State v. Wallace, 98-712.

Decision Date16 March 2001
Docket NumberNo. 98-712.,98-712.
Citation772 A.2d 892
PartiesThe STATE of New Hampshire v. Leroy WALLACE.
CourtNew Hampshire Supreme Court

The defendant, Leroy Wallace, appeals the denial by the Superior Court (Brennan, J.) of his motion to suppress. We affirm.

The defendant was convicted, after a jury trial, of class A felony burglary of the premises at 22 Wilder Street in Nashua, committed on or about January 27, 1997. See RSA 635:1 (1996). The State introduced as evidence at trial a set of inked finger and hand prints taken from the defendant. The State then introduced expert testimony that those prints matched latent prints taken from the burglary scene. The defendant challenges the introduction of his inked prints, arguing that they were the fruit of an unconstitutional investigatory stop.

The following facts, which are not challenged on appeal, were found by the trial court or appear in the record. At approximately 7:15 p.m. on February 1, 1997, Nashua Police Officer Sergio Hebra was on patrol investigating recent burglaries in the area between 2 Wilder Street and Sixth Street. Hebra saw the defendant, wearing dark clothing and a hooded sweatshirt, coming from the direction of 2 Sixth Street, a residence that had been burglarized two days earlier. As the defendant approached Hebra's "low profile" police car, Hebra saw him make a complete 360 degree turn. Hebra also observed the defendant look nervously from side to side. When the defendant reached Hebra's car, Hebra asked him some general questions, to which the defendant responded that he was waiting for a friend named John, with whom, he shortly thereafter explained, he planned to smoke marijuana. Hebra then got out of his car. After further questioning of the defendant and investigation of the area, Hebra arrested the defendant for felony attempted burglary of the residence at 2 Sixth Street, although the charge was later changed to misdemeanor criminal trespass. The defendant's inked prints were taken by the Nashua police following his arrest.

The defendant contends that his detention by Officer Hebra at Sixth Street on February 1 violated both the State and Federal Constitutions, and therefore the inked prints taken at his arrest should have been suppressed in the trial for the 22 Wilder Street burglary. We address the defendant's claims under our State Constitution first. See State v. Ball, 124 N.H. 226, 231, 471 A.2d 347 (1983). Because the State Constitution is at least as protective in this area as the Federal Constitution, we need not engage in a separate federal analysis. See State v. Vadnais, 141 N.H. 68, 70, 677 A.2d 155 (1996). In reviewing the trial court's ruling, we accept its factual findings unless they lack support in the record or are clearly erroneous. See State v. Roach, 141 N.H. 64, 65, 677 A.2d 157 (1996). Our review of the trial court's legal conclusions, however, is de novo. See id. at 66, 677 A.2d 157.

"In order for a police officer to undertake an investigatory stop, the officer must have a reasonable suspicion — based on specific, articulable facts taken together with rational inferences from those facts — that the particular person stopped has been, is, or is about to be, engaged in criminal activity." Id. The factual basis supporting the stop must exist at the time the defendant is, for constitutional purposes, seized. Id. The trial court ruled that a seizure occurred when Officer Hebra got out of his cruiser. As neither party challenges that ruling on appeal, "our sole task on appeal is to determine whether there was reasonable suspicion supporting the stop at that time." Vadnais, 141 N.H. at 70, 677 A.2d 155.

The trial court found that the following facts supported the investigatory stop:

Upon exiting his vehicle, Hebra had knowledge: (1) that there had been at least two robberies in the vicinity of the area [where] the defendant was walking; (2) that the defendant was walking from the exact direction of one of the Nashua residences that had been recently burglarized; (3) that the defendant was wearing dark clothing and a hooded sweatshirt; and (4) that the defendant made a 360 degree turn after noticing Hebra in his police vehicle.

The defendant argues that the innocuous details observed by Officer Hebra do not support a reasonable suspicion that the defendant was, had been, or was about to be engaged in criminal activity. The defendant argues, for instance, that neither the location or time of day at which he was stopped, namely, a residential area during early evening hours, was inherently suspicious. His clothing, which was appropriate for the weather, was also not suspicious. His actions, he argues, were neither furtive nor suspicious, as he continued to approach Officer Hebra after making a complete 360 degree turn, and his looking from side to side while being questioned is consistent with looking for the person he said he was there to meet.

To determine the sufficiency of the officer['s] suspicion, [we] must consider the facts [he] articulated, not in isolation, but in light of all the surrounding circumstances, keeping in mind, in particular, that a trained officer may make inferences and draw conclusions from conduct which may seem unremarkable to an untrained observer.

State v. Pellicci, 133 N.H. 523, 530, 580 A.2d 710 (1990) (quotation and citation omitted). Thus, while the location and time of ...

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