[420 Girl]

NASHUA – One way or another, the marijuana charges against Hollis farmer David Orde and his son will make new laws governing privacy rights in New Hampshire.

Orde, 53, was arrested July 29 after police found 16 marijuana plants growing in pots on and beside the rear deck of his home at 2 Blood Road, Hollis.

His son Andrew Orde, 19, was charged about a week later after further investigation and a search inside the home.

Father and son are charged with manufacturing marijuana. Each could face up to 3-1/2 to 7 years in prison if convicted on the felony charge, although it's unlikely they'd get anywhere near that maximum sentence.

The Ordes argue police had no business on their deck in the first place, and thus the subsequent search of their property was illegal, regardless of the warrant.

Father and son have joined in a motion to suppress all evidence, including the plants, filed by David Orde's lawyer, Steve Maynard of Nashua. A hearing on the matter is scheduled for March 24 before Judge James Barry in Hillsborough County Superior Court.

Prosecutors contend police stumbled upon the marijuana by accident while trying to serve Orde with a summons for failing to license his dog.

The Ordes' case raised outcry in the community, mainly over the question of whether marijuana ought to be illegal. Since there is little dispute over the existence of the marijuana plants or their current legal status, however, the charges against the Ordes hinge entirely on whether it was OK for police to go around to the back porch after no one answered the main door to their home.

Maynard's motion and an objection filed by Assistant Hillsborough County Attorney David Tencza cite prior rulings by the New Hampshire Supreme Court and other courts, but none of those decisions make Orde's case clear-cut.

New Hampshire's Constitutions begins, rather than ends, with the Bill of Rights, and Article 19 gives people an expectation of privacy in their homes, within reason.

As the founders wrote in 1784, "Every subject hath a right to be secure from all unreasonable searches and seizures of his person, his houses, his papers, and all his possessions." In other words, police can't search any private property without permission or a warrant.

Police don't need a warrant just to walk up to a house and ring the bell or knock at a door, however. Anyone can do that.

The Ordes' house is "L" shaped, set back with the long end of the L pointing toward Blood Road. Trees border the property on Blood Road and Pepperell Road, and privacy shrubs surround the rear deck, which is off the short end of the L, Maynard wrote and Google satellite images confirm.

A walkway leads from the dirt driveway to a door along the long side of the L, which serves as the main entrance to the home. That is where Hollis Police officer Angelo Corrado knocked when he went to serve a summons for Orde's unlicensed dog at about 5:05 p.m. July 29 after Orde failed to respond to previous notices by mail, police reported.

There was a car in the Ordes' driveway and the main door was open, although the screen door was shut, police reported. David Orde, however, was still at work nearby at his business, Lull Farm.

Getting no answer when he knocked and called out at the door, Corrado walked across the lawn and around the shrubs to the rear deck. The deck is partially visible from the main door, both Maynard and Tencza noted in court documents, although there is no path or walkway leading to it.

At that time of year, the Ordes' deck had a dining table and chairs, lounge chairs and a barbecue grill. As he walked onto the deck and approached the door to the house, Corrado couldn't fail to notice the marijuana plants, police reported. Eleven of them were on the deck and five more were on the ground beside it. Each was about 3 to 4 feet tall, police reported.

Corrado called Sgt. Richard Mello for backup, and after police seized the plants, they called Lull Farm, tracked Orde down and asked him to meet them at his house.

"David Orde was immediately told by Sergeant Mello that 'he had to explain the plants,' " Maynard wrote. "Whereupon, allegedly incriminating statements were made."

"Orde did not look surprised," Mello wrote in his application for a search warrant.

Orde told police that this was the first summer he'd grown marijuana on the deck, and that it was for his own use, Mello wrote.

Mello quoted Orde as saying, "Yes, I'm not going to hang my head in shame; I smoke a little pot."

Police then got a warrant to search the property inside and out. The Ordes haven't been accused of selling or intending to sell marijuana, only with growing it. Police estimated that each of the 16 plants had a "street value" of $1,000 to $2,000, however.

Maynard concedes police had a legitimate reason to knock at Orde's door. Getting no answer, however, he argues they should have left and tried again some other time or place, since Orde also works in town.

In a 2003 case, Maynard argues, the New Hampshire Supreme Court ruled that the right to privacy extends into the yard, at least to areas where the residents have both an "actual" and "reasonable" expectation of privacy.

"Entry to the porch/deck area, for the Orde family and guests, was from the interior of the home through the doors leading to the deck," Maynard wrote, adding, "The Ordes at all times considered the deck area to be a private living space. The Ordes did nothing to suggest to anyone that there existed any right or implied right of access to the deck by anyone entering the driveway."

The key question, Tencza and Maynard agree, is whether it was reasonable for the Ordes to expect that their deck was private. In a different decision issued in the same year as the one Maynard cited, Tencza wrote, the state's Supreme Court also found that outside areas of a home may be "semi-private," and not so protected, for instance, as one's bedroom closet.

"Although no New Hampshire cases are directly analogous," Tencza wrote, "the federal courts as well as other states have decided similar cases under the 'reasonable expectation of privacy' test."

In a Vermont case, Tencza wrote, the courts upheld a search and seizure after a trooper looked through a sliding glass door and saw a stolen shotgun on a table inside. That glass door, however, was the main entry to the home, with steps and a doorbell.

Tencza argues it was perfectly reasonable for Corrado to try the porch door, having failed to raise a response at the main door, especially since it looked as though someone was home.

"The defendant did not have a reasonable expectation of privacy in his deck because he did not take any steps to deter visitors from entering this part of his property," Tencza wrote.

There were no gates or signs warning visitors away, Tencza said, and at least part of the porch is visible from the main door and from the driveway, although there are small trees and bushes partially obscuring it.

"Under the facts of this case, the defendant is not reasonable in believing that the bushed (sic) would deter a person from entering onto his porch if they were at his house for a legitimate purpose," Tencza wrote.

On the other hand, Maynard argues, the layout of the property did nothing to direct visitors to the deck.

"There was no actual or implied invitation to anyone entering the driveway to access the rear of the property," Maynard wrote. "The expectation of David Orde that his rear deck was private and not open to visitors was and is a reasonable one that requires Constitutional protection."

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