State of New Hampshire v. Daniel Davis

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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Carroll
No. 2020-0167

THE STATE OF NEW HAMPSHIRE

v.

DANIEL DAVIS

Argued: February 18, 2021
Opinion Issued: October 28, 2021

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

Stephen T. Jeffco, P.A., of Portsmouth (Stephen T. Jeffco on the brief and
orally), for the defendant.

BASSETT, J. The defendant, Daniel Davis, appeals his conviction for one
count of possession of a controlled substance with intent to sell. See RSA 318-
B:2, I (2017). He challenges an order of the Superior Court (Ignatius, J.)
denying his motion to suppress evidence obtained during a warrantless entry
into the enclosed porch of his residence and subsequent warrantless entry into
the interior. He also argues that the trial court erred when it did not suppress
evidence seized during a subsequent search of his residence pursuant to a
search warrant because the warrant was predicated upon evidence obtained
during the two prior unlawful intrusions. The State counters that both entries
were lawful and, therefore, the later warrant search of the defendant’s
residence was also lawful. Because we agree with the defendant that the
evidence obtained during the two warrantless entries was unlawfully acquired,
and that the search warrant’s reliance on that evidence renders it invalid, 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 undisputed. On April 6, 2019, an officer from
the Conway Police Department received a tip that marijuana was being grown
inside a residential mobile home in Conway. A local business owner informed
the officer that, during a recent service call to the residence, he observed
several marijuana plants. The officer, joined by a second officer, visited the
residence later that day to speak with the occupant.

The residence is comprised of a mobile home and a structurally distinct
addition running nearly its entire length (hereinafter referred to as the
“enclosed porch” or “porch”). The porch is rectangular, enclosed on all four
sides, and has a pitched roof that is slightly lower than the mobile home’s roof.
The interior wall of the porch is contiguous with one wall of the mobile home.
Its three exterior walls are covered with siding or shingles, except the top third
of the longest exterior wall, which has windows. At the front end of the porch,
there is a set of stairs that leads up to an exterior wooden door with a window
and a curtain. The back end of the porch also has a door with a window.
Various items are stored inside the enclosed porch, including furniture and
appliances. A few feet past the front exterior door and to the right, another
door leads from the interior of the porch to the interior of the mobile home.

When the officers arrived at the property, they parked on the street
approximately thirty feet away from the residence. From this vantage point,
the officers observed that all the windows of the mobile home itself were
covered with black plastic. The windows of the enclosed porch were not
covered. Through the porch windows, the officers observed electrical wiring
and piping protruding from the mobile home into the porch, which they
identified as consistent with indoor marijuana cultivation. The officers also
observed that the door between the porch and the interior of the mobile home
was closed. As the officers approached the residence, they could smell the odor
of fresh marijuana.

The officers found the exterior door unlocked, entered the porch, and
knocked on the interior door. In response, the occupant asked the officers to
identify themselves. The officers identified themselves as police officers and
asked the occupant to come to the door. They received no response. In the
silence that followed, the officers could hear fans running inside the mobile
home, which they considered additional evidence of indoor marijuana
cultivation. The officers knocked on the door several more times, each time
announcing themselves as police and asking the occupant to come to the door.
After repeatedly receiving no response, they left the porch.

2
 As the officers walked away from the residence, they heard loud
“crashing” and “banging” noises coming from inside the mobile home. Because
the officers believed the occupant was destroying evidence, they reentered the
porch and entered the mobile home through the interior door. Inside, the
officers discovered evidence of marijuana cultivation, including marijuana
plants. They located the defendant in a back hallway of the mobile home and
placed him under arrest. The officers subsequently obtained a search warrant,
searched the residence pursuant to that warrant, and seized evidence,
including marijuana plants and U.S. currency. Based in part on that evidence,
a grand jury indicted the defendant on one count of possession of a controlled
drug (marijuana) with intent to sell. See RSA 318-B:2, I.

The defendant moved to suppress all evidence derived from the officers’
“unlawful entry and subsequent search of his residence.” He argued that the
evidence forming the basis of the search warrant affidavit had been “acquired
as a result of the initial illegal entry of [his] residence” in violation of his rights
under the State and Federal Constitutions. At the hearing on the motion, the
State offered the testimony of one of the officers who participated in the
warrantless entry of the residence. The defendant also testified and offered
into evidence several exhibits depicting the residence. He clarified that he was
challenging the warrantless entries into the enclosed porch and the interior of
the mobile home and the search warrant’s reliance on evidence obtained during
those intrusions.

The trial court denied the defendant’s motion to suppress. It concluded
that the officers’ entry into the enclosed porch was lawful because the
defendant lacked a legitimate expectation of privacy in the porch, and that the
officers’ warrantless entry into the interior of the mobile home was justified
under the exigent circumstances exception to the warrant requirement.
Because the court concluded that both challenged entries were lawful, it ruled
that the evidence seized pursuant to the search warrant was lawfully obtained
and that the defendant’s constitutional rights had not been violated. The
defendant was convicted of possession of a controlled drug with intent to sell
and this appeal followed.

On appeal, the defendant argues that any evidence obtained during the
officers’ warrantless entries into the porch and the interior of the mobile home
and any evidence seized pursuant to the search warrant should have been
suppressed under Part I, Article 19 of the State Constitution and the Fourth
and Fourteenth Amendments to the Federal Constitution. See N.H. CONST. pt.
I, art. 19; U.S. CONST. amends. IV, XIV. With respect to the warrantless
intrusions, he argues that the officers’ warrantless entry into the enclosed
porch was unlawful because he had a legitimate expectation of privacy in the
porch, and that the officers’ warrantless entry into the mobile home was not
justified by the exigent circumstances exception to the warrant requirement.
Regarding the search warrant, the defendant asserts that the search warrant

3
affidavit would not have supported probable cause but for the inclusion of
observations the officers made during their unlawful, warrantless entries into
the enclosed porch and the interior of the mobile home. The State counters
that both warrantless intrusions were lawful, and, therefore, the search
warrant was valid. We agree with the defendant that any evidence obtained
during the warrantless entries and any evidence acquired pursuant to the
search warrant should have been suppressed.

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, 163 N.H. 169, 172 (2012). The defendant invokes both the State and 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 on federal law only to aid our analysis. State v.
Ball, 124 N.H. 226, 231-33 (1983).

We first address the defendant’s argument that the officers’ warrantless
entry into the enclosed porch was unlawful because he had a legitimate
expectation of privacy in that area. 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. This protection against
unreasonable searches extends only to those places in which the accused
maintains a legitimate expectation of privacy. See State v. Robinson, 158 N.H.
792, 796 (2009). In other words, there is no “search” triggering constitutional
protection unless the defendant’s legitimate expectation of privacy has been
intruded upon by the State. See id.; In re Anthony F., 163 N.H. 163, 165-66
(2012).

To determine whether the defendant has a legitimate expectation of
privacy in a particular area, we engage in a two-part analysis. State v. Goss, 150 N.H. 46, 48-49 (2003). First, we consider whether the defendant has
exhibited a subjective expectation of privacy and, second, whether that
expectation is one that society is prepared to recognize as reasonable. Id. at
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.”
State v. Gates, 173 N.H. 765, 771 (2020) (quotation omitted).

Part I, Article 19 of the 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

4
surrounding a home, often described as curtilage, deserves the same protection
against unreasonable searches and seizures as the home itself.” State v. Orde, 161 N.H. 260, 264 (2010). “The boundaries and contents of the curtilage are
not easily described.” Smith, 163 N.H. at 172. But, generally, curtilage
includes those outbuildings that are directly and intimately connected to, and
in proximity to, the home, and the land or grounds surrounding the dwelling
which are necessary, convenient, and habitually used for family purposes and
the carrying on of domestic employment. Id.

The State argues that our task is to apply our two-part expectation of
privacy analysis to determine whether the porch is part of the curtilage of the
residence, and, therefore, subject to constitutional protection. We assume,
without deciding, in the State’s favor that this is the proper inquiry. In
addition, at oral argument, the parties agreed that the State bore the burden of
proof at the suppression hearing to show that the entries into the property and
the subsequent warrant search were lawful. We proceed on the assumption
that the State bore the burden of proof at the suppression hearing.

We first consider whether the defendant exhibited a subjective
expectation of privacy in the porch. Although the trial court did not decide this
issue, its findings provide a sufficient basis for us to do so as a matter of law.
See Goss, 150 N.H. at 48-49 (adopting expectation of privacy framework and
deciding, in the first instance, that defendant exhibited subjective expectation
of privacy); United States v. Rheault, 561 F.3d 55, 59 (1st Cir. 2009)
(concluding defendant exhibited subjective expectation of privacy despite fact
that trial court had not ruled on the issue).

The touchstone of the subjective expectation of privacy inquiry is
whether the defendant sought to “preserve as private” the area at issue. Katz
v. United States, 389 U.S. 347, 351 (1967). For example, in Orde, we
concluded that the defendant had exhibited a subjective expectation of privacy
in an unenclosed deck attached to his home because he had taken “efforts to
obscure the deck and the activities on the deck from public view” by lining the
deck with bushes. Orde, 161 N.H. at 263, 265. We also found significant the
fact that the defendant had restricted public access to the deck by not creating
a path connecting the main entrance of the house to the steps leading to the
deck. Id. at 265; see also Goss, 150 N.H. at 49 (concluding that defendant
exhibited subjective expectation of privacy in his trash by placing “it in black
plastic bags with the expectation it would be picked up by authorized persons
for eventual disposal”); Fernandez v. State, 63 So. 3d 881, 883 (Fla. Dist. Ct.
App. 2011) (“[A]ffirmatively taking express steps to exclude the public or other
persons from using the area, seeing into it, or gaining access to the area are
ways to establish such a subjective manifestation.” (quotation and ellipsis
omitted)).

5
 Here, the defendant took steps to limit access to the porch and protect
the interior from public view. The entire porch is enclosed and the entrance to
the porch is obstructed by a closed wooden door containing a window — not
merely a transparent screen or storm door. And, although the officers could
see into the porch from the street, that view was limited. Looking up at the
windows lining the top part of the porch from the vantage point of the street,
approximately thirty feet from the residence, the officers could see portions of
tall items, such as the refrigerator and water heater. But the trial court did not
find, and there is no evidence in the record, that the officers could see shorter
items, such as the table and chairs, from the street. Given the defendant’s
efforts to preserve his privacy, we conclude that he exhibited a subjective
expectation of privacy in the porch.

The State argues that the defendant’s claim that he had an expectation
of privacy in the porch is defeated because, at the suppression hearing, the
defendant never testified that he had a subjective expectation of privacy in the
porch. We reject the proposition that the defendant’s failure to so testify is
fatal to his claim. The State has not cited, nor have we found, a case in which
we held that a defendant’s testimony is necessary to prove that he or she
exhibited a subjective expectation of privacy. Cf. Orde, 161 N.H. at 265, 267
(observing that defendant testified at suppression hearing but relying solely on
defendant’s conduct in concluding that he exhibited a subjective expectation of
privacy).

In fact, we have repeatedly concluded that a defendant’s conduct is
sufficient to establish that he or she exhibited a subjective expectation of
privacy. See id. at 265 (concluding that defendant exhibited subjective
expectation of privacy based on his efforts to obscure deck from public view
and limit access to it); Gates, 173 N.H. at 778 (holding that defendant exhibited
subjective expectation of privacy in utility closet of apartment building by
storing potentially incriminating boots there); Goss, 150 N.H. at 49 (concluding
that defendant exhibited expectation of privacy in his trash by placing it in
black plastic bags); see also Rheault, 561 F.3d at 59 (rejecting government’s
argument that defendant lacked subjective expectation of privacy because he
failed to testify to that effect at the suppression hearing). Here, the defendant
took steps to preserve his privacy in the porch, and, therefore, we conclude
that he exhibited a subjective expectation of privacy in that area.

We next consider whether the defendant’s expectation of privacy in the
enclosed porch is one that society is prepared to recognize as reasonable. See
Goss, 150 N.H. at 48-49. The parties agree that the following factors should
guide our inquiry: whether the police had a lawful right to be on the porch, and
the character of the porch. See Orde, 161 N.H. at 265. We typically consider
the character of the location at issue with reference to several additional
factors, including the area’s proximity to the dwelling, its inclusion within a
general enclosure surrounding the dwelling, its use and enjoyment as an

6
adjunct to the domestic economy of the family, whether the defendant owned
the place or controlled access to it, whether it was freely accessible to others,
Smith, 163 N.H. at 173, and whether the defendant took normal precautions to
protect his privacy, Orde, 161 N.H. at 265. No single factor is dispositive.
Smith, 163 N.H. at 173.

The defendant argues that his expectation of privacy in the porch is
objectively reasonable because the porch is attached to the mobile home,
enclosed, and is not part of the access routes on the property to which the
officers had an implied invitation. The State counters that the officers had an
implied invitation to enter the enclosed porch because it leads to the “main
door” of the residence, which is visible from the street, and there is no knocker
or doorbell outside the exterior door. The State also argues that the character
of the porch weighs against recognizing an objectively reasonable expectation of
privacy because: its structure, appearance, and contents demonstrate that it is
not used as a living space; its windows are not covered with black plastic like
the mobile home windows; and its nature as an enclosed space is not
dispositive. We agree with the defendant.

We consider first whether the officers had a lawful right to be inside the
enclosed porch. 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.” Orde, 161 N.H. at 266. “The 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 are permitted the same intrusion and the same level
of observation as would be expected from a ‘reasonably respectful citizen.’” Id.
(quotation, brackets, and ellipsis omitted).

Here, a “reasonably respectful citizen” would have approached the
residence via the access route of the steps and knocked on the exterior door.
At that point, the visitor would be able to observe the exterior wooden door,
that the doorknob has a visible keyhole, indicating that the door can be locked,
and that the address number of the residence is located next to the exterior
door. A visitor could also observe — from the street or through the window of
the door — that the occupant stores personal items on the porch. In light of
these facts, a reasonably respectful visitor would understand that his or her
implied invitation extends only to the threshold of the exterior door, and no
further. Cf. United States v. Wilson, No. 08-CR-2020-LRR, 2009 WL 905709,
at *5-8 (N.D. Iowa Mar. 30, 2009) (unpublished) (finding mudroom of
defendant’s home within scope of Fourth Amendment protection when the
home’s address number was outside mudroom, keyhole of exterior storm door
was visible, and visitors could see that defendant stored valuable items inside
mudroom).

7
 The fact that the porch connects the exterior door and the ostensible
“main door” of the residence does not, as the State argues, make this case like
State v. Beauchemin, 161 N.H. 654 (2011). In that case, we held that the
defendant had no expectation of privacy in an unenclosed porch that led to the
main door of his house because the porch was “a place visitors could be
expected to go in order to knock on the front door.” Beauchemin, 161 N.H. at
655, 657 (quotation omitted). By contrast, here, the space at issue is enclosed
and features a closed wooden exterior door with adjacent address numbers — a
door a reasonably respectful visitor would not enter without permission. As
the Maine Supreme Judicial Court has observed, “The mere presence of a
hallway in the interior of a single family dwelling, without more, is not in itself
an invitation to the public to enter nor a foregoing by the occupants thereof of
their expectancy and right of privacy.” State v. Crider, 341 A.2d 1, 4 (Me.
1975) (finding defendant had objectively reasonable expectation of privacy in
“hallway” connecting outer and inner door of single-family residence).

Nor are we persuaded by the State’s argument that the absence of a door
knocker or doorbell on or near the exterior door signals that a visitor is
impliedly invited to enter through the exterior door to announce themselves at
the interior door. There is no evidence in the record that there was a doorbell
or knocker on the interior door that would differentiate it from the porch door
or signify that it was truly the “main door” to the residence. The fact that the
defendant does not have a doorbell, knocker, or anything in addition to the
exterior door itself, does not diminish his reasonable expectation of privacy.
For all these reasons, we conclude that the implied invitation onto the access
routes of the property did not extend into the porch, and, therefore, the officers
did not have a lawful right to be there. This factor weighs in favor of
recognizing an objectively reasonable expectation of privacy.

We next consider the character of the porch, with reference to the
additional factors outlined above. See Smith, 163 N.H. at 173. To the extent
those factors are relevant to the facts of this case, several of them weigh in
favor of recognizing an objectively reasonable expectation of privacy in the
porch. Chief among them is the fact that the porch is attached to the mobile
home. Compare Orde, 161 N.H. at 267 (concluding that defendant had
reasonable expectation of privacy in deck in part because it was attached to his
home), with Smith, 163 N.H. at 173-75 (finding that defendant lacked
reasonable expectation of privacy in wooded area fifty to seventy feet behind
her residence). This factor weighs in favor of recognizing an objectively
reasonable expectation of privacy.

The evidence also shows that the defendant uses the porch as a living
space. The enclosed porch is a finished room that contains a stored table and
multiple chairs, a bookshelf containing several items, and a stored refrigerator
and water heater. The nature of the room and the presence of furniture and
personal effects demonstrate the area’s use as an extension of the interior of

8
the home itself. See Orde, 161 N.H. at 267 (finding that defendant had
reasonable expectation of privacy in deck, which was used as an outdoor living
space for dining, barbecuing, and sunbathing); State v. Boggs, No. 19-0862,
2020 WL 6483983, at *2-3 (Iowa Ct. App. 2020) (unpublished) (observing that
presence of furniture and other items inside enclosed porch indicated porch’s
use for “intimate activities associated with domestic life and the privacies of the
home”).

We do not agree with the State that the fact that the refrigerator and
water heater are not in use and appear to be stored on the porch demonstrates
that the porch is not used as a living space. On the contrary, those items are
of value, and the fact that the defendant stores them inside the enclosed porch,
rather than outside or elsewhere, shows that the porch is an adjunct to the
home. Similarly, it is of no moment that the items stored on the porch might,
to some, appear to be in disarray. See Boggs, 2020 WL 6483983, at *3.

Nor are we convinced by the State’s argument that the porch cannot be
characterized as a living space because it is structurally distinct from the
mobile home, has a broken window, and the door at the back end of the porch
is not “airtight.” Individuals who reside in less well-constructed dwellings and
those who live in more substantial, studier structures are equally guaranteed
the protections of Part I, Article 19 of the State Constitution. See 1 Wayne R.
LaFave, Search and Seizure: A Treatise on The Fourth Amendment, § 2.3(b), at
768 (6th ed. 2020); see also Katz, 389 U.S. at 351 (“[T]he Fourth Amendment
protects people, not places.”); United States v. Ross, 456 U.S. 798, 822 (1982)
(“[T]he most frail cottage in the kingdom is absolutely entitled to the same
guarantees of privacy as the most majestic mansion.”). The fact that the
exterior of the enclosed porch looks different from the rest of the residence and
that it may be in need of repair does not change the character of the structure
as a fully enclosed, finished room, nor does it materially alter its possible uses.

For all these reasons, the evidence demonstrates that the defendant
utilizes the enclosed porch as a living space, i.e., as an extension of his home.
This factor weighs heavily in favor of recognizing an objectively reasonable
expectation of privacy in the porch. See Orde, 161 N.H. at 267; Boggs, 2020
WL 6483983, at *2-3; see also In the Matter of Lallo, No. 1997CA00426, 1998
WL 525561, at *3 (Ohio Ct. App. Aug. 17, 1998) (unpublished) (concluding that
defendant had reasonable expectation of privacy in front porch because it was
enclosed, attached to the house, had a front screen door, and was used as a
living space).

In addition, the defendant took normal precautions to protect his privacy
in the enclosed porch. See Orde, 161 N.H. at 265. As discussed above in
relation to the defendant’s subjective expectation of privacy, the defendant
endeavored to preserve his privacy in the porch by enclosing it, restricting
access to it with a closed wooden door, and limiting the public’s view into it

9
from the street due to the fact that the windows line only the top third of the
porch. We are not convinced by the State’s argument that the fact that the
defendant covered the windows of the mobile home with black plastic — but
not the windows of the porch — proves otherwise. Our inquiry is whether the
defendant took “normal precautions to protect his privacy,” id. (quotation
omitted), in the area at issue; not whether he took measures to protect his
privacy elsewhere. Thus, this factor also weighs in favor of recognizing an
objectively reasonable expectation of privacy in the porch.

On the other hand, no general enclosure, such as a fence or row of
hedges, surrounds the mobile home and the porch to block the public’s view of
the property from the street. Cf. Smith, 163 N.H. at 174-75. Although this fact
weighs against the defendant, viewed in the context of the other facts relevant
to the character of the porch, see id. at 173, we conclude that, on balance, the
character of the porch weighs in defendant’s favor.

Considering all the facts discussed above, we conclude that the
defendant’s expectation of privacy in the porch is one that society is prepared
to recognize as reasonable. Because the defendant had both a subjective and
an objective expectation of privacy in the porch, a warrant or an exception to
the warrant requirement was needed for the officers to lawfully enter that area.
See Orde, 161 N.H. at 267. The State does not argue that an exception to the
warrant requirement justified their initial entry into the porch. We therefore
conclude that the warrantless entry into the porch was unlawful, and any
evidence obtained while on the porch was unlawfully acquired. As the State
conceded at oral argument, it follows from this conclusion that any evidence
the officers gained during their warrantless entry into the interior of the mobile
home was tainted by that prior illegality and, therefore, any evidence acquired
during the warrantless intrusion into the mobile home was also unlawfully
obtained.

To the extent the State argues that the information and observations
obtained during the warrantless entry into the interior are nevertheless
admissible based on the inevitable discovery exception to the warrant
requirement, we are not persuaded. As the State observes, we have not had
occasion to decide what the State must prove in order for the inevitable
discovery doctrine to apply. State v. Broadus, 167 N.H. 307, 314 (2015). Even
assuming, as the State asserts, that the standard set forth in United States v.
Almeida applies here, we cannot conclude that the State has met its burden.
See United States v. Almeida, 434 F.3d 25, 28, 29 (1st Cir. 2006) (explaining
that, for inevitable discovery doctrine to apply, the government must
demonstrate that “the legal means by which the evidence would have been
discovered was truly independent,” that there was a “high degree of probability”
that the evidence would inevitably have been discovered by such means, and
that applying the doctrine would not “provide an incentive for police
misconduct or significantly weaken constitutional protections”).

10
 Under the inevitable discovery doctrine, illegally seized evidence is
admissible if a search was justified, and the evidence discovered illegally would
inevitably have come to light in a subsequent legal search. Broadus, 167 N.H.
at 313. The first prong of the three-prong standard articulated in Almeida
inquires “whether the legal means by which the evidence would have been
discovered was truly independent.” Almeida, 434 F.3d at 28. The State argues
that this “truly independent” inquiry is met here because the officers had
ample evidence to establish probable cause before entering the porch and
would have obtained a warrant based solely on that information if exigent
circumstances — presumably the noises coming from inside the mobile home
as they walked away from the residence — had not intervened. However, the
State fails to point to any evidence in the record, and we have found none, that
demonstrates that the officers would have pursued and obtained a warrant
based solely on the information gained and the observations made prior to their
unlawful entry onto the porch. Cf. United States v. Soto-Peguero, 978 F.3d 13,
20 (1st Cir. 2020) (affirming trial court’s application of inevitable discovery
doctrine based, in part, on officer’s testimony that “he would have pursued a
warrant” regardless of what was found during unlawful protective sweep of
apartment); see also United States v. Allen, 159 F.3d 832, 842 (4th Cir. 1998)
(“The inevitable discovery doctrine cannot rescue evidence obtained via an
unlawful search simply because probable cause existed to obtain a warrant
when the government presents no evidence that the police would have obtained
a warrant. Any other rule would emasculate the Fourth Amendment.”). We
therefore conclude that the State has not met its burden of demonstrating that
the inevitable discovery exception to the warrant requirement justified
admission of any observations or information acquired during the warrantless
intrusion of the mobile home.

However, this conclusion does not end our inquiry. The defendant also
argues that any evidence later seized pursuant to the search warrant should
have been suppressed because the search warrant affidavit would not have
established probable cause absent inclusion of observations the officers made
during their two unlawful intrusions. The State does not dispute that, during
the two intrusions, the officers made observations that were set forth in the
affidavit supporting the challenged search warrant. Accordingly, we must
decide whether, despite the inclusion of unlawfully obtained evidence in the
search warrant affidavit, the warrant remains valid.

Part I, Article 19 of the State Constitution requires that all search
warrants be issued only upon a finding of probable cause. State v. Zwicker, 151 N.H. 179, 185 (2004). A search warrant that was acquired based on
unlawfully obtained information or evidence is invalid, see State v. Hanson, 113 N.H. 689, 690 (1973), unless there was enough other evidence to establish
probable cause, Orde, 161 N.H. at 269. Ordinarily, to test the validity of a

11
search warrant issued upon an affidavit referencing unlawfully obtained
observations, we would excise the tainted information and examine the
remaining evidence to determine whether it establishes probable cause. Id.

Here, however, the State failed to submit a copy of the search warrant
affidavit to either the trial court or this court. Nor did the State argue on
appeal that we should remand so that the trial court could obtain the warrant
affidavit and consider the issue. Instead, the State acknowledged at oral
argument that, without the warrant affidavit, we are not in a position to excise
the tainted information from the search warrant affidavit to determine whether
the remaining facts support probable cause. Cf. id. (excising illegally obtained
information from search warrant affidavit and concluding that remaining
information was insufficient to establish probable cause). Accordingly, because
we have not been provided with the information necessary to determine
whether — absent the tainted observations — the search warrant was
supported by probable cause, we conclude that the evidence officers seized
pursuant to the search warrant was obtained in violation of the defendant’s
rights under Part I, Article 19 of the State Constitution, and, therefore, should
have been suppressed. See id.

In sum, we conclude that the information obtained during the two
warrantless entries and the evidence seized pursuant to the search warrant
should have been suppressed. 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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