By DAMIEN FISHER, InDepthNH.org
The state’s excuse for obtaining convicted killer Logan Clegg’s cell phone data without a warrant didn’t stand up to state Supreme Court scrutiny, and they’re now getting another chance to finesse their case and keep Clegg imprisoned.
But there may be little to work with since prosecutors were on the record before trial saying police never would have found Clegg in Burlington, Vt. five months after the murders without the warrantless search.
Clegg is serving a 50-years-to-life sentence for the seemingly random killings of Stephen and Djeswende “Wendy” Reid, a retired Concord couple out hiking when they were shot to death in April of 2022. Clegg was homeless and living in the woods near where the Reids were killed. He disappeared days after the murders, and was eventually arrested in Vermont in October of 2022.
The New Hampshire Supreme Court on Tuesday remanded Merrimack County Superior Court Judge John Kissinger’s pre-trial ruling, which allowed in evidence stemming from the warrantless search.
That search enabled police to arrest Clegg and find items like a 9 mm Glock pistol, $7,000 in cash, and a Romanian identity card.
Kissinger, prosecutors, and defense lawyers met in a hearing Friday in the Concord courthouse to discuss what to do next.
Kissinger originally ruled there were valid emergency circumstances to exempt Concord detectives from waiting a few hours for a warrant, but a unanimous Supreme Court said that isn’t good enough to ignore basic constitutional rights.
“It is unreasonable that any individual’s freedom from governmental intrusion might be curtailed by virtue of how long it may or may not take a third party to respond to a warrant,” the justices wrote.
Tuesday’s order put Kissinger and the state on a tight deadline to reconsider the warrantless search, and Kissinger got the action started Friday in Merrimack Superior Court. And here’s where the question of inevitable discovery hangs over Clegg’s conviction.
The Supreme Court’s ruling instructed Kissinger to reconsider the evidence in light of the doctrine of the inevitable discovery doctrine. That’s the legal precedent that allows legally obtained evidence to be used in criminal cases if that evidence would have been discovered without any illegality. That’s actually a problem for prosecutors in Clegg’s case, one that Kissinger is now allowing them to fix.
The data that police obtained without a warrant were cell phone pings associated with the number linked to Clegg. Police were able to enter the ping data into a simulator program to pinpoint the phone’s location to Burlington, Vermont. But prosecutors told Kissinger before the start of Clegg’s 2023 trial they would need the pings to use the simulator. Without the warrantless pings, they would have made the arrest and obtained the evidence in question.
“I just want to be direct about a concern that I have, and, you know, you can take it for what it is, but … probably the dominant issue that was remanded down to this court for consideration is the question of inevitable discovery,” Kissinger said Friday. “And as I look at the state’s pleading, on the ping evidence, the state indicated that it could not have used the cell phone simulator device without the pings. That the state needed those pings in order to use the cell phone simulator device.”
Assistant Attorney General Joshua Speicher initially told Kissinger he did not plan to introduce any new evidence to address the inevitability question, but after being prompted by the judge, he agreed to consider adding additional evidence in his pending brief on the matter. Defense Attorney Maya Dominguez told Kissinger Clegg’s legal team objects to new evidence being introduced.
“Our position is that [Kissinger] has everything it needs in order to comply with that [Supreme Court] order,” Dominguez said. “Nowhere in the [Supreme Court] order does it specifically say that evidence should be reopened, and we would object to the reopening of evidence. I think that it goes against case law that talks about that objections need to be made at the earliest possible time. The state here did have the opportunity to make objections and make arguments regarding inevitable discovery. It should not be allowed to expand those arguments from what their original arguments and evidence were.”
But Kissinger told Dominguez the Supreme Court is leaving the rehearing to his discretion, and he wants to give prosecutors another chance to make their case for the warrantless search, and to work around their previous answers about inevitable discovery.
“I am inclined to allow the state to [introduce new evidence] only on the question of the inevitable discovery issue. And I think I’ve communicated a concern I have about representations that the state made in its initial objection to the suppression motion, and where that leaves the court in terms of the inevitable discovery question,” Kissinger said.
Prosecutors have until the end of the day on Monday to submit their brief on the warrantless search, and the defense will have a week to respond to that filing. Speicher told Kissinger the state is also considering whether or not it plans to file a motion to the Supreme Court to reconsider Tuesday’s ruling.