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State v. Gness

Supreme Court of New Hampshire

January 14, 2014

The State of New Hampshire
v.
Richard Gness

Argued: October 16, 2013.

Merrimack.

Michael A. Delaney, attorney general ( Nicholas Cort, assistant attorney general, on the brief and orally), for the State.

Getman, Schulthess, & Steere, P.A., of Manchester ( Andrew R. Schulman, on the brief and orally), for the defendant.

LYNN, J. DALIANIS, C.J., and HICKS, CONBOY, and BASSETT, JJ., concurred.

OPINION

Page 383

[166 N.H. 2] Lynn, J.

The defendant, Richard Gness, appeals his convictions following a jury trial in Superior Court ( Smukler, J.), for possession of the controlled drug psilocin with intent to distribute, possession of cocaine, and possession of marijuana, all in violation of RSA 318-B:2 (2011). He argues that the trial court erred in denying his motion to suppress evidence derived fro the warrantless search of a desk drawer located in the office of his convenience store. He contends that because the search did not satisfy the requirements of the administrative search exception to the warrant requirement, it violated the Fourth Amendment of the Federal Constitution and Part I, Article 19 of the New Hampshire Constitution. We affirm.

I

The record establishes the following pertinent facts. The defendant owned and operated Dick's General Store (Store) in Danbury. The defendant was licensed by the New Hampshire Liquor Commission (Commission) [166 N.H. 3] to sell beer and wine for consumption off-premises. See RSA 178:18 (Supp. 2013). The defendant maintained an office behind the customer area of the Store and lived in an apartment above the Store.

In 2009, the Commission was informed by an anonymous source that the defendant was selling liquor at the Store, in violation of his license and RSA title XIII. On October 3, 2009, three investigators from the Commission arrived at the Store to investigate the allegation and to conduct an annual premises inspection. The Commission conducts annual premises inspections of every licensee that sells alcohol for use on and off premises, as well as additional premises checks to investigate complaints of possible license violations. Two investigators went into the Store and spoke with the defendant briefly about the layout of the Store and other matters relevant to the annual premises inspection. The investigators then asked for, and received, the defendant's permission to enter the Store's back storage rooms to observe the beer, wine, and grocery inventory. During the inspection, the defendant showed one of the investigators his office, a room behind the customer area of the

Page 384

Store with a desk where he kept paperwork for the Store.

At some point during the inspection, a customer came into the Store and asked for a certain brand of vodka. The defendant, looking at an investigator while he spoke, told the customer that he did not sell vodka. The customer turned, looked at the investigator and then back at the defendant, and left the Store. After the customer left the Store, the investigator asked the defendant to produce the Store's beer and wine invoices to verify that the defendant had at least sixty days' worth of invoices ...


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