Criminal Law

Ryan M. Borden Practicing at Ford, McDonald, McPartlin & Borden in Portsmouth, NH with a focus on bankruptcy representation of trustees, creditors and debtors, corporate law and commercial litigation.

No. 2019-0057
January 10, 2020
Reversed and Remanded

• In denying defendant’s motion to suppress evidence that lead to his conviction, did the trial court err in (1) concluding the defendant was not seized during his encounter with police, and (2) refusing to consider his race in its seizure analysis

In April 2018, two uniformed Concord police officers (Officers Begin and Mitchell) were dispatched to investigate a suspicious vehicle report. The vehicle was parked be- hind a building in a shared driveway area and was occupied by the defendant (driver) and a female passenger. When the police arrived, they did not activate their emergency lights. The officers approached both sides of the vehicle to investigate. Officer Begin, who approached the defendant, perceived the defendant to be African American. The passenger informed Officer Mitchell that she lived there and the defendant was visiting her. Officer Mitchell obtained the passenger’s identification and dispatch ran her name, revealing no warrants for her arrest. Officer Mitchell could not hear the conversation between Officer Begin and the defendant.

During the investigation, and less than twenty minutes after arriving, Officer Begin overheard dispatch report the defendant had a bench warrant. Officer Begin arrested the defendant and a search incident to the arrest revealed fentanyl. The defendant was indicted for possession of a controlled drug.

Before trial, the defendant moved to suppress the evidence, arguing he was un- lawfully seized without reasonable suspicion in violation of both the state and federal constitutions. The defendant also argued that the trial court should take his race into consideration in conducting its seizure analysis. The State countered that the defendant was not seized when the officers asked for identification. Only Officer Mitchell testified at trial.

The trial court denied the defendant’s motion to suppress and ruled that the stop was not a seizure because the officers made no showing of authority, did not curtail the defendant’s freedom of movement, parked their car out of sight, the defendant did not feel uncomfortable or threatened and co-operated throughout the process. The trial court ruled that race should not be considered in the seizure analysis. The defendant was convicted by a jury and the appeal fol- lowed.

The Court found that there was insufficient evidence for the trial court to deter- mine that no showing of authority had been made. The words exchanged between Officer Begin and the defendant were crucial. Because Officer Begin had not testified, the record was insufficient to support a finding that Officer Begin had made no showing of authority. The trial court’s finding that the defendant was free to leave contradicted Officer Mitchell’s testimony that the defendant and passenger were only free to leave after the officers determined the defendant and passenger’s business. There was no evidence of how Officer Begin had identified the defendant (i.e., did he take and retain defendant’s identification and run it through dispatch for a warrant check). The court


also held that the trial court erred in relying on the defendant’s demeanor, assuming evidence supported the trial court’s finding in the first place, as case law instructs courts to focus on the officer’s conduct, not the individual’s conduct.

While the Court reached its ruling with- out considering the defendant’s race, it held that race is an appropriate factor to consider in conducting the seizure analysis. The Court reversed the denial of the motion to suppress, reversed the defendant’s conviction and remanded.


Gordon J. MacDonald, attorney general (Samuel R.V. Garland, attorney), for the State. Donna J. Brown, Wadleigh, Starr & Peters, Manchester, for the defendant. Gilles R. Bissonnette, Henry R. Klementowicz, Michael Eaton and Albert E. Scherr, American Civil Liberties Union of New Hampshire, Concord, as amicus curiae.