State of New Hampshire v. Christina Fay ( 2020 )

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THE SUPREME COURT OF NEW HAMPSHIRE
___________________________
Carroll
No. 2018-0402
THE STATE OF NEW HAMPSHIRE
v.
CHRISTINA FAY
Argued: February 12, 2020
Opinion Issued: December 2, 2020
Gordon J. MacDonald, attorney general (Susan P. McGinnis, senior
assistant attorney general, on the brief and orally), for the State.
Lothstein Guerriero, PLLC, of Concord (Theodore Lothstein on the brief
and orally), for the defendant.
HANTZ MARCONI, J. The defendant, Christina Fay, appeals her
convictions on seventeen counts of cruelty to animals. See RSA 644:8 (2016)
(amended 2018, 2019). The Wolfeboro Police Department executed a search
warrant at the defendant’s residence in June 2017 with the aid of the Humane
Society of the United States (HSUS) and others, pursuant to which over seventy
Great Danes were seized. The defendant argues that the Superior Court
(Ignatius, J.) erred by denying her motion to suppress the evidence seized as a
result of that search. We affirm.
I
The following relevant facts are drawn from the trial court’s order on the
defendant’s suppression motion and the suppression record. See State v.
Pseudae, 154 N.H. 196, 200 (2006). In 2017, the Wolfeboro Police Department
was conducting an investigation of the defendant and her residence in
Wolfeboro. During this time, two of the defendant’s former employees provided
information to the police. One employee informed the police that there were
seventy-eight dogs living at the residence. She stated that the dogs rarely went
outside and were not housebroken, and that the residence was covered in
animal waste. She reported that the dogs only received water when they were
let outside, but that it was not uncommon for the dogs to remain inside for an
entire weekend. She also stated that the dogs were fed spoiled meat, and that
many vomited often, were underweight, and had liquid stool. In addition, the
employee stated that there were riding crops located throughout the house to
break up fights among the dogs, and that one dog would bite anyone other
than the defendant who got near it.
The defendant’s other employee told the police that there was a thick
layer of urine and feces covering the floors throughout the residence, and that
there were maggots and bugs covering the floor where some of the dogs were
living. This employee reported that the dogs were fed a diet of raw chicken that
was prepared in unsanitary conditions, and that there were maggots in a box of
chicken in the refrigerator. In addition to their eyewitness accounts, each
employee provided the police with photographs of the inside of the residence.
The photographs depicted “dogs with injuries,” raw chicken meat, dog kennels
in various parts of the house and garage, the floor covered in a brown
substance resembling dog feces, and maggots in a refrigerator and on the
ground.
Officer Strauch of the Wolfeboro Police Department, who led the
department’s investigation, visited the defendant’s property in May to serve a
civil dog nuisance summons. While there, Strauch observed a large number of
dogs barking inside the residence, as well as strong odors of feces, urine, and
“something rotting” coming from an open door along the side of the building.
Strauch also saw several large dogs in kennels, the floors of which were “thick
with feces.” Veterinarians who examined dogs that had been rehomed by the
defendant informed the police that the dogs were underweight and suffered
from various diseases.
Strauch applied for and obtained a search warrant for the defendant’s
residence. However, the police department did not have the resources to
transport, or provide shelter for, the roughly seventy-eight dogs they expected
to recover from the residence. Strauch also testified that even if the dogs could
be spread out among all of the animal shelters in the state, there was a risk
that the dogs would spread disease to other animals in the shelters.
2
Conversely, HSUS had the resources to handle large-scale animal seizures,
including access to large trailers with air conditioning to transport the dogs,
and could provide them with adequate housing. Thus, Strauch asked the
organization to assist with the execution of the search warrant. Strauch did
not include in his affidavit supporting the search warrant’s issuance that HSUS
would be assisting the police, and the warrant itself did not explicitly state that
HSUS was permitted to assist in its execution.
Strauch, along with every member of the police department, the
Wolfeboro Fire Department, members of the ambulance team, employees from
other town agencies, and staff from HSUS and the Pope Memorial SPCA,
executed the warrant on June 16, 2017. Even with the number of persons
assisting, Strauch testified that it took the entire day to execute the warrant.
HSUS assisted with seizing and inventorying all of the dogs, and with evidence
collection. Specifically, HSUS kept track of each dog, took photographs of
where the dogs were kept, recorded videos, made a map of the rooms,
photographed the dogs exiting the residence, and placed them in crates and
into HSUS trailers for transportation. HSUS took possession of the dogs after
they were removed from the house, providing them with housing and food at
the organization’s expense. HSUS later publicized its involvement in the
search, as well as photographs from the search, in connection with fundraising
efforts.
The defendant moved to suppress the evidence seized as a result of the
search, arguing, among other things, that HSUS’s involvement violated her
right to be free from unreasonable searches and seizures. After a hearing, the
trial court denied the defendant’s motion. The defendant was subsequently
brought to trial on eighteen counts of cruelty to animals.1 See RSA 644:8, III.
The State entered a nolle prosequi on one count during trial, and a jury
convicted the defendant on the remaining seventeen counts. This appeal
followed.
II
On appeal, the defendant argues that the trial court erred in denying her
motion to suppress. 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. Folds, 172 N.H. 513, 516
(2019). Our review of the trial court’s legal conclusions, however, is de novo.
Id. The defendant raises arguments under both the State and Federal
Constitutions. We first address her arguments under the State Constitution
and rely upon federal law only to aid our analysis. State v. Ball, 124 N.H. 226,
231-33 (1983).
1 The dogs remained in HSUS’s care throughout the defendant’s trial.
3
The defendant contends that the trial court erred in denying her motion
to suppress because the State violated two of her constitutional rights: her
right to be free from unreasonable searches and seizures and her right to
privacy. We begin with the defendant’s argument regarding her right to
privacy.
We understand the defendant to ground her right-to-privacy argument in
the recently enacted amendment to our State Constitution, Part I, Article 2-b.
N.H. CONST. pt. I, art. 2-b (effective December 5, 2018). To the extent the
defendant argues that, irrespective of the enactment of Part I, Article 2-b, her
right to privacy, under the State and Federal Constitutions, was violated by,
inter alia, HSUS’s involvement in executing the search of her home and its
subsequent “media and fundraising campaign,” she failed to raise any right-to-
privacy argument to the trial court, and we decline to consider any such
arguments on appeal. See State v. Blackmer, 149 N.H. 47, 48 (2003).
Accordingly, we limit our review of her right-to-privacy argument to Part I,
Article 2-b of the State Constitution.
The defendant argues that Part I, Article 2-b, which was enacted after the
relevant events in her case, applies to her case retroactively. We have not had
occasion to decide the proper means of determining whether a constitutional
amendment has retroactive effect. Cf., e.g., State v. Brawley, 171 N.H. 333,
341 (2018) (analyzing retroactivity of newly enacted legislation); State v.
Tierney, 150 N.H. 339, 342-45 (2003) (analyzing retroactivity of new
constitutional rules announced by judicial decision). The defendant asserts
that “[t]hree considerations compel the conclusion that [Part I,] Article 2-b
applies to this case.”
The first consideration she raises is, “The language of the amendment
supports a finding of retroactive application.” Part I, Article 2-b states, “An
individual’s right to live free from governmental intrusion in private or personal
information is natural, essential, and inherent.” N.H. CONST. pt. I, art. 2-b.
The defendant acknowledges that “the amendment does not expressly address
the issue of retroactive application,” but points to the language “natural,
essential, and inherent” as indicative of “[t]he choice by the citizens to
characterize the right to privacy as pre-existing rather than newly-created.”
(Citing Burrows v. City of Keene, 121 N.H. 590, 596 (1981) (explaining that the
phrase “natural, essential, and inherent” in Part I, Article 2 demonstrates that
the rights articulated “are not bestowed by that constitutional provision but
rather are recognized to be among the natural and inherent rights of all
humankind”)). Consequently, she argues, the use of the phrase “natural,
essential, and inherent” also “manifests the[] intent to apply the amendment
retroactively.”
The general rule employed by a majority of jurisdictions presumes that
constitutional amendments operate prospectively unless the intent to apply the
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amendment retroactively is clear. See, e.g., Evans v. Utah, 21 F. Supp. 3d
1192, 1204-05 (D.Utah 2014) (applying Utah law); State v. Merritt, 467 S.W.3d
808, 812 (Mo. 2015) (per curiam); People v. Dean, 677 N.E.2d 947, 952 (Ill.
1997); Kneip v. Herseth, 214 N.W.2d 93, 101-02 (S.D. 1974); see also 16 C.J.S.
Constitutional Law § 116, Westlaw (database updated Sept. 2020); 16 Am. Jur.
2d Constitutional Law § 50, Westlaw (database updated Nov. 2020). “The
presumption against retroactive application of changes in the law is deeply
rooted in principles of fairness and due process.” Evans, 21 F. Supp. 3d at
1204; see, e.g., Shreveport v. Cole, 129 U.S. 36, 42-43 (1889). “[T]he ‘principle
that the legal effect of conduct should ordinarily be assessed under the law
that existed when the conduct took place has timeless and universal appeal.’”
Landgraf v. USI Film Products, 511 U.S. 244, 265 (1994) (quoting Kaiser
Aluminum & Chemical Corp. v. Bonjorno, 494 U.S. 827, 855 (1990) (Scalia, J.,
concurring)).
Presuming that constitutional amendments apply prospectively is
abundantly justifiable, and we hereby adopt such a presumption. Our
presumption that constitutional amendments apply prospectively may be
rebutted by the clear manifestation of intent to apply the amendment
retroactively.
Turning to Part I, Article 2-b, we conclude that the phrase “natural,
essential, and inherent” is ambiguous, at best, as to whether it manifests an
intent to have the amendment apply retroactively.2 See N.H. CONST. pt. I, art.
2-b. This ambiguity is insufficient to overcome the presumption of prospective
application. See, e.g., Evans, 21 F. Supp. 3d at 1205 (“[T]he use of present and
future tenses in [a constitutional amendment or statute] does not provide a
clear and unavoidable implication that they operate on events already past.”
(quotation omitted)). See generally 16 Am. Jur. 2d Constitutional Law § 50
(“[T]he general rule is that prospective effect alone is given to provisions of state
constitutions, unless a contrary intention is clearly expressed. . . . In fact,
constitutional amendments apply only prospectively in all but the most
extraordinary circumstances.” (footnotes omitted)). We are, thus, unpersuaded
that the defendant’s first consideration compels the application of Part I, Article
2-b to her case.
The second consideration raised by the defendant is that “under a long-
standing principle recognized under both state and federal constitutional law,
2 We are not persuaded by the defendant’s reasoning that, because the phrase “natural, essential,
and inherent” in Part I, Article 2-b demonstrates an intent “to characterize the right to privacy as
pre-existing rather than newly-created,” it also demonstrates an intent to apply the amendment
retroactively. Even assuming an amendment to the State Constitution explicitly created a new
right, it does not follow that the amendment could not also be deemed to overcome the
presumption of prospective application through, for example, “an express retroactivity provision in
the actual language of the amendment or extrinsic sources that leave no doubt that such was the
voters’ manifest intent.” 16 Am. Jur. 2d Constitutional Law § 50.
5
new constitutional rules apply retroactively to all case[s] pending and on direct
review when the new rule is announced.” Because this case was on direct
review when Part I, Article 2-b was enacted, the defendant reasons that Article
2-b applies to her case. The support for this argument is limited to citations to
two cases: Teague v. Lane, 489 U.S. 288 (1989), and our decision in Tierney.
However, neither case analyzed whether a constitutional amendment has
retroactive effect. See Teague, 489 U.S. at 294-96 (analyzing, for cases on
collateral review, whether the new constitutional rule articulating the
evidentiary showing necessary to make out a prima facie case of racial
discrimination based upon the manner in which the prosecution uses
peremptory challenges, as announced in Batson v. Kentucky, 476 U.S. 79, 96-
98 (1986), had retroactive effect); Tierney, 150 N.H. at 342-45 (analyzing, for
cases on direct review, whether the new constitutional rule articulating “the
absolute right to sever unrelated cases,” as announced in State v. Ramos, 149
N.H. 118, 127 (2003), had retroactive effect). Retroactivity, as contemplated in
Teague and Tierney, was limited to cases pending on direct appeal, the status
of which was relevant because the constitutional rule at issue had been
announced by judicial decision. See Tierney, 150 N.H. at 343-44 (“It hardly
comports with the ideal of administration of justice with an even hand, when
one chance beneficiary—the lucky individual whose case was chosen as the
occasion for announcing the new principle—enjoys retroactive application,
while others similarly situated have their claims adjudicated under the old
doctrine.” (brackets omitted) (quoting Griffith v. Kentucky, 479 U.S. 314, 327-
28 (1987)); see also Teague, 489 U.S. at 295-96 (“Petitioner’s conviction became
final 2½ years prior to Batson, thus depriving petitioner of any benefit from the
rule announced in that case.”).
However, whether a defendant’s case is pending on appeal has no
bearing on whether an amendment to the State Constitution was intended to
apply retroactively. Accord Merritt, 467 S.W.3d at 812 (rejecting a similar
argument — that a constitutional amendment, enacted when defendant’s case
was not yet final, applied retroactively — explaining that defendant’s reliance
on Griffith was misplaced because it only governed the retroactivity of “newly
stated procedural rules of federal constitutional law”). We are, thus,
unpersuaded that the defendant’s second consideration compels the
application of Part I, Article 2-b to her case.
The third consideration raised by the defendant is that “consideration of
this new enactment by the people of our State is unavoidable in determining
the contours and limits of what places, effects, and personal information the
people reasonably expect to remain private,” i.e., a defendant’s reasonable
expectation of privacy under Part I, Article 19. Even assuming without
deciding that we agree that analyzing whether a defendant had a reasonable
expectation of privacy under Part I, Article 19 necessitates an analysis of Part I,
Article 2-b, it is undisputed that the defendant’s case does not implicate an
examination of her reasonable expectation of privacy. See State v. Schulz, 164
6
N.H. 217, 225 (2012) (“[T]he reasonableness of a search conducted pursuant to
a warrant is a distinct constitutional inquiry from the question of whether a
warrant is required in the first place.”); see also, e.g., State v. Orde, 161 N.H.
260, 267 (2010) (reasoning that “[b]ecause the defendant had a reasonable
expectation of privacy in his deck, a warrant or an exception to the warrant
requirement was needed for the officer to lawfully enter the defendant’s deck”).
Furthermore, again assuming without deciding that, looking forward, an
analysis of a defendant’s reasonable expectation of privacy under Part I, Article
19 will necessitate the contemplation of Part I, Article 2-b, the existence of
such a prospective implication does not speak to whether Part I, Article 2-b
was intended to apply retroactively. See, e.g., Kneip, 214 N.W.2d at 101 (“It is
the general rule, and settled law in South Dakota, that a constitutional
provision should not be construed to have retroactive effect unless such
intention is clearly expressed.”); see also Landgraf, 511 U.S. at 265. We are,
thus, unpersuaded that the defendant’s third consideration compels the
application of Part I, Article 2-b to her case.
Ultimately, we are not convinced by the defendant’s arguments that Part
I, Article 2-b applies retroactively to her case. Therefore, we need not address
her remaining arguments pertaining to Part I, Article 2-b. We conclude that
the defendant has not demonstrated that her right to privacy was violated.
III
We now turn to the defendant’s argument that the State violated her
right to be free from unreasonable searches and seizures. Part I, Article 19 of
the New Hampshire Constitution protects all people, their papers, their
possessions, and their homes from unreasonable searches and seizures. Folds,
172 N.H. at 516-17; see N.H. CONST. pt. I, art. 19. There are several
constitutional requirements for the issuance and execution of search warrants.
See Folds, 172 N.H. at 520; Schulz, 164 N.H. at 221. For example, search
warrants “must be sufficiently particular and must be supported by a finding of
probable cause.” Schulz, 164 N.H. at 221; see Folds, 172 N.H. at 520; Orde,
161 N.H. at 269. In addition, even if a warrant satisfies the particularity and
probable cause requirements, “the manner of its execution must in other
respects be reasonable.” Schulz, 164 N.H. at 221; see also United States v.
Ramirez, 523 U.S. 65, 71 (1998) (“The general touchstone of reasonableness
which governs Fourth Amendment analysis governs the method of execution of
the warrant.” (citation omitted)). The defendant contends that the State
“violated the requirement that the manner of [the warrant’s] execution be
reasonable” by failing to obtain, prior to the warrant’s execution, judicial
authorization for the involvement of HSUS, a private organization.
We have not previously considered the extent to which it is
constitutionally reasonable for the police to involve civilians when executing
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search warrants. We begin our analysis by noting that “[f]ederal constitutional
law does not proscribe the use of civilians in searches. In fact, Congress has
explicitly authorized the practice, and courts have repeatedly upheld the
practice.” Bellville v. Town of Northboro, 375 F.3d 25, 32 (1st Cir. 2004)
(citation omitted); see 18 U.S.C. § 3105 (2018) (“A search warrant may in all
cases be served by any of the officers mentioned in its direction or by an officer
authorized by law to serve such warrant, but by no other person, except in aid
of the officer on his requiring it, he being present and acting in its execution.”).
In New Hampshire, RSA 595-A:8 states: “An officer executing a search warrant
may take with him suitable assistants and suffer no others be with him.” RSA
595-A:8 (2001). Thus, the New Hampshire Legislature, in a manner similar to
Congress, has authorized officers executing search warrants to take with them
“suitable assistants.” Id.; see Bellville, 375 F.3d at 32.
That civilian accompaniment is not flatly barred, as a matter of
constitutional or statutory law, when executing a search warrant does not end
our inquiry, of course, for such accompaniment will not be reasonable in every
case. See, e.g., Richards v. Wisconsin, 520 U.S. 385, 394 (1997)
(reasonableness of manner in which searches are conducted must be judged on
case-by-case basis). To that end, “[c]ourts have articulated guidelines for
evaluating police involvement of citizens in searches under the Fourth
Amendment’s reasonableness standard.” Bellville, 375 F.3d at 33. In Wilson v.
Layne, 526 U.S. 603 (1999), the United States Supreme Court held that “it is a
violation of the Fourth Amendment for police to bring . . . third parties into a
home during the execution of a warrant when the presence of the third parties
in the home was not in aid of the execution of the warrant.” Wilson, 526 U.S.
at 614. It was undisputed in Wilson that the civilians who accompanied the
officers — newspaper reporters — did not assist the police in executing the
warrant. See id. at 607, 611. The reporters were merely brought along “as
part of a . . . ride-along policy.” Id. at 607.
Wilson stands for the proposition that it is constitutionally unreasonable
for the police to bring civilians into a home when executing a warrant when the
involvement of the civilians does not aid in the execution of the warrant. See
id. at 614. “Police cannot invite civilians to perform searches on a whim . . . .”
United States v. Sparks, 265 F.3d 825, 832 (9th Cir. 2001), overruled on other
grounds by United States v. Grisel, 488 F.3d 844 (9th Cir. 2007). “[W]here
[civilian] assistance is rendered in aid of a warrant,” however, the civilian
involvement tends to be within “the bounds of reasonableness.” Bills v.
Aseltine, 958 F.2d 697, 706 (6th Cir. 1992); see also Bellville, 375 F.3d at 33
(stating that, for civilian involvement to be reasonable, “[t]he civilian must have
been serving a legitimate investigative function,” and “the officers must have
some demonstrable need for the presence of the civilian”). In fact, “[c]ivilian
searches are sometimes more reasonable than searches by officers.” United
States v. Bach, 310 F.3d 1063, 1067 (8th Cir. 2002). For example, “a civilian
may possess a peculiar expertise or knowledge regarding the means of retrieval
8
or identification of items covered by a warrant, and . . . permitting civilian
assistance in such circumstances [may] actually enhance[] the reasonableness
of the search by lessening its intrusiveness.” Com. v. Sbordone, 678 N.E.2d
1184, 1188 (Mass. 1997); see also Schalk v. State, 767 S.W.2d 441, 445, 453-
54 (Tex. Crim. App. 1988) (explaining that, where officer did not have
specialized knowledge to distinguish computer files covered by warrant from
files not covered, “use of [civilian] assistance . . . would tend to limit or restrict
the items seized rather than enlarge upon them”); State v. Kern, 914 P.2d 114,
118 (Wash. Ct. App. 1996) (noting that “police officer[s] will not ordinarily
perform a search of a bank’s records, indeed may not be qualified to do so,”
and that “[w]here a warrant is issued for specific bank records, delegation of
the search to bank employees is not improper”).
Here, the defendant does not dispute that the police required assistance
to execute the search warrant for her residence and to care for the dogs seized.
Nor does the defendant dispute that the police required the assistance of an
organization such as HSUS. Instead, the defendant argues that Strauch’s
failure to obtain express authorization for HSUS’s aid from the magistrate who
issued the search warrant was constitutionally unreasonable. We do not agree.
The defendant has cited no instance in which a court has held that the
failure to obtain express judicial authorization for citizen aid prior to the
execution of a warrant rendered the subsequent search unconstitutional. We
have found no instance in our own research. Although some courts have
opined “that it might be a ‘better practice,’ if circumstances permit, for law
enforcement officers to disclose to the magistrate that civilians will be involved
in the execution of the search and for the warrant to indicate that the
magistrate permitted this involvement,” Bellville, 375 F.3d at 33-34; accord
Sbordone, 678 N.E.2d at 1188 n.9, “there appears to be no authority indicating
that a failure to follow such a procedure violates the Fourth Amendment,” 2
Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment
§ 4.10(d), at 979 (5th ed. 2012).
Recognizing this dearth of authority from outside New Hampshire, the
defendant argues that prior judicial authorization for citizen involvement is, or
ought to be, required under Part I, Article 19 of the State Constitution. The
defendant relies upon prior cases in which we have held that Part I, Article 19
provides greater protections than does the Fourth Amendment, and also upon
the state constitutional preference “for favoring judicial oversight rather than
deferring to the discretion of the police officer.”3
3 To the extent the defendant asserts additional points in support of her position that HSUS’s
involvement in this case, including the organization’s post-search publicization efforts, violated
Part I, Article 19’s mandate that search warrants be executed in a reasonable manner, those
assertions are unsupported by citation to authority and are insufficiently developed. See
Blackmer, 149 N.H. at 49 (“[A] mere laundry list of complaints . . . , without developed legal
argument, is insufficient to warrant judicial review.” (quotation omitted)).
9
We see no reason to create a new constitutional rule in this case,
especially one that is “unnecessary in light of the overarching requirement that
the use of civilians in the execution of a search must still meet the
constitutional standard of reasonableness.” Bellville, 375 F.3d at 33.
Regardless of whether the issuing magistrate expressly authorizes the civilian’s
participation at the time of the warrant’s issuance, the civilian’s participation is
subject to later judicial scrutiny in reviewing the reasonableness of the
warrant’s execution. See Dalia v. United States, 441 U.S. 238, 258 (1979).
Moreover, we fail to see how civilian involvement that is reasonable at the
time of the warrant’s execution would somehow become unreasonable because
the officers intended to utilize civilian aid when they acquired the warrant but
did not obtain the magistrate’s express authorization to do so. See United
States v. Boulanger, 444 F.3d 76, 83-84 (1st Cir. 2006); see also State v.
Henderson, 629 N.W.2d 613, 621 (Wis. 2001) (“[T]he manner in which a search
warrant is executed . . . does not require prior judicial authorization.”). The
pertinent inquiry under Part I, Article 19 is whether the manner of the
warrant’s execution was reasonable. See Schulz, 164 N.H. at 221. A
conclusion that the search warrant for the defendant’s home was executed
unreasonably because of conduct that occurred prior to its execution is
inconsistent with the nature of this inquiry. See id.; see also Boulanger, 444
F.3d at 83 (explaining that, because the rule that officers knock and announce
their presence when executing a warrant “falls under the Fourth Amendment’s
reasonableness clause, as opposed to its warrant clause[,] . . . the
reasonableness of a police officer’s decision to conduct a no-knock entry ‘must
be evaluated as of the time they [conduct the entry].’” (alteration in original)
(citation omitted) (quoting Richards, 520 U.S. at 395)); cf. Schulz, 164 N.H. at
225 (“[T]he reasonableness of a search conducted pursuant to a warrant is a
distinct constitutional inquiry from the question of whether a warrant is
required in the first place.”). Such a conclusion would fundamentally alter the
reasonableness inquiry by moving its focus back in time to when the officers
obtained the warrant, and would require analysis of the reasonableness of pre-
execution conduct. See Boulanger, 444 F.3d at 83-84. Because the pertinent
analysis under Part I, Article 19 is whether “the manner of [the warrant’s]
execution . . . [was] reasonable,” Schulz, 164 N.H. at 221, we cannot conclude,
from the fact that Strauch did not obtain prior judicial authorization for
HSUS’s participation in executing the warrant, that the manner of the
warrant’s execution was unconstitutional.
We agree with the United States Court of Appeals for the First Circuit
and the Supreme Judicial Court of Massachusetts, however, that it may be
wise for officers to notify the issuing magistrate of the fact that civilians will
assist in a warrant’s execution, when it is possible to do so. See Bellville, 375
F.3d at 33-34; Sbordone, 678 N.E.2d at 1188 n.9. Indeed, “[p]rior disclosure
and approval of that involvement might avoid the type of challenges we have in
this case.” Bellville, 375 F.3d at 34. That said, for the reasons discussed
10
above, such disclosure and approval are not prerequisites to the civilians’
assistance under Part I, Article 19’s reasonableness requirement.
In summation, we conclude that the State did not violate Part I, Article
19’s requirement that the manner of a search warrant’s execution be
reasonable by failing to obtain authorization for HSUS’s involvement prior to
the warrant’s execution. As the State Constitution is at least as protective as
the Federal Constitution in these circumstances, we further conclude that the
State did not violate the Fourth Amendment’s reasonableness requirement.
See Schulz, 164 N.H. at 221; Bellville, 375 F.3d at 33-34. Additionally, the
defendant has failed to demonstrate that her right to privacy was violated.
Because we have concluded that a constitutional violation did not occur, we
need not address the defendant’s arguments regarding whether suppression of
the evidence obtained from the search would be an appropriate remedy for
such a violation.
Affirmed.
HICKS, BASSETT, and DONOVAN, JJ., concurred.
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