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                 THE SUPREME COURT OF NEW HAMPSHIRE

                           ___________________________


Rockingham
No. 2013-757


                        THE STATE OF NEW HAMPSHIRE

                                         v.

                              TANEAL C. BROADUS

                           Argued: October 16, 2014
                       Opinion Issued: January 22, 2015

      Joseph A. Foster, attorney general (Stephen D. Fuller, senior assistant
attorney general, on the brief and orally), for the State.


      Stephanie Hausman, deputy chief appellate defender, of Concord, on the
brief and orally, for the defendant.

      DALIANIS, C.J. Following a bench trial, the defendant, Taneal C.
Broadus, was convicted on one felony count of possession of oxycodone, one
felony count of possession of codeine, and one misdemeanor count of
possession of marijuana. See RSA 318-B:2 (Supp. 2014). On appeal, she
challenges only her felony convictions, arguing that the Superior Court
(Wageling, J.) erroneously denied her motion to suppress evidence of the
oxycodone and codeine obtained during an unconstitutional search. We vacate
and remand.
      The following facts are derived from the trial court’s order denying the
defendant’s motion to suppress or otherwise appear in the record. On a night
in October 2011, New Hampshire State Trooper Matthew Locke stopped a
vehicle in Auburn after having observed the driver discard a lit cigarette. Upon
approaching the vehicle, Locke smelled the odor of freshly burned marijuana
emanating from it. Locke determined that both occupants had valid licenses
and that neither had an outstanding warrant. The defendant was the
passenger. The driver admitted to littering. The driver also told Locke that she
and the defendant were returning home from a friend’s house in Manchester.

      At Locke’s request, the driver exited the vehicle. Locke then asked her
about the marijuana odor. She stated that she and the defendant had smoked
marijuana about one hour earlier but denied using marijuana in the car. The
driver also initially denied the existence of illegal drugs in the vehicle, but
eventually admitted that there was a “marijuana roach” behind the driver’s
seat. The driver retrieved the “roach” and handed it to Locke.

       Locke then asked the defendant to step out of the vehicle. As she exited,
Locke noticed a beer bottle on the floor where her feet had been. He took the
bottle and observed that it was open, smelled of beer, and was cool to the
touch. The defendant denied consuming alcohol in the vehicle; Locke believed
that statement to be a lie.

       Throughout this period of time, Locke observed that the defendant had
refrained from making eye contact with him. Even when Locke asked for her
identification, she stared straight ahead. The defendant was also wearing
extremely baggy jeans and a sweatshirt. Although Locke had called for
backup, it was approximately twenty minutes away from his location. The
defendant denied having any weapons.

       Locke then performed a pat-down search, also known as a “frisk.”
During the frisk, Locke felt an object in the shape of a prescription pill bottle in
the defendant’s pocket. Locke testified that, based upon his experience,
individuals often concealed weapons, like razor blades, in such bottles. Locke
asked the defendant about the bottle, and she responded that the pills were for
her migraine headaches. The defendant complied with Locke’s request to hand
him the bottle. Locke observed that it contained six pills and that its label
indicated a prescription for someone other than the defendant. The defendant
then admitted that she did not have a prescription for the pills, which were
later identified as oxycodone and codeine.

       Locke arrested the defendant for possession of a narcotic drug and the
driver for possession of marijuana. See RSA 318-B:2. Locke later testified
that, if he had not arrested the defendant for possession of a narcotic drug, she
and the driver “would’ve been arrested” because “probable cause had been



                                         2
established that there’d been possession of marijuana and both had used it
previously as well as an open container violation.”

       Before trial, the defendant moved to suppress the pills, arguing that the
frisk was unconstitutional. See N.H. CONST. pt. I, art. 19; U.S. CONST.
amends. IV, XIV. Following a hearing, the trial court denied the motion. The
trial court first concluded that, based upon the totality of the circumstances,
“Trooper Locke was justified in performing a frisk of Defendant to dispel his
concern that she may have been in possession of a weapon.” The court further
determined that “[e]ven if Trooper Locke was not justified in performing a frisk,”
the “evidence need not be suppressed” because Locke “would have been
justified in arresting Defendant for possession of a controlled substance for the
marijuana and violation of the open container law.” Therefore, the trial court
reasoned that the pills would have been “inevitably discovered” when the
defendant was searched incident to the arrest. The defendant was convicted
on three counts of possession of a controlled drug – oxycodone, codeine, and
marijuana, see RSA 318-B:2 – and this appeal followed.

       The defendant first argues that the trial court erred in denying her
motion to suppress because Locke lacked a reasonable belief that she was
armed and presently dangerous as is required to justify the frisk that led to the
discovery of the pills. See State v. Michelson, 160 N.H. 270, 272-73 (2010).
The defendant also argues that the trial court erred in determining that the
pills would inevitably have been discovered upon a search incident to arrest for
marijuana possession and/or an open container violation. See State v. Holler,
123 N.H. 195, 200 (1983).

       We first address the defendant’s arguments under the State Constitution
and rely upon federal law only to aid our analysis. State v. Ball, 124 N.H. 226,
231-33 (1983). “In reviewing the trial court’s ruling, we accept its factual
findings unless they lack support in the record or are clearly erroneous.” State
v. Perri, 164 N.H. 400, 411 (2012). “The application of the appropriate legal
standard to those facts, however, is a question of law, which we review de
novo.” Id. (quotation omitted).

       Regarding the defendant’s first argument, “[o]nce an officer is justified in
making an investigatory stop, he may also conduct a protective frisk if the
officer reasonably believes the individual is armed and presently dangerous.”
Michelson, 160 N.H. at 272 (quotation omitted). “The purpose of a protective
frisk is not to discover evidence of a crime, but to allow the officer to pursue his
investigation without fear of violence.” Id. (quotation and brackets omitted).
“Therefore, the frisk must be strictly confined to what is minimally necessary to
discover the presence of a weapon.” Id. (quotation omitted).

        The defendant does not dispute the legality of the initial traffic stop for
littering. See id. at 273. Instead, she argues that Locke was not justified in


                                          3
frisking her because, based upon the totality of circumstances, he had no
reasonable suspicion that she was armed and presently dangerous. See id.
The State argues otherwise.

       “To determine the sufficiency of an officer’s suspicion, we consider 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. (quotation
omitted). In making this determination, we do not consider each fact in
isolation or necessarily compare the facts to another case. See State v. Turmel,
150 N.H. 377, 381 (2003). “A reasonable suspicion must be more than a
hunch and the articulated facts must lead somewhere specific, not just to a
general sense that this is probably a bad person who may have committed
some kind of crime.” Michelson, 160 N.H. at 273 (quotations and brackets
omitted). “The officer’s suspicion must have a particularized and objective
basis in order to warrant that intrusion into protected privacy rights.” Id.
(quotation omitted).

       We conclude from the totality of the circumstances that the frisk in this
case was not supported by particularized and objective facts sufficient to give
rise to a reasonable suspicion that the defendant was armed and presently
dangerous. See id. at 272-73. Here, neither the defendant nor the driver was
suspected of having committed, or being about to commit, a violent offense.
Further, the defendant had no outstanding warrants, complied with Locke’s
requests during the stop, and made no threatening or furtive movements
during the stop. Moreover, the stop did not occur in a high crime area.

      Indeed, Locke’s own testimony establishes that there was no objective
basis to believe that the defendant was armed and presently dangerous.

      Q And had you received any reports of violent crimes in the area that
      night?

      A   In that particular area? No.

      Q   Any reports of weapons being used in any crimes?

      A   No.

      Q   Reports of robberies or fights?

      A   No.

      Q And when you got to the car, did you see anything in the car that
      would . . . cause you concern in terms of your safety? Any baseball bats?
      Anything . . . like that?


                                         4
A   No.

Q   No guns or swords or knives?

A   No.

Q Okay. And you had testified that [the defendant] had looked forward,
I guess, and not making eye contact with you?

A Correct.

Q And that was something that caused you concern?

A Yes.

Q But you also testified in general, or at least I got it from your
testimony, that she was generally compliant with all [of] your requests?

A   Yes.

Q When you came up to the door [of the car], there was no sort of quick
movements for anything that might be hidden?

A   No.

Q   No reaching behind the seat or under the seat?

A   No, not that I observed.

Q And she produced her license and identification when you asked her
to?

A Yes.

Q She got out of the car when you asked her to?

A Yes.

Q   She didn’t yell at you or threaten you in any way?

A   No.

Q   She didn’t come at you or charge or raise her hand to you?

A   No.



                                 5
      Q You had also testified that this area, I guess of [Route] 101, is
      considered a high-crime area?

      A Not specifically. I said the city of Manchester . . . .

       To justify the frisk, the State relies upon only three facts that are specific
to the defendant: (1) Locke believed that the defendant lied when she denied
drinking alcohol in the vehicle; (2) she did not maintain eye contact with Locke;
and (3) she wore baggy clothes. None of these facts, alone or together, could
have supported a reasonable suspicion that the defendant was armed and
presently dangerous. Although Locke believed that the defendant lied, her lie
concerned consuming alcohol, not her involvement in violent activity or
possession of weapons. See id. at 273 (holding that officer had reasonable
suspicion to justify protective frisk when defendant admitted to having been
involved in a fight, had blood on his nose, had a baseball bat in his car, and
gave an unclear response about whether he had any other weapons).
Moreover, because “[m]ost people, when confronted by a police officer, are likely
to act nervous[] [and] avoid eye contact, . . . such behaviors [are] of very little
import to a reasonable suspicion determination” that the defendant was armed
and presently dangerous. United States v. Williams, 731 F.3d 678, 687 (7th
Cir. 2013). Finally, nothing about the defendant’s “attire alone could tell the
officer[] anything about [her], except that [s]he liked to wear baggy clothing.”
State v. Miglavs, 90 P.3d 607, 613 (Or. 2004).

       The other facts upon which the State relies are not specific to the
defendant. The State argues that the frisk was justified because Locke was
outnumbered by the vehicle’s occupants and that his “backup” was not
“immediately available.” However, these facts do not create particularized
reasonable suspicion that the defendant was armed and presently dangerous.
See In re Mario T., 875 N.E.2d 1241, 1250 (Ill. App. Ct. 2007) (holding that,
although being outnumbered is a factor to consider, “more is required than
merely counting heads[;] [a]n officer must reasonably suspect that he is in
danger of attack, before he may search the person for weapons” (quotation,
brackets, and ellipsis omitted)). Although we appreciate that officer safety is of
paramount concern, the goal of ensuring officer safety does not vitiate the
requirement that an officer have an objective basis to believe that a subject is
armed and presently dangerous before initiating a frisk. See Michelson, 160
N.H. at 272; see also Miglavs, 90 P.3d at 613 (explaining that “[a] police
officer’s suspicion must be particularized to the individual based on the
individual’s own conduct”).

       Taking all of the circumstances in this case into account, we conclude
that Locke did not have a particularized and objective basis for believing that
the defendant was armed and presently dangerous. We hold, therefore, that
the trial court erroneously concluded that the frisk was valid. Because the



                                         6
defendant prevails under the State Constitution, we need not reach her federal
claim. See Ball, 124 N.H. at 237.

        We next address whether the inevitable discovery doctrine applies to the
discovery of the pills. Under the inevitable discovery doctrine, “illegally seized
evidence is admissible if a search was justified, and the evidence discovered
illegally would inevitably have come to light in a subsequent legal search.”
Holler, 123 N.H. at 200. The State argues that the doctrine applies because:
(1) there was probable cause to arrest the defendant for possession of
marijuana and the open container violation; (2) Locke testified that he
“would’ve” arrested her had he not arrested her for possessing the pills; and (3)
had the defendant been arrested, she would have been searched and the pills
would have been found. To counter the State’s arguments, the defendant
contends that there was no probable cause to arrest her for possessing
marijuana. She also argues that, to satisfy the inevitable discovery doctrine,
there must have been a “substantial and articulable likelihood” that she would
have been arrested and that Locke’s testimony does not meet that standard.
See United States v. Heath, 455 F.3d 52, 62 n.12 (2d Cir. 2006).

        We have not had prior occasion to decide what the State must prove in
order for the inevitable discovery doctrine to apply. Federal circuit courts of
appeal are divided. See, e.g., United States v. Zavala, 541 F.3d 562, 579 (5th
Cir. 2008) (holding that to satisfy the inevitable discovery doctrine, the
government must show that there was a “reasonable probability” that the
evidence would have been discovered by lawful means and that the government
was “actively pursuing a substantial alternate line of investigation at the time
of the constitutional violation”); Heath, 455 F.3d at 60 (concluding “that
illegally-obtained evidence [is] admissible under the inevitable discovery
[doctrine] . . . only where a court can find, with a high level of confidence, that
each of the contingencies necessary to the legal discovery of the contested
evidence would be resolved in the government’s favor”); United States v.
Almeida, 434 F.3d 25, 28-29 (1st Cir. 2006) (deciding that for inevitable
discovery doctrine to apply, the government must demonstrate that “the legal
means by which the evidence would have been discovered was truly
independent,” that there was “a high degree of probability” that the evidence
would have been discovered by such means, and that applying the inevitable
discovery rule would not “provide an incentive for police misconduct or
significantly weaken constitutional protections”).

       The trial court made no legal rulings or factual findings on this issue. It
found only that “Locke would have been justified in arresting Defendant for
possession of a controlled substance . . . and violation of the open container
law.” In other words, as the defendant correctly notes, the trial court found
only that Locke “could have” arrested her; it did not decide how likely it was
that Locke “would have” arrested her. Nor does it appear that the parties fully
litigated in the trial court how probable the defendant’s arrest would have to be


                                        7
in order to satisfy the inevitable discovery doctrine. Moreover, the parties did
not develop a sufficient factual record regarding the likelihood of the
defendant’s arrest. Under these circumstances, we decline to decide this issue
in the first instance and remand to the trial court to do so upon further
proceedings consistent with this opinion. On remand, even though the
defendant did not appeal her conviction for marijuana possession, she may
argue, as she has on appeal, that the oxycodone and codeine would not have
been “inevitably discovered,” in part, because there was no probable cause to
arrest her for possession of marijuana.

                                                 Vacated and remanded.

      HICKS, CONBOY, LYNN, and BASSETT, JJ., concurred.




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