By GAIL OBER, LACONIA DAILY SUN
LACONIA — Cotton swabs and bloodshot eyes are not enough to justify interrogating a driver and searching a car, ruled Belknap County Supreme Court Presiding Justice James O’Neill Thursday.
O’Neill also ruled that the state trooper who stopped Dawn Marie Miller on Dec. 9, 2015, at 2:30 a.m. had no reason to search her wallet after he stopped her for have one of two rear license plate lights out.
O’Neill determined the trooper had a legitimate reason to stop Miller and to potentially issue her a citation or warning about her plate light.
“Put simply,” he wrote, “there is nothing tying the defendant’s bloodshot eyes and the (cotton swabs) in her vehicle with any unlawful activity.”
During the course of the stop, Miller was questioned about drug use and told the trooper she only used medical marijuana for which she had a prescription. She said she no longer used any hard drugs and had been through rehab.
He asked her when she last used marijuana, and she told him it had been 90 minutes or so. He asked her if she used a pipe and she said she used rolling papers. He asked her if she had them on her, and she gave them to him, in the course of which he saw some marijuana in her wallet.
Although Miller was never charged with possessing marijuana, she was charged with transporting drugs in a motor vehicle. O’Neill determined that the plain site exception didn’t apply in this case because the trooped conducted an “unconstitutional expansion” of the scope of the seizure.
The trooper testified that when he asked Miller to get out of the car, she showed no sign of intoxication but he asked if he could search her car. She gave him permission and began to walk away with her wallet in her hand, but he put his arm out and told her he had to search the wallet because it had been in the car.
He found some pills in it that were a generic version of Adderall but O’Neill ruled that since the officer had expanded the search beyond what he should have that the evidence would not be told to a jury.
O’Neill also gave an explanation of the “fruits of the poisonous tree doctrine,” which required the exclusion from trial of evidence obtained through a violation of the New Hampshire Constitution.
He explained the three points of the rule. The first is to deter police misconduct, the second is to redress the injury of the victim of an unlawful police conduct, and the third is to safeguard compliance with the state constitutional process.
To consider the doctrine, the court had to consider how much time elapsed between the unlawful police activity and the acquisition of the evidence, the presence of intervening circumstances, and the purpose and flagrancy of the official misconduct.
O’Neill determined that inquiry was immediate to the stop and there were no intervening circumstances. He said he does not believe the trooper flagrantly or purposefully violated Miller’s rights; however, the appearance, even if not the reality, led him to think the trooper was on a “fishing expedition” by exploiting her ignorance of her constitutional rights. He said the state could argue that her consent to a search of her vehicle was an intervening circumstance. O’Neill determined that had he not unlawfully expanded the scope of the traffic stop negates any consent she may have given.
The marijuana evidence will not be presented at a trial.
O’Neill also discussed the search of Miller’s purse he found that she didn’t consent to a search and she was already out of her car with it in her hand. Since the trooper never asked for her permission to search her wallet, she didn’t freely, knowingly,and voluntarily allow the officer to search it. Noting the pills led to the most serious charge, he declined to let the evidence be offered at trial.
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