Argued: January 9, 2014.
Michael A. Delaney, attorney general ( Elizabeth C. Woodcock, assistant attorney general, on the memorandum of law and orally), for the State.
Brianna M. Sinon, assistant appellate defender, of Concord, on the brief, and Thomas A. Barnard, assistant appellate defender, of Concord, orally, for the defendant.
HICKS, J. DALIANIS, C.J., and CONBOY and BASSETT, JJ., concurred; LYNN, J., concurred specially.
[166 N.H. 185] Hicks, J.
The defendant, Hillman Blesdell-Moore, appeals his convictions for possession with intent to distribute marijuana and psilocybin (mushrooms), arguing that the Superior Court ( Vaughn, J.) erroneously denied his motions to suppress evidence seized during a stop for a motor vehicle violation. We reverse and remand.
The trial court found or the record supports the following facts regarding a motor vehicle stop that occurred on the evening of November 23, 2011. Officer Roy Holland of the Enfield Police Department stopped a truck for having defective tail lights. Holland testified that he activated his emergency blue lights and followed the truck before it stopped on the side of the road. Further, Holland testified that he did not observe any erratic behavior to suggest that the truck's driver -- the defendant -- was under the influence of illegal substances or alcohol.
Holland approached the defendant's truck and requested his driver's license and vehicle registration. He noticed that the defendant had bloodshot eyes and trembling hands and concluded that the defendant was nervous, but he also testified that the defendant was polite and cooperative during this brief interview. Holland allowed the defendant to step out of his truck to attempt to fix the tail lights while he conducted a license check in his cruiser. The officer testified that this license check was completed in approximately two to three minutes.
Holland then returned to the defendant's truck and asked to see his tongue. The defendant complied with the request, and Holland observed a [166 N.H. 186] green film coating the defendant's tongue. He believed this coating was consistent with marijuana use and asked the defendant when he had last smoked marijuana. The defendant initially denied smoking marijuana but subsequently admitted that he had smoked marijuana on the previous day. Holland asked if the defendant had marijuana paraphernalia in his truck. The defendant said that he did not. Concerned that the defendant was becoming agitated, Holland then obtained the defendant's consent to perform a pat-down search of his person. The officer felt two bulges in the defendant's back pockets, and the defendant produced two " wads" of cash.
After the pat-down, the defendant put the money back in his pockets, and Holland returned the defendant's license and registration with a verbal warning to repair the broken tail lights. This conversation was interrupted when the defendant received a telephone call from his father. Holland testified that he took the defendant's phone and detailed the circumstances of the stop to the defendant's father and said that the defendant " was going to drive home and park the vehicle until he could get it fixed." He then returned the telephone to the defendant and told him that he was free to go.
The two parted ways and walked toward their vehicles when Holland hesitated and asked the defendant whether he would answer another question. The defendant stopped getting into his truck and turned to Holland. Holland asked again whether the defendant had marijuana in his truck. The defendant denied that he did. He also denied Holland's subsequent request to conduct a search of his vehicle. The officer again stated that the defendant was free to leave, but then asked whether a drug canine would indicate that there were drugs in the vehicle. At this point, the defendant looked at the ground and replied that he did not think so.
Holland stepped away from the defendant but remained within hearing distance as he contacted dispatch to request a canine unit. The defendant lamented that he was " screwed," and Holland asked the defendant how much marijuana he had in his truck. The defendant confessed that he had " a couple ounces" of marijuana and mushrooms in his truck.
Prior to his trial for possession with intent to distribute marijuana and psilocybin, the defendant filed four motions to suppress the following evidence: (1) Holland's examination of the defendant's tongue; (2) the initial questioning regarding marijuana use; (3) Holland's pat-down of the defendant; and (4) the subsequent interrogation regarding drug possession. The trial court granted the motion to suppress evidence of the green film on the defendant's tongue because the State failed to produce sufficient evidence that such was indicative of marijuana use, but denied the ...