Argued: June 27, 2018
J. MacDonald, attorney general (Gordon P. Landrigan,
attorney, on the brief and orally), for the State.
Law Offices, of Chichester (Wade Harwood on the brief and
orally), for the defendant.
defendant, Sean F. Stacey, appeals his convictions on one
felony count and one misdemeanor count of possession of a
controlled drug. See RSA 318-B:2 (2017). On appeal,
he argues that the Superior Court (Fauver, J.) erred
by denying his motion to suppress evidence of the drugs he
was convicted of possessing. We affirm.
trial court recited, or the record supports, the following
facts. On June 30, 2016, a state trooper on "speed
detail" on Route 16 in Dover pulled over the vehicle
that the defendant was driving for speeding. The vehicle did
not belong to the defendant, but belonged to someone who had
let him borrow it. Once the vehicle was stopped, the trooper
approached it, identified himself, and asked the defendant
for his license and registration. The defendant was the
vehicle's sole occupant. While speaking with him, the
trooper detected an odor of marijuana emanating from the
vehicle. When questioned about it, the defendant appeared
nervous; he no longer made eye contact with the trooper and
continually glanced at the console and at a backpack that was
on the vehicle's passenger side. As the defendant
retrieved his driver's license from his wallet, the
trooper noticed that the wallet contained a "stack of
cash" folded and wrapped in a blue rubber band. As
recounted by the trial court, according to the trooper, the
cash was "not inside the designated area [of the wallet]
where most people keep their cash."
there to be probable cause that the vehicle contained
marijuana, the trooper asked the defendant if he would
consent to a search of it. When the defendant declined, the
trooper informed him that the trooper could seize the vehicle
and obtain a search warrant. The defendant again declined to
consent to a search and said that he would like the trooper
to apply for a search warrant.
defendant was arranging for a ride, another trooper arrived
on the scene and was asked to provide the defendant with a
"courtesy transport" to the next highway exit.
Before entering the second trooper's cruiser, the
defendant was subjected to a pat down search during which the
trooper felt "a wad of something," which the
defendant said was cash to purchase a vehicle. Once the
second trooper transported the defendant, the vehicle was
seized and secured at the troop barracks pending the issuance
of a search warrant.
first trooper resumed speed detail until his shift ended at
9:00 p.m. He was not scheduled to work again until Sunday,
July 3. That day, he signed an affidavit before a circuit
court judge in support of a warrant to search the vehicle.
However, the trooper did not present the search warrant
application to a judge for issuance of the warrant until
Tuesday, July 5. At the motion to suppress hearing, the
trooper testified that he did not believe that the situation
was sufficiently urgent to merit calling an on-call judge on
a Sunday or holiday and that he did not ask another trooper
to prepare the application because it was his case and he
wanted to see it through to the end. As a result, the search
warrant in this case was not issued until July 5,
approximately five days after the vehicle was seized.
trial, the defendant moved to suppress all evidence obtained
as a result of the seizure and subsequent search of the
vehicle. See State v. Boyer, 168 N.H. 553, 557
(2016) (explaining that, under the State Constitution, a
defendant may have standing to object to a search or seizure
based upon: "(1) being charged with a crime in which
possession of an item or thing is an element, which confers
automatic standing; or (2) having a legitimate expectation of
privacy in the place searched or the item seized");
see also United States v. Sugar, 322 F.Supp.2d 85,
94 (D. Mass. 2004) ("Generally speaking, persons who
borrow cars have standing to challenge searches of the
borrowed vehicles." (citing cases)). Among his theories
was the assertion that the seizure of the vehicle, although
lawful at its inception, became unlawful because of the
five-day delay in securing a search warrant. The trial court
denied the defendant's motion, and this appeal followed.
appeal, the defendant argues that the delay between the
seizure of the vehicle and obtaining a search warrant
rendered the seizure unconstitutional under both the State
and Federal Constitutions. See N.H. CONST. pt. I,
art. 19; U.S. CONST. amends. IV, XIV. When we review a trial
court's ruling on a motion to suppress, we accept its
factual findings unless they lack support in the record or
are clearly erroneous. State v. McInnis, 169 N.H.
565, 569 (2017). Our review of the trial court's legal
conclusions is de novo. Id. We first
address the issues under the State Constitution and rely upon
federal law only to aid our analysis. State v. Ball,
124 N.H. 226, 231-33 (1983).
Article 19 of the State Constitution provides that
"[e]very subject hath a right to be secure from all
unreasonable searches and seizures of his person, his houses,
his papers, and all his possessions." N.H. CONST. pt. I,
art. 19. "Evidence that is obtained in violation of Part
I, Article 19 may be subject to exclusion from evidence in a
criminal trial." State v. Davis, 161 N.H. 292,
seizures are per se unreasonable under Part I,
Article 19 of the State Constitution, unless they fall within
the narrow confines of a judicially crafted exception."
State v. Nieves, 160 N.H. 245, 247 (2010). In the
instant case, there is no dispute that the initial seizure of
the vehicle was lawful. As defense counsel acknowledged
during oral argument, the vehicle was seized based upon
probable cause and exigent circumstances. See State v.
Stern, 150 N.H. 705, 708 (2004) (describing the exigent
circumstances exception to the warrant requirement); see
also State v. Gilson, 116 N.H. 230, 233 (1976) (holding
that "[a]n officer with sufficient experience to
recognize the odor of burning marijuana has probable cause to
suspect its presence when he detects the odor within the
confines of an automobile"); cf. State v.
Cora, 170 N.H. 186, 196 (2017) (holding that the police
do not need a warrant to enter a vehicle that has been
stopped in transit pursuant to a lawful stop when they have
probable cause to believe that a plainly visible item in the
vehicle is contraband).
"a seizure reasonable at its inception because based
upon probable cause may become unreasonable as a result of
its duration." Segura v. United States, 468
U.S. 796, 812 (1984). Thus, "[a] temporary warrantless
seizure supported by probable cause is reasonable as long as
'the police diligently obtain[ ] a warrant in a
reasonable period of time.'" United States v.
Laist, 702 F.3d 608, 613 (11th Cir. 2012) (quoting
Illinois v. McArthur, 531 U.S. 326, 334 (2001));
see United States v. Martin, 157 F.3d 46, 54 (2d
Cir. 1998) (explaining ...