Criminal Law

Laura D. Devine
Civil Litigation Attorney
Boyle Shaughnessy Law
Manchester, NH

No. 2018-0647
May 15, 2020


  • Whether the trial court erred in denying a motion to suppress evidence pursuant to a search of a rental car following a motor vehicle

The defendant was convicted of two counts of possession of a controlled substance with the intent to distribute subsequent offense.

The Court noted the relevant facts as follows. A state trooper made a traffic stop on Interstate 95 northbound for failure to properly signal with a lane change on two occasions while operator/defendant passed a tractor trailer. After making the stop, the trooper learned that the defendant was on parole for a murder. During the traffic stop the trooper made numerous observations which were later included as a basis for reasonable articulable suspicion which expanded the scope of the stop. These included, (1) the vehicle took longer than usual for the defendant to stop the car after acknowledging he was being pulled over; (2) the defendant was visibly nervous, including that his hand was visibly shaking; (3) three cell phones were present in the vehicle; (4) the officer could detect an odor of marijuana;(5) the defendant volunteered that he was operating a rental car; and (6) the defendant and his passenger reported conflicting stories regarding where they were coming from, where they were going and how long they had known each other.

The trooper asked the defendant to exit the vehicle after smelling marijuana. The officer conducted a pat and frisk for weapons and contraband because of the odd behavior and the knowledge that the defendant was on parole for murder. Nothing was found during this search. At one point while outside the vehicle, the defendant volunteered that the trooper could search his vehicle. The conversation continued, the trooper later asked if he could search the vehicle, and if the defendant would sign a written consent form. The defendant immediately signed the consent form. The trooper searched the vehicle and found two plastic bags containing drugs.

The trial court found that the trooper had lawfully expanded the scope of the stop when he asked the defendant to step out of the vehicle because he had reasonable, articulable suspicion of drug activity when he made the request.

On appeal, the defendant argued that the trooper did not have reasonable articulable suspicion to expand the scope of the initial stop and subsequent intent to search was tainted by an unconstitutional intention. The Court held that the odor of marijuana remains a relevant factor that can be considered in determining whether a reasonable articulable suspicion of criminal activity exists. The Court noted that if the trial court had provided a per se rule to the detected odor of marijuana that would be an error. The Court noted that the totality of the circumstances identified by the trial court provided the trooper with a reasonable, articulable suspicion of criminal activity which was sufficient to justify expanding the scope of the stop by asking the defendant to exit the rental vehicle. The Court rejected the argument that law enforcement must ask a particular set of questions at a particular point in time during an investigatory stop for its expansion to comport with the constitution.


Donna Brown, Wadleigh, Starr and Peters, Manchester, for the defendant. Gordon MacDonald, attorney general (Sean Locke, assistant attorney general) for the State.