2010-728, State of New Hampshire v. Patricia Smith

The defendant, Patricia Smith, appeals the decision of the

___________________________ the defendant. Sisti Law Offices, of Chichester (Mark L. Sisti on the brief and orally), for

general, on the brief and orally), for the State. a.m. on the morning of their release. T , attorney general (Nicholas Cort, assistant attorney 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:

THE SUPREME COURT OF NEW HAMPSHIRE

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

page is: http://www.courts.state.nh.us/supreme.

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as 2

one-third of an acre in size. He also testified that they retrieved information

woods from a mowed lawn. He estimated that the defendant’s property was

their surveillance of her house stayed well behind a stone wall separating the unmaintained wooded area behind the defendant’s property and throughout detecting the odor of fresh marijuana. James testified that they entered an

both James and Prince explained that they had substantial training in

At the suppression hearing and in the affidavits supporting the warrant,

house lacked probable cause.

warrant before entering the wooded area and that the search warrant for the

during the search, arguing that the officers should have obtained a search warrant to search it. The defendant moved to suppress evidence obtained visited the woods behind the defendant’s house, James and Prince obtained a

On the basis of their observations on the three nights during which they

on November 17. similar observations on a visit to the wooded area behind the defendant’s house house, but became stronger when they approached the house. They made

that the odor was not present when they walked away from the defendant’s

activation of the power vent and an odor of fresh marijuana. They also noticed behind the defendant’s home, and again noted a correlation between the On November 15, James and Prince again entered the wooded area

When they left the wooded area, they no longer smelled the odor of marijuana. vent again turned on, and the officers again smelled fresh marijuana in the air. later, the vent turned off and the smell dissipated. About an hour later, the

after, they smelled an odor of fresh marijuana permeating the air. Ten minutes

surveillance. Several minutes later, they observed a power vent turn on; soon

property after dark and entered a wooded area behind her home to conduct On November 1 p. 2 2, 2009, James and Prince went to the defendant’s

further.

Prince of the New Hampshire State Police to help him investigate the matter vent.” His suspicions thus aroused, Detective James enlisted Sergeant Gary application as a “typical dryer-style vent” and the other as a “powered exhaust

air vents, one of which he described in the affidavit accompanying the warrant

not working at all. He also drove past the defendant’s house and noticed two that the defendant was likely working without paying taxes, self-employed, or then learned from the New Hampshire Department of Employment Security

the power company, which indicated unusually high usage year-round. He

James III began an investigation by obtaining the defendant’s electric bills from Deerfield Drive and Lakeside Drive in Haverhill. In response, Detective Frederic tip that the defendant was growing marijuana inside her house at the corner of

In September p. 2 2009, the Grafton County Sheriff’s Department received a seizures. State v. Goss

p. 3 papers, their possessions and their homes from unreasonable searches and Part I, Article 19 of our State Constitution protects all people, their Johnson habitually used for family purposes and carrying on domestic employment.

proximity to her home, was outside the home’s curtilage. grounds surrounding the dwelling which are necessary and convenient and

erroneous. State v. Beauchemin

reasonable expectation of privacy because the area searched, though in close connected with the habitation and in proximity thereto and the land or

either a warrant or circumstances falling within a recognized exception to the

, 159 N.H. at 112; Pinkham, 141 N.H. at 190. Curtilage questions are the trial court’s findings unless they lack support in the record or are clearly

When reviewing a trial court’s ruling on a motion to suppress, we accept public vantage point. The State contends that the defendant had no such the house itself and because the police did not make their observations from a that the curtilage includes those outbuildings that are directly and intimately privacy in the wooded area behind her home because of its close proximity to curtilage are not easily described. Pinkham, 141 N.H. at 190. We have stated Johnson, 159 N.H. 109, 111 (2009). The boundaries and contents of the

curtilage, were traditionally accorded constitutional protection and required (1996); State v. Pinder, 128 N.H. 66, 74 (1986). Such areas, known as searches and seizures as the home itself. State v. Pinkham, 141 N.H. 188, 190 surrounding a home deserves the same protection against unreasonable We have long adhered to the common law principle that certain property

established the requisite probable cause. 49. one that society is prepared to recognize as reasonable. Goss, 150 N.H. at 48obtaining a warrant. She argues that she had a reasonable expectation of a subjective expectation of privacy in the area and that expectation must be protection in the area searched in this case, the defendant must have exhibited

enter the defendant’s curtilage and that the evidence presented to the judge denied the defendant’s motion to suppress, concluding that the officers did not State Constitution because they entered the curtilage of her home without first they crossed onto her property during their investigation. The superior court The defendant argues that the police violated Part I, Article 19 of the

conclusions de novo. Id.

the defendant’s property ended to avoid entering it. He admitted, however, that about the property lines from the registry of deeds and tried to measure where employment.” Johnson

p. 4 ascertain its boundary line and stay on the neighbor’s side of it. Cf and habitually used for family purposes and carrying on domestic right or invitation to cross onto the defendant’s property, they made an effort to 4

particular area claimed to be within the curtilage is “necessary and convenient although Sergeant Prince and Detective James may have had no independent dispositive; the critical question these factors help to answer is whether a resident to protect the area from observation by passersby). No single factor is had a right to be where they were must be considered in context of the “open

equivalent to crossing into her home’s curtilage. See omitted)). Moreover, crossing over the defendant’s property line is not

house and smelled an odor of marijuana emanating from its air vent. First, expectation of privacy in the area from which the police officers observed her area claimed to be curtilage; nature of the area’s uses; and steps taken by the We agree with the trial court that the defendant had no reasonable though the officers may have been trespassing”). Further, whether the police (holding, on federal grounds, that “there was no unconstitutional search even protection”). Hanson, 113 N.H. at 691

property than any other stranger would have.” (quotation and brackets N.H. at 266 (“[A]n officer has no greater right to intrude onto a person’s

proximity to the home; presence of enclosures around both the home and the location searched. State v. Orde

tied to the home itself that it should be placed under the home’s ‘umbrella’ of accord Dunn, 480 U.S. at 301 (focusing on whether an area is “so intimately

factors: the area’s proximity to the dwelling, see

person has a reasonable expectation of privacy in areas surrounding the home: police had a lawful right to be where they were, and the character of the Dunn several factors guide our inquiry: the nature of the intrusion, whether the, 480 U.S. 294, 301 (1987) (listing four factors as relevant to whether a with the United States Supreme Court’s oft-cited decision in United States v. In deciding whether the defendant’s expectation of privacy is reasonable, accessible to others, see Orde, 161 N.H. at 267. These factors are in accord defendant owned the place or controlled access to it and whether it was freely subjective expectation of privacy in the wooded area behind her home. of the family, State v. Hanson We assume, without deciding, that the defendant has exhibited a, 113 N.H. 689, 691 (1973); and whether the 150 N.H. at 452; its use and enjoyment as an adjunct to the domestic economy governmental intrusion as the house. Johnson inclusion within a general enclosure surrounding the dwelling, see Johnston,

the location searched is analyzed with reference to the following additional

issue and then asking whether such an area is as deserving of protection from fact-sensitive, and courts resolve them by examining the nature of the area at p. 5 5

defendant’s home, we agree with the trial court that the information contained

violate the State Constitution when they entered the woods behind the

probable cause. In light of our determination that the police officers did not the three nighttime intrusions onto her property, the search warrant lacked Next, the defendant argues that, without the information gathered during

Constitution, the police were not required to obtain a warrant to search it. reasonable expectation of privacy in the area searched, and, under the State distance at which curtilage begins or ends. See habitually used for family purposes. Accordingly, the defendant had no defendant’s home, proximity alone is not dispositive because there is no fixed

used the “unmaintained” forest for domestic purposes. Cf court that the wooded area in question was not necessary, convenient to, and officers conducted their search within approximately fifty to seventy feet of the to her home, nor was any evidence adduced at the hearing that the defendant

understood from our daily experience.”). On these facts, we agree with the trial woods behind the defendant’s home fall outside her curtilage. While the There is no indication that the defendant used the wooded area as an adjunct the home to which the activity of home life extends – is a familiar one easily Inquiry into the character of the area searched establishes that the clearly marked; and the conception defining the curtilage – as the area around

curtilage was a stone wall on the outer edge of her manicured lawn. See

a fence or row of hedges, surrounded both the house and the wooded area. curtilage of the defendant’s home. For example, no general enclosure, such as 466 U.S. at 182 n.12 (“[F]or most homes, the boundaries of the curtilage will be Amendment.”). support the superior court’s conclusion that the police did not enter the Oliver, see or walk freely into the woods. In fact, the only identifiable demarcation of no steps to limit access to it from outsiders; any neighbors or passersby could of a clothes-line). Although the defendant owned the area in question, she took backyard was part of curtilage in light of its use as a garden and the presence Jenkins, 124 F.3d 768, 773 (6th Cir. 1997) (concluding that defendant’s

may be an open field as that term is used in construing the Fourth N.W.2d p. 5 552, 560 (Wis. 2000). The other factors present in this case strongly used in common speech. For example, . . . a thickly wooded area nonetheless its significance is highly dependent on other factors.”); State v. Martwick curtilage. An open field need be neither ‘open’ nor a ‘field’ as those terms are, 604 F.3d 445, 451 (7th Cir. 2005) (“[Proximity] tends to be very case-specific, and fields.”); Oliver v. United States, e.g., Bleavins v. Bartels, 422

‘open fields’ may include any unoccupied or undeveloped area outside of the

observations conducted while in a public place and while standing in the open Dunn, 480 U.S. at 304 (“[T]here is no constitutional difference between police necessarily invade a property owner’s reasonable expectation of privacy. See fields” doctrine, which recognizes implicitly that a trespass alone does not p. 6 6

Affirmed

argument.

cause to support the search warrant, we need not address the defendant’s final contained in the four corners of the warrant application provided probable James and Sergeant Prince. Because we conclude that the information

detailing a twenty-minute conversation he had by telephone with Detective

DALIANIS, C.J., and DUGGAN, CONBOY and LYNN, JJ., concurred.

should have been granted because the issuing judge did not take notes The defendant also argues that her supplemental motion to suppress

home. in their affidavits established probable cause to issue a warrant to search her