No. 2018-0402

Dec. 2, 2020

Affirmed.

 

  • The Court considered a right-to-privacy amendment to the State Constitution, including whether the amendment applied retroactively, and whether the State had violated a defendant’s right to be free from unreasonable searches and seizures.

 

The defendant, who had been convicted on seventeen counts of cruelty to animals pursuant to RSA 644:8, argued that the superior court erred in denying her motion to suppress evidence seized a result of a search warrant executed by the local police with the aid of the Humane Society of the United States (“HSUS”) and others. A couple of the defendant’s former employee’s told the police that there were seventy-eight dogs living in unsanitary and unsafe conditions. They also provided the police with photographs. After an investigation, the police obtained a search warrant, but the police did not have resources to transport and shelter so many dogs. The police sought help from the HSUS in executing the warrant because of its resources, although the application for the search warrant did not mention that HSUS would assist.

During the execution of the warrant, HSUS inventoried and tracked each dog, took photographs and videos, and made a map of the rooms in the home. HSUS also took possession of the dogs and provided them food and shelter at the organization’s expense. HSUS eventually publicized its involvement, including by showing pictures it took as part of the warrant execution, in connection with fundraising efforts. The defendant argued HSUS’s involvement violated her right to be free from unreasonable search and seizures, but the trial court denied the motion to suppress that she filed on those grounds. On appeal, the defendant argued that that State violated her right to be free from unreasonable searches and seizures and her right to privacy. The Court found that she has not presented any argument to the trial court on the violation of her right-to-privacy other than under Part I, Article 2-b of the State Constitution, which had been enacted after the relevant events had occurred. As a result, it only considered the arguments she made pursuant to Part I, Article 2-b of the State Constitution. The Court adopted the presumption that constitutional amendments apply prospectively unless there is a clear manifestation of an intent to apply the amendment retroactively. Although the defendant advanced a number of arguments for retroactive application of the constitutional amendment in her case, the Court did not find any compelling. It ruled that Part I, Article 2-b did not apply retroactively. Thus, the Court found the defendant did not demonstrate any right to privacy violation.

The defendant also argued that the involvement of a private organization, HSUS, in execution of the search warrant was not constitutionally reasonable and violated her right to be free of unreasonable searches and seizures. The Court found that civilian accompaniment during execution of search warrants is not flatly barred, but it would only be constitutionally permissible if the civilians included in order to aid in execution of the warrant. The Court found that in this case it was undisputed that HSUS was needed to aid the execution of the search warrant and that the police were not required to obtain express authorization for the use of HSUS when applying for the search warrant. Although the Court found that there is no requirement to notify the magistrate issuing a search warrant of any civilians’ involvement in the execution, it also noted that it is advisable to do so whenever possible.

Because the Court found the State did not violate the defendant’s rights under the State Constitution, which is at least as protective as the Federal Constitution, it also found no violation of the defendant’s rights under the Federal Constitution. As a result, the Court did not consider whether suppression of evidence from the search would have been an appropriate remedy if there had been violations of the type alleged.

 

Gordon J. MacDonald, attorney general (Susan P. McGinnis, senior assistant attorney general), for the State. Theodore M. Lothstein, Lothstein Guerriero, Concord, for the defendant.