State of New Hampshire v. Logan Clegg

B. The Trial Court Sustainably Admitted Detective Testimony about Objects in Photographs................................ 49

CONCLUSION................................................................................................... 58 CERTIFICATE OF COMPLIANCE............................................................... 59 CERTIFICATE OF SERVICE......................................................................... 60

II. Whether the trial court erred in admitting testimony stating the location of object s in photograph s.

III. Whether the trial court erred in excluding testimony regarding a canine’s certification failure rate.

A Merrimack County grand jury indicted the defendant with: two counts of knowing second -degree murder for causing the death of two victims, Stephen and Djeswende Reid, by shooting them with a gun; two alternative theory counts of reckless second -degree murder; four class B felony counts of falsifying physical evidence; and one class B felony count of felon in possession of a dangerous weapon. DA 1 3-11. All of the charges occurred on either April 18, 2022, or April 21, 2022. Id. Following a 12 -day jury trial in October 2023, the jury convicted the defendant of all the charges. T 2277 -2283. On December 15, 2023, the trial court (Kissinger, J.) sentenced the defendant to two consecutive sentences of fifty years to life stand committed on the knowing second -degree murder convictions and to five three -and-one-half years to seven years stand committed, concurrent with each other but consecutive to one of the second -degree murder convictions, on the remaining convictions. DA 322- 42. This appeal followed.

On April 20, 2022, at approximately 6:00 p.m., Sue Forey, Stephen Reid’s sister, reported to the New Hampshire State Police that Stephen and his wife Djeswende were missing since Monday, April 18, 2022. T 86-88, 96, 101, 794. At 6:14 p.m. on April 20, 2022, Concord Police Officer Kristieann Desilvio responded to the Reids’ apartment in the Alton Woods complex, spoke with Sue, and then searched the Reids’ apartment. T 140, 142, 151. Officer Desilvio did not see “any signs of a struggle” and saw that many “personal belongings, ” were still in the apartment. T 145 -46. Detective Dankia Gorham seized two cell phones, a laptop, and several receipts for the days leading up to April 20 from the apartment. T 794-97.

At approximately 8:00 p.m. on April 20, New Hampshire State Trooper James Powers and his canine responded to Alton Woods. T 122 - 23, 126. Trooper Powers, another trooper, and their canines searched the woods near the apartment complex. T 128. While there, they encountered a white man in his twenties or thirties in a tent. T 128 -29. The man, later identified as the defendant, T 699-700, identified himself as Arthur Kelly. T 129-30. His tent was surrounded by Mountain Dew cans and bottles. T 130. The troopers told Concord police officers about their encounter with the defendant. T 130. Concord Police Detective Garrett Lemoine and Officer Desilvio went to speak with the defendant. T 130-31, 697. When they arrived, they saw a “substantial amount” of red Mountain Dew cans around the tent. T 158, 697. The officers talked to the defendant inside the tent. Id. Detective Lemoine described the defenda nt as between the ages of twenty and thirty, clean shaven, and having “shorter brown hair.” T 698. The defendant said he was Arthur Kelly and provided a date of birth. T 157, 698. Officer Desilvio provided this information to her dispatch, who found no information for that name and birth date in New Hampshire or Massachusetts. T 157-58.

On April 21, 2022, detectives extracted data from the two cell phones seized from the Reids ’ apartment. T 1185. They realized that both phones belonged to D jeswende and that Stephen’s cell phone was missing. T 1186. Detective Har bitz obtained location information for Stephen’s phone from Google. T 1186. Investigators s earched the area surrounding his phone’s last recorded location on the Marsh Loop Trail. T 798 -99, 1186-87. Investigators found the Reids ’ bodies under a pile of leaves and debris at the base of a tree off the trial. T 182-85. Detective Nicole Murray photographed the ir remains as a trooper “raked” away debris layer by layer. T 229-30. Djeswende had been shot in the right ear and was slouched over Stephen. T 233, 238, 240, 243. Stephen also had a gunshot wound to his right ear. T 242-43. Based on their placement under the debris, the “bunching up” of their clothing, and a rip in Djeswende’s pants, investigators believed th ey had been dragged to this location and hidden. T 241, 372, 802.

Investigators, some of whom had canines, searched the crime scene through the month of April. T 245, 1368. During these searches, Detective Murray photographed areas of coagulated blood along the trial. T 252 -55.

On the trail, i nvestigators collected bullet fragment s, cigarette butts, and leaves with blood on them. T 370, 806-07. On the “drag path, ” they found a prescription pill bottle with a red -brown stain, and a piece of green fabric from Djeswende’s pants. T 370, 1056 -57.

On April 22, when Detective Lemoine returned to the campsite where he had found the defendant to speak to him again, the campsite was gone. T 710-11.

On May 20, 2022, Geoffrey Ward, the lead prosecutor assigned to the Reid homicide investigation, was walking the Marsh Loop Trail with his co-counsel Danielle Sakowski, the deputy medical examiner Dr. Mitchell Weinberg, and Detectives Brown and Gorham. T 6 57-58. While walking the trail, Ward saw two shell casings underneath leaves and pine needles near the base of a tall tree that investigators photographed on May 10. T 659 -60, 676. When he saw them, he called the detectives over, who then photographed and collected the casings. T 660. In July 2022, Officer Brian Cregg showed Detectives Brown and Gorham the padlocked tent he found on April 15 to determine if this tent site belonged to the defendant. T 680-84. When they arrived, the campsite was “completely burnt.” Id. Detective Lemoine found 150 “small green Coleman propane tanks” in a pile, many burnt soda cans, UPC codes for Walmart brand items and a pair of pants sizes “30/30. ” T 721-22. On April 26, 2022, Detectives Murray and Brown found a different “burn site” near the Marsh Loop Trail. T 258. Between June and August 2022, investigators searched this site numerous times. T 273 -75. They found propane tanks, a warped Mountain Dew bottle, pieces of a Walmart plastic bag, and a “Campy gear Chubby 2 in 1 stove.” T 275-79, 1280.

They also found 19 shell casings, one of which was in a tree. T 289 -94, 816. Many of these shell casings had the “Sig Luger 9-millimeter” marking on them. T 816. Investigators also found a bullet three to four inches underground “downrange” from the tent site. T 818. After finding this bullet underground, investigators searched the Marsh Loop and found three bullets underground along the trail. T 821 -25.

On April 18, between 2:00 p.m. and 3:00 p.m., Nan Nutt was hiking the Marsh Loop Trail with her dogs. T 496, 499. During her hike, the victims walked past her up the trail towards the woods. T 502 -04. About three to five minutes after she saw the victims w alk into the woods, she heard five “very loud” gun shots in “very quick” succession. T 505 -06. After hearing these gun shots, Nutt continued hiking up the trail. T 508. She encountered a “young man standing, looking to the right of the trail into the woods.” Id. She described the man as white, about five feet, ten inches tall, medium build, slender, clean shaven, in his mid -twenties to mid-thirties, wearing brown khaki pants, a navy blue sweatshirt, a black “day pack, ” and carrying a brown or beige plastic groce ry bag. T 512-14. According to the fitness application she used to track her hike, she wal ked past the area where investigators found bullet fragments on the Marsh Loop Trail at 2:59 p.m. T 126 -09.

On April 18, Allan Schwarz was hiking near the Marsh Loop Trail. T 554-55. About twenty minutes into his hike, he heard four gunshots. T 555 - 56. He continued hiking, and approximately 90 minutes later, he found four shell casings on the ground on the side of the trail about 40 yards from the trail entrance. T 557, 564, 567. On April 22, after seeing the news, Schwarz told the police that he heard gunshots and found casings during his April 18 hike. T 558-59. When he and an officer retraced his hike to find the casings, they could not. T 559.

After finding Arthur Kelly’s campsite empty, Detective Lemoine and Detective Doyon went to stores within walking distance to see where the defendant purchased the red Mountain Dew cans that were at his campsite. T 711-12. At Walmart, a ten -minute walk from the campsite, they found an April 20 tran saction in which a man who Detective Lemoine believed to be Arthur Kelly, and later identified as the defendant, purchased a case of Code Red Mountain Dew. T 713 -14, 716. The defendant left Walmart on foot towards Loudon Road in the direction of Alton Woods. T 717.

Detective Gorham reviewed surveillance video from Walmart and found that the defendant completed 50 transactions between November 2021 and April 20, 2022, during which he purchased 114 propane tanks, Code Red Mountain Dew, and rotisserie chicken. T 913-16. On 48 of the 49 days, he wore the “exact or similar outfit, to include a brown jacket.” T 916. On April 19, 2022, the defendant purchased a three -person tent, a sleeping bag, and rubbing alcohol. T 932.

Detective Gorham obtained financial records from prepaid cards the defendant used at Walmart. T 936 -38, 946. These records showed that the cards were also used at Shaw’s in Concord, on Amazon, and on bulksupplements.com. T 937 -38. The detective obtained an invoice from a December 8, 2021 bulksupplements.com purchase and saw that the purchaser was Logan Clegg and the items were shipped to Concord, New Hampshire. T 938-39.

Detective Gorham viewed surveillance video from Shaw’s on Loudon Road and saw that, on April 18, 2022, at approximately 2:28 p.m., the defendant, wearing a blue or navy jacket, dark colored pants, dark boots, a black hat, a black backpack, and a bandana co vering his face, left the store with plastic grocery bags containing a two -liter bottle of Mountain Dew and a rotisserie chicken. T 838 -41. After he left the store, surveillance video showed the defendant walking toward Loudon Road and then entering a foot path heading towards the Marsh Loop Trail from Alton Woods. T 904 -09.

Detective Gorham found that, on March 25, 2022, the defendant made an online purchase from Brownell ’s, a gun retailer in Iowa. T 947. Brownell’s records showed that Logan Clegg purchased two, 17-round Glock nine-millimeter magazines that were delivered to the Concord post office. T 949, 953.

The detective learned that, in September 2020, the defendant pleaded guilty to burglary and theft in Utah, and that an arrest warrant issued for him in Utah on July 21, 2021. T 942. She also learned that the defendant applied to work at McDonald’s on Loudon Road on November 10, 2021. T 943-44. On the application, he listed his email address as rkxkelly@gmail.com. T 944. The defendant worked at McDonald’s from November 2021 to February 2022. T 946.

In reviewing the defendant’s purchases, Detective Gorham saw that he purchased a bus ticket from Concord to Portland, Maine departing on April 22. T 1140 -41. She also saw that he purchased bus tickets from Portland to Boston, Massachusetts, then from Boston to Albany, New York, and then from Albany to Burlington, Vermont. T 1141. Investigators learned that the defendant bought a Glock nine - millimeter and three boxes of Sig Sauer ammunition at R&L Archery in Barre, Vermont on February 12, 2022. T 1167, 1171, 1175-76. They obtained the form the defendant filled out to purchase this firearm, which listed the purchaser as Arthur Richard Kelly at 16 Midway Avenue in Barre. T 1171 -72.

On October 11, 2022, Homeland Security notified investigators that the defendant had booked a one-way flight from “JFK” in New York to Berlin, Germany departing on October 14, 2022. T 731 -32, 962-63. The defendant used a Burlington, Vermont post office box address to purchase the ticket. T 963. The defendant listed a Verizon cell phone number when he purchased the plane ticket. T 733. Officers asked Verizon for an “exigent ping, ” or location information for the cell phone number, which showed the phone was in Burlington, Vermont. Id. That evening, Detective s Lemoine and Doyon traveled to Burlington, Vermont. T 733 -34. In Burlington, they first searched Centennial Woods, a “swath of trees and walking trails, ” which was where the “pings” occurred. T 734. They also went to the bus station, but did not find the defendant. Id. On October 12, around 9:05 a.m., Detective Lemoine received an email from Verizon telling him that the defendant’s phone was near Williston Road. T 736-37. The detectives went to Williston Road and searched for the defendant. T 737. Detective Lemoine went inside Price Chopper where he saw the defendant talking to employees. T 742-43. After Detective Lemoine called Detective Doyon and told him he found the defendant, Detective Doyon joined him at Price Chopper. T 744. They followed the defendant from Price Chopper to the library. T 744 -45. The officers surveilled the defendant in the library for several hours. T 750. At some point on October 12, Vermont police officers arrested the defendant on a probation violation. Id.

Erica Collins, one of the defendant’s co -workers at Price Choppe r from May 2022 to October 2022, said that, in October 2022, the defendant gave his two weeks’ notice. T 1488. Collins asked the defendant where he was going, and he eventually told her that where he was going was “not in this country.” Id.

On October 12, 2022, Detective Brown interviewed the defendant at the South Burlington Police Department. T 1304. The defendant said that he arrived in Concord in November 2021 and left by bus in March 2022. T 1310-12. The defendant also said that, while he was in Concord, he lived in the “tall, grassy area under the power lines next to the Shaw’s on Loudon Road.” T 1313. The defendant denied staying in the woods behind Alton Woods and denied living near any of the campsites the detective described from the investigation. T 1314, 1319.

The defendant said that, in Concord, he only shopped at Shaw’s and at Hannaford. T 1314 -15. He purchased his clothes “and other stuff” from Amazon and eBay and rarely shopped at Walmart. T 1315. He said that he wore size “30 30” pants. T 1326.

The defendant denied ever speaking with, or being stopped by, any Concord police officers. T 1319 -20. He also denied using the name Arthur Kelly. T 1320. He also denied having any items delivered to his name using the post office’s general delivery services. T 1322 -23. After the two took a 30 -minute break, the detective asked the defendant if, when he purchased a bus ticket to Vermont, he first traveled to Boston, then Albany, then Burlington, and if he did so on May 15. T 1325. The defendant said the trip sounded right, but that the date was too late. Id. The detective asked the defendant if he could “guess the name that was used in that ticket purchase, ” and the defendant said “Arthur, ” and muttered something under his breath. The detective responded that he was correct, the person who bought that May 15 ticket was Arthur Kelly. Id. That same day, Detective Gorham searched the defendant’s backpack and found: (1) a Glock 17 nine-millimeter pistol loaded with 18 Sig Luger nine-millimeter rounds; (2) packaging from eBay; (3) two prepaid gift cards; and (4) $7, 150 in cash. T 967, 970 -74, 978-80. Part of the packaging had “Logan Clegg” handwritten on it a s well as the name “Kelly” on the side. T 976. She also found an envelope addressed to Arthur Kelly in Burlington, Vermont from “the UK” dated September 12, 2022, and contained a “Romanian ID card with [the defendant’s] photo and the name [] Claude Zemo.” T 975, 977. Financial records for a prepaid card in the defendant’s backpack showed that he purchased a Delta flight. T 983- 84. Delta records showed that the ticket was for a flight from Burlington, Vermont to “JFK” for October 1 3, 2022. T 984-85. Detective Gorham also reviewed records for Amazon purchases connected to prepaid debit cards in the backpack. T 991. The Amazon accoun t was in Arthur Kelly’s name. T 993. In the order history for this account was a gun holster for a Glock 17 pistol and a “Campy Gear Chubby.” T 995.

On October 13, 2022, investigators searched the defendant’s Burlington campsite. T 295-96. Investigators found a tent that was the same make and model as the tent purchased on April 19 at Walmart in Concord. T 990. They also found two boxes of ammunition, “gun oils, ” gun accessories, a “Glock magazine capable of holding 17 rounds, ” empty Mountain Dew bottles and soup cans, and a shell casing next to the tent footprint. T 313-16. The ammunition and shell casing were both Sig Luger nine-millimeter. T 459-60.

Following the defendant’s arrest, investigators subpoenaed several bus companies for any records related to the defendant, Arthur Kelly, and the email addresses rkxkelly@gmail.com and dentkelly0707@gmail.com. T 1339. Records showed that Denton Kelly, using the dentkelly email address, purchased a bus ticket from Concord to Portland, Maine departing on April 22. T 1340.

Dr. Mitchell Weinberg was certified as an expert in forensic pathology. T 581, 585. Dr. Weinberg performed autopsies on the victims on April 22, 2022. T 583. He concluded that Dj eswende was shot twice in the head near her right ear. T 586 -87. One of the bullets entered her “cranial vault” and injured her brain, which “very quickly” incapacitated her. T 587, 591. She had a postmortem abrasion on her back. T 611 -12.

Stephen was shot four times. T 592. Three of these bullets “posed an immediate threat” to Stephen’s life. T 598. Dr. Weinberg also saw postmortem abrasion s on Stephen’s back, buttocks, and rib cage. T 595-96, 612. The postmortem abrasion s were consistent with “a body being dragged along the ground.” T 596, 613.

Dr. Weinberg concluded that both victims died from multiple gunshot wounds, and their manner of death was homicide. T 602-03.

Detectives found that the defendant had used Google Maps to look at “the area of Prague” in Czechoslovakia and found that, in a folder labeled “language” on his computer, the defendant had various folders and “PDFs” about learning the Czech language. T 1348 -49. They also found the defendant’s photograph that Detective Brown saw on the defendant’s Romanian identification card. T 1350.

They found that, on April 21, 2022, July 26, 2022, and September 15, 2022, the defendant ran a “Fresh Start” procedure on his computer, removing all applications and his web browsing and search history. T 1352 - 54. The defendant’s Google search history showed that, on October 12, the day of his arrest, he searched “Concord NH News.” T 1357. He also searched “Concord news” twice on July 31, 2022. T 1362 -63, 1480. New Hampshire State Police Forensic Laboratory Criminalist Bryant Kennedy, an expert in forensic biology, serology, and “the analysis of physical evidence, ” determined that the red -brown stain on the prescription bottle and on some “woodland debris” was blood. T 1498, 1503, 1509, 1518. He also determined that the cigarette butts found inside the prescription bottle tested positive for saliva. T 1510 -11, 1525. New Hampshire State Police Forensic Laboratory Criminalist Katie Swango, an expert in forensic biology and DNA analysis, only found Djeswende’s DNA profile on the prescription pill bottle and the woodland debris. T 1567, 1583-86.

New Hampshire State Police Forensic Laboratory Criminalist Jill Therriault, an expert in “firearms examination and analysis, ” determined in July 2022 that the two shell casings found by Ward were Sig Sauer nine- millimeter Luger caliber. T 1218-19, 1682, 1706. She also determined that they were fired from the same firearm, specifically a “Glock, Smith and Wesson Sigma Series pistol[], [ or the] Springfield Armory [] XD -S line of pistols.” T 1709-11.

In October 2022, Therriault examined five fired bullets, one found inside a tree, one found at the burnt campsite, and three found on the Marsh Loop Trail, and eight shell casings found at the burnt campsite. T 280-94, 829-31, 1103, 1712-13. These bullets and casings were all marked “SIG 9mm Luger.” T 1714. She determined the casings were all fired from the same firearm. T 1714. She also determined that the two shell casings that Ward found and the five fired bullets were fired from the same firearm as these casings, specifically a nine -millimeter Glock pisto l. T 1714-16. Later in October, Therriault examined and test fired the defendant’s nine-millimeter Glock 17 pisto l using some of the ammunition that was in the firearm. T 1716-21. She determined that the casings found by Ward were fired by this pistol. T 1723-25, 1777-78. Although she could not make a “concrete determination, ” she explained that the other bullet s could have been fired from the defendant’s pistol because they shared some characteristics, “but damage and a lack of detail precluded [her] from making any further determination on that.” Id.

Therriault also determined that the defendant’s Glock pistol fired a shell casing labeled “SIG 9mm Luger” found at the defendant’s Burlington campsite. T 312-17, 1726-27.

II. The Defendant’s Case at Trial.

DNA Labs International Senior DNA Analyst Amber Smith was qualified as an expert in DNA analysis. T 1826, 1833. She tested various items for “touch DNA” and determined that DNA from the Reids and one to two foreign contributors was on one of Stephen’s hiking boots, a sock, and the inside of his belt. T 1892-95, 1910. She could not rule out the defendant as a contributor to the foreign DNA found on these items. T 1893-1902.

Jason Latham was certified as an expert in “digital and multimedia evidence, forensics, video and image analysis, comparative and content analysis, and photogrammetry.” T 1966. He enhanced some of the crime scene photographs taken on May 10 and May 20, T 1982 -86, and compared the enhanced pictures from May 10 to the enhanced picture s from May 20. T 2003 -04. After his comparisons, he found that some objects were visible in both sets of pictures, some objects visible in the May 20 pictures were not visible in the May 10 pictures, and specific objects in the May 10 pictures were not shell casings. T 2006. While he could not see certain objects in the May 10 pictures, it did not mean that they were not there; only that he could not see them in the pictures due to the “quality of the image, the distance the camera was from photographing the scene, and the overall lighting conditions.” T 2006 -07.

New Hampshire Fish and Game Conservation Officer James Benvenuti testified that he and his canine partner Cora searched the Marsh Loop Trail on April 22 around 10:00 a.m. T 2095. When Officer Benvenuti arrived on scene, he and Cora, who is trained to detect gunpowder, looked for evidence of the shooting. T 2096. In the middle of the trail, Cora alerted, and Officer Benvenuti saw his canine sniffing at “a fair amount of blood.” T 209 7-98. Concord Police Officer Carlton Ryder searched the ground around the bl ood trail and found a bullet or a bullet fragment. T 2110-12.

III. Suppression Litigation.

Relevant to this appeal, on April 20, 2023, the defendant filed a motion to suppress the warrantless search of his cell phone. DA 12-29. Specifically, the defendant challenged the October 11, 2022 “exigency pings” to Verizon for his cell phone’s location, an exigency request to Verizon for the incoming and outgoing calls and text messages to his cell phone number from October 8, 2022 to October 11, 2022, and an exigency request to Verizon on October 12 for his “RTT data, ” which estimates the distance a phon e is from the cell phone tower to which it is connecting. DA 12-16.

The defendant argued that exigent circumstances did not justify the “exigency pings” because the police were not hotly pursuing the defendant, could have been apprehended at the airport before boarding his flight, and the police had time to obtain a warrant and chose not to do so. DA 25-27.

The State objected, arguing that, relevant to this appeal, exigent circumstances justified the warrantless search of the defendant’s cell phone information. DA 30-100. The State contended that th e police had probable cause to believe that the defendant had murdered the victims, fled Concord days after the murders, and planned to imminently fly to Germany. D 45 The police had not found the murder weapon and believed that, if not apprehended, the defendant would either dispose of it or use it to commit anothe r violent offense. DA 45 -47.

The trial court held a three-day suppression hearing in May 2023. The State called Lieutenant Marc McGonagle and Detective Wade Brown. Relevant to this appeal, the State presented the following evidence. On April 20, 2022, the Reids were reported missing since April 18. SH 12. On April 21, investigators received location information for Stephen Reid’s cell phone. SH 20. Investigators found the Reids ’ bodies hidden 100 feet off of the trail underneath brush, sticks, and leaves. SH 20 -22. After autopsies determined the Reids were murdered, investigators attempted to find the defendant, who had identified himself to police as Arthur Kelly on April 20 at his campsite. SH 23. When investigators returned to the defendant’s campsite a few days later, the tent and trash, including empty Mountain Dew Code Red cans, were gone. SH 24. In reviewing surveillance videos of nearby stores from April 20, investigators saw the defendant purchasing Mountain Dew Code Red cans and determined that he resembled Arthur Kelly. SH 24-25. Investigators also found a burnt tent site on April 26 which they searched several times. SH 215 -18. During those searches, they found “dozens and dozens” of small burnt propane tanks and a “fair amount of shell casings” marked with “ SIG Luger nine-millimeter.” SH 38, 40-41, 219. They also found bullets “downrange” from this campsite. SH 219. Investigators also learned that his campsite was burned between April 15 and April 20. SH 38, 215 -19.

Investigators spoke to Nan Nutt, who was on the Marsh Loop Trail when the Reids passed her and shortly after they passed her, she heard five gunshots nearby. SH 25-27. She kept walking and, about five to ten minutes after the gunshots, she saw a man on the trail looking into the woods whose description matched the defendant’s description. SH 28, 108- 10.

Investigators also spoke with Allen Schwarz, who was hiking on Marsh Loop Trail on April 18. SH 454 -55. During his hike, he heard four to five gunshots. SH 456 -57. About 45 minutes after hearing the gunshots, he found four shell casings, two on either side of the Marsh Loop Trail. SH 457. He picked up one or two of these casings and looked at them to determine their caliber, but when he could not, he put the casings back and continued hiking. SH 457 -59. When Schwarz showed the detective where he believed he found the casings, he was about six feet from the drag trail. SH 461 -62.

Detectives reviewed surveillance video s from local stores in the months leading up to April 18. SH 33. The defendant often purchased Mountain Dew Code Red and almost always wore the same clothing: dark pants, dark top, black backpack, a blue bandana, and a black hat. SH 33 -34. He sometimes paid using prepaid debit cards. SH 35. The defendant used the prepaid cards to order from bulksupplements.com regularly. Id. From these orders, investigators learned the defendant’s name. SH 36. They obtained booking photographs for the defendant that were “eerily similar” to the defendant’s drawing a sketch artist created with Nan Nutt. SH 35 -36. Investigators also determined that the defendant had worked at the Loudon Road McDonald’s from November 2021 to February 2022. SH 227. They showed stills from the surveillance video to the McDonald’s manager, who identified the defendant. SH 228. The detective who spoke to Arthur Kelly on April 20 was “certain” that Arthur Kelly was the defendant after seeing his booking photograph. SH 223 -24.

Investigators also obtained surveillance video from Shaw’s on Loudon Road from April 18 that showed the defendant walking out of the store in the same outfit he wore in the other videos they watched and carrying a grocery bag with some items sticking out the top. SH 53. He crossed Loudon Road and walk ed in the direction of the Marsh Loop Trail around the same time the victims left their apartment for their walk. Id. About a month after investigators discovered the Reids’ bodies, they found two Sig Luger nine-millimeter shell casings on the trail about 100 feet from where the bodies were found. SH 39. These casings and casings from the burnt tent site were sent to the state laboratory which determined that both sets of casings were fired from the same nine-millimeter firearm. SH 41. Investigators also found three bullets eight to ten inches underground on the Marsh Loop Trail near where they had found blood on the trail on April 22. SH 220 -21.

After investigators learned the defendant’s name, they learned that he was on probation out of Utah and that he had an active warrant for a probation violation. Id. The charges underlying his probation were “firearms and weapons charges.” Id. He also had a burglary conviction during which the defendant had a loaded firearm on him and ran from police, and he had fatally stabbed someone in self -defense in Spokane, Washington in 2018. SH 42-43. The defendant’s first arrest was for shoplifting from Walmart in Salt Lake City, during which officers found a stolen, loaded firearm in the defendant’s waistband. SH 225. Investigators found that the defendant purchased something from Brownell’s, an online firearms store. SH 43 -44. They also discovered that, on April 19, the day after the murders, he purchased a tent, a sleeping bag, and rubbing alcohol at Walmart. SH 45. He had also applied for a job at McDonald’s on Loudon Road using the name Logan Clegg and the email address rkxkelly@gmail.com on that application. SH 44. He had also traveled to Europe twice before 2022 and had returned to Boston on November 7, 2021. SH 45.

In February 2022, when the defendant was living in the woods near the Marsh Loop Trail, he purchased a flight from Newark, New Jersey to Iceland, but was not on the flight when it departed. Id. They also learned that on May 15, 2022, Arthur Kelly bought a bus ticket from South Station in Boston to Albany, New York, and then on to Burlington, Vermont. SH 46.

On October 11, Homeland Security notified investigators that the defendant, using the name Logan Clegg, booked a one -way flight from “JFK” to Germany that was departing on October 14 at approximately 12:30 a.m. SH 48. Detective Gorham spoke with agents from Homeland Security and Customs and Border Protection from whom she learned, via email at 4:41 p.m., that the defendant had used a cell ph one number when he purchased his flight and used an address for a post office in Burlington, Vermont. SH 50 -51, 54-55; DA 109-11. Investigators ran the phone number through “TLO” and saw that it was a Verizon number registered to someone in Vermont. SH 56.

The lieutenant knew that the phone number was a “viable source” to use to locate the defendant, and, based on his belief that it was necessary to locate the defendant quickly, had Detective Carter request exigency pings for the defendant’s phone through Verizon. SH 57-62. The lieutenant explained that an exigency ping would tell investigators that the phone was on, was connected to a cell tower, and would provide a vague “radius” of where the phone was relative to the tower. Id. He explained that the phone could be within 1, 500 meters of the tower. SH 59. He also explained that Verizon has an “exigency emergency protocol” that he had used before to obtain location information. SH 61 -62.

The location information pings from Verizon showed that the defendant’s phone was on and “actively pinging in Burlington, Vermont.” SH 73. They received the first ping at 5:18 p.m. SH 250. The radius of the defendant’s pings was “very large.” SH 74. After receiving these pings, the lieutenant decided to use a cell site simulator (CSS) to find a more accurate location, so he had a detective work on a CSS warrant beginning at 6:30 p.m. SH 74 -76. He explained that a CSS mimics a cell tower and caus es phone num bers programmed into it to ping off of the CSS so that it can “hone down and track down to the specific location where that phone is.” SH 75.

The detective submitted his CSS warrant, and it was approved by a judge just before midnight on October 11. SH 76. Investigators did not use the CSS equipment, however, because by the time they received the warrant, they already had detectives in Burlington surveilling the woods where the defendant’s phone was pinging. SH 77. For safety reasons, the detectives did not search at night, but resumed their search in the morning. SH 259 -61.

At approximately 7:07 p.m. on October 11, Detective Carter made a second exigency request to Verizon for information regarding whether the defendant’s phone had sent or received any text messages. SH 79, 254. This request did not ask for the content of any text messages, nor did it ask for location information. SH 79 -80.

The following morning, the detective requested “RTT data” or information showing how close the defendant’s phone was to the cell phone towers to which it was connecting. SH 80. Before Concord investigators received this information from Verizon, the defendant was located in side Price Chopper in Burlington. SH 81. Because they found the defendant when they did, the detectives did not use any of the RTT data the lieutenant requested. SH 165 -66. They also stopped using the historical ping data from the first e xigency request because they had “eyes on” the defendant. SH 264.

The lieutenant explained in detail how the Verizon exigency circumstances hotline worked. SH 66. He also explained that Verizon had approved their exigency requests and provided location information for the defendant’s phone over the telephone and then emailed updates on that location every 15 minutes. SH 67.

The lieutenant also explained in detail the typical process for obtaining a search warrant and testified that it usually takes a “couple” of hours to obtain a warrant after hours. SH 67-69. Once a warrant for cell phone location data was approved, the lieutenant explained, he would then need to fax it to the cell phone company’s “search warrant [] number.” SH 69. He explained that, in his experience, warrants sent to Verizon for cell phone location data received a response in two to three weeks. SH 71. He had never received results back the same day that he submitted a warrant, or even within three days of submitting a warrant. Id. Detective Brown corroborated this, testifying that, in his experience, Verizon took tw o to three weeks to respond to a warrant. SH 245.

The lieutenant explained that, if Verizon had not provided investigators with any information following their exigency requests, they would have sought a search warrant for “location data, for subscriber info, historical data, all phone usage, ” because the defendant’s phone was “a key element in the investigation.” SH 84. He believed that the phone number was accurate because “everything on th[e] flight booking information [was] apparently accurate[, ] [s]o [he] had no reason to believe that if all this othe r information [was] accurate, that that particular phone number [was] not [] accurate as well.” SH 85. He also testified that investigators did submit a search warrant to Verizon for information on the defendant’s phone in December and it took approximately three weeks for Verizon to respond to that warrant with information. Id.

The defendant called Detective Brendan Ryder, who testified that he returned to the police department on October 11 at 6:00 p.m. at Lieutenant McGonagle’s request to draft a warrant for a CSS. SH 527. Drafting the warrant and accompanying affidavit took him approximately two hours. SH 534.

The defendant also called Public Defender’s Office Investigator Denise Riley, who testified that a Verizon employee told her that a police department could make an exigency request through the exigency hotline even if they had a warrant. SH 539 -40. He also told her that, upon receiving the warrant and the exigency request, Verizon would try to process the warrant and the re quest as soon as possible, but did not give an estimated response time. SH 540, 549-50.

Following testimony, the trial court heard oral argument. SH 554. Relevant to this appeal, the defendant argued that there was no need for the police to make an exigency request to Verizon because it would have only taken the police two hours to draft a warrant for the defendant’s cell phone location information and thirty minutes to have it approved. SH 555 -56. He also argued that, because nothing prevented the police from submitting the warrant using Verizon’s exigency hotline, they could have received th e location information from Verizon relatively quickly. SH 556 -57. He contended that, in the totality of the circumstances in this case, waiting two hours for a warrant would not have hampered the police’s ability to locate the defendant.

The defendant also argued that his situation was distinguishable from other exigency cases because of the “chasm of time between the alleged crime” and the exigency request to Verizon and because the State had not established that there were any eyewitness es to the homicides that would alert the murderer to be on the run or to destroy evidence. SH 563 - 64. He also contended that the police did not have probable cause to believe the defendant murdered the Reids. SH 564.

The State countered that, while it is possible that a search warrant could have been drafted, submitted, and approved in either two hours or in five or six hours, this did not account for how long it would take for Verizon to respond to the submitted warrant. SH 571. The State also argued that it was not a foregone conclusion that Verizon would have permitted the police to utilize the exigency hotline if they had a warrant. SH 572. The State contended that the defendant was a flight risk, could have destroy ed evidence, and could have harmed others, all of which justified the exigency requests to Verizon under this Court’s precedents. SH 576. The State also clarified that the probable cause requirement relative to exigency requires that there be probable cause supporting a search warrant for the information the police obtained through their exigency requests. SH 548 -85. On June 6, 2023, the trial court (Kissinger, J.) issued a written order denying the defendant’s suppression motion. AD 3-20. Relevant to this appeal, the trial court found that the State had met its burden of proving that exigent circumstances justified the warrantless search of the defendant’s cell phone data. AD 16. The trial court found that there was probable cause that the defendant’s location would be found by searching his cell phone data based on the working phone number, owned by the defendant, tha the used to purchase a flight to Germany. Id.

It also found that there was probable cause to believe that the defendant had murdered the Reids, “a significant factor to consider in determining whether exigent circumstances exist[ed], ” based on the detailed testimony about the police investigation. AD 17-18. The trial court also found that the defendant likely left Concord on April 20, two days after the murders, traveled to Burlington, Vermont around May 15, and subsequently purchased a plane ticket from New York City to Germany leaving on October 14, which suggested that he “ was attempting to flee the country to avoid arrest.” Id.

The trial court also found that “there was a substantial likelihood that the murder weapon, which had not yet been recovered, would be discarded by [the defendant]” because he could not bring it aboard the plane to Germany. AD 18. There was reason for investigators to believe that the defendant was armed, considering that, in Utah, he had two different handguns on two different occasions and that he had purchased something from a firearms dealer in March 2022. Id. Investigators also had “a strong need” to prevent the defendant’s escape and that it was reasonable for them to believe that he could either board the flight to Germany, or he could not, and instead flee to another part of the United States or to Canad a, “a short distance from Burlington, Vermont.” Id. That the police could have waited and arrested the defendant at the airport “ [did] not weigh strongly against a finding of exigency.” Id. Likewise, there was no apparent motive for the defendant’s decision to kill the Reids, f rom which investigators could infer that he may “randomly endanger others, particularly given the assumption that he was likely armed.” Id.

The trial court also found that the police “acted reasonably leading up to the exigency request made to Verizon.” Id. They had searched for the defendant for weeks before receiv ing a phone number connected to him. AD 18-19. Police were “under the impression” that providing a warrant to Verizon for cell phone location data “could take days or weeks to process.” AD 19. Even if this was mistaken, “it was reasonable for the officers to rely on their personal experience in determining how long it would take to receive location data from Verizon, ” especially given that they did not know when, or if, the defendant would begin traveling to New York City, or “perhaps to other locations altogether.” Id.

The trial court found that, “[c]onsidering the totality of the circumstances, the police faced a compelling need for immediate action and there was a grave risk that the delay of even a few hours caused by seeking a search warrant would create a substantia l threat of imminent danger to life or public safety and a likelihood that evidence would be destroyed or [the defendant] would flee.” Id. Thus, the trial court held that the State established that exigent circumstances justified the warrantless search of the defendant’s phone location data under “both the state and federal constitutions.” Id.

IV. Litigation Regarding Photograph Testimony.

On the eighth day of trial, the State moved to admit lay opinion testimony from Detective Brown that, after he “zoomed in” on a section of the photograph, he observed a shell casing in a photograph of the crime scene taken by the FBI on May 10. T 1247 -48. The defendant objected, arguing that, were the detective to testify that he saw a shell casing in the photograph, he would be offering “inappropriate expert opinion.” T 1248. The defendant also argued that Detective Brown was “in the exact same position as a juror, ” meaning that both he and the jurors were equally qualified to look at the photograph and determine if it depicted a casing. T 1250-51.

After hearing argument, the trial court asked defense counsel if she would object to the detective testifying that he saw “what appear[ed] to be an object” without identifying the object as a casing. T 1255. Defense counsel objected, arguing that even testimony that the detective saw an object would be suggestive to the jury of that object’s import, which would be inappropriate opinion testimony. T 1255-56. The trial court ruled that the State could elicit testimony from the detective that he saw an object in the photograph, because that would be no different than the detective testifying about seeing “a twig or [] a leaf” in the photograph. T 1256. It did not permit the State to elicit any testimony characterizing the object as a casing, as that would be an opinion. Id.

During the detective’s testimony that day, he pointed out an object in the May 10 photograph, testifying that “[t]he object is right here.” T 1268 - 69.

On the eleventh day of trial, after the State had rested, the defendant moved to exclude any testimony from Detective Ryder that he saw a casing in a photograph taken on April 22. T 1945. Defense counsel explained to the trial court that it intended to cal l Detective Ryder in its case. T 1944 -45. The State informed defense counsel that it intended to elicit testimony that Detective Ryder saw a casing in an April 22 photograph during the State’s cross-examination of him. T 1945. Defense counsel objected to t his testimony “for the same reasons as outlined previously regarding Detective Brown.” T 1945 -46.

The State argued that it would not ask the detective to testify that he saw a shell casing, only that he saw an object in the photograph, as Detective Brown did. T 1947. The defendant objected, arguing that it was prejudicial to the defense to have the detective testify, “without the requisite expertise, ” that he saw an object in a photograph from April 22. T 1949-50.

In response, the trial court said that it did not see the difference between a detective testifying he saw an object in a photograph and that same, or any other, detective testifying that he saw a tent marker, a tree, a trail, or any other object in a phot ograph, which had happened “routinely with witnesses throughout the case, ” and on which the detective could be cross-examined. T 1951 -52. The trial court permitted the testimony. T 1952. After a short break, the trial court slightly clarified its order on Detective Ryder’s testimony, finding that it would only permit the detective to be asked about the location of an object in the April 22 photograph “if [d]efense in its case gets into witness testimony on the location of the casings.” T 1955.

On the twelfth day of trial, during Detective Ryder’s cross - examination, he testified that, in a photograph taken on April 22, he noticed an “object of interest ” when he was reviewing the photographs. 2144-47.

On the twelfth day of trial, the defendant called Officer James Benevenuti, a Fish and Game officer whose canine partner named Cora, participated in the crime scene search on April 22. T 2081 -83, 2095. Relative to this appeal, he testified on direct examination that, for Cora to be certified in various trackings or detections, she underwent a “rigorous process” requiring a year of training, including a six -week certification class, two eight -hour sessions per month for twelve months, individual trainings that the officer conducted with Cora regularly, and one certification training every year to maintain her certifications. T 2083 -84. During cross -examination, the State first asked whether Cora went through “extensive training.” T 2100. The officer answered “that’s right.” Id. In its four -page cross -examination, the State asked no additional questions about Cora’s training process. T 2100 -03. On re-direct examination, defense counsel asked how many times Cora had failed her certifications. T 2103. The officer said she ha d not failed. Id. The State objected, and the trial court sustained the objection and struck the answer. Id.

Defense counsel asked to approach, and during sidebar, argued that it was “fair game” to ask whether Cora had failed any certifications given that the State’s cross examination focused on whether Cora “ever miss[ed] things.” T 2103 -04. In response, the trial court found that “nothing about the certification process [] was discussed on cross -examination.” T 2104. The trial court further held that defense counsel could “ask about other times” Cora had performed in the field, but could not ask about the certification process. Id. Defense counsel asked the officer no further questions. Id.

The trial court did not clearly err in finding that exigent circumstances justified the warrantless search of the defendant’s cell phone location information. Based on the totality of the circumstances, probable cause existed to believe that the defendant’s real -time location, still unknown to investigators, would be found from a search of his phone’s location information. Likewise, exigent circumstances justified the warrantless search of the defendant’s cell phone. Based on what investigators knew, they reasonably believed that the defendant had murdered two people, still had the murder weapon and would imminently destroy it, and was preparing to leave the country in approximately two days. Moreover, because the defendant could easily destroy or deactivate his phone, it was imperative for investigators to obtain his location information before that happened, so they could apprehend him before he boarded an international flight. Thus, this Court should affirm the trial court’s order deny ing the defendant’s s uppressi on motion. The trial court sustainably exercised its discretion in admitting the detectives’ testimony that they saw an object in two photographs, one from April 22 and one from May 10. This testimony was not lay opinion. It was relevant testimony explaining to the jury what each detective saw in a photograph and where they saw it. The testimony helped the jury understand the photographs that were admitted as full exhibits. If this Court finds that it was lay opinion testimony, it was properly admitted because it was relevant to whether the casings and fired bullets found in the weeks after the murders were at the crime scene because of the murders, or because someone planted them. This lay opinion testimony was not highly technical, was based on the witness’ perceptions of where they saw an object in the photograph, and assisted the jury in knowing where to look in the two photographs to make its own de termination about whether there was a casing, or any other relevant evidence, in the photographs. This evidence was not unfairly prejudicial as it did not evoke an emotional response from the jury, nor was it cumulative or speculative testimony. The trial court also sustainably exercised its discretion when it excluded re -direct examination about Cora ’s failed certifications. A trial court has broad discretion in what it permits as part of a re -direct examination. This question was beyond the scope of the State’s cross - examination and did not clarify or explain any point the State made during its cross -examinat ion.

If this Court finds that the trial court erred in either admitting or excluding this evidence, any error was harmless beyond a reasonable doubt based on the strong and overwhelming evidence of the defendant’s guilt, the nature of his defense, and the incon sequential nature of these items of evidence as compared to the voluminous testimony and evidence admitted during the 12 -day trial.

Accordingly, this Court should affirm the defendant’s convictions.

“Under Part I, Article 19 of our State Constitution, warrantless [searches] are per se unreasonable and illegal unless they fall within the narrow confines of a judicially crafted exception to the warrant requirement.” State v. Rodriguez, 157 N.H. 100, 103 (2008). The State has the burden to prove, by a preponderance of the evidence, that such searches fall within one of these exceptions. Id. Exigent circumstances is one such exception. Id. This exception has two elements: “probable cause and exigent circumstances. ” Id.

“Probable cause i s judged by an objective standard.” State v. Stern, 150 N.H. 705, 709 (2004). “The test is whether a person of ordinary caution would be justified in believing that what is sought will be found in the place to be searched and that what is sought, if not contraband or fruits or implements of a crime, will aid in a particular apprehension or conviction. ” Id. (quotations and citation omitted). “Exigent circumstances exist where the police face a compelling need for immediate official action and a risk that the delay caused by obtaining a search warrant would create a substantial threa t of imminent danger to life or public safety or likelihood that evidence will be destroyed.” Rodriguez, 157 N.H. at 103-04. (quotations and citations omitted).

“When reviewing a trial court ’s [order on a] motion to suppress, [this Court] accept [s] the trial court ’s findings unless they are unsupported by the record or clearly erroneous.” State v. Pseudae, 154 N.H. 196, 199 (2006). “Whether exigent circumstances exist is judged by a totality of the circumstances, and is largely a question of fact for the trial court.” Rodriguez, 157 N.H. at 104. This Court “will not disturb the trial court’s finding of exigent circumstances unless it is clearly erroneous.” Id. Here, based on a totality of the circumstances, the trial court did not clearly err in determining that exigent circumstances justified the warrantless search of the defendant’s cell phone. As the trial court found, there was probable cause justifying the search of the defendant’s cell phone information because “probable cause existed to believe that [the defendant’s] location would be found f rom a search of cell phone location data of the phone number listed in association with [the defendant’s] flight booking and that the data would aid in his apprehension.” AD 16. By October 2022, police suspected that the defendant had murdered the Reids and had fled New Hampshire. While they had various e mails connected to the defendant or his alias, they did not know that the defendant had a working cell phone number until October 11. They learned of his working cell phone number at the same time that they learned that the defendant purchased a one -way ticket to Germany departing at 12:30 a.m. on October 14. Thus, there was probable cause to believe that the defendant’s location would be found through the search of his cell phone, which would aid in his apprehension. As the trial court also found, exigent circumstances justified the warrantless search of the defendant’s cell phone. This Court has held that a totality review of exigent circumstances “includes an examination of the overall reasonableness of the officers’ conduct” before the warrantless search or seizure “and no single factor controls.” State v. Gay, 169 N.H. 232, 241 (2016). “[C]ourts reviewing a warrantless [search or seizure] should consider the danger of imminent destruction of evidence, the gravity of the offense, the likelihood the suspect is armed, the need to prevent a suspect’s escape, and the risk of danger to the p olice or other persons inside or outside the dwelling.” Id. Courts should also consider “the degree to which the exigency relied upon by the State was foreseeable.” Id. When considering these factors, it was objectively reasonable for the officers to conduct a warrantless search of the defendant’s cell phone. As the trial court explained, based on the evidence it heard, the defendant was a “strong suspect” for the Reids’ murders, meaning he was strongly suspected of committing one of the gravest offenses. AD 17. Likewise, the defendant had fled Concord, and was attempting to flee the United States, to avoid arrest for these grave offenses.

The trial court also found that there was a substantial likelihood that the defendant still possessed, and would discard, the murder weapon. The trial court based this finding on the October 14 flight to Germany and testimony that the murder weapon had not been found, from which the trial court inferred that the defendant still had the firearm and would have to discard it before boarding the plane.

The trial court also found that there was a significant safety risk to the general public and law enforcement. It based this finding on testimony that: (1) it was likely that the defendant still had the murder weapon; (2) there was no discernable motive for the Reids’ murders; (3) the defendant possessed firearms when he committed crimes in Utah; and (4) the defendant had killed someone before, albeit in self -defense.

The trial court’s finding that the “exigency relied upon by the State was not foreseeable” was also supported by the evidence. AD 19. On October 11, when investigators received the defendant’s cell phone number, they received it as part of the defendant’s flight booking information. Before that point, they knew the defendant’s alias and some email addresses the defendant had used, but did not know his location from these emails. Likewise, the physical addresses the defendant listed in various places were post offic es. Thus, receiving a phone number that appeared to be working and that was registered primarily to the defendant was new information that could be used to locate him. However, they only received this phone number for the defendant because he had purchased a one -way flight for Germany out of New York City, leaving them approximately two days to determine his location, find him, and detain him before he left for Germany, or any other location. Likewise, it was reasonable for the police to believe th at, at any moment, the defendant could disable his phone number used to purchase the plane ticket, preventing the police from using it to locate him in real time. AD 19. Thus, it was not clearly erroneous for the trial court to find that even a two -hour delay to draft, submit, and receive back a signed warrant could have resulted in the loss of real -time location information for the defendant.

While the trial court’s determination is largely fact-specific based on the evidence presented at the suppression hearing, some New Hampshire cases are instructive in determining whether the trial court appropriately determined that exigent circumstances justified the warrantless search. In State v. Gay, this Court found that exigent circumstances justified a warrantless, limited search of the defendant’s curtilage by a canine who was tracking a murder suspect using skin rafts, or dead skin cells that are discarded by people and settle on the ground within 15 to 20 minutes. 169 N.H. at 237. These cells often collect on hard surfaces like driveways or the bases of houses and can easily be carried away by the wind. Id. This Court upheld the trial court’s finding that, because the skin rafts could so easily be dispersed by the weather conditions, an “emergency entrance onto the defendant’s property” to allow the canine to continue track ing the suspect’s scent was appropriate. Id. at 241.

Here, like the skin rafts that could be easily dispersed by the weather, the defendant could have easily disabled his cell phone within minutes or hours of the police learning his number, which would have prevented police from receiving his real -time locat ion information. See Rodriguez, 157 N.H. at 107 (holding that the odor of burning marijuana gave rise to exigent circumstances justifying warrantless entry into the defendant’s hotel room because delay in obtaining a search warrant created the likelihood that marijuana possession evidence would be destroyed by burning).

This Court also held in Gay that “the officers methodically attempted to ascertain the whereabouts of a possible suspect in a murder investigation before the evidence leading them to the suspect dissipated, ” which justified the warrantless entry onto the defendant’s property. Gay, 169 N.H. at 243. So, too, does this holding apply to the defendant’s case. While the police could have tried to submit a warrant alongside an exigency request to Verizon, the officers who testified at the hearing did not know that they could do that and had not tried to do that in the past. Rather than attempting a new method of submitting an exigency request to Verizon in the minutes they had to determine the defendant’s cell phone location before he disabled his phone, the police “methodically attempted to ascertain the whereabouts” of the suspect in the Reids’ murders before that evidence dissipated, and this Court should not, after -the-fact, hold that the police should have tried a new method for exigency requests to a cell phone company in response to learning the defendant’s phone number. The defendant argues on appeal that exigent circumstances did not justify the warrantless search of his phone because an hours -long delay to obtain a warrant would not have created a substantial threat or danger to life or public safety, or a likelihood that evidence would have been destroyed, given that more than five months had passed between the murders and the warrantless search of his phone. DB 35. The defendant goes on to cite many cases in which courts have found that the passage of time in a particular case caused the exigent circumstances to “disappear.” DB 35 -41. Despite this contention, this Court has not held that the passage of time, standing alone, is a factor to consider in determining whether exigent circumstances exist. Rather, this Court has held that that exigency “must make it reasonable to act without a warrant” because the delay caused by obtaining a warrant “would create a substantial threat of imminent danger to life or public safety or likelihood that evidence will be destroyed.” State v. Beede, 119 N.H. 620, 625 (1979); Rodriguez, 157 at 103-04. Moreover, this Court has held that exigent circumstances may both “suddenly arise after the passage of time, ” or “disappear with the passage of time.” Beede, 119 N.H. at 628.

As such, the passage of more than five months in this case was not dispositive on the issue of whether exigent circumstances existed on October 11 to search the defendant’s phone.

The defendant also argues that the “exigency -generating event” cannot be police discovery of a phone number because “there was not evidence [the defendant] was aware that the police had learned his phone number, ” meaning that this discovery did not heighten the risk that the defendant “would commit a violent crime, destroy evidence, or flee.” DB 42-44. This argument also fails because, based on the specific, articulable facts of this case, the phone number’s discovery alone was not the “exigency -generating event.” Rather, it was a combination of new information that investigators learned on October 11, specifically that the defendant had purchased a one -way ticket to Germany departing on October 14, from New York City, at 12:30 a.m., coupled with what investigators already knew from their months -long investigation. Specifically, they knew that the defendant: (1) had traveled and lived abroad before, and had missed a flight to Iceland in February 2022; (2) was absconding from his Utah probation by moving acros s the country, living in the woods, and using an alias; and (3) likely still had the murder weapon with him and would need to discard it before boarding a plane They also knew that they could use the phone number to track the defendant’s real -time location, but only for as long as the phone was pinging off of cell towers. Much like “the opportunity to search [a car] is fleeting since a car is readily movable, ” so too was the opportunity to receive real -time location information for the defendant’s phone, given how readily the defendant could have disabled his phone or decided to travel without his phone while it was still pinging off of cell towers in Burlington. Cardwell v. Lewis, 417 U.S. 583, 590 (1974).

As such, it was imperative that the police obtain the phone’s location information as soon as possible so that they could locate and apprehend the defendant before he either boarded a plane to Germany or fled to another location. This was true regardless of whether the defendant knew the police had his phone number, because on October 11, the defendant was absconding from various authorities for various reasons. Thus, that the defendant did not know that investigators knew his phone number did not lessen the effects of an hours -long delay to obtain a warrant. The defendant also argues on appeal that the trial court’s “analysis was flawed in three respects[:]” (1) its reliance on its finding that there was probable cause to believe that the defendant murdered the Reids; (2) its reliance on “what the officers subjectively believed as opposed to what the facts objectively showed[; ]” and (3) its allegedly erroneous finding that a delay of a few hours to obtain a warrant endangered the public’s safety or could have allowed the defendant to escape or destroy evidence. DB 44, 45, 51. These arguments are unavailing.

As argued above, determining whether exigent circumstances exist requires a trial court to consider whether the officers’ conduct was reasonable based on a totality of the circumstances. Inherent in considering this factor is also a consideration of whether the suspect, whose property or person is subject to a warrantless search or seizure, committed the offense. Moreover, considering whether there was probable cause to believe the defendant murdered the Reids and destroyed or concealed evidence of the murders was also relevant to determining whether the police acted reasonably in conducting a warrantless search of the defendant’s cell phone location information. Therefore, the trial court appropriately considered whether there was probable cause to believe the defendant murdered the Reids, alongside other factors as outlined in the trial court’s order, in determining whether exigent circumstances justified the warrantless seizure of his cell phone location information.

Additionally, the trial court did not rely on “what the officers subjectively believed” in concluding that there were exigent circumstances. It is well settled that “[t] he watchword in the [exigent circumstances test] is “reasonable.” A police officer ’s subjective belief that exigent circumstances exist is insufficient to justify a warrantless search[; ].. . [i]nstead[, ]... this Court conducts an objective review... [and ] [it] ask[s] whether a reasonable officer had a reasonable belief that there was a compelling need to act and no time to obtain a warrant. ” Fitzgerald v. Santoro, 707 F.3d 725, 730 (7th Cir. 2013) (quotations and citation omitted); see Stearn, 150 N.H. at 709 (quotations and citation omitted) (holding that the test for exigent circumstances is “whet her a person of ordinary caution would be justified in believing that what is sought will be found in the place to be searched and that what is sought, if not contraband or fruits or implements of a crime, will aid in a particular apprehension or conviction ”).

Here, the trial court used the word “believe” or “believed, ” in its “Background” section of its order to summarize the police investigation leading to the warrantless seizure of the defendant’s cell phone location information. AD 3 -12. Based on these factu al findings, that are supported by the record and which the defendant does not contest on appeal, the trial court, in its “Analysis” section, found that there was an objective basis to believe that the police were justified in seizing the defendant’s cell phone location information without a warrant based on what they knew or believed to be true about the defend ant having murdered the Reids, having fled Concord, and about his use of a working cell phone that he listed on a plane ticket to Germany with a departure date of October 14. AD 16 -20. Importantly, in determining whether exigent circumstances justified the warrantless seizure of the defendant’s cell phone location information, the trial court did not rely on any suppression hearing testimony from the officers regarding their subjective b eliefs that exigent circumstances justified their warrantless seizure. AD 3-20. Instead, it laid out in its order the facts supported by the suppression testimony and exhibits upon which a reasonable person could conclude that the defendant’s location woul d be found through a warrantless seizure of his cell phone location information before he either left that location or turned off his cell phone. Moreover, the trial court also sustainably found that the police “acted reasonably leading up to the exigency requests made to Verizon” based on their experience submitt ing warrants to Verizon for cell phone information. AD 18 -19. These findings by the trial court were not based on the subjective belief of investigators, but were based on testimony at the suppression hearing that: (1) the officers did not know they could submit an exigency request along with a warrant to Verizon; (2) that the officers had not tried to submit an exigency request alongside a warrant and so did not know how or if Verizon would process this request as an exigent one if it was accompanied by a warrant; (3) in their decades -long careers, Verizon often took two to three weeks to re spond to a warrant; and (4) it took a detective closer to six hours to return to the police department, draft the warrant and its affidavit, submit it to the on -call judge, and receive a signed warrant back.

Finally, the trial court did not err in finding that “a few hours” was enough time for the defendant to endanger the public, escape the police, or destroy evidence. The defendant is correct in asserting that, when the police seized the defendant’s cell pho ne location information without a warrant, they did not definitively know the defendant’s location. DB 51. What the defendant fails to acknowledge, however, is that, because the police did not know his location, it was more likely than not that the defenda nt would escape their reach, either by boarding a flight to Germany on October 14, or by missing that flight and settling in another unknown location. As such, it was imperative to determine the defendant’s location as soon as possible, and the only means the police had of doing so was through the defendant’s cell phone, which, as the trial court noted, could hav e been disabled at any time.

The trial court also sustainably determined that it was likely that the defendant would destroy evidence and flee the country. These determination s were not speculative, as the defendant asserts on appeal. DB 52, 54. Rather, they were supported by the defendant’s own actions before, during, and after the murders. As the trial court found, the defendant was adept at absconding from the authorities by using aliases and moving across the country, or to a different country altogether, and had concealed evidence of his crimes in Concord by hiding the bodies and burning or cleaning ou t camp sites near the murders.

Accordingly, the trial court did not clearly err in finding that the warrantless search of the defendant’s cell phone was justified by exigent circumstances.

“The admissibility of evidence is a matter left to the sound discretion of the trial court.” State v. White, 155 N.H. 119, 123 (2007). “[This Court] will not reverse the trial court’s decision to admit evidence absent an unsustainable exercise of discretion.” State v. Lopez, 156 N.H. 416, 420 (2007). “[In determining] whether a ruling made by a judge is a proper exercise of judicial discretion, [this Court considers] whether the record establishes an objective basis sufficient to sustain the discretionary decision made.” State v. Lambert, 147 N.H. 295, 296 (2001).

Testimony about Objects in Photographs.

The defendant argues on appeal that Detectives Brown and Ryder impermissibly offered lay opinion testimony when they testified that they each saw an object in a photograph. DB 59-65. This argument fails because this testimony was not opinion testimony, but was relevant testimony describing a photograph to the jury that was not unfairly prejudicial to the defendant.

Rule of Evidence 401 provides that evidence is relevant if “(a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action.”

N.H. R. Evid. 401(a), (b). A trial court “may exclude relevant evidence if its probative value is substantially outweighed by a danger of... unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.” N.H. R. Evid. 403. “Photographs as evidence may be admitted in order to corroborate or refute testimony, as well as to assist the jury in better understanding testimony.” State v. Snowden, 285 S.W.3d 810, 816 (Mo. Ct. App. 2009). Likewise, witnesses may testify as to the contents of an admissible photograph whether it is admitted or not. Williams v. Commonwealth, 2015 Va. App. LEXIS 391, at *7 (Va. Ct. App. Dec. 22, 2015) (unpublished opinion).

Here, the detectives were not offering lay opinion testimony when they each pointed out an object in a photograph. They were simply describing the photograph to the jury to assist it in understanding their testimony about what was visible, or not, to investigators as they searched the crime scene, and to assist the jury in understanding the photograph both at trial and during deliberations. The crime scene in this case was in an outdoor, wooded area. Many of the admitted photographs at trial depicted the wooded floor, or the woods themselves, and not every photograph had identifiable landmarks or objects within them. As such, testimony describing the contents of the various admitted photographs was relevant and integral to the jury understanding what they de picted. Without this testimony, many, if not all of, the photographs would have proved meaningless to the jury, as it would not have known what to look for in each photograph so that it could draw its own conclusions about the presented evidence.

Additionally, the detectives’ testimonies that they each saw one object in one photograph was relevant and probative of whether the casings collected in evidence were always at the crime scene or were planted, given that part of the defense was that the casings were planted weeks after the murders. Indeed, the defendant called an expert witness who opined that the objects discussed by the detectives did not look like casings, or any other important object. As such, it was a fact of consequence whether casin gs were visible in the April 22 and the May 10 photographs. Likewise, by precluding the detectives from offering their opinions that the objects were casings, the trial court left it for the jury to determine whether those objects in the April 22 and May 10 photographs were casings, or some other unidentified object.

This testimony was not unfairly prejudicial to the defendant. The defendant’s expert testified about the two photographs in which the detectives saw an object and opined that neither image depicted a casing. Likewise, the testimony was not emotionally charged. Nor was the testimony cumulative or offered by any other evidence because, even though the photographs themselves were in evidence, the detectives’ testimony described for the jury where to look in the photographs for an object so that the jury could determine whether the photographs depicted a casing or something else. Accordingly, the trial court did not err in permitting this testimony.

However, if this Court finds that the detectives offered lay opinions when they testified that they saw an object in a photograph, those opinions were admissible under Rule 701. If a lay witness provides opinion testimony, that opinion is “limited to one that is (a) rationally based on the witness’s perception; (b) helpful to clearly understanding the witness’s testimony or to determining a fact in issue; and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.” N.H. R. Evid. 701. This Court has found that “individuals can present limited lay testimony regarding matters which, if discussed in detail, would require expert testimony, ” such as testimony about how cell phone records are created and interpreted. State v. DePaula, 170 N.H. 139, 154 (2017). Here, neither detective offered expert testimony in the way that the defendant’s expert did. Both detectives explained that, when they zoomed in on photographs taken from the crime scene, in one photograph from May 10, a detective perceived an object on the forest floor, and in another photograph from April 22, a different detective perceived an object on the forest floor. This testimony was helpful to determinin g a fact at issue: whether casings that were collected weeks or months after the murders were at the crime scene the day of the murders, or whether they were planted at some later date. This testimony was based on each detective’s perception and n either detective’s testimony required scientific, technical, or specialized knowledge.

Accordingly, the trial court did not err in permitting this testimony.

The defendant argues on appeal that the trial court improperly limited his re -direct examination of Officer Benevenuti regarding how many times Cora had failed her certifications because it was not outside the scope of the State’s cross -examination. DB 67 -70. The trial court did not err, however, because the State had not asked the officer about Cora’s certification process during its cross -examination. New Hampshire Rule of Evidence 611 provides that the trial court “shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment. ” N.H. R. Evid. 611(a).

“Re-direct examination is limited to matters brought out on the cross-examination of the witness. For this reason, if the opposing attorney did not cross -examine the witness on a certain point, it would be impermissible for the re-direct examiner to question the witness on that point, even if it could have been done so on the witness’ original direct examination. ” 5 Criminal Law Advocacy § 81.03 (2025). “The scope of re-direct examination is within the sound discretion of the [trial] court.” Wilmington v. J.J. Case Co., 793 F.2d 909, 921 (8th Cir. 1986). Here, the trial court sustainably exercised its discretion in striking the officer’s answer from the record regarding how many certifications Cora had failed as this question was outside the scope of the State’s cross- examination. During direct examination, it was clear that Cora’s certification process was distinct from her training. The officer testified that her certification process was “rigorous” and took “about a year” to complete. T 2083. He explained that this was separate f rom her routine trainings that occurred twice a month during the workday and that he regularly conducted at home. T 2083-86.

On cross -examination, the State asked approximately 25 questions of the officer. The first question the State asked, “[o]fficer, you and [canine] Cora go through extensive training, is that right?” was the only question the State asked that discussed Cora’ s training. T 2100. The other 24 questions asked the officer how many homicide investigations he and Cora had assisted in, whether it was possible Cora could be inadvertently diverted, whether certain conditions could make it difficult for Cora “to do her job, ” such as weather, or the nature of the scene itself, and whether there were times when “a piece of physical evidence ha[d] not been found in a scene ” due to a variety of reasons unrelated to Cora’s certification. T 2101-03. As defense counsel established on direct examination, the certification process was distinct from Cora’s ongoing training. None of the cross-examination questions elicited any new information regarding Cora’s certifications or the results of any of her independent training. None of the questions linked Cora’s certifications to her trainings. Nor did the questions infer that Cora missed any evidence that she was tracking due to her failures in her trainings or certifications. Instead, the questions established that there were times that both canines and officers miss physical evidence at a scene due to weather, the size of the evidence, the nature of the sc ene, or the evidence’s concealment. These inference s would not have been addressed by defense counsel’s question regarding Cora’s failure rate on certifications. Absent any connection between Cora’s certification process and ongoing training on either direct examination or cross -examination, the trial court did not err in viewing the certification and the training as two distinct topics. The trial court sustainably determined that the certification question on re-direct examination was outside the scope of the State’s cross-examination.

“To determine whether the State has proven beyond a reasonable doubt that an error did not affect the verdict, [this Court] must evaluate the totality of the circumstances at trial.” State v. Boudreau, 176 N.H. 1, 11-12 (2023). This Court considers several factors in determining whether an error did not affect the verdict, including the strength of the State’s case, the overwhelming evidence of the defendant’s guilt, whether the evidence was inconsequential in relation to the State’s case, and the nature of the defense. Id. at 12 (citations omitted). No one factor is dispositive, and this Court may consider other factors not listed above. Id.

Even if the trial court erred in admitting the detectives’ testimony about seeing an object in a photograph and in excluding testimony that Cora did not fail her certifications, these errors were harmless beyond a reasonable doubt based on the strong and overwhelming evidence of the defendant’s guilt, the nature of his defense, and the inconsequential nature of the challenged evidence.

There was both strong and overwhelming evidence of the defendant’s guilt at trial. Investigators searched the crime scene, watched surveillance video, and revie wed financial records to identify, locate, and apprehend the defendant, based on Nutt’s description of the defendant from April 18 and from officers’ descriptions of Arthur Kelly from April 20.

They collected numerous shell casings and fired bullets from the crime scene and the defendant’s campsite. Two of these casings from the crime scene were definitively fired by the defendant’s pistol and a casing found at the defendant’s Burlington campsite was definitively fired by his pistol. All of the casings and bullets the laboratory tested had the same headstamp. Thus, the evidence strongly suggested that the gun used to kill the victims was the same gun that the defendant bought and had on him when h e was arrested.

The investigation also established that the defendant left Concord days after the murders, tried to conceal the bodies, burned his campsite, purchased a plane ticket to Germany, and planned to resettle somewhere in Europe with his Romanian identification card and his knowledge of the Czech language. While he was absconding from Concord, he also searched “Concord NH News” the day of his arrest and twice in July 2022. Additionally, relative to the photograph testimony, both parties repeatedly asked law enforcement witnesses throughout trial about specific objects in the hundreds of photographs that were admitted as full exhibits, making the challenged testimony about on e generic object in two photographs inconsequential. Moreover, the defendant’s expert testified about what he could or could not see in photographs after he enhanced them and opined that he could not see any casings in the challenged photographs. He also o pined, however, that his inability to see any casings in the challenged photographs did not mean that the casings were not there. As such, the challenged testimony that two detectives each saw an object in two photographs, coupled with the expert’s testimony that he did not see any casings in the same photographs, did not prevent the jury from coming to its own conclusions about whether these photographs depicted casings, as it was so instructed. See T 2254 (“In short, you should consider the testimony of each witness and give it the weight you think it deserves”). Likewise, the detectives’ testimony about seeing one object in two photographs and the exclusion of testimony about whether Cora failed any certifications was inconsequential based on the defendant’s theory of the case. The defendant argued at trial that the police “got the wrong guy” based on the evidence presented and based on “[t]he science, the science, the science.” T 2182 -83. He then argued, in part, that the evidence and the science showed that the casings were not found until May, despite investigat ors searching diligently and despite Cora working the scene well, because they were planted on the scene in May. T 2201 -04. He then argued, “[t]he truth is, it doesn’t actually matter if the casings are in the photographs from May 10, because May 10 is still really far away from April 23, and they were not there in April.” T 2204. He further argued that the scientific evidence about the casings and bullets could not connect them to the homicide, or to the defendant, rendering the bullets and the casings immaterial evidence, regardless of when they were found. T 2205 -07. As such, the detectives’ testimony about objects in photographs and the exclusion of Cora’s certification failure rate was inconsequential to the defendant’s case theory that someone planted the bullets in May, which is why no one found them for weeks or months, and that, even if they were not planted, the bullets and casings provided inconclusive evidence of the defendant’s guilt, based on the scientific evidence the jury heard. It was also inconsequential to the State’s case in light of the 12 days of tes timony the jury heard about searching the crime scene, identifying, searching for, and apprehending the defendant, and forensic testing of some evidence, including testimony that the defendant’s firearm fired two of the casings found on May 20 near where the Reids were found, and the many photographs, videos, and exhibits the jury reviewed. Accordingly, this Court should affirm the defendant’s convictions.

For the foregoing reasons, the State respectfully requests that this Honorable Court affirm the trial court’s suppression order and affirm the defendant’s convictions.

The State requests a 15-minute oral argument presented by Audriana Mekula.

By Its Attorneys,

August 4, 2025 /s/ Audriana Mekula Audriana Mekula, Bar No. 270164 Assistant Attorney General Office of the Solicitor General New Hampshire Department of Justice 1 Granite Place South Concord, NH 03301

I, Audriana Mekula, hereby certify that this brief contains approximately 14, 243 words, which is fewer than the words permitted by this Court’s July 30, 2025 order. Counsel relied upon the word count of the computer program used to prepare this brief.

August 4, 2025 /s/ Audriana Mekula Audriana Mekula

I, Audriana Mekula, hereby certify that a copy of the State’s brief shall be served on Deputy Appellate Defender Thomas Barnard, counsel for the defendant, through the New Hampshire Supreme Court’s electronic filing system.

August 4, 2025 /s/ Audriana Mekula Audriana Mekula