Argued: February 14, 2018
Circuit Court-Derry Family Division
J. MacDonald, attorney general (Sean R. Locke, assistant
attorney general, on the memorandum of law and orally), for
Christopher M. Johnson, chief appellate defender, of Concord,
on the brief, and Eric S. Wolpin orally, for the juvenile.
juvenile, E.G., appeals the Circuit Court's
(Leonard, J.) finding of delinquency, contending
that the court erred in denying his motion to suppress
statements given by him to the arresting officer without
Miranda warnings. See Miranda v. Arizona,
384 U.S. 436 (1966). We affirm.
trial court found or the record reflects the following facts.
On February 10, 2017, the Londonderry police and fire
departments were dispatched to the D. family residence on a
report of an incapacitated juvenile. When Lieutenant Dion of
the fire department arrived, he found a teenaged boy, D.D.,
conscious, but severely intoxicated and vomiting. D.D. was
being helped by another juvenile, later identified as his
brother, R.D. "[O]ut of medical concern for
polysubstance abuse," Dion quickly scanned the room and,
inside a Budweiser box, saw a plastic sandwich bag containing
a green leafy substance he believed to be marijuana.
after Dion's arrival, Officer Garcia of the police
department reached the scene. Outside the D. residence,
Garcia observed E.G. and his brother, R.G., in the driveway
near a vehicle. Garcia entered the residence and went
upstairs to D.D.'s bedroom. Officer Mottram of the police
department arrived at the D. residence a minute later.
entering D.D.'s bedroom, Garcia immediately smelled burnt
marijuana. Dion told Garcia that he had seen a bag of
marijuana in a Budweiser box. Garcia immediately looked in
the box, but the bag was no longer there. "[B]elieving
that the juveniles outside could have removed the marijuana
and that a crime had occurred," Garcia radioed to
Mottram and "instructed [him] to make sure that the two
juveniles outside, [E.G.] and R.G., were not allowed to leave
D.D. was taken from the home by ambulance, Garcia asked
"Mottram to tell [E.G.] and R.G. to come into the
residence." E.G's and R.G.'s mother, who was
also at the D. residence, gave Garcia permission to speak
with them. Garcia, along with E.G., R.G., their mother (Mrs.
G.), and R.D., returned to D.D.'s bedroom. The three
juveniles sat on one of the beds in the room while Garcia and
Mrs. G. stood next to the bed. The juveniles were neither
under arrest nor put in handcuffs, nor was Garcia
"blocking the doorway or otherwise obstructing their
ability to leave."
court noted that there had been "conflicting testimony
about whether Mrs. G[.] remained in the bedroom for the
duration of" the juveniles' questioning. Garcia
testified that Mrs. G. was in the room the entire time. Mrs.
G., however, testified that Garcia "asked her to step
out of the room at some point during his questioning."
Mrs. G. further testified that she wanted to stay in the
room, but it was not clear to the court whether Mrs. G.
conveyed that preference to Garcia.
asked the juveniles "to tell him what had happened"
and they responded that D.D. had rapidly drunk half a bottle
of vodka. Garcia asked the juveniles about the marijuana
smell and all three denied using marijuana. Garcia then told
them that Dion, a "neutral person," had seen a bag
of marijuana which was no longer there. E.G. then admitted to
removing the marijuana and throwing it under his mother's
vehicle. Garcia radioed outside to Mottram, who found the
marijuana under Mrs. G.'s car. Garcia testified that
after E.G's admission, and on the advice of a third
officer who had arrived on the scene, he placed E.G. under
was petitioned as a delinquent for having committed the
offenses of falsifying physical evidence, see RSA
641:6 (2016), and possession of drugs, see RSA
318-B:2 (2017). The delinquency petitions indicate that, at
the time of the alleged offenses, E.G. was sixteen years old.
The petitions also alleged that E.G.'s case had been
screened and deemed inappropriate for diversion because E.G.
was "being petitioned as a delinquent for a felony level
charge, and has several previous police contacts where he was
involved in disturbances, criminal mischief and reckless
filed a motion to suppress, among other things, "all
evidence obtained in violation of [his] right against
self-incrimination." Specifically, he contended that he
had been subjected to custodial interrogation by Garcia
without having been informed of his rights in accordance with
Miranda and State v. Benoit, 126 N.H. 6
(1985). The trial court denied the motion. An adjudicatory
hearing was held, at which the State introduced Garcia's
testimony that E.G. "admitted that he had taken the
marijuana out of the box and brought it outside and threw it
under the vehicle." After the State's presentation
of evidence, the court dismissed the petition alleging
falsification of physical evidence, but found E.G. delinquent
on the drug possession charge.
appeal, E.G. contends that the trial court erroneously denied
his motion to suppress because it wrongly determined that he
was not in custody when questioned by Garcia. He challenges
the introduction of his statements to Garcia under both Part
I, Article 15 of the New Hampshire Constitution and the Fifth
and Fourteenth Amendments to the United States Constitution.
We first address the defendant's claim under the State
Constitution and rely upon federal law only to aid in our
analysis. State v. Ball, 124 N.H. 226, 231-33
the [juvenile's] responses made during a custodial
interrogation may be used as evidence against him, the State
must prove, beyond a reasonable doubt, that it did not
violate his constitutional rights under
Miranda." State v. McKenna, 166 N.H.
671, 676 (2014) (quotation and brackets omitted). As the
foregoing implies, two conditions must be met, as a general
rule, "before Miranda and Benoit
warnings are required: (1) the suspect must be 'in
custody'; and (2) [he] must be subject to
'interrogation.'" In re B.C., 167 N.H.
338, 342 (2015). In this appeal, the only issue before us is
whether the trial court erred in finding that E.G. was not in
custody. As the State notes, the trial court made no finding
as to whether Garcia's questioning of E.G. constituted
interrogation and that issue is not raised on appeal.
first address, however, a preliminary argument by the State
that Miranda warnings were not required because the
interaction at issue was merely an investigatory stop. The
State contends that Garcia's detention of E.G. was
warranted because, once Garcia smelled burnt marijuana and
learned that the bag observed by Dion was missing, he had
reasonable suspicion that one of the juveniles had engaged in
criminal activity. See State v. Joyce, 159 N.H. 440,
444 (2009) (noting two-step inquiry for determining whether
police conducted lawful investigatory stop: (1) when was the
defendant seized; and (2) "at that time, [did] the
officers possess a reasonable suspicion that the defendant
was, had been or was about to be engaged in criminal
activity" (quotation and brackets omitted)). The State
further asserts that the scope of Garcia's questioning
was "limited . . . to confirming or dispelling the
suspicion he had developed." See State v.
Turmel, 150 N.H. 377, 383 (2003) (noting that
"[d]uring a legal investigatory stop, an officer may ask
the detainee a moderate number of questions to determine his