State v. Quezada , 141 N.H. 258 ( 1996 )

Thayer, J.,

dissenting: I respectfully dissent from the majority’s holding that the defendant was seized for purposes of part I, article 19 of the New Hampshire Constitution.

In State v. Riley, 126 N.H. 257, 262, 490 A.2d 1362, 1366 (1985), we adopted the federal standard announced by the United States Supreme Court in United States v. Mendenhall, 446 U.S. 544 (1980), for determining whether a seizure has occurred under the State Constitution. As the majority acknowledges, this standard requires an analysis of whether “in view of all the circumstances ... a reasonable person would have believed that he was not free to leave,” State v. Wong, 138 N.H. 56, 62, 635 A.2d 470, 474 (1993) (quotation omitted), which in turn requires “a determination whether there has been a ‘show of authority’ such that the liberty of the individual has been restrained.” Riley, 126 N.H. at 262, 490 A.2d at 1366. In Riley, we cited as factors tending to indicate a show of authority “the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer’s request might be compelled.” Id. (quotation omitted). Because these and other factors that might indicate a show of authority are lacking in the case before us, I would conclude that the defendant was not seized for purposes of part I, article 19.

Here the only other officer at the scene was occupied with the suspect, not the defendant. Officer Fournier never displayed a weapon and did not touch the defendant. He spoke in a “calm and relaxed” voice. He never approached beyond the first step of the stairs. When Fournier said, “Hey, you, stop,” the defendant, as the trial court found, was “apparently unaware” that he was being addressed. The majority assumes that the defendant heard this remark but chose to ignore it. In my opinion, the record indicates that the defendant did not hear the remark. The only statement by Fournier that the defendant knew was addressed to him was, “Hey, I want to speak to you.” This simple request to communicate was not, under the standard adopted by this court in Riley, sufficient to constitute a seizure for purposes of part I, article 19. As the United States Supreme Court has said with regard to the Federal Constitution, “law enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer questions, [or] by putting questions to him if the person is willing to listen . . . .” Florida v. Royer, 460 U.S. 491, 497 (1983); see Riley, 126 N.H. at 263, 490 A.2d at 1366.

Even if I were to assume, as the majority does, that the defendant heard Fournier say, “Hey, you, stop,” I would still conclude that no seizure occurred. The trial court characterized Fournier’s statement as a “request to speak with the defendant” and found that the two officers “merely called out to the defendant and [the suspect] to attract their attention in order to ask them some questions.” Given these findings, which are supported by the record, and the fact that Fournier spoke in a “calm and relaxed” voice, did not display a weapon, and never touched the defendant, I cannot say that “a reasonable person would have believed that he was not free to leave.” Wong, 138 N.H. at 62, 635 A.2d at 474 (quotation omitted). Consequently, I would affirm the trial court’s denial of the defendant’s motion to suppress.

HORTON, J., joins in the dissent.