State v. Settle

• Decision Date: 10 March 1982
• Docket Number: 81-009,Nos. 81-007,s. 81-007
• Citation: 447 A.2d 1284,122 N.H. 214
• Parties: The STATE of New Hampshire v. John A. SETTLE, Jr. The STATE of New Hampshire v. Thomas E. DURLING.
• Court: New Hampshire Supreme Court

Page 1284

447 A.2d 1284

122 N.H. 214

The STATE of New Hampshire v. John A. SETTLE, Jr.

The STATE of New Hampshire v. Thomas E. DURLING.

Nos. 81-007, 81-009.

Supreme Court of New Hampshire.

March 10, 1982.

Gregory H. Smith, Atty. Gen. (Brian T. Tucker, Asst. Atty. Gen., on the brief and orally), for the State.

James E. Duggan, Appellate Defender, Concord, on the brief and orally, for defendant Settle.

Cristiano, Kromphold & Green, Keene (Peter W. Heed, Keene, on the brief and orally), for defendant Durling.

BATCHELDER, Justice, with whom KING, Chief Justice, concurs.

The defendants were convicted by a jury in Cheshire County Superior Court of receiving stolen property and conspiracy to receive stolen property. The property in question consisted of a collection of firearms, exceeding two hundred and fifty in number, which had been removed during the course of a burglary from "Trader Johns," a mercantile establishment in Winchester, New Hampshire, on the night of January 17, 1980. Several issues were raised in this appeal, but, by agreement of the parties and approval of this court, only one issue was briefed and argued before this court; the other issues have been reserved pending the disposition of this issue.

The question raised in this appeal is whether the defendants have standing to challenge the legality of a warrantless search of the premises of a third party, James M. Scranton, conducted by the police on March 24, 1980. We hold that the New Hampshire Constitution requires that they be given standing.

The facts which gave rise to the search and ultimate constitutional questions were developed for the record during a suppression hearing conducted by the Trial Court (Contas, J.), commencing November 3, 1980. The trial court ruled that the initial entry by the police constituted an illegal search. Having determined that the search was illegal, the trial court then ruled that, under the United States Constitution, the defendants in this case did not have standing to contest the search and refused, therefore, to suppress the evidence obtained.

At the time of the suppression hearing, James M. Scranton, age 24, resided with his parents in Keene, New Hampshire, and was engaged from time to time in cutting cordwood on a two-hundred-acre lot owned by his father, William Scranton. James Scranton had carried on the woodcutting operation on the woodlot for a period of time prior to the events of this case. At some point prior to 1980 James Scranton, with the help of friends, had constructed a one-room cabin on the father's woodlot. The cabin, of modest dimensions and construction, might be categorized as a make-shift hunting or fishing camp. In addition to the four walls and roof, the cabin contained a stove, windows, and a door. The door swung open to the outside onto a porch or landing and had no fastener or latch. The door did not open inward. The windows to the cabin were completely covered so that no one could see inside. Adjacent to the cabin was an outdoor toilet facility or outhouse. The cabin was at least three hundred feet from an old dirt road and could not be seen from the road.

Some time during the third week in March, 1980, James Scranton was introduced to the defendant Settle, who at the time styled himself as one John Smith. Settle, explaining to James Scranton that he possessed a substantial gun collection that he believed he might lose as a result of legal action in a pending divorce proceeding, arranged with Scranton to store the guns in the Scranton camp for an indeterminate period of time during which Settle proposed to clean and crate the gun collection. In exchange for the use of the Scranton camp for this purpose, Scranton was to be given his choice of a rifle or shotgun plus a handgun. Within a few days of the conversation, the guns were placed in the camp by Settle, John and Mark Durling, and Scranton. The windows were covered from the inside, and the door was closed by placing a chain saw, weighing between thirty and forty pounds, against it to prevent the door from swinging out. On the door of the cabin was a sign reading "KEEP OUT." Scranton and Mark Durling, at the request of Settle, stayed at the cabin one night to guard the guns.

The police in the Keene area received information, the basis and nature of which are not material to this case, that the stolen guns might be located on property that later turned out to be owned by William Scranton. On March 24, 1980, a member of the New Hampshire State Police, together with various local and county police officers, arrived at the Scranton camp, where the law enforcement personnel made an unlawful entry into the building and immediately learned of the presence of the collection of firearms. Possessing this information, the law enforcement personnel closed the door to the cabin and then proceeded to obtain a search warrant.

We are asked in this case to determine whether the automatic standing rule adopted by this court in State v. Crump, 107 N.H. 62, 65, 217 A.2d 183, 186 (1966), and more recently affirmed in State v. Ruelke, 116 N.H. 692, 693, 366 A.2d 497, 498 (1976), constitutes the standard by which searches must be judged or whether the "legitimate expectation of privacy" doctrine, expressed more recently by the United States Supreme Court in Rakas v. Illinois, 439 U.S. 128, 143, 99 S.Ct. 421, 430, 58 L.Ed.2d 387 (1978) and United States v. Salvucci, 448 U.S. 83, 91-92, 100 S.Ct. 2547, 2552-53, 65 L.Ed.2d 619 (1980), governs.

This court has historically viewed the rights of people in light of both the United States Constitution and the Constitution of the State of New Hampshire. State v. Beede, 119 N.H. 620, 625, 406 A.2d 125, 129 (1979), cert. denied, 445 U.S. 967, 100 S.Ct. 1659, 64 L.Ed.2d 244 (1980); State v. Theodosopoulos, 119 N.H. 573, 578, 409 A.2d 1134, 1137 (1979), cert. denied, 446 U.S. 983, 100 S.Ct. 2964, 64 L.Ed.2d 839 (1980). Our constitution often will afford greater protection against the action of the State than does the Federal Constitution. In State v. Osborne, 119 N.H. 427, 402 A.2d 493 (1979), we stated that "this court [can] impose a heavier burden on the State under the New Hampshire Constitution...." Id. at 433, 402 A.2d at 497. Previously, we have held that the protection against double jeopardy, found in N.H.Const. pt. I, art. 16, is greater than that provided by the Federal Constitution, compare State v. Hogg, 118 N.H. 262, 263-67, 385 A.2d 844, 845-47 (1978) with Bartkus v. Illinois, 359 U.S. 121, 136, 79 S.Ct. 676, 685, 3 L.Ed.2d 684 (1959), and that, contrary to the federal practice, the reasonable doubt standard must be used by the trial judge when ruling on the voluntariness of a defendant's confession. Compare State v. Phinney, 117 N.H. 145, 146, 370 A.2d 1153, 1154 (1977) with Lego v. Twomey, 404 U.S. 477, 486-87, 92 S.Ct. 619, 625, 30 L.Ed.2d 618 (1972).

The language of the New Hampshire Constitution is clear:

"[Searches and Seizures Regulated]. Every subject hath a right to be secure from all unreasonable searches and seizures of his person, his houses, his papers, and all his possessions. Therefore, all warrants to search suspected places ... are contrary to this right, if the cause or foundation of them be not previously supported by oath or affirmation ... and with the formalities, prescribed by law."

N.H.Const. pt. I, art. 19. (Emphasis added.) We are convinced that the language of our constitution requires that "automatic standing" be afforded to all persons within the State of New Hampshire who are charged with crimes in which possession of any article or thing is an element. Article 19 prohibits all unreasonable searches of all a citizen's possessions. Absent a recognized exception to the warrant requirement, a warrantless search is "per se unreasonable." State v. Beede, 119 N.H. at 625, 406 A.2d at 129; State v. Theodosopoulos, 119 N.H. at 578, 409 A.2d at 1137.

We are not the only court to conclude that its State constitution requires a greater degree of protection of individual rights than does the Federal Constitution. See cases cited in Y. Kamisar, W. LaFave & J. Israel, Modern Criminal Procedure at 2-5 (4th ed. Supp.1980). The California Supreme Court has noted that the cases decided by the United States Supreme Court represent the application of only "the minimum standards required in order to satisfy the Fourth Amendment's proscription against unreasonable searches." People v. Brisendine, 13 Cal.3d 528, 545, 531 P.2d 1099, 1110, 119 Cal.Rptr. 315, 326 (1975). (Emphasis in original.) Nor are we the first State to hold that the protection against unreasonable searches and seizures of its State constitution is greater than that provided by the fourth amendment. The Supreme Court of Louisiana and the Supreme Court of New Jersey have also recognized that their constitutions require that automatic standing be given to any person adversely affected by an unreasonable search or seizure. State v. Gibson, 391 So.2d 421, 425 (La.1980); State v. Culotta, 343 So.2d 977, 981-82 (La.1976); State v. Alston, 88 N.J. 211, 225-30, 440 A.2d 1311, 1318-21 (1981).

Furthermore, we believe that the automatic standing rule required by the New Hampshire Constitution offers several benefits to the sound administration of criminal justice. The federal "automatic standing" rule originated in Jones v. United States, 362 U.S. 257, 264-65, 80 S.Ct. 725, 732-33, 4 L.Ed.2d 697 (1960), where the Court determined that, in order to show a possessory or proprietary interest sufficient to assert fourth amendment rights, the defendant, in effect, would otherwise be required to admit guilt where (as in this case) the possession (receiving stolen property, RSA 637:7) was, itself, a crime. See id. at 261-62, 80 S.Ct. at 731. Soon thereafter, this court adopted the "automatic standing" rule in State v. Crump, 107 N.H. 62, 65, 217 A.2d 183, 186 (1966). The United States Supreme Court totally abandoned...