State v. Severance

• Decision Date: 30 January 1968
• Citation: 108 N.H. 404,237 A.2d 683
• Parties: STATE v. Anthony SEVERANCE.
• Court: New Hampshire Supreme Court

Page 683

237 A.2d 683

108 N.H. 404

STATE v. Anthony SEVERANCE.

Supreme Court of New Hampshire.

Argued Nov. 1, 1966.

Decided Jan. 30, 1968.

SYLLABUS BY THE COURT

1. A license to operate a motor vehicle, whether considered to be a privilege or a right, is subject to regulation under the police power.

2. The conducting of a road check of motorists on the public highway by the police for the good faith purpose of inspecting motor vehicle licenses and registration certificates was held to be authorized by statute ( RSA 261:1, 13 ; RSA 261:23 ; RSA 262:26) and is a constitutionally valid method of enforcing public safety so long as the road check is not used as a subterfuge for uncovering evidence of other crimes.

3. On transfer of questions of law arising from a motion to suppress evidence of intoxication, obtained by the police in the course of a road check of motorists on the highway for the purpose of examining licenses and registration certificates, the case was remanded for a determination of the question of fact whether the road check was a bona fide endeavor to enforce the license and registration laws or was being conducted for the purpose of discovering evidence of other crimes. Criminal complaint charging the defendant with operating a motor vehicle while under the influence of intoxicating liquor in violation of RSA 262-A:62 (supp). Prior to the hearing on the merits, the defendant moved to suppress evidence of intoxication, on the grounds that the evidence was obtained by the State Police as the result of a 'road check' in the course of which the officers had indiscriminately stopped all vehicles in a southerly line of traffic on a public highway. The State bases its case solely on the evidence obtained as a result of and in the course of the 'road check.' The exclusion of such evidence will result in a dismissal of the complaint.

The parties submitted an agreed statement of facts as follows: 'At 11:50 P.M. on the night of December 31, 1965, the New Hampshire State Police, four in number, together with the local police, two in number, set up a road check in the Town of Orford, County of Grafton, State of New Hampshire, at the junction of Routes 25A and 10. Said road check was established for the purposes of examining the licenses of operators and the registration of vehicles and not by reason of any report that a crime had been committed in the near vicinity or for any other purpose than a routine inspection procedure. Only those vehicles proceeding in a southerly direction were stopped. While in the conduct of said road check, the accused along with one other car were routinely stopped and examined. The accused was found to be a properly licensed operator and his vehicle was properly registered. However, the police, from their observation, were suspicious that the accused was under the influence of intoxicants and they placed him under arrest on a charge of driving while under the influence and they took him to the Hanover Police Station. The accused through counsel filed a Motion to Suppress Evidence obtained in said road check alleging the same to have been obtained in violation of the constitutional rights of the accused.'

The Hanover district court (Stebbins, J.) reserved and transferred all questions of law raised by the defendant's motion to suppress the evidence. RSA 502:24; RSA 502-A:34 (supp).

George S. Pappagianis, Atty. Gen., William F. Cann, Asst. Atty. Gen., and Robert E. Bowker, County Atty., for the State.

N. George Papademas, Lebanon (by brief and orally), for defendant.

PER CURIAM.

This test case challenges the legality and constitutionality of the practice of road checks by the State Police in which all motorists in one lane of traffic are stopped for routine inspection to ascertain whether the operator has a license and the motor vehicle is registered. The motor vehicle law requires the operator of a motor vehicle to be licensed (RSA 261:1, 13) and RSA 261:23 provides that 'every person operating a motor vehicle shall have the certificate of registration for said vehicle and his license to operate upon his person or in the vehicle in some easily accessible place * * *.' These statutory provisions are supplemented by RSA 262:26 which provides a penalty of a fine for a motor vehicle operator '* * * who shall refuse or neglect to stop when signaled to stop by any police officer who is in uniform * * * or who refuses on demand of such officer to produce his license to operate such vehicle or his certificate of registration * * *.' Similar statutory provisions in other jurisdictions are quite common and generally they have been construed as authorizing road checks as a valid and reasonable method of enforcing public safety. Mincy v. District of Columbia, 218 A.2d 507 (D.C.Ct.App.1966); State v. Kabayama, 94 N.J.Super. 78, 226 A.2d 760 (1967); Commonwealth v. Mitchell, 355 S.W.2d 686 (Ky.1962); State v. Smolen, 4 Conn.Cir. 385, 232 A.2d 339 (1967), petition for certification for appeal denied 231 A.2d 283 (Conn.1967); Morgan v. Town of Heidelberg, 246 Miss. 481, 150 So.2d 512 (1963); City of Miami v. Arnovitz, 114 So.2d 784 (Fla.1959); Lipton v. United States, 348 F.2d 591 (9th Cir. 1965). See Fisher, Laws of Arrest, s. 38 (Traffic Institute, Northwestern University 1967).

Any state '* * * has a legitimate interest in the roadworthiness of automobiles which transport, but which can maim and kill * * * This comprehends both technical fitness of the driver and the mechanical fitness of the machine. After the event it is always too late. The State can practice preventative therapy by reasonable road checks to ascertain whether man and machine meet the legislative determination of fitness. That this requires a momentary stopping of the traveling citizen is not fatal. Nor is it because the inspection may produce the irrefutable proof that the law has just been violated. The purpose of the check is to determine the present, not the past: is the car, is the driver now fit for further driving? In the accommodation of society's needs to the basic right of citizens to be free from disruption of unrestricted travel by police officers stopping cars in the hopes of uncovering the evidence of non-traffic crimes, cf. Brinegar v. United States, 1949, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879; Clay v. United States, 5 Cir., 1956, 239 F.2d 196; Clay v. United States, 5 Cir., 1957, 246 F.2d 298, cert. denied, 355 U.S. 863, 78 S.Ct. 96, 2 L.Ed.2d 69; Rios v. United States, 1960, 364 U.S. 353, 80 S.Ct. 1431, 4 L.Ed.2d 1688, the stopping for road checks is reasonable and therefore acceptable. Likewise, an arrest is proper if the check reveals a current violation which by its nature...