Lead Opinion
The defendant, Jessica Morrill, appeals her conviction, following a jury trial in Superior Court (Delker, J.), on three counts of possession of a controlled drug (oxycodone, alprazolam, and lisdexamfetamine), and one count of possession of a controlled drug with intent to sell or distribute (cocaine). See RSA 318-B:2, I (2011). On appeal, she argues that the trial court erred by denying her motion to suppress evidence seized during a stop for a motor vehicle violation, and by denying her motion to dismiss the possession with intent to sell or distribute charge at the close of the State’s case at trial. We reverse and remand.
I. Background
We accept the trial court’s findings where supported by the record of the suppression hearing. See State v. Roy,
When he approached the passenger side of the vehicle, McAulay observed an adult male in the driver seat and an adult female in the front passenger seat. He also observed three young children in the back of the van: one restrained in a car seat, one wearing a seatbelt, and the third lying down on a bench seat and covered with blankets. According to McAulay, the children were underdressed for the cold weather, and it appeared as though they had been “thrown in the back” of the van.
McAulay illuminated the cabin with a flashlight and requested the driver’s license and the vehicle’s registration paperwork. The driver, Jason Millett, produced a valid driver’s license and the van’s registration. The registration paperwork indicated that the van was recently registered to the adult female passenger, later identified as the defendant.
McAulay asked Millett from where they had been traveling. Millett replied that they had been visiting the defendant’s friend in Massachusetts, but could not recall the name of the town. Millett stated that the town’s name began with the letter W, and tried to pronounce the town’s name in an “almost stuttering” fashion. The defendant did not interject, but, rather, kept looking forward. Although Millett looked at McAulay when handing over his license and the registration, he looked forward the remainder of the time. Millett appeared to be unusually nervous; he was “jittery” and “shaking uncontrollably.” After reviewing the documentation Millett provided, McAulay asked why the children were not properly restrained. McAulay could not remember precisely how the defendant and Millett responded, but he testified that they could not explain why the children were not properly restrained.
McAulay then returned to his cruiser, where he spoke with Sergeant Cooper who had arrived on scene. McAulay, according to his testimony, “felt there was a lot more to the story than [Millett and the defendant] were putting on.” He testified that he suspected the defendant and Millett had been, were, or were about to become engaged in criminal activity, but that he “didn’t know at that point” what that might be.
Outside the van, Millett repeatedly placed his hands in his pockets, despite McAulay’s request that he refrain from doing so. McAulay asked Millett whether he was carrying any weapons, and Millett replied in the negative. A pat frisk confirmed that Millett had responded truthfully. However, Millett continued to appear “very nervous” and paced back and forth. He also paused and looked away from McAulay before answering questions. McAulay questioned Millett about where they had been. Millett again stated that they had come from a town in Massachusetts, and that the town’s name began with the letter W. McAulay asked whether he meant Worcester, and Millett replied that Worcester “sounded right.” In response to McAulay’s questioning regarding the family’s travel itinerary, Millett stated that the family had left Maine at approximately 2:00 p.m. that day and had visited the defendant’s friend. At that time, McAulay asked if there were “any drugs or any illegal items” in the van. Millett replied that there were not.
In the meantime, Cooper spoke with the defendant. The defendant reported a different itinerary to Cooper than Millett had provided to McAulay. Cooper then informed McAulay of the defendant’s version, and McAulay questioned Millett about inconsistencies between Millett’s and the defendant’s stories. Unable to explain the inconsistencies, Millett became increasingly nervous and adopted a “fight or flight” stance.
McAulay then requested Millett’s consent to search the van. Millett refused. McAulay thereafter informed Millett of his right to refuse consent. He also requested a canine unit to perform a sniff of the vehicle, and told Millett that he planned to apply for a search warrant if the dog signaled that the vehicle contained contraband. At this point, Millett verbally consented to the search, and subsequently executed a “consent to search” form. A search of the van revealed, among other things, oxycodone, alprazolam, lisdexamfetamine, and cocaine. Millett and the defendant were arrested.
Prior to their respective trials, both Millett and the defendant moved to suppress the evidence obtained from McAulay’s search of the van. The trial court consolidated the two cases for a suppression hearing, and, after the hearing, denied Millett’s and the defendant’s motions.
At trial, the State presented the testimony of Cooper, McAulay, and a controlled substances identification expert from the State crime lab. Cooper testified that, during the motor vehicle stop, the defendant told him that Millett was her boyfriend, that they had been together for approximately fourteen years, and that she and Millett were the parents of the three children in the rear of the van. He also testified that the defendant
McAulay testified to both the circumstances of the motor vehicle stop and to his search of the van. McAulay explained that he recovered three prescription bottles containing pills from a purse located on the floor of the passenger compartment of the vehicle. He also explained that he found an unlocked, magnetized black box located between the driver and passenger seats, directly in front of the first row of bench seats in the rear of the van, and underneath a jacket or blanket. According to McAulay, the black box held several pieces of gum, a Trident gum wrapper, $1,930 in cash, and two plastic sandwich bags containing a solid, hard-pressed white substance. McAulay testified that a person seated in either the driver seat or the passenger seat could have accessed the black box. He also testified that, based upon his training and experience, the magnetized black box was of the type typically used as a “hide,” which he explained “can basically be stored underneath a vehicle . . . anywhere that isn’t inside the vehicle.” McAulay also testified that Millett was searched incident to his arrest, that this search revealed a piece of Trident gum in the pocket of Millett’s sweatshirt, and that a subsequent warrant search of the van revealed a portion of a prescription pill near the driver’s seat, two cellular telephones, and $121 in cash in the center console of the vehicle.
Also at trial, the controlled substances identification expert testified that she tested one of each kind of the pills recovered from the purse, and found the pills to contain oxycodone, alprazolam, and lisdexamfetamine, respectively. She also testified that she tested the white substance contained in the black box and found it to be approximately 2.88 ounces of cocaine. According to McAulay, this amount of cocaine was “much more than what [is] typically see[n] for . . . someone that uses cocaine for their own habit.”
After the State rested, the defendant moved to dismiss the indictment alleging possession with intent to sell or distribute cocaine, arguing that the trial record was devoid of evidence that she directly or constructively possessed the cocaine. The trial court denied the defendant’s motion to dismiss, reasoning that the evidence presented “would allow a jury to reasonably conclude that [she] had constructive possession of the box with the cocaine in it.” The trial court specifically identified this evidence as including: the defendant’s lack of responsiveness during the stop, the box’s accessibility from the passenger seat, and the proximity of the box to the defendant’s children. The jury thereafter convicted the defendant on all charges. This appeal followed.
The defendant
We first address the defendant’s claim under the State Constitution and rely upon federal law only to aid our analysis. State v. Ball,
“Part I, Article 19 of the New Hampshire Constitution protects all people, their papers, their possessions and their homes from unreasonable searches and seizures.” Id. (quotation omitted). Evidence obtained in violation of a defendant’s rights under Part I, Article 19 of the State Constitution is inadmissible under the exclusionary rule, though an exception to this rule may apply if the State proves that the taint of the primary illegality is purged. Id.
“A traffic stop is a ‘seizure’. . . even though the purpose of the stop is limited and the resulting detention quite brief.” State v. McKinnon-Andrews,
We have adopted a three-pronged test to determine whether the scope of an otherwise valid stop has been exceeded based on further questioning:
*716 If the question is reasonably related to the purpose of the stop, no constitutional violation occurs. If the question is not reasonably related to the purpose of the stop, we must consider whether the law enforcement officer had a reasonable, articulable suspicion that would justify the question. If the question is so justified, no constitutional violation occurs. In the absence of a reasonable connection to the purpose of the stop or a reasonable, articulable suspicion, we must consider whether in light of all the circumstances and common sense, the question impermissibly prolonged the detention or changed the fundamental nature of the stop.
McKinnon-Andrews,
Here, the trial court identified McAulay’s request that Millett step out of the vehicle as the relevant point of expansion of the stop. The trial court found that “the expansion was valid under the second prong of the McKinnon-Andrews test,” reasoning that, by this time, McAulay had a reasonable, articulable suspicion that the defendant and Millett were engaged in “any number of . . . crimes, including kidnapping” and “drug smuggling.” It concluded that, therefore, McAulay was justified in questioning Millett outside the van and later calling for a canine unit.
On appeal, the defendant does not dispute that McAulay had a reasonable, articulable suspicion for the initial stop of her vehicle. Instead, she argues that the trial court erred in finding that the requirements of McKinnon-Andrews for permissibly expanding the initial scope of the stop had been met. We agree.
In their briefs and at oral argument, the parties devoted considerable effort to debating the issues of whether, to be justified in expanding the scope of a traffic stop, a police officer must have an articulable suspicion about a particular type of criminal activity, or merely criminal activity generally. They also argued about whether McAulay possessed a proper basis for the expansion at various points during the interaction with the defendant and Millett before McAulay called for the canine unit. We find it unnecessary to address these arguments. Regardless of whether McAulay was justified in pursuing some further inquiries of the defendant and Millett, by the time McAulay called for the canine unit, he had already satisfactorily resolved the license plate issue that provided the initial justification for the stop, and none of his further inquiries established a reasonable suspicion that the vehicle contained illegal drugs. Thus,
We note that, at the suppression hearing, McAulay testified that the absence of a proper child safety seat for one of the children in the vehicle could not be resolved “immediately on the roadside.” To the extent that this testimony could be interpreted to suggest a valid alternative reason for prolonging the stop, the State does not, on appeal, seek to justify the prolongation of the stop on this basis.
Accordingly, we hold that the continued detention of the defendant after the call for a canine unit was unlawful.
Because the continued detention was unlawful, we next consider whether the illegality of that detention tainted Millett’s consent to search the van. “The fruit of the poisonous tree doctrine requires the exclusion from trial of evidence derivatively obtained through a violation of Part I, Article 19 of the New Hampshire Constitution.” State v. Cobb,
The State does not argue that the taint of the unlawful detention has been purged or attenuated in the instant case. Accordingly, the State failed to meet its burden to establish that the evidence obtained as a result of the consent search of the van should not be suppressed. See id. The trial court erred in denying the defendant’s motion to suppress. Because the defendant prevails under the State Constitution, we need not reach her federal claim. See Ball,
III. Sufficiency of the Evidence
The defendant next argues that the evidence was insufficient to convict her of possession of cocaine with intent to sell or distribute. Although we conclude that the evidence obtained from the search of the van should have
“A challenge to the sufficiency of the evidence raises a claim of legal error; therefore, our standard of review is de novo.” State v. Collyns,
The defendant argues that the evidence was insufficient to establish that she: (1) knowingly possessed the cocaine; and (2) intended to distribute it. We first address the defendant’s challenges relating to possession and then turn to her challenges relating to intent to sell or distribute.
To convict the defendant of possession of a controlled substance, the State needed to prove beyond a reasonable doubt that the defendant: “(1) had knowledge of the nature of the drug; (2) had knowledge of its presence in [her] vicinity; and (3) had custody of the drug and exercised dominion and control over it.” State v. Turmelle,
The defendant first argues that “there was insufficient evidence that [she] knew the cocaine was in her presence or that she constructively possessed it.” She contends that the evidence “connect[ing] her to the cocaine” was solely circumstantial, and that the evidence was insufficient because it did not exclude all reasonable conclusions except guilt. See Germain,
Here, the evidence at trial established that the van in which the cocaine was found was registered to the defendant, and that the defendant was a passenger in the vehicle. The only other adult in the vehicle was not a stranger but was, rather, someone with whom the defendant was intimately familiar. According to the information the defendant provided to Cooper, the family had been visiting not unknown persons but, rather, her friends and family. The cocaine was found inside an unlocked box within the defendant’s reach from the passenger seat, near the defendant’s children and her purse. Although there was evidence demonstrating that the box containing the cocaine was hidden underneath a jacket or blanket, there is no evidence to suggest that anyone placed it in the defendant’s vehicle unbeknownst to her. Further, McAulay testified that the defendant behaved unusually during the stop by failing to acknowledge his presence, and by failing to interject herself into the conversation between Millett and McAulay when Millett was struggling to remember details about their trip.
Based upon this evidence, and all reasonable inferences from it in the light most favorable to the State, a rational trier of fact could conclude beyond a reasonable doubt that the defendant knew of the presence of the cocaine within the van and constructively possessed it. See State v. Tabaldi,
The defendant next argues that there was insufficient evidence that she intended to distribute the cocaine. Because the defendant concedes that she did not raise this argument before the trial court, we consider this argument under the plain error rule. See Sup. Ct. R. 16-A; State v. Russell,
In order to sustain a conviction for possession of a controlled substance with intent to sell or distribute, see RSA 318-B:2,1, the State was required to prove, among other things, that the defendant intended to sell or give the drug to another person. State v. Grote,
Reversed and remanded.
Notes
Millett’s and the defendant’s cases are not consolidated on appeal.
Concurrence Opinion
concurring specially. The majority applies the three-part test we articulated in State v. McKinnon-Andrews,
Consistent with the majority opinion, I believe that the first two prongs of the McKinnon-Andrews test were not satisfied in the instant case. McAulay’s request for a canine unit was not reasonably related to the initial justification for the stop. Cf. id. at 25 (holding officer’s question regarding contents of defendant’s vehicle not reasonably related to purpose of traffic stop). Additionally, it was not based upon any reasonable suspicion that arose before McAulay made the request. See State v. Blesdell-Moore,
The third prong of the test requires consideration of whether “in light of all the circumstances, the question impermissibly prolonged the detention or changed its fundamental nature.” McKinnon-Andrews,
For these reasons, I believe that the stop metamorphosed into an overly intrusive detention, at the latest, by the time McAulay requested the canine unit. See Blesdell-Moore,