Prosecutors Try To Justify Concord Police Illegal Searches In Clegg Double Murder Case

By DAMIEN FISHER, InDepthNH.org

If Concord Police detectives scrambling to find suspected killer Logan Clegg had not conducted three searches using illegally obtained cell phone data, they would have eventually conducted the searches legally.

Except, they didn’t.

Prosecutors with the New Hampshire Attorney General’s Office argued Tuesday in Merrimack County Superior Court that the evidence obtained during Clegg’s arrest — like his gun, his laptop, his $7,000 in cash, his Romanian identification — would have been found legally despite the fact the it was the three searches using illegal cell phone data, obtained without warrants, that made Clegg’s capture possible.

Assistant Attorney General Joshua Speicher told Judge John Kissinger that it was only a matter of time before police obtained legal warrants to use the cell phone data from the phone number believed to be connected to a killer, making his arrest and the subsequent evidence a sure thing.

“They were going to use this phone to find the defendant. That was their intention. There are only so many ways to do that,” Speicher said.

Clegg is serving 50-years to life for the 2022 murders of Stephen and Djeswende “Wendy” Reid. His conviction, though, could be overturned after last month’s New Hampshire Supreme Court ruling that found the cell phone searches were flagrantly unconstitutional.

Kissinger originally allowed the evidence from Clegg's arrest to come into the 2023 trial based on the theory police believed there were dire, exigent circumstances at play that made following the Constitution with their cell phone data optional. The Supreme Court justices didn’t buy that argument and ordered Kissinger to redo the evidentiary hearing on the cell phone data and the evidence that flowed from that use. The Supreme Court told Kissinger to reconsider his order in light of inevitable discovery rules.

The inevitable discovery legal doctrine does allow evidence obtained illegally to be used in trial if that evidence would have been found without the illegal actions. But it’s not a free pass to ignore the Constitution.

Speicher called Concord Police Lt. Marc McGonagle, Sgt. Wade Brown and Detective Carleton Brendan Ryder on Tuesday to testify that not only would they have gotten legal warrants for the data if they had not been able to get the data illegally, but that they did follow through and obtain search warrants for Clegg’s phone data. That warrant was approved by a judge in December of 2022, two months after Clegg’s arrest.

But Speicher’s attempt to keep the evidence from Clegg’s arrest in play is undercut by police testimony of regular illegal searches, according to defense attorney Thomas Barnard. McGonagle and Brown testified that Concord police routinely obtain cell phone data from Verizon without first getting a warrant by using an emergency Verizon line for law enforcement.

For the state to claim that police would have found and arrested Clegg without the illegal data, it needs to show Concord detectives are in the habit of getting warrants for cell phone data. Barnard called the state’s argument “If we hadn’t done it wrong, we would have done it right.” But that doesn’t work if police don’t do it right, Barnard said.

“Successful inevitable discovery arguments are typically based on a policy, protocol, custom, or practice. If the police hadn't violated the Constitution, they would have followed some standard practice. By following that standard practice, would have obtained the same evidence,” Barnard said. “Here, we have plenty of evidence of a policy, protocol, custom, or practice of the Concord Police. But it all shows that the police would not have applied for a warrant, and urged Verizon, or even asked Verizon, to respond to that warrant on an expedited basis.”

Kissinger has until June 15 to issue a new ruling on the inevitable discovery question under the Supreme Court’s ruling.

It’s still not known why Clegg shot and killed the Reids in April of 2022. The retired couple was out hiking in Concord when they were gunned down. Clegg, a homeless man wanted on a Utah warrant in a burglary case, was living in a tent in the woods close to where the Reids were found dead. There is no sign that the Reids were robbed or otherwise interfered with before or after the murders.

Clegg disappeared a couple of days after the murders, eventually making his way to Burlington, Vermont, where he got a job in a grocery store and continued to live in a tent. At trial, Clegg claimed he was frightened that the police presence in the woods would lead to his arrest on the Utah warrant. He was arrested in October of 2022 while at the Burlington Public Library.

This article first appeared on InDepthNH.org and is republished here under a Creative Commons license.