State v. Perez

• Decision Date: 15 May 2020
• Docket Number: No. 2018-0647,2018-0647
• Citation: 173 N.H. 251,239 A.3d 975
• Parties: The STATE of New Hampshire v. Miguel FRANCISCO PEREZ
• Court: New Hampshire Supreme Court

173 N.H. 251

239 A.3d 975

The STATE of New Hampshire

v.Miguel FRANCISCO PEREZ

No. 2018-0647

Supreme Court of New Hampshire.

Argued: January 9, 2020

Opinion Issued: May 15, 2020

Gordon J. MacDonald, attorney general (Sean R. Locke, assistant attorney general, on the brief and orally), for the State.

Wadleigh, Starr & Peters, P.L.L.C., of Manchester (Donna J. Brown on the brief and orally), for the defendant.

HANTZ MARCONI, J.

Following a bench trial on stipulated facts, the defendant, Miguel Francisco Perez, was convicted on two counts of possession of a controlled drug with the intent to distribute, subsequent offense. See RSA 318-B:2 (2017), :26 (Supp. 2019). On appeal, he argues that the Superior Court (Wageling, J.) erred in denying his motion to suppress evidence seized pursuant to a search of his rental car following a motor vehicle stop. We affirm.

I

The trial court found or the record supports the following facts. On April 5, 2018, at approximately 10:40 p.m., Trooper Arteaga of the New Hampshire State Police Mobile Enforcement Team was monitoring northbound traffic on Interstate 95 when he observed a black Nissan Altima with a Colorado registration drive by him. Following the car, Arteaga observed that the Altima was following approximately one car length behind a tractor trailer truck and that the driver twice failed to properly signal as he changed lanes to pass the truck. The trooper proceeded to pull the car over after observing these traffic violations. Arteaga testified that the Altima pulled over in a safe manner but that "[i]t came to a slow stop," which he described as one that, in his experience, took longer than usual for the driver to stop the car after acknowledging that he or she was being pulled over.

The trooper approached the passenger side of the vehicle and observed the defendant and a female passenger who was reclining in the front passenger seat. Arteaga asked for the defendant's license and registration. As the defendant handed over his license, his hand was visibly shaking. The trooper also noticed that the tone of the defendant's voice was shaky and frantic when he explained that the Altima was a rental. Arteaga asked the defendant for the rental agreement. In response, the defendant asked the female passenger to retrieve the agreement from the glove compartment. She did not initially react to this request and, instead, stared blankly ahead. After about a minute, the defendant asked her again, at which point she retrieved the rental agreement from the glove compartment and gave it to Arteaga.

From the passenger side of the car, Arteaga began matching the information on the agreement to the defendant's license. As the trooper was comparing this information, the defendant announced that he and his passenger were traveling to Portsmouth. Arteaga testified that he found it suspicious that the defendant would volunteer this information unprompted. While standing at the passenger side of the car, the trooper saw three cell phones in the Altima. According to Arteaga, this was "significant" because he had learned, through his training and experience, that drug traffickers often use "burner" cell phones to conduct their drug-related activities.

At approximately the time the trooper noticed the three cell phones, he also noticed an odor of marijuana emanating from the vehicle. Arteaga testified that he could not recall whether the odor smelled of fresh or burnt marijuana.

The trooper then returned to his cruiser where he queried the Altima's registration and confirmed it was a rental. This information matched the rental agreement from the glove compartment. Arteaga testified that "[r]ental vehicles are known to be used for drug transactions" because they tend to be mechanically reliable and if the registration is queried, the listed owner of the vehicle is the rental company, not the actual driver of the vehicle. Arteaga also confirmed that the defendant's license, showing that he lived in Manchester, was valid. In addition, the trooper learned that the defendant was on parole for murder and that there were no active warrants for his arrest.

After these queries were completed, the trooper approached the Altima again, this time on the driver's side. He asked the defendant if he would exit the vehicle and speak with him at the rear of the car. The defendant agreed and stepped out. While speaking with him, Arteaga noticed that the defendant was nervous and visibly shaking. The trooper testified that "[d]ue to [the defendant's] nervousness and parole status," he asked if he could conduct a pat-frisk of the defendant for weapons. The defendant agreed, and Arteaga found no weapons or other contraband. Arteaga informed the defendant that he would be issuing him a warning for the traffic violations.

Arteaga then proceeded to make "small talk" with the defendant, asking questions about his parole status. The trooper also asked the defendant where he was coming from and where he was going to. The defendant responded that he was coming from Providence, Rhode Island, and was headed to Portsmouth. The trooper then asked the defendant about his female passenger, and the defendant explained that they were friends who had known each other for about a year. Arteaga "inquired further as to what they were doing in Portsmouth because it was close to 11 at night," and the defendant responded by telling the trooper that he could search the Altima. The trooper found this response suspicious because the trooper had not previously mentioned searching the vehicle. Arteaga testified that he believed the defendant was being "overly cooperative" and was trying to "call[ ] [his] bluff" by offering his consent to search and hoping the trooper would not accept the offer.

At this point, Arteaga told the defendant to stay at the rear of the vehicle while he spoke with the female passenger. The trooper asked her where they were coming from and she stated they were coming from Manchester. This response was inconsistent with the defendant's prior answer, which the trooper found suspicious. Arteaga also asked her how long she had known the defendant. She responded that they had known each other for only a few weeks. This answer was also inconsistent with the information provided by the defendant.

Arteaga returned to the rear of the car and asked the defendant if there were any drugs or anything illegal in the vehicle. The defendant said there were not. The trooper then asked the defendant if he could search the vehicle. The defendant replied that he had already told the trooper that he could search the car. Arteaga retrieved a written consent form and attempted to review it with the defendant; however, the defendant was anxious and immediately asked to sign the form. After the defendant signed the form, Arteaga searched the Altima and found two plastic bags containing drugs.

The defendant moved to suppress all evidence obtained as a result of the traffic stop. After an evidentiary hearing, the trial court found that Arteaga lawfully expanded the scope of the stop when he asked the defendant to step out of the vehicle because Arteaga had reasonable, articulable suspicion of drug activity when he made this request. Accordingly, the court denied the defendant's motion. The defendant was subsequently tried before a judge on stipulated facts and was found guilty. This appeal followed.

II

On appeal, the defendant argues that the trial court erred in denying his motion to suppress. He contends that Arteaga did not have reasonable, articulable suspicion to expand the scope of the initial stop and that his questioning impermissibly prolonged the detention and changed its fundamental nature. He argues that his subsequent consent to search the vehicle was "tainted" by this unconstitutional detention. See State v. Hight, 146 N.H. 746, 749, 781 A.2d 11 (2001). The defendant invokes the protections of Part I, Article 19 of the New Hampshire Constitution and the Fourth and Fourteenth Amendments to the United States Constitution. We first address the defendant's claims 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). In reviewing a trial court's order on a motion to suppress, we accept its factual findings unless they lack support in the record or are clearly erroneous. State v. McInnis, 169 N.H. 565, 569, 153 A.3d 921 (2017). We review, de novo, the trial court's legal conclusions. Id.

The essential purpose of the Federal and State constitutional proscriptions against unreasonable searches and seizures " ‘is to impose a standard of "reasonableness" upon the exercise of discretion by government officials ... to safeguard the privacy and security of individuals against arbitrary invasions.’ " State v. McKinnon-Andrews, 151 N.H. 19, 22, 846 A.2d 1198 (2004) (quoting Delaware v. Prouse, 440 U.S. 648, 653-54, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979) ). Part I, Article 19 of the New Hampshire Constitution protects "all people, their papers, their possessions and their homes from unreasonable searches and seizures." State v. Blesdell-Moore, 166 N.H. 183, 187, 91 A.3d 619 (2014) (quotation omitted); see N.H. CONST. pt. I, art. 19. Warrantless seizures are per se unreasonable under Part I, Article 19 unless the State proves by a preponderance of the evidence that the seizure falls within the narrow confines of a judicially crafted exception. State v. Folds, 172 N.H. 513, 517, 216 A.3d 58 (2019).

One such exception allows law enforcement to conduct traffic stops of motorists without a warrant. See McKinnon-Andrews, 151 N.H. at 22-23, 846 A.2d 1198. A traffic stop is a seizure for purposes of the State Constitution. State v. Sage, 170 N.H. 605, 610, 180 A.3d 1098 (2018). The scope of such an investigative stop 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. Id. The scope...