N.H.: Defendant’s denial he lived at place searched was not a waiver of interest; third party consent was void

The person on the lease who had moved out of the premises was no longer capable of consenting to a search of the room occupied by the defendant. Defendant denied that he lived there, but the court did not find that to be a waiver of his expectation of privacy in the premises searched. State v. Sodoyer, 156 N.H. 84, 931 A.2d 548 (2007):

However, we need not reach the question of what effect the denial of a possessory interest in the residence has on a defendant’s rights against an illegal search. The defendant’s denial that he did not live in the apartment is not the same as disavowing any privacy interest in his belongings. He simply denied living in the apartment; he was not asked, nor did he answer any other question or volunteer any statement about what kind of connection he had to the second bedroom. If the defendant was a temporary house guest, he might have an expectation of privacy. See Minnesota v. Olson, 495 U.S. 91, 96-97 (1990).

The defendant’s initial denial of residence and then silence during the search cannot be equated to a waiver of his rights. As far as the record reflects, he truthfully answered the only question he was asked. “[I]t can hardly be said that Fourth Amendment rights evaporate merely because of a failure to make incriminating admissions in response to police inquiries.” 6 W. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 11.3(a), at 140 (4th ed. 2004). Our constitutional system does not demand that a defendant surrender information that could incriminate him in order to avail himself of another constitutional right. “To require a person to surrender one constitutional right in order to gain the benefit of another is simply intolerable …. There are some choices which the State cannot require a defendant to make, and a choice between constitutional rights is one of them.” State v. Hearns, 151 N.H. 226, 238 (2004) (quotations omitted).

Warrant application was stale as to whether property would be found in defendant’s house, but the application was not so bare bones that the good faith exception was not satisfied. Patterson v. State, 930 A.2d 348 (Md. 2007). Comment: This court at least dealt with the merits of the staleness claim before turning to the good faith exception, taking both questions seriously and analyzing them in detail. As to staleness:

In reviewing cases where courts found probable cause to search a residence for a firearm, this Court in State v. Ward, 350 Md. 372, 379-80, 712 A.2d 534, 537 (1998) observed that “in each of the cases reviewed or cited below, there was probable cause to believe that a crime of violence, involving the use of a weapon, had been committed, that the defendant was the criminal agent, and that the defendant resided at the place to be searched.” In the present case, Officer Haak suspected that Patterson possessed a gun at the time of the traffic stop, and based on that suspicion, he inferred that Patterson had a weapon stored at his home. We have said in the context of a search for contraband that “the mere observation, documentation, or suspicion of a defendant’s participation in criminal activity will not necessarily suffice, by itself, to establish probable cause that inculpatory evidence will be found in the home …. There must be something more that, directly or by reasonable inference, will allow a neutral magistrate to determine that the contraband may be found in the home.” Holmes, 368 Md. at 523, 796 A.2d at 100-101.