State v. Clegg (2026 N.H. 11): Exigency Determinations Are Reviewed De Novo, and Third-Party Warrant-Response Delay Does Not Supply “Exigency”

I. Introduction

In State v. Clegg, the New Hampshire Supreme Court addressed whether police may rely on the exigent circumstances exception to obtain real-time and related cell-carrier data without a warrant when attempting to locate a murder suspect months after the offense. The defendant, Logan Clegg, was convicted after a jury trial of two counts of knowing second degree murder (RSA 630:1-b, I(a)), four counts of falsifying physical evidence (RSA 641:6, I), and one count of being a felon in possession of a firearm (RSA 159:3, I).

The suppression dispute arose from three warrantless requests the Concord Police Department (CPD) submitted to Verizon via an “exigency hotline” for (1) “ping” location data, (2) historical text-message detail records, and (3) “Range to Tower” (RTT) data, after learning the defendant had booked an international flight departing in approximately 56 hours. The trial court denied suppression, concluding exigent circumstances justified the warrantless carrier-data searches.

The Supreme Court vacated the suppression ruling and remanded for consideration of the State’s alternative theory—whether the evidence is nonetheless admissible under the inevitable discovery doctrine.

II. Summary of the Opinion

  • New clarification of appellate review: Exigency is a mixed question of fact and law. The Court accepts supported historical facts unless clearly erroneous, but reviews de novo the ultimate legal determination whether exigent circumstances existed.
  • Exigency rejected on this record: The State failed to show that a few-hours delay to obtain a warrant created a substantial threat of imminent danger, likely destruction of evidence, or likely escape.
  • Carrier response time is not the relevant “delay”: The “delay” in the exigency inquiry is the time to obtain the warrant, not how long a carrier might take to respond through ordinary channels.
  • Remand: The trial court must decide whether inevitable discovery (State v. Broadus) defeats suppression.

III. Analysis

A. Precedents Cited

1. State constitutional primacy

Following State v. Ball, the Court analyzed the claim under Part I, Article 19 first, using federal law only as a guide. Because the defendant prevailed under Article 19, the Court did not reach the Fourth Amendment.

2. Article 19’s baseline rule and the exigency framework

Relying on State v. Robinson and State v. Gay, the Court reiterated that warrantless searches are per se unreasonable unless within a narrow exception, with the State bearing the burden by a preponderance (Gay). Exigency requires (1) probable cause and (2) exigent circumstances (Gay), and the defendant did not contest probable cause.

The Court quoted Gay for the operative standard: police must face a compelling need for immediate action, and delay from obtaining a warrant must create a substantial threat of imminent danger to life/public safety or a likelihood evidence will be destroyed. It also drew from Robinson for assessing the totality of circumstances, including how the situation developed and the reasonableness of police conduct leading up to the search.

The Court’s conclusion that the circumstances did not “make it impracticable to obtain a warrant” tracked State v. Graca.

3. Clarifying the standard of review: from MacDonald to Ford

The Court confronted tension in earlier descriptions of exigency as “largely a question of fact,” a phrase originating in State v. MacDonald (based on federal law), and later treatments in State v. Graca, State v. Santana, and State v. Pseudae.

Using State v. Ford (Miranda custody review) as the template, the Court held exigency is a “law-dominated mixed question”: historical facts are reviewed for clear error, but the ultimate exigency determination is reviewed de novo. This is the opinion’s most explicit doctrinal clarification and is likely to matter beyond the cell-data context.

4. Federal and sister-state persuasive authorities

  • Morse v. Cloutier (1st Cir.) supported the objective “reasonable officer” framing of the exigency inquiry.
  • State v. Murphy (Vt.) informed the Court’s view that carrier response time to a warrant is not part of the Article 19 exigency analysis.
  • Commonwealth v. Reed (Ky.) was cited for the proposition that turning off a phone prevents ping collection, while the Court cautioned that mere possibility is not enough.
  • Coolidge v. New Hampshire (later overruled on other grounds by Horton v. California) was used to highlight how prior opportunity to destroy evidence undercuts exigency.
  • Commonwealth v. Almonor (Mass.) was used as a contrasting example where exigency was supported by case-specific facts (near-contemporaneous information that the suspect still had the murder weapon).
  • People v. White (Ill.) reinforced that substantial time between crime and location discovery can diminish the urgency of proceeding without a warrant.

B. Legal Reasoning

1. The key “delay” is the time to get a warrant, not Verizon’s internal processing time

The trial court credited CPD’s “impression” that warrants to Verizon could take “days or weeks,” and treated that as supporting exigency. The Supreme Court rejected the premise as legally irrelevant: Article 19’s exigency exception is keyed to the consequences of delay in obtaining a warrant (Gay), not a third party’s (carrier’s) response time after a warrant issues. The Court reasoned that constitutional protection cannot turn on how quickly (or slowly) a private intermediary happens to process legal process.

2. Police must have an objectively reasonable basis for operational assumptions used to justify bypassing a warrant

CPD believed it needed to choose between (a) using Verizon’s exigency hotline or (b) obtaining a warrant—treating the two as mutually exclusive. The Supreme Court held the record lacked an objective basis for that belief: there was no demonstrated Verizon policy that would bar or deprioritize exigency-hotline use when officers also have a warrant. Testimony that such a limitation was merely “implied” was insufficient, especially where:

  • the State did not introduce Verizon’s current law-enforcement guidelines,
  • an admitted (though outdated) version did not state such a prohibition,
  • an officer conceded he never tried using the hotline with a warrant, and
  • the form suggested Verizon would not provide more than 48 hours of location data without a warrant (implying warrants and the hotline can coexist).

This aspect of the decision is a practical evidentiary lesson: when the State justifies warrantless digital surveillance by claiming “we couldn’t get timely results with a warrant,” it must prove the premise with objective support, not assumption.

3. With the true warrant-delay being only “a few hours,” the claimed exigency did not hold

The record showed CPD obtained a separate warrant (for a cell-site simulator) in under six hours, even after business hours, indicating the relevant “delay caused by obtaining a search warrant” would have been modest.

a. Escape risk

The Court framed CPD’s situation as two likely scenarios: (1) the defendant attempts to take the scheduled flight in ~56 hours, or (2) he does not. In scenario (1), the Court found no record basis that CPD needed immediate pinging (without a warrant) because the airport setting provides a concrete and regulated interception opportunity. In scenario (2), the State leaned on the possibility the defendant could turn off/discard the phone at any moment; the Court rejected that as a “theoretical risk untethered from any specific circumstances,” emphasizing there was no evidence the defendant knew police had his number and thus no case-specific reason to believe he would imminently disable the phone.

b. Destruction of evidence (the murder weapon)

The trial court inferred a “substantial likelihood” the defendant still had the weapon and would discard it before fleeing. The Supreme Court held that inference was inadequately supported given:

  • the murders occurred five months earlier,
  • there was evidence the defendant destroyed other evidence soon after the murders (making continued possession of the gun less likely), and
  • there was no objective evidence—beyond non-recovery—that he still possessed the weapon.

By contrasting Commonwealth v. Almonor, the Court signaled that weapon-based exigency requires contemporaneous, particularized facts, not generalized speculation.

c. Imminent danger to life or public safety

Although probable cause supported the seriousness of the suspected crime and the possibility the defendant was armed, the Court found the State failed to connect those concerns to imminence at the time of the carrier-data requests. Critically, five months had passed with no evidence of further crimes by the defendant or his alias, distinguishing State v. Theodosopoulos (an active, immediate sniper threat) and aligning with People v. White (time lapse undercuts claim that a few more hours will likely lead to further serious crime).

4. The holding and remedy

The Court held no exigent circumstances justified the warrantless Verizon data searches under Part I, Article 19, vacated the denial of suppression, and remanded solely for the trial court to determine whether suppression is avoided by inevitable discovery under State v. Broadus.

C. Impact

  • Appellate scrutiny increases: By adopting de novo review of the ultimate exigency determination, the Court reduces deference to trial courts on the bottom-line constitutional judgment, likely producing more uniform statewide application and more reversals where “exigency” rests on thin inferences.
  • Digital-location exigency narrowed: The decision strongly discourages “exigency by vendor delay” arguments. Law enforcement must focus on why it was impracticable to obtain a warrant in time, not on a carrier’s ordinary processing queues.
  • Operational proof requirements: If police claim they could not combine a warrant with rapid carrier production mechanisms, the State must substantiate the claim (policies, carrier testimony, guidelines), not rely on “impressions.”
  • Time-lapse matters: The opinion underscores that the passage of months after a violent crime, without intervening dangerous conduct, makes it difficult to prove “imminent” public-safety danger for warrantless tracking.
  • Inevitable discovery becomes pivotal on remand: The State may still salvage evidence if it can show it would have been discovered by lawful means independent of the unlawful carrier-data searches.

IV. Complex Concepts Simplified

Exigent circumstances
A narrow exception that permits a warrantless search only when police have a compelling need to act immediately and waiting to get a warrant would likely cause imminent danger, allow escape, or lead to destruction of evidence.
“Ping” data
A carrier-provided location approximation showing the general area of a phone based on its connection to a cell tower.
Historical text-message details
Records identifying numbers that sent/received texts (generally metadata, not necessarily message content), used here to develop leads about the phone’s contacts.
RTT (“Range to Tower”) data
A more precise carrier-based technique estimating distance between the phone and a tower to narrow location.
Mixed question of fact and law
A decision that depends on both (a) what happened (facts) and (b) applying a legal standard to those facts. Here: whether the established facts add up to “exigency” is reviewed de novo.
Inevitable discovery doctrine
Even if police acted unlawfully, evidence may still be admitted if the State proves the evidence would have been found anyway through lawful investigative steps.

V. Conclusion

State v. Clegg tightens New Hampshire’s exigency doctrine in the context of warrantless cell-carrier data acquisition and, importantly, announces a clarified appellate framework: while historical facts are reviewed for clear error, the ultimate question whether exigent circumstances existed is reviewed de novo. The opinion rejects reliance on speculative risks (a phone could be turned off “at any moment”) and on third-party processing timelines (carrier delay), emphasizing that exigency must be grounded in objective, case-specific facts showing that taking the time to obtain a warrant would likely create imminent harm, escape, or evidence destruction. The case now turns to whether inevitable discovery nonetheless permits admission of the challenged evidence on remand.