Lex Loci, 14 NHBJ, 2014 Spring-Summer, Pg. 34

Author:David Ruoff.
 
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LEX LOCI

Vol. 54 No. 3 Pg. 34

New Hampshire Bar Journal

2014

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Spring/Summer, 2014

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0 David Ruoff.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0State of New Hampshire v. Hittman Blesdett-Moore, decided April 15, 2014, should be captioned The Case of the Green Tongue. Apparently a youthful defendant, Blesdell-Moore was driving home through Enfield in a vehicle with malfunctioning taillights. Ever vigilant for malfunctioning taillights, Enfield police pulled him over. The police officer did not notice any signs of impairment, or evidence of any criminal conduct on the part of the defendant. The defendant appeared nervous and the officer saw that he has bloodshot eyes. But that was it. The defendant was polite and cooperative.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0While the police officer returned to his cruiser to check the defendant's license status, he allowed the defendant to walk to the back of his truck to fix the taillight. The defendant's license status was determined to be valid and the police officer walked up to the defendant and to give him his license back. That's when the encounter should have ended, but it did not.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0The police officer told the defendant to stick out his tongue. Still detained, the defendant complied, which revealed that his tongue was green - an indicator that the defendant had recently used marijuana. It was all downhill for the defendant from there. Based on the green tongue, the police officer asked if the defendant had any drugs in the truck, or whether he had used any recently. The defendant denied both. A pat-down of the defendant revealed only that he had cash in his pockets. No drugs or drug paraphernalia.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0The police officer - most likely employing a ruse - gave the defendant his license back, gave him a "verbal warning" to get his taillight fixed, and told him he was free to leave. Just as the defendant was about to the leave, the police officer approached him again and asked if he had any drugs in the car and whether he could search through the truck. The defendant denied both. The officer asked what a "drug dog" would smell if walked around the truck. The officer called over his radio for a "canine unit" to be dispatched. Upon hearing that request, the green tongued defendant lamented that he was "screwed" and admitted to having marijuana and psilocybin (mushrooms) in his truck.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Before trial, the defendant sought to suppress the evidence collected. He argued that by asking the defendant to see his tongue, the police officer expanded the scope of an otherwise permissible traffic stop. Thus, all of the evidence collected after that point was tainted by the illegality of the search and was "fruit of the poisonous tree." The trial court disagreed and denied his request. The Supreme Court, however, agreed. It held that the police officer's request to examine the defendant's green tongue was not "reasonably related" to the reason for the initial stop of the defendant's truck - failed taillights. The high court held that "otherwise innocent factors" - like nervousness and bloodshot eyes - were not sufficient to justify the police officer's additional request. Thus, the evidence discovered subsequently should have been suppressed. So, the police could ask "May I see your license and registration?" but not "May I see your license, registration and tongue?"

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0David Montenegro v. N.H. Division of Motor Vehicles, decided May 7, 2014, has become well-known as the "COPSLIE" vanity license plate case. Mr. Montenegro applied for a vanity license plate: COPSLIE. On the application, he indicated that the meaning that he wished to convey was that "cops lie." The Division of Motor Vehicles (DMV) denied his request by finding that COPSLIE would be "offensive to [the] good taste" of a reasonable person, in violation of the administrative regulation enacted to regulate the content of vanity plates: Saf-C 514.61(c)(3).

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0In response, Mr. Montenegro submitted another application for "COPSLIE, " but also requested other alternates, one of which was approved by DMV: GR8GOVT. DMV is not, it would seem, without a sense of irony. DMV denied Mr. Montenegro's second request for COPSLIE based on the same reason under the Saf-C regulation: that a reasonable person would find it offensive to good taste.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0As a result, rather than drive around with GR8GOVT on his car, Montenegro sued in superior court to invalidate the applicable provision of Saf-C 514.61, arguing it was was unconstitutionally overbroad and vague. He argued that the term "offensive to good taste" - which is not defined in the regulation - granted too much discretion to the DMV and that it is implemented by DMV to mean "any point of view with which the DMV disagrees." The New Hampshire Supreme court...

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