State v. McKinnon-Andrews

Broderick, J.,

concurring specially. I, too, prefer the approach used by the Illinois Supreme Court in People v. Gonzalez, 789 N.E.2d 260 (Ill. 2003), to analyze the limits of a Terry stop and would adopt it. See Terry v. Ohio, 392 U.S. 1 (1968). While I agree with the majority that the officer’s question in this case was not reasonably related to the purpose of the initial stop, I disagree that the question was supported by reasonable articulable suspicion. Unlike the majority, therefore, I would reach the third prong of the Gonzalez test and would analyze whether the question impermissibly prolonged the detention or altered its fundamental nature. Gonzalez, 789 N.E.2d at 270. I would hold that although the question did not prolong the detention, it did alter its fundamental nature. I nonetheless concur in the result because I believe that, despite the unlawful detention, the defendant’s consent was valid.

I believe that there was no reasonable articulable suspicion that the defendant had contraband in his car. Reasonable suspicion “must be . . . something more than an inchoate and unparticularized suspicion or ‘hunch’ linking an individual to criminal activity.” United States v. Woodrum, 202 F.3d 1, 6-7 (1st Cir. 2000) (quotation omitted); see State v. Berrocales, 141 N.H. 262, 265 (1996). “This means that some of the facts on which the officer relies must be particular, that is, specific to the individual.” Woodrum, 202 F.3d at 7.

In this case, I believe that the facts upon which the officer relied were insufficiently specific to the defendant. The officer testified that he commonly asks individuals whom he stops for traffic violations if they have anything in their car of which he should be aware. He further testified that there was nothing about the defendant’s appearance or behavior that made him suspicious. As the officer testified, “He was actually fairly polite; *28obviously, voluntarily, worked with me, except just by him exiting that vehicle twice.”

The officer also testified that the area in which the defendant parked, while near a restricted area where contraband could be passed to hospital patients, was not, itself, a restricted area. It was a public parking lot. Moreover, the officer acknowledged that the defendant could have driven into the lot because the officer was trying to stop him and it seemed the safest place to stop the car. While the public parking lot’s location might have been sufficient to put the officer on guard, I do not believe it was sufficient to justify the officer’s question about the car’s contents. See id. The defendant’s presence in the public parking lot “is a fact too generic and susceptible to innocent explanation to satisfy the reasonable suspicion inquiry.” Illinois v. Wardlow, 528 U.S. 119, 139 (2000) (Stevens, J., concurring in part and dissenting in part). Were the law otherwise, any person who stopped in that parking lot, after having been followed by the police for a traffic violation, could be asked about the contents of his or her car. See Woodrum, 202 F.3d at 7.

The defendant-specific facts to which the officer testified were, in my mind, insufficient to support the adverse inference that the defendant’s car contained contraband. There is nothing inherently suspicious either about exiting one’s vehicle to greet an officer or being lost. The facts upon which the officer relied, taken together, would not have led a reasonable officer to suspect that the defendant had contraband in his car. While the perceptions of experienced officers are indeed entitled to deference, this deference should not be blind. Id.

In the absence of a reasonable connection to the stop’s purpose or reasonable articulable suspicion, I would reach the third prong of the Gonzalez test: whether the officer’s question impermissibly prolonged the detention or changed its fundamental nature. See Gonzalez, 789 N.E.2d at 270. Because the officer’s question occurred before he issued the defendant a ticket, the question did not prolong the detention. The stop had not yet been concluded; its purpose had not yet been achieved. See State v. Szczerbiak, 148 N.H. 352, 355 (2002) (purpose of stop fulfilled once officer examined defendant’s identification, dispelling his suspicion that defendant was an underage drinker).

I believe, however, that the question altered the fundamental nature of the stop. It converted the stop from a routine traffic stop into a general investigation of the defendant’s past, present and future wrongdoing. See People v. Hards, 802 N.E.2d 219, 228 (Ill. 2003). The officer’s question was not “facially innocuous.” Gonzalez, 789 N.E.2d at 270; see United States v. Chhien, 266 F.3d 1, 9 (1st Cir. 2001) (officer permissibly may pose “a few prosaic questions” about suspect’s itinerary), cert. denied, 534 U.S. 1150 *29(2002). To my mind, a reasonable motorist would have perceived the question as altering the fundamental nature of the stop. Gonzalez, 789 N.E.2d at 270; see Chhien, 266 F.3d at 7-9.

A conclusion that the detention of the defendant became unlawful once the officer asked about the car’s contents does not lead inexorably to the conclusion that the defendant’s consent to search the car was invalid. See Szczerbiak, 148 N.H. at 356; see also State v. Hight, 146 N.H. 746, 749 (2001); Chhien, 266 F.3d at 7-8. When determining whether the State has purged the taint of an unlawful detention followed by a consent to search, we consider: (1) the temporal proximity between the unlawful detention and the consent to search; (2) the presence of intervening circumstances; and (3) the purpose and flagrancy of the official misconduct. Szczerbiak, 148 N.H. at 356; see Hight, 146 N.H. at 750.

In this case, as in both Szczerbiak and Hight, there was complete temporal proximity between the unlawful detention and the defendant’s consent; the defendant consented while unlawfully detained. See Szczerbiak, 148 N.H. at 356; Hight, 146 N.H. at 750. Also, as in both those cases, there were no intervening circumstances that would have purged the taint of the unlawful detention, such as the officer informing the defendant of his right to refuse to answer his question. See Szczerbiak, 148 N.H. at 356; Hight, 146 N.H. at 750.

In this case, unlike both Szczerbiak and Hight, the officer did not ask for the defendant’s consent. The defendant volunteered it. As we explained in Szczerbiak, one of the reasons we require the government to prove that the taint of an illegal seizure has been purged is to deter police misconduct. Szczerbiak, 148 N.H. at 357. Where the officer did not seek consent, I believe that it would not further the deterrence purpose to hold that the defendant’s volunteered consent was “tainted.” Accordingly, I would conclude that the unlawful detention did not vitiate the defendant’s consent and, on this ground, affirm the trial court’s denial of his motion to suppress.