State of New Hampshire v. LeeAnn O'Brien

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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Merrimack
No. 2022-0081

THE STATE OF NEW HAMPSHIRE

v.

LEEANN O’BRIEN

Argued: February 9, 2023
Opinion Issued: April 26, 2023

John M. Formella, attorney general, and Anthony J. Galdieri, solicitor
general (Sam M. Gonyea, attorney, on the brief and orally), for the State.

Stephanie Hausman, deputy chief appellate defender, of Concord, on the
brief, and Pamela E. Phelan, public defender, of Concord, orally, for the
defendant.

DONOVAN, J. The defendant, LeeAnn O’Brien, appeals her convictions,
following a jury trial, of possession of a narcotic drug and control of a vehicle
where a controlled drug was illegally kept. See RSA 318-B:2 (Supp. 2020); RSA
318-B:26, III(a) (Supp. 2022). On appeal, she argues that the Superior Court
(Kissinger, J.) erred by denying her motion to suppress evidence seized
pursuant to a search of her vehicle following a motor vehicle stop. We
conclude that the officer unlawfully expanded the scope of the stop for a
defective license plate light by requesting the defendant’s consent to search her
vehicle for drugs. Accordingly, we reverse and remand.

I. Facts

The following facts are taken from the suppression hearing record and
are undisputed, except as otherwise noted. On March 1, 2020, a Hooksett
police officer patrolled an intersection adjacent to a gas station in Hooksett.
The officer observed the defendant in the gas station parking lot inspecting the
rear license plate on her vehicle. The officer waited for the defendant to pull
onto the road, observed “that the [vehicle’s] left plate light was out,” and
initiated a traffic stop. At the suppression hearing, the officer testified that the
right side of the plate light was illuminated and, because his own headlights
were on, he could read the defendant’s license plate.

The officer approached the driver’s side of the vehicle, and the defendant,
the sole occupant, rolled down her window. The officer immediately “noticed a
strong odor of marijuana coming from the [vehicle].” The officer informed the
defendant that her plate light was out and asked for her license and
registration. The defendant provided the same and explained that she knew
her license plate light was out because somebody just told her about it at the
gas station. The officer then informed the defendant about his observation of
the odor of marijuana and asked if there was any marijuana in the vehicle.
The defendant assured the officer that there was no marijuana in the vehicle,
but she admitted to smoking some earlier that day. Because the defendant
was from Massachusetts, the officer explained that, although marijuana is
“legal there,” it is “not legal here in New Hampshire.” He then asked the
defendant for her consent “to search the [vehicle] and everything inside of it” to
confirm that there were “no other drugs or marijuana inside the [vehicle].” At
the suppression hearing, the officer admitted that he “didn’t have any
suspicion about any other drugs,” nor any reason to believe that “[the
defendant] was driving under the influence.”

The defendant consented to the search and exited the vehicle. During
the search, the officer inspected a purse he found in the back seat of the
vehicle, in which he found the defendant’s social security card and two
wrappers containing an orange pill split in half. The officer identified the pill as
suboxone. He then spoke with the defendant who acknowledged that the purse
belonged to her and informed the officer that the orange pill was her brother’s
suboxone. Based upon these facts, the officer arrested the defendant.

Thereafter, the defendant was charged and indicted for possession of a
narcotic drug and control of a vehicle where a controlled drug was illegally
kept. Through counsel, the defendant filed a motion to suppress the evidence
obtained from the traffic stop. The defendant first argued that the officer did

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not have a valid basis to stop her vehicle. Specifically, the defendant argued
that the officer had no difficulty reading the license plate and he knew or
should have known that the defendant was aware of the malfunctioning
lightbulb. Therefore, in her view, “there was no lawful basis for the intrusion
upon the privacy interests” of the defendant. The defendant further argued
that she did not freely consent to the search of her vehicle. The defendant
maintained that the odor of marijuana was the sole basis for the officer’s
request for consent to search the vehicle and alleged that the officer threatened
to impound her vehicle if she did not consent. Based upon these facts, the
defendant argued that she was compelled to consent to the search.

The trial court denied the defendant’s motion. The court found that the
officer had a reasonable suspicion to initiate the traffic stop because the
defendant was driving with a malfunctioning license plate light, “which is a
violation of RSA 266:44.” The court further opined that “[t]he fact that [the
officer] could read the license plate [did] not render her defective light beyond
the scope of RSA 266:44.” As to the defendant’s second argument, the court,
citing State v. Perez, 173 N.H. 251 (2020), ruled that “the scent of the
marijuana emanating from the [vehicle] was sufficient for [the officer] to ask for
permission to search the [vehicle].” The court also found that the defendant’s
allegation that the officer threatened to impound the vehicle was “not
consistent with the testimony provided to the [c]ourt at the hearing.”
Accordingly, the trial court found that the defendant’s “consent was freely
given.” A jury subsequently found the defendant guilty on charges of
possession of a narcotic drug and control of a vehicle where a controlled drug
was illegally kept. This appeal followed.

II. Analysis

On appeal, the defendant argues that the trial court’s failure to suppress
all evidence obtained from the search of her vehicle violated her state and
federal constitutional rights to be free from unreasonable searches and
seizures. See N.H. CONST. pt. I, art. 19; U.S. CONST. amends IV, XIV. More
specifically, the defendant first argues that the officer’s observation of the
defective license plate light did not provide a lawful basis for the motor vehicle
stop. She also argues that the officer unreasonably expanded the scope of the
stop and her consent to the search of her vehicle was tainted by her illegal
detention. We first address the defendant’s claims under the State
Constitution and rely upon federal law only to aid our analysis. State v. Ball, 124 N.H. 226, 231-33 (1983). When reviewing a trial court’s order on a motion
to suppress, we accept its factual findings unless they lack support in the
record or are clearly erroneous. Perez, 173 N.H. at 256. We review, de novo,
the trial court’s legal conclusions. Id.

Because we find the issue to be dispositive of this appeal, we address
only the defendant’s argument that the officer unlawfully expanded the scope

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of the traffic stop. Part I, Article 19 of the New Hampshire Constitution
protects all people, their papers, their possessions and their homes from
unreasonable searches and seizures. Warrantless seizures are per se
unreasonable under Part I, Article 19 unless the State proves by a
preponderance of the evidence that the seizure falls within the narrow confines
of a judicially crafted exception. Perez, 173 N.H. at 257. One such exception
allows law enforcement to conduct traffic stops of motorists without a warrant.
Id.

A traffic stop is a seizure for purposes of the State Constitution. State v.
Sage, 170 N.H. 605, 610 (2018). To undertake such a stop that complies with
the State Constitution, the officer must have a reasonable suspicion, based
upon specific, articulable facts taken together with rational inferences drawn
from those facts, that the particular person stopped has been, is, or is about to
be engaged in criminal activity. State v. Monegro-Diaz, 175 N.H. 238, 242
(2022). A reasonable suspicion “must be more than a mere hunch.” Id. The
scope of such an investigative stop must be carefully tailored to its underlying
justification, must be temporary, and last no longer than is necessary to
effectuate the purpose of the stop. Sage, 170 N.H. at 610.

The scope of a stop may be expanded to investigate other suspected
illegal activity “only if the officer has a reasonable and articulable suspicion
that other criminal activity is afoot.” Id. (quotation omitted). An investigatory
stop may “metamorphose into an overly prolonged or intrusive detention and,
thus, become unlawful.” Perez, 173 N.H. at 257 (quotation omitted). Whether
the detention is a lawful investigatory stop, or goes beyond the limits of such a
stop, depends upon the facts and circumstances of the particular case. Id. To
determine whether an officer’s inquiry unlawfully expanded the scope of an
otherwise valid traffic stop, we undertake the following analysis:

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.

The defendant argues that “the only evidence supporting [the officer’s]
inquiry into drug possession was the smell of burnt marijuana.” Relying upon
our holding in Perez, the defendant maintains that the officer “did not have
reasonable and articulable suspicion of a drug crime [necessary] to expand the

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scope of the motor vehicle stop.” In turn, the defendant contends that the
unjustified inquiry into the possession of drugs unlawfully prolonged the
detention and changed the fundamental nature of the stop. As a result, the
defendant argues that the trial court erred in denying her motion to suppress
because the defendant’s consent to search her vehicle was tainted by an illegal
detention and expansion of the stop.

As an initial matter, the State contends that the defendant’s argument
that the officer unlawfully expanded the scope of the stop is not preserved for
our review. Specifically, the State argues that on appeal the defendant
abandons her argument before the trial court that her consent was not freely
given and instead argues “for the first time” that the officer expanded the scope
of the stop, thereby unconstitutionally tainting the consent the officer received
to search the vehicle. We are unpersuaded by the State’s argument. “We have
often explained that the purpose of our preservation rule is to ensure that trial
courts have an opportunity to rule on issues and to correct errors before
parties seek appellate review.” Perez, 173 N.H. at 258. “With these principles
in mind, we have held that an issue is preserved when the trial court
understood and therefore addressed the substance of an objection.” Id.

Here, in her motion to suppress, the defendant argued that the officer
relied solely upon the odor of marijuana and did not observe any indications of
impairment prior to asking for consent to search the vehicle. The trial court
considered the defendant’s argument, but ultimately disagreed with her, citing
Perez and ruling that “the scent of the marijuana emanating from the [vehicle]
was sufficient for [the officer] to ask for permission to search the [vehicle].”
Therefore, the trial court considered whether the odor of marijuana, in and of
itself, justified the officer’s expansion of the scope of the traffic stop when he
asked the defendant for her consent to search the vehicle for marijuana and
other drugs, and, applying our holding in Perez, concluded that it did.
Accordingly, we conclude that the defendant’s argument is preserved for our
review.

Turning to the merits, the parties focus our attention on the manner in
which the trial court applied our holding in Perez. In that case, we addressed
how the decriminalization of marijuana and legalization of medical marijuana
affected our “standard for reasonable, articulable suspicion” of criminal activity
within the context of a traffic stop. Perez, 173 N.H. at 259-62. We noted that
prior to decriminalization, “the odor of marijuana had been a relevant and
noteworthy factor among those considered by this court when reviewing
whether law enforcement had reasonable, articulable suspicion of criminal
activity.” Id. at 260 (collecting cases). However, the legislature had since
amended the Controlled Drug Act, “making possession of three quarters of an
ounce or less of marijuana a violation-level, rather than a criminal, offense in

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certain circumstances.”1 Id. at 259; see also RSA 318-B:2-c, II, V (Supp. 2022);
RSA 625:9, II(b) (2016) (“A violation does not constitute a crime . . . .”).
Therefore, we recognized that “the odor of marijuana may indicate both
criminal and non-criminal activity.” Perez, 173 N.H. at 260.

In light of these significant “changes in the law,” we rejected the State’s
argument that “the detected odor of marijuana alone supports, per se, a
reasonable, articulable suspicion ‘that a person possesses an illegal quantity of
marijuana.’” Id. at 259, 262. We likewise rejected the defendant’s argument in
support of a per se rule that the odor of marijuana was only “indicative of
innocent behavior.” Id. at 262. Instead, we adopted a case-by-case approach
in which the odor of marijuana “remains a relevant factor” to be considered
among the totality of the circumstances in determining whether reasonable,
articulable suspicion of criminal activity exists. Id. at 261. We then held that
the officer’s detection of the odor of marijuana, combined with other factors,
including the defendant’s failure to immediately pull over, the nervous and odd
behavior of the passengers, multiple cell phones observed in the defendant’s
rented vehicle, and the defendant’s criminal record, created “a reasonable,
articulable suspicion of drug activity.” Id. at 262-63. In light of these multiple
factors, we concluded that no constitutional violation occurred when the officer
expanded the scope of the traffic stop by issuing an exit order to search the
defendant’s vehicle. Id. at 263.

Here, to determine whether the officer lawfully expanded the scope of the
traffic stop by asking for consent to search the defendant’s vehicle, we must
“analyz[e] the totality of circumstances supporting a reasonable, articulable
suspicion of criminal activity.” Perez, 173 N.H. 262. At the suppression
hearing, the officer repeatedly stated that “the odor of marijuana coming out of
the [vehicle],” which he believed provided a “reasonable suspicion that there
might be more marijuana,” prompted his inquiry into drugs and supported his
request to search the vehicle. The officer expressly ruled out any suspicion of
impaired driving or “about any other drugs,” and he provided no indication that
anything about his interaction with the defendant increased his suspicion of
illegal activity.

We interpret the trial court’s order as applying a per se rule that the odor
of marijuana provided a reasonable, articulable suspicion of criminal activity
for the officer to expand the scope of the stop to ask for permission to search
the defendant’s vehicle. State v. Kay, 162 N.H. 237, 242 (2011) (“Our
interpretation of a trial court order is a question of law, which we review de
novo.”). In doing so, the trial court erred. See Perez, 173 N.H. at 263 (“If the
trial court had applied a per se rule to the detected odor of marijuana, that

1 Because a violation-level offense is not a crime, see RSA 625:9, II(b) (2016), we reject the State’s

argument that the officer’s “authority to issue a citation for possession of any amount of
marijuana” supported expanding the scope of the traffic stop.

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would be error.”). The court did not apply “determinative weight” to one of a
number of factors, but, rather, the court considered only one factor to support
its conclusion that the officer was justified in expanding the scope of the stop.
See State v. Carrier, 173 N.H. 189, 208 (2020) (explaining that the trial court
was permitted to accord determinative weight to one factor when considering
multiple factors in its totality of the circumstances analysis). Consequently,
the trial court’s ruling in this case that, without additional evidence, “the scent
of the marijuana emanating from the [vehicle] was sufficient for [the officer] to
ask permission to search [the vehicle],” is inconsistent with our holding in
Perez rejecting a per se rule regarding the detection of an odor of marijuana.
See Perez, 173 N.H. at 263.

Indeed, in her responses to the officer’s inquiry into the odor of
marijuana, the defendant denied that any marijuana was in the vehicle,
explained that she had smoked marijuana earlier that day, and the officer
acknowledged that the defendant resided in Massachusetts where possession
of marijuana is legal. Therefore, the defendant’s innocent responses to the
officer’s inquiry, her demeanor, and the lack of any other evidence suggesting
criminal activity should have dispelled an officer’s objective initial suspicion of
illegal drug activity or of possession of more than three-quarters of an ounce of
marijuana. See RSA 318-B:2-c, II, V. On this record, based upon the totality
of the circumstances, we conclude that the officer lacked reasonable suspicion
of criminal activity. More specifically, the officer’s detection of an odor of
marijuana, standing alone, was insufficient to justify his expansion of the
traffic stop to ask for consent to search the defendant’s vehicle. See Perez, 173
N.H. at 262.

The State argues that Perez is distinguishable because, in that case, we
addressed only “whether the officer’s exit order impermissibly expanded the
scope of the stop,” as opposed to “a mere inquiry into the odor of burnt
marijuana.” According to the State, “this case is one of first impression” and
Perez “is not controlling” because here we are tasked with analyzing whether
the officer’s “mere inquiry” into the odor of marijuana unlawfully expanded the
scope of the stop. The State’s argument is unavailing. The officer did not limit
the scope of the traffic stop to a “mere inquiry” into the odor of marijuana. Had
he done so, his encounter with the defendant would have concluded with a
warning or a citation for a motor vehicle violation.

Rather, as previously detailed, the defendant’s responses to the officer’s
initial inquiry should have dispelled his suspicions of illegal drug activity.
Nonetheless, the officer subsequently requested consent to search the
defendant’s vehicle on the sole basis that he had observed an odor of
marijuana. Even if the officer’s inquiry into the odor of marijuana was
permissible, the officer did not have a reasonable, articulable suspicion of
illegal drug activity, based solely on the odor of marijuana, to thereafter justify
asking for consent to search the defendant’s vehicle for marijuana or other

7
drugs. Instead, the officer’s continued detention of the defendant when he
asked for her consent to search her vehicle for drugs altered the fundamental
nature of the traffic stop and thus was unlawful.2 See State v. Morrill, 169
N.H. 709, 722 (2017) (Hicks, J., concurring) (“An investigation into the
possession of contraband is fundamentally different from an investigation of
traffic violations.”).

Because the continued detention was unlawful, typically we would next
consider whether the illegality of that detention tainted the defendant’s consent
to search the vehicle. “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.” Morrill, 169 N.H. at 717
(quotation omitted). We have held that when consent is the product of an
unlawful detention during a motor vehicle stop, such consent is “tainted by the
illegality of the detention”; however, we have not adopted a per se rule requiring
suppression. State v. Hight, 146 N.H. 746, 749 (2001) (quotation omitted).
“Rather, the question to be resolved is whether, granting establishment of the
primary illegality, the evidence to which instant objection is made has been
come at by exploitation of that illegality or instead by means sufficiently
distinguishable to be purged of the primary taint.” Morrill, 169 N.H. at 717
(quotation and ellipsis omitted). The State bears the burden to “demonstrate
that any taint of an illegal search or seizure has been purged or attenuated.”
Hight, 146 N.H. at 749. However, we need not address this issue because the
State does not argue — let alone meet its burden — that the taint of any illegal
detention was purged.

III. Conclusion

We conclude that the trial court erred in denying the defendant’s motion
to suppress. We therefore reverse and remand. Because the defendant
prevails under the State Constitution, we need not address her federal claim.
See Ball, 124 N.H. at 237.

Reversed and remanded.

HICKS and BASSETT, JJ., concurred; MACDONALD, C.J., and HANTZ
MARCONI, J., dissented.

MACDONALD , C.J., and HANTZ MARCONI, J., dissenting. Because we
disagree with the majority that the officer lacked a reasonable, articulable
suspicion of criminal activity, we respectfully dissent.

2 Because we conclude that Perez is controlling, we decline to address the State’s arguments

applying case law from other jurisdictions. Moreover, given our conclusion that the officer’s
request for consent to search the vehicle altered the fundamental nature of the stop, we need not
consider whether it impermissibly prolonged the detention. See Perez, 173 N.H. at 257.

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 The instant case is distinguishable from State v. Perez. In Perez, a New
Hampshire State Police trooper pulled over the defendant’s car after observing
him twice fail to properly signal when changing lanes. State v. Perez, 173 N.H.
251, 254 (2020). Several factors led the trooper to form a reasonable,
articulable suspicion of criminal activity, one of which was “an odor of
marijuana emanating from the vehicle.” Id. at 255. However, the trooper
noticed the odor of marijuana well after initiating the traffic stop: after he
asked for and received the defendant’s driver’s license and registration,
discussed the rental car with the defendant, asked for and received the rental
agreement, and matched the information on the agreement to the defendant’s
driver’s license. See id. at 254. When testifying, the trooper could not recall
whether the odor smelled of fresh or burnt marijuana. Id. at 255. The trooper
asked the defendant if he would exit the vehicle and speak with him at the rear
of the car. Id. After receiving consent to search the vehicle, the trooper found
two plastic bags containing drugs in the car. Id. at 255-56. The defendant
moved to suppress all evidence obtained as a result of the traffic stop. Id. at
256. The trial court denied his motion after an evidentiary hearing, finding
that the trooper had lawfully expanded the scope of the stop. Id.

On appeal, the defendant argued that “after the decriminalization of
small quantities of marijuana in New Hampshire, see RSA 318-B:2-c, II (Supp.
2019), the odor of marijuana emanating from a vehicle cannot provide
reasonable, articulable suspicion to expand a traffic stop without additional
evidence.” Id. at 258. Because “under New Hampshire law, the odor of
marijuana may indicate both criminal and non-criminal activity,” we held that
“the odor of marijuana remains a relevant factor that can be considered in
determining whether reasonable, articulable suspicion of criminal activity
exists.” Id. at 260, 261. However, we disagreed with the State that “the
detected odor of marijuana alone supports, per se, a reasonable, articulable
suspicion ‘that a person possesses an illegal quantity of marijuana.’” Id. at
262. Based on the many observations made by the trooper during the stop, we
affirmed the trial court’s denial of the motion to suppress. See id. at 262-63.

Here, the particular details regarding the odor of marijuana are distinct
from those in Perez. The officer testified that “[r]ight away [he] noticed a strong
odor of marijuana coming from the car.” He further specified that he smelled
marijuana “immediately” “when she rolled down the window” and that “[i]t
smelled like freshly burned marijuana.” Thus, the strength and nature of the
odor suggested that either there was freshly burnt marijuana in the car or the
defendant had recently smoked marijuana before operating it. Under these
circumstances, this particular odor was the catalyst for the officer’s suspicion
as soon as the stop began, rather than a general observation made well into the
traffic stop, as in Perez.

The officer testified that when asked whether there was any marijuana in
the car, the defendant responded that there was none but that “she had

9
smoked earlier in the day.” The majority asserts that “the defendant’s innocent
responses to the officer’s inquiry, her demeanor, and the lack of any other
evidence suggesting criminal activity should have dispelled an officer’s objective
initial suspicion of illegal drug activity or of possession of more than three
quarters of an ounce of marijuana.” However, her responses did not explain
why the odor of freshly burnt marijuana was emanating from the car. Based
on the totality of the circumstances, which included this inconsistency and the
fact that the defendant was the sole person in the car, the officer had a
reasonable, articulable suspicion that there was freshly burnt marijuana in the
vehicle. See id. at 262 (reasoning that “[a]lthough any one factor in the totality
of circumstances may seem innocent or innocuous in isolation, we consider the
[officer’s] observations together and in light of the reasonable inferences that an
officer who is experienced in detecting and investigating drug trafficking may
draw”).

Because here, there was more than a mere odor of marijuana, under the
totality of the circumstances test, we would affirm the trial court’s order
denying the defendant’s motion to suppress. Accordingly, we respectfully
dissent.

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