State of New Hampshire v. Christopher Andrew Rodriguez

II. Whether the defendant’s mobile telephone was lawfully seized during a search incident to arrest.

III. Whether the defendant’s mobile telephone was lawfully searched pursuant to a search warrant for evidence including photographs, social media messages, text messages, call logs, and Uber data.

The defendant was arrested on October 16, 2020. DB 9. 1 On October 19, 2020, he was arraigned on 33 total counts as follows: (1) Aggravated Felonious Sexual Assault (one count); (2) Manufacture of Child Sexual Abuse Images (ten counts); (3) Possession of Child Sexual Abuse Images (seven counts); (4) Felonious Sexual Assault (three counts); (5) Attempted Aggravated Felonious Sexual Assault (one count); (6) Certain Uses of Computer Prohibited (one count); (7) Second Degree Sexual Assault (Strangulation) (two counts); (8) Sexual Assault (Contact) (six counts); (9) Prohibited Sales of Alcohol (one count); and (10) Interference with Custody (one count). DA 51.

On August 30, 2021, the defendant moved to suppress evidence obtained by the Portsmouth Police Department after his arrest, including his mobile telephone. DA 36-49. The defendant argued that the police unlawfully arrested him without a warrant because they did not observe him commit a misdemeanor in their presence, and therefore the seizure of his phone was unlawful and should be suppressed as “fruit of the poisonous tree” pursuant the Federal and State Constitutions. DA 36; See also DA 47- 48. The defendant acknowledged that, under RSA 594:10, I, peace officers are authorized to make warrantless arrests for misdemeanor offenses, D A 41, but argued that statute was inapplicable because the police had neither probable cause to believe he provided alcohol to a minor, DA 41-43, nor probable cause to believe he would destroy or conceal evidence if not arrested immediately. DA 44.

The State filed objected to the defendant’s motion to suppress on September 15, 2021. DA 51-67. The State maintained that the phone evidence was admissible under the inevitable -discovery doctrine. DA 65- 66. The State argued that, because the underaged victim voluntarily told the police that she engaged in sexual activity with the defendant, an adult, shortly after he was arrested for providing alcohol to a minor, regardless of the legality of that arrest, the police inevitably would have taken him into custody, discovered and seized his phone, and obtained a search warrant to examine its contents. Id.

On August 22, 2022, the trial court (St. Hilaire, J.) held a hearing on the defendant’s motion to suppress. At the hearing, witnesses testified that at roughly 8:00 p.m. on Friday, October 16, 2020, three uniformed patrol officers from the Portsmouth Police Department arrived at the Sheraton Hotel in downtown Portsmouth to investigate a tip from the hotel staff about a 15-year-old girl from Dover, New Hampshire, who had been reported missing by her mother. Tr. 5 -6, 20. The staff directed them to room 401. After waiting to give their supervisor time to arrive, the officers knocked on the room door. Tr. 6. A man later identified a s the defendant opened it. Tr. 21. The officers asked if they could speak with him. Tr. 21. He agreed and stepped out into the hallway. Tr. 21. Through the doorway the officers saw a female in the room who fit the missing girl’s description. Tr. 28. She was lying in bed apparently unclothed under a bedsheet, and alcohol containers were scattered in the room, including beside the bed. Tr. 7, 12, 23 -24, 30. The girl was awake but appeared unresponsive and intoxicated. Tr. 7; 12 -13; 29. An officer asked whether she had consumed alcohol, and she said she had. Tr. 7. She put on clothing, and an officer saw re d marks on her body. Tr. 7. The officer walked her down to his patrol car. Tr. 8. Once they reached the vehicle, she asked him to go back to the room to retrieve a game ticket and her pet guinea pig, which she had allowed to roam free in the room. Tr. 17; DA 61. The officer went back to the room to find the guinea pig and take photographs of the room’s interior in anticipation of applying for a search warrant. Tr. 8, 14, 17.

A second officer in the hotel hallway spoke with the defendant. Tr. 22. The officer smelled alcohol on his breath, and the defendant said that he had a few drinks but not many due to a stomach issue. Tr. 22; 29. The officer identified him as the defendant with his California driver’s license. Tr. 21. The defendant told the officer that he had come to New Hampshire from California, and that he had originally planned to go to Boston with two friends, but they had backed out and he made the trip alone. Tr. 23. He told the officer he first met the girl (“the victim, ” hereinafter) at a bus station in Dover and became friends with her because he did not know anyone in the area. Tr. 23. He said he assumed she was at least 18 years old, as they had been served alcohol at a bar. Tr. 32. At 8:46 p.m., the officer arrested him for providing alcohol to a minor. 2 Tr. 42.

2 RSA 179:5, I, states, in pertinent part, that “[n]o... person, shall sell or give away or cause or allow or procure to be sold, delivered, or given away any liquor or beverage to a person under the age of 2 1...”

The officer searched the defendant incident to the arrest and found a mobile telephone, vape pen, wallet, and a bottle opener on his person. Tr. 23-24, 35, 42. The police transported him to the Portsmouth police station, secured his mobile phone and other personal effects, and initiated the booking process. Tr. 44, 50.

At approximately 9:30 p.m., the police telephoned a detective who was experienced in crimes against persons to investigate the case. Tr. 57; DA 59. The detective spoke with officers from both the Portsmouth and Dover police departments, who told her that the victim had left her home a few days ago after packing some clothing and leaving her mobile phone and a note for her mother. Tr. 59; DA 52, 58. The note said she was going to meet a person named Chris, she would be gone a few days, and not to worry. Id. Dover police officers spoke with the victim at the Portsmouth police station when she arrived. Tr. 60, 86, 125; DA 59. They told the detective the victim had said she purchased alcohol with the defendant and had sex with him. Id.

When the detective arrived at the police station between 11:00 p.m. and midnight, Tr. 123, 126, the victim was crying in the station lobby. Tr. 58; DA 60. The detective talked to her for a few minutes to calm her down and then interviewed her. Tr. 58 -61. During the interview, the victim said she met the defendant on social media and told him her age and that she had mental-health problems. Tr. 63; DA 61 -2. They made plans about two weeks earlier for him to come from California. Id. She met him at the Dover train station, and they called an Uber driver to take them to Portsmouth, stopping along the way to pick up alcohol. Id. They had sex in the hotel room and along the route on a walk together outside, and the defendant urinated in her mouth. Tr. 63 -64. The interview ended somewhere between 1:30 a.m. and 2:00 a.m. Tr. 123. The detective next attempted to speak to the defendant. Tr. 113. She read him his Miranda rights and he declined to speak with her other than inquiring about the charges he faced. Tr. 65. The detective told him he was charged with providing alcohol to a minor but that she was assessing felony charges against him. Tr. 66.

Based on the interview with the victim, Tr. 123-124, the detective decided to charge the defendant with felonious sexual assault, aggravated felonious sexual assault, certain uses of computer prohibited, and misdemeanor charges. Tr. 108. She drafted a search warrant request (and a supporting affidavit) for, among other things, the defendant’s mobile phone, “to include photographs, social media messages, text messages, call logs, and Uber data.” DA 78; see also Tr. 71, 124. The court granted the request at about 8:00 a.m. on October 17, 2020. DA 76; see also Tr. 70. The defendant’s mobile phone contained 16 videos of the defendant and the victim together in Portsmouth. The videos range from several seconds to nearly 20 minutes in length. DA 71 -74. They show the defendant having sex with, hitting, choking, and urinating on the victim, as well as drinking alcohol with her. The police were also able to access social-media correspondence between the two on Instagram. DA 70. In the messages, they discussed their respective ages and mental -health issues, sexual activity they planned to engage in together, murders they planned to commit together, and the defendant’s trip to New Hampshire. DA 70-1. The defendant’s Instagram account included six graphic photographs of the victim exposing herself. DA 71.

The trial court denied the defendant’s motion to suppress on September 8, 2022. NOA at 5-14. Regarding the legality of the defendant’s arrest, although the State conceded the arrest was unlawful at the suppression hearing, Tr. 137, the trial court found that “the illegality of the arrest is not as obvious as the State’s concession implies.” NOA 6. Taking note of subsection (c) of the Arrest Without a Warrant statute, RSA 594:10, I, the trial court explained that: The juvenile was found in a hotel room with Defendant, with beer bottles and other alcohol containers scattered across the room. She told the officers that she had consumed alcohol that day, and the officers’ observations were consistent with that report. In addition, Defendant told the officers that he had only had a few drinks due to a stomach problem, which would be inconsistent with the number of empty alcohol bottles in the room if he was the only one drinking. The fact that the girl was underage and missing may have also played a role in giving the officers probable cause to believe Defendant would have attempted to conceal evidence of the offense if he was not immediately arrested. The juvenile’s state of apparent disorientation may have also led the officers to conclude that Defendant might cause her further personal injury if they did not intervene. These factors collectively indicate that the officers may have had probable cause to arrest Defendant without a warrant for the misdemeanor Prohibited Sales charge under RSA 594:10, I(c).

NOA 10. Consequently, the court did not adopt the State’s concession, but instead assumed without deciding that the defendant’s arrest and the seizure of his phone were unlawful. NOA 10, 11.

The court concluded that “[d]ue to the search warrant providing an independent source for the search of the phone, and the inevitability of discovery of the evidence found on the phone, the purposes of the exclusionary rule are not undermined by admitting the evidence at issue here.” NOA 13 (citation omitted). The court found that the search warrant for the defendant’s phone was based on statements the victim made to the police and thus was independent of his arrest or his phone’s seizure; moreover, given what the victim told the police, the defendant inevitably would have been arrested on felony charges and his phone seized even if he had not been arrested at the hotel on a misdemeanor charge. NOA 12-13. On May 2, 2024, based on a set of stipulated facts, the trial court found the defendant guilty of: (1) two counts of Aggravated Felonious Sexual Assault; (2) nine counts of Manufacture of Child Sexual Abuse Images; (3) three counts of Possession of Child Sexual Abuse Images; (4) three counts of Felonious Sexual Assault; (5) one count of Certain Uses of Computer Prohibited; (6) two counts of Second Degree Sexual Assault (Strangulation); (7) five counts of Second Degree Sexual Assault (Contact); (8) one count of Prohibited Sales of Alcohol; and (9) one count of Interference with Custody. DA 74-75.

On May 24, 2024, the trial court sentenced the defendant to concurrent terms of 7 to 14 years’ imprisonment for Aggravated Felonious Sexual Assault; concurrent terms of 5 to 10 years for Manufacture of Child Sexual Abuse Images; concurrent term s of 3.5 to 7 years for Certain Uses of Computer Prohibited and Second Degree Sexual Assault (Strangulation); concurrent terms of 12 months for Second Degree Sexual Assault (Contact); and concurrent terms of 12 months for Prohibited Sales of Alcohol and Interference with Custody. The defendant received suspended sentences for his convictions for Felonious Sexual Assault and Possession of Child Sexual Abuse Images. NOA 11, et seq.; see DB at 8, n. 2. This appeal followed.

The trial court’s order should be affirmed. It correctly ruled that, even assuming the police lacked probable cause to arrest the defendant under RSA 179:5, I, the independent source and inevitable discovery exceptions to the warrant requirement applied.

The search warrant was based on the minor victim revealing to Portsmouth and Dover police officers that she had sex with the 24-year-old defendant. The victim’s statements were independent of the defendant’s initial arrest and would have inevitably led to his arrest, a search of his person incident to arrest, and a warrant to search his hotel room and cellphone. The defendant’s claim that the victim’s statements were not truly independent of his arrest because certain Instagram messages discovered on his phone might have been obtained from other sources is a non -sequitur. The Instagram messages had nothing to do with what the victim told the police, and it is irrelevant that there might have been more than one source of the messages.

Regardless, even if the independent source and inevitable discovery exceptions did not apply, probable cause existed to arrest the defendant without a warrant under RSA 594:10, I(c) for providing alcohol to a minor, in violation of RSA 179:5, I. This Court should reach this issue because the trial court assumed the non-existence of probable cause below without definitively resolving whether it actually existed. This Court also has before it a set of stipulated facts from which it can determine as a matter of law whether probable cause existed to arrest the defendant under RSA 594:10, I(c) for providing alcohol to a minor in violation of RSA 179:5, I.

Those stipulated facts below reveal that a hotel employee contacted the police to report seeing a missing 15-year-old with the defendant. When the officers went to the hotel room, the defendant answered the door and the police observed the victim who was lying on the bed, not fully clothed, and appeared intoxicated. Several beer bottles were observed in the room and the victim reported that she had been drinking. The police knew the defendant was from California, learned he was in New Hampshire alone, and had found him in a compromising situation with a missing 15 -year old intoxicated female who was not fully clothed. These facts alone established probable cause to believe the defendant gave alcohol to a minor in violation of RSA 179:5, I and that the defendant would promptly attempt to leave New Hampshire and perhaps return to California or go somewhere else unless he was immediately arrested.

Probable cause therefore existed under RSA 594:10, I(c) to arrest the defendant without a warrant at the hotel room and the seizure of his phone incident to arrest was lawful. The defendant’s speculation that the Portsmouth police’s subjective motivation for seizing his phone was to assist the Dover police with their missing-persons investigation is irrelevant to the lawfulness of the seizure.

The trial court was correct in ruling that, assuming the police lacked probable cause to arrest the defendant, the inevitable discovery and independent source exceptions to the warrant requirement applied because the search warrant for the phone was predicated on information the police obtained from a source that was independent of the defendant’s arrest and the seizure of his phone.

As this Court has explained, under the independent source doctrine, “information which is received through an illegal source is considered to be cleanly obtained when it arrives through an independent source.” State v. Robinson, 170 N.H. 52, 57 (2017) (internal quote marks, citation omitted). “The independent source doctrine teaches us that the interest of society in deterring unlawful police conduct and the public interest in having juries receive all probative evidence of a crime are properly balance d by putting the police in the same, not a worse, position than they would have been in if no police error or misconduct had occurred.” Id. (quoting Nix v. Williams, 467 U.S. 431, 443 (1984)).

Here, as the trial court found, NOA 12, the search warrant for the defendant’s phone was based on information the victim provided the police. The defendant does not contest that both the Dover and Portsmouth police spoke with the victim, and she voluntarily told the officers she engaged in sexual activity with him. The defendant instead attacks the trial court’s finding that the police inevitably would have discovered the phone evidence because, based on what the victim told the officers, they inevitably would have arrested him, seized his phone, and obtained a search warrant to examine its contents. DB 27 -28. Cf. State v. Holler, 123 N.H. 195, 200 (1983) (explaining that under the inevitable-discovery doctrine, “illegally seized evidence is admissible if a search was justified, and the evidence discovered illegally would inevitably have come to light in a subsequent legal search.”) (citations omitted).

The defendant contends the trial court’s finding was “merely guess - work because one cannot say what evidence, if any, the police would have found on [his] phone” had events not transpired as they did. DB 28. But the possibility the defendant might have destroyed or hidden the evidence on his phone had he not been immediately arrested and his phone seized does not undercut the court’s inevitable-discovery analysis. See United States v. Jones, 149 F.3d 715, 716 -17 (7th Cir. 1998) (noting that the inevitable- discovery doctrine would likely apply when police violated the Fourth Amendment knock-and-announce rule because “an occupant would hardly be allowed to contend that, had the officers announced their presence and waited longer to enter, he would have had time to destroy the evidence”) (citing Segura v. United States, 468 U.S. 796, 816 (1984)). To suppress the phone evidence on the ground that the defendant might have engaged in spoliation would put the police in a worse position than if no assumed police error had occurred. See Robinson, 170 N.H. at 57. This Court has not had occasion to decide the quantum of probability of discovery that the State must show to satisfy the inevitable -discovery doctrine, and there is a divergence in federal -court authority on the issue.

See State v. Davis, 174 N.H. 596, 607 -608 (2021). 3 The Court need not decide the matter here, however. Given that the police arrested the defendant on a misdemeanor charge, there can no question they would have done so on a felony charge upon learning from the victim, as they did when they reached the station house, that he had engaged in sexual activity with her. See DA at 70. At that point, the police undoubtedly had probable cause to arrest him. State v. Vachon, 130 N.H. 37, 40 -41 (1987) (holding that police had probable cause for warrantless felony arrest of the adult defendant based on statements of 14 -year-old sexual assault victim). In short, the defendant would have been arrested one way or the other and his phone would have been seized pursuant to his inevitable arrest, and it would have been searched pursuant to the search warrant that was issued based on the victim’s statements to the police. The defendant argues that the evidence the police obtained from his phone was “not truly independent” of his arrest and his phone’s seizure because the police could have obtained Instagram messages between him and the victim through sources other than his phone. DB 29. That is a red herring. Whether the defendant’s Instagram messages were available from a source other than his phone says nothing about the independence of the victim’s statements.

In any event, it is beside the point whether there were other ways to obtain the Instagram messages, as the police had a valid warrant to examine the contents of his phone. Further, the victim informed the police that she met the defendant on Instagram at the same time she told the police that she had sex with the defendant. Accordingly, even if the defendant’s phone was illegally seized incident to arrest for providing the victim with alcohol, the phone inevitably would have been seized and searched when the defendant was arrested for having sex with the underage victim. Moreover, contrary to the defendant’s suggestion, DB 28, the search warrant the police obtained was not limited to Instagram messages (indeed, it did not mention Instagram). It was much broader. Social-media messages (such as Instagram messages) were merely one category of evidence for which the warrant authorized the police to search, including pho tographs, text messages, call logs, and Uber data. DA 78. Consequently, regardless of the existence of an alternative source for his Instagram messages, the police had ample authority to examine the phone for other types of evidence, including the images the search turned up.

Similarly misplaced is the defendant’s reliance on United States v. McRoy, 2018 U.S. Dist. LEXIS 24176 (N.D. Ga.) (Jan. 22, 2018), an unpublished 2018 Report and Recommendation issued by a magistrate judge in the U.S District Court for the Northern District of Georgia. There, officers stopped a vehicle with two occupants whom they suspected of engaging in prostitution (one a minor) and the defendant, McRoy. The officers arrested all three occupants despite having no credible evidence that McRoy was engaged in criminal activity. Id. at *4-5, *12-14. Two mobile telephones found on McRoy’s person were seized, and the officers obtained search warrants to examine their contents on the ground that the phones were linked to prostitution by the two other occupants of the vehicle. Id. at *17.

The magistrate judge recommended that the district court grant McRoy’s motion to suppress the phone evidence on the ground that the officers lacked probable cause to arrest him. Id. The government did not contend that any exception to the Fourth Amendment exclusionary rule applied to the searches of the phones. Id. a *16. The court granted the motion. United States v. McRoy, 2018 U.S. Dist. LEXIS 23954 (N.D. Ga., Feb. 14, 2018) (unpublished).

McRoy is inapt. Here, the police had probable cause to arrest the defendant. Moreover, unlike McRoy, the basis for the search warrant here−what the victim told the police about the defendant’s actions−was independent of, and straightforwardly distinguishable from, the defendant’s arrest and the search of his phone. Cf. Wong Sun v. United States, 371 U.S. 471, 487-88 (1963) (“We need not hold that all evidence is ‘fruit of the poisonous tree’ simply because it would not have come to light but for the illegal actions of the police. Rather, the more apt question in such a case is whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.”) (citations omitted). Accordingly, McRoy does not support the defendant’s position.

In summary, the victim, who was 15, told the police that she met the defendant, who was 24, online, and had sex with him in the hotel where they were found. Thus, regardless of the legality of the defendant’s arrest for giving alcohol to a minor, the defendant would have been arrested for having sex with the victim and his phone would have been seized. Therefore, the trial court did not err in concluding that, if the warrant requirement were violated in this case, the evidence would be admissible under the independent source and inevitable discovery exceptions. If this Court disagrees, however, then the threshold issue of whether there was probable cause to arrest the defendant must be resolved.

Before trial, the defendant moved to suppress evidence on the ground that the police did not have probable cause to arrest him and seize his phone without a warrant. See DA at 36-49; N.H. R. Crim. P. 15(b)(2). In denying the motion to suppress, the superior court observed that the police likely had probable cause to arrest the defendant without a warrant and did not accept the State’s concession to the contrary. NOA at 9-10. Instead, the superior court assumed without deciding that the police lacked probable cause to arrest the defendant but nonetheless found an exception to the warrant requirement applicable. NOA at 10-14. Accordingly, the superior court never definitively resolved the question of whether probable cause existed for the arrest, the defendant never requested “sufficient findings and ruling s” on the issue, N.H. R. Crim. P. 15(b)(2)(C), and the defendant never moved to reconsider or otherwise request a more definitive ruling on this critical threshold issue. 4 “Because of the important constitutional issues implicated in a motion to suppress, ” this Court has stressed the importance of “sufficient findings of fact and rulings of law to permit meaningful appellate review.” State v. Tarasuik, 160 N.H. 323, 327 (2010).

Accordingly, if this Court were to conclude that the trial court erred in applying an exception to the warrant requirement, it would still need to be determined whether the police lacked probable cause to arrest the defendant. This Court should decide the probable cause question as a matter of law on appeal because the record is adequately developed for it. Cf. State v. Newcomb, 161 N.H. 666, 673 (stating that this Court “frequently conduct[s]” probable cause analyses “without the issue first being decided in the trial court” in the context of excising information from a search warrant affidavit and analyzing the remaining information to determine whether the affidavit still establishes probable cause). Before this Court is a stipulated set of trial facts from which the Court can evaluate whether the police had probable cause to arrest the defendant without a warrant under RSA 594:10, I(c), for violating RSA 179:5, I. Similar to a search warrant affidavit, the stipulated trial facts provide this Court with a set of undisputed facts upon which probable cause can be ruled on as a matter of law. Cf. Newcomb, 161 N.H. at 673. Further, the defendant has fully briefed the threshold probable cause issue. DB at 19-23, 24-26. Additionally, many of the facts the trial court relied on to suggest that the police had probable cause to arrest the defendant, though derived from the facts adduced at the suppression hearing, see NOA at 9-10, were similarly stipulated to by the parties at trial, see DA at 69-70. Therefore, the record is adequately developed for this Court to decide the probable cause issue on appeal.

Based on the stipulated record below, this Court should rule that the police had probable cause to arrest the defendant and lawfully seized his phone incident to that arrest.

RSA 594:10, I(c), authorizes an officer to arrest a suspect based on “probable cause to believe that the person to be arrested has committed a misdemeanor or violation, and, if not immediately arrested, such person will not be apprehended, will destroy or conceal evidence of the offe nse, will cause further personal injury or damage to property[.]” RSA 594:10 I(c). “Probable cause exists when the facts and circumstances presented warrant a person of reasonable caution and prudence in believing that the arrestee has committed an offense. In determining probable cause to arrest, [courts] are dealing only with reasonable probabilities and not the amount of evidence required to sustain a conviction or to make out a prima facie case.” State v. Crotty, 134 N.H. 706, 709 (1991) (citations, internal quotation marks omitted).

The defendant’s claim that the police lacked probable cause to arrest him, DB 22, is meritless. The police arrested the defendant for violating RSA 179:5, I. That statute broadly prohibits any “person” from “sell[ing] or giv[ing] away or caus[ing] or allow[ing] or procur[ing] to be sold, delivered, or given away any liquor or beverage to a person under the age of 21[.]” The facts and circumstances the police confronted at the hotel before the defendant’s arrest would warrant a prudent person in believing the defendant violated RSA 179:5, I.

The stipulated trial facts reveal that a hotel employee contacted the police to report seeing a missing 15 -year-old with the defendant, an adult male. DA at 69. When the officers went to the hotel room, the defendant answered the door, and the police observed the victim who was lying on the bed and appeared intoxicated. Id. Several beer bottles were observed in the room, the victim was only partially clothed, and the victim reported that she had been drinking. Id. The defendant, whom the police knew t o be a 24- year-old man from California, was the only other person in the hotel room. See id. Those facts were sufficient to warrant a reasonable person in believing that the defendant gave the victim, or allowed her to be given, alcohol in violation of RSA 179:5, I.

Moreover, a prudent person would be warranted in believing the defendant was a flight risk and would not be apprehended unless arrested. He was a 24 -year-old man from California in New Hampshire alone, with no apparent connection to the area, and was discovered in a hotel room with a partially naked5 and intoxicated 15-year-old female. Even the most unsophisticated suspect would have understood that he had been caught in a highly compromising situation. He resided out of state thousands of miles away; was transient in New Hampshire; had few personal possessions; and clearly had the ability to flee, as he had recently flown from California to Boston and then travelled to New Hampshire.

For similar reasons, a prudent person would be warranted in believing the defendant would destroy or conceal evidence if he were not arrested immediately. To avoid a criminal conviction and record, the defendant would have had a strong motive to destroy items such as alcohol containers, credit card or other receipts, photographs and videos, or incriminating written communications in the hotel room or on his person. The defendant suggests that there was no reason to believe he was a flight risk or would destroy evidence because he showed the police his California driver’s license when he spoke with them in the hallway. DB 20- 21. Providing identification to the police, however, d oes not alter the fact that there was a reasonable probability that the defendant would have successfully fled the jurisdiction or destroyed or concealed evidence to mitigate his legal exposure. Similarly, the defendant also conjectures that instead of arresting him, the police could have seized the hotel room to prevent him from destroying evidence and then sought a search warrant for the room. The room, however, was not the only source of evidence vulnerable to destruction. His mobile phone, for example, could (and did, as it turned out) contain evidence of him providing alcohol to a minor. In any event, as a practical matter, the defendant could have fled the jurisdiction by the time the police were able to obtain a search warrant, especially since the events at issue took place on a Friday night. Cf. State v. Pappalardo, 2015 N.H. LEXIS 287, *3 (Mar. 13, 2015) (unpublished) (upholding warrantless arrest for misdemeanor offense driving while under the influence of drugs, finding that “ because the incident occurred on a weekend, when the courts are closed, it is possible that a warrant could not have been timely obtained”). 6

The defendant also contends that the police unlawfully seized his cellphone because “they did not have probable cause to believe that [his] phone was evidence of any violation of New Hampshire law.” DB 25. Again, he is mistaken.

As this Court has recognized, “[a] lawful arrest justifies reasonable latitude of both the search and the seizure of things found on or in the possession of the defendant.” State v. Niebling, 176 N.H. 667, 670 (2024) (citations omitted). Contrary to the defendant’s suggestion, DB 25, the police may seize items turned up during a search incident to an arrest that are neither contraband nor evidence of the crime for which a defendant was arrested. Id. at 670 (upholding seizure of wallet incident to arrest for driving while intoxicated); State v. Maxfield, 121 N.H. 103, 105 (1981) (upholding seizure of film cannister incident to arrest for driving while intoxicated as “a reasonable intrusion that did not violate” the Federal or State Constitutions); cf. United States v. Robinson, 414 U.S. 218, 235 (upholding seizure of heroin found on arrestee, explaining that “[a] custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search incident to the arrest requires no additional justification. ”). Here, the police searched the defendant’s person contemporaneously with his arrest. The search turned up a cellphone and other items. Seizure of the phone, accordingly, was lawful. See Niebling, 176 N.H. at 670. The defendant speculates that the Portsmouth police’s motive for seizing his phone may have been to assist the Dover police with thei r investigation of the whereabouts of the missing 15-year-old girl. DB 26. He does not, however, indicate how he arrived at that conclusion or why he believes it is germane to the legality of the seizure of his phone. He does not contend the officers were acting in bad faith. Consequently, even if the subjective motivation of the Portsmouth police officers was as he surmises, that in no way would invalidate the seizure of his phone. See State v. Wheeler, 128 N.H. 767, 772 (1986) (once item is seized pursuant to a lawful search incident to arrest, police need no independent justification to retain it and use it as evidence of a different crime). Cf. Farrelly v. City of Concord, 168 N.H. 430, 449 (2015) (“The existence of evidence of bad motive does not undercut what an officer knows or believes.”) (citing Whren v. United States, 517 U.S. 806, 812 (1996)); Scott v. United States, 436 U.S. 128, 138 (1978) (“the fact that the officer does not have the state of mind which is hypothecated by the reasons which provide the legal justification for the officer’s action does not invalidate the action taken as long as the circumstances, viewed objectively, justify that action. ”). Therefore, the police lawfully arrested the defendant and seized his cellphone pursuant to that arrest.

The trial court’s order should be affirmed because the independent source and inevitable discovery exceptions to the warrant requirement applied in this case.

If this Court disagrees, the critical threshold issue of probable cause must be addressed and should be addressed by this Court. In doing so, this Court should hold that the police had probable cause to arrest the defendant and lawfully seized his phone incident thereto.

If this Court declines to address probable cause in the first instance on appeal, however, then this case should be remanded to the trial court for the court to decide that issue.

The State requests a fifteen-minute oral argument. If oral argument is called in this matter, Sam Gonyea will present on behalf of the State.

I, Sam Gonyea, hereby certify that pursuant to Rule 16(11) of the New Hampshire Supreme Court Rules, this brief contains approximately 6, 342 words, which is fewer than the words permitted by this Court’s rules. Counsel relied upon the word count of the computer program used to prepare this brief.

April 11, 2025 /s/ Sam M. Gonyea Sam M. Gonyea

I, Sam Gonyea, hereby certify that a copy of the State’s brief shall be served on, Charles Keefe, Esq., counsel for the defendant, through the New Hampshire Supreme Court’s electronic filing system.

April 11, 2025 /s/ Sam M. Gonyea Sam M. Gonyea