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State v. Jones

Supreme Court of New Hampshire, Merrimack

January 10, 2020

THE STATE OF NEW HAMPSHIRE
v.
ERNEST JONES

          Argued: November 20, 2019

          Gordon J. MacDonald, attorney general (Samuel R.V. Garland, attorney, on the brief and orally), for the State.

          Wadleigh, Starr & Peters P.L.L.C., of Manchester (Donna J. Brown on the brief and orally), for the defendant.

          Gilles R. Bissonnette, Henry R. Klementowicz, Michael Eaton, and Albert E. Scherr, of Concord, on the brief, for the American Civil Liberties Union of New Hampshire, as amicus curiae.

          DONOVAN, J.

         The defendant, Ernest Jones, appeals an order of the Superior Court (McNamara, J.) denying his motion to suppress evidence that led to his conviction on one count of possession of a controlled drug. See RSA 318-B:2, I (2017). He appeals, arguing that the trial court erred by: (1) concluding that he was not seized during his encounter with two Concord police officers; and (2) refusing to consider his race in its seizure analysis. We reverse and remand because the State failed to meet its burden of showing that the defendant was not seized. We also conclude that race is one circumstance that courts may consider in conducting the totality of the circumstances seizure analysis.

         I. Facts

         The following facts are supported by the record. At approximately 8:00 p.m. on April 28, 2017, Concord Police Officers Mitchell and Begin were dispatched to 22 Allison Street to investigate a suspicious vehicle report. Upon arriving at the residence, the officers observed a pickup truck parked behind the building in "a shared driveway area." The officers, both of whom were wearing uniforms, parked on the street and did not activate their blue emergency lights. Begin approached the driver's side of the truck, while Mitchell approached the passenger's side. The defendant, whom Mitchell perceived to be African-American, was sitting in the driver's seat and a female was sitting in the passenger's seat.

         Mitchell approached the vehicle "to investigate and find out what [the occupants'] business was or what the reason was for why the vehicle was there."[1] Accordingly, he asked the passenger what she was doing there, and she explained that she lived at the residence and the defendant was visiting her. Mitchell informed the passenger that he was investigating a report of a suspicious vehicle. He obtained the passenger's identification, called her name into dispatch, and was advised that there were no warrants for her arrest.

         Mitchell "couldn't overhear" Begin's conversation with the defendant, but perceived it to be "very laid[-]back" and noted that there was "no yelling." Less than 20 minutes after the officers arrived at the address, Mitchell heard over the radio that a bench warrant had been issued for the defendant and the officers arrested him. A search of the defendant incident to his arrest revealed a "tub" of white powder, later identified as fentanyl.

         After being indicted for possession of a controlled drug, the defendant moved to suppress the evidence discovered as a result of his encounter with the officers. He argued that the officers unlawfully seized him without reasonable suspicion in violation of Part I, Article 19 of the New Hampshire Constitution and the Fourth and Fourteenth Amendments to the United States Constitution when they approached the truck and asked him and the passenger for their identification. The defendant also argued that the trial court should consider his race in conducting its analysis. The State contended that the defendant was not seized when the officers asked for his identification. Begin, the officer who interacted with the defendant, did not testify at the suppression hearing; Mitchell was the State's sole witness. The trial court denied the defendant's motion, concluding that no seizure occurred because: (1) the officers made no show of authority; (2) they did not curtail the defendant's freedom of movement; (3) they parked their cruiser "out of sight"; and (4) the defendant did not feel uncomfortable or threatened and was cooperative throughout the interaction. It also concluded that it would be error to consider the defendant's race as part of its analysis.

         The defendant was subsequently convicted by a jury. This appeal followed.

         II. Analysis

         The defendant argues that the State failed to meet its burden of showing that he was not seized during his ...


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