2025 N.H. 43, State v. Rodriguez

orally), for the defendant. Wilson, Bush & Keefe, P.C., of Nashua (Charles J. Keefe on the brief and

the State. general (Sam M. Gonyea, assistant attorney general, on the brief and orally), for John M. Formella, attorney general, and Anthony J. Galdieri, solicitor

Citation: State v. Rodriguez, 2025 N.H. 43 Case No. 2024 - 0344 Rockingham

THE SUPREME COURT OF NEW HAMPSHIRE

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

station and secured his cell phone as evidence. investigation. The police transported the defendant to the Portsmouth p olice defendant’s cell phone be held until it completed the missing juvenile According to the Portsmouth p olice, the Dover p olice had requested that the and removed various items, including a cell phone, from his possession. the juvenile. See RSA 179:5, I. An officer performed a search incident to arrest [¶5] The officers arrested the defendant for allegedly providing alcohol to

but not too many due to a stomach issue.” alcohol together at a bar. He disclosed that he had consumed “a few drinks, believed the juvenile was over the age of eighteen because they had consumed and befriended the juvenile at a bus stop in Dover. He also stated that he speak with one of the officer s outside the hotel room. He explained that he met [¶4] The defendant, who was twenty - four years old at the time, agreed to

consumed any alcohol, she responded that she had. around the room. When the officer asked the juvenile whether she had neck and legs. He also observed empty beer bottles and alcohol containers apparently unclothed under the covers. The o fficer observed red marks on her the description from the missing juvenile case. She was lying on the bed, [¶3] From the doorway, one of the officers observed a juvenile matching

door to the room, and the defendant answered. believed the missing juvenile was present. One of the officers knocked on the Police Department. Hotel staff directed the officers to the room where the y to a report regarding a juvenile who had been reported missing to the Dover from the Portsmouth Police Department were dispatched to a hotel in response the suppression hearing, or are undisputed. O n October 16, p. 2 2020, officers defendant ’ s motion to suppress, are established by the evidence submitted at [¶2] The following facts are taken from the trial court ’ s order denying the

independent source. Accordingly, we affirm. the defendant’s cell phone pursuant to a search warrant based upon an the defendant’s motion to suppress because the evidence was obtained from obtained from his cell phone. We conclude that the trial court properly denied Court (St. Hilaire, J.) erred by denying his motion to suppress evidence custody, see RSA 6 p. 3 33:4, II ( p. 2 2016). On appeal, h e argues that the Superior prohibited sales, see RSA 179:5, I (2022); and one count of interference with five counts of sexual assault, see RSA 632 - A:4, I(b) (Supp. 2024); one count of B:4, I (2016); two counts of second degree assault, see RSA 631:2, I(f) (2016); 2024); one count of certain uses of computer services prohibited, see RSA 649 three counts of f elonious s exual a ssault (FSA), see RSA 632 - A: 3, II (Supp. counts of possession of child sexual abuse images, see RSA 649 - A:3 (2016); 3

the exclusionary rule are not undermined by admitting the evidence at issue.” was obtained based upon an “independent source,” and that the “purposes of inevitably been arrested following the execution of the search warrant, which Nevertheless, the trial court concluded that the defendant would hav e cell phone, obtained during a search incident to arrest, was unlawful. unlawful. Consequently, it also assumed that the seizure of the defendant’s State’s concession, it would assume without deciding that the arrest was as the State’s concession implies,” the court acknowledged that, due to the motion. Although it observed that “the illegality of the arrest is not as obvious [¶10] The trial court issued a written order denying the defendant’s

multiple times that the defendant’s arrest “clearly wasn’t a lawful arrest.” Portsmouth detective testified. During its argument, the State conceded held a hearing on the motion, at which the two arresting officers and the seizure and that the exclusionary rule should therefore apply. The trial court his cell phone, arguing that it was obtained following an unlawful arrest and [¶9] The defendant thereafter moved to suppress the evidence taken from

sexual abuse images charges. and the defendant, which led t o the manufacture and possession of child the defendant, as well as numerous explicit photos and videos of the juvenile On the defendant’s cell phone, they found messages between the juvenile and executed a search warrant for the hotel room and the defendant’s cell phone. [¶8] T he Portsmouth p olice subsequently applied for, obtained, and

use s of computer services prohibited charges. investigation as “pivotal” to her decision to bring the AFSA, FSA, and certain and the information she gathered from the Dover p olice ’s missing juvenile the suppression hearing, the detective described her interview with the juvenile detective subsequently charged the defendant with several felony offenses. At interviewed. See Miranda v. Arizona, p. 3 384 U.S. 436, 478 - 79 (1966). The the defendant who, after being read his Miranda rights, declined to be [¶7] Following the interview with the juvenile, the detective spoke with

sexual interactions with the defendant. at a bar with the defendant. She also disclosed additional details regarding her train station, stopped to purchas e alcohol, and subsequently consum ed alcohol informed the detective that she ran away from home, me t the defendant at a him how old she was, and discussed her mental health issues with him. She disclosed to the detective that she had met the defendant on Instagram, told interviewed the juvenile. The juvenile, who was fourteen or fifteen years old, the defendant in the hotel room. The Portsmouth detective subsequently disclosed running away from home, consum ing alcohol, and ha ving sex with juvenile investigation. The Dover p olice informed her that the juvenile had the Dover police had already spoken with the juvenile as part of the missing [¶6] When she arrived at the station, a Portsmouth detective learned that p. 4 4

that the initial arrest was unlawful” and proceeded to consider the parties’ the State’s concession on this point, the trial court “assume[d] without deciding expressly conceded before the trial court that the arrest was unlawful. Due to 77 6 - 7 7. N ot only did the State fail to argue that the arrest was lawful, but it State’s burden to establish the legality of the arrest. See Lantagne, 165 N.H. at an officer may conduct a warrantless arrest). In the trial court, it was the were met. See RSA 59 p. 4 4:10 (Supp. 2024) (enumerating circumstances in which has not established that the statutory exceptions to the warrant requirement violated RSA 179:5, I, at the time of his arrest, and he asserts that the State defendant argues that t he police lacked probable cause to believe that he [¶14] We first consider whether the defendant’s arrest was lawful. T he

suppressed.”). been obtained only through exploitation of an antecedent illegality, it must be State v. Lantagne, 165 N.H. 77 p. 4 4, 7 78 (2013) (“If the evidence in question has through a violation of Part I, Article 19 of the New Hampshire Constitution. require the suppression of any evidence or statements derivatively obtained is unlawful, the fruit of the poisonous tree doctrine and the exclusionary rule searches and seizures. State v. O’Brien, 175 N.H. 697, 701 (2023). If an arrest people, their papers, their possessions and their homes from unreasonable [¶13] Part I, Article 19 of the New Hampshire Constitution protects all

See State v. Ball, 12 p. 4 4 N.H. 226, 231 - 33 (1983). under the State Constitution and rely upon federal law only to aid our analysis. Davis, 174 N.H. 596, 600 (2021). We first address the defendant’s claims or are clearly erroneous, and we review its legal conclusions de novo. State v. accept the trial court’s factual findings unless they lack support in the record [¶12] When reviewing a trial court’s ruling on a motion to suppress, we

subsequently obtained from his cell phone was erroneous. contends, the trial court ’s denial of his motion to suppress the evidence unlawful. As a result of th ese violation s of his constitutional rights, he probable cause and that the seizure of his cell phone was therefore also More specifically, he asserts that the police unlawfully arrested him without searches and seizures. See N.H. CONST. pt. I, art. 19; U.S. CONST. amend. IV. his state and federal constitutional rights to be free from unreasonable suppress the evidence obtained from his cell phone constitutes a violation of [¶11] On appeal, the defendant argues that the trial court’s failure to

twenty - seven charges. T his appeal followed. Following a bench trial on stipulated facts, t he defendant was convicted on all p. 5 5

cause the juvenile further injury. See id. officers may have believed that the defendant would have either attempted to conceal evidence or the hotel room “with beer bottles and alcohol containers scattered across the room,” and that the p. 5 594:10, I(c) (Supp. 2024). Specifically, it noted that the juvenile and the defendant were found in of the RSA 594:10, I, exceptions to the requirement for an arrest warrant “could apply.” See RSA “the illegality of the arrest is not as obvious as the State’s concession implies” and opined that one or given away any liquor or beverage to a person under the age of 21”). The trial court stated that (providing that no person “shall sell or give away or cause or allow or procure to be sold, delivered, been inclined to rule that probable cause existed to support the arrest. See RSA 179:5, I (2022) In its written order, the trial court indicated that, but for the State’s concession, it would have 1

not and should not apply in this case.” H e asserts that because his arrest and [¶18] The defendant argues that the “inevitable discovery doctrine does

evidence at issue here.” t he purposes of the exclusionary rule are not undermined by admitting the phone, and the inevitability of discovery of the evidence found on the phone, to the search warrant providing an independent source for the search of the been arrested and his cell phone searched. Thus, the court concluded, “[d]ue following the interview with the juvenile, the defendant would have inevitably warrant was independent of the defendant’s arrest. It further reasoned that, from the Dover Police Department’s missing juvenile investigation, the search defendant’s cell phone after interviewing the juvenile and obtaining information explained that, because the police obtained the search warrant for the and inevitable discovery exceptions to the exclusionary rule. The trial court [¶17] In its order, the trial court considered both the independent source

seizure of his cell phone. from the defendant’s cell phone despite the defendant’s unlawful arrest and the before us is whether the trial court properly admitted the evidence obtained possession of the defendant.” (emphasis a dd ed)). Therefore, the question latitude of both the search and the seizure of things found on or in the 667, 670 (2024), 2024 N.H. 34, ¶ 12 (“A lawful arrest justifies reasonable unlawful. See Lantagne, 16 p. 5 5 N.H. at 7 78; see also State v. N ie bling, 176 N.H. incident to arrest during which the police seized the defendant’s cell phone was [¶16] Based upon the foregoing, we must likewise assume that the search

defendant’s arrest was unlawful. See id. trial court). F or the purposes of this appeal, we will assume that th e State raised for first time on appeal that was contrary to its assertion before Szc z erbiak, 148 N.H. 3 p. 5 52, 355 (2002) (declining to consider argument that concession in the trial court. T hus, we decline to consider it. See State v. arrest was lawful. This argument, however, is contrary to the State’s [¶15] T he State argues for the first time on appeal that the defendant’s

defendant’s cell phone. 1 arguments regarding whether to suppress the evidence obtained from the p. 6 6

juries receive all probative evidence of a crime,’” and properly balanc ing those interest “‘ in deterring unlawful police conduct and the public interest in having [¶21] The independent source doctrine is premised upon society’s

citation omitted). Wong Sun v. United States, 371 U.S. 471, 487 - 88 (19 p. 6 63) (quotations and

distinguishable to be purged of the primary taint. exploitation of that illegality or instead by means sufficient ly evidence to which instant objection is made has been come at by is whether, granting establishment of the primary ille gality, the actions of the police. Rather, the more apt question in such a case simply because it would not have come to light but for the illegal We need not hold that all evidence is fruit of the poisonous tree

States Supreme Court has explained that: Regarding the inquiry as to whether an independent source exists, t he United independent source for the evidence untainted by their misconduct.” Id. exception, the independent source doctrine, applies when “the police have an the purpose s of the exclusionary rule. De La Cruz, 158 N.H. at 5 p. 6 66. One such (1920). There are exceptions when the exclusion of evidence would not further N.H. at 57; see Silverthorne Lumber Co. v. United States, 251 U.S. 385, 392 not, however, automatically and forever become inaccessible. Robinson, 170 [¶20] Evidence initially discovered as a result of unlawful conduct does

logical and necessary corollary to achieve those purpose s. Id. The exclusion of evidence obtained in violation of a defendant’s rights is a compliance with State constitutional protections. De La Cruz, 158 N.H. at 5 p. 6 66. privacy of the victim of the unlawful search or seizure; and (3) to safeguard three purposes: (1) to deter police misconduct; (2) to redress the injury to the discovered as a result of police misconduct.”). The exclusionary rule serves 57 (2017) (“The general rule is that evidence must be excluded if it is State v. De La Cruz, 158 N.H. 564, 566 (2009); State v. Robinson, 170 N.H. 52, from such a search or seizure is inadmissible under the exclusionary rule. warrantless search or seizure is per se unreasonable, and evidence derived [¶19] Under Part I, Article 19 of the New Hampshire Constitution, a

independent source doctrine. with the State and conclude that the trial court properly applied the upon information independent of the unlawful arrest and seizure. We agree the disputed evidence only after obtaining a search warrant that was b ased discovery and independent source doctrines appl y because the p olice obtained access to [his] phone with a warrant.” The State argues that the inevitable phone, and the police’s continued illegal detention of him that allowed them phone was also unlawful. As he frames the issue, “it was the seizure of [his] the search incident thereto were unlawful, the subsequent search of his cell p. 7 7

Miranda rights, the defendant declined to be interviewed at the police station. room, this conversation preceded the defendant’s arrest. After being read his spoke with one of the Portsmouth p olice officers who responded to the hotel Although the detective noted in the supporting affidavit that the defendant contained no information gained as a result of the defendant ’ s arrest. the contents of the defendant’s cell phone. The search warrant application juvenile’s disclosures alone, applied for and obtain ed the search warrant for seized, the Portsmouth police nonetheless would have, based upon the [¶24] Even if the defendant had not been arrested and his cell phone

prior to receiving a lawful search warrant. physical custody of the defendant’s cell phone, they did not search its contents phone and decided to bring additional charges. Although the police had described as “pivotal,” she applied for a search warrant of the defendant’s cell with the defendant. Based upon this information, which the detective online through social media, as well as the details of her sexual interactions interviewed the juvenile, who was forthcoming about meeting the defendant part of the missing juvenile investigation. The detective testified that she then spoke with officers from the Dover p olice who had interviewed the juvenile as suppression hearing that, as soon as she arrived at the police station, she to the Portsmouth p olice. T he Portsmouth detective testified at the upon information gathered from the Dover p olice and the juvenile’s disclosures [¶23] The search warrant application and supporting affidavit were based

but rather upon a source independent of the unlawful arrest and seizure. not upon the fact that the cell phone was being held by the police as evidence, the defendant’s cell phone was obtained pursuant to a search warrant based, primary taint.” Wong Sun, 3 p. 7 71 U.S. at 4 88. Here, the evidence discovered on was obtained “by means sufficiently distinguishable to be purged of the the primary illegality,” the evidence obtained from the defendant’s cell phone custody to search.” We conclude, however, that, “[g]ranting establishment of [him] and illegally seized his phone . . . they would not have had his phone in [¶22] The defendant posits that “[i]f the police had not illegally arrested

from the initial illegality. State v. Holler, 123 N.H. 195, 200 (19 p. 8 83). consideration when applying this doctrine is whether the police have benefitted United States v. Soto, p. 7 799 F.3d 68, 81 - 82 (1st Cir. 2015)). An important cleanly obtained when it arrives through an independent source. ’” Id. (quoting i nformation which is received through an illegal source is considered to be like any others.” Id. (brackets and quotation omitted). “‘ Accordingly, knowledge of facts is gained from an independent source they may be proved 170 N.H. at 57 (quoting Nix v. Williams, 467 U.S. 431, 4 43 (1984)). “If would have been in if no police error or misconduct had occurred. ’” Robinson, interests “‘ by putting the police in the same, not a worse, position that they 8

M AC DONALD, C.J., and COUNTWAY, J., concurred.

under the State Constitution. See State v. Bell, 164 N.H. 452, 456 (2012). Accordingly, we reach the same result under the Federal Constitution as we do discovered by means wholly independent of any constitutional violation.”). (“The independent source doctrine allows admission of evidence that has been Federal Constitution under these circumstances. See Nix, 467 U.S. at 44 3 illegality”). The State Constitution provides at least as much protection as the application contained specific facts obtained prior to the commission of any and warrantless search” and “[t]he affidavit accompanying the warrant officer seeking warrant “left the police station prior to the illegal interrogation an independent source untainted by the illegal interrogation and search” when at 201 (concluding that “the issuance of the [search] warrant . . . was based on the primary taint” of the unlawful arrest and seizure. Id.; c f. Holler, 123 N.H. cell phone was obtained “by means sufficiently distinguishable to be purged of [¶25] Thus, we conclude that the evidence discovered on the defendant’s