State v. Pellicci

• Decision Date: 24 August 1990
• Docket Number: No. 88-203,88-203
• Citation: 133 N.H. 523,580 A.2d 710
• Parties: The STATE of New Hampshire v. Thomas PELLICCI.
• Court: New Hampshire Supreme Court

Page 710

580 A.2d 710

133 N.H. 523

The STATE of New Hampshire v. Thomas PELLICCI.

No. 88-203.

Supreme Court of New Hampshire.

Aug. 24, 1990.

Rehearing Denied Oct. 29, 1990.

Stephen E. Merrill, Atty. Gen. (Tina Schneider, Asst. Atty. Gen., on the brief and orally), for the State.

Stephen T. Jeffco, Portsmouth, by brief and orally, for the defendant.

JOHNSON, Justice.

The defendant, Thomas Pellicci, appeals an order of the Superior Court (Mohl, J.) denying his motions to dismiss the charges against him or, alternatively, to suppress evidence. He argues that his stop, search, and ultimate arrest by the Portsmouth Police Department violated his rights against unreasonable search and seizure under part I, article 19 of the New Hampshire Constitution. For reasons that follow, I would affirm.

The superior court denied Pellicci's motions based on the following findings of fact, which remain unchallenged on appeal. Beginning in late June and continuing through late August 1987, the Portsmouth Police Department conducted an investigation of controlled substance sales in the Portsmouth area, concentrating its efforts on detecting such sales at the Club Excalibur, a Portsmouth drinking establishment. During July and August, a team of officers conducting surveillance at the club noted a suspicious pattern in the behavior of defendant Pellicci, who was then a club patron. On four or five documented occasions, Pellicci left the club with another patron, usually a female, and drove with that patron on precisely the same route from the club to either a municipal parking lot next to the BankEast Building or a neighboring parking lot at the South playground. In each instance, Pellicci and his passenger remained parked in one of the two lots for fifteen to twenty minutes, without exiting the vehicle, and then returned to the club. On one of these occasions, the passenger appeared to the officers to hand Pellicci money. On another, a member of the surveillance team saw a male, seated in the front passenger's seat, bend over twice at the waist, in a manner which, in his experience, was characteristic of persons inhaling cocaine.

On August 26, 1987, following the observations described above, a confidential source informed Portsmouth Detective Steven Demo that Pellicci sold cocaine from his vehicle on a regular basis, but that, fearing the presence of undercover officers, he refused to make sales in the Club Excalibur itself. According to Detective Demo's testimony, this informant also supplied information leading to the August 26th arrest of another person on a drug-related charge.

During the afternoon of August 27th, Detective Demo contacted Patrolman Michael Ronchi, who cares for and handles the Portsmouth Police Department's drug detection dog, and asked that he and Patrolman James Prendergast take up a position along the route Pellicci customarily followed between the club and the earlier described parking lots. Detective Demo testified that he ordered the patrolmen to stop Pellicci's vehicle for investigation by the drug detection dog if Pellicci left the club with another patron and embarked on this customary route.

[133 N.H. 527] At 7:15 that evening, Pellicci did leave the club, with a female patron, and took the route he had followed to the parking lots on previous occasions. When he passed the spot where Patrolmen Ronchi and Prendergast were waiting, they pulled out behind him, and he stopped almost immediately. It is unclear whether the officers turned on their blue lights before Pellicci pulled over, or only after he had stopped and was exiting his vehicle. Patrolman Prendergast instructed Pellicci, who was leaving the area on foot, to return to his position behind the wheel and then requested his identification, while Patrolman Ronchi accompanied the drug detection dog around the outside of the vehicle. During their circuit, the dog "alerted" Patrolman Ronchi to the possible presence of controlled substances at the space between the passenger side door of the vehicle and the vehicle's frame, and at one of the wheel wells.

Following the dog's alert, Patrolman Ronchi directed Pellicci to exit the vehicle and performed a pat search of his clothing, uncovering a cigarette box in his shirt pocket. Ronchi testified that, in his experience, such boxes are often used to carry controlled substances. On opening this box, Ronchi discovered seven paper packets containing a white powder that appeared to him to be cocaine. The box also held three hand-rolled cigarettes. The patrolmen then arrested Pellicci and took him to the Portsmouth police station where, during booking, they also discovered among his possessions a vial containing a small amount of white powder. Later laboratory analysis confirmed that the paper packets and vial contained cocaine and that marijuana was present in the three cigarettes. On the basis of this evidence, a Rockingham County Grand Jury indicted Pellicci for the felonies of possession of cocaine and possession of cocaine with intent to sell, see RSA 318-B:2, I (Supp.1989), and the Rockingham County Attorney filed two informations charging him with the misdemeanors of transportation and possession of marijuana, see id.

At the parties' request, the superior court consolidated a hearing on Pellicci's alternative motions to dismiss charges or suppress evidence with a jury-waived bench trial. It subsequently denied both motions and found Pellicci guilty of each of the four crimes with which he was charged. In denying the motions, the superior court determined, in response to arguments to the contrary, that: (1) Portsmouth police officers possessed facts sufficient to justify an investigative stop of Pellicci's vehicle for the purpose of allowing the drug detection dog to sniff its exterior; and (2) the dog's alert gave the officers probable cause to search Pellicci's person. The court further denied Pellicci's request to reconsider its decision on the motions, and this appeal followed.

Pellicci challenges the superior court's determinations in several respects on appeal. He argues first that his detention was not a mere investigative stop, see Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), which officers may conduct on the basis of a reasonable and articulable suspicion that the person detained has committed or is about to commit a crime, but was a full-blown seizure, demanding both probable cause to suspect criminal activity and a warrant, or circumstances sufficient to satisfy one of the established exceptions to the warrant requirement. Second, Pellicci says, if the initial seizure was properly characterized as an investigative stop, officers nevertheless lacked the reasonable and articulable suspicion necessary to justify such a stop. Third, even conceding appropriate justification, use of the drug detection dog was itself a search exceeding the bounds of the brief and very limited intrusion authorized, and therefore required probable cause. Finally, Pellicci contends, because the State failed to produce sufficient evidence of the drug detection dog's reliability, the superior court erred in finding that the dog's alert gave the officer probable cause to search his person. He argues, that any of these violations requires the suppression of all evidence seized as a consequence and that the resulting lack of evidence warrants dismissal of the charges against him.

The State responds that Pellicci's initial detention both was supported by a reasonable and articulable suspicion and was sufficiently brief and unintrusive to be classified appropriately as an investigative stop. Furthermore, it says, so far from being a search requiring probable cause, the use of the drug detection dog was not a search at all within the meaning of the State and Federal Constitutions. Finally, it claims, evidence as to the dog's reliability was clearly sufficient to support a determination of probable cause to search Pellicci's person, and all of the evidence in question was thus admissible at trial.

An officer who stops a motor vehicle seizes both vehicle and occupants for purposes of part I, article 19 of the New Hampshire Constitution. See State v. Parker, 127 N.H. 525, 529, 503 A.2d 809, 811 (1985) (addressing State and Federal Constitutions); State v. Oxley, 127 N.H. 407, 410, 503 A.2d 756, 759 (1985) (addressing Federal Constitution). Under carefully defined circumstances, however, we have interpreted our constitution, like its federal counterpart, to permit certain investigative stops on the basis of less than probable cause because they are substantially less intrusive than an arrest. See State v. Brodeur, 126 N.H. 411, 415, 493 A.2d 1134, 1137-38 (1985) (adopting the rule established in Terry v. Ohio, 392 U.S. at 26-27, 88 S.Ct. at 1882-83 (1968), that under some circumstances police may detain a person for investigatory purposes on grounds not amounting to probable cause to arrest).

In determining whether the grounds for a particular stop meet constitutional requirements, we balance the governmental interest that allegedly justified the stop against the extent of the intrusion on protected interests. Parker, supra 127 N.H. at 530, 503 A.2d at 812. To this end, we require the investigating officer to have undertaken the stop on the basis of a reasonable suspicion that the person detained had committed, was committing, or was about to commit a crime, State v. Maya, 126 N.H. 590, 595, 493 A.2d 1139, 1143 (1985), and we insure that the adequacy of this suspicion is the subject of neutral scrutiny by requiring the officer to " 'be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant [the] intrusion.' " Brodeur supra (quoting Terry, supra 392 U.S. at 21, 88 S.Ct. at 1880). We further guarantee that the seizure is sufficiently unintrusive by permitting detentions on the basis of less than probable cause...