State v. Maya

• Decision Date: 28 May 1985
• Docket Number: 84-391,Nos. 84-156,s. 84-156
• Citation: 493 A.2d 1139,126 N.H. 590
• Parties: The STATE of New Hampshire v. Michael MAYA
• Court: New Hampshire Supreme Court

Page 1139

493 A.2d 1139

126 N.H. 590

The STATE of New Hampshire v. Michael MAYA

Nos. 84-156, 84-391.

Supreme Court of New Hampshire.

May 28, 1985.

Stephen E. Merrill, Atty. Gen. (Gregory W. Swope, Asst. Atty. Gen., on the brief and orally), for the State in No. 84-156.

James E. Duggan, Appellate Defender, Concord, by brief and orally, for defendant in No. 84-156.

Stephen E. Merrill, Atty. Gen. (Andrew L. Isaac, Asst. Atty. Gen., on the brief), by brief for the State in No. 84-391.

Charles A. Russell, Concord, by brief, for defendant in No. 84-391.

SOUTER, Justice.

The defendant appeals two convictions following separate trials for burglary under RSA 635:1. In each case the superior court denied his motion to suppress evidence. We affirm.

At 12:40 a.m. on August 5, 1983, Officer Murphy of the New London Police Department received a report of a burglary in progress at Dexter's Jewelry Store on Main Street in New London. When he reached the store he found that someone was in it, and shortly thereafter he saw someone run from the rear of the building into the woods. The felon ignored an order to stop. Officer Murphy returned to his cruiser, radioed the information that the burglar had fled to the woods, stated that he would pursue him, and asked for help.

State Trooper Erickson heard the radio transmission and drove to the scene. He noticed a broken window in the back of the burglarized building. He then patrolled the area by car and, at 12:57 a.m., saw the defendant emerge from between two buildings located on the same side of Main Street as Dexter's. The defendant then walked down the street, away from the scene of the crime.

Trooper Erickson stopped the defendant and asked for his name and identification. The trooper noticed that the defendant was sweating and breathing hard. The defendant acted nervously and repeatedly looked up at the street in the direction of Dexter's. He had a fresh abrasion on his nose, and there were drops of blood on his tee shirt.

The defendant gave his name and produced a copy of his birth certificate. He told Trooper Erickson that he was coming from a friend's house further down the street and was anxious to get home, lest he violate his father's curfew. He told the trooper that he had injured his nose in a fight earlier in the evening.

Three minutes after Trooper Erickson had stopped the defendant, and while he was examining the birth certificate, Officer Murphy came upon the scene. He recognized the defendant as the person who had fled from Dexter's, and arrested him for burglary. In a search of the defendant's clothing, incidental to the arrest, the police found a ring taken from the store. Later the police took the defendant's fingerprints which they matched with prints taken from a window at the store.

On November 9, 1983, before trial on the Dexter's burglary charge, the defendant again ran afoul of the law. About 9:00 that evening the dispatcher at the New London Police Department heard obscenities being transmitted on the radio frequency used by the town's fire department. Officer Sidmore was sent to the fire station, where he found a broken window and two portable radios missing from their rechargers. On his way back to the police station he heard more obscenity over the car radio. He parked and went inside the police station to call the fire chief. While he was inside someone smashed his cruiser windows, ripped two radio antennas from the trunk lid and broke a beer bottle against one of the wheels. After this vandalism, the officer noticed that near the cruiser were two rocks the size of grapefruit, unlike any other stones in the area, and he concluded that they had been used to break the car windows.

About 10:00, Sergeant Marshall of the New London Police Department called State Police Trooper Gary Bashaw for help, and later in the evening Trooper Bashaw arrived with his certified Alsatian tracking dog, Bart. After scenting one of the rocks, Bart picked up a scent line which he tracked to the broken window at the fire station, and from there to a restaurant where local youths congregated.

Since it appeared to Trooper Bashaw that Bart was backtracking, the police officers and Bart returned to the cruiser and the rocks. Bart scented one of the rocks again and this time followed a different path to the house where the defendant lived with his family. It was then after midnight. When the defendant's father came out of the house to speak with the police, he said that the family had all been home that evening and that unless the police had a warrant they should leave. They left and took Bart back to the cruiser. Again he rescented one of the rocks, and again took the police to the defendant's house.

The next day, technicians at the New Hampshire State Police Laboratory examined the two rechargers from which the radios had been stolen. They found fingerprints, which they matched with the defendant's. Later that afternoon Sergeant Marshall of the New London Police Department applied for a warrant to search the defendant's house, and in support of his application gave evidence to a magistrate about Bart's tracking and the fingerprint match. The magistrate issued the warrant, and when the police searched the house they found the stolen radios. They then arrested the defendant and charged him with burglary of the fire station.

Before his first trial in the superior court, for the burglary at Dexter's, the defendant moved to suppress all evidence taken as a result of his arrest, which he claimed was illegal. Cann, J. denied the motion. Prior to the second trial, for the fire station burglary, the defendant moved to suppress evidence seized under the warrant. Wyman, J., denied this motion. We consolidated the defendant's appeals from these orders, because each motion challenged, inter alia, the use of the fingerprints taken after the first arrest.

We independently consider his claims first under the Constitution of New Hampshire, State v. Ball, 124 N.H. 226, 231, 471 A.2d 347, 350 (1983), citing decisions of the Supreme Court of the United States and of courts of other jurisdictions for their helpfulness in analyzing and deciding the State issue. See Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 3475-76, 77 L.Ed.2d 1201 (1983). Since in this case we conclude that the federal law is not more favorable to the defendant, we make no separate federal analysis.

We deal first with the motion to suppress all evidence seized as a result of what the defendant claims was the unlawful first arrest. The defendant argues that the arrest by Officer Murphy was unlawful because it would not have occurred without the preliminary detention by Trooper Erickson, which he asserts was unlawful. He thus raises a "fruit of the poisonous tree" claim, that the seizure of evidence was tainted by the illegality of his original detention. See State v. Chaisson, 125 N.H. 810, 815, 486 A.2d 297, 301 (1984).

The State has the burden to justify Trooper Erickson's detention of the defendant as a legitimate investigative stop. See State v. Brodeur, 126 N.H. 411, 493 A.2d 1134 (decided April 19, 1985); State v. Riley, 126 N.H. 257, 490 A.2d 1362 (1985). In Brodeur, we adopted the rule first established in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) that there are circumstances under which the police may temporarily detain a suspect for investigatory purposes, on grounds that do not amount to probable cause to arrest him for the commission of a crime. Such a detention is lawful under the New Hampshire Constitution, part I, article 19 only if the police have an articulable suspicion that the person detained has committed or is about to commit a crime. State v. Brodeur, 126 N.H. at ---, 493 A.2d at 1138. "The scope of the detention must be carefully tailored to its underlying justification ... must be temporary and last no longer than is necessary to effectuate the purpose of the stop." Florida v. Royer, 460 U.S. 491, 500, 103 S.Ct. 1319, 1325, 75 L.Ed.2d 229 (1983); see also State v. Riley supra.

To assess the defendant's claim, then, we must consider the sufficiency of Trooper Erickson's "articulable suspicion," the scope of his inquiry, and its duration. The trooper certainly had sufficient articulable suspicion that the defendant had committed a crime. The evidence indicated that the Main Street of New London was virtually deserted at the time in question. Within about fifteen minutes of a burglary the trooper saw a young man emerge from between two buildings on the side of the street where the burglary had occurred and near the scene. Trooper Erickson knew that another officer had chased a burglar into the woods, and the trooper observed that the defendant was sweaty, breathing hard, nervous, and given to glancing in the direction of the burglarized store. The trooper knew there was broken glass at the scene, and he saw an abrasion and blood on the defendant. This was an articulable basis for suspicion that the defendant had committed the burglary and had fled from the store.

We look next at the scope of the trooper's inquiry, judged in terms of its object. That object was not, as the defendant argues, merely to learn the defendant's identity. Although Trooper Erickson naturally asked for name and identification, his object was to confirm or dispel his suspicion that the defendant was the burglar. In any case, when Officer Murphy arrived, Trooper Erickson was still examining the defendant's birth certificate, and it is sufficient to say that he certainly had not learned anything to dispel his suspicion. Thus the questioning did not exceed legitimate limits.

This conclusion is confirmed by the length of the stop. Length of time is an important factor in assessing the reasonableness of a temporary detention. United States v. Place, 462 U.S. 696, 103 S.Ct. 2637, 2645, 77 L.Ed.2d 110 (1983). The detention in this case lasted only three minutes, in which time...