THE STATE OF NEW HAMPSHIRESUPREME COURT’

No. 2016-0118

State of New Hampshire

V.

Felix Ruiz

Appeal Pursuant to Rule 7 from Judgmentof the Hilisborough County Superior Court - Northern District

BRIEF FOR THE DEFENDANT

Stephanie HausmanDeputy Chief Appellate DefenderAppellate Defender Program10 Ferry Street, Suite 202Concord, NH 03301NH Bar # 15337603-224-1236(15 Minutes Oral Argument)

TABLE OF CONTENTS

Page

Table of Authorities ii

Questions Presented 1

Statement of the Case 2

Statement of the Facts 3

Summary of the Argument 8

Argument

I. THE COURT ERRED IN DENYING RUIZ’S MOTION TOSUPPRESS HIS POST-MIRANDA STATEMENTS ANDOTHER EVIDENCE DERIVED FROM AN UNWARNEDAND SUPPRESSED STATEMENT 9

II. THE COURT ERRED BY FINDING SUFFICIENTEVIDENCE OF RECEIVING STOLEN PROPERTY 22

Conclusion 26

Appendix A1-A76

1

TABLE OF AUThORITIES

Page

Cases

Berghuis v. Thompson,560 U.S. 370 (2010) 10

Commonwealth v. Martin,827 N.E.2d 198 (Mass. 2005) 20

In re N.K.,— NH.

— (decided December 23, 2016) 22

Miranda v. Arizona,384 U.S. 436 (1966) passim

Missouri v. Seibert,542 U.S. 600 (2004) 15, 16

Moran v. Burbine,475 U.S. 412 (1986) 10

Oregon v. Elstad,470 U.S. 298 (1985) 11,14,15,17

State v. Aubuchont,141 N.H. 206 (1996) 14

State v. Badger,450A.2d336(Vt. 1982) 21

State v. Barkus,152 N.H. 701 (2005) 10, 19

State v. Blesdell-Moore,166N.H. 183 (2014) 21

State v. Casey,113 N.H. 19 (1973) 24

State v. Dellorfano,128 N.H. 628 (1986) 14,16

State v. Fleetwood,149 N.H. 396 (2003) 12,13,14,16

11

State v. Gravel,135N.H. 172 (1991) 18,19

State v. Gribble,165 N.H. 1(2013)... 10

State v. Hill,146 N.H. 568 (2001) 19

State v. Lantagne,165 N.H. 774 (2013) 10, 17

State v. McKenna,166 N.H. 671 (2014) 11, 12

State v. Miller,159 N.H. 125 (2009) 17

State v. Orde,161 N.H. 260 (2010) 17

State v. Peterson,923 A.2d 585 (Vt. 2007) 20

State v. Prevost,141 N.H. 647 (1997) 24

State v. Rand,2013-0169 (decided August 13, 2014) 24

State v. Roache,148 N.H. 45 (2002) 10, 20

State v. Sanbom,168 N.H. 400 (2015) 23

State v. Stauff,126 N.H. 186 (1985) 23, 24

State v. Won,138 N.H. 56 (1993) 24

State v. Zwicker,151 N.H. 179 (2004) 9

United States v. Jackson,608 F.3d 100 (1st Cir. 2010) 17

111

United States v. Patane,542 U.S. 630 (2004) 10, 20

Statutes

R5A637:7 22

Constitutional Provisions

Massachusetts Constitution Part I, Article 12 20

New Hampshire Constitution Part I, Article 15 9, 10, 13, 20

United States Constitution Fifth Amendment 9, 10

United States Constitution Fourteenth Amendment 9

iv

QUESTIONS PRESENTED

1. Whether the court erred by denying Ruiz’s motion to suppress his

post-Miranda statements and other evidence derived from an unwamed and

suppressed statement.

Issue preserved by Ruiz’s motion to suppress and arguments at the

suppression hearing, the court’s order, and Ruiz’s arguments and the court’s

rulings at and after trial. Al-A14, A19-A59; SH 99-105; Ti 6-il, 22, 45-48,

91, 107-08; T2 246; MH 3-5.

2. Whether the court erred by finding sufficient evidence of receiving

stolen properly.

Issue presen’ed by Ruiz’s argument and motion to reconsider and the

court’s rulings. A15-A18. A60-A72; T2 284-85, 290, 293.

Citations to the record are as follows:‘A” refers to the Appendix to this brief;“SH” refers to the transcript of the suppression hearing, held on December 2,2015“Ti and fl’ refers to the transcripts of the two-day trial held December 10 — 11, 2015;“Ml refers to the motion hearing and sentencing hearing held on January 12, 2016.

1

STATEMENT OF THE CASE

Felix Ruiz was charged with two counts of identity fraud and two

misdemeanor counts of receiving stolen property (RSP). Ti i2-i5; T2 32i. The

identity fraud charges alleged that he acted in concert with Juan Manuel Soto

Guzman in possessing personal identifying information of Angel Berrios Rivera.

Ti i2-14. The two RSP charges alleged that he retained documents, a

passport of Cecilia Frances Riley and a “Brookside Community Health Center”

card of Juan Pena, knowing or believing that they had probably been stolen

with a purpose to deprive the owners. Tl 14-i5.

Ruiz moved to suppress his statements to the police and all derivative

evidence. Ai9-A30. The court (Smukler. J.) denied the motion in part, but

suppressed the statements Ruiz made after he was fingerprinted but before he

was advised of the Miranda rights. Ai-Ai4. Ruiz renewed the motion to

suppress his post-Miranda statements and all derivative evidence, which the

court denied. Ti 6-il, 22, 91, 107-08; T2 246: MH 3-4; Ai2-i4, A43-A54.

At the conclusion of the State’s case, Ruiz moved to dismiss all four

charges. T2 279-86. The court dismissed the RSP charge relating to Pena’s

health center card but otherwise denied the motion. T2 290, 293. The juiy

convicted Ruiz of the remaining three charges. T2 333-36. After trial, Ruiz

moved to reconsider the court’s ruling on the motions to dismiss. A60-A72;

MH 3-5. The court granted the motion as to the identity fraud charges. Ai5-

A18. On the remaining RSP charge, Ruiz was sentenced to serve twelve

months in jail with 229 days of pretrial credit. MH 37-38.

2

STATEMENT OF ThE FACTS

A. Suppression Hearing

On May 28, 2015, Troopers Richard Dupont and James O’Leary went to

the Department of Motor Vehicles (DMV) station in Manchester to investigate a

report of two men trying to obtain a driver’s license with what appeared to be

fraudulent documents. Al; SH 4-5. The troopers learned that one man, who

identified himself as Angel Berrios Rivera, was hying to get a license while the

other man, Felix Ruiz, assisted. Al; SH 5-10, 40. The troopers obtained

documents submitted by the men: a social security card, a birth certificate, an

application, and a lease to establish residency. A3; SH 7. Dupont asked the

men if they would speak to him in the rear, non-public area of the DMV. A2;

SH 5-6. The men agreed and Dupont brought Ruiz to one office while O’Leary

spoke elsewhere with the other man. A2; SH 6.

Dupont began questioning Ruiz about why he was there and how he

knew the other man. A2; SH 9-11, 93-94. Ruiz explained that he was there to

act as a translator. A2; SH 40, 90-9 1. He initially said that he did not know

the other man, then said he knew the man’s father and finally that he had

known the man for two weeks. A2; SH 10-11.

Early in the questioning, O’Leary contacted Immigration and Customs

Enforcement (ICE). A2; SH 41. At some point, an ICE agent arrived and

fingerprinted both men. A2; SH 10, 14-16, 41. The other man was identified

as Juan Manuel Soto Guzman and was taken into ICE custody. A2; SH 10, 20,

41. Before he was taken away, Guzman showed the troopers his cell phone

3

which showed texts in Spanish that purported to be a conversation between

him and Ruiz about coming to the DMV in which they agreed that Ruiz would

be paid $350. A2; SH 14-15, 17, 35-36, 49-50. This conflicted with Ruiz’s

statement that he was only being paid $50 for assisting the other man at the

DMV. A2-A3; SH 17.

Ruiz’s identity was confirmed and he was brought back into the office by

both troopers. A2; SH 15, 41. He was confronted with the texts on Guzman’s

phone and admitted that he had falsely signed Guzman’s lease agreement as

the landlord. A3; SH 16-17.

Shortly thereafter, some two hours and fifty minutes after the interview

began, the troopers arrested Ruiz for conspiracy. A3, A13-A14, A40-A42; SH

17, 60; Ti 45-48. They advised Ruiz of his Miranda rights, which Ruiz waived.

AS, A73; SH 17-18. Dupont asked Ruiz to write what he had told the troopers

on the form. A3; SH 18-19, 57-59. Ruiz wrote that Guzman asked him to sign

as the landlord and Ruiz refused. A3, A73; SF1 19-20, 57-60. Dupont pointed

out that that was not what Ruiz had said earlier, so Ruiz wrote on the back of

the page that he had signed as the landlord. AS, A74; SH 19-20, 59-60. Ruiz

made additional statements about his involvement in identity fraud. SH 6 1-63.

As a consequence of the decision to arrest Ruiz, a discussion ensued

about bail. AS; SH 20-2 1. Ruiz asked his girlfriend to come to the DMV with

the bail money but, after waiting for some time, the troopers decided to take

Ruiz to jail. AS; SH 21-22.

4

Ruiz then expressed concern that his girlfriend’s purse would be stolen

from the car he had driven to the DMV. A4: SH 22. Dupont offered to hide the

purse, so Ruiz gave him consent to enter the car for that purpose. A4: SH 22,

69-70. While searching for the purse, Dupont found documents that suggested

Ruiz was involved in supplying Guzman with the fraudulent identity. A4; SH

22-24. Dupont seized the documents and returned 10 the DMV. A4; SN 25-26.

Without revealing what he had found, Dupont asked Ruiz for consent to search

the car, which Ruiz granted. A4, A75; SH 26-27. Dupont found a bag with

numerous documents related to various identities, about which he questioned

Ruiz. A4-A5; SH 27, 83-87.

B. Additional Facts From Trial

When called by the DMV, Trooper O’Leary received an email with two

scanned documents which purported to be a Puerto Rican birth certificate and

a Social Security card. T2 2 16-17. O’Leary noted several typographical errors

on the birth certificate and other indications that the documents were not

legitimate. T2 2 17-18, 220-21, 223-24. Once the troopers arrived at the DMV,

a DMV employee gave them the birth certificate and Social Security card, as

well as a lease agreement. Puerto Rican driver’s license, and a driver’s license

application. Ti 64-68. The troopers noted irregularities in the lease

agreement. Ti 75-76: T2 230.

When speaking with Dupont, Ruiz asked if there was a problem with the

documents that “Rivera” had presented. Ti 77. Ruiz insisted that he had not

provided “Rivera” with any documents but admitted that before they came into

5

the DMV, he saw “Rivera” sign the lease agreement in the spot for the

landlord’s signature. Ti 79.

After being advised of his Miranda rights. Ruiz said that he was aware

that Guzman was not “Rivera” and that he was from the Dominican Republic,

not Puerto Rico. Ti 100-Oi, 125-26. Ruiz said that he performed a

“background check” on the “Angel Berdos Rivera” identity for Guzman and that

he had provided Guzman with the information gleaned from that check. Ti

iOl, 125-26, i30. Ruiz admitted that “Angel Ben-ios Rivera” did not know that

Ruiz had his identity. Ti lOi, i25-26. Ruiz continued to maintain that he

had not provided the documents to Guzman but that he thought they had been

provided by others with whom Ruiz worked. Ti iOl-02, i22-24, i27.

When Dupont went to hide the purse, he could not see it from outside

the van. Ti i05-06. He climbed in and saw on the floor between the two front

seats three documents that he recognized as relevant to the investigation: an

envelope with an “Angel Berdos Rivera” signature, a lease agreement similar to

the one Guzman had presented to the DMV, and a printout of an online search

of a social security number. Ti i06-07. As Dupont got out, he saw the purse

in between the driver’s seat and the outer frame of the vehicle, so he put it

under the driver’s seat. Ti i09-i i.

Pursuant to the consent search, Dupont found a black bag on a back

seat, in which he found a passport of an African-American woman named

Cecilia Riley. Ti i i4, i i7; A76. Dupont returned to Ruiz and asked him

about the passport. Ti i i9, i25; T2 243. Ruiz said that he had been hired to

6

clean Riley’s house after she died and the landlord had told Ruiz that he could

keep anything he found because Riley had no surviving family, so Ruiz kept the

passport he discovered. TI 119, 125; T2 244-45. Ruiz also admitted that he

had provided the lease agreerneni to Guzman, with the version found in the

van serving as his template, but he denied providing any of the other

documents. Ti 120, 125-26; T2 203.

Dupont brought Ruiz to jail. Ti 130-31; T2 207, 247. In a search of his

wallet incident to the arrest, Dupont found a Brookstone Medical” card in the

name of John Pena. Tl 131. Ruiz could not explain why that card was in his

possession. N

7

SUMMARY OF THE ARGUMENT

1. The court erred in admitting Ruiz’s post-Miranda incriminating

statement, which was elicited by reference to, and thus a product of, his

unwarned and inadmissible statement. Physical evidence, discovered as a

result of the Miranda violation, should also have been suppressed.

2. The court erred in denying Ruiz’s motion to dismiss the RSP

charge. The State presented insufficient evidence that Ruiz knew or believed

the passport was probably stolen and that he had a purpose to deprive the

owner thereof. The evidence showed only that Ruiz possessed a passport

issued to someone else. He explained that he was permitted to take the

passport by the landlord after the subject’s death. This evidence failed to

exclude the rational conclusion that Ruiz believed he was permitted to keep the

passport.

8

I. THE COURT ERRED IN DENYING RUIZ’S MOTION TO SUPPRESS HISPOST-MIRANDA STATEMENTS AND OTHER EVIDENCE DERIVEDFROM AN UNWARNED AND SUPPRESSED STATEMENT.

Ruiz moved to suppress his statements to the police, and evidence

derived from his statements, as a violation of Miranda v. Arizona, 384 U.S. 436

(1966). A5, A19-A30; SH 99-105. The court found that Ruiz was not initially

in custody but, after ICE had come to fingerprint both men and had taken

Guzman away, no reasonable person would have felt free to leave. A7.

Consequently, the court suppressed Ruiz’s initial admission to signing the

lease agreement. Id. The court found, however, that Ruiz’s waiver of his

Miranda rights was valid and that his subsequent statements were admissible.

AS.

Ruiz moved to reconsider the suppression order, arguing that Ruiz’s

post-Miranda admission of signing the lease agreement and the discovery of the

documents in the car were products of the Miranda violation. Ti 6-12, 9i,

107-08; T2 246; A43-A54. The court denied the motion to reconsider. Ai2-

A14: Ti 22; MH 3-4. In so ruling, the court erred.

The Fifth and Fourteenth Amendments to the United States Constitution

and Part I, Article 15 of the New Hampshire Constitution protect a defendant

from compelled self-incrimination. Because of the pressures inherent in

custodial interrogation, the Supreme Court promulgated rules in Miranda

regarding a suspect’s right to silence and his choice to invoke that right. The

Miranda warnings are mandated by Article 15. See, g, State v. Zwicker, 151

N.H. 179, 187 (2004).

9

This Court has found the State Constitution more protective than the

Federal Constitution in this area. For example, under the State Constitution,

“Lb]efore the defendant’s responses made dunng custodial interrogation may be

used against him, the State must prove, beyond a reasonable doubt, that it did

not violate his constitutional rights under Miranda.” State v. Gdbble, 165 N.H.

1. 10 (2013). Compare Berhuis v. Thompson, 560 U.S. 370, 384 (2010)

(standard of proof under the Federal Constitution is preponderance of the

evidence). Moreover, under the State Constitution, “certain physical ‘fruits’

derived from a Miranda violation are inadmissible at trial.” State v. Barkus,

152 N.H. 701, 706 (2005). Compare United States v. Patane, 542 U.S. 630,

633-34 (2004) (under Federal Constitution, the physical fruits of a suspect’s

unwarned but voluntary statements are admissible). See also State v. Roache,

148 N.H. 45, 47-53 (2002) (rejecting holding of Moran v. Burbine, 475 U.S. 412

(1986). based on a finding that Part I, Article 15 provides greater protection

against self-incrimination than the Fifth Amendment and the United States

Supreme Court’s application of the Miranda rule).

“In reviewing a trial court decision on a motion to suppress, [the Court]

acceptis] the trial court’s findings unless they lack support in the record or are

clearly erroneous, but review[s] its legal conclusions de novo.” State v.

Lantane, 165 N.H. 774, 776 (2013). “On a motion to suppress, the State

bears the burden of establishing the legality” of police actions. Id.

Here, the court found that Ruiz was in custody and was interrogated

without benefit of Miranda warnings after ICE agents arrived at the DNW. A7.

10

Although the troopers had not yet decided to arrest Ruiz, “[clustody entitling a

defendant to Miranda protection” is required when police place on a suspect a

“restraint on freedom of movement of the degree associated with formal arrest.”

State v. McKenna. 166 N.H. 671, 676 (2014) (quotation omitted); see also

Oregon v. Elstad, 470 U.S. 298, 309 (1985) (Miranda warnings required when

freedom has been “significantly restrained.”). Thus, when the defendant has

not fon-nally been arrested, courts consider “whether a reasonable person in

the defendant’s position would believe himself in custody.” McKenna, 166 N.H.

at 677. The determination is an objective one. Id. at 676-77. The trial court

properly determined that a reasonable person would have felt their “freedom of

movement was sufficiently curtailed,” id. at 676, once ICE agents became

involved in the investigation. The troopers should have advised Ruiz of his

Miranda rights at that point.

This Court has held that “[c]ustody should not be a mystical concept to

any law enforcement agency.” Id. at 686. The Court prefers that “doubts as to

the presence or absence of custody . . be resolved in favor of providing

criminal suspects with the simple expedient of Miranda warnings.” Id.

(quotation omitted). “Such practices protect the integrity of the criminal

justice system by assuring that convictions obtained by means of confessions

do not violate fundamental constitutional principles.” Id. (quotation omitted).

As a result of Ruiz’s unwamed custodial statement, the troopers decided

to arrest him for conspiracy. A3. They immediately reviewed Miranda rights

with Ruiz who indicated his understanding of the rights and willingness to

11

speak. A3, A73. However, after being advised of his rights, Ruiz again

maintained that he had not signed the lease as the landlord. ffl Dupont then

confronted Ruiz with his pre-Miranda and inadmissible inculpatory admission

to having signed the lease. A3. Only then did Ruiz reiterate his incriminating

account and make additional statements. A3, A74; SH 6 1-63. The court erred

in finding that Ruiz’s Miranda waiver was voluntary and his subsequent

statements were untainted by the Miranda violation. A12-A14.

In State v. Fleetwood, 149 N.H. 396 (2003), the Court considered whether

a post-Miranda statement, made after an unwamed statement, should be

suppressed. Fleetwood was suspected of causing her infant son’s death. Id. at

397-98. She voluntarily came to the police station when she heard that the

police wanted to talk to her. Id. at 398. The first interview lasted two and a

half hours and began with neutral questioning related to the possibility of

Sudden Infant Death Syndrome and her activities for the prior twenty-four

hours. Id. at 399. She initially gave an exculpatory account. jj The

detectives then confronted her with incriminating evidence and conflicts

between her statement and other evidence. Id. The defendant then made

incriminating statements. Id. at 400. The trial court found that the defendant

was in custody at this point and suppressed her initial statements. Id. at 401-

02.

The detectives took a break, offered the defendant a chance to use the

bathroom or to eat or drink something, and then advised the defendant of her

Miranda rights. Id. at 400. After waiving her rights, the defendant was left

12

alone to write a statement. Id. at 401. The detectives again offered her a

break, use of a bathroom, and something to eat or drink and gave her water

and cigarettes. fl Before interrogating her about her statement, the

detectives again reviewed her Miranda rights and the defendant signed another

waiver. Id. Interrogation continued in segments, between which the defendant

was offered breaks and readdsed of her Miranda rights. Id.

The Fleetwood Court applied the traditional part I, article 15 due process

voluntariness inquiry and considered, under the totality of the circumstances,

whether the second confession was the product of “an essentially free and

unconstrained choice.” Id. at 403, 405.

This inquiry into the facts and circumstancessurrounding the second confession necessarilyencompasses an evaluation of several factors: the timelapse between the initial confession and thesubsequent statements: the defendant’s contacts, ifany, with friends or family members during that periodof time: the degree of police influence exerted over thedefendant: whether the defendant was advised thather prior admission could not be used against her; orwhether the defendant was told that her previousstatement could be used against her. No one factor inisolation will be determinative.

Id. at 406 (brackets and ellipsis omitted). In adopting this analysis, the Court

relied on a deterrence rationale. Id. at 404.

In analyzing the factors, the Court held that the absence of a lapse of

time between the unwamed and warned statements was “important and

sometimes critical evidence.” Id. at 407.

Without a significant break between the unwarnedstatement and the Miranda warnings, an accused maynot have the opportunity to be free from the pressure

13

of continuous interrogation and to reflect on theseriousness of her situation. In addition, the absenceof a time lapse, coupled with other factors, may createa reasonable doubt as to the voluntariness of theconfession.

Id. In its final analysis, the Court relied heavily on the facts that the police

offered the defendant a break after her unwarned statement, that there was no

evidence that the police denied the defendant contact with family or friends,

and that the defendant’s custody status during the pre-Miranda statement was

unclear because she had not been arrested and she testified at the suppression

hearing that she felt free to leave until she was advised of her Miranda rights.

Id.; see also State v. Aubuchont, 141 N.H. 206 (1996) (post-Miranda statement

admissible where seventeen hours elapsed between urnvarned and warned

statements and defendant not in custody during that time).

Federal junsprudence has evolved on the question of whether Miranda

warnings can always dissipate the taint of an unwarned statement. In Oregon

v. Elstad, 470 U.S. 298 (1985), the Supreme Court found that the defendant’s

initial, unwarned statement made at his home and in response to an officer

indicating that he was suspected of a crime did not prohibit admission of a

warned and detailed confession made at the police station. In reliance on

Elstad, and solely under the Federal Constitution, this Court held that a

warned and detailed confession, following an unwarned statement, was

admissible. State v. Dellorfano, 128 N.H. 628 (1986). However, the Court was

troubled by the possible coercion resulting from the police confronting the

defendant with his unwarned statement. Id. at 636.

14

Later, in Missouri v. Seibert, 542 U.S. 600 (2004), a plurality of the Court

held that the practice of first obtaining an unwarned confession, followed

immediately with Miranda warnings and a reiteration of the incriminating

statement, required suppression of the second statement. The plurality held

that the “threshold issue” under these circumstances is:

whether it would be reasonable to find that in thesecircumstances the warnings could function ‘effectively’as Miranda requires. Could the warnings effectivelyadvise the suspect that he had a real choice aboutgiving an admissible statement at that juncture?Could they reasonably convey that he could choose tostop talking even if he had talked earlier? For unlessthe warnings could place a suspect who has just beeninterrogated in a position to make such an informedchoice, there is no practical justification for acceptingthe formal warnings as compliance with Miranda, orfor treating the second stage of interrogation asdistinct from the first, unwarned and inadmissiblesegment.

Id. at 611-12. The Court was concerned that “telling a suspect that ‘anything

you say can and will be used against you,’ without expressly excepting the

statement just given, could lead to an entirely reasonable inference that what

he has just said will be used, with subsequent silence being of no avail.” at

613.

The plurality found, from comparison of the Seibert facts to those in

Elstad, “a series of relevant facts that bear on whether Miranda warnings

delivered midstream could be effective enough to accomplish their object:”

the completeness and detail of the questions andanswers in the first round of interrogation, theoverlapping content of the two statements, the timingand setting of the first and the second, the continuityof police personnel, and the degree to which the

15

interrogator’s questions treated the second round ascontinuous with the first.

Id. at 615. The officers’ treatment of the post-Miranda questioning as a

continuation of the unwarned questioning was significant to the four Justice

plurality, id. at 616-17, in Justice Kennedy’s concurrence, id. at 621, and to

the four Justice dissent, id. at 628.

The voluntariness factors considered by this Court and the factors

enunciated by the Seibert plurality support suppressing Ruiz’s post-Miranda

statements. A factor “[ciritical” to the Fleetwood Court, here there was no

break in time between the unwamed and the warned statements. Fleetwood,

149 N.H. at 407. Nor was there a change in personnel, location, or subject

matter between the two statements. Ruiz had no contact with anyone but law

enforcement during this time and his experience of confinement only

intensified when the troopers formally announced that he was being arrested.

Moreover, the tone of both interrogations was the same. Trooper Dupont had

thoroughly canvassed the topic of Ruiz’s involvement with Guzman’s fraud

during the unwarned portion of the interrogation. Once advised of his Miranda

rights, Ruiz was asked to write a statement recounting what he had said

during the unwarned portion of the discussion, All of these factors support

suppressing Ruiz’s post-Miranda statements.

In addition, when Ruiz reiterated his exculpatory account, Dupont

rejected it and explicitly invoked Ruiz’s urnvarned statement to produce the

warned inculpatory account. Such reliance on the unwarned statement that

troubled this and other courts. See. çg1, Dellorfano, 128 N.H. at 636; Seibert,

16

542 U.S. at 616-17, 621, 628; Elstad, 470 U.S. at 316 (stressing that police did

not “exploit the urnvarned admission to pressure respondent into waiving his

right to remain silent.”); United States v. Jackson, 608 F.3d 100, 104 (1st Cir.

2010) (considering whether police used unwamed statement as a “deliberate

lever to extract further information”). This concern is akin to that in the search

and seizure context, when the Court considers whether “the evidence in

question has been obtained only through exploitation of an antecedent

illegality.” Lantagne, 165 N.H. at 778 (quotation omitted); see g State v.

Orde, 161 N.H. 260, 268 (2010) (considering whether evidence is “induced” by

illegally seized evidence). Even without police reference to the initial, unwamed

statement, the “fact that the defendant had made one statement, believed by

him to be admissible, bolstered the pressures for him to give the second, or at

least vitiated any incentive on his part to avoid self-incrimination.” State v.

Miller, 159 N.H. 125, 136 (2009) (quotation, brackets, and ellipsis omitted).

Here, the police used Ruiz’s first, inadmissible statement as a lever to

overcome Ruiz’s decision, after Miranda warnings, to provide only an

exculpatory statement. By exploiting the prior statement, the police induced

Ruiz to repeat his incriminating account. The Miranda warnings, which told

Ruiz his statements would be used against him, and Duponfs urging to repeat

the incriminating statement, vitiated any incentive” for Ruiz to maintain his

exculpatory account. The court erred in failing to suppress Ruiz’s post

Miranda statements.

17

The State also used evidence obtained as a result of Ruiz’s unwarned,

and then warned, statements. This Court has held that the evidentiaty fruits of

a Miranda violation will be suppressed under the State Constitution. State v.

Gravel, 135 N.H. 172, 175-80 (1991). In that case, the defendant’s statements,

obtained in violation of Miranda, caused the police to seek a search warrant,

based on probable cause established through the defendant’s unwarned

statements. Id. at 174-75.

In applying the “fruit of the poisonous tree” doctrine to Miranda

violations, the Court considered “the objective of deterring future unlawful

police conduct, by denying the police the benefit of all of the products of that

conduct.” Id. at 181 (citation omitted). “The deterrent effect on police

misconduct of excluding admissions obtained in violation of Miranda would be

substantially reduced if real evidence delivered to the police as part of the

suspect’s direct response to the unwarned custodial interrogation were

permitted in evidence.” Id. at 183 (quotation and brackets omitted).

Prosecutors and police officers understand that theconsequence of failing to abide by Miranda is thesuppression of the defendant’s statements. To allowthe police the freedom to disregard the requirements ofMiranda and thereby risk losing only the directproduct of such action, but not the evidence derivedfrom it, would not only not deter future Mirandaviolations but might well tend to encourage them. Anofficer more concerned with the physical fruits of anunlawfully obtained confession than with theconfession itself might reasonably decide that thebenefits of securing admissible derivative evidenceoutweighed the loss of the statements. Miranda wouldthus have lost a substantial amount of its value inprotecting against compelled self-incrimination. Wecannot permit a result that would provide an incentive

18

for law enforcement officers to disobey the law, for, aswe have observed, we must he ever mindful that theprime obligation of government is to obsenre thoserights embodied in our Bill of Rights which is a mostimportant part of our State Constitution. Whensociety crafts a nile for the conduct of its owm affairs,such as Miranda. and seeks to gain an advantage fromthe violation of its own rule, the rule becomes murkyand diluted and society itself is diminished in somemanner. The precedential effect of the exception to therule is the first step to the nile’s being swallowed by itsexceptions.

ich (citations, quotations and brackets omitted). The Court considers whether

the derivative evidence was the result of the defendant’s “own free will” and

whether it was “arrived at by exploitation of the primary illegality instead of by

means sufficiently distinguishable to be purged of the primary taint.” Id. at

181-82 (quotation, brackets, and ellipsis omitted).

The Court has since considered cases in which the defendant argued

that evidence should be suppressed as the physical fruit of a Miranda violation.

In Barkus, the Court held that the defendant’s breath test results were not the

product of her prior statements because she explicitly consented to the testing

after being advised of her right to refuse and also implicitly consented under

the implied consent law. Barkus, 152 N.H. at 707-09. In State v. Hill, 146

N.H. 568, 571 (2001), the defendant argued that his identity had been elicited

through a violation of Miranda and thus his identity information should be

suppressed as the “fruit” of that violation. The Court rejected that argument,

finding that Hill’s identity would inevitably have been discovered. Id. at 574.

Other courts have confirmed that their state constitutions also require

suppression of the fruits of a Miranda violation since the United States

19

Supreme Court decision in Patane. The Massachusetts Supreme Judicial

Court employed the deterrence rationale in importing the “fruit of the

poisonous tree” doctrine to the Miranda context. Commonwealth v. Martin,

827 N.E.2d 198, 199-200 (Mass. 2005). “To apply the Patane analysis to the

broader rights embodied in art. 12 would have a corrosive effect on them,

undermine the respect we have accorded them, and demean their importance

to a system of justice chosen by the citizens of Massachusetts in 1780.” Id. at

203. This Court has looked to Massachusetts cases interpreting Part 1, Article

12 of its constitution, which is identical to Part I, Article 15. Roache, 148 N.H.

at 49.

Vermont has similarly adopted a fruits analysis for Miranda violations

under its constitution. State v. Peterson, 923 A.2d 585, 586-93 (Vt. 2007).

The Peterson court focused on vindicating the defendant’s rights. Id. at 592.

“Introduction of such evidence at trial eviscerates our most sacred rights,

impinges on individual privacy, perverts our judicial process, distorts any

notion of fairness, and encourages official misconduct.” 14L at 591.

Here, all of the State’s evidence flowed from Ruiz’s unwarned statements.

It was because of the inadmissible statements that the troopers arrested Ruiz.

Absent his arrest, Ruiz would not have been concerned about valuables left in

his van. It was in response to this concern thai Dupont offered to enter the

van to hide the purse. This action resulted in his viewing incriminating

documents, which led him to request consent to search the entire van.

20

Here, the State did not argue that the physical evidence obtained from

Ruiz’s van was “sufficiently distinguishable” from the Miranda violation or that

intervening events purged the taint of that violation. A31-A39, A55-A59. And

for good reason; the subsequent events were not “sufficiently distinguishable”

from the unwamed statement so as to purge the taint of the Miranda violation.

Rather, the discovery of the physical evidence Ilowed from the initial illegality.

Courts have considered the chain of events to determine whether derivative

evidence was the product of an antecedent illegality. For example, in State v.

Blesdell-Moore, 166 N.H. 183, 191-92 (2014), an officer’s improper request and

examination “sparked the officer’s suspicion that the defendant consumed

marijuana and resulted in an interrogation about the defendant’s marijuana

use,” which lead to further decisions to search and to additional statements, all

of which the Court suppressed. State v. Bader, 450 A.2d 336 (Vt.

1982) (defendant’s father’s consent to seize the defendant’s clothing a product

of the defendant’s urnvamed statement, made in the father’s presence).

Because the derivative evidence was a product of the Miranda violation,

the court erred in admitting it. This Court must reverse.

21

II. THE COURT ERRED BY FINDING SUFFICIENT EVIDENCE OFRECEIVING STOLEN PROPERTY.

At the close of the State’s case, Ruiz moved to dismiss the RSP charge

related to the passport, arguing that there was insufficient evidence that Ruiz

knew or believed the passport was probably stolen or that he had the intent to

deprive the owner of it. T2 284-85. The court questioned whether Ruiz

“shouldfl” have known that the passport of a deceased person belonged to her

estate, even if he “thought he was authorized” to take it. T2 285. The State

argued that evidence that Ruiz possessed someone else’s passport sufficiently

proved his guilt. T2 290. The court denied Ruiz’s motion. T2 290, 293; A15.

After trial, Ruiz filed a motion to reconsider the court’s rulings on We

motion to dismiss the three remaining charges. A60-A72. The court granted

the motion as to the two identity fraud charges but denied it as to the RSP

charge. A15-A18. In so ruling, the court erred.

“A challenge to the sufficiency of the evidence raises a claim of legal

error,” which this Court reviews de novo. In re N.K., — NH. — (slip op. at 4)

(decided December 23, 2016) (quotation omitted). The defendant “must prove

that no rational trier of fact, viewing all of the evidence and all reasonable

inferences from it in the light most favorable to the State, could have found

guilt beyond a reasonable doubt.” Id. (quotation omitted),

In order to secure a conviction for RSP, the State must prove beyond a

reasonable doubt that the defendant received, retained, or disposed of “the

property of another knowing that it has been stolen, or believing that it has

probably been stolen, with a purpose to deprive the owner thereof,” RSA 637:7.

22

These elements require the State to prove that the property was stolen. State

v. Stauff, 126 N.H. 186, 189 (1985).

‘The essential element of guilty knowledge on the part of a receiver of

stolen property can rarely be proven by direct evidence but it may be

demonstrated by any surrounding facts or circumstances from which such

knowledge maybe inferred.” Id. at 190 (quotations and brackets omitted).

“Circumstantial evidence can be sufficient to establish guilt beyond a

reasonable doubt.” State v. Sanborn, 168 N.H. 400, 413 (2015). However, to

be sufficient, circumstantial evidence must “exclude all reasonable conclusions

except guilt.” Id. (quotation omitted).

The proper analysis is not whether every possibleconclusion consistent with innocence has beenexcluded, but, rather, whether all reasonableconclusions based upon the evidence have beenexcluded. The court does not determine whetheranother possible hypothesis has been suggested by thedefendant which could explain the events in anexculpatory fashion. Rather, the reviewing courtevaluates the evidence in the light most favorable tothe prosecution and determines whether thealternative hypothesis is sufficiently reasonable that arational juror could not have found proof of guiltbeyond a reasonable doubt.

Id. (quotations, citations, and brackets omitted, emphasis in Sanborn).

Here, the State relied primarily on Ruiz’s possession of someone else’s

passport to prove that he knew or believed the passport was probably stolen

and that he had a purpose to deprive the owner. However, the State presented

no evidence that it is illegal to possess someone else’s passport. On the

contrary, the only evidence on that point consisted of Ruiz’s statement that he

23

believed he was authorized to possess the passport. The State similarly

presented no evidence that possession of a deceased person’s passport, as

recounted by Ruiz, was illegal or testimony from Riley’s family that her

passport had been stolen.

A rational conclusion from the evidence is that Ruiz’s possession of the

passport was not illegal and, thus, that he did not know or believe the passport

was probably stolen. In prior RSP cases considered by the Court, the property

was undeniably stolen and the defendant’s relationship to it provided sufficient

evidence of a culpable mental state. See, çg, State v. Rand, 2013-0169 (non

precedenUal, unpublished 3JX decision) (slip op. at 2) (decided August 13.

2014) (violin reported stolen, passport of theft victim found in car used by

defendant): State v. Prevost, 141 N.H. 647, 653 (1997) (gun stolen by

defendant’s friend at time when defendant was spending time with friend);

Stauff, 126 N.H. at 188-90 (guns reported stolen, thrown from car by defendant

during police chase).

Where the State relied on the defendant’s account of how he obtained the

property to sustain its burden of proof on the culpable mental state, that

account usually included a significant detail: “inadequacy of the price paid for

them.” State v. Casey, 113 N.H. 19, 20 (1973), In that case, the defendant was

found guilty of RSP for possessing three pieces of dimension lumber. Id. He

explained that he bought the pieces for one dollar a piece “from a ‘hippy’ who

had approached him at a barn in Deering on which the defendant was

working.” Id. See also State v. Won, 138 N.H. 56, 64 (1993) (defendant said

24

he paid S 1200 for a boat motor worth $6500). Here, unlike cases involving

inadequate purchase prices, there was no evidence that Rufz’s account of how

he came to possess the passport was so unlikely as to be incredible.

The court opined that, if Ruiz’s account was true, the passport belonged

to Riley’s estate. T2 285. However, the State admitted no evidence whether

Riley’s possessions had passed to an estate upon her death. The State’s

evidence did not foreclose other rational conclusions, such as that the

passport, with no identifiable monetary value, was abandoned upon her death

and the landlord was legally permitted to dispose of it.

Finally, the trial court erred when it applied the wrong mental state to

the evidence. The court asked: “shouldn’t your client have known that a

landlord doesn’t have permission to give something that belongs to an estate?”

while acknowledging that Ruiz “thought he was authorized ... by the landlord”

to take the passport. Id. The State cannot sustain its burden by proving Ruiz

should have known his possession was illegal. Rather, it must prove that he

knew the passport was stolen or believed that it probably had been stolen. The

State admitted insufficient evidence of these mental states. The court erred in

denying Ruiz’s motion to dismiss the RSP charge involving the passport. This

Court must reverse.

25

CONCLUSION

WHEREFORE, Felix Ruiz respectfully request that this Court vacate his

conviction or, in the alternative, remand for a new trial.

Undersigned counsel requests fifteen minutes of oral argument.

The appealed decisions are in writing and are appended to the brief.

Respectfully submitted,

By4Stephanie Hausman, 15337Deputy Chief Appellate DefenderAppellate Defender Program10 Ferry Street, Suite 202Concord, NH 03301

CERTIFICATE OF SERVICE

I hereby certify that two copies of the foregoing Brief have been mailed,postage prepaid, to:

Criminal BureauNew Hampshire Attorney General’s Office33 Capitol StreetConcord, NH 03301

Stephanie Hausman

DATED: January 27, 2017

26

APPENDIX

APPENDIX - TABLE OF CONTENTS

Page

Order — Motion to Suppress Al-All

Order — Motion to Reconsider Al2-A14

Order — Motion to Reconsider Denial of Motion to Dismiss AlS-Al8

Motion to Suppress Statements A19-A30

Objection to Defendant’s Motion to Suppress Statements A31-A39

Motion to Submit Additional Facts A40-A42

Motion to Reconsider Court Order Re: Motion to Suppress A43-A54

State’s Objection to Defendant’s Motion to Reconsider CourtOrder Re: Motion to Dismiss A55-A59

Motion to Reconsider Court Order Re: Motion to Dismiss A60-A72

State’s Exhibit 1 A73-A74

State’s Exhibit 2 A75

State’s Exhibit 13 A76

A

THE STATE OF NEW HAMPSHJEE

HILLSBOROUGH, SS. SUPERIOR COURT

NORTHERN DISTRICT

The State of New Hampshire

V.

Felix Ruiz

No. 15-CR-699

ORDER

The defendant, Felix Ruiz, stands indicted of two counts of identity fraud, contrary to

RSA 626:8. The state has also charged the defendant with two misdemeanor counts of receiving

stolen property contrary to RSA 637:7. Before the court are the defendant’s motion to suppress

the discovery of documents and motion to suppress statements. The state objects. The court

heard evidencc on December 2,2015. Because the state has not sustained its burden of showing

that a portion of police interrogation of the defendant was not custodial, the motion to suppress

statements is GRANTED to that extent as set forth below. Because the state has sustained its

burden with respect to all other portions of the interrogation and on the discovery of documents,

the defendant’s motions to suppress are DENIED in all remaining respects.

On May 28, 2015, State Police Troopers Richard Dupont and James O’Leary received

information from the New Hampshire division of motor vehicles (“DMV”) Manchester substa

tion that two individuals were attempting to obtain a New Hampshire driver’s license using what

appeared to be fraudulent documents. The troopers responded to the substation and spoke with a

DMV employee, who identified two men sitting in the lobby as the suspects. The troopers

learned that one of the men, who identified himself as Angel Barrios Rivera, was the suspect at

tempting to obtain the license, while the other—the defendant—was assisting him.

Al

-2-

The troopers asked the two men if they would be willing to speak with them in the back

of the DMV. Both men agreed. The troopers separated the men, with Trooper O’Leary speaking

with the man identiing himself as Angel Banjos Rivera, and Trooper Duponi speaking with the

defendant, who produced a Massachusetts non-driver identification identifying him as Felix

Ruiz.

Trooper Dupont took defendant into a lOxlO’ room containing a desk and a chair. The

trooper sat behind the desk and left the door open. He began by making general inquiries into

who the defendant was, why he was there, and how he knew the other man. At first, the defend

ant claimed that he did not know the other man and was only there to act as a translator. He later

admitted that he knows the man’s father and, finally, admitted to having known the ather man for

two weeks. Trooper Dupont left the room from time to time to consult with Trooper O’Leaiy.

Early in the interview process, the troopers contacted Immigration and Customs En

forcement (“ICE”), After some time, an ICE agent arrived to fingerprint the man identiing

himself as Angel Barrios Rivera. Trooper Dupont asked the defendant if he would be willing to

be fingerprinted as well. The defendant agreed. The defendant’s identity as Felix Ruiz was con

firmed, but the other man’s identity as Angel Barrios Rivera was not confirmed; rather, the man

was identified as Juan Manuel Soto Guaman. Mr. Guzman was present in the United States on an

expired Visa from the Dominican Republic. Consequently, the ICE agent took Mr. Guzman into

custody.

Before Mr. Guzman left, he voluntarily showed his cell phone to Trooper O’Leary. The

phone contained text messages between himself and a number he claimed belonged to the de

fendant. The messages arranged their meeting and showed that the defendant agreed to a $350

fee for his services. This conflicted with what defendant had earlier claimed, which was that Mr.

A2

-3-

Guzman only paid him $25 for gas and $25 for his assistance. After the police reviewed the text

messages with the defendant, he admitted to falsifying a residency lease agreement for Mr.

Guzman.

At that time, which was approximately two and a half hours after the interview began, the

troopers decided to arrest the defendant for conspiracy. Because the defendant was then under

arrest, the troopers advised the defendant of his rights under Mfranda v. Arizona, 384 U.S 436

(1966). Trooper Dupont read each right to the defendant, after which he asked the defendant if he

understood the rights and whether lie agreed to waive them. The defendant agreed to waive his

rights and initialed and signed a waiver form. The defendant then wrote a statement on the Mi

randa form in which he claimed Mr. Guzman (whom he still referred to as Angel) had paid him

$25 for translation services and $25 for gas in exchange for assisting him with the application.

He wrote that Mr. Guzman had asked the defendant to sign the required residency lease agree

ment and list his phone number as a reference. While he admitted to providing his number as a

reference, he denied signing the lease. When Trooper Dupont pointed out that the defendant had

just confessed to signing the lease agreement, the defendant wrote on the back of the form that he

had indeed signed the lease. The defendant signed both written statements.

The defendant was extremely cooperative and polite with the troopers during the entire

interview. As a result, Trooper Dupont offered to release the defendant instead of taking him to

jail as long as defendant could produce cash bail in the amount of $3 10—the minimum amount

for a misdemeanor charge. The defendant did not have the cash available, but claimed his girl

friend could bring it. The troopers allowed the defendant to text his girlfriend, who agreed to

come with the money. The girlfriend never arrived, however, and after a few hours of waiting,

the police decided to transport defendant to jail and allow the girlfriend to meet them there.

A3

-4-

The defendant expressed concern that his girlfriend’s purse was in his car and might be

visible to passersby. Trooper Dupont offered to go to the defendant’s car and hide the purse. The

defendant agreed and provided Ins keys to Trooper Dupont. Trooper Dupont first opened the

driver’s door to look for the purse. When he did not immediately see it on the driver’s side of the

passenger compartment, he entered the vehicle to see if it was located elsewhere. While doing so,

he observed several documents laid out on the floor between the driver arid passenger seats.

Specifically, Trooper Dupont observed three items: (2) an envelope with the word “Jun

ior,” the number “25,” and the signature of “Angel Barrios Rivera;” (2) a residency lease appli

cation similar to the one that Mr. Guzman had attempted to provide to the DMV; and (3) a doc

ument displaying social security number search results for “Angel Barrios Rivera.” Trooper

Dupont believed these documents to be contraband related to Mr. Guzman’s attempt to obtain a

license. Fearing defendant’s girlfriend might arrive and destroy or remove the documents, the

trooper seized them. He also decided to obtain a warrant to search the rest of the vehicle. As he

was leaving the vehicle, he saw a small purse between the driver’s seat and the vehicle’s B pillar,

which he hid as defendant had requested.

Trooper Dupont returned to the defendant and Trooper O’Leary’. Without showing the

defendant the documents he had removed from the car or informing him of what he had seen, the

trooper asked the defendant if he would consent to a search of his vehicle. The defendant readily

agreed and signed a handwritten consent form drafted by Trooper Dupont. Trooper Dupont then

conducted a 11111 search of the vehicle, during which he discovered a black canvas bag containing

many documents bearing the names, dates of birth, and social security numbers of numerous in

dividuals.

A4

-5-

Trooper Dupont returned to the defendant once more. He showed the defendant the A’Ii

randa form and asked him if he recalled his rights and that lie had waived them. The defendant

said that he did. Troopers Dupont and O’Leary then asked the defendant questions about the

documents discovered in his car. Due to the volume of papers, the interview continued for some

time, although it is unclear for how long. The defendant was eventually handcuffed and trans

ported to the Valley Street Jail. The instant charges and motions followed.

The defendant first argues that the statements he made to the police at the D?vW must be

suppressed because he was subjected to custodial interrogation without being read his Miranda

rights. “Miranda safeguards come into play whenever a person in custody is subjected to either

express questioning orits functional equivalent.”Stae v. Gravel, 135N.H. 172, 177 (1991),

quoting Rhode Island v. Innis, 446 U.S. 291, 300—0 1 (1980). “Custody entitling a defendant to

Miranda protections requires formal arrest or restraint on freedom of movement to the degree

associated with formal arrest.” State v. Tunnel, 150 N.H. 377, 382—83 (2003). “In the absence of

formal arrest, [the court] must determine whether a suspect’s freedom of movement was suffi

ciently curtailed by considering how a reasonable person in the suspect’s position would have

understood the situation.’1 State v. Jennings, 155 N.H. 768, 772 (2007). To do so, the court

should consider “the totality of the circumstances of the encounter, including ‘the suspect’s fa

miliarity with his surroundings, the number of officers present, the degree to which the suspect

was physically restrained, and the interview’s duration and character.” State v. Grey, 148 N.H.

666, 670 (2002), quoting Stare i Graca, 142 N.H. 670, 675 (1998). “Custody is an objective test

focused upon how a reasonable person in the suspect’s position would have understood the situa

tion.” State v. Stein;el, 155 N.H. 141, 146 (2007).

A5

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“A defendant is not in custody for Miranda purposes, however, merely because his free

dom of movement has been curtailed so that he has been ‘seized’ in a Fourth Amendment sense.”

Tumid, 150 N.H. at 383. “During an investigatory stop, a reasonable person may not feel free to

leave, because, in fact, lie is not free to leave.” Id. Police may temporarily detain suspects for in

vestigatoly purposes. but such temporary custody “does not ... constitute custody for Miranda

purposes and, therefore, Miranda warnings are not triggered.” Id. “If the detention was within

the scope of an investigatory stop, the defendant will not be deemed in custody for purposes of

Miranda.” Id.

It is undisputed in this case that Trooper Dupont questioned the defendant before he was

provided with notice of his Miranda rights; thus, the court must determine whether those ques

tions were asked as a part of a custodial interrogation. Initially, the interrogation was not custo

dial. While the defendant was not familiar with his surroundings, the door to the interview room

remained open and Trooper Dupont did not block access to the exit. Trooper Dupont was aimed

and in uniform, but never drew his weapon and never physically restrained defendant. The tone

of the interview was polite throughout. The defendant was extremely cooperative and appeared

to want to help. At two and a half hours, the duration of the interview was not excessive. See

State v. Locke, 149 N.H. 1,6(2002) (“The interview’s duration was not excessive: it lasted for

three and one-half hours.”). The first thirty minutes of the interview consisted of collecting gen

eral background information from defendant, such as why he was in the DMV with Mr. Guzman,

and how they knew each other. It was not until afier approximately thirty minutes had passed

that inconsistencies began to appear in defendant’s story.

The defendant argues the facts in this case are similar to those in State i McKenna, 166

N.H. 671 (2014). The court disagrees. In McKenna, three officers made contact with defendant at

A6

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his home with the purpose of obtaining a confession to charges of sexual assault. See 166 N.H. at

682—83. The officers interrogated the defendant for over an hour, accused him numerous times o

committing the crime, stated they did not believe his denials, and urged him to tell the truth. Id.

at 684. This was “qualitatively different” from questioning during an investigatory stop, where

the questioning is designed to confirm or dispel an officer’s suspicion. Id. at 681. McKenna

placed significant emphasis on the accusatory nature of the police cncounter—”[n]either the ab

sence of hostility on the part of the officers, nor the polite tone of the interrogation, neutralizes

the content or import of the accusatory questions and statements, nor diminishes the weight

which [the court] accord[sJ to them.” Id. at 684. In contrast, the questions or statements made by

Trooper Dupont to the defendant lacked this quality.

Based on the foregoing, the court finds defendant was not immediately in custody, but

was initially subject to, at most, an investigatory detention. This is not, however, dispositive of

all of the prc-Miranda questioning. “Interrogations are fluid: What may begin as noncustodial

questioning may evolve over time into custodial questioning.” Id. at 677. Here, the fingerprinting

of the defendant and Mr. Guzman by the ICE agent flrndamentally shifted the nature of the inter

view. This resulted in Mr. Guzman’s arrest, which allowed Trooper O’Leary to join Trooper

Dupont in the questioning of the defendant. This also prompted Mr. Guzman to show the police

his text messages with the defendant, which the officers used to challenge the defendant’s ver

sion of events. The act of being fingerprinted, followed by the continued questioning and in

creased attention of two troopers following the arrest of Mr. Ouzman would lead a reasonable

person to believe he was in custody. Therefore, the defendant’s initial admission to signing the

lease agreement must be suppressed.

A7

-8-

The defendant next argues he did not knowingly, intelligently, and voluntarily waive his

Mfranda rights. “Whether a waiver was knowing, intelligent and voluntary is determined by the

totality of the circumstances.” Stale v. PIch, 149 NH. 608, 617 (2003). The state bears the burden

of establishing a knowing, intelligent, and voluntary waiver beyond a reasonable doubt. Id.

Here, Trooper Dupont read each of the Miranda rights aloud to the defendant. The de

fendant then signed the form, initialed it to affirm that he understood each of the rights, and

wrote “Yes” in response to the question: “Understanding these rights are you willing to answer

questions?” See Exit I. Once the defendant had waived his rights, the trooper simply asked the

defendant to write down what he had told them. The defendant wrote his first statement on the

front of the waiver form, and when Trooper Dupont pointed out an inconsistency, the defendant

wrote a second short statement on the back of the form. Id.

The interview remained polite in tone and the defendant continued to be cooperative and

willing to help, even after being read his Miranda rights. The defendant’s cooperation is support

ed by the fact that the police offered to release him on only $310 bail after deciding to charge

him with a crime. The defendant presented no evidence and elicited no testimony from Trooper

Dupont that would support a finding the he did not understand his rights or that his express

waiver was coerced or othenvise improperly secured. Considering the totality of the circum

stances, the court finds the defendant’s waiver was knowing, intelligent, and voluntary.

The defendant next moves to suppress the documents discovered in his vehicle, both dur

ing Trooper Dupont’s initial entry and the subsequent consent search. The state’s objection as

serts that Trooper Dupont lawfully seized the documents during his initial entry pursuant to the

plain view exception to the warrant requirement and that subsequent search was lawful based on

the defendant’s consent. The court will address each argument in turn.

A8

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The court will first examine the trooper’s initial search. “Warrantless searches [and sei

zures] are per se unseasonable unless they fall within the narrow confines of ajudicially crafled

exception.” State v. Newcornb, 161 N.H. 666, 670 (2011), citing State v. Craveiro, 155 N.H. 423,

426 (2007). “The State has the burden of proving that a search [and seizure] fails within one of

the exceptions.” Id. (citation omitted). Here, the state asserts the warrantless seizure of evidence

during the officer’s initial entry into the defendant’s vehicle was proper under the plain view ex

ception to the warrant requirement.

“A law enforcement officer, in certain circumstances, may seize objects which are in

plain view.” State i Ball, 124 N.H. 226, 234 (1983). Generally, the plain view exception has

three criteria: (I) the initial intrusion which afforded the view must be lawful; (2) the discovery

of the evidence must be inadvertent; and (3) the incriminating nature of the evidence must be

immediately apparent. State v. Davis, 249 N.H. 698, 700—01 (2003). “Thus, the plain view doc

trine permits a law enforcement officer to seize clearly incriminating evidence or contraband

without a warrant, if such evidence is inadvertently discovered during lawful police activity.”

Ball, 124 N.H. at 234.

Here, the defendant had given Trooper Dupont express permission to enter his vehicle in

order to locate his girlfriend’s purse arid place it in a secure location. V/hen Trooper Dupont did

not immediately see the purse on the driver’s side of the passenger compartment, he entered the

vehicle to see if it was located elsewhere. While doing so, he observed several documents laid

out on the floor between the driver and passenger seal. These facts support a finding that Trooper

Dupont was lawfully present in defendant’s vehicle and that his discovery of the documents was

inadvertent.

A9

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The defendant argues the incriminating nature of the documents was not immediately ap

parent. “The ‘immediately apparent’ requirement is met if, at the time of the seizure, the officer

has probable cause to believe that the object seized is incriminating evidence.” Stale v. A’furray,

134 N.H. 613, 615 (1991). “The probable cause required under the plain view exception ‘is at

least as great as that required to support a warrant,’ but need not be greater.” Davis, 149 N.H. at

701, quoting State i’. Maguire, 129 N.H. 165, 170 (1987). In determining whether probable cause

exists, “[ojificers are entitled to draw reasonable inferences from the facts available to them in

Tight of their knowledge and prior experience.” Ball, 124 N.H. at 236. Thus, “in some situations,

a trained policeman’s observations of certain types of contraband will be deemed sufficient to

meet the requirements of the plain view doctrine.” Id.

Trooper Dupont was able to observe the following: (1) an envelope with the word “Jun

ior,” the number “25,” and the signature of “Angel Barrios Rivera;” (2) a residency lease appli

cation similar to the one that Mr. Guzman had attempted to provide to the DMV; and (3) a doc

ument displaying social security number search results for “Angel Banjos Rivera.” The trooper

made this observation without touching or otherwise manipulating any of the documents. Troop

er Dupont testified that he has been involved in fifty to seventy-five prior investigations involv

ing identity fraud, and that his first impression on seeing the documents was that it was part of a

packet of fraudulent identification documents similar to those he has seen numerous times in the

past. Moreover, because at the time he entered the vehicle he knew the name “Angel Barrios Ri

vera” was connected to the attempted fraud by the defendant and Mr. Guzman, the presence of

the name on the documents strongly supported their connection to the crime. Accordingly, the

court finds Trooper Dupont had probable cause to seize the documents at the time he observed

them.

AlO

—Il—

Because the initial seizure of the documents was lawful, defendant’s consent to search,

the additional documents retrieved from the vehicle, and his subsequent statements cannot con

stitute “fruit of the poisonous tree” as the defendant argues. The state has also convinced the

court that the defendant’s consent to the search was voluntary.

Based on the foregoing, the court finds and rules that the state has failed to sustain its

burden of showing that the defendant was not in custody starting at the time of the ICE finger

printing. Accordingly, the defendant’s motion to suppress statements made from that time and

extending until the defendant waived his Miranda rights is GRANTED. In contrast, the court

finds and rules that the state has sustained its burden of showing that that statements made before

the ICE fingerprinting and after the Miranda waiver violated the defendant’s rights under the

New Hampshire and United States Constitutions. Accordingly, the defendant’s motion to sup

press statements is DENIED in all remaining respects. Finally, the court finds and rules that the

state has sustained its burden of showing that the initial and subsequent searches of the defend

ant’s vehicle were conducted under valid exceptions to the warrant requirement. According’y,

the defendant’s motion to suppress documents is DENIED.

So ORDERED.

Date: December 9,2015LARRY M. SMUKLER

PRESIDING JUSTICE

All

0 0

THE STATE OF NEW HAMPSHIRE

HILLSBOROUGH, SS. SUPERIOR COURTNORTHERN DISTRICT

The State of New Hampshire

V.

Felix Ruiz

No. 15-CR-0699

ORDER

On December 9, 2015, the court issued an order denying the defendant’s motion to sup

press. Before the court is the defendant’s motion for reconsideration. Citing State v. Aithuchoiff,

141 N.H. 206,209(1996), the defendant argues that the court failed properly to consider the to-

talky of the circumstances when finding that a post-Miranda confession made shortly after the

defendant gave an unwamed confession in violation of his Miranda rights was voluntary. The

state objects. While the court agrees that that it must consider the totality of the circumstances, it

disagrees with the defendant’s assertion that it inaccurately weighed the evidence when it made

its December 9,2015 finding.

As the defendant argues, the applicable test is set forth in State v. Fleenvood, 149 N.H.

396 (2003). In determining the admissibility of a post-Miranda confession made shortly after the

defendant gave an unwamed confession in violation ofhs Miranda rights, the court must con

sider all the circumstances preceding the second confession. See Fleetwood, 149 N.H. at 405.

The court considers the following:

ETihe time lapse between the initial confession and the subsequent statements;[the defendantj’s contacts, if any, with friends or family members during that period of time; the degree of police influence exerted over [the defendant]; whether[the defendant] was advised that [his] prior admission could not be used against

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[him]; or whether ... [the defendant] was told that [his] previous statement couldbe used against [himJ. No one factor in isolation will be determinative.

Id. at 406, quoting Un lied States v. Wauneka, 770 F,2d 1434, 1440—41 (9th Cir. 1985).

Here, the defendant did not have any contact with friends or family at the applicable time;

however, he did not request, nor did the police deny, any such contact. H is also true that the po

lice did not advise the defendant that his initial confession might be used against him in court.

This is not dispositive as “it is impractical to require the police to determine the admissibility of

an unwarned confession.” Id. at 406. ‘rnis would require them to make legal determinations re

garding whether there had been interrogation and custody,” and “[t]hese issues are difficult for

officers to analyze objectively in the midst of an interrogation.” Id. at 406—07.

Finally, the court agrees that there was a minimal time lapse between the defendant’s ini

tial confession and his waiver of Miranda. “While a time lapse between the unwamed and

warned confessions is not required for the subsequent confession to be voluntary, its absence is

important and sometimes critical evidence in the totality of the circumstances test,” id. Fleet-

wood cautioned:

Without a significant break between the unwamed statements and the Miranda

warnings, an accused may not have the opportunity to be free from the pressure of

continuous interrogation and to reflect on the seriousness of her situation. In addi

tion, the absence of a time lapse, coupled with other factors, may create a reason

able doubt as to the voluntariness of the confession. Finally, if a defendant hasbeen arrested and is unquestionably in custody and entitled to Miranda warnings,

a police decision to delay giving the required warnings and elicit a statement fol

lowed immediately by the warnings and another incriminating statement strongly

suggests that the police are exploiting the inherent pressures of custodial interro

gation such that the post-Miranda statements should ordinarily be inadmissible,

Id. at 407 (internal citations omitted).

As reflected in the December 9,2015 order, the police did not exploit the inherent pres

sures of a custodial interrogation in this case. The interaction between the officers and the de

fendant was polite and relaxed. The defendant was very cooperative with the police from first

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contact through the conclusion of the interaction. This is reflected inter ala in the officers’ initial

offer to release the defendant on low bail. There is no evidence to suggest the police made any

promises, threats, or displays of force in an attempt to induce a confession and otherwise exert

influence over the defendant. In addition, Trooper Dupont took periodic breaks in order to con

sult with Trooper O’Leary in the hail. The pressure of “continuous interrogation” was minima].

In addition to the nature of the interactions themselves, the record supports the court’s

finding that the police were not attempting to exploit the situation in order to circumvent the pro

tections ofA&ra,zda. The defendant had not been arrested at the time of his first confession, nor

had the police decided to arrest him. While the police may have had their suspicions, they lacked

probable cause to arrest the defendant before he confessed to signing the lease agreement. Once

the defendant confessed, the police took immediate steps to notify him of his jvliranda rights.

Ultimately, the Aubuchont and Fleetwood concern is the voluntariness of the defendant’s

confession. “To be considered voluntary, a confession must be the product of an essentially free

and unconstrained choice and not be extracted by threats, violence, direct or implied promises of

any sort, or by the exertion of any improper influence or coercion.” Id. at 402—03. In considering

the totality of the circumstances articulated above, the court is satisfied beyond a reasonable

doubt that the defendant’s post-Miranda confession was voluntary. Accordingly, the defendant’s

motion for reconsideration is DENIED.

So ORDERED.

Date; January 12, 2016LARRY M. SMUKLERPRESIDING JUSTICE

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C)

I’iãE S”FAI’E OF INE\V iiAJ’IPSHiRE

IHJl2SBOR()UGII, SS. SUPflRIOR (10Uk’l’NOWFIIERN DllSi’RCi’

lii e State of New II ai npsh i ic

Felix Rtnz

No. 15-CR-0699 (1152716c, 1158935—6C)

OR I) H

1 lie ne Fe ndan t was eh aged w i tli two counts of identity fraud, contrary to R S A 638:26, and

to counts of receiving stolen propeity, contrary to liSA 637:7.1 he naIler was tried to a jury on

December 10 ann Ii, 2015. Ai the close of [lie slate’s case, the defendant made an oral motion to

dismiss based on his claim that the state litiled to present sufficient evidence to support a conviction

on any of the four charges. 1110 state (lid not object to the dismissal of the receiving stolen property

claim favoR. ing a health center identification card and, accordingly, the court granted the defense

request. l’he state did object to the dismissal of the remaining counts and, ibllowing argument, the

court denied the defendant’s notion. ‘flie jury thereafter returned verdicts of guilty on all remaining

counts. Before the court is the defeudant’s motion for reconsideration of the court’s denial of his mo

tion to dismiiiss. Because the defendant has persuaded (lie court that the record cannot support his

identity fraud con’,iction, his motion lbr reconsideration is (iRAN iRD to that extent. As the record is

sufficient to support tIme remaining receiving stolen property conviction, (lie defendant’s motion to

reconsider the denial ofliis motion to dismiss that conviction is l)RNIIU).

Ihe court will initially address (lie defendant’s identity fratmd argument. 1liere are two in—

dietmnents. Indictment 1 1583935e aectmses the defendant of commnmttiiig the crime of identity fmatmd

w i (Ii a p ii rpos e to de fratmd when lie ass is ted another to pose as Angel 13 e rn os Rivera, contrary to RS A

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638:26, 1(a). Indictment I] 583936c accuses the defendant of committing time cunne of identity fraud

hy obtaining or recording information to assist another to pose as Angel Hettios Rivera, contrary to

RSA 638:26, (c). ‘lime applicable sections of RSA 638:26, 1 provide:

1. A person is guilty of identity fraud when time person:

(a) Poses as atiotlier person with the ptmmjiose to defraud in order to ohta i mooneY,etedit, goods, services, or anything else of value; [or]

(c) t)hmai is Or teeotds personal itmentiiyi:i itiiOttlUItIOIi LtbOtlt a j)i5On without theexpress t:ttliorization of such pelson in o:der to assist t:iotlicr to pose as sorb person..

‘I he IIL’fendant asserts that the statute requires the stale tO prove that Angel l1errios Rivera

wa a cal person and, beeatmce the state faHed to (10 50, mw mrlictujicmib must lie dismissed. ‘1 he state

coicedes that it is reqnred to prove that the personal idemm:if\’ing inforumiation belong to a rea person

tumier RSA 638:26. 1(c). bat it argues there is no such requirement lb: RSA 638:26. 1(a). ‘1 he conut

agrees with the defendant.

floth subsections ofRS:\ 638:26 reqtnre the state to p°e that the defendant posed as a

“p’rson.” Generally, the court eonstrt:es criminal code provisions “according to the lair import of

their tenmiS amid to pr0noteJauce. Stare i’. Jairuigton, 161 N.I I. 440. 446 (201 I); see also RSA

625:3 (le rule that peua statutes are to be strictly construed does mat 4idy to tins code;” rather

thev’slmtU be construed accotding to the ii: im:ipott of their tem mis and to proniotejttstice.’’). Where,

howewr, the slatute defines a term, Ihe stattttorv definition prevails. Ilere, the criminal cotle defines

‘‘person’’ at RSA 625:11. The statttte p” ides that a ‘person’’ “inclutle[s] any iiattmruI person mdl] a

corporation or in tmtiiucorporated association.’’ lime defendant was not accused of posing tts a compo—

ration or an unincorporated association; thus, the state was rcqttircd to prove that the defendant posed

In this case, time record established that the defendant assisted another to pase. [he iitdictinents recognized this inthat they accused time del etmdant of acting in concert with and’ar aided by another person. Thus, the state was re—quired to prove time elements ofaccomnplice liability’,

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asa’’tlattirill peison.’’ A natural peison is not fiction Attirns Finch may he a natural person within

the confines of liieiatnre, hnt ic is not a natural peisoit iii reality. ‘Ilierefbre, 1w the plain language of

the statute, the state is ec1iiired to prove that the defendant posed as a real person, oi assisted another

in doing so ts occurred here.

It is true that the crime of identity hand includes the act of’ posing as a fictitious person in

othicrittrisdiet:oiis, hut the statutory language in those ttiisdictions ewlieitlv includes hctitocs p—

sons within tile dchnition. See, e.g., (Ia. (‘ode Ann. § I 6—0—121 (2010) (‘... use any counterfeit or lie.—

titutis dentilvi ne information conceinnic a ictti&l:s person NH) Code. Criminal Law § 8

301(c) (2015) (‘‘A person may iiot knowingly and ttillfully assume the identity of another, including

a iicti:ioas pe;sua. ‘fl Va. Code Anti. § X.2-J 6.33 ) 120!3) (“identification (locuillenIs u:

identik’ing iiifhiimttion of another person, witetiler that person is dead or alive, or ofa false or ficti—

tiou.s person...’). As reflected in die language used i: those otllerjunslic:iuns, the New l]uiipslnie

legislature could have explicitly included fictitious persons within the dchnition of RSA 638:26 iden

tity Laud if ii iitL’lidcd to tiosu.

lining established file Icqinreinent that the state pove that tile defendant assisted another to

pose asanatural peison, it reniajils to deternunc whether it produced sufticient evidence to support ii

fi:tdillg that Ailed lierrius Rivera is a ilattnal peison. The court concludes that it did not.

lo prevail on a challenge to the snff ieieney of the evidence, tile defendant tilust irote that

no rational trier of fact, viewute all o:the et irieree in a light most fivorahle to the State, could find

guilt beyond a reasonable doubt.’’ State t. 11111, 1(13 N.l I. 394, 305 (2012). ‘‘f I]fthe record contains

insufficient evidence to pemlit a ration:uljuioi to find the delendant guilts he ono a reasonable

douiht, tile renledy is acquittal.’’ LI.

At trial. no iildi\ idual 1w tIle name of Angel l1errios Rivera testified. No witness testilied that

Mr. Rivera was a real person, nor were any official documents introduced to prove the same. Moreo—

\er, the phi’sical evid nec stthmittetl at trial does Ilot suapor:af:nchine that the ideiltitv ofAngel 13cr-

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fic’ Rvera, is tlsco by the eelendiitt hiS iCUl’fltlICC ii lhN case, l)elOflL’S toaie’al person. The

only no:i-iorgen ooet:inclil that contained the halite is the social security iitiinlier search results page

(Nyu. 8) an esli:nit (nat tci.v contained a 1i:nti;il soL’ia[ security innnber (XXXXX 120—I’’) and the

dne of birth 8/25/I 0X9. All otiier tloeunieiits containing a fall social security nuiiiber were not only

fhrgeries, as alleged by the slate, but cciiilainetl 1 dillbcnt tlate of birth (8’l UI 989). lii addition,

while the full social security numbers share the same last four digits, 11th lust five digits conld belong

to someone else or be fabricated entirely.

l3ased on the foregoing, the eouut conclndcs that the state failed to meet its buuden in proving

an e leunent of’ the two cotunts of ideutti ty flaud. Accordingly, with respect to those counts, the defend —

ant’s notion for ucconsidertttioii is (H{AN II’]) and the convictions and sentences iiiiposed by the

eorrt on those eot:uits are VA(’A]Fl).

‘1 he defe:ul,unl also as!;ed [his court to ucco;usider its denial of his notion to dismiss the ye—

uniuning reeei\ihug stolen propeuty charge. As the tleleiidaat failed to preset tiny facts or law over—

looked or inisappa’i:cuutied by the couu t. rccoiisidcuation is not ‘\ar:slnted Sec Super. (:. (‘iv. ]Q.

2(e), Accordingly, the defeuirlauut’s notion to urconsitler the cotnt’s denial of his motion to dismiss

(he u’eceiving stolen propeuty charge is DLNINI).

So (.)IZI)ERKI).

l)aEe: February 5, 201 OLARRY M. SMUKLERPR ES II)! NC lUST ICE

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THE STATE OF NEW HAMPSHIRE

HILLSBOROUGH COUNTY SUPERIOR COURT

Hiflsborough, 55. November Term, 2015

STATE OF NEW HAMPSHIRE

v. Docket No. 216-15-CR-699

FELIX RUIZ

MOTION TO SUPPRESS STATEMENTS

Now comes the defendant, Felix Ruiz, by and through counsel, Todd R. Russell,

and respectfully requests this Honorable Court suppress all of the statements made and

evidence seized as a result of the interrogation conducted at the Division of Motor Vehicles

substaUon in Manchester on May 28, 2015. New Hampshire State Troopers Richard

Dupont and James O’Leary did not read the Miranda warnings to Mr. Ruiz or obtain any

waiver of rights prior to beginning their interrogation. As a result, Mr. Ruiz did not

knowingly, intelligently or voluntarily waive his rights. The statements were obtained in

violation of Mr. Ruiz’ constitutional rights under the Fifth and Fourteenth Amendments to

the United States Constitution and Part I, Article 15 of the New Hampshire Constitution.

In support of this motion, Mr. Ruiz asserts the following:

FACTS

1. Mr. Ruiz is charged with one Class A Felony count of Identity Fraud.

2. According to police reports, on May 28, 2015 at approximately 12:15 p.m.,

AlY

New Hampshire State Troopers Richard Dupont and James O’Leary were dispatched to

the Manchester Division of Motor Vehicles substation for a report of an individual

attempting to obtain a New Hampshire driver’s license using fraudulent documents.

3. Upon his arrival, Trooper Dupont located two Hispanic males seated

in the lobby, He escorted both of them to an office in the rear area of the substation.

4. One of the males identified himself as Angel Berrios Rivera, and

provided a social security card and a birth certificate. The other male presented a

Massachusetts non-driver identification card identifying himself as Felix Ruiz.

5. The Troopers separated Mr. Rivera and Mr. Ruiz in order to interrogate

them, Trooper O’Leary spoke with Mr. Rivera who admitted that hi5 name was actually

Juan Soto Guzrnan and lie was trying to obtain a false identity so he could get a job.

Subsequent to this admission, the trooper contacted Immigration and Customs

Enforcement and Mr. Soto Guzman was taken into custody by Agent Alex Godinez.

6. Trooper Dupont interrogated Mr. Ruiz initially and then ‘vas joined by

Trooper O’Leary at some point during the interrogation. Mr. Ruiz stated that he had

only been asked to assist Mr. Rivera with Spanish translation and denied providing any

documents to Mr. Rivera, Despite his denials, the troopers confronted him and accused

him of manufacturing documents to assist Mr. Soto Guzman in obtaining a false

identity. Upon information and belief, Mr. Ruiz was detained in an office in the rear area

of the substation during the interrogation and was not permitted to leave.

7. After interrogating Mr. Ruiz for approximately 3 hours, Trooper Dupont

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reviewed Miranda rights on a Department of Safety — Division of State Police Statement

Form with him at 3:20 p.m. Mr. Ruiz signed the form and indicated that he was willing

to answer questions. On the front page of the form, he denied signing a lease

agreement for Mr. Rivera. On the back page of the form, he admitted that he signed

the landlord’s name on the lease agreement as Mr. Rivera asked.

8. Troopers Dupont and O’Leary continued to interrogate Mr. Ruiz for at

least three more hours. At some point, they made the decision to charge Mr. Ruiz with

Conspiracy and informed him that if his girlfriend could provide money for a cash bail,

he could be released with a court date. Mr. Ruiz texted his girlfriend Sandra Nunez

Hernandez, and she indicated that she would come to Manchester.

9. While waiting for Ms. Hernandez to arrive, Mr. Ruiz expressed concern

about leaving her purse in plain sight in his van. Trooper Dupont offered to locate the

purse and place it out of sight under the seat. Mr. Ruiz gave him verbal permission to

enter the van and hide the purse.

10. Trooper Dupont opened the driver’s side door of Mr. Ruiz’ van and looked

inside. He entered the passenger compartment and observed paperwork on the floor in

between the front seats: a lease agreement, a white envelope with the name Junior

and the number 25, and an online search for social security results. The trooper seized

the papers and exited the van. As he exited the van, he noticed a small brown purse

next to the driver’s seat, He placed this purse under the seat to hide it from view.

11. Trooper Dupont returned to the rear office of the substation where Mr.

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Ruiz was being interrogated by Trooper O’Leary. The trooper asked for permission to

search the van to find anything left by Mr. Rivera. Mr. Ruiz agreed and completed a

written consent to search at 6:35 p.m.

12. Trooper Dupont returned to the van and conducted a search of the

interior. He located a black canvas bag laying diagonally across the middle seat. He

looked inside and observed several pieces of paper with names, dates of birth, and

social security numbers. The trooper seized the bag and went back to the rear offlce of

the substation.

13. Trooper Dupont reminded Mr. Ruiz of his Miranda rights and proceeded to

question Mr. Ruiz about each piece of paper within the black canvas bag. Mr. Ruiz

allegedly admitted to possessing identification documents from several individuals and

conducting background checks of identities.

14. Once the six hour plus interrogation had been concluded, Troopers

Dupont and O’Leary arrested Mr. Ruiz for Identity Fraud and transported him to the

Hillsborough County House of Corrections. Despite the troopers’ promise to Mr. Ruiz,

Ms. Hernandez was not given the opportunity to post bail so he could be released.

LEGAL ARGUMENT

MR. RUIZ DID NOT MAKE A KNOWING, INTELLIGENT, AND VOLUNTARY

WAIVER OF HIS RIGHTS.

15. The interrogation of Felix Ruiz is inadmissible at trial because the police

failed to obtain a valid waiver of Miranda rights prior to beginning their interrogation.

16. When the police have interrogated a suspect in custody, the State bears a

A22

heavy burden to show that the police followed the well-known and long-standing

constitutional safeguards regarding Miranda warnings and the necessity of a waiver of

Miranda rights before any valid interrogation can begin.

17. Before statements during a custodial interrogation may be considered as

evidence, the State must prove beyond a reasonable doubt that a defendant was warned

of his constitutional rights pursuant to Miranda v. Arizona, 384 u.s. 436 (1966), that he

waived those rights, and that his statements were made voluntarily, knowingly and

intelligently. State v. Torres, 130 N.H. 340, 343 (1988).

18. Custodial interrogation occurs when a person is questioned by law

enforcement officers after that person has been taken into custody or otherwise deprived

of his freedom of action in any significant way. Miranda, 384 U.S. at 444.

19. A person is in custody, for the purposes of Miranda, whenever there is ‘a

formal arrest or restraint on freedom of movement” similar to an arrest. Cahfornia V.

Beheler, 463 U.S. 1121, 1125 (1983) (quoting Oregon v. Mathiason, 429 U.S. 420, 495

(1977) (per curiam)); State v. Dedrick, 132 N.H. 218 (1989). A number of factors should

be weighed to determine whether and at what point a subject was in custody during

police interrogation, “including, but not limited to, factors such as the number of officers

which the suspect was physically restrained, the interview’s

and the suspect’s familiarity with his surroundings.” State v.

773 (2007). The New Hampshire Supreme Court noted that

[w]hat may begin as noncustodia] questioning may evolve over

present, the degree to

duration and character,

Jennings, 155 N.H. 768,

“fijnterrogations are fluid:

A23

time into custodial questioning.” State v. McKenna, 166 N.H. 671, 677 (2014) (citing

Dedrick, 132 N.H. at 225 and State v. Snencer, 149 N.H. 622, 625 (2003)).

20. The factors in the above-captioned matter are similar to those that the Court

considered in McKenna and lead to the conclusion that Mr. Ruiz was in custody when lie

was questioned by Troopers Dupont and O’Leary. Trooper Dupont initiated contact with

Mr. Ruiz in the lobby of the Manchester Division of Motor Vehicles sub5tation. He then

escorted Mr. Ruiz to an office in the rear area of the substation. He did not tell Mr. Ruiz

that he was free to leave or could decline to answer questions. 5 McKenna, 166 N.H.

at 680 (concluding that the lack of evidence that a suspect was told he was free to

terminate the interrogation supports a flnding of custody at some point during the

interrogation). Mr. Ruiz remained detained in the rear office of the substation during his

entire contact with Troopers Dupont and O’Leary. The troopers’ actions conveyed to Mr.

Ruiz that they did not intend to let Mr. Ruiz leave their sight. g ith at 678 (finding a

key component of custody where the officers intervened to prevent the defendant from

freely moving about his property). Trooper Dupont maintained custody of Mr. Ruiz

during the six plus hours of questioning, and then Trooper O’Leary maintained custody

of him when Trooper Dupont left to move the purse and then search Mr. Ruiz’ van.

(holding that the “likely effect on a suspect of being placed under guard during

questioning, or told to remain in the sight of interrogating officials, is to associate these

restraints with a formal arrest”) (citing United States v. Griffin, 922 F,2d 1343, 1350-51

8th Cir. 1990)). Mr. Ruiz did not leave the DMV substation until he was arrested, charged,

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and transported to the Hilisborough County House of Corrections over six hours after the

troopers had arrived.

21. This detention by Troopers Dupont and O’Leary clearly amounts to a

restraint on freedom of movement similar to an arrest. Just as the Court found in

McKenna, there are a number of factors that show Mr. Ruiz was in custody: Trooper

Dupont initiated contact with him, his movement was restrained by the trooper’s order to

accompany him to the rear office of the substation, he was placed under guard while

being questioned, he was never informed he was free to stop the interrogation, he was

never informed that he was free to leave, Troopers Dupont and O’Leary made accusatory

statements regarding the creation of a False identity, and the interrogation lasted for over

six hours. Therefore there is no question that Mr. Ruiz was in custody while he was being

interrogated by Troopers Dupont and O’Leary.

22. A suspect is interrogated within the meaning of Miranda when subjected to

either express questioning or its functional equivalent, that is “any words or actions on the

part of the police (other than those normally attendant to arrest and custody) that the

police should know are reasonably likely to elicit an incriminating response from the

suspect.” Rhode Island v. Innis 446 U.S. 291, 301 (1980), cert, denied, 456 U.S. 930

(1982); Dedrick, 132 N.H. at 226 (1989). It cannot be disputed that Troopers Dupont and

O’Leary questioned Mr. Ruiz for more than six hours starting at approximately 12:30 p.m.

on May 28, 2015 at the Manchester Division of Motor Vehicles substation.

23. New Hampshire courts presume that a defendant did not waive his rights.

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The State has the burden of proving, beyond a reasonable doubt, that the totality of

the circumstances demonstrates a knowing and voluntary waiver of rights. New

Hampshire Constitution, Part 1, Article 15; United States Constitution, Fifth and

Fourteenth Amendments; State v. Duf, 146 N.H. 648, 650 (2001); State v. Jaroma,

137 N.H. 143 (1993); Torres, 130 N.H. at 343.

24. This constitutional limitation is so important that our Supreme Court has

directed trial courts to “enter an express finding” as to whether or not the State

demonstrated a knowing and voluntary waiver beyond a reasonabe doubt, State v.

GuNick, 118 N.H. 912, 915 (1978).

25, Critically important in making this determination is the distinction between

a suspect who simply understands his rights and a suspect who both understands and

waives his rights. For many years, the New Hampshire Supreme Court has reminded

law enforcement of this distinction. In State v. Butler, the Court cautioned the police to

obtain an express waiver or the defendant’s statements would be inadmissible at trial:

We remind the police and prosecutors, however, that whatever may be thefuture interpretation of Miranda. that the decision in that case requires not only

an understanding of the warnings but also an express waiver of the rightsinvolved. . . . Strict compliance by the police will avoid the danger thatstatements, otherwise admissible, will have to be excluded.

State v. Butler, 117 N.H. 388, 891 (1977). in State v. Duffy, the Court makes it clear

that the trial court must make two separate determinations:

The record in this case demonstrates that the defendant indicated that heunderstood his rights when they were explained to him by the officer.Whether the defendant understands his rights and whether the defendant has

waived his rights, however, are two separate matters.

Duffv, 146 N.H. at 650 (emphasis in original), See also Torres, supra.; Gullick, supra.

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26. The burden of proving a waiver of Miranda rights is not easily met. Even

an express waiver of Miranda rights is not inevitably conclusive that there was a valid

waiver. North Carolina v. Butler, 441 u.s. 369 (1979). Moreover, “a valid waiver will not

be presumed simply from the silence of the accused after warnings are given or simply

from the fact that a confession was in fact eventually obtained.” Miranda, 383 u.s. at

475; Butler, 441 U.S. at 373.

27. For the same reasons, the State cannot prove an implied waiver beyond a

reasonable doubt. In the absence or an express waiver, New Hampshire courts “look to

the defendant’s course of conduct and the surrounding circumstances to determine if

the defendant impliedly waived his rights” Duffy, 146 N.H. at 650-651. Courts have

found an implied waiver of rights when a defendant initiated conversations with the

police after an earlier express waiver but without renewed warnings from the police

g,g. State v. Monroe, 142 N.H. 857, 868 (1999).

28. On the other hand, the New Hampshire Supreme Court has expressly

found that there is not proof or a valid waiver when the evidence simply shows that the

defendant understood his rights and thereafter talked with police. In State v. Gullick, a

police detective testified that “the defendant agreed to speak to us understanding his

rights.” 118 N.H. at 913 (internal quotation marks and punctuation omitted). The Court

found that to be insufficient:

The State . . . argues that the defendant’s conduct and willingness to talk to thepolice after the warning was tantamount to a waiver. We disagree. “Courtsindulge every reasonable presumption against waiver’ of fundamentalconstitutional rights.” The policy or Miranda v. Arizona, 384 U.S. 436 (1966),requires that the waiver of the right to remain silent during custodialinterrogation be made “voluntarily, knowingly and intelligently.” ... We hold that

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the record in the present case, when reviewed under the reasonable doubt

standard, does not sustain the trial court’s ruling that the defendant waived his

Miranda rights.

Guilick, 118 N.H. at 915 (cases and citations omitted). iiQ DLIIfV, 146 N.H. 648.

The Gullick holding clearly applies to the facts in this case.

29. Based on the information contained in the interrogation of Mr. Rula,

the State cannot meet its burden of establishing that rvlr. Ruiz understood his rights or

made a knowing and intelligent waiver of those rights prior to the beginning of the

interrogation. The troopers waited almost three hours after starting the interrogation to

inform Mr. Ruiz of his rights, and, under the totality of the circumstances, this waiver

cannot be construed as knowing, intelligent or voluntary.

CONCLUSION

The statements allegedly made by Mr. Ruiz during his custodial interrogation by the

State Troopers were obtained in violation of the Miranda rule which piotects the right

against self incrimination secured by Part I, Article 15 of the New Hampshire Constitution

and the Fifth and Fourteenth Amendments to the United States Constitution because his

waiver of rights was not knowing, intelligent, or voluntary.

WHEREFORE, Mr. Ruiz, by and through counsel, prays that this Honorable Court:

A. Order that any and all evidence obtained by the state pursuant to, foUowing,

or as a result of the unlawful interrogation of Mr. Ruiz be suppressed at his

trial;

8. Order that a hearing be held at which the state shall be required to show

cause why such evidence should not be suppressed; and

ID

A28

C. Order such other and further relief as justice may require

Respectfully submitted,

Todd R. Russell, Esquire #14237PubFc Defender20 Merrimack StreetManchester, NH 03101(603) 669-7888

CERTIFICATE OF SERVICE

I, Todd R. Russell, hereby certify that a copy of the foregoing has been forwardedthis 18th day of November, 2015 to ACA Lexie Rojas.

Tbdd R. Russell, Esquire

II

A29

THE STATE OF NEW HAMPSHIRE

HILESBOROUGH COUNYi’ SUPERIOR COURT

Hilisborough, ss.

STATE OF NEW HAMPSHIRE

November Term, 2015

V.

FELIX RUE

Docket No, 216-15-CR-699

NOW COMES Attorney Todd R. Russell and states the foflowing;

1) I am the attorney of record in the above-captioned matter.

2) I have read the facts of the defendant’s Motion To Suppress Statements and

they are adduced solely on the basis of discovery provided by the State.

Respectfully submitted,

H>A PLU

Todd R. Russell, Esquire #14237

this jj day ci November, 2015 to ACA Lexie Rojas

I,

Todd R. Fugsell, Esquire

AFFIDA’JU

Public Defender

STATE OF NEW

Subscribed and sworn to before me this ) day of

CERTIFICATE OF SERVICE

I, Todd R. Russell, hereby certify that a copy of the foregoing has been forwarded

A30

THE STATE OF NEW HAMPSHIRE

NORTHERN DISTRICT OF HILLSBOROUGH COUNTY

HILLSBOROUGH, SS SUPERIOR COURT

STATE OF NEW HAMPSHIRE

FELIX RUIZ

Docket II 2I6-2O15-CR0O699 By_

OBJECTION TO DEFENDANT’S MOTION TO SUPPRESS STATEMENTS

NOW COMES the State of New Hampshire, by and through the Hilisborough County

Attomey’s Office, with this Objection to the defendant’s above-captioned Motion, and in support

thereof, states as follows:

FACTS

1. The defendant, Felix Ruiz, is charged with one class A felony count of Identity Fraud.

On May 28, 2015 Trooper James O’Leary received information that there was an individual at

the Manchester Division of Motor Vehicles substation attempting to obtain a New Hampshire

driver’s license utflizing what was believed to be fraudulent documents.

2. Trooper Richard Dupont and Trooper O’Leary arrived at that Manchester DtvW. They

located two Hispanic males, one claimed to be Angel Bethos Rivera and the other identified

himself by presenting a Massachusetts non-driver identification card as the defendant. The

troopers were given the documents the two males had presented to the DMV. They were: a

Puerto Rican Birth Certificate, a social security card, a residency lease agreement, a Puerto Rican

driver license, and an original NH Driver’s License Application. A review of the birth certificate

and social security card confirmed the original infonnation had been removed and re-typed;

1

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indicating the person claiming to be Rivera may be an imposter falsely using Rivera’s identity to

obtain a New Hampshire License. While Trooper O’Leary interviewed the person claiming to be

Rivera, Trooper Dupont interviewed the defendant.

3. The first question the defendant asked was “Is there something wrong with the

documents?”. The Trooper felt this was an odd question asked him why he asked this. The

defendant explained that he was just wondering because they were asked to come and speak with

the Troopers. The Trooper asked the defendant why he did not ask if there was something wrong

with die application. The defendant did not offer any reason for his question.

4. The defendant stated that he had only been asked to assist Rivera with Spanish translation

and did not actually know him. Later the defendant stated that he knew Rivera’s family,

specifically his father from Puerto Rico and that he has only known Rivera for two weeks. He

then insisted that lie was not being paid anything for assisting Rivera. He also claimed that he

did not provide Rivera with any documents and had watched Rivera sig the landlord’s siaWre

on the lease agreement prior to coming to the DvIV.

5. An agent from Immigration Customs and Enforcement arrived and fingerprinted both

individuals. The person claiming to be Rivera was identified as Juan Manuel Soto Guzman. He

was found to be in the United States on an expired Visa from the Dominican Republic. Cuzman

was released to ICE.

6, Before lie left, Guzman told the Troopers that the defendant provided him with the

Residency Lease Agreement and die false documents. I-fe paid $800 for the documents and

$350.00 so that the defendant could provide help at the DMV. Guzman voluntarily showed

Trooper O’Leary his mobile phone displaying a series of text messages he said were from the

defendant’s phone. These messages coordinated the meeting and the location, the Puerto Rican

2

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driver’s license information and the defendant’s agreement to the $350.00 fee. The defendant

also voluntarily showed his phone. He only had text messages from that day. The previous text

messages had been erased and the defendant claimed to have erased the messages for storage

reasons. Trooper O’Leary also noticed that the defendant’s fingertips located on his left hand

were sliced. When asked, the defendant claimed to be in the United States on “Political Asylum”

and that he was an informant for the Boston Police Department.

7. While speaking with Guzman and the defendant, the Troopers learned that the defendant

was involved in aiding Guzman obtain a false identity. They learned that the defendant picked

up Guzman in Massachusetts and drove him to the DMV. He manufactured the false lease

agreement and provided it to Guzman as part of the identity package. The defendant signed the

landlord’s siiature and placed his phone number on the lease agreement in case someone

wanted to veri& the residency. He arranged to bring auzian to the DMV not once but they

previously attempted a couple days earlier. DMV footage showed the defendant filling out the

Driver’s License Application and the defendant used text messages to arrange the whole thing

days in advance.

8. The defendant was provided his Miranda Warning Rights in writing and he agreed to

continue to speak with the Troopers. The defendant sated that he gathered Rivera’s identity

information clait-ning to have performed a “background check” of the identity. He added he

performs backound checks on a number of people at a person’s request. The defendant

maintained that he did not provide other documents to Gunan. He said that he filled out the

Driver’s license application. The defendant explained that lie was introduced to Guzman by a

woman named “Cuba” and not the family connection the he had originally claimed. He said that

“Cuba” must have given Guzman the other documents. The defendant also said that he had been

3

A33

flying to help someone [meaning Guzmanj and was now in trouble because the guy he brought to

the DMV [meaning Guzmanj was not trustworthy and had something wrong with his documents.

This was the second time the defendant mentioned there was something wrong with the

documents. The troopers never said anything about the documents being fraudulent.

9. The defendant stated that he had an idea that Guzman was from the Dominican Republic

and not from Puerto Rico but, said he was only the translator. Later the defendant admitted lie

knew Guzman was from the Dominican Republic and was not Angel Berdos Rivera. Ruiz

admitted he was paid $50.00 to perform the background check on the Angel Berrios Rivera

identity and that he did provide the identity information to Guzman. He said he was paid S25.O0

for gas and $25.00 cash for assisting Guzman. The defendant furthered chat the real Angel

Berrios Rivera did not know that the defendant had obtained his personal information,

specifically: name, date of birth and social security number. The defendant also stated that he

was working with another male and female. The defendant stated that Miguel would take care of

him meaning that he would receive more than the $50.00.

10. The defendant was arrested for conspiracy due to his involvement with Guzman. He was

told that if his girlfriend could provide money for a cash bail, he could be released with a court

date. The defendant texted his girlfriend who agreed to come to Manichester.

II. While waiting for his girlfriend to arrive, the defendant expressed concern that his

girlfriend’s purse was located in his vehicle and ifhe was going to be transported to processing,

she would not be able to access the car as he had her car keys. He also told the Troopers that he

thought the vehicle might be broken into due to the purse.

12. The Trooper Dupont thought the purse was in plain view and offered to place the purse

out of sight under a seat. The defendant gave the officer verbal permission to enter the vehicle

4

A34

and hide the purse. The defendant told the Trooper where the vehicle was parked and gave the

Trooper the keys. The officer walked to the vehicle, opened the front driver side door and looked

inside. He did not see a purse. He then opened the passenger side door and looked for the purse.

On the floor. behveen the front seats he saw a lease agreement that looked like the one Guzman

and the defendant provided to the DMV and he saw a white envelope with handwriting saying

“Junior”, the number 25 (which was Rivera’s age) and the signature of “Angel Berrios Rivera”.

There was also a paper that displayed social security number results for “Angel Bethos Rivera”.

The Trooper seized the papenvork and exited the vehicle. The Trooper noted that this document

looked like a document in a similar case he investigaled in Concord NH. As he was exiting the

Trooper saw what looked like a purse stuffed between the front driver’s seat and the “B” pillar.

The Trooper placed the purse under the driver’s seat hiding it from sight,

13. Trooper Dupont returned and found the defendant was still speaking with Trooper

O’Leary. The defendant stated that he was not the big fish in all this and that his girlfriend was

not involved. Wben asked what he meant by that statement the defendant simply said “this” and

did not say anything further. Trooper Dupont asked if Guzman had left anything in the vehide

and the defendant said no. The Trooper asked for consent to search the vehicle and the

defendant agreed indicating that the Troopers would not find anything. The defendant then was

provided a written consent to search form and signed it.

14. The vehicle was searched, The Trooper found a black canvas bag containing several

pieces ofpaper with names, dates ofbthh, and social security number. The defendant vças

reminded of his Miranda Rights and the form that he signed was shown to him. He was asked if

he remembered the form and the defendant said yes. The defendant aeed to continue to speak

with the Troopers. The defendant claimed that Guzman owned those documents and that they

5

A35

must have come from the people that gave him the documents. Later the defendant admitted that

the social security documents came from mm. He said the lease agreement that was found in the

vehicle was what lie had used to create the lease agreement he provided to the DMV. The

defendant admitted the black bag belonged to him. The Trooper then asked the defendant about

each paper. The bag contained 64 identities with 55 being complete with names, dates of birth

and social security numbers. He said that the people owning the identities were not a;vare he

possessed them.

15. On or about November 18, 2015 the defendant filed a motion to suppress the documents.

The defendant argues that the entry into the vehicle was a warrantless search and the discovety

of the seizure of the documents did not fall under any of the exceptions to the warrant

requirement. The State objects.

LEGAL ANALYSIS

16. “Before a defendant’s statements made during a custodial interrogation may be used as

evidence against him, the State must prove beyond a reasonable doubt that he was warned of his

constitutional rights, that he waived those rights, and that any subsequent statements were made

knowingly, voluntarily, and intelligently.” State v. Johnson, 140 N.H. 573, 577 (1995).

However, where a person is not subject to a custodial interrogation, the defendant’s right to

Miranda warnings does not attach. State v. Carroll, 138 N.H. 687, 696 (1994).

17. Whether a defendant is in custody for purposes of Miranda is essentially a question of

fact, mid the (Hal court’s finding vill be upheld unless contrary to the manifest weight of the

evidence or the result of an error of law. State v. Cook, 148 N.H. 735, 740 (2002). A person is

in custody if formally arrested or restrained to the degree associated with formal arrest. j4 If

there has been no formal arrest, the trial court must determine the degree to which the suspect’s

6

A36

freedom of movement was curtailed, and how a reasonable person in the suspect’s position

would have understood the situation. Johnson, 140 N.H. at 578. To determine whether a

reasonable person in the defendant’s position would think he or she was in custody under this

standard, the trial court reviews the totality of the circumstances of the encounter, including “the

suspect’s familiarity with his surroundings, the number of officers present, the deEree to which

the suspect was physically restrained, and the interview’s duration and character.” State V.

Gnea. 142 N.H. 670, 675 (1998); State v. Camentier, 132 N.H. 123, 126 (1989).

18. “[A] defendant is not ‘in custody’ for Miranda purposes merely because his freedom of

movement has been curtailed so that he has been ‘seized’ in a fourth amendment sense.” State v.

Johnson, 140 N.H. 573, 578 (1995) (citing Berkemer v. McCarty, 468 U.S. 420, 439, 441-42

(1984)). In addition, a defendant’s staWs as a suspect does not convert an interview into a

custodial interrogation. State v. Portiue, 125 N.H. 352, 362 (1984). Therefore, Miranda

warnings are not required simply because the questioned person is one whom the police suspect.

Id.

19. The locus of police questioning is not determinative of custody. Compare Cook, 148

N.J-I. at 740 (defendant not in custody when he spoke with officers in a private area at the

defendant’s place of emp1oymen and State v. Pehowic, 147 N.H. 52, 55 (2001) (defendant not

in custody for Miranda purposes even though he was incarcerated) with State v. Mitchell, 113

N.H. 542, 543 (1973) (defendant in custody in police cruiser when he was handcuffed, told he

was under arrest and transported to the police department) and Kaupp v. Texas, 538 U.S. 626,

632-633 (2003) (defendant was in custody in his bedroom when he was awakened at 3:00 a.m.,

told by police that “we need to go and talk,” taken to a police cruiser in handcuffs, in underwear,

without shoes, to a crime scene and then the pollee station). In addition, a defendant’s status as a

7

A37

suspect does not convert an interview into a custodial interrogation. State v. Poie, 125 N.H.

352, 362 (1984). Therefore, Miranda warnings are not required simply because the questioned

person is one whom the police suspect. a20. Finally, a non-custodial situation is not converted to one in which Miranda applies simply

because a reviewing court concludes that even in the absence of any formal arrest or restraint on

freedom of movement the questioning took place in a “coercive environment,” because any

interview of one suspected ofa crime by a police officer will have coercive aspects to it. N.. For

instance, Miranda requirements are not imposed simply because the questioning takes place in

the station house. Id.

21. Again, the procedural safeguards established by the United States Supreme Court in

Miranda v. Arizona apply only to custodial interrogation. 384 U.S. 436, 478 (1966). (emphasis

added). “[W]here a person is not subject to a custodial interrogation, the obligation on the part

of the police to issue Miranda rights does not attach.” State v. Carroll, 138 N.H. 687, 696

(1994); Graca, 142 N.H. at 675; State v. Gravel, 135 N.H. 172, 176 (1991).

22. Here, the defendant was not in custody for purposes of Miranda when he was first being

questioned by polite. At this point the officers were interviewing the defendant as he was seen

in company of and appeared to be providing aid to a person attempting to acquire a New

Hampshire license by using false documents, Guzman had not yet been identified as being in the

country illegally and both parties were being interviewed at the same time. The officers had

reasonably suspected that a crime had occurred based upon the information they had received

from the Department of Motor Vehicles but were not sure which party had committed the crime

mid to what degree either party was involved. The defendant here was taken to a room in the

Department where the defendant had voluntarily travelled to and was not instructed that he was

8

A38

under arrest, or that his freedom had been restrained. Once the defendant implicated hhnselfin

the crime, officers provided him with Miranda warnings. The defendant continued to speak with

police even after signing the waiver, after being notified of his arrest and after the trooper

reviewed the waiver form with him a second time. These facts indicate that the defendant was

aware of his rights and voluntarily waived them.

CONCLUSION

23. The evidence was lawftilly obtained and shouW not be suppressed.

WHEREFORE, the State of New Hampshire respectftully requests that this Honorable

Court:

A) DENY the defendant’s Motion;

B) Schedule a hearing on the matter; and

C) Grant such other and further relief as may be just and proper.

DATED: November 30, 2015 Respectfully submitted,

Lexie Rojas, Esq. — Bar ID # 19272Assistant County AttorneyHilisborough County Attorney’s Office

300 Chestnut StreetManchester, N.H. 03101(603) 627-5605

CERTIFICATE OF SERVICE

I hereby certify that a copy of the within pleading has been forwarded on this day to Todd

Russell, Esq., counsel for the defendant.

Lexie Rojas, Esq.

9

A39

THE STATE OF NEW HAMPSHIRE

HILLSBOROUGH COUNTY SUPERIOR COURT

Hillsborough, ss. December Term, 2015

STATE OF NEW HAMPSHIRE

v. Docket No. 216-15-CR-699

FELIX RUIZ

MOTION TO SUBMIT ADDITIONAL FACTS

NOW COMES the defendant, Felix Ruiz, by and through counsel, Todd R. Russell,

and respectfully requests that this Honorable Court permit counsel to submit additional

facts to the record of the Suppression Hearing on December 2, 2015. SpeciFically,

counsel became aware of new information concerning the time that Trooper Dupont

arrived at the Manchester Division of Motor Vehicles substation and had contact with

Mr. Ruiz after the hearing had concluded,

In support of this motion, Mr. Ruiz asserts the following:

1. Mr. Ruiz is charged with three Class A Felony counts of Identity Fraud and

two Class A Misdemeanor counts of Receiving Stolen Property.

2. Defense counsel filed a Motion to Suppress Documents and a Motion to

Suppress Statements on November 18, 2015.

3. These Motions were scheduled for a hearing on December 2, 2015.

4. Just prior to the hearing, the State provided defense counsel with a disk

containing the May 28, 2015 surveillance videos at the Manchester Division of Motor

Vehicles substation, This disk had videos from three different areas of the substation at

A40

three different times. Counsel had not received copies of said videos prior to December

2, 2015.

5. At the Suppression Hearing, the State caNed one witness, State Polce

Trooper Richard Dupont.

6. Trooper Dupont testified under oath that he arrived at the Manchester

Division of Motor Vehicles substation at 1:00 p.m. on May 28, 2015,

7. Defense counsel subsequently viewed the DMV sunefllance videos on

December 3, 2015. The videos were time- and date-stamped. According to the time-

stamp on the DMV Main Lobby video, Trooper DLlpont arrived at the lobby of the

substation at 12:28:58 on May 28, 2015 and made contact with Mr. Rulz and Mr.

Guzman at 12:29:58,

8. The amount of time Trooper Dupont questioned and detained Mr. Ruiz

prior to administering Miranda rights was an integral part of defense counsel’s cross-

examination and legal argument. If counsel had been aware of the discrepancy

be’ieen the time-stamp of the Trooper’s arrival on the DMV Main Lobby video and the

Trooper’s recollection of his arrival time prior to the Suppression.Hearng, that would

have been part of both counsel’s cross-examination and legal argument. Due to the

State’s late disclosure of evidence, counsel was deprived of the opportunity to present

this information and incorporate it into cross-examination and legal argument at the

Suppression Hearing.

9. Defense counsel contacted Assistant County Attorney Lexie Rojas to

A41

obtain her position, but received no response prior to riling this motion.

WHEREFORE, Mr. Ruiz, by and through counsel, prays that this Honorable Court:

A. Permit counsel to add additional facts to the record of the December 2, 2015

Suppression Hearing;

B. Adopt the time-stamps of Trooper Dupont’s arrival at the lobby of the

substation at 12:28:58 on May 28, 2015 and contact with Mr. Ruiz and Mr.

Guzman at 12:29:58 as if these facts had been elicited during his testimony;

C. Hold a hearing on this motion if necessary; and

D. Order such other and further relief as justice may require.

Respectfully submitted,

Todd R. Russell, Esquire #14237Public Defender20 Merrimack StreetManchester, NH 03101(603) 66g-7888

CERTIFICATE OF SERVICE

I, Todd R. Russell, hereby certify that a copy of the foregoing has been forwardedthis day of December, 2015 to ACA Lexie Rojas.

Todd R. Russell, Esquire

A42

THE STATE OF NEW HAMPSHIRE

HJLLSBOROUGH COUNTY SUPERIOR COURT

Hilisborough, ss.December Term, 2015

STATE OF NEW HAMPSHIRE

v.Docket No. 216-15-CR-699

FELIX RUIZ

MOTION TO RECONSIDER COURT ORDER RE: MOTION TO SUPPRESS

Now comes the defendant, Felix Ruiz, by and through counsel, Todd R. Russell,and respectfully requests this Honorable Court reconsider its December 9, 2015 Order andsuppress all of the statements made and evidence seized as a result of the post-Mirandainterrogation conducted at the Division of Motor Vehicles substation in Manchester, NH byNew Hampshire State Police Troopers Richard Dupont and James O’Leary on May 28,2015. The statements and evidence were obtained in violation of Mr. Ruiz’s constitutionalrights under the Fourth, Fifth, and Fourteenth Amendments to the United StatesConstitution and Part I, Articles 15 and 19 of the New Hampshire Constitution.

In support of this motion, Mr. Ruiz asserts the following:

FACES

1. Defense counsel filed a Motion to Suppress Statements and a Motion toSuppress Documents on November 18, 2015.

2. The State riled Objections to the Defendant’s Motions to Suppress onNovember 30, 2015,

3. On December 2, 2015, the Court (J. Smukier) held a Suppression Hearing

A43

in the above-captioned matters. One witness, New Hampshire State Trooper Richard

Dupont, testified at the hearing.

4. Trooper Dupont testified that he arrived at the Division of Motor Vehicles

substation in Manchester, NH on May 28, 2015 at 1:00 p.m. Just prior to the

Suppression Hearing, the State provided defense counsel with a disk containing the May

28, 2015 surveillance videos at the substation. According to said videos, Trooper

Dupont arrived at the lobby of the substation at 12:28 p.m. and had contact with Mr.

Ruiz and Mr. Guzman at 12:29 p.m.

5. Defense counsel sLibsequently filed a Motion to Submit Additional Facts on

December 3, 2015, and asked the Court to adopt the time-stamps of Trooper Dupont’s

arrival at the lobby of the substation and contact with Mr. Ruiz and Mr. Guzman on May

28, 2015 as if these facts had been elicited during his testimony.

6. After making contact with Mr. Ruiz and Mr. Cuzmsn, Trooper Dupont

escorted both of them to rear offices in the non-public area of the substation. Trooper

O’Leary met him there and they separated Mr. Ruiz and Mr. Guzman in order to

interview them.

7, Trooper Dupont spoke with Mr. Ruiz in a 10 Foot by 10 foot windowless

room with one door. He did not Mirandize Mr Pui7 at the outset of this interview. He

also did not advise Mr. Ruiz that he could leave or did not have to answer questions.

8. At some point early in the interview, one of the troopers contacted

Immigration and Customs Enforcement. Agent Alex Godinez arri’ied and fingerprinted

Mr. Rula and Mr. Guzman to confirm their identities.

A44

9. Mr. Guzman was subsequently taken into custody by Agent Godinea. Prior

to his departure, Mr. Guzman showed text messages on his cell phone to Trooper

O’Leary. These texts purported to be from Mr. Ruiz.

10. Trooper Dupont confronted Mr. Ruiz about the content of these text

messages, and Mr. Ruiz admitted to falsifying a lease agreement for Mr. Guzman.

11. After interviewing Mr. Ruiz for approximately two hours and fifty minutes

and procuring these admissions, Trooper Dupont reviewed a State of New Hampshire

Department of Safety Division of State Police Statement Form with Mr. Ruiz. This form

contains the Miranda rights on it.

12. Mr. Ruiz initialed that he understood his Miranda rights and was willing to

answer questions. He signed and then wrote a statement in the lines below.

13. In the written statement, Mr. Ruiz admitted that he placed his phone

number on the lease agreement, but denied signing his name on the lease.

14. Trooper Dupont reviewed the written statement and observed that it was

not consistent with what Mr. Ruiz had admitted to him prior to the review of Miranda

rights. He brought this inconsistency to Mr. Ruiz’s attention. Mr. Ruiz turned over the

statement and wrote that he did sign the landlord’s name as requested.

15. Trooper O’Leary joined the interrogation subsequent to the Miranda

review. He and Trooper Dupont continued to question Mr. Ruiz for several more hours.

At some point, they decided to charge Mr. Ruiz with Conspiracy and informed him that

he could be released on $310 cash bail. Mr. Ruiz said that he did not have the cash to

A45

post hail, and the troopers gave him the opportunity to text his girlfriend. She Indicated

that she would come to Manchester.

16. While waiting For his girlfriend to arrive, Mr. Ruiz became concerned about

leaving her purse in the van. Trooper Dupont offered to locate the purse and place it

out of sight, and Mr. RLIiz verbally gave him permission to do that.

17. Trooper Dupont proceeded to Mr. Ruiz’s van and looked inside. He

seized three items from the interior: a lease agreement, a white envelope with some

writing on it, and an online search for social security iesuts. He brought those items

back to the substation, but did not show them to Mr. Ruiz.

18. Trooper Dupont asked Mr. Ruiz ii he would consent to a search of the

van, and Mr. Ruiz agreed. The trooper subsequently searched the van and seized a

black bag.

19, He returned to the substation and reminded Mr. Ruiz of Ms Miranda

rights. The trooper then proceeded to question Mr. Ruiz about the documents he had

seized earlier as well as the items he found inside the black bag. These items included

documents bearing the names, dates of birth, and social security numbers of numerous

individuals.

20. Mr. Ruiz was sLThseqLIenLly charged with identity fraud for assisting Mr.

Guzman and with possessing stolen property Found inside the black bag and in his

wallet,

21. The Court (1. Smukler) issued an Order on December 9, 2015, ruling that

.7

A46

the State failed to sustain its burden of showing that the defendant was not in custody

starting at the time of the ICE fingerprinting. It granted the Motion to Suppress

Statements made by the defendant from that time until he waived his jranda rights.

The Court also ruled that the State had sustained its burden of showing that the

statements made before the ICE fingerprinting and after the Miranda waiver did not

violate the defendant’s constitutional rights, and denied the Motions to Suppress

Statements and Motion to Suppress Documents in all other respects.

22. After a jury trial on December 10 and 11, Mr. Ruiz was convicted of two

Class A Felony counts of Identity Fraud (alternate theories) and one Class A

Misdemeanor count of Receiving Stolen Property.

LEGAL ARGUMENT

CONSIDERING THE TOTALITY OF THE CIRCUMSTANCES, THE POST-MIRANDA STATEMENTS MADE BY MR. RUIZ WERE INVOLUNTARY.

23. In New Hampshire, the Court has applied a “part I, article 15 due process

voluntariness inquiry and ask[edj whether considering the totality of circumstances, the

second confession is the product of an essentially free and unconstrained choice.” State

v. Aubuchont, 141 N.H. 206, 209 (1996) (citations and quotations omitted). This totality

of the circumstances analysis includes the following factors:

the time lapse between the initial confession and the subsequentstatements; the defendant’s contacts, if any, with friends or familymembers during that period of time; the degree of police influenceexerted over the defendant; whether the defendant was advised that [his]prior admission could not be used against [him]; or whether thedefendant was told that [his] previous statement could be used against[him].

A47

State v. Fleetwood, 149 N.H. 396, 405 (2003) (quotinq United States v. Wauneka, 770

R2d 1424, 1440-41 (9th Cii. 1985)). None of these factors are dispositive by

themselves, but some carry greater weight than others.

24. In Aubuchont, the defendant’s three-week-old son was admitted to the

Elliot Hospital in Manchester, NH for treatment of a broken leg, and medical personnel

contacted DCYF. 141 N.H. at 206. DCYF notified the Manchester Police, and two officers

want to the hospital to interview the defendant. 141 N.H. at 207. The officers did not

Mirandize the defendant prior to the interview, and he admitted that he had struck the

child several times. Id. When the interview ended, the offlcers told him to report to the

police station the next day. Id. When the defendant arrived at the station the following

afternoon, he was informed that he was going to be arrested and was advised Of his

Miranda rights. Id. He confessed to striking the child again, and prepared a written

statement admittina to the assault. Id. The Superior Court found that the defendant

was in custody during the hospital interview and suppressed those statements, but

admitted the subsequent statements he made at the police station. jç[

25. The Aubuchont Court applied the totality of the circumstances analysis to

these facts and upheld the Superior Court’s ruling, In so doing, it gave great weight to

the lapse of time between the statements made by the defendant at the hospital and

the statements made by the defendant at the police station. The interviews took place

approximately 17 hours apart and, during that period, the defendant was not in

custody. fl at 209.

26. In Fleetwood, the defendant found her two-month-old son dead in his

A48

bassinet. 149 N.H. at 397. The Manchester Police condUcted an investigation into the

infant death which included Interviews of the defendant at the police station. The first

interview began at approximately 5:30 p.m. and lasted For two and a half hours. flat

399. The detectives did not Mirancfze the defendant prior to beginning the interview,

and she admitted that she held her son hard against her chest and this caused him to

struggle to breathe or not breathe. fl at 400. At 8:00 p.m., the detectives decided to

take a break and advise the defendant of her Miranda rights. fl They asked her if she

wanted a break to use the bathroom, or to eat or drink, and she said “no.” ij

Approximately 17 minutes later, the detectives returned and reviewed Miranda with the

defendant. Id. She then wrote out a statement admitting that she had smothered her

son. Id. at 401. When the defendant finished her statement, the detectives again

offered her a break, use of the bathroom, and food or drink, It The defendant took a

cigarette and a bottle of water, but did not leave the room. flme detectives then

subsequently recorded three taped interviews with the defendant where she made

additional admissions, The Superior Court found that these post-Miranda statements

were voluntary, fl at 402.

27. The Fleetwood Court applied the totality of the circumstances analysis to

these facts and concluded that the Superior CoLirt’s ruling was not against the manifest

weight of the evidence. Nonetheless, the Court found that the absence of a time lapse

between the unwarned statement and the warned statements is “important and

sometimes critical evidence in the totality of the circumstances test.” fl at 407.

Specifically, “[w]ithout a significant break between the unwarned statement and the

A49

Miranda warnings, an accused may not have the opportunity to be free from the

pressure of continuous interrogation and to reflect on the seriousness of [his]

situation.” a This absence of a time apse creates a reasonable doubt as to the

voluntariness of the confession. Id. Because the defendant was given the opportunity to

take a break and no other factors were present, the Court held that the post-Miranda

statements were voluntary.

28. Unlike the defendants in Aubuchont and Fleetwood, the totality of

circumstances in the case at bar show that Mr. Ruiz’s post-Miranda statements to

Troopers Dupont and O’Leary were involuntary. First, there was absolutely no time

lapse between Mr. Ruiz’ admissions to Trooper Dupont about the lease agreement and

the review of Miranda warnings. As illustrated in Fleevood, this absence of a time

lapse in and of itself creates a reasonable doubt as to the voluntariness of Mr. Ruiz’s

confession, Once Mr. Ruiz admitted that he had falsified a residential lease agreement

for Mr. Guzman, the Trooper immediately reviewed the Department of Safety — Division

of State Police Statement Form with him. Mr. Ruiz was not afforded [he opportunity foi

a break prior to this review, He was not able to be free from the pressure of continuous

questioning or to reflect on the seriousness of his situation, He waived his rights and

then wrote out a statement. Trooper Dupont reviewed the statement and concluded

that it was insufficient because it was different from what Mr. Ruiz had just admitted to

the trooper. Trooper Dupont had him turn over the statement and write a correction.

The written statement was a repetition of Mr. Ruiz’s verbal pie-Miranda statement, and

therefore it was clearly a product of said statement,

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A50

29. Second, Mr. Ruiz did not have any contacts with friends or family

members until lie had been arrested and was attempting to arrange for bail to be

posted, He did not have the cash available to post $310 bail, so he texted his girlfriend.

This contact occurred well after the Miranda warnings at 3:20 p.m., but prior to the two

searches of his van. The consent form was signed at 6:35 p.m., so this contact occLlrred

at some point alter 3:20 p.m. and before 6:35 p.m.

30. Third, Troopers Dupont and O’Leary exerted influence over Mr. Ruiz from

the moment that they had contact with him at the DMV substation. Trooper Dupont

escorted Mr. Ruiz out of the public area to the rear offices. Mr. Ruiz stayed in a 10 root

by 10 foot windowless room with one door during the entire inten’iew process except

when he was moved to another room in the non-public area (the lunchroom) after the

substation dosed, The troopers did not permit him to leave the office without an escort

(even to go to the bathroom) and one of them monitored him the entire time. There

was never any offer to take a break or stop the interrogation. This shows that the

troopers continued to exert influence over Mr. Ruiz during the six-plus hours he was at

the substation, and were in fact taking advantage of the situation to exploit the

inherent pressures of custodial interrogation.

31. Fourth, there Ts no evidence that Trooper Dupont ever advised Mr. Ruiz

that his prior admission could not be used against him, The trooper’s actions seem to

suggest that he believed that it could not be used since he had Mr. Ruiz complete a

written statement that repeated his prior verbal admission.

32. Fifth, there is no evidence that Trooper Dupont ever advised Mr. Ruiz that

9

A51

his previous statement could be used against him. However, Trooper Dupont did testi’

that, during the interview that preceded the Miranda warnings, he did not tell Mr. Ruiz

that he could leave or that he could decline to answer questions.

33. As illustrated in paragraphs 28 through 32 above, Trooper Dupont

employed an approach of questioning first to elicit and commit Mr. RLIiz to a confession

before giving Miranda warnings. As a result, the warnings themselves had no effect. It’s

as if they were never given to Mr. RLIiz. This is precisely the type of approach the

United States Supreme CoLirt warned against in MissoL’riv.Seibeft. Where Miranda

warnings are delivered midstream, the Court illustrated the factors that bear on

whether these warnings could be effective enough to accomplish their object:

the completeness and detail of the questions and answers in the firstround of interrogation, the overlapping content of the two statements, thetiming and setting of the first and the second, the continuity of policepersonnel, and the degree to which the interrogator’s questions treatedthe second round as continuous with the first.

Missouri v. Seibert, 542 U.S. 600, 615 (2004). All of these factors are present in this

case. The same individual — Trooper Dupont — conducted the interviews in the same

setting — the supervisor’s office in the DMV substation. Trooper Dupont treated the

interviews of Mr. Ruiz in this case as if they were part of one continuous conversation.

He continued to ask the same questions of Mr. Ruiz and cover the same content with

him in the post-Miranda interview as he did in the pre-Niranda interview. The interviews

occurred one after another in sequence. Delivering the Miranda warnings in the middle

of a custodial interrogation did not allow Mr. Ruiz a real choice beb’,een talking and

remaining silent. id. at 613-14 (holding that “when Miranda warnings are inserted

I ()

A52

in the midst of coordinated and continuing interrogation, they are likely to mislead and

‘deprive a defendant of knowledge essential to his ability to understand the nature of

his rights and the consequences of abandoning them”) (quoting Moran v. Burbine, 475

U.S. 412 (1986)). At the time that the Mirnda warnings were administered, Mr. Ruiz

had been answering questions from Trooper Dupont for two hours and fifty minutes,

and had no genuine belief that lie could remain silent.

34. The post-Miranda statements made by Mr. Ruiz in this case were clearly

the fruit of the initial unwarned questioning by Trooper DLlpont. His post-Miranda

written statement just repeated what he told the Trooper pre-Miranda. There was nD

break between the unwarned statement and the warned statements, marking the

absence of a time apse which is the most critical and important factor in the totality of

the circumstances analysis. This absence of a time lapse between the statements

creates a reasonable doubt as to the voluntariness of Mr. RLIiz’s post-Miran4

statements. Since his waiver of rights was not the product of an essentially free and

unconstrained choice, it is therefore involuntary.

35. Considering alt five factors and applying the totality of the circumstances

analysis, the Court should conclude that the taint of the Miranda violation had not

sufficiently dissipated to permit the introduction of the post-Mira statement as well

as any evidence that was obtained as a result of this statement. This includes the items

seized by Trooper Dupont from Mr. Ruiz’s van pursuant to the plain view exception as

well as those seized during the consent search of the van,

WHEREFORE, Mr. Ruiz, by and through counsel, prays that this Honorable Court:

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A53

A. Reconsider its December 9, 2015 Order; and

B. Rule that any and all evidence obtained by the State pLirsuant to, lollowing,

or as a result oV the post-Miranda interrogation of Mr. Ruiz be suppressed;

and

C. Order such other and further relief as justice may require.

RespEctfully submilted,

71.’ 7is( (I

_____________ _____________________

Todd R. RLISS&I, Esquire #14237Public Defender20 Merhmack StreetManchester, NH 03101(603) 669-7888

CERTIFICATE OF SERVICE

1, todd R. Russell, hereby certify that a copy of the foregoing has been for-wardedthis 2jt day of December, 2015 to ACA Lexie Rojas

Todd R. Russell, Esquire

I”

A54

THE STATE OF NEW HAMPSHIRE

HILLSBOROUGH, 55. SUPERIOR COURTNO. 216-2015-CR-699 NORTHERN DISTRICT

THE STATE OF NEW HAMPSHIRE BV. DEC 312015

FELIX RUIZBy

STATE’S OBJECTION TO DEFENDANT’S MOTION TO RECONSIDER COURTORDER RE: MOTION TO SUPPRESS

NOW COMES the State of New Hampshire, by and through the Hilisborough County

Attorney’s Office, with this objection, and states as reasons in support the following:

I. The defendant was found guilty of 2 class felony A charges of Identity Fraud and one

misdemeanor A count of Receiving Stolen Property.

2. On May 28, 2015, the defendant, Felix Ruiz, and Juan Guzman were reported to the New

Hampshire State Troopers due to their suspicious activity and were suspected of the crime of

Identity Fraud. Troopers Dupont and 01 Leaiy responded and arrived at approximately 12:30 PM

and addressed the two individuals a few minutes after. Trooper Dupont spoke with the defendant

and initially the defendant explained to the State Troopers that that the defendant was a mere

translator, transporter and witness to the actions of Mr. Guzman. However, the defendant also

asked if there was something wrong with the documents submitted to the DMV. Trooper Dupont

found this odd and this heightened his suspicions. He obtained information regarding this story,

which included the defendant’s relationship to the co-defendant and how they came to be at the

DMV that afternoon. While discussing this story, Immigration and Customs Enforcement (ICE)

arrived and fingerprinted both individuals. It was discovered that Mr. Guzman was found to be

here illegally and operating under a false identity and taken into custody. The defendant’s

1

A55

identity was confirmed as true and the defendant was cleared by ICE. ICE involvement ceased

that day and the agent left the premises.

3. The Trooper then resumed his discussion with the defendant. The defendant admitted to

helping Mr. Guzman forge a lease agreement which he then submitted to the DMV to establish

the co-defendant’s residency. Miranda was read and the defendant provided a written statement

at about 3:20 PM. The statement did not reflect the defendant’s most recent account of his

involvement; instead the defendant reiterated his first account, lie trooper asked the defendant

about the written statement and the defendant corrected it. Trooper O’Leary then entered the

room. Bail was discussed, the defendant called his girlfriend and asked her to bring bail money.

The parties then waited a number of hours for the girlfriend to arrive, While they waited, the

defendant provided consent to Trooper Dupont to enter his vehicle with the purpose to locate and

hide a purse. There Trooper Dupont found additional documents which suggested that the

defendant was more involved in the crime then he originally stated. The Trooper asked the

defendant for consent to search the vehicle. The defendant consented to a search of his vehicle

and a number of documents were found. The defendant was then reminded of his rights and was

asked about the documents found in the vehicle.

4. “Custody entitling a defendant to Miranda protections requires formal arrest or restraint

on freedom of movement of the degree 383 associated with formal arrest.” State v. Tunnel, 150

N.H. 377, 382-83(2003). When deciding whether there is custody when there has been no formal

arrest, the court must determine the degree to which the suspect’s freedom of movement was

curtailed by considering how a reasonable person in the suspect’s position would have

understood the situation. State v. Graca 142 N.H. 670, 675 (1998). A defendant is not in

custody for Miranda purposes, however, merely because his freedom of movement has been

2

A56

curtailed so that he has been “seized” in a Fourth Amendment sense. State v. Turmel, 150 N.H.

377, 383(2003); clang State v. Johnson, 140 N.H. 573, 578 (1995).

5. A person is considered “seized” if, in view of all the circumstances surrounding an

investigatory stop, a reasonable person would have believed that he was not free to leave. jgje

v. Tunnel, 150 N.H. 377, 383(2003). During an investigatory stop, a reasonable person may not

feel free to leave, because, in fact, he is not free to leave. State v. Turmel, 150 N.H. 377,

383(2003). The court recognizes that the police may temporarily detain a suspect for

investigatory purposes. State v. Turmel, 150 N.H. 377, 383(2003), citing State v. Reid, 135 N.H.

376, 380; see also Teny, 392 U.S. at 16, 88 S.Ct. 1868. “Such temporary custody does not,

however, constitute custody for Miranda purposes and, therefore, Miranda warnings are not

triggered.” State v. Turmel, 150 N.H. 377, 3 83(2003); See Berkenie,; 468 U.S. at 439, 104 S.Ct.

3138; State v. Grey, 148 N.H. 666, 670, 813 A.2d 465 (2002); Hamel, 123 N.H. at 675- 76, 466

A.2d 555.

6. In this case, the defendant was initially the subject ofan investigatory stop, during which

he was lawthhly detained. “During a legal investigatory stop, an officer may ask the detainee a

moderate number of questions to determine his identity and to try to obtain information

confirming or dispelling the officer’s suspicions.” State v. Tunnel, 150 N.H. 377, 383(2003).

However, the scope of the stop must be carefully tailored to its underlying justification—to

confirm or to dispel the officer’s particular suspicion. Id. The stop must last no longer than is

necessary to effectuate its purpose. ffl.

7. An investigatory stop may “metamorphose into an overly prolonged or intrusive

detention (and, thus, become unlawful).” Id. Whether the detention is a lawful investigatory stop

or goes beyond the limits of such a stop depends upon the facts and circumstances of a particular

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A57

case.. lfthe detention was within the scope of an investigatory stop, the defendant will not be

deemed in custody for purposes of Miranda. Id. citing Teny, 392 u.s. at 20—29, 88 S.Ct. 1868.

8. At no tine was the detainment unnecessarily prolonged and at all times the questions

related to the initial justification for the stop. Initially the officers suspect both parties of Identity

Fraud. The defendant provided suspicious statements which lead the Trooper to believe that he

knew that the documentation was false. The two suspects were detained and inten’iewed

separately. To confirm identity, given the nature of the crime suspected, any identifying

document or documents provided by the defendant or his co-defendant were unreliable. ICE

fingerprinting the two individuals was necessary to determine identity. ICE’s involvement was

minimal with respect to the defendant as lie is cleared and iCE leaves the premises. Therefore

the time it took to process this information was necessary. It is confirmed that the co-defendant

is an imposter the co-defendant also provided a story that was different from what the defendant

told Trooper Dupont. When the defendant confessed to fraudulently signing the lease

agreement, the functional equivalent of arrest occurred and the Trooper read the defendant his

Miranda Rights. The defendant then waived those rights and provided a confession. The

defendant was then formally arrested.

9. After his arrest, additional information is obtained. The defendant is reminded of his

rights and continues to speak with the Troopers and provides a detailed account of his

participation in a larger Identity Fraud operation.

10. The defendant’s rights were not violated and they were voluntary. The pre-Miranda

statements were made to a single State Trooper in a room where the defendant sat closest to the

unlocked door.

WHEREFORE, the State respectflully prays this Honorable Court:

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A58

A. Deny the defendant’s motion to reconsider;

B. Grant any other and finlher relief as may be just and proper.

DATED: December 30, 2015 RespectMly submitted,

Lexie Rojas, #19272Assistant County Attorney

CERTIFICATIONI hereby certify that a copy of the foregoing was forwarded to Todd Russefl, attorney for

the defendant.

Lexie Rojas, Esq.Assistant County Attorney

5

A59

THE STATE OF NEW HAMPSHIRE

HILLSSOROUGH COUNTY SUPERIOR COURT

Hilisborough, ss. December Term, 2015

STATE OF NEW HAMPSHIRE

v. Docket No. 216-15-CR-699

FELIX RUIZ

MOTION TO RECONSIDER COURT ORDER RE: MOTION TO DISMISS

Now comes the defendant, Felix Ruiz, by and through counsel, Todd R. Russell,

and respectfully requests this Honorable Court reconsider its December 11, 2015 Order

and dismiss the above-captioned matters because the State failed to prodLice evidence

sufficient to support a conviction for any of the charges. Alternately, the defendant

requests that, pursuant to Superior Court Rule 105, this Honorable Court set aside the

verdict rendered in the above-captioned matters and find Mr. Ruiz not guilty of two counts

of Identity Fraud and one count of Receiving Stolen Property.

In support of this motion, Mr. Ruiz asserts the following:

FACTS

1. At the close of the State’s case on December 11, 2015, the defendant

made an oral motion to dismiss the above-captioned indictments and information on

the grounds that no rational trier of fact, viewing all the evidence and all reasonable

inferences from it in the light most favorable to the State, could find guilt beyond a

reasonable doubt.

2. The Court (J. Smukler) denied the defendant’s motion with respect to

AGO

three out of the four pending indictments and informations, and permifted the case to

go to the jury. However, the Court indicated that it would give defense counsel 10 days

to file a supplement to this oral motion.

3. Mr. Ruiz was subsequently found guilty of two Class A Felony counts of

Identity Fraud (alternate theories) and one Class A Misdemeanor count of Receiving

Stolen Property.

LEGAL ARGUMENTS

1. ThTERMS “ANOTHER PERSON” AND “A PERSON.” AS USED INRSA 638:26, MEAN A REAL PERSON.

4. RSA 638:26(I)(a) provides, “[a] person is gLIifty of identity fraud when the

person . . . [p]oses as another person with the purpose to defraud in order to obtain

money, credit, goods, services, or anything else of value.” The first Identity Fraud

indictment (charge ID#1158935C) alleged that “Felix Ruiz, acting in concert with and/or

aided by Juan Manuel Soto Guzman, with the purpose to defraud in order to obtain

money, credit, goods, services, or anything else of value, aided Juan Manuel Soto

Guzman to pose as another, AnQel Berrios Rivera, when he recorded personal

identifyino information, the name Angel Berrios Pdvera, on an applicaUon for a New

Hampshire Driver’s License,”

5. RSA 638:26(I)(c) provides, “[a] person is guilty of identity fraud when

the person . . . [ojbtains or records personal identifying information about a person

without the express authorization of such person in order to assist another to pose as

such person.” The second Identity Fraud indictment (charge ID# 1 158936C) alleged that

“Felix Ruiz, acting in concert with and/or aided by Juan Manuel Soto Guzman, purposely

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A61

r

obtained or recorded personal identifying information, a name, about another, Angel

Berrios Rivera, without that person’s express authorization, with the purpose to aid

another to pose as that person.”

6. In response to the defendant’s motion to dismiss, the State argued that

the phrases “another person” and “a person” in RSA 638:26 inclUde someone who does

not exist — a fictitious person. In so doing, the State implied that an indictment that

alleges that Mr. Ruiz posed as “another person,” assisted another to pose as “another

person, or recorded personal identifying information about “another” can be supported

by evidence that he posed or assisted another to pose as a fictitious person; the State

insisted that it need not prove that Angel Berrios Rivera was a real person.

7. The defendant concedes that is a crime for an individual to obtain

something of value by misrepresenting himself as a fictitious person. RSA 637:4

criminalizes theft by deception. Under that statute, “[a] person commits theft if he

obtains or exercises control over property of another by deception and with a purpose

to deprive him thereof.” RSA 637:4(I). “Deception” occurs when a person purposely

“[c]reates or reinforces an impression which is false and which that person does not

believe to be true.” RSA 637:4(10(a). “Properly” means “anything of value.” RSA

637:2(J). Thus, obtaining something of value by misrepresenting oneself as a fictitious

person constitutes the crime of theft by deception.

8. Misrepresenting oneself as a fictitious person does not additionally

constitute the crime of identity fraud under RSA 638:26(fl(a) or (I)(c). Unlike theft by

deception, identity fraud specifically identifies the individual whose identity is stolen as

A62

a victim of the offense. RSA 638:25(111) (“‘[v]ictim’ means any person whose persona!

identifying information has been unlawfully obtained or recorded”). if such a victim

resides in New Hampshire, then the offense is deemed to have occurred in New

Hampshire, RSA 638:27. Upon conviction, the provision entitles such a victim to

restitution. RSA 638:26(111) (“[a] person found guilty of vioating any provisions of this

section shall . . . be ordered to make restitution for economic loss sustained by a victim

as a result of such violaton”).

9. A second notable difference between theft by deception and identity fraud

is the grade of the offense. Theft by deception is most often graded according to the

value of the property obtained. See RSA 637:11. If the value of the property exceeds

$1500, the theft constitutes a Class A Felony RSA 637:11(I)(a). If it is between $1000

and $1500, the theft constitutes a Class B Felony. PSA 637:11(I1)(a). Other factors,

such as the status of the property as a firearm, the defendant’s prior record, or an

intent to resell the property can also elevate the grade of the offense. RSA

637:11(I)(b)-(c), (H)(b)-(g). if, however, the value of the property does not exceed

$1000 and no other aggravating factor exists, then Welt by deception constitutes an

unclassified misdemeanor. RSA 637:11(111).

10. Identity fiaud, by contiast, always constitutes a Class A Felony, regardless

of the amount of the property involved or any other factor. RSA 638:26(11). As such, it

is always punishable by a sentence of incarceration of up to fifteen years, even if the

value of the property at issue is minimal. RSA 651:2(Ifl(a).

11. Matters of statutory construction are reviewed de qgo. Mountain View

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Park v. Robson, 123 A.3d 711, 712 (NH. 2015). The Court is “the ñnal arbiter of the

intent of the legislature as expressed in the words of the statute considered as a

whole.” flat 713. Provisions of the criminal code are construed “according to the fair

import of their terms and to promote justice.” RSA 625:3; State v. Pinault, 120 A.3d

913, 915 (N.H. 2015). The Court “first exmine[s] the language of the statute and

ascribe[s] the plain and ordinary meanings to the words used.” N1 Properties, LLC v.

Town of Auburn, 122 A.3d 977, 980 (N.H. 2015) (citing Eby v. State, 166 N.H. 321, 341

(2014)). It will “interpret legislative intent from the statute as written and will not

consider what the legislature might have said or add language that the legislature did

not see fit to include.” Its “goal is to apply statutes in light of the legislature’s intent

in enacting them and in light of the policy sought to be advanced by the entire statutory

scheme.” Id. (citing Henderson Holdings at Suaar Hill v. Town of Sugar Hill, 164 N.l-I.

36, 39 (2012)).

12. “Where the language of a statute is plain and unambiguous, [the Court]

need not look beyond the statute itself for further indications of legislative intent.”

Mountain View Park, 123 A.3d at 713 (citing Petition of Malisos, 166 N.H. 726, 729

(2014)), Here, RSA 638:26 prohibits “a person,” under specified circumstances, from

“[pjos[ing] as another person” or “[o]btain[ingj or record[ing] personal identifying

information about a person.” RSA 625:11(11) provides that “[pierson’... include[s]

any natural person and, a corporation or an unincorporated association.” Both terms

“another person” and “a person” therefore plainly and unambiguously mean a real

person.

A64

13. When the legislature uses a noun in a statute, it refers to a real entity.

See State v. Van Buren, 746 N.W.2c1 545, 548 (Wis. Ct. App. 2008) (“‘real’ is implied in

the general understanding of most nouns”). No one could credibly claim, for instance,

that the word “death,” as used in homicide statutes, RSA 630:1-630:3, can reasonably

be read to include staged, literary, or other fictitious deaths. Nor could anyone tenably

claim that “fire,” as used in the arson statute, RSA 634:1, can reasonably be interpreted

to include a fictitious fire consisting of strips of fabric, a light, and a fan.

14. A Lexis-Nexus search indicates that the phras2 “anothor person’ is used in

22 New Hampshire statutes. In none of these statutes can “another person”

reasonably be interpreted to include a fictitious person. No one could reasonably

maintain, for instance, that a handicapped license plate should issue to someone who is

able to walk only with assistance from an imaginary person. RSA 261:88(I)(c)(2). No

one could reasonably claim compliance with RSA 270-D:3, governing motorboat towing

of water skiers and aquaplanes, as long as a fictitious person is present to assist the

motorboat operator, Finally, no reasonable prosecutor would consider charging a

defendant with aggravated felonious sexual assault, RSA 632-A:2(I), based on an

allegation that he had sexual intercourse with a fictitious person.

15. Where Ihe legslatute intends to refer both to a noun and to some fictional

representation of that noun, it says so expressly. Armed robben, for instance, occurs

when the defendant is either “actually armed with a deadly weapon,” or “fr]easonably

appear[s] to the victim to be armed with a deadly weapon.” RSA 636:1(1H)(a), (b).

The controlled drug statute prohibits specified conduct involving both “any controlled

A65

drug,” and “any substance which [the defendant] represents to be a controfled drug.”

RSA 318-6:2(1), (I-a). RSA 649-B:4(I) prohibits Using a computer to seduce either “a

child” or “another person believed by the [defendant] to be a child.”

16. Similarly, where the legislature intends to criminalize conduct involving

false identification regardless of whether the identification provided belongs to a real

person, it has done so clearly. RSA 265:4(I)(b), for instance, prohibits a driver from

“[gJiv[ing] a false name, date of birth, address, name and address of the owner of such

vehicle, or any other false informaUon to a law enforcement officer that would hinder

the law enforcement officer from properly idenUfying the person in charge of such

motor vehicle.” RSA 5-C:14(fl)(d) prohibits specified conduct involving a birth certificate

“which is false in whole or in part or which relates to the birth of another person,

whether living or deceased.”

17. Other state legislatures have had no difficulty drafting statutes that

clearly prohibit conduct involving identifications of fictitious people. See, e.g., Ala. Code

§ 13A-8-194(a) (“identification documents or identifying information of another person

or a fictitious person”); Ariz. Rev, Stat. Ann. § 13-2008(A) (“identifying information of

another person or entity, including a real or fictitious person or entity”); Cal. Penal Code

§ 484f(b) (“signs the name of another or of a fictitious person”); Cob. Rev. Stat. § 18-

5-113(1)(a), (b) (“[a]ssumes a false or fictitious identity”); Fla. Stat, § 817.568(g)

(“counterfeit or fictitious personal identification information concerning a fictitious

person, or concerning a real person”); Ga. Code Ann. § 16-9-1(b) (“in a fictitious

name or in such manner that the writing . . . purports to have been made by

7

A66

another person”); La. Rev. Stat. Ann, § 1’1:70.2(A) (“a false or fictitious name or

any other identifying information . . . of any other person”); Minn. Stat. § 609.625,

subd. 1 (“purports to have been made by another or .... under an assumed or

fictitious name”); Miss. Code Ann. § 97-19-8S(2)(a) (“furnish false information ... with

intent to deceive anyone as to his true identity’); Mo. Rev. Stat. § 570.223(1) (“one or

more means of idenbflcation not lawfully issued for his or her use’); N.]. Stat. Ann. §

2C:21 17(a)(1) (“[i]mpersonates another or assumes a false identity”); Or. Rev. Stat. §

165.800(4)(a) (“‘[a]nother person’ meanE an individual, wh*er living or deceased, [or]

an irnagina’ person”); Tex. Penal Code § 38.02(b) (‘fa or fictitious name”). Had the

legislature here intended to include posing as a fictitious person in RSA 638:26, it would

have done so. See 3M] Properties, LLC, 122 A.3d at 980 (the Court “will not... add

language that the legislature did not see fit to include”),

18. It would promote justice to exclude posing as a flctitious person from the

scope of RSA 638:26. As mentioned in paragraphs 7-10 above, such conduct &ready

constitutes the crime of theft by deception. “[TJhe use of the means of identification of

another real person”, however, “is particularly potent and Uerefore a particular threat.”

United States v. Jimenez, 507 F.3d 13, 20 (1st Cir. 2007). ‘A raise identity built on the

bedrock foundation of real means of idunhifLabon . . . piovides better cover for the

wrongdoer than would one based on wholly fabricated identities. . . . From a deterrence

perspective, a stiffer penalty is logically called for.” Ii; see also United States v. Cisse,

103 Fed. Appx. 27, 29-30 (7th Cir. 2004) (“[a] fictitious name ... even if it happens to

be held by a real person, will not be uniquely associated with that person, and its use

8

A67

will therefore be less likely to cause the soft of harm anticipated by” a federal identity

theft enhancement).

19. Courts consistently hold that statutes similar to RSA 638:26

unambiguously do not refer to posing as a fictitious person. Several courts have held

that using a Fictitious identity does not violate statutes that prohibit using the

“identifying information of another person.” Brown v. State, 866 N.E.2d 464, 469-70

(md. 2007); Commonwealth v. Newton, 994 A.2d 1127, 1135-36 (Pa. Super. Ct. 2010);

Ford v. State, 282 S.W.3d 256, 264-65 (Tex. App. 2009). In State v. Ber, 117 P3d

1162 (Wash. Ct. App. 2005), the court held that posing as a fictitious person does not

violate a statute that prohibits using “a means of identification or financial information

of another person, living or dead.” Id. at 1165-66. In State v. Smith. 479 A.2d 814

(Conn. 1984), the court held that posing as a fictitious person does not violate a statute

that prohibits “impersonat[ing] another.” jj at 818-20. In Lee v. Sunerior Court, 989

P,2d 1277 (Cal. 2000), the court stated that a statute that that prohibits “falsely

personat[ing] another” “contemplates impersonation of a real or actual (as opposed to

fictitious) person.” fl at 1278-80,

20. In Flores-Fiaueroa v, United States, 556 U.S. 646 (2009), the Supreme

Court construed a statute that prohibited using “a means of identification of another

person.” Id, at 647. The United States conceded that “the statutory text makes clear

that the sine oua non of [the statute] is the presence of a real victim,” United States v.

Spears, 729 F.3d 753, 757 (7th Cir. 2013) (citing United States’ brief in Flores-Fioueroa)

(brackets omitted). The issue in Flores-Fioueroa was whether the statute additionally

1)

A68

requires that the defendant know that the identity belongs to a real person. çj. at 647.

The Supreme Court held that such knowledge was required. at 657. Implicit in this

holding, of course, is the point conceded by the United States — that the statute

requires that the identity belong to a real person

21. For the reasons outlined above, the Court should conclude that [lie

phrases “another person” and “a person” used in RSA 638:26 unambiguously refer to a

real person.

II. NO RATIONAL TRIER OF FACT COULD FIND THE STATE PROVEDBEYOND A REASONABLE DOUBT THAT ANGEL BERRIOS RIVERAWAS A REAL PERSON.

22. As stated in State v. ScoonaQijgljo, 150 NH. 534, 536 (2004), “in ruling

on the sufficiency of the evidence, [the Court] must decide whether, upon viewing the

evidence in the light most favorable to the prosecution, any rational trier of fact could

have found this element of the crime beyond a reasonable doubt.” , State v,

Foss, 148 N.H. 209, 214 (2002) (holding, on a Motion for Judgment Notwithstanding

the Verdict, “that no reasonable trier of fact could have found the defendant guilty

beyond a reasonable doubt as the evidence, viewed in the light most favorable to the

State, failed to establish [an element of the offense]”).

23. The State failed to present sufficient evidence at trial to prove beyond a

reasonable doubt that Angel Berrios Rivera was in fact a real person. The State called

two witnesses to testify: New Hampshire State Troopers Richard Dupont and James

O’Leary. The State did not call the alleged victim, Angel Berrios Rivera, or the

unindicted co-defendant, Juan Manuel Soto Guzman.

Ii)

A69

24. The State submitted 13 exhibits into evidence. These exhibits included an

Application for Driver License or Non-Driver ID Card, a Puerto Rican birth certificate

with the name Angel Berrios Rivera, a social security card with the name Angel Berrios

Rivera, a Puerto Rican driver’s license with the name Angel Berrios Rivera, and a

document with social security number results for an Angel Berrios Rivera.

25. The Puerto Rican birth certificate contained a date of birth for Angel

Berrios Rivera of 10 Ago 1989 (August 10, 1989). This birthdate matched the one on

the Puerto Rican driver’s license, but did not match the birthdate on the social security

number results. That birthdate was listed as August 25, 1989, The State did not present

any testimony or evidence as to whether either of these birthdates belonged to Ange

Berrios Rivera, Juan Manuel Soto Guzman, or any other individual.

26. The social security card contained the number 599-24-1204. The last four

digits of this number (1204) matched the last four digits of the social security number

for Angel Berrios Rivera on the document with the social security number results. The

State did not present any evidence as to whether this number had been issued to Angel

Berrios Rivera, Juan Manuel Soto Guzman, or any other individual by a government

agency. To the contrary, the State presented testimony by both troopers that the card

had been altered and the original information on the card had been erased. The only

logical conclusion to draw from that testimony was that the number presently on the

card — 599-24-1204 — was not the same as the original number on the card.

27. The document with the social security number results was Pound in Mr.

II

A70

Rulz’s van, but it did not contain any information to identify the source of these results.

It appeared to be a printout from an unknown source on the Internet. Since the State

did not establish the identity of this source, it could not oiler any evidence as to its

credibility, reliability, or accuracy.

28. The State did not present any records or call anyone from a government

agency to prove that Angel Berrios Rivera in fact existed or was ever issued any farm of

state-approved identification. As a result, the State did not establish that Mr. Rivera had

the date of birth listed on the birth certificate, the driver’s license, or the application for

a replacement driver’s license. The State also did not establish that Mr. Rivera had the

social security number hsted on the social security card, the document with the social

security number results, or the application For a replacement driver’s license. At best,

the State proved that Angel Berrios Rivera was a fictitious name, not a specific person

with real idenufying information.

29. Even if the Court finds that the State presented some evidence that Angel

Berrios Rivera was in fact a real person, no rational trier of fact could find beyond a

reasonable doubt that Mr. Ruiz knew this identity belonged to a real person. There was

no evidence that Mr. Ruiz had the purpose to defraud Mr. Rivera because Mr. Ruiz did

not know that Mr. Rivera was a re& person. There was also no evidence that Mr. Ruiz

had purposely obtained or recorded personal identifying information without Mr.

Rivera’s authorization because Mr. Ruiz did not know that Mr. Rivera was a real person.

WHEREFORE, Mr. Ruiz, by and through counsel, prays that this Honorable Court:

A. Reconsider its December 11, 2015 Order; and,

I’

A71

c.-I

8. Dismiss the above-captioned matters because the State failed to produce

evidence sufficient to support a conviction for any of the charges; or,

C. Set aside the verdict in the above-captioned matter and find the defendant

not guilty of the two Identity Fraud charges and the Receiving Stolen

Property charge; or,

D. Hold a hearing on this c otion; and,

E. Order such other and fLirther relief as justice may require.

Respectfully submitted,

Todd R. Russell, Esquire #14237Public Defender20 Merrimack StreetManchester, NH 03101(603) 669-7888

CERTIFICATE OF SERVICE

I, Todd R. Russell, hereby certify that a copy of the foregoing has been forwardedthis Z1 day of December, 2015 to ACA Lexie Rojas.

Todd R. Russell, Esquire

A72

to:

of the New Hampshire State Police. He has advised me of the following:

DIMICO

EXHIBIT4:0

1.0- oc.-qc&

who has identified himself as a member

Date:

STATE OF NEW HAMPSHIREDept. of Safety- Div. of Slate Police

STATEMENT FORM

Time:

_____

C-

Place: )V Ii

•7.? u1 give the following voluntary statement

WAIVER

1. Do you understand each of these

rights?

____________

2, Understanding these rights are yo 7willing to answer questicns?Ye V

1. I have the right to remain silent;

2. Anything I say can and will be used against me in a cowl of law;

3. I have the right lo talk to a lawyer for advice before anyquestioning and to have one with me &ring questiorAng;

4. VI cannot afford a lawyer, one will be appointed for me; and

5. If I decide to answer questions now without a lawyer present, Istill have the right to stop answering at any time.

Witness: ó? I/iN f2 t / Signature:

‘N it ness:

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