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NOTICE: This opinion is subject to motions for rehearing under Rule 22 as well as formal revision before publication in the New Hampshire Reports. Readers are requested to notify the Reporter, Supreme Court of New Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any editorial errors in order that corrections may be made before the opinion goes to press. Errors may be reported by E-mail at the following address: reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 a.m. on the morning of their release. The direct address of the court's home page is: http://www.courts.state.nh.us/supreme. THE SUPREME COURT OF NEW HAMPSHIRE ___________________________ Lebanon District Court No. 2005-717 THE STATE OF NEW HAMPSHIRE v. MICHAEL LICKS Argued: October 26, 2006 Opinion Issued: December 6, 2006 Kelly A. Ayotte, attorney general (Karen A. Gorham, assistant attorney general, on the brief, and Thomas D. Ralph, assistant attorney general, orally), for the State. DesMeules, Olmstead & Ostler, of Norwich, Vermont (George H. Ostler and Christopher A. Dall on the brief, and Mr. Ostler orally), for the defendant. HICKS, J. The defendant, Michael Licks, appeals his conviction in the Lebanon District Court (Cirone, J.) for driving while intoxicated (DWI), see RSA 265:82 (2004). He argues that the district court erred in denying his motion to suppress evidence obtained after he was unlawfully seized. We affirm. The record supports the following. On February 18, 2005, between 12:00 a.m. and 12:30 a.m., Officer Michael Roberts of the Lebanon police department was on patrol in the parking lot of Club Electra when he noticed a parked car with its engine running.

Officer Roberts further noticed the defendant "slouched down" in the driver's seat of the vehicle; there were no other occupants in the car. The car was legally parked, front end to the curb, and there were cars parked on either side. Officer Roberts decided to approach the defendant to "check on what he was doing" and to "make sure he was all set." Unable to find a parking space in the full lot, Officer Roberts parked his cruiser on the road, at the entrance to the parking lot. With his flashlight trained on the car and the defendant, Officer Roberts approached the defendant's vehicle from the rear and walked to the driver's side. When Officer Roberts reached the driver's side door, the defendant rolled his window down and Officer Roberts asked if he was "all set." It is not clear whether Officer Roberts motioned for the defendant to roll down his window or whether the defendant did so without being prompted. In any event, Officer Roberts testified that he did not tap on the window with his flashlight in order to get the defendant's attention. When the defendant rolled down his window, Officer Roberts immediately noticed signs of intoxication. After asking the defendant for his name and date of birth, Officer Roberts asked him to step out of the car. Officer Roberts subsequently conducted field sobriety tests on the defendant who was then arrested for DWI. The defendant filed a motion to suppress, arguing that he was unlawfully detained. After a hearing, the district court denied the motion. On appeal, the defendant argues that he was unlawfully seized in violation of RSA 594:2 (2001), Part I, Article 19 of the New Hampshire Constitution and the Fourth Amendment of the United States Constitution. The defendant contests his detention up until the point when Officer Roberts noticed signs of impairment and asked him to step out of the car. "When reviewing a trial court's ruling on a motion to suppress, we accept the trial court's findings unless they lack support in the record or are clearly erroneous. Our review of the trial court's legal conclusions, however, is de novo." State v. MacElman, 149 N.H. 795, 797 (2003) (quotation omitted). We first address the defendant's claim under RSA 594:2 and the State Constitution, State v. Ball, 124 N.H. 226, 232 (1983), and cite federal opinions for guidance only. Id. at 232-33. The defendant argues that he was seized by Officer Roberts because a reasonable person under the circumstances would not "have felt free to ignore the officer or leave the area." RSA 594:2 provides: "A peace officer may stop any person abroad whom he has reason to suspect is committing, has committed or is about to commit a crime, and may demand of him his name, address, business abroad and where he is going." Part I, Article 19 of the State Constitution prohibits unreasonable searches and seizures. N.H. CONST. pt. I, art. 19. A warrantless seizure is per se unreasonable unless it falls within a recognized exception to the warrant requirement. State v. Brunelle, 145 N.H. 656, 659 (2000).

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The State argues that the defendant was not seized because his encounter with Officer Roberts was consensual, and therefore the State was not required to establish an exception to the warrant requirement. A police encounter with a citizen does not always amount to a seizure of the person. State v. Beauchesne, 151 N.H. 803, 809 (2005). So long as a reasonable person would feel free to leave, State v. Riley, 126 N.H. 257, 262-63 (1985), or terminate the encounter, State v. McKeown, 151 N.H. 95, 97 (2004), the citizen is not seized under Part I, Article 19 of the State Constitution. "[A seizure] occurs when an officer, by means of physical force or show of authority, has in some way restrained the liberty of the person." Beauchesne, 151 N.H. at 810. Circumstances indicating a "show of authority" might include the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person, or the use of language or tone of voice indicating that compliance with the officer's request might be compelled. Id. This test is an objective one, considering how a reasonable person in the defendant's position would have understood his situation. Id. Numerous courts recognize that when an officer approaches a person seated in a parked car and asks questions, this in and of itself does not constitute a seizure. See 4 W. LaFave, Search and Seizure

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