State v. McEwen

Full title: STATE OF NEW HAMPSHIRE v. BRENDEN MCEWEN

Court: Superior Court of New Hampshire

Date published: Jan 26, 2022

No. 217-2021-CR-00449 (N.H. Super. Jan. 26, 2022)

Opinion

217-2021-CR-00449

01-26-2022

STATE OF NEW HAMPSHIRE v. BRENDEN MCEWEN

Andrew R. Schulman, Presiding Justice.

…[T]ransportation to and investigative detention at the station house without probable cause or judicial authorization together violate the Fourth Amendment. -Hayes v. Fla., 470 U.S. 811, 815 (1985)

Involuntary transport to a police station for questioning is sufficiently like arrest to invoke the traditional rule that arrests may constitutionally be made only on probable cause. -Kaupp v. Texas, 538 U.S. 626, 630 (2003) (internal citation, quotation marks and bracketing omitted)

…[T]he State has the burden of proving that the necessary consent was obtained and that it was freely and voluntarily given, a burden that is not satisfied by showing a mere submission to a claim of lawful authority. -Florida v. Royer, 460 U.S. 491, 497 (1983)

ORDER

Andrew R. Schulman, Presiding Justice.

Table Of Contents

I. Summary And Rulings........................................ 1

II. Facts...................................................... 4

A. McEwen's Presence At The Margaritas Fire.............. 4

B. McEwen's Presence At The 20 Bog Road Fire And The Reasonable Suspicion That Led To His Detention............................................. 5

C. Detention And Transportation To The Police Station For Questioning............................... 7

D. First Words At The Police Station..................... 9

E. Stationhouse Interrogation........................... 12

F. Detention Pending The Issuance Of Search Warrants............................................. 19

G. Execution Of Search Warrants And Release From Custody.............................................. 22

II. LEGAL ANALYSIS........................................... 28

A. The Fourth Amendment and Article 19.................. 28

(1) Introduction And Orientation.................... 28

(2) McEwen Was Arrested Within The Meaning Of The Fourth Amendment And Article 19 When He Was Transported From Dunkin' Donuts To The Police Station On April 16, 2021....................... 35

(a) Introduction............................... 35

(b) McEwen Was “Seized”........................ 35

(c) The Seizure Became An Arrest When McEwen Was Transported To The Police Station...... 37

(3) McEwen's Arrest Was Not Supported By Probable Cause........................................... 47 i

(4) Exclusion Of The Fruit Of The Poisonous Tree.... 48

(a) Introduction............................... 48

(b) McEwen's Statements At The Police Station On April 16, 2021.................. 49

(c) McEwen's Statements During Phone Calls From The Hospital.......................... 53

(d) McEwen's Statements At The Police Station On April 22, 2021.................. 54

(e) The Search Warrants........................ 54

(f) The Seizure Of The Cell Phone.............. 58

(g) The delay in requesting a search warrant for the phone.............................. 62

B. The Fifth Amendment And Article 15: Miranda......... 64

(1) The Framework................................... 64

(2) The April 16, 2021 Interrogation................ 69

(3) The April 22, 2021 Interrogation............... 76

C. The Fourteenth Amendment And Article 15: Voluntariness........................................ 78

III. Conclusion.............................................. 82 ii

I. Summary And Rulings

The matter before the court is defendant Brenden McEwen's motion to suppress. McEwen is accused of two counts of arson and one count of reckless conduct in connection with a fire that broke out in an apartment building in Concord on April 16, 2021. McEwen argues that:

A. He was unconstitutionally arrested within the meaning of the Fourth Amendment and Article 19 when he was brought to the police station on April 16, 2021 for the purpose of interrogation;

B. The statements that he made during the interrogation that followed this arrest must be suppressed as fruit of the poisonous tree;

C. Those statements must also be suppressed on Fifth Amendment/Article 15 Miranda grounds;

D. Evidence obtained from three search warrants must be suppressed as fruit of the poisonous tree because the affidavits in support of the warrants were grounded on the statements he made at the police station.

E. Evidence obtained from the three search warrants must also be suppressed because the warrants were not supported by probable cause as required by the Fourth Amendment and Article 19. 1

F. Evidence obtained from one of the search warrants, which authorized a search of McEwen's cell phone, must also be suppressed because (i) the cell phone was seized without probable cause in violation of the Fourth Amendment and Article 19, and (ii) the detective who seized the phone waited too long to apply for the search warrant in violation of those same constitutional provisions;

G. Additional statements that McEwen made on April 22, 2021, following his formal arrest, must be suppressed on Fifth Amendment/Article 15 Miranda grounds; and

H. McEwen's Statements on April 16 and 22, 2021, and all derivative evidence, must be suppressed on the grounds that they were involuntary within the meaning of the due process clause of the Fourteenth Amendment and Article 15.

The Court held an evidentiary hearing on McEwen's suppression motion on October 26 and 28, 2021. In addition to the testimony and the exhibits, the parties agreed that the court could use the allegations in the three warrant affidavits as proof of what the Concord Police learned during the course of the defendant's detention.

For the reasons set forth below, the motion is now GRANTED IN PART. More specifically, the court makes the following rulings: 2

A. The court finds that McEwen was arrested on April 16, 2022, within the meaning of the Fourth Amendment and Article 19, without probable cause. The court suppresses, as 'fruit of the poisonous tree' the following:

(i) All of the statements McEwen made at the police station on April 16, 2021, and

(ii) All of the evidence derived from the three search warrants for McEwen's clothing, footwear, person, home and cell phone. The court finds that when McEwen's suppressed statements are excised from the affidavits in support of the search warrants, probable cause is lacking.

B. The court finds that McEwen's cell phone was seized without probable cause. The State did not argue or prove inevitable discovered. Therefore, any evidence obtained as a result of the search of the cell phone is suppressed on this ground as well;

C. The court finds that the defendant's mid-interrogation invocation of his Miranda rights on April 22, 2022 was not scrupulously honored. The interrogating detective refused to cut off questioning and continued to press McEwen for a confession. Therefore, the court orders the suppression of all statements made by the defendant after his invocation of rights on page 35 of the transcript;

E. The court does not reach the question of whether, putting aside the 'fruit of the poisonous tree' doctrine, the search warrants were supported by probable cause. (In other 3 words, the court finds it unnecessary to decide whether, with the inclusion of McEwen's suppressed statements, the affidavits established probable cause.)

G. The court rejects all of the defendant's other claims. Thus, the court finds that:

(i) The delay in applying for the warrant to search the cell phone was reasonable;

(ii) There was no Miranda violation in connection with the April 16, 2021 interrogation;

(iii) McEwen made a valid initial waiver of Miranda rights on April 22, 2021; and

(iv) None of McEwen's statements were involuntary within the meaning of the due process clauses of the Fourteenth Amendment and Article 15.

II. Facts

A. McEwen's Presence At The Margaritas Fire

McEwen was working at Margaritas Restaurant in downtown Concord on the night of April 15-16, 2021. Around midnight, a fire broke out in a trashcan in the Margaritas' restroom. The restroom was located outside of the restaurant but in the same building.

The Concord Fire Department responded following a report of smoke. Firefighters arrived at approximately 12:30 am and extinguished the fire approximately three minutes after they arrived. They noted that the defendant, Brenden McEwen, was outside the building standing next to his boss. 4

No evidence was presented at the suppression hearing, or otherwise in the record, of a finding by fire authorities that the Margaritas' fire was incendiary. Nobody was ever charged with a criminal offense in connection with that fire.

B. McEwen's Presence At The 20 Bog Road Fire And The Reasonable Suspicion That Led To His Detention

Approximately an hour after the Margaritas' fire was extinguished, another fire broke out in a different area of Concord. The second fire occurred in an apartment building at 20 Bog Road. This section of bog road is located just off Fisherville Road (Route 3), approximately 4 miles from Margaritas.

McEwen lived about a half mile away in a single family home on the other side of Fisherville Road. To get to his home from Margaritas, McEwen would have to pass the intersection of Bog Road and Fisherville Road. Thus, he would necessarily pass within a short distance of 20 Bog Road, the scene of the second fire.

The 20 Bog Road fire was sufficiently large to require some of the tenants on the upper floor to evacuate by ladder. Numerous fire department personnel responded and extinguished the fire. Several police officers, including Officers Alcide and Scheidel and Sergeant Lovejoy, responded as well. 5

The police officers observed McEwen standing outside the apartment complex. McEwen drew the attention of the Concord Police and Fire Departments because (a) he was present at the scenes of both fires, (b) the police were aware that he had been convicted of arson and, on a separate occasion, of causing a false fire alarm, and (c) he was carrying potholders on him.

The police learned that the fire likely started immediately outside the door to a third floor apartment. The tenants in that apartment were Jessica G. and her three children. The entire family had to be evacuated by ladder outside the building.

To unpack the obvious, because Jessica lived on an upper story, and because the fire started in the middle of the night outside her door, it was fortuitous that neither she nor her children were injured. This was the type of fire that could have resulted in a tragedy.

When the police first observed McEwen, he was standing outside the building with Jessica and her children. He remained at the scene with Jessica for some time. Eventually, he went to the nearby Dunkin' Donuts on Fisherville Road to get hot chocolate for Jessica. The police officers who were present kept their eyes on McEwen even as they attended to other matters related to the fire. 6

C. Detention And Transportation To The Police Station For Questioning

Based substantially on these facts, at approximately 3:25 am, Sergeant Lovejoy instructed Officers Alcide and Scheidel to (a) detain McEwen and (b) bring him to the police station for questioning. Sergeant Lovejoy did not testify, but Detective Shaughnessy (who was not at the scene) testified that Lovejoy wanted McEwen interviewed in a "more controlled" environment.

Officers Alcide and Scheidel detained McEwen outside the Dunkin' Donuts. He would remain in police custody for approximately eight and half hours.

Nothing about the initial detention is disputed. McEwen does not cavil about whether the officers had reasonable and articulable suspicion to support a brief investigative detention, i.e. a Terry stop. See Terry v. Ohio, 392 U.S. 1 (1968); State v. McKinnon-Andrews, 151 N.H. 19 (2004). For its part, the State does not claim that the officers had anything more than reasonable suspicion, i.e. the State concedes that there was not sufficient probable cause for an arrest. See State's Objection, ¶¶20-22 (stating that McEwen was subject to an investigatory detention based on reasonable suspicion and was not "arrested").

Further, there is no doubt that McEwen was actually detained: 7

-Officer Scheidel verbally told McEwen that he was detained (i.e. that he was not free to leave and that he could not voluntarily end his encounter with the police);

-When McEwen then said that he needed to use the bathroom, Officer Scheidel responded that he could not do so alone.

-Officer Scheidel then followed McEwen into the single-stall bathroom at Dunkin' Donuts and remained there while McEwen used the facilities.

Officer Scheidel then told McEwen that he wished to transport him to the Concord Police Department, several miles away. The officer--who just moments earlier supervised McEwen's visit to a single-stall bathroom--did not tell McEwen that he had a choice about whether or not to go to the police station.¹ 8 McEwen acquiesced. He did not kick up a fuss, verbally object or resist. He simply got into the cruiser.

1 The court relies on the first-hand testimony of Officer Scheidel regarding what the officer said to McEwen and how McEwen responded. To the extent that another witness, Detective Shaughnessy, opined that McEwen "consented" to be transported to the police station, the court rejects his testimony because it is not based on personal knowledge but is rather a lay opinion grounded on hearsay accompanied by a legal conclusion. Detective Shaughnessy was not present when McEwen was detained and transported. He first met McEwen at the police station. So he did not hear what was said between Officer Scheidel and McEwen. (Further, it is worth noting that Detective Shaughnessy testified that he believed McEwen was asked whether he would go to the police station at the same time that he was told he was detained and not free to leave. The detective's opinion was McEwen was detained at the scene, remained detained while he was transported to the police station, and remained detained during his entire stay at the police station.)

McEwen was frisked before he was placed in the back seat of the marked cruiser. The purpose of the frisk was officer safety even though there were no articulable facts suggesting that McEwen might be armed or dangerous. See State v. Michelson, 160 N.H. 270, 272 (2010) ("Once an officer is justified in making an investigatory stop, he may also conduct a protective frisk if the officer reasonably believes the individual is armed and presently dangerous." (emphasis added)). That said, McEwen was not handcuffed as he would have been if he were under arrest to answer for a crime.

McEwen was not questioned during the four mile ride to the police station. The cruiser parked in the sallyport inside the building, which is where it would park if carrying a prisoner. Officer Scheidel escorted McEwen directly upstairs to the detectives' area. McEwen was placed in a small interview/interrogation room. By this time it was approximately 4:00 am.

D. McEwen's First Words At The Police Station

McEwen's entire stay in the interview/interrogation room was audio and video recorded. The court was provided with a 9 transcript (cited below as "T, [page number]") of everything that was said.

As stated above, McEwen was escorted directly the interview/interrogation room after he arrived at the police station. Officer Scheidel remained in the room with McEwen for a few minutes. Then Detective Shaughnessy entered the room and Officer Scheidel left.

Almost immediately thereafter, the following exchange took place between Detective Shaughnessy and McEwen:

Q: Okay. How you feeling?

A: Tired, and I want to go home.

Q: Okay. If you don't mind, I'm just going to shut [the door] for our privacy.

(T, 2 (emphasis added)). Aside from closing the door, Shaughnessy made no response to McEwen's statement that he wanted to go home.

After a few moments of introductory banter, Detective Shaughnessy told McEwen that he could take a bathroom break or obtain water whenever he needed:

Okay. If at any point while we're talking, if you need to take a bathroom break or you want a thing of water, or you just want to, you know, take a break, please let me know.

(T, 4).

Because McEwen had just said he wanted to go home, this invitation to take breaks as needed implied that (a) McEwen was 10 not free to leave and go home, and (b) he would remain at the police station long enough to require possible bathroom breaks and other types of breaks.

Shaughnessy, who knew McEwen from prior dealings, got McEwen's basic information (i.e. name, address, etc.) and then read the familiar Miranda warnings to McEwen. Prior to reading the Miranda warnings, the detective asked McEwen about his education. McEwen responded that, although he graduated from high school, he was disabled and "can't read pretty much past the fifth grade level." (T, 8). McEwen explained that he is "high functioning autistic." (T, 8).

McEwen stated that he understood his Miranda rights and agreed to waive them. He signed the Miranda form. Immediately thereafter McEwen stated his understanding that he was detained for questioning at the police station:

Q: ...Okay. So, what brings you down here?

A: Well, I'm being detained for the fire on whatever street it is--on Fisherville Road, the apartment building.

Q: Okay.

(T, 11).

A: . . . So I went over there [i.e. to Dunkin' Donuts]. And I don't know what his name is, but he asked me to go outside, told me I was detained. And come to find out, I got brought

11

down to the police station because of a stupid mistake I made over five years ago.

(T1, 11).

Detective Shaughnessy never said anything to suggest McEwen had agreed to go to the police station voluntarily. He never told McEwen that he was free to leave. To the contrary, Shaughnessy testified, and the State argues, that McEwen was subject to an investigative detention during his entire stay at the police station.

E. Stationhouse Interrogation

After the Miranda process was completed, McEwen answered questions about his whereabouts and doings circa the time of the fires and his relationship with Jessica G. McEwen's ultimate account, after several clarifications and corrections, was as follows:

-McEwen said he took an Uber from his house to his job at Margaritas at approximately 4:30 pm;

-He got off shift at approximately 7:45 pm;

-He then sat at the bar at Margaritas and had four to five alcoholic drinks (at first with a female friend and later with a coworker);

-At some point he used the bathroom where the Margaritas fire broke out. While using the bathroom he consumed a "line" of cocaine (although he did not admit this right away);

12

-He then went outside and smoked a cigarette with his friend.

-While he was outside smoking the cigarette, the Margaritas' manager came by and asked if they smelled smoke.

-McEwen then went inside and the smell of smoke was evident. -He and his friend then put the fire out using a fire extinguisher.

-After this, McEwen called for a taxi to take him home.

-McEwen wished to leave the area because he thought he would be become a suspect due to his prior conviction for arson.

-The taxi dropped McEwen off at his home. He went inside and smoked some marijuana.

-McEwen then left his home and walked to the nearby Irving gas station/convenience store on Fisherville road to buy snacks for himself.

-After buying his snacks (which were still in his pocket at the time of the interview/interrogation), McEwen noticed that there were fire trucks across the street at 20 Bog Road.

-McEwen immediately thought of his friend Jessica G. who lived in the building. Jessica was McEwen's supervisor at his other job at Dunkin' Donuts. He had taken a brief leave of absence from that job but planned to return shortly. He was on good terms with Jessica and thought of her as a friend.

13

-Because he saw fire trucks at Jessica's building, McEwen called Jessica to make sure she was okay. Jessica told McEwen that there was a fire at her apartment.

-McEwen then walked to 20 Bog Road where he saw Jessica and her children outside the building. He let one of the children use his jacket and he asked a firefighter for a blanket or jacket.

Shaughnessy asked McEwen about the pot holders he was carrying. McEwen said that he got them from work and that he collected many of them since starting at Margaritas.

McEwen told Shaughnessy that he had wanted to become a firefighter until his conviction for arson made that an impossibility. McEwen explained that his father had been a firefighter and that he had hoped to possibly follow in his footsteps. McEwen said he participated in the Explorer program and took certain classes related to fire fighting.

McEwen also told Shaughnessy that he had only recently relapsed into using cocaine again. McEwen said that he was ashamed of his recent cocaine use which he attributed to the fact that he was going through a "depression stage." (T, 78). McEwen said he spoke about his depression with Jessica, who offered to give him a Zoloft pill that had been prescribed for her. However, he never met up with her to get the pill.

14

After about an hour of questioning, Detective Shaughnessy abruptly changed the tenor of the conversation from interview to interrogation. Shaughnessy bluntly stated that he believed McEwen started fires. (T, 55). Shaughnessy then employed, as an apparent interrogation technique, an appeal to McEwen's desire to be seen as a caring, hard working person who made a mistake while intoxicated. See e.g.:

-T, 55: "You're obviously a caring person;

-T, 56: "You probably work your ass off for the money you make. You know you wanted to have a good time tonight and have a couple of drinks. . . . You seem like you have a good head on your shoulders."

-T, 57: "And I think what happened is you made a mistake that you probably wish you didn't do. Okay? And like you and I talked about earlier tonight, that we're all humans and we all make mistakes."

-T, 58: ". . .I think tonight is a learning lesson of something that you probably never want to do again."

McEwen responded to this velvet, obsequious accusation with a point blank denial and an assertion of innocence. (T, 58). Shaughnessy then deployed a different technique in which he intimated (but did not expressly aver) that the police had an eyewitness who saw McEwen inside Jessica's building immediately before the fire. See T, 59:

Q: But Brenden, hear me out. Is there any reason why somebody would say that you were at Jess' apartment tonight?

15

A: No. No.

A: Okay. So, Brenden, like you and I talked about, honesty goes a long way with me.

(T, 59). To be clear, at least as far as the court can tell from the record, there was no eyewitness.

Detective Shaughnessy then told McEwen that while he did not think the fires were "malicious," he might have to issue report saying that they were, unless McEwen owned up to a less damning account. Without expressly addressing the charging and sentencing decisions that would be made down the road, Shaughnessy said that a report the fire were "malicious" would be viewed "a certain way." T, 61.

-T, 58-60: I don't think it was done maliciously. Perhaps on accident, whether by a cigarette or some other means, perhaps. I don't think you're a bad person. . . .

-T, 60: . . .I don't think you're a bad guy. I think you made some bad decisions tonight and that they were mistakes, and you probably had an urge that you couldn't control. It happens. People are humans.

-T, 60-61: . . . I can go ahead and tell people that you know, Brenden maliciously set these fires on purpose. That was his intent. He wanted the apartment building to burn down. He wanted Margaritas to burn down. And that can be viewed a certain way. But if there's a reason why these fires were set, that's something I need to know right here tonight, in this room. Because if it's an accident, that's something I need to know, or if you intended people to get hurt, which I don't

16

think you did, okay, that is absolutely something I need to know because

--T, 61 . . .The way it's looking right now is that you maliciously set those fire. I don't believe you maliciously did. Okay?

When this tactic did not produce a confession, the detective adjusted course and pretended to minimize the offense:

-T, 61 I think they were small fires. I think you know what you're doing. If you really wanted something to go up, you'd be able to--you have the knowledge to set a--large arson. But you didn't.");

-T, 63 And I think you had an urge tonight that you couldn't control, but it was a small urge. You knew it was wrong but you didn't go above and beyond. It was a small trashcan fire and a small fire up at the building. It's not like you lit the whole building on fire.

McEwen did not budge and continued to deny involvement in either fire. At approximately 5:00 am, McEwen asked to take a break from the accusatory questioning so he could smoke a cigarette. Detective Shaughnessy agreed and arranged for Officer Scheidel to escort McEwen downstairs. McEwen smoked his cigarette and returned to the interview/interrogation room approximately six minutes later.

When the questioning resumed, Detective Shaughnessy kept it light at first. He focused on McEwen's employment and friendship relationship with Jessica G. Then Shaughnessy returned to increasingly accusatory questioning. Shaughnessy 17 went through the various types of forensic evidence that could be obtained, i.e. fingerprints and/or DNA at Jessica's apartment; dog sniffs and lab tests for accelerants on McEwen's clothing and hands; GPS information from McEwen's phone; hair and fiber evidence; doorbell cameras, etc. McEwen continued to maintain his innocence.

Detective Shaughnessy's last tactic was to express complete confidence in McEwen's guilt. When McEwen denied setting the fires, the detective told him that he was not being honest. It eventually became clear to McEwen that Shaughnessy was not going to accept any explanation other than a confession. (See T, 97 (McEwen observing at the conclusion of the interrogation that "The plan was not to f[---]ing listen to me.")).

To this point, Shaughnessy gave McEwen an ultimatum about what he would put in his report:

. . .No, this can go one of two ways really.

. . .It can go, I talked to Brenden, Brenden denied that he started the fires, told me he didn't do it till he was blue in the face. And all the evidence shows that it was him. He shows no regret, no remorse for anything. Could have burned down Margaritas. Could have burned down 20 Bog Road, Building 3, with kids inside, with his friend Jessica inside, and all these other people who were also sleeping like your parents. He shows no remorse or doesn't show any signs of stopping.

. . .[O]r it can be, this was an honest mistake. Brenden knew what he was doing. It was a small

18

controlled fire and he is very remorseful for his actions. He does not intend on doing that again. . . .[H]e wants to get help for his actions. . . .So there's. . .two Brendens we're talking about here. Is this the Brenden that I'm talking to that doesn't give a s[--]t what happens to these people that, you know, could have burned down Margaritas, could have burned down 20 Bog Road, Building 3, with all those people and children sleeping inside. Or is this the Brenden that, you know, made a mistake and it won't happen again--Brenden that screwed up and needs help. Which Brenden am I talking to? And that's what I need to convey when I write my report.

T, 91-93.

McEwen did not give in and continued to maintain his innocence. At approximately 5:40 am, Detective Shaughnessy told McEwen to remain in the interview/interrogation room for a few minutes while the detective attended to some matter. McEwen asked for a second cigarette break, but this time his request was denied.

F. Detention Pending The Issuance Of Search Warrants

After denying McEwen a second cigarette break, Shaughnessy said he would remain detained in the interview/interrogation room pending the receipt of search warrants for his clothing and person. At approximately this point, the detective grabbed McEwen's cell phone, without asking for consent. Shaughnessy then said the word "Passcode." This was essentially a shorthand way of demanding that McEwen provide the passcode for his phone. McEwen told Detective Shaughnessy the passcode. 19

Shaughnessy then left the room. He was replaced by Officer Scheidel, who was there just to keep an eye on McEwen. McEwen immediately repeated the words he used when he was first escorted into the room hours earlier, i.e. "I want to go home." (T, 100). McEwen also said that "It's against my rights for you to hold me." (T, 100).

Shaughnessy, who could monitor the audio and video from the interview/interrogation room, returned to the room momentarily and told McEwen that he was not going anywhere. Shaughnessy then left the room again. As soon as Shaughnessy left, McEwen said he wanted a lawyer and that "I'm doing my Fifth Amendment, I'm done talking to him. (T, 101).

From this point on, no police officer questioned McEwen further about either of the fires. McEwen remained at the police station for several hours during which he interacted with various officers. But nothing that they said or did could be construed as interrogation.

Shortly after invoking his constitutional rights, McEwen told Officer Scheidel that he did not really want a lawyer. Officer Scheidel politely told McEwen that he would not speak with him about the case. Some time later, McEwen asked Officer Scheidel whether he could just give a false confession and go home: 20

-T, 109: Even though I didn't do it, can I just confess so I can go home.

I want to go home and go to bed. Like if I just confess to it even though I didn't do it, can I go home?

-T, 110 Dude, can I confess so I can go home? Like can I false confess or do something so I can just home and lay down? Fake something?

Officer Scheidel rejected this proposal and basically told McEwen to cut it out.

Shortly after Detective Shaughnessy left the room to prepare the warrant applications, McEwen began to complain vociferously about Shaughnessy in particular and about police officers in general. While the gist of McEwen's rant to Officer Scheidel was that he thought he was treated unfairly by Detective Shaughnessy, the words McEwen chose were inflammatory and offensive. Using a generous amount of profanity (which need not be repeated in this order), McEwen expressed contempt for police officers, especially "dirty cops." He said he understood why people want to shoot police officers. He said he hoped that every officer in the state died from COVID.

At approximately the same time, McEwen expressed a desire to end his own life. He said that he wished he had overdosed on cocaine, that he would hang himself when left the police station, that his life was not worth living, that he would buy a 21 gun and blow his brains out, or that he would instead slit his wrists. These statements, which under other circumstances might be viewed as harmless hyperbole, were concerning in light of (a) McEwen's admission that he was going through a period of depression that contributed to his relapse into drug use, (b) McEwen's apparent legal predicament (i.e. that he might be charged with arson in connection with one or two fires and that he already had a conviction for arson), and (c) McEwen's labile demeanor (i.e. his sudden switch from calm to ranting) and possibly fragile mental state (i.e., there was, after all, at least reasonable and articulable suspicion that he had set one or both fires).

McEwen also repeatedly said he was tired and asked if he could sleep in a holding cell. This was an understandable request because McEwen had been up all night and, if he was to be believed, had consumed four or five alcoholic drinks, a line of cocaine and some marijuana several hours before he arrived at the police station. Although McEwen was not brought to a holding cell, he was provided with a pillow and allowed to sleep on the floor of the interview/interrogation room.

G. Execution Of Search Warrants And Release From Custody

Detective Shaughnessy returned to the room at approximately 11:20 am. He had with him search warrants for McEwen's person, 22 clothing, cell phone and home. The affidavits in support of the warrants summarized (roughly) the facts set forth above and included a description of McEwen's statements during his lengthy stay at the police station.

McEwen cooperated with the execution of the search warrants, albeit with considerable grumbling and disagreement. He surrendered the clothes that he was wearing and received new clothes in return. Detective Shaughnessy had obtained the new clothes from McEwen's mother. With the execution of the search warrants complete, there was no longer a reason to detain McEwen without charge.

However, on the basis of McEwen's suicidal statements and threats of self-harm, Detective Shaughnessy had advised McEwen's mother to request an involuntary emergency admission to the N.H. mental health system. See RSA 135-C:27 to 33. At approximately 11:20 AM, Detective Shaughnessy handcuffed McEwen and brought him to the hospital to meet his mother. McEwen was then involuntarily admitted to the hospital until April 22.

During his stay at the hospital McEwen called Detective Shaughnessy twice to inquire about his phone. He took the opportunity to apologize for some of his offensive comments about police officers during the interview/interrogation. He also said he would speak with the detective again. 23

H. Arrest And Further Interrogation

By April 22, 2021, Detective Shaughnessy had obtained an arrest warrant for McEwen in connection with the 20 Bog Road fire. The defense does not dispute that the arrest was supported by probable cause. However, the court notes that the affidavit for the arrest warrant, which was issued by this judge, included facts learned during an additional week of investigation.

On April 22, 2021 McEwen was arrested at his home shortly after his discharge from the hospital. He was transported to the police station where he would be booked and preventatively detained by the bail commissioner.

Shortly after arriving at the police station, McEwen was escorted to an interview/interrogation room where he once again met with Detective Shaughnessy. The room was audio and video taped and the court has been provided with a transcript (cited as "T2, [page number]) of everything that was said.

Although McEwen was brought to the interview/interrogation room in handcuffs, those handcuffs were removed once he was inside. After some small talk, Detective Shaughnessy said that he wished to speak with McEwen again about the night of the fires.

To this end the detective once again informed McEwen of his Miranda rights. McEwen once again said that he understood those 24 rights. He once again signed the Miranda form and agreed to speak with the detective.

Shaughnessy began by once again walking McEwen through the chronology of the night. In doing so, he made reference to McEwen's statements during the April 16, 2021 interrogation. Essentially, the detective asked leading questions and McEwen adopted his earlier account. See, e.g., T2, 19 ("Q: You said that you went to work at Margaritas around 4:30, you took a cab there. A: Yes."). Shaughnessy then asked McEwen to walk him through "the rest of what happened that night." (T2, 20). McEwen provide some additional details, but continued to deny setting either fire.

During this phase of the interrogation, McEwen disclosed that he viewed firefighters as "heroes." (T2, 27). After the events of 9/11, McEwen decided that he wanted to become a firefighter himself. (T2, 27). He viewed this as a "dream job." (T2, 25). He enrolled in the Explorer program and did a ride along with the fire department. He wanted to become a firefighter, which he described as his "dream job." (T2, 25).

Detective Shaughnessy made several unsuccessful appeals to McEwen to take responsibility for the fire. See T2, 26 (noting that firefighters own up to what they've done); T2, 30 (referencing video that shows McEwen walking to 20 Bog Road and video showing him running from the scene); T2, 29-21 (explaining 25 that McEwen's cell phone GPS suggested that he climbed two floors shortly before the 20 Bog Road fire was reported); T2, 31 (reference to a canine alert to a possible accelerant on McEwen's shoes); T, 33-36(expressing empathy).

McEwen ultimately said that the "real truth" was that he went "car hopping." (T, 35). When the detective refused to accept this, McEwen said "I'm done talking." (T, 35). Shaughnessy responded by saying, "No, listen to me," and then McEwen repeated "I'm done talking." (T, 35).

Instead of stopping the interrogation, Detective Shaughnessy launched into a soliloquy about the interrogation being McEwen's last opportunity to show that he had a "good heart." (T2, 35-36). McEwen said only, "I'm done here." When the detective started in again by saying his name, "Brenden," McEwen said again, "I'm done here." This was the fourth time that McEwen made an unambiguous assertion of his right to stop answering questions.

Apparently believing that "no" means "yes," Detective Shaughnessy again urged McEwen to "speak[] some truth" and "own up to [his] mistakes." (T2, 37). McEwen again said, "I'm done talking," and when that proved ineffective he said "I'm done talking." (T2, 37). Shaughnessy began to counter by saying, "No I don't think you're--," but he was cut off by McEwen who said, 26 "You're going against my Miranda rights. I'm done talking." (T2, 38).

There were a lot things the detective could have said at this point. What he did say was "I don't think you are done talking." (T, 38). The following exchange took place:

Q: I don't think you are done talking.

A: I am done talking.

Q: Because you're telling me you don't--you have no remorse for that night, Brenden?

A I would have remorse if I did it.

Q: You did do it. There's no question--

A: I'm done talking.

Q: Brenden, it's not a question whether or not you did it or not. You--this happened.

A: Okay, yeah.

Q: There is actual evidence that this happened. It's not some mystery person. You owe it to Jessica, you owe it to her children and everybody who lived in that building that night, who was displaced, Brenden. And I know you didn't want that. That's why you went back to go help. I shows you have a heart, because you went back and you helped. No, if you were some crazy lunatic just out setting fires, you just watch from afar and not even go help, you'd just be onto the next one. You could have went home and slept, you know, nice and cozy in your bed and you wouldn't care. But you went to help. That says a lot about you. It says a lot about your character. People are saying you were there helping, giving out blankets, gathering water for people, very caring. That's the real you. This was a onetime mistake. It got a little out of hand. It don't think this will happen again; will it, Brenden? I need you to be real

27

with me, Brenden. You said you kicked into firefighter mode tonight--that night. I need you to kick into firefighter mode with me today and be real with me and own up to your mistakes, like a firefighter would, Brenden. It's not a question of if. It is you. You set that fire at 20 Bog Road, Building 3. The evidence does not lie, Brenden. It happened.

A: Can I go.

(T2, 38-39).

The transcript goes on for another ten pages. McEwen continued to deny responsibility for the fires and Shaughnessy continued to harangue him. Eventually, McEwen said, "I'm done" two more times. After McEwen's eleventh invocation of his right to silence, the interrogation ended.

II. LEGAL ANALYSIS

A. The Fourth Amendment and Article 19

(1) Introduction And Orientation

McEwen's central claim is that an otherwise anodyne investigative detention--i.e. a Terry stop--was unconstitutionally expanded into an "arrest" when he was transported four miles from the Dunkin' Donuts to the police station for in-custody questioning on April 16, 2021. The court agrees.

Unfortunately, Sergeant Lovejoy did not testify at the suppression hearing. Therefore, the court did not have the benefit of hearing his account of what he said to Officers 28 Alcide and Scheidel. However, either Sergeant Lovejoy's order to the officers, or the officers' understanding of that order- i.e., that they were to detain and transport McEwen--was grounded on a fundamental misunderstanding of the constitutional limits on investigative detentions.

A brief orientation is in order. The Fourth Amendment to the United States Constitution and Part 1, Article 19 of the New Hampshire Constitution both forbid unreasonable arrests and detentions. For the purpose of applying these constitutional restraints, the U.S. and New Hampshire Supreme Courts have recognized three different types of civilian/police encounters:

1. Voluntary Encounters:

Our constitutions do not regulate purely voluntary encounters with police officers. Put another way, "so long as a reasonable person would feel free to leave, or terminate the encounter, the citizen is not seized." State v. Joyce, 159 N.H. 440, 444 (2009); see also State v. Licks, 154 N.H. 491, 493 (2006); State v. Beauchesene, 151 N.H. 803, 809 (2005); Florida v. Bostick, 501 U.S. 429, 434 (1991). "Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a 'seizure' has occurred." State v. Steeves, 158 N.H. 672, 675 (2009); Licks, 154 N.H. at 493; Terry v. Ohio, 392 U.S. 1, 19, n. 16, (1968).

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Any witness, including one who is a target or subject of a criminal investigation, may go to the police station as a visitor, with the ability to leave at any time, and submit to questioning. Thus, for example, in State v. Locke, 149 N.H. 1 (2002) a murder suspect who was told he not in custody and was free to leave at any time, agreed to participate in a lengthy interview at State Police headquarters. When the interview became confrontational and accusatory, the detectives twice reminded him that he could leave whenever he wanted. Instead, he stayed until he confessed to his role in the murder. See also State v. Monroe, 142 N.H. 857 (1998) (murder suspect voluntary participated in over a dozen interrogations at the police station, some quite accusatory, including two polygraphs over an 18 month period); Duling v. State of New Hampshire, 217-2016-CV-75 (Merrimack County Superior Court, Dec. 14, 2018) (murder suspect submitted to several police interviews at various locations in the days following the murder).²

2 The cited decisions, Locke, Monroe and Duling, did not involve Fourth Amendment or Article 19 claims. The cases are cited because their fact patterns illustrate the point.

From the police perspective, the advantage of a voluntary interaction is that, so long as suspect is willing to stay, and so long as the officer does not transcend the confines of the Fifth and Fourteenth Amendments or Article 15, there is no limit 30 on (a) the duration of interviews, (b) the number of interviews or (c) the topics that may be discussed. The obvious disadvantage is that the suspect can leave at any time and is aware that he can do so.

2. Investigative Detentions That Do Not Require Probable Cause:

Prior to Terry v. Ohio, cited above, there was some doubt as to whether all Fourth Amendment seizures had to be supported by full-blown probable cause. In Terry, however, the U.S. Supreme Court held that brief investigative detentions are reasonable within the meaning of the Fourth Amendment if they are supported by reasonable and articulable suspicion. Thus was born the eponymous Terry stop.

The New Hampshire Supreme Court has long held that this same standard--i.e., reasonable and articulable suspicion--is required by Part 1, Article 19 before an investigative detention can take place. State v. McKinnon-Andrews 151 N.H. 19, 22 (2004); State v. Wong, 138 N.H. 56, 62-62 (1993); State v. Melanson, 140 N.H. 199, 200-201 (1995).

Reasonable and articulable suspicion is a quanta of suspicion that is less than probable cause but more than a hunch. See United States v. Sokolow, 490 U.S. 1, 7(1989):

The officer, of course, must be able to articulate something more than an inchoate and unparticularized suspicion or 'hunch.' The Fourth Amendment requires some minimal level of objective justification for making the stop. . . .[But] the level of suspicion

31

required for a Terry stop is obviously less demanding than that for probable cause.

(internal quotation marks and citations omitted); United States v. Brown, 500 F.3d 48, 54 (1st Cir. 2007);("While the reasonable suspicion standard requires more than a visceral hunch about the presence of illegal activity, it requires less than probable cause."); State v. Melanson, 140 N.H. at 200-201:

[A] a police officer may make an investigative stop . . . based on a reasonable suspicion that the person detained had committed, was committing, or was about to commit a crime and the officer is able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant the intrusion. Reasonable suspicion is a less demanding standard than probable cause not only in the sense that it can be established with information that is different in quantity of content than that required to establish probable cause, but also in the sense that reasonable suspicion can arise from information that is less reliable than that required to show probable cause.

(internal citations and quotation marks omitted; formatting altered).

Under both the Fourth Amendment and Article 19 an investigative detention "must be carefully tailored to its underlying justification . . . must be temporary and last no longer than is necessary to effectuate the purpose of the stop." Florida v. Royer, 460 U.S. 491, 500 (1983); see also Rodriguez v. United States, 135 S.Ct. 1609, 1614 (2015); McKinnon-Andrews, 151 N.H. at 22; State v. Michelson, 160 N.H. 270, 274 (2011). The goal of any investigative detention is to confirm 32 or dispel the officer's suspicions. If this cannot be done in a reasonably brief period of time (i.e. if suspicion remains but probable cause has not been developed), the detention must end with the suspect's release.

From the police perspective, an investigative detention has one advantage over a voluntary encounter, i.e. that the suspect is not free to leave. However, this advantage comes at the steep cost of accepting limits on the duration and scope of the encounter.

3. Arrests:

In Fourth Amendment/Article 19 parlance, an "arrest" is any seizure involving a greater restraint on liberty than a Terry stop. Recall that Terry created a limited exception to requirement of probable cause. Therefore, anything more than a Terry stop must be supported by probable cause. Accordingly, one can be "arrested" within the meaning of the Fourth Amendment and Article 19 even if one is not formally arrested in sense of being held to answer for a crime.

The probable cause standard for a seizure that exceeds the bounds of a Terry stop is the same as for an arrest warrant. See State v. Ball, 124 N.H. 226, 234(1983)("Every warrantless intrusion must be justified by articulable facts which would have supported the issuance of a warrant based on probable cause."). "Probable cause to arrest exists when the arresting officer has knowledge and trustworthy information sufficient to 33 warrant a person of reasonable caution and prudence in believing that the arrestee has committed an offense." Ojo v. Lorenzo, 164 N.H. 717, 722 (2013); see also State v. Lantagne, 165 N.H. 774, 777 (2013); State v. Newcomb, 161 N.H. 666, 669 (2011); Gerstein v. Pugh, 420 U.S. 103, 111, (1975); Beck v. Ohio, 379 U.SX. 89, 91 (1964). "The long-prevailing standard of probable cause protects citizens from rash and unreasonable interferences with privacy and from unfounded charges of crime, while giving fair leeway for enforcing the law in the community's protection." Maryland v. Pringle, 540 U.S. 366, 370, (2003)(internal quotation marks omitted)(quoting Brinegar v. United States, 338 U.S. 160 (1949).

From the perspective of the police, an arrest has the advantage of allowing for custodial interrogation (assuming compliance with the Fifth and Fourteenth Amendments and Article 15). The disadvantage of an arrest versus an investigative detention is that an arrest requires ex ante probable cause while an investigative detention may be used to develop probable cause. 34

(2) McEwen Was Arrested Within The Meaning Of The Fourth Amendment And Article 19 When He Was Transported From Dunkin' Donuts To The Police Station On April 16, 2021

(a) Introduction

The court's first task is to determine which of the three types of police/civilian interactions occurred in this case on April 16, 2021. Thus, the court must determine whether McEwen's transportation to, and questioning at the police station was: (a) a purely voluntary encounter rather than a "seizure" within the meaning of the Fourth Amendment and Article 19, or (b) an investigative detention requiring nothing more than reasonable and articulable suspicion, or (c) a greater detention requiring probable cause.

(b) McEwen Was "Seized"

The first possibility--that of a purely voluntary encounter--can be easily ruled out. No person in McEwen's position would have felt free to leave after Officer Scheidel told him in plain English that he was detained. Although those express words were sufficient to constitute a seizure, Scheidel underscored the point when he told McEwen he needed a police escort to use a single stall bathroom. Further, while McEwen was not handcuffed, he was frisked before he was placed into the back seat of a police cruiser and he was brought into the police station via the sallyport. Moreover, Detective Shaughnessy 35 testified that McEwen was detained during his entire stay at the police station. At no point did any officer tell McEwen that he was free to leave.

Moreover, at the beginning of his interrogation at the police station, McEwen said that he wanted to go home, but rather than responding to that demand, Detective Shaughnessy shut the door to the interview/interrogation room. A few minutes later, McEwen described himself as "detained" and said that he had "come to find out" that he was going to be transported to the police station.

To be sure, Detective Shaughnessy opined that McEwen consented to the trip to the police station. However, as noted above in footnote 1, the court credits Officer Scheidel's first-hand testimony over Detective Shaughnessy's hearsay-based conclusions of fact and law. (This is not a comment on the detective's credibility; as he conceded his testimony on this point was not based on personal knowledge.) Officer Scheidel did not testify that he empowered McEwen to choose whether or not to go to the police station for questioning. Rather, he testified that Sergeant Lovejoy ordered him to detain and transport McEwen.

Finally, because McEwen was detained by Officer Scheidel at Dunkin' Donuts, his transportation and questioning at the police department could only become a voluntary encounter if that 36 detention had ended. But Officer Scheidel said nothing to indicate that McEwen was free to leave and Detective Shaughnessy said nothing to indicate that McEwen could get up and walk out the door whenever he wanted.

Therefore, McEwen was subjected to a constitutionally regulated seizure. What remains is to determine whether that seizure was an investigative detention, requiring reasonable suspicion, or an arrest requiring probable cause.

(c) The Seizure Became An Arrest When McEwen Was Transported To The Police Station

Although the dividing line between Terry stops and "arrests" is necessarily protean, there is one long-standing rule, i.e. absent exigency or judicial order, transporting a detained suspect to the police station for questioning requires probable cause. The U.S. Supreme Court first addressed this specific issue--i.e. "the legality of custodial questioning on less than probable cause for a full-fledged arrest"--in Dunaway v. New York, 442 U.S. 200, 202 (1979). In that case, an informant provided the police with a lead implicating the defendant in a murder but the police lacked probable cause for an arrest warrant. Detectives located the defendant at his home, detained him and brought him to the police station for questioning. The detectives did not tell the defendant that he was under arrest, but they would have stopped him from leaving. 37 The defendant was led to an interrogation room, advised of his Miranda rights and questioned. The U.S. Supreme Court held that the defendant was unconstitutionally detained and ordered the suppression of his incriminating admissions:

. . .[T]he detention of petitioner was in important respects indistinguishable from a traditional arrest. Petitioner was not questioned briefly where he was found. Instead, he was taken from a neighbor's home to a police car, transported to a police station, and placed in an interrogation room. He was never informed that he was "free to go"; indeed, he would have been physically restrained if he had refused to accompany the officers or had tried to escape their custody. The application of the Fourth Amendment's requirement of probable cause does not depend on whether an intrusion of this magnitude is termed an "arrest" under state law. The mere facts that petitioner was not told he was under arrest, was not "booked," and would not have had an arrest record if the interrogation had proved fruitless, while not insignificant for all purposes, [citation omitted] obviously do not make petitioner's seizure even roughly analogous to the narrowly defined intrusions involved in Terry and its progeny. Indeed, any "exception" that could cover a seizure as intrusive as that in this case would threaten to swallow the general rule that Fourth Amendment seizures are "reasonable" only if based on probable cause.

Dunaway, 442 U.S. at 212-13.

The U.S. Supreme Court spoke again on the issue in Florida v. Royer, 460 U.S. 491 (1983). In Royer a man with an airplane ticket to New York was approached by two narcotics detectives as he was walking on a concourse at the Miami airport. The detectives thought he fit the profile of a drug courier. Their suspicion was heightened considerably by the suspect's 38 statements and demeanor during the brief time they spoke with him on the concourse. However, as the Supreme Court held, the detectives did not develop probable cause while conversing with the suspect on the concourse. The detectives then asked the suspect to accompany them to a room, approximately forty feet away. The suspect said nothing and followed the detectives to a small, private room with a table and two chairs. One detective asked if he could open the detainee's suitcase and the detainee produced a key. The suitcase contained marijuana. The suspect then consented to the search of a second suitcase that contained more marijuana. The entire encounter from the time of the initial stop to the discovery of the marijuana lasted approximately fifteen minutes. A plurality of the U.S. Supreme Court held that the defendant had been "arrested" without probable cause and that his purported consent to the search of his luggage was fruit of the poisonous tree:

What had begun as a consensual inquiry in a public place had escalated into an investigatory procedure in a police interrogation room, where the police, unsatisfied with previous explanations, sought to confirm their suspicions. . . .

. . .[T]he officers' conduct was more intrusive than necessary to effectuate an investigative detention otherwise authorized by the Terry line of cases. . . . [T]here are undoubtedly reasons of safety and security that would justify moving a suspect from one location to another during an investigatory detention, such as from an airport concourse to a more private area. . . . There is no indication in this case that such reasons prompted the officers to transfer the site of

39

the encounter from the concourse to the interrogation room.

Florida v. Royer, 460 U.S. at 503-05.

In the years since Dunaway and Royer, the U.S. Supreme Court has spoken on the issue at least twice. In Hayes v. Florida, 470 U.S. 811, 815-816 (1985), the court held that:

There is no doubt that at some point in the investigative process, police procedures can qualitatively and quantitatively be so intrusive with respect to a suspect's freedom of movement and privacy interests as to trigger the full protection of the Fourth and Fourteenth Amendments. Dunaway 442 U.S., at 212; Florida v. Royer, 460 U.S. 491, 499 (1983). And our view continues to be that the line is crossed when the police, without probable cause or a warrant, forcibly remove a person from his home or other place in which he is entitled to be and transport him to the police station, where he is detained, although briefly, for investigative purposes. We adhere to the view that such seizures, at least where not under judicial supervision, are sufficiently like arrests to invoke the traditional rule that arrests may constitutionally be made only on probable cause.

see also Kaupp v. Texas, 538 U.S. 626, 630 (2003) ("[W]e have never sustained against Fourth Amendment challenge the involuntary removal of a suspect from his home to a police station and his detention there for investigative purposes . . . absent probable cause or judicial authorization." (ellipses in original; internal quotation marks and citation to Hayes omitted).

In State v. White, 119 N.H. 567, 571 (1979) the New Hampshire Supreme Court followed Dunaway and held that 40 "detention for custodial interrogation regardless of its label intrudes so severely on interests protected by the Fourth Amendment as necessarily to trigger the traditional safeguards against illegal arrest." The White case was decided on legally isomorphic facts as the instant case. The defendant in White was suspected of participating in a burglary in Concord. The police had reasonable grounds for a Terry stop but lacked probable cause for an arrest. A Concord police officer detained the defendant and transported him to the Concord Police Station for questioning. The officer administered Miranda warnings and the defendant agreed to be interviewed. The New Hampshire Supreme Court suppressed the defendant's subsequent oral and written statements on the grounds that they were the product of an unconstitutional arrest.

Lower federal courts and other state courts have spoken in near unison on the issue. See, e.g., U.S. v. Acosta-Colon, 157 F.3d 9, 17 (1st Cir. 1998) (Absent probable cause, a detained suspect cannot be relocated to a an interrogation room unless there is an overriding safety concern grounded on specific facts or circumstances); Deputy v. Taylor, 19 F.3d 1485, 1491 (3d Cir. 1994) (reasonable suspicion is not enough to allow the police to transport a person to the police station and extract information through detention and interrogation); United States v. Hernandez, 825 F.2d 846, 851 (5th Cir. 1987) ("The removal of 41 the suspect from the scene of the stop to police headquarters usually marks the point at which an investigative stop becomes a de facto arrest."); United States v. Obasa, 15 F.3d 603, 608 (6th Cir.1994) (finding that a Terry stop had been transformed into an unlawful arrest because the officer transported the suspect to an airport police station rather than continuing the investigation at the point of detention); United States v. Parr, 843 F.2d 1228, 1231 (9th Cir.1988) ("[A] distinction between investigatory stops and arrests may be drawn at the point of transporting the defendant to the police station."); United States v. Gonzalez, 763 F.2d 1127 (10th Cir. 1985) (Police officer's request to have defendant accompany him to the police station was not acceptable as part of a valid Terry stop detention); Glass v. City of Philadelphia, 455 F.Supp.2d 302, 347 (E.D. Pa. 2006)(City of Philadelphia's custom of bringing suspects to the police station for questioning without probable cause to arrest was "in clear contravention of the mandate set forth by the Supreme Court."); United States v. Ryan, 729 F.Supp.2d 479, 487 (D. Mass. 2010) ("A well-defined limitation is that a suspect may not be removed to a police station without his consent."); Orozco v. County of Yolo, 814 F.Supp. 885, 892 (E.D. Cal. 1993) (although there is no bright line for determining when an investigatory stop becomes an arrest, a distinction may be drawn at the point of transporting the 42 defendant to the police station.); Vargas Ramirez v. U.S., 93 F.Supp.3d 1207, 1220 (W.D. Wash. 2015) (Transportation to the police station for questioning is sufficiently like an arrest to require probable cause); State v. Edwards, 570 A.2d 193, 201 (Conn. 1990) ("[W]e have never extended a Terry stop to include transporting a suspect to a police station for open ended questioning."); D.Y. v. State, 28 N.E.3d 249, 252 (Ind.Ct.App. 2015)(Transporting suspect to the police station for questioning, without telling him that the transportation was voluntary was an "arrest" rather than a Terry stop); State v. Bradford, 620 N.W.2d 503, 507 (Iowa 2000) (Holding that transportation to the police station for questioning required probable cause and noting that, "[T]he removal of a suspect from the scene of the stop generally marks the point at which the Fourth Amendment demands probable cause."); State v. Jones, 456 S.E.2d 459, 463 (W.Va. 1995) ("Clearly, the police cannot seize an individual, take him involuntarily to a police station, and detain him for interrogation purposes while lacking probable cause to make an arrest."); State v. Solano, 930 P.2d 1315, 1319 (Ariz.Ct.App. 1996) ("Standing alone, the transportation of [the defendant] to the crime scene for interrogation transformed the initial detention into an arrest without probable cause."); see also LaFave, Search & Seizure: A Treatise On The Fourth Amendment, (6th Ed.) § 9.2(g), Place Of Detention Limits 43 ("[T]aking of the suspect to the station in lieu of conducting the investigation at the scene will ordinarily take the police conduct outside the Terry rule").

The State argues that even if transportation to the police station is usually verboten in the absence of probable cause, in this case probable cause was not necessary because McEwen consented to the upgrade in custody. This is a peculiar argument because the State concedes that McEwen could not withdraw his consent by walking out of the police station. (Recall that Detective Shaughnessy testified that McEwen was detained, and not free to leave, during his entire stay at the police station.) A person's consent to be some place is only consent if the person is free to leave. If a person who enters a police station voluntarily is not free to leave once he goes inside, then, according to Dunaway, Royer, Davis and Kaupp, he is "arrested" rather than merely "detained."

Assuming, arguendo and dubitante, that irrevocable consent (i.e. consent to the transportation that once given could not be later withdrawn at the police station) would be of legal significance, the State's consent argument fails as matter of fact. For the reasons set forth below, the court finds that McEwen did not voluntarily consent to be transported the police station. 44

"The burden is on the State to prove, by a preponderance of the evidence, that the consent was free, knowing and voluntary." State v. Watson, 151 N.H. 537, 540 (2004); see also State v. Livingston, 153 N.H. 399, 405 (2006); Bumper v. North Carolina, 391 U.S. 543, 548-49 (1968); Florida v. Royer, 460 U.S. 491, 497 (1983). In this context, as well as more generally under the Fourth Amendment, "[c]onsent must be proved by clear and positive testimony and must be unequivocal, specific, and intelligently given, uncontaminated by any duress and coercion." United States. v. Butler, 223 F.3d 368, 375 (6th Cir. 2000); (finding that defendant did not consent to be transported to the police station during a Terry Stop); see also United States v. Pena, 143 F.3d 1363, 1366 (10th Cir. 1998); United States v. Shaibu, 920 F.2d 1423, 1426 (9th Cir. 1990).

Whether a suspect gave voluntary consent is a question of fact based on the totality of the circumstances. One "especially significant" factor is whether the suspect was informed by law enforcement of his right to refuse consent. United States v. Mendenhall, 446 U.S. 544, 558(1980); see also Florida v. Bostick, 501 U.S. 429, 432 (1991); State v. Watson, 151 N.H. at 541 ("[T]he failure of the police to advise the defendant of his right to refuse consent may be considered in determining the validity of his consent."). While an express admonishment of the right to refuse consent is not a bright line 45 requirement, it can go a long way towards meeting the State's burden of proof. In this case, Officer Scheidel did not testify that he advised McEwen of his right to decline consent. There was no other evidence presented, from a party with personal knowledge, that such a warning was actually given.

The fact that the McEwen was already detained when he purportedly agreed to be transported is another factor that militates against a finding of voluntary consent. See Watson, 151 N.H. at 141 ("[I]n some situations, the fact that the defendant is in custody may weigh heavily against a finding of valid consent."). McEwen had already ascertained that he lacked the ability to use the bathroom without an escort and that he was not free to leave. That said, McEwen had not been handcuffed and he was detained in a public place. It is also true that no officer cajoled or threatened McEwen or spoke to him with a raised voice.

Looking at all of the circumstances, the court finds that the State has failed to prove that McEwen voluntarily consented to be transported to the police station for interrogation. Accordingly, the court finds that McEwen was "arrested" within the meaning of the Fourth Amendment and Article 19 when he was placed into the police cruiser. 46

(3) McEwen's Arrest Was Not Supported By Probable Cause

The State does not argue that the police had probable cause to arrest McEwen at the time he was transported to the police station. The standard for probable cause is set forth above at page 34. In this case, while there was abundant reasonable suspicion for a Terry stop, that suspicion fell far short of probable cause:

-McEwen was at the scene of two fires that occurred on the same night;

-The first fire occurred in a building where McEwen was employed, but he was not otherwise linked to the fire;

-The second fire occurred outside the apartment door of an acquaintance of McEwen, but he was not otherwise linked to that fire;

-McEwen spoke with this acquaintance while the fire fighters were at the scene;

-McEwen had pot holders on his person, but there is nothing linking the pot holders to either fire or to a theory of ignition;

-McEwen had been convicted of arson and false alarm in the past.

47

(4) Exclusion Of The Fruit Of The Poisonous Tree

(a) Introduction

Our Constitutions' guarantees against unreasonable searches and seizures are enforced in criminal proceedings by the exclusionary rule. The exclusionary rule forbids the government from using at trial evidence that was obtained through a violation of the defendant's Fourth Amendment and Article 19 rights. Wong Sun v. United States, 371 U.S. 471, 487-88 (1963); State v. Blesdell-Moore, 166 N.H. 184, 190-91 (2104); State v. Panarello, 157 N.H. 204, 207 (2008).

Two metaphors guide the courts in determining whether a constitutional violation was sufficiently causative to require the exclusion of evidence obtained thereafter. The first metaphor is that of the "fruit of the poisonous tree." Wong Sun, 371 U.S. 487. Generally speaking, evidence must be suppressed as "fruit" of a Fourth Amendment or Article 19 violation if it is "derived" from that violation. See, e.g., Blesdell, 166 N.H. at 191.

The second metaphor is that of the "dissipated taint." When intervening events and circumstances stand between the constitutional violation and the discovery of the evidence, it may be that "taint" of the illegality is too remote to warrant suppression. See Wong Sun, 371 U.S. 487-88: 48

We need not hold that all evidence is 'fruit of the poisonous tree' simply because it would not have come to light but for the illegal actions of the police. Rather, the more apt question in such a case is whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.

see also State v. Morrill, 169 N.H. 709, 717 (2017). "The State bears the burden to demonstrate that any taint of an illegal search or seizure has been purged or attenuated." Id.; see also State v. White, 119 N.H. at 570.

(b) McEwen's Statements At The Police Station On April 16, 2021

As explained above, McEwen was unconstitutionally "arrested" in the constitutional sense of that term when he was transported to the police station for interrogation on April 16, 2021. To determine whether the taint of the unlawful arrest renders his statements inadmissible, the court focuses on four factors, i.e. "(1) whether Miranda warnings were given; (2) the temporal proximity of the arrest and the confession; (3) the presence of intervening circumstances; and (4) the purpose and flagrancy of the official misconduct." State v. Gotsch, 143 N.H. 88, 90 (1998); see also Brown v. Illinois, 422 U.S. 590, 603 (1975). None of these factors is dispositive.

The first factor, whether Miranda warnings were given, militates the State's favor. Detective Shaughnessy read the 49 warnings to McEwen. McEwen understood the warnings, waived is rights and signed the Miranda form. However, "Miranda warnings do not per se remove the taint of the illegal arrest." State v. Palamia, 124 N.H. 333, 337 (1983). As the U.S. Supreme Court observed, Miranda is not a "cure-all" for an unconstitutional arrest:

If Miranda warnings, by themselves, were held to attenuate the taint of an unconstitutional arrest, regardless of how wanton and purposeful the Fourth Amendment violation, the effect of the exclusionary rule would be substantially diluted. Arrests made without warrant or without probable cause, for questioning or 'investigation,' would be encouraged by the knowledge that evidence derived therefrom could well be made admissible at trial by the simple expendent of giving Miranda warnings. Any incentive to avoid Fourth Amendment violations would be eviscerated by making the warnings, in effect, a 'cure-all,' and the constitutional guarantee against unlawful searches and seizures could be said to be reduced to 'a form of words.'

Brown, 422 U.S. at 602-03.

The next factor, temporal proximity, weighs against the State. The unconstitutional arrest immediately preceded the interrogation. Indeed, McEwen was brought to the police station solely for custodial interrogation and that interrogation began as soon as he got there. Further, when McEwen first entered the interrogation room he asked to go home because he was tired. Instead of honoring this request, as the Fourth Amendment and Article 19 required, Detective Shaughnessy responded by closing the door and questioning McEwen for hours. Thus, the 50 constitutional violation and the interrogation were ongoing and simultaneous.

The factor of "intervening circumstances" also weighs against the State. In this case, there were no intervening circumstances. "An intervening circumstance is one that dissipates the taint of the unconstitutional police conduct by breaking the causal connection between the illegal conduct and the confession." State v. Miller, 159 N.H. 125, 131 (2009). Examples of intervening circumstances include a subsequent arrest on unrelated charges, see United States v. Green, 111 F.3d 515, 521 (7th Cir. 1997), or a defendant's "subsequent release from custody, an appearance before a magistrate, consultation with a lawyer, [or] subsequent convictions on unrelated charges." United States v. Delgadillo-Velasquez, 856 F.2d 1292, 1300 (9th Cir. 1988). In this case McEwen was in police custody the entire time and he had no opportunity to consult with anybody outside of the interrogation room. It is true that McEwen was given a pillow and allowed to sleep, but to the extent that this constituted an intervening event, it occurred after the interrogation was finished (and indeed after McEwen had invoked his right to silence).

The final factor has to do with the flagrancy of the conduct. The presence or absence of flagrant misconduct is not dispositive. Miller, 159 N.H. 134-135 51 (citing Williams v. State, 937 S.W.2d 23, 37 (Tx. Ct. App. 1996) ("Otherwise inadmissible evidence should not be made admissible simply because the police misconduct was not too reprehensible.") and State v. Miller, 894 S.W.2d 649, 656 (Mo. 1995) ("[T]he absence of purposes and flagrant misconduct cannot alone dissipate the taint in the complete absence of temporal distance and intervening circumstances.")).

That said, the violation in this case was flagrant and deliberate. The court made copious citations to long standing U.S. Supreme Court precedent, and provided a turgid three page string cite for the purpose of demonstrating, to the point of inducing ennui on the part of the reader, that our constitutions do not permit custodial interrogation on less than probable cause. The violation in this case was obvious. The conduct was precisely "the kind of willful or purposeful misconduct that the exclusionary rule was fashioned to deter." Miller, 159 N.H. at 133.

In weighing the above factors, the court finds that Miranda warnings in this case do not outweigh all of the other factors. This finding is not based on crude arithmetic, but rather on a careful consideration of the totality of the circumstances. The State has failed to meet its burden to prove by a preponderance of the evidence that the taint of the unlawful arrest had dissipated. 52

Accordingly, all of the statements that the McEwen made at the Concord Police Station on April 16, 2021 are SUPPRESSED.

(c) McEwen's Statements During Phone Calls From The Hospital

As noted above, McEwen placed a couple of phone calls to Detective Shaughnessy during his stay at the hospital pursuant to the IEA. Neither party introduced much in the way of evidence relating to these phone calls. However, regardless of whether the substance of the phone calls is admissible under the Rules of Evidence (see N.H.R.Ev. 401, 402, and 403), McEwen's statements during the phone calls are not fruit of the poisonous tree.

These phone calls were initiated by McEwen because he wanted to speak with Shaughnessy. The phone calls were made days after McEwen had been released from the illegal arrest. Thus, they were temporally distant. In the interim McEwen met with his mother and was admitted to the hospital and, presumably, treated. Thus, there were intervening circumstances. Although McEwen was not given Miranda, he was also not subject to custodial interrogation. Indeed, he was not in custody and he was not interrogated.

The balance of factors is easy. The phone calls are not suppressed. 53

(d) McEwen's Statements At The Police Station On April 22, 2021

McEwen's statements at the police station on April 22, 2021 are not fruit of the illegal arrest on April 16, 2021. McEwen was given Miranda warnings which he waived orally and in writing. The April 22 interrogation occurred almost a week after he had been released from the illegal arrest, so it was temporally distant. There were intervening events, as evidenced by McEwen's meeting with his mother and his hospitalization. Indeed, as discussed above, McEwen had initiated a few phone calls to Detective Shaughnessy while he was at the hospital.

While the court appreciates counsel's argument that McEwen may have been in a fragile mental and emotional state, the balance of factors clearly weighs in the State's favor. By the time of the April 22 interrogation, the taint of the illegal arrest had dissipated.

Accordingly, McEwen's statements at the police station on April 22 are not suppressed on Fourth Amendment/Article 19 grounds. (That said, as explained below, some of McEwen's April 22 statements are suppressed on Fifth Amendment/Article 15 Miranda grounds.)

(e) The Search Warrants

In General: A search warrant based in part on unconstitutionally acquired evidence is valid only if there was 54 enough other evidence presented to the issuing magistrate to establish probable cause. State v. Letoile, 166 N.H. 269, 277 (2014); State v. Orde, 161 N.H. 260, 269 (2010); State v. Plch, 149 N.H. 608, 620 (2003). Thus, to test the validity of the search warrants in this case, the court must excise the tainted information and examine the remaining information to determine whether it establishes probable cause. Letoile, 166 N.H. at 277. In making this determination, the court uses the definition of probable cause set forth below at page 60.

In this case, Detective Shaughnessy obtained three search warrants. The first warrant was applied for and issued on April 16, 2021 and it was for McEwen's clothes, footwear and person. The second warrant was applied for and issued on the same day and it was for McEwen's home. The third and final search warrant was applied for and issued four days later on April 20, 2021. That third warrant was for a search of McEwen's cell phone.

The affidavits in support of all three warrants relied heavily on the suppressed statements that McEwen made during the April 16 custodial interrogation. Those statements, which were detailed above, will not be considered in determining probable cause vel non.

The Warrant For McEwen's Home:

The affidavit for the search warrant for McEwen's home contained only the following additional facts linking McEwen to the fires: 55

-McEwen was at the scene of both fires.

-The Margarita's fire started in a trashcan in the bathroom.

-The 20 Bog Road fire started about an hour later.

-The 20 Bog Road fire started on the outside door to Jessica's apartment. The door and the floor outside the door were lit on fire.

-The Concord Fire Department found apparent evidence of an accelerant on Jessica's door, under her door, and down the hallway toward the stairwell exit.

-McEwen and Jessica were co-workers.

-McEwen had oven mitts in his back pocket.

-McEwen was arrested for arson in 2017 and for pulling a false fire alarm in 2018 and was convicted of both offenses.

Regardless of whether the full affidavit established probable cause, without McEwen's statements probable cause is plainly lacking. All that was established is that McEwen had committed similar offenses in in the past (i.e. that he might have acted in conformity with a criminal propensity), that he knew one of the victims of the second fire, and that he happened to be at both scenes. While all of this was surely suspicious, it was not probable cause.

The Affidavit For Clothes, Footwear and McEwen's Person:

The affidavit in support of the search warrant for McEwen's clothing, footwear, and person included everything in the affidavit for the search of McEwen's home plus (a) a description 56 of McEwen's clothing (which was not in itself incriminatory) and (b) certain observations that Detective Shaughnessy made during the interrogation. These observations are fruit of the poisonous tree themselves and, therefore, should not be considered. However, they are so unimportant that they do not measurably affect the determination of probable cause:

A. McEwen possessed a lighter (as well as cigarettes); and

B. McEwen had a "blemish" on the back of his right hand that "could be consistent" with a burn mark, but it was not clear whether the blemish was old or new.

With McEwen's suppressed statements removed, the affidavit for the search warrant for his clothes, footwear and person does not establish probable cause.

The Affidavit For The Phone:

The affidavit in support of the search warrant for the phone was similar to the affidavit for the search warrant for McEwen's home, but included the following additional evidence:

A. Officer Scheidel observed a phone in McEwen's hands at the scene of the 20 Bog Road fire;

B. Officer Scheidel observed of McEwen using the phone to apparently text somebody while he was at the scene; and

C. Detective Shaughnessy's observed the phone during the custodial interrogation. (This observation was itself fruit of the poisonous tree).

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None of these observations were inculpatory. None of them linked McEwen to the fire.

The judge who issued the search warrant for the phone noted that Detective Shaugnessy provided the following additional information orally: While at the scene of the 20 Bog Road fire, McEwen provided a written statement to an Assistant Fire Marshall and then read the statement into his phone. The substance of the written statement was not described by the issuing judge. Thus, the judge's note says no more than that McEwen was interviewed and provided a witness statement, the substance of which is unknown.

Once McEwen's suppressed statements are excised from the affidavit, probable cause is plainly lacking. Accordingly, all three search warrants are invalid as fruit of the poisonous tree. The evidence obtained pursuant to the three warrants is SUPPRESSED. (Note that the evidence obtained pursuant to the warrant for the cell phone is also suppressed on the ground that it was unconstitutional seized, as explained immediately below).

(f) The Seizure Of The Cell Phone

The search warrant for McEwen's cell phone is the fruit of an illegal warrantless seizure. Toward the end of the interrogation on April 16, 2021, Detective Shaughnessy grabbed McEwen's cell phone, without asking for permission. He then demanded the passcode for the phone which McEwen provided. 58 Shaughnessy kept the phone as evidence pending the application for a search warrant.

The seizure of the phone was a direct exploitation of McEwen's unconstitutional arrest. At the time that Officer Scheidel detained McEwen in front of Dunkin' Donuts, he lacked probable cause to seize the phone pending the application for a warrant. The standard of probable cause for a warrantless seizure of property, pending the application for a warrant to look inside that property, is the same as the standard of probable cause for the warrant itself. See State v. Berthiaume, 124 N.H. 264, 266 (1983) ("To allow a police officer to seize an object on less than probable cause in order to further investigate whether it is contraband violates the defendant's protection against unreasonable search and seizure provided in part I, article 19."); United States v. Place, 462 U.S. 696, 701 (1983) (" Where law enforcement authorities have probable cause to believe that a container holds contraband or evidence of a crime, but have not secured a warrant, the Court has interpreted the [Fourth] Amendment to permit seizure of the property, pending issuance of a warrant to examine its contents, if the exigencies of the circumstances demand it or some other recognized exception to the warrant requirement is present."); United States v. Boozer, 511 F.Supp.3d 1128, 1135 (D. Or. 2021) (A seizure of a child pornography suspect's computer, to 59 prevent possible destruction of evidence pending the application for a search warrant, "requires both probable cause and exigent circumstances."); United States v. Licata, 761 F.2d 537, 541 (9th Cir. 1985) (Probable cause and exigent circumstances are required).

In this context, probable cause means that there is "a substantial likelihood that the items sought will be found in the place to be searched." State v. Letoile, 166 N.H. 269, 272- 73 (2014); State v. Ward, 163 N.H. 156, 159 (2012); State v. Ball, 164 N.H. 204, 207 (2012); see also Illinois v. Gates, 462 U.S. 213, 238 (1983) (Probable cause exits when "there is a fair probability that contraband or evidence of a crime will be found in particular place.")

Thus, if probable cause for the seizure of the phone was developed (which the court doubts but need not decide), then it was developed as a result of Detective Shaughnessy's interrogation of McEwen during his illegal arrest. Accordingly, the seizure of the phone--and the discovery of the passcode--were fruit of the poisonous tree.

The State has not argued the doctrine of inevitable discovery. Had it done so, the State would have had the burden to demonstrate that the same evidence would have been discovered without exploiting the illegal arrest. State v. Davis, __ N.H. __, 2021 WL 4999250 (Oct. 28, 2021); State v. Broadus, 167 N.H. 307, 313 (2015); 60 United States v. Almeida, 434 F.3d 25, 28-29 (1st Cir. 2006). However, the record is completely silent with respect to:

(a) The likelihood that the police could have and would have accessed the phone without McEwen's disclosure of the passcode; and

(b) The likelihood that, in the absence of the April 16 interrogation, the police would have even looked for the phone.

As to the first issue, i.e. the passcode, the State presented no evidence of how the State might go about gaining entry to the phone without the passcode. As to the second issue, i.e., whether the police would have looked for the phone, the court is forced to speculate. Was Shaughnessy's decision to seize the phone was opportunistic? That is, did he think to do so only because he observed the phone in McEwen's hands during the interrogation? Or, alternatively, did the police department have a practice of searching cell phones in all similar cases. The record on these points is not merely inchoate, it is absent.

Therefore, even if the court were inclined to reach the doctrine of inevitable discovery sua sponte, it could not do so. Accordingly, the court finds that seizure and ultimate search of McEwen's cellphone is fruit of the poisonous tree. The evidence found on the phone is SUPPRESSED for this reason. (Note that, 61 as explained the results of the search of the cell phone were also suppressed as fruit of the illegal arrest.)

(g) The delay in requesting a search warrant for the phone

The court rejects the defendant's argument that Detective Shaughnessy's four day delay in submitting his application for the warrant to search the cell phone was unreasonable.

"[A] seizure reasonable at its inception because based upon probable cause may become unreasonable as a result of its duration." State v. Stacey, 171 N.H. 461, 465 (2018) (quoting Segura v. United States, 468 U.S. 796, 812 (1984)). "Thus, a temporary warrantless seizure supported by probable cause is reasonable as long as the police diligently obtain a warrant in a reasonable period of time." Id., (quoting United States v. Laist, 702 F.3d 608, 613 (11th Cir. 2012)(internal quotation marks and bracketing omitted)); see also United States v. Martin, 157 F.3d 46, 54 (2d Cir. 1998) (explaining that "even a seizure based on probable cause is unconstitutional if police act with unreasonable delay in securing a warrant"). When determining whether a seizure is unreasonable due to a delay in obtaining a warrant, the Court must balance the nature and quality of the intrusion on the individual's constitutionally-protected interests against the importance of the governmental 62 interests alleged to justify the intrusion. State v. Stacey, 171 N.H. 461, 465 (2018).

In Stacey, the New Hampshire Supreme Court held that a five day delay in applying for a search warrant for a vehicle was not unreasonable. The court noted that the intervening days included the July 4 holiday weekend and that the application was submitted to the court on the first available business day after the holiday. The court also noted that the vehicle did not belong to the defendant, who had no further right to use it, and that the actual owner did not object to the seizure.

In this case, the phone was seized on a Friday and the warrant application was submitted that Tuesday. Thus, there was an intervening weekend. McEwen was at the hospital, subject to an IEA during these four days. The record is silent with respect to whether he would have been allowed to use his cell phone if he had it with him. The record is also silent with respect to what alternatives he had available.

To be sure, McEwen called Detective Shaughnessy from the hospital and inquired about his cell phone. He wanted it back. But the dates of those calls are not in the record. Thus, it is unclear whether he called before or after the warrant application was submitted.

The court can only speculate for the reasons for the delay. While it would not be legitimate to delay the warrant 63 application for the purpose of developing probable cause (because that should have occurred before the seizure), it might well be reasonable to delay the application long enough to collect and recite all of the extant probable cause, including information that other officers knew.

On balance, while four days may be close to the limit of reasonableness under the circumstances, and while Detective Shaughnessy could have acted with greater alacrity, the court finds that the delay was not unreasonable.

B. The Fifth Amendment And Article 15: Miranda

(1) The Framework

McEwen argues that his statements on April 16 and 22, 2021, and all derivative evidence, must be suppressed due to Miranda violations. More particularly, McEwen claims that on both occasions: (a) he was subjected to custodial interrogation, (b) he did not make a knowing, intelligent and voluntary waiver of his Miranda rights, and (c) his interrogators did not honor his later express assertions of his rights to silence and counsel.

The State agrees that the April 22 interrogation continued without interruption after McEwen unambiguously asserted his right to cut off questioning. See State's Objection, ¶49. Therefore, the State concedes that the statements McEwen made after his invocation of his Miranda rights must be suppressed. 64 However, the State disputes all of McEwen's other Miranda claims. For the reasons set forth below, the court agrees with the State's position.

Under the Fifth Amendment to the United States Constitution and Part 1, Article 15 of the New Hampshire Constitution, criminal defendants cannot be compelled to testify against themselves. This constitutional privilege against self-incrimination spares defendants from "the cruel trilemma of self-accusation, perjury or contempt" and reflects "our preference for an accusatorial rather than an inquisitorial system of criminal justice." Murphy v. Waterfront Commission of New York Harbor, 378 U.S. 52, 55 (1964). It stands as "an exception to the general principle that the Government has the right to everyone's testimony." Garner v. United States, 424 U.S. 648, 658 (1976).

The privilege against self-incrimination applies not only during the defendant's trial, but also prior to trial--indeed prior to arrest--during custodial interrogation. Miranda v. Arizona, 384 U.S. 436 (1966); Dickerson v. United States, 530 U.S. 428 (2000); State v. Benoit, 126 N.H. 6 (1985); In Re B.C., 167 N.H. 338 (2015). Custodial interrogation by the police can be inherently coercive. Therefore, the New Hampshire and Federal Constitutions require, as a prerequisite to every custodial interrogation, that the police first advise the suspect of his 65 or her rights to silence and counsel and then obtain a knowing, voluntary and intelligent waiver of those rights. See Miranda, 384 U.S. at 467:

. . . [W]ithout proper safeguards the process of in-custody interrogation of persons suspected or accused of crime contains inherently compelling pressures which work to undermine the individual's will to resist and to compel him to speak where he would not otherwise do so freely. In order to combat these pressures and to permit a full opportunity to exercise the privilege against self-incrimination, the accused must be adequately and effectively apprised of his rights and the exercise of those rights must be fully honored.

See also In Re B.C., 167 N.H. at 692-693. Although there may be some variance in wording, the warning required by Miranda and its New Hampshire constitutional progeny must explain that (a) the suspect has the right to remain silent, (b) if the suspect chooses to speak then what he says may be used against him in court, (c) the suspect may choose to answer questions only with the assistance of counsel, and (d) if the suspect cannot afford counsel for this purpose, counsel will be appointed before questioning takes place.

In the absence of Miranda warnings and a subsequent waiver of Miranda rights, the State may not introduce in its case in chief any statements that the defendant made during custodial interrogation. Berkemer v. McCarty, 468 U.S. 420, 429 (1984). In Re B.C., 167 N.H. at 693. Under the New Hampshire Constitution, "the State has the burden of proving beyond a 66 reasonable doubt that the defendant was apprised of his or her constitutional rights and that the subsequent waiver was voluntary, knowing and intelligent." State v. Pyles, 166 N.H. 166, 168 (2014); see also State v. Bushey, 122 N.H. 995 (1982); State v. Duffy, 146 N.H. 648 (2001).³

3 The Federal Constitution requires proof by a preponderance of the evidence. Colorado v. Connelly, 479 U.S. 157, 168 (1986).

When, as in this case, a suspect initially waives his or her Miranda rights but later, during the course of interrogation, unambiguously asserts either the right to counsel or the right to terminate questioning, the police must "scrupulously honor" that assertion. See Michigan v. Mosley, 423 U.S. 96, 100-101 (1975):

Once warnings have been given, the subsequent procedure is clear. If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. At this point he has shown that he intends to exercise his Fifth Amendment privilege; any statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise. Without the right to cut off questioning, the setting of in-custody interrogation operates on the individual to overcome free choice in producing a statement after the privilege has been once invoked.

(quoting Miranda, 384 U.S., at 473-474); see also Berghuis v. Thompkins, 560 U.S. 370, 381 (2010); State v. Laurie, 135 N.H. 438, 442 (1992); State v. Watson, 170 N.H. 720, 726 (2018). 67 However, a mid-interrogation invocation of Miranda rights must be clear and unambiguous to be effective. The police are not required to cut off questioning in response to equivocal or ambiguous references to silence or counsel. State v. Watson, 170 N.H. 720, 726-727 (2018); Davis v. United States, 512 U.S. 452, 459 (1994).

Further questioning after the assertion of one's Miranda rights is not forever barred. If only the right to counsel is asserted, then questioning can be resumed if either (a) counsel is provided or (b) the suspect reinitiates the conversation without prompting and then knowingly and intelligently waives his Miranda rights. Edwards v. Arizona, 451 U.S. 477(1983); State v. Plch, 149 N.H. 608, 616 (2003). Furthermore, the post-assertion protection against uncounseled reinitiation ends when the suspect is released from custody. Maryland v. Shatzer, 559 U.S. 98, 108 (2010). If the suspect later finds himself in custody again, he may be approached for interrogation but, of course, he could then elect to assert or waive his Miranda rights.

Alternatively, if only the right to cut off questioning (i.e. the right to silence) is asserted, under certain circumstances, and given a sufficient lapse of time, the police may attempt another Mirandized interview without a break in custody. In Mosely, the U.S. Supreme Court determined that the 68 defendant's right to cut off questioning had been scrupulously honored because: (a) the police immediately ceased the interrogation; (b) the police did not resume questioning until the passage of a significant period of time; (c) the police provided a fresh set of Miranda warnings; and (d) the police restricted the second interrogation to a crime that had not been the subject of the earlier interrogation. Mosley, 423 U.S. at 106; see also Laurie, 135 N.H. 438, 442 (1992).

With this general overview of the Miranda process in mind, the court now turns to the facts of this case.

(2) The April 16, 2021 Interrogation

Custody:

As a threshold matter, the court finds that McEwen was in custody for Miranda purposes when he was interrogated at the Concord Police Department during his prolonged detention on April 16, 2021. To be sure, McEwen had not been formally arrested to answer for a crime and he had not been handcuffed, fingerprinted or placed inside a cell. However, as detailed above, McEwen was otherwise subjected to the same degree of custody and restraint on movement as an arrestee:

-He was detained, frisked and transported to the police station for interrogation in the middle of the night.

-He was entirely isolated in an interrogation room;

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-He was told he was detained and when he said, "I want to go home," not only was his request ignored, but the detective instead shut the door;

-He came into the police station via the sallyport and was closely escorted, monitored by police officers, and continuously audio and video recorded once he was inside the building;

-He was at the police station for as much time, if not more, than a typical arrestee; -Although the questioning began in a non-leading fashion, it quickly became highly accusatory;

-This judge easily spotted the detective using several classic, albeit reasonable and lawful, interrogation techniques designed to break down a suspect's 'wall of resistance," i.e. (a) obsequiousness and appeals to the suspect's purported sense of honor and morality; (b) minimization of the offense; (c) suggestion of the possibility that the offense was the result of an understandable mistake rather than "maliciousness;" (d) confrontation with imagined corroborative evidence (i.e. raising the possibility of an eyewitness when there was none); (e) conveying an air of certainty regarding the suspect's guilt; (f) raising the spectre that if the suspect does not confess the outcome for the defendant might be worse (i.e. referencing the two ways the detective could write his report).

70

"Custody entitling a defendant to Miranda protections requires formal arrest or restraint on freedom of movement to the degree associated with formal arrest." In re B.C., 167 N.H. at 342; see also State v. McKenna, 166 N.H. 671, 676 (2014); State v. Jennings, 155 N.H. 768, 772 (2007); Stansbury v. California, 511 U.S. 318, 323 (1994); Berkemer v. McCarty, 468 at 440-441. In the absence of a formal arrest, the court must "determine whether a suspect's freedom of movement was sufficiently curtailed by considering how a reasonable person in the suspect's position would have understood the situation." Jennings, 155 N.H. at 772; see also In Re B.C., 167 N.H. at 693-694. Thus, the court must look at the totality of the circumstances including "the suspect's familiarity with [his or her] surroundings, the number of officers present, the degree to which the suspect was physically restrained, and the interview's duration and character." In Re B.C., 167 N.H. at 693-694.

In this case, the determination that McEwen was in custody for Miranda purposes is an easy call. In making this determination the court is mindful that not all interviews in police interview/interrogation rooms are custodial. To the contrary, such rooms may be used to interview witnesses, victims and suspects who appear voluntarily, and who can leave at any time. See, e.g., State v. Carpentier, 132 N.H. 123, 127 (1989) (murder suspect who went to the police station for a voluntary 71 interview, and who said upon leaving that he would be happy to return if the police had more questions, was not in custody for Miranda purposes); State v. Locke, 149 N.H. 1, 6-7 (2002) (murder suspect was not in custody when he was told multiple times that he was not under arrest and was free to terminate the interrogation and leave); Oregon v. Mathiason, 429 U.S. 492 (1977) (defendant, who came voluntarily to police station, was immediately informed he was not under arrest, and gave a half hour interview during which he confessed to burglary, before leaving the police station on his own, was not in custody for Miranda purposes). However, as detailed above, the facts relating to this particular interrogation have all of the hallmarks of custody. Cf: United States v. Mittel-Carey, 493 F.3d 36 (1st Cir. 2007) (Defendant was in custody for Miranda purposes during the execution of a search warrant at his home even though he was neither arrested or handcuffed, because the police so completely controlled his movements and the interrogation).

Interrogation:

"Interrogation for Miranda purposes occurs where 'a person in custody is subjected to either express questioning or its functional equivalent.'" State v. Spencer, 149 N.H. 622, 625 (2003) (quoting Rhode Island v. Innis, 446 U.S. 291, 300-301 (1980). The functional equivalent of interrogation includes "any words or actions on the part of the 72 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." Id.; see also Plch, 149 N.H. 608, 613-614 (2003); State v. Gribble, 165 N.H. 1, 11 (2013).

In this case, there is no dispute that McEwen was expressly interrogated by Detective Shaughnessy right up until the time he told Shaughnessy the passcode for the phone. At that point, however, Detective Shaughnessy left the room to prepare warrant paperwork. Officer Scheidel did not ask McEwen any questions about the fires and, indeed, he refused to engage with McEwen on the subject. When Detective Shaughnessy returned he focused exclusively on the execution of the search warrants. He did not resume questioning about the offense.

The court finds that (a) McEwen was interrogated, but (b) the interrogation ceased after he told Detective Shaughnessy the passcode for his phone.

Warning & Waiver:

Detective Shaughnessy advised McEwen of his Miranda rights. He used the standard formulation to do so. He provided McEwen with a written waiver form. McEwen orally stated that he waived his rights and he signed the form.

The court recognizes that when McEwen waived his rights, he was in a precarious mental and emotional state (as evidenced by the fact that was IEA'd upon release). The court also 73 recognizes that McEwen had used drugs approximately six or seven hours earlier (alcohol, marijuana and cocaine), and that he suffered from a disability (which he referred to as high functioning autism accompanied by a reading deficit). However, these difficulties did not occlude McEwen's ability to make a knowing, intelligent and voluntary waiver of his Miranda rights.

This is documented by the substance, tenor, grammar, and wording of McEwen's statements, during the first hour of interrogation. Further, when the interrogation was over, McEwen demonstrated a keen understanding of his rights by telling Officer Scheidel, that he wanted a lawyer and that "I'm doing my Fifth Amendment, I'm done talking to him." (T, 101).

Furthermore, McEwen's other life skills are such that the ability to understand and waive Miranda rights would not ordinarily be called into question. He graduated from high school, albeit with a disability. He held down two jobs despite his disability. He appeared to have no difficulty in understanding concepts that were at least as abstract as Miranda.

To make a valid Miranda waiver, all that is required is that the suspect know that (a) he does not have to answer questions, (b) his answers will be used in court, (c) he can cut off questions and (d) he has a right to a lawyer during 74 questioning. The decision to waive Miranda does not need to be wise; it needs to be voluntary.

The court finds that the State has proven, beyond a reasonable doubt, that McEwen waived his Miranda rights prior to custodial interrogation on April 16, 2021.

Later Invocation Of Miranda Rights:

After the interrogation ended, McEwen clearly invoked his rights to silence and to counsel. He told Officer Scheidel that he wanted a lawyer and he expressly referenced the Fifth Amendment. However, shortly after this assertion, McEwen muddied the waters by saying that did not really mean that he wanted a lawyer.

In the court's view, McEwen's initial assertion of his rights to counsel and silence was scrupulously honored. Officer Scheidel did not ask him any questions about the fire and, indeed, refused to engage with him on the subject. No other officer reinitiated interrogation.

Thus, even if McEwen's subsequent statement that he did not want a lawyer opened the door to further questioning, no questioning occurred.

The bottom line with respect April 16, 2021 Interrogation:

The court rejects all of McEwen's Miranda claims relating to statements that he made on April 16, 2021 at the Concord Police Department. While those statements have been suppressed on 75 Fourth Amendment/Article 19 grounds, there are no Miranda grounds for suppression.

(3) The April 22, 2021 Interrogation

The Miranda analysis of the April 22, 2021 interrogation is straightforward. McEwen had been formally arrested and brought to the police station in handcuffs. He was then brought to an interview/interrogation room and asked questions by the lead detective in the case. This is archetypal custodial interrogation requiring Miranda warnings and a waiver of Miranda rights.

Although McEwen had asserted his rights to counsel and silence five days earlier, there was nothing untoward about Detective Shaughnessy reinitiating contact. In the interim, McEwen had been released from custody. He had met with family. He had been hospitalized. He had been released from the hospital. Thus, McEwen's invocation of his rights to counsel and silence on April 16, 2021 did not bar Shaughnessy from reinitiating interrogation, with new Miranda warnings, on April 22, 2021. Shatzer, 559 U.S at 109; Mosley, 423 U.S. at 106; Laurie, 135 N.H. 438 at 442.

Detective Shaughnessy administered Miranda warnings to McEwen. McEwen once again waived his Miranda rights orally and in writing. Although defense counsel again claims that McEwen's waiver was invalid due to his mental state (having just been 76 discharged from an IEA) and disability, the court once again finds that McEwen understood his rights and knew what he was doing. The proof of this is that after speaking with Shaughnessy for some time, McEwen asserted his right to silence no fewer than eleven times and he made an express reference to the Miranda decision itself. When McEwen wished to cut off questioning, he spoke with the unshakable confidence of a man who knew his rights.

Therefore, the court finds that the State has proven beyond any reasonable doubt that McEwen made a knowing, intelligent and voluntary waiver of his Miranda rights before the commencement of custodial interrogation on April 22, 2021.

However, beginning on page 35 of the transcript, McEwen asserted his right to cut off questioning. Detective Shaughnessy was supposed to scrupulously honor that assertion of rights by cutting off questioning. Instead, Shaughnessy opted to ignore McEwen's assertion of rights and bulldog ahead. Given what was said, it is clear that Shaughnessy knew his that his conduct violated controlling law. See T, 38 (Shaughnessy responding "I don't think you are done talking" to McEwen's statement "You're going against my Miranda rights. I'm done talking."). 77

Therefore, all of McEwen's statements after his first assertion of his right to silence on page 35 of the transcript are SUPPRESSED.

McEwen's post-invocation statements consist mainly of further assertions of his right to silence. To the extent he made any more substantive comments, there is no evidence in the record of any derivative evidence.

C. The Fourteenth Amendment And Article 15: Voluntariness

McEwen alleges that all of his statements on April 16 and April 22, 2021 were involuntary within the meaning of the due process clauses of the State and Federal Constitutions. N.H. Constitution, Part 1, Article 15; U.S. Constitution Amendment XIV. The court disagrees.

The State may not use, for any purpose including impeachment, involuntary statements made by a defendant in response to coercion, undue influence, promises or threats from by government actors or agents. See State v. Cloutier, 167 N.H. 254, 258 (2015); Colorado v. Connelly, 479 U.S. 157, 163 (1986); Dickerson v. United States, 530 U.S. at 432-34 (2000) (explaining the historical roots and constitutional grounding of the U.S. Supreme Court's voluntariness jurisprudence).

"Our State Constitution requires the State to prove beyond a reasonable doubt that the defendant's statements were made 78 voluntarily." State v. Fleetwood, 149 N.H. 396, 402 (2003); see also State v. Rezk, 150 N.H. 483, 486 (2004); State v. Aubuchont, 147 N.H. 142, 146 (2001).⁴

4 Under the Federal Constitution, the voluntariness of a confession or other statement may be proven by preponderance of evidence. Lego v. Twomey, 404 U.S. 477 (1972).

The standard for voluntariness was framed by the Supreme Court as follows in State v. Monroe, 142 N.H. 847 (1998):

To be considered voluntary, a confession must be the product of an essentially free and unconstrained choice and not extracted by threats, violence, direct or implied promises of any sort, or by the exertion of any improper influence. In determining the voluntariness of the confession, the trial court must examine the totality of the surrounding circumstances. Both the characteristics of the accused and the details of the interrogation are considered. The court should look at the factual circumstances surrounding the confession, the psychological impact on the defendant, and the legal significance of how the defendant reacted, in order to determine whether the police exerted such an influence on the defendant that his will was overborne.

see also Rezk, 150 N.H. at 487 ("In determining whether a confession is voluntary, we look at whether the actions of an individual are the product of an essentially free and unconstrained choice or are the product of a will overborne by police tactics."); Fleetwood, 149 N.H. at 402; Aubuchont, 147 N.H. at 146; State v. Decker, 138 N.H. 432, 436 (1994); Colorado v. Connolly, 479 U.S. at 162. 79

The defense argues that McEwen's statements were involuntary because of (a) the illegal detention, (b) the Miranda violation, (c) the detective's interrogation techniques, (d) the detective's refusal on April 22, 2016 to honor McEwen's demand to terminate the interrogation, and (e) McEwen's fragile mental state and disability.

The Fourth Amendment violation, standing alone, says little about voluntariness. A detainee's statements can be the fruit of an illegal arrest without also being involuntary. Of course, the custodial setting is relevant to the voluntariness inquiry, but it is not dispositive.

The same is true with respect to the Miranda violation. The Miranda procedure is not itself a substantive constitutional right. Rather, it is a prophylactic designed to dispel the inherently coercive atmosphere of custodial interrogation. The absence of Miranda warnings does not mean that the defendant's statements were in fact coerced. Compliance with Miranda militates in the State's favor.

A person's mental state, emotional state or disability is relevant only when it is wrongfully exploited by a state actor in an effort to extract a statement. Simply put, the interrogation techniques that were deployed in this case are not the sort that raise a genuine question of voluntariness, under our Constitutions' due process clauses. This is so, 80 notwithstanding (a) the illegal arrest on April 16, 2021, (b) the Miranda violation April 22, 2021 (committed when Detective Shaughnessy refused to honor the invocation of the right to silence), and (c) McEwen's purported mental and emotional state and disability. See e.g. Cloutier, (voluntary confession following a six hour interrogation during which the officers repeatedly told the defendant that the polygraph was infallible and conclusively established her guilt); Monroe (voluntary confession following a five and half hour interrogation, during which the interrogators repeatedly urged defendant to confess and harped on the fact that a polygraph test found him to be deceptive); State v. Hernandez, 162 N.H. 698, 706 (2011) (voluntary statements following a two hour interrogation during which the police used a "minimization" technique to mislead the suspect); State v. Hall, 148 N.H. 671, 673(2002) ("Although the officers may have misled the defendant into believing they had incriminating evidence, their comments were not so deceptive as to render the confession involuntary."); United States v. Byram, 145 F.3d 405, 408 (1^st Cir. 1998) (". . .[T]rickery is not automatically coercion. Indeed, the police commonly engage in such ruses as suggesting to a suspect that a confederate has just confessed or that police have or will secure physical evidence against the suspect. While the line between ruse and coercion is sometimes blurred, confessions procured by deceits 81 have been held voluntary in a number of situations."); Frazier v. Cupp, 394 U.S. 731, 739 (1969) (confession obtained by false statement that co-conspirator had confessed).

Further, the court notes that McEwen did not give in to the pressure he may have felt. When Detective Shaughnessy refused to end the April 22 interrogation, McEwen asserted his right to silence eleven times and stopped answering questions. When Detective Shaughnessy tried out various interrogation techniques on April 16, McEwen continued to assert his innocence and by and large stuck to the same account.

The court finds that the State has proven beyond a reasonable doubt that McEwen's will was not overborne and that he did not make an involuntary statement.

III. Conclusion

The defendant's motion to suppress is GRANTED IN PART as set forth on pages 3 and 4, above. 82