New Hampshire Supreme Court Rules on the Side of Privacy

A marijuana growing charge from 2008 in New Hampshire was heard by the state Supreme Court last week and the court effectively reversed the conviction.  Lull farm owner David Orde’s was tried and convicted last year to served 60 days in jail on charges of manufacturing marijuana. David Orde and his 19 year old son were arrested in July of 2008 after a Hollis Police Officer went to their home to serve Orde with a complaint for failing to license his dog. No one answered at the door, so Corrado walked around to the side of the house, where he spotted 16 marijuana plants growing in pots on a deck.

According to court records, officer Angel Corrado then found Orde on the farm and asked him to come to the house. Orde admitted to growing the marijuana plants, saying he was “stupid” for doing so, but that police were “ridiculous” to arrest him for it. Ordes son Andrew was also arrested on that day and he later pleaded guilty to a reduced misdemeanor possession charge and was sentenced to 30 days in jail. The County Superior Court Judge allowed Orde to remain free on bail pending his appeal, so the senior Orde did not spend any time behind bars.

The Court’s four justices found that the Hollis Police officer violated David Orde’s privacy by walking across his lawn, through a gap in a lilac hedge and up onto his deck. The fifth Supreme Court justice dissented from the ruling, arguing that Orde had no reasonable expectation that the deck alongside his house was a private space. While Corrado had a legitimate reason for going to see Orde, the court ruled, Orde also had a reasonable expectation that his deck was private. Because police violated Orde’s Constitutional right to privacy and protection against unreasonable searches of property, the court found, the evidence they found could not be used against him. “We have previously recognized that certain property surrounding a home, often described as curtilage, deserves the same protection against unreasonable searches and seizures as the home itself,” wrote Supreme Court Judge Gary Hicks. He continued, “Some federal court judges have “apparently assumed the police could lawfully walk around a person’s property provided they are on the property for a legitimate police activity, such as interviewing a person or serving civil process. We disagree. Permitting police such wide latitude to enter a person’s private property is ‘incompatible with and detrimental to our citizens’ strong right of privacy,’” Hicks wrote, quoting an earlier New Hampshire case.

When the police come on to private property to conduct an investigation or for some other legitimate purpose and restrict their movements to places visitors could be expected to go (e.g., walkways, driveways, porches), observations made from such vantage points are not covered by the Fourth Amendment. But other portions of the lands adjoining the residence are protected, and thus if the police go upon these other portions and make observations there, this amounts to a Fourth Amendment search,” Because the discovery of the marijuana amounted to an illegal search, the Court ruled, police also had no right to question Orde about it, or to use that evidence to get a warrant to search his house. Daivid Orde’s web site on The Lull Farm has a section titled, “cannabis corner,” with news on efforts to legalize marijuana and hemp cultivation, and the farm stand sells hemp products.