2008-372, STATE OF NH v. CHRISTOPHER STEEVES

motorcycle on the roadside. According to Officer Doyle, the road had a fog line a.m. He observed the defendant and one passenger straddling an idling the Londonderry Police Department was traveling south on Route 28 at 1:30 The record supports the following. In August 2007, Officer Sean Doyle of

affirm. of the Derry District Court (Coughlin, J.) denying his motion to suppress. We 265-A:2, I (Supp. 2008), the defendant, Christopher Steeves, appeals a ruling HICKS, J. Following his conviction for driving while intoxicated, see RSA

the brief and orally), for the defendant. Law Office of Michael Bowser, P.C., of Nashua (Michael S. Bowser, Jr. on

and orally), for the State. Kelly A. Ayotte, attorney general (Francesca Stabile, attorney, on the brief 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. 2008-372 editorial errors in order that corrections may be made before the opinion goes Derry District Court Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New ___________________________

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 on the motorcycle.”

p. 2 Game Time. The defendant agreed to “perform[] a few quick tests while seated in . . . and stated . . . just to be honest,” the defendant admitted coming from house,” though he could not provide an address. After the passenger “chimed the motorcycle in order to administer other field sobriety tests. requested backup. Upon its arrival, he asked the defendant to step away from “the wrong number on the wrong finger” three times. Officer Doyle then

off the roadway and then approached the defendant.

defendant where he had been. The defendant first said he had been at “Tim’s

the “finger dexterity test” by failing to follow instructions and also by counting refused to submit to a blood test. focus on the pen. Officer Doyle placed him under arrest. The defendant then abandoned this effort because the defendant would not keep his head still and

Doyle noticed that his “eyes were glassy and bloodshot.” He asked the that he smelled of alcohol. As the defendant “fumbled” in his wallet, Officer noticed that the defendant’s movements were “slow and uncoordinated,” and Officer Doyle further testified that the defendant committed several errors on

attempted to administer the horizontal gaze nystagmus test several times, but

Game Time, a sports bar located two to three hundred feet away. Game Time alcohol. The passenger informed Officer Doyle that he had been drinking at his vehicle and spoke with the passenger, who in his opinion smelled of

Officer Doyle twice more “ask[ed]” for his license. During this exchange, he P, Officer Doyle testified that the defendant did so “slow[ly] and slurred.”

failed the walk-and-turn test and the one-legged stand. Officer Doyle kickstand and the motorcycle tipped over. After picking it up, the defendant As the defendant stepped off the motorcycle, he failed to lock the

Officer Doyle “ordered him away from [the] cruiser.” Officer Doyle then exited

his license and registration.” After the defendant produced his registration, Although the defendant successfully recited the alphabet from E through the emergency octagon on the front of his cruiser.

jumped off the back [of the motorcycle] and started approaching.” In response,

Officer Doyle “engaged [the defendant in] conversation and asked him for forward.” He also activated his rear blue lights, but not his front blue lights or he explained at trial were “white lights on the top of [the] light bar that face towards the motorcycle. In addition, he activated his takedown lights, which

Officer Doyle testified that before he got out of his cruiser, “the passenger

the operator needed any assistance.” He activated his spotlight and pointed it but no breakdown lane. Officer Doyle pulled behind the motorcycle “to see if p. 3 3

indicating that compliance with the officer’s request might be compelled.” some physical touching of the person, or the use of language or tone of voice threatening presence of several officers, the display of a weapon by an officer,

emergency lights. We disagree.

engaged in criminal activity. that a ‘seizure’ has occurred.” authority, has in some way restrained the liberty of a citizen may we conclude State v. Licks, 154 N.H. 491, 49 p. 3 3 (2006) (quotation omitted).

‘seizures’ of persons.”

“Circumstances indicating a ‘show of authority’ might include the

effectuated a seizure upon pulling behind the motorcycle and activating his (quotation omitted). person would have believed that he [or she] was not free to leave.” Id. in view of all of the circumstances surrounding the incident, a reasonable determine whether police executed a seizure. Id. at p. 3 365. “We . . . ask whether, reasonable suspicion that the defendant was, had been or was about to be Id. (quotation omitted). We objectively State Constitution. omitted). “Only when the officer, by means of physical force or show of

“[N]ot all personal intercourse between policemen and citizens involves

Both arguments raised by the defendant presuppose that Officer Doyle Constitution, and cite federal opinions for guidance only.

seized; second, we determine whether, at that time, the officer possessed a Fourth Amendment to the Federal Constitution and Part I, Article 19 of the conduct a two-step inquiry: first, we determine when the defendant was In deciding whether the officer conducted a lawful investigatory stop, we

the trial court’s legal conclusions, however, is de novo.” Id. erroneous.” State v. Beauchesne, 151 N.H. 80 p. 3 3, 809 (2005). “Our review of factual findings unless they lack support in the record or are clearly motion. N.H. 226, 231-33 (1983). “In reviewing the trial court’s rulings, we accept its deferred ruling on this motion. At the close of testimony, the court denied the State v. Ball, 124 We first address the defendant’s arguments under the State

warrant requirement. In support of his argument, the defendant cites the cannot justify the stop under the community caretaking exception to the suspicion to effectuate the initial stop. He also argues that Officer Doyle On appeal, the defendant argues that Officer Doyle lacked reasonable

including statements . . . and any incriminating observations.” The court Before trial, the defendant moved to suppress “evidence seized from [him] doing so behind a parked automobile often constitutes a seizure. p. 4 warn other traffic of a hazard or obstruction,” RSA 266:78-f (Supp. 2008), a variety of reasons, including “when parked on or adjacent to the highway to 4

though law enforcement officers are authorized to activate emergency lights for

illuminate dark areas). simply are not free to disregard blue lights. See RSA 265:3, I (Supp. 2008) v. Hanson, 504 N.W.2d 219, 220 (Minn. 1993). The reason is obvious—drivers U.S. 1122 (1996); Com. v. Evans, 764 N.E.2d 841, 844-45 (Mass. 2002); State United States v. Dockter, 58 F.3d 1284, 1287 (8th Cir. 1995), cert. denied, 516 defendant. Although Officer Doyle ordered the State v. Williams, 185 S.W.3d 311, 317 (Tenn. 2006) (collecting cases). But see

indicate that such lighting was necessary to view and evaluate the situation. were not acts of seizure because the time and place of the encounter both order to illuminate what would otherwise be plainly visible in daylight. These The activation of Officer Doyle’s blue lights is a closer question. Even

flashlight into parked car because such devices are commonly used to reasonably restrain the defendant’s freedom in any significant way. occurred when officer pulled into parking lot and shined spotlight and State v. O’Neill, 62 P.3d 489, 497 (Wash. 2003) (holding that no seizure activated emergency lights and spotlight), cert. denied, 129 S. Ct. 130 (2008); movement, kept his weapon holstered and refrained from issuing orders to the seizure occurred where officers approached parked vehicle at night and See United States v. Clements, 522 F.3d 790, 794-95 (7th Cir.) (holding no

themselves and requested her identification and ticket). a parked car, Officer Doyle activated his spotlight and two takedown lights in Furthermore, like the officer in Licks who used a flashlight to illuminate encounter coercive.” (quotation and footnote omitted));

cruiser, this was neither directed towards the defendant nor did its substance examine the individual’s identification . . . .” passenger away from his

from behind, parked his cruiser so as not to block or restrict the defendant’s itself does not constitute a seizure.” Moreover, here, as in Licks, a single officer approached a parked vehicle approaches a person . . . in a parked car and asks questions, this in and of

no seizure occurred where agents approached suspect in airport, identified Mendenhall, 446 U.S. 544, 555 (1980) (opinion of Stewart, J.) (concluding that

2004) (“[A] ‘request for identification’ . . . do[es] not by [itself] make an 168 (2007); accord 4 W. LaFave, Search and Seizure § 9.4(a), at 431-32 (4th ed.

simply because a police officer approaches an individual and . . . asks to license and registration did not effectuate a seizure. “A seizure does not occur

constitute a seizure. “Numerous courts recognize that when an officer Pulling behind a vehicle stopped on the roadside does not, by itself, p. 5 5

under the State Constitution.

warrant requirement of Part I, Article 19. BRODERICK, C.J., and DALIANIS and DUGGAN, JJ., concurred. because there exists an adequate and independent alternative exception to the

I, Article 19), we reach the same result under the Federal Constitution as we do additional field sobriety tests, N.H. at 493 (stating that standard for seizure in Bostick is consistent with Part was driving under the influence of alcohol, would have communicated to “[a] reasonable person . . . that the officer was (discussing standard for seizure under Fourth Amendment), with Licks, 1 p. 5 54 protection under these circumstances, compare Bostick, 501 U.S. at 434 speaking with him, Because the Federal Constitution offers the defendant no greater

only his 2008). Thus, we need not consider the community caretaking arguments

(2006) (discussing proper scope of an investigatory stop), and arrested the

(discussing reasonable suspicion), Officer Doyle lawfully administered

defendant’s appearance and conduct created a reasonable suspicion that he lights may have been visible to the defendant, the totality of circumstances

Because Officer Doyle had not yet seized the defendant upon first

Article 19). person.”); activating the rear blue lights. First and foremost, we note that he activated Licks, 1 p. 5 54 N.H. at 493 (stating Bostick is consistent with Part I, U.S. 429, 438 (1991) (“[T]he ‘reasonable person’ test presupposes an innocent leave,” Cote, 129 N.H. at 365 (quotation omitted). See Florida v. Bostick, 501 Hanson, 504 N.W.2d at 220, and not “that [the defendant] was not free to . . . [just] checking to see what was going on and to offer help if needed,”

because the road lacked a breakdown lane. Although the rear-facing blue addition, there was a strong need to warn passing traffic of their presence App. 2000) (holding activation of rear blue lights did not constitute seizure). In

rear blue lights. See Clarke v. Com., p. 5 527 S.E.2d 484, 492 (Va. Ct.

We hold that, on these facts, Officer Doyle did not effectuate a seizure by

purposeful neglect of signal to stop or “willful[] attempt to elude pursuit”). (entitled “Obedience to Police Officers”); RSA 26 p. 5 5:4 (2004) (criminalizing