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New Hampshire Supreme Court: Warrant Required to Enter Walled-In Porch Attached to Mobile Home

by Anthony W. Accurso

The Supreme Court of New Hampshire held that a warrantless entry of an enclosed porch attached to a mobile home was constitutionally impermissible because the homeowner took steps to protect his privacy in that space.

Officers with the Conway Police Department received a tip on April 6, 2019, stating that a service provider had noticed evidence of indoor cannabis cultivation in a mobile home they serviced. Later that day, officers visited the residence to investigate.

Upon arriving, the officers noted an exterior door without a doorbell or knocker. They also noted an enclosed porch, running the length of, and attached to, the mobile home. The porch had a roof, exterior walls with siding or shingles, and a wooden door—which itself had a keylock, a window, a curtain, and was adjacent to the home’s address numbers.

The only prominent windows on the porch were along the top third of the longest exterior wall, through which a water heater and refrigerator could be viewed from the street. The officers found the exterior porch unlocked and entered it, and they found a table and chairs inside. The door leading into the mobile home’s interior was locked.

Officers knocked, and a voice from inside inquired who was there. After identifying themselves as Conway Police, there was a silence followed by noises consistent with what the officers believed was destruction of evidence. They forced entry into the home, where they viewed several cannabis plants and an indoor cultivation system. They arrested the occupant, Daniel Davis, and charged him with one count of possession of a controlled substance with intent to sell. Police subsequently obtained a search warrant for the residence and seized additional evidence.

Davis filed a suppression motion, arguing that he had a legitimate expectation of privacy in his porch, that the officers searched it without a warrant, and all evidence obtained thereafter, including evidence obtained pursuant to the search warrant, was tainted due to their illegal entry and must be suppressed under Part I, Article 19 of the New Hampshire Constitution and the Fourth and Fourteenth Amendments to the U.S. Constitution.

The Superior Court denied his motion, and Davis was subsequently convicted. He then appealed to the state’s Supreme Court.

The Court first addressed the issue of Davis’ expectation of privacy in his enclosed porch and officers’ warrantless entry. Part I, Article 19 of the state Constitution enshrines a person’s “right to be secure from all unreasonable searches and seizures of his person, his houses, his papers, and all his possessions.” However, this “extends only to those places in which the accused maintains a legitimate expectation of privacy.” See State v. Robinson, 973 A.2d 277 (N.H. 2009).

The Court stated that the existence of a legitimate expectation of privacy rests upon a two-part test: “First, we consider whether the defendant has exhibited a subjective expectation of privacy and, second, whether that expectation is one that society is prepared to recognize as reasonable.” See State v. Goss, 834 A.2d 316 (N.H. 2003).

The state Supreme Court recognizes a “heightened expectation of privacy given to one’s dwelling.” Id. This extends to the curtilage, which is “certain property surrounding a home.” State v. Orde, 13 A.3d 338 (N.H. 2010). Though, this zone’s “boundaries and contents ... are not easily described.” State v. Smith, 37 A.3d 409 (N.H. 2012).

The first prong of the test is the Katz subjective expectation of privacy inquiry, and the most critical factor in making this determination is whether the defendant attempted to “preserve as private” the area in question. Katz v. United States, 389 U.S. 347 (1967). For instance, in Orde the New Hampshire Supreme Court concluded that the defendant evidenced a subjective expectation of privacy in an unenclosed deck attached to his home by obscuring the deck and activities thereon from public view with a line of bushes and restricted public access to the deck by not creating a path from the house to the deck.

The Court likened Davis’ attempt at privacy to those of the defendant in Orde. Davis outfitted his porch with opaque walls, a roof, and a door with a keylock, among other features, which evidenced his subjective expectation of privacy like the defendant in Orde, the Court concluded.

The State argued that Davis failed to verbally assert his subjective expectation of privacy at the suppression hearing, so that argument is unavailable to him. The Court flatly rejected the State’s position, reiterating that “we have repeatedly concluded that a defendant’s conduct is sufficient to establish that he or she exhibited a subjective expectation of privacy.” See Orde (finding that defendant’s actions established his expectation of privacy, not his statements).

The State also argued that a broken window and back end of the porch not being airtight argued against a privacy expectation. The Court rejected the idea that a state of disrepair diminished Davis’ subjective expectation of privacy. See United States v. Ross, 456 U.S. 798 (1982) (“[T]he most frail cottage in the kingdom is absolutely entitled to the same guarantees of privacy as the most majestic mansion.”).

The Court then turned to the second prong of the test, i.e., whether the defendant’s subjective expectation of privacy is one that society is prepared to recognize as objectively reasonable. See Katz. The fact that the porch is attached to the residence weighs heavily in favor of being objectively reasonable, according to the Court. See Orde. Davis also uses the enclosed porch at issue as a living space and thus as an extension of the interior of his home. This also weighs in favor of being objectively reasonable, the Court stated. See id. Thus, the Court concluded that Davis’ “expectation of privacy in the porch is one that society is prepared to recognize as reasonable.”

Because Davis had both a subjective and objective expectation of privacy in his enclosed porch, the Court stated “a warrant or an exception to the warrant requirement was needed for the officers to lawfully enter that area.” The State doesn’t claim that any exception justified the officers’ initial entry into the porch. Therefore, the Court ruled that the warrantless entry was unlawful, and any evidence obtained from the porch was done so unlawfully. Similarly, any evidence discovered in the interior of the mobile home during the warrantless entry thereof is tainted by the illegality of the entry into the porch, according to the Court. 

Finally, the Court addressed whether the evidence obtained in connection with the warrant must also be suppressed. Ordinarily, a copy of the warrant is presented to the examining court to determine whether probable cause still exists for its issuance after excising the tainted information. Orde. However, the State failed to present the warrant to either the trial court or the Court itself, so there’s nothing to examine for validity. Thus, the Court ruled that the evidence seized pursuant to the search warrant was obtained in violation of Davis’ state constitutional rights and must be suppressed.

Thus, the Court held that all the evidence obtained in the various searches, with and without a warrant, must be suppressed. The Court explained that since its ruling is based on the New Hampshire Constitution it doesn’t need to reach Davis’ claims under the U.S. Constitution.

Accordingly, the Court reversed and remanded. See: State v. Davis, 267 A.3d 1120 (N.H. 2021). 

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Related legal cases

State v. Davis

State v. Robinson

State v. Goss

U.S. v. Ross

456 U.S. 798; 102 S. Ct. 2157; 72 L. Ed. 2d 572


No. 80-2209

March 1, 1982, Argued

June 1, 1982, Decided



DISPOSITION: 210 U. S. App. D. C. 342, 655 F.2d 1159, reversed and remanded.


Acting on information from an informant that a described individual was selling narcotics kept in the trunk of a certain car parked at a specified location, District of Columbia police officers immediately drove to the location, found the car there, and a short while later stopped the car and arrested the driver (respondent), who matched the informant's description. One of the officers opened the car's trunk, found a closed brown paper bag, and after opening the bag, discovered glassine bags containing white powder (later determined to be heroin). The officer then drove the car to headquarters, where another warrantless search of the trunk revealed a zippered leather pouch containing cash. Respondent was subsequently convicted of possession of heroin with intent to distribute -- the heroin and currency found in the searches having been introduced in evidence after respondent's pretrial motion to suppress the evidence had been denied. The Court of Appeals reversed, holding that while the officers had probable cause to stop and search respondent's car -- including its trunk -- without a warrant, they should not have opened either the paper bag or the leather pouch found in the trunk without first obtaining a warrant.

Held: Police officers who have legitimately stopped an automobile and who have probable cause to believe that contraband is concealed somewhere within it may conduct a warrantless search of the vehicle that is as thorough as a magistrate could authorize by warrant. Pp. 804-825.

(a) The "automobile exception" to the Fourth Amendment's warrant requirement established in Carroll v. United States, 267 U.S. 132, applies to searches of vehicles that are supported by probable cause to believe that the vehicle contains contraband. In this class of cases, a search is not unreasonable if based on objective facts that would justify the issuance of a warrant, even though a warrant has not actually been obtained. Pp. 804-809.

(b) However, the rationale justifying the automobile exception does not apply so as to permit a warrantless search of any movable container that is believed to be carrying an illicit substance and that is found in a public place -- even when the container is placed in a vehicle (not otherwise believed to be carrying contraband). United States v. Chadwick, 433 U.S. 1; Arkansas v. Sanders, 442 U.S. 753. Pp. 809-814.

(c) Where police officers have probable cause to search an entire vehicle, they may conduct a warrantless search of every part of the vehicle and its contents, including all containers and packages, that may conceal the object of the search. The scope of the search is not defined by the nature of the container in which the contraband is secreted. Rather, it is defined by the object of the search and the places in which there is probable cause to believe that it may be found. For example, probable cause to believe that undocumented aliens are being transported in a van will not justify a warrantless search of a suitcase. Pp. 817-824.

(d) The doctrine of stare decisis does not preclude rejection here of the holding in Robbins v. California, 453 U.S. 420, and some of the reasoning in Arkansas v. Sanders, supra. Pp. 824-825.

COUNSEL: Deputy Solicitor General Frey argued the cause for the United States. With him on the briefs were Solicitor General Lee, Assistant Attorney General Jensen, Joshua I. Schwartz, and John Fichter De Pue.

William J. Garber argued the cause for respondent. With him on the brief was Dennis M. Hart. *

* Fred E. Inbau, Wayne W. Schmidt, and James P. Manak filed a brief for Americans for Effective Law Enforcement, Inc., et al., as amici curiae urging reversal.

Raymond C. Clevenger III, John F. Cooney, Arthur B. Spitzer, and Charles S. Sims filed a brief for the American Civil Liberties Union et al. as amici curiae urging affirmance.

JUDGES: STEVENS, J., delivered the opinion of the Court, in which BURGER, C. J., and BLACKMUN, POWELL, REHNQUIST, and O'CONNOR, JJ., joined. BLACKMUN, J., post, p. 825, and POWELL, J., post, p. 826, filed concurring opinions. WHITE, J., filed a dissenting opinion, post, p. 826. MARSHALL, J., filed a dissenting opinion, in which BRENNAN, J., joined, post, p. 827.

OPINION: [*799] [***578] [**2160] JUSTICE STEVENS delivered the opinion of the Court.

[***LEdHR1A] [1A] In Carroll v. United States, 267 U.S. 132, the Court held that a warrantless search of an automobile stopped by police officers who had probable cause to believe the vehicle contained contraband was not unreasonable within the meaning of the Fourth Amendment. The Court in Carroll did not explicitly [*800] address the scope of the search that is permissible. In this case, we consider the extent to which police officers -- who have legitimately stopped an automobile and who have probable cause to believe that contraband is concealed somewhere within it -- may conduct a probing search of compartments and containers within the vehicle whose contents are not in plain view. We hold that they may conduct a search of the vehicle that is as thorough as a magistrate could authorize in a warrant "particularly describing the place to be searched." n1

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n1 "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." U.S. Const., Amdt. 4.

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In the evening of November 27, 1978, an informant who had previously proved to be reliable telephoned Detective Marcum of the District of Columbia Police Department and told him that an individual known as "Bandit" was selling narcotics kept in the trunk of a car parked at 439 Ridge Street. The informant stated that he had just observed "Bandit" complete a sale and that "Bandit" had told him that additional narcotics were in the trunk. The informant gave Marcum a detailed description of "Bandit" and stated that the car was a "purplish maroon" Chevrolet Malibu with District of Columbia license plates.

Accompanied by Detective Cassidy and Sergeant Gonzales, Marcum immediately drove to the area and found a maroon Malibu parked in front of 439 Ridge Street. A license check disclosed that the car was registered to Albert Ross; a computer check on Ross revealed that he fit the informant's description and used the alias "Bandit." In two passes through the neighborhood the officers did not observe anyone matching the informant's description. To avoid alerting persons on the street, they left the area.

[*801] The officers returned five minutes later and observed the maroon Malibu turning off Ridge Street onto Fourth Street. They pulled alongside the Malibu, noticed that the driver matched the informant's description, and stopped the car. Marcum and Cassidy told the driver -- later identified as Albert Ross, the respondent in this action -- to get out of the vehicle. While they searched Ross, Sergeant [***579] Gonzales discovered a bullet on the car's front seat. He searched the interior of the car and found a pistol in the glove compartment. Ross then was arrested and handcuffed. Detective Cassidy took Ross' keys and opened the trunk, where he found a closed brown paper bag. He opened the bag and discovered a number of glassine bags containing a white powder. Cassidy replaced the bag, closed the trunk, and drove the car to headquarters.

At the police station Cassidy thoroughly searched the car. In addition to the "lunch-type" brown paper bag, Cassidy found in the trunk a zippered red leather pouch. He unzipped the pouch and discovered $ 3,200 in cash. The police laboratory later determined that the powder in the paper bag was heroin. No warrant was obtained.

Ross was charged with possession of heroin with intent to distribute, in violation of 21 U. S. C. § 841(a). Prior to trial, he moved to suppress the heroin found in the paper bag and the currency found in the leather pouch. After an evidentiary hearing, the District Court denied the motion to suppress. The heroin and currency were introduced [**2161] in evidence at trial and Ross was convicted.

A three-judge panel of the Court of Appeals reversed the conviction. It held that the police had probable cause to stop and search Ross' car and that, under Carroll v. United States, supra, and Chambers v. Maroney, 399 U.S. 42, the officers lawfully could search the automobile -- including its trunk -- without a warrant. The court considered separately, however, the warrantless search of the two containers found in the trunk. On the basis of Arkansas v. Sanders, [*802] 442 U.S. 753, the court concluded that the constitutionality of a warrantless search of a container found in an automobile depends on whether the owner possesses a reasonable expectation of privacy in its contents. Applying that test, the court held that the warrantless search of the paper bag was valid but the search of the leather pouch was not. The court remanded for a new trial at which the items taken from the paper bag, but not those from the leather pouch, could be admitted. n2

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n2 The court rejected the Government's argument that the warrantless search of the leather pouch was justified as incident to respondent's arrest. App. to Pet. for Cert. 137a. The Government has not challenged this holding.

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The entire Court of Appeals then voted to rehear the case en banc. A majority of the court rejected the panel's conclusion that a distinction of constitutional significance existed between the two containers found in respondent's trunk; it held that the police should not have opened either container without first obtaining a warrant. The court reasoned:

"No specific, well-delineated exception called to our attention permits the police to dispense with a warrant to open and search 'unworthy' containers. Moreover, we believe that a rule under which the validity of a warrantless search would turn on judgments about the durability of a container would impose an unreasonable and unmanageable burden on police and courts. For these reasons, and because the Fourth Amendment [***580] protects all persons, not just those with the resources or fastidiousness to place their effects in containers that decision-makers would rank in the luggage line, we hold that the Fourth Amendment warrant requirement forbids the warrantless opening of a closed, opaque paper bag to the same extent that it forbids the warrantless opening of a small unlocked suitcase or a zippered leather pouch." 210 U. S. App. D. C. 342, 344, 655 F.2d 1159, 1161 (1981) (footnote omitted).

[*803] The en banc Court of Appeals considered, and rejected, the argument that it was reasonable for the police to open both the paper bag and the leather pouch because they were entitled to conduct a warrantless search of the entire vehicle in which the two containers were found. The majority concluded that this argument was foreclosed by Sanders.

Three dissenting judges interpreted Sanders differently. n3 Other courts also have read the Sanders opinion in different ways. n4 Moreover, disagreement concerning [**2162] the proper interpretation of Sanders was at least partially responsible for the fact that Robbins v. California, 453 U.S. 420, was decided last Term without a Court opinion.

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n3 Judge Tamm, the author of the original panel opinion, reiterated the view that Sanders prohibited the warrantless search of the leather pouch but not the search of the paper bag. Judge Robb agreed that this result was compelled by Sanders, although he stated that in his opinion "the right to search an automobile should include the right to open any container found within the automobile, just as the right to search a lawfully arrested prisoner carries with it the right to examine the contents of his wallet and any envelope found in his pocket, and the right to search a room includes authority to open and search all the drawers and containers found within the room." 210 U. S. App. D. C., at 363, 655 F.2d, at 1180. Judge MacKinnon concurred with Judge Tamm that Sanders did not prohibit the warrantless search of the paper bag. Concerning the leather pouch, he agreed with Judge Wilkey, who dissented on the ground that Sanders should not be applied retroactively.

n4 Many courts have held that Sanders requires that a warrant be obtained only for personal luggage and other "luggage-type" containers. See, e. g., United States v. Brown, 635 F.2d 1207 (CA6 1980); United States v. Jimenez, 626 F.2d 39 (CA7 1980). One court has held that Sanders does not apply if the police have probable cause to search an entire vehicle and not merely an isolated container within it. Cf. State v. Bible, 389 So. 2d 42 (La. 1980), vacated and remanded, 453 U.S. 918; State v. Hernandez, 408 So. 2d 911 (La. 1981); see also 210 U. S. App. D. C., at 363, 655 F.2d, at 1180 (Robb, J., dissenting).

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There is, however, no dispute among judges about the importance of striving for clarification in this area of the law. For countless vehicles are stopped on highways and public [*804] streets every day, and our cases demonstrate that it is not uncommon for police officers to have probable cause to believe that contraband may be found in a stopped vehicle. In every such case a conflict is presented between the individual's constitutionally protected interest in privacy and the public interest in effective law enforcement. No single rule of law can resolve every conflict, but our conviction that clarification is feasible led us to grant the Government's petition for certiorari in this case and to invite the parties to address the question whether the decision in Robbins should be reconsidered. 454 U.S. 891.


We begin with a review of the [***581] decision in Carroll itself. In the fall of 1921, federal prohibition agents obtained evidence that George Carroll and John Kiro were "bootleggers" who frequently traveled between Grand Rapids and Detroit in an Oldsmobile Roadster. n5 On December 15, 1921, the agents unexpectedly encountered Carroll and Kiro driving west on that route in that car. The officers gave pursuit, stopped the roadster on the highway, and directed Carroll and Kiro to get out of the car.

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n5 On September 29, 1921, Carroll and Kiro met the agents in Grand Rapids and agreed to sell them three cases of whiskey. The sale was not consummated, however, possibly because Carroll learned the agents' true identity. In October, the agents discovered Carroll and Kiro driving the Oldsmobile Roadster on the road to Detroit, which was known as an active center for the introduction of illegal liquor into this country. The agents followed the roadster as far as East Lansing, but there abandoned the chase.

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No contraband was visible in the front seat of the Oldsmobile and the rear portion of the roadster was closed. One of the agents raised the rumble seat but found no liquor. He raised the seat cushion and again found nothing. The officer then struck at the "lazyback" of the seat and noticed that it was "harder than upholstery ordinarily is in those backs." [*805] 267 U.S., at 174. He tore open the seat cushion and discovered 68 bottles of gin and whiskey concealed inside. No warrant ha



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