Eric Wind Attorney at NH Public Utilities Commission in Concord.

Supreme Court At-a-Glance Contributor Eric Wind, Attorney at the NH Public Utilities Commission in Concord, N.H.

No. 2020-0167

October 28, 2021

Reversed and remanded.

 

  • Whether the trial court erred in denying the defendant’s motion to suppress evidence obtained during a warrantless entry of the enclosed porch of his residence, a later warrantless entry into the interior of his residence and evidence seized during a search of his residence based on a warrant obtained based on information acquired during the two prior unlawful entries into his home?

 

The defendant was arrested in his home and was indicted by a grand jury on one count of possession of a controlled drug (marijuana) with intent to sell based in part on evidence seized during a search of his residence pursuant to a search warrant.  The defendant moved to suppress evidence obtained from the officers’ unlawful warrantless entry into his enclosed porch and the interior of his home and the search warrant’s reliance on evidence obtained during those unlawful entries.  The trial court denied the defendant’s motion to suppress finding that the evidence seized pursuant to the search warrant was lawfully obtained because the officers’ entry into the defendant’s porch was lawful because there was no legitimate expectation of privacy in the porch and that the warrantless entry into the home was justified under the exigent circumstances exception to the warrant requirement.   The defendant appealed arguing that evidence obtained during the officers’ warrantless entry into his porch and inside his home and any evidence seized pursuant to the search warrant obtained therefrom should have been suppressed under the applicable provisions of the New Hampshire and Federal Constitutions.  The Court reversed and remanded because it agreed with the defendant that he had exhibited a subjective expectation of privacy in the porch because he took steps to limit access to the enclosed porch by having a closed wooden exterior door and by limiting the public’s ability to view inside it from the street due to windows which only occupied the top third of the porch to protect its interior from public view.  The Court held that the fact that the defendant never testified that he had a subjective expectation of privacy in his porch was not fatal.  The Court also found that the defendant’s expectation of privacy in the porch was one that society is prepared to recognize as reasonable as the evidence demonstrated that the defendant utilized the enclosed porch as a living space, or extension of his home.  The Court found that the defendant had both a subjective and objective expectation of privacy in the porch, and therefore, a warrant or an exception to the warrant requirement was needed for the officers to lawfully enter his porch.

 

Gordon MacDonald, Attorney General, (Zachary Lee Higham on the brief and orally), for the State. Stephen T. Jeffco, of Portsmouth, (Stephen T. Jeffco on the brief and orally) for the defendant.