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                 THE SUPREME COURT OF NEW HAMPSHIRE

                           ___________________________


Hillsborough - northern judicial district
No. 2013-747


                        THE STATE OF NEW HAMPSHIRE

                                         v.

                               MICHAEL FRANCIS

                          Argued: November 13, 2014
                         Opinion Issued: May 12, 2015

      Joseph A. Foster, attorney general (Geoffrey W.R. Ward, assistant
attorney general, on the brief and orally), for the State.


      Christopher M. Johnson, chief appellate defender, of Concord, on the
brief and orally, for the defendant.


      BASSETT, J. The defendant, Michael Francis, appeals his conviction of
possession of heroin with the intent to dispense. See RSA 318-B:2 (Supp.
2012) (amended 2013). He argues that: (1) the Superior Court (Brown, J.)
erred in denying his motion to suppress evidence obtained from a search of a
vehicle; and (2) the Superior Court (Mangones, J.) erred in denying his motion
to dismiss based upon insufficient evidence that he possessed the heroin found
in the vehicle. We affirm.
       The following facts are drawn from the trial court order on the
defendant’s motion to suppress, are supported by the record, or are
undisputed by the parties. At 5:30 p.m. on January 3, 2013, Detectives
Gonzales and Donahue of the Manchester Police Department were told that the
defendant was wanted for a parole violation, that he was dealing drugs at a
Maple Street residence in Manchester, and that he might be armed. Gonzales
and Donahue conducted surveillance of the Maple Street residence in an
attempt to locate the defendant in order to arrest him for the parole violation.
They observed several individuals entering a Ford Expedition, a large sport
utility vehicle (SUV), which then drove off. The detectives identified one of the
individuals as the defendant based upon his facial appearance and the tattoo
on the side of his neck. Because the area was not well-lit, the detectives could
not determine the exact number of people in the SUV or whether they had
anything in their hands. Gonzales and Donahue followed the SUV and called
for assistance. Two officers responded and stopped the vehicle.

       Gonzales and Donahue, accompanied by the other officers, approached
the stopped vehicle with their firearms drawn, and ordered each occupant out
of the SUV, one at a time. The defendant, who sat behind the front passenger
seat, was the last person to leave the vehicle, exiting approximately 30 to 45
seconds after the other occupants. The four individuals who exited the vehicle
were found to be unarmed. However, because Gonzales was unable to see
through the SUV’s tinted and dirty windows, he was unsure whether any other
persons remained in the vehicle. Therefore, the officers decided to “clear” the
vehicle to ensure that a potentially dangerous person did not remain inside the
SUV.

      Without obtaining either consent or a warrant, Gonzales entered the
SUV. With his gun drawn, he “flipped” the seats and looked underneath them
to determine whether anyone was lying down in the SUV. During the sweep,
Gonzales observed a partially-opened red backpack on the floor in front of the
defendant’s seat. Gonzales could see the top of a semi-automatic handgun
inside the backpack. The “clear” took a total of eight to ten seconds.

      After Boulanger, the owner of the SUV, refused to consent to a vehicle
search, the vehicle was seized and a search warrant was obtained. During the
search of the SUV, Gonzales found heroin under the driver’s seat. Upon
searching the red backpack, Gonzales found a handgun, a box of sandwich
bags, and two digital scales, one of which tested positive for heroin residue.
The defendant was arrested and charged with, among other things, possession
of heroin with the intent to dispense.

       Before trial, the defendant moved to suppress evidence seized from the
SUV, alleging that the protective sweep was a warrantless search in violation of
the New Hampshire and United States Constitutions. See N.H. CONST. pt. I,
art. 19; U.S. CONST. amend. IV. The trial court denied the motion, finding


                                        2
that the evidence was “admissible pursuant to the protective sweep, exigent
circumstances, and plain view exceptions to the warrant requirement.”

       Two of the vehicle’s occupants testified at trial. Boulanger testified that
he met the defendant and the other passengers at the Maple Street residence to
give them a ride. Boulanger understood that “they would take care of [him],”
which he testified meant that they would give him heroin in exchange for
driving. Additionally, Cyr, another passenger in the vehicle, testified that
immediately after the SUV was stopped, the defendant told Boulanger, “Don’t
let them search the vehicle.”

       At the close of evidence, the defendant moved to dismiss the possession
of heroin with intent to dispense charge, arguing that the State did not present
sufficient evidence linking him to the heroin “that was found under the driver’s
seat.” The trial court denied the motion. The jury convicted the defendant of
possession of heroin with the intent to dispense. This appeal followed.

I. Motion to Suppress

      The defendant argues that the trial court erred by denying his motion to
suppress because the police lacked a reasonable belief that: (1) there was
another person in the vehicle; and (2) any person remaining in the vehicle
posed a risk of danger. Accordingly, the defendant contends that the protective
sweep violated his rights under Part I, Article 19 of the New Hampshire
Constitution and the Fourth Amendment to the United States Constitution.
See State v. Smith, 141 N.H. 271, 274-77 (1996); Maryland v. Buie, 494 U.S.
325, 327 (1990).

       When reviewing a trial court’s ruling on a motion to suppress, we accept
the trial court’s factual findings unless they lack support in the record or are
clearly erroneous, and we review its legal conclusions de novo. State v. Schulz,
164 N.H. 217, 221 (2012). We first address the issues under the State
Constitution and rely upon federal law only to aid in our analysis. State v.
Ball, 124 N.H. 226, 231-33 (1983).

       Part I, Article 19 of the New Hampshire Constitution provides that
“[e]very subject hath a right to be secure from all unreasonable searches and
seizures of his person, his houses, his papers, and all his possessions.” N.H.
CONST. pt. I, art. 19. “A warrantless search is per se unreasonable and invalid
unless it comes within one of a few recognized exceptions.” State v. Graca, 142
N.H. 670, 673 (1998) (quotation omitted). “Absent a warrant, the burden is on
the State to prove that the search was valid pursuant to one of these
exceptions.” Id. (quotation omitted).

     One such exception is known as a protective sweep, which is intended to
ensure that law enforcement officers can “protect themselves from harm” at the


                                        3
scene of an arrest. Smith, 141 N.H. at 276. “A ‘protective sweep’ is a quick
and limited search of premises.” Buie, 494 U.S. at 327. “[It] occurs as an
adjunct to the serious step of taking a person into custody for the purpose of
prosecuting him for a crime.” Id. at 333. Fundamental to any protective sweep
is the officer’s concern that there may be other persons present “who are
dangerous and who could unexpectedly launch an attack.” Id.

      In Maryland v. Buie, the United States Supreme Court stated that “as an
incident to the arrest the officers could, as a precautionary matter and without
probable cause or reasonable suspicion, look in closets and other spaces
immediately adjoining the place of arrest from which an attack could be
immediately launched.” Id. at 334. The Court added that, if a search extends
beyond the “spaces immediately adjoining the place of arrest,” an officer “must
[have] articulable facts which, taken together with the rational inferences from
those facts, would warrant a reasonably prudent officer in believing that the
area to be swept harbors an individual posing a danger to those on the arrest
scene.” Id.

      In State v. Smith, we adopted the second protective sweep standard
articulated in Buie, observing that “[o]ur constitution should not be interpreted
to deny police officers the right to protect themselves from harm.” Smith, 141
N.H. at 276. We stated that a protective sweep performed pursuant to this
standard “correctly balances the need to search against the invasion which the
search entails.” Id.

       We have not yet addressed whether a protective sweep performed without
probable cause or reasonable suspicion — the first standard articulated in Buie
— is permitted under our State Constitution, and we need not consider the
issue in this case because the State conceded at oral argument that it did not
raise the issue before the trial court. Thus, our analysis focuses on whether,
as the State asserts, Gonzales had a reasonable belief based upon articulable
facts that a dangerous individual remained in the SUV. See Smith, 141 N.H. at
275; see also Buie, 494 U.S at 337. The scope of this type of protective sweep
must be narrowly confined to: (1) a cursory inspection of those spaces where a
person may be found; and (2) a duration that lasts no longer than necessary to
dispel the reasonable suspicion of danger and, in any event, no longer than it
takes to complete the arrest and depart the premises. Buie, 494 U.S. at 335-
36; Smith, 141 N.H. at 275-76.

      On appeal, the defendant does not challenge the scope or duration of the
protective sweep. Rather, he argues that “the police lacked a reasonable belief
that the area to be swept harbored any other person” and that “to the extent
the police had reason to think anybody remained in the car, they lacked a
reason to believe that such person posed a risk of danger.” Based upon the
record before us, we conclude that the trial court did not err when it ruled that
Gonzales reasonably believed that the searched area harbored an individual


                                        4
who posed a danger to those on the arrest scene. See Smith, 141 N.H. at 277.
As the trial court found, the defendant “was a convicted felon, had violated
parole, had access to a gun, had a history of threatening others with his gun,
and was suspected of selling heroin from his home.” Gonzales was also unsure
how many individuals were in the vehicle. The defendant was the last to exit
the vehicle and was not carrying a handgun when he exited, and, because the
windows were tinted and dirty, Gonzales could not see inside the SUV. These
findings are supported by the record. Accordingly, we conclude that the record
supports the trial court’s ruling that the officers had a reasonable belief that
the vehicle harbored another person who posed a danger to those on the scene.
See id. at 275. Therefore, the protective sweep was permissible.

      Because the State Constitution provides at least as much protection as
the Federal Constitution under these circumstances, we reach the same result
under the Federal Constitution as we do under the State Constitution. See
Smith, 141 N.H. at 275; Buie, 494 U.S. at 337.

II. Insufficiency of the Evidence

       The defendant next argues that the trial court erred by denying his
motion to dismiss because the State introduced insufficient evidence to prove
that he possessed the heroin found in the SUV. The defendant does not argue
that the State failed to prove intent to dispense; rather, the defendant
challenges the sufficiency of the State’s evidence only as to his possession of
the heroin. Specifically, he argues that his awareness of the presence of the
heroin does not constitute possession of the heroin, and that, because he was
“one of four occupants” and was “neither [the SUV’s] driver nor its owner,”
there is insufficient evidence that he possessed the contraband found inside
the SUV. See State v. Ward, 134 N.H. 626, 629 (1991) (concluding that
evidence of knowledge of stolen property on premises was insufficient standing
alone to prove constructive possession).

       When considering a challenge to the sufficiency of the evidence, we
objectively review the record to determine whether any rational trier of fact
could have found the essential elements of the crime beyond a reasonable
doubt, considering all the evidence and all reasonable inferences therefrom in
the light most favorable to the State. State v. Germain, 165 N.H. 350, 354-55
(2013). When the evidence as to one or more elements of the charged offense is
solely circumstantial, the defendant must establish that the evidence does not
exclude all reasonable conclusions except guilt. Id. at 361. The proper
analysis is not whether every possible conclusion consistent with innocence
has been excluded, but, rather, whether all reasonable conclusions based upon
the evidence have been excluded. Id. “Further, the trier may draw reasonable
inferences from facts proved and also inferences from facts found as a result of
other inferences, provided they can be reasonably drawn therefrom.” Id. at 355



                                       5
(quotation omitted). “In reviewing the evidence, we examine each evidentiary
item in the context of all the evidence, not in isolation.” Id.

      To prove possession of a controlled drug, the State must show beyond a
reasonable doubt that the defendant: (1) had knowledge of the nature of the
drug; (2) had knowledge of its presence in his vicinity; and (3) had custody of
the drug and exercised dominion and control over it. State v. Trebian, 164
N.H. 629, 632 (2013). When, as here, the defendant was not in physical
possession of the drugs, the State must prove constructive possession. State v.
Tabaldi, 165 N.H. 306, 316 (2013). This can be inferred from circumstances
linking the defendant to the controlled substance, such as the presence of the
defendant’s personal possessions near the drugs. Id. Constructive possession
of drugs need not be exclusive. Id. As we have recognized, “[w]hen more than
one person occupies the premises where drugs are found, mere proof that a
defendant is one of those occupants is insufficient to prove his constructive
possession.” State v. Smalley, 148 N.H. 66, 69 (2002). However, evidence that
the defendant’s personal possessions were in “close proximity to the controlled
substance may provide a sufficiently close nexus between the defendant and
the substance to allow the jury to infer possession.” Id. (quotation omitted).

        Here, construing all reasonable inferences in the light most favorable to
the State, a reasonable juror could have found that the defendant possessed
the heroin in the SUV. Boulanger testified that he understood that he would
be given heroin in exchange for providing a ride to the defendant and the other
passengers. He also testified that, after the other passengers had left the SUV,
the defendant asked him whether he had given the police permission to search
the vehicle, and that he told the defendant, “No.” Cyr testified that immediately
after the SUV was stopped, the defendant told Boulanger, “Don’t let them
search the vehicle.” Based on this testimony, a reasonable juror could have
concluded that the defendant was aware of the presence of the heroin in the
SUV. See Trebian, 164 N.H. at 632. The evidence also supported a reasonable
conclusion that the defendant “had custody of the drug and exercised
dominion and control over it.” Id. Cyr testified that the defendant carried a red
backpack into the SUV before they left the Maple Street residence, and placed
it in front of him on the floor. Gonzales found the backpack lying open on the
floor of the SUV during the protective sweep. The contents of the backpack
included drug paraphernalia that later tested positive for heroin. Thus, the
jury could have reasonably inferred that the heroin had been in the backpack
before it was placed under the front seat. See Germain, 165 N.H. at 355.

       Moreover, before the defendant exited the SUV, he was alone in the
vehicle for a period of 30 to 45 seconds. During that time, he would have had
the opportunity to remove the heroin from the backpack and place it under the
driver’s seat — an area that was easily accessible to the defendant from his
seat behind the front passenger seat. Although the defendant argues that any
one of the four occupants of the SUV could have possessed the heroin, “the


                                       6
jury could have drawn reasonable inferences based upon the evidence
presented and concluded that it belonged to the defendant.” Tabaldi, 165 N.H.
at 316-17 (quotation and brackets omitted). “The State did not have to
establish that the defendant had exclusive constructive possession of the
heroin.” Id. at 317.

      We conclude that, viewing the evidence in the light most favorable to the
State, a reasonable juror could have found guilt beyond a reasonable doubt.
Accordingly, the trial court did not err when it denied the defendant’s motion to
dismiss.

                                                 Affirmed.

      DALIANIS, C.J., and HICKS, CONBOY, and LYNN, JJ., concurred.




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