State v. Koppel

499 A.2d 977, 127 N.H. 286, 1985 N.H. LEXIS 425
CourtSupreme Court of New Hampshire
DecidedAugust 16, 1985
DocketNo. 85-006
StatusPublished
Cited by65 cases

This text of 499 A.2d 977 (State v. Koppel) is published on Counsel Stack Legal Research, covering Supreme Court of New Hampshire primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Koppel, 499 A.2d 977, 127 N.H. 286, 1985 N.H. LEXIS 425 (N.H. 1985).

Opinions

Brock, J.

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 [288]*288under 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 inplemented 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 weekr end 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 offi[289]*289cers 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 of 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, 103 S. Ct. 3469, 3476 (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 (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 (1982); cf Berkemer v. McCarty, 104 S. Ct. 3138, 3150 (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 unreasonble.” Ball, supra 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

[290]*290“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 aribtrary action by law officers.

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Bluebook (online)
499 A.2d 977, 127 N.H. 286, 1985 N.H. LEXIS 425, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-koppel-nh-1985.