On the totality under the state constitution, defendant had a reasonable expectation of privacy for a pair of wet boots hidden in a utility closet in an apartment building’s vestibule closet. He manifested the expectation of privacy by his actions, and disclaiming responsibility for a pair of boots when confronted with them didn’t result in a waiver of his expectation. State v. Gates, 2020 N.H. LEXIS 202 (Dec. 9, 2020):
On balance, considering all of the facts discussed above, we conclude that the defendant did not have an objectively reasonable expectation of privacy in the vestibule. Therefore, the officers’ warrantless entry into the vestibule did not violate the defendant’s rights under Part I, Article 19 of the State Constitution. Because we have recognized that the Federal Constitution affords no greater protection as to a defendant’s expectation of privacy, see Goss, 150 N.H. at 49, we reach the same conclusion on this issue under the Federal Constitution as we do under the State Constitution.
We now address the defendant’s second argument: that the trial court erred when it found that the defendant lacked a legitimate expectation of privacy in the utility closet. Turning first to whether the defendant exhibited a subjective expectation of privacy in the utility closet, the defendant argues that he exhibited such an expectation by placing the boots inside the closet and closing the door. The State argues to the contrary, relying on the facts that the closet was unlocked and unmarked, no signs designated it as a private space, the defendant made no attempt to exclude others from the closet, and the defendant disavowed any ownership interest in the boots. We agree with the defendant.
The relevant inquiry with respect to the defendant’s subjective expectation of privacy is whether he was “‘seeking to preserve as private’ the evidence at issue.” United States v. Rheault, 561 F.3d 55, 59 (1st Cir. 2009) (quoting Katz v. United States, 389 U.S. 347, 351 (1967)) (brackets omitted). The defendant meets this standard. His decision to store the potentially incriminating boots behind the closed door of the utility closet — out of sight and not within his own apartment — evidences his intent to keep them private, thereby demonstrating his subjective expectation of privacy in the utility closet. See Rheault, 561 F.3d at 57, 59, 61 (ruling that defendant exhibited subjective expectation of privacy by hiding gun and drugs inside washing machine on landing of different floor of apartment building but concluding defendant’s expectation of privacy was not objectively reasonable); King, 227 F.3d at 744, 749-50 (holding that defendant exhibited subjective expectation of privacy in basement of duplex by hiding cocaine there and that expectation was objectively reasonable because basement was accessed by only landlord and defendant’s family members who occupied duplex).
We are not persuaded by the State’s argument that, because the defendant disavowed ownership of the boots when he spoke with the officers standing in the vestibule, he did not exhibit a subjective expectation of privacy in the utility closet. In State v. Sodoyer, 156 N.H. 84 (2007), we identified, but did not reach, the question of whether a defendant’s denial of “a possessory interest automatically leads to a waiver of privacy rights in the place being searched,” id. at 87. We observed that courts are split on this issue. See id.; compare State v. Ross, 49 S.W.3d 833, 841 (Tenn. 2001) (“[W]hen one disclaims interest in the premises or possessions searched or in the articles seized he cannot question the legality of the search and seizure.” (quotation omitted)), with United States v. Vega, 221 F.3d 789, 797 (5th Cir. 2000) (rejecting government’s argument that defendant lost right to challenge search by denying he resided on premises because defendant’s Fourth Amendment rights did not “evaporate[] simply because he failed to make incriminating admissions in response to police questioning”), abrogated on other grounds as recognized in United States v. Aguirre, 664 F.3d 606, 611 n.13 (5th Cir. 2011).
New Hampshire may be alone on this. The court’s analysis is detailed and noteworthy compared to the cases rejecting a reasonable expectation of privacy in apartment building common areas.
by John Wesley Hall
Criminal Defense Lawyer and
Search and seizure law consultant
Little Rock, Arkansas
Contact: forhall @ aol.com / The Book www.johnwesleyhall.com
"If it was easy, everybody would be doing it. It isn't, and they don't." —Me
"Life is not a matter of holding good cards, but of playing a poor hand well." –Josh Billings (pseudonym of Henry Wheeler Shaw), Josh Billings on Ice, and Other Things (1868) (erroneously attributed to Robert Louis Stevenson, among others)
“I am still learning.” —Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's)).
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"It is a pleasant world we live in, sir, a very pleasant world. There are bad people in it, Mr. Richard, but if there were no bad people, there would be no good lawyers."
—Charles Dickens, “The Old Curiosity Shop ... With a Frontispiece. From a Painting by Geo. Cattermole, Etc.” 255 (1848)
"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced."
—Williams
v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold,
J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws,
or worse, its disregard of the charter of its own existence." —Mapp
v. Ohio, 367 U.S. 643, 659 (1961).
"Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment."
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that
bear heavily on the Court to water down constitutional guarantees and give the
police the upper hand. That hydraulic pressure has probably never been greater
than it is today."
— Terry
v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their
property."
—Entick
v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have
frequently been forged in controversies involving not very nice people. And
so, while we are concerned here with a shabby defrauder, we must deal with his
case in the context of what are really the great themes expressed by the Fourth
Amendment."
—United
States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth."
—Chapman
v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the
bottom of a turntable."
—Arizona
v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly
exposes to the public, even in his own home or office, is not a subject of Fourth
Amendment protection. ... But what he seeks to preserve as private, even in
an area accessible to the public, may be constitutionally protected."
—Katz
v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to
protect liberty when the Government’s purposes are beneficent. Men born
to freedom are naturally alert to repel invasion of their liberty by evil-minded
rulers. The greatest dangers to liberty lurk in insidious encroachment by men
of zeal, well-meaning but without understanding.”
—United
States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted
intrusion by government—is as easily lost through insistent nibbles by
government officials who seek to do their jobs too well as by those whose purpose
it is to oppress; the piranha can be as deadly as the shark.”
—United
States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want /
But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards
"In Germany, they first came for the communists,
and I didn't speak up because I wasn't a communist. Then they came for the Jews,
and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists,
and I didn't speak up because I wasn't a trade unionist. Then they came for
the Catholics and I didn't speak up because I wasn't a Catholic. Then they came
for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration
camp]
“You know, most men would get discouraged by
now. Fortunately for you, I am not most men!”
---Pepé Le Pew
"The point of the Fourth Amendment, which often is not grasped by zealous officers,
is not that it denies law enforcement the support of the usual inferences which
reasonable men draw from evidence. Its protection consists in requiring that
those inferences be drawn by a neutral and detached magistrate instead of being
judged by the officer engaged in the often competitive enterprise of ferreting
out crime."
—Johnson
v. United States, 333 U.S. 10, 13-14 (1948)