dissenting: I disagree with the conclusion of the majority that the language of part I, article 19 of the New Hampshire Constitution “requires that ‘automatic standing’ be afforded to all persons within the State who are charged with crimes in which possession of an article or thing is an element.” I remain convinced that the proper test to be employed when determining whether a particular defendant has standing to challenge the validity of a search and/or seizure under our constitution is: “does the conduct which the defendant challenges involve an intrusion into his legitimate expectations of privacy with reference to the items seized and the place searched, thus violating his constitutional rights?” State v. Settle, 122 N.H. 214, 222, 447 A.2d 1284, 1289 (1982) (Brock, J., dissenting).
The inquiry into what is a legitimate expectation of privacy involves two questions. Smith v. Maryland, 442 U.S. 735, 740 (1978). “The first is whether the individual, by his conduct, has ‘exhibited an actual (subjective) expectation of privacy’ .... The second question is whether the individual’s subjective expectation of privacy is ‘one that society is prepared to recognize as “reasonable.”’” Id. (quoting Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring)).
Because the record in this interlocutory appeal provides an insufficient basis for determining whether the defendant had a reasonable expectation of privacy, I would remand for further proceedings.