State of New Hampshire v. Ronald Welch

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2018-0683, State of New Hampshire v. Ronald
Welch, the court on November 26, 2019, 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 this case. The
defendant, Ronald Welch, appeals his conviction for possession of a controlled
drug. See RSA 318-B:2, I (2017). The defendant argues that the Superior
Court (Nicolosi, J.) erred in denying his motion to suppress his statements to
police and the drugs found in his car because: (1) the police officer’s questions
impermissibly expanded the scope of the traffic stop; and (2) the police officer
lacked a reasonable articulable suspicion to justify a drug-offense
investigation. We affirm.

The pertinent facts are as follows. On April 21, 2018, a detective with
the Manchester Police Department was conducting surveillance of a high crime
area in Manchester. During this surveillance, the detective observed the
defendant waiting alone in a car for approximately ten minutes. The detective
then observed a woman cross the street and enter the passenger side of the
defendant’s car. Based on the woman’s numerous past encounters with the
detective and members of the Manchester Police Department, the detective was
able to identify her as a known prostitute and drug user. The detective
observed the pair frequently moving in the vehicle, often turning toward the
center console. Although the detective was unable to see the hands of the
defendant or the woman, the detective perceived that the pair were either
showing or exchanging something. After approximately three to five minutes,
the woman exited the car.

As the defendant pulled away from the curb, the detective observed that
he failed to use his turn signal. After turning onto Hall Street, the defendant
pulled over, got out of the vehicle, and readjusted something in the vehicle’s
backseat. As the defendant resumed driving, he again failed to use his turn
signal. After the defendant failed to stop at a stop sign, the detective initiated a
traffic stop.

The detective noticed the defendant appeared very nervous and initially
could not locate his driver’s license. The detective asked the defendant where
he was coming from. The defendant stated that he was coming from seeing the
woman that the detective had observed entering the defendant’s car. The
detective asked the defendant if he had gone into the woman’s apartment, and
the defendant answered that he had. Knowing the defendant was lying about
whether he had entered the woman’s apartment, the detective asked the
defendant to exit his vehicle. The detective informed the defendant that he also
knew the woman, and that he believed the pair had just engaged in a drug
transaction. At that point, the detective observed a change in the defendant’s
mannerisms: the defendant began to look down and away from the detective.
The detective then asked the defendant if he had any drugs. The defendant
stated he did not have drugs “on his person.” Finding this answer oddly
specific, the detective followed up by asking whether the defendant had drugs
in his car. The defendant stated there was heroin in his car. The drugs were
seized and the defendant was arrested. Prior to trial, the defendant moved to
suppress his statements to the police and the drugs seized from his vehicle.
The trial court denied the motion, finding that the detective’s questions about
drugs were justified by reasonable suspicion of criminal conduct.

On appeal, the defendant challenges the denial of his motion to suppress
under both the State and Federal Constitutions. We first address the
defendant’s claims under the State Constitution and rely upon federal law only
to aid our analysis. State v. Ball, 124 N.H. 226, 231-33 (1983). When
reviewing the 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.
State v. Tarasuik, 160 N.H. 323, 327 (2010). We review the trial court’s legal
conclusions de novo. Id.

First, the defendant argues that the detective’s initial questions about
where the defendant was coming from and where he met the woman
impermissibly expanded the scope of the traffic stop. The defendant, while
conceding that the initial stop was justified because of his traffic violations,
argues that the detective impermissibly expanded the scope of the stop to
include questions regarding drugs, without having reasonable suspicion of
drug-related activity. The State counters that these initial questions were
reasonably related to the initial justification for the stop. In the alternative, the
State argues that, even if the detective’s initial inquiries were not reasonably
related to the justification for the initial stop, they were “facially innocuous”
and supported by reasonable suspicion that the defendant was engaged in
illegal drug activity. We agree with the State that the detective’s initial
inquiries did not impermissibly expand the scope of the stop because they were
“facially innocuous.”

To determine whether an officer’s inquiry impermissibly expanded the
scope of a valid traffic stop, we examine “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.”

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State v. McKinnon-Andrews, 151 N.H. 19, 25 (2004). In McKinnon-Andrews,
we observed that:

[i]f the question is reasonably related to the purpose of the stop, no
constitutional violation occurs. If the question is not reasonably
related to the purpose of the stop, we must consider whether the
law enforcement officer had a reasonable, articulable suspicion
that would justify the question. If the question is so justified, no
constitutional violation occurs. In the absence of a reasonable
connection to the purpose of the stop or a reasonable, articulable
suspicion, we must consider whether in light of all the
circumstances and common sense, the question impermissibly
prolonged the detention or changed the fundamental nature of the
stop.

Id. at 25 (quotation and brackets omitted).

During an investigatory stop, an officer may engage in “facially
innocuous dialog which a detained motorist would not reasonably perceive as
altering the fundamental nature of the stop.” Id. (quotation omitted). In doing
so, an officer may ask a moderate number of questions to obtain identifying
information and to confirm or dispel his suspicions. See, e.g., State v.
Szczerbiak, 148 N.H. 352, 355 (2002). We have held that an officer’s request
for a driver’s license, registration, and inspection paperwork was, in the context
of a traffic stop, reasonable, “facially innocuous dialog.” State v. Dalton, 165
N.H. 263, 264-65 (2013). The First Circuit Court of Appeals has held that
“merely posing a few prosaic questions about the [defendant’s] itinerary: where
he and his passenger had been, where they were going, and whether they had
stopped along the way,” was routine questioning, “even when not directly
related to the violations that induced the stop in the first place.” United States
v. Chhien, 266 F.3d 1, 9 (1st Cir. 2001).

Here, the detective asked the defendant where he was coming from, and,
based on the defendant’s answer that he had been with a known drug user and
prostitute, the detective asked related follow-up questions. The initial
questions posed by the detective are similar to the routine questions approved
by the First Circuit in Chhien. Thus, we find that the initial questions are
facially innocuous, and that a detained motorist would not reasonably perceive
them as altering the fundamental nature of the stop. See McKinnon-Andrews,
151 N.H. at 25; Chhien, 266 F.3d at 9. Because the initial questions posed by
the detective are facially innocuous, he did not impermissibly expand the scope
of the traffic stop by asking them.

Next, the defendant argues that, even if the detective’s initial inquiries
were permissible, the detective’s subsequent questioning regarding drugs
fundamentally altered the scope of the stop, and the detective lacked

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reasonable suspicion to ask such questions. The State counters that the
detective’s drug inquiries were reasonably related to the initial justification for
the traffic stop. Alternatively, the State argues that even if the drug inquiries
were not related to the initial justification for the stop, the detective had a
reasonable articulable suspicion of drug activity when he inquired about drugs.
Because the trial court found that the initial justification for the traffic stop
was the defendant’s traffic violations, in order for the detective to pursue his
subsequent line of questioning about drugs, he needed a reasonable articulable
suspicion that the defendant was engaged in drug-related criminal activity.
See McKinnon-Andrews, 151 N.H. at 25 (finding that officer’s drug-related
question regarding the contents of the defendant’s vehicle during traffic stop
was unrelated to the initial justification for the stop and therefore required
reasonable suspicion). We agree with the State that the detective had
reasonable articulable suspicion sufficient to question the defendant about
drugs.

“Reasonable articulable suspicion refers to suspicion based upon
specific, articulable facts taken together with rational inferences from those
facts—that the particular person stopped has been, is, or is about to be,
engaged in criminal activity.” Id. at 25-26 (quotation omitted). When
determining whether an officer’s suspicions meet this standard, “we consider
the articulable facts in light of all surrounding circumstances, keeping in mind
that a trained officer may make inferences and draw conclusions from conduct
that may seem unremarkable to an untrained observer.” Id. at 26. “The
articulated facts must lead somewhere specific, not just to a general sense that
this is probably a bad person who may have committed some kind of crime.”
Id. (quotation omitted). “The officer’s suspicion must have a particularized and
objective basis in order to warrant that intrusion into protected privacy rights.”
Id. “That observed activity could be consistent with both guilty and innocent
behavior, however, does not mean that an officer must rule out innocent
explanations before proceeding.” State v. Turmel, 150 N.H. 377, 381 (2003).

We have recognized that, although “a person’s mere presence in a high-
crime area, even at a late hour, is not a sufficient basis, standing alone, to
justify a brief investigatory detention, the hour and the character of the area
may cast an individual’s own conduct in a more suspicious light.” State v.
Vadnais, 141 N.H. 68, 70-71 (1996); see also State v. Roach, 141 N.H. 64, 66
(1996) (weighing facts that defendant was nervous and in a high-crime area as
factors in favor of finding reasonable suspicion). Moreover, we have held that a
police officer’s specialized training relating to drugs may be considered when
conducting a reasonable suspicion analysis. See Turmel, 150 N.H. at 381-82
(considering a police officer’s drug recognition certification in determining
whether the officer’s suspicion that a driver was smoking marijuana was
reasonable). Furthermore, in determining whether reasonable suspicion
existed, we have held that inconsistent statements may weigh in favor of
finding reasonable suspicion. State v. Sage, 170 N.H. 605, 610-11 (2018).

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 Here, in concluding that the detective’s drug-related inquiries were
supported by reasonable suspicion, the trial court considered the fact that the
defendant met with a known drug user in a high-crime area, had engaged in
conduct consistent with a drug transaction, and had lied when responding to
the detective’s inquiries. The trial court correctly observed that a trained
officer may make inferences and draw conclusions from seemingly
unremarkable conduct, and that the court must consider the facts in light of
the surrounding circumstances. See McKinnon-Andrews, 151 N.H. at 26. The
defendant argues that these facts are too ordinary to give rise to reasonable
suspicion of drug-related activity; however, we conclude that, given his
experience and training, the inferences and conclusions the detective drew,
based upon the facts and circumstances of this case, were sufficient to
establish a reasonable, articulable suspicion. Thus, the trial court did not err
when it concluded that the detective had reasonable suspicion to expand the
scope of the initial traffic stop to include questioning about drugs.

Because we determine that the detective’s initial inquiries about where
the defendant was coming from and where he met the woman were innocuous
and would not reasonably be perceived by the defendant as altering the
fundamental nature of the stop, and because the detective had a reasonable
suspicion that the defendant was involved in criminal activity when he
expanded the scope of the stop to inquire about drugs, we find no violation of
the State Constitution. See id. at 25-27. The Federal Constitution provides the
defendant no greater protection under these circumstances. See Muehler v.
Mena, 544 U.S. 93, 100-02 (2005); United States v. Dion, 859 F.3d 114, 123-
28 (1st Cir. 2017). Accordingly, we reach the same result under the Federal
Constitution.

Affirmed.

HICKS, BASSETT, HANTZ MARCONI, and DONOVAN, JJ., concurred.

Eileen Fox,
Clerk

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