State v. Oxley

• Decision Date: 04 December 1985
• Docket Number: No. 84-383,84-383
• Citation: 127 N.H. 407,503 A.2d 756
• Parties: The STATE of New Hampshire v. Robert OXLEY.
• Court: New Hampshire Supreme Court

Page 756

503 A.2d 756

127 N.H. 407

The STATE of New Hampshire v. Robert OXLEY.

No. 84-383.

Supreme Court of New Hampshire.

Dec. 4, 1985.

Stephen E. Merrill, Atty. Gen. (Steven L. Winer, Asst. Atty. Gen., on the brief), by brief for State.

Joanne S. Green, Asst. Appellate Defender, Concord, by brief for defendant.

KING, Chief Justice.

The defendant, Robert Oxley, was convicted of burglary after a trial in the Superior Court (Goode, J.). RSA 635:1. He appeals, asserting that, because the arresting officer had neither justifiable reason for stopping him nor probable cause for arresting him, the Superior Court (Dalianis, J.) should have granted his pre-trial motion to suppress the admission of statements made by him and evidence seized by the police. The defendant also claims that the trial court erred in denying his motion to prohibit access to his juvenile record for consideration in sentencing. We affirm.

On March 19, 1984, at approximately 2:30 in the morning, Officer Clifton A. Moore, Jr., of the Manchester Police Department observed a tan Saab driving through the Webster Street area of Manchester. He noticed what appeared to be furniture in the back of the car "sticking out like it was going to fall out onto the road," and was concerned that it was not secure. The Saab turned onto another street and started to accelerate. Officer Moore testified that the car did not speed up in the usual manner after making the turn, and that it seemed to him that the driver was attempting to get away.

Officer Moore put his flashing blue lights on, pulled out and followed the Saab for approximately five blocks. He testified that the driver of the Saab should have noticed him, because it was dark, the blue lights were on, and they were the only two cars on the street. The Saab drove up a hill, with the furniture remaining intact, before the driver pulled over for Officer Moore.

The Webster Street area is generally residential with a few businesses. Officer Moore testified that, in the Webster Street neighborhood, traffic is light at that hour in the morning; that there "wasn't anybody really moving" on that particular night; and that "[e]verything was closed up." It had been raining heavily earlier that evening, and at 2:30 that morning the weather was still misty. Officer Moore had had patrol duty in the area since January 3, 1984, and he knew that the area had "been getting hit pretty heavily with burglaries" in the weeks just before this incident.

After the Saab pulled over, Officer Moore illuminated the area with some spotlights, reported the Saab's location and plate number, and then approached the car. He now ascertained that the items in the back of the Saab were furniture. Officer Moore asked the defendant, who was driving, for his license and registration. The defendant handed over his license and looked for his registration. As he did so, Officer Moore looked at the articles of furniture and noticed sales tags and price markings on them.

Officer Moore took the license and the keys to the car, and then asked the defendant about the furniture. The defendant said that he had bought the furniture from a man in the parking lot of the Puritan Furniture Store (Puritan Furniture), which is approximately one-half mile from Webster Street. The officer had noticed that the furniture looked expensive, so he asked the defendant if he had a bill of sale. The defendant had no sales slip, nor did he know the registration of the van from which the furniture had allegedly been sold. Officer Moore read the defendant his Miranda rights and then told the defendant that he didn't believe his story.

At that point, Officer Brian J. Fielding of the Manchester Police Department arrived on the scene. Officer Moore asked Officer Fielding to check out Puritan Furniture's security. Officer Fielding went to Puritan Furniture, which was a "couple of minutes" away, and discovered that it was open and had been burglarized.

After Officer Fielding had left the scene of the stop to check out Puritan Furniture, Officer Albert J. Moseley of the Manchester Police Department arrived. Officer Moseley told Officer Moore that he had seen a vehicle fitting the description of the defendant's automobile in the Puritan Furniture parking lot earlier that evening. Officer Fielding then returned and reported that Puritan Furniture had been burglarized.

The defendant said that he had not broken into Puritan Furniture, and that he had found the furniture outside the building. Officer Moore told the defendant he didn't believe his story because it had been raining all night and the furniture was dry. He then told the defendant that he was under arrest.

The defendant was charged with burglary, and the furniture in his car was seized. After a hearing, a motion to suppress was denied, and the furniture was used as evidence in the defendant's trial. A jury found the defendant guilty, and he was sentenced to 3 1/2 to 7 years in the State prison. This appeal followed.

The defendant argues that Officer Moore's initial stop violated his fourth amendment right to be free from unreasonable searches and seizures, and that the trial court therefore erred in denying his motion to suppress all evidence obtained as a result of the stop.

The defendant has raised no State constitutional issues in support of this part of his appeal. He argues only that his federal fourth amendment rights have been violated. Therefore, we need only address the federal constitutional issues in this assignment of error. State v. Miskolczi, 123 N.H. 626, 628, 465 A.2d 919, 920 (1983).

When a police officer stops a motor vehicle and detains its occupants, he has "seized" it and its occupants within the meaning of the fourth amendment to the United States Constitution. See Terry v. Ohio, 392 U.S. 1, 8, 9, 88 S.Ct. 1868, 1872, 1873, 20 L.Ed.2d 889 (1968); Berkemer v. McCarty, 468 U.S. 420, 104 S.Ct. 3138, 3149, 82 L.Ed.2d 317 (1984); United States v. Mendenhall, 446 U.S. 544, 556-57, 100 S.Ct. 1870, 1878, 64 L.Ed.2d 497 (1980) (opinion of Stewart, J.); United States v. Brignoni-Ponce, 422 U.S. 873, 878, 95 S.Ct. 2574, 2578, 45 L.Ed.2d 607 (1975); State v. Koppel, 127 N.H. 286, 499 A.2d 977 (1985) (discussing Federal constitutional law in deciding case on State constitutional grounds); State v. Landry, 116 N.H. 288, 289, 358 A.2d 661, 663 (1976). In this case the defendant was "seized" when Officer Moore flashed the blue lights of his cruiser and pulled the Saab over. To assess the defendant's claim, we must consider the reasonableness of Officer Moore's actions.

The facts which are a sufficient basis to support an investigative stop need not necessarily reach the level of those needed to support an arrest. See United States v. Hensley, 469 U.S. 221, 105 S.Ct. 675, 680-81, 83 L.Ed.2d 604 (1985); Adams v. Williams, 407 U.S. 143, 145, 146, 149, 92 S.Ct. 1921, 1922, 1923, 1924, 32 L.Ed.2d 612 (1972); State v. Brodeur, 126 N.H. 411, ---, 493 A.2d 1134, 1137 (1985); State v. Landry, supra 116 N.H. at 290-91, 358 A.2d at 664. To justify an investigative stop, a police officer must possess "articulable facts ... together with rational inferences from those facts [which] 'warrant a man of reasonable caution in the belief' that the action taken was appropriate." Terry v. Ohio, supra 392 U.S. at 21-22, 88 S.Ct. at 1879-80. Furthermore, "[t]he scope of the search must be 'strictly tied to and justified by' the circumstances which rendered its initiation permissible." Id. at 19, 88 S.Ct. at 1878 (quoting Warden v. Hayden, 387 U.S. 294, 310, 87 S.Ct. 1642, 1651, 18 L.Ed.2d 782 (1967) (Fortas, J., concurring)).

Officer Moore's first "articulable fact" was his observation that the furniture in the back of the car appeared insecure. In State v. Maynard, 114 N.H. 525, 323 A.2d 580 (1974), this court was presented with an analogous situation. We held that officers may stop a vehicle "when they in good faith reasonably believe that the driver ... may be ill and physically unfit to drive." Id. at 527, 323 A.2d at 581.

In this case, the officer stopped a single motor vehicle for an investigative check, to ensure that the furniture did not fall onto the public highways and endanger other drivers. Officer Moore's initial reason for stopping the defendant's car, although not based on a suspicion of criminal activity, was sufficient to justify the stop.

In addition, Officer Moore also testified to specific facts giving rise to a reasonable suspicion of criminal activity. He stated that recently there had been several burglaries in the area, that it was 2:30 in the morning, that all the buildings were closed up, and that nobody was moving about. Furthermore, when the officer pulled over and watched the defendant's car proceed, he observed that it took what appeared to be evasive action.

The United States Supreme Court has stated that officers may consider the characteristics of the area in which they encounter a vehicle, as well as the driver's behavior. United States v. Brignoni-Ponce, 422 U.S. at 884-85, 95 S.Ct. at 2581-82. "The driver's behavior may be relevant, as erratic driving or obvious attempts to evade officers can support a reasonable suspicion." Id. at 885, 95 S.Ct. at 2582. "And in determining whether the officer acted reasonably in [the] circumstances, due weight must be given ... to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience." Terry v. Ohio, 392 U.S. at 27, 88 S.Ct. at 1883.

Officer Moore's concern for protecting the furniture and his suspicion of the driver's unnatural acceleration were reasonable bases warranting a limited intrusion upon the personal security of the driver. A person of reasonable caution would believe it appropriate to stop the Saab in order to check the security of the furniture and to ascertain whether the driver's evasive actions were related to any unlawful activity. The scope of Officer Moore's...