NH: Police entry onto neighbor’s property to smell defendant’s grow operation did not violate his REP

Police officers went on neighbor’s land to be able to smell the grow operation in defendant’s home. The defendant had no reasonable expectation of privacy beyond her own property line, and the neighbor’s property was not their curtilage. State v. Smith, 163 N.H. 169, 37 A.3d 409 (2012):

We agree with the trial court that the defendant had no reasonable expectation of privacy in the area from which the police officers observed her house and smelled an odor of marijuana emanating from its air vent. First, although Sergeant Prince and Detective James may have had no independent right or invitation to cross onto the defendant’s property, they made an effort to ascertain its boundary line and stay on the neighbor’s side of it. Cf. Orde, 161 N.H. at 266 (“[A]n officer has no greater right to intrude onto a person’s property than any other stranger would have.” (quotation and brackets omitted)). Moreover, crossing over the defendant’s property line is not equivalent to crossing into her home’s curtilage. See Hanson, 113 N.H. at 691 (holding, on federal grounds, that “there was no unconstitutional search even though the officers may have been trespassing”). Further, whether the police had a right to be where they were must be considered in context of the “open fields” doctrine, which recognizes implicitly that a trespass alone does not necessarily invade a property owner’s reasonable expectation of privacy. See Dunn, 480 U.S. at 304 (“[T]here is no constitutional difference between police observations conducted while in a public place and while standing in the open fields.”); Oliver v. United States, 466 U.S. 170, 180 n.11 (1984) (“[T]he term ‘open fields’ may include any unoccupied or undeveloped area outside of the curtilage. An open field need be neither ‘open’ nor a ‘field’ as those terms are used in common speech. For example, … a thickly wooded area nonetheless may be an open field as that term is used in construing the Fourth Amendment.”).

Inquiry into the character of the area searched establishes that the woods behind the defendant’s home fall outside her curtilage. While the officers conducted their search within approximately fifty to seventy feet of the defendant’s home, proximity alone is not dispositive because there is no fixed distance at which curtilage begins or ends. …