State v. Kirchoff
Annotate this Case
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
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that corrections may be made before this opinion goes to press.
No. 87-603
State of Vermont Supreme Court
On Appeal from
v. Addison Superior Court
Robert Kirchoff March Term, 1989
Linda Levitt, J., at trial; Arthur J. O'Dea, J., at suppression hearing
John Quinn, Addison County State's Attorney, Middlebury, and Jo-Ann Gross,
Legal Intern, Department of State's Attorneys, Montpelier, for plaintiff-
appellee
Walter M. Morris, Jr., Defender General, Henry Hinton, Appellate Defender,
and David J. Williams, Special Defender for Drug Offenses, Montpelier,
for defendant-appellant
PRESENT: Allen, C.J., Peck, Dooley and Morse, JJ., and Springer, D.J.
(Ret.), Specially Assigned
MORSE, J. The sole issue in this appeal from a conviction for
cultivating marijuana is the legality under the Vermont Constitution of a
warrantless search of defendant's posted land. We hold that this search
violated Chapter I, Article 11, of the Vermont Constitution, and accordingly
reverse.
In 1982, defendant purchased thirty-nine acres of land, consisting of
woods, swamp, and meadows, in an isolated part of Lincoln, Vermont. He
put up several "no trespassing" signs where the road turned into his
driveway and posted his land with signs that said, "POSTED Private Property.
Hunting, Fishing, Trapping or Trespassing for Any Purpose Is Strictly
Forbidden. Violators Will Be Prosecuted," and recorded that fact with the
town clerk. See 10 V.S.A. { 5201. Although he gave specific permission to
certain neighbors to ride their bikes on trails that crossed his land,
defendant took actions to keep strangers off his property.
Acting on an informant's tip that marijuana was growing on defendant's
land, a sheriff and another law enforcement officer went onto the land,
without a warrant, in September of 1986. They first drove up defendant's
driveway where they noticed the "no trespassing" signs, as well as one that
read "Road Ends - Private Drive Ahead." The officers parked at a
neighbor's house, crossed a fence, and walked along an old logging road
toward defendant's house. They observed one or two old "no trespassing"
signs as they walked. At some point, the officers left the road and walked
through woods and a marsh, coming upon a marijuana patch about 100 yards
from defendant's house. The marijuana plants were not visible from any
road.
The officers left the area to obtain a search warrant. Two other
officers arrived to watch over the patch while waiting for the warrant.
Defendant was there tending the plants and was confronted by the officers.
He was talkative and confessed to cultivating marijuana. Later, after the
warrant arrived, the officers searched the house, finding more evidence of
marijuana cultivation and seizing numerous plants.
Defendant moved to suppress the evidence gathered during the search on
the ground that it was obtained in violation of the Vermont Constitution.
The motion was denied, and the evidence was admitted over defendant's
objection at trial.
I.
We begin by acknowledging that this "walk-on" search would be
permissible under the federal constitution. The United States Supreme Court
has held that the Fourth Amendment permits the police to conduct a
warrantless search of an area in which a person does not have a "reasonable
expectation of privacy." Katz v. United States, 389 U.S. 347, 360 (1967)
(Harlan, J., concurring). In Oliver v. United States, 466 U.S. 170, 179
(1984), that Court held that an expectation of privacy in "open fields" will
not be deemed reasonable for Fourth Amendment purposes. That is, "an
individual may not legitimately demand privacy for activities conducted out
of doors in fields, except in the area immediately surrounding the home."
Oliver, 466 U.S. at 178; see State v. Byrne, 149 Vt. 224, 227, 542 A.2d 276,
278 (1988). "Open fields" is a term of art and denotes areas that may be
neither open nor fields as those words are used in common speech; it refers
generally to land that is unoccupied or undeveloped. Oliver, 466 U.S. at
180 n.11. Woods, in particular, may be open fields. As the warrantless
search in this case was not of "the area immediately surrounding the home,"
an area known in law as "the curtilage," defendant's Fourth Amendment rights
were not violated.
The Court in Oliver also gave a textual and historical explanation for
its conclusion that the Amendment's framers "would have understood the term
'effects' to be limited to personal, rather than real, property." 466 U.S.
at 177 n.7. On that basis, as well as "expectation-of-privacy" grounds, the
Court found open fields to be outside the scope of the Fourth Amendment.
II.
That the officers' conduct was permissible under the federal
constitution does not, of course, end our inquiry. The Vermont Constitution
may afford greater protection to individual rights than do the provisions of
the federal charter. State v. Badger, 141 Vt. 430, 449, 450 A.2d 336, 347
(1982). The issue is whether the "walk-on" search violated Chapter I,
Article 11, of the Vermont Constitution. Article 11 provides:
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 by 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.
There are two notable textual differences in the language of the
federal and state provisions. First, the Fourth Amendment guarantees
freedom from "unreasonable searches and seizures"; Article 11 by contrast
does not contain the word "unreasonable." We have held, however, that
"[r]egardless of this difference, . . . the word 'unreasonable' is as
implicit in Article Eleven as it is express in the Fourth Amendment." State
v. Record, 150 Vt. 84, 85, 548 A.2d 422, 423 (1988) (upholding warrantless
vehicle stops).
Second, and more to the point here, the Vermont Constitution protects
persons, houses, papers, and possessions, while the Fourth Amendment
protects persons, houses, papers, and effects. Unfortunately, research into
the possible significance of this textual difference sheds little light on
the issue. While our research suggests that, at the time the Vermont
Constitution was adopted, the word "possessions" in certain contexts would
have included all real estate over which an individual exercised a certain
degree of control, McCabe, State Constitutions and the "Open Fields"
Doctrine: A Historical-Definitional Analysis of the Scope of Protection
Against Warrantless Searches of "Possessions", 13 Vt. L. Rev. 179 (1988)
(term "possessions" meant personalty, realty, or both), it also suggests
that the word "effects" would have been susceptible to a similar definition.
Webster's New International Dictionary 818 (2d ed. 1961) (term "effects"
sometimes means real property). From a definitional standpoint, in many
contexts the two words were, and remain, largely interchangeable. See
People v. Smith, 420 Mich. 1, 20, 360 N.W.2d 841, 849 (1984). The word
"effects" is now construed narrowly by the United States Supreme Court, but
that does not obscure the fact that it was often given a broader meaning in
the late eighteenth century. F. Stroud, Stroud's Judicial Dictionary 603-05
(2d ed. 1903).
Perhaps such endeavors would prove more useful if the drafters of the
Vermont Constitution had left a more complete historical record.
Unfortunately, the Vermont Constitution was adopted with little recorded
debate. Shaeffer, A Comparison of the First Constitutions of Vermont and
Pennsylvannia, in In a State of Nature: Readings in Vermont History 54, 58
(Muller & Hand eds. 1982). It borrowed from several other state
constitutions and included a few unique passages. Id. Most commentary
focuses on those portions that were unique to Vermont rather than those,
like Article 11, which were copied practically verbatim from other state
constitutions. See id. The paucity of historical record prompts us to
look elsewhere when determining the breadth of those individual rights the
Vermont Constitution was drafted to protect.
We are not the first state to address this issue, but a survey of those
states that have offers little guidance. Several states having
constitutions with language similar to Article 11 have found that the term
"possessions" does not include all real estate in which an individual has a
possessory interest, effectively giving it the same meaning that the
federal courts give to the term "effects." State v. Pinder, 128 N.H. 66,
74, 514 A.2d 1241, 1245-46 (1986) (term "possessions" in New Hampshire
Constitution does not include real property beyond curtilage); Brent v.
Commonwealth, 194 Ky. 504, 509-10, 240 S.W. 45, 47-48 (1922) (term
"possessions" means "the intimate things about one's person"). Other states
with similar constitutional language, however, have held that the word
"possessions" does result in broader protection for their citizens than that
granted under the current interpretation of the Fourth Amendment. See,
e.g., Falkner v. State, 134 Miss. 253, 257-61, 98 So. 691, 692-93 (1924)
(term "possessions" "embraces all of the property of the citizen").
Furthermore, some states whose constitutions contain the same language as
that used in the federal constitution have found nonetheless that their
constitutions afford greater protection of individual rights when it comes
to issues of search and seizure. See, e.g., State v. Dixon/Digby, 307 Or.
195, 208-12, 766 P.2d 1015, 1022-24 (1988).
Our decision, however, need not rest on the drafters' choice of one
word over another. Even if we cannot say with confidence that the scope of
the term "possessions" mandates a right of privacy in real estate, it
certainly does not rule out such a right. We strive to honor not merely the
words but the underlying purposes of constitutional guarantees, and to give
meaning to the text in light of contemporary experience. "We do not
construe constitutional provisions of this sort the way we do statutes,
whose drafters can be expected to indicate with some comprehensiveness and
exactitude the conduct they wish to forbid or control and to change those
prescriptions when they become obsolete." Oliver, 466 U.S. at 186-87
(Marshall, J., dissenting) (citing McCulloch v. Maryland, 17 U.S. (4 Wheat)
316, 407 (1819)). Instead, our duty is to discover and protect the core
value that gave life to Article 11. In the case of Fourth Amendment-
Article 11 jurisprudence, the value traditionally protected is "freedom
'from unreasonable government instrusions into . . . legitimate expectations
of privacy.'" Oliver, 466 U.S. at 187 (Marshall, J., dissenting) (quoting
United States v. Chadwick, 433 U.S. 1, 7 (1977)).
If we confined the meaning of "possessions" to personalty for Article
11 purposes, we would necessarily run counter to the federal development of
the even narrower word "effects" found in the Fourth Amendment. In numerous
cases, the United States Supreme Court has extended protection beyond the
plain meaning of the places and things enumerated in the Fourth Amendment.
Katz, for example, upheld a person's right to privacy while talking in a
public telephone booth, although the telephone booth is not a person, house,
paper or effect because "the Fourth Amendment protects people -- and not
simply 'areas.'" 389 U.S at 353. Other cases have established protection
from warrantless searches of commercial premises, Marshall v. Barlow's,
Inc., 436 U.S. 307, 311 (1978), and hotel rooms, Hoffa v. United States, 385 U.S. 293, 301 (1966). "Curtilage" is protected, even though that word is
nowhere to be found in the Fourth Amendment.
The incompatibility of the narrow textual rationale in Oliver with the
Court's broader doctrinal approach in its prior Fourth Amendment
jurisprudence perhaps explains why the Court in Oliver felt constrained to
show that the result was also justified under the "reasonable-expectation-
of-privacy" rubric. In our opinion, the Oliver Court misinterpreted its own
Fourth Amendment precedent, as expressed in Katz and its progeny. We
believe Article 11 embraces the core value of privacy discarded in Oliver.
Our more concrete task is to determine the scope of Article 11 in
prohibiting warrantless searches of protected areas. Vermont cases have
recognized certain "well-delineated exceptions" to the warrant requirement.
See State v. Wood, 148 Vt. 479, 483, 536 A.2d 902, 905 (1987). For example,
we recently decided that warrantless vehicle stops in certain circumstances
are permissible under Article 11. Record, 150 Vt. at 90, 548 A.2d at 426;
State v. Jewett, 148 Vt. 324, 330, 532 A.2d 958, 961 (1987). Moreover, we
emphasize that a person cannot rely on Article 11 to protect areas or
activities that have been willingly exposed to the public. 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. Thus, "Article 11 does not protect one who, by opening up his
or her home to those who wish to take part in illegal activity, exposes such
activity to undercover police officers." State v. Zaccaro, ___ Vt. ___,
___, 574 A.2d 1256, 1261 (1990). This principle is axiomatic in federal
law. See, e.g., Katz, 389 U.S. at 351 ("What a person knowingly exposes to
the public, even in his own home or office, is not a subject of Fourth
Amendment protection.").
Consequently, while Article 11 "defines a right dependent on a
possessory interest," Wood, 148 Vt. at 489, 536 A.2d at 908, and people
undoubtedly have a possessory interest in the land they own or occupy, not
all state intrusions onto private lands violate Article 11. We must define
the contours of the right to privacy in open fields by determining when
activities in open fields are sufficiently private to warrant constitutional
protection and when, on the other hand, they are sufficiently public not to
deserve protection.
III.
The Supreme Court in Oliver concluded that privacy in land beyond the
curtilage can never be constitutionally sanctioned. The Court reasoned that
society does not recognize a reasonable expectation of privacy in open
fields because "they do not provide the setting for those intimate
activities that the Amendment is intended to shelter from government
interference or surveillance." 466 U.S. at 179.
While generally there is not an expectation of privacy in unoccupied
lands, such is not the case where the landowner has taken steps, such as
fencing or posting, to indicate that privacy is exactly what is sought. The
Oliver Court informs us that an individual's expectations of privacy in land
-- regardless of steps taken to establish that expectation -- can never be
legitimate. Id. at 182. This per se approach cannot be squared with
Article 11 -- nor, we believe, can it be squared with the Fourth Amendment
principles of Katz. Undoubtedly, people will confine their "intimate
activities" to narrower areas as "government interference or surveillance"
grows more intrusive and pervasive. But constitutional rights should not
succumb to waning expectations or fluctuations in the degree of government
intrusion "society" is willing to condone.
The Supreme Court in Oliver appears to equate privacy with crime,
stating that "[t]he test of legitimacy is not whether the individual chooses
to conceal assertedly 'private' activity," id. at 182, and adding,
"Certainly the Framers did not intend that the Fourth Amendment should
shelter criminal activity wherever persons with criminal intent choose to
erect barriers and post 'No Trespassing' signs." Id. at 182 n.13. If one
assumes at the outset that people will only seek privacy in the use of their
land for criminal purposes, the conclusion that society will not recognize a
claim to privacy in the land readily follows. But we cannot presume how an
individual will employ private lands -- that is the nature of privacy.
Constitutional guarantees inevitably protect some criminal activity in
securing the rights of all of us.
Even assuming that society's perception of what is reasonable is the
relevant standard for measuring constitutional rights, Oliver's conclusion
is an ipse dixit. The Court sought to rationalize the Katz test with Oliver
Wendell Holmes's declaration in 1924 that "open fields" are not among the
places protected by the Fourth Amendment. Hester v. United States, 265 U.S. 57, 59 (1924). But there is no empirical evidence on whether society is
willing to recognize an expectation of privacy in "open fields" as
reasonable or unreasonable. Certainly, it was a bold and unsupported
pronouncement in Oliver that society is not prepared under any circumstances
to recognize as reasonable an expectation of privacy in all lands outside
the curtilage. Indeed, the fact that society may adjudge one who trespasses
on such lands a criminal belies the claim. See 13 V.S.A. { 3705.
The Court's conclusion was justified in part by its view that "a case-
by-case approach [would not] provide a workable accommodation between the
needs of law enforcement and the interests protected by the Fourth
Amendment." Oliver, 466 U.S. at 181. The Court was concerned that "[t]he
ad hoc approach not only makes it difficult for the policeman to discern the
scope of his authority; it also creates a danger that constitutional rights
will be arbitrarily and inequitably enforced." Id. at 181-82 (citation
omitted). We do not believe, however, that the difficulty of determining
the degree of privacy to afford a particular "open field" is any greater
than the difficulty in deciding, case by case, whether a search has invaded
the curtilage -- a question that must be faced if Oliver is followed and
that has proved vexing to the courts. See, e.g., United States v. Dunn, 480 U.S. 294 (1987) (listing criteria for identifying curtilage, including steps
landowner has taken to protect area from observation); United States v. Van
Dyke, 643 F.2d 992, 994 (4th Cir. 1981) ("isolated, rural area," "secluded
setting," and "no trespassing" signs are all factors in determining that
curtilage extended 150 feet from residence). Furthermore, the police and
courts are accustomed to enforcing the law against trespass, 13 V.S.A. {
3705; deciding whether a search intrudes upon protected Article 11 interests
will in most cases be no more arduous. See Oliver, 466 U.S. at 195-96
(Marshall, J., dissenting). In any event, however easy the bright-line test
of Oliver is to apply, the test simply fails to do justice to the values
underlying Article 11.
IV.
We stated recently that Article 11 protects the people of the state
"from unreasonable, warrantless governmental intrusion into affairs which
they choose to keep private." State v. Zaccaro, ___ Vt. at ___, 574 A.2d at
1261. Oliver's per se rule, that a person may never legitimately demand
privacy under the Fourth Amendment in his or her land beyond the borders of
the curtilage, fails to guarantee that right. We now hold that a lawful
possessor may claim privacy in "open fields" under Article 11 of the Vermont
Constitution where indicia would lead a reasonable person to conclude that
the area is private. On the other hand, Article 11 does not afford
protection against searches of lands where steps have not been taken to
exclude the public. By this standard, we seek to protect the constitu-
tional rights of those who have sought privacy in their lands, while not
preventing police from using evidence of affairs that were not kept private
-- that were, in Katz's terms, "knowingly expose[d] to the public." 389 U.S. at 351.
Where the indicia, such as fences, barriers or "no trespassing" signs
reasonably indicate that strangers are not welcome on the land, the owner or
occupant may reasonably expect privacy. "Allowing the police to intrude
into private land, regardless of the steps taken by its occupant to keep it
private, would be a significant limitation on the occupant's freedom from
governmental scrutiny." State v. Dixson/Digby, 307 Or. at 211, 766 P.2d at
1024 (no per se "open fields" doctrine under Oregon constitution). The
inquiry is objective -- whether a reasonable person should know that the
occupant has sought to exclude the public. Whether the steps taken are
adequate for this purpose will depend on the specific facts of each case.
The standard for criminal trespass is similar. 13 V.S.A. { 3705(a) provides
that a person shall be subject to criminal penalties
if, without legal authority or the consent of the person
in lawful possession, he enters or remains on any land
or in any place as to which notice against trespass is
given by:
(1) Actual communication by the person in lawful
possession or his agent or by a law enforcement officer
acting on behalf of such person or his agent; or
(2) Signs or placards so designed and situated as
to give reasonable notice.
This portion of our holding follows the rule fashioned by the Oregon
Supreme Court: "A person who wishes to preserve a constitutionally
protected privacy interest in land outside the curtilage must manifest an
intention to exclude the public by erecting barriers to entry, such as
fences, or by posting signs." Id. at 211-12, 766 P.2d at 1024. It also
approximates the view of the majority of courts that have addressed the
lawfulness of official searches of open fields under the Fourth Amendment
during the years between the Supreme Court's decisions in Katz in 1967 and
Oliver in 1984. Those courts hold that an expectation of privacy in land
outside the curtilage may be legitimate in certain circumstances and that
the per se approach is inconsistent with Katz. Note, Florida v. Brady: Can
Katz Survive in Open Fields?, 32 Am. U. L. Rev. 921, 930 (1983) (citing
cases). "The large majority [of courts] . . . have harmonized the Hester
and Katz decisions by holding that the Fourth Amendment does not apply to
searches and seizures made pursuant to observations across open fields where
the area observed is not subject to a reasonable expectation of privacy."
Sproates v. State, 58 Md. App. 547, 559-60, 473 A.2d 1289, 1295 (1984)
(citing cases). In Sproates, for example, the court concluded, after
canvassing the cases, that the defendant had not shown even a subjective
expectation of privacy in the area searched where no signs or fences
precluded entry onto the land. Id. at 565, 473 A.2d at 1298.
Vermont law allows persons to enter lands for certain purposes under
certain conditions. Chapter II, Section 67, of the Vermont Constitution
grants the people of this state the liberty "in seasonable times, to hunt
and fowl on the lands they hold, and on other lands not inclosed . . . under
proper regulations." Furthermore, 10 V.S.A. { 5212 limits a landowner's
liability in negligence when the owner "gratuitously gives another
permission, either actual or implied," to enter upon unposted land for
"recreational purposes," such as "hunting, fishing, trapping, hiking,
gathering wildflowers or berries, birdwatching, horseback riding,
picnicking, swimming, skiing, snowshoeing and similar activities." These
provisions evidence the state's policy of providing the public with certain
privileges and liberties not permitted under the common law. See Cabot v.
Thomas, 147 Vt. 207, 211-12, 514 A.2d 1034, 1037-38 (1986). They evidence
no intent, however, to limit the right of landowners to pursue their affairs
free from unregulated intrusion by officials.
V.
Although we reject the per se rule in Oliver, the inquiry we have
described does not wholly cast aside the reasonable-expectation-of-privacy
framework that has ordered Fourth Amendment jurisprudence since Katz in 1967
and has been reiterated in the case law since. See, e.g., Florida v. Riley,
488 U.S. 445, 450-51 (1989). For several reasons, however, we are reluctant
to use the phrase "reasonable expectation of privacy." First, it connotes
certain results, as in Oliver, that do not obtain under Article 11. Second,
the phrase may be misunderstood to reflect merely what society will at any
given moment recognize as reasonable. That is indeed the gloss given to the
test by Justice Harlan in his influential concurrence in Katz, 389 U.S. at
361 (and repeated in Oliver, 466 U.S. at 177): "My understanding of the
rule that has emerged from prior decisions is that there is a twofold
requirement, first that a person have exhibited an actual (subjective)
expectation of privacy and, second, that the expectation be one that society
is prepared to recognize as 'reasonable.'" Yet what society is prepared to
recognize as reasonable shifts with political winds and the perceived
exigencies of the day, and should not be the measure of individual rights
under state and federal constitutions -- which, in our view, are to be
protected, even from those intrusions that society may be prepared at the
moment to tolerate. The question is not what society is prepared to accept
but what the constitution requires.
Third, as the reasonable-expectation-of-privacy test is applied in
federal law, constitutional rights diminish with advances in technology.
Under Oliver, an expectation of privacy that was at one time reasonable may
no longer be, if, during the interim, people have adjusted to technologies
that encroach on privacy. This reasoning makes us uneasy, for our role is
to protect constitutionally guaranteed privacy, not to acquiesce in its
erosion if and as people's expectations ebb. "[W]e strive, when
interpreting these seminal constitutional provisions, to effectuate their
purposes -- to lend them meanings that ensure that the liberties the Framers
sought to protect are not undermined by the changing activities of
government officials." Oliver, 466 U.S. at 187 (Marshall, J., dissenting).
Finally, we differ from federal doctrine by placing on the State the
burden to prove that a warrantless search of open fields is not prohibited
under the principles we announce today. Federal law places the burden on
the defendant to establish a reasonable expectation of privacy in the area
searched in order to claim rights under the Fourth Amendment. Thus, under
federal law, the open fields doctrine is not generally treated as an
exception to the warrant requirement -- the burden is always on the State to
establish an exception, see Katz, 389 U.S. at 357 ("searches conducted
outside the judicial process, without prior approval by judge or magistrate,
are per se unreasonable under the Fourth Amendment") -- but as a rule
limiting the scope of the Fourth Amendment in the first instance. But see
State v. Verhagen, 86 Wis. 2d 262, 269, 272 N.W.2d 105, 108 (Ct. App. 1978)
(holding that "the burden of proving that the evidence was seized in an open
field, in common with other exceptions to the warrant requirement, rests
with the State"). In contrast, we view government searches of a person's
land as presumptively implicating Article 11, and consequently the State has
the burden of proving that such a search does not violate Article 11. See
State v. Dixson/Digby, 307 Or. at 212, 766 P.2d at 1024 (burden on State to
prove no violation of Oregon constitution in official search of land beyond
curtilage); cf. State v. Zaccaro, ___ Vt. at ___, 574 A.2d at 1259 (search
warrant not required under Article 11 where State proves that defendant
voluntarily consented to officer's entry).
In the end, it matters little whether we use the phrase "reasonable
expectation of privacy" or some variant. (Justice Potter Stewart, writing
for the Court in Katz, asked whether the government's activities violated
the privacy upon which the defendant "justifiably relied." 389 U.S. at
353.) Our fundamental divergence from federal law, in the present case,
lies not in the name given to the test but in the manner in which the test
is understood and applied in the specific context of "open fields."
VI.
There will undoubtedly arise cases where the question of the legitimacy
of a possessor's expectation of privacy in a particular area is a close one.
In this case, we need not explore nice distinctions. By no stretch of the
imagination could the officers reasonably conclude, under the standards we
have set out here, that their "walk-on" search was permissible. Given the
extensive posting of the land, defendant's intent to exclude the public was
unequivocal. On these facts, we find that the officers' walk over
defendant's logging roads and through his woods violated his right to
privacy under Article 11, and the evidence obtained thereby may not be used
against him.
We appreciate the concern that drug-related activities are a major
social problem. We do not believe, however, that the solution is a
declamation of martial law that reduces the warrant requirement to an
easily discarded "technicality." The rule announced here does not
significantly hamper the police from investigating suspected criminal
activity. It does require police to obtain a warrant, based upon probable
cause, before they enter land where it is apparent to a reasonable person
that the owner or occupant intends to exclude the public. The rule brings
the practice of law enforcement into compliance with our fundamental law,
which empowers the judiciary to guard the rights of the people through the
warrant process.
Reversed.
FOR THE COURT:
Associate Justice
________________________________________________________________________________
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. 87-603
State of Vermont Supreme Court
v. On Appeal from
Addison Superior Court
Robert Kirchoff
March Term, 1989
Linda Levitt, J., at trial; Arthur J. O'Dea, J., at suppression hearing
John Quinn, Addison County State's Attorney, Middlebury, and JoAnn Gross,
Legal Intern, Department of State's Attorney, Montpelier, for plaintiff-
appellee
Walter M. Morris, Jr., Defender General, Henry Hinton, Appellate Defender,
and David J. Williams, Special Defender for Drug Offenses, Montpelier,
for defendant-appellant
PRESENT: Allen, C.J., Peck, Dooley and Morse, JJ., and Springer, D.J.
(Ret.), Specially Assigned
PECK, J., dissenting. I am sadly disappointed, and frustrated beyond
comfort, by the decision of the majority in this case. Reviewing the
opinion, I was visited by the eerie feeling that what I was reading was not
an appellate judicial opinion at all, formulated after full and fair
consideration of the arguments presented on behalf of both parties by an
impartial and neutral body. Rather it impressed me as a brief for the
defendant. Certainly it is, in my judgment, one of the most result-oriented
opinions I have ever been exposed to. I am not prepared to countenance in
silence the extreme and unwarranted judicial activism of which the opinion
is an example. Accordingly, I dissent, and will outline my reasons below.
The flaws in the opinion are legion -- for they are many -- too many in
fact to give them all the attention they deserve. But the case has
languished, in this Court alone, for almost two years (it was argued during
the March Term of 1989). I feel it would be unconscionable to delay it any
further. Therefore, I have selected only the more egregious faults in the
opinion for discussion in this dissent.
There are at least two key words in Article Eleven which are of
fundamental importance to an honest resolution of this matter. One is
"possessions" which appears expressly in the text of the Article, the other
is the word "unreasonable," which does not appear expressly but, which "this
Court has held . . . is as implicit in Article Eleven, as it is express in
the Fourth Amendment [to the United States Constitution]." State v.
Record, 150 Vt. 84, 85, 548 A.2d 422, 423 (1988). As early as the middle of
the last century, well over one hundred years ago, this Court said: "the
construction of the eleventh article of our bill of rights is to secure only
against unreasonable searches and seizures . . . ." Lincoln v. Smith, 27
Vt. 328, 346 (1855) (emphasis added); see also State v. Badger, 141 Vt. 430,
454, 450 A.2d 336, 350 (1982) (approving Lincoln).
It is the treatment by the majority of these two words "unreasonable"
(searches or seizures) and "possessions" that I will review at the outset.
I will consider "possessions" first.
I.
The "Possessions" Enigma
Article Eleven of the Vermont Constitution protects the people
(themselves), their houses, papers, and possessions against unreasonable
search and seizure. On the other hand the Fourth Amendment to the United
States Constitution protects persons, houses, papers, and effects.
The only difference in the wording of the two search and seizure
provisions, the one using "possessions," the other, "effects," so bewilders
the majority that the opinion devotes several pages to explaining why its
research "sheds little light" on this discrepancy and does not help in
resolving the issues which confront us here. Unable to find a meaning for
"possessions," or reconcile the discrepancy, the majority resorts to the
strangest of alternatives, saying, in effect, that since we are unable to
give a meaning to the word "possessions," it has no meaning; therefore, the
word does not exist, and there is no need to consider it at all, either in
relation to the Fourth Amendment's "effects," or as a part of Article Eleven
in its own right.
I suspect that this amputation of "possessions" is a calculated tactic
rather than the result of interpretive incompetency. In my view, the word
"possessions" in Article Eleven means "personalty," and the majority is well
aware of it. Its refusal to acknowledge what is obvious, is, in reality,
based on a failure to recognize that "possessions" is not only a key word
in Eleven, which indeed it is, but may well be the key word in this inquiry.
Claiming, as I do, that "possessions" as used in Eleven refers to
personalty, I concede, nevertheless, that possessions can mean anything
possessed, including land. Its more specific meaning in a particular case,
however, depends on the context in which it is used. Thus, in media reports
and other writings concerning the so-called Okies who fled from the dust
bowl in the 1930's, they were not infrequently described as salvaging, and
taking with them, as many of their "possessions" as they could cram into
ramshackle cars and trucks. Used in such a context, there can be no
question that "possessions" means, and can only mean "personalty"; certainly
those writings had no relation to land.
As the majority notes, relying on its dictionary, the word "effects,"
like "possessions" may also apply to land. The opinion argues "effects" has
been given a broader meaning, to include realty. The United States Supreme
Court, however, has recognized, as the majority here is incapable of doing,
that many words must be defined by the context of the use to which it is
put, and has, accordingly, construed "effects," in its Fourth Amendment
context, as referring to personalty.
Disregarding a word because it may have different meanings in
different contexts constitutes an argument weak to the point of absurdity.
If every word in the English language which lends itself to more than one
meaning, depending on the context in which it is used, must be abandoned, we
would seriously impair the versatility of our mother tongue, and probably of
every other language as well.
The honest approach would have been a neutral analysis of Article
Eleven and not merely shaping it to fit a desired result. But, of course,
the majority could not bring itself to that degree of fairness and
impartiality; to have done so would have defeated its exercise in result
orientation.
The word "land," as such, does not appear expressly in Article Eleven,
nor is it employed in the Fourth Amendment. "Land" has been incorporated
into both constitutional provisions by judicial interpretation over a period
of time and, in the case of Article Eleven, without relying on the word
"possessions." The same is true of the word "effects" in the Fourth
Amendment.
As I read these two constitutional provisions, the implicit inclusion
of the word "lands" in both Article Eleven and the Fourth Amendment stems
from the word "houses." Extending the application of these provisions to so
much of the land as surrounds and serves the primary residential purposes of
the house, that is the curtilage, is a logical and reasonable
interpretation. Open fields are simply not within the scope of Article
Eleven or the Fourth Amendment.
It is not necessary, however much it may delight judicial activists, to
find that a constitutional problem exists simply because it is claimed by
one of the parties. Open fields, like all lands, have always been protected
by common-law trespass actions and, more recently, by the criminal trespass
statutes enacted by the Legislature. From reading the majority opinion, one
receives the false impression that the only way an owner of open fields can
protect him or herself against unwanted intrusion by the public, is through
a further expansion of the scope of Article Eleven. This is deliberately
misleading. For all realistic and practical purposes, the sole beneficiary
of today's decision is the owner of open fields who conducts criminal
activity thereon in defiance of the law. In short, the majority has given
birth to a right of privacy to commit crime. If our marijuana farmers have
the good sense I think they have, they will soon be busy as little bees
putting up no-trespassing signs, while laughing up their sleeves at the
gullible naivete of the cooperative majority.
A final observation. The holding by the majority that no-trespassing
signs and other devices appropriate to exclude the "public" from open fields
serve to exclude police without a warrant as well is preposterous. It is
like saying a police cruiser, in responding to an emergency call, may not
exceed the speed limit because there are laws against speeding.
If we are to accept the majority's contention that the meaning of
"possessions" cannot be determined, or, perhaps, at best, that the word is
to be given the broad and general meaning which ignores context, the words
"houses" and "papers" become unnecessary and confusing surplusage, since
both words describe possessions in the broad sense.
The majority moves on to suggest that the framers of the Vermont
Constitution acted in such haste that they really did not know what they
were doing, and, I presume, simply tossed in words willy-nilly with no
intent that they have any particular meaning; merely filling in blanks, as
it were, with the first word that came to mind. This is an insult to those
men. Moreover, it must follow that the Fourth Amendment (and indeed the
original federal Bill of Rights in its entirety), which is so similar to
Article Eleven, was also slapped together hastily, and with no particular
intent as to the meaning of the key words employed. But we know as a matter
of history that it was not carelessly prepared but was the subject of
careful consideration.
I reject any such predicate without reservation. I believe the framers
of Article Eleven selected the key words advisedly and intended a meaning in
each case. I suggest that interpreting "possessions" to mean "personalty"
is a logical and reasonable construction. Not only does it give the word a
valid meaning, which we must assume the framers intended it to have, but it
serves to reconcile Article Eleven and the Fourth Amendment.
But the majority is not indifferent to the "personalty" interpretation
-- I can understand why. The interpretation is attacked directly, even
though the attack itself is vague and badly needs an explanation. At one
point, the opinion reads: "If we confined the meaning of 'possessions' to
personalty for Article 11 purposes, we would necessarily run counter to the
federal development of even the narrower word 'effects' found in the Fourth
Amendment."
What "federal development" is it that suddenly appears before us? I
am not aware of any. It is as illusory as Macbeth's vision, "Is this a
dagger which I see before me . . . ?" The attempted explanation only adds
to the mystery. The opinion continues: "In numerous cases, the United
States Supreme Court has extended protection beyond the plain meaning of the
places and things enumerated in the Fourth Amendment." I ask, using the
vernacular, so what, exactly? What has that to do with the price of eggs?
Or in plainer language, what has it to do with some mythic "development" of
the word "effects?"
The cases cited, supposedly as examples (of something), by way of
clarification, only intensify the darkness; most of them have no relation at
all to "effects" or "personalty." Thus, a conversation in a phone booth is
not an "effect." Therefore, the claim that this has something to do with a
federal development relating to "effects" is nonsense; the same is true of
"commercial premises" and "hotel rooms," neither are "effects."
I am just guessing, but it seems probable that what the majority is
doing is making a quantum leap from the specific, i.e., "effects" to the
general, lumping together all the specifics of the Fourth Amendment,
"persons, houses, papers or effects," and equating any "general" expansion
of the Fourth Amendment to the specific "effects." I am afraid that the
majority's training in elementary logic, if any, failed to penetrate or make
a lasting impression. The majority's reasoning is a syllogistic blunder and
a non-sequitur.
Further, no one has said that the meaning of "possessions" should be
"confined" to personalty. On the contrary, the word, like any other word in
American constitutions, under rules applicable to the construction of such
documents, as distinguished from statutory construction, is subject to
expansion over time, in my judgment, however, within a range, reasonably
related to the key words. Thus, if the only key word in Eleven was
"papers," it would be an egregious abuse of power to enlarge the scope of
that word to include unrelated and unnamed categories.
I believe that key words in constitutions are put there advisedly and
with a definite purpose in mind, that they serve, not necessarily a literal,
plain-meaning function, but as guidelines, limited only by their reasonably
related scope. Thus, I am satisfied that, for example, "possessions" and
"effects," considered as personalty, could reasonably and acceptably be
interpreted to include fixtures. Given the uncanny ingenuity of the
judiciary, I expect other possibilities could be unearthed as well.
Nevertheless "personalty" should stand, within the meaning of its
generality, as a guideline to the scope of the interest protected or the
right granted.
The word "possessions" in Article Eleven, like "effects" in the Fourth
Amendment, should be interpreted to mean "personalty," and should not be
deleted as meaningless.
II.
Unreasonable Searches
There is no question, I think, that if the warrantless search involved
here was reasonable there was no violation of defendant's Fourth Amendment
rights.
The reasonableness of each search or seizure depends on the factual
background of the particular case. The facts and circumstances surrounding
the matter before us should be reviewed carefully and fairly.
Having in mind the no-trespassing signs posted by the defendant, the
majority engages in a grossly unfair example of police-bashing. The opinion
reads: "By no stretch of the imagination could the officers reasonably
conclude, under the standards we have set out here, that their 'walk-on'
search was permissible." If I were a member of a police organization, I
would deeply resent that comment; as it is, I am putting my reaction mildly
in saying I am disturbed by it.
The police are not psychic. At the time they entered the open fields
portion of defendant's property, they had no way of knowing or of antici-
pating that this Court would follow, sheep-like, the decision of one of the
most activist-oriented among the state courts, or that we would reject a
contrary decision by the high court of a state which borders us and is far
more similar to us in size and other characteristics than the former.
It is true that we have never before considered a case involving the
precise situation here, that is, the warrantless search of open fields,
distinguished from the general rule in such cases, only by the fact that
defendant had erected no-trespassing signs. The general rule, almost, if
not universally, recognized, being that such searches do not violate the
Fourth Amendment to the United States Constitution, and in this State, do
not violate Article Eleven of the Vermont Constitution. State v. Chester,
No. 88-74 (Vt. January ___, 1991).
The extent of the knowledge with which the police could be charged at
the time they entered defendant's land is, first, the general rule that a
warrant is not required to inspect open fields, and second, that the land
which they did inspect was open fields. They had no reason to suppose or
anticipate that an exception to the rule was about to be foisted on them by
a wildly activist court. For that matter, and again at that time, because
the land on which defendant chose to defy the law (successfully -- given
after-the-fact cooperation by the majority) was open fields, he had no
reasonable expectation of privacy. State v. Byrne, 149 Vt. 224, 227-28, 542 A.2d 276, 278-79 (1988) (an individual may not legitimately demand privacy
for activities conducted out of doors except in the area immediately
surrounding the home).
I have conceded that this is a case of first impression here.
Nevertheless, our prior cases, including those in which we have held that
Article Eleven and the Fourth Amendment were similar, see, State v. Record,
150 Vt. 84, 86, 548 A.2d 422, 424 (1988), mislead the police into believing
that since police conduct, not unlike their contemplated entry, did not
violate the Fourth Amendment, see Oliver v. United States, 466 U.S. 170, 181
(1984); State v. Byrne, 149 Vt. at 227, 542 A.2d at 278, their entry was
proper because it involved open fields.
Finally, I would remind the majority, as it sheds its tears for the
defendant, that the entry was not arbitrary. It was not an afternoon of
sport for the police, on the off-chance they might just happen to stumble on
marijuana or some other contraband; in much the same spirit that we hunt
deer and other game. The entry was undertaken in reliance on a "tip"; with
every reason to believe the search was legitimate, and it was done in good
faith.
Under these circumstances, in this case, I think a neutral fairness
(which I gather cannot be expected of the majority when it sees an opportu-
nity to enhance its prestige among the law reviews and other commentators on
matters legal by expanding the "rights" of even obviously guilty criminals)
should require a conclusion that the police acted reasonably and in good
faith.
The colloquial bottom line must be that if the owner of open fileds
will but erect no-trespassing signs there can be no possible combination of
facts and circumstances which might justify a warrantless search; such a
search is unreasonable per se, and the state cannot be permitted to present
evidence which, in a particular case, would support a finding that the entry
and search was reasonable. But the reasonableness factor is a
constitutional concern applicable to all cases without distinction, and
should be subject to a determination on a case-by-case basis and not
resolved arbitrarily by a per se rule which eliminates reasonableness from
Article Eleven.
III.
The Balancing Test
There are at least three examples of inexcusably grim irony which
emerge from today's decision. First, while almost rudely condemning the
United States Supreme Court for adopting a per-se rule applicable to cases
similar to this one, the majority, doing its pot-and-kettle act, promptly
execute a volte-face and promulgates its own per-se rule. As discussed
above, notwithstanding the legitimacy of warrantless searches supposedly
depends on reasonableness, and therefore to be determined on a case-by-case
basis, the majority throws that test into the ash can, holding that if an
owner erects "no-trespassing" signs or some other indication that he seeks
to keep out the public, an entry by police into open fields is per se
unreasonable.
Second, while the police of our neighbor and sister state of New
Hampshire are not subjected to such a limitation by its courts, the liberal-
activist Supreme Court of this State, just across the river, has placed
still another impediment in the way of successful criminal investigation by
the Vermont police. The irony becomes all the more apparent with the
statement in the opinion, "The rule announced here does not significantly
hamper the police from investigating suspected criminal activity." That
impresses me as complacent and pietistic; it significantly hampers the
police. Not only do they have to chase around looking for a judge to issue
a warrant before searching the same type of land which, except for no-
trespassing signs, they would not need a warrant to search, but different
judges react differently in deciding whether they will issue a warrant at
all. The majority has certainly added still another major obstacle in the
way of police efforts in carrying out their job of protecting the safety of
all of us.
Third, is still another statement in the opinion which says, in effect,
that in promulgating its per-se rule, the majority recognizes that it will
inevitably protect some criminal activity, but that this is nevertheless
necessary "in securing the rights of all of us." That borders on the
hypocritical. If the majority had the least concern for "the rights of all
of us," it would not have turned its back on Article One of the Vermont
Constitution. Guaranteeing the safety of the inhabitants of Vermont, as
individuals, is the very purpose of Article One. But rather than give it
due consideration, the article is subjected to a cover-up of silence.
This is perhaps not surprising. The opinion is result-oriented at
best. A fair consideration of Article One would pose a threat to the
majority's position. Nevertheless, such deliberate avoidance denigrates the
integrity of appellate review; it permits a result which has been determined
by consideration of only half the issues, or less. It is indeed result-
oriented. This is underscored by the fact that Article One was brought to
the attention of the majority and rejected without any reason being given.
When two articles of a constitution may call for different results if
each is considered independently of the other, the courts should first
attempt to reconcile the two if possible. If not, the court must, or
certainly should, through intelligent and careful analysis, determine which
one of the two is to be accorded priority.
If the majority is prepared to follow, sheep-like, a decision of one of
the more liberal and activist-oriented of our sister-state courts, and
reject those of states, one of them being an immediate neighbor, dismissing
the latter arbitrarily as "bad law," one would expect it has at least some
responsibility to consider the recent precedent to be found in our own
decisions which are analogous to the instant case.
State v. Record, 150 Vt. 84, 548 A.2d 422 (1988), (FN1) is a case which is
similar to the matter now before us to the extent of concerns involving
Articles Eleven and One. We did not duck the issue in that case, but faced
it squarely; at one point, we stated:
The language of Article Eleven seems to prohibit
unequivocally warrantless searches and seizures; how-
ever, Article One sets forth the principle that all
persons have the right to enjoy "certain natural,
inherent, and unalienable rights, amongst which [is] .
. . safety . . . . We recognize that in order to
preserve Article One interests . . . this Court has
balanced and limited the Article Eleven interest . . .
where the public welfare is at stake."
Id. at 86-87, 548 A.2d at 424 (emphasis added; citations omitted). In
following the principle promulgated by this statement, the Court's opinion
in Record mentions the Article One element of safety at several points, and
concludes that where a warrantless search or seizure is an issue in a case
involving both articles, the court should apply a balancing test, that is,
by weighing the public interest . . . against the degree
of intrusion into personal privacy . . . . The reason-
ableness depends "on a balance between the public
interest" [and] . . . the degree [of intrusion] upon an
individual's legitimate and reasonable expectation of
privacy . . . .
We are, after all, balancing an important private
right . . . against the safety and welfare of the people
. . . .
Id. at 87-88, 548 A.2d at 424-25 (emphasis added).
The lesson to be learned from Record contains several parts: (1)
"Article Eleven does not mandate an absolute prohibition against searches .
. . undertaken without a proper warrant." Id. at 85, 548 A.2d at 423
(emphasis added). On the contrary, it has long been recognized that there
are exceptions to the prohibition; (2) since Article Eleven does not impose
an absolute prohibition against warrantless searches, an analysis of its
range must include the effect of the other constitutional provisions which
may impinge on the scope of Eleven; (3) Article One secures to all
inhabitants of Vermont, "certain natural, inherent and unalienable rights
amongst which [is the right to enjoy personal] safety" Id. at 86-87, 548 A.2d at 424 (quoting Vt. Const. ch I, art. 1); (4) "In the past, this Court
has balanced and limited the Article Eleven interest . . . where the public
welfare is at stake." Id. at 87, 548 A.2d at 424 (emphasis added); (5) it
cannot be doubted that, under Record, the safety guaranteed by Article One
is included and implicit in the phrase "public welfare"; and (6) nor can it
be doubted fairly that (under Record) the right to be free from warrantless
searches, under Article Eleven, may in an appropriate case, be limited by
the right of all inhabitants to enjoy the safety secured by Article One.
In the light of the above discussion, I conclude and submit that, when
there exists in a given case both an Article Eleven issue, and a public
safety issue under Article One, and the two are not, or may not, be
consistent, one with the other, this Court must resolve the question of
priority through the application of a balancing test as mandated by Record.
The failure of the majority to comply with its obligation, particularly
where there are two issues, both of which involve different guarantees by
separate provisions of the Vermont Constitution, is impossible to comprehend
and completely unacceptable.
The majority not only fails to apply the balancing test, it ignores
Article One completely. The entire opinion seems based on the premise that
Article Eleven is the only constitutional provision involved, and the result
requires no more than an analysis of that article, for all the world as
though Article One did not exist. Albeit the majority opinion is "bad law,"
even in its attempt to analyze Article Eleven standing alone, it is made all
the more so by deliberately ignoring Article One.
IV.
Summary and Conclusions
In a recent case, State v. Jewett, 146 Vt. 221, 500 A.2d 233 (1985), we
said this:
The development of state constitutional jurisprudence
will call for the exercise of great judicial responsi-
bility . . . . It would be a serious mistake for this
Court to use its state constitution chiefly to evade the
impact of the decisions of the United States Supreme
Court. Our decisions must be principled, not result-
oriented. Justice Pollock of the New Jersey Supreme
Court expressed his concern this way: "[s]tate courts
should not look to their constitutions only when they
wish to reach a result different from the United States
Supreme Court. That practice runs the risk of
criticism as being more pragmatic than principled."
Id. at 224-25, 500 A.2d at 235-36 (emphasis added; footnote omitted).
It is difficult to imagine a more willful and calculated violation of
this caution urging judicial restraint, and against unprincipled activism
and result orientation, than is represented by today's decision and the
rationale which purports to justify it. The majority's hidden agenda is to
evade the impact of decisions of the United States Supreme Court.
Very conveniently in aid of its objective, the majority commences its
horror story by arguing that the word "possessions" is meaningless and,
therefore, is not considered at all. This is bad enough certainly, when the
meaning of this so-called mysterious word is considered in the context in
which it is used. But what follows exacerbates the fault. In effect, the
majority holds that in the process of constitutional interpretation, none of
the key words have meaning. Rather all we are to look for is some vague,
nebulous, and fatally subjective concept called, I gather, "underlying
values."
I do not quarrel with the concept of values, per se, in constitutional
construction. I do say, however, that they do not exist in a sort of sub-
jective, wishing-well vacuum, completely dehors the text of the provision
being considered. I believe all key words in a constitutional provision
must be presumed to have been used advisedly, intelligently, and as
guidelines to intent.
Again in Jewett, we quoted Justice Joseph Story:
"It is obvious, that there can be no security to the
people in any constitution of government if they are not
to judge of it by the fair meaning of the words of the
text."
Id., at 226, 500 A.2d at 237.
Referring to the importance of examining the context in which words are
used, Justice Oliver Wendell Holmes made several comments which are often
quoted because of their wisdom. Among them, the two following:
A word is not a crystal, transparent and unchanged, it
is the skin of a living thought and may vary greatly in
color and content according to the circumstances and the
time in which it is used.
Towne v. Eisner, 245 U.S. 418, 425 (1918).
A word generally has several meanings, even in the
dictionary. You have to consider the sentence in which
it stands to decide which of those meanings it bears in
the particular case and very likely will see that it
there has a shade of significance more refined than any
given in the work-book.
Holmes, Theory of Legal Interpretation, 12 Harv. L. Rev. 417 (1899).
If the key words employed in constitutional provisions are to have no
significance or meaning, as guidelines or otherwise, in determining the
values which underlie the provision, the statement I made in an earlier
dissent bears repeating.
If . . . constitutions, state and federal, mean whatever
the highest courts having jurisdiction say they mean,
and that power of interpretation is not exercised with
restraint, we may as well adopt "Mary had a Little Lamb"
for constitutional purposes.
State v. Brunelle, 148 Vt. 347, 365, 534 A.2d 198, 210 (1987)(Peck, J.,
dissenting).
I conclude that the majority had an obligation to give significance to
the key words in Article Eleven. Instead, it has ignored, not only
"possessions," the meaning of which is unmistakably clear when considered in
context, but the others as well. Having committed this sin against
judicial restraint, compounding it by deliberately turning its back on
Article One and the balancing test, the majority adopts Mary and her Little
Lamb as Article Eleven, thus lifting itself by its own bootstraps into an
ideal position to prepare the subjective, result-oriented opinion and
decision which follows.
The out-of-context quotation from Katz v. United States, 389 U.S. 347,
353 (1967), that constitutional search-and-seizure provisions "protect
people -- and not simply 'areas,'" without more, permits the majority, like
Napoleon, to crown itself, with the glittering halo of being concerned only
with the rights of the people ("all of us"). The patter is smooth and
seductive, perfumed with important-sounding legalese, and sprinkled with an
appropriate number of citations, all in the manner approved for judicial
opinions. But the opinion betrays its true priority; it does not concern
itself with all the people, only with those who are fortunate enough to own
sizeable real estate interests, who have no practical need for protection
since it already exists in the civil and criminal law. The only class
which, as a pragmatic fact realizes protection it does not already have, is,
to state it bluntly, the criminals.
Moreover, if the majority had the slightest concern for "all of us," it
would have given priority, or at least equal consideration, to the right,
supposedly guaranteed to all of us, to live in safety, free from violence,
the addictions, and the adverse social consequences of the drug traffic,
which constitutes one of the greatest crimes against humanity since the days
of the Third Reich in Nazi Germany under Adolf Hitler.
The refusal of the majority to concern itself with, or to give any
consideration to, the most significant of the key words in Article Eleven,
"possessions," and indeed to treat all the key words as meaningless, is
irresponsible. It permits the majority to abandon restraint, and adopt a
purely subjective, wish-fulfillment standard of constitutional
interpretation, based on nothing but the extremes of judicial activism which
is so clearly revealed by the decision. The virus which infects so many
courts in criminal cases, and leaves them with tunnel vision, seeing only
the criminal as having any rights, continues to ravage this Court. Jewett
is forgotten, Record is snubbed and buried.
The medical profession has, in recent years, stressed preventative
medicine equally with the curative. The courts should take heed of this in
criminal matters and develop their potential for preventive law. One step
might well be to serve notice that, in those cases where guilt, per se, is a
fact, as distinguished from an evidentiary question, technicalities will be
enforced, but with reluctance and with concern for the people who will be
the future victims. As it is now, too often, judicial opinions with the
authoring pens dipped in the crocodile tears of activist judges, constitute
"A Criminal's Vade Mecum, or How to Commit Crime and Get Away With It."
Today's decision stands as evidence that this Court is preoccupied,
particularly in criminal cases, with the favorite diversion of too many
state appellate courts, the sport of hunting for a constitutional baby
behind every bush, waiting for the courts to come along, arm in arm with
the whining wrongdoers who have been detected in flagrante delicto, and find
them. But such undiscovered infants are no longer that numerous, therefore
the test of a court's expertise in the sports becomes its ability to create
new ones out of legal words and phrases and cliches, and emerge crying
triumphantly like Frankenstein, "Its alive! Its alive!" Behold "the
justice[s] . . . with eyes severe . . . Full of wise saws and modern
instances." As You Like It, Act 2, Sc. 7: "Go and sin some more. Try not
to get caught the next time, but if you do remember we'll always be here.
We'll put on our thinking caps and do what we can for you; that's what we
are here for. There may well be another bush out there which we
overlooked." What is left to the state courts by which they may achieve
prestige and recognition in the trade as masters of the constitution in
criminal cases, if they cannot play their games of expansion by clever
interpretation, although, almost inevitably, as here, the expansions impede
the investigation of crimes, the self-serving disclaimers by the majority to
the contrary notwithstanding, and leads to still further shrinking of the
right to safety supposedly guaranteed to "all of us" by Article One. This
decision is analogous to judicial legislation by statutory construction, but
it is more egregious; it is judicial amendment of a constitution by
interpretation.
The decision and opinion may be glib and delight the eyes of the
"groundlings," but, analyzed, it is shadow without substance; too many
factors are simply ignored. Whatever may be said for its "form," it
remains a case of "the singer not the song" who merits the laurels. It is
like a speaker who can move his listeners by his eloquence and obscure, but
important sounding words alone, without really saying anything.
My theme of being result-oriented runs through this dissent from the
result and the rationale. It may suffer from repetition, but I feel it
strongly, and urge the Court to greater restraint hereafter, and to have
greater concern for the victims-to-be of future crimes by adopting a policy
of preventive law. "All of us" are entitled to the constitutional
guarantees of safety, and to no less. At least engage in a fair balancing
of constitutional rights.
The majority has chosen the possible prestige with which it may be
honored by law reviews and other constitutional activists among the courts,
and legal writers, to a recognition of the rights of the individual
inhabitants of the State of Vermont, which would probably pass relatively
unnoticed because it would not change the law as it has long existed. But
all that glitters is not gold; in this case it is dross, although it may
take years to discover the fools gold that lies just below the surface.
Today's decision demonstrates that English writer Thomas Babington Macaulay
was, perhaps, a better prophet than he realized when he wrote to an American
friend, "Your constitution is all sail and no anchor."
____________________________________
Louis P. Peck, Associate Justice
FN1. Strictly speaking, Record involves seizures primarily, rather than
searches as in this case. Nevertheless, under both the Fourth Amendment to
the United States Constitution, and Article 11 of the Vermont Constitution,
search and seizure are treated alike. See Record, 150 Vt. at 85, 548 A.2d
at 423 ("'[T]he construction of the eleventh article of [the Vermont
Constitution] is to secure only against unreasonable searches ....' Article
eleven does not mandate an absolute prohibition against searches and
seizures undertaken without a proper warrant." (quoting Lincoln v. Smith, 27
Vt. 328, 346 (1855)(emphasis added)).
________________________________________________________________________________
CONCURRING
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. 87-603
State of Vermont Supreme Court
v. On Appeal from
Addison Superior Court
Robert Kirchoff
March Term, 1989
Linda Levitt, J., at trial; Arthur J. O'Dea, J., at suppression hearing
John Quinn, Addison County State's Attorney, Middlebury, and JoAnn Gross,
Legal Intern, Department of State's Attorney, Montpelier, for plaintiff-
appellee
Walter M. Morris, Jr., Defender General, Henry Hinton, Appellate Defender,
and David J. Williams, Special Defender for Drug Offenses, Montpelier,
for defendant-appellant
PRESENT: Allen, C.J., Peck, Dooley and Morse, JJ., and Springer, D.J.
(Ret.), Specially Assigned
SPRINGER, J., concurring. This case demonstrates the difficulty in
addressing present-day questions under rules laid down two hundred or more
years ago. Constitutional questions are usually analyzed using the language
and concepts of the time in which the rule was first stated -- thoughts and
concepts based on philosophical and experiential developments evolved over
centuries and based not only on judicial precedent, but also parochial
considerations.
I believe that the result reached by the Court in this case is correct;
I therefore concur. However, I believe that the opinion is unduly concerned
with federal constitutional law, gives insufficient recognition to the great
difference between Vermont and federal constitutional prohibitions against
unreasonable searches and seizures, and approaches the issue in a manner
less efficient and less relevant than that which should be used. Instead,
we should focus on the historical and philosophical background of the ideas
expressed in the Vermont Constitution as it pertains to the question at
issue here.
Defendant has invoked only Chapter 1, Article 11 of the Vermont
Constitution, not its federal counterpart, the Fourth Amendment. "[O]ur
constitution is not a mere reflection of the federal charter," State v.
Badger, 141 Vt. 430, 448, 450 A.2d 336, 347 (1982), and I believe we should
look at the Vermont Constitution without reference to its federal
counterpart.
Our constitution differs both "historically and textually" from the
United States Constitution. Id. To comprehend the difference between the
Fourth Amendment use of "effects" and the Article 11 "possessions," we
should examine other provisions of those respective documents. The Court
does this to a certain extent in its introductory portion of Part II by
referring to McCabe, State Constitutions and the "Open Fields" Doctrine: A
Historical-Definitional Analysis of the Scope of Protection Against
Warrantless Searches of "Possessions", 13 Vt. L. Rev. 179 (1988). Although
McCabe, after careful and scholarly analysis, concludes that the ordinary
person of 1777 would have understood that "possessions" included land, the
Court needlessly abandons this understanding of possessions as a ground for
its decision. Rather, the Court's primary focus is on federal case law
construing the Fourth Amendment. This approach short-changes a significant
difference affecting consideration of the extent of the protection afforded
by Article 11. The Court does not examine the differences between the
development of political and civil rights in Vermont as expressed in our
constitution as contrasted with the corresponding developments in the first
thirteen states or in the United States Constitution, which was enacted
twelve years after Vermont's. When Article 11 is viewed in conjunction with
the liberal provisions of other articles of the 1777 Vermont Constitution,
there is solid ground for construing Article 11 broadly to hold that
"possessions" intentionally included land as well as houses and papers
within its protection.
Vermont, whose constitution is one of the early written constitutions,
included two liberal provisions that had not appeared before in any
constitution. The first of those provisions occurs at the beginning of its
Declaration of Rights. Not only does it declare that all men are equally
free and independent, having, among other things, the rights of "enjoying
and defending life and liberty, acquiring, possessing, and protecting
property," etc.; it specifically prohibits slavery. Vt. Const. ch. 1, art.
1. In contrast to the liberal view of the Vermont constitutional framers
are the provisions of the United States Constitution that left the
institution of slavery in place, gave slaves no political rights, and
treated slaves as three-fifths of freemen for purposes of representation.
In a second provision, Vermont then acknowledged that all freemen should
have the right to participate in government, to vote, and to hold office
without any requirement that they own property to do so. Vt. Const. ch. I,
art. 8. (Of course, this latter concept has continued to evolve; only
early in this century have women gained the right to vote, and their
economic equality has yet to be achieved.) The federal constitution
originally contained no suffrage provision, thereby leaving to the states
control of elections and requirements for voting, even for federal offices,
and most states for many years made property ownership a prerequisite for
voting and holding office. It took nearly one hundred years and a civil war
for the United States to accomplish what Vermont did in its Constitution.
Other provisions in Vermont's Constitution show a similarly expansive
approach to political rights. The original document was adopted on July 8,
1777, entitled "A Declaration of the rights of the Inhabitants of the State
of Vermont." The nineteen sections of chapter I provide a unique and broad
panoply of rights found in neither the constitutions of most of the first
thirteen states, nor in the original United States Constitution until the
separate adoption of the first ten amendments known as the Bill of Rights.
Further evidence of the libertarian focus of the Vermont Constitution
is found in its Preamble which begins
Whereas, all government ought to be instituted and
supported for the security and protection of the
community as such, and to enable the individuals who
compose it to enjoy their natural rights . . . .
The preamble then recites the land claim disputes between New York and the
inhabitants of Vermont, as the new state created by the document is for the
first time called, for the purpose of making clear that the claims of New
York, which that state had sought to enforce by invasions by law enforcement
officers, were invalid and in violation of the rights of owners of land
involved. Protection of citizens' rights to security in their land was a
key motivating force in creating the Vermont Constitution.
The right expressed in Article 11 -- that invasion of a citizen's land
by a law enforcement officer is prohibited -- is at the very heart of the
preservation of the liberty and freedom of human beings guaranteed by the
Vermont Constitution. Although Article 11's protection is limited in some
respects -- a properly obtained warrant permits entry onto a citizen's land
and only "unreasonable" searches and seizures are prohibited -- this right
remains a central force.
Because the security in property is central to the Vermont
Constitution and for all the reasons stated in Part III of the Court's
opinion, I agree that the reasonable expectation of privacy test in Oliver
"simply fails to do justice to the values underlying Article 11." All of a
citizen's land must be free from invasion by the government absent a
warrant.
The Court goes on in Part IV to require landowners to take affirmative
action to establish a reasonable expectation of privacy, e.g., by erecting
"fences, barriers or 'no trespassing' signs [that] reasonably indicate that
strangers are not welcome on the land." I cannot agree with this
conclusion. Article 11 is not concerned with "strangers" unless they are
law enforcement officers, i.e., the minions of the government, who were the
reason for the concerns of the framers of the Vermont Constitution expressed
[Ain that article. Moreover, the prohibition in Article 11 is unequivocal: it
gives the owner or possessor of the land an expectation of privacy with
regard to any law enforcement officer. The landowner should not have to
take any action to make that right effective. It is irrelevant that other
persons may enter the land by trespass or by permission. If they do and
report illegal activity on the land to law enforcement officers, and if they
are reliable people, probable cause for issuance of a warrant exists and law
enforcement officers may enter after obtaining a warrant.
The Court thereafter states that "Vermont law allows persons to enter
lands for certain purposes under certain conditions," cites the conditions,
and concludes that, while those "provisions evidence the State's policy of
providing the public with certain privileges and liberties not permitted
under the common law," "[t]hey evidence no intent, however, to limit the
right of landowners to pursue their affairs free from unregulated intrusion
by officials." With that conclusion, I agree.
In Part V of the opinion, the Court rejects the per se rule in Oliver
and explains at length why it is reluctant to use the phrase "reasonable
expectation of privacy" and to accept the nuances of that phrase as
explicated in the federal cases. It then concludes: "Our fundamental
divergence from federal law, in the present case, lies not in the name given
to the test but in the manner in which the test is understood and applied in
the specific context of 'open fields,'" leaving the test without a name and
relative to a doctrinal concept developed to explain an aberration in
federal search and seizure law. To me that is not very helpful.
Although I do not agree with the first portion of Part V of the
Court's opinion, I do agree with Part VI, that on the facts:
the officers' walk over defendant's logging roads and
through his woods violated his right to privacy under
Article 11, and the evidence obtained thereby may not be
used against him.
I also strongly agree with the statements:
The rule announced here does not significantly hamper
the police from investigating suspected criminal
activity. It does require police to obtain a warrant,
based upon probable cause, before they enter land
. . . .
The rule brings the practice of law enforcement into
compliance with our fundamental law, which empowers the
judiciary to guard the rights of the people through the
warrant process.
Finally, while I share some of the concern about the problems of law
enforcement officers, I believe that, if those problems result from our
constitution or laws, the way to overcome them is to amend the Constitution
or laws. While that procedure is time consuming -- especially where the
Constitution is to be amended -- the purpose of the provisions for amending
the Constitution is to prevent precipitate action relative to it. Perhaps
even more important would be for law enforcement officers to fully respect
constitutional rights. In too many instances over the last few decades
there have been too many cases where they did not. Although they knew what
was required; they unnecessarily cut corners. This case is an example.
Lewis E. Springer, District Judge (Ret.),
Specially Assigned
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