Argued: June 24, 2015
2d Circuit Court-Plymouth District Division
Joseph A. Foster, attorney general (Nicholas Cort, assistant attorney general, on the brief and orally), for the State.
Christopher M. Johnson, chief appellate defender, of Concord, on the brief and orally, for the defendant.
The State appeals an order of the Circuit Court (Rappa, J.) granting the motion of the defendant, Tyler Boyer, to suppress evidence obtained when, without a warrant, the police entered the apartment that he shared with his girlfriend and arrested him. The trial court found that the defendant had standing to object to the search despite the fact that, at the time of the search, he was present with his girlfriend in violation of a court order that prohibited him from having contact with her. The State argues that the defendant did not have standing to challenge the search because, given his presence in the apartment in violation of the order, he could not have an expectation of privacy in the apartment that society is prepared to recognize as reasonable. We agree with the State, and, therefore, reverse and remand.
The following facts are undisputed or are otherwise supported by the record. In February 2014, the defendant lived with his girlfriend, A.N., in an apartment in Ashland. On February 5, the defendant was arrested for "act[ing] in an extremely violent manner" toward A.N. and "block[ing] [her] from calling the police." He was released on personal recognizance bail, subject to specific conditions. The bail order prohibited him from having contact with A.N., coming within 100 feet of her, and from "interfer[ing]" with A.N. at her residence. The order also required that the defendant live in Ellsworth. A.N. continued living in the Ashland apartment.
Three days after the defendant was released, two officers of the Ashland Police Department observed the defendant's truck parked near the apartment in Ashland where he had lived with A.N. Without obtaining a warrant, the officers knocked on the door of the apartment and identified themselves as police officers. A.N. answered the door, and the officers asked her if the defendant was in the apartment. A.N. admitted that the defendant was there, and the officers asked to come in and talk to him. A.N. gave them permission to enter the apartment. The officers did so, found the defendant inside, and arrested him. Thus, the "evidence seized" was the defendant himself. The defendant was charged with "indirect criminal contempt" based upon his violation of a condition of the bail order.
Prior to trial, the defendant filed a motion to suppress, arguing that the officers' warrantless search of his apartment violated the State and Federal Constitutions. See N.H. CONST. pt. I, art. 19; U.S. CONST. amend. IV. The State objected, arguing that the officers' search was lawful. The State also asserted that, because the bail order prohibited the defendant from contacting A.N., her presence in the apartment eliminated any legitimate expectation of privacy that the defendant might have had at the time of the search, and, therefore, the defendant lacked standing to challenge the search. The defendant countered that he had standing because he "had a privacy interest in keeping the police out of his home, even if he was temporarily forbidden to return home."
The trial court concluded that the defendant had standing to challenge the search because "[t]he warrantless search occurred in the Defendant's home." Addressing the merits of the motion, the trial court ruled that the search was unconstitutional because A.N.'s decision to allow the officers into the apartment was not the product of free, knowing, and voluntary consent. The trial court denied the State's motion to reconsider, and this appeal followed.
On appeal, the State contests only the trial court's conclusion that the defendant had standing to challenge the officers' search of his apartment. The State does not defend the constitutionality of the underlying warrantless search, nor does it challenge the trial court's ruling that the apartment was the defendant's home. When reviewing a trial court's ruling on a motion to suppress, we accept the trial court's factual findings unless they lack support in the record or are clearly erroneous, and we review its legal conclusions de novo. State v. Roy, 167 N.H. 276, 282 (2015). The State cites both the State and Federal Constitutions in challenging the trial court's ruling that the defendant had standing. We have held that the State Constitution is often more protective of individual rights than the Federal Constitution with respect to unreasonable searches and seizures. See, e.g., State v. Settle, 122 N.H. 214, 218 (1982). We first address the State's argument under the State Constitution, and rely upon federal law only to aid our analysis. State v. Ball, 124 N.H. 226, 231-33 (1983).
Part I, Article 19 of the State Constitution provides that "[e]very subject hath a right to be secure from all unreasonable searches and seizures of his person, his houses, his papers, and all his possessions." N.H. CONST. pt. I, art. 19. "Evidence that is obtained in violation of Part I, Article 19 may be subject to exclusion from evidence in a criminal trial." State v. Davis, 161 N.H. 292, 295 (2010).
"A preliminary inquiry which any court must make before it will consider a motion to suppress evidence based upon an unreasonable search or seizure is whether the individual filing the motion has standing." State v. Sidebotham, 124 N.H. 682, 686 (1984). [*] "Standing confers upon an individual the right to challenge unreasonable government conduct." Id. "The threshold question as to the determination of a party's standing to challenge the introduction of evidence by means of a motion to suppress is whether any rights of the moving party were violated." State v. Gubitosi, 152 N.H. 673, 680 (2005). A defendant may have standing based upon: (1) being charged with a crime in which possession of an item or thing is an element, which confers automatic standing; or (2) having a legitimate expectation of privacy in the place searched or the item seized. Id. To claim standing based upon a legitimate expectation of privacy, a defendant must establish both: (1) a subjective expectation of privacy in the place searched or the item seized; and (2) that his subjective expectation is legitimate because it is "one that society is prepared to recognize as reasonable." State v. Goss, 150 N.H. 46, 49 (2003) (quotations omitted). Because neither party argues that the defendant has standing based upon a legitimate expectation of privacy in the item seized, we address only the question of whether the defendant has a legitimate expectation of privacy in the place searched - the apartment.
The State argues that, "[w]hether or not [the] defendant had a subjective expectation of privacy" in the apartment, "such an expectation cannot be deemed objectively reasonable" because, at the time of the search, the defendant was present with A.N. in violation of a condition of the bail order. Therefore, the State asserts, the defendant's wrongful presence in the apartment at the time of the search deprives him of standing. See, e.g., State v. Jacobs, 2 P.3d 974, 978 (Wash.Ct.App. 2000) ("[S]ociety does not recognize as reasonable the privacy rights of a defendant whose presence at the scene of the search is 'wrongful.'"). The defendant counters that, despite his presence in the ...