New Hampshire Supreme Court Addresses Expectation of Privacy For Common Areas


 

The January 2017 opinions from the New Hampshire Supreme Court include a case of first impression for the Court that addressed the expectation of privacy of common areas of residential apartment buildings. The matter of State of New Hampshire v. Robert Grimpson Smith, No. 2015-0636.

The pertinent facts relating to the expectation of privacy ruling  from the opinion are as followings:

On August 2, 2014, Officer Alden responded to a report that a woman, later identified as Kerry St. Lawrence, had collapsed on the lawn outside 14 Bank Street in Lebanon. When Alden arrived, he saw St. Lawrence sitting bent over on the lawn, approximately six feet from the entrance of the rooming house located at that address. Alden called out to
her, but she did not respond. When Alden put his hand on St. Lawrence’s
shoulder, she slowly lifted her head and looked at him groggily. After St.
Lawrence told him that she was having a medical issue, Alden called for the
Lebanon fire department.
Two EMTs arrived, as did another police officer, Sergeant Norris. The
EMTs assessed St. Lawrence and decided to take her to the hospital. At that
time, St. Lawrence began repeatedly yelling for the defendant. The defendant
did not respond. Norris asked St. Lawrence where the defendant was. She told
Norris that the defendant was in “our apartment” and gave Norris directions to
its location in the building. The door to the room St. Lawrence described
(room 1) was on the first floor, about ten feet from the rooming house’s main
door.
Both Alden and Norris were familiar with the house at 14 Bank Street,
having previously responded to various complaints at the location. They knew
14 Bank Street to be a rooming house, and testified that the front door was
usually wide open. Norris testified that he passes 14 Bank Street on a regular
basis because the road is heavily travelled and the police frequently patrol it.
Furthermore, he testified that in his eight years on the police force, he had
never seen the door closed. Alden described the house as having between eight
and ten rooms. Although these rooms were separately numbered and locked,
they shared a common hallway, kitchen, and bathroom.
Norris walked up to the rooming house to check on the defendant and
make sure that he was okay. Norris walked through the open front door of the
rooming house and saw the defendant lying unresponsive on the floor in
room 1, the door to which was also open. Norris called for the EMTs to come
inside.
Norris followed the EMTs into room 1. After the defendant regained
consciousness, he told the EMTs that he and St. Lawrence had used a quarter
gram of heroin. As the EMTs were treating the defendant, Norris observed a
syringe, a plastic spoon with cotton in the bowl, and a metal spoon. Based
upon his past experience, Norris recognized that these items could have been
used to prepare and inject heroin. While the defendant and St. Lawrence were
waiting to be taken to the hospital, Norris asked if they would consent to a
search of room 1. They declined to give consent.
Thereafter, the officers obtained a search warrant, pursuant to which they seized the plastic spoon with cotton, syringe, and metal spoon. The State later charged the defendant with one count of possession of heroin.

Defendant made a pretrial motion to suppress the evidence seized from the room as the fruits of an illegal search of the residence. Note, the Defendant moved to suppress the evidence under two theories relating to the State Constitution and the Federal Constitution.

The Court’s analysis under the State Constitution focused on the “expectation of privacy” of the common room at the Defendant’s residence. The expectation of privacy for common areas is a case of first impression for the Court and as it relied on secondary authority to make its determination. In examining how other courts have addressed this issue, the Court noted varying conclusions have been reached, which depended on the particular facts. In this case, the Court noted the living area in question was not self-contained, i.e. it had not separate bathrooms or kitchens, which at first blush argued in favor of finding an expectation of privacy. However, the Court further observed several other factors that argues against a finding for an expectation of privacy.

For example, the Court noted rooms of the building are individually numbered and locked, which is similar to an apartment building. Also, the front door of the building is customarily unlocked, and the common hallway is accessible by many people, including the landlord, eight to ten tenants and the guests and visitors of those tenants. Summarily, because of these factors the Court determined the Defendant did not have an expectation of privacy in the common area of the building.

The Court in Smith has essentially expanded the constitutional reach of the protections of expectation of privacy afforded by the State Constitution. However, the ruling in Smith is not a bright-line test and represents a totality of the circumstances test that will balance different factors to find whether an expectation of privacy exists in common areas. Criminal defense attorneys will surely cite this New Hampshire precedent to suppress future searches involving common areas, but practitioners will not be able to rely on Smith alone and will need to go outside primary authority to bolster their cases. On the other hand, the Court may find itself presented with more appeals regarding this issue and will likely accept them to bolster New Hampshire’s jurisprudence with regards this facet of expectation of privacy.

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