Cited by

The court found that “to the extent [the officer’s] efforts to obtain the defendant’s license from his wallet are 2 appropriately characterized as a search, such a search would fall within the ‘search-incident exception’ to the warrant requirement.” Relying mainly on State v. Farnsworth, 126 N.H. 656 (1985), and State v. Cimino, 126 N.H. 570 (1985), the court concluded that “[i]n these circumstances, the passing of time from the seizure of the wallet to its searching, does not undermine the cons

We have previously noted that “upon arrest the police may search an arrested person for valuables, weapons, instruments of escape, and evidence of crime.” State v. Cimino, 126 N.H. 570, 574 (1985).

“[A] warrant based in part on illegally seized evidence is nonetheless valid so long as there was enough other evidence to establish probable cause.” State v. Cimino, 126 N.H. 570, 574 (1985).

“If the evidence in question has been obtained only through the exploitation of an antecedent illegality, it must be suppressed.” State v. Cimino, 126 N.H. 570, 573, 493 A.2d 1197, 1200 (1985).

See, e.g., State v. Cimino, 126 N.H. 570, 573, 493 A.2d 1197, 1200 (1985) (officer acted properly in securing vehicle pursuant to defendant’s request); State v. Gilson, 116 N.H. 230, 234, 356 A.2d 689, 692 (1976) (officer acted properly in removing keys in order to secure vehicle).

The State in support of the search in this case relies principally on four New Hampshire cases, State v. Dunbar, 117 N.H. 904, 379 A.2d 831 (1977); State v. Maxfield, 121 N.H. 103, 427 A.2d 12 (1981); State v. Cimino, 126 N.H. 570, 493 A.2d 1197 (1985); and State v. Levesque, 123 N.H. 52, 455 A.2d 1045 (1983).

We begin by first evaluating the defendant’s State constitutional claims, State v. Ball, 124 N.H. 226, 231, 471 A.2d 347, 350 (1983), using decisions of the United States Supreme Court and other jurisdictions only as aids in our analysis, State v. Cimino, 126 N.H. 570, 572-73, 493 A.2d 1197, 1200 (1985) (citing Michigan v. Long, 463 U.S. 1032, 1039-41 (1983)).

A lesser offense is necessarily included in a charge of the greater “if the proof necessary to establish the greater offense will of necessity establish every element of the lesser offense.” State v. King, 105 N.H. 47, 48, 192 A.2d 603, 604 (1963) (citation omitted); see also State v. Mallar, 127 N.H. 816, 820, 508 A.2d 1070, 1072-73 (1986); State v. Cimino, 126 N.H. 570, 576, 493 A.2d 1197, 1202 (1985); State v. Merski, 123 N.H. 564, 567, 465 A.2d 491, 493 (1983).

at 633, 517 A.2d at 1166 (“the defendant objected to the admission of his statements to police based only on generalized ‘constitutional’ concerns”); see also State v. Westover, 127 N.H. 130, 131, 497 A.2d 1218, 1219 (1985); State v. Cimino, 126 N.H. 570, 572-73, 493 A.2d 1197, 1199-1200 (1985).

State v. Dellorfano, supra at 633, 517 A.2d at 1166; see also State v. Cimino, 126 N.H. 570, 572-73, 493 A.2d 1197, 1200 (1985) (cautioning defendants to raise clear State constitutional claims at the trial level in order to invoke the rule in State v. Ball on appeal).

On this view, the custodial search of the defendant was an incident of his own arrest, see United States v. Edwards, 415 U.S. 800 (1974); United States v. Robinson, 414 U.S. 218 (1973); State v. Cimino, 126 N.H. 570, 574-75, 493 A.2d 1197, 1201 (1985), as was his subsequent custodial statement.

State v. Farnsworth, 126 N.H. 656, 662, 497 A.2d 835, 838 (1985); see also State v. Cimino, 126 N.H. 570, 575, 493 A.2d 1197, 1201 (1985).

In State v. Cimino, 126 N.H. 570, 572, 493 A.2d 1197, 1199-1200 (1985), we cautioned defendants to raise a clear State, as distinct from federal, constitutional claim at the trial court level in order to invoke State v. Ball at the appellate level.

However, a lesser-included offense cannot, by definition, include any elements different than those that make up the greater offense.

2 W. LaFave, Search and Seizure, A Treatise on the Fourth Amendment § 5.3, at 303 (1978); see, e.g., State v. Cimino, 126 N.H. 570, 493 A.2d 1197 (1985) (post-arrest detention search upheld as a valid search incident to a lawful arrest); State v. Levesque, 123 N.H. 52, 455 A.2d 1045 (1983) (post-arrest detention search upheld as a lawful inventory search).