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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Rockingham

No. 2015-0377

THE STATE OF NEW HAMPSHIRE

v.

JESSICA MORRILL

Argued: October 19, 2016

Opinion Issued: March 10, 2017

Joseph A. Foster, attorney general (Danielle E. Horgan, assistant 

attorney general, on the brief and orally), for the State.

Stephanie Hausman, deputy chief appellate defender, of Concord, on the 

brief and orally, for the defendant.

LYNN, J. The defendant, Jessica Morrill, appeals her conviction, 

following a jury trial in Superior Court (Delker, J.), on three counts of 

possession of a controlled drug (oxycodone, alprazolam, and lisdexamfetamine), 

and one count of possession of a controlled drug with intent to sell or 

distribute (cocaine). See RSA 318-B:2, I (2011). On appeal, she argues that 

the trial court erred by denying her motion to suppress evidence seized during 

a stop for a motor vehicle violation, and by denying her motion to dismiss the 

possession with intent to sell or distribute charge at the close of the State’s 

case at trial. We reverse and remand.
2

I. Background

We accept the trial court’s findings where supported by the record of the 

suppression hearing. See State v. Roy, 167 N.H. 276, 282 (2015). For the 

purpose of determining the sufficiency of the evidence, we also consider facts 

adduced at trial. See State v. Rodney Portigue, 125 N.H. 352, 355 (1984). The 

following facts are relevant to our analysis. Shortly before midnight on

December 31, 2013, State Trooper McAulay observed a van traveling north on 

Interstate Route 95. After a computer license plate check indicated that the 

van’s license plate was registered to a different vehicle, McAulay activated his 

emergency blue lights. The van travelled “an unusually long distance”—

approximately one-eighth of a mile—before stopping. The trial court noted

that, according to McAulay’s testimony, based upon his training and 

experience, such a delay “can be indicative of an occupant in the car trying to 

hide something.”

When he approached the passenger side of the vehicle, McAulay observed

an adult male in the driver seat and an adult female in the front passenger 

seat. He also observed three young children in the back of the van: one

restrained in a car seat, one wearing a seatbelt, and the third lying down on a 

bench seat and covered with blankets. According to McAulay, the children 

were underdressed for the cold weather, and it appeared as though they had 

been “thrown in the back” of the van.

McAulay illuminated the cabin with a flashlight and requested the 

driver’s license and the vehicle’s registration paperwork. The driver, Jason 

Millett, produced a valid driver’s license and the van’s registration. The 

registration paperwork indicated that the van was recently registered to the 

adult female passenger, later identified as the defendant.

McAulay asked Millett from where they had been traveling. Millett 

replied that they had been visiting the defendant’s friend in Massachusetts, but 

could not recall the name of the town. Millett stated that the town’s name 

began with the letter W, and tried to pronounce the town’s name in an “almost 

stuttering” fashion. The defendant did not interject, but, rather, kept looking 

forward. Although Millett looked at McAulay when handing over his license 

and the registration, he looked forward the remainder of the time. Millett

appeared to be unusually nervous; he was “jittery” and “shaking 

uncontrollably.” After reviewing the documentation Millett provided, McAulay

asked why the children were not properly restrained. McAulay could not 

remember precisely how the defendant and Millett responded, but he testified 

that they could not explain why the children were not properly restrained.

McAulay then returned to his cruiser, where he spoke with Sergeant 

Cooper who had arrived on scene. McAulay, according to his testimony, “felt 

there was a lot more to the story than [Millett and the defendant] were putting 
3

on.” He testified that he suspected the defendant and Millett had been, were, 

or were about to become engaged in criminal activity, but that he “didn’t know 

at that point” what that might be.

When he returned to the van, McAulay asked Millett to step outside and 

speak with him. Millett complied.

Outside the van, Millett repeatedly placed his hands in his pockets, 

despite McAulay’s request that he refrain from doing so. McAulay asked Millett 

whether he was carrying any weapons, and Millett replied in the negative. A 

pat frisk confirmed that Millett had responded truthfully. However, Millett 

continued to appear “very nervous” and paced back and forth. He also paused 

and looked away from McAulay before answering questions. McAulay

questioned Millett about where they had been. Millett again stated that they 

had come from a town in Massachusetts, and that the town’s name began with 

the letter W. McAulay asked whether he meant Worcester, and Millett replied 

that Worcester “sounded right.” In response to McAulay’s questioning 

regarding the family’s travel itinerary, Millett stated that the family had left 

Maine at approximately 2:00 p.m. that day and had visited the defendant’s 

friend. At that time, McAulay asked if there were “any drugs or any illegal 

items” in the van. Millett replied that there were not.

In the meantime, Cooper spoke with the defendant. The defendant 

reported a different itinerary to Cooper than Millett had provided to McAulay.

Cooper then informed McAulay of the defendant’s version, and McAulay

questioned Millett about inconsistencies between Millett’s and the defendant’s 

stories. Unable to explain the inconsistencies, Millett became increasingly 

nervous and adopted a “fight or flight” stance.

McAulay then requested Millett’s consent to search the van. Millett 

refused. McAulay thereafter informed Millett of his right to refuse consent. He

also requested a canine unit to perform a sniff of the vehicle, and told Millett

that he planned to apply for a search warrant if the dog signaled that the 

vehicle contained contraband. At this point, Millett verbally consented to the 

search, and subsequently executed a “consent to search” form. A search of the 

van revealed, among other things, oxycodone, alprazolam, lisdexamfetamine, 

and cocaine. Millett and the defendant were arrested.

Prior to their respective trials, both Millett and the defendant moved to 

suppress the evidence obtained from McAulay’s search of the van. The trial 

court consolidated the two cases for a suppression hearing, and, after the 

hearing, denied Millett’s and the defendant’s motions.

At trial, the State presented the testimony of Cooper, McAulay, and a 

controlled substances identification expert from the State crime lab. Cooper 

testified that, during the motor vehicle stop, the defendant told him that Millett 
4

was her boyfriend, that they had been together for approximately fourteen 

years, and that she and Millett were the parents of the three children in the 

rear of the van. He also testified that the defendant told him that the family 

had been in Connecticut visiting her aunt, and had stopped to see her friend in 

Massachusetts. Cooper described the defendant’s demeanor during the stop as 

“pretty relaxed,” explaining that she “seem[ed] to look like she was . . . tired”

and that her “speech was kind of slowed.”

McAulay testified to both the circumstances of the motor vehicle stop 

and to his search of the van. McAulay explained that he recovered three 

prescription bottles containing pills from a purse located on the floor of the 

passenger compartment of the vehicle. He also explained that he found an 

unlocked, magnetized black box located between the driver and passenger 

seats, directly in front of the first row of bench seats in the rear of the van, and 

underneath a jacket or blanket. According to McAulay, the black box held 

several pieces of gum, a Trident gum wrapper, $1,930 in cash, and two plastic 

sandwich bags containing a solid, hard-pressed white substance. McAulay 

testified that a person seated in either the driver seat or the passenger seat

could have accessed the black box. He also testified that, based upon his 

training and experience, the magnetized black box was of the type typically 

used as a “hide,” which he explained “can basically be stored underneath a 

vehicle . . . anywhere that isn’t inside the vehicle.” McAulay also testified that 

Millett was searched incident to his arrest, that this search revealed a piece of 

Trident gum in the pocket of Millett’s sweatshirt, and that a subsequent 

warrant search of the van revealed a portion of a prescription pill near the 

driver’s seat, two cellular telephones, and $121 in cash in the center console of 

the vehicle.

Also at trial, the controlled substances identification expert testified that 

she tested one of each kind of the pills recovered from the purse, and found the 

pills to contain oxycodone, alprazolam, and lisdexamfetamine, respectively. 

She also testified that she tested the white substance contained in the black 

box and found it to be approximately 2.88 ounces of cocaine. According to 

McAulay, this amount of cocaine was “much more than what [is] typically 

see[n] for . . . someone that uses cocaine for their own habit.”

After the State rested, the defendant moved to dismiss the indictment 

alleging possession with intent to sell or distribute cocaine, arguing that the 

trial record was devoid of evidence that she directly or constructively possessed 

the cocaine. The trial court denied the defendant’s motion to dismiss, 

reasoning that the evidence presented “would allow a jury to reasonably 

conclude that [she] had constructive possession of the box with the cocaine in 

it.” The trial court specifically identified this evidence as including: the 

defendant’s lack of responsiveness during the stop, the box’s accessibility from 

the passenger seat, and the proximity of the box to the defendant’s children.
5

The jury thereafter convicted the defendant on all charges. This appeal 

followed.

II. Motion to Suppress

The defendantfirst contends that the trial court’s failure to suppress the 

evidence seized from the van violated her state and federal constitutional rights 

to be free from unreasonable searches and seizures. See N.H. CONST. pt. I, 

art. 19; U.S. CONST. amends. IV, XIV.

We first address the defendant’s claim under the State Constitution and 

rely upon federal law only to aid our analysis. State v. Ball, 124 N.H. 226, 231-

33 (1983). When reviewing a trial court’s order on a motion to suppress, we 

accept the trial court’s factual findings unless they lack support in the record 

or are clearly erroneous, and we review legal conclusions de novo. State v. 

Blesdell-Moore, 166 N.H. 183, 187 (2014).

“Part I, Article 19 of the New Hampshire Constitution protects all people, 

their papers, their possessions and their homes from unreasonable searches 

and seizures.” Id. (quotation omitted). Evidence obtained in violation of a 

defendant’s rights under Part I, Article 19 of the State Constitution is 

inadmissible under the exclusionary rule, though an exception to this rule may 

apply if the State proves that the taint of the primary illegality is purged. Id.

“A traffic stop is a ‘seizure’ . . . even though the purpose of the stop is 

limited and the resulting detention quite brief.” State v. McKinnon-Andrews, 

151 N.H. 19, 22 (2004) (quotation omitted). Such a stop is lawful when “the 

police have an articulable suspicion that the person detained has committed or 

is about to commit a crime.” Id. (quotation omitted). “The scope of such an 

investigative stop must be carefully tailored to its underlying justification, must 

be temporary, and [must] last no longer than is necessary to effectuate the 

purpose of the stop.” Blesdell-Moore, 166 N.H. at 187 (quotation and brackets 

omitted). “The scope of a stop may be expanded to investigate other suspected 

illegal activity only if the officer has a reasonable and articulable suspicion that 

other criminal activity is afoot.” Id. (quotation omitted). “An investigatory stop 

may metamorphose into an overly prolonged or intrusive detention (and, thus, 

become unlawful).” Id. (quotation omitted). “Whether the detention is a lawful 

investigatory stop, or goes beyond the limits of such a stop, depends upon the 

facts and circumstances of the particular case.” Id.

We have adopted a three-pronged test to determine whether the scope of 

an otherwise valid stop has been exceeded based on further questioning:

 

 Millett’s and the defendant’s cases are not consolidated on appeal.
6

If the question is reasonably related to the purpose of the stop, no 

constitutional violation occurs. If the question is not reasonably 

related to the purpose of the stop, we must consider whether the 

law enforcement officer had a reasonable, articulable suspicion 

that would justify the question. If the question is so justified, no 

constitutional violation occurs. In the absence of a reasonable 

connection to the purpose of the stop or a reasonable, articulable 

suspicion, we must consider whether in light of all the 

circumstances and common sense, the question impermissibly 

prolonged the detention or changed the fundamental nature of the 

stop.

McKinnon-Andrews, 151 N.H. at 25 (quotation and brackets omitted). The 

State bears the burden of establishing under this test that the scope of an 

otherwise valid stop was not exceeded. Cf. State v. Parker, 127 N.H. 525, 529 

(1985) (“The State has the burden of justifying the stop of the defendant’s 

vehicle as a legitimate investigative stop.”).

Here, the trial court identified McAulay’s request that Millett step out of 

the vehicle as the relevant point of expansion of the stop. The trial court found 

that “the expansion was valid under the second prong of the McKinnonAndrews test,” reasoning that, by this time, McAulay had a reasonable, 

articulable suspicion that the defendant and Millett were engaged in “any 

number of . . . crimes, including kidnapping” and “drug smuggling.” It 

concluded that, therefore, McAulay was justified in questioning Millett outside 

the van and later calling for a canine unit.

On appeal, the defendant does not dispute that McAulay had a 

reasonable, articulable suspicion for the initial stop of her vehicle. Instead, she 

argues that the trial court erred in finding that the requirements of McKinnonAndrews for permissibly expanding the initial scope of the stop had been met. 

We agree.

In their briefs and at oral argument, the parties devoted considerable 

effort to debating the issues of whether, to be justified in expanding the scope 

of a traffic stop, a police officer must have an articulable suspicion about a 

particular type of criminal activity, or merely criminal activity generally. They 

also argued about whether McAulay possessed a proper basis for the expansion 

at various points during the interaction with the defendant and Millett before 

McAulay called for the canine unit. We find it unnecessary to address these 

arguments. Regardless of whether McAulay was justified in pursuing some 

further inquiries of the defendant and Millett, by the time McAulay called for 

the canine unit, he had already satisfactorily resolved the license plate issue 

that provided the initial justification for the stop, and none of his further 

inquiries established a reasonable suspicion that the vehicle contained illegal 

drugs. Thus, McAulay’s implied ultimatum to Millett to either permit a search 
7

of the vehicle or wait some unspecified length of time for the canine unit to 

arrive prolonged the stop without a proper basis for doing so. See Rodriguez v. 

United States, 135 S. Ct. 1609, 1616 (2015).

We note that, at the suppression hearing, McAulay testified that the 

absence of a proper child safety seat for one of the children in the vehicle could 

not be resolved “immediately on the roadside.” To the extent that this 

testimony could be interpreted to suggest a valid alternative reason for 

prolonging the stop, the State does not, on appeal, seek to justify the 

prolongation of the stop on this basis.

Accordingly, we hold that the continued detention of the defendant after 

the call for a canine unit was unlawful.

Because the continued detention was unlawful, we next consider

whether the illegality of that detention tainted Millett’s consent to search the 

van. “The fruit of the poisonous tree doctrine requires the exclusion from trial 

of evidence derivatively obtained through a violation of Part I, Article 19 of the 

New Hampshire Constitution.” State v. Cobb, 143 N.H. 638, 650 (1999) 

(quotation omitted). We have implicitly adopted the federal rule that, when

consent is the product of an unlawful detention during a motor vehicle stop, 

such consent is “tainted” by the illegality of the detention. State v. Hight, 146 

N.H. 746, 749 (2001). However, we have not adopted a per se rule requiring 

suppression. Id. “Rather, . . . the question to be resolved 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.” Cobb, 143 N.H. 

at 650 (quotation omitted). The State bears the burden to “demonstrate that 

any taint of an illegal search or seizure has been purged or attenuated.” Hight, 

146 N.H. at 749 (quotation omitted).

The State does not argue that the taint of the unlawful detention has 

been purged or attenuated in the instant case. Accordingly, the State failed to 

meet its burden to establish that the evidence obtained as a result of the 

consent search of the van should not be suppressed. See id. The trial court 

erred in denying the defendant’s motion to suppress. Because the defendant 

prevails under the State Constitution, we need not reach her federal claim. See

Ball, 124 N.H. at 237.

III. Sufficiency of the Evidence

The defendant next argues that the evidence was insufficient to convict 

her of possession of cocaine with intent to sell or distribute. Although we 

conclude that the evidence obtained from the search of the van should have 

been suppressed at trial, we must address the defendant’s sufficiency of the 

evidence arguments “because if the evidence was insufficient to support the 
8

conviction, the Double Jeopardy Clauses of both the New Hampshire and 

United States Constitutions would preclude a new trial.” State v. Gordon, 161 

N.H. 410, 418 (2011) (quotation omitted). However, in determining whether the 

evidence was sufficient, we consider all the evidence—including evidence that 

was erroneously admitted. Id. Thus, although the evidence seized during the 

search of the van should not have been admitted at trial, we consider this 

evidence in assessing the defendant’s challenge to the sufficiency of the 

evidence.

“A challenge to the sufficiency of the evidence raises a claim of legal 

error; therefore, our standard of review is de novo.” State v. Collyns, 166 N.H. 

514, 517 (2014). “To prevail upon her challenge to the sufficiency of the 

evidence, the defendant must prove that no rational trier of fact, viewing all of 

the evidence and all reasonable inferences from it in the light most favorable to 

the State, could have found guilt beyond a reasonable doubt.” Id. (quotation 

and brackets omitted). When the evidence is solely circumstantial, it must 

exclude all reasonable conclusions except guilt. State v. Germain, 165 N.H. 

350, 360 (2013). “Under this standard, however, we still consider the evidence 

in the light most favorable to the State and examine each evidentiary item in 

context, not in isolation.” State v. Dodds, 159 N.H. 239, 246 (quotation 

omitted).

The defendant argues that the evidence was insufficient to establish that 

she: (1) knowingly possessed the cocaine; and (2) intended to distribute it. We 

first address the defendant’s challenges relating to possession and then turn to 

her challenges relating to intent to sell or distribute.

To convict the defendant of possession of a controlled substance, the 

State needed to prove beyond a reasonable doubt that the defendant: “(1) had 

knowledge of the nature of the drug; (2) had knowledge of its presence in [her]

vicinity; and (3) had custody of the drug and exercised dominion and control 

over it.” State v. Turmelle, 132 N.H. 148, 155 (1989) (quotation omitted). 

“When, as here, the defendant was not in physical possession of the drugs, the 

State must prove constructive possession.” State v. Francis, 167 N.H. 598, 604 

(2015). “This can be inferred from circumstances linking the defendant to the 

controlled substance, such as the presence of the defendant’s personal 

possessions near the drugs.” Id. at 604-05. “Constructive possession of drugs 

need not be exclusive.” Id. at 605. “As we have recognized, when more than 

one person occupies the premises where drugs are found, mere proof that a 

defendant is one of those occupants is insufficient to prove his constructive

possession.” Id. (quotation and brackets omitted). “However, evidence that the 

defendant’s personal possessions were in close proximity to the controlled 

substance may provide a sufficiently close nexus between the defendant and 

the substance to allow the jury to infer possession.” Id. (quotation omitted).
9

The defendant first argues that “there was insufficient evidence that [she] 

knew the cocaine was in her presence or that she constructively possessed it.” 

She contends that the evidence “connect[ing] her to the cocaine” was solely 

circumstantial, and that the evidence was insufficient because it did not 

exclude all reasonable conclusions except guilt. See Germain, 165 N.H. at 360. 

She claims that it would have been “reasonable to infer that [she] did not know 

that [the cocaine] was there,” and appears to contend that her presence in the 

vicinity of the box was insufficient, without more, to establish that she—as 

opposed to Millett—constructively possessed the cocaine. We disagree.

Here, the evidence at trial established that the van in which the cocaine 

was found was registered to the defendant, and that the defendant was a 

passenger in the vehicle. The only other adult in the vehicle was not a stranger 

but was, rather, someone with whom the defendant was intimately familiar. 

According to the information the defendant provided to Cooper, the family had 

been visiting not unknown persons but, rather, her friends and family. The 

cocaine was found inside an unlocked box within the defendant’s reach from 

the passenger seat, near the defendant’s children and her purse. Although 

there was evidence demonstrating that the box containing the cocaine was 

hidden underneath a jacket or blanket, there is no evidence to suggest that 

anyone placed it in the defendant’s vehicle unbeknownst to her. Further, 

McAulay testified that the defendant behaved unusually during the stop by 

failing to acknowledge his presence, and by failing to interject herself into the 

conversation between Millett and McAulay when Millett was struggling to 

remember details about their trip.

Based upon this evidence, and all reasonable inferences from it in the 

light most favorable to the State, a rational trier of fact could conclude beyond 

a reasonable doubt that the defendant knew of the presence of the cocaine 

within the van and constructively possessed it. See State v. Tabaldi, 165 N.H. 

306, 316 (2013) (evidence sufficient to establish constructive possession when

drugs found inside cigarette box “in a location over which the defendant could 

exercise dominion and control” and defendant’s bag was located nearby). 

“Personal possessions of the defendant found in close proximity to the 

controlled substance may provide a sufficiently close nexus between the 

defendant and the substance to allow the jury to infer possession.” Id.

(quotation and brackets omitted). Although a rational trier of fact could have 

also concluded that Millett constructively possessed the drugs, the State did 

not need to prove that the defendant’s constructive possession of the cocaine 

was exclusive. See State v. Saide, 114 N.H. 735, 739 (1974).

The defendant next argues that there was insufficient evidence that she 

intended to distribute the cocaine. Because the defendant concedes that she 

did not raise this argument before the trial court, we consider this argument 

under the plain error rule. See Sup. Ct. R. 16-A; State v. Russell, 159 N.H. 

475, 489 (2009). “Under the plain error rule, we may consider errors not 
10

raised before the trial court.” State v. Houghton, 168 N.H. 269, 273 (2015) 

(quotation omitted). “However, the rule should be used sparingly, its use 

limited to those circumstances in which a miscarriage of justice would 

otherwise result.” Id. (quotation omitted). “To find plain error: (1) there must 

be an error; (2) the error must be plain; (3) the error must affect substantial 

rights; and (4) the error must seriously affect the fairness, integrity or public 

reputation of judicial proceedings.” Id. (quotation omitted).

In order to sustain a conviction for possession of a controlled substance 

with intent to sell or distribute, see RSA 318-B:2, I, the State was required to 

prove, among other things, that the defendant intended to sell or give the drug 

to another person. State v. Grote, 127 N.H. 748, 750 (1986) (applying prior 

version of statute). Citing only the evidence presented by the State relating to 

her demeanor, the defendant argues that there was insufficient evidence of her 

intent to sell or distribute. However, here, the evidence of the defendant’s 

intent was not limited to her demeanor. Other evidence of the defendant’s 

intent to sell or distribute included the circumstances surrounding her

constructive possession of approximately 2.88 ounces of cocaine. According to 

McAulay, that amount is “much more than what [is] typically see[n] for . . . 

someone that uses cocaine for their own habit.” Further, the cocaine was 

found inside a box that contained $1,930 in cash. From this evidence, a 

rational trier of fact could conclude beyond a reasonable doubt that the 

defendant intended to sell or distribute the cocaine. Cf. id. (evidence sufficient 

to establish intent to sell when drugs found along with notebook with 

calculations, address book, and large sum of cash); United States v. Rains, 615 

F.3d 589, 594 (5th Cir. 2010) (evidence sufficient to establish intent to sell 

when drugs found, along with $3,000, in an amount “much more than a 

normal amount for daily personal use”). Accordingly, we conclude that the trial 

court did not err in finding sufficient evidence that the defendant possessed 

cocaine with intent to sell or distribute, and, therefore, the defendant has failed 

to meet the first prong of the plain error test. See State v. Moussa, 164 N.H. 

108, 129 (2012).

Because the defendant’s sufficiency challenge fails, and therefore retrial 

is not precluded under the double jeopardy doctrine, we remand for further 

proceedings consistent with this opinion.

Reversed and remanded.

DALIANIS, C.J., and CONBOY and BASSETT, JJ., concurred; HICKS, J., 

concurred specially.

HICKS, J., concurring specially. The majority applies the three-part test 

we articulated in State v. McKinnon-Andrews, 151 N.H. 19, 25 (2004), for 

determining whether a police officer’s questioning exceeds the scope of a lawful 

traffic stop. Applying this test, the majority holds that McAulay impermissibly 
11

expanded the scope of the traffic stop by requesting a canine unit to perform a 

sniff of the vehicle. While I agree with the majority that the evidence obtained 

as a result of the subsequent consent search must be suppressed, I write 

separately because I would apply the third prong of the McKinnon-Andrews

test differently than the majority.

Consistent with the majority opinion, I believe that the first two prongs of 

the McKinnon-Andrews test were not satisfied in the instant case. McAulay’s 

request for a canine unit was not reasonably related to the initial justification 

for the stop. Cf. id. at 25 (holding officer’s question regarding contents of 

defendant’s vehicle not reasonably related to purpose of traffic stop). 

Additionally, it was not based upon any reasonable suspicion that arose before 

McAulay made the request. See State v. Blesdell-Moore, 166 N.H. 183, 185, 

189 (2014) (defendant’s nervousness, trembling hands, and bloodshot eyes did 

not justify questioning about drug use); Viveros v. State, 828 S.W.2d 2, 4 (Tex.

Crim. App. 1992) (en banc) (although officer considered defendant’s behavior to 

be “unusual,” officer lacked reasonable suspicion when there was no indication 

that the unusual activity was related to crime).

The third prong of the test requires consideration of whether “in light of 

all the circumstances, the question impermissibly prolonged the detention or 

changed its fundamental nature.” McKinnon-Andrews, 151 N.H. at 25. This 

prong is dual-faceted; one facet relates to the length of the detention, and the 

other relates to the nature of the stop. The majority relies on the facet relating 

to the length of the detention, concluding that McAulay “prolonged the stop 

without a proper basis for doing so.” With much respect for the majority, I 

would rely upon the facet of the third prong relating to the nature of the stop 

given the facts of this case. I believe that a sounder rationale for concluding 

that the third prong of the test was not satisfied is that the request for a canine 

unit “changed the fundamental nature of the stop.” Id.

In my view, the traffic stop was transformed into an investigation of 

criminal activity relating to the possession of contraband, at the latest, when 

McAulay requested a canine unit. By making this request, he plainly sought to 

determine whether Millett and the defendant possessed illegal drugs or some 

other form of contraband. A reasonable motorist in Millett’s position would 

understand that this request altered the fundamental nature of the stop. See

Blesdell-Moore, 166 N.H. at 190 (considering perception of reasonable 

motorist); McKinnon-Andrews, 151 N.H. at 28-29 (Broderick, J., concurring 

specially) (concluding that officer’s question regarding contents of vehicle 

altered fundamental nature of traffic stop based, in part, upon reasonable 

motorist’s perception). An investigation into the possession of contraband is 

fundamentally different from an investigation of traffic violations, such as the 

misuse of plates and improper child restraints at issue here—or even an

investigation of potential kidnapping, which the State claims was justified by 

reasonable suspicion. Further, as the majority notes, McAulay “had already 
12

satisfactorily resolved the license plate issue that provided the initial 

justification for the stop.”

For these reasons, I believe that the stop metamorphosed into an overly 

intrusive detention, at the latest, by the time McAulay requested the canine 

unit. See Blesdell-Moore, 166 N.H. at 187. Thus, I would hold that McAulay’s 

request for a canine unit “changed the fundamental nature of the stop.” 

McKinnon-Andrews, 151 N.H. at 25.