Thе defendant, Dorian Hight, appeals his conviction for possession of a controlled drug in violation of RSA 318-B:2 (1995) after a bench trial before the Keene District Court (Tenney, J.). The defendant challenges the trial court’s denial of his motion to suppress evidence obtained during a consent search conducted following a motor vehicle traffic stop. We reverse and remand.
The following facts are undisputed. At 8:40 p.m. on the evеning of May 9, 1999, the defendant, an African-American male, was pulled over by an officer of the Chesterfield Police Department for going 47 MPH in a 35 MPH zone and for having a defective taillight. The defendant was accompanied in the vehicle by two Caucasian passengers.
Upon approaching the defendant’s vehicle, the officer asked the defendant to state his place of origin and destination. He responded that he had just left Boston and was en route to Landmark College in Vermont. The officer asked the defendant to produce his driver’s license and automobile registration, which he did. After determining that the defendant’s liсense and registration were valid, the officer returned to the defendant and asked him to step out of the vehicle to answer some questions. At this time, the officer still had possession of the defendant’s license аnd registration.
The officer again asked the defendant to state his place of origin and his destination. The defendant again responded that he had come from Boston, where he and his passengers had beеn “hanging out,” and that he was going to Vermont. The officer told the defendant that he thought it was a long way to drive just to “hang out.” The defendant responded that they had also gone to a “frat party” while in Boston.
The officer, indicating that he was concerned the defendant had picked up drugs in Boston, asked him for permission to search the vehicle for drugs. The defendant consented to the search, which yielded no contraband. The officer then asked and was given
On appeal, the defendant argues that the officer unlawfully detained him longer than necessary to write a traffic ticket, and, therefore, his subsequent consent to search was “tainted” by the unlawful detention. We address the defendant’s claims first under the State Constitution. See State v. Ball,
“In order for a police officer to undertake an investigatory stop, the officer must have a reasonable suspicion — based on 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.?’ Id. (quotation omitted); see also Terry v. Ohio,
There is no dispute that the officer’s stop of the defendant for speeding and a broken taillight was a lawful investigatory stop. We have previously held, however, that the scope of an investigative stop “must be carеfully 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,
The State concedes that the officer did not have a reasоnable and articulable suspicion of other criminal activity which would justify detaining the defendant beyond the time necessary to check the defendant’s license and registration. The question before us is what effeсt, if any, did the defendant’s continued and unlawful detention have on his subsequent consent to search his vehicle and his person.
We have not yet had occasion to consider this issue. The United States Supreme Court, howеver, has expressly held that when consent to search is the product of an unlawful detention, such consent is “tainted” by the illegality of the detention. See Florida v. Royer,
Rather than adopting a per se rule suppressing evidence obtained during a consent search that stems from an unlawful detention, however, we ask “whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.” State v. Cobb,
These factors should not be confused with the factors we consider to determine whether consent is voluntary. See, e.g., State v. Sawyer,
While there is a sufficient overlap of the voluntariness and [the tainted] fruits tests that often a proper result may be reached by using either one independently, it is extremely important to understand that (i) the two tests are not identical, and (ii) consequently the evidencе obtained by the purported consent should be held admissible only if it is determined that the consent was both voluntary and not an exploitation of the prior illegality.
Melendez-Garcia,
We now turn to the three factors as applied to this case. First, there is absolute temporal proximity between the unlawful detention and the defendant’s consent since the defendant gave consent while he was unlawfully detained.
Second, there were no intervening circumstances, such as the officer informing the defendant of his right to refuse consent, that would purge the taint of the unlawful detention and support a conclusion that the consent was an “act of free will.” State v. Pinder,
In fact, the circumstances in this case strongly suggest that the defendant’s consent was not an act of free will independent of the unlawful detention. Given the seamless transition from the valid traffic stop to the unlawful detention and subsequent consent, there is a serious risk that the defendant felt some compulsion to consent because he believed he was still under the lawful authority of the officer at the time the officer requested his consent. The officer’s
Regarding the third factor, we are troubled by the purpose and flagrancy of the official misconduct in this case. It is disconcerting that the officer sought consent to search not only the defendant’s car, but his person, based upon such innocuous facts as he had driven to Boston with a рurpose to “hang out,” he had attended a “frat party” there and he was returning to college in Vermont.
Although consent searches have long been an acceptable method of law enforcement, we have previously admonished that it is good policy for police officers to advise persons that they have a right to refuse to consent to a warrantless search. See State v. Osborne,
We conclude, therefore, that the State has failed to purge the taint of the defеndant’s unlawful detention and that the evidence procured through the defendant’s consent should have been suppressed. Accordingly, we conclude that the trial court’s denial of the defendant’s motion to suppress was erroneous. We need not address the voluntariness of the defendant’s consent.
Reversed and remanded.