State of New Hampshire v. John Gates

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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Rockingham
No. 2019-0371

THE STATE OF NEW HAMPSHIRE

v.

JOHN GATES

Argued: September 24, 2020
Opinion Issued: December 9, 2020

Gordon J. MacDonald, attorney general (Zachary Lee Higham, attorney,
on the brief and orally), for the State.

Christopher M. Johnson, chief appellate defender, of Concord, on the
brief and orally, for the defendant.

BASSETT, J. The defendant, John Gates, appeals his convictions for
arson, RSA 634:1 (Supp. 2019), attempted arson, two counts of burglary, RSA
635:1 (2016), being a felon in possession of a dangerous weapon, RSA 159:3, I
(2014), and use of a Molotov cocktail, RSA 158:37, II (2014). He challenges an
order of the Superior Court (Messer, J.) denying his motion to suppress
evidence obtained when, without a search warrant, the police entered the
vestibule and utility closet of his apartment building located on his family’s
farm. In the trial court, the defendant argued that the warrantless search
violated his rights under Part I, Article 19 of the State Constitution and the
Fourth Amendment to the Federal Constitution. The trial court applied the
two-part framework established in State v. Goss, 150 N.H. 46, 49 (2003), which
provides that, for a warrantless search to be unlawful, an individual must have
a legitimate expectation of privacy — both subjective and objective — in the
place searched. The trial court found that the defendant lacked a legitimate
expectation of privacy in both the vestibule and the utility closet and concluded
that the officers’ warrantless entry into those areas was lawful. On appeal, the
defendant argues that the trial court erred with respect to both rulings.
Because we agree with the defendant that, under Part I, Article 19 of the State
Constitution, he had a legitimate expectation of privacy in the utility closet, we
reverse and remand.

The following facts are taken from the trial court’s order denying the
defendant’s motion to suppress, are established by the evidence submitted at
the suppression hearing, or are otherwise undisputed. On January 17, 2018,
at approximately 3:30 a.m., the Kingston Police Department dispatched an
officer to the Carriage Town Plaza in Kingston. When that officer arrived on the
scene, he observed that the alarm system for one of the buildings in the
Carriage Town Plaza was activated and that smoke was emanating from one of
the businesses in the Plaza, the Carriage Town Market. A Nor’easter was
dropping heavy snow that morning and the officer observed footprints in the
snow leading from the Carriage Town Market away from the scene towards
nearby Route 125. The officer noticed that the footprints had a distinctive
tread mark and were sporadically accompanied by a separate drag mark.

The responding officer was soon joined by a second officer and the two
officers followed the footprints as they zig-zagged along and across Route 125
before the officers lost the trail. The second officer eventually relocated the
trail of footprints near a farm (hereinafter referred to as “the farm property” or
“the property”). He identified the tracks as a continuation of the footprints
from the Carriage Town Market based on the matching tread, gait, and
sporadic accompanying drag mark.

The officers continued to follow the footprints as they crossed onto the
front of the farm property, which is a large plot of land owned and occupied by
one extended family. A driveway enters the property from Route 125 and runs
past several buildings. The property owner and his wife reside in a house that
is close to Route 125. Beyond the house are two greenhouses and a farm
stand and behind those buildings is a barn. Finally, beyond the barn, in the
“back corner,” is the two-story apartment building where the defendant
resided.

The apartment building is built into a slope such that the front door
faces Route 125 and provides an entrance to the second floor of the building.
The back door of the building provides access to the first floor. The apartment
building has two units on the first floor and additional units on the second
floor. All of the units in the apartment building were rented by members of the
owner’s family, including the defendant and his mother.

2
 The officers followed the footprints onto the farm property, past the
house and the greenhouses and farm stand, and then around the barn to a car
parked near the rear of the apartment building. They observed three exterior
doors, with a shoveled stone walkway leading to the center door. The
footprints led from the car towards the building and disappeared at the
beginning of the walkway.

At approximately 4:30 a.m., a third officer, who was somewhat familiar
with the farm property, arrived at the scene. The officers approached the
center exterior door, which had a glass window. The officers looked through
the window and observed an illuminated vestibule area with three unmarked
doors — one door to the left, one in the center, and one to the right. Finding
the exterior door unlocked, the three officers entered the vestibule.

Once inside, the officers observed that the vestibule was barely large
enough for the three of them to share the space, and that it contained a coat
rack and a shovel leaning against the back wall. The officers knocked on the
door to the left and an individual, later identified as the defendant, answered.
The officers identified themselves and explained to the defendant that they
were investigating a fire that had occurred at the Carriage Town Plaza. The
defendant told the officers he was the sole occupant of his apartment and that
his elderly mother lived in the apartment across the hall. He also explained
that he had recently left his apartment to shovel the walkway. The officers
requested that the defendant identify the shoes that he had been wearing when
he shoveled the walkway and asked to see them. The defendant replied that he
had been wearing sneakers when shoveling. He then allowed the officers to
examine a pair of sneakers and a pair of boots. Both pairs were dry.

While two officers continued questioning the defendant, another officer
approached the center door, found it unlocked, and opened it to look for a
stairwell leading to the second-floor apartments. Using his flashlight to
illuminate the dark room, the officer realized that he had entered a utility
closet, rather than a stairwell. He took two or three steps into the room and
observed that it contained a water heater, oil tanks, and electrical panels. As
he turned to exit, the officer noticed a pair of wet boots behind the door to the
vestibule. The officer picked up the boots, exited the utility closet, and asked
the defendant if the boots belonged to him. The defendant denied owning the
boots and insisted that they belonged to a cousin who was not present at the
time. The defendant then allowed the officer to seize the boots. The officers
later concluded that the tread pattern on the boots matched the footprints in
the snow leading from the Carriage Town Market to the apartment building.

A grand jury indicted the defendant on multiple charges arising out of
the fire at the Carriage Town Market. Before trial, the defendant moved to
suppress all evidence that the officers obtained as a result of their warrantless
entry into the vestibule and utility closet. The Trial Court (Anderson, J.) held a

3
two-day evidentiary hearing on the defendant’s motion, during which the State
called three witnesses — the three officers who entered the vestibule — and
offered no exhibits into evidence.1

The Trial Court (Messer, J.) denied the defendant’s motion to suppress.
With respect to the vestibule, the court found that the defendant had not
exhibited a subjective expectation of privacy and, even if he had, any
expectation of privacy in the vestibule was not objectively reasonable.
Regarding the utility closet, the court concluded that, even if the defendant
possessed a subjective expectation of privacy in that location, that expectation
was not objectively reasonable. The trial court denied the defendant’s motion
to reconsider. After a seven-day jury trial, the jury found the defendant guilty
of all charges. This appeal followed.

“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. Smith, 169 N.H. 602, 607 (2017) (quotation omitted). Because the defendant did not
renew his motion to suppress at trial, “we limit our review to the suppression
record upon which the trial court based its decision.” State v. Gonzalez, 143
N.H. 693, 697 (1999). The defendant cites both the State and the Federal
Constitutions in challenging the trial court’s denial of his motion to suppress.
Following our standard practice, we first address the defendant’s claim 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, in relevant part, 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

1 At the hearing, defense counsel questioned the State’s witnesses about several photographs of
the exterior and interior of the apartment building. The trial court relied on at least two of these
photographs in its order denying the motion to suppress. The defendant has not, however,
included any of the photographs discussed at the hearing in the record on appeal. See Sup. Ct. R.
13(2) (requiring the moving party to provide a sufficient record for the court to decide the issues
raised on appeal). Nevertheless, the defendant has provided us with a sufficient record to decide
the issues raised on appeal. The trial court’s order and the transcript of the suppression hearing
provide adequate factual detail about the farm property and the apartment building. Importantly,
on appeal, neither party challenges the trial court’s factual findings. In addition, the trial court’s
order explains the reasoning for its legal conclusions, which we review de novo. See State v.
Smith, 169 N.H. 602, 607 (2017); cf. State v. Bergmann, 135 N.H. 97, 99-100 (1991) (holding that
record on appeal was insufficient to determine whether trial court abused its discretion in denying
motion to dismiss in part because the record did not include the basis for the trial court’s
decision).

4
19 may be subject to exclusion from evidence in a criminal trial.” State v.
Boyer, 168 N.H. 553, 557 (2016) (quotation omitted).

“When determining whether a warrantless search may give rise to a
violation of the State Constitution, we apply an expectation of privacy analysis.”
State v. Bazinet, 170 N.H. 680, 684 (2018) (quotation omitted). Without an
invasion of the defendant’s legitimate expectation of privacy, there has been no
violation of the defendant’s rights under Part I, Article 19. Id. To determine
whether the defendant had a legitimate expectation of privacy, we engage in a
two-part analysis. See Smith, 169 N.H. at 607. First, we consider whether the
defendant exhibited a subjective expectation of privacy and, second, whether
that expectation is “one that society is prepared to recognize as reasonable.”
Id. (quotation omitted); see also Goss, 150 N.H. at 48-49. “Whether society will
recognize a particular individual’s expectation of privacy as reasonable does not
turn on whether a hypothetical reasonable person would hold the same
expectation of privacy, but rather whether the expectation of privacy is justified
or legitimate based upon our societal understanding regarding what deserves
protection from government invasion.” Boyer, 168 N.H. at 558 (quotations and
brackets omitted).

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);
see also Boyer, 168 N.H. at 558 (“The protections provided by Part I, Article 19
are never in sharper focus than when viewed in the protection of one’s
dwelling.” (quotation and brackets omitted)). “The protections afforded to a
person’s home are not limited to single-family dwellings: an apartment can be a
home within the meaning of the State Constitution.” Smith, 169 N.H. at 608.

When deciding whether an individual may claim a legitimate expectation
of privacy in a particular place, no single factor is determinative. Boyer, 168
N.H. at 558. Rather, the determination “must be made on a case-by-case
basis, considering the unique facts of each particular situation.” Smith, 169
N.H. at 607 (quotation omitted). In conducting this fact-intensive analysis, we
do not view the facts from the perspective of the officers involved or from that of
the hypothetical “reasonable officer” often referred to in search and seizure
cases. See 6 Wayne R. LaFave, Search and Seizure: A Treatise on The Fourth
Amendment § 11.3, at 162 (5th ed. 2012). Instead, we view the facts from “the
omniscient perspective — what a judge considering a motion to suppress
knows, ex post reality.” Id. (quotation omitted); see also Smith, 169 N.H. at
605, 609-11 (considering facts beyond those known by officers in determining
whether rooming house tenant had a legitimate expectation of privacy).

At oral argument, the parties agreed that the State bore the burden of
proof at the suppression hearing to show, by a preponderance of evidence, that

5
the search was lawful. We proceed on the assumption that the State bore the
burden of proof at the suppression hearing.

As a threshold matter, the State argues that the defendant’s appeal must
fail because the motion to suppress filed in the trial court lacked sufficient
factual detail and was not supported by a separate verified affidavit as required
by court rules. See N.H. R. Crim. P. 15(b)(2)(C). However, because the State
did not raise this argument in the trial court, it is not preserved, and we
decline to address it. See State v. Willis, 165 N.H. 206, 223 (2013).

The defendant’s argument on appeal has two parts. First, he argues that
the trial court erred when it ruled that the officers’ warrantless entry into the
vestibule of his apartment building was lawful because he lacked a subjective
and objective expectation of privacy in that area. Second, he argues that, even
if the trial court properly found that he had no legitimate expectation of privacy
in the vestibule, it erred when it concluded that he lacked a legitimate
expectation of privacy in the utility closet. Although on appeal the parties have
focused on the defendant’s arguments as they relate to the boots seized from
the utility closet, the motion to suppress filed in the trial court was broader in
scope. The motion sought to suppress “all evidence obtained as a result of the
illegal search” of the utility closet. (Emphasis added.) At the hearing on the
motion, defense counsel expanded the scope of the motion by arguing that the
officers’ entry into the vestibule was itself an illegal search. Consequently, the
trial court addressed the lawfulness of the officers’ entry into both the vestibule
and the utility closet. We will do the same. Although our conclusion with
respect to the utility closet — that the defendant had a legitimate expectation of
privacy — is dispositive as to the admissibility of the boots, we analyze the
defendant’s expectation of privacy in both the vestibule and the utility closet to
address the admissibility of any other evidence the officers obtained as a result
of the warrantless search.

The defendant first argues that the facts that support the conclusion that
he had a subjective expectation of privacy in the vestibule also support the
conclusion that the expectation of privacy is one that society is prepared to
recognize as reasonable: the apartment building was occupied only by family
members; the building was located on a family-owned farm and isolated from
other residential properties; the building contained a small number of units;
the doors inside the vestibule were unmarked; the vestibule contained a coat
rack and shovel; and the exterior door was closed. Because, as explained
below, we conclude that the defendant’s expectation of privacy with respect to
the vestibule was one that society is not willing to recognize as reasonable, we
need not assess whether the defendant exhibited a subjective expectation of
privacy in regard to the vestibule.

We have not directly addressed the question of whether a tenant has an
objectively reasonable expectation of privacy in common areas of an apartment

6
building. We did, however, address a similar issue in State v. Smith: whether a
tenant has a reasonable expectation of privacy in common areas of a rooming
house. Smith, 169 N.H. at 608-11. In Smith, we canvassed the law of other
jurisdictions and observed that generally “[t]he common areas in rooming
houses that are more like shared single-family dwellings are usually protected”
while “the common areas in rooming houses that are more like unsecured
apartment buildings are not usually protected.” Id. at 608-09. With these
generalizations in mind, in Smith we noted that the rooming house at issue
had eight to ten individually numbered and locked rooms, that the tenants
shared a common bathroom and kitchen connected by a common hallway, and
that the exterior door was customarily left unsecured and open, giving visitors
an implied license to enter the building and knock on individual tenants’ doors.
Id. at 609-10. We concluded that these facts made the rooming house more
like an “unsecured apartment building,” id. at 610, and the tenants “more like
apartment dwellers,” id. at 611. Therefore, we held that the defendant did not
have an objectively reasonable expectation of privacy in the common hallway of
the rooming house. Id.

Our holding in Smith suggests that, in general, tenants do not have a
reasonable expectation of privacy in common areas of apartment buildings.
See id. at 610-11; see also State v. Mouser, 168 N.H. 19, 25 (2015) (holding
that parking area behind defendant’s multi-family residence was not part of the
curtilage in part because the parking area “was available for the shared benefit”
of the residents (quotation omitted)); State v. Chaisson, 125 N.H. 810, 816
(1984) (stating in dicta that “common areas of an apartment building . . . are
not places in which tenants have a reasonable expectation of privacy”
(quotation omitted)). This general rule is in accord with the reasoning
employed by the majority of jurisdictions that have addressed the issue. See,
e.g., United States v. Maestas, 639 F.3d 1032, 1038 (10th Cir. 2011) (“[M]ost
circuit courts have found that ‘shared’ or ‘common’ areas in apartment
complexes or multi-unit dwellings, such as hallways, entryways, and
basements, are not areas over which an individual tenant can have a
reasonable expectation of privacy.”); State v. Nguyen, 841 N.W.2d 676, 680-81
(N.D. 2013) (noting that majority rule among state courts addressing the issue
is that tenants lack a reasonable expectation of privacy in common areas). The
logic behind this approach is that apartment tenants “‘have little control over
[common] areas, which are available for use of other tenants, friends and
visitors of other tenants, the landlord, delivery people, repair workers, sales
people, postal carriers and the like.’” Maestas, 639 F.3d at 1038 (quoting
United States v. Miravalles, 280 F.3d 1328, 1332 (11th Cir. 2002)).

We cannot, however, 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.” Smith, 169 N.H. at 607 (quotation omitted).

7
 Turning to the facts of this case, several facts weigh against recognizing
that the defendant had an objectively reasonable expectation of privacy in the
vestibule. First, the building in this case housed fully self-contained
apartments and, therefore, the vestibule did not serve as a passageway
between a shared bathroom or kitchen like the common hallway in Smith. Cf.
id. at 609-10. Next, although distant from the road, the apartment building
was accessible via a driveway and the vestibule was directly accessible from a
walkway leading to the exterior door. We have 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” and, therefore, “a person has no
reasonable expectation of privacy in access routes.” State v. Orde, 161 N.H.
260, 266 (2010). It follows that “when the police come on to private property to
conduct an investigation . . . 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.”
Id. (quotation omitted).

Here, the driveway and the walkway led from Route 125 to the vestibule
door. There is no evidence in the record that there were gates or “no
trespassing” signs posted along the driveway or walkway. Once at the door, the
officers could see into the vestibule — with no special equipment or
manipulation — because the door contained a glass window and, even at 4:30
in the morning, the inside light was on. Thus, the officers, with an implied
invitation to use the access routes leading to the door at the rear of the
building, were in position to view the interior of the vestibule. It is not
reasonable to expect privacy in a place that any member of the public can view
from an access route. See Smith, 169 N.H. at 610-11.

It is of no consequence in this case that the officers strayed from the
driveway itself to follow the footprints before using the walkway to reach the
vestibule door. Had the officers obtained the disputed evidence as a result of
their deviation from the route across the property, or after looking through
windows or doors to which no access route led, we would have a very different
case. Cf. Orde, 161 N.H. at 266-67 (holding defendant had objectively
reasonable expectation of privacy in deck as part of his curtilage where the
officer’s “departure from the obvious paths on the property and entrance onto
the defendant’s deck exceeded his implied invitation onto the property”). But,
here, the officers — and any member of the public — could observe the interior
of the vestibule by walking up the driveway and following the walkway to the
exterior door. This weighs heavily against finding an objectively reasonable
expectation of privacy in the vestibule.

In addition, the characteristics and apparent use of the vestibule weigh
against recognizing an objectively reasonable expectation of privacy. The
vestibule served as the only point of ingress and egress for the first-floor
apartments. Consequently, anyone visiting those apartments or accessing the

8
utility closet — the owner of the farm, his agents, friends or family of the
defendant or his mother, or solicitors — would necessarily pass through the
vestibule. Further, the defendant “had no right to exclude [such persons] from
the common hallway, and there is no indication that he ever tried to do so.”
United States v. Holland, 755 F.2d 253, 256 (2d Cir. 1985); see also United
States v. Bain, 155 F. Supp. 3d 107, 116-17 (D. Mass. 2015) (finding fact that
apartment building entryway, staircase, and second-floor landing “served as
passageways routinely used for egress and ingress” weighed against finding
legitimate expectation of privacy).

Finally, the fact that the vestibule door was unlocked weighs against
recognizing an objectively reasonable expectation of privacy. This fact further
supports the conclusion that the defendant had no right to, and did not try to,
prevent others from entering the common vestibule. In other words, the
defendant lacked control over this common area. See United States v. Acosta,
965 F.2d 1248, 1252 (3d Cir. 1992) (finding no legitimate expectation of privacy
in common hallway where defendant “had no way to exclude anyone” because
door to hallway was unlocked and therefore common area was “easily
accessible to tenants, visitors, solicitors, workmen and other members of the
public”).

Relying on State v. Titus, 707 So. 2d 706 (Fla. 1998), the defendant
argues that we should not “attribute great weight to the fact that the exterior
door was unlocked.” In Titus, the Florida Supreme Court held that tenants
have a legitimate expectation of privacy in common areas of rooming houses.
Titus, 707 So. 2d at 708. Titus, however, involved a rooming house that
operated more like a single-family dwelling than an apartment building. Id. at
711. And the Florida Supreme Court expressly stated that its holding in Titus
did not extend to “common hallways in unlocked apartment buildings, which
generally serve only to connect separate, self-contained living units.” Id.
Therefore, the defendant’s reliance on Titus is misplaced. While an open or
unlocked door standing alone may not negate a person’s privacy rights, see
Smith, 169 N.H. at 610, the unlocked exterior door, viewed in the context of the
facts discussed above, weighs against recognizing an objectively reasonable
expectation of privacy in the vestibule.

On the other hand, there are a number of facts that weigh in favor of
recognizing an objectively reasonable expectation of privacy. The small number
of units in the defendant’s apartment building is one such fact. Although, as
described above, a majority of courts have held that a tenant in an apartment
building has no reasonable expectation of privacy in common areas, a minority
of courts have taken a more nuanced approach by recognizing that individuals
who live in apartment buildings with relatively few units enjoy a greater
expectation of privacy in common areas than individuals who live in larger
buildings with many units. See United States v. King, 227 F.3d 732, 749-50
(6th Cir. 2000) (holding that defendant had an objectively reasonable

9
expectation of privacy in basement of duplex because access to that area was
“limited to the duplex’s tenants and landlord”); United States v. Fluker, 543
F.2d 709, 712, 716 (9th Cir. 1976) (holding that defendant had objectively
reasonable expectation of privacy in corridor between exterior basement door
and apartment door in part because building contained only two apartments
on basement level and one on upper floor); People v. Killebrew, 256 N.W.2d
581, 583 (Mich. Ct. App. 1977) (holding that tenants enjoyed a “high degree of
privacy” in common hallway because it was shared by only two apartments).
These courts reason that tenants in buildings with fewer units have a greater
expectation of privacy in common areas because access to those areas is
limited to fewer people, giving the tenants more control over those common
areas. See, e.g., King, 227 F.3d at 745-46, 749-50; Fluker, 543 F.2d at 716; cf.
Miravalles, 280 F.3d at 1332 (“The more units in the apartment building, the
larger the number of tenants and visitors, workers, delivery people, and others
who will have regular access to the common areas, and the less reasonable any
expectation of privacy.”).

Here, although the record is unclear as to the total number of units in
the building, the vestibule provides access only to the two first-floor
apartments. Each floor has an entrance, and there was no evidence that the
two floors are connected by a stairwell. Therefore, the vestibule was a
“common” area only for the two first-floor apartments. Cf. Smith, 169 N.H. at
611 (finding no reasonable expectation of privacy in common hallway of
rooming house in part based on “large number of tenants”). In addition, the
other tenant sharing the common vestibule was the defendant’s mother — not
a stranger. See King, 227 F.3d at 748-50 (finding that defendant had an
objectively reasonable expectation of privacy in common area of duplex in part
because both units in duplex were occupied by members of his immediate
family).

In addition, the secluded location of the apartment building in the “back
corner” of a large, family-owned piece of property also weighs in favor of finding
that the defendant had an objectively reasonable expectation of privacy in the
common vestibule. The majority rule discussed above — that tenants do not
have a reasonable expectation of privacy in the common areas of an apartment
building — depends on the assumption that common hallways or entryways
are available for use by “other tenants, friends and visitors of other tenants, the
landlord, delivery people, repair workers, sales people, postal carriers and the
like.” Maestas, 639 F.3d at 1038 (quotation omitted). But, in this case, the
apartment building’s remote location weakens that assumption — at least with
respect to delivery people, sales people, and postal carriers. The building is
removed from the road, diminishing the likelihood that sales people or other
uninvited members of the public would visit. Cf. Smith, 169 N.H. at 605, 611
(finding no objectively reasonable expectation of privacy in common hallway of
rooming house located on “heavily travelled” road that the “police frequently
patrol[led]”). And, although there was evidence that the apartment building

10
had a separate address, the State adduced no evidence at the suppression
hearing demonstrating that the mail or other deliveries were made to the
interior of the vestibule. See United States v. Drummond, 98 F. Supp. 2d 44,
46, 49-50 (D.D.C. 2000) (finding legitimate expectation of privacy in entryway
where tenants’ mailboxes were located outside exterior entryway door). Finally,
the fact that the doors inside the vestibule were unmarked weighs slightly in
the defendant’s favor. Cf. Smith, 169 N.H. at 610 (finding that fact that rooms
in rooming house were individually numbered and locked weighed against
finding objectively reasonable expectation of privacy in hallway).

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).

11
 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).

We agree with those courts that have held that the mere disclaimer of a
property interest made in response to police questioning does not negate a
defendant’s privacy interest in the place or thing searched or seized. See
Sodoyer, 156 N.H. at 87 (collecting cases); LaFave, supra § 11.3(a) at 179
(describing this as the “better view”). As we recognized in Sodoyer, “[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.” Sodoyer, 156 N.H. at 87; see also Opinion of the Justices, 121 N.H.
531, 540 (1981) (“To require a person to surrender one constitutional right in
order to gain the benefit of another is simply intolerable.”). Under the State’s
view, that is precisely what the defendant would have had to do: incriminate
himself to preserve his right to challenge the search or disclaim ownership and
forfeit the right to later challenge the warrantless search. This rule would be
especially unfair in this case, where a central thrust of the State’s theory at
trial was that the boots did, in fact, belong to the defendant. See United States
v. Issacs, 708 F.2d 1365, 1368 (9th Cir. 1983) (observing that defendant’s
“denial of ownership should not defeat his legitimate expectation of privacy in
the space invaded and thus his right to contest the lawfulness of the search
when the government at trial calls upon the jury to reject that denial”). We
therefore conclude that the defendant did not forfeit his subjective expectation
of privacy in the utility closet when he disavowed ownership of the boots. We
further conclude that, despite his disavowal of ownership of the boots, the
defendant exhibited a subjective expectation of privacy in the utility closet
when he stored the boots there. See Rheault, 561 F.3d at 57, 59; King, 227
F.3d at 744.

We turn next to the objective prong of our inquiry. In arguing that he
had an objectively reasonable expectation of privacy in the utility closet, the
defendant relies on the same facts that he relied upon with respect to the

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vestibule, and the additional fact that the function of the closet as storage for
utility equipment made it even less likely that the uninvited public would enter
that space. The State counters that any expectation of privacy in the utility
closet was not objectively reasonable because the closet was not locked, the
defendant did not exercise control over the closet or exclude others from it, and
the closet was accessible to other tenants and the owner of the property. We
are not persuaded by the State’s argument.

Given that we previously have concluded that the defendant lacked an
objectively reasonable expectation of privacy in the vestibule, the critical
question is whether the facts relative to the utility closet are sufficiently
different to warrant a different result. We conclude that they are. Several of
the key facts that weighed against recognizing an objectively reasonable
expectation of privacy in the vestibule do not hold true with respect to the
utility closet. Importantly, unlike the vestibule, the interior of which could be
viewed from the access route leading to the exterior door, the interior of the
utility closet was not observable from outside the apartment building. Indeed,
its contents were not observable from the interior of the vestibule because the
utility closet door had no windows and was closed. See Drummond, 98 F.
Supp. 2d at 46, 53 (finding defendant had objectively reasonable expectation of
privacy in entryway to duplex where outer door to entryway was opaque with
no windows).

Also critical, the purpose and use of the utility closet were materially
different. Unlike the vestibule, the utility closet was isolated from regular foot
traffic. It would likely be entered by the tenants, the owner of the farm, and
workers who needed access to the equipment inside — but not visitors,
solicitors, or the general public — and such access would be infrequent
compared to passage through the vestibule. Because the utility closet was less
accessible than the vestibule — and likely not accessed as often — it is
reasonable for society to recognize an expectation of privacy in the utility
closet. See United States v. McCaster, 193 F.3d 930, 934-35 (8th Cir. 1999)
(Heaney, J., concurring in part and dissenting in part) (expressing view that
majority should have recognized objectively reasonable expectation of privacy
in a duplex’s common closet because it “likely would not be accessed by
anyone other than the tenants and landlady” and would not “be accessed as
frequently as a hallway or basement”); Fixel v. Wainwright, 492 F.2d 480, 484
(5th Cir. 1974) (finding legitimate expectation of privacy in fenced backyard of
four-unit apartment building and contrasting yard with a “common
passageway” used by tenants and solicitors to access apartments).

Further, most of the facts that weigh in favor of recognizing an objectively
reasonable expectation of privacy in the vestibule apply equally to the utility
closet. As explained above, the fact that only two apartments were accessible
from the first floor heightens the defendant’s reasonable expectation of privacy
in the closet because access to the closet was limited, thereby giving the

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defendant more control over that common space. See, e.g., King, 227 F.3d at
749-50. The defendant’s ability to control the closet is further enhanced here
given that the defendant’s mother inhabited the only other apartment with
direct access to the closet. See id. at 750. Our reasoning is further bolstered
by the fact that the apartment building’s remote location diminishes the
likelihood that uninvited members of the public would have occasion to reach
and enter the utility closet. Additionally, the record contains evidence that the
defendant exercised control over the utility closet by using it as storage space
for his boots.

We note that the door to the utility closet was not marked “private,” nor
was it locked. We cannot conclude, however, that these facts outweigh the
factors that support the recognition of the defendant’s objectively reasonable
expectation of privacy in the utility closet. Accordingly, we conclude that the
defendant exhibited a subjective expectation of privacy in the utility closet, and
that his expectation is one that society is prepared to recognize as reasonable.

Because the defendant had a legitimate expectation of privacy in the
utility closet, the officers needed a warrant or a valid exception to the warrant
requirement to lawfully enter it. See State v. Gay, 169 N.H. 232, 240 (2016)
(“[W]arrantless entries are per se unreasonable and illegal unless they fall
within the narrow confines of a judicially crafted exception to the warrant
requirement.”). Notably, the State does not make an alternative argument that,
even if the defendant had a legitimate expectation of privacy in the utility
closet, the warrantless search was nevertheless justified under an exception to
the warrant requirement. Therefore, the officer’s warrantless entry into the
utility closet was unlawful and all evidence obtained therefrom should have
been suppressed. See Orde, 161 N.H. at 267. Because we reverse under the
State Constitution, we need not reach the defendant’s challenge under the
Federal Constitution. See Ball, 124 N.H. at 237.

Reversed and remanded.

HICKS, HANTZ MARCONI, and DONOVAN, JJ., concurred.

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