State v. Reid, 90-253

• Decision Date: 20 March 1992
• Docket Number: No. 90-253,90-253
• Citation: 605 A.2d 1050,135 N.H. 376
• Parties: The STATE of New Hampshire v. Gordon REID.
• Court: New Hampshire Supreme Court

Page 1050

605 A.2d 1050

135 N.H. 376

The STATE of New Hampshire v. Gordon REID.

No. 90-253.

Supreme Court of New Hampshire.

March 20, 1992.

John P. Arnold, Atty. Gen. (Mark S. Zuckerman, Asst. Atty. Gen., on the brief and orally), for State.

James E. Duggan, Chief Appellate Defender, Concord, on brief and orally, for defendant.

HORTON, Justice.

The defendant, Gordon Reid, was tried and convicted in Rockingham County Superior Court (Dunn, J.) on charges of burglary, theft, and two counts of criminal mischief. Prior to trial, he moved to suppress all evidence obtained incident to his arrest on the grounds that he was arrested without probable cause in violation of both part I, article 19 of the State Constitution, and the fourth and fourteenth amendments of the Federal Constitution. He also filed a motion in limine to exclude from evidence a pair of sneakers, seized from him subsequent to arrest, on the grounds that they were not properly authenticated pursuant to N.H.R.Ev. 901. On appeal, he argues that the trial court erroneously denied both motions. We disagree and affirm.

The facts are straightforward. On June 7, 1989, at 2:52 a.m., Officer Janet Champlin of the Portsmouth police discovered that a showroom window at the Goss Lincoln-Mercury car dealership had been smashed. The officer found that two doors had been forcibly opened and that a 1988 Lincoln Continental had been stolen. Another car parked near the showroom had been damaged. Further investigation revealed that a door to the parts department was damaged, and that a sneaker tread pattern impression appeared both on the door and on a piece of plexiglass that had been broken out of it. The stolen automobile was ultimately recovered in Mamaroneck, New York.

Four days later, on June 11, 1989, at approximately 8:30 p.m., Portsmouth Police Officer Timothy Brownell responded to an alarm at Coast Pontiac. Upon arriving at the scene, he observed the defendant walking around inside the dealership. The officer motioned and yelled at the defendant to come to the door, but was ignored. Officer Brownell drew his gun and followed the defendant along the front of the glassed-in lobby, but the defendant disappeared behind a partition, broke through a window, and escaped. During this time, the officer was approximately ten feet from the defendant. Officer Brownell put out a radio broadcast describing a "black male, dark clothes, dark jacket, dark pants, balding on top."

About five minutes after receiving the broadcast, Officer Thomas Winter stopped the defendant approximately one-half mile from the car dealership. At the officer's request, the defendant identified himself. The officer smelled alcohol on the defendant's breath, and noticed that he was sweating and out of breath. The defendant appeared to be agitated or nervous. Officer Winter asked the defendant, who agreed, to wait in the back of the police cruiser until he could be identified. Shortly thereafter, another officer arrived on the scene. The defendant became more agitated and started yelling. He was removed from the police cruiser, frisked, handcuffed, and placed back in the cruiser. Officer Brownell then arrived and identified the defendant as the individual he had seen inside the Coast Pontiac dealership.

The defendant was transported to the Portsmouth police station. Officer Winter observed, at the time of arrest, that the defendant was wearing white leather sneakers, and that there were small particles of glass embedded in the soles of the sneakers. After the defendant was booked at the police station, Officer Winter was directed to secure the sneakers for evidence by placing them in a brown paper bag. He obtained a pair of white leather sneakers from the booking area. He did not observe either the defendant or anyone else remove the sneakers from the defendant's feet during the booking procedure. No other males were arrested or booked that evening.

At trial, a State's expert testified that footwear comparisons have the same scientific validity as fingerprints. He described a match between the sneaker tread and the impressions left on the plexiglass, and stated that he was one hundred percent certain that the sneakers had caused the impression. The defendant was identified at trial by a witness who had observed him driving the vehicle in New York. Based upon this evidence, the defendant was convicted of burglary of Goss Lincoln-Mercury Continental, theft of the Lincoln Continental, and causing damage to the showroom and the other automobile during the burglary.

We first address the defendant's claim that he was arrested absent probable cause. The defendant relies upon both part I, article 19 of the New Hampshire Constitution and the fourth and fourteenth amendments to the United States Constitution. In accordance with our holding in State v. Ball, 124 N.H. 226, 471 A.2d 347 (1983), we first consider the defendant's claims under our State Constitution, and look to federal case law only to aid in our analysis, State v. Gravel, 135 N.H. 172, ----, 601 A.2d 678, 680 (1991); Michigan v. Long, 463 U.S. 1032, 1040-41, 103 S.Ct. 3469, 3476-77, 77 L.Ed.2d 1201 (1983). Because the Federal Constitution does not provide greater protection than does the New Hampshire Constitution in this area, see State v. Chaloux, 130 N.H. 809, 812, 546 A.2d 1081, 1083 (1988), we need not analyze the federal claim separately. We also note that the trial court's decision will not be reversed unless the decision "when viewed in the light most favorable to the State is contrary to the manifest weight of the evidence." Gravel, 135 N.H. at ----, 601 A.2d at 680.

The defendant concedes that the police had sufficient justification to seize him for a brief investigative stop. See State v. Maya, 126 N.H. 590, 595, 493 A.2d 1139, 1143 (1985). He also does not dispute the fact that they had probable cause to arrest him for burglary after Officer Brownell arrived and identified him as the individual seen inside the dealership. Rather, the defendant argues that he was under arrest after he was removed from the police cruiser, handcuffed, placed back in the cruiser, and detained for fifteen to twenty minutes prior to being identified, and that these actions constituted an arrest without probable cause. The State contends that the decision to handcuff the defendant and place him back in the cruiser was reasonable under the circumstances, and did not rise to the level of an arrest.

As the defendant correctly recognizes, "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." Id.; see also State v. Brodeur, 126 N.H. 411, 415, 493 A.2d 1134, 1137-38 (1985); Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). For such a detention to be lawful under the State Constitution, the police must have articulable suspicion that the individual detained "has committed or is about to commit a crime." Brodeur, 126 N.H. at 415, 493 A.2d at 1137-38. Further, "[t]he scope of the detention must be carefully tailored to its underlying justification ... [and the detention] 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), quoted in Maya, 126 N.H. at 595, 493 A.2d at 1143.

A person is considered seized for purposes of part I, article 19 " 'if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.' " State v. Riley, 126 N.H. 257, 262, 490 A.2d 1362, 1366 (1985) (quoting United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497 (1980) (opinion of Stewart, J.)); see Chaloux, 130 N.H. at 813, 546 A.2d at 1084 (stating that Riley adopted Mendenhall test to determine when a seizure has occurred under part I, article 19 of State Constitution). Not every seizure, however, rises to the level of an arrest. Chaloux, 130 N.H. at 813-14, 546 A.2d at 1084. "[A] reasonable perception of loss of freedom to leave signals that a seizure has occurred, but not necessarily that the seizure is an arrest...." Id. at 814, 546 A.2d at 1084. The genus of seizure encompasses not only arrests, but also "those more limited and less intrusive investigative stops on suspicion of crime which are justified by articulable facts that do not amount to probable cause for arrest." Id. at 813-14, 546 A.2d at 1084.

In this case, we find that the defendant was seized when he was handcuffed and then placed back in the police cruiser for the second time, as he could reasonably have perceived that he was not free to leave at that time. In fact, the defendant could not have reasonably believed otherwise. We do not find, however, that the defendant was under arrest at that moment.

The determination of when an arrest occurs depends upon the facts and circumstances of a particular case. State v. Polito, 132 N.H. 410, 412, 566 A.2d 183, 184-85 (1989). Officer Winter was armed with a description of the Coast Pontiac perpetrator when he encountered the defendant. The officer explained that because he was alone, because he smelled alcohol on the defendant's breath, and because the defendant appeared agitated, he asked the defendant to wait in the cruiser until he could be identified. The defendant acquiesced. A second officer arrived at the scene at which time the defendant started yelling from the back seat and generally acting in an agitated manner. The two officers removed the defendant from the police cruiser, patted him down, handcuffed him, and returned him to the cruiser. Moments later, Officer Brownell arrived and positively identified the defendant. The officers felt it necessary to handcuff the defendant for their own safety. See United States v. Levesque, 625 F.Supp. 428, 444 (D.N.H.1985) (permissible for officers to utilize...