State v. Chester

9

                                ENTRY ORDER

                      SUPREME COURT DOCKET NO. 88-074

                             MARCH TERM, 1989


State of Vermont                  }          APPEALED FROM:
                                  }
                                  }
     v.                           }          District Court of Vermont,
                                  }          Unit No. 3, Caledonia Circuit
                                  }
Gary Chester                      }
                                  }          DOCKET NO. 964-9-87Cacr


             In the above entitled cause the Clerk will enter:


     This is a companion case to State v. Kirchoff, No. 87-603 (Vt. January
25, 1991) and is here on interlocutory appeal to answer whether the Vermont
Constitution allows "police officers to make a warrantless entry onto land
not immediately surrounding the house of a defendant" to search for
marijuana plants.  The plants found during the police search of defendant's
land were located in fields which were cleared to accommodate and seclude
the marijuana plants.  They were located by walking on the land and by an
aerial overflight of the land.  The parties stipulated that none of the
police officers who walked on the land encountered "any barricades, no-
trespassing signs, land posted signs or any other indicia of posting on the
property."

     Kirchoff holds that the state must have a warrant to enter land when
it is apparent to a reasonable person that the owner or occupant intends to
exclude the public.  Id. at 12.  This standard is intended to define
instances where a landowner's expectation of privacy in an area is
reasonable or legitimate.  Id. at 13.  The state has the burden to show that
a warrantless search was authorized under this standard.  Id. at 15.

     In this case, there were no barriers to entry to indicate defendant's
intent to exclude the public.  Where land is left unimproved and unbounded,
the owner or occupant has not taken sufficient steps to exclude the public
to trigger the protection of Chapter I, Article 11 of the Vermont
Constitution.  See State v. Dixson/Digby, 307 Or. 195, 211-12, 766 P.2d 1015, 1024 (1988) (rejecting per se "open fields" doctrine under Oregon
constitution).  On the stipulated facts, the state has met its burden to
justify the warrantless search that occurred in this case.

     The certified question is answered in the affirmative.







                                            BY THE COURT:




                                   Frederic W. Allen, Chief Justice


                                   Louis P. Peck, Associate Justice*


[ ]  Publish                       Ernest W. Gibson III, Associate Justice

[ ]  Do Not Publish
                                   John A. Dooley, Associate Justice


                                   James L. Morse, Associate Justice

   * concurring in the result only