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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 ___________________________ Rockingham No. 2008-323 THE STATE OF NEW HAMPSHIRE v. SEAN MILLER Argued: February 19, 2009 Opinion Issued: July 31, 2009 Kelly A. Ayotte, attorney general (Stephen D. Fuller, senior assistant attorney general, on the brief and orally), for the State. Paul Borchardt, assistant appellate defender, of Concord, on the brief and orally, for the defendant. DALIANIS, J. The defendant, Sean Miller, appeals his conviction of one count of theft by unauthorized taking, following a bench trial. See RSA 637:3 (2007). On appeal, he contends that the Trial Court (Nadeau, J) erred by denying his motion to suppress statements he made to the Deerfield police. We reverse and remand. The trial court found or the record supports the following facts. On April 24, 2007, the Concord Police Department received a telephone call from an individual reporting that a car with several people inside it as well as people

going to and from it had been parked in front of his residence for approximately ten minutes. The caller expressed concern because his neighbor had recently been burglarized. At approximately 9:30 p.m., Concord Police Officer Levesque arrived at the residence and observed that the car appeared to have four occupants. When the car began to move away, Levesque activated his blue lights and stopped it. Levesque asked the defendant, who was driving, if he knew why he had been stopped. The defendant responded that he did not. Levesque then informed him that someone had reported that his car had been parked in front of a residence for a "long period of time." Levesque asked the defendant his reason for parking on the street. The defendant and a juvenile passenger, J.H., explained to the officer that J.H.'s younger brother had been in a fight and was in the emergency room and that the car occupants had been investigating what had happened. Levesque asked J.H. if he and the other occupants intended to exact revenge from the individual who hurt his brother, and J.H. responded that they did not. Levesque asked the defendant if there was anything in the car he should know about, including weapons, drugs, or alcohol. The defendant responded, "No." Levesque then told everyone to remain in the car, and proceeded to check the defendant's license. Officer Reed, also of the Concord Police Department, then arrived on the scene. Once the defendant's license was cleared by police dispatch, Levesque returned to the car and asked the defendant to get out. He again asked why the defendant was in the neighborhood and whether the defendant had any weapons on him. The defendant responded that he did not. Levesque patted the defendant down and found no weapons. He told the defendant that he was suspicious of his explanation because the emergency room had not reported any recent assault victims to the police. Levesque asked whether he could search the defendant's car. The defendant refused, stating that he had done nothing wrong. Levesque then told the defendant to remain with Reed and he returned to the car to speak with the other occupants. Levesque asked the other juvenile passenger, J.O., to get out of the car. While asking J.O. for his name and date of birth, Levesque noticed that his hands were in the pocket of his sweatshirt. He asked J.O. to remove his hands and inquired whether he had any weapons on him. When J.O. failed to answer, Levesque performed a pat-down search and discovered a loaded nine millimeter handgun in his waistband. Levesque then asked the defendant whether he was aware that J.O. had a gun. The defendant admitted that there was another gun under the driver's seat. Upon a subsequent search of the car, the gun was found. The defendant was taken to the Concord police station, where he was fingerprinted, booked and classified. He was held in a cell for approximately

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thirty minutes and then taken to an interrogation room where he was read his rights under Miranda v. Arizona, 384 U.S. 436 (1966), which he waived. The defendant was questioned by three police officers, including Levesque, who asked him where he had obtained the gun. The defendant confessed that he stole the gun from a Deerfield residence. The Concord police notified the Deerfield police of the defendant's statement and informed him that a Deerfield police officer would be coming to speak with him. Officer Joel Hughes of the Deerfield Police Department arrived at the Concord police station at approximately 1:00 a.m. The defendant was still in the interrogation room, having remained there after he confessed to the Concord police. The Concord police told Hughes that the defendant had been read and had waived his Miranda rights. Hughes again read the defendant his Miranda rights, and the defendant again waived them. Hughes questioned the defendant with the three Concord police officers present. Hughes asked if the defendant knew why Hughes was interviewing him. The defendant replied, "[Y]eah, because I stole the gun." Hughes asked the defendant if Hughes' gun looked like the one stolen from Deerfield. The defendant responded that it did, and he told Hughes how he had removed the gun from Deerfield Police Officer Glenda Smith's holster while she was away from her home. A Rockingham County grand jury indicted the defendant for one count of theft by unauthorized taking. See RSA 637:3. Before trial, the defendant moved to suppress statements he made to Hughes. The trial court denied his motion. The defendant argues that the trial court erred in denying his motion to suppress statements he made to Hughes because they were fruits of an unlawful search and illegal arrest. See U.S. CONST. amend IV; N.H. CONST. pt. I, art. 19. The State concedes the defendant's arrest was illegal and that the resulting evidence from his car should be suppressed, but contends that his confession to Hughes is admissible because "the act of giving the statement was sufficiently a product of the defendant's free will so as to break the causal connection between the illegality and the confession." State v. Gotsch, 143 N.H. 88, 90 (1998), cert. denied, 525 U.S. 1164 (1999) (quotation omitted). In addition, the State contends that the defendant's claim was not preserved for appeal. We first address the State's argument that the defendant failed to preserve the issue of whether his confession was the fruit of an illegal search. Upon reviewing the record, we conclude that this argument lacks sufficient merit to warrant further discussion. See Vogel v. Vogel, 137 N.H. 321, 322 (1993). We now turn to the defendant's constitutional claim.

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Our review of the trial court's order on the motion to suppress is de novo, except as to any controlling facts determined by the trial court in the first instance. State v. Cowles, 152 N.H. 369, 371 (2005). We first address the defendant's arguments under the State Constitution and reference federal cases only to aid in our analysis. See State v. Ball, 124 N.H. 226, 231-33 (1983). In determining whether a confession following an illegal arrest is voluntary, and, thus, admissible under our constitution, we balance the following four factors: (1) whether Miranda warnings were given; (2) the temporal proximity of the arrest and confession; (3) the presence of intervening circumstances; and (4) the purpose and flagrancy of the official misconduct." Gotsch, 143 N.H. at 90. No single factor is determinative. See Brown v. Illinois, 422 U.S. 590, 603 (1975); People v. Rodriguez, 945 P.2d 1351, 1364 (Colo. 1997); Wilkins v. State, 960 S.W.2d 429, 432 (Tex. App.), petition for review denied (1998). "The question of attenuation inevitably is largely a matter of degree and thus application of the test is dependent upon the particular facts of each case." 6 W. LaFave, Search and Seizure

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