NH: Plain view inadvertency requirement abolished under state constitution as to drugs, weapons, and other items “dangerous in themselves”

Plain view inadvertency requirement abolished under state constitution as to drugs, weapons, and other items “dangerous in themselves.” State v. Nieves, 160 N.H. 245, 999 A.2d 389 (2010):

Some state courts have followed Horton and completely abolished the inadvertency requirement. See, e.g., State v. Loh, 914 P.2d 592, 600 (Mont. 1996); State v. Julius, 408 S.E.2d 1, 7 (W. Va. 1991). Hawaii and Massachusetts have declined to follow Horton and continue to require inadvertency. See Com. v. Balicki, 762 N.E.2d 290, 298 (Mass. 2002); State v. Meyer, 893 P.2d 159, 165 n.6 (Haw. 1995). A few courts have recognized the exception for objects that are “contraband,” “stolen,” or “dangerous in themselves” set out in Coolidge, 403 U.S. at 471. See, e.g., State v. Eady, 733 A.2d 112, 116 n.7 (Conn.), cert. denied, 528 U.S. 1030 (1999); State v. Nieves, 782 A.2d 203, 207 n.6 (Conn. App. Ct. 2001); Com. v. LaPlante, 622 N.E.2d 1357, 1361 n.9 (Mass. 1993) (inadvertency requirement does not apply to stolen goods). But see Balicki, 762 N.E.2d at 298 (finding that inadvertency requirement “continues to protect the possessory interests conferred on our citizens by” state constitution).

We hold today that, with respect to drugs, weapons, and other items “dangerous in themselves,” there is no longer an inadvertency requirement under our State Constitution. Coolidge, 403 U.S. at 471; see Eady, 733 A.2d at 116 n.7; Com. v. Hason, 439 N.E.2d 251, 256 (Mass. 1982). Thus, we need not consider the State’s argument that we should adopt Horton.

At a border checkpoint, defendant was stopped and referred to a secondary checkpoint area. The car was sniffed by a dog and she consented to an x-ray of the car. A large quantity of meth was found, and the DEA was called in because of the size of the find. They showed up nearly four hours later because of the long drive, and defendant then was found to have consented to a search of her cell phone. United States v. Velderraint, 2010 U.S. Dist. LEXIS 44025 (S.D. Cal. May 5, 2010).*