2012-481, State of New Hampshire v. Richard Gness

The defendant, Richard Gness, appeals his convictions

Schulman, on the brief and orally), for the defendant. Getman, Schulthess, & Steere, P.A., of Manchester (Andrew R.

general, on the brief and orally), for the State.

to press. Errors may be reported by E-mail at the following address:

editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as vodka at the Store.

p. 2 milliliter bottles of vodka. The defendant’s license did not allow him to sell approximately three and a half weeks earlier. The receipt listed six 750 bag and saw that it was a Commission receipt for both wine and vodka, dated

he observed some wine and a piece of paper. He removed the paper from the

Store. There, he peered into a box that contained a paper bag, inside of which At that point, the second investigator was inspecting the rear area of the

locate the wine invoices.

Commission rules. The defendant produced the beer invoices but could not least sixty days’ worth of invoices available for inspection, as required by produce the Store’s beer and wine invoices to verify that the defendant had at

Store. After the customer left the Store, the investigator asked the defendant to

turned, looked at the investigator and then back at the defendant, and left the

while he spoke, told the customer that he did not sell vodka. The customer asked for a certain brand of vodka. The defendant, looking at an investigator At some point during the inspection, a customer came into the Store and

desk where he kept paperwork for the Store. investigators his office, a room behind the customer area of the Store with a and grocery inventory. During the inspection, the defendant showed one of the

permission to enter the Store’s back storage rooms to observe the beer, wine,

inspection. The investigators then asked for, and received, the defendant’s the layout of the Store and other matters relevant to the annual premises investigators went into the Store and spoke with the defendant briefly about

premises checks to investigate complaints of possible license violations. Two

licensee that sells alcohol for use on and off premises, as well as additional

beer and wine for consumption off-premises. See RSA 178:18 (Supp. 2013). was licensed by the New Hampshire Liquor Commission (Commission) to sell owned and operated Dick’s General Store (Store) in Danbury. The defendant inspection. The Commission conducts annual premises inspections of every at the Store to investigate the allegation and to conduct an annual premises title XIII. On October 3, 2009, three investigators from the Commission arrived

The record establishes the following pertinent facts. The defendant

the defendant was selling liquor at the Store, in violation of his license and RSA

In 2009, the Commission was informed by an anonymous source that

lived in an apartment above the Store.

New Hampshire Constitution. We affirm. Fourth Amendment of the Federal Constitution and Part I, Article 19 of the

The defendant maintained an office behind the customer area of the Store and to aid our analysis.” State v. Ball, 124 N.H. 226, 231-33 (1983).

p. 3 defendant’s claim under the State Constitution and rely upon federal law only Part I, Article 19 of the New Hampshire Constitution. We first address the requirement, it violated the Fourth Amendment to the Federal Constitution and

the requirements of the administrative search exception to the warrant

search of his desk drawer. He argues that because the search did not satisfy motion to suppress the evidence derived from the warrantless, non-consensual On appeal, the defendant argues that the trial court erred in denying his

possession of marijuana. This appeal followed. possession of psilocin with intent to distribute, possession of cocaine, and

search of the desk drawer. After a jury trial, the defendant was convicted of

administrative search exception to the warrant requirement applied to the an evidentiary hearing, the trial court denied the motion, concluding that the to suppress all evidence derived from the search of his office desk. Following

with intent to distribute; and (3) possession of cocaine. Prior to trial, he moved

controlled drug psilocin with intent to distribute; (2) possession of marijuana The defendant was indicted on three charges: (1) possession of the

vodka.

where they found marijuana, cocaine, psilocybin mushrooms, and bottles of

pursuant to the warrant, they searched the defendant’s upstairs apartment applied for, and received, a search warrant. In conducting their search vegetative matter that smelled like marijuana. At that point the investigators

Inside, the investigator observed several plastic bags containing a green

believed was large enough to hold several 750 milliliter bottles of vodka. the defendant for permission, opened a desk drawer that the investigator vodka. One investigator went into the defendant’s office and, without asking

questions, the investigators continued their inspection in an effort to locate the

Accordingly, “a warrantless search is per se unreasonable and evidence derived

Because they did not believe the defendant’s conflicting answers to their

vodka at an offsite location.

from such a search is inadmissible unless the State proves that the search

from unreasonable searches and seizures. N.H. CONST pt. I, art. 19. The New Hampshire Constitution guarantees citizens the right to be free

defendant first stated that he had, but then stated that he was keeping the

an investigator to ask the defendant whether he had consumed the vodka. The the investigators asked him to retrieve the vodka, he became quiet, prompting purchased the vodka, and that it was in his apartment above the Store. When

defendant about the vodka. The defendant told the investigators that he had Upon discovering the receipt, both investigators questioned the p. 4 Appeal of Morgan, 144 N.H. at 50. Warrantless access to pertinent records

the alcohol industry. See RSA title XIII; cf. Hickingbotham v. Burke, 140 N.H.

and efficiently investigate wrongdoing that may pose a threat to public safety. the inspectors’ abilities to detect violations of state liquor laws and to quickly before inspecting a licensee’s commercial premises or records would impede

Hampshire has a substantial government interest in regulating all aspects of 4

scheme. See New York v. Burger, 482 U.S. 691, 702 (1987). Because our been regulated by the legislature” (quotation omitted)); Colonnade Corp. v.

regulatory scheme. We disagree. Requiring investigators to obtain a warrant

With regard to the first criterion, the defendant concedes that New

also is necessary to ensure that the mere prospect of inspections will prompt

industry, and that the inspections are carried out pursuant to a statutory aspect of the manufacture, sale and distribution of alcoholic beverages has

warrantless inspection of the desk drawer was not necessary to further the With regard to the second criterion, the defendant argues that the

it further. analyze them separately. regulations from colonial to modern times). Accordingly, we need not consider Id. (quotation omitted). Adoption of these specific criteria guarantees New United States, 397 U.S. 72, 75-76 (1970) (noting the long history of alcohol

operator of the commercial premises is a participant in a “closely regulated” 28, 32 (1995) (noting that, “[s]ince the repeal of Prohibition, virtually every

current test adequately encompasses both factors, we need not consider nor program must provide a constitutionally adequate substitute for a warrant.” regulatory scheme. Finally, the implementation of the statutory inspection is made. Second, the warrantless inspections must be necessary to further the limiting factors in the administrative search exception analysis: that the As a threshold matter, the defendant argues that there are two additional

State v. Turmelle, 132 N.H. 148, 152 (1989) (quotation omitted). “In New Turmelle, 132 N.H. at 153. comes within one of the recognized exceptions to the warrant requirement.” Hampshire citizens protection against unreasonable administrative searches.

interest that informs the regulatory scheme pursuant to which the inspection criteria must be satisfied: “First, there must be a substantial government p. 4 Appeal of Morgan, 144 N.H. 44, 49 (1999). Before this exception applies, three Hampshire, we have explicitly recognized an administrative search exception.” second criterion was satisfied.

p. 5 this case was necessary to further the statutory scheme and, therefore, the wrongdoing, and deter statutory violations. For these reasons, the search in searches promote efficiency, allow investigators to quickly investigate potential

In the liquor industry, as in the pharmaceutical industry, warrantless

title”). respect to which any license has been issued under the provisions of this

See Appeal of Morgan, 144 N.H. at 47 (authorizing the pharmacy board to

investigators to “cause frequent inspections to be made of all the premises with

authority to enter the licensed premises and investigate statutory violations.

(Supp. 1998)); RSA 179:57, I (2002) (authorizing liquor commission

Id. at 50. and to quickly investigate wrongdoing that may pose a threat to public safety.” inspectors’ abilities to detect faulty records and illegal dispensation of drugs the defendant’s desk drawer. In both cases, the investigators had the statutory

an accountability audit — based upon his observations. Id. at 46. Like the

Appeal of Morgan is similar to the instant case. The compliance officer in “enter pharmacies to investigate possible violations” pursuant to RSA 318:8

searches because “requiring a warrant before an inspection would impede license. The investigators properly pursued further investigation by searching evidence that the defendant was selling vodka from the Store, in violation of his Federal and State Constitutions. Id. at 48. In upholding the search, we stated compliance officer in that case, the investigators here discovered strong

disorganized, in violation of Board rules, and authorized a further inspection — Morgan found that the pharmacy’s records were both inaccurate and

audit.” Id. at 46. As a result of the audit, the Board commenced proceedings inaccurate and disorganized and subsequently recommended an accountability

pharmacist-in-charge to conduct an inspection. Id. at 45-46. During the visit,

to further the statutory scheme. Id. In that case, a compliance officer from the that it satisfied the second criterion of the test for warrantless administrative

argued that the audit constituted an illegal administrative search under the pharmacist-in-charge and imposed a fine. Id. On appeal, the pharmacist Board restricted the pharmacist’s license to prevent him from acting as against the pharmacist for various statutory violations. Id. Ultimately, the deterrent effect. Id. licensees to comply with the law; thus, warrantless inspections also have a

the compliance officer observed that “a number of the pharmacy’s records were

New Hampshire Board of Pharmacy (Board) visited the pharmacy of a licensed

in which we found that the administrative search of a pharmacy was necessary requirement in the context of the pharmaceutical industry in Appeal of Morgan, We addressed the administrative search exception to the warrant title”; or “if the premises are regularly the site of violence.” RSA 179:57, I. By

p. 6 commission approval; failing to “carry out in good faith the purposes of this knowingly designating a convicted felon to be in charge of the premises without allowing the licensed premises “to be used for any unlawful purposes”;

superintend in person or through a manager approved by the commission”;

law or any of the rules of the commission adopted under” title XIII; failing “to suspending or revoking a liquor license: violation of “any of the provisions of RSA 179:57 lists six circumstances that may lead to the Commission

business.” RSA 175:1, LIV (2002). control or interest and which the licensee uses in the operation of the licensed real estate occupied by a licensee over which the licensee has direct or indirect

RSA 175:1 defines “premises,” in pertinent part, as “all parts of the contiguous

type within the purview of the regulatory scheme.” Id. at 154.

Commission rules issued pursuant to title XIII. RSA 176:9, III (Supp. 2008).

open the package to search for contraband. Id. at 154. In that case, the plant

reasonable belief that it would be appropriate to look for contraband there of a

In State v. Turmelle, we upheld a warrantless search of a package 176:9 allows investigators to enter licensee premises to investigate violations of Hawaii that had the ‘right weight and feel’ for agricultural contraband.” Id. at be made of all the premises” licensed under title XIII. RSA 179:57, I. RSA drawer was not sufficiently limited in time, place, and scope. We disagree. RSA 179:57 states that “[t]he commission shall cause frequent inspections to

As with the Plant Quarantine Act in Turmelle, RSA title XIII provides warrant — we looked to what factors guided the plant inspector’s decision to

insures that inspectors may only inspect a package when they have a limited inspectors’ discretion,” and showed that “the quarantine program led him to inspect the package “demonstrated that articulable guidelines

personal package lacking a permit stamp sent from a fruit-growing region of substitute for a warrant. Specifically, he contends that the search of the desk articulable guidelines that limit investigators’ discretion during inspections.

implementation of the statutory scheme served as an adequate substitute for a

search exception to the warrant requirement applied to the search. Turmelle,

153. We held that the plant inspector’s recitation of the particular factors that

inspector “reasonably believed that it would be appropriate for him to open a Commission’s inspection program did not provide a constitutionally adequate administrative search was not satisfied because the implementation of the Finally, the defendant argues that the third criterion for a warrantless

132 N.H. at 153. In analyzing the third criterion — whether the D

pursuant to the Federal Plant Quarantine Act, finding that the administrative putting licensees on notice of their obligations under Commission rules. See

p. 7 searches — thus sufficiently limiting investigator discretion — while also for a warrant: it provides investigators with concrete guidance during their unpersuasive, and believe that the statutory scheme is an adequate substitute

more private places such as desk drawers. We find this argument

wells, and by demanding that licensees produce records, rather than inspecting

by conducting unannounced inspections of public areas, kitchens, and bar statutory duties, and verified “virtually all aspects of compliance” with title XIII The defendant argues that the Commission could have satisfied its

The Federal Constitution offers the defendant no greater protection than does

investigators were well within their statutory authority to inspect the desk. defendant kept paperwork for operation of his business. Accordingly, the customer area of the Store, in the defendant’s office. The office was where the

the desk drawer violated the Fourth Amendment to the Federal Constitution.

subject to inspection. The desk was located on the premises, behind the

We finally address the defendant’s claim that the warrantless search of

adequate substitute for a warrant.

question that the defendant’s desk was part of the commercial “premises” to ensure that he was complying with Commission rules. Further, there is no reasonable for the investigators to inspect the defendant’s desk drawer in order

Thus, the third criterion was satisfied, as the statutory scheme provides an

in the “immediate container” in which he received them. Id. Further, the indicated that the defendant was selling vodka from the Store, it was licensees for resale.” RSA 178:18, I. The defendant could sell beverages only consumption only off the premises designated in the license and not to other provide[d] sufficient restraint on arbitrary agency action”) (citation omitted).

investigators during the inspection and from the anonymous source who 178:18, allowing him to sell “fortified wine, table wine, and beverages for administrative search exception was satisfied, as the “statutory scheme Appeal of Morgan, 144 N.H. at 50 (holding that the third criterion of the

Based upon the overall statutory scheme and the information gleaned by limitations. The defendant held a combination license pursuant to RSA license. In addition, the defendant’s license contained specific requirements and

operated under [his] control or an employee’s control.” Id. Thus, these specific products, and table or fortified wines ordered from and sold by [him] in vehicles

defendant on notice about actions that are unauthorized under his particular license restrictions both guide investigators during inspections and put the investigators during both annual inspections and premises checks. detailing the conditions that constitute license violations, the statute guides

license authorized the defendant “to transport and deliver beverages, tobacco p. 8 8

Affirmed.

Federal Constitution as we do under the State Constitution. three criteria of the test are satisfied, we reach the same result under the must provide a constitutionally adequate substitute for a warrant). Because all

DALIANIS, C.J., and HICKS, CONBOY, and BASSETT, JJ., concurred.

necessary to further the regulatory scheme; and (3) the inspection program

the State Constitution under these circumstances. See Burger, 4 p. 8 82 U.S. at

a substantial government interest; (2) the warrantless inspection must be Amendment, the following three-part test must be satisfied: (1) there must be commercial premises to be reasonable within the meaning of the Fourth 702 (stating that in order for a warrantless administrative inspection of a