Fruit of the poisonous tongue examination

From last month’s New Hampshire Supreme Court decision in State v. Blesdell-Moore (N.H. Apr. 15, 2014), applying the search-and-seizure provisions of the New Hampshire Constitution:

Officer Roy Holland … stopped a truck for having defective tail lights…. Holland testified that he did not observe any erratic behavior to suggest that the truck’s driver — the defendant — was under the influence of illegal substances or alcohol.

Holland approached the defendant’s truck and requested his driver’s license and vehicle registration. He noticed that the defendant had bloodshot eyes and trembling hands and concluded that the defendant was nervous …. The officer testified that [the] license check was completed in approximately two to three minutes.

Holland then returned to the defendant’s truck and asked to see his tongue. The defendant complied with the request, and Holland observed a green film coating the defendant’s tongue. He believed this coating was consistent with marijuana use and asked the defendant when he had last smoked marijuana. The defendant initially denied smoking marijuana but subsequently admitted that he had smoked marijuana on the previous day….

This started a chain of events that led to Officer Holland questioning defendant more about marijuana, and eventually uncovering that the defendant had some marijuana and hallucinogenic mushrooms in the truck.

But Holland’s actions violated the New Hampshire Constitution’s analog of the Fourth Amendment, the court held, and the evidence of illegal substances should be excluded:

A traffic stop is a “seizure.” The scope of such an investigative stop “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.” The scope of a stop may be expanded to investigate other suspected illegal activity only “if the officer has a reasonable and articulable suspicion that other criminal activity is afoot.” …

We first conclude that Holland’s request to see the defendant’s tongue was not reasonably related to the initial reason for the stop. According to Holland’s testimony, the defendant was stopped because his truck’s tail lights were defective. By the officer’s own admission, the subsequent examination of the defendant’s tongue to investigate whether he had consumed marijuana was not related to this purpose.

Because Holland’s request to examine the defendant’s tongue was not reasonably related to the purpose of the stop, we must determine whether the officer’s actions were justified by reasonable suspicion based upon “specific, articulable facts taken together with rational inferences from those facts — that the particular person stopped has been, is, or is about to be, engaged in criminal activity.” …

Holland testified that he did not observe any indicia of impairment when he stopped the defendant’s truck. Specifically, the defendant was not speeding, weaving through traffic, crossing lanes, or operating the truck in an erratic manner. He did not struggle to produce his license and registration, and the defendant walked without stumbling after Holland invited him to exit the truck. Holland also did not see anything in the truck that was suggestive of drug possession…. [And a]bsent additional facts, we decline to find that otherwise innocent factors like nervousness and bloodshot eyes are sufficient to support reasonable suspicion….

Although the brief inspection of the defendant’s tongue did not prolong the stop, we conclude that the search altered the fundamental nature of the stop by transforming a routine traffic stop into an investigation of potential drug activity. By asking to see the defendant’s tongue, the officer set out to determine whether the defendant had, in fact, consumed or was in possession of marijuana. Although a reasonable motorist may not understand that a green film on the tongue may be indicative of marijuana consumption, he would certainly recognize that the officer’s request to see his tongue changed the fundamental nature of an otherwise routine traffic stop. This was an impermissible and unconstitutional expansion of the scope of the stop….

Because the officer’s request to examine the defendant’s tongue was an impermissible expansion of the stop, the exclusionary rule bars admission of the result of the officer’s examination of the defendant’s tongue. Moreover, the fruits of that search are also inadmissible because the State failed to establish that the taint of the unlawful expansion of the stop was purged.

Eugene Volokh teaches free speech law, religious freedom law, church-state relations law, a First Amendment Amicus Brief Clinic, and tort law, at UCLA School of Law, where he has also often taught copyright law, criminal law, and a seminar on firearms regulation policy.
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