State of New Hampshire v. Hasaam-Udeen Muhammad

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2016-0597, State of New Hampshire v. Hasaam-
Udeen Muhammad, the court on May 26, 2017, issued the
following order:

Having considered the briefs and record submitted on appeal, we conclude
that oral argument is unnecessary in this case. See Sup. Ct. R. 18(1). We affirm.

The defendant, Hasaam-Udeen Muhammad, appeals an order of the
Superior Court (Kissinger, J.) denying his motion to suppress evidence seized in
connection with a motor vehicle stop. He contends that the trial court: (1) erred
by finding that the police officer who stopped him smelled marijuana and a
masking agent when the officer initially spoke with him; and (2) violated his State
and Federal Constitutional rights by not finding that “[t]he police illegally seized
[him] when they reengaged him by asking him questions almost immediately
after telling him he was free to go.” We first address the defendant’s argument
under the State Constitution and rely on federal law only to aid in our analysis.
State v. Ball, 124 N.H. 226, 231-33 (1983).

When reviewing a trial court’s order on a motion to suppress, we accept the
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. Blesdell-Moore,
166 N.H. 183, 187 (2014).

We first address whether the trial court erred in finding that the officer
smelled marijuana and a masking agent when the officer first spoke with the
defendant. The defendant contends that the officer’s testimony was “not
believable” because: (1) the officer was aware of two anonymous tips that the
defendant was involved in the sale of unspecified drugs; (2) the defendant
testified that the officer made a U-turn to place his cruiser several vehicles
behind the defendant at the traffic light; (3) a second officer arrived at the scene;
and (4) the officer did not question the defendant regarding the odor until after
giving him a written traffic-violation warning and telling him that he was free to
leave.

When reviewing a trial court’s decision on a motion to suppress, we defer
to the trial court’s credibility determinations unless no reasonable person could
have come to the same conclusion after weighing the testimony. State v.
Livingston, 153 N.H. 399, 402 (2006). In this case, the trial court credited the
officer’s testimony, which was supported by the defendant’s admission that he
had a marijuana cigarette and by the discovery of a masking agent inside the
vehicle. We cannot conclude that no reasonable person could have come to the
same conclusion as the trial court. See id.

We next address whether the trial court erred by not granting the
defendant’s motion to suppress. A traffic stop is a “seizure,” even though the
purpose of the stop is limited and the resulting detention quite brief. State v.
McKinnon-Andrews, 151 N.H. 19, 22 (2004). Such a stop is lawful when the
police have an articulable suspicion that the person detained has committed or is
about to commit a crime. Id. The scope of such an investigative stop must be
carefully tailored to its underlying justification, must be temporary, and must
last no longer than is necessary to effectuate its purpose. Blesdell-Moore, 166
N.H. at 187.

The scope of a stop may be expanded to investigate other suspected illegal
activity only if the officer has a reasonable and articulable suspicion that other
criminal activity is afoot. Id. Whether the detention goes beyond the limits of a
lawful investigatory stop depends upon the facts and circumstances of the
particular case. Id. The State bears the burden of establishing that the scope of
an otherwise valid stop was not exceeded. State v. Morrill, 169 N.H. ___, ___
(decided Mar. 10, 2017).

In this case, the defendant argues that he “was seized twice”: once when
the officer stopped him for the traffic violation and, again, when the officer asked
him a question after telling him that he was free to leave and “taking one step
back towards his cruiser.” The defendant acknowledges that, based upon the
odor the officer perceived, the officer had a reasonable suspicion to justify
questioning him about it.

The defendant, relying exclusively upon Commonwealth v. Nguyen, 116
A.3d 657, 669 (Pa. Super. Ct. 2015), contends that “[a] second seizure must be
justified by reasonable suspicion that was developed after the end of the first
seizure.” However, following that case, the Pennsylvania Superior Court explicitly
repudiated such a requirement. It noted that this “position has not been
accepted in the federal system.” In Interest of A.A., 149 A.3d 354, 360 (Pa.
Super. Ct. 2016) (quoting Com. v. Kemp, 961 A.2d 1247, 1260 (Pa. Super. Ct.
2008)). Instead, it held that

in situations where an officer ends a lawful traffic stop, but then re-
initiates an investigative detention of an occupant of that vehicle, we
apply the “totality of the circumstances” test to assess whether the
officer possessed reasonable suspicion. Under that test, the officer’s
reasonable suspicion to conduct the subsequent detention may be
premised on facts gathered during the valid traffic stop, although the
officer cannot solely rely upon the initial traffic violation to prolong
the detention; they need other information supporting reasonable
suspicion.

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Id. at 361 (citations and quotation omitted).

The Pennsylvania Superior Court reasoned:

It is simply analytically inconsistent for a defendant to argue that
“free-to-go” language does not step down the police interdiction from
a seizure to a mere encounter, but that if an officer does utter those
words, all facts ascertained lawfully by the police officer during the
traffic stop are erased for purposes of analyzing whether the
continued detention was permissible. If the seizure achieved
through the traffic stop never ended, and if thereby the defendant
remained subject to a continuing detention when the traffic
infraction was processed, then there is no reason why the facts
observed by the officer during the constitutionally-proper traffic stop
cannot be used to justify the continuation of the detention. If it is a
continuing detention for the defendant, despite the free-to-go
language, then by the same logic, it is a continuing detention for
purposes of the police investigation.

Id. at 360 (quoting Kemp, 961 A.2d at 1258 (citations omitted)).

The defendant argues that, if police may seize a suspect “again any time
they had a reasonable suspicion they did not explore during an initial stop,” they
might seize the suspect repeatedly. However, a temporary detention, or a so-
called “Terry stop,” is lawful if the police have an articulable suspicion that the
person detained has committed or is about to commit a crime. McKinnon-
Andrews, 151 N.H. at 22; see Terry v. Ohio, 392 U.S. 1, 21 (1968). We note that
the defendant here does not allege that the officer was harassing him.

Accordingly, we need not address whether the defendant was seized once
or twice because the officer had a reasonable and articulable suspicion that other
criminal activity was afoot, which was sufficient to justify a second seizure, if one,
in fact, occurred. See McKinnon-Andrews, 151 N.H. at 22.

The Federal Constitution offers the defendant no greater protection than
does the State Constitution under these circumstances. See id. at 27.
Accordingly, we reach the same result under the Federal Constitution as we do
under the State Constitution.

Affirmed.

Dalianis, C.J., and Hicks, Lynn, and Bassett, JJ., concurred.

Eileen Fox,
Clerk

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