Protecting our Right to Privacy: Attorneys make use of both the Federal and New Hampshire’s Constitution

Which protects us more - the New Hampshire Constitution, or the Federal Constitution?

Both Constitutions go back to the founding days of our nation. The NH Constitution came first, ratified in 1784. The Bill of Rights to the United States Constitution came later, ratified in 1791. When a client hires us to represent them on appeal - claiming that the police violated their civil rights in some way that violated their right to privacy or made their trial unfair - we have to decide which Constitution best supports our arguments on appeal. How do we make that decision?

1960s Revolution in Criminal Procedure-Federal Rights

In the 1960s, the United States Supreme Court broadened many of our civil liberties, and extended them so that they protected against overreaching by “state actors” such as local and state police officers, rather than only protecting us from overreaching by federal agents who commit unlawful search and seizure. That is the decade when famous court cases like the “Miranda” decision provided new protections against official abuse of power by local and State officials.

1980s Revolution in Criminal Procedure - State Constitutions

In the late 1970s, 1980s and 1990s, many State Courts, including the New Hampshire Supreme Court, began providing greater protection for civil liberties under the State Constitution, as opposed to the Federal Constitution. These decisions were a reaction to a retrenchment by an increasingly conservative United States Supreme Court.

During this period, the NH Supreme Court, in a number of areas, decided that the State Constitution provided greater protection to people in NH, than the Federal Constitution did for people across the entire country. For example, if police pull your garbage bags off the curb before the garbage truck arrives and search them for evidence of crime, and it happens in NH, a court will suppress the evidence because this search has been held to be "unreasonable" under NH's Constitution. However, the same search is lawful under the Federal Constitution, so there is no such protection for people in other States.

2000s Revolution in Criminal Procedure - Federal Constitution

In the 2000s, several Justices of the United States Supreme Court, most notably Justice Scalia, used an "originalist" theory of constitutional interpretation to drastically alter the meaning of constitutional text. In most instances, this results in less protection for civil rights. For example, the right to be free of cruel and unusual punishment, if read according to its meaning in the relatively barbaric 18th century, would allow us to employ the death penalty for adultery, put people in the stocks in the public square for criticizing government officials, etc. But in a few areas, such as the right to confrontation of witnesses, the court's revisionist history has led to greater protection for civil rights - even greater than the 1960s era in these areas.

Protection of Privacy in the Home - Greater under the Federal Constitution?

Last month, we won a criminal law appeal in which the police had discovered a marijuana growing operation by walking onto private property and examining the outside of a family garage without a search warrant. You can read more about the Socci decision here. In brief, the law enforcement officers had some reason to believe - but no probable cause and no warrant - that marijuana was being grown somewhere inside or around the Socci's family home. Thus, to investigate their suspicions, while one of them knocked on the front door of the Socci's home, another officer snooped around the property, walking around and inspecting the family's detached garage, searching areas which could not be seen from the road or from other people's homes.

On July 8, 2014, the NH Supreme Court held that this search violated Socci's constitutional rights. In that decision, the Court made its analysis under the federal constitution, rather than the NH Constitution, explaining that the Socci's appellate attorneys (Ted Lothstein, with substantial assistance and input from Richard Guerriero) had placed "significant emphasis" on the federal constitution. Why would we do that?

Federal Constitution's New Focus on Property Rights

In recent decisions, the "originalist" members of the United States Supreme Court had stressed a property-rights-focused interpretation of the Fourth Amendment. This was a departure from the predominant analysis of the last four decades - employed under NH's Constitution as well as the Federal Constitution - that focuses on the "reasonableness" of the actions by police. A focus on "reasonableness" allows a Court to substitute higher local standards for lower national standards - thus, a search of a garbage bag on the curb could offend the sensibilities of NH's relatively libertarian population and violate the NH Constitution, but not violate the Federal Constitution. A focus on property rights, however, leads to more straightforward results when police officers are actually on private property - in this case, snooping around a person's garage.

A New Era - Federal and State Constitutions Provide Overlapping Protections

During the 1960s and 1970s, nobody doubted that the Federal Constitution provided greater protection than the Constitutions of most, if not all, States. By the mid- to late-1990s, by contrast, most lawyers assumed that the NH Constitution provided greater (or at the very least, an equal amount of) protection than the United States Constitution for all civil rights. Cases like the garage search in the Socci case - versus the garbage search case from an earlier decade - show us that today, these Constitutions provide overlapping protections.

In some areas, the State Constitution may provide a greater level of protection for our civil liberties. In other areas, the State Constitution may provide less protection than the Federal Constitution. New Hampshire defense lawyers Ted Lothstein and Richard Guerriero must decide, in each case, which Constitution's philosophy and precedent most support our position on appeal.

The Road to Victory on Appeal

In the Stephen Socci case, we decided that the focus on property rights emphasized in recent United States Supreme Court decisions would better support the argument that the police officers violated Stephen Socci's right to privacy by walking around, and examining the outside of, his garage without a search warrant. We used color photographs in the brief to vividly illustrate how the police had clearly intruded onto private property, located in a wooded area that could not be seen from a public place like the roadway. Under the State Constitution, the Justices of the Court would have been forced to make a value judgment - was this search reasonable, or unreasonable? This is a value judgment because it requires the Court to balance people's need for privacy, against people's need for effective law enforcement. By rooting our argument in the property-rights philosophy of several recent federal decisions, we provided the Court with a means to overturn the judgment of the lower court without having to make a difficult value judgment.

Winding Down the Drug War?

While certainly not the Court's intention, the Socci decision represents a further winding down of the drug war. No longer, can law enforcement officers in NH walk onto private land as if they owned the place, searching for evidence of marijuana grows or other drugs. This is a victory for all people in NH who value the right to privacy and value their ability to exclude intruders - criminals and government agents alike- from their own private property.

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