Published in NH Bar News (1/20/2021)
1. New Hampshire’s Constitutional Tradition
The New Hampshire Supreme Court has historically interpreted our State Constitution independently from its federal counterpart, finding in many cases that the State Constitution offers more protection than the Constitution of the United States. This independent streak provides New Hampshire courts and litigants with flexibility in addressing undecided state constitutional issues. But, because New Hampshire courts cannot interpret provisions of the State Constitution sua sponte, the progress and development of New Hampshire constitutional law depends on the advocacy and creativity of lawyers.
In some contexts, the State Supreme Court has afforded New Hampshire citizens more protection under the State Constitution than under analogous federal provisions. Just a few examples include the fact that New Hampshire lacks a good faith exception to the warrant requirement, tightly regulates the scope of motor vehicle stops, has only recently recognized a limited automobile exception, confers automatic standing, forbids the derivative use of unmirandized custodial statements, and requires the State to prove beyond a reasonable doubt that a defendant knowingly and intelligently waived his or her Miranda rights.
Consistent with principles of federalism, even when the New Hampshire Supreme Court has adopted a federal analysis (e.g., New Hampshire courts apply the same factors as federal courts when evaluating whether a person has a reasonable expectation of privacy) it has reached independent constitutional conclusions. Unlike under the federal constitution, New Hampshire residents have a reasonable expectation of privacy in their curbside garbage.
Understanding which party bears the burden of proof is a critical for any litigator. This article seeks to highlight two unsettled areas of New Hampshire constitutional law concerning the burden of proof at suppression hearings. New Hampshire appears to have the most protective burden of proof on the issue of whether a suspect is in custody for purposes of Miranda warnings. As discussed below, the burden of satisfying the reasonable expectation of privacy test for searches and seizures remains unsettled; however, a recent New Hampshire Supreme Court case suggests that the burden may be on the State by a preponderance of the evidence.
2. Who Bears the Burden? – Custody
Under both the state and federal constitutions, Miranda warnings are only required when a suspect has been placed in custody. In New Hampshire, before the State may use statements made during a custodial interrogation, it must prove, beyond a reasonable doubt, that it did not violate a defendant’s rights under Miranda.
The “beyond a reasonable doubt” standard has been routinely applied to decide whether a suspect has knowingly and voluntarily waived his or her Miranda rights. See State v. Bushey, 122 N.H. 995, 999 (1982); State v. Watson, 170 N.H. 720, 725 (2018). Less clear, however, is who bears the burden of proof on the threshold issue of custody.
Massachusetts, like New Hampshire, has interpreted its constitution more protectively than the United States Constitution. Massachusetts also applies the beyond a reasonable doubt standard in the waiver context. See Com. v. Molina, 3 N.E.3d 583, 595 (Mass. 2014). By contrast, the federal constitution only requires proof of valid waiver of Miranda rights by a preponderance of the evidence. See e.g., Colorado v. Connelly, 479 U.S. 157, 168 (1986).
Notably, federally and in Massachusetts, a defendant must prove that he or she was in custody for purposes of Miranda. See e.g., Com. v. Newson, 27 N.E.3d 1282, 1281 (Mass. 2015). In these jurisdictions, once the defendant establishes custody, the burden then shifts to the government to demonstrate valid waiver of Miranda rights.
This is not the case in New Hampshire. Although not expressly decided, a recent New Hampshire Supreme Court case suggests that the State bears the burden of proof on the issue of custody, beyond a reasonable doubt. See In re E.G., 171 N.H. 223 (2018).
In E.G., a juvenile in a delinquency proceeding claimed that he was in custody and thus entitled to Miranda warnings. This was the sole issue before the New Hampshire Supreme Court on appeal. After conducting an extensive custody analysis, the E.G. court concluded as follows: “[B]ased upon the totality of the circumstances, we conclude that the State established, beyond a reasonable doubt, that it did not violate E.G.’s Miranda rights, under the State Constitution, on the asserted ground that E.G. was in custody.” Id. at 238 (emphasis added). This reasoning suggests that, like waiver, New Hampshire law requires the State to prove, beyond a reasonable doubt, that a defendant was not in custody for purposes of Miranda. Thus, unlike the federal and Massachusetts constitutions, the State, not the defendant, has the burden of proof on the issue of custody. Moreover, the State must convince the Court, beyond a reasonable doubt, that the defendant was not in custody and thus not entitled to Miranda warnings. This is perhaps the most protective custody standard in the country, and should be on the radar of any New Hampshire attorney confronted with a custody issue.
3. Who Bears the Burden? – Reasonable Expectation of Privacy
Since adopting the reasonable expectation of privacy test in 2003, the New Hampshire Supreme Court has not had the opportunity to squarely address who carries the burden of proving (or disproving) a defendant’s reasonable expectation of privacy at a suppression hearing. However, in a case released last month, the New Hampshire Supreme Court assumed, without deciding, that the burden of proof rested with the State by a preponderance of the evidence. See State v. Gates, 174 N.H. __ (2020).
Under both the State and Federal Constitutions, a reasonable expectation of privacy exists where: (1) a person has manifested a subjective expectation of privacy in the object of the search; and (2) society is willing to recognize that expectation as reasonable. The State generally bears the burden of proof at suppression hearings; however, in a majority of jurisdictions, including Massachusetts, it is the defendant who bears the burden of establishing his or her reasonable expectation of privacy. See e.g., Com. v. Molina, 948 N.E.2d 402, 407 (Mass. 2011).
There are persuasive arguments for and against assigning this burden to the State or the defendant under New Hampshire law. On the one hand, New Hampshire has a long history of imposing higher burdens of proof on the State in the search and seizure context. The New Hampshire Constitution confers “automatic standing”, allowing a defendant to challenge the search of any object where possession of it is an element of the crime. On the other hand, whether a reasonable expectation privacy exists is usually a matter of standing that the claiming party must establish. However, this is not necessarily true in New Hampshire. Because of New Hampshire’s preservation of the automatic standing doctrine, it is possible to possess standing under the State Constitution, but lack a reasonable expectation of privacy. See State v. Smith, 169 N.H. 602, 611 (2017) (defendant, charged with possession of heroin, had automatic standing but lacked a reasonable expectation of privacy in the common hallway of a rooming house and thus no search occurred). In such cases, the court’s analysis focuses on whether a search has occurred, not whether a defendant has standing to challenge it. In other jurisdictions, this inquiry is one in the same.
Defense attorneys and prosecutors alike should seek to develop this area of the law. In doing so, they should consider which result best comports with the spirit and history of the New Hampshire Constitution and public policy. Should the State always bear the burden? Should the State bear the burden only when the defendant has automatic standing? Should the defendant bear the burden in non-possessory cases where there is no automatic standing? These are uniquely New Hampshire questions requiring a State Constitutional solution.