Lead Opinion
Thе defendant, David Orde, appeals his conviction for manufacture of a controlled drug. See RSA 318-B:2 (Supp. 2009). On appeal, he argues that the Superior Court {Barry, J.) erred by denying his motions to suppress. We reverse and remand.
The record supports the following facts. On July 29,2008, Officer Angelo Corrado of the Hollis Police Department went to the defendant’s home to serve a dog complaint. The defendant’s home is in а residential neighborhood, with trees lining the edge of his property. The driveway leading from the road to the home is approximately thirty or forty feet long and nothing restricted Corrado from entering the driveway. Corrado parked in the defendant’s driveway and went to the side door of the house, which faces the driveway. From the side door and the driveway, Corrado could see the deck attached to the side of the home, approximately thirty feet from the side door.
Corrado knocked on the side door, but no one answered. In an attempt to find someone at the home, Corrado went around to the deck. While there is no path from the side door to the deck, the deck does have a set of stairs that is visible from the side door. Lilac bushes line one side of the deck, but Corrado was able to wаlk “in between” the lilac bushes where there was “a little bit of an opening.” Corrado then walked up the stairs and
Upon seeing the marijuana plants, Corrado contacted his supervisor, Sergeant Richard Mello. Mello went to the defendant’s home and confirmed that the plants were marijuana. He then had police dispatch contact the defendant at his nearby farm and ask him to come to thе home. When the defendant arrived at the home, Mello told the defendant that the police “were there to serve a dog summons but he’d have to answer to the plants on the porch.” The defendant proceeded to make incriminating statements and was arrested.
After the defendant’s arrest, Mello obtained a warrant to search the defendant’s home. The application for the search warrant was based upon the marijuana plants found on the deck, the defendant’s statements to Mello, and the existence of a garden hose that went into the defendant’s basement. Upon executing the search warrant, the police discovered additional incriminating evidence.
The defendant sought to suppress the marijuana plants found on the deck, his statements to Mello and evidenсe obtained through the search warrant. The trial court denied the defendant’s motions to suppress. The defendant now appeals the trial court’s rulings.
First, we address the defendant’s argument that the trial court erred in denying his motion to suppress all evidence obtained from the deck. The defendant asserts that the officer’s warrantless presence on the deck violated his constitutional right to privaсy because the deck is protected curtilage, see N.H. CONST, pt. I, art. 19; U.S. CONST., amend. IV, and that no exception to the warrant requirement applies. The State argues that a warrant was not required because the defendant neither exhibited an actual expectation of privacy in his deck nor would any such expectation be recognized by society as reasonable.
“In reviewing the trial court’s оrder on a motion to suppress, we accept its factual findings unless they lack support in the record or are clearly erroneous. Our review of the trial court’s legal conclusions, however, is de novo.” State v. Johnson,
We decide this case based upon our interpretation of the New Hampshire Constitution, using federal law only as a guide to our analysis. See State v. Pinkham,
“Our State Constitution protects all people, their papers, their possessions and their homes from unreasonable searches and seizures.” State v. Goss,
Our State Constitution “particularly protects people from unreasonable police entries into their private homes, because of the heightened expectation of privacy given to one’s dwelling.” Goss,
We begin by addressing the trial court’s conclusion that the defendant did not exhibit an expectation of privacy in the deck. The defendant’s property is lined with trees. There is no evidence that the deck could be seen from the road. The side of the deck facing the road is lined with lilac bushes, further shielding the deck from passersby. Although Corrado testified that from the side door of the home hе could see the deck steps and the existence of the deck, there is no evidence that he could see whether anything or anyone was on the deck. There is no path leading from the side door of the home to the deck steps. Further, the lilac bushes near the deck would impede any perceived route from the door to the deck because, as Corrado testified, in order to gеt to the deck he had to walk “in between” the lilac bushes where there was “a little bit of an opening.”
Under these facts, the defendant exhibited an expectation of privacy in his deck. The defendant made efforts to obscure the deck and the activities on the deck from public view. There is no evidence that the deck was visible from the road. The placement of the deck and the lilac bushes prevented Corrado, or any other member of the public, from viewing the activities on the deck from the driveway. The defendant further exhibited an expectation of privacy in his deck by not creating a path connecting the side door with the deck steps and placing the lilac bushes in between the side door and the deck. Accordingly, we conclude that the trial court erred, as a mattеr of law, in finding that the defendant did not exhibit an expectation of privacy.
We next consider whether the defendant’s expectation of privacy in his deck is one that society is prepared to recognize as reasonable. This determination is “highly dependent on the particular facts involved and is determined by examining the circumstances of the case in light of several factors,” including “the nature of the intrusion, whether the government agents had a lawful right to be where they were, and the character of the location searched,” which entails examining “whether the defendant took normal precautions to protect his privacy.” Com. v. Krisco Corp.,
Considering the facts of this case in light of the factors listed in Krisco, we believe that the defendant’s expectation of privacy in his deck is one that society is
Thus, when the police come on to private property to conduct an investigation or for some other legitimate purposе and restrict their movements to places visitors could be expected to go (e.g., walkways, driveways, porches), observations made from such vantage points are not covered by the Fourth Amendment. But other portions of the lands adjoining the residence are protected, and thus if the police go upon these other portions and make observations there, this amounts to a Fourth Amendment search, . . . even if these other portions are themselves clearly visible from outside the curtilage.
1 W. LaFave, Search and Seizure § 2.3(f), at 600-03 (4th ed. 2004). “Although [an] officer... may have... good reason to believe that someone was at [a person’s] house, [he] ha[s] no more legal right to continue to look for that someone after... knocking prove[s] unproductive than anyone else would have.” Ohling,
Next we consider the character of the deck and how the defendant used it. As we previously noted, the deck falls within the home’s curtilage, which has traditionally been accorded constitutional protection. See Pinkham,
“An examination of the character of the location should include a determination whether the defendants owned the
Because the defendant had a reasonable expectation of privacy in his deck, a warrant or an exception to the warrant requirement was needed for the officer to lawfully enter the defendant’s deck. See State v. Sawyer,
Relying on United States v. Daoust,
We next consider whether the defendant’s statements and the evidence оbtained under the search warrant must also be suppressed as fruit of the illegal search. See State v. McGurk,
In determining whether the taint of a Part I, Article 19 violation has been purged, we consider the following factors: “(1) the temporal proximity between the police illegality and the acquisition оf the evidence sought to be suppressed; (2) the presence of intervening circumstances;
Finally, we consider the evidence obtained from the search of the defendant’s home pursuant to the search warrant. Part I, Article 19 requires that search warrants be issued only upon a finding of probable cause. State v. Zwicker,
The search warrant in this case was based upon: (1) the marijuana plants on the deck; (2) the defendant’s statements to Mello; and (3) the observation of “a garden hose being fed into the bulkhead which leads to the basement giving the possibility that there may be additional plants being grown and cultivated in the basement.” Because we find that the marijuana plants on the deck and the defendant’s statements were illegally obtained, they cannot be used to establish probable cause for the search warrant. See id. Assuming that the officer was able to lawfully view the garden hose, this, alone, cannot establish probable cause that evidence of illegal drug manufacturing is occurring on thе property. Accordingly, any evidence obtained through the search warrant must be suppressed.
In light of our holding that the defendant’s motion to suppress evidence should have been granted and that the statements and the search warrant are excluded as fruits of the poisonous tree, we need not rule on the defendant’s alternative arguments or the trial court’s denial of the defendant’s motion to suppress statements. Accordingly, we reverse the trial court’s ruling on the motion to suppress evidence and remand for further proceedings consistent with this opinion.
Reversed and remanded.
Dissenting Opinion
dissenting. I would affirm the trial court’s denial of the defendant’s motion to suppress because I do not believe that the defendant exhibited a reasonable expectation of privacy in his deck. The trial court found that the deck was visible from the driveway and the side door. There were no gates, fences, or other impediments between the side door to the home and the deck. The defendant did not erect a “No Trespassing” sign. There were steps leading to the deck that were visible from the side door. Although there was no visible path leading from the side door to the deck, the existence of the steps suggests that visitors are welcome to access the deck from that direction. The lilac bushes only lined one side of the deck and serve a decorative function. Thus, under these facts, I conclude that the defendant had no expectation of privacy in his deck.
In Johnston,