State v. Libbey

 
                                ENTRY ORDER
 
                      SUPREME COURT DOCKET NO. 89-226
 
                             APRIL TERM, 1990
 
State of Vermont                  }          APPEALED FROM:
                                  }
                                  }
     v.                           }          District Court of Vermont,
                                  }          Unit No. 1, Bennington Circuit
                                  }
Erwin Libbey, Jr.                 }
                                  }          DOCKET NO. 698-5-88Bcr
 
             In the above entitled cause the Clerk will enter:
 
     Defendant appeals his felony conviction of sexual assault claiming
that admissions he made at the police station following his arrest should
have been suppressed.  The facts show that two police officers, who had
probable cause to arrest defendant for child sexual abuse, drove up to
defendant's house, parked their unmarked car in his driveway, and walked to
the side door.  Defendant saw the officers drive in and met them at a screen
door on the porch of his residence.  As defendant stood at the door, one of
the officers, someone defendant recognized as a police officer, asked him to
step outside.  After being informed of the charge, defendant asked whether
he was under arrest, and he was told he was.  Defendant challenges the
denial of his motion to suppress his statements only on the officers'
failure to obtain an arrest warrant.
 
     Under these facts, the warrantless arrest did not violate the Fourth
Amendment even if defendant had been arrested inside his house.  New York v.
Harris, 58 U.S.L.W. 4457, 4459 (Apr. 18, 1990) (No. 88-1000) ("statements
made outside the home following a Payton [v. New York, 445 U.S. 573 (1980)]
violation" not barred "where the police have probable cause to arrest a
suspect").
 
     Relying on the Vermont Constitution, defendant maintains that Article
11 forbids a warrantless arrest on the steps of his home absent exigent
circumstances.  V.R.Cr.P. 3(a)(1) permits an arrest on probable cause for a
felony without a warrant.  (Insofar as defendant's argument calls for
invalidating all warrantless arrests absent exigent circumstances, we
decline to address it because the only ground raised below under Article 11
was the validity of an arrest at someone's home.)
 
     We have found a significant difference between private areas within the
curtilage of a home, and semiprivate areas, such as a driveway, steps and a
walkway.  The latter are not protected by the Fourth Amendment, absent some
indicia of privacy like a fence or gate, because "they serve[] as the normal
access route for anyone visiting the premises."  State v. Ryea, 1 Vt. L. W.
(Jan. 5, 1990) (No. 85-497) (investigatory stop in defendant's driveway
permitted).  We find no more compelling reasons to extend greater protection
under Article 11 under the facts of this case, than we did in Ryea.
 
     Affirmed.
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                   BY THE COURT:
 
 
                                   ________________________________________
                                   Frederic W. Allen, Chief Justice
 
 
                                   ________________________________________
                                   Louis P. Peck, Associate Justice
 
 
                                   ________________________________________
                                   Ernest W. Gibson III, Associate Justice
 
 
                                   ________________________________________
                                   John A. Dooley, Associate Justice
 
 
                                   ________________________________________
                                   James L. Morse, Associate Justice
 
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