2008-328, STATE OF NEW HAMPSHIRE v. NILSON DE LA CRUZ

The defendant, Nilson De La Cruz, appeals his conviction

the brief and orally), for the defendant. Buchanan, Maynard & Parodi, PLLC, of Nashua (Steven L. Maynard on

attorney general, on the brief and orally), for the State. Kelly A. Ayotte, attorney general (Susan P. McGinnis, senior assistant 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. 2008-328 editorial errors in order that corrections may be made before the opinion goes Rockingham 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 safeguard privacy and protect from government intrusion.

p. 2 law, our review is exception to the exclusionary rule. Because the issue is one of constitutional this court. exception to the exclusionary rule. Following his conviction, he appealed to 2 person, his house, his papers, and all his possessions.” The provision serves to

the exclusionary rule.

exceptions to the warrant requirement.

is officer’s good faith reliance upon an unconstitutional ordinance serves as an

unconstitutional, an officer’s good faith reliance upon an ordinance is an hath a right to be secure from all unreasonable searches and seizures of his actual good faith reliance. State v. Beauchesne, 151 N.H. 803, 817 (2005). violation of a defendant’s rights under Part I, Article 19 is inadmissible under 620, 625 (1979), cert. denied, 445 U.S. 967 (1980). Evidence obtained in (2003); State v. Turmelle, 132 N.H. 148, 152 (1989); State v. Beede, 119 N.H.

per se unreasonable and evidence derived from such a search or seizure is N.H. 376, 386 (1995). Under Part I, Article 19, a warrantless search or seizure unconstitutional. The only issue before us, therefore, is whether a police State v. Canelo, 139

court denied the defendant’s motion, stating that even if the ordinance was therefore lacked reasonable suspicion to make an investigatory stop. The trial Part I, Article 19 of our State Constitution provides that “[e]very subject relied was unconstitutionally overbroad and vague, and that the officer for reliance upon an ordinance, the State failed to present sufficient evidence of State Constitution. Alternatively, he argues that even if there is an exception confine our analysis to the New Hampshire Constitution. Federal Constitution, stemming from his seizure must be suppressed under Part I, Article 19 of the see Illinois v. Krull, 480 U.S. 340, 349-50 (1987), we the United States Supreme Court has already decided this issue under the

de novo. State v. Abram, 156 N.H. 646, 651 (2008). Because for the stop. After a record check revealed that the defendant was a certified

We assume, without deciding, that the municipal ordinance is

an unlawful seizure. He argued that the ordinance upon which the officer

good faith exception to the exclusionary rule in New Hampshire, evidence On appeal, the defendant argues that because we have rejected a general

section 3:704(a). The officer directed the SUV to stop and explained the reason unnecessary volume,” which violated Hampton municipal ordinance article 7, observed that the SUV had the bass of its radio “at a very loud and

The defendant filed a motion to suppress, arguing that he was subject to

his girlfriend in the passenger seat. A Hampton police officer on foot patrol was driving a sport utility vehicle (SUV) through a parking lot in Hampton with searched or things to be seized.”

rule for good faith reliance upon a constitutionally defective warrant would

based upon generalized suspicions and without specifying the places to be assistance which had been used by the British to conduct sweeping searches

exclusionary rule. officer’s reliance upon an ordinance would further the purposes of the without probable cause. Thus, recognizing an exception to the exclusionary police officers and magistrates have a duty to ensure that no warrant is issued inherent in part I, article 19.” the requirements of probable cause and particularity.” Id. We noted that both of the provision “was to prohibit the issuance of warrants that did not satisfy

part I, article 19 was intended to abolish general warrants and writs of In Canelo, we recognized that “[t]he warrant requirement embodied in

therefore, is whether the suppression of evidence obtained as a result of an

reasonable suspicion that a crime has been, is being, or is about to be v. Leon, 468 U.S. 897, 922 (1984), we specifically rejected such an exception as

constitutional protections. United States Supreme Court has adopted an exception for a police officer’s the unlawful search or seizure; and ( p. 3 3) to safeguard compliance with State discovered the evidence, State v. Hill 146 N.H. 568, 573 (2001). Although the Holler, 123 N.H. 195, 200 (1983), or if the police would have inevitably an independent source for the evidence untainted by their misconduct, State v. illegality is purged, State v. Hight, 146 N.H. 746, 750 (2001), if the police have limited circumstances; e. g., if the State proves that the taint of the primary further the purposes of the rule. Thus, the rule does not apply in certain There are, however, exceptions when the exclusion of evidence would not

[those] purposes.” Canelo, 1 p. 3 39 N.H. at 386. officer’s objectively reasonable reliance upon a statute or ordinance in forming violation of a defendant’s rights is a “logical and necessary corollary to achieve

explicitly recognized such an exception. deter police misconduct; (2) to redress the injury to the privacy of the victim of have previously stated, the exclusionary rule serves three purposes: (1) to violation of that right to be excluded. Beauchesne, 151 N.H. at 817. As we to be free from illegal searches and seizures, requiring any evidence obtained in The exclusionary rule is a remedy for the violation of a defendant’s right

own constitution, an exception to the exclusionary rule in the context of an 569 (199 p. 3 3); Turmelle, 132 N.H. at 154. Today, we explicitly adopt, under our

the context of an officer’s good faith reliance upon a statute, we have never Although we have indicated in the past that an exception to the rule may lie in enforcement.

p. 4 laws.” which laws are and which are not constitutionally entitled to

statute was unconstitutional.”

the legislature wholly abandoned its responsibility to enact constitutional served if its police officers took it upon themselves to determine

provisions are such that a reasonable officer should have known that the unreasonably intrude upon that right. As we stated in

statute cannot support objectively reasonable reliance if, in passing the statute, prudence would be bound to see its flaws. Society would be illand flagrantly unconstitutional that any person of reasonable reasonableness of the officer’s reliance. constitutionality—with the possible exception of a law so grossly

public interest in prosecuting crimes. Id. (citing Harlow v. Fitzgerald, 457 U.S. 800,

be said to have acted in [objectively reasonable] reliance upon a statute if its creating an exception to the exclusionary rule in this case does not Krull, 480 U.S at 355. Furthermore, “a law enforcement officer [cannot]

Ct. 695, 701 (2009). As the United States Supreme Court explained: “A conduct, whereas the rule is intended to deter unlawful conduct. See Herring v. United States, 129 S. been called one of “good faith” reliance, it turns only upon the objective speculation by enforcement officers concerning its Krull, 480 U.S. at 357. Although this exception has “(perhaps confusingly)” reason, the statute in question must support “objectively reasonable” reliance. favoring the constitutionality of those regulations.

be “a proper balance” between society’s interest in protecting privacy and the

Although society has a strong interest in protecting the right to privacy,

Gravel, 135 N.H. 172, 181 (1991).

this case would deprive the police of the benefit of the products of their lawful Effingham, 148 N.H. 121, 125 (2002). Thus, applying the exclusionary rule in declared unconstitutional. The enactment of a law forecloses See Dow v. Town of Enacting ordinances is a legislative function, and there is a presumption DeFillippo, 443 U.S. 31, 38 (1979). We find this reasoning to be persuasive. constitutionality of laws. As the United States Supreme Court stated in applications to a magistrate, they are not called upon to weigh the

Police are charged to enforce laws until and unless they are

Michigan v. DeFillippo:

Although police are required to provide constitutionally valid warrant

at 387. The same concerns do not arise in this case. warrant, even if approved by a magistrate, would violate our constitution. Id. therefore held that allowing an officer to rely upon a constitutionally defective impugned the integrity of judicially approved warrants. Id. at 386-87. We have permitted police officers to circumvent the warrant requirement and contents of his report, but presented the testimony of his girlfriend to rebut the

p. 5 ordinance. The defendant stipulated that the officer would testify as to the

findings unless they lack support in the record or are clearly erroneous. 19 of our constitution. unnecessary volume,” which was a violation of the Hampton municipal

officer should have known that [it] was unconstitutional,” defendant does not argue that the ordinance was “such that a reasonable stopped has been, is, or is about to be, engaged in criminal activity. officer’s subjective good faith has no bearing upon our analysis. Because the

stop the defendant. In reviewing the trial court’s ruling, we accept its factual reasonable suspicion is an exception to the exclusionary rule in Part I, Article observed the bass of the defendant’s radio to be “at a very loud and objectively reasonable reliance upon an ordinance or statute in forming Roach, 141 N.H. 64, 66 (1996). Here, the officer’s report stated that he the purposes of the exclusionary rule. We therefore hold that an officer’s were no facts that would provide an actual basis for such suspicion. State v. together with rational inferences from those facts, that the particular person The issue, however, is one of objectively reasonable reliance; therefore, an have reasonable suspicion, based upon specific, articulable facts taken For a police officer to undertake an investigatory stop, the officer must

conclusions, however, is de novo. Id. v. Wallace, 146 N.H. 146, 148 (2001). Our review of the trial court’s legal justify a seizure. State officer’s good faith belief that reasonable suspicion exists is insufficient to absent facts that would provide actual basis for reasonable suspicion, an 357, we confine our analysis to whether the officer had reasonable suspicion to

upon a presumptively constitutional ordinance would not be consistent with suspicion would not serve as an exception to the exclusionary rule when there

was in good faith, and thus failed to show that he had reasonable suspicion. nonetheless required because the State failed to show that the officer’s reliance We now turn to the defendant’s argument that suppression was

statement, therefore, remains true notwithstanding our holding today, because,

evidence obtained as a result of an officer’s objectively reasonable reliance context of holding that an officer’s good faith belief that he had reasonable Beauchesne, 151 N.H. at 819. That statement, however, was made in the unequivocally rejected a good faith exception to the exclusionary rule.” would contravene our decision in Beauchesne, where we stated that “we have The defendant argues that not extending Canelo to the facts of this case

Consideration of these factors leads us to conclude that suppression of

on the subjective good faith of individual officers.” Id. 818 (1982)). The standard of reasonableness is objective, and “does not turn meriting an investigatory stop.

that the trial court erred in finding that the officer had reasonable suspicion

ordinance was being violated. Based upon the facts before us, we cannot say observed such conduct would have had reasonable suspicion that the playing loud music is a violation of the Hampton ordinance, an officer who

loud music lacked support in the record or was clearly erroneous. Because

saw fit, and we cannot say that its conclusion that the officer indeed heard BRODERICK, C.J., and DALIANIS and HICKS, JJ., concurred.

As the fact finder, the trial court was free to credit the testimony as it

that she was able to talk on her cell phone without trouble. officer’s statement. His girlfriend testified that the music was not loud and