¶1dissenting. Although I join the Chief Justice in his dissent, I write separately because I have serious reservations about the validity of the initial stop, as well.
¶2The officer stopped this defendant because he smoked a small cigar, cupped it in his hand, and passed it once to a passenger who also inhaled from it. I question whether these facts are sufficient to justify stopping a citizen driving lawfully upon a public way. See State v. Hight, 146 N.H. 746, 748 (2001).
¶3The officer suspected that the defendant was smoking marijuana because of the size of the cigar and because the defendant cupped it in his hand and shared it with his passenger. He made these observations while passing the defendant’s car at approximately 65 to 70 miles per hour. Before he could make any other observations, he had passed the defendant’s car. Notably, the officer did not see the defendant and his passenger pass the small cigar back and forth. Nor did he observe how the defendant or his passenger inhaled and exhaled smoke.
¶4This case is distinguishable from others in which courts have held the facts sufficient to justify an investigatory stop. For instance, in People v. Jacobson, 596 N.E.2d 893, 895 (Ill. App. Ct. 1992), upon which the majority relies, the officer observed the defendant with a hand-rolled cigarette that he and his passenger passed back and forth four times. He observed that the way in which the two men handled and inhaled the cigarette was consistent with smoking a marijuana cigarette. Id.
¶5Similarly, in Provo City Corp. v. Spotts, 861 P.2d 437, 438 (Utah Ct. App. 1993), before stopping the defendant, the officer saw him smoke a hand-rolled cigarette that was shaped like a joint. She saw the joint disintegrate rapidly as it burned and observed that, although it was a warm day, the defendant had his ear windows rolled up. Id.Further, she saw the defendant inhale deeply before exhaling, which, based upon her experience, she believed to be consistent with taking hits off of a marijuana joint. Id. at 440. The officer made her observations while the defendant’s *389truck was stopped approximately ten feet from the officer’s vehicle. Id. at 438.
¶6It seems doubtful to me that cupping a small cigar inside one’s hand and passing it once to someone else are characteristics “so restricted to marijuana smokers as to arouse reasonable suspicion of unlawful conduct.” State v. Varnell, 410 So. 2d 1108, 1110 (La. 1982).