NH: A deck in a yard shielded from the street by bushes showed a REP

Defendant showed a reasonable expectation of privacy in his deck because it was shielded from view by bushes and could not be seen from the road. State v. Orde, 161 N.H. 260, 13 A.3d 338 (2010) (decided under state constitution):

We begin by addressing the trial court’s conclusion that the defendant did not exhibit an expectation of privacy in the deck. The defendant’s property is lined with trees. There is no evidence that the deck could be seen from the road. The side of the deck facing the road is lined with lilac bushes, further shielding the deck from passersby. Although Corrado testified that from the side door of the home he could see the deck steps and the existence of the deck, there is no evidence that he could see whether anything or anyone was on the deck. There is no path leading from the side door of the home to the deck steps. Further, the lilac bushes near the deck would impede any perceived route from the door to the deck because, as Corrado testified, in order to get to the deck he had to walk “in between” the lilac bushes where there was “a little bit of an opening.”

Under these facts, the defendant exhibited an expectation of privacy in his deck. The defendant made efforts to obscure the deck and the activities on the deck from public view. There is no evidence that the deck was visible from the road. The placement of the deck and the lilac bushes prevented Corrado, or any other member of the public, from viewing the activities on the deck from the driveway. The defendant further exhibited an expectation of privacy in his deck by not creating a path connecting the side door with the deck steps and placing the lilac bushes in between the side door and the deck. Accordingly, we conclude that the trial court erred, as a matter of law, in finding that the defendant did not exhibit an expectation of privacy.