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NOTICE: This opinion is subject to motions for rehearing under Rule 22 as well as formal revision before publication in the New Hampshire Reports. Readers are requested to notify the Reporter, Supreme Court of New Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any editorial errors in order that corrections may be made before the opinion goes to press. Errors may be reported by E-mail at the following address: reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 a.m. on the morning of their release. The direct address of the court's home page is: http://www.courts.state.nh.us/supreme. THE SUPREME COURT OF NEW HAMPSHIRE ___________________________

Hillsborough-southern judicial district No. 2009-737

THE STATE OF NEW HAMPSHIRE v. DAVID ORDE Argued: October 21, 2010 Opinion Issued: November 30, 2010 Michael A. Delaney, attorney general (Stephen D. Fuller, senior assistant attorney general, on the brief and orally), for the State. Denner Pellegrino, LLP, of Boston, Massachusetts (Jeffrey A. Denner & a. on the brief, and Bruce D. Levin orally), and Laurence B. Cote, of Boston, Massachusetts, on the brief, for the defendant. HICKS, J. The defendant, David Orde, appeals his conviction for manufacture of a controlled drug. See RSA 318-B:2 (Supp. 2009). On appeal, he argues that the Superior Court (Barry, J.) erred by denying his motions to suppress. We reverse and remand. The record supports the following facts. On July 29, 2008, Officer Angelo Corrado of the Hollis Police Department went to the defendant's home to serve a dog complaint. The defendant's home is in a residential neighborhood,

with trees lining the edge of his property. The driveway leading from the road to the home is approximately thirty or forty feet long and nothing restricted Corrado from entering the driveway. Corrado parked in the defendant's driveway and went to the side door of the house, which faces the driveway. From the side door and the driveway, Corrado could see the deck attached to the side of the home, approximately thirty feet from the side door. Corrado knocked on the side door, but no one answered. In an attempt to find someone at the home, Corrado went around to the deck. While there is no path from the side door to the deck, the deck does have a set of stairs that is visible from the side door. Lilac bushes line one side of the deck, but Corrado was able to walk "in between" the lilac bushes where there was "a little bit of an opening." Corrado then walked up the stairs and onto the deck, where he saw marijuana plants. Upon seeing the marijuana plants, Corrado contacted his supervisor, Sergeant Richard Mello. Mello went to the defendant's home and confirmed that the plants were marijuana. He then had police dispatch contact the defendant at his nearby farm and ask him to come to the home. When the defendant arrived at the home, Mello told the defendant that the police "were there to serve a dog summons but he'd have to answer to the plants on the porch." The defendant proceeded to make incriminating statements and was arrested. After the defendant's arrest, Mello obtained a warrant to search the defendant's home. The application for the search warrant was based upon the marijuana plants found on the deck, the defendant's statements to Mello, and the existence of a garden hose that went into the defendant's basement. Upon executing the search warrant, the police discovered additional incriminating evidence. The defendant sought to suppress the marijuana plants found on the deck, his statements to Mello and evidence obtained through the search warrant. The trial court denied the defendant's motions to suppress. The defendant now appeals the trial court's rulings. First, we address the defendant's argument that the trial court erred in denying his motion to suppress all evidence obtained from the deck. The defendant asserts that the officer's warrantless presence on the deck violated his constitutional right to privacy because the deck is protected curtilage, see N.H. CONST. pt. I, art. 19; U.S. CONST. amend. IV, and that no exception to the warrant requirement applies. The State argues that a warrant was not required because the defendant neither exhibited an actual expectation of privacy in his deck nor would any such expectation be recognized by society as reasonable.

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"In reviewing the trial court's order on a motion to suppress, we accept its factual findings unless they lack support in the record or are clearly erroneous. Our review of the trial court's legal conclusions, however, is de novo." State v. Johnson, 159 N.H. 109, 111 (2009). We decide this case based upon our interpretation of the New Hampshire Constitution, using federal law only as a guide to our analysis. See State v. Pinkham, 141 N.H. 188, 189 (1996). Because we reverse under the State Constitution, we need not reach the federal issue. State v. Ball, 124 N.H. 226, 237 (1983). "Our State Constitution protects all people, their papers, their possessions and their homes from unreasonable searches and seizures." State v. Goss, 150 N.H. 46, 48 (2003) (quotation omitted). We have recognized that an expectation of privacy plays a role in the protection afforded under Part I, Article 19 of the New Hampshire Constitution. State v. Robinson, 158 N.H. 792, 796 (2009). In Goss, we adopted a two-part analysis for determining whether there is a reasonable expectation of privacy: "first, that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as reasonable." Goss, 150 N.H. at 48 (quotation omitted). Absent an invasion of the defendant's reasonable expectation of privacy, there has been no violation of the defendant's rights under Part I, Article 19. Robinson, 158 N.H. at 796. Our State Constitution "particularly protects people from unreasonable police entries into their private homes, because of the heightened expectation of privacy given to one's dwelling." Goss, 150 N.H. at 48 (quotation omitted). We have previously recognized that certain property surrounding a home, often described as curtilage, deserves the same protection against unreasonable searches and seizures as the home itself. State v. Johnston, 150 N.H. 448, 452 (2004). We have since held that curtilage is only protected if there is a reasonable expectation of privacy in the curtilage. See id. We are mindful that curtilage questions are fact-sensitive. Id. Thus, we first determine whether the officer's warrantless entry upon the defendant's deck violated his reasonable expectation of privacy. Id. We begin by addressing the trial court's conclusion that the defendant did not exhibit an expectation of privacy in the deck. The defendant's property is lined with trees. There is no evidence that the deck could be seen from the road. The side of the deck facing the road is lined with lilac bushes, further shielding the deck from passersby. Although Corrado testified that from the side door of the home he could see the deck steps and the existence of the deck, there is no evidence that he could see whether anything or anyone was on the deck. There is no path leading from the side door of the home to the deck steps. Further, the lilac bushes near the deck would impede any

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perceived route from the door to the deck because, as Corrado testified, in order to get to the deck he had to walk "in between" the lilac bushes where there was "a little bit of an opening." Under these facts, the defendant exhibited an expectation of privacy in his deck. The defendant made efforts to obscure the deck and the activities on the deck from public view. There is no evidence that the deck was visible from the road. The placement of the deck and the lilac bushes prevented Corrado, or any other member of the public, from viewing the activities on the deck from the driveway. The defendant further exhibited an expectation of privacy in his deck by not creating a path connecting the side door with the deck steps and placing the lilac bushes in between the side door and the deck. Accordingly, we conclude that the trial court erred, as a matter of law, in finding that the defendant did not exhibit an expectation of privacy. We next consider whether the defendant's expectation of privacy in his deck is one that society is prepared to recognize as reasonable. This determination is "highly dependent on the particular facts involved and is determined by examining the circumstances of the case in light of several factors," including "the nature of the intrusion, whether the government agents had a lawful right to be where they were, and the character of the location searched," which entails examining "whether the defendant took normal precautions to protect his privacy." Com. v. Krisco Corp., 653 N.E.2d 579, 582-83 (Mass. 1995); see also Rakas v. Illinois, 439 U.S. 128, 152-53 (1978) (Powell, J. concurring) (recognizing that no single factor is determinative but noting that the United States Supreme Court has looked to normal precautions taken to maintain privacy, how a person has used a location, and whether the type of government intrusion was perceived as objectionable by Framers of Fourth Amendment). Considering the facts of this case in light of the factors listed in Krisco, we believe that the defendant's expectation of privacy in his deck is one that society is prepared to recognize as reasonable. We first consider whether Corrado had a lawful right to be on the defendant's property. A police officer has a right to enter a person's curtilage on legitimate business. Pinkham, 141 N.H. at 191. However, this right is not unlimited, as an officer has no "greater right to intrude onto [a person's] property than any other stranger would have." State v. Ohling, 688 P.2d 1384, 1385-86 (Or. Ct. App.), review denied, 691 P.2d 483 (Or. 1984). In Pinkham, we held that when there is an access route on the property, such as a driveway or a sidewalk, members of the public have an "implied invitation" to use it. Pinkham, 141 N.H. at 191. We later recognized that a person has no reasonable expectation of privacy in access routes. Johnston, 150 N.H. at 452. "[T]he direct access routes to the house, including parking areas, driveways and pathways are areas to which the public is impliedly invited, and . . . police officers restricting their activity to such areas

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are permitted the same intrusion and the same level of observation as would be expected from a `reasonably respectful citizen.'" State v. Cada, 923 P.2d 469, 477 (Idaho Ct. App.), review denied (Idaho 1996). Accordingly, "there can be no reasonable expectation of privacy as to observations made from such areas." State v. Clark, 859 P.2d 344, 349 (Idaho 1993). Thus, when the police come on to private property to conduct an investigation or for some other legitimate purpose and restrict their movements to places visitors could be expected to go (e.g., walkways, driveways, porches), observations made from such vantage points are not covered by the Fourth Amendment. But other portions of the lands adjoining the residence are protected, and thus if the police go upon these other portions and make observations there, this amounts to a Fourth Amendment search, . . . even if these other portions are themselves clearly visible from outside the curtilage. 1 W. LaFave, Search and Seizure

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