State v. Pinkham , 141 N.H. 188 ( 1996 )

Johnson, J.

Following a bench trial, the Derry District Court (Warhall, J.) found the defendant, Edward Pinkham, guilty of driving under the influence of intoxicating liquor. See RSA 265:82 (Supp. 1993) (amended 1995). The defendant appeals, arguing that the court erred in denying his motion to suppress evidence that a police officer obtained when he entered the defendant’s driveway. We affirm.

On the evening of July 21, 1994, Officer Miles Sinclair received a citizen complaint about a possible drunk driver. The complaint contained a description of the driver’s car, including its license plate number. The officer obtained the defendant’s address from the car’s registration listing and drove to the defendant’s home. In the driveway he saw a car matching the description given. The car’s headlights and taillights were on but the engine was not running. The defendant was sitting in the driver’s seat. Officer Sinclair parked his cruiser and walked up the driveway to the car. The car’s grill was still warm to the touch. After a brief exchange, he asked the defendant to exit the vehicle and administered several field sobriety tests. Based on the results, he arrested the defendant.

The sole issue we need address on appeal is whether part I, article 19 of the New Hampshire Constitution or the fourth amendment to the United States Constitution applies to Officer Sinclair’s warrant-less entry of the defendant’s driveway. The defendant argues that the entry was unconstitutional because the officer lacked probable cause to believe a crime had been committed and no exceptions to the warrant requirements applied. We hold that the entry by the officer did not violate the defendant’s constitutional protections.

We decide this case based on our interpretation of the New Hampshire Constitution, see State v. Ball, 124 N.H. 226, 231, 471 A.2d 347, 350 (1983), using federal law only as a guide to our analysis, see State v. Maya, 126 N.H. 590, 594, 493 A.2d 1139, 1143 (1985). Because the Federal Constitution provides no greater protection to the defendant than the State Constitution, see United States v. Magana, 512 F.2d 1169, 1170-71 (9th Cir.), cert. denied, 423 U.S. 826 (1975), we conduct no separate federal analysis. See Stale v. Bernaby, 139 N.H. 420, 422, 653 A.2d 1124, 1126 (1995).

Part I, article 19 states: “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.” “Unless a warrantless search [or seizure] falls within one of the few specifically established and well-delineated exceptions, it is per se unreasonable.” Ball, 124 N.H. at 234, 471 A.2d at 852. We have not yet adopted the reasonable expectation of privacy test, see Katz v. United States, 389 U.S. 847, 361 (1967) (Harlan, J., concurring), to interpret part I, article 19. State v. Westover, 140 N.H. 375, 379, 666 A.2d 1344, 1348 (1995). Although the State urges us to do so now, we decline the invitation. The parties have not “address[ed] the[] interpretive alternatives here, where neither side has briefed the background of article 19 and the history of its application as bearing on the extent to which Katz may be a sound guide to our own constitution.” State v. Valenzuela, 130 N.H. 175, 181, 536 A.2d 1252, 1256 (1987), cert. denied, 485 U.S. 1008 (1988). Moreover, application of the reasonable expectation of privacy test would not alter the outcome of this case. See Magana, 512 F.2d at 1170-71; State v. Cloutier, 544 A.2d 1277, 1279-80 (Me. 1988), abrogated on other grounds by Horton v. California, 496 U.S. 128 (1990). Accordingly, we postpone consideration of the reasonable expectation of privacy .test until another day.

Our focus, then, is on the specific items protected by article 19 from unreasonable searches and seizures: a subject’s person, houses, papers, and possessions. The defendant asserts that his driveway is part of his home’s curtilage. He thus invokes the protection given to a subject’s home, traditionally interpreted to include certain surrounding property. Cf. Oliver v. United States, 466 U.S. 170, 180 (1984) (fourth amendment analysis).

The concept of curtilage in search and seizure law derives from the English common law of burglary. See United States v. Dunn, 480 U.S. 294, 300 (1987). According to Blackstone, an unauthorized entry into certain buildings surrounding the dwelling house was as violative of the law as an intrusion into the house itself. W. Blackstone, Commentaries on the Laws of England 960 (G. Chase ed., 4th ed. 1914). The United States Supreme Court has relied on Blackstone’s rule to establish a comparable principle under the fourth amendment: certain property surrounding a home deserves the same protection against unreasonable searches and seizures as the home itself. Dunn, 480 U.S. at 300; Oliver, 466 U.S. at 180; see Hester v. United States, 265 U.S. 57, 59 (1924). This protection does not apply to open fields; that is, property outside the curtilage. Oliver, 466 U.S. at 180-81 (no expectation of privacy in open fields under fourth amendment analysis); cf. State v. Finder, 128 N.H. 66, 72-74, 514 A.2d 1241, 1244-46 (1986) (rejecting notion that “possessions” in part I, article 19 includes open fields).

The boundaries and contents of the curtilage are not easily described. Curtilage questions are fact-sensitive, and courts resolve them by examining the nature of the area at issue and then asking whether such an area is as deserving of protection from governmental intrusion as the house. We have stated: “The curtilage includes those outbuildings which are directly and intimately connected with the habitation and in proximity thereto and the land or grounds surrounding the dwelling which are necessary and convenient and habitually used for family purposes and carrying on domestic employment.” State v. Hanson, 113 N.H. 689, 690-91, 313 A.2d 730, 732 (1973) (emphasis added; citation omitted); see also Finder, 128 N.H. at 74, 514 A.2d at 1246. The Criminal Code defines curtilage similarly for purposes of establishing the amount of force one may use in self-defense. RSA 627:4, :9, I (1986). A driveway leading directly to a house clearly falls within the scope of “land or grounds surrounding the dwelling which are necessary and convenient and habitually used for family purposes and carrying on domestic employment.” Hanson, 113 N.H. at 690-91, 313 A.2d at 732. As such, the driveway is part of the curtilage of the home.

Although areas within the curtilage are traditionally accorded constitutional protection, we hold that the driveway in this case was not protected from police entry and no warrant was required. The driveway, in this case, was of a semi-private nature. Cf. Magana, 512 F.2d 1170-71 (fourth amendment analysis); Cloutier, 544 A.2d at 1279-80 (same); State v. Ryea, 571 A.2d 674, 675 (Vt. 1990) (same). The driveway, like a walkway, is an access route to the house typically used by neighbors, mail carriers, salespersons, and other visiting members of the public. See 1 W. Lafave, Search and Seizure: A Treatise on the Fourth Amendment § 2.3(f), at 505-08 (3d ed. 1996) (citing cases). So long as these people have a legitimate reason for entering the property, they have an implied invitation to use the driveway. Cf. Magana, 512 F.2d at 1171 (fourth amendment analysis); Cloutier, 544 A.2d at 1279-80 (same); Ryea, 571 A.2d at 675 (same); 1 LaFave, supra (same). Police officers have the same right to enter the driveway on legitimate business as other members of the public. Officer Sinclair’s investigation of the citizen complaint exemplified legitimate police business. Cf. Cloutier, 544 A.2d at 1280 (fourth amendment analysis); see 1 LaFave, supra (same).

We recognize that some driveways, or some portions thereof, may not, in fact, be semi-private areas. Nothing in the record, however, supports such a finding in this case. From the road, Officer Sinclair saw the car parked in the defendant’s driveway and was able to see that a person was sitting in the driver’s seat. Thus, it appears that no fences or shrubbery nor the house itself blocked that portion of the driveway where the defendant’s vehicle was parked from the view of passersby. Moreover, there was no evidence at trial that the driveway was blocked by a gate or posted with “No Trespassing” signs. Cf. Magana, 512 F.2d at 1171 (fourth amendment analysis); Ryea, 571 A.2d at 675 (same). Although the defendant’s car was only ten to fifteen feet from his house, our review of the record persuades us that the defendant’s driveway was a semi-private area and, as such, the defendant did not have a right under part I, article 19 to require that the police obtain a warrant before entering his driveway and conducting an investigation.

Affirmed.

BRODERICK, J., dissented; the others concurred.