by Anthony Accurso

The Supreme Court of New Hampshire held that a defendant had a reasonable expectation of privacy in his apartment’s utility closet and that officers’ warrantless search of the closet was in violation of Part I, Article 19 of the New Hampshire Constitution.

On January 17, 2018, Kingston Police were alerted to a fire at the Carriage Town Plaza, and an officer found smoke emanating from the Carriage Town Market. Officers noticed distinctive shoeprints leading away from the scene and followed them across Route 125 and onto private property. The trail continued down a driveway to a small apartment building on the back of the property.

Noting an unlocked, glass door leading to a vestibule, officers entered and knocked on the left-hand door. John Gates answered the door and was questioned by officers. During the questioning, one officer, while searching for a stairwell to the second floor, opened the door to a utility closet. It contained a water heater, oil tanks, electrical panels, and a pair of wet boots whose tread appeared to match the shoeprints the officers had followed. Gates denied owning the boots, saying they belonged to a cousin who was not present.

Gates was indicted for crimes relating to the arson at Carriage Town Market. He filed a motion to suppress all evidence obtained in both the vestibule and the utility closet. The trial court denied his motion, and Gates was subsequently convicted by a jury.

Gates appealed, arguing that Part I, Article 19 of the New Hampshire Constitution and the Fourth Amendment to the U.S. Constitution protect his right to privacy in the vestibule and the utility closet.

Article 19 of the New Hampshire Constitution is similar to the Fourth Amendment, but more expansive in its protections. The Court explained that it applies an expectation of privacy analysis when determining whether a warrantless search violates the New Hampshire Constitution. State v. Bazinet, 184 A.3d 448 (N.H. 2018). There must be an invasion of a legitimate expectation of privacy for there to be a constitutional violation. Id. The New Hampshire Supreme Court uses a two-part privacy analysis in determining legitimate expectation of privacy. State v. Smith, 154 A.3d 660 (N.H. 2017). The first part considers whether the defendant exhibited a subjective expectation of privacy, and the second part evaluates whether that subjective expectation of privacy is one that society recognizes as reasonable. Id.

Under consideration was the defendant’s exhibition of a subjective expectation of privacy, and whether that expectation is “one that society is prepared to accept as reasonable.” Id. The latter is “based on our societal understand regarding what deserves protection from government invasion.” State v. Boyer, 133 A.3d 262 (N.H. 2016). “Protections afforded to a person’s home are not limited to single-family dwellings: an apartment can he a home within the meaning of the State Constitution.” Smith. The determination of what areas are protected “must be made on a case-by-case basis, considering the unique facts of each particular situation.” Id. And no single factor is determinative. Boyer. Finally, the State bears the burden to prove the search was reasonable.

The New Hampshire Supreme Court has never directly addressed whether common areas of an apartment building are protected by a reasonable expectation of privacy, but it addressed an analogous situation regarding a rooming house in Smith. The Smith Court held that tenants in a rooming house do not have an objectively reasonable expectation of privacy in common hallways.

The Court explained that “Smith suggests, in general, tenants do not have a reasonable expectation of privacy in common areas of apartment buildings,” such as hallways, entryways, and basements. However, the Court cautioned that it can’t “apply this principle as a bright line rule because whether a person has a legitimate expectation of privacy in a particular place ‘must be made on a case-by-case basis, considering the unique facts of each particular situation,’” quoting Smith. 

Turing to the present case, the officers followed a driveway from the road to Gates’ apartment building. “[A] person has no reasonable expectation of privacy in access routes.” State v. Orde, 13 A.3d 338 (N.H. 2010). There was no record of any “no trespassing” signs, gates, or other impediments to the vestibule from the driveway, and even at 4:30 a.m., officers “could see into the vestibule – with no special equipment or manipulation.”

Thus, regarding the vestibule, the Court concluded there was no objective expectation of privacy “in a place that any member of the public can view from an access route.” Reaching this conclusion, there was no need for the Court to consider whether Gates exhibited a subjective expectation of privacy with respect to the vestibule.

In contrast, the Court explained that the utility closet was “materially different” because it was isolated from regular foot traffic. It was similar to a common closet found to be protected in United States v. McCaster, 193 F.3d 930 (8th Cir. 1999), because it “likely would not be accessed by anyone other than the tenants and landlady.” Also, no glass door or windows allowed an unobstructed view of the closet’s interior. Thus, the Court concluded that Gates had an objective expectation of privacy in this area.

Further, Gates exhibited a subjective expectation of privacy in this area because it was where he chose to hide his boots. See United States v. Rhealt, 561 F.3d 55 (1st Cir. 2009) (defendant exhibited subjective expectation of privacy by hiding a gun and drugs in a washing machine in an apartment complex’s common area).

Finally, the Court rejected the State’s argument that Gates had no right to suppress the boots after he denied ownership of them. Quoting from State v. Sodoyer, 931 A.2d 548 (N.H. 2007), the Court reiterated, “[O]ur constitutional system does not demand that a defendant surrender information that could incriminate him in order to avail himself of another constitutional right.” Consequently, the Court held that Gates had both a subjective and objective expectation of privacy in the utility closet.

Accordingly, the Court vacated Gates’ conviction and remanded with instructions for the trial court to suppress all evidence obtained from the utility closet. See: State v. Gates, 2020 N.H. LEXIS 202 (2020).

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