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					                           THE STATE OF NEW HAMPSHIRE

ROCKINGHAM, SS                                         PORTSMOUTH DISTRICT COURT
                                                              Docket

                           THE STATE OF NEW HAMPSHIRE

                                              V.

                                    ACCUSED CITIZEN

      DEFENDANT’S MOTION TO SUPPRESS - COMPLIANCE WITH
             WARRANT/AS CONDUCTED CHALLENGE

       NOW COMES ACCUSED CITIZEN, by and through counsel, Andrew F. Cotrupi,

Esq., and respectfully requests this Honorable Court suppress from evidence all

information obtained either directly or derivatively as a result of the seizure and subsequent

arrest of the accused. As the initial seizure was in violation of Part 1, Article 19 of the New

Hampshire Constitution and the 4th, 5th, and 14th Amendments to the Federal Constitution,

all information obtained either directly or derivatively must be suppressed.

       As further grounds for this Motion, it is stated:

       1.     Mr. citizen is present before the Court charged with one count of Driving

While Intoxicated. These charges stem from his arrest on or about July 11, 2009 by

Officer Nicole Mercer of the Portsmouth Police Department. Based on the police

reports provided, the following occurred.

       2.     The State of New Hampshire had purportedly sought and obtained judicial

approval for a sobriety check point scheduled to take place between 10:00 p.m. on July

11th through 3:00 a.m. on July 12, 2009. This petition was purportedly authorized by

the Honorable Kenneth R. McHugh of the Rockingham County Superior Court.



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Attached to this Petition are numerous documents and pleadings purporting to comply

with the constitutional requirements articulated in State v. Hunt, 155 N.H. 465 (2007).

       3.     Based on prior sworn testimony of the arresting officer, she operated a

“bay” at a sobriety check point when Mr. citizen’s vehicle was directed to her bay by the

safety officer. Officer Mercer conceded that she did not notice anything unusual or any

erratic operation of the vehicle driven by Mr. citizen. Officer Mercer further testified that

she immediately asked for license and registration, as well as asking the defendant “if

he had been drinking anything”. Officer Mercer testified that this is a standard

procedure she follows in all check point cases. The officer further related that it is a

group of “explorers” who are documenting the action taken by the officer and the

vehicle information in a checkpoint “log”. Officer Mercer related that she eventually

noticed slurred speech and asked Mr. citizen to exit his motor vehicle, which he in fact

did without any difficulty. Mr. citizen then walked approximately thirty feet to the field

sobriety testing area without any usual gait or balance problems in what has been

described as “pouring rain”.    At that time, Officer Mercer conducted a series of field

sobriety tests which, in the officer’s opinion, he failed. Based on Mr. citizen’s

performance on the field sobriety tests, he was subsequently placed under arrest.

       4.     As this Court is well aware, the circumstances supporting the

constitutionality of road blocks have been established in State v. Hunt, supra. In Hunt,

the Court reaffirmed it’s holding in State v. Koppell, 127 N.H. 286 (1985) noting that the

validity of a sobriety check point depends on two factors: 1) whether it is more effective

at advancing the public interest than other, less intrusive means;, and 2) whether it’s

value outweighs the degree of intrusion involved. See, Hunt at 470. As noted in the

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Hunt decision, which left open the possibility that a properly designed and implemented

program or sobriety check point would meet constitutional requirements, it is assumed

the State will suggest they designed and implemented the program utilized in this case

which meets the criteria outlined in Hunt. The defense, in the context of this pleading,

does not challenge that allegation, but rather challenges the compliance with the

warrant issued seeking judicial authorization for the sobriety check point and if the

roadblock in this case, as implemented, complies with Hunt and authorities cited

therein.

       5.     In the Petition of the Portsmouth New Hampshire Police made pursuant

to RSA 265:1-A, the State made various representations to the Superior Court in the

manner in which the sobriety check point would be conducted. One of the key

representations made was: “the proposed sobriety check point plan in this case calls for

a detailed press release which will be sent to many press agencies throughout the

region prior to the scheduled checkpoint.” See, Affidavit of Chief Magnant at 15.

“Advanced notification of sobriety checkpoints will be announced to the media by the

Chief-of Police.” See operational plan at 2. The constant representation made echoes

the protocol recommended by the Attorney General. See generally “Achieving

maximum deterrent effect through aggressive public information efforts,” Attorney

General’s Guidelines For Sobriety Checkpoints at 375. The perfunctory “news release”

issued by one of the several lieutenants in the department and distributed to “local

media” is not what was represented to the Court and contrary to one of the core

representations (and justifications) made in obtaining judicial approval.   See, attached

“A”.

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       6.     A further representation was made that the officer in charge would insure

strict compliance with all personnel with the operational plan. This representation

included “plans embodying explicit, neutral limitations on the conduct of the individual

officer” see petition at 5. The operational plan indicates that all contact with individuals

should be kept brief with a “good evening this is Portsmouth Police sobriety check

point” and license and registration obtained. The Affidavit submitted promises

compliance with “guidelines setting forth procedures…that leaves virtually no discretion

to the individual officer on the scene.” See, Affidavit at 15. The officer in this case

indicates she does not comply with the representations made to Superior Court in that it

is her procedure to ask each operator if they had been drinking that evening.

       7.     The sobriety checkpoint operational plan, submitted to the Superior Court,

represents “the officers chosen to participate on the checkpoints should be those with

prior training to include training in Standardized Field Sobriety Testing and clues to

detecting impaired drivers. All personnel will be in the uniform of the day for their

agency and wear reflectiorized traffic vests or approved reflective gear”. See operation

plan at 2. Here, the documentation of the registration information of the cars stopped,

which “team” stopped them, the duration of the stop, and what action taken has been

regulated to, upon information and belief, teenagers or young adults. This is not the

“trained officers” represented to the Superior court. See, also, Attorney General

Guidelines supra at 4 (law enforcement supervisors must devise a written plan which

sets forth personnel and equipment requirements, checkpoint procedures, and

contingency planning in minute detail).

       8.     Both the New Hampshire Supreme Court in the Hunt decision and the

                                             4
New Hampshire Attorney General’s office have recognized the unique constitutional

requirements for a valid sobriety roadblock. The cut-and-paste approach to those

requirements that were used in this case were never authorized by the Superior Court

as required by Hunt, do not follow the guidelines of Attorney General, and do not

comply with the requirements of the New Hampshire Constitution.

      WHEREFORE, the defendant requests this Honorable Court:

      A.     Suppress from evidence at trial all information obtained either directly or

             derivatively as a result of the illegal seizure;

      B.     Grant a hearing on this matter; and

      C.     Grant such other relief this Court deems just.

                                                  Respectfully submitted,
                                                  Accused citizen
                                                  By his counsel,


DATED: January 25, 2010                   By:     _______________________________
                                                  Andrew F. Cotrupi, Esq.
                                                  428 Lafayette Road, Suite 102
                                                  Hampton, NH 03842
                                                  Tel. (603) 926-5818


                              CERTIFICATE OF SERVICE

      I, Andrew F. Cotrupi, Esq., certify that a true copy of the foregoing Motion to
Suppress has been served upon the State of New Hampshire by depositing a copy in
the U.S. mail, postage prepaid, addressed as follows: Karl O. Durand, Esquire,
Portsmouth Police Department, 3 Junkins Ave., Portsmouth, NH 03801.




DATED: January 25, 2010                   By:     ____________________________
                                                  Andrew F. Cotrupi, Esq.


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