State v. Savva

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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.
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                                No. 90-035

State of Vermont                             Supreme Court

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

Phillip Savva                                February Term, 1991

Robert Grussing III, J. (motions); Paul F. Hudson, J. (trial)

Dan M. Davis, Windham County State's Attorney, and Karen R. Carroll,
  Deputy State's Attorney (On the Brief), Brattleboro, for plaintiff-

E.M. Allen, Defender General, David Williams, Appellate Attorney, and
  Robert Melvin, Law Clerk (On the Brief), Montpelier, for defendant-

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

     MORSE, J.   The sole issue on appeal is the legality under Article 11
of the Vermont Constitution of a warrantless search for and seizure of
marijuana in an automobile stopped for speeding.  Because the contraband
found in the car's hatchback area should have been suppressed, we reverse
defendant's conviction for possession of more than two ounces of marijuana.
     In the late afternoon of November 11, 1985, a Vermont State Police
trooper, Lionel Shapiro, spotted a speeding Subaru, pursued it, determined
it was travelling at speeds of 80 to 85 miles per hour, and stopped it.
Defendant was driving and his five-year-old daughter was seated next to
     As Shapiro approached the Subaru's rolled-down window, he smelled what
he believed was marijuana.  Shapiro said nothing about that observation and
processed defendant for speeding, writing out the ticket in his cruiser as
defendant remained in his car.  When Shapiro returned to hand defendant the
ticket, he again smelled the odor and noticed defendant's eyes appeared red
and glassy.  The trooper asked defendant if he had been smoking marijuana.
Defendant said he had not and declined the trooper's request to "look in"
the car.  Shapiro then ordered defendant out of his car and began searching
it for the source of the odor, while defendant stood in front of the Subaru.
     Shapiro first came upon a paper bag containing a small amount of
marijuana and rolling papers in a small, open compartment in the driver's
door.  Defendant was then patted down and placed under arrest.  The trooper
called for assistance.  While still standing in front of his car, defendant
indicated he was cold and wanted his jacket, which was in the backseat.  As
defendant "lunged" toward the door, Shapiro stopped him and removed the
jacket himself, checked the pockets and found a large amount of cash and
newspaper clippings.  Defendant was patted down again and given the jacket.
The cash amounted to about $10,000; the clippings described Coast Guard drug
surveillance and the cocaine situation in Bolivia.
     Another trooper, David Tetrault, arrived at the scene.  He put
defendant and defendant's daughter in the backseat of his cruiser.  Mean-
while, Shapiro continued his search of the Subaru.  Two marijuana roaches
were found in the frontseat ashtray and one in the backseat ashtray.  In an
unlocked briefcase on the backseat, Shapiro found more newspaper clippings
about drug trafficking, "smuggler belts," a calculator, and assorted papers.
He also found in the backseat area duffel bags with clothing in them and a
locked suitcase.  As he searched the interior, Shapiro continued to smell a
strong odor of marijuana.  At this point, further back-up assistance was
     Shapiro next exposed the Subaru's hatchback area by unlatching an
unlocked vinyl cover from inside the vehicle's backseat.  In the hatchback,
Shapiro found a closed brown paper bag.  He opened it and discovered seven
plastic zip-lock bags each filled with about one-quarter pound of marijuana,
a brown plastic bag containing marijuana, and a white plastic bag containing
a clear plastic bag filled with hash tar.  A slide viewer and photographic
slides of tropical areas were also found.
     Two more officers then arrived at the scene, and defendant was told he
was under arrest for felony possession of marijuana.  The contraband and
other evidence was collected and put in a cruiser.  One of the officers
stayed with defendant's car, which was towed to police barracks.  Defendant
and his daughter were taken to the barracks where he was processed.  There,
the locked suitcase was cut open and $2,000 in cash found.  At no time did
authorities seek a search warrant.
     The search of defendant's automobile and everything contained there
would undoubtedly be permitted under the so-called "automobile exception" to
the fourth amendment.  Originally created to address the impracticality of
getting a warrant to search a mobile vehicle on the road, see Carroll v.
United States, 267 U.S. 132, 153 (1925), the automobile exception over its
sixty-six year history has been expanded beyond the initial rationale of
exigent circumstances.  The exception is not limited to the automobile
itself, but includes the contents of all containers found anywhere in the
vehicle that might contain the object of the search.  Probable cause is
required, but a warrant is not.  California v. Acevedo, 111 S. Ct. 1982,
1991 (1991) (Carroll allows warrantless searches of containers within
vehicles even if police have probable cause to search only the container but
not the vehicle); United States v. Ross, 456 U.S. 798, 825 (1982) ("If
probable cause justifies the search of a lawfully stopped vehicle, it
justifies the search of every part of the vehicle and its contents that may
conceal the object of the search.") .  The Ross/Acevedo rule places motor
vehicles and their contents outside the warrant protection of the fourth
amendment even if exigent circumstances do not exist.  Thus, once Officer
Shapiro developed probable cause that defendant's car contained marijuana --
 and in deciding this case we assume he did -- he was entitled to search the
hatchback and open all packages that might contain the drug.
     The automobile exception was first articulated in Carroll, 267 U.S.  at
153, a prohibition-era case, where the Court used it to justify a
warrantless search for bootleg liquor in the upholstered seats of an
automobile.  Distinguishing searches of motor vehicles from those of
stationary structures, the Court held that securing a warrant was not
practical "because the vehicle can be quickly moved out of the locality or
jurisdiction in which the warrant must be sought."  Id.
     Exigent circumstances are usually recognized as a reason to except a
search from the warrant requirement only in cases where delay in procuring a
warrant would put police officers or others in danger or would result in the
removal or destruction of evidence.  See, e.g., Arkansas v. Sanders, 442 U.S. 753, 759 (1979).  In these "carefully delineated" exceptions, the state
bears the burden of showing that circumstances require that they forego the
warrant process.  Id. at 760.
     But in the automobile search line of cases, whether mobility in fact
creates an exigent circumstance has become irrelevant; mobility is an
exigent circumstance as a matter of law.  See Ross, 456 U.S.  at 806-07
("the nature of an automobile in transit" is the basis of a per se rule that
"a warrantless search of an automobile is not unreasonable"); California v.
Carney, 471 U.S. 386, 392-93 (1985) (warrantless search of motor home
reasonable because it is "readily mobile"); Chambers v. Maroney, 399 U.S. 42, 50-52 (1970) (taking car to police station and searching it without a
warrant was reasonable because "the opportunity to search is fleeting since
a car is readily movable" even though the car in this case was under secure
police control).
     Carroll was decided before the Court fully developed reasonable-
expectation-of-privacy analysis, the cornerstone of fourth amendment
jurisprudence.  See Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan,
J., concurring) (fourth amendment protects privacy where person has
expressed an actual subjective expectation of privacy and that expectation
is one that society is prepared to recognize as "reasonable").  In its
post-Katz automobile cases, the Court has nevertheless downplayed the
privacy analysis of Katz.  Instead of a case-by-case analysis of the
individual's privacy interest in the object to be searched, the Court has
posited a diminished expectation of privacy in motor vehicles to help
explain dispensing with the need for a warrant.  For example, in Cardwell v.
Lewis, 417 U.S. 587, 590 (1974), a case in which paint scrapings were taken
from a car's exterior and its tire treads were compared to a cast made at a
crime scene, the Court went beyond the plain view analysis and stated,

          One has a lesser expectation of privacy in a motor
          vehicle because its function is transportation and it
          seldom serves as one's residence or as the repository of
          personal effects.  A car has little capacity for
          escaping public scrutiny.  It travels public
          thoroughfares where its occupants and its contents are
          in plain view.

The diminished expectation of privacy extends even to those parts of the
vehicle not in plain view because motor vehicles are subjected to "pervasive
and continuing governmental regulation and controls," such as, licensing and
inspection requirements.  South Dakota v. Opperman, 428 U.S. 364, 368
(1976); see also Carney, 471 U.S. at 391-92; Cady v. Dombrowski, 413 U.S. 433, 441-42 (1973).
     Even containers found inside a vehicle receive no warrant protection
under federal constitutional law.  In numerous cases prior to Ross and
Acevedo, the Court had differentiated the expectation of privacy in
containers from that of vehicles.  In United States v. Chadwick, 433 U.S. 1,
13 (1976), Chief Justice Burger, writing for seven members of the Court,

             The factors which diminish the privacy aspects of an
          automobile do not apply to respondents' footlocker.
          Luggage contents are not open to public view, except as
          a condition to a border entry or common carrier travel;
          nor is luggage subject to regular inspections and
          official scrutiny on a continuing basis.  Unlike an
          automobile, whose primary function is transportation,
          luggage is intended as a repository of personal
          effects.  In sum, a person's expectations of privacy in
          personal luggage are substantially greater than in an

In Sanders, 442 U.S.  at 764, Justice Powell concluded that

          a suitcase taken from an automobile stopped on the
          highway is not necessarily attended by any lesser
          expectation of privacy than is associated with luggage
          taken from other locations.  One is not less inclined to
          place private, personal possessions in a suitcase merely
          because the suitcase is to be carried in an automobile
          rather than transported by other means or temporarily
          checked or stored.

     In Ross and Acevedo, the Court collapsed the distinction between
containers and vehicles by dispensing with privacy analysis.  Stating that
an individual's "privacy interests in a car trunk or glove compartment may
be no less than those in a movable container," the Ross Court gave both
containers and closed portion of the vehicle the same diminished
expectation of privacy previously allotted to that part of a vehicle in
plain view.  456 U.S.  at 823.  Under this approach, if the police develop
probable cause that something they seek is located in an automobile, they
can treat all parts of the automobile and all containers within -- those
exposed to public view and those hidden, open and closed, locked and
unlocked -- the same.  Acevedo, 111 S. Ct.  at 1991 (no difference between
searching a motor vehicle and searching a container found inside, even if
police had probable cause to search only the container and not the vehicle).
     We view the Court's references to a diminished expectation of privacy
as makeweight to an underlying "exigency" rationale.  In a particular case,
the reasonable-expectation-of-privacy test is either met, thereby
triggering fourth amendment protection, or it is not met and the amendment
does not apply.  In Oliver v. United States, 466 U.S. 170, 179 (1984), the
Court held that a subjective expectation of privacy in lands outside the
curtilage, so-called "open fields," is objectively unreasonable.
Consequently, the fourth amendment does not apply in any respect to open
fields, and they may be searched without a warrant or probable cause.  If
the Court seriously doubts that an expectation of privacy in a container
found in an automobile is objectively reasonable, then the fourth amendment
would not be triggered at all and not even probable cause would be required
to search one.
     The expansion of the automobile exception to include containers found
within the vehicle has been the subject of much scholarly criticism.  See L.
Katz, The Automobile Exception Transformed: The Rise of a Public Place
Exemption to the Warrant Requirement, 36 Case W. Res. 375, 407-08 (1986) (by
substituting impracticality rationale for privacy analysis, Court has
betrayed fundamental fourth-amendment principles, in particular, its "own
principle that the initial intrusion and the scope of a search are not the
same and must be justified on separate grounds"); M. Gardner, Searches and
Seizures of Automobiles and their Contents: Fourth Amendment Consideration
in a Post-Ross World, 62 Neb. L. Rev. 1, 35 (1983) (Ross "appears to have
created a new probable cause exemption to the warrant rule without providing
satisfactory justification for abandoning the preference for warrants");
The Supreme Court, 1981 Term, 96 Harv. L. Rev. 62, 184-85 (1982) (Court's
concept of diminished expectation of privacy does not effectively
distinguish between vehicles and containers; in service of efficiency goals,
Court applies an "arbitrary approach to privacy expectations"); see also 3
W. LaFave, Search and Seizure { 7.2(d), at 56 (2d ed. 1987) (Ross raises
"fundamental questions" about the warrant requirement, including whether
police convenience should ever be sufficient rationale for dispensing with
     The opinion was also the subject of a persuasive dissent by Justice
Marshall, who wrote that the Court had "not only repeal[ed] all realistic
limits on warrantless automobile searches, it repeal[ed] the Fourth
Amendment warrant requirement itself."  Ross, 456 U.S.  at 827.  In
Marshall's view, the automobile exception swallowed the rule.  Although
warrantless automobile searches arguably could be justified by the inherent
mobility of vehicles, searches of containers found inside vehicles, which
could easily be seized and brought before a magistrate, could not be so
justified.  Id. at 831-32.  Although people may have a lesser expectation of
privacy in their vehicles, which are exposed at least in part to the public
eye, that lesser expectation does not automatically carry over to the
contents of containers, which can be closed, sealed, and themselves
concealed from public view.  Id. at 832.  Marshall suggested that
expediency, specifically the Court's desire to assist police in conducting
automobile searches, motivated its expansion of the automobile exception:

          "When a legitimate search is under way," the Court
          instructs us, "nice distinctions between . . . glove
          compartments, upholstered seats, trunks, and wrapped
          packages . . . must give way to the interest in the
          prompt and efficient completion of the task at hand."

Id. at 842 (quoting the Court's opinion, id. at 821).  The Court's
conclusion is an ironic twist in fourth amendment jurisprudence; it has long
been established that the "mere fact that law enforcement may be made more
efficient can never by itself justify disregard of the Fourth Amendment."
Mincey v. Arizona, 437 U.S. 385, 393 (1978); see also Coolidge v. New
Hampshire, 403 U.S. 443, 481 (1971) (warrant requirement "has been a valued
part of our constitutional law for decades . . . It is not an inconvenience
to be somehow 'weighed' against the claims of police efficiency"); Johnson
v. United States, 333 U.S. 10, 15 (1947) ("inconvenience to the officers and
some slight delay necessary to prepare papers and present the evidence to
the magistrate . . . are never very convincing reasons and . . . certainly
are not enough to by-pass the constitutional [warrant] requirement").
     The Court recently acknowledged the criticism by the academic legal
community that it had developed two inconsistent lines of containers-in-cars
jurisprudence -- one creating an expansive warrant exception for
automobiles, the other creating a more limited exception for containers.  In
Acevedo, the solution was to apply the more expansive warrant exception for
both cars and containers in order to provide "'clear and unequivocal'"
guidelines for police officers.  111 S. Ct.  at 1990 (quoting Arizona v.
Roberson, 486 U.S. 675, 682 (1988)).
     Justice Scalia's concurrence in Acevedo, however, offered a candid
observation.  The container cases effectively overruled by Acevedo --
Chadwick and Sanders -- took the "'preference for a warrant' seriously"; the
pure automobile exception cases, Carroll and Ross, did not.  111 S. Ct.  at
     The United States Supreme Court's ebbs and flows in this area of
criminal constitutional procedure do not predetermine our interpretation of
Vermont's search and seizure law under Article 11.  We have often noted
that our constitution may afford greater protection of individual rights
than the federal one does.  State v. Kirchoff, ___ Vt. ___, ___, 587 A.2d 988, 991 (1991); see also State v. Badger, 141 Vt. 430, 449, 450 A.2d 336,
346 (1982).  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.

Our task is "to honor not merely the words but the underlying purposes of
constitutional guarantees" and "to discover and protect the core value that
gave life to Article 11."  Kirchoff, ___ Vt. at ___, 587 A.2d  at 992.
     Although warrantless searches are sometimes permitted under Article 11,
these exceptions must be "'jealously guarded and carefully drawn.'"  State
v. Jewett, 148 Vt. 324, 328, 532 A.2d 958, 960 (1987) (quoting State v.
Meunier, 137 Vt. 586, 588, 409 A.2d 583, 584 (1979)).  As Justice Stevens
emphasized in his Acevedo dissent, 111 S. Ct.  at 1994, the fourth amendment
warrant requirement was intended as a restraint on executive power, "a
bulwark against police practices that prevail in totalitarian regimes."  The
warrant requirement is a "sound policy judgment that, absent exceptional
circumstances, the decision to invade the privacy of an individual's
personal effects should be made by a neutral magistrate rather than an agent
of the Executive." Id.
     The abuse of warrants was "so deeply felt by the Colonies as to be one
of the potent causes of the Revolution."  United States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting); see also Justice
Frankfurter's dissents in Davis v. United States, 328 U.S. 582, 603-05
(1946), and Harris v. United States, 331 U.S. 145, 157-62 (1947), in which
he details the colonial warrant abuses and the development of search and
seizure provisions in the early state constitutions, predating the federal
constitution.  The preference for judicially issued warrants reflects a
"'basic constitutional doctrine that individual freedoms will best be
preserved through a separation of powers and division of functions among the
different branches and levels of Government.'"  Sanders, 442 U.S.  at 759
(quoting United States v. United States District Court, 407 U.S. 297, 317
     Thus, as a matter of constitutional policy, a warrant requirement is
not a starting point for deriving exceptions that balance citizens' interest
in privacy against law enforcement's interest in expeditious searches.
Rather, it is the balance reached by the constitutional drafters, a balance
in which the individual's interest in privacy outweighs the burdens imposed
on law enforcement, such that those subjected to searches must be "protected
by advance judicial approval."  See Harris, 331 U.S.  at 162 (Frankfurter,
J., dissenting) (we cannot look at individual searches or seizures to
determine if they are "reasonable"; rather, the fourth amendment drafters
determined what is reasonable based on historical experience, and "with
minor and severely confined exceptions, inferentially a part of the
Amendment, every search and seizure is unreasonable when made without a
magistrate's authority expressed through a validly issued warrant").
     This position was adopted by the Court in Katz, 389 U.S.  at 357
(searches conducted without prior judicial approval "are per se unreasonable
. . . subject only to a few specifically established and limited
exceptions").  We have taken this "basic constitutional rule" as our own.
State v. Meunier, 137 Vt. 586, 588, 409 A.2d 583, 584 (1979).  In dealing
with the difficult problem of automobile searches, we do not believe this
principle can be sacrificed for the sake of law enforcement convenience.
     At issue, then, is not whether police officers are more or less skilled
decision-makers about when and what to search.  Rather, the issue is what
branch of government should routinely be making these decisions.  The
warrant requirement favors decisionmaking by the judicial branch, "a neutral
and detached magistrate," rather than by the executive branch, "the officer
engaged in the often competitive enterprise of ferreting out crime."
Johnson v. United States, 333 U.S. 10, 14 (1948).  Government
accountability fostered by Article 11 requires no less.
     Although criminal defendants may seek court review of searches and
seizures, these after-the-fact challenges do not serve Article 11's purpose
of protecting the rights of everyone -- law-abiding as well as criminal --
by involving judicial oversight before would-be invasions of privacy.  In
many cases, the magistrate will agree with the necessity for a search, but
to focus on those cases is to miss the point.  People will be spared ill-
considered searches or at least given an impartial objective assessment
before a search is carried out.  See Ross, 456 U.S.  at 829 (Marshall, J.,
dissenting) (warrant requirement "prevents some overbroad or unjustified
searches from occurring at all").
     The warrant requirement brings a significant check on law enforcement
conduct, because not just fruitful searches will be on the record, and
searches on doubtful grounds may not be attempted at all if authorities
know they must first go before a judicial officer.
     Looking at the impact on society as a whole, the social costs of
eliminating the warrant requirement are simply too high.  Without it, police
behavior would be subjected to judicial scrutiny only in rare cases, while
"[d]ay by day mischief may be done and precedents built up in practice long
before the judiciary has an opportunity to intervene."  Harris, 331 U.S.  at
     Another benefit of the warrant requirement is that prior review
prevents "'hindsight from coloring the evaluation of the reasonableness of a
search or seizure.'" Ross, 456 U.S.  at  829 (Marshall, J., dissenting)
(quoting United States v. Martinez-Fuerte, 428 U.S. 543, 565 (1976)).  Even
if the magistrate reaches the same probable cause conclusion as the police,
participation of a neutral decisionmaker "reassures the public that the
orderly process of law has been respected."  Id.
     We are convinced that the warrant requirement is and must remain a
central part of Article 11.  See Records of the Council of Censors 205-06
(1991) (in 1813, finding a statute providing that persons travelling
through the state in "suspicious circumstances" were liable to have their
trunks opened and searched without a warrant "repugnant" under Article 11,
the Fifth Council of Censors recommended its immediate repeal).   Any
exceptions to the warrrant requirement must be factually and narrowly tied
to exigent circumstances and reasonable expectations of privacy.  We reject
the bright-line tests of Ross and Acevedo here, as we rejected the bright-
line test of Oliver in Kirchoff, ___ Vt. at ___, 587 A.2d  at 995, because
these tests fail "to do justice to the values underlying Article 11."
     We have previously identified freedom from unreasonable government
intrusions into legitimate expectations of privacy as a core value protected
by Article 11 jurisprudence.  Id. at ___, 587 A.2d  at 992.  Our analysis
must be grounded on defendant's expectation of privacy in the packages
contained in the hatchback of his vehicle.  We agree with the Supreme
Court's reasoning in Sanders, 442 U.S.  at 764-65, and Chadwick, 433 U.S.  at
13, and will recognize a separate and higher expectation of privacy for
containers used to transport personal possessions than for objects exposed
to plain view within an automobile's interior.
     Privacy analysis, however, does not end the matter.  We have previously
held that Article 11 prohibits only "unreasonable" searches and seizures.
State v. Platt, 154 Vt. 179, 183, 574 A.2d 789, 791 (1990).  An otherwise
unreasonable warrantless search may be justified by exigent circumstances.
See State v. Badger, 141 Vt. 430, 455, 450 A.2d 336, 350 (1982) (police
seizure of "manifestly incriminating, yet vulnerable, evidence" reasonable
under Article 11).  A container found within a vehicle may be mobile,
capable of being carried away.  But a container that can be seized, removed
from the vehicle, and secured by the police does not ordinarily present a
reasonable exigent circumstance to dispense with a warrant to search the
     We agree with Justice Harlan, who, dissenting in Chambers, tied the
limited scope of warrantless searches to the warrant requirement:
         The Court has long read the Fourth Amendment's
         proscription of "unreasonable" searches as imposing a
         general principle that a search without a warrant is not
         justified by the mere knowledge by the searching
         officers of facts showing probable cause.  The "general
         requirement that a search warrant be obtained" is basic
         to the Amendment's protection of privacy, and "'the
         burden is on those seeking [an] exemption . . . to show
         the need for it.'"
           Fidelity to this established principle requires that,
         where exceptions are made to accommodate the exigencies
         of particular situations, those exceptions be no broader
         than necessitated by the circumstances presented.

399 U.S.  at 61 (citations omitted).
     Finally, in our prior cases on exigent circumstances, we have demanded
that, when acting without a warrant, police operate "in the least intrusive
manner possible under the circumstances."  Platt, 154 Vt. at 188, 574 A.2d 
at 794; see also Badger, 141 Vt. at 455, 450 A.2d  at 350 (approving
warrantless seizure as "the least restrictive method" of obtaining
evidence).  Article 11 protects two kinds of rights: possessory rights,
which are implicated in police seizures, and privacy rights, which are
implicated in searches.  Platt, 154 Vt. at 188, 574 A.2d  at 794.  In Platt,
we held that seizing defendant's car and holding it pending a search warrant
was reasonable.  Yet, we decline to hold as a matter of law that a
warrantless search will always be more intrusive than a warrantless seizure,
because there may be circumstances when a possessory interest may outweigh a
privacy interest.
     Defendant was convicted of felony possession of marijuana, 18 V.S.A. {
4224(f)(1)(B), based on the evidence of the drugs found in plastic bags in
the hatchback of his vehicle.  Assuming without deciding that Officer
Shapiro had probable cause to search the hatchback for the drugs, we must
decide whether the search he conducted, opening the bags and examining their
contents, was a permitted exception to the warrant requirement.
     We begin with an analysis of whether defendant had a reasonable
expectation of privacy, not in the vehicle as a whole, but specifically in
the contents of the brown paper bag in which the drugs, contained in plastic
bags, were found.  Article 11 does not protect areas willingly exposed to
the public, Kirchoff, ___ Vt. at ___, 587 A.2d  at 993, but instead requires
an "objective" inquiry into whether a reasonable person would know that
someone placing articles as defendant did intended to exclude them from
public view, see id. at ___, 587 A.2d  at 994.
     Functionally, the bag was a closed container.  Although it could not
be locked, it nonetheless effectively concealed its contents from the public
eye.   Officer Shapiro had to open it to see the separate plastic bags
inside.  These bags too were opaque and concealed their contents.  Nor was
the packaging so distinctive as to give away the contents; all kinds of
possessions -- clothing, groceries, garbage -- are carried in paper and
plastic bags.
     We refrain from adopting the hairsplitting analysis of the "unworthy
container" doctrine, which gives privacy protection to suitcases but not to
paper bags.  See Robbins v. California, 453 U.S. 420, 434 n.3 (1981)
(Powell, J., concurring).  This doctrine has been rejected by the United
States Supreme Court.  Ross, 456 U.S.  at 822 (1982) (fourth amendment
forecloses distinction between "worthy" and "unworthy" containers; "a
traveler who carries a toothbrush and a few articles of clothing in a paper
bag . . . claim[s] an equal right to conceal his possessions from official
inspection as the sophisticated executive with the locked attache case").
On the other hand, if a container discloses its contents either because it
is open ("plain view") or its configuration gives away what is inside (e.g.,
a pistol in a holster), Article 11's requirement for an expectation of
privacy may not be met.  Sanders, 442 U.S.  at 764 n.13.  No evidence in this
case supports a conclusion that the bag's contents were known as a foregone
conclusion before it was opened.
     We find that the warrantless search of the bags on the scene was not
supported by exigent circumstances because a less intrusive option was
available.  See Platt, 154 Vt. at 188, 574 A.2d  at 794.  Once Officer
Shapiro found the paper bag, he could easily have seized the bag and
applied to a magistrate for a warrant before searching it.  To protect
defendant's possessory interest in the bag, the officer could have offered
defendant the choice of allowing him immediately to inspect the bag's
contents.  We may believe that the lesser intrusion will almost always be a
seizure, but there is no reason to create a per se rule that deprives the
person of the choice.  In this regard, we adopt the reasoning of Justice
Linde, of the Oregon Supreme Court:

          The obvious, and correct, alternative is that the choice
          [between an immediate search and a temporary seizure
          while a warrant is sought] belongs to the person whose
          constitutional interests are at stake. . . . The person,
          not the officer, is the one to decide whether to insist
          on the right to have the supposed probable cause tested
          by a magistrate and to accept the inconvenience of the
          necessary seizure.  There simply is no basis for this
          court or any court to make such a categorical choice for
          all owners of . . . closed containers found in
          automobiles as a class.

State v. Brown, 301 Or. 268, 295, 721 P.2d 1357, 1373 (1986) (dissenting).
If the person requests a warrant, then exigent circumstances may well exist
to justify the seizure that did not exist to justify the search.  Id.
     We emphasize that our conclusion is specific to the facts of this case.
There may be situations in which a driver's possessory interests may be
stronger than privacy interests; the driver may even prefer an expeditious
search to a prolonged seizure.  Alternatively, there may be true exigent
circumstances requiring an immediate search.  Mobility, however, is not per
se an exigent circumstance, and the burden is on the government to show that
evidence might be lost before a warrant could be obtained.  See State v.
Ritte, 68 Haw. 253, 257, 710 P.2d 1197, 1201 (1985) ("To establish exigent
circumstances . . . government must show it had reason to believe that
because of the vehicle's mobility or exposure, there was a foreseeable risk
that it might be moved or that the evidence which it contained might be
lost before a warrant could be obtained.").
     In short, a legitimate expectation of privacy was implicated here, and
the State failed to prove that getting a warrant to search the contents of
the packages found in the hatchback was unreasonable because of undue risk
to the evidence-gathering process or public safety.  Kirchoff, ___ Vt. at
___, 587 A.2d  at 996 (State has burden of proving a warrantless search is
not prohibited).
     The search of the Subaru itself, its interior and the hatchback, is not
addressed because the invalid search of the bags found in the hatchback area
requires suppression of the marijuana seized and identified as the basis for
the charge and conviction: without that contraband as evidence, the
conviction must be reversed.
     The rationale found in New York v. Belton, 453 U.S. 454, 462-63 (1981)
("search incident to arrest" exception to warrant requirement applies to
containers found in car passenger compartment), has no bearing on the
search of the bag found in the hatchback.  The trial court found as a
factual matter that the hatchback was not part of the passenger compartment
of defendant's vehicle.
     How often we hear the clamor of the moment that Article 11 is used as a
barrier to effective law enforcement, and how often people forget that
Article 11 is the balance struck between liberty for the individual
(privacy and a sense of security) and the convenience of unchecked crime
detection.  That balance requires authorities to have good cause to invade
privacy and to filter decisions through a judicial process.  When
legitimate exigencies make the judicial process impractical (not merely
inconvenient), common sense dictates reasonable accommodations.  But the
exigencies and assessment of what sense of privacy is at stake must be real,
not legal figments or fictions designed to mask the values and purposes of
Article ll.
     Justice Frankfurter, writing in 1947 about the warrant requirement with
an eye to the broader historical lessons taught by two recent world wars,

          what is involved far transcends the fate of some sordid
          offender.  Nothing less is involved than that which
          makes for an atmosphere of freedom as against a feeling
          of fear and repression for society as a whole.  The
          dangers are not fanciful.  We too readily forget them.

Harris, 331 U.S.  at 173 (dissenting).

                                             FOR THE COURT:

                                             Associate Justice