State v. Kennison

Johnson, J. The defendant, Gina Kennison, was convicted of violating RSA 318-B:2 (Supp. 1990) (possession of a controlled substance with intent to distribute) following a bench trial in Superior Court (Dalianis, J.). Kennison appeals her conviction and sentence, arguing first that the trial court failed to enforce a promise the State made to seek a probationary sentence in her case in exchange for her cooperation. Second, she appeals the Superior Court’s (Pappagianis, J.) denial of her motion to suppress evidence found during a search of her car. Because we conclude that the stop of Kennison’s car, immediately preceding the search, was not supported by reasonable suspicion, and therefore requires reversal of her conviction, we need not address the defendant’s first argument. The facts relating to the automobile stop, adduced at the suppression hearing, are as follows. At approximately 3:00 p.m. on October — 245 — 13,1987, Sergeant James Brackett of the Nashua Police Department telephoned his brother, Captain Alan Brackett, of the Hudson Police Department, regarding an anonymous telephone tip that the sergeant had received about ten minutes earlier concerning a Gina Kennison. The informant, a male unknown to the sergeant, alleged that he had seen four pounds of marijuana in the trunk of Kennison’s car. Sergeant Brackett testified: “The caller informed me that Gina Kennison had a blue Cadillac and that plate number was 571860. The caller also stated that she worked at New Hampshire Precision Company on 35 Progress Avenue in Nashua and that she’d be leaving work at 3:00 and going back to her residence in Hudson and from there, she would be making deliveries of marijuana.” Kennison was known to Captain Brackett; he had seen her associating with drug users and sellers during 1981, 1982, and 1983, and he had once conducted a drug arrest of persons seated in a car in which she was a passenger. Moreover, during the summer of 1986, Captain Brackett received a tip from a “confidential reliable informant” that Kennison sold marijuana. Last, Captain Brackett testified that the Nashua Police Department issued two reports in the summer of 1986 “about a male caller calling stating that he had observed pounds of marijuana in Gina Kennison’s truck.” Following receipt of the tip recounted above by Sergeant Brackett, the Nashua police confirmed that the described car was parked in the New Hampshire Precision Company parking lot and was registered to Kennison. At approximately 3:00 p.m., undercover officers observed a woman enter the car and drive off. The officers attempted to follow the car, but lost it in traffic. Captain Brackett was informed of these happenings and began surveillance of Kennison’s home in Hudson. He watched as Kennison arrived, parked her car, and entered her house. For about two hours, nothing of consequence happened. Then, at approximately 5:00 p.m., Kennison left her house, entered her car, and drove away. Captain Brackett followed her for one-half to three-quarters of a mile, observed no suspicious or illegal activity, and “pulled her over.” Upon approaching Kennison’s car, Captain Brackett informed her that she had been stopped because he had probable cause to believe that she was transporting controlled drugs. He then asked her to sign a consent form in order to give him permission to search her car. Kennison was confused by the consent form and asked Captain — 246 — Brackett what would happen if she did not sign it. He told her that she would be free to go, but he would impound the car and seek a search warrant. She signed the consent form and stated, “I know what you’re going to find in there [the car].” Captain Brackett arrested Kennison after finding approximately four pounds of marijuana in the trunk. Kennison filed a motion in the superior court to suppress the evidence found during the search of her car and the subsequent search incident to her arrest, but the motion was denied. On appeal, Kennison argues that the denial was improper because the stop and search were conducted in violation of part I, article 19 of the New Hampshire Constitution, and the fourth amendment to the United States Constitution. The State disagrees, arguing that (1) the investigative stop of Kennison’s car was supported by reasonable suspicion; (2) the reasonable suspicion ripened into probable cause when Kennison stated, “I know what you’re going to find;” (3) the warrant-less search of Kennison’s car was proper because exigent circumstances existed; (4) assuming arguendo that exigent circumstances did not exist, the warrantless search was proper because this court should adopt an “automobile exception” to the warrant requirement; and (5) assuming arguendo that the officers’ reasonable suspicion did not ripen into probable cause, the warrantless search was proper because Kennison knowingly, intelligently, and voluntarily consented to the search. Because we hold that the police lacked reasonable suspicion to stop Kennison’s car, we do not address the State’s remaining four arguments. We have held that the New Hampshire Constitution may provide our citizens with more protection relative to search and seizure than the Federal Constitution. See State v. Ball, 124 N.H. 226, 231-32, 235, 471 A.2d 347, 350-51, 353 (1983). We elect to decide the case before us under our State Constitution. See id. at 232, 471 A.2d at 351; see also State v. Bertrand, 133 N.H. 843, 587 A.2d 1219 (1991) (electing to decide case under Federal Constitution). We recently had the opportunity to affirm that certain investigative stops are constitutionally permissible, although based on less than probable cause. State v. Pellicci, 133 N.H. 523, 528-29, 580 A.2d 710, 713 (1990). An investigative stop passes constitutional muster where it is substantially less intrusive than an arrest, and where the investigating officer undertook the stop “on the basis of a reasonable suspicion that the person detained had committed, was committing, or was about to commit a crime ....” Id. Moreover, we require — 247 — the officer to “‘be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant [the] intrusion.’” State v. Brodeur, 126 N.H. 411, 415, 493 A.2d 1134, 1137-38 (1985) (quoting Terry v. Ohio, 392 U.S. 1, 21 (1968)). At the heart of every analysis involving an investigative stop is a balancing of “the governmental interest that allegedly justified the stop against the extent of the intrusion on protected interests.” Pellicci supra. Where, as here, the decision to make an investigative stop is based on information received from an informant, we must examine the investigating officers’ reliance on and use of the informant’s tip. Thus, we examine the reliability and credibility of the informant, and his or her basis of knowledge, see State v. Hazen, 131 N.H. 196, 200, 552 A.2d 77, 80 (1988) (examining affidavit in support of search warrant), and then make a final judgment according to the “totality of the circumstances.” Id. The factors used to evaluate the informant’s reliability, credibility, and basis of knowledge are the same whether we are faced with a question of probable cause or, as here, reasonable suspicion. The quantity of information needed to support reasonable suspicion is of course less than that required for probable cause. See 1 W. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 9.3(e), at 474-86 (1987), § 9.3, at 73-78 (Supp. 1991). Using these factors to examine the informant’s tip at issue here, we fail to find the requisite level of facts and reasonable inferences that would justify the investigative stop. First, the informant lacked reliability. The officers testified that he was unknown to them, and thus there was no “track record” of accurate tips to bolster the informant’s allegations concerning Kennison. See 1 LaFave § 3.3(b), at 627-43. Second, the informant’s basis of knowledge was minimally shown. He merely asserted that he had seen four pounds of marijuana in the trunk of Kennison’s car, and failed to explain how he had been able to make such an observation, or otherwise support his assertion. See 1 LaFave § 3.3(d), at 659-69. Third, the information contained in the tip relative to the defendant’s car, license plate, place of employment, and the time that the defendant’s workday ceased is of a kind readily available to many people. Moreover, the informant’s predictions that Kennison would leave work and go home and then later go out were not of such character as to show that he was specially privy to her itinerary or familiar with her affairs. See Alabama v. White, 110 S. Ct. 2412 (1990). — 248 — Fourth, the police were unable to corroborate any of the incriminating allegations contained in the tip; the police merely corroborated mundane, innocent facts easily available to co-workers or friends, or to persons who might wish to harass or embarrass another. See 1 LaFave § 3.3(f), at 677-97. Fifth, the investigating officers observed no suspicious or incriminating activity during their surveillance of Kennison. See Pellicci, 133 N.H. at 531, 580 A.2d at 715. Finally, the informant’s tip did not contain the wealth of intimate detail necessary for a finding that the tip was “self-verifying.” See 1 LaFave § 3.3(e), at 670-76. The informant did not provide Kennison’s description, her home address, the route she would take during her drive home, the time she would leave her home in the evening, the names or addresses of the person(s) she would see in the evening, or her method of drug delivery. The State urges us to apply the holding of Alabama v. White, 110 S. Ct. 2412. White held that a certain informant’s anonymous tip was sufficiently reliable to justify an investigative stop of an automobile. Id. at 2417. The informant had stated that the defendant would be driving from 235-C Lynwood Terrace Apartments (the dissenting opinion indicates this was the defendant’s home) to a specific location, Dobey’s Motel, carrying an attaché case containing controlled drugs. Id. at 2414. The Court focused on the “caller’s ability to predict respondent’s future behavior,” and concluded that the informant had “a special familiarity with respondent’s affairs ....” Id. at 2417 (emphasis in original). The Court observed that “[b]ecause only a small number of people are generally privy to an individual’s itinerary, it is reasonable for police to believe that a person with access to such information is likely to also have access to reliable information about that individual’s illegal activities.” Id. at 2417. Such an observation does not apply to the facts of this case, because this informant’s two predictions, that Kennison would (1) go home after work and (2) go out somewhere sometime in the evening, are hardly remarkable predictions about future behavior. Viewing the officers’ reliance on the anonymous tip in the “totality of the circumstances,” we hold that the officers lacked reasonable suspicion and therefore unjustifiably intruded upon Kennison’s protected privacy interests. We note that the information Captain Brackett possessed concerning Kennison’s possible involvement with illegal drugs in 1981, 1982, and 1983 was stale, see People v. Siemieniec, 368 Mich. 405, 118 N.W.2d 430 (1962) (affidavit of police stating defendant was seen — 249 — making illegal sales of alcohol on September 13 insufficient to support search warrant issued on September 17), and conclusory in nature, see State v. Temple, 65 Haw. 261, 271, 650 P.2d 1358, 1364 (1982) (anonymous telephone call stating person had gun in defendant’s car not grounds for stop, as it “failed to rise above the level of unsubstantiated and conclusory hearsay”). As such, it could not be used to justify an investigative stop. Similarly, the tips Captain Brackett received during the summer of 1986, at least fourteen months before Kennison’s arrest, could not support the stop at issue here. There was no evidence presented during Kennison’s trial or suppression hearing that these tips led to an arrest or the discovery of useful information, or that the police had set up surveillance of Kennison in 1986 to determine whether the tips were based in fact. Moreover, the tips failed to disclose specific dates or instances of marijuana possession. Although the tips may have warranted further investigation, they were too stale, vague, and conclusory to amount to reasonable suspicion that Kennison would be transporting marijuana in the trunk of her car on October 13, 1987. Cf. State v. Jaroma, 128 N.H. 423, 430, 514 A.2d 1274, 1278 (1986) (probable cause context); State v. Cote, 126 N.H. 514, 527, 493 A.2d 1170, 1179 (1985) (same); see Siemieniec supra; Temple supra. In conclusion, we hold that the information supplied to the police in this case lacked the necessary reliability that would give rise to a reasonable suspicion justifying a stop of Kennison’s vehicle. See Terry v. Ohio, 392 U.S. 1. Accordingly, the defendant’s motion to suppress should have been granted, and we reverse her conviction. Reversed. Thayer, J., dissented; the others concurred.