State v. Perez

• Decision Date: 04 October 2019
• Docket Number: 218-2018-CR-334,218-2018-CR-335
• Parties: STATE OF NEW HAMPSHIRE v. BRIAN JOSEPH PEREZ STATE OF NEW HAMPSHIRE v. JOSE MARIO MELENDEZ
• Court: New Hampshire Superior Court

STATE OF NEW HAMPSHIRE
v.
BRIAN JOSEPH PEREZ

STATE OF NEW HAMPSHIRE
v.
JOSE MARIO MELENDEZ

218-2018-CR-334
218-2018-CR-335

STATE OF NEW HAMPSHIRE SUPERIOR COURT Rockingham, ss

October 4, 2019

ORDER

The matters before the court are the defendants' motions to suppress. The motions are GRANTED with respect to all evidence obtained and derived from the consent search of the motor vehicle in which the defendants were travelling. The request for the search altered the fundamental nature of the traffic stop and was not supported by reasonable and articulable suspicion.

The court apologizes to the parties for the delay in issuing this order.

I. The Stop

(A) Facts Relating To The Stop

Defendants Brian Perez and Jose Melendez were travelling from Connecticut to Maine on Interstate 95 when they were pulled over by State Trooper Michael Arteaga. Melendez was driving. Perez was the only passenger. They were travelling in a Cadillac sedan that belonged to Melendez's ex-wife. Melendez had permission to use the car.

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Trooper Arteaga pulled the Melendez/Perez vehicle over at approximately 6:30 pm on a weekday in early March, 2018. Based on the calendar, the court takes judicial notice that it was dusk, just before sunset. The traffic was light. The weather was good.

Trooper Arteaga first noticed the vehicle as it was leaving the Hampton tolls. The trooper was in an unmarked cruiser, in a small parking lot, parked perpendicular to the highway. He was assigned to the State Police Mobile Enforcement Team ("MET"). The MET is tasked with detecting serious crimes on the highways, such as drug trafficking and human trafficking.

Trooper Arteaga had no prior information about Melendez, Perez, the Cadillac or anybody associated with the vehicle. Indeed, at the time Melendez and Perez drove past his cruiser, the trooper had no information from any agency about any vehicle that might be on I-95 at that time. Trooper Arteaga was simply observing traffic, waiting for either a BOLO or a suspicious vehicle.

The trooper testified that his attention was drawn to the to the Melendez/Perez vehicle because Perez, the passenger, was reclined far back in his seat, making it difficult for Arteaga to view his face from the side of the road. Arteaga found this somewhat suspicious. The court does not.

Arteaga also noticed that the driver had his hands at "ten and two" on the wheel, as drivers are trained to do. The trooper found this to be "odd" and concerning in light of his other observations. The court sees nothing "odd" about Melendez's grasp of the wheel. As the U.S. District Court recently observed in another case involving Trooper Arteaga:

[T]he court finds it difficult to credit—and therefore to defer to—the Trooper's testimony about what facts he found suspicious, especially

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where he testified that [the defendant's] hands on the steering wheel at "ten and two" bolstered his suspicion of criminality. Drivers are taught to drive with their hands on the wheel at "ten and two." [citation omitted]. Were [the defendant's] hands in a position other than "ten and two" and in some way not visible to the Trooper, the Trooper could have used that fact to support a concern that [the defendant] was hiding his hands from the Trooper's view. . . . The bottom line here is that the Trooper's use of these kinds of neutral or innocent facts to support his suspicion of criminality draws into doubt the credibility of his reliance on other facts to support his suspicion of [the defendant's] criminal activity.

Hernandez, 2019 WL 2992045, at *8 (D.N.H. July 9, 2019).

Finally, Trooper Arteaga noted that neither the driver nor the passenger looked in his direction as they were driving. The trooper speculated that they might have been attempting to avoid being noticed by law enforcement. However, the trooper was in an unmarked cruiser, in a parking lot, off the highway, and it was dark outside. The court does not see anything noteworthy about the fact that neither Melendez nor Perez looked towards the trooper's vehicle.

The court also notes that there is a certain "heads-I-win-tales-you-lose quality" to treating the driver's and passenger's reactions to the unmarked vehicle as suspicious. Had either the driver or passenger, or both, turned to face the trooper's vehicle, he could have speculated that they appeared hypervigilant about being observed by the police. Had either looked towards the trooper and then away from the trooper, he could have speculated that they recognized him to be a police officer and then tried to blend in with traffic. What permutation does not fit the profile?¹

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Based on these facts, Trooper Arteaga drove onto the highway and approached the Melendez/Perez vehicle. He then ran its license plate. The plate was from Connecticut. The car was legally registered to a female although both occupants appeared to be male.

The trooper then continued to follow the Cadillac. It was going approximately 67 or 68 miles per hour in a posted 65 mph speed limit. But it continued at that speed after the posted speed limit was reduced to 50 mph. The driver also moved left two lanes, using his signals but starting them too late, after the lane changes had begun.

The trooper then turned on his blue lights and signaled for Melendez to pull over. Melendez pulled over without incident.

(B) Legal Analysis Of The Stop

When a motor vehicle is pulled over by a police officer, both the driver and any passengers are "seized" within the meaning of Part 1, Article 19 of the New Hampshire Constitution and the Fourth Amendment. State v. Hunt, 155 N.H. 465, 470 (2007); Whren v. United States, 517 U.S. 806, 809 (1996); Delaware v. Prouse, 440 U.S. 648, 653 (1979).

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In order to survive constitutional scrutiny, a traffic stop must be supported by reasonable and articulable suspicion of either a motor vehicle infraction or criminal activity. State v. Hight, 146 N.H. 746, 748 (2001); see also, State v. McKinnon-Andrews, 151 N.H. 19, 25-26 (2004); Terry v. Ohio, 392 U.S. 1, 21 (1968).

In this case, the initial stop was plainly constitutional because the trooper observed two motor vehicle infractions, i.e. speeding (RSA 265:60) and making lane changes without first signaling (RSA 265:45).

* * *

While that is the end of the legal analysis for this particular stop, it is not the end of the discussion. Neither Melendez nor Perez has challenged the State Police policy under which the stop was made. Therefore, the factual record regarding that policy is sparse and the legality of that policy has not been briefed. Nonetheless, because tunnel vision is to be avoided, the court looks beyond the quotidian nature of the stop and considers the extraordinary policy behind it.

As noted above, Trooper Arteaga was assigned to the Mobile Enforcement Team which focuses its efforts on detecting felony level crimes on the highways. That assignment meant that Arteaga was not concerned with issuing tickets and warnings for minor motor vehicle violations. Rather, in the absence of reasonable suspicion from other law enforcement officers that a particular vehicle is connected with a crime, a MET trooper's job is to stop motor vehicles for objectively reasonable grounds in the hope of developing or dispelling reasonable suspicion of other, more serious crimes.

Put another way, as the court has learned from prior cases, when MET troopers are not responding to BOLOs, they are specifically tasked by the Department of Safety

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to make pretextual detentions, sometimes for very minor perceived driving infractions. Thus, for example, in United States v. Garcia, 53 F. Supp. 3d 502 (D.N.H. 2014), a MET trooper, who was parked in the very same spot as Trooper Arteaga was in this case, followed a vehicle on a "hunch," and stayed within the driver's blind spot for three miles, until the vehicle's tires partially transgressed the dotted lane line and then corrected by touching the white fog line, whereupon the trooper stopped the vehicle. Garcia, 53 F. Supp. 3d at 504 (D.N.H. 2014); see also, Hernandez, 2019 WL 2992045 at *1 (Trooper Arteaga was parked near the tolls and decided to stop a vehicle that had a license plate registered to a car rental company (because he opined that rental cars are frequently used for drug trafficking), so he caught up with the vehicle and then noticed that it was speeding and travelling too close to the next vehicle, providing the trooper with objectively reasonable grounds to make the stop); State v. Perkins, 218-2018-CR-00263 (a single pine shaped air freshener hung from the rear view mirror); State v. Lamoureux, 218-2016-CR-00167 (car driving through a section of a rest area designated by sign for trucks); State v. Thurston, 218-2016-CR-00874 (left his turn signal on for approximately twelve seconds while travelling in the left lane); State v. Hach, 218-2017-CR-274 (signaled and safe change from one toll booth lane to another across solid white line); State v. Cotton, 218-2014-CR-00209 (tires veered over the white dotted lane line twice over several miles); State v. Longval, 218-2016-CR-00138 (unsignaled lane change).

When an individual stop is challenged, without reference to the policy under which the stop was made, courts cannot look beyond the pretext and must uphold the stop so long as it is supported by an objectively reasonable rationale. Whren; State v.

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McBreairty, 142 N.H. 12 (1997). Put another way, "an officer's motivations are immaterial so long as there exists a valid justification for an investigatory stop." McBreairty, 142 N.H. at 15. "[T]he fact that an officer does not have the state of mind which is hypothecated by the reasons which provide the legal justification for the officer's action does not invalidate the action taken as long as the circumstances, viewed objectively, justify that action." Whren, 517 U.S. at 813.

Query, however, whether Whren and McBreairty foreclose the possibility that a sufficiently de jure departmental...