State of New Hampshire v. Andrew Brown

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2017-0048, State of New Hampshire v. Andrew
Brown, the court on August 30, 2018, issued the following
order:

The following order, originally issued on July 3, 2018, is being reissued
to clarify the description of the officers’ observation as to the vehicles in the
parking lot, which appears in the paragraph beginning on the bottom of page 2
of this order.

Having considered the briefs and oral arguments of the parties, the court
concludes that a formal written opinion is unnecessary in this case. The
defendant, Andrew Brown, appeals his conviction, following a bench trial in the
Circuit Court (Moore, J.), on a violation-level charge of driving after suspension.
See RSA 263:64 (2014). He argues that the trial court erred by denying his
motion to suppress evidence obtained without a warrant on the basis that he
was not “seized” for purposes of Part I, Article 19 of the State Constitution at
the time of his encounter with law enforcement officers. We reverse and
remand.

Part I, Article 19 of the State Constitution guarantees every citizen “a
right to be secure from all unreasonable searches and seizures of his person,
his houses, his papers, and all his possessions.” A warrantless search is per se
unreasonable unless it falls within a judicially-crafted exception to the warrant
requirement. State v. Newcomb, 161 N.H. 666, 670 (2011). The State bears
the burden of proving that a particular warrantless search falls within an
exception. Id. In reviewing the trial court’s ruling on a motion to suppress, we
accept its factual findings unless they lack support in the record or are clearly
erroneous, and review its legal conclusions de novo. Id.

It is well-settled that a police officer may, within the parameters of Part I,
Article 19 of the New Hampshire Constitution, detain a motorist if the officer
has reasonable suspicion, based on specific, articulable facts taken with all
rational inferences from those facts, that the motorist has been, is, or is about
to be, engaged in criminal activity. State v. Dalton, 165 N.H. 263, 265 (2013);
see State v. McKinnon-Andrews, 151 N.H. 19, 22-23 (2004). Once the officer
has properly initiated the stop, the officer may ask a moderate number of
questions to determine the person’s identity and confirm or dispel his or her
suspicion. State v. Michelson, 160 N.H. 270, 275 (2010). In determining the
lawfulness of an investigatory stop, we engage in a two-part analysis: first, we
consider whether the defendant in fact was “seized” at the time of the
encounter, and second, we examine whether the officer had reasonable
suspicion at the time that the defendant was, had been, or was about to be,
engaged in criminal activity. State v. Steeves, 158 N.H. 672, 675 (2009).

A “seizure” of a person occurs for purposes of Part I, Article 19 when the
police officer, by means of physical force or some show of authority, has in
some way restrained the liberty of a citizen. Id. When determining whether a
seizure has occurred, we examine whether, in view of all of the circumstances
surrounding the encounter, a reasonable person would have believed that he or
she was free to leave or terminate the encounter with law enforcement. Id.;
State v. Licks, 154 N.H. 491, 493 (2006). Circumstances that might denote
such a show of authority include the threatening presence of several officers,
an officer’s display of a weapon, physical contact by an officer with the
defendant, or the officer’s use of language or a tone of voice demonstrating that
compliance with the officer’s requests is compelled. Steeves, 158 N.H. at 675.
Although merely approaching a stopped motorist and requesting identification
does not amount to a seizure for purposes of Part I, Article 19, the manner in
which officers approach the motorist may give rise to a reasonable belief that
the motorist is not free to leave. See id. at 675-76 (observing that pulling
behind a stopped vehicle does not, alone, constitute a seizure, but that doing
so with blue lights engaged will often constitute a seizure because the motorist
is not free to ignore the flashing blue lights).

The evidence in this case establishes that, at the time of the defendant’s
encounter with law enforcement, he was parked in a parking lot at
approximately 9:30 p.m. The lot was one of two interconnected lots servicing a
business, described by the law enforcement officer who initiated the encounter
as an “upper rear lot” and a “lower lot.” The defendant was seated in the
driver’s seat of a car parked in the back of the upper lot, with two other
passengers. The parking space was bordered by a wooded tree line and the
upper lot was otherwise empty, with the exception of a sedan that was parked
next to the passenger’s side of the defendant’s car. An egress from the upper
lot to a public highway existed to the left of the defendant’s vehicle and on a
line perpendicular with the vehicle’s location. The lower lot and business were
located in the direction that the two cars were pointed.

At that time, two Nashua police officers were conducting a routine patrol
of the parking lots in an unmarked cruiser because the area had a known
association with narcotic and prostitution-related offenses. Both officers were
in plain clothes and wore badges that were clearly visible in the center of their
chests. The defendant’s car caught the officers’ attention because all of the
cars associated with the business were parked in the well-lit lower lot, while
there were no vehicles in the dimly-lit upper lot, other than the two cars. The
officers could see that the defendant’s car was occupied. They approached the
car in their cruiser, driving directly toward it with their headlights engaged and
stopped approximately ten feet from it in a slightly-offset and slightly-canted

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position so that the passenger-side front corner of the cruiser was facing the
driver-side front corner of the defendant’s car. Immediately upon stopping, the
officers exited the cruiser and approached the defendant in order “to achieve
tactical surprise.” The officer who was driving approached the defendant, while
his partner crossed directly in front of the defendant’s car and approached the
passenger-side of the defendant’s car.

The officer who was driving testified that he positioned the cruiser in this
manner so that, if necessary, he could use the cruiser’s engine block for cover
if the occupants of the defendant’s car fired upon them, and so that his partner
would have a direct view of the driver and other occupants when he exited. As
it was positioned, the cruiser was between the defendant’s car and the exit
from the upper lot to the public highway. The officer testified, however, that if
the defendant had so desired, he could have driven to his right and then either
continued traveling in that same direction to the lower lot and its exit points or
driven around the cruiser to the upper lot’s exit. If the defendant had driven
immediately to the left, he would have struck the cruiser.

During his direct examination, the defendant claimed that a second
police cruiser had arrived around the same time and was positioned facing the
passenger-side front corner of his car, although the officer had disputed this
assertion. When he was then asked whether, in light of the positioning of the
cruisers, he was “able to leave at all,” the defendant answered, “I could if I
wanted to. I mean it’s a small Dodge Dart. I could have whipped to the right,
but . . . I don’t have a license so I didn’t drive.” On cross-examination, when
asked whether he had testified on direct that he “could have left if [he] wanted
to,” the defendant answered, “No, I did not. If I wanted to, I’d have to hit a cop
car or turn real sharp with a small Dodge Dart. . . . That’s what I said.”

In denying the motion to suppress, the trial court reasoned, “I don’t
believe that [the defendant] was detained . . . . I don’t believe [the encounter]
rises to that level, . . . as testified to [by] the officer and from my review of the
testimony of both parties.” The trial court did not address whether the officer
had sufficient reasonable suspicion to initiate the stop.

Upon this record, we conclude that the trial court erred as a matter of
law. Multiple officers drove directly at and stopped directly in front of the
defendant, who was legally parked in an essentially empty parking lot. The
officers stopped their cruiser approximately ten feet from the defendant’s car in
a manner that obstructed his access to the lot’s nearest exit, and they
immediately alighted from the cruiser and approached the defendant, with
badges displayed, in a manner meant “to achieve tactical surprise,” with one
officer passing directly in front of the defendant’s car. To the extent the State
argues that the defendant’s testimony establishes that he could have left, we
emphasize that the test is whether a reasonable person, under all the
circumstances surrounding the encounter, would have felt free to leave.

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Steeves, 158 N.H. at 675; see State v. Riley, 126 N.H. 257, 262-63 (1985). The
defendant’s testimony was not that he believed he was free to leave, but that it
would have been physically possible to have “whipped [the car] to the right” of
the cruiser.

We conclude that, in light of all of the circumstances of the officers’
encounter with the defendant in this case, a reasonable person would not have
felt free to leave and, thus, the defendant was “seized” for purposes of Part I,
Article 19 of the State Constitution. Compare Licks, 154 N.H. at 494 (finding
that a reasonable person would have felt free to terminate an encounter with
law enforcement when a single officer approached the defendant, who was
seated in the driver’s seat of a car in a parking lot, on foot from the rear of the
defendant’s car after parking the cruiser away from the defendant’s vehicle),
with State v. McKeown, 151 N.H. 95, 97 (2004) (finding that a reasonable
person would not have felt free to terminate an encounter with a marine officer
after the officer piloted his marked boat directly toward the defendant’s kayak
from a quarter of a mile away, and engaged the defendant when he was fifty
feet from the defendant). Because the trial court did not address whether the
officers had sufficient reasonable suspicion to justify the stop, we reverse and
remand for further proceedings consistent with this order.

Reversed and remanded.

LYNN, C.J., and HICKS, BASSETT, HANTZ MARCONI, and DONOVAN,
JJ., concurred.

Eileen Fox,
Clerk

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