2006-458, STATE OF NH v. ERNEST P. PEPIN

Police Department who heard the tires of the defendant’s vehicle “squeal.” after midnight on October 6, 2005, by Officer Eric Desmarais of the Manchester The trial court found the following: The defendant was stopped shortly

remand. court erred in denying the defendant’s motion to suppress. We reverse and 262:23 (2004) (amended 2006). The sole issue on appeal is whether the trial a motor vehicle after having been certified as a habitual offender. See RSA (Barry, J.), the defendant, Ernest P. Pepin, appeals his conviction for operating DALIANIS, J. Following a trial on stipulated facts in the Superior Court

and orally, for the defendant. James T. Brooks, assistant appellate defender, of Concord, on the brief

brief and orally), for the State. Kelly A. Ayotte, attorney general (Benjamin A. Agati, attorney, on the to press. Errors may be reported by E-mail at the following address:

editorial errors in order that corrections may be made before the opinion goes No. 2006-458 Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Hillsborough-northern judicial district 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 p. 2 22 as 2

or was about to be engaged in criminal activity. Desmarais possessed a reasonable suspicion that the defendant was, had been

about to be engaged in criminal activity.

unremarkable to an untrained observer. State v. McKinnon-Andrews, 151 N.H. make inferences and draw conclusions from conduct that may seem all surrounding circumstances, keeping in mind that a trained officer may sufficiency of an officer’s suspicion, we consider the articulable facts in light of

pulled the vehicle over. Therefore, we turn to the second inquiry: whether Neither party disputes that the defendant was seized when Desmarais

possessed a reasonable suspicion that the defendant was, had been or was defendant was seized; second, we determine whether, at that time, the officer investigatory stop, we conduct a two-step inquiry: first, we determine when the 151 N.H. 803, 809 ( p. 2 2005). In deciding whether the officer conducted a lawful his motion to suppress. been, is, or is about to be, engaged in criminal activity. State v. Beauchesne, to stop. Accordingly, the defendant argues that the trial court erred in denying together with rational inferences from those facts—that the person stopped has have a reasonable suspicion—based upon specific, articulable facts taken For a police officer to undertake an investigatory stop, the officer must

defendant had committed a crime. 1 p. 2 24 N.H. 226, 231-33 (1983). State Constitution and cite federal opinions for guidance only. State v. Ball, Gubitosi, 152 N.H. 673, 676 (2005). We first address the issues under the any controlling facts determined by the trial court in the first instance. State v. Our review of the trial court’s motion to suppress is de novo, except as to

seizure because Desmarais lacked reasonable suspicion when he ordered him On appeal, the defendant argues that he was subject to an unlawful Manchester and the road conditions were dry. Desmarais’ attention. Desmarais testified that it was a “club” night in defendant’s tires squeal, a squeal that was more than a “chirp” which caught the defendant’s vehicle because he had a reasonable suspicion that the trial court denied the motion, finding that Desmarais was justified in stopping Fourth and Fourteenth Amendments of the United States Constitution. The vehicle violated Part I, Article 19 of the New Hampshire Constitution and the The defendant filed a motion to suppress, contending that the stop of his

offender. doing a license check, Desmarais learned that the defendant was a habitual pulled the defendant over. The defendant did not appear intoxicated, but in

a red light in a left turn lane. When the light changed, Desmarais heard the Desmarais’ police cruiser was positioned immediately behind the defendant at p. 3 3

Also, as in characterization of the car as “lurch[ing] forward” has no support in the record.

Singleton, the officer in this case did not testify that the defendant’s

squeal of the tires was an exhibition of speed or acceleration. The trial court’s In this case, too, the trial court did not find any fact to establish that the

squealing of the tires was acceleration.” Id. were no other facts articulated by the officer to suggest that the reason for the spin and throw gravel, the turn or that acceleration was the cause of the tires squealing . . . . There [the officer] testify that it appeared [the defendant] was accelerating through indicate acceleration.” Id. at p. 3 346. It further concluded that “[a]t no point did court put it, “Squealing of tires alone suggests a sound and does not always to stop the vehicle for excessive acceleration. Id. at 347. As the Singleton for squealing his tires. Id. The court ruled that he lacked reasonable suspicion suspicion of an “exhibition of acceleration.” Singleton, 91 S.W.3d at 346. The officer was behind him and pulled him over tires spinning suggests a vehicle is accelerating” and thus provides reasonable In Singleton, a driver squealed his tires while making a right turn. statutory language have found that “[m]oving from a stopped position with the unusual amount of dust,” State v. Ova, 539 N.W.2d 857, 860 (N.D. 1995). 1989); or the car squealed and rapidly accelerated in reverse, creating “an

yards, stopped, backed up, then accelerated forward, causing tires to squeal, race, competition, contest, test or exhibition. State, 579 So. 2d 66, 68-69 (Ala. Crim. App. 1991); the car went forward fifty that the engine revved and the car traveled “at a high rate of speed,” Jones v. supported by other facts in addition to squealing tires, such as an observation p. 3 346 (Tex. App. 2002) (citing cases). However, such suspicion is generally

“exhibition of speed or acceleration.” RSA 265:75. Courts construing similar The State argues that Desmarais suspected the defendant of engaging in an to warrant that intrusion into protected privacy rights.

and no person shall in any manner participate in any such acceleration, or for the purpose of making a speed record; contest, test of physical endurance, exhibition of speed or speed competition or contest, drag race or acceleration No person shall drive any vehicle on a highway in any race,

of the road racing statute, RSA 265:75, I (2004), which provides: The State argues that Desmarais had reasonable suspicion of a violation

The officer’s suspicion must have a particularized and objective basis in order this is probably a bad person who may have committed some kind of crime. Id. articulated facts must lead somewhere specific, not just to a general sense that 19, 26 (200 p. 4 4). A reasonable suspicion must be more than a hunch. Id. The 4

light.” area in this case should “cast [the defendant’s conduct] in a more suspicious

driving while intoxicated. squeal of tires, even on “club night,” did not give rise to reasonable suspicion of Id. In the absence of any additional specific facts, we hold that the brief defendant may have been driving under the influence.” defendant’s behavior, [the officer’s] suspicions were reasonable that the vicinity of the stop. Therefore, there is little reason why the character of the drunk drivers.” The State argues, “[G]iven the place and time of the pulled out of a club parking lot or that there were any clubs in the immediate general that counts. Here, there was no evidence that the defendant had support reasonable articulable suspicion, it is the particular and not the Vadnais, 1 p. 4 41 N.H. 68, 70-71 (1996). However, in analyzing facts that would may cast an individual’s own conduct in a more suspicious light.” State v. justify a brief investigatory detention, the hour and the character of the area to support reasonable suspicion of driving while intoxicated. crime area, even at a late hour, is not a sufficient basis, standing alone, to We have observed that: “Although a person’s mere presence in a high-

“club night” in Manchester and that the police are “always looking for possible vehicle). The only other facts upon which the State relies are that it was a completely off the road, run a stop sign, and nearly collide with an oncoming existed when officers witnessed the defendant cross the yellow line, drive which provides in pertinent part: Smith defendant was driving while intoxicated in violation of RSA 265:82, I (200 p. 4 4),, 154 N.H. 113, 116 (2006) (reasonable suspicion and/or probable cause See State v. Beyond the brief tire squeal, there was no erratic operation or traffic violation

liquor . . . . (a) While such person is under the influence of intoxicating

way: Desmarais did not observe any erratic driving before he heard the squeal. No person shall drive or attempt to drive a vehicle upon any and pulled over “about a hundred feet” from the intersection. Further,

The State also argues that Desmarais had reasonable suspicion that the

P.3d 1 p. 4 49 (Kan. Ct. App. 2006) (table). about to be violated. Singleton v. State, 91 S.W.3d at 346; State v. Giger, 130 a reasonable suspicion that the road racing statute had been, was or was Thus, we hold that a brief squeal of tires, without more, does not support

had time to even get up to speed.” The defendant complied almost instantly speed increased after the squeal; in fact, he stated: “[The driver] wouldn’t have p. 5 5

BRODERICK, C.J.