State v. Livingston

• Citation: 153 N.H. 399,897 A.2d 977
• Decision Date: 25 April 2006
• Docket Number: No. 2004–859.,2004–859.
• Court: Supreme Court of New Hampshire
• Parties: The STATE of New Hampshire v. David LIVINGSTON.

153 N.H. 399

897 A.2d 977

The STATE of New Hampshire

v.David LIVINGSTON.

No. 2004–859.

Supreme Court of New Hampshire.

Argued: Jan. 12, 2006.

Opinion Issued: April 25, 2006.

Kelly A. Ayotte, attorney general (Peter C.L. Roth, senior assistant attorney general, on the brief and orally), for the State.

Barry S. Weinstein, of Manchester, on the brief and orally, for the defendant.

GALWAY, J.

The defendant, David Livingston, was convicted of possession of a controlled drug, RSA 318–B:2, I (2004); RSA 318–B:26, II(a) (Supp.2005), and misdemeanor possession of drugs, RSA 265:80 (2004). On appeal, he argues that the Superior Court (O'Neill, J.) erred in denying his motion to suppress evidence seized during a search of his motor vehicle. We affirm.

After an evidentiary hearing, the trial court found the following facts. On October 20, 2003, the defendant was driving a dual-axle truck, bearing Massachusetts Commercial License plates, on Route 302 in Center Conway. Officer Nathan Boothby of the New Hampshire Bureau of Highway Patrol Enforcement stopped the defendant's truck to perform a routine commercial vehicle inspection pursuant to RSA 266:72–a, I (2004) and 49 C.F.R. § 390 (2005). Boothby approached the truck to question the defendant to determine whether the truck constituted a commercial vehicle under the federal motor carrier safety regulations.

As Boothby approached the vehicle, he smelled a strong odor of burnt marijuana coming from inside it. He also observed that the defendant's eyes were bloodshot and he appeared to be nervous. Boothby initially asked the defendant routine questions to determine whether the defendant's vehicle came within the scope of the federal motor carrier safety regulations. After determining that it did not, Boothby told the defendant that he smelled burnt marijuana, and asked him whether he had any marijuana in the truck or on his person. The defendant responded, "No." Boothby asked him to consent to a search of the vehicle. The defendant refused, stating that he did not feel that he had any options.

Boothby explained to the defendant that he could refuse to consent to a search, in which case Boothby would have a trained dog perform a canine sniff search of the exterior of the vehicle; if the dog indicated the presence of narcotics, Boothby would seize the vehicle and apply for a search warrant. The defendant asked if the search could be conducted by looking into the vehicle from the outside. Boothby indicated that he was not requesting the defendant's consent to perform that kind of search.

At some point, Boothby asked the defendant to get out of the truck. The officer then gave the defendant a written consent form. Boothby explained the consent form and watched as the defendant appeared to read it. At the hearing, the defendant testified that he verbally limited the scope of his consent to a "reasonable search" lasting "two or three minutes." Boothby, however, testified that the defendant never indicated that he wanted to limit the scope of the search of the vehicle. The defendant signed the consent form without any conditions or limitations.

Boothby conducted a canine search of the interior and exterior of the vehicle and found a burnt marijuana cigarette in the driver's side door. Boothby then placed the defendant under arrest. During a subsequent search incident to the arrest, Boothby discovered a baggie containing cocaine in the defendant's pocket.

The defendant moved to suppress the burnt marijuana cigarette and the cocaine. After conducting an evidentiary hearing at which the defendant and Boothby testified, the trial court found that Boothby had the authority to conduct a routine inspection of the defendant's vehicle pursuant to RSA 266:72–a and 49 C.F.R. § 396.9(a). Concluding that Boothby "testified credibly," the trial court also found that the defendant signed a valid consent to search form, which was not the product of coercion. The court denied the motion to suppress the marijuana cigarette and cocaine.

On appeal, the defendant argues: (1) the stop of his vehicle was unconstitutional because it did not fall within the administrative search exception to the warrant requirement and was pretextual in nature; (2) the search of his vehicle was made without his voluntary consent; and (3) to the extent he gave limited consent to search his vehicle, Boothby exceeded the scope of that consent. The defendant invoked the protections of Part I, Article 19 of the State Constitution and the Fourth and Fourteenth Amendments to the United States Constitution.

"Our review of the superior court's order is de novo, except as to any controlling facts determined at the superior court level in the first instance. We defer to the trial court's determinations of credibility unless no reasonable person could have come to the same conclusion after weighing the testimony." State v. Hammell, 147 N.H. 313, 317, 787 A.2d 850 (2001) (quotations and citations omitted). We first address the issues under the State Constitution and cite federal opinions for guidance only. State v. Ball, 124 N.H. 226, 231–33, 471 A.2d 347 (1983).

I. Legality of the Stop

A warrantless search is per se unreasonable and invalid unless it comes within one of the recognized exceptions to the warrant requirement. State v. Seavey, 147 N.H. 304, 306, 789 A.2d 621 (2001). One such exception is the administrative search exception. State v. Plante, 134 N.H. 585, 588, 594 A.2d 165 (1991). A warrantless administrative search is reasonable if: (1) there is a "substantial government interest that informs the regulatory scheme pursuant to which the inspection is made"; (2) the warrantless inspection is necessary to further the regulatory scheme; and (3) the implementation of the statutory inspection program provides a constitutionally adequate substitute for a warrant. State v. Turmelle, 132 N.H. 148, 153, 562 A.2d 196 (1989) (citations and quotations omitted); see New York v. Burger, 482 U.S. 691, 702–03, 107 S.Ct. 2636, 96 L.Ed.2d 601 (1987).

RSA 266:72–a, I (2004) grants the commissioner of safety authority to adopt "the current version of the federal motor carrier safety regulations promulgated by the U.S. Department of Transportation, Federal Highway Administration, Bureau of Motor Carrier Safety, contained in 49 C.F.R. 107, 382, 385–397." The federal motor carrier safety regulations authorize agents to perform routine inspections of commercial motor vehicles. See 49 C.F.R. § 396.9(a). These regulations define a "commercial motor vehicle" as, in pertinent part:

any self-propelled or towed motor vehicle used on a highway in interstate commerce to transport passengers or property when the vehicle

(1) Has a gross vehicle weight rating or gross combination weight rating, or gross vehicle weight or gross combination weight, of 4,536 kg (10,001 pounds) or more, whichever is greater ....

49 C.F.R. § 390.5 (2005).

Here, the defendant does not dispute that a routine commercial motor vehicle inspection, if properly conducted pursuant to the applicable federal motor carrier safety regulations, constitutes a reasonable administrative search. Nor does he dispute that Boothby had the authority to conduct a routine commercial motor vehicle inspection pursuant to the federal motor carrier safety regulations. Rather, the defendant argues that when Boothby stopped the defendant's vehicle, he exceeded his authority because the vehicle was under the minimum weight requirement, and, therefore, was not a commercial motor vehicle. In addition, the defendant contends that Boothby exceeded his authority by continuing to detain and question the defendant after learning that his vehicle was not a commercial motor vehicle. We disagree.

Boothby testified that when he stopped the defendant's vehicle, he reasonably believed that it was a commercial motor vehicle for the purposes of the federal motor carrier safety regulations. He also testified that: (1) the defendant was driving a truck bearing Massachusetts license plates designating it as a commercial vehicle; and (2) he estimated the vehicle's weight as being "in the ballpark of" the minimum weight requirement of 10,001 pounds. In addition, Boothby observed that the defendant's vehicle was a "heavier" dump truck, with a large wooden structure, which is primarily used for commercial wood chipping, over the bed of the truck. The trial court found Boothby's testimony to be credible. Based upon the trial court's findings, we conclude that Boothby's stop of the vehicle was reasonable and fell within the scope of the administrative search exception.

There is no reasonable way for an officer, who is stopping a suspected commercial motor vehicle for the purpose of conducting a routine inspection, to know the exact weight of that vehicle prior to obtaining that information from either the driver or the vehicle registration. Thus, when an officer, based upon observations and circumstances, reasonably believes that a vehicle falls within the weight requirements of the federal motor carrier safety regulations, a stop of the vehicle is valid to determine whether it qualifies as a commercial motor vehicle under the pertinent regulations. In this context, the defendant urges us to narrowly construe RSA 266:72–a, I, and 49 C.F.R. § 390 and rule that any stop of a motor vehicle under the minimum weight requirement is unreasonable as a matter of law. We decline to do so. Such a conclusion would undermine the underlying purpose of the federal motor carrier safety regulations, which is to promote motor carrier safety.

Having concluded that the initial stop of the defendant's vehicle was valid under the administrative search exception to the warrant requirement, we next consider whether Boothby exceeded the scope of his authority when he questioned the defendant after learning the vehicle was not a commercial motor vehicle. The defendant argues that as soon as Boothby ascertained that his vehicle did not qualify as a commercial motor...