2021-0197, State of New Hampshire v. Juan Alberto Monegro-Diaz

The State appeals an order of the Circuit Court (Stephen, J.) granting the with driving after his license was suspended in violation of RSA 263:64 (2014). DONOVAN, J. The defendant, Juan Alberto Monegro - Diaz, was charged

(Matthew McNicoll on the brief and orally), as amicus curiae. New Hampshire Association of Criminal Defense Lawyers, of Epping

and orally), for the defendant. Dixon & Associates, of Lawrence, Massachusetts (Simon Dixon on the brief

general, on the brief and orally), for the State. John M. Formella, attorney general (Zachary L. Higham, ass istant attorney

No. 2021 - 0197 10th Circuit Court - Salem District Division

page is: https://www.courts.nh.gov/our - courts/supreme - court 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 email 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

the driver of the vehicle before initiating the stop. insufficient to establish that the officer had, in fact, identified the defendant as According to the defendant, the evidence presented a t the hearing was lacked reasonable suspi cion that he was driving with a suspended license. and Fourteenth Amendments to the Federal Constitution because the officer stop was contrary to Part I, Article 19 of the State Constitution and the Fourth suspended. The defendant argued, among other things, that the motor veh icle motor vehicle stop — namely, evidence that he was driving after his license was The defen dant moved to suppress all evidence obtained as a result of the

was suspended. See id. a result, the defendant was charged with one count of driving after his license officer stopped the vehicle and confirmed that the driver was the defendant. As his su spicion that the defendant was driving with a suspended license, the officer also learned that the defendant’s license was suspended. Based upon arrest as well as physical descriptions of th e defendant’s appearance. The Thereafter, the officer reviewed the booking photograph from the p. 2 2019

involved in the p. 2 2019 arrest was the same vehicle that he was following. to the same owner. At the time, t he officer mistakenly believed that the vehicle for driving while under the influence (DUI) while operating a vehicle belonging 2019, an individual subsequently identified as the defendant had been arrested department may have had with the vehicle. The officer then discovered that, in owner, the officer continued to search for any prior contacts that the police female. Ob serving that the male driver did not appear to be the registered terminal and determined that the vehicle was registered to a middle - aged officer searched the license plate number by using his crui s er’s mobile data While f ollowing the vehicle at approximately thirty to forty miles per hour, the officer did not observe any traffic violations or other motor vehicle infractions. driving indicated that the defendant may have been transporting drugs. The experience, the officer believed that t he type of vehicle that the defendant was when a police officer began following him. B ased upon his training and defendant was driving a motor vehicle that belonged to another individual suppression record. At approximately 5:00 p.m. on August 18, 2020, the The following facts are undisputed or are otherwise drawn from the

and remand. the defendant was driving with a suspended lice nse. Accordingly, we affirm who stopped the defendant’s motor vehicle lacked reasonable suspicion that Constitution. W e conclude that the circuit court properly ruled tha t the officer Constitution and the Fourth and Fourteenth Amendments to the Federal erred by ruling that the seizure violated Part I, Article 19 of the State seizure of him and his motor vehic le. The State argues that the circuit court defendant’s motion to suppress evidence obtained as a result of a warrantless p. 3 3

articulable facts in light of all surrounding circumstances, keeping in mind To determin e the sufficiency of an officer’ s suspicion, we consider the

pe rson stopped has been, is, or is about to be engaged in criminal activity. Id. together with rational inferences drawn from those facts — that the particular must have reasonable suspicion — based upon specific, articulable facts taken investigatory stop that is consistent with the State Constitution, the officer (201 p. 3 3). One such exception is an investigatory stop. Id. To undertake an exception to the warrant requirement. State v. Dalton, 165 N.H. 263, 265 warrantless seizure is per se unreasonable unless it falls within a recognized is a seizure for purposes of the St ate Constitution. Sage, 170 N.H. at 610. A unreasonable searches and seizures. N.H. CONST. pt. I, art. 19. A traffic stop Part I, Article 19 of the State Constitution protects citizens from

605, 610 (2018). We review the circuit court’s legal conclusions de novo. Id. lack support in the record or are clearly erroneous. State v. Sage, 170 N.H. motion to supp ress, we accept the circuit court’ s factual findings unless they 124 N.H. 226, 2 p. 3 31 - 33 (1983). When reviewing a circuit court’ s order on a Constitution, relying upon federal law merely to aid our analysis. State v. Ball, We first address whether the motor vehicle stop violated the State

appeal followed. presented to establish [the] identity of the Defendant behind the wheel.” This observations of motor vehicle violations, [and] there was n ot enough evidence pulled over was not unregistered or under suspension, there was no totality of the circumstances,” including its findings that “the car that was an articulable suspicion f or the stop.” The court based its ruling upon “the written order denying the motion and reiterating its ruling that “there was not The State moved for reconsideration. In response, t he court issued a

wearing a mask at the time of the identification. driver and that the officer could not remember whether the defendant was in a car” and “looking at a computer picture” when he attempted to identify the regarding “identification.” The court further noted that the officer “was sitting conclusion, in part, upon “s ome of the arguments” that the defendant made defendant was driving after his license was suspended. The court based this concluded, however, that the officer lacked reasonable suspicion that the license status — were “appropriate” under the circumstances. T he court use of the mobile data terminal to search the license plate and the defenda nt’s bench, the court concluded that the officer’s investigative steps — including his testifying, the circuit court granted the defendant’s motion. Ruling from the descriptions of the defendant’s appearance. After th e officer concluded vehicle he was following by referencing the booking photograph and physical defendant before, he identified the defendant as the operator of the motor At the hearing, the off icer testified that, although he had never seen the The circuit court held a hearing on the defendant’s suppression motion. p. 4 4

Dalton, 165 N.H. at 265 (explaining that “the officer must have a reasonable was ne cessary to identify” the defendant as the driver of the vehicle. See Nonetheless, as the State acknowledges, “an additional investigative step

to the owner of the vehicle that the officer was following. the time of the prior arrest, the defendant was driving a ve hicle that belonged defendant’s license was suspended after he was arrested for DUI and that, at Based upon these searches, the officer correctly determined that the issues, controls, and regulates such licenses and records” (quotation omitted)). licenses and rec ords” was reasonable because “the state is the very body that (holding that “the officer’s subsequent check of associated motor vehicle search of the defendant’ s license status was reasonable. See id. at 6 p. 4 41 reasonable. See id. at 640 - 41. We also agree that the officer’s subsequent officer’s use of his mobile data terminal to search the vehicle’ s li cense plate was Here, in light of our holding in Richter, we agree with the State that the

of RSA 263:6 p. 4 4.” Id. at 642. [gives] rise to a reasonable suspicion that the driver was committing a violation the owner of the vehicle.” Id. We further explained that “[s]uch an inference was not the owner,” it is “reasonable for the officer to infer that the driver was that, when an officer “observe[s] nothing that would indicate that the driver reasonable suspicion to initiate a traffic stop. Id. at 641 - 42. We explained registered owner of a vehicle has a suspended driver’s license may provide (quotation omi tted). We further held that an officer’s knowledge that the Part I, Article 19 of the State Constitution. Richter, 145 N.H. at 640 - 41 conduct,” explaining that such checks are not searc hes within the meaning of computer checks of passing vehicle licenses, withou t suspicion of criminal 640 (2000). In Richter, we recognized “the authority of police to run random To support its argument, the State relies upon State v. Richter, 145 N.H.

known association between the defendant and the owne r of the [vehicle].” light of “his personal observations, the booking photos and descriptors, and a suspended license.” The State argues that this suspicion was reasonable in that the driver of the vehicle was the defendant, and that the defendant had a argues that, “[b] ased on proper investigative techniques, the officer determined driving after his license was suspended in violation of RSA 263:6 p. 4 4. The State concluding that the officer lacked reasonable suspicion that the defendant was Here, the State argues that the circuit court erred as a matter of law by

objective basis to warrant that intrusion into protected privacy rights. Id. some kind of crime. Id. The officer’ s suspicion must have a particularized and general sense that this is probably a bad person who may have committed hunch. Id. T he articulated facts must lead somewhere specific, not just to a N.H. p. 4 440, 446 (2009). A reasonable suspicion must be more than a mere that may seem unremarkable to an untrained observer. State v. Joyce, 1 p. 5 59 that a trained officer ma y make inferences and draw conclusions from conduct 5

was wearing and whether the driver was wearing a mask. Based upon this those steps.” T he officer also admitted that he could not recall what the driver driver’s height, weight, and eye color, the officer responded that he “didn’t use approximately thirty to forty miles per hour. When asked how he identified the this comparison occurred, he was trave ling behind the d efendant at became visible when the vehicle turned. T he officer also testified that, when the driver’s rear - view mirror and “different profiles in the [driver’s] face,” which identified the defendant by comparing that information with his observations of defendant to identify the defendant as the driver. The officer explained that he relied sol ely upon the booking photograph and physical descript ors of the hearing, the officer testifi ed that, h aving never seen the defendant before, he supported by the evidence presented at the suppression hearing. At the We conclude that the circuit court’s credibility finding is reasonable and

clearly erroneous. Sage, 170 N.H. at 610. circuit court’s factual findings unless they lack support in the record or are testimony. S t a t e v. L ivingston, 1 p. 5 53 N.H. 399, 408 (2006). We also accept the reasonable person could have come to the same conclusion after weighing the suppress, we defer to t he circuit court’s credibility determinations unless no testimony in whole or in part.”). W hen reviewing an order on a motion to d iscretion to evaluate witnesses’ credibility and may choose to reject thei r Nyhan, 151 N.H. 739, 743 (2005) (“The [circuit] court, as finder of fact, has the is an issue of fact for the circuit court to decide. See In the Matter of Nyhan & court order is a question of law, which we review de novo.”). Witness credibility Matter of Sheys & Blackburn, 168 N.H. 35, 39 (2015) (“The interpretation of a officer’s testimony regarding his identification of the defendant. S ee In the reasonable suspicion to initiate the stop, the circuit court did not credit the The record demonstrates that, in finding that the officer lacked

the wheel.” enough evidence p resented to establish [the] identit y of the Defendant behind State’s motion for reconsideration, the court explained that “there was not upon “some of the arguments” regarding identification. In its order denying the from the bench, the court sta ted that it was suppressing the evidence based remember certain details regarding his identification of the defendant. Ruling Additionally, in his closing, defense counsel noted that the officer could not physical d escriptors such as height, weight, and eye color f r om his cruiser. officer was following the defendant and that he could not observe several of the officer’s cross - examination, however, defense counsel pointed out that the descriptions that he obtained through his mobile data terminal. During the comparing the driver’s appea rance to the booking photograph and the physical relies upon the officer’s testimony that he identified the defendant by engaged in criminal activity” (quotation omitted; emphasis added)). The State suspicion. . . that the particular person stopped has been, is, or is about to be, p. 6 6

concurred. M AC DONALD, C.J., and HICKS, BASSETT, and HANTZ MARCONI, JJ.,

stop. suppressing any evidence obtained as a result of the unlawful motor vehicle apply here. Accordingly, we conclude that the circuit court did not err by F.3d 37, 40 (1st Ci r. 2017), the State does not argue that any such exceptions exclusionary rule, see Lantagne, 1 p. 6 65 N.H. at 778; United States v. Dent, 867 States, 371 U.S. 471, 485 - 86 (1963). Although there are exceptions to the Fourth Amendment to the Federal Constitution, see Wong Sun v. United the State Constitution, see State v. Lantagne, 165 N.H. 774, 778 (2013), or the of any evidence obtained derivatively through a violation of Pa rt I, Article 19 of not reach the federal issue.”). The exclusionary rule requires the suppression the seizure was illegal under the New Hampshire Constitution, the court need the stop violated the Federal Constitution. See Ball, 124 N.H. at 237 (“Because he i nitiated the motor vehicle stop. Accordingly, we need not address whether ruled that the officer violated Pa rt I, Article 19 of the State Constitution when that, b ecause the offi cer lacked reasonable suspicion, the circuit court properly officer lacked reasonable suspicion to warrant the stop. We further conclude We therefore c onclude that the circuit court did not err by ruling that the

same registered owner would contravene this principle. — merely because an individual was driving a vehicle that belonged to the provide reasonable suspicion — without identifying the defendant as the driver (quotations omitted). To hold that the defendant’s p rior arrest was sufficient to warranting “intrusion into protected privacy rights.” Joyce, 159 N.H. at 44 p. 6 6 19 of the State Constitution requires “a particularized and objective basis” establish reasonable suspicion, we disagree. As explained above, Part I, Article To the extent that the State argues that this “association” was sufficient to the “known association between the defendant and the owner of [the vehicle].” To suppo rt its reasonable suspicion argument, the State also relies upon

the stop. the credibility of the officer’s testimony that he identified the defendant before record, we have no basis to disturb the court’s factual finding with respect to