State v. Szczerbiak

807 A.2d 1219, 148 N.H. 352, 2002 N.H. LEXIS 136
CourtSupreme Court of New Hampshire
DecidedSeptember 18, 2002
DocketNo. 2001-364
StatusPublished
Cited by17 cases

This text of 807 A.2d 1219 (State v. Szczerbiak) is published on Counsel Stack Legal Research, covering Supreme Court of New Hampshire primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Szczerbiak, 807 A.2d 1219, 148 N.H. 352, 2002 N.H. LEXIS 136 (N.H. 2002).

Opinion

Dalianis, J.

Following a bench trial on stipulated facts, the defendant, Mark Szczerbiak, was convicted of possession of a controlled drug, see RSA 318-B:2,1 (Supp. 2001). On appeal, he argues that the Superior Court (Fitzgerald, J.) erroneously denied his motion to suppress evidence obtained during an allegedly unconstitutional search and seizure. We affirm.

The following facts were adduced at the suppression hearing. On July 15, 2000, the Danbury Police Chief received a call informing him of a party at a residence on Forbes Mountain Road. Later that evening, young people in several vehicles stopped and asked the chief for directions to the residence. The occupants of the last such vehicle asked him if he was going to “break up the party.” Based upon the number of young people he saw heading towards the residence and the question regarding whether he was going to “break up the party,” the chief decided to drive to the party.

The chief arrived at the residence at approximately 11:00 p.m. As he approached, he heard loud music and screaming and saw four individuals sitting on a jeep near the driveway’s entrance, including a young woman holding a beer. After getting out of his cruiser, the chief approached the [354]*354individuals on the jeep and told them to sit on the lawn and produce identification. He then took the young woman into custody because she was underage and in possession of alcohol. The other individuals were of age, but were told to stay seated. Soon thereafter, another person attending the party wandered down the driveway with a beer. The chief took him into custody as well because he was underage and in possession of alcohol.

The chief then called for back-up. When the additional officers arrived, they walked up the driveway. They first told the partygoers to move towards the house and sit on the ground. They then asked each individual for identification. During a search of the grounds, the chief found a backpack containing alcohol.

New Hampshire State Trooper .Edward Flynn was one of the officers who entered the property and asked individuals for identification. He approached the defendant, who was seated and had a knapsack hanging over his shoulder. He asked the defendant “if he would mind standing up.” He then asked the defendant if he had any identification on him, and if so, if he could produce it. After he examined the identification and confirmed that the defendant was over twenty-one years old, he requested permission to search the defendant. The defendant placed his knapsack on the ground next to him and submitted to a pat-down search, which did not reveal any contraband. Trooper Flynn then picked up the knapsack and searched it. He found drugs inside the knapsack, and arrested the defendant.

“Our review of the superior court’s order on a motion to suppress is de novo, except as to any controlling facts determined at the superior court level in the first instance.” State v. Sawyer, 147 N.H. 191, 193 (2001) (quotation omitted).

The defendant argues that the trooper violated his rights under Part I, Article 19 of the State Constitution and the Fourth Amendment to the Federal Constitution. See N.H. CONST. pt. I, art. 19; U.S. CONST. amend. IV. We consider his arguments first under the State Constitution, using federal cases to aid in our analysis only. See Sawyer, 147 N.H. at 193. Because the State Constitution is at least as protective as the Federal Constitution in this area, we need not conduct a separate federal analysis. See id.

“Under the New Hampshire Constitution, all warrantless searches are per se unreasonable, unless they conform to the narrow confines of a judicially recognized exception.” State v. Sterndale, 139 N.H. 445, 447 (1995). “Absent a warrant, the burden is on the State to prove that the search was valid pursuant to one of these exceptions.” Id. One such exception exists where the defendant has consented to the search. See [355]*355Sawyer, 147 N.H. at 194. The defendant argues that his consent was “tainted” because it was obtained as a result of an unlawful seizure. See State v. Hight, 146 N.H. 746, 748-51 (2001).

The State argues for the first time on appeal that the defendant was not, in fact, seized when the trooper asked for consent to search him. This argument is contrary to what the State asserted before the trial court and, thus, we decline to consider it. See Sterndale, 139 N.H. at 448. In its objection to the defendant’s motion to suppress, the State asserted that the defendant was detained pursuant to a valid investigatory stop. Therefore, for the purposes of this appeal, we assume, without deciding, that the defendant was seized when the trooper sought his consent.

We first examine whether the detention of the defendant was unlawful. The defendant concedes that the trooper initially detained him pursuant to a lawful investigatory stop. He contends, however, that the trooper detained him longer than was necessary for the stop’s purpose.

“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. at 748 (quotation omitted). “During a detention, an officer may ask the detainee a moderate number of questions to determine his identity and to try to obtain information confirming or dispelling the officer’s suspicions.” State v. Roach, 141 N.H. 64, 68 (1996) (quotation omitted). The scope of the stop, however, must be “carefully tailored to its underlying justification — to confirm or dispel the officer’s particular suspicion.” Id. (quotation omitted). The stop must last no longer than is necessary to effectuate its purpose. Id.

The purpose of Trooper Flynn’s initial detention of the defendant was to confirm or dispel his suspicion that the defendant was an underage drinker. As the trooper testified at the suppression hearing, his plan was “to check people’s ID to see how old they were and whether they were underage or not underage.” Once the defendant produced his identification and the trooper confirmed that he was over twenty-one years of age, the purpose of the stop was fulfilled.

In order to detain the defendant further, the trooper had to articulate an additional reason for the stop. The State argues that the trooper was justified in detaining the defendant further because he had a “legitimate safety concern that there might be a weapon in the bag or on the defendant.” “Once an officer is justified in making an investigatory stop, he may also conduct a protective frisk if the officer justifiably believes the individual is armed and presently dangerous.” Roach, 141 N.H. at 67 [356]*356(quotation omitted). The sole purpose of a protective frisk “is not to discover evidence of crime, but to allow the officer to pursue his investigation without fear of violence.” Id. (quotation omitted).

Assuming, without deciding, that the pat-down frisk of the defendant was justified under this rationale, the trooper’s subsequent search of the knapsack was not. The trooper did not merely “pat-down” the knapsack, but searched its contents thoroughly. “This was no mere frisk, but a full-blown search.” State v. Coons, 137 N.H. 365, 367 (1993).

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Bluebook (online)
807 A.2d 1219, 148 N.H. 352, 2002 N.H. LEXIS 136, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-szczerbiak-nh-2002.