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                 THE SUPREME COURT OF NEW HAMPSHIRE

                          ___________________________


Grafton
No. 2012-475


                      THE STATE OF NEW HAMPSHIRE

                                       v.

                        HILLMAN BLESDELL-MOORE

                          Argued: January 9, 2014
                        Opinion Issued: April 15, 2014

      Michael A. Delaney, attorney general (Elizabeth C. Woodcock, assistant
attorney general, on the memorandum of law and orally), for the State.

      Brianna M. Sinon, assistant appellate defender, of Concord, on the brief,
and Thomas A. Barnard, assistant appellate defender, of Concord, orally, for
the defendant.

       HICKS, J. The defendant, Hillman Blesdell-Moore, appeals his
convictions for possession with intent to distribute marijuana and psilocybin
(mushrooms), arguing that the Superior Court (Vaughn, J.) erroneously denied
his motions to suppress evidence seized during a stop for a motor vehicle
violation. We reverse and remand.

     The trial court found or the record supports the following facts regarding
a motor vehicle stop that occurred on the evening of November 23, 2011.
Officer Roy Holland of the Enfield Police Department stopped a truck for having
defective tail lights. Holland testified that he activated his emergency blue
lights and followed the truck before it stopped on the side of the road. Further,
Holland testified that he did not observe any erratic behavior to suggest that
the truck’s driver — the defendant — was under the influence of illegal
substances or alcohol.

        Holland approached the defendant’s truck and requested his driver’s
license and vehicle registration. He noticed that the defendant had bloodshot
eyes and trembling hands and concluded that the defendant was nervous, but
he also testified that the defendant was polite and cooperative during this brief
interview. Holland allowed the defendant to step out of his truck to attempt to
fix the tail lights while he conducted a license check in his cruiser. The officer
testified that this license check was completed in approximately two to three
minutes.

      Holland then returned to the defendant’s truck and asked to see his
tongue. The defendant complied with the request, and Holland observed a
green film coating the defendant’s tongue. He believed this coating was
consistent with marijuana use and asked the defendant when he had last
smoked marijuana. The defendant initially denied smoking marijuana but
subsequently admitted that he had smoked marijuana on the previous day.
Holland asked if the defendant had marijuana paraphernalia in his truck. The
defendant said that he did not. Concerned that the defendant was becoming
agitated, Holland then obtained the defendant’s consent to perform a pat-down
search of his person. The officer felt two bulges in the defendant’s back
pockets, and the defendant produced two “wads” of cash.

       After the pat-down, the defendant put the money back in his pockets,
and Holland returned the defendant’s license and registration with a verbal
warning to repair the broken tail lights. This conversation was interrupted
when the defendant received a telephone call from his father. Holland testified
that he took the defendant’s phone and detailed the circumstances of the stop
to the defendant’s father and said that the defendant “was going to drive home
and park the vehicle until he could get it fixed.” He then returned the
telephone to the defendant and told him that he was free to go.

       The two parted ways and walked toward their vehicles when Holland
hesitated and asked the defendant whether he would answer another question.
The defendant stopped getting into his truck and turned to Holland. Holland
asked again whether the defendant had marijuana in his truck. The defendant
denied that he did. He also denied Holland’s subsequent request to conduct a
search of his vehicle. The officer again stated that the defendant was free to
leave, but then asked whether a drug canine would indicate that there were




                                        2
drugs in the vehicle. At this point, the defendant looked at the ground and
replied that he did not think so.

      Holland stepped away from the defendant but remained within hearing
distance as he contacted dispatch to request a canine unit. The defendant
lamented that he was “screwed,” and Holland asked the defendant how much
marijuana he had in his truck. The defendant confessed that he had “a couple
ounces” of marijuana and mushrooms in his truck.

       Prior to his trial for possession with intent to distribute marijuana and
psilocybin, the defendant filed four motions to suppress the following evidence:
(1) Holland’s examination of the defendant’s tongue; (2) the initial questioning
regarding marijuana use; (3) Holland’s pat-down of the defendant; and (4) the
subsequent interrogation regarding drug possession. The trial court granted
the motion to suppress evidence of the green film on the defendant’s tongue
because the State failed to produce sufficient evidence that such was indicative
of marijuana use, but denied the remaining motions. On appeal, the defendant
contends that the trial court’s failure to suppress all evidence obtained
following the examination of the tongue violated his state and federal
constitutional rights to be free from unreasonable searches and seizures. See
N.H. CONST. pt. I, art. 19; U.S. CONST. amends IV, XIV.

      We first address the defendant’s claim under the State Constitution and
rely upon federal law only to aid our analysis. State v. Ball, 124 N.H. 226, 231-
33 (1983). When reviewing a trial court’s order on a motion to suppress, we
accept the trial court’s factual findings unless they lack support in the record
or are clearly erroneous, and we review legal conclusions de novo. State v.
Tarasuik, 160 N.H. 323, 327 (2010).

I. Expanding the Scope of a Stop

        Part I, Article 19 of the New Hampshire Constitution protects “all people,
their papers, their possessions and their homes from unreasonable searches
and seizures.” State v. Schulz, 164 N.H. 217, 221 (2012) (quotation omitted).
Evidence obtained in violation of a defendant's rights under Part I, Article 19 of
the State Constitution is inadmissible under the exclusionary rule, though an
exception to this rule may apply if the State proves that the taint of the primary
illegality is purged. State v. De La Cruz, 158 N.H. 564, 566 (2009).

      A traffic stop is a “seizure.” State v. McKinnon-Andrews, 151 N.H. 19, 22
(2004). The scope of such an investigative stop “must be carefully tailored to
its underlying justification[,] must be temporary[,] and last no longer than is
necessary to effectuate the purpose of the stop.” State v. Wong, 138 N.H. 56,
63 (1993) (quotation and ellipsis omitted). The scope of a stop may be
expanded to investigate other suspected illegal activity only “if the officer has a



                                        3
reasonable and articulable suspicion that other criminal activity is afoot.”
State v. Hight, 146 N.H. 746, 748-49 (2001) (quotation omitted). An
investigatory stop may “metamorphose into an overly prolonged or intrusive
detention (and, thus, become unlawful).” State v. Michelson, 160 N.H. 270,
274 (2010) (quotation omitted). Whether the detention is a lawful investigatory
stop, or goes beyond the limits of such a stop, depends upon the facts and
circumstances of the particular case. Id.

      To determine whether the scope of an otherwise valid stop has been
exceeded by questioning, we must determine whether: (1) the question is
reasonably related to the initial justification for the stop; (2) the law
enforcement officer had a reasonable, articulable suspicion that would justify
the question; and (3) in light of all the circumstances, the question
impermissibly prolonged the detention or changed its fundamental nature.
McKinnon-Andrews, 151 N.H. at 25. In adopting this standard, we explained:

      If the question is reasonably related to the purpose of the stop, no
      constitutional violation occurs. If the question is not reasonably
      related to the purpose of the stop, we must consider whether the
      law enforcement officer had a reasonable, articulable suspicion
      that would justify the question. If the question is so justified, no
      constitutional violation occurs. In the absence of a reasonable
      connection to the purpose of the stop or a reasonable, articulable
      suspicion, we must consider whether in light of all the
      circumstances and common sense, the question impermissibly
      prolonged the detention or changed the fundamental nature of the
      stop.

Id. (quotation and brackets omitted).

      The defendant does not dispute that he was lawfully stopped for a motor
vehicle violation. See Michelson, 160 N.H. at 273. Instead, he argues that the
scope of this initially valid traffic stop was unlawfully expanded when Holland
asked to see the defendant’s tongue and took additional steps to investigate
whether the defendant had possessed or consumed marijuana. We agree.

       The trial court granted the defendant’s motion to suppress Holland’s
examination of the tongue for evidentiary reasons, rather than on
constitutional grounds. We begin our analysis, however, with the question of
whether the request to examine the defendant’s tongue was constitutional. We
first conclude that Holland’s request to see the defendant’s tongue was not
reasonably related to the initial reason for the stop. According to Holland’s
testimony, the defendant was stopped because his truck’s tail lights were
defective. By the officer’s own admission, the subsequent examination of the




                                        4
defendant’s tongue to investigate whether he had consumed marijuana was not
related to this purpose.

       Because Holland’s request to examine the defendant’s tongue was not
reasonably related to the purpose of the stop, we must determine whether the
officer’s actions were justified by reasonable suspicion based upon “specific,
articulable facts taken together with rational inferences from those facts – that
the particular person stopped has been, is, or is about to be, engaged in
criminal activity.” McKinnon-Andrews, 151 N.H. at 25-26 (quotation omitted).
To determine the sufficiency of an officer’s suspicion, we evaluate the
articulable facts in light of all surrounding circumstances, keeping in mind
that a trained officer may make inferences and draw conclusions from conduct
that may seem unremarkable to an untrained observer. Id. at 26. We
recognize that the perceptions of experienced officers are entitled to deference,
but this deference should not be blind. See id. at 28 (Broderick, J.,
concurring). These articulable facts must lead to something specific and not
simply “a general sense that this is probably a bad person who may have
committed some kind of crime.” State v. Joyce, 159 N.H. 440, 446 (2009)
(quotation omitted).

      Here, we conclude that Holland did not have reasonable suspicion that
the defendant was engaged in criminal activity. Holland testified that he did
not observe any indicia of impairment when he stopped the defendant’s truck.
Specifically, the defendant was not speeding, weaving through traffic, crossing
lanes, or operating the truck in an erratic manner. He did not struggle to
produce his license and registration, and the defendant walked without
stumbling after Holland invited him to exit the truck. Holland also did not see
anything in the truck that was suggestive of drug possession.

      Despite the absence of signs of drug use and impairment, the State
contends that the officer’s actions were justified by the defendant’s
nervousness and bloodshot eyes. We are not persuaded. We have previously
noted that nervousness is “entirely consistent with innocent behavior,” id. at
447 (quotation omitted), and the officer in this case agreed that nervousness is
“natural” during a traffic stop.

       The trial court relied upon State v. Livingston, 153 N.H. 399 (2006), to
support its ruling that Holland had reasonable suspicion to expand the scope
of the stop. In Livingston, the officer approached the defendant’s truck and
smelled “a strong odor of burnt marijuana” emanating from the vehicle.
Livingston, 153 N.H. at 405. The officer also observed the defendant’s
nervousness and bloodshot eyes. Id. A critical factor supporting reasonable
suspicion in that case – the odor of burnt marijuana – is noticeably absent
here. Despite Holland’s training in detecting the odor of fresh and burnt
marijuana, he did not detect any such odor in the car or on the defendant’s



                                        5
person and observed no behaviors beyond the defendant’s nervousness,
bloodshot eyes, and shaky hands.

         Absent additional facts, we decline to find that otherwise innocent factors
like nervousness and bloodshot eyes are sufficient to support reasonable
suspicion. “[W]e think it impossible for a combination of wholly innocent
factors to combine into a suspicious conglomeration unless there are concrete
reasons for such an interpretation.” United States v. Smith, 263 F.3d 571, 594
(6th Cir. 2001) (quotation omitted); see also Ferris v. State, 735 A.2d 491, 508,
510 (Md. 1999) (“The innocent and the guilty may both frequently react with
analogous trepidation when approached by a uniformed police officer. . . . In
the absence of any testimony or scientific evidence as to some direct,
observable correlation between eyes that are bloodshot, even extremely so, and
drug usage or, intuitively less likely, drug possession, we find this fact to carry
little, if any, weight.”). This conclusion is consistent with our prior cases.
Compare Joyce, 159 N.H. at 447 (investigative stop not justified by reasonable
suspicion, despite nervousness and deceptive responses of defendant and his
companion, when they denied using marijuana and nothing in car suggested
drug consumption), with State v. Wallace, 146 N.H. 146, 149-50 (2001) (stop
justified by reasonable suspicion when the defendant was found near the scene
of a recent robbery, dressed in hooded dark clothing, and cast furtive glances
before he made a 360 degree turn and continued to approach the police
cruiser), and State v. Roach, 141 N.H. 64, 66 (1996) (reasonable suspicion
justified investigative stop and further questioning when defendant acted
furtively in Manchester’s “combat zone” at 3:55 a.m. and evaded police officer
when he approached).

      Finally, we address whether the officer’s actions “impermissibly
prolonged the detention or changed the fundamental nature of the stop.”
McKinnon-Andrews, 151 N.H. at 25 (quotation omitted). Although the brief
inspection of the defendant’s tongue did not prolong the stop, we conclude that
the search altered the fundamental nature of the stop by transforming a
routine traffic stop into an investigation of potential drug activity. Id. By
asking to see the defendant’s tongue, the officer set out to determine whether
the defendant had, in fact, consumed or was in possession of marijuana.
Although a reasonable motorist may not understand that a green film on the
tongue may be indicative of marijuana consumption, he would certainly
recognize that the officer’s request to see his tongue changed the fundamental
nature of an otherwise routine traffic stop. See id. at 29 (Broderick, J.,
concurring) (“To my mind, a reasonable motorist would have perceived the
question as altering the fundamental nature of the stop.”). This was an
impermissible and unconstitutional expansion of the scope of the stop.




                                         6
II. The Fruit of the Poisonous Tree

       Our conclusion that the officer’s request to see the defendant’s tongue
unlawfully expanded the scope of the stop does not lead inexorably to the
conclusion that all other evidence obtained after that request is excludable. Id.
at 29. We must determine whether, in view of the primary illegality, the
evidence that the defendant sought to suppress was obtained by exploitation of
that illegality or instead by means sufficiently distinguishable to be purged of
the primary taint. Hight, 146 N.H. at 749.

       The State argues that the fruit of the poisonous tree doctrine does not
apply in this case because the argument was not made before the trial court.
We disagree. The four suppression motions and defense counsel’s oral
argument to the trial court establish that this issue was adequately preserved
for our review. “The ‘fruit of the poisonous tree’ doctrine requires the exclusion
from trial of evidence derivatively obtained through a violation of Part I, Article
19 of the New Hampshire Constitution. If the evidence in question has been
obtained only through the exploitation of an antecedent illegality, it must be
suppressed.” State v. McGurk, 157 N.H. 765, 771 (2008) (quotation omitted).
The purpose of this exclusionary rule is to: “(1) deter police misconduct; (2)
redress the injury to the privacy of the victim of the unlawful police conduct;
and (3) safeguard compliance with State constitutional protections.” State v.
Panarello, 157 N.H. 204, 207 (2008).

      Read together, the defendant’s four suppression motions are all based
upon the officer’s initial request to examine the defendant’s tongue. This
examination sparked the officer’s suspicion that the defendant consumed
marijuana and resulted in an interrogation about the defendant’s marijuana
use. The defendant’s responses to the interrogation prompted the officer to pat
down the defendant, and conduct further interrogation which resulted in the
defendant’s admission to marijuana and psilocybin possession.

       In determining whether the taint of a Part I, Article 19 violation has been
purged, we consider the following factors: “(1) the temporal proximity between
the police illegality and the acquisition of the evidence sought to be
suppressed; (2) the presence of intervening circumstances; and (3) the purpose
and flagrancy of the official misconduct.” McGurk, 157 N.H. at 771 (quotation
and ellipsis omitted). Regarding the first factor, the officer’s illegal request to
see the defendant’s tongue and his subsequent observation of the film coating
the tongue was closely followed by his interrogation of the defendant. Hight,
146 N.H. at 750. Second, there were no intervening circumstances to purge
the taint of the unlawful inspection of the defendant’s tongue. Id.

       Finally, we assess the purpose and flagrancy of the official misconduct in
this case. Id. at 751. Holland admitted that his request to examine the



                                         7
defendant’s tongue was unrelated to the initial purpose of the stop, and it was
the first of several efforts to find marijuana during an otherwise routine traffic
stop for defective tail lights. Viewed objectively, Holland was determined to
conduct a drug investigation unsupported by reasonable suspicion. This is
especially troubling in light of the defendant’s youth and Holland’s statement to
the defendant’s father that he would be releasing the defendant to return
home. All of the circumstances “give[] rise to the appearance, even if not the
reality, that the officer’s purpose was to engage in a ‘fishing expedition’ for
incriminating evidence by exploiting the defendant’s ignorance of his
constitutional rights.” Id.

       Because the officer’s request to examine the defendant’s tongue was an
impermissible expansion of the stop, the exclusionary rule bars admission of
the result of the officer’s examination of the defendant’s tongue. Moreover, the
fruits of that search are also inadmissible because the State failed to establish
that the taint of the unlawful expansion of the stop was purged. We conclude,
therefore, that the trial court erroneously denied suppression of all evidence
obtained following the unlawful expansion of the stop.

     Because the evidence was obtained illegally under the New Hampshire
Constitution, we need not reach the federal issue. Ball, 124 N.H. at 237.

                                              Reversed and remanded.

    DALIANIS, C.J., and CONBOY and BASSETT, JJ., concurred; LYNN, J.,
concurred specially.



      LYNN, J., concurring specially. I agree with the majority that the
incriminating statements made by the defendant after Officer Holland asked
whether a canine would detect drugs in his vehicle, as well as the drugs
themselves, must be suppressed. I write separately because I reach this result
upon different grounds than the majority.

       The majority holds that Holland’s request to view the defendant’s tongue
fails the third prong of the three-part sequential test we articulated in State v.
McKinnon-Andrews, 151 N.H. 19, 25 (2004), for determining whether a police
officer’s questioning exceeds the scope of a lawful traffic stop. In doing so, the
majority concludes that this single inquiry, which I agree was neither
reasonably related to the initial justification for the stop nor based upon any
reasonable suspicion that arose before the question was asked, fails the third
prong of the test because it “changed the fundamental nature of the stop.”
Ante at 6.




                                        8
       I do not agree that McKinnon-Andrews so narrowly circumscribes the
scope of questioning during a traffic stop that any inquiry aimed at detecting
non-germane criminal activity changes the fundamental nature of the stop. If
that is true, then the third prong of the test has little practical meaning
because virtually all inquiries that fail the second prong of the test will
automatically fail the third prong as well. For example, if in response to
Holland’s single “tongue” inquiry, the defendant had immediately admitted
without further questioning that he had been smoking marijuana and had a
supply of the drug in the car, would we really suppress that evidence? I think
not. Thus, I do not find that Holland’s request to view the defendant’s tongue,
without more, fundamentally changed the nature of the stop.

        Rather, in my view, the proper grounds for suppression are two-fold.
First, as the trial court found (a finding that the State did not cross-appeal),
the State failed to show that the green tongue displayed by the defendant in
response to Holland’s request had any probative significance with respect to
the defendant’s use or possession of drugs. Second, notwithstanding the fact
that the green tongue gave Holland no basis to make further drug-related
inquiry, he continued to make multiple inquiries until the defendant finally
admitted to possessing drugs. These repeated inquiries had the effect of
impermissibly prolonging the stop, and, therefore, require that the fruits of this
illegality be suppressed.




                                        9
