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                 THE SUPREME COURT OF NEW HAMPSHIRE

                           ___________________________


Hillsborough-northern judicial district
No. 2016-0363


                        THE STATE OF NEW HAMPSHIRE

                                          v.

                               SHANNON GLAVAN

                          Argued: February 28, 2018
                       Opinion Issued: November 1, 2018

      Gordon J. MacDonald, attorney general (Sean R. Locke, assistant
attorney general, on the brief and orally), for the State.


      Christine C. List, assistant appellate defender, on the brief and orally, for
the defendant.

      HANTZ MARCONI, J. The State appeals an order of the Superior Court
(Ruoff, J.) granting the motion filed by the defendant, Shannon Glavan, to
suppress evidence seized from her automobile. We reverse and remand.

     The trial court found, or the record establishes, the following facts. At
approximately 1:45 a.m. on September 23, 2015, Officer O’Connor of the
Manchester Police Department observed a car parked at a Mobil gas station in
Manchester, which had been closed since 11:00 p.m. the night before. He
approached the car and saw the defendant sleeping in the driver’s seat.
O’Connor shined a light into the defendant’s car and, when she did not wake
up, knocked on the window. While knocking, he saw a “loaded syringe
containing a clear, reddish liquid” by the defendant’s left leg. Based on his
training and experience, O’Connor believed the syringe contained narcotics.

      When the defendant awoke, O’Connor asked her to exit the car and she
agreed. O’Connor instructed the defendant not to touch the syringe and stated
that he would secure it before she stepped out of the car because he wanted to
prevent needle sticks to either of them. The defendant opened the door and
remained in the driver’s seat while O’Connor reached in, retrieved the syringe,
and placed it on the roof of the car. After the defendant exited the car,
O’Connor asked her what was in the syringe, and she answered that it
contained “meth.” O’Connor arrested the defendant and secured the syringe,
which later tested positive for methamphetamine.

       The defendant was charged with possession of a controlled drug, and she
moved to suppress all evidence resulting from the search of her vehicle under
Part I, Article 19 of the New Hampshire Constitution and the Fourth and
Fourteenth Amendments to the United States Constitution. Following a
hearing, the trial court granted the defendant’s motion. The trial court
reasoned that, given that at that time there was no recognized automobile
exception to the warrant requirement under the State Constitution, the plain
view doctrine did not authorize O’Connor’s warrantless search of the
defendant’s vehicle. Accordingly, the court concluded that “the syringe and
other fruits” of O’Connor’s entry into the defendant’s vehicle must be
suppressed. This appeal followed.

      Following acceptance of the State’s appeal, but prior to briefing, we
stayed this appeal pending the outcome of State v. Cora, 170 N.H. 186 (2017).
In Cora, we recognized a limited automobile exception to our warrant
requirement under the State Constitution. Cora, 170 N.H. at 188-89. The
State now argues that, given our decision in Cora, because O’Connor “had
lawfully detained the defendant and had probable cause to believe that the
plainly visible syringe was loaded with contraband, he did not need a warrant
to reach into the defendant’s car to seize the syringe,” and, therefore, the trial
court erred in suppressing the evidence.

       The defendant acknowledges that the parties’ dispute in the trial court
over whether the plain view exception to the warrant requirement justifies an
officer’s physical intrusion into a vehicle was rendered moot by Cora.
Nonetheless, the defendant asserts that the automobile exception that we
recognized in Cora is limited to vehicles that are “stopped in transit,” and,
thus, the exception does not apply here because she “was asleep and parked
when police came into contact with her vehicle.” The defendant does not
contend that her vehicle was stopped pursuant to an unlawful stop, and we



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accordingly limit our analysis to the question whether the vehicle was stopped
“in transit.”

       When reviewing a trial court’s rulings on a motion to suppress, we accept
its findings of fact unless they lack support in the record or are clearly
erroneous. Id. at 190. We review its legal conclusions de novo. Id.

       In Cora we determined that the federal automobile exception is too broad
in that it permits police officers, with probable cause to search a lawfully
stopped vehicle, to conduct a warrantless search of every part of the vehicle
“that may conceal the object of the search.” Id. at 195-96. We reasoned that
“there can be a reasonable expectation of privacy in certain areas of the interior
of an automobile otherwise placed in the public view.” Id. at 196 (quotation
omitted). Accordingly, we recognized “a more limited automobile exception to
our warrant requirement,” under which “the police need no warrant to enter an
automobile when: (1) the vehicle has been stopped in transit pursuant to a
lawful stop; and (2) the police have probable cause to believe that a plainly
visible item in the vehicle is contraband.” Id. We determined that this limited
exception balances the diminished expectation of privacy in an automobile with
the government’s “well-recognized need to seize readily movable contraband.”
Id. (quotation omitted). As we noted, “when an automobile is stopped in
transit, there is a risk that the contraband will be permanently lost while a
warrant is obtained.” Id. at 197 (quotation and ellipses omitted).

       The State appears to argue that a “lawful detention” is all that is required
under the first prong of the limited automobile exception set forth in Cora. The
defendant counters that a lawful detention alone is not sufficient to satisfy the
first Cora prong because, unlike the federal automobile exception, the
automobile exception in Cora “limited its applicability only to those vehicles
that are stopped in transit.” She asserts that in State v. Camargo, 126 N.H.
766, 771 (1985), we distinguished between parked vehicles and vehicles in
transit. She contends that her car, like the vehicle in Camargo, was parked
and, therefore, not in transit. We need not decide whether the first Cora prong
is limited to vehicles that are “stopped in transit” pursuant to a lawful stop
because we conclude that, on the facts of this case, the defendant’s car was
stopped in transit.

       In Camargo, the defendant was stopped by the police because the vehicle
she was driving matched the description of a stolen vehicle. Camargo, 126
N.H. at 768. Several days later, the defendant went to the police station and,
after admitting to the police that her previous statements about her ownership
of the vehicle were false, the defendant was charged with receiving stolen
property and the police had the vehicle towed from the parking lot of her
apartment. Id. at 768-69. We agreed with the defendant that the warrantless
seizure of her vehicle from the parking lot behind her apartment was
unreasonable. Id. at 771-72. We reasoned that “[w]hen the automobile was


                                        3
parked behind the defendant’s apartment in a private lot, the police had
sufficient probable cause to obtain a search warrant for the defendant’s
automobile,” but “the exigency exception was not met because the automobile
was parked and was therefore not mobile.” Id. at 771. Thus, we concluded
that the police could have obtained a warrant before seizing the vehicle, “and
could have avoided incurring undue risk of the vehicle being moved by simply
assigning an officer to observe the lot and automobile while they obtained the
warrant.” Id. at 772.

       Camargo does not establish that, as a matter of law, parked cars can
never be “in transit.” The definition of “transit” is “an . . . instance of passing
or journeying . . . through.” Webster’s Third New International Dictionary 2428
(unabridged ed. 2002). In Camargo, the vehicle was unoccupied and parked at
the place where the defendant lived. Here, the defendant was in the driver’s
seat of the car, parked temporarily at 1:45 a.m. at a public gas station that had
been closed since 11:00 p.m. the night before. On the facts of this case, we
conclude that the defendant’s automobile was stopped in transit, and thus the
trial court erred by granting the defendant’s motion to suppress. Accordingly,
we reverse and remand for further proceedings consistent with this opinion.

                                                   Reversed and remanded.

      LYNN, C.J., and HICKS and BASSETT, JJ., concurred.




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