NASHUA - Lull Farm owner David Orde had no reason to expect that visitors would keep off his deck, a judge has ruled, allowing marijuana plants found there to be used as evidence against him and his son.
Orde, 54, and his son Andrew, 19, face felony charges alleging that they grew marijuana at their home at 2 Blood Road, Hollis, last summer.
Hollis police officer Angelo Corrado came upon 16 potted marijuana plants growing on and beside the deck, after going there to serve Orde with a complaint for failing to license his dog.
Police got a warrant and found more marijuana, growing instructions and other paraphernalia inside the house, according to court records.
The Ordes and their lawyers argued Corrado had no right to walk around to the deck after getting no answer at the main door to the house, but Judge James Barry disagreed.
Barry heard testimony about the house and Corrado's reason for being there during a hearing March 24 in Hillsborough County Superior Court. His ruling was released Friday, court staff said.
David Orde's lawyer, Steven Maynard of Nashua, could not be reached for comment Tuesday. The prosecutor, Assistant Hillsborough County Attorney David Tencza, said he has not heard whether the Ordes will seek to appeal the ruling before trial.
"I don't know what they're going to do. It's really their decision," Tencza said.
Maynard and William Christie, Andrew Orde's lawyer, argued that Corrado had no legal basis to be at their home, because town officials failed to follow the correct process and the complaint was technically defective.
Barry ruled that the complaint's validity has nothing to do with serving it, however.
"Service of process is undoubtedly a legitimate reason for entry onto someone's property," Barry wrote. "The underlying validity of the complaint does not detract from this purpose."
Corrado testified that he assumed someone was home when he got to the Ordes' house around 5 p.m. July 29. There was a car in the driveway, and the main door was open, with only the screen door shut, he said. Orde testified he normally leaves the door and window open for ventilation in the summer.
When Corrado got no answer at the door, he walked across the lawn, where he could see a short set of steps leading up to the back deck, he said. Although the deck was largely obscured by a row of lilac bushes, Barry wrote, "the existence of the steps in that location suggests that visitors were welcome to use them to access the deck."
"Mr. Orde erected no gates, fence or other impediment to access," Barry wrote, and there were no signs posted to warn people away.
Assuming the Ordes appeal to the state Supreme Court, their case will help define privacy and private property law in New Hampshire, lawyers have said.
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This article appears in the March 27 2009 issue of New Hampshire Business Review