NH: Detached garage of house was within curtilage

Officers’ entry onto defendant’s property to make observations around his detached garage was a violation of curtilage under Jardines. His later consent was found not tainted, but the trial court’s findings are inadequate on whether the illegal search did, in fact, taint the consent, so remanded. State v. Socci, 2014 N.H. LEXIS 73 (July 8, 2014):

Here, Wickson’s entry into the area surrounding the detached garage to gather evidencwhat the State deems the second of “two distinct searches” — “renders this case a straightforward one” under the Federal Constitution. Id. at 1414. In fact, the State concedes that “under, at least, Florida v. Jardines, … it probably does violate the Fourth Amendment to walk around the garage — the observations made around the garage.” We hold that Wickson conducted a search under the Fourth Amendment when, with the purpose of gathering evidence, he physically intruded on the area surrounding the defendant’s garage — an area undisputedly within the curtilage — “which is not what anyone would think he had license to do.” Id. at 1417. Put another way, the defendant’s implicit license “permit[ting] … visitor[s] to approach the home by the front path, knock promptly, wait briefly to be received, and then (absent invitation to linger longer) leave,” id. at 1415, did not extend so far as to allow a private citizen, let alone a police officer “not armed with a warrant,” id. at 1416, to circle his garage to gather evidence. Because Wickson’s physical intrusion on the undisputed curtilage of the home to gather evidence was neither “explicitly [n]or implicitly permitted by the homeowner,” id. at 1414, it was a search under the Fourth Amendment, id. at 1417. As it was conducted without a warrant, and under no recognized exception to the warrant requirement, the search “was not constitutionally permissible” under the Federal Constitution, Mincey v. Arizona, 437 U.S. 385, 390, 395, 98 S. Ct. 2408, 57 L. Ed. 2d 290 (1978), and evidence obtained as a result of the search was, “by that same authority, inadmissible in a state court,” Mapp v. Ohio, 367 U.S. 643, 655, 81 S. Ct. 1684, 6 L. Ed. 2d 1081, 86 Ohio Law Abs. 513 (1961). Having determined that the pre-consent search of the area surrounding the garage was unlawful under the Federal Constitution, we need not reach the defendant’s claim that it also violated the State Constitution. Cf. State v. Lantagne, 165 N.H. ___, ___, 83 A.3d 397, 401 (2013).