2013-069, State of New Hampshire v. David Lantagne

photographs of young children. The security officer went to the attraction and uncomfortable seeing an adult ma le use his cell ular tele phone to take she had just left one of the park’s water attraction s because she felt 2011, a female patron at Canobie Lake Park informed a park security officer that defendant’ s motion to suppress or otherwise appear in the record. O n July 6, The following facts either are drawn from the trial court’ s order denying the

abuse images. See RSA 649 - A:3 (Supp. 2013). We reverse and remand. his conviction on stipulated facts of three counts of possessing child sexual Superior Court (Wageling, J.) denying his motion to suppress evidence that led to DALIANIS, C. J. The defendant, David Lantagne, appeals a decision of the

John A. M ac oul, of Salem, by brief and orally, for the defendant.

general, on the brief and orally), for the State. Joseph A. Foster, attorney general (Nicholas Cort, assistant attorney

No. 2013 - 069 Rockingham

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 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 Hampshire, One Charles Doe Drive, Concor d, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New 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

that because “there had been complaints about Defendant by other Park patrons, those pictures on his cell phone and home computer. The trial court reasoned information that Defendant had taken pictures of yo ung girls” and had stored was probable cause for the defendant’s arrest because t he police “had the State and Federal Constitutions. The trial court di sagreed, finding that there arrest was unconstitutional because it lacked probable cause suf ficient to satisfy following his arrest for disorderly conduct, arguing, among other things, that the Before trial, the defendant moved to suppress the evidence obtained

conduct charge was never pursued. According to the defendant, and not disputed by the State, t he original disorder ly images that are the subject of the defendant’s conviction at issue in this appeal. seized from the defendant’s home pursuant to th ose warrants uncovered the child sexual abuse images. Subsequent analysis of the c omputer equipment bedroom and computer equipment, seeking evidence of child pornography and bedroom. The detectives then obtained search warrants for the defendant’s possessed child pornography on a computer and related equipment stored in his detectives interviewed him. After several hours, the defendant admitted that he The defendant was transported to the Salem Police Department, where

officer arrested the defendant for disorderly conduct. See RSA 644: p. 2 2 (2007). photographs from his cell phone to his home computer. At that point, the police photographs at the park and at a local mall. He also admitted that he downloads help. The defendant further admitted that he had previously taken similar attracted to young girls, that he has a problem, and that he needs professional further questioning by the security officer, the defendant admitted that he is using his phone to take photographs of girl s eleven or twelve years old. Upon defendant of his observations, and the defendant admitted that he had been defendant for his identification. Meanwhile, the security officer advised the Park security handed the phone to the police officer, who then asked the

bathing suits on the phone’s screen. the security officer, the security officer observed the “backsides” of young girls in if he would agree to hand him the phone. When the defendant gave his phone to deleting photographs from his cell phone, the security offi cer asked the defendant “frantically” tappi ng the keys of his cell phone. Fearing that the defendant was the defendant to the police officer, the security officer saw the defendant brought the defendant to the officer. As the park security officer accompanied defendant if he would agree to speak with the officer, and, when he agreed, Park security called a Salem police officer to the scene, asked the

wore bathing suits. position where he could view it. Mos t, if not all, of the patrons at the attraction aiming it toward other patrons (including juveniles), and then bringing it to a observed the defendant repeatedly moving his cell phone to the side of his leg, p. 3 3

disorderly conduct if he or she “[e]ngages in fighting or in violent, tumultuous or defendant for violating RSA 644:2, II(a), which provides that a person is guilty of The State argues that the officer had probable cause to arrest the

without deciding, that the Vandebogart standard applies. Because the defendant does not argue for a different standard, we assume, the State, the decision is contrary to the manifest weight of the evidence.” probable cause unless, wh en the evidence is viewed in the light most favorable to which we stated that we would not “overturn a trial court’s determination of cause deferentially, quoting State v. Vandebogart, 1 p. 3 39 N.H. 145, 164 (1994), in The State argues that we review a trial court’s determination of probable

Id. (quotation omitted). everyday life on which reasonable and prudent men, not legal technicians, act.” approach the issue with a concern for the factual and practical considerations of mathematical calculations in making t his determinatio n, but instead must to make out a prima facie case.” Id. (quotation omitted). “We are not bound by probabilities and not the amount of evidence required to sustain a conviction or “In determining whether the police had probable cause, we review reasonable arrestee has committed a crime.” Newcomb, 161 N.H. at 669 (quotation omitted). trustworthy information to warrant a reasonable person to believe that the An officer has probable cause to arrest when he has “sufficient,

detention as a legitimate investigatory stop). Stat e v. Maya, 126 N.H. 590, 595 (1985) (State had burden to justify defendant’s (State bears burden of establishing legality of search at suppression hearing); proof at suppression hearings); c f. State v. Martin, 145 N.H. p. 3 362, 364 (2000) establishing the legality of an arrest. See Super. Ct. R. 94 (State bears burden of 666, 670 (2011). On a motion to suppress, the State bears the b urden of erroneous, but review its legal conclusions de novo. State v. Newcomb, 161 N.H. trial court’s findings unless they lack support in the record or are clearly In reviewing a trial court decision on a motion to suppress, w e accept the

2 p. 3 31 - 33 (1983). and rely upon federa l law only to aid in our analysis. State v. Ball, 124 N.H. 226, amend. IV. We first address the defendant’s claim under the State Constitution the State and Federal Constitutions. See N.H. CONST. pt. I, a rt. 19; U.S. CONST. disorderly conduct. He contends that his arrest without probable cause violated erred when it found that the police had probable cause to arrest him for On appeal, the defendant argues, among other things, that the trial court

which the police had probable cause to arrest. cause to arrest Defendant.” However, the trial court did not identify the crime for concluded that “these facts, taken as a whole, provided [the police] with probable it was likely that if [he] was not arrested, further damage c ould occur.” The court p. 4 4

lacked probabl e cause to arrest the defendant. The trial court’s finding of the evidence in the light most favorable to the State, we co nclude that the officer would have believed occurred, and we are aware of none. Accordingly, viewing 161 N.H. at 669. The State articulates no other crime that a reasonable person threat of imminent harm to any patrons, including the children. See Newcomb, would not have warranted a reasonable belief that the photographer posed a backsides, were taken surreptitiously, or would be uploaded to a computer, Canobie Lake P ark, regardless of whether the photographs were of the chil dren’s Photographing properly - attired children in an open and public portion of

sections.”). a particular provision, not in isolation, but together with all associated 670, 672 (2010) (“We interpret a statute to lead to a reasonable result and review discomfort. RSA 6 p. 4 44:2, II(a); see Appeal of Thermo – Fisher Scientific, 160 N.H. imminent harm to other persons present, and not conduct that merely causes “threatening behavior in a public place” to encompass conduct posing a threat of consequences to other persons present. In context, therefore, we construe “tumultuous” behavior in public – involves conduct with immediate each of the remaining terms in RSA 644:2, II(a) – “fighting,” or “violent” or Webster’s Third New Internation al Dictionary, supra at 1409, 2382. We note that of intention to harm : make a threatening gesture, statement, or act against.” sinister”). The synonym for threaten is “menace,” which means “t o make a show intended to menace[;] . . . causing alarm, as by being imminent; ominous; Unabridged Dictionary 1976 (2d ed. 2001) (“t hreatening” means “tendin g or Dictionary 2382 (unabridged ed. 2002); see Random House Webster’s unpleasant) : indicate as impending.” Webster’s Third New International way of menace or warning . . . to give signs o f the approach of (something evil or punishment, reprisal, or other distress . . . to promise as a threat : hold out by The plain meaning of “threaten” is “to utter threats against : promise

RSA 625:3 (2007). Criminal Code “according to the fair import of [it s] terms and to pro mote justice.” language that the legislature did not see fit to include. Id. We construe the as written and will not consider what the legislature might have said or add plain and ordinary meaning. Id. We interpret legislative intent from the statute examining the language of the statute, we construe that language according to its expressed in th e words of the statute considered as a whole. Id. When interpretation, we are the final arbiters of the intent of the legislature as novo. State v. Mercier, 165 N.H. 83, 85 (2013). In matters of statutory The interpretation of a statute is a question of law, which we review de

least one patron discomfort. behavior by surreptitiously photographing the backsides of children, causing at was probable cause to believe that the defendant engaged in “threatening” threatening behavior in a public place.” Specifically, the State asserts that there p. 5 5

HICKS, CONBOY, LYNN and BASSETT, JJ., concurred.

arguments. We reverse the defendant’s conviction and remand. fruit of the poisonous tree, w e do not reach the defendant’s remaining and that all of the evidence obtained as a result of the a rrest must be excluded as In light of our holding that there was no probable cause for the defendant’s arrest we need not undertake a separate federal analysis. See Mercier, 16 p. 5 5 N.H. at 87. Because we conclude that the defendant prevails under the State Constitution, Therefore, we reverse the denial of the defendant’s motion to suppress.

See id. at 268 - 69. erred by not suppressing the evidence seized pursuant to the search warrants. while he was in custody following his arrest. See id. Th e trial court likewise suppressing the statements and other evidence acquired from the defendant Orde, 161 N.H. at 268. Under these circumstances, the trial court erred by not result of the unlawful arrest, and, therefore, was fruit of the poisonous tree. See acquired from the defendant following his unlawful arrest was obtained only as a Here, because the State does not argue otherwise, all of the evidence

purged). exception under which State proves that the taint of the primary illegality is Cruz, 1 p. 5 58 N.H. at 566 - 68 (describing exceptions to exclusionary rule, including exclusionary rule, the State does not argue that any of them apply. See De L a suppressed.” Orde, 161 N.H. at 268. Although there are except ions to the obtained only through exploitation of an antecedent illegality, it must be De La Cruz, 158 N.H. 564, 566 (2009). “If the evidence in question has been Hampshire Constitution.” State v. Orde, 161 N.H. 260, 268 (2010); see State v. “derivatively obtained through a violation of Part I, Article 19 of the New exclusionary rule require the suppression of any evidence or statements If an arrest is unlawful, the fruit of the poisonous tree doctrine and the

Vandebogart, 139 N.H. at 164. probable cause is contrary to the manifest weight of the evidence. S ee