2016-0235, The State of New Hampshire v. Andrew Robbins

stop of a vehicle in which he was a passenger. We affirm. motio n to suppress evidence obtained as a result of his arrest following a traffic (2014). H e argues that the Superior Court (Howard, J.) erroneously denied his being a convicted felon in possession of a deadly weapon. See RSA 159:3 LYNN, J. The defendant, Andrew Robbins, appeals his conviction for

and orally, for the defendant. Christine C. List, a ssistant a ppellate d efender, of Concord, on the brief

orally), for the State. Stephen D. Fuller, assistant attorney general, on the brief, and Mr. Chase Joseph A. Foster, a ttorney g eneral (Scott D. Chase, attorney, and

No. 2016 - 0235 Strafford

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

searched the defendant and found a knife in his right front pocket. placed him under arrest. After Moore placed the defendant under arrest, he the defendant to step out. He the n informed the defendant of the warrant and After confirming the warrant, Moore approached the vehicle and asked

additional three to five minutes. the Rochester police station. The warrant confirmation process took an warrant, Moore confirmed with a dispatch er that a copy of the warrant was at issued for the defendant. Because the warrant was not an electronic bench lasted less than three minutes, revealed that an arrest warrant had been whe ther a warrant has been issued for a person’s arrest. This check, which dates of birth through a computer system that allows an officer to determine then returned to his cruiser and checked each of the occupants’ names and each passenger. It took Moore less than one minute to obtain the m. Moore he described as his regular practice, requested the name and date of birth of After obtaining Cahill’s driver’s license, Moore, in accordance with what

number of occupants in the vehicle. occupants’ past behavior and gang affiliation, the time of night, and the for his safety b ecause of these observations, his preexistin g knowledge of the resisted arrest by Rochester police on a prior occasion. Moore was concerned his prior interactions with them. However, Moore was aware that Urrutia had the gang. Neither Cahill nor Urrutia had acted violently towards Moore during aggressively or violently during interactions with police, especially when new to From his training, Moore knew that members of the Bloods are known to act Cahill and Urrutia, indicated to Moore a potential affiliation with the Bloods. red bracelets. The defendant’s clothing, in addition to his association with that the defendant, the rear right - side passenger, was wearing a red shirt and were dressed in red, a co lor affiliated with the gang. Moreover, Moore observed street gang known as the “Bloods.” Moore observed that Cahill and Urrutia Moore knew b oth Cahill and Urr utia were members of a national criminal passenger, Felix Urrutia; and the rear left - side passenger, Amanda Ableman. four occupants from prior traffic stops: the driver, Haley Cahill; th e front Upon approaching the vehicle, Moore immediately recognized three of the

lights, and the vehicle pulled to the side of the road and stopped. stop at a stop sign). The officer fo llowed the vehicle and engaged his emergency stop sign. See RSA p. 2 265:31, II (2014) (requiring vehicles to make a complete roadway). Moore also observed the vehicle fail to make a complete stop at a Rochester. See RSA 265:16 (2014) (requiring vehicles to drive on right side of Toyota Camry traveling down the center of Chestnut Street, a two - way road, in 10:30 p.m., Officer Moore of the Rochester Police Department observed a The p ertinent facts are as follow s. On April 26, 2015, at approximately

warrant checks, the defendant’s third argument affords no basis for granting him relief. Therefore, because we find that there were reasonable grounds for the identification requests and effect of prolonging the stop for a time greater than reasonably necessary to complete these activities. unreasonable, the manner in which Moore carried out these activities was itself improper or had the check s. He makes no independent argument that, if the identification s and warrant check s were not Moore acted unlawfully simply by requesting passenger identification s and conducting the warrant improperly prolonged and its fundamental nature changed is based entirely up on the claim that With respect to the defendant’s third argument, we note that his assertion that the stop was 1

unnecessary to address the defendant’s first and third arguments. 1 based upon an objectively reasonable concern for his safety, we find it Because we conclude that Moore’s request for passenger identification was fundamentally transformed its nature into an investigation of criminal activity. questioning impermissibly prolonged the duration of the stop and reasonable concern for officer safety. Finally, he contends that Moore’s reasonable, art iculable suspicion of danger sufficient to justify an objectively identification and his subsequent warrant check w ere not supported by a course during any traffic stop. Second, he asserts that Moore’s request for permit the police to request the identification of passengers as a matter of decline to adopt a “bright line” rul e, as advocated by the State, that would we should reverse the trial court’s order. First, he contends that we should The defendant advances three arguments in support of his position that

de novo.” State v. Blesdell - Moore, 166 N.H. 18 p. 3 3, 1 87 (2014). support in the record or are clearly erroneous, and we review legal conclusions motion to suppress, we accept the trial court’s factual findings unless they lack Dewitt, 143 N.H. 24, 33 (19 98). “When reviewing a trial court’s order on a that claim and rely upon federa l law merely to aid our analysis. See State v. of his rights only under the New Hampshire Constitution, we limit our review to Article 19 of the State Con stitution. Because t he defendant asserts a violation stop violated his rights to be free from unreasonable seizures under Part I, The defendant asserts that this unjustified expansion of the scope of the traffic scope of the traffic stop by questioning him and cond u cting a warrant check. On appeal, the defendant argues that Moore unlawfully expanded the

defendant guilty. This appeal followed. concern for his safety. Following a b ench trial, the trial court found the justified because he had a reasonable, articulable suspicion of danger and rul ing that Moore ’s request for personal information and warrant check were Following an evidentiary hearing, t he trial court denied the defendant’s motion, of birth and subsequ ently running a warrant check on each individual. scope and duration of the stop by requesting each passenger’s name and date moved to suppress the knife, arguing that Moore unlawfully expanded the in possession of a deadly weapon. See RSA 159: p. 3 3. Prior to trial, the defendant Subsequently, the defendant was charged with one count of being a felon p. 4 4

Court, in People v. Harris, 886 N.E.2d 9 p. 4 47 (Ill. 2008), overruled Gonzalez o n the grounds that the We note, however, that, subsequent to our decision in McKinnon - Andrews, the Illinois Supreme Illinois Supreme Court in People v. Gonzalez, 789 N.E.2d 260 (Ill. 2003), which utilized this test. When we adopted this three - part test in McKinnon - Andrews, we relied upon the decision of the 2

omitted). 2 detention or changed the fundamental nature of the stop.” Id. (quotation circumstances and common sense, the question impermissibly prolonged the articulable suspicion, we must consider whether in light of all the absence of a reasonable connection to the purpose of the stop or a reasonable, constitutional violation occurs.” Id. (quotation and brackets omitted). “In the justify the question.” Id. (quotation omitted). “If th e question is so justified, no law enforcement officer had a reasonable, articulable suspicion that would reasonably related to the purpose of the stop, we must consider whether the occurs.” Id. (quotation and brackets omitted). “If the question is not reasonably related to the purpose of the stop, no constitutional violation the detention or ch anged its fundamental nature.” I d. “I f the question is whether in light of all the circumstances, the question impermissibly prolonged reasonable, articulable suspicion that would justify the question; and (3) initial justification for the stop; (2) whether the law enforcement officer had a questioning, we examine: (1) whether the question is reasonably related to the determine whether the scope of an otherwise valid stop has been e xceeded by permissible. See McKinnon - Andrews, 151 N.H. at 25. Under this test, t o part test for determining whether questioning during a traffic stop i s In State v. McKinnon - Andrews, 151 N.H. 19 (200 p. 4 4), we adopted a three -

facts and circumstances of the particular case.” Id. investigatory stop, or goes beyond the limits of such a stop, depends upon the become u nlawful).” Id. (quotation omitted). “Whether the detention is a lawful metamorphose into an overly prol onged or intrusive detention (and, thus, criminal activity is afoot.” Id. (quotation omitted). “An investigatory stop may activity only if the officer has a reasonable and articulable suspicion that other “The s cope of a stop may be expanded to investigate other suspected illegal the stop.” Blesdell - Moore, 166 N.H. at 187 (quotation and brackets omitted). be temporary, and last no longer than is necessary to effectuate the purpose of investigative stop must be carefully tailored to its underlying justification, must 263 (2007); State v. Pellicci, 133 N.H. 523, 528 (1990). “The scope of such an seized for constitutional purposes. See Brendlin v. California, 551 U.S. 2 p. 4 49, During a traffic stop, both the driver and passengers in the vehicle are

apply if the State proves that the taint of the primary illegality is purged.” Id. inadmissible under the exclusionary rule, though an exception to this rule may of a defendant’s rights under Part I, Article 19 of the State Cons titution is and seizures.” Id. at 187 (quotation omitted). “Evidence obtained in violation their papers, their possessions and their homes from unreasonable searches “Part I, Article 19 of the New Hampshire Constitution protects all people, p. 5 5

decided. Andrews, it continues to provide the governing legal standard by which this case should be s top. See Harris, 886 N.E.2d at 9 p. 5 58 - 61. Because no party ha s asked us to reconsider McKinnon has a bearing on the lawfulness of a traffic stop only if its effect is to prolong the duration of the with subsequent U.S. Supreme Court cases, which make clear that the scope of police questioning inquiry into whether the questioning “chan ged the fundamental nature of the stop” is inconsistent

during their previous encounters with Moore himself, the officer was aware of the known Bloods members, Cahill and Urrutia, had never acted violently gang, and a third whom he suspected to be affiliated with the gang. Although occupants of the vehicle, t wo of whom he knew to be members of the Bloods pulled the vehicle over. Moore was alone and outnumbered four to one by the Here, it was late at night –– approximately 10:30 p.m. –– when Moore

traffic stop to order passengers to step out of vehicle). (holding that safety concerns provide reasonable justification for offic er making (citations omitted)); see also Maryland v. Wilson, p. 5 519 U.S. 408, 414 - 15 (1997) identification from passengers and run background checks on them as well.” reasonable pre cautions to protect his safety.... [A]n officer may ask for (“While a traffic stop is ongoing... an officer has wide discretion to take Andrews test. See United States v. Rice, 483 F.3d 1079, 1084 (10 th Cir. 2007) concerns, and thus, at a minimum, satisfy the second prong of the McKinnon occupants unquestionably constitute a proper means of addressing such requesting identification and conducting warrant checks of the vehicles’ assuming Moore had a reasonable concern for his safety, his actions in disagree. In addressing the defendant’s argu ment, we observe initially that, to the level of reasonable suspicion sufficient to justify Moore’s actions. We arrest. T he defendant contends that th is combination of factors do es not rise vehicle, their susp ected gang affiliation, and Urru t i a’s pri or episode of resisting and conducting warrant checks: the late hour, the number of occupants in the safety sufficient to justify his asking for identification of the vehicle occupants finding that Moore had a reasonable, arti culable suspicion of danger to his In this case, the trial court relied upon the following factors to support its

that intrusion into protected privacy rights.” Id. suspicion must have a particularized and objective basis in order to warrant have committed some kind of crime.” Id. (quotation omitted). “The office r’s specific, not just to a general sense that this is probably a bad person who may must be more than a hunch.” Id. “The articulated facts must lead somewhere unremarkable to an untrained observer.” Id. at 2 p. 6 6. “A reasonable suspicion may make inferences and draw conclusions from conduct that may seem light of all surrounding circumstances, keeping in mind that a trained officer the sufficiency of an officer’s suspicion, we consider the articulable facts in is about to be, engaged in criminal activity. See id. at 2 p. 5 5 - 26. “To determine inferences from those facts, that the particular person stopped has been, is, or suspicion based upon specif ic, articulable facts, taken together with rational We have explained that reasonable, articulable suspicion refers to 6

DALIANIS, C.J.