No. 2019-0371

Dec. 9, 2020

Reversed and remanded.


  • The Court decided whether the defendant had a legitimate expectation of privacy in a vestibule and a utility closet that required evidence found during a warrantless search of those areas to be suppressed.


The defendant appealed a trial court order denying his motion to suppress evidence found in a warrantless search of a vestibule and utility closet in his apartment building, which was located on his family’s farm. He argued that the warrantless search violated his rights under Part I, Article 19 of the State Constitution and the Fourth Amendment of the Federal Constitution. On appeal, the Court found that the defendant had a legitimate expectation of privacy in the utility closest under Part I, Article 19 of the State Constitution but not in the vestibule.

When police responded to a fire, they found footprints in heavy snow that led them to a farm. The footprints disappeared at a shoveled walkway to the apartment building located on the farm. The door to a vestibule in that building was unlocked, so the police entered. The police knocked on the defendant’s door, which led off from the vestibule, and questioned him. Meanwhile, another officer found that another door in the vestibule was unlocked, and he opened it looking for stairs to the upstairs apartments. Instead, it was a utility closet. The police found wet boots that matched the footprints there. When they asked the defendant about them, he denied they belonged to him and allowed them to be taken.

The Court assumed that the State had the burden to show the search was lawful. The State argued that there was a defect in the motion to suppress because the motion was not supported by a separate, verified affidavit as required by court rules. Because the State did not raise this issue in the trial court, the Court declined to address the argument.

First, the Court considered whether the defendant had a legitimate expectation of privacy in the vestibule. The Court found that society would not recognize an expectation of privacy in a vestibule in this case as being reasonable, so it did not address whether the defendant had a subjective expectation of privacy. The Court noted that it is typically not objectively reasonable for a tenant to have an expectation of privacy in shared or common areas of an apartment building. But, the Court also found there is not a bright line rule, and each case much be considered on an individualized basis. The Court found that the facts of this case did not support a finding that it would be reasonable for the defendant to have an expectation of privacy in the vestibule. Because the Federal Constitution does not provide greater protection, no separate analysis was undertaken.

As to the utility closet, the Court found that the defendant did have a subjective expectation of privacy demonstrated by his intent to keep the potentially incriminating evidence (in this case the boots) out-of-sight and not within his own apartment. The Court found that a mere disclaimer of a property interest in response to police questioning does not negate a defendant’s privacy interest. The Court also found that the defendant had an objectively reasonable expectation of privacy in the utility closet because there were facts that differentiated it from the vestibule, including that the contents were not visible from outside the closed door and the purpose of the closet was not one where the public would be expected to enter into it. Therefore, a warrant was required to search the utility closet. The State had not argued any exception permitting a warrantless search applied. Thus, the Court found the evidence from the utility closet should be suppressed pursuant to the State Constitution. It did not review the defendant’s argument under the Federal Constitution, as it already reversed the trial court’s order under the State Constitution.


Gordon J. MacDonald, attorney general (Zachary Lee Higham, attorney), for the State. Christopher M. Johnson, chief appellate defender, Concord, for the defendant.