State v. Mouser

168 N.H. 19

119 A.3d 870

The STATE of New Hampshire

v.Amy Kathleen MOUSER

No. 2013–554

Supreme Court of New Hampshire.

Argued: June 4, 2015

Opinion Issued: July 15, 2015

Joseph A. Foster, attorney general (Stephen D. Fuller, assistant attorney general, on the brief, and Jason A. Casey, attorney, orally), for the State.

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

DALIANIS, C.J.

The defendant, Amy Kathleen Mouser, appeals her conviction by jury on one count of possession of a controlled drug (cocaine). See RSA 318–B:2, I (2011). On appeal, she argues that the Superior Court (Delker, J.) erred by denying her motion to suppress evidence obtained from a search of her vehicle. We affirm.

The trial court found the following facts when it denied the defendant's motion to suppress. On June 7, 2012, Joseph Jennings was arrested on drug-related charges and released on personal recognizance bail to the custody of the defendant. That day, he was also served with a temporary order of protection that prohibited him, and third parties acting on his behalf, from contacting a certain woman.

Approximately 45 minutes after Jennings was released, the woman reported that the defendant was contacting her on Jennings's behalf, in violation of the protective order. Police Officer McGurren went to the woman's residence, where McGurren retrieved drug paraphernalia that the woman said belonged to Jennings.

McGurren then went to the defendant's multi-family residence where it was "pitch black outside." Because there was no available parking in front of the residence, McGurren pulled into the driveway, which "wrapped around" the back of the building. When she spotted the defendant's vehicle, she parked her cruiser in a way that her headlights illuminated the vehicle's interior. She saw two people making furtive movements in the vehicle's front seat. McGurren shined her spotlight on the vehicle and got out of her cruiser. The defendant then emerged from the passenger side of her vehicle and approached McGurren. Jennings, who had been in the driver's seat, also got out of the vehicle. The defendant began yelling at McGurren. When McGurren ordered the defendant to stay back, she complied and stood approximately 10 feet away from the vehicle, although she continued to yell.

McGurren placed Jennings under arrest for violating the protective order. As McGurren secured Jennings in her cruiser, the defendant was still yelling. Because of the furtive movements she had witnessed earlier, McGurren went to the defendant's vehicle and looked through the driver's side window where she saw what she believed to be drug paraphernalia, including two syringes, on the center console. McGurren then arrested the defendant for possession of a controlled drug. She secured the defendant in the cruiser of a second officer, who had arrived to assist. McGurren then seized the drug paraphernalia from the defendant's vehicle and transported Jennings to the police department. The second officer transported the defendant to the police department. At the police department, the defendant told McGurren that the syringes belonged to Jennings.

Before trial, the defendant moved to suppress the evidence obtained from the search of her vehicle. She contended, among other arguments, that the warrantless search of her automobile violated the State and Federal Constitutions because "it was done without reasonable suspicion and/or probable cause, and without her consent" and there was not "a valid exception to the warrant requirement" to justify the search. The State objected to this argument, contending that the "plain view" exception to the warrant requirement justified the search of the vehicle and the seizure of evidence from it.

The trial court ruled in favor of the State, concluding that, because the driveway was only semi-private, it was not "deserving of traditional curtilage protection." The court also concluded that the defendant had no reasonable expectation of privacy in the contents of her vehicle that were open to observation by anybody present in the driveway, and, thus, decided that McGurren's observation of the vehicle's contents did not constitute an unlawful search. Finally, the court concluded that McGurren's seizure of the evidence was lawful pursuant to the "plain view" exception to the warrant requirement.

On appeal, the defendant argues that the trial court erred by: (1) determining that the rear parking area was not "deserving of traditional curtilage protection"; and (2) implicitly deciding that McGurren needed neither a warrant nor an exception to the warrant requirement other than the "plain view" exception to search the defendant's vehicle. 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. Socci, 166 N.H. 464, 468, 98 A.3d 474 (2014).

I. Curtilage

We first consider the defendant's curtilage argument, which she raises under both the State and Federal Constitutions. See N.H. CONST. pt. I, art. 19 ; U.S. CONST. amend. IV. We address the defendant's argument first under the State Constitution and rely upon federal law only to aid our analysis. See State v. Ball, 124 N.H. 226, 231–33, 471 A.2d 347 (1983).

Part I, Article 19 provides 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." The protection of a person's house extends to the home's "curtilage," or "the area immediately surrounding a dwelling house." United States v. Dunn, 480 U.S. 294, 300, 107 S.Ct. 1134, 94 L.Ed.2d 326 (1987). "The boundaries and contents of the curtilage are not easily described." State v. Pinkham, 141 N.H. 188, 190, 679 A.2d 589 (1996). "Curtilage questions are fact-sensitive, and courts resolve them by examining the nature of the area at issue and then asking whether such an area is as deserving of protection from governmental intrusion as the house." Id.

Under the New Hampshire Constitution, we have applied a reasonable expectation of privacy test to determine whether an area is within the curtilage, examining whether the defendant has a subjective expectation of privacy in that area and whether that expectation is reasonable. See State v. Smith, 163 N.H. 169, 172–73, 37 A.3d 409 (2012) ; see also State v. Goss, 150 N.H. 46, 48–49, 834 A.2d 316 (2003). In deciding whether the defendant's expectation of privacy is reasonable, several factors have guided our inquiry, including: the nature of the intrusion, whether the police had a lawful right to be where they were, and the character of the location searched. Smith, 163 N.H. at 173, 37 A.3d 409. We have analyzed the character of the location searched by referring to the following additional factors: the area's proximity to the dwelling; its inclusion within a general enclosure surrounding the dwelling; its use and enjoyment as an adjunct to the domestic economy of the family; and whether the defendant owned the place or controlled access to it and whether it was freely accessible to others. Id. No single factor has been dispositive; "the critical question these factors help to answer is whether a particular area claimed to be within the curtilage is necessary and convenient and habitually used for family purposes and carrying on domestic employment." Id. (quotation omitted); accord Dunn, 480 U.S. at 301, 107 S.Ct. 1134 (focusing upon whether an area is "so intimately tied to the home itself that it should be placed under the home's ‘umbrella’ of [constitutional] protection").

The United States Supreme Court has recently clarified that, under the Federal Constitution, a criminal defendant may also challenge a search based upon a trespass theory. See Florida v. Jardines, ––– U.S. ––––, 133 S.Ct. 1409, 1414–15, 1417, 185 L.Ed.2d 495 (2013) ; see also United States v. Jones, ––– U.S. ––––, 132 S.Ct. 945, 949–52, 181 L.Ed.2d 911 (2012). According to the Court, constitutionally protected areas are those specifically listed in the Fourth Amendment to the Federal Constitution: "persons, houses, papers, and effects," U.S. CONST. amend. IV. Jardines, 133 S.Ct. at 1414. The trespass theory "has three requirements: a physical intrusion, on an enumerated interest (‘persons[,] houses, papers, and effects’), that is not supported by an implicit license based on social norms." 3A C. Wright & S. Welling, Federal Practice and Procedure: Criminal § 663 (4th ed. Supp. 2015).

The Court explained that, under the Federal Constitution, if the area into which the police intrude is a constitutionally protected area, then the defendant need not also show a reasonable expectation of privacy to establish a Fourth Amendment violation. See Jardines, 133 S.Ct. at 1417 ; see also Jones, 132 S.Ct. at 952 (stating that the "reasonable-expectation-of-privacy test has been added to, not substituted for, the common-law trespassory test"); United States v. Duenas, 691 F.3d 1070, 1080–81 (9th Cir.2012) (explaining that in Jones, "the Court reaffirmed that the home and its curtilage are sacrosanct" and that courts are not required "to apply the reasonable expectation of privacy standard in addition to finding that the subject of the search was ‘persons, houses, papers, or effects’ " (brackets omitted)). We have not yet addressed the trespass theory, as articulated by the Court in Jardines and Jones, under the State Constitution. See Socci, 166 N.H. at 468–70, 98 A.3d 474 (applying trespass theory under Federal Constitution).

On appeal, the defendant focuses primarily upon the federal test, arguing that "McGurren's nighttime entry onto the rear curtilage fell outside the boundaries of the implied invitation" to members of the public to approach the house. See Jardines, 133 S.Ct. at 1414–17. This argument elides over whether the...