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THE SUPREME COURT OF NEW HAMPSHIRE 

___________________________ 

Merrimack 

No. 2012-481 

THE STATE OF NEW HAMPSHIRE 

v. 

RICHARD GNESS 

Argued: October 16, 2013 

Opinion Issued: January 14, 2014 

 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. 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 from 

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 
2

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) 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 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 available for inspection, as required by 

Commission rules. The defendant produced the beer invoices but could not 

locate the wine invoices. 

 At that point, the second investigator was inspecting the rear area of the 

Store. There, he peered into a box that contained a paper bag, inside of which 

he observed some wine and a piece of paper. He removed the paper from the 

bag and saw that it was a Commission receipt for both wine and vodka, dated 

approximately three and a half weeks earlier. The receipt listed six 750 

milliliter bottles of vodka. The defendant’s license did not allow him to sell 

vodka at the Store. 
3

 Upon discovering the receipt, both investigators questioned the 

defendant about the vodka. The defendant told the investigators that he had 

purchased the vodka, and that it was in his apartment above the Store. When 

the investigators asked him to retrieve the vodka, he became quiet, prompting 

an investigator to ask the defendant whether he had consumed the vodka. The 

defendant first stated that he had, but then stated that he was keeping the 

vodka at an offsite location. 

 Because they did not believe the defendant’s conflicting answers to their 

questions, the investigators continued their inspection in an effort to locate the 

vodka. One investigator went into the defendant’s office and, without asking 

the defendant for permission, opened a desk drawer that the investigator 

believed was large enough to hold several 750 milliliter bottles of vodka. 

Inside, the investigator observed several plastic bags containing a green 

vegetative matter that smelled like marijuana. At that point the investigators 

applied for, and received, a search warrant. In conducting their search 

pursuant to the warrant, they searched the defendant’s upstairs apartment 

where they found marijuana, cocaine, psilocybin mushrooms, and bottles of 

vodka. 

 The defendant was indicted on three charges: (1) possession of the 

controlled drug psilocin with intent to distribute; (2) possession of marijuana 

with intent to distribute; and (3) possession of cocaine. Prior to trial, he moved 

to suppress all evidence derived from the search of his office desk. Following 

an evidentiary hearing, the trial court denied the motion, concluding that the 

administrative search exception to the warrant requirement applied to the 

search of the desk drawer. After a jury trial, the defendant was convicted of 

possession of psilocin with intent to distribute, possession of cocaine, and 

possession of marijuana. This appeal followed. 

II 

 On appeal, the defendant argues that the trial court erred in denying his 

motion to suppress the evidence derived from the warrantless, non-consensual 

search of his desk drawer. He argues that because the search did not satisfy 

the requirements of the administrative search exception to the warrant 

requirement, it violated the Fourth Amendment to the Federal Constitution and 

Part I, Article 19 of the New Hampshire Constitution. We first address the 

defendant’s claim under the State Constitution and rely upon federal law only 

to aid our analysis.” State v. Ball, 124 N.H. 226, 231-33 (1983). 

 The New Hampshire Constitution guarantees citizens the right to be free 

from unreasonable searches and seizures. N.H. CONST pt. I, art. 19. 

Accordingly, “a warrantless search is per se unreasonable and evidence derived 

from such a search is inadmissible unless the State proves that the search 
4

comes within one of the recognized exceptions to the warrant requirement.” 

State v. Turmelle, 132 N.H. 148, 152 (1989) (quotation omitted). “In New 

Hampshire, we have explicitly recognized an administrative search exception.” 

Appeal of Morgan, 144 N.H. 44, 49 (1999). Before this exception applies, three 

criteria must be satisfied: “First, there must be a substantial government 

interest that informs the regulatory scheme pursuant to which the inspection 

is made. Second, the warrantless inspections must be necessary to further the 

regulatory scheme. Finally, the implementation of the statutory inspection 

program must provide a constitutionally adequate substitute for a warrant.” 

Id. (quotation omitted). Adoption of these specific criteria guarantees New 

Hampshire citizens protection against unreasonable administrative searches. 

Turmelle, 132 N.H. at 153. 

A 

 As a threshold matter, the defendant argues that there are two additional 

limiting factors in the administrative search exception analysis: that the 

operator of the commercial premises is a participant in a “closely regulated” 

industry, and that the inspections are carried out pursuant to a statutory 

scheme. See New York v. Burger, 482 U.S. 691, 702 (1987). Because our 

current test adequately encompasses both factors, we need not consider nor 

analyze them separately. 

B 

 With regard to the first criterion, the defendant concedes that New 

Hampshire has a substantial government interest in regulating all aspects of 

the alcohol industry. See RSA title XIII; cf. Hickingbotham v. Burke, 140 N.H. 

28, 32 (1995) (noting that, “[s]ince the repeal of Prohibition, virtually every 

aspect of the manufacture, sale and distribution of alcoholic beverages has 

been regulated by the legislature” (quotation omitted)); Colonnade Corp. v. 

United States, 397 U.S. 72, 75-76 (1970) (noting the long history of alcohol 

regulations from colonial to modern times). Accordingly, we need not consider 

it further. 

C 

 With regard to the second criterion, the defendant argues that the 

warrantless inspection of the desk drawer was not necessary to further the 

regulatory scheme. We disagree. Requiring investigators to obtain a warrant 

before inspecting a licensee’s commercial premises or records would impede 

the inspectors’ abilities to detect violations of state liquor laws and to quickly 

and efficiently investigate wrongdoing that may pose a threat to public safety. 

Appeal of Morgan, 144 N.H. at 50. Warrantless access to pertinent records 

also is necessary to ensure that the mere prospect of inspections will prompt 
5

licensees to comply with the law; thus, warrantless inspections also have a 

deterrent effect. Id. 

 We addressed the administrative search exception to the warrant 

requirement in the context of the pharmaceutical industry in Appeal of Morgan, 

in which we found that the administrative search of a pharmacy was necessary 

to further the statutory scheme. Id. In that case, a compliance officer from the 

New Hampshire Board of Pharmacy (Board) visited the pharmacy of a licensed 

pharmacist-in-charge to conduct an inspection. Id. at 45-46. During the visit, 

the compliance officer observed that “a number of the pharmacy’s records were 

inaccurate and disorganized and subsequently recommended an accountability 

audit.” Id. at 46. As a result of the audit, the Board commenced proceedings 

against the pharmacist for various statutory violations. Id. Ultimately, the 

Board restricted the pharmacist’s license to prevent him from acting as 

pharmacist-in-charge and imposed a fine. Id. On appeal, the pharmacist 

argued that the audit constituted an illegal administrative search under the 

Federal and State Constitutions. Id. at 48. In upholding the search, we stated 

that it satisfied the second criterion of the test for warrantless administrative 

searches because “requiring a warrant before an inspection would impede 

inspectors’ abilities to detect faulty records and illegal dispensation of drugs 

and to quickly investigate wrongdoing that may pose a threat to public safety.” 

Id. at 50. 

 Appeal of Morgan is similar to the instant case. The compliance officer in 

Morgan found that the pharmacy’s records were both inaccurate and 

disorganized, in violation of Board rules, and authorized a further inspection — 

an accountability audit — based upon his observations. Id. at 46. Like the 

compliance officer in that case, the investigators here discovered strong 

evidence that the defendant was selling vodka from the Store, in violation of his 

license. The investigators properly pursued further investigation by searching 

the defendant’s desk drawer. In both cases, the investigators had the statutory 

authority to enter the licensed premises and investigate statutory violations. 

See Appeal of Morgan, 144 N.H. at 47 (authorizing the pharmacy board to 

“enter pharmacies to investigate possible violations” pursuant to RSA 318:8 

(Supp. 1998)); RSA 179:57, I (2002) (authorizing liquor commission 

investigators to “cause frequent inspections to be made of all the premises with 

respect to which any license has been issued under the provisions of this 

title”). 

 In the liquor industry, as in the pharmaceutical industry, warrantless 

searches promote efficiency, allow investigators to quickly investigate potential 

wrongdoing, and deter statutory violations. For these reasons, the search in 

this case was necessary to further the statutory scheme and, therefore, the 

second criterion was satisfied. 
6

D 

 Finally, the defendant argues that the third criterion for a warrantless 

administrative search was not satisfied because the implementation of the 

Commission’s inspection program did not provide a constitutionally adequate 

substitute for a warrant. Specifically, he contends that the search of the desk 

drawer was not sufficiently limited in time, place, and scope. We disagree. 

 In State v. Turmelle, we upheld a warrantless search of a package 

pursuant to the Federal Plant Quarantine Act, finding that the administrative 

search exception to the warrant requirement applied to the search. Turmelle, 

132 N.H. at 153. In analyzing the third criterion — whether the 

implementation of the statutory scheme served as an adequate substitute for a 

warrant — we looked to what factors guided the plant inspector’s decision to 

open the package to search for contraband. Id. at 154. In that case, the plant 

inspector “reasonably believed that it would be appropriate for him to open a 

personal package lacking a permit stamp sent from a fruit-growing region of 

Hawaii that had the ‘right weight and feel’ for agricultural contraband.” Id. at 

153. We held that the plant inspector’s recitation of the particular factors that 

led him to inspect the package “demonstrated that articulable guidelines 

limited inspectors’ discretion,” and showed that “the quarantine program 

insures that inspectors may only inspect a package when they have a 

reasonable belief that it would be appropriate to look for contraband there of a 

type within the purview of the regulatory scheme.” Id. at 154. 

 As with the Plant Quarantine Act in Turmelle, RSA title XIII provides 

articulable guidelines that limit investigators’ discretion during inspections. 

RSA 179:57 states that “[t]he commission shall cause frequent inspections to 

be made of all the premises” licensed under title XIII. RSA 179:57, I. RSA 

176:9 allows investigators to enter licensee premises to investigate violations of 

Commission rules issued pursuant to title XIII. RSA 176:9, III (Supp. 2008). 

RSA 175:1 defines “premises,” in pertinent part, as “all parts of the contiguous 

real estate occupied by a licensee over which the licensee has direct or indirect 

control or interest and which the licensee uses in the operation of the licensed 

business.” RSA 175:1, LIV (2002). 

 RSA 179:57 lists six circumstances that may lead to the Commission 

suspending or revoking a liquor license: violation of “any of the provisions of 

law or any of the rules of the commission adopted under” title XIII; failing “to 

superintend in person or through a manager approved by the commission”; 

allowing the licensed premises “to be used for any unlawful purposes”; 

knowingly designating a convicted felon to be in charge of the premises without 

commission approval; failing to “carry out in good faith the purposes of this 

title”; or “if the premises are regularly the site of violence.” RSA 179:57, I. By 
7

detailing the conditions that constitute license violations, the statute guides 

investigators during both annual inspections and premises checks. 

 In addition, the defendant’s license contained specific requirements and 

limitations. The defendant held a combination license pursuant to RSA 

178:18, allowing him to sell “fortified wine, table wine, and beverages for 

consumption only off the premises designated in the license and not to other 

licensees for resale.” RSA 178:18, I. The defendant could sell beverages only 

in the “immediate container” in which he received them. Id. Further, the 

license authorized the defendant “to transport and deliver beverages, tobacco 

products, and table or fortified wines ordered from and sold by [him] in vehicles 

operated under [his] control or an employee’s control.” Id. Thus, these specific 

license restrictions both guide investigators during inspections and put the 

defendant on notice about actions that are unauthorized under his particular 

license. 

 Based upon the overall statutory scheme and the information gleaned by 

investigators during the inspection and from the anonymous source who 

indicated that the defendant was selling vodka from the Store, it was 

reasonable for the investigators to inspect the defendant’s desk drawer in order 

to ensure that he was complying with Commission rules. Further, there is no 

question that the defendant’s desk was part of the commercial “premises” 

subject to inspection. The desk was located on the premises, behind the 

customer area of the Store, in the defendant’s office. The office was where the 

defendant kept paperwork for operation of his business. Accordingly, the 

investigators were well within their statutory authority to inspect the desk. 

 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 
8

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. 

 Affirmed. 

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