State v. McKeown, No. 2002-792 (NH 5/27/2004), 2002-792
| Decision Date | 27 May 2004 |
| Docket Number | No. 2002-792,2002-792 |
| Parties | THE STATE OF NEW HAMPSHIRE v. CHRISTOPHER J. MCKEOWN. |
| Court | New Hampshire Supreme Court |
Peter W. Heed, attorney general (Robert S. Carey, assistant attorney general, on the brief and orally), for the State.
Christopher J. McKeown, by brief and orally, pro se.
Following a bench trial in Plymouth District Court (Samaha, J.), the defendant, Christopher J. McKeown, was found guilty of failing to have a personal flotation device (PFD) on board his kayak. N.H. Admin. Rules, Saf-C 403.01 (Rule 403.01); see RSA 270:11 (1999). On appeal, he argues that the district court erroneously denied his motion to suppress evidence based upon a stop in violation of the department of safety's standard operating procedure (SOP) 2010. We vacate and remand.
The record supports the following facts. On the afternoon of August 31, 2002, Officer Wesley Cook of the New Hampshire Marine Patrol was on duty on Squam Lake. Officer Cook observed a number of canoes, water bikes and kayaks in the northwest end of the lake. In order to conduct PFD checks of those boats, he piloted his marked patrol boat a quarter of a mile to where the defendant was sitting in his kayak, talking to another boater. When he was fifty feet away from the defendant, the officer held up a life jacket and asked to see the defendant's life jacket. Officer Cook testified that, when he performs PFD checks, it is his practice to "pull over" after he has waited for the boater to show that he does not have or cannot find his PFD. Here, however, the defendant's kayak tipped over, at least in part from Officer Cook's wake, while he was searching for a lifejacket. While he was in the water, the defendant indicated that he did not have a life jacket. Officer Cook assisted the defendant in turning over and draining his kayak, issued him a summons for not having a PFD, and escorted him back to his dock.
During trial, the defendant moved to suppress the evidence, alleging that there was no articulable suspicion for the stop, and, thus, the stop violated SOP 2010. The trial court denied the motion and the defendant was subsequently convicted. This appeal followed.
The defendant first argues that Officer Cook's routine PFD check was a stop that violated SOP 2010 because the officer lacked articulable suspicion. The State argues that the defendant's encounter with Officer Cook was not a stop requiring articulable suspicion because a reasonable person in the defendant's position "would have believed he was free to leave at all times." Because we hold that the defendant was stopped in violation of SOP 2010, we need not address the other issues raised by the defendant.
In reviewing the trial court's ruling, we accept its factual findings unless they lack support in the record or are clearly erroneous. State v. Wallace, 146 N.H. 146, 148 (2001). The determination of whether the defendant was stopped is a question of law that we review de novo. Id.
As a threshold matter, we note that rules and regulations promulgated by administrative agencies under a valid delegation of authority have the force and effect of laws. Opinion of the Justices, 121 N.H. 552, 559 (1981). For the purposes of our analysis here, we assume that SOP 2010 is an administrative rule because the State did not challenge the defendant's characterization of it as such. Thus, we will assume that it has the force and effect of law.
SOP 2010 requires that "Marine Patrol Officers must operate in a uniform manner, consistent with applicable statutes and case law in conducting routine operations relating to stopping and detaining boaters on public waters." The SOP instructs officers that "boats shall not be stopped on the public waters for purely discretionary reasons." It further provides, in relevant part, that "[t]here must exist in the opinion of the Marine Patrol Officer, at a minimum, an articulable suspicion that the operator, or other occupant of the boat is in violation of some criminal or boating law, rule, or regulation; . . . or that the boat lacks the required safety equipment." As defined by the SOP, articulable suspicion includes, but is not limited to, "visual, audible, tactile, or other sensations experienced by the officer, which give rise to an apprehension on the officer's part, that the conditions" set forth above exist.
Because the language of the SOP mirrors our analysis for investigatory stops, we look to case law for guidance in analyzing whether the officer's actions prior to the defendant's response amounted to a stop in violation of SOP 2010.
A stop has occurred "when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen." Florida v. Bostick, 501 U.S. 429, 434 (1991) (quotation omitted). "The proper inquiry is whether a reasonable person would feel free to decline the officers' request or otherwise terminate the encounter." United States v. Drayton, 536 U.S. 194, 202 (2002) (quotation omitted). Thus, a stop has not occurred when "a reasonable person would feel free to disregard the police and go about his business." Bostick, 501 U.S. at 434.
Here, the officer came directly toward the defendant's kayak in a marked patrol boat from a distance of at least a quarter of a mile away. When he was fifty feet from the defendant, the officer asked the defendant if he had a PFD. The actions of the officer, coupled with the officer's practice of waiting to determine whether a boater has a PFD, indicate that the defendant's compliance with the officer's questioning was mandatory and, thus, a reasonable person would not "feel free to decline the [officer's] request or otherwise terminate the encounter." Drayton, 536 U.S. at 202; compare State v. Quezada, 141 N.H. 258, 260 (1996) () with Com. v. Thomas, 708 N.E.2d 669, 672 (Mass. 1999) (). Therefore, we are persuaded that in view of all the circumstances in this case, this encounter transcended a mere request to communicate, and constituted a stop. See Quezada, 141 N.H. 260.
Having found that the defendant was stopped, we must next determine whether the stop for a PFD check violated SOP 2010.
SOP 2010 requires that "[t]here must exist in the opinion of the Marine Patrol Officer, at a minimum, an articulable suspicion that the operator, or other occupant of the boat is in violation of some criminal or boating law, rule, or regulation; . . . or that the boat lacks the required safety equipment."
Here, the State conceded that Officer Cook did not have articulable suspicion. Accordingly, the stop violated SOP 2010, and we remand for further proceedings consistent with this opinion.
Vacated and remanded.
Because I disagree with the majority that Officer Cook "stopped" the defendant when he held up a personal flotation device (PFD) and asked to see the defendant's, I respectfully dissent.
At trial, the defendant, Christopher J. McKeown, moved to suppress evidence based upon an alleged illegal stop by Officer Cook of the New Hampshire Marine Patrol, contending that the officer lacked articulable suspicion as required by the marine patrol bureau's standard operating procedure (SOP) 2010. The trial court denied the motion and found the defendant guilty of failing to have a PFD, see RSA 270:11 (1999); N.H. Admin. Rules, Saf-C 403.01.
The record supports the following. In mid-afternoon on Saturday, August 31, 2002, during the Labor Day weekend, Officer Cook was in his marked patrol boat on a routine patrol of Squam Lake. His attention was drawn to the northwest end of the lake, where he observed "quite a few canoes, water bikes, kayaks; a lot of activity in the area." Although he was not certain, Officer Cook estimated that there were "20 or 25" watercraft in the area. Officer Cook testified that he piloted his boat toward the area of activity with the intention "to monitor the boating activity for safe operation" and to "check all those vessels for life jackets." He testified that when he first spotted the defendant and his brother, they were talking with one another, while sitting in separate kayaks pointing in different directions. Further, Officer Cook testified that he was "probably 50 feet away" from the defendant's kayak and traveling "below headway speed . . . just barely putting along, because of the proximity of the other vessels," when he held up a PFD and asked if the defendant could show him his PFD.
After Officer Cook asked to see the defendant's PFD, the defendant's kayak overturned. By the time the defendant first indicated that he did not have a PFD, he was in the water. At that point, Officer Cook approached to assist. He subsequently issued the defendant a summons and escorted him back to his dock.
Although it is uncertain why the defendant's kayak overturned, the definitive cause is not at issue, nor is it of any import, in this case. The defendant has made no argument, nor is there any evidence in the record, that he was either forced to answer Officer Cook's question because his kayak overturned, or that he was coerced into answering the question because Officer Cook refused to assist him until he answered.
The majority opinion recites that ...
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