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In re E.G.

Supreme Court of New Hampshire

August 17, 2018

IN RE E.G.

          Argued: February 14, 2018

          10th Circuit Court-Derry Family Division

          Gordon J. MacDonald, attorney general (Sean R. Locke, assistant attorney general, on the memorandum of law and orally), for the State.

          Christopher M. Johnson, chief appellate defender, of Concord, on the brief, and Eric S. Wolpin orally, for the juvenile.

          LYNN, C.J.

         The 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.

         The 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.

         Shortly 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.

         Upon 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 the scene."

         After 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."

         The 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.

         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 arrest.

         E.G. 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 conduct."

         E.G. 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.

         On 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 (1983).

         "Before 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.

         We 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 identity ...


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