State v. Oakes

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
Court, 111 State Street, Montpelier, Vermont 05602 of any errors in order
that corrections may be made before this opinion goes to press.

No. 89-506

State of Vermont Supreme Court

On Appeal from
v. District Court of Vermont,
Unit No. 1, Bennington Circuit

Ralph O. Oakes October Term, 1990

Robert Grussing III, J.

William Wright, Bennington County State's Attorney, Bennington, and
Thomas Kelly, Drug Attorney, and Pamela Hall Johnson, Department of
State's Attorneys, Montpelier, for plaintiff-appellee

Charles S. Martin of Martin & Paolini, P.C., Barre, for defendant-
appellant

PRESENT: Allen, C.J., Peck, Gibson, Dooley and Morse, JJ.

ALLEN, C.J. The issue presented on appeal to this Court is whether
our state exclusionary rule for violations of Article 11 of the Vermont
Constitution should be limited by the "good faith" exception articulated by
the United States Supreme Court in United States v. Leon, 468 U.S. 897
(1984). We hold that it should not. Accordingly, the trial court's denial
of defendant's suppression motion is reversed, and the cause is remanded.
On March 1, 1989, Detective Michael Colgan of the Bennington Police
Department applied for and received a warrant to search the residence of
defendant's girlfriend. That evening Detective Colgan and other officers
executed the warrant. Their search uncovered a large plastic bag, inside of
which were twelve smaller bags containing marijuana.
Defendant was charged with felony possession of marijuana under 18
V.S.A. { 4224(e)(1)(B) (repealed 1989). Prior to trial, defendant moved to
suppress the evidence seized in the search on the ground that there had not
been sufficient probable cause for issuance of the warrant, and consequently
the search violated Chapter I, Article 11 of the Vermont Constitution (FN1) and
the Fourth Amendment of the United States Constitution. At the hearing on
defendant's motion, the court concluded that under both federal and state
law there was "not sufficient probable cause shown by the affidavit" accom-
panying the warrant application to authorize issuance of the warrant.
Nevertheless, the court went on to deny defendant's motion to suppress. The
court, finding that Detective Colgan had acted in good faith, held the
evidence admissible despite the Fourth Amendment violation because of the
good faith exception to the federal exclusionary rule crafted in Leon. It
also held that the Article 11 violation likewise did not require exclusion
where the officer had acted in good faith.
Defendant moved for and was granted permission to appeal the court's
denial of his suppression motion. His appeal rests solely on the proper
construction of our state exclusionary rule for Article 11 violations. We
have, however, reviewed the court's determination that the affidavit
accompanying the warrant application did not constitute sufficient probable
cause for issuance of the warrant. We agree with this determination.
A.
This Court has adopted an exclusionary rule for violations of the
Vermont Constitution. (FN2) "Evidence obtained in violation of the Vermont
Constitution, or as the result of a violation, cannot be admitted at trial
as a matter of state law." State v. Badger, 141 Vt. 430, 452-53, 450 A.2d 336, 349 (1982). This was not done under compulsion of Mapp v. Ohio, 367 U.S. 643 (1961), which worked only to extend to state courts an exclusionary
rule for federal constitutional violations. Id. at 655. Rather, a state
exclusionary rule was adopted because "[i]ntroduction of [illegally
obtained] evidence at trial eviscerates our most sacred rights, impinges on
individual privacy, perverts our judicial process, distorts any notion of
fairness, and encourages official misconduct." Badger, 141 Vt. at 453, 450 A.2d at 349. The State now invites us to follow the Supreme Court's holding
in Leon and except from our state exclusionary rule evidence seized by a
police officer in objectively reasonable reliance on a subsequently invali-
dated warrant -- the so-called "good faith" exception to the exclusionary
rule. We decline the invitation. (FN3)
The United States Supreme Court has distinguished between the rights
guaranteed an individual by the Fourth Amendment and the remedy adopted to
effectuate those rights. In the thirty years following Mapp, a majority of
the Supreme Court has consistently treated the federal exclusionary rule as
a remedy distinct from the constitutional right itself. As the Supreme
Court asserted in Leon, the exclusionary rule "operates as 'a judicially
created remedy designed to safeguard Fourth Amendment rights generally
through its deterrent effect, rather than a personal constitutional right of
the party aggrieved.'" 468 U.S. at 906 (quoting United States v. Calandra,
414 U.S. 338, 348 (1974)). When the Supreme Court addresses the scope of
the federal exclusionary rule, it does not focus on an individual's
constitutional rights; rather it weighs the additional deterrent effect on
official misconduct that excluding the unlawfully obtained evidence will
achieve against the cost of excluding this evidence. (FN4)
We need not, and do not, express an opinion today on the validity of
drawing such a distinction between the rights guaranteed by Article 11 and
our state exclusionary rule. Even if our exclusionary rule were no more
than a judicially created remedy, this Court would maintain the obligation
to ensure that the remedy effectuates Article 11 rights. We point out the
distinction made by the Supreme Court simply to clarify the amount of
deference we will accord its decision in Leon. By treating the federal
exclusionary rule as a judicially created remedy rather than a constitu-
tional right, the Supreme Court's decision focuses, not on interpretation of
the federal constitution, but on an attempted empirical assessment of the
costs and benefits of creating a good faith exception to the federal
exclusionary rule. This empirical assessment can inform this Court's
decision on the good faith exception only to the extent that it is
persuasive. If the assessment is flawed, this Court cannot simply accept
the conclusion the Supreme Court draws from it. To do so would be contrary
to our obligation to ensure that our state exclusionary rule effectuates
Article 11 rights, and would disserve those rights.
B.
In Leon the Supreme Court fashioned a good faith exception to the
exclusionary rule by "conclud[ing] that the marginal or nonexistent benefits
produced by suppressing evidence obtained in objectively reasonable reliance
on a subsequently invalidated search warrant cannot justify the substantial
costs of exclusion." 468 U.S. at 922.
The Court's treatment of the "substantial costs" of not adopting a good
faith exception is summary:
The substantial social costs exacted by the exclu-
sionary rule for the vindication of Fourth Amendment
rights have long been a source of concern. . . . An
objectionable collateral consequence of this inter-
ference with the criminal justice system's truth-
finding function is that some guilty defendants may go
free or receive reduced sentences as a result of
favorable plea bargains.

Id. at 907. In a footnote the Court concedes that many researchers "have
concluded that the impact of the exclusionary rule is insubstantial." Id.
at 907 n.6. Yet the Court answers, without citing empirical data, that the
researchers' focus on nonprosecution and nonconviction of felony cases
"mask a large absolute number of felons who are released because the cases
against them were based in part on illegal searches or seizures." Id.
The Court's treatment of the "marginal or nonexistent benefits" of not
adopting a good faith exception is more extensive. Taking the possible
benefit of the exclusionary rule solely to be deterrence of official
misconduct, see id. at 906, 921 n.22, the Court attempts to assess the
deterrent effect that excluding evidence in this situation will have upon
the officials involved: the police and the judicial authorities who issue
warrants.
As to the police, the Court reasons that where the individual
officer's reliance on a subsequently invalidated warrant is objectively
reasonable, there is nothing to deter. "[W]here the officer's conduct is
objectively reasonable, 'excluding the evidence will not further the ends of
the exclusionary rule in any appreciable way; for it is painfully apparent
that . . . the officer is acting as a reasonable officer would and should
act in similar circumstances.'" Id. at 919-20 (quoting Stone v. Powell,
428 U.S. 465, 539-40 (1976) (White, J., dissenting)). The Court dismisses
as "speculative" arguments that applying the exclusionary rule in this
situation would lessen the incentive for officers to prematurely approach
judicial authorities with inadequate facts in the hope that they will get
by, and would discourage "magistrate shopping." Id. at 918.
As to the judicial authorities who issue warrants, the Court proceeds
from the premise that the exclusionary rule does not apply to them to the
conclusion that it has no deterrent effect on them.
To the extent that proponents of exclusion rely on its
behavioral effects on judges and magistrates in these
areas, their reliance is misplaced. First, the exclu-
sionary rule is designed to deter police misconduct
rather than to punish the errors of judges and magis-
trates. Second, there exists no evidence suggesting
that judges and magistrates are inclined to ignore or
subvert the Fourth Amendment or that lawlessness among
these actors requires application of the extreme
sanction of exclusion.

Third, and most important, we discern no basis, and
are offered none, for believing that exclusion of
evidence seized pursuant to a warrant will have a
significant deterrent effect on the issuing judge or
magistrate.

Id. at 916.
C.
Criticism of the Supreme Court's cost-benefit approach to the
exclusionary rule has been extensive. Voiced by commentators prior to
Leon, (FN5) the arguments were forcefully marshalled in Justice Brennan's
dissenting opinion. 468 U.S. at 928, 948-59 (Brennan, J., dissenting).(FN6) A
new wave of criticism followed issuance of Leon, (FN7) and has been used by the
highest courts of states in their rejection of a good faith exception to
their exclusionary rules. (FN8) We do not find it necessary to recite the full
content of this criticism. Consideration of a few basic strands is
sufficient to create substantial doubt concerning the Supreme Court's
conclusions.
First, there is an inconsistency between the Court's labelling the
exclusionary rule's costs as "substantial" and the Court's concession that
many of the researchers upon whom it relies have concluded that the costs
are "insubstantial." Leon, 468 U.S. at 908 n.6. The Court cites to the
empirical data in Davies, A Hard Look at What We Know (and Still Need to
Learn) About the "Costs" of the Exclusionary Rule: The NIJ Study and Other
Studies of "Lost" Arrests, 1983 Am. B. Found. Res. J. 611, 621, which
suggests that the cumulative effect of the exclusionary rule is the non-
prosecution or nonconviction of between 0.6% and 2.35% of felony arrests. (FN9)
Davies, however, does not interpret this data as revealing substantial
costs.
While those loss rates should not be viewed as
trivial, they do not amount to a "major impact" on
criminal justice -- especially when one considers that
these loss rates relate to arrests and that many such
lost arrests would have been dropped or downgraded to
misdemeanors for other reasons even if there were no
illegal search problems. Indeed . . . it is likely that
in some proportion of these "lost" arrests, the police
were not concerned with making arrests that would
"stick." . . .

. . . All the available evidence . . . indicates that
the general level of the rule's effects on criminal
prosecutions is marginal at most.

Id. at 621-22 (emphasis in original). (FN10) Davies' assessment does not justify
the conclusion that the costs of the exclusionary rule are substantial.(FN11)
Although there is no empirical data on the exclusionary rule's effect in
Vermont, we note that from the time of the Mapp decision until our decision
today, this Court has only once overturned a conviction on the basis of a
warrant lacking probable cause. See State v. Rocheleau, 131 Vt. 563, 567-
69, 313 A.2d 33, 37-38 (1973).
More fundamentally, we are hesitant to label the nonprosecution or
nonconviction of felony arrests a cost of the exclusionary rule as opposed
to a cost of the constitutional prohibition itself. As former Justice
Stewart wrote:
Much of the criticism leveled at the exclusionary rule
is misdirected; it is more properly directed at the
fourth amendment itself. It is true that, as many
observers have charged, the effect of the rule is to
deprive the courts of extremely relevant, often direct
evidence of the guilt of the defendant. But these same
critics sometimes fail to acknowledge that, in many
instances, the same extremely relevant evidence would
not have been obtained had the police officer complied
with the commands of the fourth amendment in the first
place.

. . . The exclusionary rule places no limitations on
the actions of the police. The fourth amendment does.

Stewart, The Road to Mapp v. Ohio and Beyond: The Origins, Development and
Future of the Exclusionary Rule in Search-and-Seizure Cases, 83 Col. L. Rev.
1365, 1392-93 (1983). (FN12) The same can said about the relative costs of our
state exclusionary rule and Article 11's prohibition on unlawful searches
and seizures.
There have also been substantial doubts raised concerning the Court's
conclusion that excluding evidence seized by a police officer in objectively
reasonable reliance on a subsequently invalidated warrant would be of
"marginal or nonexistent" benefit in promoting compliance with the
Constitution. The Court's notion that there is nothing to deter if a police
officer has acted with objective reasonableness is attractively simple.
"Penalizing the officer for the magistrate's error, rather than his own,
cannot logically contribute to the deterrence of Fourth Amendment
violations." Leon, 468 U.S. at 921. The exclusionary rule's deterrent
effect, however, does not rest primarily on "penalizing" an individual
officer into future conformity with the Constitution. Rather, it rests on
"its tendency to promote institutional compliance with Fourth Amendment
requirements on the part of law enforcement agencies generally." Id. at 953
(Brennan, J., dissenting). It creates an incentive for the police as an
institution to train its officers to conform with the Constitution. Con-
sequently, the important question is not whether it is of any benefit to
"penalize" the objectively reasonable conduct of an individual officer, but
rather whether failure to do so will lower the incentive for institutional
compliance. The Court gives no answer to this question.
Nor does the Court effectively address concerns that adoption of a
good faith exception will create an incentive for future inadequate pre-
sentations and magistrate shopping. The Court rejects these concerns as
"speculative." Leon, 468 U.S. at 918. Yet this is no answer, because an
assertion that such an incentive will not be created is also "speculative"
in the absence of empirical data. These concerns do have the force of logic
behind them. Because the good faith exception raises the value of having a
warrant and decreases the subsequent judicial inquiry into the basis for
the warrant, the benefits to be gained from magistrate shopping and
inadequate presentations are heightened, increasing the incentive to engage
in such conduct. See id. at 957 (Brennan, J., dissenting) ("[T]he good-
faith exception will encourage police to provide only the bare minimum of
information in future warrant applications."); State v. Marsala, 216 Conn.
150, 169, 579 A.2d 58, 67 (1990) ("the good faith exception would encourage
some police officers to expend less effort in establishing the necessary
probable cause to search and more effort in locating a judge who might be
less exacting than some others"); Wasserstrom & Mertens, The Exclusionary
Rule on the Scaffold: But Was It a Fair Trial?, 22 Am. Crim. L. Rev. 85, 109
(1984) (under good faith exception, "police need concern themselves only
with getting a warrant and not getting a warrant that will hold up on
review").
The Court's treatment of the exclusionary rule's effect on the
judicial authorities who issue warrants is also suspect. Under Leon's good
faith exception, the admissibility of evidence seized by a police officer in
reliance upon a warrant will hinge upon the objective reasonableness of this
reliance, not upon the lawfulness of the warrant. The good faith exception
effectively shields the issuing judicial officer's probable cause determin-
ation from subsequent judicial review. The Court suggests that this "may
well increase the care with which magistrates scrutinize warrant appli-
cations," Leon, 468 U.S. at 917 n.18, as it would increase the importance of
their task. The obvious rejoinder to this suggestion is that less care may
be taken precisely because their determinations will not be subject to
review. A further consequence of removing review of the issuing judicial
officer's probable cause determination is that there will be less guidance
to these judicial officers as to what constitutes sufficient probable
cause. (FN13) Without such guidance, the incidence of mistakes by issuing
judicial officers will increase. See Marsala, 216 Conn. at 169-70, 579 A.2d
at 67 ("[O]ur practice of declining to address doubtful constitutional
issues unless they are essential to the disposition of a case would preclude
our consideration of probable cause beyond reviewing whether an officer had
an 'objectively reasonable' belief in its existence."). As stated in
Wasserstrom & Mertens, supra p. 13, at 112:
[I]t is in close fourth amendment cases that new law is
made and guidance to magistrates and the police is most
needed. Close cases are both the hardest to decide and
the easiest to dispose of under the good faith
exception; in such cases the officer's objective good
faith is clearest. Thus, these are the cases that
defendants are least likely to litigate and the courts
are most likely to dispose of without reaching the
merits of the fourth amendment claim.

The ultimate criticism of the Court's cost-benefit analysis in Leon is
that it is attempting to do what at this time cannot be done. There simply
is insufficient empirical data for the costs and benefits of a good faith
exception to be accurately assessed. The benefits of the exclusionary rule
are hard to measure because they consist of "non-events." "Police com-
pliance with the exclusionary rule produces a non-event which is not
directly observable -- it consists of not conducting an illegal search."
A. Morris, The Exclusionary Rule, Deterrence and Posner's Economic Analysis
of Law, 57 Wash. L. Rev. 647, 653 (1982) (emphasis in original); see United
States v. Janis, 428 U.S. 433, 453 (1976) ("'Since as a practical matter it
is never easy to prove a negative, it is hardly likely that conclusive
factual data could ever be assembled.'") (quoting Elkins v. United States,
364 U.S. 206, 218 (1960)). As demonstrated above, there are conflicting
interpretations concerning these benefits and the rule's costs. All of these
measurement difficulties are further exacerbated when attention turns from
the costs and benefits of the exclusionary rule in general to the costs and
benefits of an untested exception to the exclusionary rule.
Even though confronted with these measurement difficulties, the Court
remains within its "redoubt of empiricism." Leon, 468 U.S. at 943 (Brennan,
J., dissenting). Yet empirical pronouncements without empirical support are
not persuasive. Because of the inability at this time to measure accurately
the costs and benefits of the exclusionary rule, see id. at 942 (Brennan,
J., dissenting), we do not find persuasive the Court's conclusions in Leon
concerning the costs and benefits of a good faith exception to the
exclusionary rule.
D.
The good faith exception adopted in Leon represents on its face a
significant limitation on the exclusionary rule. "Despite the Court's
gradual compression of the scope of the exclusionary rule, no decision prior
to United States v. Leon expressly contradicted the established principle
that evidence illegally obtained was inadmissible in the government's case-
in-chief in criminal prosecutions." State v. Novembrino, 105 N.J. 95, 138-
39, 519 A.2d 820, 845 (1987). Further, it is clear that the exception was
intended by the Court to be the rule, not the exception, where a warrant,
though invalid, exists. "[S]uppression of evidence obtained pursuant to a
warrant should be ordered only on a case-by-case basis only in those unusual
cases in which exclusion will further the purposes of the exclusionary
rule." Leon, 468 U.S. at 918. "Our conclusion is that the rule's purposes
will only rarely be served by applying it in such circumstances." Id. at
926.
We will not impose such a significant limitation upon our state
exclusionary rule on the basis of the Court's cost-benefit analysis in Leon.
Nor have we been persuaded that there are other compelling reasons to do so.
See State v. Brunelle, 148 Vt. 347, 353, 534 A.2d 198, 203 (1987)
(fashioning exception to state exclusionary rule where "defendant has
testified during direct examination in a manner contradictory to the
suppressed evidence"). The New Jersey Supreme Court, in rejecting Leon's
application to its state exclusionary rule, concluded by stating that:
We see no need in New Jersey to experiment with the
fundamental rights protected by the fourth-amendment
counterpart of our State Constitution. We will not
subject the procedures that vindicate the fundamental
rights guaranteed by . . . our State Constitution --
procedures that have not diluted the effectiveness of
our criminal justice system -- to the uncertain effects
that we believe will inevitably accompany the good-faith
exception to the federal exclusionary rule.

Novembrino, 105 N.J. at 159, 519 A.2d at 857. We likewise decline to sub-
ject the exclusionary rule we have adopted for violations of the Vermont
Constitution to such uncertain effects.
Accordingly, the trial court's denial of defendant's suppression motion
is reversed.
Reversed and remanded.

FOR THE COURT:

Chief Justice

FN1. Chapter I, 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.

FN2. The exclusionary rule for a violation of V.R.Cr.P. 41(c)'s probable
cause standard is the same as that for a violation of Article 11. State v.
Ballou, 148 Vt. 427, 433 n.2, 535 A.2d 1280, 1283 n.2 (1987).

FN3. We are not alone in our rejection of a good faith exception. States
rejecting the exception on state constitutional grounds include: State v.
Marsala, 216 Conn. 150, 579 A.2d 58 passim (1990); State v. Novembrino, 105
N.J. 95, 519 A.2d 820 passim (1987); People v. Bigelow, 66 N.Y.2d 417, 427,
488 N.E.2d 451, 458, 497 N.Y.S.2d 630, 637 (1985); State v. Carter, 322 N.C.
709, 370 S.E.2d 553 passim (1988); Commonwealth v. Edmunds, ___ Pa ___, ___
A.2d ___ passim (1991); see also Stringer v. State, 491 So. 2d 837, 841
(Miss. 1986) (Robertson, J., concurring). Massachusetts has rejected the
exception on statutory grounds. Commonwealth v. Upton, 394 Mass. 363, 370
n.5, 476 N.E.2d 548, 554 n.5 (1985).

FN4. See, e.g., United States v. Havens, 446 U.S. 620, 627-28 (1980)
(incremental furthering of deterrence does not justify excluding unlawfully
obtained evidence offered to impeach defendant's testimony during cross-
examination); Stone v. Powell, 428 U.S. 465, 493-94 (1976) (further deter-
rent effect of allowing federal habeas corpus review of state court con-
victions on unlawful search and seizure grounds is outweighed by costs);
United States v. Janis, 428 U.S. 433, 453-54 (1976) (exclusion of unlawfully
seized evidence from federal civil proceedings not shown to have an additi-
onal deterrent effect sufficient to outweigh costs); United States v.
Calandra, 414 U.S. 338, 351-52 (1974)(incremental deterrent effect of ex-
tending exclusionary rule to grand jury proceedings does not outweigh costs
of impeding grand jury's role); see also Schrock & Welsh, Reconsidering the
Constitutional Common Law, 91 Harv. L. Rev. 1117, 1118-19 (1978)(finding the
Supreme Court's exclusionary rule jurisprudence to be a "subconstitutional
calculation of costs and benefits," and labelling the progression of its
decisions a "process of deconstitutionalization").

FN5. Davies, A Hard Look at What We Know (and Still Need to Learn) About
the "Costs" of the Exclusionary Rule: The NIJ Study and Other Studies of
"Lost" Arrests, 1983 Am. B. Found. Res. J. 611; Kamisar, Does (Did) (Should)
the Exclusionary Rule Rest on a "Principled Basis" Rather Than an "Empirical
Proposition"?, 16 Creighton L. Rev. 565 (1983); Mertens & Wasserstrom, The
Good Faith Exception to the Exclusionary Rule: Deregulating the Police and
Derailing the Law, 70 Geo. L.J. 365 (1981); Nardulli, The Societal Cost of
the Exclusionary Rule: An Empirical Assessment, 1983 Am. B. Found. Res. J.
585; Stewart, The Road to Mapp v. Ohio and Beyond: The Origins, Development
and Future of the Exclusionary Rule in Search-and Seizure Cases, 83 Col. L.
Rev. 1365 (1983).

FN6. Justice Brennan begins his dissent with a perceptive assessment of
the majority's analysis.
The Court seeks to justify [its] result on the
ground that the "costs" of adhering to the exclusionary
rule in cases like those before us exceed the
"benefits." But the language of deterrence and of
cost/benefit analysis, if used indiscriminately, can
have a narcotic effect. It creates an illusion of
technical precision and ineluctability. It suggests
that not only constitutional principle but also
empirical data support the majority's result. When the
Court's analysis is examined carefully, however, it is
clear that we have not been treated to an honest
assessment of the merits of the exclusionary rule, but
have instead been drawn into a curious world where the
"costs" of excluding illegally obtained evidence loom
to exaggerated heights and where the "benefits" of such
exclusion are made to disappear with a mere wave of the
hand.
Leon, 468 U.S. at 929 (Brennan, J., dissenting).

FN7. 1 W. Lafave, Search and Seizure { 1.3 (2d ed. 1987); Alschuhler,
"Close Enough for Government Work": The Exclusionary Rule After Leon, 1984
Sup. Ct. Rev. 309; Lafave, "The Seductive Call of Expediency": United
States v. Leon, Its Rationale and Ramifications, 1984 U. Ill. L. Rev. 895;
Wasserstrom & Mertens, The Exclusionary Rule on the Scaffold: But Was It a
Fair Trial?, 22 Am. Crim. L. Rev. 85 (1984).

FN8. State v. Marsala, 216 Conn. 150, 160-71, 579 A.2d 58, 63-68 (1990);
State v. Novembrino, 105 N.J. 95, 152-54, 519 A.2d 820, 853-54 (1987).

FN9. Davies' research has been reinforced by other studies. See
Nardulli, supra note 5, at 598 Table 8, 606 (successful motions to suppress
physical evidence occurred in only 0.7% of cases in jurisdictions studied);
Uchida & Bynum, Search Warrants, Motions to Suppress and "Lost Cases:" The
Effects of the Exclusionary Rule in Seven Jurisdictions, 81 J. Crim. L. &
Criminology 1034, 1064 (1991) (in jurisdictions studied, where search
warrant was obtained only 1.5% of defendants -- none of whom were charged
with violent crime -- went free as a result of a successful motion to
suppress physical evidence).

FN10. See also Uchida & Bynum, supra n.9, at 1066:
Our study also provides further evidence that the
"cost" of the exclusionary rule in lost cases is slight
when the police obtain a search warrant. While critics
of the exclusionary rule argue that it imposes a high
cost on society by depriving the courts of reliable
evidence and allowing criminals freedom, we have found
that, in fact, few criminals are freed, and when they
are, their crimes are not serious. Thus, the cost to
society is limited.

FN11. As others have pointed out, Davies' data represents the costs of
the exclusionary rule in all illegal search cases, not just those cases
where the police acted in objectively reasonable reliance on a subsequently
invalidated warrant. The costs of the exclusionary rule in this particular
scenario are necessarily less than the costs of the exclusionary rule in
all illegal search cases. As Justice Brennan observed,
The Court . . . mistakenly weighs the aggregated costs
of exclusion in all cases, irrespective of the circum-
stances that led to exclusion, against the potential
benefits associated with only those cases in which
evidence is excluded because police reasonably but
mistakenly believe that their conduct does not violate
the Fourth Amendment. When such faulty scales are used,
it is little wonder that the balance tips in favor of
restricting the application of the rule.
Leon, 468 U.S. at 951 (Brennan, J., dissenting) (cross-references omitted)
(emphasis in original); see also 1 W. Lafave, supra n.7, { 1.3(c), at 52-53;
Wasserstrom & Mertens, supra n.7, at 103-04.

FN12. See also Leon, 468 U.S. at 941 (Brennan, J., dissenting) ("it is
not the exclusionary rule, but the Amendment itself that has imposed this
cost"); 1 W. Lafave, supra n.7, { 1.3(c), at 53 ("The [Leon] majority
consistently and repeatedly refers to the costs of the exclusionary rule as
if they were somehow a matter quite distinct from the Fourth Amendment
itself. But this simply is not the case . . . .").

FN13. The Court protests that nothing will stop reviewing courts from
ruling on the legality of the warrant before moving on to a determination of
the officer's good faith. Leon, 468 U.S. at 924-25. The answer to this
protest lies in the reality of our court system today. "[I]t is unlikely
that overburdened trial and appellate courts will take the time and effort
to write advisory opinions on fourth amendment law when they can just as
easily admit the evidence under the good faith exception." Wasserstrom &
Mertens, supra n.7, at 111.

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

No. 89-506

State of Vermont Supreme Court

On Appeal from
v. District Court of Vermont,
Unit No. 1, Bennington Circuit

Ralph O. Oakes October Term, 1990

Robert Grussing III, J.

William Wright, Bennington County State's Attorney, Bennington, and
Thomas Kelly, Drug Attorney, and Pamela Hall Johnson, Department of
State's Attorneys, Montpelier, for plaintiff-appellee

Charles S. Martin of Martin & Paolini, P.C., Barre, for defendant-
appellant

PRESENT: Allen, C.J., Peck, Gibson, Dooley and Morse, JJ.

Peck, J., dissenting. The majority opinion is additional evidence, if
any is needed at this point in time, that within the boundaries of the law
of search and seizure, the only individuals enjoying any constitutional
rights recognized by this Court are the criminals. This approach is
characteristic of most of the activist-oriented state courts today.
Typical of opinions dealing with suppression, is the assertion,
express or implied that, while a criminal may escape the consequences of his
crimes by withholding truth from legal scrutiny, the real point is that in
protecting the criminal, we are also protecting you, and you, and you; in
other words, "all of us."
The courts should know better. If they don't, they need to pause and
reflect on who it is they are protecting, not just on paper, but in fact,
and whose rights are being ignored, willfully and cynically, when truth is
suppressed based on inadequate technicalities.
I do not advocate the complete abolition of the exclusionary rule in
search and seizure cases. What I do deplore, and that strongly, is the
continuing expansion of the grounds for suppression when the only limitation
on a warrantless search, under the Fourth Amendment to the United States
Constitution and Article Eleven of the Vermont Constitution is that such
searches must not be "unreasonable."
What is reasonable should be a common-sense perception based on an
every-day, man-in-the-street understanding, unadorned by the tortured
frills, the twists and turns of which only the judicial mind is capable when
it struggles to justify a predetermined result. (FN1) An understanding of the
lay mind is as valid, if not more so, as that of the legal community. Even
the law dictionaries speak of "reasonable" in terms of the conduct a man of
ordinary care and prudence, see Black's Law Dictionary, Fifth Edition, 1979,
p. 1138.
Equally disturbing is the indignation being heard from some state
courts and legal writers for what they cleverly call the "shrinking Fourth
Amendment." It is based in large measure on recent United States Supreme
Court decisions. It is for all the world like the sulking of a spoiled
child suddenly denied its own way. The truth is, of course, that the
Supreme Court is doing no more than putting the brakes on the run-away
liberalism which has characterized several decades of judicial thinking;
restoring some sense of balance between competing rights and interests in
the criminal law. (FN2)
The bottom line is the continuing refusal of too many state courts to
recognize that the "public," is not just an amorphous unidentifiable mass.
On the contrary, it is composed of individuals, as individuals; the victims
of crime, and the victims-to-be. Their rights to protection are being
violated hourly --ÄÄ without concern by the criminal and the courts,
even as the majority opinion and this dissent are being written. The
majority, once again, proves its inability to either acknowledge or balance
both competing rights and interests; hiding behind the smoke-screen that it
thereby protects all of us! In actuality, the only ones who benefit at all
from these so-called protections, are criminals. It will continue to be so
as long as this Court refuses to balance the rights that the noncriminals
have, to safety, peace of mind and freedom from fear under Article One of
the Vermont Constitution, with the rights of the criminal, per se.
The majority opinion here is reminiscent of the dissent in State v.
Record, 150 Vt. 84, 90-106, 548 A.2d 422, 425-435 (1988). That case
involved a claim by the defendant that the warrantless stop of his vehicle
by police at a DUI checkpoint violated Chapter I, Article Eleven of the
Vermont Constitution (hereinafter Article Eleven) and, accordingly, the
trial court erred in denying his motion to suppress all evidence of intoxi-
cation obtained at the roadblock.
In an earlier case, State v. Martin, 145 Vt. 562, 496 A.2d 442 (1985),
we held that warrantless stops at sobriety checkpoints did not violate the
Fourth Amendment to the United States Constitution (hereinafter Fourth
Amendment). The defendant in Record, however, argued that Article Eleven
afforded greater protection than its federal counterpart, and urged us to
hold such warrantless stops to be unconstitutional under the Vermont
Constitution.
The claim in Record was based on the difference in the wording between
the Fourth Amendment and Article Eleven. The former prohibits only
"unreasonable" searches without a warrant. The defendant argued that under
Article Eleven the prohibition against warrantless searches is absolute,
since the word "unreasonable" does not appear in the Article.
We concluded that this argument overlooked at least two earlier
decisions. In Lincoln v. Smith, 27 Vt. 328, 346 (1855), we held that the
word "unreasonable" is as implicit in Article Eleven as it is express in the
Fourth Amendment. We approved this interpretation as recently as State v.
Badger, 141 Vt. 430, 454, 450 A.2d 336, 350 (1982). See Record, at 85, 548 A.2d at 423. Thus, the Fourth Amendment and Article Eleven are identical
for search and seizure purposes.
The logical progression in reasoning can only be this: warrantless
searches and seizures, per se, are not prohibited by any fair interpretation
of either Article Eleven or the Fourth Amendment. It is only --I
emphasize the word "only" --a warrantless search is unreasonable that
the prohibition is triggered; it is only in relation to unreasonableness
that the two provisions have significance. Thus, the first obligation of
law enforcement authorities is not necessarily to seek a warrant before
conducting a search, or to second-guess the judge who issues it when it
appears to be proper on its face. The only obligation, if the authorities
decide to proceed without a warrant, is that of reasonableness.
In a situation where no warrant is obtained, the officers, knowingly,
take a considerable risk in proceeding without one. I am not so naive as to
suggest otherwise; discretion probably remains the better part of valor,
particularly when the officers know that a court of unreconstructed
activists lies in wait for them. Nevertheless, as the two constitutional
provisions are structured, the initial inquiry by a reviewing court must
always be whether the warrantless search was reasonable, i.e., not
"unreasonable." If it is held to be reasonable, the inquiry on review of
that issue should terminate.
For all practical purposes a defective warrant does not authorize a
search any more than no warrant at all; no (legitimate) warrant has issued.
The difference lies in the officers' perception of the risks to be taken.
Conducting a search in good faith reliance on a warrant they are unaware is
defective, they are likewise unaware that any risk is being taken. Regard-
less of perceptions, the initial inquiry remains the same: was the search
reasonable?
At this point, I feel it necessary to reprise one of the bases of my
dissent in what I continue to regard as one of the worst, most irrational
and totally unnecessary opinions issued by this Court. I refer, as any
Court-watcher will guess, to State v. Kirchoff, ___ Vt. ___, 587 A.2d 988
(1991). That case stamped the Vermont Supreme Court as among the most
activist-oriented in the country, out of sync not only with the United
States Supreme Court, as the opinion expressly acknowledges, but with many
state courts as well, taking its cue primarily from another activist state
court while snubbing a recent and sensible ruling by the Supreme Court of
our twin state, New Hampshire. (FN3)
Kirchoff also involved drugs and a warrantless search. This Court, as
well as the United States Supreme Court and others, have recognized drunk
driving as a major social problem, and therefore, DUI roadblocks, that is,
stopping vehicular passage without warrants or probable cause, are justified
in the interest of the safety and welfare of the legions of individuals who
do not "drink and drive," and have the right to drive without risking their
lives.
The callous indifference of the Kirchoff majority to the plight of
those who suffer as a result of drugs, the human wreckage generated among
those irredeemably addicted, has its origin in technicalities. The infamy
and greed of the dealers and producers, at whatever level, has provided an
incentive for the involvement of organized and ruthless crime unequaled
since the days of prohibition. Unlike the drunk driver, their crimes are
deliberate, planned, organized, and above all, intentional. The unbelievable
indifference of the Kirchoff majority to the ever increasing crimes of
violence, often affecting innocent passers-by, in drug-related crimes, is
beyond comprehension. It is inexcusable.
The irony of cases like Kirchoff, and today's unfortunate decision, is
that they purport to be based on the protection of "individual" rights.
What an absolutely farcical distortion of the truth! The majority has
learned nothing from such cases as Record and Martin. The drug problem is
every bit as pervasive and against our individual rights as drunk driving,
if not more so. In a sense it is worse because it is willful; criminal
intent is always present. And yet, the majority cannot, literally, I
gather, view the "people" or the "public" as any more than an amorphous,
undefinable mass without any identifiable rights as such.
But the "people," the "public" would not exist at all if not made up
entirely of individuals; as such, we have a constitutional right to safety
under Article One; this includes freedom from the depredations of criminals,
including the violence and soul-destroying addictions inherent in the drug
problem.
I would not denigrate the rights of property owners, as property
owners, but one of the ironies involved in protecting those rights, is that
as a practical matter, the only individuals who receive any real benefits,
as distinguished from the theoretical, are those who use their property for
criminal activity. It is apparent that the majority views property used for
unlawful purposes, as more important than human life and safety.
In the real world, the problems, if any, usually faced by noncriminal
property owners are not attributable to police action, but to some kind of
invasive activity by, or disagreement with other individual laymen, often
neighbors or trespassers, legal proceedings of a civil nature: eminent
domain, boundary disputes, mortgage foreclosures and others. On the other
hand, the police are charged with protecting the safety and well-being of
all of us. They have too much to do and too few resources to spend the
limited time available in random invasions of private property without an
articulable reason or a shadow of suspicion, "just for the fun of it." The
implied concern of the majority for "jack-boots at midnight" kicking in the
front door, roving "goon-squads" invading arbitrarily and without the
slightest reason, is slick legal demagoguery that provides the pretense of a
reason for exaggerating a pimple into an Everest which isn't there. The
majority, like the famous Keystone Cops of silent-film comedy, are busy
scurrying about in pursuit of paper tigers. We have in the recent past,
demonstrated that we will act quickly and decisively to strike down
arbitrary and clearly unreasonable police action by application of the
exclusionary rule. See State v. Emilo, 144 Vt. 477, 479 A.2d 69 (1984).
In rejecting the good-faith exception, the majority dwells almost
exclusively on the economic rationale for the Supreme Court's decision in
United States v. Leon, 468 U.S. 897 (1984); the critique, however inter-
esting, is irrelevant. (FN4) The underlying concept of a good-faith exception to
the exclusionary rule deserves consideration beyond the limited scope of the
Leon rationale in Article Eleven cases. I submit that good-faith reliance
on a warrant that seems to the officers proper on its face, even though a
reviewing court subsequently finds a defect, is one of the more obvious and
workable grounds for application of an exception. "Good faith" is as much a
fact as any other; the courts are no less capable, all of a sudden, of
resolving that factual question, than any other.
Martin and Record broke the ice; drug-related crime is as egregious a
social problem as drunk driving, if not more so. Notwithstanding the pious
and ridiculous disclaimer by the Kirchoff majority, that case and today's
decision, does hamper criminal investigation, and that, seriously; the claim
to the contrary is unsupported judicial hype. The courts should be in the
van of the war against drugs as it has been in DUI cases; we should respond
affirmatively to the needs of public safety, instead of reversing our field
and providing aid and comfort to the criminal enemy.
The majority rationale here is supported by the purest speculation and
conclusions of the most liberal and activist among the state and lower-court
federal judges. Many of them, I note, are dissents expressing frustration
and pure pique because there is a moderating trend away from the galloping
activism characteristic of judicial decisions for several decades favoring
the criminal, while ignoring and increasingly limiting the rights of the
people to safety and protection. The same is true of many of the legal
writers who "came of age," as it were, under the influence of these
decisions to the point that they can no longer think independently at any
other level.
I read in the majority opinion an isolated quotation to the effect that
the
"[i]ntroduction of [illegally obtained] evidence at
trial eviscerates our most sacred rights, impinges on
individual privacy, perverts our judicial process,
distorts any notion of fairness, and encourages official
misconduct."

Quoting State v. Badger, 141 Vt. 430, 453, 450 A.2d 336, 349 (1982)
(brackets added in the majority opinion).
This quote, as it is used, is demagoguery carried to the extreme. The
facts in Badger, are miles removed from this case. In fact, it is question-
able that the "seizure" was in fact illegal at all. The clothing of the
defendant, who was 16 years old at the time, appropriated by the police, was
not taken directly from the defendant; on the contrary, it was given by the
defendant to his father without any limitation as to what disposition the
latter was to make of them. The father turned the items of clothing over to
the police voluntarily; there was no "forcible dispossession." We sustained
the earlier seizure of defendant's blood-stained shoes on the grounds that
defendant might otherwise destroy them. It makes no sense to suggest that
the clothing could not have been destroyed as readily as the shoes. It
makes no sense either, to tie the clothing to defendant's allegedly
involuntary confession, as "fruit of the poison tree," without reaching the
same conclusion in regard to the shoes. But, in any event, to say the
confession "tainted" the legality of accepting the clothing is no more than
manipulation to justify the result.
I admit, with some embarrassment, that I joined the decision in Badger
in its totality. I would not do so today. I can only plead that I have
matured in judgment since then, and to appreciate more readily the practical
need to balance certain underlying rights when there is a potential con-
flict. Cf. Record, at 87, 548 A.2d at 424. Shakespeare seems to have words
or phrases applicable to almost any situation; helping me explain my bad
judgment in approving Badger, he has not failed me. In Anthony and
Cleopatra, I, v, the latter, being reminded that she has changed her mind
concerning an earlier view, answers that her prior thinking was in "My
salad days/When I was green in judgment."
Our most sacred rights? Whose rights are we talking about? This is
solid evidence that the majority is unable to interpret the word "indivi-
dual" as referring to anyone other than defendants. Once a police investi-
gation of a crime is initiated, the only "individual" who is recognized as
having any rights is the person ultimately accused, to say nothing of the
continuing expansion of what is included in those rights by playing games
with the state constitution. The majority is totally blind to the victim of
a case sub judice, as well as the victims-to-be of crimes in the future.
The courts will do nothing, almost literally, that will serve to deter
crime, and protect us against its unholy machinations. They are unable to
consider whether a decision made today will jeopardize the rights of the
people or impede law enforcement down the road of tomorrow.
The primary basis for this unacceptable approach to justice is the
parallel inability of the appellate mind to accept or understand the fact
that the words, the "public," the "people," have any meaning which can be
defined in terms of rights. The Court has either forgotten that Article One
exists, or doesn't quite know what to do when confronted with two constitu-
tional provisions that may not be entirely consistent. Ergo, it selects
one, goes into a formulaic judicial tizzy, and tosses the other out the
window of its ivory tower and into the murky moat of forgotten things below.
It is the disregard of the rights we all have as individuals, per se, on
which the majority, repeatedly, turns its back. The majority refuses to
balance the two sets of rights, notwithstanding the holding in Record that
such a procedure should be followed.
The opinion speaks of the inadmissibility of "illegally" obtained
evidence. That is bad logic; it begs the question. It assumes one of the
main premises: illegality. I noted above that the acquisition of evidence,
however accomplished, becomes illegal only if the search itself is unreason-
able. Considering this, the real issue here is, in part, whether a search,
based on the good faith reliance by the police, on a warrant, proper on its
face, but subsequently determined to be defective is "unreasonable."
I see nothing to render a good-faith search without a warrant
necessarily unreasonable under either constitution. The predictions,
adopted from dissenting opinions in Leon, have no supporting empirical evi-
dence. They are, therefore, pure speculation and unsupported conclusions.
They sink to the level of police bashing by the judiciary, so currently in
fashion. The police are heroes when they are needed, often putting their
lives in jeopardy, or risking serious injury (a number of officers are
killed and injured in line of duty every year) but when they are not
responding to a need, they are frequently the subject of criticism --
in short; usually generalities inspired by sensational, albeit
unfortunate exceptions. Lines from "Tommy" by Rudyard Kipling, which
compares the public reaction to British soldiers in times of peace and war,
are often applicable to the police as well:
For it's Tommy this, an' Tommy that,
An' "chuck him out, the brute!"
But its "Saviour of 'is country" when
The guns begin to shoot;

I am not unmindful that "rogue-cops" do surface from time to time. When
that happens, their conduct tends to blacken unfairly the police image
everywhere. Nevertheless, law enforcement officers at all levels are, on
the whole, diligent and sincere; they act, for the most part, in good faith
in their efforts to protect our lives, safety and property, when needed. I
regret they must be subject to criticism by, of all sources, the courts.
As I noted above, the majority's quote from Badger assumes the disputed
evidence in this case was illegally obtained. This must be so, else the
quotation is employed in a vacuum and is meaningless here. I contend,
however, that the search was not illegal because it was reasonable.
I agree that "our" most sacred rights are indeed being eviscerated,
but not in the sense proposed by the majority. I have argued earlier, that
in the criminal law, there are two distinct classes of rights which are
always involved, those of the accused and those of the public.
Both classes are entitled to constitutional protections. For purposes
of the law generally, as applied to a particular case, the "our" should
refer to all of us who had no guilty involvement in the crime; this
includes the immediate victim(s), victims-to-be, i.e., those among us who
will become the victims of similar crimes hereafter, notwithstanding their
constitutional right to safety, and even the accused to the extent he is not
only presumed innocent, but is innocent in fact. (FN5) Finally, I include in
the "our," all the people; those considered as individuals, who have never
been, and (hopefully) never will be, victims of a crime. Every single
individual has a constitutional right to safety, peace of mind, freedom from
fear, and to enjoy their property, real and personal, for all lawful
purposes, without the incursions of criminal activity. Every one of us has
a right to walk the streets, alone if we see fit to do so, at night as well
as during the day, in peace, without being molested or harassed.
It is the above-described rights which are being "eviscerated" by the
courts with decisions like State v. Brunell, 150 Vt. 388, 554 A.2d 242
(1988), and Kirchoff (an omen of darker days to come for "our" rights;
prophetic of today's horror and, I predict, others yet to come). Like Mary
Shelley's Frankenstein, the Court, in its inexcusable and ill-advised
activism, has created a monster which lumbers unchecked among our rights,
tearing and "eviscerating" at will. Unlike hapless Frankenstein, however,
the majority labors to enhance the destructive powers of its creation
rather than to control it.
And what is this claim by the majority that the search in this case
"impinges" on ["Our" right to] individual privacy? Excuse me; whose right
to privacy? Certainly not "ours." There is no danger, except through
unrealistic theorizing about warrantless searches being undertaken for no
reason at all. Where are the examples of such wild intrusions, or the
evidence that there is a legitimate danger to be feared? The majority
provides none.
The Kirchoff majority said, in effect, it is far better that criminals
"get away with it," than to invade their privacy. This wooly-headed
thinking is repeated by the majority here. In short, the majority has
announced a right of privacy to commit crimes; the official stamp of
approval is on the proposition that it is socially acceptable to commit a
crime, as long as you don't get caught at it; the Court recognizes your
right to commit crime on your own property, and will cooperate with you in
any criminal activity you choose to undertake on your land by protecting
your privacy against warrantless searches. This judicial doctrine brings us
full circle back to the position that if a warrantless search is reasonable
it is not constitutionally prohibited; it is not forbidden absolutely,
privacy rights notwithstanding. This, in turn, returns me to the preceding
paragraph, arguing that the threat of routine warrantless invasions into
the property and privacy of the law-abiding, is an unrealistic and
deplorable fantasy.
The majority does not say how the search in this case "perverts our
judicial process." Aside from the fact that it has a nice, legal-sounding
ring to it, I fail to see its application to this case. The only perversion
here, as in Kirchoff, Badger, Brunell, et al., is the Court's on-going
refusal to recognize "people" as made up of individuals, and ignoring their
rights out of existence to the point they are not even entitled to be bal-
anced against competing rights. Record and Martin are now to be regarded
as quaint aberrations to the extent they stressed the importance of
balancing in criminal cases.
We should all realize that defense motions to suppress evidence in
criminal cases are almost always designed for one purpose only: to withhold
from the jury an inculpatory fact; an item of truth which may, and probably
will, have an adverse effect on the defense if admitted. If this were not
so, such a motion would be pointless.
A criminal defendant is entitled to a fair trial; but the suppression
of evidence embodied in a relevant fact, does not impinge on the fairness of
the trial one way or another. A criminal trial, as such, is never "unfair"
to the defendant simply because all the relevant inculpatory evidence is
placed before the jury. If he was the actual perpetrator of the crime, he
is no less guilty-in-fact, nor is the evidence any less true or relevant
because obtained by a warrantless search. Suppression of evidence is
designed to restrain unreasonable warrantless searches and seizures by the
police; it is a punitive device imposed on governmental enforcement author-
ities to curb abuses. It can be a powerful deterrent in the implementation
of its purpose. Nevertheless, if the imposition of the exclusionary rule
proves a benefit to a defendant, by eliminating otherwise legitimate evi-
dence against him, it is a secondary and incidental benefit not related to
the fairness of his trial, per se, one way or another.
In the case before us, assuming arguendo that the warrant was entirely
proper (as, indeed, I believe it was), its admission into evidence, would
have been entirely proper and consistent with the fairness of the trial,
regardless of its adverse consequences to defendant's case. Moreover, the
full panoply of the truth, ergo, the whole truth, would not be withheld from
the jury; the case as it really was, would be before the jury for its
consideration. If a fair trial is a double-edged sword, contemplating a
full disclosure of all the facts, the suppression rule operates against the
fairness due the people, even though it is justified in an extreme case as a
consequence of the balancing process.
Addressing the final point that admission of the challenged evidence
would encourage official misconduct, its application here, and generally,
for that matter, is not supported. It is an example of judicial police
bashing and speculation. Ultimately it is based on the tiresome question:
"How would you like a policeman walking into your house in the middle of the
night without a warrant and start searching the place?" Such a question
recognizes that most people do not commit crimes, and that the police have
not the slightest reason to suspect the contrary. The question lies at the
root of the claim that, in protecting the criminal, the courts are, in
reality, protecting the innocent in their right to privacy. In reality,
it is a trick question which contains its own self-evident answer: of course
I wouldn't like it, no one, guilty of something or not, would like it.
When we blow away the smoke screen, however, the question is seen for
what it is: simplistic and naive. Being unable to see the "woods" of
society as a whole, for the "trees" of the individual criminals who stand
before them, all too many state courts continue their abandonment of
responsibility to the people; they are incapable of visualizing society as
made up of individuals, concentrating on the more heady, glamourous and
prestige-building pastime of hampering law enforcement and removing obstacle
after obstacle from the practice of crime.
Granting that no one relishes the idea of the police arbitrarily
invading their homes, ask also how many, not involved in criminal activity,
who retire at night, leave their homes unoccupied while at work during the
day, or while they are away for some purpose during the evening, or for
longer periods on vacations, how many of these are filled with continuing
apprehension that the police will just drop in unexpectedly for a friendly
little search? Ask those who lock their doors at night or when they are
away, install alarms and other security devices, why they do so. Ask the
same question of banks, stores, and other businesses, and why many of them,
who are big enough to justify it, employ their own night watchmen and other
security personnel. Will anyone reply that these precautions are taken to
secure the premises against unwarranted invasions and searches by the
police? Even the majority must acknowledge that no one, other than
criminals, fears, or have any reason to fear "official misconduct" in this
respect.
Regardless of the above, the majority wave Article Eleven triumphantly,
boasting that it has taken one more step to deter police abuses, quoting,
en route, all the gods of activism it can put its hands on. But the
criticism of the Leon rationale is not justified because it is irrelevant.
We are talking about good-faith exceptions, per se, not the rationale which
one particular court employed in one case.
The criticism of the good-faith exception, per se, is invalid for
several reasons. The opinion refers to any loosening of Article Eleven
restrictions as "deconstitutionalizing" (take a minute to absorb that one!
No wonder laymen are baffled by legalese!) Notwithstanding my enthusiasm
for this grand new word, it isn't enough to obscure the fact that deconsti-
tutionalizing is exactly what the majority has done. It has "deconstitu-
tionalized" Article One right out of our Constitution by ignoring it without
reference, and ignoring Record as well, in which we not only recognized the
importance of Article One, but we expressly approved a similar type of
police conduct so unalterably condemned by the majority in both Kirchoff and
the instant case. It seems almost unbelievable that any creditable
appellate court would thus disregard its own precedential decisions (Record)
less than three years old; what price stare decisis?
It is inexcusable, and I cannot condone with any respect, an appellate
decision which concerns itself with only one aspect of a case in order to
accommodate a specific result. Plain and simple justice, to say nothing of
common sense, should be more than enough to convince any court that com-
peting rights should be subjected to a balancing examination and neither
one of them swept in silence under the carpet.
The majority demonstrates that it will demean the interests of justice
and common sense by continually piling one device upon another. It argues
with great piety that it is acting solely to deter police misconduct in
undertaking warrantless searches, as if the practice was running out of
control. At the same time it turns a contemptuous back on any new measure
that might serve to deter criminal activity, which is vrtually out of
control. But perhaps I should realize that this is getting to be par for
the course.
Reprising the essence of this dissent, the opinion is clear evidence
that the majority is incapable, or inexcusably unwilling, to recognize that
in every criminal case there are two separate and distinct sets of constitu-
tional rights involved. Both of them involve individual rights; they may
and often do, conflict with each other. In no other concern of the criminal
law is this dualistic aspect of rights more clearly illustrated than in
search and seizure cases. The first of these rights are those of the
accused (defendant), as such, to protection against unreasonable searches
and seizures under Article Eleven. The second set of individual rights, of
equal importance none-the-less, are those rights of every individual to the
safety of his person and property against criminal activity, as well as to
peace of mind and freedom from fear, all under Article One of our State
Constitution. Cf. 42 U.S.C. { 1983.
Whenever these two rights collide or conflict in a particular case, and
cannot be reconciled, the courts have an obligation, and I believe it is a
moral obligation as well as a duty, to balance these conflicting rights.
Record is a strong, recent, and clearly expressed precedent, in which this
Court stated its obligation to balance these rights when they conflict. In
Record we stated:
[R]easonableness [under Article Eleven] . . . depends
"on a balance between the public interest and the indi-
vidual's right [to be] free from arbitrary interference
by law officers." Id. at 87, 548 A.2d at 424 (Emphasis
added, citation omitted.)

Notwithstanding this unqualified precedent, and my insistence that the Court
should do so, the majority in Kirchoff refused absolutely to apply a
balancing test; indeed, it refused even to refer to it; denying it even lip-
service, relying, no doubt, on the hope that "if we ignore it, it will just
go away." The same baffling refusal is repeated in today's decision.
I simply cannot understand, "for the life of me" (to express my
bewilderment and frustration in the colloquial), why the Court continues its
adamant refusal to apply a balancing test when conflicting rights are
involved. It is inconsistent with our own precedents such as Record, and
Martin, and other cases as well, such as State v. Brunell, 148 Vt. 347, 534 A.2d 198 (1987), and Badger in which public concerns are at least rec-
ognized. But we are concerned here with the reasonableness of a search;
that depends on a balancing of (1) privacy interests with (2), the need to
protect the public. United States v. Rabb, 752 F.2d 1320, 1323 (1984).
There are few offenses more serious, from the point of view of the
public welfare, than those which are drug-related. There can be no doubt
whatever that drug-related crime is no less a social menace than drunk
driving. There is also clear evidence that drug abuse is frequently a
gateway to the presently incurable disease AIDS, which, experts anticipate,
may well reach epidemic proportions. Traffic in drugs carries in its
devastating wake more violence and other collateral offenses than any other
crime I can think of. Finally, criminal intent is always present, which is
rarely, if ever, a factor in drunk driving cases where injury or damage
results. To argue that drug-related crime is not one of the most egregious
offenses known to modern society, or less of an offense than DUI, is nothing
but tunnel vision and illogical.
I challenge anyone to provide a logical reason to support the
majority's position that the balancing test is appropriate in DUI cases but
not in drug-related cases. Wherefore the discrimination, majority? It
makes no sense; it cannot be justified on any conceivable basis.
When balancing is applied, as it should be here, and as it should have
been in Kirchoff, the "reasonableness" of the search in this case becomes a
factor since a defective warrant is the equivalent of no warrant at all.
A word must be said concerning the majority's approach to this factor.
The Court is in the enviable position of having the power (note I do not
concede the right) to call any search unreasonable, however, arbitrary such
a decision may be. Assuming a particular search is called unreasonable
when it is not, and reasonableness should be gauged by a layman's common
sense rather than legalistic gamesmanship, the result is an abuse of power.
It is possible here, that the majority is more at fault by adopting a
philosophy, in search and seizure cases, that constitutions must always be
construed to favor an accused, regardless of any other rights that may
exist. This is biased thinking in cases like this one and in Kirchoff,
Brunell, and (in part) Badger, where the actor-in-fact is known, and the
issue presented revolves around a technicality, as distinguished from those
cases in which the prosecution is based on the uncertainties of purely
circumstantial evidence. Such treatment is also inconsistent with Record
and Martin.
Virtually all the quoting in the majority opinion is one-sided and from
sources generally recognized, with approval or otherwise, as activist
oriented. Most of them are extremely speculative and to the extent they
strike us as impressive, it is because other sources to the contrary are not
discussed in any depth. There are two of these sources, however, which I do
wish to address briefly.
The first suggests that better training of the police will alleviate
many of the Fourth Amendment (and, accordingly, Article Eleven as well)
problems. The majority opinion appears to accept this suggestion.
Notwithstanding the great respect in which we all hold the author of this
proposal, I disagree; I think it is wishful thinking and nonsense. It would
require that every police officer be somehow trained in the constitutional
law and the rights of all concerned, to a level of expertise equal to the
judges who decide the questions, or at least of the attorneys who prosecute
and defend in criminal cases.
This case is a good example of the problem. One judge concluded there
was sufficient grounds and issued a warrant. A second judge felt otherwise
and suppressed certain evidence. I submit it is unfair and unreasonable as
a practical matter to expect all police officers to be trained to the level
of constitutional lawyers. Moreover, in Vermont, we are talking about rural
officers in small communities, as well as part-time police, traffic control
officers and others whose experience with complex constitutional problems is
rare at best. In my view the training of police to the level implied by the
suggestion is simply not feasible.
I find the majority's quote from Justice Stewart ironic in its truth:
It is true that, as many observers have charged, the
effect of the rule is to deprive the courts of extremely
relevant, often direct evidence of the guilt of the
defendant. But these same critics sometimes fail to
acknowledge that, in many instances, the same extremely
relevant evidence would not have been obtained had the
police officer complied with the commands of the fourth
amendment in the first place.

This quote illustrates my concerns perhaps as well, if not better,
than a more affirmative citation. I might precede my discussion of this
quote by noting that it distinguishes between the exclusionary rule and the
Fourth Amendment. I acknowledge the distinction, but feel, nevertheless,
for practical purposes, it is a distinction without a difference as far as
the end result is concerned.
The federal exclusionary rule is a child of the Fourth Amendment, as
Vermont's own exclusionary rule is an offspring of Article Eleven. If it
were not for these constitutional provisions, it is doubtful that there
would have been an exclusionary rule, at least as we know it today, to the
extent that searches and seizures are involved. It would be like
postulating a child without a father or mother.
And it is true, as Justice Stewart pointed out, and as it applies here
(assuming Article Eleven was violated and a good-faith exception to the
rule is rejected), the trial court is now deprived of direct and relevant
inculpatory evidence, i.e., the truth. It is also true that the evidence
would probably not have been obtained at all if Article Eleven had not been
violated. Considering this second sentence, it "fails to acknowledge" that
if a good-faith exception, carefully but more reasonably monitored by the
court, is recognized, the cases to which this sentence applies might be
lessened considerably and all the facts exposed to the sunlight of the
truth.
In either case, if a successful prosecution is no longer possible, as
well may be the case here, the majority has once again cooperated with the
criminal element by ignoring and refusing to balance other legitimate
constitutional rights, thereby condoning and cooperating in another
violation of the anti-drug laws.
The quotation from Justice Stewart illustrates my concern for the
refusal either to balance or to adopt a good-faith exception. The majority
builds on it by visualizing certain unfortunate consequences resulting from
the adoption of the exception. Without addressing each of them separately,
overall they postulate a lazy indifference on the part of judges, prose-
cutors and the police. I see this as an unwarranted insult to the integrity
of our public officers in which I cannot join. Moreover, as I noted
earlier, good faith is a question of fact as much as any other; it requires
adequate supporting evidence and can be controlled by the courts -- ulti-
mately by this Court -- to the same extent as any other evidentiary issue.
This Court is not as ineffective and helpless as the majority tries to make
it appear.
Finally, the majority contends that Article Eleven reaches behind
police conduct, and therefore the exclusionary rule embraces defective
warrants as well as the conduct based thereon, regardless of good faith on
the part of the police. That is twice flawed. The exclusionary rule is
designed as a punitive measure to deter police misconduct, regardless of the
majority's effort to extend it. "[T]he primary function of the exclusionary
rule is to deter law enforcement officials from future misconduct." Rabb,
752 F.2d at 1323. Rejecting the good faith exception, the majority virtu-
ally assumes bad faith, negligent error, or conspiracy with the police on
the part of the issuing magistrate, whereas "good faith" addresses only
good faith reliance on a warrant that appears proper to the police. These
are all questions of fact to be resolved in determining whether the reliance
was, in fact, in good faith. This determination would include the
reasonableness of the police perception of the warrant as being valid.
Again, we are talking about serious crime and those instances where the
offender is known as a fact.
Secondly, defective-warrant cases are substantially less frequent than
warrantless searches, per se, in which judge participation is not involved
at all in the first instance -- as, for example, in Kirchoff, Badger, and
the DUI roadblock cases. Warrantless searches and seizures are the
veritable target of Article Eleven. Defective warrants come within its
scope only because, technically, they are not warrants at all, any more than
a blank sheet of paper. They are subject to review only in the process of
determining whether reliance thereon by the police was reasonable and in
good faith.
The majority concedes that its calamity-howling is speculative, and
without empirical support. This can be said of any new rule created by
judicial fiat. It is ironic that when new judge-made law serves to relax
the burden of criminal defendants and ease the difficulties of committing
offenses against the people, they are greeted understandably with great
enthusiasm by the defense community. On the other hand, when a new proposal
appears on the horizon that will help to deter criminal activity, the
activist cavalry calls the muster roll, and comes galloping over the ridge
to the rescue with sabers drawn, guidon snapping bravely in the wind, and
its bugle sounding the charge, all in a manner the unhappy George Custer
would have welcomed at the Little Big Horn.
The benefits of a good-faith exception may also be speculative to a
degree, but that is no justification for rejecting it, any more than were
the dissenting predictions in Miranda. The exception could be a breath of
fresh air of hope in the war against drugs, as was Record in the struggle
against drunk driving. In my judgment, any abuses can be controlled by this
Court.
The failure of the majority to balance, or even consider competing
constitutional rights in reviewing this appeal, is an "about face, to the
rear march" slap at the progress made in Record against the long-standing
favoritism on behalf of those who choose, deliberately and intentionally, to
violate the laws which are designed to protect the Article One rights of all
of us as individuals. In their place, the majority remains firmly entrench-
ed behind an interpretation of the laws which benefits only criminal activ-
ity. It is little wonder that we hear, increasingly, cries of public out-
rage at the slavish and unnecessary obeisance of many state courts to
technicalities which demean our rights and ease the path of the trans-
gressor. The crime rate is all but out of control and rising. The courts
must share the responsibility to a significant degree by their indifference
to human suffering, and the impenetrable shield they raise, against common
sense and reason, in favor of the "rights" of criminals (many of which are
in fact court created), without any recognition or balancing of the rights
of society. The courts have much to answer for.
The good-faith exception need not be justified on an economic basis
alone,. as in Leon. It is a desirable and controllable device which would
help to deter rather than encourage crime. There should be a balancing of
rights. The failure of the majority is contrary to clear precedent and
against the public interest. Included in that balancing should be the
exception. It should be adopted.

________________________________
Associate Justice

FN1. In a letter to William Johnson, dated June 12, 1823, Thomas
Jefferson (who was nothing if not a liberal) wrote: "Laws are made for men
of ordinary understanding, and should therefore, be construed by the
ordinary rules of common sense. Their meaning is not to be sought for in
metaphysical subtleties, which may make anything mean everything or nothing
at pleasure."

FN2. We would do well to remember that even the so-called "Miranda rule"
which we tend to look upon as all but prehistoric in its origin, has been in
existence less than thirty years. See Miranda v. Arizona, 384 U.S. 436
(1966). It is interesting to note that four of the justices dissented;
three dissenting opinions were written.

FN3. An amusing corollary, from a black-comedy perspective, emerging
from the Kirchoff majority opinion, is its conclusion that a contrary result
would be "martial law." I can only conclude that the Kirchoff majority
doesn't know what martial law is, or that the people of New Hampshire, and a
substantial number of other states, are now living under martial law. The
wonder is that our eastern boundary in not teeming with refugees from such
tyranny.

FN4. Moreover, the condemnation by the majority here of another court for
a decision motivated in part by economic considerations has a faint odor of
the pot calling the kettle black. This Court's recent decision to hear oral
arguments in many cases in panels of three justices only, depriving a sub-
stantial number of litigants of full-court review, is based, in part at
least, on economics.

FN5. I stress the phrase "innocent in fact." A defendant may be guilty
(in fact) even though acquitted by the trier of fact, because, in the
judgment of the latter, the prosecution was unable to establish guilt beyond
a reasonable doubt.

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.