State v. Morrill, 2015–0377

• Decision Date: 10 March 2017
• Docket Number: No. 2015–0377,2015–0377
• Citation: 156 A.3d 1028,169 N.H. 709
• Parties: The STATE of New Hampshire v. Jessica MORRILL
• Court: New Hampshire Supreme Court

169 N.H. 709
156 A.3d 1028

The STATE of New Hampshire
v.
Jessica MORRILL

No. 2015–0377

Supreme Court of New Hampshire.

Argued: October 19, 2016
Opinion Issued: March 10, 2017

Joseph A. Foster, attorney general (Danielle E. Horgan, assistant attorney general, on the brief and orally), for the State.

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

LYNN, J.

169 N.H. 711

The defendant, Jessica Morrill, appeals her conviction, following a jury trial in Superior Court (Delker, J.), on three counts of possession of a controlled drug (oxycodone, alprazolam, and lisdexamfetamine), and one count of possession of a controlled drug with intent to sell or distribute (cocaine). See RSA 318–B:2, I (2011). On appeal, she argues that the trial court erred by denying her motion to suppress evidence seized during a stop for a motor vehicle violation, and by denying her motion to dismiss the possession with intent to sell or distribute charge at the close of the State's case at trial. We reverse and remand.

I. Background

We accept the trial court's findings where supported by the record of the suppression hearing. See State v. Roy, 167 N.H. 276, 282, 111 A.3d 1061 (2015). For the

169 N.H. 712

purpose of determining the sufficiency of the evidence, we also consider facts adduced at trial. See State v. Rodney Portigue, 125 N.H. 352, 355, 481 A.2d 534 (1984). The following facts are relevant to our analysis. Shortly before midnight on December 31, 2013, State Trooper McAulay observed a van traveling north on Interstate Route 95. After a computer license plate check indicated that the van's license plate was registered to a different vehicle, McAulay activated his emergency blue lights. The van travelled "an unusually long distance"—approximately one-eighth of a mile—before stopping. The trial court noted that, according to McAulay's testimony, based upon his training and experience, such a delay "can be indicative of an occupant in the car trying to hide something."

When he approached the passenger side of the vehicle, McAulay observed an adult male in the driver seat and an adult female in the front passenger seat. He also observed three young children in the back of the van: one restrained in a car seat, one wearing a seatbelt, and the third lying down on a bench seat and covered with

156 A.3d 1032

blankets. According to McAulay, the children were underdressed for the cold weather, and it appeared as though they had been "thrown in the back" of the van.

McAulay illuminated the cabin with a flashlight and requested the driver's license and the vehicle's registration paperwork. The driver, Jason Millett, produced a valid driver's license and the van's registration. The registration paperwork indicated that the van was recently registered to the adult female passenger, later identified as the defendant.

McAulay asked Millett from where they had been traveling. Millett replied that they had been visiting the defendant's friend in Massachusetts, but could not recall the name of the town. Millett stated that the town's name began with the letter W, and tried to pronounce the town's name in an "almost stuttering" fashion. The defendant did not interject, but, rather, kept looking forward. Although Millett looked at McAulay when handing over his license and the registration, he looked forward the remainder of the time. Millett appeared to be unusually nervous; he was "jittery" and "shaking uncontrollably." After reviewing the documentation Millett provided, McAulay asked why the children were not properly restrained. McAulay could not remember precisely how the defendant and Millett responded, but he testified that they could not explain why the children were not properly restrained.

McAulay then returned to his cruiser, where he spoke with Sergeant Cooper who had arrived on scene. McAulay, according to his testimony, "felt there was a lot more to the story than [Millett and the defendant] were putting on." He testified that he suspected the defendant and Millett had been, were, or were about to become engaged in criminal activity, but that he "didn't know at that point" what that might be.

169 N.H. 713

When he returned to the van, McAulay asked Millett to step outside and speak with him. Millett complied.

Outside the van, Millett repeatedly placed his hands in his pockets, despite McAulay's request that he refrain from doing so. McAulay asked Millett whether he was carrying any weapons, and Millett replied in the negative. A pat frisk confirmed that Millett had responded truthfully. However, Millett continued to appear "very nervous" and paced back and forth. He also paused and looked away from McAulay before answering questions. McAulay questioned Millett about where they had been. Millett again stated that they had come from a town in Massachusetts, and that the town's name began with the letter W. McAulay asked whether he meant Worcester, and Millett replied that Worcester "sounded right." In response to McAulay's questioning regarding the family's travel itinerary, Millett stated that the family had left Maine at approximately 2:00 p.m. that day and had visited the defendant's friend. At that time, McAulay asked if there were "any drugs or any illegal items" in the van. Millett replied that there were not.

In the meantime, Cooper spoke with the defendant. The defendant reported a different itinerary to Cooper than Millett had provided to McAulay. Cooper then informed McAulay of the defendant's version, and McAulay questioned Millett about inconsistencies between Millett's and the defendant's stories. Unable to explain the inconsistencies, Millett became increasingly nervous and adopted a "fight or flight" stance.

McAulay then requested Millett's consent to search the van. Millett refused. McAulay thereafter informed Millett of his right to refuse consent. He also requested a canine unit to perform a sniff of the vehicle, and told Millett that he planned to

156 A.3d 1033

apply for a search warrant if the dog signaled that the vehicle contained contraband. At this point, Millett verbally consented to the search, and subsequently executed a "consent to search" form. A search of the van revealed, among other things, oxycodone, alprazolam, lisdexamfetamine, and cocaine. Millett and the defendant were arrested.

Prior to their respective trials, both Millett and the defendant moved to suppress the evidence obtained from McAulay's search of the van. The trial court consolidated the two cases for a suppression hearing, and, after the hearing, denied Millett's and the defendant's motions.

At trial, the State presented the testimony of Cooper, McAulay, and a controlled substances identification expert from the State crime lab. Cooper testified that, during the motor vehicle stop, the defendant told him that Millett was her boyfriend, that they had been together for approximately fourteen years, and that she and Millett were the parents of the three children in the rear of the van. He also testified that the defendant

169 N.H. 714

told him that the family had been in Connecticut visiting her aunt, and had stopped to see her friend in Massachusetts. Cooper described the defendant's demeanor during the stop as "pretty relaxed," explaining that she "seem[ed] to look like she was ... tired" and that her "speech was kind of slowed."

McAulay testified to both the circumstances of the motor vehicle stop and to his search of the van. McAulay explained that he recovered three prescription bottles containing pills from a purse located on the floor of the passenger compartment of the vehicle. He also explained that he found an unlocked, magnetized black box located between the driver and passenger seats, directly in front of the first row of bench seats in the rear of the van, and underneath a jacket or blanket. According to McAulay, the black box held several pieces of gum, a Trident gum wrapper, $1,930 in cash, and two plastic sandwich bags containing a solid, hard-pressed white substance. McAulay testified that a person seated in either the driver seat or the passenger seat could have accessed the black box. He also testified that, based upon his training and experience, the magnetized black box was of the type typically used as a "hide," which he explained "can basically be stored underneath a vehicle ... anywhere that isn't inside the vehicle." McAulay also testified that Millett was searched incident to his arrest, that this search revealed a piece of Trident gum in the pocket of Millett's sweatshirt, and that a subsequent warrant search of the van revealed a portion of a prescription pill near the driver's seat, two cellular telephones, and $121 in cash in the center console of the vehicle.

Also at trial, the controlled substances identification expert testified that she tested one of each kind of the pills recovered from the purse, and found the pills to contain oxycodone, alprazolam, and lisdexamfetamine, respectively. She also testified that she tested the white substance contained in the...