2019-0371, State of New Hampshire v. John Gates

two - part framework established in State v. Goss, 150 N.H. 46, 49 (2003), which Fou rth Amendment to the Federal Constitution. The trial court applied the violated his rights under Part I, Article 19 of the State Constitution and the farm. In the trial court, the defendant argued that the warrantless search vestibule and utility closet of his apartment building located on his family’s evidence obtained when, without a search warrant, the police entered the order of the Superior Court (Messer, J.) denying his motion to suppress (2014), and use of a Molotov cocktail, RSA 158:37, II (2014). He challenges an 635:1 (2016), being a felon in possession of a dangerous weapon, RSA 159:3, I arson, RSA 634:1 (Supp. 2019), attempted arson, two counts of burglary, RSA BASSETT, J. The defendant, John Gates, appeals his convictions for

brief and orally, for the defendant. Christopher M. Johnson, chief appellate defender, of Concord, on the

on the brief and orally), for the State. Gordon J. MacDonald, attorney general (Zachary Lee Higham, attorney,

No. 2019 - 0371 Rockingham

http://www.courts.state.nh.us/supreme. release. The direct address of the court ’ s home page is: Opinions are available on the Internet by 9:00 a.m. on the morning of their reported by e - mail at the following address: reporter@courts.state.nh. us. corrections may be made before the opinion goes to press. Errors may be Doe Drive, Concor d, New Hampshire 03301, of any editorial errors in order that requested to notify the Reporter, Supreme Court of New Hampshire, One Charles as formal revision before publication in the New Hampshire Reports. Readers are NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as well 2

owner’s f amily, including the defendant and his mother. floor. All of the units in the apartment building were rented by members of the building has two units on the first floor and additional units on the second T he back door of the building provides access to the first floor. The apartment faces Route 1 p. 2 25 and provides an entrance to the second floor of the building. T he apartment building is built into a slope such that the front door

resided. “back corner,” is the two - story apartment building where the defendant stand and b ehind those buildings is a barn. Finally, b eyond the barn, in the is close to Route 1 p. 2 25. Beyond the house are two greenhouses and a farm past several buildings. T he property owner and his wife reside in a house that one extended family. A driveway enters the property from Route 125 and runs front of the farm property, which is a large plot of land owned and occupied by The officers contin ued to follow the footprints as they crossed onto the

sporadic accompanying drag mark. from the Carriage Town Market based on the matching tread, gait, and “the property”). He identified the tracks as a continuation of the footprints trail of footprints near a farm (hereinafter referred to as “the farm property” or before the officers lost the trail. T he second officer eventually relocated the officers followed the footprints as they zig - zagged along and across Route 1 p. 2 25 The re sponding officer was soon joined by a second officer and the two

tread mark and were sporadically accompanied by a separate drag mark. nearby Route 1 p. 2 25. The officer noticed that the footprints had a distinctive snow leading from the Carriage Town Market away from the scene towards dropping heavy snow that morning and the officer observed footprints in the the businesses in the Plaza, the Carriage Town Market. A Nor’easter was Carriage Town Pl aza was activated and that smoke was emanating from one of scene, he observed that the alarm system for one of the buildings in the officer to the Carriage Town Plaza in Kingston. W hen that officer arrived on the at approximately 3:30 a.m., the Kingston Police Department dispatched an the suppression hearing, or are otherwise undisputed. On Januar y 17, 2018, defendant’s motion to suppress, are established by the evidence submitted at Th e following facts are taken from the trial court’s order denying the

reverse and remand. Constitution, he had a legitimate expectation o f privacy in t he utility closet, we Because we agree with the defendant that, under Part I, Article 19 of the State defendant argues that the trial court erred with respect to both rulin gs. that the officers’ warrantless entry into those areas was lawful. On appeal, the expectation of privacy in both the vestibule and the utility closet an d concluded place searched. The trial court found that the defendant lacked a legitimate a legitimate expectation of privacy — both subjective and objective — in the provides that, for a warrantless search to be unlawful, an individual must have p. 3 3

entry into the vestibule and utility closet. The T rial C ourt (Anderson, J.) held a suppress all evidence that the officers obtained as a result of their warrantless the fire at the Carriage Town Market. Before trial, the defendant moved to A grand jury indicted the defendant on multiple charges arising out of

the snow leading from the Carriage Town Marke t to the apartment building. later concluded that the tread pattern o n the boots matched the footprints in time. The defendant then allowed the officer to seize the boots. T he officers boots and insisted that they belonged to a cousin who was not present at th e the defendant if the boot s belonged to him. The defendant denied owning the vestibule. The officer picked up the boots, exited the utility closet, and asked he turned t o exit, the officer noticed a pair of wet boots behind the door to the observed that it contained a water heater, oil tanks, and electrical panels. As closet, rather than a stairwell. He took two or three steps into the room and illuminate the dark room, the officer realized that he had entered a utility stairwell leading to the second - floor apartments. Using his flashl ight to approached the center door, found it unlocked, and opened it to look for a While t wo officers continued questioning the defendant, another officer

examine a pair of sneakers and a pair of boots. Both pairs were dry. had been wearing sneakers when shoveling. H e then allowed the officers to he shoveled the wal kway and asked to see them. The defendant replied that he requested that the defendant identify the s hoes that he had been wearing when that he had recently left his apartment to shovel the walkway. The officers his elderly mother lived in the apartment across the hall. He also explained defendant told the of ficers he was the sole occupant of his apartment and that w ere investigating a fire that had occurred at the Carriage Town Plaza. T he The officers identified themselves and explained to the defendant that they door to the left and an individual, later identified as the defendant, answered. rack and a shovel leaning against the back wall. T he officers knocked on the enough for the three of them to share the space, and that it contained a coat Once inside, the officers observed that the vestibule was barely large

the exterior door unlocked, the three officer s entered the vestibule. doors — one door to the left, one in the center, and one to the right. Finding the window and observed an illuminated vestibule area with three unmarked center exterior door, which had a glass window. T he officers looked through with the farm property, arrived at the scene. The officers a pproached the At approximately 4: p. 3 30 a.m., a third officer, who was somewhat familiar

beginning of the walkway. footprints le d from the car towards the building and disappeared at the doors, with a shoveled stone walkway leading to the center door. The parked near the rear of the apartment building. T hey observed three exterior house and the greenhouses and farm stand, and then around the barn to a car The officers followed the footprints onto the farm property, pas t the p. 4 4

decision). motion to dismiss in part because the record did not include the basis for the trial court’s record on appeal was insufficient to determine whether trial court abused its discretion in denying Smith, 169 N.H. 602, 607 (2017); cf. State v. Bergmann, 135 N.H. 97, 99 - 100 (1991) (holding that order explains the reasoning for its legal conclusions, which we review de novo. See State v. on appeal, neither party challenges the trial court’s factual findings. In addition, the trial court’s provide adequate factual detail about the farm property and the apartment building. Importantly, the issues raised on appeal. The trial court’s order and the transcript of the suppression hearing raised on appeal). Neverth eless, the defendant has provided us with a sufficient record to decide 13(2) (requiring the moving party to provide a sufficient record for the c ourt to decide the issues included any of the photographs discussed at the hearing in the record on appeal. See Sup. Ct. R. photographs in its order denying the motion to suppress. Th e defendant has not, however, the exterior and interior of the apartment building. The trial court relied on at least two of these At the hearing, defense counsel questioned the State’s witnesses about several photographs of 1

CONST. pt. I, a rt. 19. “Evidence that is obtained in violation of Part I, Article seizures of his person, his houses, his papers, and all his possessions.” N.H. “[e]very subject hath a right to be secure from all unreasonable searc hes and Part I, Article 19 of the State Constitution provides, in relevant part, that

v. Ball, 12 p. 4 4 N.H. 226, 231 - 33 (1983). the State Consti tution and rely upon federal law only to aid our analysis. State Following our standard practice, we first address the defendant’s claim under Constitutions in challenging the trial court’s denial of his motion to suppress. N.H. 693, 697 (1999). The defendant cites both the Sta te and the Federal record upon which the trial court based its decision.” State v. Gonzalez, 143 renew his motion to suppress at trial, “we limit our review to the suppression 169 N.H. 602, 6 07 (2017) (quotation omitted). Because the defendant did not clearly erroneous, and we review its legal conclusions de novo.” State v. Smith, the trial court ’ s factual findings unless they lack support in the record or are “When reviewing a trial court’s ruling on a motion to suppress, we accept

of all charges. This appeal followed. to reconsider. After a seven - day jury trial, the jury found the defendant guilty was not objectively reasonable. The trial court denied the defendant ’s motion possessed a subjective expectation of privacy in that location, that expectation Regarding the utility closet, the court concluded that, even if the defendant expectation of privacy in the vestibule was not objectively reasonable. exhibited a subjective expectation of privacy and, even if he had, any With respect to the vestibule, the court found that t he defendant had not T he T rial C ourt (Messer, J.) denied the defendant’s motion to suppress.

offered no exhibits into evidence. 1 called three witnesses — the three officers who entered the vestibule — and two - day evidentiary hearing on the defendant’s motion, during which t he State p. 5 5

proof at the suppression hearing to show, by a preponderance of evidence, that At oral argument, the parties agreed that the State bore the burden of

whether rooming house tenant had a legitimate expectation of privacy). 60 p. 5 5, 609 - 11 (considering facts beyond those known by officers i n determining knows, ex post reality.” Id. (quotation omitted); see also Smith, 169 N.H. at omniscient perspective — what a judge considering a motion to suppress Amen dment § 11.3, at 162 (5th ed. 2012). Instead, we view the facts from “the cases. See 6 Wayne R. LaFave, Search and Seizure: A Treatise on The Fourth the hypothetical “reasonable officer” often referred to in search and seizure do not view the facts from the perspective of the officers involved or from that of N.H. at 60 7 (quotation omitted). In conducting this fact - intensive analysis, we basis, considering the unique facts of each particular situation.” Smith, 169 N.H. at 558. Rather, the determination “must be made on a case - by - case of privacy in a particular place, no single factor is determinative. Boye r, 168 When deciding whether an individual may claim a legitimate expectation

home within the meaning of the State Constitution.” Smith, 169 N.H. at 608. person’s home are not limited to single - family dwell ings: an apartment can be a dwelling.” (quotation and brackets omitted)). “The protections afforded to a are never in sharper focus than when viewed in the protection of one’s see also Boyer, 168 N.H. a t p. 5 558 (“The protections provided by Part I, Article 19 of privacy given to one’s dwelling.” Goss, 150 N.H. at 48 (quotation omitted); police entries into their private homes, because of the heightened expectation Our State Constitution “particularly protects people from unreasonable

brackets omitted). protection from government invasion.” Boyer, 168 N.H. at p. 5 558 (quotation s and or legitimate based upon our societal understanding regarding what deserves expectation of p rivacy, but rather whether the expectation of privacy is justified turn on whether a hypothetical reasonable person would hold the same recognize a particular individual’s expectation of privacy as reasonable does not Id. (quotation omitted); see also Goss, 150 N.H. at 48 - 49. “Whether society will that expectation is “one that society is prepared to recognize as reasona ble.” defendant exhibited a subjective expectation of privacy and, second, whether two - part analysis. See Smith, 169 N.H. at 607. First, we consider whether the whether the defendant had a legitimate expectation o f privacy, we engage in a violation of the defendant’s r ights under Part I, Article 19. Id. To d etermine invasi on of the defendant’s legitimate expectation of privacy, there has been no State v. Bazinet, 170 N.H. 680, 68 4 (2018) (quotation omitted). Without an violation of the State Constitution, we apply an expectation of privacy analysis.” “When determining whether a warrantless search may give rise to a

Boyer, 1 p. 6 68 N.H. p. 5 553, 557 (2016) (quotation omitted). 19 may be subject to exclusion from evidence in a criminal trial.” State v. 6

objectively reasonable expectation of privacy in common areas of an apartment We have not directly addressed the question of whether a tenant has a n

privacy in regard to the vestibule. need not assess whether the defendant exhibited a subjective expectation of the vestibule was one that society is not willing to recognize as reasonable, we below, we conclude that the defendant’s expec tation of privacy with respect to rack and shovel; and the exterior door was closed. Because, as ex plained the doors inside the vestibule were unmarked; the vestibule contained a coat other residential properties; the building contained a small numbe r of units; members; the building was located on a family - owned farm and isolated fr om recognize as reasonable: the apartment building was occupied only by family c onclusion that the expectation of privacy is one that society is prepared to he had a subjective expectation of privacy in the vestibule also support the The defendant first argues that the facts that support the conclusion that

of the warrantless search. address the admissibility of any other evidence the officers obtained as a result defendant’s expectation of privacy in both the vestibule and the utility closet to privacy — is dispositive as to the admissibility of the boots, we analyze the respect to the utility closet — that the defendant had a legitimate expectation of and the utility closet. We will do the same. Although our conclusion with trial court addressed the lawfulness of the officers’ entry into both the vestibule officers’ entry into the vestibule was itself an illegal search. Consequently, the motion, defense counsel expanded the scope of the motion by a rguing that the illegal search” of the utility closet. (Emphasis added.) At the hearing on the scope. The motion sought to suppress “all evidence obtained as a result of the the utility closet, the motion to suppress filed in the trial court was broader in focused on the defendant’s arguments as they relate to the boots seized from expectation of privacy in the utility closet. Although on appeal the parties have in the vestibule, it erred when it concluded that he lacked a legitimate if the trial court properly found that he had no legitimate expectation of privacy and objective expectation of privacy in that area. Second, he argues that, even vestibule of his apartment building was lawful because he lacked a subjective the trial court erred when it ruled that the officers’ warrantless entry into the The defendant’s argument on appeal has two parts. First, he argues that

decline to address it. See State v. Willis, 1 p. 6 65 N.H. 206, 223 (2013). did not raise this argument in the trial court, it is not pr eserved, and we by court rules. See N.H. R. Crim. P. 15(b)(2) (C). However, because the State factual detail and was not supported by a separate verified affidavit as required fail because the motion to suppress filed in the trial court lacked sufficient As a threshold matter, the State argues that the defendant’s appeal must

burden of proof at the suppression hearing. th e search was lawful. W e proceed on the assumption that the State bore the p. 7 7

particular situation.” Smith, 169 N.H. at 60 p. 7 7 (quotation omitted). “must be made on a case - by - case basis, considering the unique facts of each whether a person has a legitimate expectation of privacy in a particular place We cannot, however, apply th is principle as a bright line rule because

United States v. Mirava lles, 280 F.3d 1328, 1332 (11th Cir. 2002)). people, postal carriers and the lik e. ’” Maestas, 639 F.3d at 1038 (quoting visitors of other tenants, the landlord, delivery people, repair workers, sales [common] areas, which are available for use of other tenants, friends and logic behind this approach is that apartment tenants “‘ have little control over is that tenant s lack a reasonable expectation of privacy in common areas). The (N.D. 2013) (noting that majority rule among state courts addressing the issue reasonable expectation of privacy.”); State v. Nguyen, 841 N.W.2d 6 p. 7 76, 68 0 - 8 1 basements, are not areas over which an individual tenant can h ave a complexes or multi - unit dwellings, such as hallways, entryways, and circuit courts have found that ‘shared’ or ‘common’ areas in apartment e.g., United States v. Maestas, 639 F.3d 1032, 1038 (10th Cir. 2011) (“[M]ost employed by the majority of jurisdictions that have addressed the issue. See, (quotation omitted)). This general rule is in accord with the reasoning not places in which tenants have a reasonable expectation of privacy” (1984) (stating in dicta that “common areas of an apartment building . .. are of the residents (quotation omitted)); State v. Chaisson, 125 N.H. 810, 816 curtilage in part because the parking area “was available for the shared benefit” that parking area behind defendant’s multi - family resi dence was not part of the See id. at 610 - 11; see also State v. Mouser, 168 N.H. 19, 25 (2015) (holding reasonable expectation of privacy in common areas of apartment buildings. O ur holding in Smith suggests that, in general, tenants do not have a

the rooming house. Id. have an objectively reasonable expectation of privacy in the common hallway of apartment dwellers,” id. at 611. T herefore, we hel d that the defendant did not like an “unsecured apartment building,” id. at 610, and the tenants “more like Id. at 609 - 10. We concluded that these facts made the rooming house more an implied license to enter th e building and knock on individual tenants’ doors. that the exterior door was customarily left unsecured and open, giving visitors shared a common bathroom and kitchen connected by a common hallway, and had eight to ten individually numbered and locked rooms, that the tenants generalizations in mind, in Smith we noted that the rooming house at issue apartment buildings are not usually protected.” Id. at 60 p. 8 8 - 09. With these while “the common areas in rooming houses that are more like unsecured houses that are more like shared single - family dwellings are usually protecte d” jurisdictions and observed that generally “[t]he common areas in rooming house. Smith, 169 N.H. at 608 - 11. In Smith, we canvassed the law of other tenant has a reasonable expectation of privacy in common areas of a rooming building. We did, however, address a similar issue in State v. Smith: whether a 8

apartments. Consequently, anyone visiting those apartments or accessing the vestibule served as the only point of ingr ess and egress for the first - floor against recognizing an objectively reasonable expectation of privacy. The In addition, the characteristics and apparent u se of the vestibule weigh

expectation of privacy in the vestibule. exterior door. This weighs heavily against finding a n objectively reasonable of the vestibule by walking up the driveway and following the walkway to the here, the officers — and any member of the public — could observe the interior the defendant’s deck exceeded his implied inv itation onto the property”). But, officer’s “departure from the obvious paths on the property and entrance onto reasonable expectation of privacy in deck as part of his curtilage where the case. Cf. Orde, 161 N.H. at 266 - 67 (holding defendant had objectively windows or doors to which no access route led, we would have a very different their deviation from the route across the property, or after looking through vestibule door. Had the officers obtained the disputed evidence as a result of driveway itself to follow the footprints before using the walkway to reach the It is of no consequence in this case that the officers strayed from the

from an access route. See Smith, 169 N.H. at 61 0 - 1 1. reasonable to expect privacy in a place that any member of the public can view building, were in position to view the interior of the vestibule. It is not invitation to use the access routes leading to the door at the rear of the in the morning, the inside light was on. Thus, the of ficers, with an implied manipulation — because the door contained a glass window and, even at 4:30 officers could see into the vestibule — with no special equipment or trespassing” signs pos ted along the driveway or walkway. Once at the door, the door. There is no evidence in the record that there were gates or “no Here, the driveway and the walkway led from Route 125 to the vestibule

Id. (quotation omitted). made from such vantage points are not covered by the Fourth Amendment.” could be expected to go (e.g., walkways, driveways, porches), observations conduct an investigation . . . and restrict their movements to places visitors 260, 266 (2010). It follows that “when the police come on to private property to reasonable expectation of privacy in access routes.” State v. Orde, 161 N.H. public have an ‘implied invitation’ to use it” and, therefore, “a person has no access route on the property, such as a driveway or a sidewalk, members of the walkway leading to the exterior door. We have held that “when there is an was accessible via a driveway and the vesti bule was directly accessible from a id. at 60 p. 9 9 - 10. Next, al though distant from the road, the apartment building between a shared bathroom or kitchen like the common hallway in Smith. Cf. apartments and, therefore, the vestibule did not serve as a passageway vestibule. First, the building in this case housed fully self - contained that the defendant had an objectively reasonable expectation of privacy in the Turning to the facts of this case, s everal facts weigh against recognizing 9

(6th Cir. 2000) (holding t hat defendant had an objectively reasonable buildings with many units. See United States v. King, 227 F.3d 732, 74 p. 9 9 - 50 expectation of privacy in common areas than individuals who live in larger who live in apartment buildings with relatively few units enjoy a greater of courts have taken a more nuanced approach by recognizing that individ uals building has no reasonable expectation of privacy in common areas, a minority described above, a majority of courts have held that a tenant in an apartment of units in the defendant’s apartment building is o ne such fact. Although, as recognizing an objectively reasonable expectation of privacy. The small number On the other hand, there are a number of facts that weigh in favor of

expectation of privacy in the vestibule. facts discussed above, weighs against recognizing a n objectively reasonable Smith, 16 p. 9 9 N.H. at 610, the unlocked exterior door, viewed in the context of the u nlocked door standing alone may not negate a person’s privacy rights, see Therefore, the defendant’s reliance on Titus is misplaced. While an open or generally serve only to connect separate, self - contained living units.” Id. did not extend to “common hallways in unlocked apartment buildings, which 711. And the Florida Supreme Court expressly stated that its holding in Titus operated more like a single - family dwelling than an apartment building. Id. at Titus, 707 So. 2d at 708. Titus, however, involved a rooming house that have a legitimate expectation of pr ivacy in common areas of rooming houses. door was unlocked.” In Titus, the Florida Supreme Court held that tenants argues that we should not “attribute great weight to the fact that the exterior Rel ying on State v. Titus, 707 So. 2d 706 (Fla. 1998), the defendant

public”). accessible to tenants, visitors, solicitors, workmen and other members of the door to hallway was unlocked and therefore common area was “easily in common hallway where defendant “had no way to exclude anyone” because p. 9 965 F. 2d 1248, 1252 (3d Cir. 1992) (finding no legitimate expectation of privacy defendant lacked control over this common area. See United States v. Acosta, prevent others from entering the common vestibule. In other words, the supports the conclusion that the defendant had no right to, and did not try to, recognizing a n objectively reasonable expectation of privacy. Th is fact further Finally, the fact that the vestibule door was unlocked weighs against

legitimate expectation of priva cy). passageways routinely used for egress and ingress” we ighed against finding apartment building entryway, staircase, and second - floor landing “served as State s v. Bain, 155 F. Supp. 3d p. 10 107, 11 6 - 1 7 (D. Mass. 2015) (finding fact that United States v. Holland, 755 F.2d 253, 256 (2d Cir. 1 p. 9 985); see also United the common hallway, and there is no indication that he ever tried to do so.” vestibule. Further, t he defendant “had no right to exclude [such persons] from defendant or his mother, or solicitors — would necessarily pass through the utility closet — the owner of the farm, his agents, friends or family of the 10

patrol[led]”). And, al though there was evidence that the apartment building rooming house located on “heavily travelled” road that the “police frequently (finding no objectively reasonable expectation of privacy in common hallway of uninvited members of the public would visit. Cf. Smith, 169 N.H. at 605, 611 removed from the road, diminishing the likelihood that sales people or other respect to delivery people, sales people, and postal carriers. The building is apartment build ing’s remote location weakens that assumption — at least with like.” Maestas, 639 F.3d at p. 10 1038 (quotation omitted). But, in this case, the landlord, delivery people, repair workers, sales people, postal carriers and the are available for use by “other tenants, friends and visitors of other tenants, the building — depends on the assumption that common hallways or entryways have a reasonable expectation of privacy in the common areas of an apartment common vestibule. The majority rule discussed above — that tenants do not that the defendant had an objectively reasonable expectation of privacy in the corner” of a large, family - owned piece of property also weighs in favor of finding In addition, t he secluded location of the apartment building in the “back

family). because both units in duplex were oc cupied by members of his immediate objectively reasonable expectation of privacy in common area of duplex in part a stranger. See King, 227 F.3d at 74 8 - 50 (finding that defendant had a n other t enant sharing the common vestibule was the defendant’s mother — not rooming house in part based on “large number of tenants”). In addition, the 611 (finding no reasonable expectation of privacy in common hallway of “common” area only for the two first - floor apartments. Cf. Smith, 169 N.H. at two floors are connected by a stairwell. Therefore, the vestibule was a apartments. E ach floor has a n entrance, and there was no evidence that the the building, the vestibule provides access only to the two first - floor H ere, although the record is unclear as to the total number of units in

expectation of privacy.”). who will have regular access to the common areas, and the less reasonable any larger the number of tenants and visitors, workers, delivery people, and others Miravalles, 280 F.3d at 1332 (“The more units in the apartment building, the areas. See, e.g., King, 227 F.3d at 745 - 46, 749 - 50; Fluker, 543 F.2d at 716; cf. limited to fewer people, giving the tenants more control over those common expectation of privacy in common are as because access to those areas is These courts reason that tenants in buildings with fewer units have a greater privacy” in common hallway because it was shared by only two apartments). 581, 583 (Mi ch. Ct. App. 1977) (holding that tenants enjoyed a “high degree of on basement level and one on upper floor); People v. Killebrew, 256 N.W.2d and apartment door in part because building contained only two apartments reasonable expectation of privacy in corridor between exterior basement door F.2d 709, 712, 716 (9th Cir. 1976) (holding that defendan t had objectively “limited to the duplex’s tenants and landlord”); United States v. Fluker, 543 expectation of privacy in basement of duplex because access to that area was p. 11 11

defendant’s family members who occupied duplex). objectively reasonable because basement was accessed by only landlord and basement of duplex by hiding cocaine there and that expectation was 749 - 50 (holding that defendant exhibited subjective expectation of privacy in expectation of privacy was not objectively reasonable); King, 227 F.3d at 744, landing of differen t floor of apartment building but concluding defendant’s expectation of privacy by hiding gun and drugs inside washing machine on See Rheault, 561 F.3d at 57, 59, 61 (ruling that defendant exhibited subjective thereby demonstrating his subjective expectation of privacy in the utility closet. and not within his own apartment — evidences his intent to keep them private, incriminating boots behind the closed door of the utility closet — out of sight The defendant meets this standard. His decision to store the potentially (quoting Katz v. United States, 389 U.S. 347, 351 (1967)) (b rackets omitted). evidence at issue.” United States v. Rheault, 561 F.3d 55, 59 (1st Cir. 2009) expectation of privacy is whether he was “‘ seeking to preserve as private ’ the The relevant inquiry with respect to the defendant’s subjective

defendant. defendant disavowed any ownership interest in the boots. We agree with the the defendant made no attempt to exclude others from the closet, and the closet was unl ocked and unmarked, no signs designated it as a private space, closing the door. The State argues to the contrary, relying on the facts that the he exhibited such an expectation by placing the boots inside the closet and subjective expectation of privacy in the utility closet, the defendant argues that privacy in the utility closet. Turning first to whether the defendant exhibited a erred when it found that the defendant lacked a legitimate expectation of W e now address the defendant’s second argument: that the trial court

Federal Constitution as we do under the State Constitution. Goss, 150 N.H. at 49, we reach the same conclusion on this issue under the affords no greater protection as to a defendant’s expectation of privacy, see Const itution. Because we have recognized that the Federal Constitution not violate the defendant’s rights under Part I, Article 19 of the State in the vestibule. Therefore, the officers’ warrantless entry into the vestibule did that the defendant did not have an objectively reasonable expectation of privacy On balance, considering all of the facts discussed above, we conclude

finding objectively reasonable expectation of privacy in hallway). in rooming house were individually numbered and locked weighed against the defendant’s favor. Cf. Smith, 169 N.H. at 610 (finding that fact that rooms t he fact that the doors inside the vestibule were unmarked weighs slightly in where tenants’ mailboxes were located outside exterior entryway door). Finally, 46, 49 - 50 (D.D.C. 2000) (finding legitimate expectation of privacy in entryway interior of the vestibule. See United States v. Drummond, 98 F. Supp. 2d 44, hearing demonstrating that the mail or other deliveries were made to the had a separate address, the State adduced no evidenc e at the suppression p. 12 12

defendant relies on the same facts that he relied upon with respect to the had an objectively reasonable expectation of privacy in the utility closet, t he We turn nex t to the objective prong of our inquiry. In arguing that he

F.3d at 744. when he stored the boots there. See Rheault, 561 F.3d at 57, 59; King, 227 defendant exhibited a subjective expectation of privacy in the utility closet further conclude that, despite his disavowal of ownership of the boots, the of privacy in the utility closet when he disavowed ownership of the boots. We therefore conclude that the defendant did not forfeit his subjective expectation when the government at trial calls upon the jury to reject that denial”). We the space invaded and thus his right to contest the lawfulness of the search “denial of ownership should not defeat his legitimate expectation of privacy in v. Issacs, 708 F.2d 1365, 1368 (9th Cir. 1983) (observing that defendant’s trial was that the boots did, in fact, belong t o the defendant. See United States especially unfair in this case, where a central thrust of the State’s theory at forfeit the right to later challenge the warrantless search. This rule would be himself to preserve his right to challenge the search or disclaim ownership and view, that is precisely what the defendant would have had to do: incriminate order to gain the benefit of another is simply intolerable.”). Under the State’s 531, 540 (1981) (“To require a person to surrender one constitutional right in right.” Sodoyer, 156 N.H. at 87; see also Opinion of the Justices, p. 12 121 N.H. that could incriminate him in order to avail himself of another constitutional constitutional system does not demand that a defendant surrender information (describing this as the “better view”). As we recognized in Sodoyer, “[o]ur Sodoyer, 156 N.H. at 87 (collecting cases); LaFave, supra § 11.3(a) at 179 defendant’s privacy interest in the place or thing searched or seized. See property interest made in response to police questioning does not negate a We agree with th ose courts that have held that the mere disclaimer of a

recognized in United States v. Aguirre, 664 F.3d 606, 611 n. p. 13 13 (5th Cir. 2011). admissions in response to police questioning”), ab rogated on other grounds as rights did not “evaporate[] simply because he failed to make incriminating by denying he resided on premises because defendant’s Fourth Amendment (rejecting governme nt’s argument that defendant lost right to challenge search omitted)), with United States v. Vega, 221 F.3d 789, 797 (5th Cir. 2000) seized he cannot question the legality of the search and seizure.” (quotation disclaims interest in the premises or possessions searched or in the articles compare State v. Ross, 49 S.W.3d 833, 841 (Tenn. 2001) (“[W] hen one searched,” id. at 87. We observed that courts are split on th is issue. See id.; interest automatically leads to a waiver of privacy rights in the place being did not reach, the question of whether a defendant’s denial of “a possessory in the utility closet. In State v. Sodoyer, 156 N.H. 84 (2007), we identified, but standing in the vestibule, he did not exhibit a subjective expectation of privacy defendant disavowed ownership of the boots when he spoke with the officers We are not persuaded by the State’s argument that, because the 13

in the closet because access to the closet was limited, thereby giving the from the first floor heightens the defendant’s reasonable expectation of privacy closet. As explained above, the fact that only two apartments were accessible reasonable expectation of privacy in the vestibule apply equally to the utility Further, most of the facts that weigh in favor of recognizing an objectivel y

passageway” used by tenants and solicitors to access apartments). four - unit apartment building and contrasting yard with a “common (5th Cir. 1974) (finding legitimate expectation of privacy in fenced backyard of frequently as a hallway or basement”); Fixel v. Wainwright, 492 F.2d 480, 484 anyone oth er than the tenants and landlady” and would not “be accessed as in a duplex’s common closet because it “likely would not be accessed by majority should have recognized objectively reasonable expectation of privacy (Heaney, J., concurring in part and dissenting in part) (expressing view that closet. See United States v. McCaster, 193 F.3d 930, 93 4 - 3 5 (8th Cir. 1999) reasonable for society to recognize an expectation of privacy in th e utility accessible than the vestibu le — and likely not accessed as often — it is compared to passage through the vestibule. Because the utility closet was less solicitors, or the general public — and such access would be infrequent work ers who needed access to the equipment inside — but not visitors, traffic. It would likely be entered by the tenants, the owner of the far m, and different. Unlike the vestibule, the utility closet was isolated from regular foot Also critical, the purpose and use of the utility closet w ere materially

no windows). privacy in entryway to duplex where outer door to entryway was opaque with Supp. 2d at 46, 53 (finding defendant had objectively reasonable expectation of utility closet door had no windows and was closed. See Drummond, 98 F. its contents were not observable from t he interior of the vestibule because the utility closet was not observable from outside the apartment building. Indeed, viewed from the access route leading to the exterior door, the interior of the utility closet. Importan tly, unlike the vestibule, the interior of which could be expectation of privacy in the vestibule do not hold true with respect to the the key facts that weighed against recognizing an objectively reasonable different to warrant a different result. We conclude that they are. Several of question is whether the facts relative to the utility closet are sufficiently objectively reasonable expectation of privacy in the vestibule, the critical Given that we previously hav e concluded that the defendant lacked a n

are not persuaded by the State’s argument. the closet was accessible to other tenants and the owner of the property. We defendant did not exercise control over the closet or exclude others from it, and closet was not objectively reasonable because the clos et was not locked, the that space. The State counters that any expectation of privacy in the utility utility equipment made it even less likely that the uninvited public would enter vestibule, and the additional fact that the function of the closet as storage for p. 14 14

HICKS, HANTZ MARCONI, and DONOVAN, JJ., concurred.

Federal Constitution. See Ball, 124 N.H. at 237. State Constitution, we need not reach the defendant’s challenge under the be en suppressed. See Orde, 161 N.H. at 267. Because we reverse under the utility closet was unlawful and all evidence obtained therefrom should have the warrant requirement. Therefore, the officer’s warrantless entry into the closet, the warrantless search was nevertheless justified under an exception to even if the defendant had a legitimate expectation of pri vacy in the utility requirement.”). Notably, the State does not make a n alternative argument that, within the narrow confines of a judicially crafted exception to the warrant (“[W]arrantless entries are per se unreasonable and illegal unless they fall requirement to lawfully enter it. See S tate v. Gay, 169 N.H. 232, 240 (2016) utility closet, the officers needed a warrant or a valid exception to the warrant Because the defendant had a legitimate expectation of privacy in the

that his expectation is one that society is prepared to recognize as reasonable. defendant exhibited a subjective expectation of privacy in the utility closet, and expectation of privacy in the utility closet. Accordingly, w e conclude that the factors that support the recognition of the defendant’s objectively reasonable was it locked. We cannot conclude, however, that these facts outweigh the We note that the door to the utility closet was no t marked “private,” nor

for his boots. defendant exercised control over the u tility closet by using it as storage space and enter the utility closet. Additionally, the record contains evidence that the likelihood that uninvited members of the public would have occasion to reach by the fact that the apartment building’s remote location diminishes the direct access to the closet. See id. at 750. Our reasoning is further bolstered given that the defendant’s mother inhabit ed the only other apartment with 749 - 50. The defendant’s ability to control the closet is further enhanced here defendant more control over that common space. See, e.g., King, 227 F.3d at