State v. Glaude

Johnson, J.

The defendant, Richard A. Glaude, appeals his conviction for driving after having been certified as an habitual offender pursuant to RSA 259:39 (Supp. 1988). He was sentenced to serve one to five years in the State prison, subject to conditions not here in question. The defendant asserts that: (1) the arresting officer’s initial stop of his vehicle was impermissible under both State and Federal Constitutions; and (2) the questioning of him by a police officer after his vehicle had been stopped exceeded the scope of allowable questioning under the circumstances. The defendant raised these issues before the Superior Court (Gray, J.), who denied his accompanying motion to suppress evidence. He was convicted on the basis of stipulated facts in a trial to the Court (McHugh, J.). We affirm.

The facts may be briefly summarized as follows. State Trooper Michael Hambrook was assisting the Hampton police in traffic control on the evening of July 27, 1986. The trooper was stationed on foot between the two northbound lanes of Route 1A, the main street of Hampton Beach, where the vehicles were bumper to bumper and moving very slowly.

Trooper Hambrook observed the defendant’s vehicle as it passed, and saw within the vehicle an open Budweiser beer can and a cooler, both of which were located on the rear floor of the automobile on the passenger side. He motioned for the defendant to pull over to the side of the highway because, as he testified, “Hampton has a town ordinance against open containers. . . .” He then approached the defendant, who was the driver.

Trooper Hambrook asked the driver for his license and registration. The defendant then spontaneously responded, according to the trooper’s testimony, that “he didn’t have a license” and further that “he was in trouble and he had been an habitual offender.” The trooper confirmed the defendant’s statement by radio and placed him under arrest for the felony offense of driving while certified as an habitual offender; he did not further investigate the so-called “open container” violation.

Hampton has a local ordinance which reads as follows:

“Sec. 3:701 Alcohol Prohibited

No person shall consume any liquor or beverage or possess any opened container thereof, as defined by RSA 175:1, while in any vehicle upon a public highway, or while upon any public highway, sidewalk or common within the limits of the Town of Hampton.”

At the hearing on the motion to suppress, Trooper Hambrook testified that there were two passengers in the defendant’s automobile, but that he was uncertain whether only one or both were in the rear seat. He further testified that the cooler was also in the rear of the automobile. He could not recall whether the beer can was standing upright or on its side, and none of the occupants was observed consuming any alcoholic beverage. However, he was certain as to the fact that he had observed an open beer can and a cooler in the rear of the automobile before requesting the vehicle to pull over for an investigative stop.

The defendant argues that the initial stop by Trooper Hambrook violates both the State and Federal Constitutions. Our case law requires that we first examine this claim under the State Constitution, relying on federal case law only for guidance. State v. Ball, 124 N.H. 226, 471 A.2d 347 (1983). Since State and federal constitutional law with regard to investigative stops are identical, State v. Parker, 127 N.H. 525, 529, 503 A.2d 809, 811 (1985), we need not make any separate federal analysis as to this issue. In State v. Brodeur, 126 N.H. 411, 493 A.2d 1134 (1985), we adopted the rule first enunciated in Terry v. Ohio, 392 U.S. 1 (1968). This rule permits police temporarily to detain a suspect for investigatory purposes, even though the grounds for the stop do not amount to probable cause justifying arrest of the suspect for the commission of a crime. However, the police must have an articulable suspicion that the person detained has committed or is about to commit a crime. State v. Brodeur, supra at 415, 493 A.2d at 1137-38; see also State v. Maya, 126 N.H. 590, 595, 493 A.2d 1139, 1143 (1985). In justifying the stop, “‘the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.’” State v. Brodeur supra (quoting Terry v. Ohio, supra at 21).

Therefore, in assessing the defendant’s claim, we must consider the sufficiency of Trooper Hambrook’s articulable suspicion, the scope of his inquiry, and the length of the stop. State v. Maya supra. This inquiry is mandated because “[t]he scope of the detention must be carefully tailored to its underlying justification . . . [and] must be temporary and last no longer than is necessary to effectuate the purpose of the stop.” Florida v. Royer, 460 U.S. 491, 500 (1983).

An important element to be considered in determining the sufficiency of the officer’s articulable suspicion is the “‘nature and quality of the intrusion on personal security’ [which] must be balanced against ‘the importance of the governmental interest alleged to justify the intrusion.’ ” State v. Parker, supra at 530, 503 A.2d at 812 (quoting United States v. Hensley, 469 U.S. 221, 228 (1985)). Trooper Hambrook testified that he was assisting the Hampton police because the town was having a “lot of problems in the Hampton Beach area that particular summer.” He further testified that he was working an overtime detail because the “local police were outnumbered, in sheer numbers, we were there to back them up.” The police, according to Hambrook, were attempting, by foot patrols, to stop rowdiness, traffic violations, and DWI violations, “as well as fatalities.” The legitimate public concern in this situation was clear. Cf. State v. Parker, 127 N.H. at 530, 503 A.2d at 812. The circumstances called for active police scrutiny of suspected violations of the law. Cf. id. at 530-31, 503 A.2d at 812.

Trooper Hambrook observed an open beer can and a cooler in the defendant’s vehicle. These two facts, in combination with the circumstances of this case as set forth above in detail, would cause a man of reasonable caution and prudence to be on guard to insure that the Hampton ordinance was being obeyed. We therefore hold that Trooper Hambrook acted reasonably in making an investigatory stop, given the totality of the circumstances present here. Under the facts of this case, common sense dictated that the trooper take reasonable steps to investigate, and an investigatory stop to determine whether the Hampton ordinance had been violated was thus reasonable.

The defendant next contends that, even if the stop was lawful, the scope of the questioning of the defendant was unlawful because it was not tailored to the reason for the seizure; i.e., a suspected violation of the open container ordinance. See State v. Maya, 126 N.H. at 595, 493 A.2d at 1143-44. The defendant would have this court rule that the trooper could not inquire as to the driver’s name and vehicle registration until he was satisfied that there was a violation of the Hampton ordinance.

There are few, if any, standard operating procedures which nearly every police officer employs more routinely than that of requesting the driver’s name and vehicle registration when first addressing a driver stopped for operating a vehicle that may be involved in illegal activity. This is true whether it be a stop sign violation or operating the vehicle so as to endanger the lives of other drivers, passengers, or pedestrians. In Berkemer v. McCarty, 468 U.S. 420, 439 (1984), the United States Supreme Court recognized that an officer may ask “the detainee a moderate number of questions to determine his identity and to try to obtain information confirming or dispelling the officer’s suspicions.” (Emphasis added.) Trooper Hambrook did nothing more than what was the routine and prudent first step in any investigative stop. See State v. Parker, 127 N.H. at 531, 503 A.2d at 812-13. That the trooper’s question prompted the wholly unexpected confession of a serious crime by the defendant does not make the usual and prudent inquiry unlawful.

The defendant claims that any inquiry should have been directed toward the passenger or passengers in the rear, where the can and cooler were located, rather than the driver. This argument totally ignores the fact that at the time of the stop the driver was as likely as either of his passengers to have violated the town ordinance and thus was an appropriate subject for the minimal questioning that took place. While further investigation might have shown the driver to be unaware of any violation, or that no violation had occurred, there was certainly a reasonable suspicion that the driver was aware of what was going on in his vehicle. That being the case, the officer acted reasonably in seeking to learn the identity of the driver.

Under State v. Maya, 126 N.H. at 596, 493 A.2d at 1144, the final prong to be considered is the length of the stop. Here the defendant does not contest the length of the stop, however, and hence we need not consider this issue.

We therefore find that the defendant’s State and federal constitutional rights were not violated by the investigatory stop that resulted in his arrest.

The officer’s failure to pursue the open container violation, after having been voluntarily informed of the more serious offense of driving after being found to be an habitual offender, was entirely reasonable and within the sound discretion of the arresting officer.

We hold that the defendant’s motion to suppress was properly denied and affirm his conviction.

Affirmed.

Batchelder, J., with whom Brock, C.J., joined, dissented; the others concurred.