State v. Turmel

150 N.H. 377

838 A.2d 1279

The STATE of New Hampshire

v.Joseph J. TURMEL.

No. 2002–589.

Supreme Court of New Hampshire.

Argued: Oct. 30, 2003.

Opinion Issued: Dec. 29, 2003.

Peter W. Heed, attorney general (Stephen D. Fuller, senior assistant attorney general, on the brief and orally), for the State.

Keefe and Browne, P.A., of Manchester (F. Michael Keefe, on the brief and orally), for the defendant.

DALIANIS, J.

The defendant, Joseph J. Turmel, appeals his conviction in the New London District Court (McSwiney, J.) of one count of possession of marijuana, a class B misdemeanor, see RSA 318–B:2, I (1995); RSA 625:9, VII (Supp.2002). We affirm.

On October 11, 2001, the defendant, with one passenger, was driving northbound on Interstate 89. At approximately 5:00 p.m., Trooper First Class James Mayers approached the defendant's car in an unmarked State Police pickup truck. Mayers had been employed by the New Hampshire State Police for approximately fifteen years and had been a detective involved with undercover narcotics investigations for the previous five and a half years. Mayers, traveling approximately 70 to 75 miles per hour, observed the defendant ahead of him, traveling at approximately 65 to 70 miles per hour. As Mayers passed the defendant's car he observed the defendant, a male in his early to mid-twenties, holding what Mayers believed to be a "blunt," a cigar with part of its tobacco replaced by marijuana, between his thumb and index finger, and "cupping" it inside his hand. Mayers then observed the defendant place the cigar to his mouth, inhale, and pass the cigar to his passenger, who also placed the cigar to his mouth and inhaled.

Mayers, a certified drug recognition expert and the State of New Hampshire Coordinator of the Drug Enforcement Agency (DEA) Marijuana Eradication Program, thought that the appearance of the cigar, the way the defendant held the cigar, and the sharing of the cigar with his passenger indicated marijuana use. Mayers radioed for a marked police cruiser to engage the defendant. Mayers pulled ahead of the vehicle and monitored it for approximately three miles until Sgt. Scott Sweet caught up to pursue. Sweet then followed the defendant for approximately six miles at which point two other marked police cruisers joined the pursuit. Neither Mayers nor Sweet saw the defendant drive erratically or violate any traffic laws. The three police cruisers and Mayers' unmarked truck then pulled the defendant over to investigate the officers' suspicion of possession and use of marijuana.

Sweet approached the defendant and asked him to step out of the car. Sweet and Mayers then took the defendant to the back of the car. Two other officers took the passenger to the front of the car. As the defendant exited, Mayers smelled the odor of marijuana emanating from the interior of the car and the defendant. Mayers introduced himself to the defendant as an officer with the Narcotics Investigation Unit of the State Police, and explained that he had observed the defendant smoking marijuana in the car. Mayers told the defendant that he wanted him to cooperate and asked him if he had been smoking marijuana. The defendant answered affirmatively. Mayers told him that he was not under arrest and asked him whether there were any weapons or drugs in the car. The defendant said there were none, at which time Mayers requested consent to search the vehicle. Mayers told the defendant that if no weapons or drugs were found in the car, the defendant would "probably" be free to leave. Mayers told the defendant that he did not have to consent to the search, but if the defendant did not consent, he would pursue "other avenues" to search the car.

Mayers' initial search did not produce any illegal contraband. Following the discovery of a large amount of cash in the trunk, however, a trooper with a drug-sniffing dog arrived at the scene, and the butt of a marijuana cigarette was eventually found in the car's ashtray.

Neither Sweet nor Mayers read the defendant Miranda warnings before the questioning of the defendant and his subsequent consent to search the car.

Prior to trial, the defendant moved to suppress all evidence and statements obtained as a result of the investigatory stop on October 11, 2001. The trial court denied the motion.

We first address the defendant's claims under the State Constitution, State v. Ball, 124 N.H. 226, 231, 471 A.2d 347 (1983), and cite federal opinions for guidance only. Id. at 232–33, 471 A.2d 347.

I. Reasonable Suspicion

The defendant argues that Mayers lacked reasonable suspicion for his investigatory stop. In order for a police officer to undertake an investigatory stop, the officer must have a reasonable suspicion, based upon 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. State v. Hight, 146 N.H. 746, 748, 781 A.2d 11 (2001) ; see also Terry v. Ohio, 392 U.S. 1, 20–21, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The officer's suspicion must have a particularized and objective basis in order to warrant that intrusion into protected privacy rights.

State v. Roach, 141 N.H. 64, 66, 677 A.2d 157 (1996). We have applied the Terry standard to motor vehicle stops. Hight, 146 N.H. at 748, 781 A.2d 11; see State v. Pellicci, 133 N.H. 523, 528–29, 580 A.2d 710 (1990).

The defendant contends that Mayers did not articulate any feature of the cigar that would serve to distinguish it from an ordinary cigar. The mere observation of the defendant smoking a cigar, alone, may not lead one to reasonably suspect that the defendant was smoking marijuana. See State v. Varnell, 410 So.2d 1108, 1110 (La.1982). Indeed, even the observation of the defendant holding the cigar between his thumb and index finger in a "cupped" fashion, alone, might not be enough to arouse reasonable suspicions of marijuana use. See State v. Davis, 359 So.2d 986, 989 (La.1978).

We do not, however, consider each fact in isolation. See State v. Wallace, 146 N.H. 146, 149, 772 A.2d 892 (2001). To determine the sufficiency of the officer's suspicion, we must consider the facts he articulated in light of all the surrounding circumstances, keeping in mind that a trained officer may make inferences and draw conclusions from conduct which may seem unremarkable to an untrained observer. Id. ; Pellicci, 133 N.H. at 530, 580 A.2d 710. In the present case, Mayers was a certified drug recognition expert and the New Hampshire Coordinator of the DEA Marijuana Eradication Program.

Further, Mayers articulated that his reasonable suspicion arose, in particular, based upon his training and experience in the detection of marijuana, leading him to conclude that marijuana was being used from his observation of the manner in which the defendant held the cigar coupled with his sharing of the cigar with his passenger.

The defendant argues that there are innocent explanations for the way he held the cigar and shared it with his passenger. He contends that people hold cigars in many different ways and that sharing cigars is not uncommon, especially with more expensive cigars. That observed activity could be consistent with both guilty and innocent behavior, however, does not mean that an officer must rule out innocent explanations before proceeding. State v. Galgay, 145 N.H. 100, 103, 750 A.2d 52 (2000).

While the manner in which the defendant held the cigar and the sharing of the cigar might have been innocuous, it was also reasonable for a trained officer like Mayers to suspect that the defendant was engaging in marijuana use. See People v. Jacobson, 231 Ill.App.3d 673, 173 Ill.Dec. 269, 596 N.E.2d 893, 895 (1992). We hold that, in light of the surrounding circumstances, Mayers, based upon his training and experience, articulated sufficient facts of a particularized and objective nature from which he could have formed the reasonable suspicion that the defendant was using marijuana.

The defendant next argues that the reasonable suspicion "evaporated" during the approximately ten minutes that Mayers tracked the defendant's car, because he observed no other indicia of criminal activity. In Galgay, 145 N.H. at 102–03, 750 A.2d 52, an informant observed a man driving his car erratically and reported it to the police. Almost an hour later, after the driver had entered a restaurant and then returned to his car, a police officer pulled him over after observing the man enter his car and drive it out of the parking lot. Id . at 103, 750 A.2d 52. We held that the passage of time of almost an hour and the "defendant's ability for a brief span of time to competently enter his car and drive it out of [a] parking lot ... [did] not negate the officer's reasonable suspicion" necessary to perform an investigatory stop. Id . at 104, 750 A.2d 52. In the present case, the passage of approximately ten minutes and Mayers' observation of the defendant driving in a competent manner does not diminish the reasonable suspicion that existed for the officers to perform an investigatory stop, because neither the elapsed time nor the operation of the car negate Mayers' observations concerning the cigar.

The Federal Constitution offers the defendant no greater protection than does the State Constitution under these circumstances. See Hight, 146 N.H. at 748, 781 A.2d 11; Terry, 392 U.S. at 20–21, 88 S.Ct. 1868. Accordingly, we reach the same result under the Federal Constitution as we do under the State Constitution.

II. Custody

We next address the defendant's argument that he was subjected to custodial interrogation without being advised of his Miranda rights, see Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), in violation of his State and Federal Constitutional rights against self-incrimination. See N.H. CONST. pt. I, art. 15 ; U.S. CONST. amend. V.

The police are obligated to issue Miranda warnings when conducting a custodial interrogation. See...