State of New Hampshire v. Amy Kathleen Mouser
168 N.H. 19
| N.H. | 2015Background
- On June 7, 2012, Joseph Jennings was arrested on drug-related charges and released on personal recognizance to the custody of Amy Mouser, and served with a protective order forbidding third-party contact with a certain woman.
- About 45 minutes later the protected woman reported Mouser was contacting her on Jennings’s behalf; Officer McGurren went to the woman’s residence and retrieved paraphernalia the woman said belonged to Jennings.
- McGurren then drove into the rear driveway/parking area of Mouser’s multi-family residence at night, shone lights into Mouser’s parked car, observed furtive movements, and saw two syringes on the center console through the driver’s side window.
- McGurren arrested Jennings and Mouser, seized the paraphernalia from the vehicle, and Mouser was later convicted by jury of possession of a controlled drug.
- Mouser moved to suppress the vehicle evidence, arguing the warrantless search violated State and Federal constitutions; the State invoked the plain view doctrine.
- The Superior Court denied the motion, finding the rear parking area was not curtilage and that McGurren lawfully observed and seized the items under plain view; Mouser appealed.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Mouser) | Held |
|---|---|---|---|
| Whether the rear parking area was part of the home’s curtilage | Area was not curtilage; officer had lawful reason to be on property and could observe vehicle | Area was rear curtilage (behind house, not visible from road) and thus protected | Not curtilage; multi-family shared parking used only for parking and lacked enclosure or signs; no curtilage protection |
| Whether officer’s observation through window was an unlawful search | Officer lawfully observed contents from a lawful position; no reasonable expectation of privacy in items openly visible | Officer’s presence and view violated privacy; observation/search unlawful | No reasonable expectation of privacy for items plainly visible to anyone in the driveway; viewing was not an unlawful search |
| Whether plain view justified entry into vehicle and seizure without warrant or other exception | Plain view permitted seizure of items observed from lawful vantage point | Plain view does not authorize entering vehicle to seize without a warrant or separate exception | Court declined to consider Mouser’s argument that plain view cannot justify entry/seizure because she failed to preserve that specific argument in the trial court |
| Preservation: whether appellate argument about limits of plain view was preserved | State: issue not raised below; trial court lacked findings on entry/seizure | Mouser: preservation rule permits new arguments supporting a preserved claim | Not preserved; Mouser did not move for reconsideration and the court declines to waive preservation requirement |
Key Cases Cited
- Florida v. Jardines, 133 S. Ct. 1409 (U.S. 2013) (trespassory test for searches of constitutionally protected areas)
- United States v. Jones, 132 S. Ct. 945 (U.S. 2012) (trespass test complements reasonable-expectation analysis)
- United States v. Dunn, 480 U.S. 294 (U.S. 1987) (four-factor curtilage test)
- Horton v. California, 496 U.S. 128 (U.S. 1990) (plain view doctrine requirements)
- United States v. Rheault, 561 F.3d 55 (1st Cir. 2009) (no reasonable expectation of privacy in common areas of apartment building)
- United States v. Cruz Pagan, 537 F.2d 554 (1st Cir. 1976) (no privacy expectation in apartment parking garage)
- United States v. Sparks, 750 F. Supp. 2d 384 (D. Mass. 2010) (parking area not private activity; no curtilage protection)
- State v. Pinkham, 141 N.H. 188 (N.H. 1996) (local factors for driveway/curtilage analysis)