, and drove out of the rest area. Harrington
followed the vehicle as it re-entered Interstate 93. The defendant then exited
the highway at a speed twelve miles per hour over the posted speed limit.
Harrington activated his emergency lights, and the defendant pulled over in a
mall parking lot.

Harrington approached the vehicle and asked for the defendant’s license
and registration. As the defendant handed them over, Harrington noticed track
marks on his hands. Harrington then asked the defendant if there was
“‘anything in the vehicle [he] need[ed] to know about,’” to which the defendant
responded, “‘No, but I do have a license to carry.’”

At some point, Harrington asked the defendant to step out of his vehicle.
Harrington sought permission to pat frisk the defendant, and the defendant
agreed. After the frisk revealed nothing, Harrington asked for permission to
look inside the vehicle. The defendant again agreed. Although Harrington saw
no weapons in the vehicle, he observed a “plastic knot” that he believed to be
associated with drug packaging.

Harrington then conducted a records check, which revealed nothing of
note. At this time, a second state trooper arrived. Harrington returned the
defendant’s license and registration. Harrington then asked the defendant why
he had been at the rest area and about the track marks on his hands.
Skeptical of the defendant’s responses, Harrington asked for consent to search
the defendant’s vehicle. The defendant declined to give consent.

Harrington then called for the assistance of a drug sniffing dog. After the
dog “alerted” on the van, Harrington explained to the defendant that he would
seize the vehicle and apply for a search warrant. When the defendant stated
that he needed the vehicle to get to work, Harrington said that it would
expedite the process if the defendant consented to the search. The defendant
signed a written consent-to-search form, and the search uncovered drugs and
drug paraphernalia.

The defendant filed a motion to suppress the evidence obtained from his
vehicle, which the trial court denied. Reserving the right to appeal the
suppression ruling, the defendant waived his right to a jury trial and was
convicted at a trial on stipulated facts. He now appeals.

When reviewing a trial court’s ruling on a motion to suppress, we accept
the trial court’s factual findings unless they lack support in the record or are
clearly erroneous, and we review its legal conclusions de novo. State v. Dalton, 165 N.H. 263, 264 (2013), cert. denied, 134 S. Ct. 1313 (2014). The defendant
contends that the trial court erred in denying his motion to suppress “because
the trooper lacked reasonable suspicion to expand the scope of the stop and
because the drug dog entered [his] car.”

With respect to the first claimed error, the defendant contends that the
trial court erred in finding that the only inquiry Harrington made of him before
the frisk was about the contents of his vehicle. He argues:

The court erred in failing to find that Harrington’s inquiries into
Larose’s origin, destination, and activities in the rest area occurred
during their initial interaction and preceded Harrington’s discovery
of the plastic knot. Consequently, the court failed to find that
Harrington’s initial inquiries not related to the motor vehicle
violations were not supported by reasonable suspicion of drug
possession.

The trial court’s factual narrative does seem to imply that the only question
posed to the defendant prior to his being asked for consent to pat frisk was

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whether the vehicle contained anything of which Harrington should be made
aware. The court’s order states:

Trooper Harrington approached the vehicle on foot, and asked
the defendant for his driver’s license and registration. As the
defendant handed over the documents, Trooper Harrington noticed
“track marks” on the defendant’s hands. Upon making this
observation, Trooper Harrington asked the defendant if there was
“anything in the vehicle [he] need[ed] to know about.” The
defendant replied “No, but I do have a license to carry” which
Trooper Harrington believed was a reference to a pistol and
revolver permit.

Trooper Harrington asked for permission to pat frisk the
defendant and the defendant acquiesced.

(Footnote omitted.)

The trooper’s testimony on direct is consistent with this sequence of
events. On cross-examination, however, defense counsel indicated that he
thought Harrington’s testimony was “a little bit different[] than” the narrative in
the police report that Harrington wrote shortly after the incident. Counsel
asked, “I just wonder if you had the sequence right, because in your narrative
you indicate that before that conversation [about the vehicle’s contents] takes
place, that you ask Mr. Larose about his travels.” Harrington responded, “Yes,
I probably did” and later stated, “That’s accurate.” It is unclear whether the
trial court discounted or disbelieved Harrington’s testimony on cross-
examination or simply failed to make a finding on that issue.

Compounding the lack of clarity in the factual timeline is the trial court’s
failure to address one of the defendant’s arguments. In addressing the
defendant’s contention that Harrington impermissibly expanded the scope of
the traffic stop, the court stated: “The defendant first argues that the police
impermissibly prolonged the detention by asking the defendant for consent to
conduct a pat search and a visual search of the car for weapons.” The
defendant, however, maintained that the scope of the stop was illegally
expanded at an earlier point in time. In his motion to suppress, he argued that
“[i]mmediately after requesting Mr. Larose’s license and registration, Trooper
Harrington unlawfully expanded the scope of the stop by questioning Mr.
Larose about his travels that afternoon, and asking why he stopped at the rest
area.” The trial court neither addressed this argument, nor explicitly
determined, as a factual matter, whether at that point in the detention the
defendant was questioned about his travels, or his reason for stopping at the
rest area.

The scope of an investigatory stop “must be carefully tailored to its
underlying justification, must be temporary, and last no longer than is
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necessary to effectuate the purpose of the stop.” State v. Blesdell-Moore, 166
N.H. 183, 187 (2014) (quotation and brackets omitted).

To determine whether the scope of an otherwise valid stop has
been exceeded by questioning, we must determine whether: (1) the
question is reasonably related to the initial justification for the
stop; (2) the law enforcement officer had a reasonable, articulable
suspicion that would justify the question; and (3) in light of all the
circumstances, the question impermissibly prolonged the detention
or changed its fundamental nature.

Id. Determination of whether the scope of the stop was impermissibly
expanded at the point in time claimed by the defendant requires a
determination of what questions were asked of him at that point. Because the
trial court did not clearly address this issue, we vacate its suppression order
and remand for the court to make or clarify any requisite factual findings and
to rule upon the defendant’s expansion argument in the first instance.

The defendant also argues that the trial court’s ruling that the canine
sniff of his vehicle did not require a warrant “appears to be based on an
incorrect factual finding that the dog sniff in this case was of the exterior of
Larose’s car.” The court made no factual findings about the canine sniff other
than to state that the dog “alerted” on the vehicle. The court did, however, cite
federal law for the proposition that “the use of a drug dog to sniff the outside of
a motor vehicle does not require a search warrant.”

The defendant contends that the police “command[ed] the drug dog to
jump in the [vehicle’s] window.” The State counters that the defendant
misinterprets Harrington’s testimony and asserts that the dog merely followed
the scent into the van. Again, the testimony is not entirely clear. On direct
examination, Harrington testified:

Q Okay. So what happened when the K-9 got there?

A After the K-9 got there, I basically briefed the K-9 handler on
the situation and he deployed his K-9 around the vehicle.

Q And what was the result of that deployment?

A After the deployment was over, the K-9 officer came up to me
and basically said that he had a positive alert on the van.

On cross-examination, Harrington testified:

Q And you indicated that you saw at one point the dog was
standing on its hind legs and sniffing inside the vehicle?

A Correct.
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 Q So presumably the driver’s window is down, the dog’s got his
paws up and it’s sniffing inside the vehicle, is what it sounds like,
right?

A Yes.

Q You then observe the dog jumped into the van and head
directly to the middle of the rear seat?

A Yes.

Q So now the police dog is operating at the, you know, the
command of his police handler, has now leaped into the vehicle?

A Correct, yeah.

(Emphasis added.)

We leave it to the trial court, which heard the testimony and observed the
witness firsthand, to make explicit factual findings as to whether the dog
entered the vehicle at the command or behest of its handler and to rule, in the
first instance, whether the dog sniff constituted a warrantless search.

Vacated and remanded.

DALIANIS, C.J., and HICKS, CONBOY, LYNN and BASSETT, JJ.,
concurred.

Eileen Fox,
Clerk

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