NH: ABC officers could search the office desk during a premises inspection of licensee

Defendant ran a convenience store with a beer and wine permit. NH ABC got word he was selling liquor contrary to his license, so they went to the store to ask about it and conduct an annual premises inspection. When there, a customer came in and asked for vodka. Defendant ultimately produced a receipt showing that he’d purchased vodka but said it was for himself, but he’d apparently consumed it because it was first, gone, then second, offsite. The officers helped themselves and searched his desk in the office without asking permission, or a warrant, and controlled substances were found. Because alcoholic beverage sales are highly regulated, the search of the desk was within the power of the ABC officers in their premises inspection. State v. Gness, 2014 N.H. LEXIS 2 (January 14, 2014):

The defendant argues that the Commission could have satisfied its statutory duties, and verified “virtually all aspects of compliance” with title XIII by conducting unannounced inspections of public areas, kitchens, and bar wells, and by demanding that licensees produce records, rather than inspecting more private places such as desk drawers. We find this argument unpersuasive, and believe that the statutory scheme is an adequate substitute for a warrant: it provides investigators with concrete guidance during their searches — thus sufficiently limiting investigator discretion — while also putting licensees on notice of their obligations under Commission rules. See Appeal of Morgan, 144 N.H. at 50 (holding that the third criterion of the administrative search exception was satisfied, as the “statutory scheme provide[d] sufficient restraint on arbitrary agency action”) (citation omitted). Thus, the third criterion was satisfied, as the statutory scheme provides an adequate substitute for a warrant.

We finally address the defendant’s claim that the warrantless search of the desk drawer violated the Fourth Amendment to the Federal Constitution. The Federal Constitution offers the defendant no greater protection than does the State Constitution under these circumstances. See Burger, 482 U.S. at 702 (stating that in order for a warrantless administrative inspection of a commercial premises to be reasonable within the meaning of the Fourth Amendment, the following three-part test must be satisfied: (1) there must be a substantial government interest; (2) the warrantless inspection must be necessary to further the regulatory scheme; and (3) the inspection program must provide a constitutionally adequate substitute for a warrant). Because all three criteria of the test are satisfied, we reach the same result under the Federal Constitution as we do under the State Constitution.