2008-206, STATE OF NH v. MOHAMED DAOUD

The defendant, Mohamed Daoud, appeals an order of

orally, for the defendant. brief, and Stephanie C. Hausman, assistant appellate defender, of Concord, Theodore Lothstein, assistant appellate defender, of Concord, on the

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

page is: http://www.courts.state.nh.us/supreme. THE STATE OF NEW HAMPSHIRE

No. 2008-206 editorial errors in order that corrections may be made before the opinion goes Hillsborough-northern judicial district Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any 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 may have said, “[O]pen the door.”

p. 2 from the defendant’s pocket.

attendant. He did not recall whether he said anything, but acknowledged he

process, Officer Tyler seized a key to a vehicle and a small baggie of marijuana

then looked away. The officer continued knocking and may have buzzed for the

defendant, and had him transported to the station. During the booking

lobby near the front desk. In response to his knock, they turned around and locked, so he knocked. He could see the defendant and the passenger in the followed on foot. When the officer arrived at the Inn’s entrance, the door was

the defendant’s claim of error is properly before us.

dispatch and learned that he was a certified habitual offender. He arrested the observed the defendant driving, he passed the defendant’s name through to motion. Tyler a non-driver identification. Officer Tyler testified that because he had

men walking toward the Inn’s front entrance. He parked his cruiser and

appeal. For the purposes of this appeal, we will assume, without deciding, that

in the front lobby of the Inn. Following a hearing, the superior court denied the reluctant to comply and initially turned as if to leave, but he then gave Officer Fifth Amendments to the United States Constitution by unlawfully seizing him Articles 15 and 19 of the New Hampshire Constitution and the Fourth and 2

entrance, again heading toward the parking lot. The officer then saw the two turned on to Queen City Avenue and then promptly turned into the Inn’s other followed the car toward the exit to Queen City Avenue. The defendant’s car on the basis of collateral estoppel, waiver and failure to file a timely notice of

girl.” The officer asked to see his identification. The defendant appeared replied that he lived in Manchester, and that he was there to “hook up with a arrest. He argued that Officer Tyler had violated his rights under Part I, did not often see people entering the Inn at such an early hour. The defendant

and drove toward the exit. Thinking this conduct suspicious, the officer The State contends that the defendant’s appeal is not properly preserved

The defendant moved to suppress all evidence obtained on the day of his the two men “what they were up to” and where they were from, noting that he

officer, they looked away. The defendant then turned the car away from the lot male passenger looked at the officer. After making brief eye contact with the car stopped just before turning into the parking lot, and both the driver and his

Within a brief time, the defendant opened the door. Officer Tyler asked

a white car enter the driveway to the Inn, headed toward the parking lot. The

Tyler was on patrol at the Manchester Inn on Queen City Avenue. He observed At approximately 7:30 a.m. on that date, Manchester Police Officer Jacob

that occurred on the morning of October 7, 2006. habitual offender. See RSA 262:23 (2004). Both charges arise out of events arrest.”

p. 3 Court finds that Officer Tyler did not seize the defendant until the time of his court concluded that “[c]onsidering the totality of the circumstances, . . . the asking for identification . . . does not, in itself, constitute a seizure.” The trial

authority, has in some way restrained the liberty of the person.”

“harsh [n]or intimidating.” As the trial court observed, “the simple act of

leave. This occurs when an officer, by means of physical force or show of

trial court also found that Officer Tyler’s tone toward the defendant was neither

N.H. at 130 (quotation and citations omitted).

Fourth Amendment to the United States Constitution. however, when a reasonable person would no longer believe he or she is free to seizures under Part I, Article 19 of the New Hampshire Constitution and the State v. Brown, 155 N.H. 164, 168 (2007). “An interaction becomes a seizure, suspicion and violated his constitutional right to be free from unreasonable erroneous. Our review of the trial court’s legal conclusions, however, is and asks a few questions, or asks to examine the individual’s identification.” those normally permitted in this type of situation.” (Quotation omitted.) The its factual findings unless they lack support in the record or are clearly seizure does not occur simply because a police officer approaches an individual initial questions, according to the trial court, “were not far more intrusive than citizens involve “seizures” of persons. Sullivan, 157 N.H. at 130. Indeed, “[a] because it was a police officer knocking.” Once in the lobby, Officer Tyler’s cite federal opinions for guidance only. 803, 809 (2005). However, not all personal interactions between police and investigatory stop is a very limited seizure.” State v. Beauchesne, 151 N.H. individual has actually been seized.” Id. at 130 (citations omitted). “An into the reasonableness of a seizure is only necessary, of course, when an Constitution provides protection against unreasonable seizures. An inquiry “We begin our review here with the baseline rule that the New Hampshire

novo. State v. Sullivan, 157 N.H. 124, 129 (2008).

(1983). In reviewing the trial court’s order on a motion to suppress, we accept

was “no evidence that the defendant felt bound to open the door, simply We first address the defendant’s claim under the State Constitution, and

an earlier point in time, when he opened the locked lobby door of the Inn at the suspicion sufficient to detain him. However, he argues that he was seized at he produced his non-driver identification, Officer Tyler had reasonable show of authority to compel the defendant to respond.” It also found that there commanded the defendant particularly to open the door, or used some other The trial court found that there was “no evidence that the officer

defendant was an unconstitutional seizure. The defendant concedes that when The sole issue on appeal is whether Officer Tyler’s encounter with the see the defendant’s identification constitute a seizure.

p. 4 “what they were up to,” as a show of authority. Nor did the officer’s request to

surrounding the incident.

reviewed his non-driver identification. its legal conclusion that the defendant was not seized until after the officer

encounter. A reasonable person would not have taken the officer’s question, defendant while standing in the lobby conveyed the casual nature of the authoritative language or tone. The officer’s verbal exchange with the alleged seizure while mindful of all of the circumstances understood his situation. Further, we conduct an inquiry into an a reasonable person in the defendant’s position would have trial court’s factual conclusions are supported by the record, and we agree with

that once the defendant opened the door, Officer Tyler touched him or used

freedom of movement was sufficiently curtailed by considering how not restraining his liberty by means of physical force or show of authority. The

cert. denied, 540 U.S. 1066 (2003); Manigault v. State, 881 N.E.2d 679, 685 defendant felt bound to open the door.” The record is devoid of any evidence closed business to get defendant’s attention and defendant let police inside), contrary, the trial court expressly found that there was “no evidence that the (8th Cir.) (finding no seizure where police knocked on locked glass door of open the door conveyed that the defendant’s compliance was required. To the to see his identification); objective one, requiring a determination of whether the defendant’s United States v. Tarantola, 332 F.3d 498, 499-500 apartment building, asking him questions in the common area and requesting person in the defendant’s situation would have understood that the officer was with their requests is required. Our analysis of this issue is an seizure upon police entering through locked exterior door to defendant’s authority, the police may not convey a message that compliance United States v. Holloway, 499 F.3d 114, 115-17 (1st Cir. 2007) (finding no in other state and federal jurisdictions under similar circumstances. See, e.g., reviewed his non-driver identification, our holding is consistent with decisions In concluding that the defendant was not seized before the officer

door. Nothing in the record, however, suggests that the officer’s request to 168. Considering the totality of the circumstances, we hold that a reasonable communicate generally do not amount to an official show of See Brown, 155 N.H. at

The defendant claims he was seized when he opened the secured lobby

Id. (citations, quotations and brackets omitted). officer’s request might be compelled. While mere requests to language or tone of voice indicating that compliance with the an officer, some physical touching of the person, or the use of

threatening presence of several officers, the display of a weapon by Circumstances indicating a show of authority might include the p. 5 5

had reasonable suspicion before that time.

the defendant was not seized until then, we need not decide whether the officer

Constitution.

does the State Constitution under these circumstances.

DUGGAN and HICKS, JJ., concurred. detain him upon reviewing his non-driver identification. Because we hold that

reach the same result under the Federal Constitution as we do under the State 169; see Florida v. Bostick, p. 5 501 U.S. 429, 434-36 (1991). Accordingly, we

The Federal Constitution offers the defendant no greater protection than

The defendant concedes that the officer had reasonable suspicion to

hotel guest, in the lobby, asked him questions and requested identification). (Ind. Ct. App. 2008) (finding no seizure where officer approached defendant, a