State v. Ball

• Decision Date: 12 December 1983
• Docket Number: No. 82-155,82-155
• Citation: 124 N.H. 226,471 A.2d 347
• Parties: The STATE of New Hampshire v. Forrest J. BALL.
• Court: New Hampshire Supreme Court

Page 347

471 A.2d 347

124 N.H. 226

The STATE of New Hampshire v. Forrest J. BALL.

No. 82-155.

Supreme Court of New Hampshire.

Dec. 12, 1983.

Gregory H. Smith, Atty. Gen. (Donald J. Perrault, Asst. Atty. Gen., on brief and orally), for the State.

McNamara & Larsen P.A., Lebanon (Mark A. Larsen, Lebanon, on brief and orally), for defendant.

DOUGLAS, Justice.

The sole issue in this appeal is whether the Trial Court (Johnson, J.) correctly ruled that the police officer had probable cause to seize a partially smoked hand-rolled cigarette during a lawful vehicle stop. We hold that the court erred and therefore reverse.

The defendant was stopped by State Trooper Hunter and Trooper-trainee Hamilton for driving an uninspected motor vehicle. After approaching the vehicle, one of the troopers observed several partially smoked manufactured cigarettes, as well as a partially smoked hand-rolled cigarette, in an ashtray located on the top of the dashboard. Unable to identify the contents of the hand-rolled cigarette by sight, the officer (the record is unclear as to which one) reached in, removed it from the ashtray and smelled it. He determined that the cigarette contained marijuana, and the defendant was placed under arrest. A search of the defendant's person led to the discovery of additional contraband.

The defendant was indicted for unlawful possession of marijuana, a controlled drug. RSA 318-B:26, I(b)(2) (Supp.1981). Prior to his trial, the defendant filed a motion to suppress evidence of the hand-rolled cigarette and the fruits of the subsequent search. He claimed that the police did not have probable cause to seize the cigarette because observation of the cigarette, alone, did not give rise to a reasonable belief that it contained contraband. The trial court denied the motion. Following the admission of the challenged evidence, the defendant was convicted as charged, and he now appeals.

The defendant argues that the warrantless seizure of the hand-rolled cigarette and the subsequent search of his person were illegal under both the Federal and New Hampshire Constitutions, U.S. CONST. amend. IV; N.H. CONST. pt. I, art. 19, because they were not based on probable cause.

When a defendant, as in this case, has invoked the protections of the New Hampshire Constitution, we will first address these claims. Compare State v. Miskolczi, 123 N.H. 626, 465 A.2d 919 (1983) (court decided defendant's rights under the Federal Constitution rather than the State Constitution due to his failure to present, argue, or brief any legal issues involving the State constitutional provision). As more fully discussed below, although we have often treated Federal and New Hampshire constitutional protections similarly, our citizens are entitled to an independent interpretation of State constitutional guarantees.

We live under a unique concept of federalism and divided sovereignty between the nation and fifty States. The New Hampshire Constitution is the fundamental charter of our State. The sovereign people gave limited powers to the State government, and the Bill of Rights in part I of the New Hampshire Constitution protects the people from governmental excesses and potential abuses. When State constitutional issues have been raised, this court has a responsibility to make an independent determination of the protections afforded under the New Hampshire Constitution. If we ignore this duty, we fail to live up to our oath to defend our constitution and we help to destroy the federalism that must be so carefully safeguarded by our people. The Supreme Court of the State of Oregon recently recognized this responsibility and stated:

"The point is ... that a state's constitutional guarantees ... were meant to be and remain genuine guarantees against misuse of the state's governmental powers, truly independent of the rising and falling tides of federal case law both in method and specifics. State courts cannot abdicate their responsibility for these independent guarantees, at least not unless the people of the State themselves choose to abandon them and entrust their rights entirely to federal law."

State v. Kennedy, 295 Or. 260, 271, 666 P.2d 1316, 1323 (1983).

"This court has historically viewed the rights of people in light of both the United States Constitution and the Constitution of the State of New Hampshire." State v. Settle, 122 N.H. 214, 217, 447 A.2d 1284, 1285 (1982). While the role of the Federal Constitution is to provide the minimum level of national protection of fundamental rights, our court has stated that it has the power to interpret the New Hampshire Constitution as more protective of individual rights than the parallel provisions of the United States Constitution. State v. Settle, 122 N.H. 214, 217, 447 A.2d 1284, 1285 (1982); State v. Osborne, 119 N.H. 427, 433, 402 A.2d 493, 497 (1979); State v. Hogg, 118 N.H. 262, 264, 385 A.2d 844, 845 (1978). The Supreme Court has recognized this authority and has stated that its holdings "[do] not affect the State's power to impose higher standards on searches and seizures than required by the Federal Constitution if it chooses to do so." Cooper v. California, 386 U.S. 58, 62, 87 S.Ct. 788, 791, 17 L.Ed.2d 730 (1967).

Even if it appears that the Federal Constitution is more protective than the State Constitution, the right of our citizens to the full protection of the New Hampshire Constitution requires that we consider State constitutional guarantees. This is because any decision we reach based upon federal law is subject to review by the United States Supreme Court, whereas we have unreviewable authority to reach a decision based on articulated adequate and independent State grounds. Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 3475, 77 L.Ed.2d 1201 (1983). Since this court is the final authority on New Hampshire law, initial resolution of State constitutional claims insures that the party invoking the protections of the New Hampshire Constitution will receive an expeditious and final resolution of those claims. Therefore, we will first examine the New Hampshire Constitution and only then, if we find no protected rights thereunder, will we examine the Federal Constitution to determine whether it provides greater protection.

The United States Supreme Court and its individual members have spoken on the State courts' independent responsibility for their States' constitutional law. In Michigan v. Long, id. at 3476, the Court stated: " 'It is fundamental that state courts be left free and unfettered by us in interpreting their state constitutions.' " (quoting Minnesota v. National Tea Co., 309 U.S. 551, 557, 60 S.Ct. 676, 679, 84 L.Ed. 920 (1940)). Chief Justice Burger has stated: "State Courts ... are responsible for first resolving issues arising under their constitutions and statutes and then for passing on matters concerning federal law." Year-End Report on the Judiciary, 23 (1981). Independent interpretation of State constitutional provisions is now well established. Reeves v. State, 599 P.2d 727 (Alaska 1979) (independent interpretation of State constitutional provision protecting individuals from unreasonable search and seizure); People v. Brisendine, 13 Cal.3d 528, 531 P.2d 1099, 119 Cal.Rptr. 315 (1975) (same); State v. Kaluna, 55 Hawaii 361, 520 P.2d 51 (1974) (same); State v. Culotta, 343 So.2d 977 (La.1976) (same); State v. Brecht, 157 Mont. 264, 485 P.2d 47 (1971) (same); State v. Benoit, 417 A.2d 895 (R.I.1980) (same); State v. Opperman, 247 N.W.2d 673, 675 (S.D.1976) (same); State v. Badger, 141 Vt. 430, 450 A.2d 336 (1982) (same); see also State v. Kennedy, 295 Or. 260, 666 P.2d 1316 (1983) (independent interpretation of double jeopardy clause).

Although in interpreting the New Hampshire Constitution we often followed and agreed with the federal treatment of parallel provisions of the federal document, we never have considered ourselves bound to adopt the federal interpretations. In fact, we previously have deviated from United States Supreme Court pronouncements. In State v. Hogg, 118 N.H. 262, 385 A.2d 844 (1978), we held that Bartkus v. Illinois, 359 U.S. 121, 79 S.Ct. 676, 3 L.Ed.2d 684 (1959) is not binding on this court in construing the New Hampshire constitutional protection against double jeopardy and stated: "The same separate sovereignty concept under which the United States Supreme Court has held that the Federal Constitution does not protect citizens from dual prosecutions permits the states independently to construe their own constitution as affording such protection." 118 N.H. at 264, 385 A.2d at 845. See also State v. Settle, 122 N.H. 214, 447 A.2d 1284 (1982); State v. Osborne, 119 N.H. 427, 402 A.2d 493 (1979). One court has expressed in the following way the relationship between federal decisions and decisions made under State law:

"This court like others has high respect for the opinions of the Supreme Court, particularly when they provide insight into the origins of provisions common to the state and federal bills of rights rather than only a contemporary 'balance' of pragmatic considerations about which reasonable people may differ over time and among the several states. It is therefore to be expected that counsel and courts often will refer to federal decisions, or to commentary based on such decisions, even in debating an undecided issue under state law."

State v. Kennedy, 295 Or. 260, 267, 666 P.2d 1316, 1321 (1983). We hereby make clear that when this court cites federal or other State court opinions in construing provisions of the New Hampshire Constitution or statutes, we rely on those precedents merely for guidance and do not consider our results bound by those decisions. See Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 3476, 77 L.Ed.2d 1201 (1983).

New Hampshire has a constitutional ban against unreasonable search and seizure that pre-dates the Federal Constitution. Part I, article 19, provides:

"Every subject...