Argued October 16, 2014
Joseph A. Foster, attorney general ( Stephen D. Fuller, senior assistant attorney general, on the brief and orally), for the State.
Stephanie Hausman, deputy chief appellate defender, of Concord, on the brief and orally, for the defendant.
DALIANIS, C.J. HICKS, CONBOY, LYNN, and BASSETT, JJ., concurred.
Following a bench trial, the defendant, Taneal C. Broadus, was convicted on one felony count of possession of oxycodone, one felony count of possession of codeine, and one misdemeanor count of possession of marijuana. See RSA 318-B:2 (Supp. 2014). On appeal, she challenges only her felony convictions, arguing that the Superior Court ( Wageling, J.) erroneously denied her motion to suppress evidence of the oxycodone and codeine obtained during an unconstitutional search. We vacate and remand.
The following facts are derived from the trial court's order denying the defendant's motion to suppress or otherwise appear in the record. On a night in October 2011, New Hampshire State Trooper Matthew Locke stopped a vehicle in Auburn after having observed the driver discard a lit cigarette. Upon approaching the vehicle, Locke smelled the odor of freshly burned marijuana emanating from it. Locke determined that both occupants had valid licenses and that neither had an outstanding warrant. The defendant was the passenger. The driver admitted to littering. The driver also told Locke that she and the defendant were returning home from a friend's house in Manchester.
At Locke's request, the driver exited the vehicle. Locke then asked her about the marijuana odor. She stated that she and the defendant had smoked marijuana about one hour earlier but denied using marijuana in the car. The driver also initially denied the existence of illegal drugs in the vehicle, but eventually admitted that there was a " marijuana roach" behind the driver's seat. The driver retrieved the " roach" and handed it to Locke.
Locke then asked the defendant to step out of the vehicle. As she exited, Locke noticed a beer bottle on the floor where her feet had been. He took the bottle and observed that it was open, smelled of beer, and was cool to the touch. The defendant denied consuming alcohol in the vehicle; Locke believed that statement to be a lie.
Throughout this period of time, Locke observed that the defendant had refrained from making eye contact with him. Even when Locke asked for her identification, she stared straight ahead. The defendant was also wearing extremely baggy jeans and a sweatshirt. Although Locke had called for backup, it was approximately twenty minutes away from his location. The defendant denied having any weapons.
Locke then performed a pat-down search, also known as a " frisk." During the frisk, Locke felt an object in the shape of a prescription pill bottle in the defendant's pocket. Locke testified that, based upon his experience, individuals often concealed weapons, like razor blades, in such bottles. Locke asked the defendant about the bottle, and she responded that the pills were for her migraine headaches. The defendant complied with Locke's request to hand him the bottle. Locke observed that it contained six pills and that its label indicated a prescription for someone other than the defendant. The defendant then admitted that she did not have a prescription for the pills, which were later identified as oxycodone and codeine.
Locke arrested the defendant for possession of a narcotic drug and the driver for possession of marijuana. See RSA 318-B:2. Locke later testified that, if he had not arrested the defendant for possession of a narcotic drug, she and the driver " would've been arrested" because " probable cause had been established that there'd been possession of marijuana and both had used it previously as well as an open container violation."
Before trial, the defendant moved to suppress the pills, arguing that the frisk was unconstitutional. See N.H. Const. pt. I, art. 19; U.S. Const. amends. IV, XIV. Following a hearing, the trial court denied the motion. The trial court first concluded that, based upon the totality of the circumstances, " Trooper Locke was justified in performing a frisk of Defendant to dispel his concern that she may have been in possession of a weapon." The court further determined that " [e]ven if Trooper Locke was not justified in performing a frisk," the " evidence need not be suppressed" because Locke " would have
been justified in arresting Defendant for possession of a controlled substance for the marijuana and violation of the open container law." Therefore, the trial court reasoned that the pills would have been " inevitably discovered" when the defendant was searched incident to the arrest. The defendant was convicted on three counts of possession of a controlled drug -- oxycodone, codeine, and marijuana, see RSA 318-B:2 -- and this appeal followed.
The defendant first argues that the trial court erred in denying her motion to suppress because Locke lacked a reasonable belief that she was armed and presently dangerous as is required to justify the frisk that led to the discovery of the pills. See State v. Michelson, 160 N.H. 270, 272-73, 999 A.2d 372 (2010). The defendant also argues that the trial court erred in determining that the pills would inevitably have been discovered upon a search incident to arrest for marijuana possession and/or an open container violation. See State v. Holler, 123 N.H. 195, 200, 459 A.2d 1143 (1983).
We first address the defendant's arguments under the State Constitution and rely upon federal law only to aid our analysis. State v. Ball, 124 N.H. 226, 231-33, 471 A.2d 347 (1983). " In reviewing the trial court's ruling, we accept its factual findings unless they lack support in the record or are clearly erroneous." State v. Perri, 164 N.H. 400, 411, 58 A.3d 627 (2012). " The application of the appropriate legal standard to ...