State v. Koppel

• Decision Date: 16 August 1985
• Docket Number: No. 85-006,85-006
• Citation: 127 N.H. 286,499 A.2d 977
• Parties: , 54 USLW 2155 The STATE of New Hampshire v. Donald L. KOPPEL. The STATE of New Hampshire v. Norman B. FOREST, Jr.
• Court: New Hampshire Supreme Court

Page 977

499 A.2d 977

127 N.H. 286, 54 USLW 2155

The STATE of New Hampshire v. Donald L. KOPPEL.

The STATE of New Hampshire v. Norman B. FOREST, Jr.

No. 85-006.

Supreme Court of New Hampshire.

Aug. 16, 1985.

Stephen E. Merrill, Atty. Gen., (Robert B. Muh, Concord, on brief and orally), for State.

Perkins, Phillips & Waters P.A., Concord (Roger B. Phillips on brief and orally), for defendants.

BROCK, Justice.

The defendants in these cases were arrested at roadblocks set up by the Concord Police Department to detect and apprehend drunk drivers. Each was charged with driving while under the influence of intoxicating liquor (DWI). RSA 265:82 (Supp.1983). In advance of trial, both moved to suppress certain items of evidence, arguing that the use of the roadblocks by the police violated their rights under the State and Federal Constitutions. The motions were consolidated for hearing, after which the District Court (Robbins, J.) denied both motions. Upon request of the defendants, the issue of the roadblocks' constitutionality was transferred to this court, pursuant to RSA 502-A:17-a. The following questions of law were transferred:

"A. Whether police conduct using roadblocks specifically established for the purpose of determining whether the driver of a motor vehicle is driving under the influence of an intoxicating liquor in violation of New Hampshire RSA 265:82, violates a defendant's constitutional guarantees against unreasonable searches and seizures as provided by part 1, article 19 of the New Hampshire Constitution and the fourth amendment to the United States Constitution?

"B. Whether the New Hampshire Supreme Court's ruling in the case of State v. Severance, 108 N.H. 404 (1968), in which it was stated that a roadblock 'for the good faith purpose of inspecting motor vehicle licenses and registration certificates is a valid method of enforcing public safety so long as the roadcheck is not used as a subterfuge for uncovering evidence of other crimes,' prohibits roadblocks specifically established for the purpose of determining whether the driver of a motor vehicle is driving while under the influence of intoxicating liquor in violation of New Hampshire RSA 265:82?"

For the reasons that follow, we hold that the roadblocks in these cases failed to meet constitutional standards, and we reverse the trial court's denial of the motions to suppress.

The Concord Police Department implemented a program of drunk driving roadblocks in April 1984. The basis for the program was a document, drafted by a planning and research officer in the department, describing a "Standard Operating Procedure" (SOP).

The SOP stressed several points: that the roadblock should involve "minimal intrusion;" that its location should be determined "by an official based upon objective data (i.e., the number of accidents, injury accidents and/or DWI arrests);" that "the decision as to which vehicles will be stopped (e.g. all east-bound vehicles, or every 10th vehicle) cannot be left to the discretion of the officers at the scene but must be made in advance;" and that "the checkpoint must be clearly indicated and manned by uniformed officers." It is conceded by the State in its brief that "[t]he purpose of the roadblocks is to detect operators who may be driving under the influence of alcoholic beverages...."

The record indicates that 47 roadblocks were set up on 21 weekend nights between April 29, 1984, and October 20, 1984. A total of 1,680 vehicles were stopped, resulting in only 18 DWI arrests. During roughly the same six months, the Concord police made 175 DWI arrests by traditional methods; i.e., through the use of roving patrols.

The defendant Koppel was arrested on July 7, 1984, at 1:00 a.m., at a roadblock on Loudon Road near the Everett Arena. The defendant Forest was arrested on August 5, 1984, at approximately 1:35 a.m., at a roadblock on East Side Drive, at the end of an exit ramp from Interstate Route 393.

Both roadblocks consisted of three or more marked police cars parked at or near the side of the road with their lights on, accompanied by several officers wearing reflectorized clothing. In at least one case, the officer primarily responsible for stopping traffic was illuminated with a spotlight.

When traffic was light, every car approaching the roadblock was stopped. If five cars were detained at the roadblock, other traffic was waved on until a car left the roadblock, at which time the next car to approach would be detained.

There were no signs warning drivers of either roadblock, nor any advance publicity of their occurrence. A driver stopped at either roadblock had no way of learning its purpose except from the officers manning the roadblock. In the case of the Loudon Road roadblock, it would have been impossible for a driver approaching the roadblock to avoid it, because the road is a divided highway at that point.

The defendants have challenged the validity of the roadblocks under both part I, article 19 of the New Hampshire Constitution and the fourth amendment to the United States Constitution. We begin, as we must, by first making an independent analysis of the protections afforded under the New Hampshire Constitution, State v. Ball, 124 N.H. 226, 231, 471 A.2d 347, 350 (1983), using decisions of the United States Supreme Court and other jurisdictions only as aids in our analysis, see Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 3476, 77 L.Ed.2d 1201 (1983). Thereafter, we need address federal constitutional issues only insofar as federal law would provide greater protection. State v. Ball, 124 N.H. at 232, 471 A.2d at 351.

Part I, article 19 gives every citizen of the State "a right to be secure from all unreasonable searches and seizures of his person, his houses, his papers, and all his possessions." Although this language is similar to that in the Federal Constitution, this court has held that article 19 provides greater protection for individual rights than does the fourth amendment. State v. Ball, supra at 235, 471 A.2d at 353; State v. Sidebotham, 124 N.H. 682, 686-87, 474 A.2d 1377, 1379-80 (1984).

It is commonly recognized that the stopping of a motor vehicle is not a mere "encounter" as described in Terry v. Ohio, 392 U.S. 1, 13-14, 88 S.Ct. 1868, 1875-76, 20 L.Ed.2d 889 (1968), but is a more intrusive seizure subject to greater constitutional limitations. See People v. John BB, 56 N.Y.2d 482, 487, 438 N.E.2d 864, 866, 453 N.Y.S.2d 158, 161, cert. denied, 459 U.S. 1010, 103 S.Ct. 365, 74 L.Ed.2d 400 (1982). Cf. Berkemer v. McCarty,, 468 U.S. 420, 104 S.Ct. 3138, 3150, 82 L.Ed.2d 317 (1984). Stopping and detaining an automobile and its occupants, whether by roving patrol or roving roadblock, constitutes a seizure within the meaning of article 19 of our State Constitution. See State v. Landry, 116 N.H. 288, 289, 358 A.2d 661, 663 (1976) (construing fourth amendment). In State v. Ball, we reiterated that "we interpret part I, article 19 to reflect the intent of the framers that all searches and seizures must be reasonable. Unless a warrantless search [or seizure] falls within one of the few specifically established and well-delineated exceptions, it is per se unreasonable." Ball, supra, 124 N.H. at 234, 471 A.2d at 362.

The State argues that an exception to the warrant requirement exists in this case, and points to a test that we have previously applied in fourth amendment cases. In State v. Landry, we held that

"the reasonableness of such a seizure [of an automobile] depends on the balance between the public interest in law enforcement and the individual's right to personal security free from arbitrary action by law officers. More specifically in a case like this one [involving the stop of a single vehicle by a roving patrol] the competing considerations are the State's compelling interest in maintaining safety on the public highways and the motorist's reasonable expectation of privacy when he is traveling on these highways in his automobile."

Landry, 116 N.H. at 289-90, 358 A.2d at 663. See also State v. Baldwin, 124 N.H. 770, 774, 475 A.2d 522, 524 (1984).

We had earlier applied a similar test in State v. Severance, 108 N.H. 404, 237 A.2d 683 (1968). Severance involved a police roadblock, the alleged purpose of which was to check for proper licenses and registrations. We held that a roadblock used for such purposes was "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." Id. at 408, 237 A.2d at 686.

Our holding in Severance was based on the demonstrable fact that road checks were the only effective means available to law enforcement authorities of enforcing the license and registration laws. Id. at 407, 237 A.2d at 685 (citing Commonwealth v. Mitchell, 355 S.W.2d 686, 688-89 (Ky.1962)). However, in Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979), the United States Supreme Court held that the fourth amendment requires strict limits on the type of road check that can be used even for so limited a purpose.

Applying a test similar to the one we used in Landry and Severance, see Prouse, 440 U.S. at 654, 99 S.Ct. at 1396, the Court held that "spot checks," carried out at the discretion of individual police officers, were an impermissible means of enforcing license and registration laws.

The Court agreed "that the States have a vital interest in ensuring that only those qualified to do so are permitted to operate motor vehicles, that these vehicles are fit for safe operation, and hence that licensing, registration, and vehicle inspection requirements are being observed." Id. at 658, 99 S.Ct. at 1398. The Court, however, went on to say:

"It seems common sense that the percentage of all drivers on the road who are driving without a license is very small and that the number of licensed drivers who will be stopped in order to find one unlicensed operator will be...