2009-737, State of New Hampshire v. David Orde

Michael A. Delaney

No. 2009-737

Hillsborough-southern judicial district

serve a dog complaint. The defendant’s home is in a residential neighborhood, manufacture of a controlled drug. See Angelo Corrado of the Hollis Police Department went to the defendant’s home to HICKS, J. The defendant, David Orde, appeals his conviction for The record supports the following facts. On July 29, 2008, Officer

Denner Pellegrino, LLP

suppress. We reverse and remand. he argues that the Superior Court (Barry, J.) erred by denying his motions to

Massachusetts, on the brief, for the defendant. on the brief, and Bruce D. Levin orally), and Laurence B. Cote, of Boston,

attorney general, on the brief and orally), for the State.

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 to press. Errors may be reported by E-mail at the following address: editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as his constitutional right to privacy because the deck is protected curtilage, see p. 2 defendant asserts that the officer’s warrantless presence on the deck violated denying his motion to suppress all evidence obtained from the deck. The First, we address the defendant’s argument that the trial court erred in

defendant now appeals the trial court’s rulings. warrant. The trial court denied the defendant’s motions to suppress. The deck, his statements to Mello and evidence obtained through the search The defendant sought to suppress the marijuana plants found on the

evidence. executing the search warrant, the police discovered additional incriminating the existence of a garden hose that went into the defendant’s basement. Upon marijuana plants found on the deck, the defendant’s statements to Mello, and defendant’s home. The application for the search warrant was based upon the After the defendant’s arrest, Mello obtained a warrant to search the

arrested. reasonable. porch.” The defendant proceeded to make incriminating statements and was privacy in his deck nor would any such expectation be recognized by society as there to serve a dog summons but he’d have to answer to the plants on the required because the defendant neither exhibited an actual expectation of defendant arrived at the home, Mello told the defendant that the police “were the warrant requirement applies. The State argues that a warrant was not defendant at his nearby farm and ask him to come to the home. When the N.H. CONST. pt. I, art. 19; U.S. CONST. amend. IV, and that no exception to that the plants were marijuana. He then had police dispatch contact the Sergeant Richard Mello. Mello went to the defendant’s home and confirmed Upon seeing the marijuana plants, Corrado contacted his supervisor,

where he saw marijuana plants. bit of an opening.” Corrado then walked up the stairs and onto the deck, Corrado was able to walk “in between” the lilac bushes where there was “a little is visible from the side door. Lilac bushes line one side of the deck, but no path from the side door to the deck, the deck does have a set of stairs that to find someone at the home, Corrado went around to the deck. While there is Corrado knocked on the side door, but no one answered. In an attempt

the side of the home, approximately thirty feet from the side door. From the side door and the driveway, Corrado could see the deck attached to driveway and went to the side door of the house, which faces the driveway. Corrado from entering the driveway. Corrado parked in the defendant’s to the home is approximately thirty or forty feet long and nothing restricted with trees lining the edge of his property. The driveway leading from the road deck steps. Further, the lilac bushes near the deck would impede any p. 3 on the deck. There is no path leading from the side door of the home to the deck, there is no evidence that he could see whether anything or anyone was side door of the home he could see the deck steps and the existence of the shielding the deck from passersby. Although Corrado testified that from the road. The side of the deck facing the road is lined with lilac bushes, further is lined with trees. There is no evidence that the deck could be seen from the did not exhibit an expectation of privacy in the deck. The defendant’s property We begin by addressing the trial court’s conclusion that the defendant 3

searches and seizures as the home itself. State v. Johnston

of privacy given to one’s dwelling.” Goss police entries into their private homes, because of the heightened expectation Our State Constitution “particularly protects people from unreasonable expectation of privacy. Id possessions and their homes from unreasonable searches and seizures.” State. officer’s warrantless entry upon the defendant’s deck violated his reasonable “Our State Constitution protects all people, their papers, their curtilage questions are fact-sensitive. Id. Thus, we first determine whether the reasonable expectation of privacy in the curtilage. See id. We are mindful that (2004). We have since held that curtilage is only protected if there is a

described as curtilage, deserves the same protection against unreasonable We have previously recognized that certain property surrounding a home, often

defendant’s rights under Part I, Article 19. Robinson, 158 N.H. at 796. reasonable expectation of privacy, there has been no violation of the 150 N.H. at 48 (quotation omitted). Absent an invasion of the defendant’s expectation be one that society is prepared to recognize as reasonable.” Goss, exhibited an actual (subjective) expectation of privacy and, second, that the whether there is a reasonable expectation of privacy: “first, that a person have Constitution, using federal law only as a guide to our analysis. See 792, 796 (2009). In Goss We decide this case based upon our interpretation of the New Hampshire, we adopted a two-part analysis for determining Article 19 of the New Hampshire Constitution. State v. Robinson, 158 N.H. an expectation of privacy plays a role in the protection afforded under Part I, v. Goss, 150 N.H. 46, 48 (2003) (quotation omitted). We have recognized that

237 (1983). Constitution, we need not reach the federal issue. State v. Ball, 124 N.H. 226, Pinkham, 141 N.H. 188, 189 (1996). Because we reverse under the State

novo.” State v. Johnson, 159 N.H. 109, 111 (2009). erroneous. Our review of the trial court’s legal conclusions, however, is de its factual findings unless they lack support in the record or are clearly “In reviewing the trial court’s order on a motion to suppress, we accept precautions to protect his privacy.” Com. v. Krisco Corp. p. 4 searched,” which entails examining “whether the defendant took normal had a lawful right to be where they were, and the character of the location factors,” including “the nature of the intrusion, whether the government agents determined by examining the circumstances of the case in light of several determination is “highly dependent on the particular facts involved and is

deck is one that society is prepared to recognize as reasonable. This We next consider whether the defendant’s expectation of privacy in his

Considering the facts of this case in light of the factors listed in Krisco

impliedly invited, and . . . police officers restricting their activity to such areas parking areas, driveways and pathways are areas to which the public is Johnston, 150 N.H. at 452. “[T]he direct access routes to the house, including that a person has no reasonable expectation of privacy in access routes. “implied invitation” to use it. Pinkham, 141 N.H. at 191. We later recognized property, such as a driveway or a sidewalk, members of the public have an 483 (Or. 1984). In Pinkham, we held that when there is an access route on the State v. Ohling, 688 P.2d 1384, 1385-86 (Or. Ct. App.), review denied, 691 P.2d right to intrude onto [a person’s] property than any other stranger would have.” defendant did not exhibit an expectation of privacy. N.H. at 191. However, this right is not unlimited, as an officer has no “greater we conclude that the trial court erred, as a matter of law, in finding that the has a right to enter a person’s curtilage on legitimate business. Pinkham, 141 placing the lilac bushes in between the side door and the deck. Accordingly, Corrado had a lawful right to be on the defendant’s property. A police officer deck by not creating a path connecting the side door with the deck steps and society is prepared to recognize as reasonable. We first consider whether we believe that the defendant’s expectation of privacy in his deck is one that the driveway. The defendant further exhibited an expectation of privacy in his or any other member of the public, from viewing the activities on the deck from, the road. The placement of the deck and the lilac bushes prevented Corrado, the deck from public view. There is no evidence that the deck was visible from Fourth Amendment). his deck. The defendant made efforts to obscure the deck and the activities on type of government intrusion was perceived as objectionable by Framers of Under these facts, the defendant exhibited an expectation of privacy in taken to maintain privacy, how a person has used a location, and whether the noting that the United States Supreme Court has looked to normal precautions (Powell, J. concurring) (recognizing that no single factor is determinative but 582-83 (Mass. 1995); see also Rakas v. Illinois, 439 U.S. 128, 152-53 (1978)

there was “a little bit of an opening.” order to get to the deck he had to walk “in between” the lilac bushes where perceived route from the door to the deck because, as Corrado testified, in p. 5 1 W. LaFave, Search and Seizure

it as well as whether the place was freely accessible to others.” Krisco determination whether the defendants owned the place or controlled access to “An examination of the character of the location should include a

outside the curtilage.

has traditionally been accorded constitutional protection. See it. As we previously noted, the deck falls within the home’s curtilage, which Next we consider the character of the deck and how the defendant used 5 . . . even if these other portions are themselves clearly visible from

It is located on the defendant’s private property in a residential neighborhood, N.E. 2d at 582-83. The defendant owns the deck as it is attached to his home.

family activities. reasonable expectation of privacy in curtilage used for such personal and barbequing, and sunbathing. We believe that society is prepared to recognize a defendant testified that his deck is an outdoor living space used for dining, observations there, this amounts to a Fourth Amendment search, privacy in overgrown area not within curtilage of defendant’s home). The reasonable. See Johnson, 159 N.H. at 112 (no reasonable expectation of that society is prepared to recognize his expectation of privacy in the deck as attached to the home and used for family activities weighs in favor of a finding at 191; see Johnston, 150 N.H. at 552, the fact that the defendant’s deck is N.H. at 190. Although we have recognized that not all curtilage is protected, id.

property. entrance onto the defendant’s deck exceeded his implied invitation onto the and thus if the police go upon these other portions and make on the property, his departure from the obvious paths on the property and other portions of the lands adjoining the residence are protected, have.” Ohling, 688 P.2d at 1386. Thus, despite Corrado’s initial lawful entry someone after . . . knocking prove[s] unproductive than anyone else would person’s] house, [he] ha[s] no more legal right to continue to look for that [an] officer . . . may have . . . good reason to believe that someone was at [a

vantage points are not covered by the Fourth Amendment. But walkways, driveways, porches), observations made from such movements to places visitors could be expected to go (e.g., investigation or for some other legitimate purpose and restrict their Thus, when the police come on to private property to conduct an

State v. Clark, 859 P.2d 344, 349 (Idaho 1993). reasonable expectation of privacy as to observations made from such areas.” 477 (Idaho Ct. App.), review denied (Idaho 1996). Accordingly, “there can be no expected from a ‘reasonably respectful citizen.’” State v. Cada, 923 P.2d 469, are permitted the same intrusion and the same level of observation as would be illegal search. See p. 6 obtained under the search warrant must also be suppressed as fruit of the

We next consider whether the defendant’s statements and the evidence primary taint. Id. illegality or instead by means sufficiently distinguishable to be purged of the Relying on United States v. Daoust the primary illegality, the evidence has been come at by exploitation of that Accordingly, the question to be resolved is whether, granting establishment of only through exploitation of an antecedent illegality, it must be suppressed. Id. Hampshire Constitution. Id. If the evidence in question has been obtained derivatively obtained through a violation of Part I, Article 19 of the New poisonous tree doctrine requires the exclusion from trial of evidence

officer to lawfully enter the defendant’s deck. See right of privacy.” State v. Canelo deck, a warrant or an exception to the warrant requirement was needed for the, 139 N.H. 376, 387 (1995). private property is “incompatible with and detrimental to our citizens’ strong Because the defendant had a reasonable expectation of privacy in his process. We disagree. Permitting police such wide latitude to enter a person’s a legitimate police activity, such as interviewing a person or serving civil lawfully walk around a person’s property provided they are on the property for expectation of privacy analysis, they apparently assumed the police could Although neither the Daoust nor the Raines courts conducted a reasonable onto the deck was not lawful. See State v. Nieves, 160 N.H. 245, 247 (2010). exception does not apply, however, because Officer Corrado’s initial intrusion to the plain view exception of the warrant requirement. The plain view 1073 (2001), the State asserts that the marijuana was validly seized pursuant and United States v. Raines, 243 F.3d 419, 421 (8th Cir.) cert. denied, 532 U.S.

19 of the State Constitution requires suppression of evidence). 133 N.H. 798, 803, 809 (1991) (warrantless entry in violation of Part I, Article obtained from the deck should have been suppressed. See State v. Santana, case. Therefore, the entry onto the deck was unlawful and all evidence does not argue that any such exception applies to the warrantless entry in this illegal unless made pursuant to a judicially created exception.”). The State 704, 706 (2001) (“Warrantless police entries are per se unreasonable and thus

recognize as reasonable. defendant’s expectation of privacy in his deck is one that society is prepared to Considering the facts of this case and the Krisco factors, we believe that the others from viewing the deck and the activities occurring upon the deck. to the deck. Finally, the defendant took the precautions necessary to prevent path leading to the deck, we conclude that the defendant likely controls access Given the location of the deck, the lilac bushes, and the lack of a sidewalk or on a lot surrounded by trees and is approximately thirty feet from the road. that search warrants be issued only upon a finding of probable cause. State v. p. 7 used to establish probable cause for the search warrant. See defendant’s home pursuant to the search warrant. Part I, Article 19 requires the deck and the defendant’s statements were illegally obtained, they cannot be and cultivated in the basement.” Because we find that the marijuana plants on basement giving the possibility that there may be additional plants being grown observation of “a garden hose being fed into the bulkhead which leads to the plants on the deck; (2) the defendant’s statements to Mello; and (3) the The search warrant in this case was based upon: (1) the marijuana 7

establish probable cause that evidence of illegal drug manufacturing is that the officer was able to lawfully view the garden hose, this, alone, cannot

Finally, we consider the evidence obtained from the search of the

probable cause. Id. and examines the remaining information to determine whether it establishes illegally seized evidence, the reviewing court excises the tainted information test the validity of a search warrant issued upon an affidavit referencing v. Plch, 149 N.H. 608, 620 (2003), cert. denied, 540 U.S. 1009 (2003). Thus, to so long as there was enough other evidence to establish probable cause. State Id. A warrant based in part upon illegally seized evidence is nonetheless valid the evidence or contraband sought will be found in the place to be searched. sufficient facts and circumstances to demonstrate a substantial likelihood that To establish probable cause, the affiant need only present the magistrate with through the search and will aid in a particular apprehension or conviction. Id. ordinary caution would justifiably believe that what is sought will be found Zwicker, 151 N.H. 179, 185 (2004). Probable cause exists if a person of

taint” from the statements). evidence, and there was “no intervening event that would have removed the illegally obtained evidence, he made statements directly related to that suppressed as fruit of illegal search where defendant was confronted with suppressed. Id.; see also State v. Pinder, 126 N.H. 220, 225 (1985) (statements defendant’s statements are the fruit of the illegal search and must be the porch.” Because the taint of the illegal search was not purged, the evidence by stating that the defendant would have “to answer to the plants on Sergeant Mello induced the defendant to speak about the illegally seized illegally seized evidence; there were no intervening circumstances. Further, defendant made the statements immediately after being confronted with the before the defendant made incriminating statements to the police. The omitted). Here, the taint of the Part I, Article 19 violation was not purged and flagrancy of the official misconduct.” Id. (quotation, brackets and ellipses suppressed; (2) the presence of intervening circumstances; and (3) the purpose the police illegality and the acquisition of the evidence sought to be purged, we consider the following factors: “(1) the temporal proximity between In determining whether the taint of a Part I, Article 19 violation has been p. 8 In Johnston

privacy in his deck. Thus, under these facts, I conclude that the defendant had no expectation of lilac bushes only lined one side of the deck and serve a decorative function. suggests that visitors are welcome to access the deck from that direction. The visible path leading from the side door to the deck, the existence of the steps leading to the deck that were visible from the side door. Although there was no deck. The defendant did not erect a “No Trespassing” sign. There were steps gates, fences, or other impediments between the side door to the home and the that the deck was visible from the driveway and the side door. There were no exhibited a reasonable expectation of privacy in his deck. The trial court found defendant’s motion to suppress because I do not believe that the defendant DALIANIS, J., dissenting. I would affirm the trial court’s denial of the

Reversed and remanded

and the facts of this case. between the defendant’s failure to exhibit an expectation of privacy in Johnston door, see Pinkham, 141 N.H. at 190-91, I discern no meaningful distinction side door. Because the officer could lawfully be in the driveway and at the side only supports a finding that the deck was visible from the driveway and the Johnston, the curtilage was visible from the road, whereas here, the evidence The only distinction between Johnston and the facts of this case is that in was no “No Trespassing” sign and no gate blocked the entrance to the curtilage. curtilage was visible from the road, no shrubs or fences hid the curtilage, there with this opinion. reasonable expectation of privacy in the curtilage of his home where the motion to suppress evidence and remand for further proceedings consistent, 150 N.H. at 452, we held that the defendant had no suppress statements. Accordingly, we reverse the trial court’s ruling on the alternative arguments or the trial court’s denial of the defendant’s motion to excluded as fruits of the poisonous tree, we need not rule on the defendant’s should have been granted and that the statements and the search warrant are In light of our holding that the defendant’s motion to suppress evidence DALIANIS, J., dissented. BRODERICK, C.J., and DUGGAN and CONBOY, JJ. concurred;

search warrant must be suppressed. occurring on the property. Accordingly, any evidence obtained through the