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                 THE SUPREME COURT OF NEW HAMPSHIRE

                           ___________________________


Hillsborough–northern judicial district
No. 2016-0145


                        THE STATE OF NEW HAMPSHIRE

                                          v.

                              DANIEL JESUS CORA

                           Argued: January 26, 2017
                         Opinion Issued: June 27, 2017

      Joseph A. Foster, attorney general (Sean R. Locke, assistant attorney
general, on the brief and orally), for the State.


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

       HICKS, J. The State appeals an order of the Superior Court (Abramson,
J.) granting the motion filed by the defendant, Daniel Jesus Cora, to suppress
all evidence obtained from the warrantless entry by the police into his vehicle.
See RSA 606:10 (2001). On appeal, the State contends that the police were
allowed to enter the vehicle without a warrant either under the federal
automobile exception to the warrant requirement, which the State asks that we
adopt under the State Constitution, or because the defendant had a diminished
expectation of privacy in the interior space of his vehicle that is visible to the
public. Under the federal automobile exception, police officers, with probable
cause to search “a lawfully stopped vehicle,” may conduct a warrantless search
“of every part of the vehicle and its contents that may conceal the object of the
search.” United States v. Ross, 456 U.S. 798, 825 (1982).

       The State urges us to overrule our decision in State v. Sterndale, 139
N.H. 445, 449-50 (1995), in which we declined to adopt, under Part I, Article 19
of the State Constitution, the federal automobile exception to the warrant
requirement as articulated in Ross and other Supreme Court cases.
Alternatively, the State asks that we conclude that Sterndale has been
abrogated by our decision in State v. Goss, 150 N.H. 46, 48-49 (2003), and that
we adopt a “slightly more narrow exception” to the warrant requirement based
upon the defendant’s diminished expectation of privacy in the “publicly visible
areas of his car.”

       We decline to overrule Sterndale. However, we agree with the State that
Sterndale has been abrogated by Goss, at least in part, and that its abrogation
requires that we re-evaluate whether to adopt an automobile exception to our
warrant requirement. We now recognize a limited automobile exception to the
warrant requirement pursuant to which the police do not need to obtain a
warrant to enter an automobile when the vehicle has been lawfully stopped
while in transit and the police have probable cause to believe that a plainly
visible item in the vehicle is contraband.

      In this case, the police did not need a warrant before entering the
defendant’s vehicle because the vehicle was subject to a lawful traffic stop, and
the police had probable cause to believe that the baggie and cigarette, which
were plainly visible, were drugs. Accordingly, we reverse and remand.

I. Relevant Facts

       The trial court found, or the record establishes, the following facts. The
defendant’s vehicle was pulled over by Manchester Police Officer Day because it
ran a red light and “cut . . . off” Day’s cruiser. The defendant was the driver of
the vehicle and had two passengers with him. While Day spoke with the
defendant, he noticed the odor of fresh marijuana. Day returned to his cruiser,
ran a license check on the defendant, and requested that another officer assist
him. When the other officer, Officer Horn, arrived on the scene, Day asked the
defendant to exit the vehicle while Horn spoke with the passenger sitting in the
front seat. Day told the defendant that he smelled marijuana in the
automobile. The defendant admitted that he sometimes smoked marijuana
inside his vehicle. When Day advised the defendant that the marijuana
smelled fresh, the defendant admitted that there were a “couple roaches” in the
vehicle. Day asked the defendant to consent to a search of the automobile; the
defendant declined to do so.




                                        2
       Meanwhile, Horn asked the passenger sitting in the front seat to get out
of the vehicle. From outside the vehicle, Horn saw that near the doorjamb of
the front passenger side of the vehicle were a “tied-off baggie” containing a
brown, powdery substance and a “cigarette” containing a leafy, green
substance. Horn called Day’s attention to the items. Based upon his training
and expertise, Day believed that the baggie contained heroin and that the
cigarette contained marijuana. Day seized the baggie and cigarette from the
vehicle.

       The defendant was charged with one misdemeanor and one felony count
of possession of a controlled drug. See RSA 318-B:2, I (2011). Before trial, he
moved to suppress all evidence obtained from Day’s warrantless entry into his
vehicle. The defendant argued that the search of his vehicle was
unconstitutional because it was not authorized by a warrant and because it did
not fall within a judicially-recognized exception to the warrant requirement.
The defendant contended that, contrary to the police officers’ assertions, the
plain view exception did not allow Day to enter his vehicle. The defendant
brought his motion under both the State and Federal Constitutions.

       The trial court granted the defendant’s motion, over the State’s objection,
agreeing with him that the plain view exception did not justify Day’s entry into
the defendant’s vehicle. The trial court observed that Day’s entry would be
justified under the federal automobile exception to the warrant requirement,
but that, in Sterndale, this court had declined to adopt that exception under
the State Constitution. The State moved to reconsider, arguing that the trial
court had misapplied Sterndale in light of the expectation of privacy analysis
that we adopted in Goss. The State contended that, because the defendant had
no reasonable expectation of privacy in the area of the vehicle in which the
evidence had been found, Day was not required to obtain a warrant before
entering the vehicle and seizing the evidence. The trial court denied the State’s
motion, concluding that Goss did not abrogate Sterndale. This appeal followed.

II. Analysis

       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. State v. Mouser, 168 N.H. 19, 22 (2015). We review its legal
conclusions de novo. Id. We first address the parties’ arguments under the
State Constitution and rely upon federal law only to aid our analysis. State v.
Ball, 124 N.H. 226, 231-33 (1983).

      Part I, Article 19 of the New Hampshire Constitution protects an
individual 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)


                                        3
(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 exception to the warrant requirement is the plain view exception, see
State v. Nieves, 160 N.H. 245, 247 (2010), which authorizes the police to seize
an item, see Horton v. California, 496 U.S. 128, 133-36 (1990). In order for an
item’s warrantless seizure to be justified under the plain view exception: (1)
the item must be in plain view; (2) the officer must not have violated the
constitution “in arriving at the place from which the evidence could be plainly
viewed”; and (3) the officer “must also have a lawful right of access to the object
itself.” Id. at 136-37; see Coolidge v. New Hampshire, 403 U.S. 443, 468 (1971)
(explaining that “plain view alone is never enough to justify the warrantless
seizure of evidence”), overruled on other grounds by Horton, 496 U.S. 128; see
also Nieves, 160 N.H. at 251 (stating that, although we abolish the
inadvertency requirement for drugs, weapons, and other dangerous items, “the
initial intrusion under the plain view exception must still be justified by a
warrant or an exception to the search warrant requirement”); State v.
Harriman, 467 A.2d 745, 748-49 (Me. 1983) (noting that “[t]he plain view
sighting of contraband or evidence of crime does not, standing alone, give rise
to a right to enter a constitutionally protected area to seize the item”). In
addition, the incriminating nature of the item seized must be “immediately
apparent,” which means that, at the time of the seizure, the police must have
probable cause to believe that the item seized constitutes incriminating
evidence. State v. Davis, 149 N.H. 698, 701 (2003). Because the items at issue
are drugs, there is no requirement that the officers’ view of them be
inadvertent. Nieves, 160 N.H. at 250; see Bell, 164 N.H. at 455.

       In the instant case, for the purposes of this appeal, there is no dispute
that the items at issue (the baggie and cigarette) were in plain view or that the
police had probable cause to believe that they constituted incriminating
evidence. See State v. Gilson, 116 N.H. 230, 233 (1976) (holding that “[a]n
officer with sufficient experience to recognize the odor of burning marijuana
has probable cause to suspect its presence when he detects the odor within the
confines of an automobile”). Nor is there any claim that the police violated the
New Hampshire Constitution when they observed the items from outside of the
defendant’s vehicle during a lawful traffic stop. Rather, this case turns upon
whether the officers had a lawful right of access to the items themselves. See
Horton, 496 U.S. at 137; see also Nieves, 160 N.H. at 251. In other words, this
case requires us to decide whether the police violated Part I, Article 19 when
they entered the defendant’s vehicle in order to seize the items. If the police
entry into the defendant’s vehicle did not violate Part I, Article 19, it is not
disputed that their seizure of the items was justified under the plain view
exception to the warrant requirement.




                                        4
       The State argues that the officers were allowed to enter the defendant’s
vehicle either under the federal automobile exception to the warrant
requirement, which the State urges us to adopt, or under a narrower exception
because the defendant had a diminished expectation of privacy in the interior
space of his vehicle that is visible to the public. The State argues that we must
either overrule Sterndale and adopt the federal automobile exception or
conclude that Sterndale was abrogated by our adoption of the expectation of
privacy analysis in Goss and adopt our own, more limited automobile
exception. The defendant counters that Sterndale remains good law and that
our decision in Goss does not undermine it. Alternatively, the defendant
argues that the police in this case lacked authority to enter his vehicle without
a warrant because doing so either interfered with his reasonable expectation of
privacy or constituted a trespass.

      A. Sterndale

       We first address the status of our decision in Sterndale. Generally, we
will overrule a prior decision only after considering: (1) whether the rule has
proven to be intolerable simply by defying practical workability; (2) whether the
rule is subject to a kind of reliance that would lend a special hardship to the
consequence of overruling; (3) whether related principles of law have so far
developed as to have left the old rule no more than a remnant of abandoned
doctrine; and (4) whether facts have so changed, or come to be seen so
differently, as to have robbed the old rule of significant application or
justification. State v. Smith, 166 N.H. 40, 44 (2014). No single factor is
dispositive, and the factors are not meant to be rigidly applied or blindly
followed. State v. Balch, 167 N.H. 329, 334 (2015). The State relies upon
factors (1) and (3), asserting that factors (2) and (4) “are not relevant to this
stare decisis analysis.”

       The first stare decisis factor “examines whether a rule has become
difficult or impractical for trial courts to apply.” Id. “The first factor weighs
against overruling when a rule is easy to apply and understand.” Id. In
arguing that Sterndale is unworkable, the State focuses upon our law
regarding the exigent circumstances exception to the warrant requirement. In
effect, the State contends that, because we do not have an automobile
exception to the warrant requirement, police must rely upon the exigent
circumstances exception in order to search automobiles, and that this
exception as so applied is “confusing.” (Bolding omitted.) We observe that the
State has not argued on appeal, and did not argue in the trial court, that the
exigent circumstances exception or any other exception to the warrant
requirement justifies the search in this case. In any event, the issue here is
not whether the exigent circumstances exception as applied to automobiles is
confusing, but whether the Sterndale rule has proven to be intolerable simply
by defying practical workability. See Smith, 166 N.H. at 44.



                                        5
       We find somewhat more persuasive the State’s contentions regarding the
third stare decisis factor, which focuses upon “whether the law has developed
in such a manner as to undercut the prior rule.” Balch, 167 N.H. at 335. The
State contends that Sterndale is no longer good law because, when we adopted
the expectation of privacy analysis in Goss, we “changed the framework
through which [we] review[ ] challenges to searches under [P]art I, [A]rticle 19.”
We agree with the State that Goss changed how we analyze whether a
warrantless search is constitutional under Part I, Article 19, but disagree with
its contention that, therefore, we should adopt the federal automobile
exception.

      In analyzing how Goss affected Sterndale, we begin by examining
Sterndale. The defendant in Sterndale was subject to a traffic stop, and then
arrested and placed in the back of a police cruiser. Sterndale, 139 N.H. at 446-
47. Following the arrest, the police officer returned to the defendant’s vehicle
and observed a brown paper bag. Id. at 447. The officer leaned into the
automobile, opened the paper bag, and found four clear, plastic bags
containing what he believed to be marijuana. Id. The trial court suppressed
the contents of the brown paper bag. Id.

      On appeal, the State argued that the officer’s search was justified as a
search incident to arrest, under the exigent circumstances exception to the
warrant requirement, and under the federal automobile exception to that
requirement, which the State asked us to adopt. Id. at 446, 449. We rejected
the State’s search incident to arrest argument and declined to consider its
exigent circumstances argument because the State had not preserved it for our
review. Id. at 447-48.

       We also rejected the State’s invitation to adopt, under Part I, Article 19 of
the State Constitution, the federal automobile exception as articulated in such
decisions as Ross, 456 U.S. at 825. Sterndale, 139 N.H. at 449-50. We stated
that we did not find convincing the Court’s two justifications for that exception:
(1) that there is a “reduced expectation of privacy” in an automobile; and (2)
that an automobile presents exigent circumstances because it is “readily
mobile” and “could be moved beyond the reach of the police.” Id. at 449
(quotations omitted). We found the privacy justification unpersuasive because,
at that time, we had not expressly adopted an expectation of privacy test under
the State Constitution. Id. We found the exigent circumstances rationale
unpersuasive because we disagreed with the theory that “every automobile, due
to its mobility, serves to justify governmental intrusion into the vehicle.” Id.;
see State v. Camargo, 126 N.H. 766, 770-71 (1985) (agreeing “that the exigency
exception [to the warrant requirement] typically applies to searches of
automobiles stopped while in transit, because of their mobility and the
likelihood that the occupants will be alerted to the police suspicion and will
remove or destroy the contents of the automobile,” but holding that exigent
circumstances were not present when police towed the defendant’s automobile


                                         6
from a parking lot behind his apartment). We observed that some vehicles,
such as the towed vehicle in Camargo, are not mobile. Sterndale, 139 N.H. at
449. In those situations, we noted, the police may avoid incurring the risk that
a vehicle will be moved by assigning an officer to guard it while a warrant is
obtained. Id.

      Less than a decade later, in 2003, we decided Goss. As the State asserts,
our adoption of the expectation of privacy analysis in Goss “changed the
calculus that must be applied in determining whether a warrantless search . . .
was unreasonable.”

       Until we decided Goss, we had tacitly recognized that an expectation of
privacy exists under our State Constitution, but had not yet adopted such an
analysis under Part I, Article 19. Goss, 150 N.H. at 48. In Goss, we
determined that the “time [had] come to adopt explicitly a reasonable
expectation of privacy analysis under Part I, Article 19.” Id. Under our test, a
constitutional violation occurs when a warrantless search takes place in an
area in which (1) the person has “exhibited a subjective expectation of privacy
in the area” and (2) “that expectation [is] one that society is prepared to
recognize as reasonable,” State v. Smith, 163 N.H. 169, 172 (2012), and the
search does not fit within one of the exceptions to the warrant requirement, see
State v. Smith, 169 N.H. ___, ___, 154 A.3d 660, 664 (2017) (explaining that
Part I, Article 19 of the State Constitution is violated when “government agents
invade a person’s reasonable expectation of privacy”).

       Since deciding Goss, we have consistently examined whether a defendant
has a reasonable expectation of privacy in the area to be searched to determine
whether a warrantless search complies with Part I, Article 19. See, e.g., Smith,
169 N.H. at ___, 154 A.3d at 667 (holding that defendant tenant lacked a
reasonable expectation of privacy in the common hallway of a rooming house,
and, therefore, warrantless entry of police into that hallway did not violate the
state constitutional prohibition against unreasonable searches and seizures);
State v. Orde, 161 N.H. 260, 267 (2010) (concluding that police warrantless
entry onto the defendant’s deck violated the State Constitution because the
defendant had a reasonable expectation of privacy in his deck); State v.
Johnson, 159 N.H. 109, 111-12 (2009) (because the defendant did not have a
reasonable expectation of privacy in the sloping, overgrown area behind his
house, the police did not need a warrant to search there).

      Our adoption of an expectation of privacy analysis in Goss abrogates our
determination in Sterndale that “the ‘reduced expectation of privacy’ the
Supreme Court has found inherent in an automobile under the fourth
amendment is not persuasive under part I, article 19 of the New Hampshire
Constitution.” Sterndale, 139 N.H. at 449.




                                       7
      B. Applying Goss to Automobiles

        Consistent with our decision in Goss, we now agree with the Supreme
Court that there is a diminished expectation of privacy, generally, in
automobiles. As the United States Supreme Court has “repeatedly recognized,
. . . the expectation of privacy in ‘an automobile . . . [is] significantly different
from the traditional expectation of privacy and freedom in one’s residence.’”
Com. v. Simmons, 466 N.E.2d 85, 89 (Mass. 1984) (quoting United States v.
Martinez-Fuerte, 428 U.S. 543, 561 (1976)). The diminished protection
“accorded automobiles derives from their continual exposure to public
scrutiny.” Id. As the Court has explained, there is a diminished expectation of
privacy in an automobile because “[a] car has little capacity for escaping public
scrutiny. It travels public thoroughfares where both its occupants and its
contents are in plain view.” New York v. Class, 475 U.S. 106, 113 (1986)
(quotations omitted). Moreover, “[e]very operator of a motor vehicle must
expect that the State, in enforcing its regulations, will intrude to some extent
upon that operator’s privacy.” Id.; see Rakas v. Illinois, 439 U.S. 128, 154 n.2
(1978) (Powell, J., concurring) (observing that there are “sound reasons” for
distinguishing between other locations and automobiles: “Automobiles operate
on public streets; they are serviced in public places; they stop frequently; they
are usually parked in public places; their interiors are highly visible; and they
are subject to extensive regulation and inspection.”). Therefore, we agree with
the Supreme Court that there is a diminished expectation of privacy in an
automobile.

      C. Automobile Exception Under the State Constitution

      The State contends that because we adopted an expectation of privacy
analysis in Goss, we should, therefore, recognize the federal automobile
exception under our State Constitution. We disagree.

      We believe that the federal automobile exception is too broad. Under the
federal automobile exception, police officers, with probable cause to search “a
lawfully stopped vehicle,” may conduct a warrantless search “of every part of
the vehicle and its contents that may conceal the object of the search.” Ross,
456 U.S. at 825. We believe, however, that there can be “a reasonable
expectation of privacy in certain areas of the interior of an automobile
otherwise placed in the public view.” Simmons, 466 N.E.2d at 89. Courts in
other jurisdictions, for instance, have found that such an expectation exists “in
those areas which would be otherwise free from observation except by physical
intrusion of some sort,” such as “the trunk, the glove compartment, closed
containers in the interior, and in most cases, the area under the seats.” Id.
(quotation omitted). In State v. Elison, 14 P.3d 456, 469 (Mont. 2000), for
instance, the court concluded that the defendant had an actual expectation of
privacy in items stowed behind the seat in his automobile and that his actual
expectation was reasonable. The court explained that “when a person takes


                                          8
precautions to place items behind or underneath seats, in trunks or glove
boxes, or uses other methods of ensuring that those items may not be accessed
and viewed without permission, there is no obvious reason to believe that any
privacy interest with regard to those items has been surrendered simply
because those items happen to be in an automobile.” Elison, 14 P.3d at 470.

      Accordingly, we reject the State’s invitation to adopt the federal
automobile exception under the State Constitution. We leave intact the central
holding of Sterndale — that we do not recognize, under Part I, Article 19, the
federal automobile exception as articulated in Ross, 456 U.S. at 825.
Sterndale, 139 N.H. at 449-50.

       However, we take this opportunity to recognize a more limited automobile
exception to our warrant requirement. Under that more limited exception, 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.

       We believe that this limited automobile exception is a legitimate
extension of our decision in Goss. We further believe that it “correctly balances
the need to search against the invasion which the search entails, and, thus
heeds our constitution’s proscription against unreasonable searches.” State v.
Smith, 141 N.H. 271, 276 (1996) (quotation, brackets, and citation omitted)
(adopting, under Part I, Article 19, the federal “protective sweep” exception to
the warrant requirement). Whereas the privacy expectations of an individual in
his or her automobile are “considerably diminished, the governmental interests
at stake are substantial.” Wyoming v. Houghton, 526 U.S. 295, 304 (1999).
The government has a well-recognized “need to seize readily movable
contraband.” Florida v. White, 526 U.S. 559, 565 (1999); see Camargo, 126
N.H. at 770 (noting, with approval, the trial court’s determination that a vehicle
stopped in transit creates an “inherently exigent circumstance” (quotation
omitted)). “Effective law enforcement would be appreciably impaired without
the ability to” enter the plainly visible interior of a lawfully stopped vehicle
when the police have probable cause to believe that there is contraband in that
area. Houghton, 526 U.S. at 304. Moreover, when an automobile is stopped in
transit, there is a “risk that the . . . contraband will be permanently lost while a
warrant is obtained.” Id.

      In the instant case, because the defendant’s vehicle was stopped in
transit pursuant to a lawful stop and because the police had probable cause to
believe that plainly visible items in the vehicle were contraband, they needed
no warrant before entering the vehicle. Because the Federal Constitution
affords the defendant no greater protection than does the State Constitution
under these circumstances, we necessarily reach the same conclusion under
both constitutions. See Ross, 456 U.S. at 825.



                                         9
       In light of our decision, we need not address the defendant’s assertion
that the police entry into his vehicle constituted a “search” under a trespass
theory. See Florida v. Jardines, 133 S. Ct. 1409, 1414-15, 1417 (2013); see
also Mouser, 168 N.H. at 24 (acknowledging that we have not yet addressed
whether the trespass theory, as articulated by the Supreme Court, is a viable
theory under the State Constitution). Here, even assuming without deciding
the viability of the trespass theory under the State Constitution, and even
assuming without deciding that what occurred is a “search” under that theory,
such a search would be constitutional, as previously discussed, under the
limited automobile exception we adopt today.

                                                Reversed and remanded.

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




                                      10
