State v. Almeida, 2019-0603

CourtSupreme Court of New Hampshire
Writing for the CourtBASSETT, J.
Citation174 N.H. 464,265 A.3d 1213
Parties The STATE of New Hampshire v. David ALMEIDA
Docket NumberNo. 2019-0603,2019-0603
Decision Date29 September 2021

174 N.H. 464
265 A.3d 1213

The STATE of New Hampshire

No. 2019-0603

Supreme Court of New Hampshire.

Argued: January 14, 2021
Opinion Issued: September 29, 2021

Gordon J. MacDonald, attorney general (Daniel E. Will, solicitor general, Benjamin W. Maki, assistant attorney general, and Elizabeth C. Woodcock, assistant attorney general, on the brief, and Elizabeth C. Woodcock orally), for the State.

Stephanie Hausman, deputy chief appellate defender, of Concord, on the brief and orally, for the defendant.


174 N.H. 465

The State appeals an order of the Circuit Court (Mace, J.) granting a motion to suppress the blood alcohol concentration

265 A.3d 1214

(BAC) test results of the defendant, David Almeida, who is charged with driving under the influence of alcohol. See RSA 265-A:2 (2014). This case presents the question whether the performance of a BAC test on a blood sample, which was drawn by the State with the defendant's valid consent, constitutes a search within the meaning of Part I, Article 19 of the New Hampshire Constitution or the Fourth Amendment to the United States Constitution. Because we conclude that it is not a search, we reverse and remand.

The following facts are undisputed or are otherwise supported by the record. On April 6, 2019, an officer of the Bethlehem Police Department stopped the defendant on suspicion of driving under the influence of alcohol. The officer administered a field sobriety test and placed the defendant under arrest. After the officer informed the defendant of his administrative license suspension rights, the defendant consented to provide the State with a blood sample to determine his BAC. Shortly thereafter, a blood sample was drawn by the State. The New Hampshire State Forensic Laboratory received the sample, but it did not immediately perform a BAC test.

On April 19, the defendant's counsel sent a letter to inform the State that the defendant had withdrawn his consent to the BAC test, demanded the return of the sample, and designated CG Labs, LLC as the defendant's agent to receive it. On April 24, the president of CG Labs tried to retrieve the sample, but state laboratory personnel refused to relinquish it because it was already logged into the system. The next day, the state laboratory performed a BAC test on the blood sample, revealing that, at the time of the defendant's arrest, his BAC was 0.157 — nearly twice the legal limit. See RSA 265-A:2, I(b).

The defendant was charged with driving under the influence of alcohol in violation of RSA 265-A:2. He filed a motion to suppress the BAC test

174 N.H. 466

results, arguing that the State violated his right to be free from an unreasonable search when, after he withdrew consent, it performed a BAC test on his blood sample without a warrant. After a non-evidentiary hearing, the trial court granted the defendant's motion. The trial court reasoned that, because the defendant had a legitimate expectation of privacy "in his blood and in physiological data within it," the BAC test was a search. The trial court also concluded that the defendant withdrew his consent to the search before the State performed the BAC test, and that the search was not justified by any other exception to the warrant requirement. The State filed a motion for reconsideration, which was denied. This appeal followed.

On appeal, the State argues, among other things, that the BAC test was not a search within the meaning of Part I, Article 19 of the State Constitution or the Fourth Amendment to the Federal Constitution because the defendant lacked a legitimate expectation of privacy in his BAC. Specifically, the State contends that the defendant lacked a subjective expectation of privacy in his BAC because he voluntarily gave a blood sample to the State, and that he lacked an objectively reasonable expectation of privacy in his BAC because of the reduced expectation of privacy an individual has while driving. The defendant counters that the BAC test was a search because he has "a significant privacy interest in his blood," which contains a "vast amount of personal information" including genetic predispositions, family connections, and private medical facts. We agree with the State.

When reviewing a trial court's ruling on a motion to suppress, we accept the trial court's factual findings unless they lack support in the record or are clearly

265 A.3d 1215

erroneous, and we review its legal conclusions de novo. State v. Bazinet, 170 N.H. 680, 683, 184 A.3d 448 (2018). We first address the State's argument under the State Constitution and rely upon federal law only to aid our analysis. State v. Ball, 124 N.H. 226, 231-33, 471 A.2d 347 (1983).

Part I, Article 19 of the New Hampshire Constitution provides, in relevant part, that "[e]very subject hath a right to be secure from all unreasonable searches and seizures of his person, his houses, his papers, and all his possessions." N.H. CONST. pt. I, art. 19. Because the constitution protects individuals only from unreasonable searches within the meaning of Part I, Article 19, we must first determine whether the challenged governmental conduct is a search. See In re Anthony F., 163 N.H. 163, 165-66, 37 A.3d 429 (2012). Here, the defendant concedes that the State lawfully withdrew the blood sample with his consent. Therefore, the narrow question before us is whether, under these circumstances, the BAC test constituted a search.

174 N.H. 467

In order to determine whether a governmental intrusion constitutes a search within the meaning of Part I, Article 19, we ask: (1) whether the defendant exhibited a subjective expectation of privacy; and (2) whether that expectation is one that society is prepared to recognize as reasonable. See Bazinet, 170 N.H. at 684, 184 A.3d 448 ; see also State v. Goss, 150 N.H. 46, 48-49, 834 A.2d 316 (2003). Because we conclude that society is not prepared to recognize as reasonable an expectation of privacy in the defendant's BAC, we need not decide whether he had a subjective expectation of privacy. See State v. Davis, 161 N.H....

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