2004-859, STATE OF NH v. DAVID LIVINGSTON

The defendant, David Livingston, was convicted of

defendant. Barry S. Weinstein, of Manchester, on the brief and orally, for the

attorney general, on the brief and orally), for the State. Errors may be reported by E-mail at the following address: Kelly A. Ayotte, attorney general (Peter C.L. Roth, senior assistant

page is: http://www.courts.state.nh.us/supreme. v.

errors in order that corrections may be made before the opinion goes to press. No. 2004-859 Hampshire, One Noble Drive, Concord, New Hampshire 03301, of any editorial Carroll Readers are requested to notify the Reporter, Supreme Court of New ___________________________

THE SUPREME COURT OF NEW HAMPSHIRE

a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as conditions or limitations.

p. 2 the search of the vehicle. The defendant signed the consent form without any

266:72-a and 49 C.F.R. § 396.9(a). Concluding that Boothby “testified

testified that the defendant never indicated that he wanted to limit the scope of

defendant’s pocket. he had any options. incident to the arrest, Boothby discovered a baggie containing cocaine in the a search of the vehicle. The defendant refused, stating that he did not feel that Boothby then placed the defendant under arrest. During a subsequent search 2

defendant’s consent to perform that kind of search.

conduct a routine inspection of the defendant’s vehicle pursuant to RSA

to a “reasonable search” lasting “two or three minutes.” Boothby, however, hearing, the defendant testified that he verbally limited the scope of his consent consent form and watched as the defendant appeared to read it. At the

his person. The defendant responded, “No.” Boothby asked him to consent to vehicle and found a burnt marijuana cigarette in the driver’s side door.

from the outside. Boothby indicated that he was not requesting the

Boothby testified, the trial court found that Boothby had the authority to cocaine. After conducting an evidentiary hearing at which the defendant and The defendant moved to suppress the burnt marijuana cigarette and the

officer then gave the defendant a written consent form. Boothby explained the

marijuana, and asked him whether he had any marijuana in the truck or on Boothby conducted a canine search of the interior and exterior of the determining that it did not, Boothby told the defendant that he smelled burnt within the scope of the federal motor carrier safety regulations. After defendant asked if the search could be conducted by looking into the vehicle narcotics, Boothby would seize the vehicle and apply for a search warrant. The search of the exterior of the vehicle; if the dog indicated the presence of

At some point, Boothby asked the defendant to get out of the truck. The

defendant routine questions to determine whether the defendant’s vehicle came

search, in which case Boothby would have a trained dog perform a canine sniff Boothby explained to the defendant that he could refuse to consent to a

carrier safety regulations. whether the truck constituted a commercial vehicle under the federal motor (2005). Boothby approached the truck to question the defendant to determine

were bloodshot and he appeared to be nervous. Boothby initially asked the marijuana coming from inside it. He also observed that the defendant’s eyes As Boothby approached the vehicle, he smelled a strong odor of burnt

vehicle inspection pursuant to RSA 266:72-a, I (2004) and 49 C.F.R. § 390 Enforcement stopped the defendant’s truck to perform a routine commercial provides a constitutionally adequate substitute for a warrant.

p. 3 scheme; and (3) the implementation of the statutory inspection program perform routine inspections of commercial motor vehicles. 382, 385-397.” The federal motor carrier safety regulations authorize agents to

the United States Constitution. 19 of the State Constitution and the Fourth and Fourteenth Amendments to

is made”; (2) the warrantless inspection is necessary to further the regulatory

Administration, Bureau of Motor Carrier Safety, contained in 49 C.F.R. 107,

pertinent part: scope of that consent. The defendant invoked the protections of Part I, Article § 396.9(a). These regulations define a “commercial motor vehicle” as, in

promulgated by the U.S. Department of Transportation, Federal Highway adopt “the current version of the federal motor carrier safety regulations RSA 266:72-a, I (2004) grants the commissioner of safety authority to

York v. Burger, 482 U.S. 691, 702-03 (1987). Turmelle, 132 N.H. 148, 153 (1989) (citations and quotations omitted); see New

extent he gave limited consent to search his vehicle, Boothby exceeded the opinions for guidance only. search of his vehicle was made without his voluntary consent; and (3) to the exception to the warrant requirement and was pretextual in nature; (2) the administrative search is reasonable if: (1) there is a “substantial government search exception. person could have come to the same conclusion after weighing the testimony.” State v. Plante, 134 N.H. 585, 588 (1991). A warrantless Seavey defer to the trial court’s determinations of credibility unless no reasonable, 147 N.H. 304, 306 (2001). One such exception is the administrative within one of the recognized exceptions to the warrant requirement. State v. A warrantless search is per se unreasonable and invalid unless it comes

We first address the issues under the State Constitution and cite federal State v. Hammell, 147 N.H. 313, 317 (2001) (quotations and citations omitted). unconstitutional because it did not fall within the administrative search

controlling facts determined at the superior court level in the first instance. We motion to suppress the marijuana cigarette and cocaine. “Our review of the superior court’s order is de novo, except as to any

On appeal, the defendant argues: (1) the stop of his vehicle was

search form, which was not the product of coercion. The court denied the credibly,” the trial court also found that the defendant signed a valid consent to scope of the administrative search exception.

p. 4 conclude that Boothby’s stop of the vehicle was reasonable and fell within the disagree.

Boothby’s testimony to be credible. Based upon the trial court’s findings, we after learning that his vehicle was not a commercial motor vehicle. We for commercial wood chipping, over the bed of the truck. The trial court found of the vehicle is valid to determine whether it qualifies as a commercial motor “heavier” dump truck, with a large wooden structure, which is primarily used

exceeded his authority by continuing to detain and question the defendant the weight requirements of the federal motor carrier safety regulations, a stop commercial motor vehicle. In addition, the defendant contends that Boothby pounds. In addition, Boothby observed that the defendant’s vehicle was a was under the minimum weight requirement, and, therefore, was not a

observations and circumstances, reasonably believes that a vehicle falls within as being “in the ballpark of” the minimum weight requirement of 10,001 either the driver or the vehicle registration. Thus, when an officer, based upon stopped the defendant’s vehicle, he exceeded his authority because the vehicle know the exact weight of that vehicle prior to obtaining that information from

designating it as a commercial vehicle; and (2) he estimated the vehicle’s weight carrier safety regulations. Rather, the defendant argues that when Boothby defendant was driving a truck bearing Massachusetts license plates commercial motor vehicle for the purpose of conducting a routine inspection, to the federal motor carrier safety regulations. He also testified that: (1) the

routine commercial motor vehicle inspection pursuant to the federal motor There is no reasonable way for an officer, who is stopping a suspected search. Nor does he dispute that Boothby had the authority to conduct a reasonably believed that it was a commercial motor vehicle for the purposes of motor carrier safety regulations, constitutes a reasonable administrative

Boothby testified that when he stopped the defendant’s vehicle, he vehicle inspection, if properly conducted pursuant to the applicable federal

Here, the defendant does not dispute that a routine commercial motor

49 C.F.R. § 390.5 (2005).

passengers or property when the vehicle highway in interstate commerce to transport

any self-propelled or towed motor vehicle used on a and began conversing with the defendant.

p. 5 crime.” suspicion that the person detained has committed or is about to commit a temporary detention is lawful, however, “if the police have an articulable his vehicle.

be, engaged in criminal activity when Boothby initially approached the vehicle reasonable articulable suspicion that the defendant had been, or was about to trial court’s finding that Boothby’s testimony was credible, we hold that he had

State Constitution in these areas,

that the defendant appeared to be nervous and had bloodshot eyes. Given the

vehicle did not qualify as a commercial motor vehicle, Boothby lacked authority commercial vehicle, we conclude that Boothby had reasonable suspicion to vehicle. The defendant argues that as soon as Boothby ascertained that his looked at the vehicle registration and ascertained that the vehicle was not a questioned the defendant after learning the vehicle was not a commercial motor detain the defendant under the administrative search exception ended when he

Constitution as we do under the State Constitution. (2003); Terry, 392 U.S. at 20-21, we reach the same result under the Federal

Because the Federal Constitution affords no greater protection than the

a strong odor of burnt marijuana coming from inside it. Boothby also observed

than is necessary.

consider whether Boothby exceeded the scope of his authority when he (explaining reasonable articulable suspicion). While Boothby’s authority to taken together with rational inferences from those facts. See Hight, 146 N.H. at 748

regulations, which is to promote motor carrier safety.

In this case, as Boothby approached the defendant’s vehicle, he smelled

tailored to its underlying justification and must be temporary, lasting no longer N.H. 746, 748 (2001). To be constitutional, a Terry stop must be carefully under the administrative search exception to the warrant requirement, we next State v. Hight, 146 articulable suspicion refers to suspicion based upon specific, articulable facts citations omitted); see Terry v. Ohio, 392 U.S. 1, 21 (1968). Reasonable

State v. McKinnon-Andrews, 151 N.H. 19, 22 (2004) (quotations and would undermine the underlying purpose of the federal motor carrier safety

unreasonable as a matter of law. We decline to do so. Such a conclusion any stop of a motor vehicle under the minimum weight requirement is

Having concluded that the initial stop of the defendant’s vehicle was valid

us to narrowly construe RSA 2 p. 6 66:72-a, I, and 49 C.F.R. § 390 and rule that vehicle under the pertinent regulations. In this context, the defendant urges 6

scared, upset, nor intimidated during the police stop.” the police officers, and then consented to a search of the rest of the vehicle. trunk,” the defendant opened the trunk, removed a bag of marijuana, gave it to

resulting in a voluntarily signed consent form.

The defendant asked what would occur if he did not comply and the police them to recover marijuana that was stored at another residence. Id. at 454. at 458. The police officers then asked the defendant if he would accompany officer’s testimony supported the conclusion that “[the driver] appeared neither Id.

after the police officers “informed the defendant that they knew what was in the refused to consent to a search of his vehicle. Patch, 142 N.H. at 454. However, Similarly, in State v. Patch, 142 N.H. 453 (1997), the defendant initially

requested an attorney. Id. found that the driver’s questions and reservations were satisfactorily resolved, interrupted the police officer as he read the consent to search form and was “explanatory rather than coercive in nature” and the trial court reasonably concluded that the police officer’s statement regarding having the vehicle towed the driver to get out of the car. instant case. In that case, a police officer stopped the vehicle and instructed Id. at p. 6 650. We

We recognized that the trial court reasonably found that the police

driver signed a written consent to search her vehicle. Id. that she could not leave because they were going to have her car towed, the going to tow the vehicle and apply for a search warrant. Id. After being told

voluntary. driver initially consented to a search of her vehicle but subsequently preponderance of the evidence, that the consent was free, knowing and Id. at p. 6 649. Once outside of the vehicle, the

exception to the need for both a warrant and probable cause.” of a driver’s consent to search her vehicle in circumstances similar to the In State v. Prevost, 141 N.H. p. 6 647 (1997), we addressed the voluntariness

search. conclusions, however, is de novo. Id. McKinnon-Andrews, 151 N.H. at 22. Our review of the trial court’s legal findings only if they are unsupported by the record or are clearly erroneous. Johnston, 150 N.H. 448, 453 (2004). We will disturb the trial court’s factual determined by examining the totality of the circumstances. Id.; State v.

Id. The voluntariness of the consent is a question of fact

151 N.H. 537, 540 (2004). The State bears the burden of proving, by a

“A voluntary consent free of duress and coercion is a recognized

questions and actions, and confused as to the nature of Boothby’s request for a without his voluntary consent. He asserts he was intimidated by Boothby’s The defendant next argues that the search of his vehicle was made

II. Voluntariness of the Consent presented with the consent form, the trial court found that “it is undisputed

p. 7 did not recall whether the defendant was wearing glasses at the time he was presented, without limitations or conditions. While recognizing that Boothby the form as if he were reading it.” The defendant signed the consent form as

warrant.

“gave the defendant a consent form, and watched the defendant’s eyes follow

would be seizing the vehicle and applying for a search

found that Boothby testified credibly. It also relied upon the fact that Boothby vehicle, and the defendant then gave him a written consent. The trial court [Boothby] was standing.” Boothby declined, asked the defendant to exit the 7

stated:

to the odor of narcotic as he had been trained, then I

“realistic alternative available to [the police].” homeowner at work and obtain a search warrant for the residence was a inside the vehicle and asked Boothby whether he could “just look from where

didn’t feel that he had any options.” When asked what he did next, Boothby

exterior of his vehicle with the dog, and he responded ran the dog, meaning conducting a search of the detection odor canine dog with me in my cruiser. If I

vehicle; and (2) the police officer’s explanation that they would contact the Boothby then testified that the defendant moved some items that were located

vehicle. Boothby testified that the defendant “said no, that he (the defendant) truck or upon his person, he asked the defendant for consent to search the Boothby testified that after the defendant denied having any marijuana in the

residence.

that he could refuse the search and I had a drug

I explained that he (the defendant) did have options,

the defendant to change his position regarding the search of the trunk of the

suggestion of intimidation, coercion, or other unlawful police action.

involuntary.” the defendant’s consent was free, knowing, and voluntary. At the hearing, Here, the trial court found that the State met its burden of proving that

consented to both the search of his vehicle and the search of the other Id. at 459.

458. We noted that: (1) it was the extent of the officer’s knowledge that caused

circumstances, we affirmed the trial court’s finding that there was no

Id. (citation omitted). Thus, based upon the totality of the

“prior refusal does not necessarily invalidate a subsequent consent as consent search “does not necessarily vitiate consent.” Id. at 459. Additionally,

Id. at 458-59. Informing a defendant of viable alternatives to a

We affirmed the trial court’s determination that the defendant voluntarily

search warrant. Id. at 454-55. officer told him that they would contact the homeowner at work and obtain a warrant to search the vehicle. Thus, similar to

p. 8 vehicle’s exterior, which, if positive, would lead to Boothby applying for a consent to a search of his vehicle would result in a canine sniff search of the in response to his own inquiry, the defendant was informed that his refusal to scope of his consent. We disagree.

procedures that would ensue should the defendant choose to do so. Therefore, upon the totality of the circumstances. to specific limitations, and that the search was invalid because it exceeded the

refuse to consent to a search of the vehicle as well as explained the alternative the defendant’s consent was freely, knowingly, and voluntarily given based The defendant argues that his consent to search the vehicle was subject Boothby’s response both informed the defendant that he could continue to indicating that he thought that he had no other options available to him. III. The Scope of the Consent supports the trial court’s finding.

as we do under the State Constitution. and voluntarily given), we reach the same result under the Federal Constitution Bustamonte, 412 U.S. 218, 227 (1973) (holding that consent must be freely State Constitution in these areas, see Prevost, 141 N.H. at 650; Schneckloth v. invalidated his subsequent consent as involuntary. 22. Because the Federal Constitution affords no greater protection than the

Thus, we conclude that the record supports the trial court’s finding that

voluntary. The defendant’s initial refusal was accompanied by a statement See Hammell, 147 N.H. at 317. come to the same conclusion after weighing the testimony. Here, the record court’s determination on credibility unless no reasonable person could have the defendant’s testimony. See Patch, 142 N.H. at 458. We defer to the trial court in this case found the police officer’s testimony to be more credible than see Patch, 142 N.H. at 459. Moreover, like the trial court in Patch, the trial

conclude that either the defendant’s exit from the vehicle or his prior refusal

exit the vehicle before the written consent to search form was reviewed and Furthermore, similar to the driver in Prevost, the defendant was asked to

based upon the totality of the circumstances, that the defendant’s consent was Prevost, 141 N.H. at 650; Patch, 142 N.H. at 459. concluded that Boothby’s response was explanatory rather than coercive. See

In the instant case, the record supports the trial court’s determination,

was having difficulty reading it.” that the defendant did not indicate he did not understand the form or that he his camp in Brownfield constructing a concrete slab.

p. 9 compensated. The defendant answered that he was working for his family at

defendant responded at first with “a blank stare” and then said, “[N]o.” Officer

also asked the defendant who he was working for and whether he was being whether the vehicle was within the federal motor carrier safety regulations. He bloodshot.” Officer Boothby first asked the defendant questions to determine 9

asked him if he had any marijuana in the truck or on his person. The

vehicle.” He observed that the defendant “was nervous and his eyes were

Officer Boothby then told the defendant that he smelled marijuana, and court’s ruling that the defendant’s consent was voluntary.

testimony,

dissented.

“could smell a strong odor of burnt marijuana coming from inside of the approached the truck, the defendant put his window down and Officer Boothby Officer Boothby testified at the suppression hearing that as he

limit the scope of the consensual search. However, I would reverse the trial ruling that the stop of the truck was justified and that the defendant did not come to the same conclusion as did the trial court after weighing the DUGGAN, J., dissenting. I agree that we should affirm the trial court’s did not exceed the scope of the consent granted by the defendant. of the search, we hold that a reasonable person would determine that Boothby BRODERICK, C.J., and DALIANIS, J., concurred; DUGGAN, J., the defendant had consented to it. was objectively reasonable for the officers conducting the search to believe that Affirmed. granted, we ask whether under the circumstances surrounding the search, it the Federal Constitution. Florida v. Jimeno, 500 U.S. 248, 251 (1991), we reach the same result under the State Constitution with respect to the scope of a consent search, see id.; Because the Federal Constitution offers no greater protection than does

court’s determination of credibility. Because a reasonable person could have defendant. While the defendant testified to the contrary, we defer to the trial No such limitations appear in the written consent form that was signed by the (2002). Where the trial court found that the defendant did not limit the scope

To determine whether a search has exceeded the scope of the permission

finding that the defendant did not limit the scope of the search of his vehicle.

Hammell, 147 N.H. at 317, we will not disturb the trial court’s

conditions, either verbally or in writing, on his consent to search the vehicle. Boothby testified that the defendant did not place any limitations or defendant of viable alternatives . . . does not necessarily vitiate consent.”

p. 10 he found a baggie containing cocaine.

search warrant.” him that they would apply for a search warrant.” We said that “[i]nforming the

standing.” Officer Boothby stated that was not “acceptable to [him].” and arrested the defendant for transporting drugs. In the defendant’s pocket, vehicle and asked [Officer Boothby] if [he] could just look from where [he] was

459. Thus, “nervous,” read the form and signed it. totality of the circumstances. Patch did not hold that “[i]nforming the defendant of viable coercion, express or implied, is a question of fact to be determined from the Id. at

trained, then [Officer Boothby] would be seizing the vehicle and applying for a either a warrant or probable cause. officers what they would do if he refused to cooperate, [and the officers] told vehicle with the dog, and he responded to the odor of narcotic as he had been In State v. Patch, 142 N.H. 453, 459 (1997), the defendant “asked the cruiser. If [he] ran the dog, meaning conducting a search of the exterior of [the] Watson, 151 N.H. at 540. disturb the trial court’s finding of consent if it is not supported by the record. not constitute consent.” other officer arrived, Officer Boothby searched the truck, found the marijuana State v. Pinder, 126 N.H. 220, 224 (1985). We will The defendant then “moved some jackets and other things that were inside the evidence. Watson, 151 N.H. at 540. “Moreover, submission to a search does The burden is on the State to prove voluntariness by a preponderance of the

top to bottom,” including “what [he was] asking to search” and “that [the Whether the consent was in fact voluntary or was, rather, the product of gave the defendant a consent form. Officer Boothby explained the form “[f]rom State v. Watson, 151 N.H. 537, 540 (2004). A voluntary consent is a recognized exception to the requirement for

search, the officer “had a drug detection odor canine dog with [him] in [his]

Officer Boothby then called for another officer to assist him. After the defendant appeared “very anxious” and seemed to want the search to be brief.

truck. Outside, behind the truck and in front of the cruiser, Officer Boothby At some point, Officer Boothby asked the defendant to get out of the

the search.” Officer Boothby explained that, if the defendant refused the

As Officer Boothby explained this canine search procedure, the

Officer Boothby “explained that he did have options, that he could refuse

but indicated “that he didn’t feel that he had any options.” Boothby asked for consent to search the vehicle. The defendant said, “[N]o,” voluntary consent. p. 11 Submission to a search in the face of such an assertion does not constitute to making clear that the defendant’s refusal to consent would not be honored.

pursuant to a warrant. The officer went beyond merely providing information

and request that a narcotics detection dog sniff [her] luggage” (quotation finding of voluntary consent.

necessary for a search to be conducted. consent, to conduct a canine sniff and then seize the truck and search it clear message to the defendant – that the detention would continue as long as particular situation, getting the defendant out of the truck communicated a

merely a submission to lawful authority.” her luggage, told her he would “contact a Narcotics Unit at [her] destination unit to search.” The court held that his “alleged consent to search his car was these facts, therefore, the detention of the defendant weighs heavily against a

effectively told the defendant that he had the authority, without the defendant’s conducted regardless of the defendant’s refusal to consent. The officer custody may weigh heavily against a finding of valid consent.” In this 41, we recognized “that, in some situations, the fact that [a] defendant is in had asked the defendant to get out of the truck. In Watson, 151 N.H. at 540- Moreover, by the time the defendant signed the consent form, the officer

defendant at an airport and, when defendant refused to consent to a search of . . . options: he could either allow the search, or he could wait for the canine search the trunk”);

factor in considering whether any subsequent consent is involuntary. In submitted to a search only after the officer indicated that a search would be was advised that the K-9 unit would be called to conduct a sniff check.” This case is thus not governed solely by Patch. Here, the defendant under circumstances in which the consent only occurred after the defendant

App. 1981) (defendant’s consent was not voluntary where officer approached trooper] required [the defendant] to get out of his car and told him he had two State v. Lanxon, 393 So. 2d 1194, 1194-95 (Fla. Dist. Ct. call a canine unit and stated that they would stay there until they were able to (defendant’s written consent was not voluntary where the police “threatened to also Monroe v. State, 578 So. 2d 847, 848-49 (Fla. Dist. Ct. App. 1991) to consent to a search will result in a canine search of the car is a critical See

[could not] be said that [the defendant] voluntarily consented to be searched So. 2d 696, 698 (Fla. Dist. Ct. App. 1994), the court acknowledged that “it

“repeatedly indicated he did not want the trooper to search [his] car, [the v. Woolfolk, 3 S.W.3d 823, 832 (Mo. Ct. App. 1999), where the defendant

Other courts have recognized that telling the defendant that his refusal

“does not necessarily vitiate consent.” Id. alternatives” is an acceptable police practice, but rather held that the practice consent search.

p. 12 satisfactorily resolved” by the officer’s explanation of the alternative to a been a passenger.

consent form “shortly” after “her questions and reservations [had been] placed in custody and the police sought to search the vehicle in which he had

rather than coercive in nature.”

Id. at 649, 650. Here, however, the officer testified that, when scrupulously honor the suspect’s desire to remain silent,”

nor intimidated during the police stop” and “did not hesitate” in signing the probation/parole officer and then pursued by local police, the defendant was Prevost, the officers testified that the driver “appeared neither scared, upset, whether a subsequent consent is voluntary.” this case, there exist additional facts in each case that distinguish the two. In Moreover, although Prevost shares some facts similar to those present in

voluntary. Id. at 650. obvious and thus, given the totality of the circumstances, the consent was not that the police officer’s “statement about having the car towed was explanatory not signing was not a viable alternative. The inevitability of the search was Without any discussion or analysis, we affirmed the trial court’s conclusion were going to tow her vehicle and apply for a search warrant.” Id. at 649. show that the signature was obtained by coercion.” consent to search the vehicle, the police “explained to [the driver] that [they] that a written consent form was signed is not dispositive when circumstances person in custody “exercises his option to cut off questioning, the police must Id. at 648-49. However, prior to obtaining the driver’s insufficient to overcome the coercion implicit in the circumstances. “[T]he fact

after the defendant was involved in a physical confrontation with his former has recognized that “an initial refusal is an important factor in assessing The majority relies upon State v. Prevost, 141 N.H. 647 (1997). There, assessing the voluntariness of his subsequent consent. initial refusal to consent to the search should be given significant weight in

the interrogation must cease until an attorney is present.” 956. By the time the form was signed, the defendant could only conclude that

consistent with the settled law regarding custodial interrogation. There, if a refuse to consent and the defendant signed a consent form, these facts are While it is true that the officer here advised the defendant of his right to

voluntariness of his consent than a mere passing reference. At least one court

N.H. 608, 613 (2003) (quotation omitted). Similarly, here, the defendant’s

N.H. 438, 442 (1992), and, “[i]f the individual states that he wants an attorney,

953, 956 (Ill. App. Ct. 1992). Making an initial refusal “important” is

N.H. 249, 259 (1990), it should carry more weight in the analysis of the not, standing alone, invalidate his subsequent consent, see State v. Green, 133 Finally, while the defendant’s initial refusal to consent to the search does not voluntary.

p. 13 circumstances in this case as demonstrating that the defendant’s consent was

his consent. These distinctions are significant in considering the totality of the vehicle, and then, only after exiting the vehicle, the defendant considered giving after which some time elapsed and the officer asked the defendant to exit the

search could be conducted by simply looking in from the outside of the vehicle, defendant. Officer Boothby sufficient justification to detain and probably arrest the

search would result in a canine search of the car, the defendant asked if the stare.” After Officer Boothby told the defendant that his refusal to consent to a truck. The odor of marijuana, while irrelevant to the issue of consent, gave about the presence of marijuana, the defendant responded with “a blank

understandable that Officer Boothby persisted in seeking consent to search the defendant hesitated in giving his consent. When Officer Boothby inquired

admissibility of the evidence. than consent, or any exceptions to the exclusionary rule, to justify the argued the applicability of any exceptions to the warrant requirement, other State v. Whiting, 127 N.H. 110, 111-12 (1985). The State, however, has not

See generally Johnson v. United States, 333 U.S. 10, 13 (1948);

Of course, given the strong odor of burnt marijuana, it is completely fully explained to the defendant the alternative to a consent search, the the officer’s testimony was that throughout the encounter, and even after he the encounter and was “nervous” when given the consent form. Furthermore,

also testified that the defendant appeared “very anxious” during the course of he approached the defendant’s vehicle, the defendant appeared “nervous.” He