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                 THE SUPREME COURT OF NEW HAMPSHIRE

                           ___________________________


2d Circuit Court-Plymouth District Division
No. 2014-0725


                        THE STATE OF NEW HAMPSHIRE

                                         v.

                                  TYLER BOYER

                             Argued: June 24, 2015
                       Opinion Issued: February 12, 2016

      Joseph A. Foster, attorney general (Nicholas Cort, assistant attorney
general, 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 State appeals an order of the Circuit Court (Rappa, J.)
granting the motion of the defendant, Tyler Boyer, to suppress evidence
obtained when, without a warrant, the police entered the apartment that he
shared with his girlfriend and arrested him. The trial court found that the
defendant had standing to object to the search despite the fact that, at the time
of the search, he was present with his girlfriend in violation of a court order
that prohibited him from having contact with her. The State argues that the
defendant did not have standing to challenge the search because, given his
presence in the apartment in violation of the order, he could not have an
expectation of privacy in the apartment that society is prepared to recognize as
reasonable. We agree with the State, and, therefore, reverse and remand.

      The following facts are undisputed or are otherwise supported by the
record. In February 2014, the defendant lived with his girlfriend, A.N., in an
apartment in Ashland. On February 5, the defendant was arrested for “act[ing]
in an extremely violent manner” toward A.N. and “block[ing] [her] from calling
the police.” He was released on personal recognizance bail, subject to specific
conditions. The bail order prohibited him from having contact with A.N.,
coming within 100 feet of her, and from “interfer[ing]” with A.N. at her
residence. The order also required that the defendant live in Ellsworth. A.N.
continued living in the Ashland apartment.

       Three days after the defendant was released, two officers of the Ashland
Police Department observed the defendant’s truck parked near the apartment
in Ashland where he had lived with A.N. Without obtaining a warrant, the
officers knocked on the door of the apartment and identified themselves as
police officers. A.N. answered the door, and the officers asked her if the
defendant was in the apartment. A.N. admitted that the defendant was there,
and the officers asked to come in and talk to him. A.N. gave them permission
to enter the apartment. The officers did so, found the defendant inside, and
arrested him. Thus, the “evidence seized” was the defendant himself. The
defendant was charged with “indirect criminal contempt” based upon his
violation of a condition of the bail order.

       Prior to trial, the defendant filed a motion to suppress, arguing that the
officers’ warrantless search of his apartment violated the State and Federal
Constitutions. See N.H. CONST. pt. I, art. 19; U.S. CONST. amend. IV. The
State objected, arguing that the officers’ search was lawful. The State also
asserted that, because the bail order prohibited the defendant from contacting
A.N., her presence in the apartment eliminated any legitimate expectation of
privacy that the defendant might have had at the time of the search, and,
therefore, the defendant lacked standing to challenge the search. The
defendant countered that he had standing because he “had a privacy interest
in keeping the police out of his home, even if he was temporarily forbidden to
return home.”

      The trial court concluded that the defendant had standing to challenge
the search because “[t]he warrantless search occurred in the Defendant’s
home.” Addressing the merits of the motion, the trial court ruled that the
search was unconstitutional because A.N.’s decision to allow the officers into
the apartment was not the product of free, knowing, and voluntary consent.
The trial court denied the State’s motion to reconsider, and this appeal
followed.




                                        2
      On appeal, the State contests only the trial court’s conclusion that the
defendant had standing to challenge the officers’ search of his apartment. The
State does not defend the constitutionality of the underlying warrantless
search, nor does it challenge the trial court’s ruling that the apartment was the
defendant’s home. 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. Roy, 167 N.H. 276, 282 (2015). The State cites both the State
and Federal Constitutions in challenging the trial court’s ruling that the
defendant had standing. We have held that the State Constitution is often
more protective of individual rights than the Federal Constitution with respect
to unreasonable searches and seizures. See, e.g., State v. Settle, 122 N.H. 214,
218 (1982). We first address the State’s argument 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 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 19 may be
subject to exclusion from evidence in a criminal trial.” State v. Davis, 161 N.H.
292, 295 (2010).

       “A preliminary inquiry which any court must make before it will consider
a motion to suppress evidence based upon an unreasonable search or seizure
is whether the individual filing the motion has standing.” State v. Sidebotham,
124 N.H. 682, 686 (1984). “Standing confers upon an individual the right to
challenge unreasonable government conduct.” Id. “The threshold question as
to the determination of a party’s standing to challenge the introduction of
evidence by means of a motion to suppress is whether any rights of the moving
party were violated.” State v. Gubitosi, 152 N.H. 673, 680 (2005). A defendant
may have standing based upon: (1) being charged with a crime in which
possession of an item or thing is an element, which confers automatic
standing; or (2) having a legitimate expectation of privacy in the place searched
or the item seized. Id. To claim standing based upon a legitimate expectation


 We note that the United States Supreme Court has rejected the use of the traditional rubric of
standing in search and seizure cases, and, instead, applies substantive Fourth Amendment
doctrine to determine whether a defendant can challenge a search. See, e.g., Minnesota v. Carter,
525 U.S. 83, 87-88 (1998); Rakas v. Illinois, 439 U.S. 128, 138-40 (1978). In other words, the
Court asks “whether the challenged search or seizure . . . infringed an interest of the defendant
which the Fourth Amendment was designed to protect.” Rakas, 439 U.S. at 140. However, given
that the parties in this case frame their arguments in terms of whether the defendant has
standing, the trial court analyzed standing, and because the concept of standing is “theoretically
separate, but invariably intertwined” with a defendant’s rights under the Fourth Amendment, id.
at 139, and Part I, Article 19, we employ our traditional standing analysis here in regard to the
defendant’s claims under the State Constitution.


                                                3
of privacy, a defendant must establish both: (1) a subjective expectation of
privacy in the place searched or the item seized; and (2) that his subjective
expectation is legitimate because it is “one that society is prepared to recognize
as reasonable.” State v. Goss, 150 N.H. 46, 49 (2003) (quotations omitted).
Because neither party argues that the defendant has standing based upon a
legitimate expectation of privacy in the item seized, we address only the
question of whether the defendant has a legitimate expectation of privacy in the
place searched — the apartment.

      The State argues that, “[w]hether or not [the] defendant had a subjective
expectation of privacy” in the apartment, “such an expectation cannot be
deemed objectively reasonable” because, at the time of the search, the
defendant was present with A.N. in violation of a condition of the bail order.
Therefore, the State asserts, the defendant’s wrongful presence in the
apartment at the time of the search deprives him of standing. See, e.g., State
v. Jacobs, 2 P.3d 974, 978 (Wash. Ct. App. 2000) (“[S]ociety does not recognize
as reasonable the privacy rights of a defendant whose presence at the scene of
the search is ‘wrongful.’”). The defendant counters that, despite his presence
in the apartment with A.N. at the time of the search in violation of the no-
contact order, he had standing because he continued to have a legitimate
expectation of privacy in his apartment.

       “[T]he protections provided by Part I, Article 19 are never in sharper
focus than when viewed in the protection of one’s dwelling.” State v. Sawyer,
145 N.H. 704, 706 (2001) (quotation omitted). Here, prior to the issuance of
the bail order, the Ashland apartment was the defendant’s home, in which he
had a heightened expectation of privacy. See State v. Diaz, 134 N.H. 662, 666
(1991) (observing that “significant additional privacy interests . . . arise at the
threshold of the living quarters,” including the defendant’s rented motel room).
There is no dispute that, prior to the issuance of the bail order, the defendant
had a constitutionally protected expectation of privacy in his home. See
Mancusi v. DeForte, 392 U.S. 364, 367 (1968) (recognizing that the Fourth
Amendment “does not shield only those who have title to the searched
premises”); 6 W. LaFave, Search and Seizure: A Treatise on the Fourth
Amendment § 11.3(a), at 167-70 (5th ed. 2012) (explaining that present
possessory interest of tenants, like that of owner-occupant, creates expectation
of privacy sufficient to claim standing). Accordingly, the narrow question
before us is whether the defendant’s presence in the apartment with A.N. at the
time of the search — in violation of the bail order — vitiated his pre-existing
legitimate expectation of privacy such that he did not have standing to
challenge the search.

      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


                                        4
understanding regarding what deserves protection from government invasion.”
United States v. Alabi, 943 F. Supp. 2d 1201, 1247 (D.N.M. 2013). No single
factor determines whether an individual may claim a legitimate expectation of
privacy in a particular place. See Oliver v. United States, 466 U.S. 170, 177-78
(1984) (observing that, when determining whether a search infringes upon
individual privacy, the Supreme Court has considered many factors, including
“our societal understanding that certain areas deserve the most scrupulous
protection from government invasion”). Rather, “[t]he determination of whether
a person has a legitimate expectation of privacy with respect to a certain area
[must be] made on a case-by-case basis, considering the unique facts of each
particular situation.” State v. Tyler, 867 N.W.2d 136, 168 (Iowa 2015)
(quotations omitted); see Settle, 122 N.H. at 219 (observing that the legitimate
expectation of privacy test requires courts to “draw fine distinctions” between
similar factual circumstances). We conclude that the defendant did not have
standing to challenge the search because he was present in the apartment at
the time of the search in violation of the bail order, and, under these
circumstances, any subjective expectation that the defendant may have had in
the apartment is not one that society is prepared to recognize as reasonable.

       We find persuasive two cases relied upon by the State in which courts
held that, because a defendant’s presence in a home was prohibited by law, his
expectation of privacy was not one that society is prepared to recognize as
reasonable. In Commonwealth v. Morrison, 710 N.E.2d 584 (Mass. 1999), the
defendant was arrested for violating a protective order after he was found in the
residence of the woman whom he had been ordered not to contact based upon
“a history of domestic problems.” Morrison, 710 N.E.2d at 585-86. The
Supreme Judicial Court of Massachusetts concluded that, although the
defendant, as an overnight guest, had a privacy interest in the woman’s home,
the defendant did not have standing to challenge the warrantless entry that led
to his arrest because he “was the subject of a protective order forbidding his
presence on the very premises in which he claims that society should recognize
his right to quiet enjoyment.” Id. at 586. The court observed:

      It is simply nonsense to say that society is prepared to recognize
      his right to be where society by the process of the law has ordered
      him not to be. . . . What deprives this defendant of a reasonable
      expectation of privacy is not his status as a law violator in general,
      but the fact that he was under a specific and valid legal order not
      to be in this particular place.

Id.

       Similarly, in State v. Stephenson, 760 N.W.2d 22 (Minn. Ct. App. 2009),
the defendant sought to suppress evidence of his presence at his home in
violation of a protective order that prohibited him from “enter[ing] the family
residence” for a two-year period and specifically stated that the defendant was


                                        5
“forbidden to enter or stay at [the] residence for any reason, even if invited to
do so.” Stephenson, 760 N.W.2d at 23 (quotation omitted). The court affirmed
the denial of the defendant’s motion to suppress, observing that, because the
defendant had “no right to be at the residence,” the court was “not prepared to
find that society would legitimize his unlawful presence in the residence by
recognizing a privacy right.” Id. at 26-27.

      The defendant argues that Morrison and Stephenson are distinguishable
because the protective order in each case categorically prohibited the
defendant’s presence in the place searched without regard to the presence of
the protected person. In contrast, here, he argues, “if the order meant to bar
[the defendant] from entering the apartment regardless of whether, at the
relevant time, [A.N.] is or might be in it, it would say so explicitly.” This,
however, is a distinction without a difference.

       The bail order in this case provided that the defendant “shall not have
any contact with [A.N.], whether in person or through . . . any other method,”
prohibited the defendant from “coming within 100 feet” of A.N., ordered the
defendant “not to interfere with [A.N.] at [her] residence,” and required him to
live in Ellsworth. Because A.N. lived in the Ashland apartment, the defendant’s
presence in or near the apartment was likely to bring him into contact with
A.N., or likely to result in “interference” with her at her residence. Thus, we
see no meaningful difference between the bail order in this case and the orders
issued in Morrison and Stephenson.

       Moreover, as in both Morrison and Stephenson, the “evidence seized”
here was the defendant himself, not tangible evidence of another crime
unrelated to the conditions of the bail order. See Morrison, 710 N.E.2d at 585-
86 (warrantless entry into apartment of third-party resulted in defendant’s
arrest for violation of protective order); Stephenson, 760 N.W.2d at 23 (motion
to suppress “evidence of [defendant’s] presence at his home”). Moreover, the
manner in which this “evidence” would be used at trial would involve only the
testimony of the arresting officers that they observed the defendant in the
apartment. Cf. United States v. Ceccolini, 435 U.S. 268, 280 (1978) (“[T]he
exclusionary rule should be invoked with much greater reluctance where the
claim is based on a causal relationship between a constitutional violation and
the discovery of a live witness than when a similar claim is advanced to
support suppression of an inanimate object.”). We find this factor to be
significant. Had the search in this case been for evidence of a crime unrelated
to the defendant’s violation of the bail order, the defendant may have had a
legitimate privacy interest in the items seized notwithstanding the terms of the
bail order. Here, however, the terms of the bail order directly impact the
defendant’s privacy interest in his “mere presence” in the apartment. As the
Morrison court observed, “[w]hat deprives this defendant of a reasonable
expectation of privacy is not his status as a law violator in general, but the fact
that he was under a specific and valid legal order not to be in this particular


                                         6
place.” Morrison, 710 N.E.2d at 586. “It seems incredible that the defendant
could maintain that he had a reasonable expectation of privacy” as to his
presence “in the home of a person with whom he had been ordered by the court
to have no contact.” United States v. Dye, No. 1:10CR221, 2011 WL 1595255,
at *5 (N.D. Ohio Apr. 27, 2011).

      Our conclusion is consonant with “the public policy of this state to
prevent and deter domestic violence” and to provide victims of domestic
violence with “immediate and effective police protection and judicial relief.”
State v. Craig, 167 N.H. 361, 373 (2015) (quotations omitted); cf. RSA 173-
B:10, II (2014) (“[A]n arrest for abuse may be made without a warrant upon
probable cause, whether or not the abuse is committed in the presence of the
peace officer.”). Were we to recognize the defendant’s privacy interest in the
apartment as legitimate despite his violation of a court order fashioned to
protect A.N. from the defendant, our holding would jeopardize the safety of
domestic violence victims by deterring the police from entering a home without
a warrant, even when there is probable cause to believe violence may be
imminent. Given society’s interest in preventing and deterring domestic
violence and providing effective police protection, we are not prepared under
these circumstances to recognize the defendant’s privacy interest in the
apartment as reasonable.

       The defendant argues that our holding that he does not have standing to
challenge the search under these circumstances would “lead to absurd
results,” and means that he would lack standing to challenge the search of any
place where he could not lawfully be present. We disagree. We need not decide
whether there are other circumstances under which the defendant would have
standing to challenge a search of the apartment, notwithstanding his violation
of the bail order. There may well be circumstances under which society would
be prepared to recognize the defendant’s expectation of privacy in the
apartment as reasonable.

       Accordingly, because of the unique circumstances of this case — where
the defendant was present in the apartment with A.N. in violation of a court
order — the defendant did not have a legitimate expectation of privacy in the
apartment at the time of the search. Therefore, he did not have standing under
Part I, Article 19.

      We turn now to the defendant’s arguments under the Fourth
Amendment. “[T]o claim the protection of the Fourth Amendment, a defendant
must demonstrate that he personally has an expectation of privacy in the place
searched, and that his expectation is reasonable; i.e., one that has a source
outside of the Fourth Amendment, either by reference to concepts of real or
personal property law or to understandings that are recognized and permitted
by society.” Minnesota v. Carter, 525 U.S. 83, 88 (1998) (quotation omitted).
This test is the same as that applied to determine whether a search violated a


                                      7
defendant’s rights under Part I, Article 19. See Goss, 150 N.H. at 48-49
(adopting the federal expectation of privacy analysis under Part I, Article 19).
Accordingly, because we have concluded that the defendant did not have a
legitimate expectation of privacy under Part I, Article 19, and because we have
recognized that the Federal Constitution affords no greater protection as to a
defendant’s expectation of privacy, see Gubitosi, 152 N.H. at 680; 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.

       Nonetheless, the defendant argues that, “even setting aside the legitimate
expectation of privacy analysis,” we should hold that the United States
Supreme Court’s decision in Florida v. Jardines, 133 S. Ct. 1409 (2013),
provides him with additional protection. In that case, the Court concluded
that, regardless of whether the defendant had a legitimate expectation of
privacy in the front porch of his home, law enforcement officers’ use of a drug-
sniffing dog on the porch was a trespassory invasion of the curtilage of his
home, which constituted a “search” for Fourth Amendment purposes.
Jardines, 133 S. Ct. at 1414-18. Thus, under Jardines, a search occurs
whenever the government physically intrudes into a constitutionally protected
area. Id. at 1414. The defendant asserts that “[r]egardless of whether [he] had
a right to be in the apartment himself, there is no evidence that the bail order
deprived [him] of his right to exclude outsiders from the apartment,” and,
therefore, he “had standing under Jardines to challenge” the physical intrusion
by the police into the apartment. We disagree.

      We are not persuaded that, given the specific circumstances of this case,
the Jardines trespass theory supports the defendant’s standing argument. The
search did not violate the defendant’s constitutional rights as recognized in
Jardines for largely the same reasons as those articulated in our analysis of the
defendant’s expectation of privacy: just as the bail order eliminated any
reasonable expectation of privacy that the defendant might have had in the
apartment at the time of the search, it also removed, at least temporarily, any
property interest that might have allowed him to challenge the search. Cf. id.
at 1419 (Kagan, J., concurring) (“It is not surprising that in a case involving a
search of a home, property concepts and privacy concepts should . . . align.
The law of property naturally enough influences our shared social expectations
of what places should be free from governmental incursions.” (quotations and
brackets omitted)).

       “A common idiom describes property as a ‘bundle of sticks’ — a collection
of individual rights which, in certain combinations, constitute property.”
United States v. Craft, 535 U.S. 274, 278 (2002). One of these rights is the
right to exclude others. Rakas v. Illinois, 439 U.S. 128, 143 n.12 (1978). As
we noted earlier, prior to the issuance of the bail order, the apartment was the
defendant’s home. However, the bail order prohibited the defendant from being
present in the apartment with A.N. and required him to live in Ellsworth.


                                        8
Thus, just as this order affected his expectation of privacy in the apartment, it
also temporarily removed those “sticks” of his property interest in the
apartment that would otherwise give rise to his right to exclude others. Cf.
United States v. Owen, 65 F. Supp. 3d 1273, 1281 (N.D. Okla. 2014) (“The
trespass doctrine enunciated in . . . Jardines requires an existing
constitutional property interest.”). Accordingly, because the defendant was
prohibited from being present in the apartment with A.N., at the time of the
search he lacked the property interest necessary to invoke the protections of
the trespass theory enunciated in Jardines. Cf. id. at 1285 (observing that,
because defendant “did not claim or obviously possess an interest in the
firearm at the time of the seizure,” it was “unclear whether the trespass
doctrine [in Jardines] [was] applicable” (emphasis added)). Thus, we conclude
that, due to the restrictions in the bail order, just as the defendant cannot
establish a legitimate expectation of privacy in the apartment sufficient to claim
standing, he did not have a sufficient property interest at the time of the search
to avail himself of the trespass theory recognized in Jardines.

                                                  Reversed and remanded.

      DALIANIS, C.J., and HICKS, CONBOY, and LYNN, JJ., concurred.




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