State v. Riley

Decision Date20 March 1985
Docket NumberNo. 83-194,83-194
Citation490 A.2d 1362,126 N.H. 257
PartiesThe STATE of New Hampshire v. Arthur R. RILEY, Jr.
CourtNew Hampshire Supreme Court

Gregory H. Smith, Atty. Gen. (Amy L. Ignatius, Concord, on brief and orally), for the State.

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

DOUGLAS, Justice.

The defendant, Arthur R. Riley, Jr., was convicted in Superior Court (Souter, J.) on a charge of negligent homicide, RSA 630:3, II. On appeal, the defendant raises two issues for review: first, whether the results of his blood alcohol content test should have been excluded as the product of an unlawful arrest; and second, whether the process of drawing the blood for a blood analysis may be conclusively presumed valid under RSA 265:90 (1982) (since amended), where neither the defendant nor the State requests the production of the technician who drew the blood. We affirm.

On the evening of September 13, 1982, the defendant was driving a U-Haul truck when it struck a tree in Hooksett. The passengers at the time included two adults and four children. At the moment of impact, part of the shell cover was torn from the back of the truck and one of the children was thrown onto the road, where she sustained fatal injuries. The other passengers were injured as well.

Hooksett Police Officer Massey was the first police officer to arrive at the scene, and after he observed the deceased and two passengers in the truck, Officer Stout arrived. Officer Massey instructed Officer Stout to locate the driver of the truck and determine the number of people involved in the accident. At that time, the police had received conflicting estimates of the number of people involved in the accident, ranging from five to nine, and were concerned that one of the passengers might have been thrown into a nearby pond.

While Officer Massey was examining the damage, he found two or three six-packs of beer and a bottle of pre-mixed cocktail preparation in the cab of the truck. At the same time, Officer Stout recorded the names of the passengers still in the truck and spoke with Ms. Bourgoin, one of the passengers. At the hearing on the motion to suppress, Officer Stout testified that it was at this time that he was able to establish the number of people involved in the accident as seven.

After Officer Stout returned to the cruiser, a woman who lived adjacent to the accident scene approached him and informed him that the driver of the truck had made a telephone call from her house. She indicated that the driver was on her front lawn and asked the officer if he wanted to talk with him. Officer Stout approached the defendant, who was kneeling on the lawn in an hysterical condition.

Officer Stout asked the defendant to accompany him to the cruiser, to which the defendant responded, "I didn't do it on purpose," and "she's dead, isn't she?" As he brought the defendant to the cruiser, the officer said nothing further to the defendant, who continued to cry and to repeat similar statements. The evidence at the hearing on the motion to suppress was conflicting as to whether the defendant was immediately placed inside the cruiser or instead spoke with the officer outside it. Neither party, however, disputes that it was while questioning the defendant, at the cruiser, as to the number of people involved in the accident, that Officer Stout smelled a strong odor of alcohol on the defendant's breath and noticed his slurred speech. Stout asked the defendant to remain in the vehicle and went to inform Officer Massey that he had found the driver.

Officer Massey went to the cruiser, where he also noticed a strong smell of alcohol coming from the defendant. Officer Massey then placed the defendant under arrest for driving while intoxicated. The officer advised the defendant of his rights and obligations under the implied consent law and asked him to submit to a blood alcohol content test. The defendant agreed to a blood test and was taken by the police to a hospital for the test. The defendant moved before trial to suppress the evidence of the blood alcohol analysis, as the fruit of an unlawful arrest.

At the hearing on the motion to suppress, the defendant argued that he was under arrest from the moment he entered the police cruiser. He argued that the arrest preceded the existence of probable cause and, therefore, that the blood test results were inadmissible.

In determining whether the defendant was arrested without probable cause, the trial court made the following findings. First, the court concluded that Officer Stout's request to the defendant to accompany him to the cruiser did not indicate a decision to arrest. The court found that the officer had not yet formed an opinion that the defendant was under the influence of intoxicating liquor. The court determined that the officer's sole purpose in asking the defendant to go to the cruiser was to find out whether all of the victims of the accident had been accounted for and were being treated.

The trial court then determined that at the time Officer Stout asked the defendant to remain at the cruiser, he had probable cause to arrest the defendant for driving while under the influence of intoxicating liquor. The court found that probable cause was based upon the defendant's statements indicating that he was the driver of the vehicle and upon the evidence establishing that the defendant had been drinking. As a result, the court admitted the results of the blood test into evidence.

On appeal, the defendant argues that he was under arrest from the moment he was requested to accompany the officer to the police cruiser for questioning and that, because the police lacked probable cause to arrest him at that time, the blood test results obtained pursuant to that arrest should have been excluded at trial.

Before we can determine whether the defendant was arrested without probable cause, it is necessary to pinpoint the moment of the arrest. This determination inherently requires a decision as to the level of interference with a person's right to be left alone which this society is willing to tolerate, before judicial scrutiny is applied to determine the reasonableness of the basis for the interference.

RSA 594:1, I (Supp.1983) defines an arrest as "the taking of a person into custody in order that he may be forthcoming to answer for the commission of a crime." In State v. Murray, 106 N.H. 71, 73, 205 A.2d 29, 30 (1964), we determined that an arrest "is effected by an actual or constructive seizure or detention of the person arrested or by his voluntary submission to custody, both of which subject him to the actual control or will of the person making the arrest." Relying on language from the Wisconsin case of Huebner v. State, 33 Wis.2d 505, 516, 147 N.W.2d 646, 651-52 (1967), this court later went even further to require "that to constitute an arrest there must exist an intent on the part of the arresting officer to take the person into custody and a corresponding understanding by the person arrested that he is in custody." State v. Hutton, 108 N.H. 279, 285, 235 A.2d 117, 121 (1967) (emphasis added).

The subjective requirements outlined in Hutton have become embedded in this court's analysis as to when an arrest occurs. State v. Preston, 124 N.H. 118, 120, 467 A.2d 243, 245 (1983); State v. Hamel, 123 N.H. 670, 675, 466 A.2d 555, 558 (1983); State v. Lemire, 121 N.H. 1, 4, 424 A.2d 1135, 1137 (1981). In fact, the New Hampshire Police Academy, following our cases, cites these requirements as two of the four essential elements of an arrest. Accident Investigation School, New Hampshire Police Standards and Training Council, The Techniques of Arrest I A, at 111-1-1.

These two requirements, however, may make the analysis unworkable. If the subjective beliefs of the participants in the arrest are determinative of a finding of arrest, the determination turns on the mindset and, ultimately, the credibility of each. It is not difficult to imagine a situation in which a law enforcement officer did not intend to arrest an individual, yet the individual believed that he was under arrest. Hence, under a purely subjective analysis, a court would have to conclude that an arrest had not occurred, despite the unreasonableness of either of the participants beliefs. Furthermore, as more fully discussed below, the utilization of such a standard in determining whether and when an arrest has occurred raises a potential for serious challenge under the fourth and fourteenth amendments to the United States Constitution.

We begin our analysis by noting that while a State under our federal system may provide more protection to its citizens than the United States Constitution requires, State v. Ball, 124 N.H. 226, 231-32, 471 A.2d 347, 350 (1983), it may not provide less. To determine whether the prohibition of the fourth amendment of the United States Constitution against unreasonable seizures has been violated in an encounter between citizens and law enforcement officers, a court must first decide whether there has been a seizure of the citizen. A formal arrest is irrelevant to the analysis. An individual is "seized" for fourth amendment purposes "if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave." United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497 (1980) (opinion of Stewart, J.); Florida v. Royer, 460 U.S. 491, 502, 103 S.Ct. 1319, 1326, 75 L.Ed.2d 229 (1983). Inextricably contained in this analysis is a determination whether there has been a "show of authority" such that the liberty of the individual has been restrained. Id.

In Mendenhall, Justice Stewart suggested that circumstances indicating a "show of authority" might include "the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of...

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    ...articulable suspicion when he ordered the defendant to stop. At the suppression hearing, defense counsel relied upon State v. Riley, 126 N.H. 257, 490 A.2d 1362 (1985), and State v. Quezada, 141 N.H. 258, 681 A.2d 79 (1996), to argue that the seizure occurred when the detective ordered the ......
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