2007-229, STATE OF NH v. NELSON NJOGU & a.

In these consolidated appeals the State challenges the

brief and orally, for the defendant. Christopher M. Johnson, chief appellate defender, of Concord, on the

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

page is: http://www.courts.state.nh.us/supreme. v.

editorial errors in order that corrections may be made before the opinion goes No. 2007-229 Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Nashua District Court Readers are requested to notify the Reporter, Supreme Court of New ___________________________

THE SUPREME COURT OF NEW HAMPSHIRE

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 p. 2 State’s interpretation more persuasive. should not add words the legislature did not see fit to include. We find the

legislature did not specifically include this limiting language, and this court

occupants. a motor vehicle or the identity of a motor vehicle’s

other device” should not be limited to tracking type devices because the the underlying police conduct. The defendants submit that the phrase “any plain language of RSA 236:130, I, includes the devices at issue here, and bars

information can be used to determine the ownership of

plate checks were illegal under RSA 236:130. This appeal followed. by itself or in conjunction with other devices or motor vehicle or identity of its occupants, and therefore the random license

statute, the device must be capable of either capturing an image or tracking, State submits that, in order to be “any other device” within the meaning of the legislature’s intent as expressed in the words of the statute considered as a computer and police radio do not fall within the purview of the statute. The In matters of statutory interpretation, we are the final arbiter of the

defined as: surveillance on any public way. For purposes of this statute, “surveillance” is the State of New Hampshire or any political subdivision from engaging in

satellite, or radio frequency identification device, that

radios used by police were “other devices” used to determine the ownership of a transponder, cellular telephone, global positioning any other device, including but not limited to a

prohibit the police procedure followed in these cases because a patrol-car The State argues that the plain language of RSA 236:130, I, does not

without reasonable suspicion of criminal activity. RSA 236:130, II prohibits

to suppress. Specifically, the district court found that the computers and Following a consolidated hearing, the district court granted the motions through the use of a camera or other imaging device or

RSA 236:130, I.

RSA 236:130 prohibited police officers from conducting this type of surveillance

public ways of the state or its political subdivisions or the identity of a motor vehicle’s occupants on the the act of determining the ownership of a motor vehicle

The defendants subsequently filed motions to suppress, arguing that

information. mobile computer in the patrol car to access the vehicle’s registration p. 3 Rather, each officer used his or her personal observation of the license plate

inside the motor vehicle to obtain the identity of its owner or occupants.

the police officers did not utilize a particular signal emanating from a device information observed first hand regarding the relevant motor vehicle. Thus, cases either entered into their computer, or transmitted through their radio,

therein.

computer and radio do not share this capability. The police officers in these

interpreting what may be included as a prohibited “other device.” term “any” evidences that the statute should be given a broad reading in

the application of that statute is limited to the types of items particularized

used here were not intended to be included. We agree. signal transmitted through or from the device. A police officer’s patrol-car possess the ability to track or monitor the movement of a motor vehicle via a As the State correctly notes, the specified devices in RSA 236:130, I, all

those devices it has specified. vehicle or the identity of its occupants. Generally, the legislature’s use of the language of RSA 236:130, I, prohibits “any other device” that is comparable to Thus, read in the context of the statute as a whole, the plain and unambiguous

See In the Matter of Fulton & Fulton, 154 N.H. 264, 267 (2006).

said that where the phrase “including, but not limited to” is used in a statute, term “any” by its subsequent enumeration of four specific devices. We have police radio. Based upon this difference, the State concludes that the devices unlimited in scope. Id. at 538. Here, the legislature limited the scope of the monitor or track vehicles, a capability not shared by a patrol-car computer or Roberts, the use of such broad language does not mean that a statute is Specifically, the State argues that the specified devices all possess the ability to v. General Motors Corp., 138 N.H. 532, 536 (1994). However, as we noted in

other devices or information, may be used to determine ownership of a motor camera, imaging device, or any other device that, alone or in conjunction with The plain language of RSA 236:130, I, prohibits surveillance using a

advanced by the statutory scheme.”

whole.

telephone, global positioning satellite, or radio frequency identification device. following the phrase “including, but not limited to,” i.e. a transponder, cellular of RSA 236:130, I, a device must be of the same nature as those specified The State asserts that, to be considered “any other device” in the context

378-79 (2007). to construe a statute that is clear on its face. State v. Balukas, 155 N.H. 377,

interpret statutory language in light of the policy or purpose sought to be Id. “This enables us to better discern the legislature’s intent and to and phrases in isolation, but rather within the context of the statute as a plain and ordinary meaning to the words used. Id. We do not consider words November 9, 2007). When examining the language of a statute, we ascribe the whole. See Grand China v. United Nat’l Ins. Co., 156 N.H. ___, ___ (decided been put in on highway surveillance devices and

p. 4 capabilities. cases, the patrol-car computers and police radios simply did not have such devices relate to their ability to produce an identifying signal. As used in these

Representative Kurk last year on the bill that had

Commissioner Earl Sweeney stated the following: owner or occupier of a motor vehicle. The relevant characteristics of the purposes. At the February 7, 2007 committee hearing on this bill, suspicionless license plate check of a motor vehicle for general crime detection 4

general] Anne Rice . . . quite carefully with

capability, those functions are not relevant to the device’s ability to reveal the devices may serve legitimate functions distinct from the prohibited surveillance considered). RSA 261:75-a permits a police officer to perform a random, other non-imaging, non-tracking functions. However, although the specified

recent enactment of RSA 261:75-a (Supp. 2007) supports our interpretation.

radio do not constitute an “other device” in violation of the statute. request. I worked, along with [assistant attorney 236:130, I, is not ambiguous, and the use of a patrol-car computer and police Senator Letourneau introduced this as [sic] my not limited to.” Therefore, we conclude that the plain language of RSA

concerning prior law contained in subsequent legislative history may be because the specified devices, including a camera or other imaging device, have See Franklin v. Town of Newport, 151 N.H. 508, 512 (2004) (noting comments

Finally, even if we assume that the statutory language is ambiguous, the according to such peculiar and appropriate meaning).

and to use those words advisedly, require us to ignore our well-settled construction of the phrase “including, but

The defendants argue that the statute should not be thus limited

acquired a peculiar and appropriate meaning in law shall be construed 664, 667 (2006); see also RSA 21:2 (2000) (words and phrases that have

and the legislature is presumed to know the meaning of the words it chooses adopt the defendants’ expansive interpretation of “any other device” would inherently different way than those specifically prohibited by the statute. To of Hooksett v. Baines, 148 N.H. 625, 630 (2002); Roberts, 138 N.H. at 538-39, occupants of a motor vehicle, the “devices” at issue here function in an Conservation Law Found. v. N.H. Wetlands Council, 150 N.H. 1, 6 (2003); Town “including but not limited to” is well-settled and long-standing, see, e.g. the statute, as the defendants suggest. Our construction of the phrase Further, we disagree that our interpretation improperly adds words to

under both scenarios may ultimately be the identification of the owner or and retrieved information based upon that observation. While the end result any specific examples listed with it.”

statutory term is to be understood to cover further instances comparable to the word “any” is broad language, “there is a common rule that a general “including but not limited to” and the list that follows. Although, on its face, those devices . . . specified.” language of RSA 236:130, I, prohibits ‘any other device’ that is comparable to

to the types of items therein particularized.” ‘including, but not limited to’ in a statute limits the application of that statute patrol-car computer and radio do not share this capability.” doing. via a signal transmitted through or from the device” and that “[a] police officer’s I, “all possess the ability to track or monitor the movement of a motor vehicle I also agree with the majority that the devices specified in RSA 236:130, surveilling persons.” currently; it was just to stop highway surveillance of cameras on the highway use of the word “any” in RSA 236:130, I (Supp. 2007) is modified by the phrase the police officers that there was no intent to stop anything they were doing that “read in the context of the statute as a whole, the plain and unambiguous J., concurred specially. 1 p. 5 54 N.H. 264, 267 (2006). Accordingly, I concur with the majority’s holding

(1989). Moreover, “[w]e have previously held that the use of the phrase that law enforcement officers were currently State v. Hodgkiss, 132 N.H. 376, 379 here when it enacted RSA 236:130. certain that this would not interfere with anything So, we testified at the hearings and we were quite

DALIANIS, J., concurring specially. I agree with the majority that the noting that Commissioner Sweeney “had spoken to the committee and assured

BRODERICK, C.J., and DUGGAN and HICKS, JJ., concurred; DALIANIS,

that the legislature did not intend to prohibit the type of surveillance at issue

Legislature to have the opportunity to authorize it. Id. The legislative history of RSA 261:7 p. 5 5-a demonstrates

Letourneau echoed his statements regarding the intent behind RSA 236:130, I, Senate Comm. On Judiciary, Hearing on SB 41 (February 7, 2007). Senator

down, new surveillance technology, he wanted the putting the bill in was if any new technology came Representative Kurk said that his purpose in [sic] that law enforcement was currently doing. we wanted to be sure that there would be practice devices should be revised to cure the apparent incongruity.

me either the prefatory language in RSA 23 p. 6 6:130, I, or the statute’s list of

the ability to track or monitor a motor vehicle’s movement. Thus, it seems to who occupies one. Rather, as the majority aptly notes, all of these devices have devices do not by themselves enable one to determine who owns a vehicle or

telephones, global positioning satellites and radio frequency identification

in the statute do not do this. Cameras, imaging devices, transponders, cellular motor vehicle or the identity of a motor vehicle’s occupants,” the devices listed purports to define “surveillance” as “the act of determining the ownership of a

23 p. 6 6:130, I, is internally inconsistent. Although, on its face, this statute I write separately to raise the following concern. In my opinion, RSA