State v. Davis

THE STATE OF NEW HAMPSHIRE v. DANIEL DAVIS

No. 2020-0167

Supreme Court of New Hampshire

October 28, 2021

Argued: February 18, 2021.

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

Stephen T. Jeffco, P.A., of Portsmouth (Stephen T. Jeffco on the brief and orally), for the defendant.

BASSETT, J.

The defendant, Daniel Davis, appeals his conviction for one count of possession of a controlled substance with intent to sell. See RSA 318-B:2, I (2017). He challenges an order of the Superior Court (Ignatius, J.) denying his motion to suppress evidence obtained during a warrantless entry into the enclosed porch of his residence and subsequent warrantless entry into the interior. He also argues that the trial court erred when it did not suppress evidence seized during a subsequent search of his residence pursuant to a search warrant because the warrant was predicated upon evidence obtained during the two prior unlawful intrusions. The State counters that both entries were lawful and therefore, the later warrant search of the defendant's residence was also lawful. Because we agree with the defendant that the evidence obtained during the two warrantless entries was unlawfully acquired, and that the search warrant's reliance on that evidence renders it invalid, we reverse and remand.

The following facts are taken from the trial court's order denying the defendant's motion to suppress, are established by the evidence submitted at the suppression hearing, or are undisputed. On April 6, 2019, an officer from the Conway Police Department received a tip that marijuana was being grown inside a residential mobile home in Conway. A local business owner informed the officer that, during a recent service call to the residence, he observed several marijuana plants. The officer, joined by a second officer, visited the residence later that day to speak with the occupant.

The residence is comprised of a mobile home and a structurally distinct addition running nearly its entire length (hereinafter referred to as the "enclosed porch" or "porch"). The porch is rectangular, enclosed on all four sides, and has a pitched roof that is slightly lower than the mobile home's roof. The interior wall of the porch is contiguous with one wall of the mobile home. Its three exterior walls are covered with siding or shingles, except the top third of the longest exterior wall, which has windows. At the front end of the porch, there is a set of stairs that leads up to an exterior wooden door with a window and a curtain. The back end of the porch also has a door with a window. Various items are stored inside the enclosed porch, including furniture and appliances. A few feet past the front exterior door and to the right, another door leads from the interior of the porch to the interior of the mobile home.

When the officers arrived at the property, they parked on the street approximately thirty feet away from the residence. From this vantage point, the officers observed that all the windows of the mobile home itself were covered with black plastic. The windows of the enclosed porch were not covered. Through the porch windows, the officers observed electrical wiring and piping protruding from the mobile home into the porch, which they identified as consistent with indoor marijuana cultivation. The officers also observed that the door between the porch and the interior of the mobile home was closed. As the officers approached the residence, they could smell the odor of fresh marijuana.

The officers found the exterior door unlocked, entered the porch, and knocked on the interior door. In response, the occupant asked the officers to identify themselves. The officers identified themselves as police officers and asked the occupant to come to the door. They received no response. In the silence that followed, the officers could hear fans running inside the mobile home, which they considered additional evidence of indoor marijuana cultivation. The officers knocked on the door several more times, each time announcing themselves as police and asking the occupant to come to the door. After repeatedly receiving no response, they left the porch.

As the officers walked away from the residence, they heard loud "crashing" and "banging" noises coming from inside the mobile home. Because the officers believed the occupant was destroying evidence, they reentered the porch and entered the mobile home through the interior door. Inside, the officers discovered evidence of marijuana cultivation, including marijuana plants. They located the defendant in a back hallway of the mobile home and placed him under arrest. The officers subsequently obtained a search warrant, searched the residence pursuant to that warrant, and seized evidence, including marijuana plants and U.S. currency. Based in part on that evidence, a grand jury indicted the defendant on one count of possession of a controlled drug (marijuana) with intent to sell. See RSA 318-B:2, I.

The defendant moved to suppress all evidence derived from the officers' "unlawful entry and subsequent search of his residence." He argued that the evidence forming the basis of the search warrant affidavit had been "acquired as a result of the initial illegal entry of [his] residence" in violation of his rights under the State and Federal Constitutions. At the hearing on the motion, the State offered the testimony of one of the officers who participated in the warrantless entry of the residence. The defendant also testified and offered into evidence several exhibits depicting the residence. He clarified that he was challenging the warrantless entries into the enclosed porch and the interior of the mobile home and the search warrant's reliance on evidence obtained during those intrusions.

The trial court denied the defendant's motion to suppress. It concluded that the officers' entry into the enclosed porch was lawful because the defendant lacked a legitimate expectation of privacy in the porch, and that the officers' warrantless entry into the interior of the mobile home was justified under the exigent circumstances exception to the warrant requirement. Because the court concluded that both challenged entries were lawful, it ruled that the evidence seized pursuant to the search warrant was lawfully obtained and that the defendant's constitutional rights had not been violated. The defendant was convicted of possession of a controlled drug with intent to sell and this appeal followed.

On appeal, the defendant argues that any evidence obtained during the officers' warrantless entries into the porch and the interior of the mobile home and any evidence seized pursuant to the search warrant should have been suppressed under Part I, Article 19 of the State Constitution and the Fourth and Fourteenth Amendments to the Federal Constitution. See N.H. CONST. pt. I, art. 19; U.S. CONST. amends. IV, XIV. With respect to the warrantless intrusions, he argues that the officers' warrantless entry into the enclosed porch was unlawful because he had a legitimate expectation of privacy in the porch, and that the officers' warrantless entry into the mobile home was not justified by the exigent circumstances exception to the warrant requirement. Regarding the search warrant, the defendant asserts that the search warrant affidavit would not have supported probable cause but for the inclusion of observations the officers made during their unlawful, warrantless entries into the enclosed porch and the interior of the mobile home. The State counters that both warrantless intrusions were lawful, and, therefore, the search warrant was valid. We agree with the defendant that any evidence obtained during the warrantless entries and any evidence acquired pursuant to the search warrant should have been suppressed.

When reviewing a trial court's ruling on a motion to suppress, we accept the trial court's factual findings unless they lack support in the record or are clearly erroneous, and we review its legal conclusions de novo. State v. Smith, 163 N.H. 169, 172 (2012). The defendant invokes both the State and Federal Constitutions in challenging the trial court's denial of his motion to suppress. Following our standard practice, we first address the defendant's claim under the State Constitution and rely on federal law only to aid our analysis. State v. Ball, 124 N.H. 226, 231-33 (1983).

We first address the defendant's argument that the officers' warrantless entry into the enclosed porch was unlawful because he had a legitimate expectation of privacy in that area. Part I, Article 19 of the State Constitution provides, in relevant part, that "[e]very subject hath a right to be secure from all unreasonable searches and seizures of his person, his houses, his papers, and all his possessions." N.H. CONST. pt. I, art. 19. This protection against unreasonable searches extends only to those places in which the accused maintains a legitimate expectation of privacy. See State v. Robinson, 158 N.H. 792, 796 (2009). In other words, there is no "search" triggering constitutional protection unless the defendant's legitimate expectation of privacy has been intruded upon by the State. See id.; In re Anthony F., 163 N.H. 163, 165-66 (2012).

To determine whether the defendant has a legitimate expectation of privacy in a particular area, we engage in a two-part analysis. State v. Goss, 150 N.H. 46, 48-49 (2003). First, we consider whether the defendant has exhibited a subjective expectation of privacy and, second, whether that expectation is one that society is prepared to recognize as reasonable. Id. at 49. Whether society will recognize a particular individual's expectation of privacy as reasonable does not turn on...