2005-717, STATE OF NH v. MICHAEL LICKS

parked car with its engine running. department was on patrol in the parking lot of Club Electra when he noticed a

12:00 a.m. and 12:30 a.m., Officer Michael Roberts of the Lebanon police

The record supports the following. On February 18, 2005, between

suppress evidence obtained after he was unlawfully seized. We affirm. 265:82 (2004). He argues that the district court erred in denying his motion to Lebanon District Court (Cirone, J.) for driving while intoxicated (DWI), see RSA HICKS, J. The defendant, Michael Licks, appeals his conviction in the

and Christopher A. Dall on the brief, and Mr. Ostler orally), for the defendant. DesMeules, Olmstead & Ostler, of Norwich, Vermont (George H. Ostler

for the State. general, on the brief, and Thomas D. Ralph, assistant attorney general, orally), to press. Errors may be reported by E-mail at the following address: Kelly A. Ayotte, attorney general (Karen A. Gorham, assistant attorney

editorial errors in order that corrections may be made before the opinion goes No. 2005-717 Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Lebanon District Court Readers are requested to notify the Reporter, Supreme Court of New ___________________________

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as asked him to step out of the car. p. 2 After asking the defendant for his name and date of birth, Officer Roberts down his window, Officer Roberts immediately noticed signs of intoxication. flashlight in order to get the defendant’s attention. When the defendant rolled

event, Officer Roberts testified that he did not tap on the window with his his window or whether the defendant did so without being prompted. In any It is not clear whether Officer Roberts motioned for the defendant to roll down

N.H. CONST. pt. I, art. 19. A warrantless seizure is 19 of the State Constitution prohibits unreasonable searches and seizures.

defendant rolled his window down and Officer Roberts asked if he was “all set.”

him his name, address, business abroad and where he is going.” Part I, Article

Brunelle, 145 N.H. 656, 659 (2000). it falls within a recognized exception to the warrant requirement. State v. the driver’s side. When Officer Roberts reached the driver’s side door, the per se unreasonable unless Officer Roberts approached the defendant’s vehicle from the rear and walked to the parking lot. With his flashlight trained on the car and the defendant, committing, has committed or is about to commit a crime, and may demand of “A peace officer may stop any person abroad whom he has reason to suspect is not “have felt free to ignore the officer or leave the area.” RSA 594:2 provides: Officer Roberts because a reasonable person under the circumstances would for guidance only. Id. at 232-33. The defendant argues that he was seized by Constitution, State v. Ball, 124 N.H. 226, 232 (1983), and cite federal opinions We first address the defendant’s claim under RSA 594:2 and the State

novo.” State v. MacElman, 149 N.H. 795, 797 (2003) (quotation omitted). erroneous. Our review of the trial court’s legal conclusions, however, is de the trial court’s findings unless they lack support in the record or are clearly in the full lot, Officer Roberts parked his cruiser on the road, at the entrance to “When reviewing a trial court’s ruling on a motion to suppress, we accept

and asked him to step out of the car. detention up until the point when Officer Roberts noticed signs of impairment Amendment of the United States Constitution. The defendant contests his (2001), Part I, Article 19 of the New Hampshire Constitution and the Fourth defendant argues that he was unlawfully seized in violation of RSA 594:2 detained. After a hearing, the district court denied the motion. On appeal, the The defendant filed a motion to suppress, arguing that he was unlawfully

sobriety tests on the defendant who was then arrested for DWI.

side. Officer Roberts decided to approach the defendant to “check on what he was legally parked, front end to the curb, and there were cars parked on either

driver’s seat of the vehicle; there were no other occupants in the car. The car Officer Roberts further noticed the defendant “slouched down” in the p. 3 3

authority” factors we applied in Beauchesne, we hold that the defendant was Looking at the totality of the circumstances, as well as the “show of

the encounter). person would feel free to decline the officers’ requests or otherwise terminate was questioned on bus by police, appropriate inquiry was whether reasonable restrain the liberty of the person in the vehicle. Roberts. McKeown, 151 N.H. at 97; Bostick, 501 U.S. at 4 p. 3 36 (where defendant however, if the officer uses physical force or displays a show of authority to whether he would have felt free to “terminate the encounter” with Officer reasonable person in the defendant’s position would have felt free to leave, but actions. See id. at 436. Therefore, the relevant inquiry is not whether a front and on both sides, these restrictions were not the result of the officer’s movement was limited because he was in a vehicle that was blocked to the curb in front and parked cars on either side. While the defendant’s freedom of Officer Roberts approached the defendant in a parked vehicle, with a

law applying Part I, Article 19 of the State Constitution and apply them here. U.S. 429, 4 p. 3 34 (1991). We find these principles to be consistent with our case request might be compelled.

(4th ed. 2004) (collecting cases). The encounter can become a seizure, constitute a seizure. See 4 W. LaFave, Search and Seizure § 9.4(a), at 420 n.49 seated in a parked car and asks questions, this in and of itself does not Numerous courts recognize that when an officer approaches a person

authority, has in some way restrained the liberty of the person.” defendant’s position would have understood his situation. Id. seizure] occurs when an officer, by means of physical force or show of Id. This test is an objective one, considering how a reasonable person in the

of voice indicating that compliance with the officer’s

the person. touching of the person, or the use of language or tone

the display of a weapon by an officer, some physical include the threatening presence of several officers,

not required to establish an exception to the warrant requirement. Circumstances indicating a “show of authority” might

151 N.H. at 810.

the citizen is not seized under Part I, Article 19 of the State Constitution. “[A (1985), or terminate the encounter, State v. McKeown, 151 N.H. 95, 97 (2004), reasonable person would feel free to leave, State v. Riley, 126 N.H. 257, 262-6 p. 3 3

State v. Beauchesne, 151 N.H. 80 p. 3 3, 809 (2005). So long as a

A police encounter with a citizen does not always amount to a seizure of

encounter with Officer Roberts was consensual, and therefore the State was The State argues that the defendant was not seized because his intoxication and subsequently asked the defendant to step out of the car.

p. 4 down his window, at which point Officer Roberts immediately noticed signs of

concurred. BRODERICK, C.J., and DALIANIS, DUGGAN and GALWAY, JJ.,

said or did to get the defendant’s attention, he stated that he would not have the Federal Constitution as we do under the State Constitution. the suppression hearing, Officer Roberts could not remember exactly what he 436; McKeown, 151 N.H. at 97. Accordingly, we reach the same result under does the State Constitution under these circumstances. Bostick, 501 U.S. at The Federal Constitution offers the defendant no greater protection than

was alright). flashlight inside, knocked on window with flashlight, and asked if defendant not violate RSA 594:2 or the New Hampshire Constitution. 2004) (no seizure where officer approached defendant’s car while shining constitutional justification . . . .”); State v. Baez, 894 So. 2d 115, 115-16 (Fla. was ‘all set,’ [the] Trooper . . . did not engage in any conduct that requires on the window, shining his flashlight inside and asking whether the defendant (“[B]y walking up to the defendant’s parked vehicle at the rest area, knocking identification); Commonwealth v. Eckert, 728 N.E.2d 312, 316 (Mass. 2000) down his window, but rather asked if the defendant was “all set.” Although at flashlight into it, asked defendant to roll his window down, and requested does not sufficiently constitute a “show of authority.” cruiser spotlight on defendant’s parked car, approached the car while shining from the rear and shined his flashlight into the defendant’s vehicle, this alone v. O’Neill, 62 P.3d 489, 497-99 (Wash. 2003) (no seizure where officer shined officer approached defendant’s parked car and knocked on the window); State States v. Ortiz-Monroy, 332 F.3d 525, 527-28 (8th Cir. 2003) (no seizure where

the defendant out of the car, the encounter was consensual and therefore did hold that before Officer Roberts noticed visible signs of impairment and ordered trenched upon no right secured to the latter by the Fourth Amendment.”). We action in shining his flashlight to illuminate the interior of [the defendant’s] car 739-40 (1983) (Rehnquist, J.) (“It is likewise beyond dispute that [the officer’s] N.E.2d 345, 348 (Ill. App. Ct. 1991); see also Texas v. Brown, 460 U.S. 730, weapon, and did not order the defendant to step out of the car, or even to roll See People v. Erby, 572 rear and shined his flashlight into the defendant’s vehicle. He did not draw his vehicle, and did not turn on his blue lights. He approached the car from the that he must submit to the officer’s requests. Although he approached the car Officer Roberts’ actions would not have led a reasonable person to believe

approached the defendant. He parked his cruiser away from the defendant’s not seized when Officer Roberts approached his vehicle. Only one officer