THE STATE OF NEW HAMPSHIRESUPREME COURT

No. 2016-0145

State of New Hampshire

V.

Daniel Jesus Cora

Appeal Pursuant to Rule 7 from Judgmentof the Hillsborough County Superior Court — Northern Division

BRIEF FOR THE DEFENDANT

Christine C. ListAssistant Appellate DefenderAppellate Defender Program10 Ferry Street, Suite 202Concord, NH 03301NH Bar #18954603-224-1236(15 minutes requested)

TABLE OF CONTENTS

Pae

Table of Authorities H

Question Presented 1

Statement of the Case 2

Statement of the Facts 3

Summary of the Argument 4

Argument

I. THIS COURT’S DECISION REJECTING AN AUTOMOBILEEXCEPTION TO THE WARRANT REQUIREMENT HASNOT BEEN UNDERMINED AND REMAINS A WORKABLEAND RELEVANT DOCTRINE 5

A. State v. Stemdale S

B. The automobile exception and its effect on statejurisprudence 10

C. Current state of automobile searches in NewHampshire 14

D. Reasonable expectation of privacy analysisinvolving motor vehicles 16

E. Stare Decisis analysis 22

Conclusion 31

1

TABLE OF AUTHORITIES

Page

Cases

Alonzi v. Northeast Generation Sen’s. Co.,156 N.H. 656 (2008) 23

Cady v. Dombrowksi,413 U.S. 433 (1973) 11,20

California v. Acevedo,500 U.S. 565 (1991) 12

California v. Carney,471 U.S. 386 (1985) 11, 16

California v. Greenwood,486 U.S. 35 (1988) 20

Carroll v. United States,267 U.S. 132 (1925) 10

Commonwealth v. Cast,556 N.E.2d 69 (Mass. 1990) 13

Commonwealth v. Gary,91 A.3d 102 (2014) 12, 13, 15

Commonwealth v. Motta,676 N.E.2d 795 (Mass. 1997) 12, 13

Florida v. Jardines,133 S. Ct. 1409 (2013) 18, 22

Henderson v. State,597 A.2d 486 (Md. Ct. Spec. App. 1991) cert denied, 601 A.2d129 (Md. 1992) 28

Hughes v. State,12 P.3d 948 (Nev. 2000) 13

Katz v. United States,389 U.S. 347 (1967) 17

LaFollette v. Commonwealth,915 S.W.2d 747 (Ky. 1996) 28

11

State ex rd. Love v. One 1967 Chevrolet El Camino,799 P.2d 1043 (Kan. 1990) 10, 27

Malcolm v. State,550 A.2d 670 (Md. 1988) 10, 27

Maryland v. Dyson,527 U.S. 465 (1999) 11

New York v. Class,475 U.S. 106 (1986) 19

Pennsylvania v. Labron,518U.S. 938 (1996) 10,11

People v. Belton,432 N.E.2d 745 (N.Y. 1989) 11, 27

People v. Chavers,658 P.2d 96 (Cal. 1983) 10, 27

People v. Edwards,836 P.2d 468 (Cob. 1992) 10, 27

People v. Potra,479 N.W. 2d 707 (Mich. Ct. App. 1991) 10. 27

People v. Smith,447 N.E. 2d 809 (Ill. 1983) 10, 27

Planned Parenthood v Casey,505 U.S. 833 (1992) 23, 29

State v. Baich,167 N.H. 329 (2015) 23, 26, 29

State v. Ball,124 N.H. 226 (1983) 7, 8

State v. Bean,120 N.H. 946 (1980) 16

State v. Beede,119 N.H. 620 (1979) 7

State v. Blesdell-Moore,l66N.H. 183 (2014) 5

111

State v. Bouchies,457A.2d 798 (Me. 1983) 10,27

State v. Brown,721 P.2d 1357 (Ore. 1986) 11, 25, 27

State v. Camargo,126 N.H. 766 (1985) passim

State v. Canelo,139 N.H. 376 (1995) 7

State v. Davis,149 N.H. 698 (2003) 7

State v. Dukes,547 A.2d 10 (Conn. 1988) 10, 27

State v. Duran,158 N.H. 146 (2008) 5, 22

State v. Duvemov,195 S.E.2d 631 (XV. Va. 1973) 28

State v. Elison,14 P.3d 456 (Mont. 2000) 21

State r Finn,146 N.H. 59 (2001) 7

State v. Gallant,133 N.H. 138 (1990) 11,14

State v. Gamboa,543 So.2d 1129 (La. Ct. App. 1989) 10, 27

State v. Gay,N.H.

___,

No. 2015-0174 (decided July 27, 2016) 14

State v. Gomez,932 P.2d 1 (N.M. 1997) 12, 25

State v. Goss,150 N.H. 46 (2003) passim

State v. Graca,142 N.H. 670 (1998) 16

iv

State v. Greely,115 N.H. 461 (19751 16

State v. Havnie,476 N.W.2c1 905 (Neb. 1991) 28

State r Holmes,154 N.H. 723 (2007) 28

State v. Koppel,127 N.H. 286 (1985) 7

State v. Larocco,794 P.2d 460 (Utah 1990) 11, 27

State v. Leveve,796 S.W.2d 948 (Tenn. 1990) 11, 27, 28

State r Livingston,153 N.H. 399 (2006) 14.19

State v. Lloyd,312 P.3d 467 (Nev. 2013) 11, 12, 13, 15

State v. Lovelady,432 S.W.3d 187 (Mo. 2014) 28

State v. Meadows,260 N.W.2d 328 (N.D. 1977) 13

State v. Mello,162 N.H. 115 (2011) 26

State v. Milliom,794 S.W.2d 181 (Mo. 1990) 10, 27

State v. Mills,411 S.E.2d 193 (N.e. Ct. App. 1991) 28

State v. Monroe,142 N.H. 857 (1998) 15

State v. Murray.135 N.H. 369 (1992) 7

State v. Newcomb,161 N.H. 666 (2011) 6, 14, 19

V

State v. Olsen,293 N.W.2d 216 (Iowa 1980) 10, 27

State v. Perry,166 N.H. 716 (2014) 22, 27

State v. Pinkharn,141 N.H. 188 (1996) 19,26

State v. Poole,496 So.2d 224 (Fl. Ct. AppI. 1986) 10, 27

State v. Pseudae,154 N.H. 196 (2006) 16

State v. Reyna,71 P.3d 366 (Ariz. 2003) 28

State v. Robinette,685 N.E.2d 762 (Ohio 1997) 28

State v. Rodriguez,157 N.H. 100 (2008) 15

State v. Sawa,616A.2d 774 (Vt. 1991) 11,27

State v. Sawyer,147 N.H. 191 (2001) 15

State v. Settle,122 N.H. 214 (1982) 8

State v. Smith,166 N.H. 40 (2014) 7

State v. Socci,166 N.H. 464 (2014) 6, 15, 18, 22

State v. Sousa,151 N.H. 297 (2004) 15

State v. Stem,150 N.H. 705 (2004) 16

State v. Stemdale,139 N.H. 445 (1995) passim

vi

State v. Tibbles,236 P.3d 885 (Wash. 2010) 12

State v. Vermuele,453 N.W. 2d 441 (Neb. 1990) 11, 27

State v. Webber,141 N.H. 817 (1997) 25,26

State v. Werner,

615 A.2d 1O1O(R.I. 1992) 11, 12, 13

State v. Westover,140 N.H. 375 (1995) 18

State v. Witt,126 A.3d 850 (N.J. 2015) 13, 15, 25

State v. Zwicke,767 N.W.2d 869 (N.D. 2009) 12, 13

Stout v. State,898 S.W.2d 457 (Ark. 1995) 28

United States v. Jones,132 S.Ct. 945 (2012) 6, 18

Statutes

R5A266:land:5 20

Constitutional Provisions

Fla. Const. art. I, § 12 28

New Hampshire Constitution Part 1, Article 19 passim

United States Constitution Fourth Amendment passLm

vii

QUESTION PRESENTED

Whether the court should overrule its decision in State v. Sterndale, 139

N.H. 445 (1995), and adopt a motor vehicle excepLion to the warrant

requirement under Part 1, Article 19 of the New Hampshire Constitution.

1

STATEMENT OF THE CASE

In June 2015, a Hilisborough County grand july indicted Daniel Jesus

Cora for one count of possession of fentanyl. ASS 45. The State also charged

Cora, by information, with one count of possession of marijuana. ASS 46.

Cora moved to suppress the drugs because they were obtained during a

warrantless search of Cora’s vehicle. ASS 13-25. The State objected and

argued the search was justified under the plain view exception to the warrant

requirement. ASS 28-36. The court (Abramson, J.) granted Cora’s motion and

suppressed the evidence. ASS 6-12.

The court reasoned that the plain view exception did not apply because

New Hampshire does not recognize an automobile exception to the warrant

requirement, and the officers were not lawfully present inside the vehicle when

they seized the drugs. ASS 10-12. The State moved the court to reconsider

the ruling contending that the trial court misapplied the law of State v.

Sterndale, 139 N.H. 445 (1995), in light of this Court’s subsequent decision of

State v. Goss, 150 N.H. 46 (2003). ASS 37-40. The Court denied the State’s

motion to reconsider. ASB 2-4. The State appealed.

Citations to the record are as follows:“SB” refers to the State’s brief:“ASB” refers to the Appendix to the State’s brief:“IT’ refers to the transcript of the suppression hearing held on December 16, 2015.

2

STATEMENT OF THE FACTS

On April 10, 2015, Officer Day of the Manchester Police Department

stopped Cora’s vehicle for running a red light. H 5-6; ASS 7. Upon

approaching the car, Day saw two passengers and noted an odor of marijuana.

H 5-7; ASB 7. Because he was going to ask for Cora’s consent to search the

car, Day called for a second officer to assist. H 7. Upon request, Cora got out

of the car to speak with Day and ultimately admitted he had marijuana roaches

in the car. H 8. Cora, however, refused to consent to a search. H 8-9.

Meanwhile, Officer Horn, who had arrived to assist, asked the front

passenger out of the car. H 9. Horn then saw a “clear cut-off haggle with a

brown substance in it as xvell as a marijuana cigarette, a blunt, next to the

passenger seat H 9. Day, believing the bag contained heroin and the

cigarette marijuana, reached into the vehicle and seized both items. H 31; ASB

8.

3

SUMMARY OF THE ARGUMENT

This Court’s decision rejecting an automobile exception to the warrant

requirement has not been undermined anti remains a workable and relevant

doctrine. The State has not demonstrated that the stare decisis factors justify

overruling State v. Sterudale. 139 N.H. 445 (1995). The rules applicable to the

search of motor vehicles are clear and easy to apply. Further, neither this

Court’s decision in State v. Goss, 150 N.H. 46 (2003). nor the authority from

other states undermines the rationale or framework of Stemdaie.

Further, should this CoLirt apply a reasonable expectation of privacy

analysis to the question of whether a given police action constitutes a search of

a car, ii can do so without adopting the federal automobile exception to the

warrant requirement, or any variation thereof. A person has a reasonable

expectation of privacy in the contents of their vehicle. This Court should

continue to honor that expectation and recognize that Part 1, Article 19 affords

greater protection than does the Fourth Amendment.

4

I. THIS COURT’S DECISION REJECTING AN AUTOMOBILE EXCEPTIONTO THE WARRANT REQUIREMENT HAS NOT BEEN UNDERMINED ANDREMAINS A WORKABLE AND RELEVANT DOCTRINE.

This Court reviews a trial court’s legal rulings in a motion to suppress de

novo but accepts the factual findings unless they are clearly erroneous or lack

support in the record. State v. Blesdell-Moore, 166 N.H. 183, 187 (2014)

(citation omitted). The sole issue of this appeal is whether this Court should

overturn its decision in State v. Sterndale, 139 N.H. 445 (1995), and adopt an

automobile exception to the warrant requirement under the New Hampshire

Constitution.

The State argues that the Sterndale decision “has come to be seen so

clearly as error that its enforcement [is] for that very reason doomed[,J” State v.

Duran, 158 N.H. 146, 153 (2008), for the following reasons: (1) this Court’s

adoption of the reasonable expectation of privacy test weakened the holding of

Sterndale, SB 14-17; (2) the recent stabilization of federal law concerning the

application of the Fourth Amendment to automobiles, and the national trend

adopting the federal standard, also diluted the holding of Sterndale, SB 27-31;

(3) the current rules regarding the search of automobiles are unworkable. SB

31-34.

The State’s position does not withstand scrutiny. First, as detailed in

below, the reasonable expectation of privacy test adopted in State v. Goss does

not supersede the physical intrusion analysis whereby police entry into a

constitutionally protected area such as a motor vehicle is a search. 150 N.H.

46, 48 (2003). Goss describes only one test for determining whether a police

5

action constitutes a search of protected property. However, if the police

intrude into a constitutionally protected area, a search occurs regardless of the

reasonable expectation of privacy. See State v. Socci, 166 N.H. 464, 473

(2014). Because cars are constitutionally protected property, the reasonable

expectation of privacy analysis is unnecessary. Id.; United States v. Jones, 132

S.Ct. 945, 950-952 (2012). Second, the adoption of an automobile exception

by many states is unpersuasive when understood in context of the relevant

states’ case law. New Hampshire’s jurisprudence aligns better with those

states that have refused to adopt the federal standard.

Finally, the rules applicable to the search of motor vehicles are clear and

easy to apply. If not authorized by a neutral magistrate, the search must be

justified by one of the existing exceptions to the warrant requirement. See,

State v. Newcomb, 161 N.H. 666, 670 (2011) (warrantless search of motor

vehicle justified as inventory search). To search a motor vehicle on the basis of

probable cause, the police must obtain a warrant unless there is some exigent

circumstance sufficient to excuse the need for a warrant.

The State argues that this Court not only must apply the reasonable

expectation of privacy analysis to motor vehicles, but also that it must find a

reduced expectation of privacy. SB 17. Further, the State contends that once

this Court finds a reduced expectation of privacy, it must also adopt the federal

automobile exception or the Montana variation. SB 17, 23.

By inviting this Court to adopt the federal automobile exception, the

State asks this Court to find that cars create per se exigent circumstances.

6

To hold so would overrule not only Stemdale but also State v. Camaro, 126

N.H. 766, 771 (1985) (finding no exigent circumstances where car was parked

and police could have put the car under watch and obtained a warrant). The

State has failed to brief the stare decisis factors in connection with Camaro.

See State v. Smith, 166 N.H. 40, 44-45 (2014) (defendant’s failure to brief stare

decisis factors did not sUpport. overruling prior decision). Nonetheless, Cora

addresses the merits herein.

The core requirement of Part 1, Article 19 is that all searches must be

reasonable. State v. Ball, 124 N.H. 226, 234 (1983). All warrantless searches

are pj se unreasonable unless they fall within the speciflc judicially-created

exceptions to the warrant requirement. Id. This Court has carefully designed

those exceptions to ensure that a police intrusion, although warrantless, is

reasonable. See, ç1g1, State v. Finn, 146 N.H. 59, 62-63 (2001) (inventory

exception); State v. Murray, 135 N.H. 369, 374-375 (1992) (search incident to

arrest); Ball, 124 N.H. at 234 (plain ‘dew exception); State v. Beede, 119 N.H.

620, 625-26 (1979) (exigent circumstances).

At times, this Court has declined, in interpreting Part 1, Arlicle 19, to

follow the Supreme Court’s interpretation of the Fourth Amendment. .

State v. Davis, 149 N.H. 698, 701 (2003) (requiring inadvertency for plain view

exception); Goss, 150 N.H. at 49 (finding reasonable expectation of privacy in

trash left for collection); State v. Canelo, 139 N.H. 376, 383-84 (1995) (refusing

to adopt good faith exception); State v. Koppel, 127 N.H. 286, 291-92 (1985)

(finding greater protection concerning road blocks); ll, 124 N.H. at 234

7

(requiring probable cause to seize evidence under plain view doctrine rather

than mere suspicion); State v. Settle, 122 N.H. 214, 218 (1982) (adopting

automatic standing rule). Indeed, New l-lampshire’s constitutional protection

against unreasonable search and seizure pre-dates the Federal Constitution.

BalI, 124 N.H. at 233. In Stemdale, this Court decided that a warrantless

search of an automobile based solely on probable cause was not reasonable.

139 N.H. at 449.

The State here asks this Court to create a new exception to the warrant

requirement to cover circumstances in which there is neither exigency nor any

other of the established grounds for dispensing with a warrant issued by a

neLitral magistrate. The Court must reject the State’s argument. It is the

State’s proposed rule that would create doctrinal confusion and unjustifiably

eliminate the magistrate’s role as the bulwark against unreasonable police

intrusions.

Section A below presents a brief summary of the Sterndale decision. In

section B, the brief outlines the automobile exception. In sections C, D, and E

respectively, it then addresses the current rules of automobile searches in New

Hampshire, the law concerning the reasonable expectation of privacy and the

doctrine of stare decisis.

A. State v. Sterndale

During a traffic stop, Officer Gautier of the Nashua Police Department

noted the smell of burnt marijuana. Sterudale, 139 N.H. at 446. \Then asked

about it Stemdale admitted she had just smoked a joint. Id. at 447. Gautier

8

removed Sterndale from the vehicle and looked under the seat where he found

“partially burnt marijuana cigarettesi.]” Id. After arresting Sterndale, Gautier

saw a brown paper bag in the car that he believed Sterndale put behind her

just prior to pulling over. Id. Gautier reached into the car and seized the bag.

Id. In it, he found marijuana. RI.

In response to Sterndale’s motion to suppress, the State argued, in the

first instance, that the warrantless search of Sterndale’s vehicle was justified

by the search incident to arrest or exigent circumstances exceptions to the

warrant requirement. Id. This Court rejected the search incident to arrest

argument because Sterudale was, at the time of the search, already under

arrest and secured in the police cruiser. Id. at 448. Further, the Court held

the State failed to preserve the exigent circumstances argument and refused to

address it. Id. Having exhausted the potentially applicable recognized

exceptions to the warrant requirement, the State invited the Court to adopt the

federal automobile exception to the warrant requirement. Id. at 449.

A unanimous Court cited four reasons for refusing to do so. Id. First,

this Court relied on the overarching principle that “where the search or seizure

of a motor vehicle is involved, [Ajrticle 19 provides significantly greater

protection than the fourth amendment against intrusion by the State.” Id.

(quotation and citation omitted). Second, this Court found unpersuasive the

“reduced expectation of privacy” that the Supreme Court attributed to motor

vehicles, because New Hampshire had “never adopted the [‘Jexpectation of

privacy[’] test[.j” Id. Third, the Court dismissed the Supreme Court’s “mobility”

9

justification, noting that “[u]nder... State constitutional jurisprudence . . . a

parked car does not have inherent mobility to justll’ a warrantless search.” Id.

(citing Camargo, 126 N.H. at 771). Finally, the Court noted the “constitutional

quagmire” that surrounded the federal automobile exception jurisprudence and

declined to import it into State constitutionaljurispnidence. Id.

B. The Automobile Exception and its effect on statejurisprudence

The automobile exception allows police to conduct a warrantless search

of a vehicle when they have probable cause to believe the vehicle contains

contraband. Pennsylvania v. Labron, 518 U.S. 938, 940 (1996). The United

States Supreme Court first articulated the exception in 1925, though its

application then required both probable cause and exigent circumstances.

Canollv. United States, 267 U.S. 132, 156 (1925). The primary justification

was the exigency created by the car’s mobility. Id. at 154. Many states

followed suit and adopted an automobile exception to their state constitution’s

warrant requirement. See, çg, People v. Chavers, 658 P.2d 96, 101 (Cal.

1983); People v. Edwards, 836 P.2d 468, 471 (Cob. 1992); State v. Dukes, 547

A.2d 10, 22 (Conn. 1988); State v. Poole, 496 So.2d 224, 225 fF1. Ct. AppI.

1986); People v. Smith, 447 N.E. 2d 809, 813 (111. 1983); State v. Olsen, 293

N.W.2d 216, 2 19-220 (Iowa 1980); State ex rel. Love v. One 1967 Chevrolet El

Camino, 799 P.2d 1043, 1048-49 (Kan. 1990); State v. Gamboa, 543 So.2d

1129, 1131 (La. Ct. App. 1989); Statev. Bouchles, 457 A.2d 798, 801-802 (Me.

1983); Malcolm v. State, 550 A.2d 670, 672-73 (Md. 1988); People v. Potra, 479

N.W. 2d 707, 710 (Mich. Ct. App. 1991); State v. Milliom, 794 S.W.2d 181, 183

10

(Mo. 1990); State v. Vermuele, 453 N.W. 2d 441, 443 (Neb. 1990); People v.

Belton, 432 N.E.2d 745, 748 (N.Y. 1989); State v. Brown, 721 P.2d 1357, 1362

(Ore. 1986); State v. Leveve. 796 S.W.2d 948, 953 (Tenn. 1990); State v.

Larocco, 794 P.2c1 460, 469-7 1 (Utah 1990) (plurality); State v. Savva, 616 A.2d

774, 783 (Vt. 1991). New Hampshire recognized an exigent circumstances

exception to the warrant requirement of Pan 1, ArLicle 19. State v. Gallant,

133 N.H. 138, 145 (1990). The Court did not, however, articulate a distinct

“automobile exception.”

The Supreme Court later applied the automobile exception beyond actual

exigency to situations where a vehicle was immobilized or towed. See,

Cadvv. Dombrowksi, 413 U.S. 433, 441-42 (1973). The Court relied on a

second justification: the owner’s reduced expectation of privacy due to the

significant regulation of motor vehicles. California v. Carnev, 471 U.S. 386,

392 (1985). Subsequently, the Court eliminated any requirement of exigency

relying on the inherent mobility of motor vehicles. Labron, 518 U.S. at 940; see

also Maryland v. Dyson, 527 U.S. 465, 466-67 (1999) (discussing the precedent

eliminating a separate analysis of exigency). At that point, some states

departed from the federal standard by continuing to require actual exigent

circumstances beyond a motor vehicle’s theoretical capacity for mobility. See,

çg, State v. Lloyd, 312 P.3d 467, 47 1-73 (Nev. 2013) (discussing actual

exigency requirement of prior case law); State v. Werner, 615 A.2d 1010, 1012-

13 (R.I. 1992) (same). In Camargo, New Hampshire expressly rejected the

notion that motor vehicles create a per se exigency. 126 N.H. at 771.

11

The automobile exception led to doctrinal confusion as prosecutors

pressed to extend the exception to containers found in cars. California v.

Acevedo, 500 U.S. 565, 573-76 (1991) (discussing prior rulings). Ultimately.

the Court largely accepted the arguments of prosecutors in clarifying that the

automobile exception allowed the warrantless search of any place or object in a

vehicle that an officer has probable cause to believe could contain contraband

or evidence. Acevedo, 500 U.S. at 679-80.

Beginning in the early 1990’s. some states that had previously departed

from the federal standard by requiring actual exigency realigned themselves

with the federal case law. Commonwealth v. Motta, 676 N.E.2d 795, 799

(Mass. 1997); Lloyd, 312 P.3d at 473; State v. Zwicke, 767 N.W.2d 869, 873

(N.D. 2009) (clarifying no further exigency required beyond inherent mobility of

vehicle); Commonwealth v. Gary, 91 A.3d 102, 137 (2014); Werner, 615 A.2d at

1012-13 (discussing previous departure and deciding to rejoin federal

standard); One reason for doing so was the history of inconsistencies in the

state’s case law concerning exigency as applied to motor vehicles. ,

Gary, 91 A3d. at 219; Lloyd, 312 P.3d at 473. Some states also relied on the

more recent stabilization of the automobile exception under federal law.

Lloyd, 312 P.3d at 473; Werner, 615 A.2d at 10 12-13. Today, only a few

states continue to require both probable cause and actual exigent

circumstances to justify the warrantless intrusion into a motor vehicle. ,

State v, Gomez, 932 P.2d 1, 12 (N.M. 1997); State v. Tibbles, 236 P.3d

885, 888 (Wash. 2010).

12

The State points to six states that recently adopted the Supreme Court’s

articulation of the automobile exception: Massachusetts, Nevada, New Jersey,

North Dakota, Pennsylvania, and Rhode Island. SB 28. However, each of

those states historically recognized an automobile exception to the warrant

requirement. Commonwealth v. Cast, 556 N.E.2d 69, 76 (Mass. 1990); Hughes

v. State, 12 P.3d 948, 951 (Nev. 2000); State v. Witt, 126 A.3d 850, 860 (N.J.

2015) (discussing prior alignment with federal standard); State v. Meadows,

260 N.W.2d 328, 332 (N.D. 1977); Gary, 91 A.3d at 112 (recognizing that “until

the mid - 1990’s . . . the courl considered the federal and state constitutions

coterminous with regard to the automobile exception.”); Werner, 615 A.2d

at 1012-13.

Only when the Supreme Court abandoned the requirement of actual

exigency did those states depart from the federal standard. Their recent

decisions simply realign them, or clarify their alliance, with the federal

interpretation deeming cars to involve per se exigency. Motta, 676 N.E.2d at

799; Lloyd, 312 P.3d at 473; Zwicke, 767 N.W.2d at 873 (clarifying no further

exigency required beyond inherent mobility of vehicle); Ganr, 91 A.3d at 137;

Werner, 615 A.2d at 1012-13 (discussing previous departure and deciding to

reincorporate federal standard); see also Witt, 126 A.3d at 872 (eliminating

prior exigency requirement but rcfusing to adopt the federal standard). In

contrast, New Hampshire has never adopted any form of the automobile

exception or engaged in a separate constitutional analysis for vehicles.

13

C. Current state of automobile searches in New Hampshire

The rule concerning an automobile search is clear - in order to search a

vehicle, the police must obtain a warrant authorized by a neutral magistrate.

N.J-I. CONST. Part 1, Article 19. The warrant requirement is excused only

“within the narrow confines of a judicially crafted exception.” Newcomb, 161

N.H. at 670. The exceptions most commonly applied to automobiles include

exigent circumstances, inventory, and consent searches. See, çg, Gallant,

133 N.H. at 145 (exigent circumstances); Newcomb, 161 N.H. at 670

(inventory); State v. Livingston, 153 N.H. 399, 408 (2006) (consent).

The State argues that actual exigency is difficult to apply to automobiles.

However, the State does not cite a single case, decided after Stemdale,

disclosing any difficulty with using the exigency analysis in a case-by-case

manner to the searches of cars. The exigency analysis works ‘yell on a case-by-

case basis in non-automobile contexts; there is no reason why it should be

more difficult to apply with cars.

Whether exigency exists to search a vehicle, or any other protected

domain, is determined by a totality of the circumstances test. State v. Gay,

___

N.H.

___,

No. 2015-0174 (slip op. at 15) (decided July 27, 2016).

Exigent circumstances exist where the police face acompelling need for immediate official action and arisk that the delay caused by obtaining a warrantwould create a substantial threat of imminent dangerto life or public safety or likelihood that evidence willbe destroyed. . . . Police . . . should consider thedanger of imminent destruction of evidence, the gravityof the offense, the likelihood a suspect is armed, theneed to prevent a suspect’s escape, and the risk of

14

danger to the police or to other persons inside oroutside the [property].

Id. at 14-15. Assessing the totality of the circumstances requires a case by

case determination and does not provide bright line rule. However, the lack of

a bright line standard does not make the case-by-case, totality of the

circumstances tests unworkable. New Hampshire courts and law enforcement

officers routinely and efièctively engage in a “totality of the circumstances”

analysis. See Socci, 166 N.H. at 473 (validity of consent to search); State v.

Sousa, 151 N.H. 297, 299 (2004) (whether anonymous tip gave rise to

reasonable suspicion); State v. Sawyer, 147 N.H. 191, 196 (2001) (apparent

authority to search); State v. Monroe, 142 N.H. 857, 868 (1998) (requirement of

additional Miranda warnings).

Apparently, some jurisdictions have struggled with case-by-case totality

standards. See Gary, 91 A.3d at 124 (noting “the application of the definition

of exigent circumstances has unquestionably been difficult for the courts of

this Commonwealth.”) (bracket and quotations omitted); Witt, 126 A.3d at 860-

867 (relying on studies conducted by special committee to find previous

exigency framework failed to effectuate stated goals); Lloyd, 312 P.3d at 473

(recognizing the confusing nature of Nevada case law and resulting difficulty for

courts and law enforcement officers). Such incapacity does not afflict New

Hampshire. This Court has consistently applied the exigency standard to

cases involving homes, motor vehicles, and intrusions into the human body.

See, State v. Rodriguez, 157 N.H. 100, 107 (2008) (finding exigent

circumstances where smell of burning marijuana indicative of potential

15

destruction of evidence); State v. Pseudae, 154 N.H. 196, 204 (2006) (finding

exigent circumstances did not justify entry into locked bedroom to retrieve

rifle); State v. Stem, 150 N.H. 705, 710 (2004) (finding exigent circumstances

to obtain warrantless blood draw); State v. Graca, 142 N.H. 670, 673 (1998)

(finding exigent circumstances existed to search trunk of vehicle where officer

believed armed individual hiding); State v. Bean, 120 N.H. 946, 948-49 (1980)

(seizure of vehicle permissible under exigency exception because defendant

about to drive away); State v. Greely, 115 N.H. 461, 464 (1975) (exigent

circumstances justified warrantless search of car).

D. Reasonable Expectation of Privacy Analysis Involving MotorVehicles

As stated, to justify the warranfless search of a vehicle in situations

where the car was not readily mobile, the Supreme Court relied, in part, on the

diminished expectation of privacy in a motor vehicle. Camey, 471 U.S. at 392.

The Stemdale Court rejected this rationale because, at that time, New

Hampshire had not yet adopted the framework as discussed above. 139 N.H.

at 449.

Subsequently, in Goss, this Court adopted a reasonable expectation of

privacy test. 150 N.H. at 47. Goss was charged with possession of marijuana

found during the execution of a search warrant at his home. Goss, 150 N.H. at

47. Goss challenged the warrant because two warrantless searches of sealed

trash bags in his driveway gave the police the information that formed the

basis of the warrant’s probable cause. Id.

16

Although this Court had never expressly adopted the reasonable

expectation of privacy analysis used by the federal courts, the Court recognized

it had “tacitly recognized an expectation of privacy” in its previously rulings.

Id. As such, the Court felt it was time to expressly adopt the test. j4:

This Court now uses the two-part test articulated by Justice Harlan’s

concurring opinion in Katz to determine whether a given police intrusion

constitutes a search within the meaning of Part 1, Article 19. j4:; Katz v.

United States, 389 U.S. 347, 361 (1967).

[First]. . . a person [must] have exhibited an actual(subjective) expectation of privacy and, second, . . . theexpectation be one that society is prepared torecognize as reasonable.

Id. (quotation and citation omitted). Applying this test to the sealed trash bags,

this Court held that Goss “exhibited an actual expectation of privacy in his

trash” and that “society is prepared to recognize that expectation as

reasonable.” Id. at 49. In so ruling, the Court departed from the federal

jurisprudence concerning trash left for collection and held that Part 1, Article

19 provided greater protection that the Federal Constitution. ffl.

However, the reasonable expectation of privacy analysis does not

supersede the physical intrusion analysis for defining whether a given police

action constitutes a search. Rather, the reasonable expectation of privacy test

creates a supplement definition, and thus creates an additional layer of

constitutional protection. Here the physical intrusion definition applies

regardless of any reasonable expectation of privacy because the police

physically entered Cora’s car. As this Court recently stated,

17

although consideration of a defendant’s reasonableexpectation of privacy ‘may add to the baseline,’the “reasonable-expectations test has been added to,not substitutedfor, the traditional property-basedunderstanding of the Fourth Amendment, and so it isunnecessary to consider when the government gainsevidence by physically intruding on constitutionallyprotected areas[.]”

Socci, 166 N.H. at 469 (quoting Florida v. Jardines, 133 5. Ct. 1409, 1417

(2013)) (emphasis in original). In Socci, this Court held that police

encroachment onto the driveway extending between the defendant’s home and

garage constituted a search regardless of the reasonable expectation of privacy

in the area. Socci, 166 N.H. at 470.

Even prior to Goss, this Court recognized that the property-based inquiry

does not depend on a reasonable expectation of privacy analysis. See State v.

Westover, 140 N.H. 375, 379 (1995) (finding expectation of privacy analysis

would be unnecessary where search of defendant’s coat involved “physical

trespass to a personal effect expressly entitled to constitutional protection.”)

Moreover, the United States Supreme Court has held that a car is an area

protected against physical intrusions by the Fourth Amendment. Jones, 132

S.Ct. at 952. In Jones, the Supreme Court declined to decide whether the

defendant had a reasonable expectation of privacy in the undercarriage of his

car because the vehicle was constitutionally protected under the traditional

property-based understanding of the Fourth Amendment. flat 949-52.

Accordingly, when faced with determining whether police intrusion into a

vehicle is a “search” within the meaning of Part 1, Article 19. this Court need

not engage in the reasonable expectation of privacy analysis adopted in Goss.

18

After Goss, this Court, without a discussion of reasonable expectation of

privacy, consistently has held cars to be constitutionally-protected and

required a recognized exception to justify the warrantless search.

Newcomb, 161 N.H. at 670-72 (holding search of rental truck rear

compartment not justified by inventory exception); Livingston, 153 N.H. at 408

(holding search of motor vehicle permissible due to consent).

Here, the police officer physically entered the car. That trespass

constiluted a search. Absent exigent circumstances, that search was

unreasonable regardless of whether Cora had a reasonable expectation of

privacy in the car.

Even if this Court were to ignore the property based approach and apply

a reasonable expectation of privacy analysis to cars, it does not follow that this

Court must also adopt the federal automobile exception. See Goss, 150 N.H. at

49-50 (adopting the reasonable expectation of privacy test and then rejecting

the federal analysis for trash left for collection); State v. Pinltham, 141 N.H.

188, 195 (1996) (Broderick, J. dissenting) (in advocating the adoption of the

reasonable expectation of privacy analysis under part I, article 19, I am not

suggesting we also accept, without question, the federal case law construing

and applying this test. “)

The Supreme Court found a reduced expectation of privacy in motor

vehicles due to the extensive regulation of cars and the public nature of their

use. NewYorkv. Class, 475 U.S. 106, 112-13 (1986). The Court explained:

Because of the extensive regulation of motor vehiclesand traffic, and also because of the frequency with

19

which a vehicle can become disabled or involved in anaccident on public highways, the extent of police-citizen contact involving automobiles will besubstantially greater than police-citizen contact in ahome or office. Some such contacts will occur becausethe officer may believe the operator has violated acriminal statute, but many more will not be of thatnature. Local police officers, unlike federal officers,frequently investigate vehicle accidents in which thereis no claim of criminal liability and engage in what, forwant of a better term, may be described as communitycaretaking functions, totally divorced from thedetection, investigation, or acquisition of evidencerelating to the violation of a criminal statute.

Cady, 413 U.S. at 441. It is true that police have contact with automobiles on

the road and may find themselves entering a vehicle in an emergency.

However, as this Court noted in Goss, “‘[t]he mere possibility that unwelcomed

meddlers might open and rummage through [one’s property] does not negate

the expectation of privacy in their contents any more than the possibility of a

burglary negates an expectation of privacy in the home 150 N.H. at 49

(quoting California v. Greenwood, 486 U.S. 35, 54 (1988) (Brennan, J.

dissenting)).

As the State notes, motor vehicles are highly regulated. SB 18-19.

However, none of the cited regulations, nor any of which counsel is aware,

requires or permits the inspection of the inside of a vehicle. For example, RSA

266:1 and :5 require vehicles be inspected and set forth penalties for failing to

obey inspection requirements. However, such inspections take place with the

consent of the owner at time and place of their choosing, not by an officer

during an unscheduled roadside stop. If a person has violated a rule of the

road, law enforcement officers will stop the person to issue a citation. Even if

20

the violation justifies an arrest, the police are still not permitted to search the

car absent an additional justification such as inventory, exigency, or search

incident to arrest. Thus, the regulation of motor vehicles does not defeat a

reasonable expectation of privacy in the contents of one’s car.

The State argues that if the Court does not find a reduced expectation in

the entire vehicle, it should allow seizure of items from a motor vehicle in plain

view.1 SB 20-22. The State asks New Hampshire to follow Montana and find

that property a person knowingly exposes to the public is not protected

State v. Elison, 14 P.3d 456, 469 (Mont. 2000). As such, the State argues that

a person does not have a reasonable expectation of privacy in items left in the

public’s view. SB 20-22.

Part 1, Article 19, however, does not protect against the unreasonable

viewing of one’s property. Rather, it protects against unreasonable search and

seizure. Simply because one has left something in a place where a member of

the public may see it does not negate the reasonable expectation that the

public will not enter the place and take the item.

Further, the State argues that one does not have a reasonable

expectation of privacy in the areas open to public view. SB 22 (“... due to the

decision of a driver to expose himself and his effects in the publicly visible

areas of his car to public scrutiny he cannot have a reasonable expectation of

privacy in those areas.”) Seemingly. the State argues that no justification, not

even probable cause, is necessary to search the visible areas of a vehicle

1 Doing so would modify the plain view doctrine to include a per se authorized presence inmotor vehicles.

21

because there is no reasonable expectation of privacy and thus no search.

Accordingly, an open garage or shed would be subject to search at any time.

Even if read to imply a reduced reasonable expectation rather than the

complete deregulation of plain view seizures, the State’s position unacceptably

undermines established constitutional princples. Applying the State’s logic, an

officer walking down the sidewalk who observes a marijuana plant in the

window of a first floor apartment should be permitted to reach into the home

and seize that plant because, by leaving the window open, the person did not

exhibit an expectation of privacy in the area visible to the public. Certainly,

police are not justified to enter a home simply because the person has left a

window open. Moreover, this Court has held that Part 1, Article 19 protects

the curtilage of a home, an area often visible to the public, See, State v.

Socci, 166 N.H. 464, 469-70 (2014); see also Jardines, 133 S. Ct. © 1414.

E. Stare Dedsis Analysis

Despite the State’s contention that Stemdale’s demise is a foregone

conclusion, SB 12, this Court “does not lightly overrule a prior opinion.”

Duran, 158 N.H. at 154 (2008). “The doctrine of stare dectsis demands respect

in a society governed by the nile of law, for when governing legal standards are

open to revision in every case, deciding cases becomes a mere exercise of

judicial will with arbitrary and unpredictable results.” State v. Perry, 166 N.H.

716. 720 (2014).

When deciding whether to overrule a prior decision, “[t]he key question

• . . is not whether [this Court] disagree[s] with it, but whether it has come to

22

be seen so clearly as error that its enforcement was for that very reason

doomed.” State v. Balch, 167 N.H. 329. 334 (2015). The Court, measured

against the “ideal of the rule of law,” Planned Parenthood v Casey, 505 U.S.

833. 854 (1992).

consider[s] four factors in determining whether a priordecision has come to be seen as clear error: (1)whether the rule has proven to be intolerable simplyby defying practical workability; (2) whether the rulesis subject to a kind of reliance that would lend aspecial hardship to the consequences of overruling; (3)whether related principles of law have so far developedas to have left the old rule no more than remnant ofabandoned doctrine; and (4) whether facts have sochanged, or come to be seen so differently, as to haverobbed the old rule of significant application orjustification.

Balch, 167 N.H. at 334. The State has taken on the heavy burden to

demonstrate the stare decisis factors weigh in favor of ovemiling a decades-old

decision. See Monzi v. Northeast Generation Servs. Co., 156 N.H. 656, 660

(2008). The State has failed to meet this burden.

The first factor “examines whether a rule has become difficult or

impractical for trial courts to apply.” Balch, 167 N.H. at 334. If a rule is “easy

to apply and understand” the first factor will “weigh[] against overruling.” ii

As shown above, the current rule of Stendale is clear and easy to apply. A

wan-antless search of a motor vehicle must fit within one of the recognized

exceptions to the warrant requirement.

The State contends that the exigency rule, as applied to motor vehicles.

is “confusing, inconsistent, and self-contradictory” and has been “deemed

unworkable.” SB 31. The State argues that “courts in [other] jurisdictions

23

have found that a pure exigency standard, . . . inconsistently applied and

unworkable for law enforcement.” SB 12. As previously discussed, New

I-lampshire case law does not contain similar inconsistencies. New Hampshire

courts rightly hold New Hampshire police to a standard of competence in

which, in car searches as in searches of other places, the police make

reasonable assessments of whether an actual exigency exists sufficient to

dispense with the presentation of the relevant facts to a neutral magistrate.

The State also contends that the rule is unworkable because it is difficult

for officers to determine when exigency exists. SB 33. As noted, the State

underestimates the experience and training of New Hampshire law

enforcement. The State argues that an officer who has probable cause to

believe that a vehicle contains contraband “has three choices: (1) seize the car,

it occupants, and its contents until the officer gets a search warrant; (2)

conduct a search right then; or (3) seize the plainly visible contraband.” SB 32.

The State submits this framework leaves “many uncertain choices for officers,

who are going to intrude on a person’s rights regardless of the choice the officer

makes, and yet making the wrong choice[,] could doom entire cases.” SB 33.

This argument makes the unjustified and alarming assumption that New

Hampshire officers are not trained to understand the constitutional protections

of Part 1, Article 19. In the State’s scenario, only one of the three choices is

constitutionally permissible absent exigent circumstances — seizing the car

until a search warrant is issued. The fact that only one lawful option exists

demonstrates the clear and workable nature of the current rules.

24

Nonetheless, the State requests this Court provide officers with a new

roadside option because it would, in essence, be easier. However, “[u]nder

our constitution . . . the protection from unreasonable searches is not

diminished by the desire . . . to aid law enforcement.” State v. Webber, 141

N.H. 817, 8 18-821 (1997) (refusing to adopt “identification search” exception or

to expand the scope of the investigatory stop).

The State further argues that the invasion of privacy at issue in each of

the above options is equal. SB 33. They are not. The search of a vehicle based

solely on We officer’s determination of probable cause is a greater invasion of

one’s privacy than securing the vehicle for a later search in accordance with a

warrant authorized by a neutral magistrate. As this Court noted:

[T]he warrant process interposes an orderly procedureinvolving judicial impartiality whereby a neutral anddetached magistrate can make [an] informed anddeliberate determination[] on the issue of probablecause. To leave such decisions to the police is to allowhurried actions by those engaged in the oftencompetitive enterprise of fettering out crime.

Webber, 141 N.H. at 820. Compare, Witt, 126 A.3d at 872 C’... we do not

perceive any real benefit to our citizenry by the warrant requirement in

[roadside search] cases - - no discemable advancement of their liberty or

privacy interests.”) with Gomez, 932 P.2d at 12 (1997) (“By injecting a neutral

magistrate into the process of searching a vehicle. . . the law provides a layer of

protection . . . [by preventing] the competitive pressures of fighting crime to

compromise their judgment about whether or not to carry out a given search.”);

see also Brown, 721 P.2d at 1373 (Linde, J. dissenting) (“The person, not the

25

officer, is the one to decide whether to insist on the right to have the supposed

probable cause tested by a magistrate and to accept the inconvenience of the

necessary seizure.”)

The second stare clecisis factor “concerns situations in which members of

society may have developed operations or planned a course of action in reliance

upon the challenged decision and, therefore, overruling that decision would

create a special hardship for those affected.” Balch, 167 N.H. at 335. This

Court has repeatedly relied on Sterndale for the principle of heightened

protection under our State Constitution. See State v. Mello, 162 N.H. 115,

121-22 (2011); Webber, 141 N.H. at 820; Pinkham. 141 N.H. at 195

(Broderick, J. dissenting). Given the Court’s own reliance on the Sterndale

decision, the second factor weighs against a finding that it “has come to be

seen. . . clearly as error Balch, 167 N.H. at 334.

Factor three considers “whether related principles of law have so far

developed as to have left the old rule no more than remnant of abandoned

doctrine.” Balch, 167 N.H. at 334. As previously discussed, this Court gave

four reasons for refusing to adopt the automobile exception: (1) New

Hampshire’s heightened protection of vehicles under Part I, Article 19; (2) New

Hampshire’s lack of reasonable expectation of privacy test; (3) the Court’s prior

rulings regarding mobility as exigency; and (4) the instability of the federal law.

As outlined in section D above, the adoption of a reasonable expectation

of privacy test is inapplicable to the analysis of a wanantless search of a motor

vehicle. Also, the fact that the federal law governing the search of cars has

26

stabilized and a majority of jurisdictions have chosen to adopt some variant of

the automobile exception does not detract from the holdings of Stemdale. This

Court is not averse to remaining in the minority of jurisdictions in order to

provide the necessan’ protections under Part 1, Article 19. State v. Goss, 150

N.H. at 50 (“We acknowledge that in finding protection [of trash] under our

State Constitution . . . we join a small minority of courts.”). Moreover, a closer

examination of the automobile exception in those jurisdictions shows that the

decisions do little to undermine Sterudale.

A number of states adopted the federal automobile exception, in some

form, prior to this Court’s decision in Stemdale. See, çjg, Chavers, 658 P.2d

at 101; Edwards, 836 P.2d at 471; Dukes, 547 A.2d at 22; Poole, 496 So.2d at

225; Smith, 447 N.E. 2d at 813; Olsen, 293 N.W.2d at 219-220; One 1967

Chevrolet El Camino, 799 P.2d at 1048-49; Gamboa, 543 So.2d at 1131;

Bouchles, 457 A.2d at 80 1-802; Malcolm, 550 A.2d at 672-73; Potra, 479 N.W.

2d at 710; Milliom, 794 S.W.2d at 183; Vermuele, 453 N.W. 2d at 443; Belton,

432 N.E.2d at 748; Brown, 721 P.2d at 1362; Leveye, 796 S.W.2d at 953;

Larocco, 794 P.2d at 469-7 1 (plurality opinion); Sawa, 616 A.2d at 783. Case

law that predates Stemdale cannot subsequently undermine that decision. Cf.

Pen-v. 166 N.H. at 721 (dismissing defendant’s contention that a majority of

jurisdictions supported his position where “twelve of the fourteen cases he cited

predate” the decision he asked to overrule).

Moreover, many states that apply the automobile exception, unlike New

Hampshire. do not often permit their State Constitutional protections, in the

27

area of search and seizure, to vary from the Supreme Court’s analysis of the

Fourth Amendment. See, Stout v. State, 898 S.W.2d 457, 460 (Ark. 1995);

State v. Reyna, 71 P.3d 366, 370 (Ariz. 2003); Fla. Const. art. I, § 12; LaFollette

v. Commonwealth, 915 S.W.2d 747, 748 (Ky. 1996); Henderson v. State, 597

A.2d 486, 488 (Md. Ct. Spec. App. 1991) cert denied, 601 A.2d 129 (Md. 1992);

State v. Lovelady, 432 S.W.3d 187, 190 (Mo. 2014); State v. Haynie, 476

N.W.2d 905 (Neb. 1991); State v. Mills, 411 S.E.2d 193, 197 (N.C. Ct. App.

1991); State v. Robinette, 685 N.E.2d 762, 766-67 (Ohio 1997); Leveye, 796

S.W.2d at 953; State v. Duvemoy, 195 S.E.2d 631, 634 (W. Va. 1973). In so

far as these courts do not afford greater protection under their state

constitutions, their rulings aligning them with the federal interpretation do not

reflect a doctrine-specific choice.

Alternatively, even if these points in some way undermine two of the

reasons the Sterudale Court refused to adopt the exception, the residual

justifications remain viable. See State v. Holmes, 154 N.H. 723, 727 (2007).

First, the Court expressly rejected the theoretical mobility justification.

Stemdale, 139 N.H. at 449. This Court has held that the inherent mobility of

an automobile does not create a per se exigency. Camaro, 126 N.H. at 771. In

Camaro, police conducted a warrantless search of a car parked in a private

lot. 126 N.H. at 771. The Court held that exigent circumstances did not exist

because the “automobile was ... not mobile F, and police] could have) assigned

an officer to observe the lot and automobile while they obtained the warrant.”

Id. at 772. Although the Court agreed that exigency “typically applies to

28

searches of automobiles stopped while in transit the Court refused to

adopt the per se exigency for all motor vehicles that the State now seeks. Id. at

770-72.

Perhaps more importantly. no subsequent decision has weakened the

overarching rationale of Sterndale - “where the search or seizure of a motor

vehicle is involved, jA]rticle 19 provides significantly greater protection than the

fourth amendment against intrusion by the State.” 139 N.H. at 449. The State

does not cite any case in which this Court has since provided less protection to

automobiles.

The decisions following Stemdale, in New Hampshire and nationally,

have not left Stemdale “a mere sunrivor of obsolete constitutional thinking.”

Casey, 505 U.S. at 857. “No evolution of legal principle has left [Stemdale’sj

doctrinal footings weaker than they were in 19L951.” Id. Instead, the decision

continues to demonstrate New Hampshire’s independent constitution that can

afford heightened protection under Part 1, Article 19. Accordingly, the third

factor weighs against overruling the decision.

Finally, the fourth stare dectsis factor supports overruling precedent

when a change in factual circumstances or how the facts are viewed “rob[sJ the

old rule of significant application orjustification.” Balch, 167 N.H. at 334.

Automobiles have not changed in any relevant manner since this Court’s ruling

in Sterudale. Cars may boast lower carbon emissions and sleeker designs than

their counterparts of the mid-nineties, but they have not become more

transparent, more mobile, or less an integral part of a citizen’s daily life.

29

Travelers have not, in the last twenty-one years, come to view automobiles as

public spaces open for inspection or intrusion.

The State has failed to demonstrate that the stare decists factors weigh in

favor of overruling Stemdale. 139 N.H. 445. For the reasons stated above, this

Court must refuse to expand the outer boundaries of reasonableness under

Part 1, Article 19. This Court must affirm.

30

CONCLUSION

WHEREFORE, Daniel Jesus Cora respectfully requests that this Court

affin the trial court’s order.

Undersigned counsel requests fifteen minutes for oral argument.

The appealed decision is in writing and is appended the State’s brief.

ASB 1-12.

Respectfully submitted,

ByChd’ffiIé’ &‘List, #t954Assistant Appellate DefenderAppellate Defender Program10 Ferry Street, Suite 202Concord, NI-I 03301

CERTIFICATE OF SERVICE

I hereby certify that two copies of the foregoing Brief have been mailed,postage prepaid. to:

Criminal BureauNew Hampshire Attorney General’s Office33 Capitol StreetConcord, NH 03301

ec.List

DATED: October 19, 2016

31