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State v. Allen

Supreme Court of New Hampshire

December 18, 2019

State of New Hampshire
Joseph M. Allen

         The State appeals an order of the Superior Court (Delker, J.) suppressing evidence obtained from the search of an automobile in which the defendant, Joseph M. Allen, was a passenger. See RSA 606:10, II(a) (2001) (authorizing the State to file an interlocutory appeal from order suppressing evidence in a criminal case). The trial court suppressed the evidence on the basis that, at the time that the State seized the car in order to apply for a search warrant, and prior to its warrant application, the State lacked probable cause to seize the car and thus violated Part I, Article 19 of the State Constitution. We affirm.

         Consistent with Part I, Article 19, police officers may seize property, without a warrant, in order to secure it and apply for a warrant to search it so long as, at the time of the seizure, both exigent circumstances and probable cause for the search exist. See State v. Camargo, 126 N.H. 766, 771-72 (1985); State v. Berthiaume, 124 N.H. 264, 266 (1983). "Probable cause exists if a person of ordinary caution would justifiably believe that" the items sought will be found in the place to be searched and "will aid in a particular apprehension or conviction." State v. Page, 172 N.H. 46, 50 (2019) (quotation omitted). To establish probable cause, the State must demonstrate a substantial likelihood that the items sought will be found in the place to be searched. See id.

         Probable cause is a more exacting standard than reasonable suspicion, the standard that justifies an investigatory stop. State v. Sousa, 151 N.H. 297, 299 (2004). Although otherwise lawful conduct may justify a finding of probable cause, particularly "when examined through the lens of those versed in the field of law enforcement," State v. Norman, 171 N.H. 103, 110 (2018) (quotation omitted), and although the perceptions of an experienced law enforcement officer are entitled to deference, "this deference should not be blind," State v. Sage, 170 N.H. 605, 610 (2018). It is still the State's burden to establish "a sufficient nexus between the illicit objects and the place to be searched." Norman, 171 N.H. at 108.

         Our task on appeal is to determine whether, under the totality of the circumstances, a substantial basis existed to determine that there was a fair probability that contraband or evidence of a crime would be found in the place to be searched. See Page, 172 N.H. at 50. We review the trial court's ruling on whether probable cause existed de novo except as to any controlling factual findings, Page, 172 N.H. at 50, which we will uphold unless they lack support in the record or are clearly erroneous, State v. Morrill, 169 N.H. 709, 715 (2017).

         The following facts were either found by the trial court or are supported by evidence submitted in connection with the motion to suppress. On February 3, 2018, at approximately 4:30 p.m., the defendant was the passenger in a car that State Police Trooper Gacek stopped on Interstate 95 North for traveling approximately 68 to 70 miles per hour in a 55-miles-per-hour speed zone. The driver took three-tenths of a mile to come to a complete stop after pulling into the breakdown lane, a distance the trooper considered unusually long. As the car slowed, the trooper observed the driver and defendant making "frantic movements," and the defendant reaching into the backseat.

         When the trooper approached the passenger-side front window and looked into the car, he did not see anything in the back seat; the car was, in fact, "very clean." The trooper smelled a strong odor of air freshener emanating from the car, and subsequently observed an air freshener in the center console. The trooper considered the air freshener unusual because it was the type that is ordinarily used in automated dispensers installed in commercial buildings, not the type found in cars. The trooper testified that air fresheners are commonly used to attempt to mask the scent of illicit drugs, such as marijuana, but that "it really doesn't work, it just makes it smell that much more strange." The trooper also testified, however, that air fresheners are also used for innocent purposes, such as masking the smell of cigarettes.

         When the trooper approached the passenger-side window and engaged the two occupants, he did not smell any illicit drugs, and noticed that the driver was rapidly smoking. The trooper further noted that when he "asked them if they knew the speed limit[, ] . . . it was [the defendant who] told [the trooper] it was 55 miles an hour," and that when he "asked them about their travels," it was the defendant who answered that they had come from Gloucester, where they had visited the defendant's mother. The driver did not make eye contact with the trooper or offer any comments to him other than a "wisecrack" about the defendant's age. The trooper considered the driver's lack of eye contact or communication, and his rapid smoking, to indicate nervousness.

         The trooper returned to his cruiser to perform a "records check" on the occupants and the vehicle. There were no outstanding arrest warrants, and the car was not identified as stolen. The car was, however, registered to a third party, a factor that the trooper considered indicative of drug trafficking because, he testified, drug traffickers often drive third-party vehicles so as not to subject them to asset forfeiture. However, the trooper learned during the stop that the car was registered to the driver's girlfriend, and agreed that there was "potentially nothing nefarious" about a girlfriend allowing a boyfriend to drive her car.

         After completing the records check, the trooper asked the driver to step out of the car in order to confirm or dispel his concern that the parties were involved with drug trafficking. Once out of the car, the trooper again asked the driver about their travels. The driver told the trooper that he and the defendant had been in Gloucester visiting the defendant's mother in the hospital, that he had not gone into the hospital with the defendant, and that they had left Maine, their point of origin, at between 9:00 a.m. and 10:00 a.m. When the trooper subsequently questioned the defendant about their travels, the defendant also told the trooper that they had been at a hospital in Gloucester to visit his mother, and that the driver had not gone into the hospital with him. However, unlike the driver, the defendant told the trooper that they had departed between 1:00 p.m. and 2:00 p.m., creating a time frame that the trooper knew would not have been sufficient to travel to Gloucester, visit the defendant's mother, and return to where he had stopped them.

         The trooper testified that the driver displayed other nonverbal behaviors during his conversation with him that the trooper found concerning. The trooper testified that when he asked the driver about drugs, the driver "began to step away from his vehicle and turn his back to" it, behavior that the trooper understood to indicate that the driver was attempting to distance himself from the car. The trooper additionally noted that, although it was "very cold" and the driver was "dressed appropriately for the weather" with a "hat that was kind of high up on his head," the driver "began to break out in a sweat across his forehead" when the trooper asked if there were drugs in the car. Finally, the trooper noted that the driver continued to avoid eye contact with him.

         While the trooper was conversing with the driver, a State Police sergeant arrived, and the defendant asked the sergeant if he could exit the vehicle. The trooper testified that he had never witnessed a person ask to exit a car during an investigation. After the sergeant allowed the defendant to exit the car, the trooper testified that the defendant was loud and animated in his conversation with the sergeant, that the trooper heard the defendant say that he did not have anything on him, and that the defendant lifted his shirt and pulled up the waistband of his pants as though to demonstrate, in an "exaggerated manner," that he was unarmed. The trooper described these actions as "very strange." When the trooper subsequently spoke with the defendant and mentioned the potential of searching the car for drugs, the defendant told the trooper that he did not "have probable cause to search the car because [he did not] smell marijuana because there [was] no marijuana." When the trooper mentioned that there were drugs other than marijuana, such as heroin, the defendant told the trooper in a loud and exaggerated manner that he did not do heroin, and rolled up his sleeves so as to demonstrate that he had no injection marks.

         Following this conversation, when the trooper mentioned the potential of performing a consent search, the defendant, according to the trooper, "almost went into a full blown temper tantrum," which the trooper described as "not in an aggressive way, but a temper tantrum of you can't do this, . . . I don't want you to do this." The trooper described the defendant as pacing in the grassy area beside the pavement. After the defendant asked the trooper what a consent search would entail and the trooper responded that it was "a quick search," but that the driver would not provide his consent, the defendant "yelled" to the driver that "they just want to search the car," told the driver that he should allow the search, and "waived his arms in a giant circular manner" that the trooper interpreted to suggest that the trooper only wanted to search the passenger compartment. When the driver confirmed that he did not consent to a search, the trooper impounded the car.

         At some point after the car was impounded, a State Police canine unit conducted an exterior sniff of the car, and alerted to the presence of narcotics. Approximately forty-seven hours after the car was impounded, the trooper applied for, and obtained, a search warrant. Upon searching the car, the trooper found 58 grams of fentanyl within a bag of jumper cables that was in the trunk of the car.

         In granting the motion to suppress, the trial court observed that the "parties agreed that the critical issue" was whether the trooper "had probable cause at the time he seized the vehicle," and that "events that occurred after the seizure, such as the canine search, were irrelevant." The trial court noted that the facts of this case were "incredibly similar" to the facts of Morrill, in which we reversed the trial court's determination that a driver's unusually long time to pull over for a routine traffic stop on Interstate 95 North, the driver's excessively nervous behavior during the stop, and inconsistent explanations between the driver and the defendant concerning their travels that day, provided reasonable suspicion to expand the stop and investigate whether the defendant and driver were transporting drugs. See Morrill, 169 N.H. at 712-13, 716-17. The only material facts in this case, according to the trial court, that were not present in Morrill were the presence of the "unusual air freshener," the fact that the defendant, who was not the driver, "did the majority of the talking," and the trooper's observation of the occupants' frantic movements as they were coming to a stop. Although the trial court acknowledged that ...

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