NH: Hot pursuit of a suspected murderer with a tracking dog permitted entry onto curtilage

Officers were in hot pursuit after a murder with a tracking dog when they entered defendant’s curtilage. The entry was reasonable under the circumstances. A house can be entered in hot pursuit; this entry onto the curtilage was minimal by comparison. State v. Gay, 2016 N.H. LEXIS 160 (July 27, 2016) (unpublished):

Here, the record supports the trial court’s finding that exigent circumstances existed justifying the entry onto the defendant’s property. At the time Ferguson and Mackenzie conducted the canine track, they were aware that Stewart had died from his wounds and, thus, that they were investigating a homicide. Mackenzie testified that Daisy Mae was trailing the scent from skin rafts and that they tend to collect on “hard places” such as driveways or the base of houses. He stated that skin rafts can easily be dispersed by the wind. As the trial court found, the skin rafts the officers were searching for were “at the mercy of the surrounding weather conditions and [were] susceptible of being dispersed by the wind.” The possibility that the scent trail left by the suspect would disperse prior to the time that it would have taken the officers to obtain a warrant presented a situation requiring an emergency entrance onto the defendant’s property. See Rodriguez, 157 N.H. at 107 (holding that odor of burning marijuana gave rise to exigent circumstances justifying warrantless entry by police into hotel room because delay in obtaining a search warrant created likelihood that evidence of marijuana possession would be destroyed by burning).

Moreover, the physical intrusion onto the defendant’s property was minimal. See MacDonald, 129 N.H. at 21-22 (noting that “limited nature of the search lends credence to the position that the officer’s search was reasonable”). When Daisy Mae attempted to climb onto the back porch, Mackenzie stopped her and, as soon as it became apparent that she had lost the scent, the officers left the property.

The defendant argues that, because Ferguson suspected the defendant was involved in the crimes prior to the use of Daisy Mae, he “could reasonably foresee that the search would end in the invasion of the curtilage of [the defendant’s] residence.” Assuming that Ferguson’s initial suspicion of the defendant may have led him to foresee that the canine track would end at the defendant’s residence, foreseeability does not, by itself, control the legality of the search. See Santana, 133 N.H. at 806. Rather, we examine the totality of the circumstances. See id. at 804. When we do so, we consider as one factor the degree to which the exigency itself was foreseeable. See id. at 806.