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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. 2008-755 THE STATE OF NEW HAMPSHIRE v. PATRICK W. JOYCE, III Argued: September 23, 2009 Opinion Issued: December 4, 2009 Kelly A. Ayotte, attorney general (Stephen D. Fuller, senior assistant attorney general, on the brief and orally), for the State. Stephanie Hausman, assistant appellate defender, of Concord, on the brief and orally, for the defendant. DUGGAN, J. The defendant, Patrick W. Joyce, III, was found guilty based upon stipulated facts of possession of a controlled drug with the intent to sell. See RSA 318-B:2 (2004) (amended 2008). He appeals an order of the Superior Court (Nadeau, J.) denying his motion to suppress evidence seized during an investigatory stop. We reverse and remand. The following facts were adduced at the hearing on the motion to suppress. At approximately 8:18 p.m. on November 2, 2007, Officer Doyle and Officer Archibald of the Londonderry Police Department received a report from

dispatch that a woman was smoking marijuana outside a building located at 83 South Road in Londonderry. There are two apartment buildings located at that address. Officers Doyle and Archibald responded within four minutes of receiving the call, in separate cruisers. Londonderry Detective Adam Dyer arrived in his own vehicle just after the other officers. All three officers parked on the street and walked around the side of one of the buildings to a parking lot. They saw only one occupied vehicle in the lot; it was running with its lights on, with a male driver, later identified as the defendant, and a female passenger, wearing a gray hooded sweatshirt, in the front seat. The vehicle was properly parked and was facing one of the apartment buildings in the complex. Archibald approached the driver's side of the vehicle and Doyle approached the passenger's side. The car windows were open, and both the defendant and the female passenger were smoking cigarettes. Dyer stayed at the rear of the vehicle. Doyle spoke to the female passenger, explaining why they were there, and asked her for identification. The woman stated that she did not have her identification, but that her name was Thelma Sousa and that she lived at 83 South Road. Doyle asked Sousa to step out of the car. She complied. He told Sousa that they had received a call that she was smoking marijuana outside of the residence, and she denied that she had been doing so. Doyle asked why Sousa and the defendant were sitting in the car. Sousa stated that they had gone to the Quick Stop for cigarettes, and that the defendant was a friend who had driven her there. She appeared nervous, and again denied that they were smoking marijuana. Doyle testified that he did not observe Sousa doing anything that would indicate that she and the defendant were smoking marijuana, but that people who smoke marijuana often use cigarettes as masking agents. While Officers Doyle and Archibald spoke to the defendant and Sousa, Detective Dyer learned from dispatch that the anonymous caller had stated that the woman smoking marijuana was named Thelma and wore a gray sweatshirt. Dyer asked Doyle to have Sousa come to the rear of the car. Dyer told Sousa that an anonymous caller had stated that she had been involved in drug activity. She denied that she had been. Dyer testified that Sousa appeared very nervous, and smelled of "fresh marijuana." Dyer asked her whether she had any drugs, what was going on, and why someone would report that she was smoking marijuana there. Sousa continued to deny "that there was anything going on." Meanwhile, Officer Archibald took the defendant's identification and returned it to him. As Archibald finished speaking with the defendant, Doyle began speaking with him through the passenger's side window. Doyle did not smell any marijuana. He explained why the officers were there, and that Sousa

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matched the description of the person smoking marijuana outside the building. He asked the defendant for his name and what he was doing in the parking lot. The defendant responded that he had given Sousa a ride to the store to pick up some cigarettes. At some point, Doyle asked the defendant whether he knew anything about a woman smoking marijuana and the defendant stated that he did not. Doyle asked whether there was anything in the car that he needed to know about, and the defendant replied "not that he could think of." He asked the defendant whether the police could "check[ ]" his car. The defendant refused, stating that it was his mother's car. Dyer came to the passenger's side and began speaking with the defendant. Dyer then told Doyle to call Officer Perry to bring his "narcotics detection dog" to the scene because he smelled fresh marijuana while he was talking to Sousa outside the car and because Sousa had been in the defendant's vehicle. From the time that the officers arrived at 83 South Road until they called for the narcotics dog approximately ten to fifteen minutes had passed. The defendant overheard the radio call for the dog. He then asked Dyer what was going to happen when Perry arrived. Dyer moved to the driver's side of the vehicle. He testified at the suppression hearing that "when [he] began talking to [the defendant] at the driver's side [he] could smell that same odor of marijuana [that he smelled on Sousa] coming out of [the] vehicle." Dyer told the defendant that, because he smelled marijuana on Sousa's person and smelled marijuana when he began talking to the defendant at the driver's side, Officer Perry would come with the drug-sniffing dog to "check" the car. The defendant asked what would happen next, and Dyer responded that if the dog "alerted on the car," the officers would impound his vehicle and seek a search warrant. The defendant asked what would happen after that, and Dyer stated that if they obtained a search warrant, they would search the car, and if they found drugs, the defendant could be charged. The defendant told Dyer that he wanted to be "honest" and asked whether he could speak to him. Dyer responded that he could but did not have to. The defendant admitted that he had some marijuana on him. Dyer asked him to step out of the vehicle and to give him the marijuana. The defendant complied, and informed Doyle that there was more marijuana in the center console of the vehicle. The defendant moved to suppress all evidence obtained as a result of the investigatory stop, arguing that the police lacked reasonable suspicion to seize him and thus violated his rights under Part I, Article 19 of the State Constitution and the Fourth and Fourteenth Amendments to the Federal Constitution. He also argued that the police unlawfully expanded the scope of the stop and subjected him to custodial interrogation without warning him of

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his Miranda rights. See Miranda v. Arizona, 384 U.S. 436, 444-45 (1966). Following a hearing, the trial court denied the motion, ruling that the officers had reasonable suspicion to detain the defendant when they approached the car, and that the police did not seize the defendant until they obtained his license and "held him at the car for further inquiry." We first address the defendant's claims under the State Constitution, and cite federal opinions for guidance only. State v. Ball, 124 N.H. 226, 231-33 (1983). "In reviewing the trial court's rulings, we accept its factual findings unless they lack support in the record or are clearly erroneous." State v. Steeves, 158 N.H. 672, 675 (2009) (quotations omitted). We review the trial court's conclusions of law de novo. Id. To determine whether the officers conducted a lawful investigative stop, "we conduct a two-step inquiry: first, we determine when the defendant was seized; second, we determine whether, at that time, the officer[s] possessed a reasonable suspicion that the defendant was, had been or was about to be engaged in criminal activity." Id. "Not all interactions between the police and citizens involve 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, or terminate the encounter, the citizen is not seized under Part I, Article 19 of the State Constitution." State v. Licks, 154 N.H. 491, 493 (2006) (citations omitted). Accordingly, "[o]nly when the officer[s], by means of physical force or show of authority, ha[ve] in some way restrained the liberty of a citizen may we conclude that a `seizure' has occurred." Steeves, 158 N.H. at 675. "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." Beauchesne, 151 N.H. at 810 (citation omitted). We objectively determine whether the defendant was seized, and "ask whether, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he . . . was not free to leave." Steeves, 158 N.H. at 675; see also Florida v. Bostick, 501 U.S. 429, 437 (1991) (noting that crucial test is "whether, taking into account all of the circumstances surrounding the encounter, the police conduct would have communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his business"). The defendant argues that he was seized "either upon the officer's first approach to the vehicle or shortly thereafter," or, alternatively, when Officer Archibald obtained his license. The State does not pinpoint when the seizure occurred, but argues that the police did not seize the defendant until after they

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had reasonable suspicion to do so

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