State v. Brooks

NOTICE:  This opinion is subject to motions for reargument under V.R.A.P.
40 as well as formal revision before publication in the Vermont Reports.
Readers are requested to notify the Reporter of Decisions, Vermont Supreme
Court, 111 State Street, Montpelier, Vermont 05602 of any errors in order
that corrections may be made before this opinion goes to press.

                                No. 87-339


State of Vermont                             Supreme Court

      v.                                     On Appeal from
                                             District Court of Vermont
Edward Brooks                                Unit No. 2, Chittenden Circuit

                                             September Term, 1989


John P. Connarn, J. (Ret.), Specially Assigned

Jeffrey L. Amestoy, Attorney General, and Susan R. Harritt, Assistant
  Attorney General, Montpelier, for plaintiff-appellee

Walter M. Morris, Jr., Defender General, and David Williams, Drug Defense
  Unit, Montpelier, for defendant-appellant


PRESENT:  Allen, C.J., Peck, Dooley and Morse, JJ., and Barney, C.J. (Ret.),
          Specially Assigned


     ALLEN, C.J.   Defendant moved to suppress evidence obtained when
police, without a warrant, electronically overheard and recorded his con-
versation with a "bugged" police informant, on the ground that his rights
under Chapter I, Article 11 (FN1) of the Vermont Constitution were violated.  
The trial court denied the motion and defendant brought this interlocutory
appeal.  We affirm.
      State police, investigating a series of burglaries at automotive
businesses, arrested one Keith Gordon for possession of stolen property.
Gordon implicated defendant and agreed to cooperate with authorities.  On
the same day, Gordon called defendant on the telephone and they arranged to
meet an hour later in a shopping center parking lot.  The phone conversation
was taped.  Defendant expressed some doubt about the security of talking to
Gordon, saying "is it cool?" and "this ain't a set up?"  The two later met
as agreed.
     At the shopping center, Gordon, equipped with a concealed transmitting
device, drove alongside defendant's vehicle and they talked through open
windows.  A detective and another officer, parked about fifty yards away,
tape recorded the conversation transmitted from Gordon's device.  The
officers were able to see Gordon and defendant talking.  Defendant made a
number of incriminating statements regarding his involvement in the
burglaries.  Based on the recorded conversation, police obtained a warrant
to search defendant's car and home.  They found stolen property and charged
defendant with multiple counts of burglary, possession of stolen property
and possession of a regulated drug.
     Defendant moved "to suppress the use at trial of any evidence resulting
from voice monitoring devices used by the State to listen to and record
defendant's private conversations."  The trial court denied the motion,
relying on Barrett v. Fish, 72 Vt. 18, 47 A. 174 (1899), where this Court
denied a motion to enjoin the production at trial of certain letters.
Barrett is inapposite, however.  That case did not involve a search and
seizure under Article 11 because the government played no role in procuring
the letters.  Id. at 19, 47 A.  at 175.  The trial court also relied on
United States v. White, 401 U.S. 745 (1971), which controls federal law on
eavesdropping under the Fourth Amendment to the United States Constitution.
In White, the United States Supreme Court concluded that government use of
informants equipped with concealed devices to record conversations with
unknowing suspects did not violate the Fourth Amendment. 401 U.S.  at 751.(FN2)
A majority of the Supreme Court has since approved the plurality's rationale
in White.  See United States v. Caceres, 440 U.S. 741, 750-51 (1979).  Under
these precedents, the police operation in this case did not violate
defendant's federal constitutional rights.
     The question squarely posed, therefore, is whether participant
electronic monitoring in the circumstances presented in this case violates
Article 11 of the Vermont Constitution.  In State v. Blow, 88-422 (Vt.
November 1, 1991), we held that obtaining evidence by electronic monitoring
in the defendant's home without his consent and without prior court
authorization violates Article 11.  The touchstone here, as in Blow and in
State v. Kirchoff, ___ Vt. ___, 587 A.2d 988 (1991), is whether a defendant
subject to electronic surveillance has a reasonable expectation of privacy.
Referring to Justice Harlan's concurring opinion in United States v. Katz,
389 U.S. 347, 361 (1967), we stated in Blow:
         [T]he test requirements are "first that a person has
         exhibited an actual (subjective) expectation of privacy
         and, second, that the expectation be one that society is
         prepared to recognize as 'reasonable.'"  Kirchoff makes
         it clear that privacy expectations do not necessarily
         decline as surveillance technology advances.  Kirchoff,
         ___ Vt. at ___, 587 A.2d  at 996.  The reasonableness
         inquiry hinges on the essence of underlying
         constitutional values -- including respect both for
         private, subjective expectations and for public norms.

Slip op. at 5.  Applying these guidelines to the facts of this case, we find
that defendant, regardless of what he actually expected, did not enjoy a
reasonable expectation of privacy in a public parking lot.  In that
setting, conversations are subject to the eyes and ears of passersby.
     The distinction between the reasonable expectation of privacy within
the home and outside of it is well-grounded in the law and in our culture.
Blow, slip op. at 6; see also Payton v. New York, 445 U.S. 573, 589 (1980)
(deeply rooted, subjective expectation of privacy in home); State v. Brown,
198 Conn. 348, 356-57, 503 A.2d 566, 570 (1986) ("Privacy expectations are
normally highest and are accorded the strongest constitutional protection in
the case of a private home and the area immediately surrounding it.")  It
follows from Blow that participant monitoring outside of the home will not
be subject to the same strict standards that we apply to such monitoring
within the home of the nonconsenting target; the difference is simply a
reflection of the standards that apply to non-home searches generally.  See,
e.g., Weber v. City of Cedarburg, 129 Wis. 2d 57, 67, 384 N.W.2d 333, 339
(1986) (citizen had neither subjective nor objective expectation of privacy
in his attendance at softball game or in tavern-going).
     We recognize that the use of informants, wired or not, intrudes upon
privacy, and that the use of recording technology does not alter the
essential nature of the state's act.  The widespread and unrestricted use of
government informants is surely one of the basic characteristics of a
totalitarian state.  The use of informants in law enforcement, however, has
long been accepted as a necessary compromise between the ideals of a
perfectly private society and a perfectly safe one.  We therefore hold that
warrantless electronic participant monitoring of face-to-face conversations,
in cases such as this one, where defendant, located in a public parking lot,
had no reasonable expectation of privacy, does not violate the protections
of Article 11 of the Vermont Constitution.
     Affirmed.

                                        FOR THE COURT:




                                        Chief Justice





FN1.    That the people have a right to hold themselves, their houses,
papers, and possessions, free from search or seizure; and therefore
warrants, without oath or affirmation first made, affording sufficient
foundation for them, and whereby any officer or messenger may be commanded
or required to search suspected places, or to seize any person or persons,
his, her or their property, not particularly described, are contrary to
that right, and ought not to be granted.

FN2.    Twenty-five states, applying their own constitutions or statutes,
have followed White.  See People v. Collins, No. 86690, slip op. at ___,
n.48 (Mich. Aug. 22, 1991) (Westlaw 207913), overruling People v. Beavers,
393 Mich. 554, 227 N.W.2d 511 (1975), cert. denied, 423 U.S. 878 (1975).  In
addition to the Supreme Court of Michigan, the supreme courts of Montana,
Pennsylvania, and Louisiana have overruled prior decisions requiring
warrants for participant electronic monitoring.  State v. Brown, 232 Mont.
1, 755 P.2d 1364 (1988), overruling State v. Brackman, 178 Mont. 105, 582 P.2d 1216 (1978); Commonwealth v. Blystone, 519 Pa. 450, 549 A.2d 81
(1988), aff'd on other grounds, 494 U.S. 299 (1990), overruling Commonwealth
v. Shaeffer, 370 Pa. Super. 179, 536 A.2d 354 (1987); State v. Reeves, 427 So. 2d 403 (La. 1982), rev'd on rehearing, State v. Reeves, 427 So. 2d 403,
410 (La. 1983).
     Two other states have declined to follow White under state law when
considering recorded conversations within the home.  Commonwealth v. Blood,
400 Mass. 61, 65-78, 507 N.E.2d 1029, 1031-39 (1987) (warrantless recording
and transmission of private conversations with wired informer violated state
constitution); State v. Glass, 583 P.2d 872, 880 (Alaska 1978) (Under
explicit privacy provision of Alaska constitution, "the expectation that
one's conversations will not be secretly recorded or broadcast should be
recognized as reasonable.")
         

-------------------------------------------------------------------------------
                                    Dissenting


NOTICE:  This opinion is subject to motions for reargument under V.R.A.P. 40
as well as formal revision before publication in the Vermont Reports.
Readers are requested to notify the Reporter of Decisions, Vermont Supreme
Court, 111 State Street, Montpelier, Vermont 05602 of any errors in order
that corrections may be made before this opinion goes to press.


                                No. 87-339


State of Vermont                             Supreme Court

      v.                                     On Appeal from
                                             District Court of Vermont
Edward Brooks                                Unit No. 2, Chittenden Circuit

                                             September Term, 1989


John P. Connarn, J. (Ret.), Specially Assigned

Jeffrey L. Amestoy, Attorney General, and Susan R. Harritt, Assistant
  Attorney General, Montpelier, for plaintiff-appellee

Walter M. Morris, Jr., Defender General, and David Williams, Drug Defense
  Unit, Montpelier, for defendant-appellant


PRESENT:  Allen, C.J., Peck, Dooley and Morse, JJ., and Barney, C.J. (Ret.),
          Specially Assigned


     MORSE, J., dissenting.  The Court gives meager lip service to Article
11's protection and holds Article 11 requires neither a warrant nor probable
cause for the search and seizure in this case.  The holding here is stated
in a few words:  "[D]efendant . . . did not enjoy a reasonable expectation
of privacy in a public parking lot."  The rationale is stated with
remarkable brevity:  "In that setting, conversations are subject to the eyes
and ears of passersby."
     The Court can mean nothing less than to allow government officials
unbridled discretion to eavesdrop electronically and record conversations
held outside the home.  Giving Article 11 effect behind the walls of a home,
State v. Blow, No. 88-422 (Vt. Nov. 1, 1991), is mere token protection,
because the nature of the surveillance requires but a little patience for
the target to leave the home.  It is no small irony that the suspect in this
case was coaxed from his house by a telephone call to meet and talk in a
shopping center parking lot.  The police may now monitor without limitation
the words of any person it considers suspect, dangerous, undesirable, or
unpopular.
     In analyzing situations involving exactly the same bugging device, the
Court allows Article 11 protection in the home but apparently nowhere else.
The Court misses the point.  The concept of home does not trigger Article 11
protection, see State v. Zaccaro, 154 Vt. 83, 91, 574 A.2d 1256, 1259 (1990)
(police officer's undercover entry by invitation into defendant's home not
protected by Article 11); the technological device's power to invade privacy
triggers it.  Article 11 focuses on personal expectations of privacy rather
than defined places.  See State v. Kirchoff, ___ Vt. ___, ___, 587 A.2d 988,
994 (1991) (lawful possessor may claim privacy in "open fields" where
indicia, such as fences, barriers, or "no trespassing" signs would lead a
reasonable person to conclude that the area is private); Zaccaro, 154 Vt. at
90, 574 A.2d  at 1261 (no Article 11 protection in the home per se, because
Article 11, like the fourth amendment, "protects people, not places").
     Because we reasonably expect more privacy at home for some activities
or in some circumstances does not necessarily mean we never reasonably
expect privacy away from home.  It does not follow that our expectations of
privacy outside the home are per se less reasonable.
     I suggest that the Court's approach is also as impractical as it is
unwise.  The result could at first blush be seen as an easy to apply bright-
line test, a line drawn at the doorstep of the home.  Yet, unanswered
questions abound.  Was the taped phone conversation that lured defendant
from his home to the parking lot protected under Blow?  Does it matter who
initiates the call?  If the target is not at home, but the informant is at
home, is a telephone conversation protected?  Does the home exception apply
when the conversation is recorded at the informant's home?  If the target
gives a speech to a social club meeting in the target's home is the speech
protected?
     In sum, the Court in this case discards much of what I thought Article
11 meant and instead creates a navigational signal for law enforcement.
Article 11 is "on" in the home, "off" everywhere else.  I dissent.
                                    A.
     Like the Court, I believe Article 11 is implicated in this case but,
unlike the Court, I do not think the privacy interest here is so diluted
that Article 11 protection should be eliminated.
     A reasonable expectation of privacy triggers Article 11.  State v.
Kirchoff, ___ Vt. ___, ___, 587 A.2d 988, 995 (1991).  Article 11 protects
persons wherever they are in Vermont -- at work, at play, at home, at the
office, and even outdoors.  See id. at ___, 587 A.2d  at 994 (under Article
11, legal possessor may claim privacy in "open fields").
     While espousing the reasonable expectation of privacy analysis, the
Court summarily concludes that electronically intercepting and recording
conversation no more intrudes on privacy than the informant's telling what
he remembers of it to the police.  But, the Court adds, because home has
traditionally received a high degree of Article 11 protection, we reasonably
expect not to be recorded there.  Relegating Article 11, or fourth
amendment, protection solely to the home is unsupported by any case law I
can find in any jurisdiction, state or federal.
                                    B.
     A variant of the "at-home" distinction was advanced by the federal
government and soundly rejected by the United States Supreme Court in United
States v. Chadwick, 433 U.S. 1 (1977), rev'd on other grounds, California v.
Acevedo, 111 S. Ct. 1982, 1989 (1991).  The government's position in
Chadwick was significantly less compromising of fourth amendment values than
that advanced here by this Court under Article 11.  In deciding whether a
locked footlocker could be opened without a warrant upon probable cause, the
Court described the prosecution's argument:
         [T]he Government argues that only homes, offices, and
         private communications implicate interests which lie at
         the core of the Fourth Amendment. . . .  In all other
         situations, the Government contends, less significant
         privacy values are at stake, and the reasonableness of a
         government intrusion should depend solely on whether
         there is probable cause to believe evidence of criminal
         conduct is present.

433 U.S.  at 7.  The rejection of the government's position was unanimous.
Even the dissent, authored by Justice Blackmun and joined by Justice
Rehnquist, believed "it somewhat unfortunate that the Government sought a
reversal in this case primarily to vindicate an extreme view of the Fourth
Amendment."  Id. at 17.
     Chief Justice Burger, writing for the majority, said, "the protections
a judicial warrant offers against erroneous governmental intrusions are
effective whether applied in or out of the home," id. at 9-10, and
concluded, on the basis of "settled law in this Court for over 90 years,"
id. at 11 n.6, that "a fundamental purpose of the Fourth Amendment is to
safeguard individuals from unreasonable government invasions of legitimate
privacy interests, and not simply those interests found inside the four
walls of the home," id. at 11.  The Court today gives the government's
position in Chadwick more credence than the United States Supreme Court did.
I am disturbed by the Court's parsimonious view that Article 11 offers
protection against the electronic surveillance used here only in the home.
                                    C.
     In Blow, slip op. at 7, also announced today, we recognized that a
probable cause warrant requirement was the only effective way to protect
privacy in the home.  Although "houses" are specifically identified as
protected places in Article 11, our analysis in Blow is not limited to a
particular place.  Rather, we stated our task under Article 11 is to
"identify the values that are at risk, and vest the reasonable-
expectation-of-privacy test with those values."  Id. at 5.  The value
identified in Blow is the right of every individual "'"to keep his own
sentiments, if he pleases.  He has certainly a right to judge whether he
will make them public, or commit them only to the sight of his friends."'"
Id. at 6 (quoting Commonwealth v. Blood, 400 Mass. 61, 69, 507 N.E.2d 1029,
1033 (1987) (quoting Warren & Brandeis, The Right to Privacy, 4 Harv. L.
Rev. 193, 198 n.2 (1890)).
     To protect this value, we should not succumb to the assumption that,
because we tell a friend who might betray our confidence, we cannot
reasonably expect any privacy in the conversation.  Being "quoted" from
memory and tape recorded for posterity are vastly different invasions of
privacy.  That our revelations to confidants are per se more private at home
is a groundless assumption.  What matters is the nature of the intrusion,
not where it occurs.  While the home-as-castle has considerable nostalgic
appeal, it certainly is not the only place where private activities are
carried out.  Intimate conversation is no less private in lovers' lanes than
in living rooms.  Our right to "keep [our] own sentiments" private should
follow wherever a private spot and conditions may be found.
                                    D.
     The Court cites decisions of other state courts that have declined to
follow the federal rationale of White: Commonwealth v. Blood, 400 Mass. 61,
507 N.E.2d 1029 (1987); State v. Glass, 583 P.2d 872 (Alaska 1978).  These
same cases are cited with approval in Blow, slip op. at 7, though the Court
points out and labels as "significant" the fact that both cases dealt with
electronic surveillance in a home.  Neither case, however, is grounded on a
home-based rationale, and the Glass court specifically disavows one:
         We have previously recognized the high degree of
         protection surrounding the home.  We decline to base
         our holding on this particularized protection, however,
         since we have concluded that the right of privacy is
         infringed by warrantless participant monitoring of
         private conversations regardless of the locus of the
         police surveillance.

583 P.2d  at 881 n.35 (citations omitted).  Although Blood contains no such
disclaimer, its rationale is tied broadly to "liberties of the person" to be
a full member of society.  400 Mass. at 69-70, 507 N.E.2d  at 1034 (quoting
Lopez v. United States, 373 U.S. 427, 470 (1963) (Brennan, J., dissenting);
see also id. at 69, 507 N.E.2d at 1034:
         [I]t is not just the right to a silent, solitary
         autonomy which is threatened by electronic
         surveillance:  It is the right to bring thoughts and
         emotions forth from the self in company with others
         doing likewise, the right to be known to others and to
         know them, and thus to be whole as a free member of free
         society.

     Neither of these rationales are home-based.  The individual's need for
access to conversation, society's need for interchange of ideas, and the
constitutionally mandated warrant requirement are all equally compelling,
even more compelling in many situations, when applied to activities outside
the home.
                                    E.
     The Court embraces the United States Supreme Court decisions in United
States v. White, 401 U.S. 745 (1971), and United States v. Caceres, 440 U.S. 741 (1979).  It accepts a rationale that people should assume the risk that
their words will be electronically captured and, I believe, misconstrues and
underestimates the intrusiveness of the informant's use of recording
devices.  The Court concludes that "the use of recording technology does not
alter the essential nature of the state's act."  The difference in the
nature of the intrusion, however, is precisely what is at issue.
     I agree with the sentiment expressed recently by the Supreme Judicial
Court of Massachusetts that "[t]he world of the White thesis is a topsy-
turvy one in which the paranoid's delusory watchfulness is the stance held
'reasonable.'"  Blood, 400 Mass. at 73 n.13, 507 N.E.2d  at 1036 n.13.  That
court concluded that "it has long been thought reasonable to expect that
what is supposedly said only to friends or close associates will not become
generally, indiscriminately known or 'etched in stone' without the speaker's
consent."  Id. at 69, 507 N.E.2d  at 1033.
     I also agree with Justice Harlan's White dissent, where he argued that
monitoring technology alters the nature of the assumption of the risk that a
false friend may report one's words.  About this, Harlan observed:
         Much offhand exchange is easily forgotten and one may
         count on the obscurity of his remarks, protected by the
         very fact of a limited audience, and the likelihood that
         the listener will either overlook or forget what is
         said, as well as the listener's inability to reformulate
         a conversation without having to contend with a
         documented record.  All these values are sacrificed by a
         rule of law that permits official monitoring of private
         discourse limited only by the need to locate a willing
         assistant.
Id. at 787-89 (footnote omitted); for further critical comment see Holmes
v. Burr, 486 F.2d 55, 72 (9th Cir. 1973) (Hufstedler, J., dissenting), cert.
denied, 414 U.S. 1116 (1973); Blood, 400 Mass. at 67 n.8, 507 N.E.2d  at 1032
n.8 (1987) (citing literature critical of the White doctrine and decision);
1 W. LaFave, Search and Seizure: A Treatise on the Fourth Amendment {
2.2(e), at 364 (2d ed. 1987) (approving Harlan's approach).
                                    F.
     In examining the reasonable expectation of privacy, the Court today not
only fails to take into account the concerns I have already expressed but
also fails to analyze any indicia of society's regard for privacy.  A
home/not home distinction does not reflect reality.  In analyzing what
society legitimately deems as private, we are not limited to theoretical
abstractions.  Social norms -- as well as law -- should be considered.
     The development of tort law is one such indicia.  During most of the
nineteenth century, governments did not have sophisticated technology
enabling them to conduct close surveillance from a distance.  The late 1880s
saw the development of the telephone, the microphone, and photography.
Katz, In Search of a Fourth Amendment of the Twenty-first Century, 65 Ind.
L.J. 549, 557 n.41 (1990).  Contemporaneous but not coincidental with the
development of this technology was the development of the "right to
privacy," a concept widely credited to Warren & Brandeis, The Right to
Privacy, 4 Harv. L. Rev. 193 (1890) (looking at a variety of cases where
courts had recognized some form of a "right to be let alone").
     By the 1930s, the concept of privacy was fully accepted in the law of
torts.  See Restatement (First) of Torts { 867 (1939) (approving an action
for "unreasonable and serious" interference with privacy).  In the
Restatement (Second) of Torts (1977), four separate invasion of privacy
torts are recognized: intrusion upon seclusion, { 652B; appropriation of
another's name or likeness, { 652C; unreasonable publicity given to other's
private life, { 652D; and publicity that unreasonably places another is a
false light before the public, { 652E.  By 1980, Rhode Island was the only
state not recognizing a right-of-privacy tort.  W. Keeton, Prosser and
Keeton on Torts { 117, at 851 (5th ed. 1984); Note, Tort Recovery for
Invasion of Privacy, 59 Neb. L. Rev. 808, 808-10 (1980).  In Vermont, one
form of the tort has been explicitly recognized, Staruski v. Continental
Telephone Co., 154 Vt. 568, 572-73, 581 A.2d 266, 268 (1990) (appropriation
of a person's name or likeness), and two other forms have been less directly
recognized, Lemnah v. American Breeders Service, Inc., 144 Vt. 568, 574, 482 A.2d 700, 704 (1984) (unreasonable publicity to a person's private life and
publicity that places a person in a false light).  I see no societal
movement to reverse the trend protecting persons from tortious interference
with their privacy.
     The wiretap at issue here qualifies as both an appropriation and an
unreasonable intrusion.  A private detective engaging in behavior identical
to that of the police here would be subject to a tort action.  See Dietemann
v. Time, Inc., 449 F.2d 245, 247 (9th Cir. 1971) ("In jurisdictions [where]
a common law tort for invasion of privacy is recognized, it has been
consistently held that surreptitious electronic recording of a plaintiff's
conversation causing him emotional distress is actionable."); Nader v.
General Motors Corp., 25 N.Y.2d 560, 569-70, 307 N.Y.S.2d 647, 654-55, 255 N.E.2d 765, 770-71 (1970) (unauthorized private wiretapping and
eavesdropping by mechanical and electronic means are tortious actions).  See
also Katz, In Search of a Fourth Amendment for the Twenty-first Century, 65
Ind. L.J. 549, 574 (1990) ("Core fourth amendment values are harmed when
government actors are given license to behave in ways that would be
intolerable if undertaken by private members of the community.")
     Nor is law the only indicia of society's regard for privacy.  The
individual's desire for and even need for privacy has been well documented
by scholarly writers in a variety of fields, including sociology, see, e.g.,
E. Shils, Center and Periphery 317-44 (1975) (arguing that privacy is vital
to an individual's humanity, which the government must allow in order to
gain their citizens' trust and support), social psychology, see, e.g., I.
Altman, The Environment and Social Balance 48-49 (1975) (privacy is
necessary for the development of individual self-identity and personal
autonomy), and anthropology, see, e.g., B. Moore, Privacy: Studies in Social
and Cultural History 75-76 (1984) (in modern, literate societies, privacy --
defined in part as a need for confidential exchanges of information --
serves important social interests).
     We noted in Kirchoff that no empirical evidence had been presented that
society was unwilling to recognize as reasonable an expectation of privacy
in "open fields."  ___ Vt. at ___, 587 A.2d  at 993.  We also emphasized that
society's views about what is reasonable may shift with "exigencies of the
day," so that ultimately we look at "not what society is prepared to accept
[at any given moment] but what the constitution requires."  Id. at ___, 587 A.2d  at 995-96.  Nonetheless, we need not ignore all empirical evidence
about the value that society places on privacy, even though this factor is
prone to effervescence.
     In the 1970s, Louis Harris and Associates, Inc., conducted a series of
opinion polls designed to measure growing public concern about the erosion
of privacy by new technologies of data processing and surveillance.  See
Harris & Westin, The Dimensions of Privacy 3 (1981).  A December 1978 Harris
poll concluded that Americans were "greatly concerned about threats to their
personal privacy" and that this concern "is pervasive."  Id. at 5.  Three
out of four Americans believed in a "right to privacy" equivalent to the
rights of "life, liberty and the pursuit of happiness."  Id.  Roughly one-
half feared that within ten years, "we will have lost much of our ability to
keep important aspects of our lives private from government."  Id.  A fifth
of all Americans surveyed believed that their privacy had already been
invaded.  Id. at 18.
     Although the survey included questions on a wide variety of privacy
invaders, including credit companies, insurance companies, and the press,
the single greatest number of reported invasions of privacy were by "police
searching without warrants" (19%).  Id. at 19.  Overwhelming percentages of
the respondents opposed nonwarranted phone taps (87%), inspection of mail
(92%), and bank records (81%).  Id. at 69.  Nine percent believed that they
had been the subject of a phone tap.  Id. at 5.  These figures suggest that
Americans see privacy as highly valuable and severely threatened, that
government, particularly the police, is viewed as a major invader of
privacy, and that warrants are commonly understood to be privacy's primary
protection.
                                    G.
     The Court's decision today, in my opinion, is inharmonious with its
recent Article 11 jurisprudence.  Although the type of police investigation
in the present case is different from that analyzed in Kirchoff, the Article
11 analysis is similar.  "Article 11 protects the people from governmental
intrusion into their private affairs; to the extent their affairs are
willingly made public, the provision has no application."  ___  Vt. at ___,
587 A.2d  at 993.  Had he made his words public, defendant would not be
entitled to claim Article 11 protection.  Similarly, in State v. Zaccaro, we
held that a suspect who invited an undercover police officer whom he did not
know into his apartment and proceeded to sell her cocaine could not claim
protection under Article 11, since "by opening his home to members of the
public, including those interested in procuring drugs, defendant implicitly
consented to a 'search' of his home within the scope of his invitation."
154 Vt. at 90, 574 A.2d  at 1261.
     Defendant, however, did not make his words public.  The Court concludes
that by talking through open car windows in a parking lot in public view,
defendant subject his conversation "to the eyes and ears of passersby" and
hence had neither a subjective nor objective expectation of privacy.  I
disagree.
     The Court cites only one case on an individual's expectations of
privacy in public places, Weber v. City of Cedarburg, 129 Wis. 2d 57, 384 N.W.2d 333 (1986).  In Weber, the court held that a plaintiff could not
state a { 1983 claim when police visually monitored his movements without
probable cause that he was about to commit a crime.  The court, following
Katz, 389 U.S.  at 351, held that the fourth amendment did not protect "what
a person knowingly exposes to the public" and plaintiff had no expectations
of privacy in his public movements absent an allegation that he was not in
plain view.  Id. at 67, 384 N.W.2d  at 339.  But what can be seen and what
can be heard are not identical.
     While defendant did not hide himself and his activities were plainly
visible to the police, his conversations were not audible by ordinary means
and were certainly not publicly broadcast.  He had earlier expressed concern
about a setup.  The meeting was clandestine; it is obvious that he sought to
keep the conversation quiet and confidential.  What defendant "sought to
exclude . . . was not the intruding eye -- it was the uninvited ear."  Katz,
389 U.S.  at 352.  Defendant hid only what he wanted to hide from public
scrutiny, his words.  Defendant's conversation here was unambiguously
private.
     Although the Court concedes that "widespread and unrestricted use of
government informants is surely one of the basic characteristics of a
totalitarian state," the two checks or controls provided by Article 11,
probable cause and judicial warrant, are eliminated.
     Allowing warrantless electronic participant monitoring of conversations
by law enforcement officers is not, as the Court suggests, "a necessary
compromise between the ideals of a perfectly private society and a perfectly
safe one."  The Court today does not "compromise."  Nothing whatsoever of
Article 11 protection remains.
     This case undermines Article ll's core values far more than any other
Article 11 case.  In State v. Record, 150 Vt. 84, 548 A.2d 422 (1988), we
upheld the constitutionality under Article 11 of a warrantless DUI
roadblock.  Recognizing the impracticality of acquiring reasonable suspicion
to stop impaired drivers, and characterizing the need to deal with the
public safety threat posed by them as "compelling," id. at 89-90, 548 A.2d 
at 426, we balanced this need against the relatively minor and brief
intrusion on privacy caused by the roadblock in favor of the controlled use
of DUI checkpoints.  We further justified this result on the ground that
Article 11's preference for warrants issued by magistrates was ameliorated
by the use of
         written, objective police policies based on clear
         judicial guidelines which effectively circumscribed
         officer discretion, and effectively avoided the evil
         sought to be prevented by the prohibition of general
         warrants.

Id at 86, 548 A.2d  at 423-24.  At the same time, we warned that
         the use of a balancing analysis to uphold the
         constitutionality of a roadblock seizure carries with it
         the dangerous potential for further extension of this
         type of intrusion upon the rights of citizens to travel
         unimpeded.

Id. at 89, 548 A.2d  at 425-26.  Only a "compelling" need could require the
balancing test and ultimately tip the balance.
     In State v. Berard, 154 Vt. 306, 576 A.2d 118 (1990), we upheld under
Article 11 a warrantless search of a prison cell conducted under Department
of Corrections guidelines calling for routine, unannounced, and random
"shakedown" searches of all inmate cells.  Again we adopted a balancing test
for a "special need," i.e., one exceeding normal law enforcement needs,
which required abandoning as impractical the warrant and probable cause
requirements.  Id. at 311, 576 A.2d  at 121.  And again we emphasized that
exceptional circumstances must be present to require a balancing test and
that the test must be performed in a manner that interferes least with the
preservation of Article 11 rights.  Id. at 313-14, 576 A.2d  at 122.
     The Berard Court found that the state had a "special need" to operate
its prisons safely and the prisoners' expectation of privacy was
"considerably diminished at best."  Id. at 311, 576 A.2d  at 121.  Therefore,
the Court balanced "the State's 'paramount interest in institutional
security' against the inmates' residuum of privacy rights," id. at 313, 576 A.2d  at 122, and concluded that cell searches were permissible if conducted
under clear objective guidelines and with guarantees to prevent singling out
inmates without probable cause or articulable suspicion.  Id. at 314, 576 A.2d  at 122.
     The Court noted that "a driver [at a Record checkpoint] is inherently
entitled to a higher expectation of privacy than a prison inmate," id. at
314 n.3, 576 A.2d  at 122 n.3, and, even in the case of inmates, "the State
does not have an unfettered right to invade [their] privacy" and "in
conducting random searches, must adhere to the basic safeguards we have
announced."  Id. at 317, 576 A.2d  at 124.
     In stark contrast, a person, innocent of wrongdoing and suspected of
none, who enjoys freedom outside prison walls (and the walls of home) is
subject in this case to less protection under Article 11 than a prison
inmate.  Today's decision does not use a balancing test nor does it require
the state to show a "special need" to justify the electronic surveillance,
nor are any safeguards required to guide and restrain police conduct.
     The most potent protection of Article 11 is the prevention of dubious
searches and seizures from happening at all.  Innocent people are spared and
overzealous authorities are prevented from snooping for dirt on anyone they
choose.  We emphasized in a recent decision the importance of the warrant
requirement, stating, "The warrant requirement brings a significant check
on law enforcement conduct, because not just fruitful searches will be on
the record, and searches on doubtful grounds may not be attempted at all if
authorities know they must first go before a judicial officer."  State v.
Savva, No. 90-035 (Vt. Oct. 25, 1991), slip op. at 13.  We concluded that
the warrant requirement "is and must remain a central part of Article 11 and
that any exceptions must be factually and narrowly tied to exigent
circumstances and reasonable expectations of privacy."  Id. at 14.  The
warrant requirement is basic to the guarantee of individual freedoms.
Rooted in the separation and balance of powers, it provides a restraint on
executive power by requiring review under the judicial power before an
invasion of privacy can occur.  Here, the judiciary is given no role.
     The need for a warrant requirement is even more compelling in this case
than in the automobile and container cases analyzed in Savva.  The nature of
electronic technology is such that warrantless searches and seizures will
occur without the knowledge of those spied upon.  Without a warrant
requirement, innumerable innocent people may be listened to and recorded.
Indeed, not even after-the-fact review of the search and seizure leading to
criminal charges is available because the police do not need probable cause
to search.  The social costs of the surveillance system the Court allows are
too high.
     No exigency rationale applies here; no one has argued that it would
have been impractical to get a warrant.  The Court is sacrificing a major
Article 11 protection solely for the sake of expedience.  This expedience
may be justified solely on the notion that a recording of a conversation is
more accurate than memory of it.  The fruits of illegal searches, however,
would always be admissible under such a rationale.  The goal that a trial is
a search for the truth simply does not justify the use of any means to
acquire evidence.  My view would not end police surveillance, but it would
ensure its reasonable use.
     I would reverse and remand.


                                        Associate Justice