State v. McKeown , 151 N.H. 95 ( 2004 )

NADEAU, J.

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 Ms 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 Ms marked patrol boat a quarter of a mile to where the defendant was sitting in Ms 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 demed the motion and the defendant was subsequently convicted. TMs 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 ease 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) (holding that the officer’s action of shouting “Hey, you, stop,” indicated that compliance was not optional and, when viewed with the other circumstances of the case, the defendant was seized) with Com. v. Thomas, 708 N.E.2d 669, 672 (Mass. 1999) (holding that because the defendant was free to terminate the interview, no seizure occurred when officer approached the defendant on a public street and asked him for his name and address). 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.

Dalianis and Duggan, JJ., concurred; Broderick, J., dissented.