by Douglas Ankney

The Supreme Court of New Hampshire affirmed a superior court’s decision suppressing the initial incriminating statements made by Dominic Carrier because police violated the protections of Miranda v. Arizona, 384 U.S. 436 (1966). The Court also affirmed the suppression of additional statements because the State failed to prove those statements were voluntarily made.

A 13-year-old girl, her father, Carrier, and Carrier’s mother all shared an apartment. After Carrier left for work, the girl told her father that Carrier had entered her bedroom and touched her vagina. The father called police. Officer Kekejian of the Nashua Police Department arrived at the apartment, and the father related the girl’s account to Kekejian.

Kekejian was dressed in his uniform with his gun and badge visible. Carrier returned home and entered the apartment. Kekejian immediately ordered Carrier outside and followed him onto the porch. Kekejian blocked the door to the apartment to prevent Carrier from reentering, telling Carrier the police were “investigating a matter,” and the apartment was “being held as a scene.” Kekejian pat-frisked Carrier. When Carrier attempted to use his cellphone, Kekejian took it without explanation and did not return it. Kekejian asked Carrier about entering the girl’s bedroom, and Carrier denied it.

About 10 minutes later, Officer Ciszek arrived. He also wore his uniform with his gun and badge visible. Carrier agreed to speak with detectives who were en route. The two officers stood on the porch with Carrier even though it was cold and windy. They continued to question him about his whereabouts that morning. At no time did Carrier leave the officers’ presence.

After about one hour, Detectives Hallam and McIver arrived in an unmarked Chevrolet Impala. The detectives wore dress pants and dress shirts, but their guns and badges were visible. The detectives escorted Carrier to the Impala, and all three got inside: McIver in the backseat, Hallam in the driver’s seat, and Carrier in the front passenger’s seat. Hallam told Carrier the conversation was being recorded. The doors were closed but unlocked. Hallam told Carrier he should “feel free” to leave and “not feel forced” to speak. But Carrier was speaking when these comments were made. Kekejian and Ciszek remained outside within view of the Impala.

In an interview lasting over an hour, the detectives questioned Carrier about the girl’s complaint. Carrier consistently denied entering the girl’s bedroom. But the detectives accused him of lying. They told him they weren’t interested in hearing his denials, but they were interested in hearing explanations for his conduct. They told Carrier they “wouldn’t be here investigating” if the allegations “were not true.”

Carrier wasn’t offered a break during the interview, and the detectives repeatedly accused him of sexually assaulting the13-year-old girl. Finally, Carrier made incriminating statements.

Later that evening, Hallam arrested Carrier. While Carrier was being booked at the jail, Hallam read the Miranda warnings to him. Carrier agreed to waive his rights. Seconds later, Hallam told Carrier there were inconsistencies in his prior statements, and now that Carrier had been arrested, he needed to be “100 percent honest this time.” Carrier insisted he had been 100 percent honest, but Hallam insisted that Carrier had “led him down the wrong path” and that Carrier needed to “skip all that B.S.” stated earlier. Carrier then gave additional incriminating statements.

The State charged Carrier with aggravated felonious sexual assault. Carrier moved to suppress his statements. The trial court found that the State failed to prove beyond a reasonable doubt that the police did not violate Miranda when obtaining the statements in the Impala (“Impala Statements”). The trial court also found that the State failed to prove the statements made at the jail were freely given (“Jail Statements”). The trial court granted the suppression motion, and the State appealed.

The New Hampshire Supreme Court observed that the State must prove beyond a reasonable doubt that an accused’s rights under Miranda were not violated before any self-incriminating statements may be used. State v. Marin, 211 A.3d 692 (N.H. 2019).

Two conditions must be met before Miranda warnings are required: (1) the suspect must be “in custody,” and (2) he must be subject to interrogation. State v. Sachdev, 199 A.3d 249 (N.H. 2018). Custody does not require formal arrest, but courts are to examine the overall objective circumstances to determine if a reasonable person would have felt free to leave. Marin. Factors considered in the analysis are the degree to which the accused was restrained, the duration of the interview, the character of the interview, the number of officers present, and the accused’s familiarity with his surroundings. Id.

Restraint isn’t limited to handcuffs and the like but may be in the form of verbal commands and physical gestures. Id. Pat-frisking and seizure of a phone especially weigh in favor of custody as these indicate the police are exercising their authority and control over the suspect. Id. In State v. Jennings, 929 A.2d 982 (N.H. 2007), the court ruled that an interrogation lasting two hours weighed in favor of custody. And accusatory questioning weighs in favor of custody because a “reasonable person understands that the police ordinarily will not set free a suspect when there is evidence strongly suggesting that the person is guilty of a serious crime.” Marin.

Kekejian restrained Carrier’s movements when he ordered Carrier from his own home, followed Carrier onto the porch, and blocked the door to prevent Carrier from reentering. He also pat-frisked Carrier and took his phone. Ciszek arrived, and both officers questioned Carrier concerning his whereabouts. The two uniformed officers remained on the porch with Carrier in the cold while awaiting the arrival of the detectives.

Hallam and McIver restrained Carrier’s movements by escorting him to the Impala and having him sit inside with the doors closed. There was doubt as to whether Carrier heard Hallam’s comments about feeling free to leave and not feeling forced to speak because Carrier was speaking when the comments were made. The interview was accusatory. Four armed officers were present, two in full uniform remaining in view of the car. Nearly two hours elapsed from the time the questioning began with Kekejian until the interrogation in the Impala concluded.

Those factors supported the trial court’s finding that Carrier was in custody when he gave the Impala Statements. Consequently, the State failed to prove that the police did not violate Carrier’s rights under Miranda.

With regard to the Jail Statements, the Constitution of New Hampshire requires the State to prove beyond a reasonable doubt that the statements were voluntarily given. State v. Ruiz, 179 A.3d 333 (N.H. 2018). This means the statements cannot be used if they were obtained through the exertion of improper influence. Id. Police may not obtain an unlawful statement in violation of Miranda, then read the suspect the Miranda warnings and use the unlawfully obtained statement to pressure the suspect into giving another statement. State v. Fleetwood, 824 A.2d 1061 (N.H. 2003). In such circumstances, the second statement is not voluntary. United States v. Gonzalez-Lauzan, 437 F.3d 128 (11th Cir. 2006).

Hallam used the unlawfully obtained Impala Statements to pressure Carrier into giving the Jail Statements. These facts supported the trial court’s finding that the State failed to prove beyond a reasonable doubt that Carrier voluntarily gave the Jail Statements.

The Court concluded that because the State failed to prove beyond a reasonable doubt that Carrier’s Miranda rights were not violated when the Impala Statements were obtained, and because the State failed to prove that Carrier voluntarily gave the Jail Statements, those statements must be suppressed as well. The Court noted the fact that since Carrier “prevails under the State Constitution, there is no need to address the parties’ arguments under the Federal Constitution.”

Accordingly, the Court affirmed the order of the trial court granting Carrier’s motion to suppress. See: State v. Carrier, 2020 N.H. LEXIS 45 (2020).

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