State v. Johnston, No. 2003-232 (N.H. 1/8/2004)
| Decision Date | 08 January 2004 |
| Docket Number | No. 2003-232,2003-232 |
| Parties | STATE OF NEW HAMPSHIRE v. JAMES JOHNSTON, JR. |
| Court | New Hampshire Supreme Court |
Peter W. Heed, attorney general (Susan P. McGinnis, assistant attorney general, on the brief and orally), for the State.
Matthew J. Lahey, P.A., of Laconia (Matthew J. Lahey on the brief and orally), for the defendant.
The defendant, James Johnston, Jr., appeals his conviction in Superior Court (Perkins, J.) on five counts of possession of child pornography. See RSA 649-A:3, I(e) (Supp. 2002). On appeal, the defendant argues that the trial court erred in denying his motion to suppress evidence obtained during a search of his home. We affirm.
The following facts were adduced at the suppression hearing. In May 1999, the defendant used his credit card to purchase a subscription to a child pornography website from Landslide.com. In September 1999, federal authorities raided Landslide's Texas offices and confiscated records that revealed the defendant's earlier purchase.
On May 24, 2001, Detective Steven Crockett of the Belmont Police Department attended a meeting at State Police headquarters, at which he learned that Landslide's records indicated that the defendant had purchased a subscription to the website. Because there was some concern about the accuracy of the two-year-old information, authorities recommended that officers use a "knock and talk" procedure. Detective Crockett received a copy of a "[r]ecommended dialogue for knock and talk approach," as well as a diskette that detects child pornography on computer hard drives.
On June 4, 2001, at about 4:00 p.m., Detective Crockett and Detective Simmons of the Laconia Police Department, both in plain clothes, visited the defendant at his mobile home. The officers drove into the defendant's driveway, parked behind the defendant's car and knocked on the front door. When the defendant opened the door, the officers identified themselves and told the defendant that "an investigation [ ] revealed that his computer might have been compromised by having an illegal purchase made through his Internet account." The officers also told the defendant that they wanted to use a disk to check his computer for any illegal activity. When the defendant asked "what type of illegal activity" they were investigating, Detective Crockett told him that they were looking for child pornography. The defendant "acted surprised" and told the officers that they "certainly could come in and check what [they] needed to check."
The defendant then directed the officers to a computer in his living room. As the officers were inserting the disk into the defendant's computer, the defendant asked what would happen if they found anything. Detective Crockett said that "they would talk about it if that were the case." As Detective Crockett and the defendant looked on, Detective Simmons inserted the disk into the computer and child pornography images were revealed.
Detective Crockett immediately advised the defendant of his Miranda rights. See Miranda v. Arizona, 384 U.S. 436 (1966). The defendant indicated that he understood his rights and he wanted to cooperate. Thereafter, Detective Crockett gave the defendant a form entitled, "Written Consent For Search." According to his own testimony at the suppression hearing, the defendant read the form over from "top to bottom," understood it and signed it. The form authorized a search of the defendant's computer systems and software including "internal and peripheral storage devices (such as fixed disks, external hard disks, floppy disk drives and diskettes . . . and other memory storage devices)."
Detective Crockett then asked the defendant if he had other computers or child pornography in his residence. In response, the defendant led the officers to a bedroom where there was another computer. The officers inserted the disk into this second computer, and additional child pornography images were revealed. According to Detective Crockett, the defendant then volunteered that he had child pornography under his bed. The officers recovered approximately 475 photos that the defendant had printed from his computer and stored under his bed. The officers seized both computers but did not arrest the defendant that day.
The defendant's testimony at the suppression hearing was, for the most part, consistent with that of Detective Crockett. The defendant, however, said that when the officers told him they were looking for child pornography, he agreed to let them search his computers because "[he] thought [he] had to." Specifically, the defendant reasoned:
On appeal, the defendant argues that: (1) the entry upon the curtilage of his home was unconstitutional; (2) his consent to enter and search his home was not voluntary; (3) this court should adopt a rule that requires police officers employing the knock and talk procedure to advise citizens of their right to refuse consent; and (4) his consent to search was obtained as a result of a custodial interrogation not preceded by a valid waiver of his Miranda rights, and, therefore, his consent was not knowing and intelligent. We address each argument in turn.
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. State v. Hight, 146 N.H. 746, 748 (2001). Our review of the trial court's legal conclusions, however, is de novo. Id.
The defendant first argues that the police officers' warrantless entry upon the curtilage of his home was a violation of Part I, Article 19 of the New Hampshire Constitution. More specifically, the defendant argues that because the officers entered the curtilage of his home for the predetermined purpose of searching his home, the warrantless entry was pretextual and unconstitutional. In contrast, the State contends that it was constitutionally permissible for the officers to enter the curtilage of the defendant's home without a warrant because the defendant's driveway was semi-private in nature, and the officers entered the property for a legitimate purpose, namely to investigate information they received indicating that the defendant may be involved in criminal activity. We hold that the officers' warrantless entry upon the curtilage of the defendant's home did not violate Part I, Article 19.
We decide this case based upon our interpretation of the New Hampshire Constitution, using federal law only as a guide to our analysis. State v. Pinkham, 141 N.H. 188, 189 (1996). Because the Federal Constitution provides no greater protection to the defendant than the State Constitution, we conduct no separate federal analysis. Id.
State v. Goss, 150 N.H. __, ___, 834 A.2d 316, 318 (2003) (quotation omitted). Moreover, we have recognized that "certain property surrounding a home deserves the same protection against unreasonable searches and seizures as the home itself." Pinkham, 141 N.H. at 190. In light of these principles, we first determine whether the detectives' warrantless entry upon the curtilage of the defendant's home violated his reasonable expectation of privacy. See Goss, 150 N.H. at ___, 834 A.2d at 318.
In Goss, we adopted a two-part analysis for determining whether there is a reasonable expectation of privacy: first, that an individual "have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as `reasonable.'" Id. at ___, 834 A.2d at 319 (quotation omitted). In analyzing these factors, we are mindful that "[c]urtilage questions are fact-sensitive." Pinkham, 141 N.H. at 190.
Here, the trial court found that the defendant's mobile home and garage were approximately 100 feet from the road, and that no large shrubs or fences hid "the front curtilage of the home." As such, the house, garage and driveway were visible from the road. Moreover, the driveway was not blocked by a gate or posted with "No Trespassing" signs. Thus, we conclude on these facts that the defendant had no reasonable expectation of privacy in the curtilage of his home.
This conclusion is consistent with the result we reached in Pinkham. Although we did not analyze the facts in Pinkham under the reasonable expectation of privacy framework, we held that the defendant's driveway was not constitutionally protected because it was visible from the road, not blocked by fences or shrubbery, and not "posted with `No Trespassing' signs." Id. at 191. The facts of the present case are indistinguishable.
The defendant next argues that he did not voluntarily consent to the search of his home. More specifically, he argues that his consent was not voluntary because he was unaware of his right to refuse consent, the officers were deceptive and the knock and talk procedure is inherently coercive. In addition, in order to cure potential constitutional defects, the defendant encourages us to adopt a rule that would require police officers employing the knock and talk procedure to advise a citizen of the "right to refuse consent to the search." The State argues that we should refuse to adopt the rule proposed by the defendant because it would be inconsistent with this court's jurisprudence and is not mandated by the New Hampshire Constitution.
A "voluntary consent free of duress and coercion is a recognized exception to the need of both a warrant...
To continue reading
Request your trial