Petition for Writ of Certiorari — Plante v. New Hampshire

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1991

Renee P) nte, Petitioner

Ve

State of New Hampshire, Respondent

On Writ of Certiorari

To the New Hampshire Supreme Court

Andru H. Volinsky, Esq.

Shaheen, Cappiello,

Stein & Gordon

One Barberry Lane

PO Box 2159

Concord, NH 03302-2159

(603) 228-1109

Counsel for Petitioner

I. QUESTIONS PRESENTED FOR

REVIEW.

Petitioner was subjected to a

search that was specifically designated

as for weapons, prior to entering the

lobby area of a county courthouse. As

part of the search for weapons,

Petitioner provided her purse to a

bailiff. Petitioner was not advised

that she could avoid the search by

leaving the building. Petitioner was

not advised that once the search began

it would be completed. The bailiff

searched the purse and found cigarette

rolling papers. He then found a small

"Sucrets" container. Petitioner made

clear that she did not consent to the

opening of the container. The bailiff

opened the container and found a small

quantity of marijuana inside.

The question presented for review

is:

tin

Whether the warrantless search of

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the Sucrets container for weapons,

characterized by the New Hampshire

Supreme Court as an administrative

search, violated Petitioner's right to

be free of unreasonable searches and

seizures, as guaranteed by the

Fourteenth Amendment to the United

States Constitution, when Petitioner

did not consent to the opening of the

container, was not in a position to

have implied knowledge of the extent of

the search Tew Petitioner was not a

person in a heavily regulated industry

or Knowledgeable of court search

procedures), was not clearly advised

that once the search was begun,

Petitioner would be unable to withdraw

from the search, and was not provided

with the option of avoiding the search

by leaving the building.

-3-

II. LIST OF PARTIES.

All parties are listed in the

caption.

IIIT. TABLE OF CONTENTS.

| a

VII.

VILL.

Questions Presented for

DOCEieos «¢ «© « «6 «6 « 8

List of Parties ..

Table of Contents ..

—- YW WW

Table of Authorities. .

Prayer for Relief ... 6

Citation to Opinion

a ee a a

wera mereesens « « 2 « « 7

Statutes and Constitu-

tional Provisions

Bpmawetls « 2 « © «© e * 7

Statement of the Case . 8

Reasons for Granting the

Writ of Certiorart .. 15

The Writ of Certiorarli

should be granted because

it will allow the Court to

clearly define the

parameters of the

administrative searcn

exception to the Fourth

Amendment and make explicit

albu

that notice of the

administrative search and

the right to withdraw from

the activity in question

must be given to the person

or business subject to the

search . © « © © © «ec oc ohF5

1. Administrative

Search Exception... .17

2. The Right to Refuse

Consent (i.e., To Leave the

Facility). e * e 2 * - 25

XI. Conclusion ...+..«+««.o «29

KII. Appendix. « «++ «seev-« «30

A. Agreed Statement of Facts

Concerning Motion to

Suppress Evidence .. . 30

B. Opinion of the New

Hampshire Supreme Court in

State of New Hampshire v.

Renee Plante. ..... 42

C. Order Re: Searches. .. 53

IV. TABLE OF AUTHORITIES.

Burger v. New York, 482 U.S. 691, 107

. Ct. 2030, 96 L.Ed. 2d 601 (1987). .

< eee & a Oe 2s cee es es See BO

Colonnade Corp. v. United States, 397

U.S. 72, 90 S. Ct. 774, 25 L.Ed. 2d 60

(1970). » ee gee ee ee ee ee 18

wees

-5-

Donovan v. Dewey, 452 U.S. 594, 101 S.

Ct. 2534, 69 L.Ed. 2d 262 (1981)... .

ie es es we 8 @ 2 ee ow ohTy 18, 19

mown ng v. Kunzig, sos F.2d 1230 (6th

ir. l 7 . . * . . . . . Shs 22

Griffin v. Wisconsin, 482 U.S. 868, 107

S. Ct. 3164, 97 L.Ed. 2d 709 (1987). 18

McMorris v. Alioto, 567 F.2d 897 (9th

Care Sees hh ek Ss ace SOW eee

Schneckloth v. Bustamonte, 412 U.S.

218, 93 3. Ct. 2041, 36 L.Ed. 2d 854

(1973). * - - - - e . . ° . a, ST, 28

Skinner v. Railway Labor Executives'

Assn, 489 U.S. 602 (1959). . 17, 24, 25

State v. Turmelle, 132 N.H. 148, 562

Bete SOO SEs 6 eke ee So

United States v. Pulido-Baquerizo, 800

P.2ag 699 (Sth Cir. 1900). « « © © © BF

OTHER AUTHORITIES

Amendment IV, U.S. Constitution. .. .7

Amendment XIV, U.S. nena

Section ke . 7 . e . . . . . = . . re

New Hampshire Revised Statutes

Annotated 318-B:2 (Supp. 1990)... .8

whe

Renee Plante, Petitioner

Vv.

State of New Hampshire, Respondent

V. PRAYER FOR RELIEF. -~

Petitioner, Renee Plante, through

counsel, prays that a Writ of

Certiorari be issued to the Supreme

Court for the State of New Hampshire to

review her conviction for possession of

a controlled drug, marijuana, Revised

Statutes Annotated 318-B:2 (Supp.

1990). Said conviction was affirmed by

an opinion of the New Hampshire

Supreme Court dated August 2, 1991.

VI. CITATION TO OPINION BELOW.

The opinion of the New Hampshire

Supreme Court in the instant matter

appears at 134 N.H. » 594 A.2da° 165

(1991).

VII. JURISDICTION.

The judgment of the New Hampshire

_ Supreme Court was entered on August 2,

1991. It affirmed Petitioner's

conviction dated June 8, 1990. The

Jurisdiction of this Court is invoked

pursuant to 28 U.S.C. § 1257(3).

VIIL. STATUTES AND CONSTITUTIONAL

PROVISIONS INVOLVED.

Re Amendment IV, United States

Constitution.

The right of the people to be

secure in their persons, houses,

papers, and effects, against

unreasonable searches and

seizures, shall not be violated,

and no warrants shall issue, but

upon probable cause, supported by

oath or affirmation, and

particularly describing the place

to be searched, and the persons or

things to be seized.

B. Amendment XIV, U.S.

Constitution, Section l.

All persons born or naturalized in

the United States and subject to

the jurisdiction thereof are

afin

citizens of the United States and

of the State wherein they reside.

No State shall make or enforce any

law which shall abridge the

privileges or immunities of

citizens of the United States; nor

shall any State deprive any person

of life, liberty, or property,

without due process of law; nor

deny to any person within its

jurisdiction equal protection of

the laws.

C. New Hampshire Revised

Statutes Annotated 318-B:2

(Supp. 1990).

I. It shall be unlawful for any

person to manufacture, possess,

have under his control, sell,

purchase, prescribe, administer,

or transport or possess with

inteit to sell, dispense, or

compound any controlled drug, or

controlled drug analog, or any

preparation containing a

controlled drug, except as

authorized in this Chapter.

IX. STATEMENT OF THE CASE.

Petitioner's trial counsel filed a

motion to suppress the contents of a

Suerets container seized from the

Pettstoner. The ruling of the trial

court in this matter was based upon a

five page Agreed Statement of Facts

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(Appendix A). The trial court denied

Petitioner's motion to suppress the

contents of thé, Sucrets container. The

trial court's decision was the basis of

Petitioner's appeal to the New

Hampshire Supreme Court. The trial

court was affirmed.

On May 5, 1989, Petitioner entered

the Strafford County (New Hampshire)

Justice and Administration Building

with a male companion. There is no

evidence that Petitioner had previously

visited the building or that Petitioner

nad a history of prior criminal arrests

or convictions. Nothing in the record

establishes that Petitioner had any

prior familiarity with weapons search

techniques.

The Strafford County Superior

Court, a New Hampshire trial court of

general jurisdiction, and the Court's

Clerk's Office are located on the

«ifn

second floor of the Administration

Building. The second floor is

primarily accessible by an elevator.

Petitioner entered the building at

approximately 4:00 p.m. and rode in the

elevator to the second floor.

A sign was posted and visible in

the elevator in which Petitioner rode

that stated, "All persons entering this

court facility are deemed to have

consented to security screening of

their person and property for weapons."

Agreed Statement of Facts, at 95.

"When the elevator door opened on

the second floor, [Petitioner] exited

the elevator and found herself at a

security station managed by a bailiff."

Agreed Statement of Facts, at 48. The

security station had been operated from

8:00 a.m. until 4:30 p.m. on May 5,

1989. "[{TJhe security station located

on the second floor... . has, as part

wk Tw

of the security system, an airport-type

screening device, which is sensitive to

metallic objects." Agreed Statement,

at 949. "{I]n addition to the

airport-type security device, the

bailiffs, in theory, also check any

handbags, briefcases, and/or any other

type of objects being carried by the

person seeking to enter the second

floor, and any containers found therein

that the bailiffs suspect may contain

weapons." Agreed Statement, at 410.

The bailiff that Petitioner

encountered did not have a search

warrant and did not recognize

Petitioner. The bailiff had no reason

to suspect that Petitioner was carrying

any type of weapon. Agreed Statement,

at 94916, 17, and 18.

When Petitioner appeared nervous,

the bailiff explained that the security

check was simply for weapons.

-12-

Petitioner then relinquished her

pocketbook.

Ordinarily, before a security

search begins, the bailiff informs

people that they may leave rather than

submit to a search. The baiiiff "cannot

specifically remember whether he so

informed the [Petitioner]." Agreed

Statement, at 427. The Petitioner

"does not remember the bailiff

informing her she had the right to

leave rather than being searched."

Agreed Statement, at 28.

The bailiff also typically informs

ail "that once he begins a search of

their belongings, he does not stop

until he has finished, even if

requested to do so by the person."

Again, the bailiff does not

specifically recall so advising the

Petitioner. Agreed Statement, at 429.

The Petitioner does not remember the

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bailiff informing her of this policy.

Agreed Statement, at 730.

The search conducted by the bailiff

was pursuant to an order promulgated by

the Chief Judge of the Superior Court

(Appendix C). The order appears to

provide for the withdrawal of the

person entering the facility if the

person causes the metal detecting

device to sound.

In searching the pocketbook, the

bailiff found cigarette rolling papers.

As he continued to search the

pocketbook, he also found a Sucrets

metal container in the last pocket of

the purse. Agreed Statement, at 33.

The size of the Sucrets container was

approximately 3 1/2 by 4 1/2 inches.

The bailiff was familiar with deadly

weapons that could be hidden in a

container of this size. Agreed

Statement, at 435.

uae

The batliff was familiar with the

use of cigarette rolling papers for the

purpose of roiling marijuana

cigarettes. He was of the opinion that

people who have cigarette papers are

probably using them for consumption of

marijuana. Agreed Statement, at 137-38.

"TAjs the bailiff neld the Sucrets

container in his hand, but before he

opened it, [PJetitioner reached across

the table and grabbed the bailiff's

nand. She said more than once ‘please

don't open the container up.'" Agreed

Statement, at 941-43. The Sucrets

container contained seven burned

marijuana cigarettes and one unburned

marijuana cigarette. Agreed Statement,

at 952. The marijuana cigarettes

became the basis for Petitioner's

prosecution.

While it was stipulated that the

bailiff may have known of weapons

OR, 7 OF REET DOWNIE OD or

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concealable in a small Sucrets box,

there is no evidence that established

that Petitioner shared this knowledge.

Also, there is no evidence in the

record of this matter that Petitioner

had previously been subjected to a

courthouse security screen for weapons.

X. REASONS FOR GRANTING THE WRIT

OF CERTIORARI.

A. [Tne Writ of Certiorari should

be granted because it will allow the

Court to clearly define the parameters

of the administrative search exception

to the Fourth Amendment and make

explicit that notice of the

administrative search and the right to

withdraw from the activity in question

must be given to the person or business

Subject to the search.

The New Hampshire Supreme Court

considered the issues presented in this

-

matter as "whether the search of the

Sucrets container was a reasonable

search falling within the

administrative search exception," and

"whether the defendant had the right to

terminate the search once she

relinquished her handbag to the

bailiff." 594 A.2d at 166. The

analysis of the administrative search

exception to the warrant requirement in

this matter was the same for both State

and Federal constitutional purposes.

State v. Turmelle, 132 N.H. 148, 153,

562 A.2d 146 (1989); Burger v. New

York, 482 U.S. 691, 107 S. Ct. 2636, 96

L.Ed. 2d 601 (1987).

The New Hampshire Supreme Court's

application of the administrative

search exception unreasonably stretched

the bounds of the exception beyond its

traditional areas of application in the

context of commercial property and

-17-

where knowledge of the search is

impliedly present. See, Burger, supra,

and Skinner v. Railway Labor Executive

Assn, 489 U.S. 602, 622, 109 S. Ct.

1402, 103 L.Ed. 2d 639 (1989)

(Intrusion of toxicological testing

well known to covered employees.) As

well, defendant's right to withhold

consent should have been analyzed at a

point prior to the commencement of the

Search in this matter, ratner than at

the point at which the Sucrets box was

isolated.

1. Administrative Search

Exception.

The administrative search exception

to the warrant requirement was

initially approved in the context of

commercial property where the

expectation of privacy is "particularly

attenuated." Burger, 482 U.S. at 700.

See also, Donovan v. Dewey, 452 U.S.

atin

594, 599, LOL S. Ct. 2534, 69 L.Ed. 2d

262, 269 (L981) (expectation of privacy

in commerectal property 18s reduced).

But, see Griffin v. Wisconsin, 482 U.S.

868, 107 S. Ct. 3164, 97 L.Ed. 2d 709

(1987).

The administrative search exception

1s also ordinarily applied in the

context of pervasively regulated

industries. Burger v. New York, supra

Dewey, supra (underground and surface

mines); Colonnade Corp. v. United

States, 397 U.S. 72, 75, 90 S. Ct. 774,

25 L.Ed. 2d 60 (1970) (Liquor related

businesses).

Warrantless administrative searches

are deemed reasonable "only so long as

three criteria are met." Burger, 482

U.S. at 702.

First, there must be a

"substantial™ government interest

that informs the regulatory scheme

ow ys orl eavers

CTs eee ee eee | eee a

~ Re Es: (se

482

-19-

pursuant to which the Lnspection is

made .. .

Second, the warrantless inspections

must be necessary to further [the]

regulatory scheme. Donovan v.

Dewey, 452 U.S. at 600... .

Finally, "the statute's inspection

program, in terms of the certainty

and regulatory of its application

[must] provide a constitutionally

adequate substitute for a warrant."

Ibid. In other words, the

regulatory statute must perform the

two basic functions of a warrant:

it must advise the owner of the

commercial premises that the search

is being made pursuant to the law

and has a properly defined scope,

and it must Limit the discretion of

the inspecting officers. . . To

perform this first function, the

statute must be "sufficiently

comprehensive and defined that the

owner of commercial property cannot

help but be aware that his property

will be subject to periodic

inspections undertaken for specific

purposes." Donovan v. Dewey, 452

U.S. at 600.

U.S. at 702-03.

There is no question that

administrative searches of persons

entering a courtnouse are justified by

Substantial government interest. The

government interest is in the safety of

———

S

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the court personnel and integrity of

the court facility.

The second criterion described in

Burger, that the inspection is

necessary to further the regulatory

scheme, cannot be met by the search

conducted in this matter. In order to

protect court personnel and the court

facility, the administrative search in

this matter must be designed to prevent

entry of dangerous weapons or explosive

devices. Weapons or explosive devices

that are not brought onto the premises

are not properly subjected to an

administrative warrantless search.

The Order of the Strafford County

Superior Court (Appendix C) that

created the administrative search in

this matter recognizes the

constitutional need to limit searches

to personal property brought onto the

premises. "If a person passing through

sity na ees A

—————_ <<.

-2l-

the [metal detection] device causes it

to register positively, and still

Wishes to enter the court facility,

such person is subject to further

screening checks in order to find the

cause for the screening device reacting

positively." Id.

From the foregoing, it is

reasonable to conclude that a person

may forego entry into the court

facility if he or she causes the device

to react and does not wish to submit to

a further check of his or her person or

belongings. This approach was adopted

by the General Services Administration

and was the subject of inquiry in

Downing v. Kunzig, 454 F.2d 1230 (6th

Cir. 1972). In Downing, the General

Services Administration had issued a

directive that required inspection of

packages. The directive provided that

"fa ]ldmittance should be denied to

«92~

anyone who refuses to voluntarily

submit packages for examination." 454

F.2d at 1231. In McMorris v.

Alioto, 567 F.2d 897 (9th Cir. 1978),

the Court of Appeals, in an opinion by

then Judge Anthony Kennedy, considered |

a similar administrative inspection

oe

system that allowed the person subject

to inspection to withdraw from the

search and not enter the building.

"A visitor who activated the

[metal detection] device was free

to leave the Hall of Justice

without further search and without

questioning. .. If an individual

activated the magnetometer, he

could empty his pockets of metals

and pass through a second time.

If, after the second pass, the

individual continued to activate

the device, he would not be

admitted into the courthouse

unless he submitted to a pat-down

search."

rr ————aeEeEeEeEeEeEeEeEeEeEeEeEeEeEeEEeEeEeEeEeEeEeeeeeEeeEeEeeEeeEeEeEeEeEeEeEeEeEeEeEeEeEeeEEeEeEeEEEwr

567 F.2d at 899.

Tne New Hampshire court

administrative search regulation, as

applied in this matter, did not afford

-23-

“Petitioner the opportunity to withdraw

from the building rather than submit to

the administrative search. Petitioner

jid not require her pocketbook in order

to enter the court facility.

Certainly, Petitioner did not require

the Sucrets container to be on her

person. Petitioner could have locked

both the purse and the Sucrets

container in her vehicle and entered

the building without them. The right

to avoid subjecting one's personal

belongings to an administrative search

also is discussed infra as part of the

consent issue raised in this case.

Finally, the New Hampshire

administrative search regulation does

not meet the third criterion of the

administrative search exception as set

out in Burger. The regulation in

Burger was justified because it was so

well-defined that the owner of

esha

commercial property could not help but

be aware that his property would be

subject to periodic inspections. Here,

Petitioner was not aware that the

"weapons" search would include the

opening and search of the small Sucrets

box.

There is evidence in this case that

the bailiff, a person with twenty-one

years of law enforcement expertence,

knew of weapons or devices that could

be secreted in the small metal

container that was seized from the

Petitioner. However, there is no

evidence in this matter that Petitioner

understood the possibility of her

Sucrets container becoming the subject

of a search for weapons. The matter

is, thus, distinguishable from the

railway employee in Skinner, supra.

Both the circumstances justifying

toxicological testing and the

permissible limits of such

|

-25-

intrusions are defined narrowly and

specifically in the regulations

that authorize them, and doubtless

are well known to covered _

employees.”

Skinner v. Railway Labor Executives’

Assn, 489 U.S. at 622 (1989) (Citation

omitted.) (Emphasis added. )

2. The Right to Refuse Consent

(i.e., To Leave the Facility).

The Petitioner does not dispute the

rationale of United States v..

Pulido-Baquerizo, 800 F.2d 899 (9th

Cir. 1986) cited by the New Hampshire

Supreme Court. Once a party allows an

administrative inspection of his or her

belongings to begin, that party should

not be permitted to withdraw his or her

consent. In the context of airplane

pre-boarding searches, the right to

withdraw consent would encourage

potential hijackers to determine how

best to defeat airport security

=26~

systems. Once begun, it 1s reasonable

to convuinue and conclude administrative

searches. This 1s conststent with the

regulatory purpose for said searches.

The rationale that favors

continuation and conclusion of an

administrative search does not also

justify, by implication, a complete

relinguishment of one's expectation of

privacy as one approaches a security

checkpoint. Prior to placing one's

luggage in the x-ray machine at the

airport, and prior to entering the

magnetic metal detector at the

courthouse, neither system would be

defeated and the regulatory purpose of

an administrative search would not be

defeated if notice was clearly provided

to the person entering the facility

that he or she may withdraw without

being subjected to a search.

In Schneckloth v. Bustamonte, 412

~?7-

U.S. 218, 93 S. Ct. 2041, 36 L.Ed. 2d

854 (1973), this Court expressly

rejected a requirement that a person's

consent to search was condittoned upon

advisement that he or she has the right

to refuse consent. Ratner than

requiring advisement analagous to the

Miranda warnings, the Court concluded

that a failure to advise of 4 right to

refuse consent was only one of a number

of factors that were to be considered

in determining the totality of

circumstances related to the consent to

search. 412 U.S. at 233-34.

The instant search exists, however,

at the confluence of two exceptions ,to

the search warrant requirement

contained within the Fourth Amendment

to the United States Constitution. The

first exception relates to actual

consent and 1s that described in

Schneckloth. The second exception is

-28-

one of presumed consent and is

exemplified by the regulation at issue

in Burger v. New York. The two

exceptions to the Fourth Amendment's

warrant requirement have been clearly

distinguished, one from the other, by

then Judge Kennedy in McMorris, 567

F.2d at 901 ("nor do we doubt that

their consent in these circumstances

would be insufficient to constitute the

voluntary consent, frequently motivated

by a desire to cooperate with law

enforcement officials, necessary to

validate a warrant list, full-scale

search for evidence of a crime.

Schneckloth v. Bustamonte, 412 U.S.

218, 93 S.Ct. 2041, 36 L.Ed. 2d 854

(1973).")

Tne dictates of Schneckloth snould

not be imposed in the context of a

regulatory search. Relegation of a

warning to only one of a totality of

-29-

factors that must be considered is

inappropriate. Knowledge of the

potential for a warrantless search is

the sine qua non for the exception.

This Court should make the requirement

of a warning explicit in the context of

administrative searches.

XI. CONCLUSION.

WHEREFORE, Petitioner respectfully

requests the Court issue a Writ of

Certiorari to the New Hampshire Supreme

Court to review its decision of August

2, 1991 in this matter.

Andru H. Volinsky,

Esq.

Shaheen, Cappiello,

\ Stein & Gordon

One Barberry Lane

; PO Box 2159

Concord, NH

03302-2159

(603) 228-1109

-30-

XII. APPENDIX.

A. AGREED STATEMENT OF FACTS

CONCERNING MOTION TO SUPPRESS EVIDENCE:

NOW COME the defendant and the

State and agree on the following facts:

1. That on May 5, 1989, she drove

to the Strafford County Justice and

Administration Building which tis

located on County Farm Road in Dover,

New Hampshire.

2. That the Strafford County

Superior Court is located on the second

floor of the Strafford County Justice

and Administration Building.

3. That in order to get to the

second floor of the Strafford County

Justice and Administration Building, tt

is necessary for one to enter the

building and go to an elevator located

in the front lobby.

4. That although there are other

stairways which could, in theory, take

Nb ee aati SL me nce EAT le OS ar ei ele las an

-3l-

one to the second floor in order to get

to the Strafford County Superior Court,

those otner avenues of access, except

for the elevator, are, for security

reasons, either physically blocked off

or marked clearly so they are not used

by the general public.

5. That on that day there were

several signs posted in the front lobby

and on the elevator to the Strafford

County Superior Court, which signs

read: "All persons entering this court

facility are deemed to have consented

to security screening of their person

and property for weapons."

6. That the Chief Justice of the

Superior Court issued the Order

regarding the security screening and

search procedures.

7. That the defendant, on May 5,

1989, entered the elevator and took it

to the second floor of the Strafford

«32+

County Justice and Administration

Building.

8. That when the elevator door

opened on the second floor, she existed

the elevator and found herself at a

security station managed by a bailiff.

9. Tnat tne security station

located on the second floor of the

Strafford County Justice and

Administration Building has, as part of

the security system, an airport-type

screening device which is sensitive to

metallic objects.

10. That, in addition to the

airport-type security device, the

bailiffs, in theory, also check any

handbags, briefcases, and/or any other

type of objects being carried by the

person seeking to enter the second

floor, and any containers found therein

that the bailiffs suspect may contain

weapons.

-33-

ll. That the bailiffs who operate

the security station are employees of

the Strafford County Sheriff's

Department.

12. That once a person passes

through the security station, he or she

is in a general lobby area off of which

are located the Office of the Strafford

County Superior Court Clerk, as well as

the superior court courtrooms.

13. That the batliffs who conduct

the searches at the security station do

not have valid search warrants.

14. That the security station, on

May 5, 1989, was operated from 8:00

Aaem. until 4:30 p.m.

15. That on May 5, 1989, around

4:00 p.m., when the defendant exited

the elevator and entered the second

floor of the Strafford County Justice

and Administration Building, she saw

the security station.

=34-

16. That when the defendant

approached the security station, the

bailiff did not have a search warrant

regarding the defendant.

17. That at the time the bailiff

saw the defendant exit the elevator, he

did not recognize her from any previous

contact.

18. That at the time the defendant

exited the elevator, the bailiff had no

information which would lead him to

Suspect a person fitting the

defendant's description might be

attempting to smuggle weapons into the

courthouse.

19. That the security check the

bailiff intended to execute on the

defendant was the same type of security

check he ran on every other person who

came into the courthouse.

20. That when the defendant exited

the elevator, she was accompanied by a

— > Pam

-35-

male.

21. That the defendant, as she

approached the security check and

observed the metal detector, appeared

to be somewhat nervous.

22. That the bailiff explained the

purpose of the security check to the

defendant.

23. That the bailiff then

requested the defendant hand him her

pocketbook.

24, That as a result of the

conversation, the bailiff received the

defendant's pocketbook.

25. That the defendant, as the

bailiff received her pocketbook, told

the bailiff he was scaring her.

26. That the bailiff responded

there was no need to be scared, as he

was just checking for weapons.

27. That the bailiff, before a

search begins, typically informs people

~36-

that they may leave rather than be

searched, but cannot specifically

remember whether he so informed the

defendant.

28. That the defendant does not

remember the bailiff informing her she

had the right to leave rather than

being searched.

29. The balliff typically informs

people that once he begins the search

of their belongings, he does not stop

until ne is finished, even if requested

to do so by the person, but does not

specifically remember so notifying the

defendant.

30. That the defendant does not

remember the bailiff informing her

about his policy to complete any search

he begins.

31. That the bailiff who had

contact with the defendant on May 5,

1989, had a policy of completing a

-37-

search, once he had initiated the

search, regardless as to whether or not

the defendant objected to the

continuation of the search.

32. That the bailiff found, as he

searched the last compartment of the

pocketbook, Job papers.

33. That as the bailiff continued

to search the defendant's pocketbook,

he also found a Sucrets metal container

in the last compartment of the

pocketbook.

34. That the size of the Sucrets

container was approximately 3 1/2 x 4

1/2 inches.

35. That the bailiff has found

weapons concealed in small containers,

including Sucrets boxes, during other

searches, and is familiar with several

deadly weapons that could be concealed

in a Sucrets box.

36. The bailiff conducting the

~38-

search had been in law enforcement for

21 years as of May 5, 1989.

37. That the bailiff recognized

Job cigarette papers can be used for

the purpose of rolling marijuana

cigarettes.

38. That the bailiff was also of

the opinion people who usually have Job

cigarette papers probably are using it

for marijuana, as opposed to rolling

legitimate tobacco cigarettes.

39. That when the bailiff saw the

Job cigarette paper next to the Sucrets

metal container in the last compartment

being searched in the pocketbook, he

suspected there could be marijuana or

some other type of illegal drug in the

Sucrets container.

40. That the bailiff also

suspected the Sucrets container could

contain a dangerous weapon, it being

identical to containers in which he has

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-39-

found weapons during past security

searches.

41. That the defendant, as the

bailiff neld the Sucrets container tn

his hand, but before he opened it,

reached across the table and grabbed

the batliff's nand.

42, That as the defendant grabbed

the bailiff's hand, she tried to pull

his hand and the container towards her.

43. That when the defendant

grabbed the bailiff's nand, she said

more than once, "Please don't open the

container up."

44, That the balliff instructed

the defendant to remove her nand from

nis hand.

45. That the defendant clearly was

not consenting to the search of the

Sucrets container.

46. That the batliff clearly

understood, prior to opening the

a

~AGa

container, the defendant objected to

having the container searched.

47. That the bailiff opened the

container over the defendant's

objections.

48, That the bailiff believed he

had the authority to open the container

as part of the security check he was

conducting.

49. That prior to opening the

container, the bailiff did not have an

opportunity to shake it to attempt to

determine its contents, since the

defendant grabbed his hand as soon as

he took the Sucrets container out of

her pocketbook.

50. That the bailiff was holding

the can in his right hand.

51. That during the search of the

pocketbook and the can, the male, who

initially walked off the elevator witn

tne defendant, remained with her during

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the entire incident.

52. That when the bailiff opened

the Sucrets container, he observed what

he believed to be 7 burned marijuana

cigarettes and one unburned marijuana

cigarette.

53. That after seeing what he

believed to be marijuana in the Sucrets

container, the bailiff asked for, and

received, information to identify the

defendant.

Respectfully

submitted,

RENEE PLANTE

By her Attorney

May 11, 1990 /s/ Stuart Dedopoulos

Stuart Dedopoulos

Respectfully

submitted,

Office of the

Strafford County

Attorney

By its Attorney

May 11, 1990 /s/ Andrew Ouellette

Andrew Ouellette

-ho-

B. OPINION OF NEW HAMPSHIRE

SUPREME COURT IN STATE OF NEW HAMPSHIRE

V. RENEE PLANTE:

BROCK, C.J. ‘The defendant, Renee

Plante, was convicted of possession of

a controlled drug, marijuana, RSA

318-B:2 (Supp. 1990), and appeals from

an order of the Superior Court (Nadeau,

J.) denying her motion to suppress

evidence obtained during a warrantless

security search. On appeal, she

contends that the trial court erred in

denying her motion, alleging that the

evidence was the product of a search in

violation of the State and Federal

Constitutions. For the reasons that

follow, we affirm.

The following facts are taken from

an agreed statement of facts. On May

5, 1989, the defendant and her husband

went to the Strafford County Justice

and Administration Building, on the

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-43-

second floor of which the Strafford

County Superior Court is located.

Prominently displayed signs in the

lobby and elevator of the building

state: "All persons entering this

court facility are deemed to have

consented to security screening of

their person and property for weapons."

Persons who wish to enter the secured

area where the courtroom is located

must submit to a search by a

magnetometer, which is a walk-through

device for detecting metallic objects,

and to an inspection of handbags and

briefcases by the bailiff. When the

defendant exited the elevator and

discovered the security station, she

Showed signs of nervousness. She

relinquished her handbag to the bailiff

upon his request, and indicated that

his request frightened her. The

bailiff replied that the search was

-4y-

merely a check for weapons, and that

the defendant had no reason to be

frightened.

Ordinarily, the balliff, prior to

commencing a search, informs visitors

that they may leave the building rather

than submit to the search, and that

once he begins searching, he does not

stop until he has completed the search.

Neitner the bailiff nor the defendant

recalls whether the bailiff so informed

the defendant. Upon searching the

defendant's handbag, the bailiff

discovered a packet of cigarette

rolling papers and a 3 1/2-inch by 4

1/2-inch metal container bearing the

label of "Sucrets" throat lozenges. He

suspected that the Sucrets box

contained either illegal drugs or

dangerous weapons. Before the bailiff

could open the container, however, the

defendant seized his nand and urged him

-45-

several times not to open the

container. After ordering the

defendant to let go of his hand, the

bailiff opened the container and

eas

discovered seven burned and one

vettiabid

unburned marijuana cigarettes.

The defendant was arrested and

6 aA Reached Wench + tok Oe

charged with possession of a controlled

drug. RS 318-B:2 (Supp. 1990). The

Dover District Court convicted the

defendant and imposed a ten-day

suspended sentence and a fine of $150.

Tne defendant appealed the conviction

aut rams it ince yi adit hls AE 5 intact ck f. eotiat

to the superior court, where she filed

a motion to suppress the evidence

nat EDL A entemibh Ss eae we

seized from the Sucrets container

asserting, inter alia, that the search

violated the warrant requirement

contained in part I, article 19 of the

State Constitution and the fourth

amendment to the United States

By ne en) tar) ot ee eee ed b Kiel

Constitution. The motion was denied,

-46-

and this anpoat followed.

On appeal, the defendant admits

that she voluntarily submitted to a

search of her handbag for weapons.

However, the she contends that the

search of the Sucrets container in the

nandbag was an unreasonable search not

falling within the administrative

search exception, because it is not

plausible that a weapon or explosive

device could be concealed in a

container of such small dimensions. She

asserts that the bailiff did not

attempt to open the Sucrets container

until after he discovered the rolling

papers, which were of a type suitable

for making marijuana cigarettes. She

contends that his discovery caused him

to open tne container because he

suspected that marijuana was likely to

be found near where rolling papers were

found, thereby making the search part

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of an unlawful criminal investigation

for contraband rather than an

administrative search for weapons. She

also argues that she withdrew her

consent by expressly objecting to the

search of the container, and asserts

that the bailiff should have informed

ner that she was free to leave and

avoid the search, and that once he

began the search he would not stop

until it was completed. The State, on

the other hand, argues that the

defendant was put on notice of the

search and voluntarily submitted to it

by choosing to enter the courthouse and

by relinquisning her handbag to the

bailiff. The State also contends that

the bailiff's search was minimally

intrusive and miducted for the lawful

purpose of detecting weapons.

Tne issue we must decide in this

appeal is whether the search of the

«88

Sucrets container was a reasonable

search falling within the

administrative search exception, and

whether the defendant had the right to

terminate the search once she

relinquished her handbag to the

balliff. We first look to the

protection afforded under the New

Hampshire Constitution, and only look

to the Federal Constitution to the

extent that it affords greater

protection. State v. Ball, 124 N.H.

226, 231-32, 471 A.2d 347, 350-51

(1983). We use federal case law only

as an aid to our analysis. See

Michizan v. Long, 463 U.S. 1032,

1040-41 (1983).

"A warrantless search is per se

unreasonable and invalid, unless it

comes within one of a few recognized

exceptions." State v. Theodosopoulos,

119 N.H. 573, 578, 409 A.2d 1134, 1137

-49-

(1979), cert. denied. 446 U.S. 983

(1980) (citing Mincey v. Arizona, 437

U.S. 385, 390 (1978)); see U.S. CONST.

amend. IV; N.H. Const. pt. I, art. 19.

In this State we have explicitly

adopted the administrative search

exception. State v. Turmelle, 132 N.H.

148, 152, 562 A.2d 196, 199 (1980).

The purpose of an administrative

courthouse search is to deter

individuals from bringing dangerous

weapons into courthouses. There is a

compelling safety concern in

courthouses due to the recent and

increasing acts of violence directed at

such institutions. If individuals were

allowed to impede a search after it has

commenced, they could be provided with

a safe opportunity to avoid weapon

detection. Such an opportunity would

encourage persistent individuals to

repeat their attempts to gain entry

-50-

with weapons. See United States v.

Pulido-Baquerizo, 800 F.2d 899, 902

(9th Cir. 1986). These searches are

conducted on a regular basis to all

individuals wishing to enter and do not

constitute discretionary acts by

government officials. See New York v.

Burger, 482 U.S. 691, 711 (1987). The

search is narrowly tailored to

discovery of dangerous weapons and

explosives and the intrusion ts limited

to a walk-through metal screening

device and a search of handbags and

Other parcels.

Dangerous weapons and explosives

can be concealed in small containers no

larger than the sSucrets container at

issue in this case. Although the

defendant argues that the bailiff had

no reason to believe that the Sucrets

box contained a weapon, the defendant

Signed an agreed statement of facts

We AO be RAL oO LL tis a6

-51-

which stated that the bailiff has found

weapons in small containers including

Sucrets boxes, during other searches,

and is familiar with several deadly

weapons that could be concealed in a

Sucrets box. Moreover, the defendant

voluntarily submitted to the search of

her handbag when told by the bailiff

that the search was a security check

for weapons.

Upon reviewing the evidence in the

record before us, we conclude that

there was sufficient evidence to

Support the trial court's finding that

the bailiff's search of the metal

container wsa a reasonable search under

part I, article 19 of the New Hampshire

Constitution, within the context of an

administrative search for weapons, and

that once the defendant relinquished

her handbag to the bailiff she did not

retain the right to terminate the

-52-

search once it commenced.

Because the Federal Constitution

affords the defendant no greater

protection than our own, we need not

make an independent federal analysis.

See State v. Ball, 124 N.H. at 231-32,

471 A.2d at 3350-51; cf. United States

v. Herzbrun, 723 F.2d 773, 776 (lltn

Cir. 1984) (no fourth amendment

violation where individuals are not

allowed to revoke consent to search at

airport security checkpoint).

Accordingly, we hold that the search

was valid under the administrative

search exception to the warrant

requirement and therefore affirm the

trial court's ruling.

Affirmed.

BATCHELDER, J., dissented; the

other concurred.

BATCHELDER, J., dissenting: This

case, although presented to the trial

ae ad

-53-

court on an agreed statement of facts,

is devoid of any referennce to the

State's having satisfied its burden of

showing that the defendant wsa advised

of her right to leave the courthouse

without submitting to the

administrative search. See Florida v.

Bostick, 59 U.S.L.W. 4708 (U.S. June

20, 1991) (police specifically advised

defendant that he had right to refuse

consent). I would reverse on that

ground alone and would not reach the

issue of the scope of the search.

C. ORDER RE: SEARCHES:

Under the provisions of RSA 159:19,

a person who Knowingly carries a loaded

or unloaded pistol, revolver, or

firearm or any other deadly weapon as

defined in RSA 625:11, V, whether open

or concealed or whether licensed or

-54-

unlicensed, upon his person or within

any of his possessions owned or within

his control in a courtroom or area used

by a court, is guilty of a Class B

felony, unless he or she is

specifically authorized to do so by the

Court or statute.

In order to insure compliance with

RSA 159:19 and for the protection of

court personnel and the public, no

person, unless otherwise authorized,

snall enter the Strafford County

Superior Court factlity without first

passing through a security screening

device. Briefcases, packages,

pocketbooks or. other receptacles

carried in hand by such persons are

also subject to screening procedures.

If a person passing through the device

causes it to register positively, and

still wishes to enter the court

facility, such person 1s subject to

-55-

further screening checks in order to

find the cause for the screening device

reacting positively.

Any weapons voluntarily produced

prior to screening by persons wishing

to enter the court facility may be

temporarily stored with the Sheriff's

Department, but weapons discovered in

the course of screening procedures are

subject to seizure.

All persons entering the Strafford

County Superior Court Facility are

deemed to have consented to the

aforementioned security measures.

/s/ Richard P. Dunfey

Chief Justice

Superior Court