NH: Tenant showed a REP in apt building’s utility closet, but not in vestibule

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.

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