State v. Rogers

Annotate this Case
STATE_V_ROGERS.91-561; 161 Vt. 236; 638 A.2d 569

[Filed 27-Dec-1993]

 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, 109 State Street, Montpelier, Vermont 05609-0801 of any errors in
 order that corrections may be made before this opinion goes to press.

                                 No. 91-561

 State of Vermont                             Supreme Court

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

 Candace and George A. Rogers, Jr.            September Term, 1992

 Robert Grussing III, J.

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

 Richard A. Unger and Matthew Colburn, Montpelier, for defendants-

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

      DOOLEY, J.   Defendants Candace and George Rogers appeal the denial of
 their motion to suppress evidence obtained in a search of their home,
 arguing that the warrant under which the search was conducted was defective.
 Defendants assert that the visual observation of their garden, performed by
 a state trooper for the purpose of corroborating an anonymous tip that
 defendants were cultivating marijuana on their property, was an illegal
 search under the federal and Vermont constitutions and consequently could
 not support a finding of probable cause for issuance of the search warrant.
 We affirm.


      Defendants own a tract of wooded property on Chapel Road in
 Bennington, where they have constructed their home.  The house lies in a
 clearing that includes a pond and, approximately 150 feet from the house, a
 large garden.  The residence is secluded, as the thick growth of woodland
 prevents observation of the house and garden area from adjoining properties
 or the road.
      In late August 1987, an anonymous informant telephoned a Vermont State
 Police trooper with information that a large marijuana garden was under
 cultivation at the Rogers' residence.  The informant described to the
 trooper the point along Chapel Road at which he could enter the Rogers'
 property and, after traveling approximately 100 feet into the woods, reach a
 vantage point from which he could see a garden of eight- to ten-foot-tall
 marijuana plants.  The caller also advised the trooper that the garden was
 protected by surveillance equipment.  In a second telephone conversation,
 the informant told the trooper that an unidentified person had been caught
 in the garden by occupants of the house and threatened at gunpoint, and that
 because of this discovery, the marijuana had likely been harvested.
      The trooper went to the site described by the informant, entering the
 woods from Chapel Road by a "type of path" that disappeared as the trooper
 advanced into the woods.  He attempted to maintain a straight line through
 the thick vegetation, but was forced to cross a stretch of swampy terrain
 before reaching a point affording a view of defendants' garden area.  From
 this position, he was able to observe that the garden was planted half with
 corn and that the other half had been recently harvested and tilled.  The
 garden was surrounded by sheep fencing with a locked door and there were


 cameras and spotlights positioned at its edge.  Based on the anonymous tip
 and his personal observations, the trooper obtained a search warrant for
 defendants' residence and curtilage, where the state police seized a
 quantity of recently harvested marijuana from the house and outbuilding.
      Defendants were charged under 18 V.S.A. { 4224 with cultivation of
 marijuana and possession of marijuana with intent to sell.  Prior to trial,
 they filed a motion to suppress the evidence seized under the search
 warrant, arguing that the trooper's incursion on their land was an illegal
 search and could not be used to support probable cause for the warrant.  The
 trial court originally granted defendants' motion to suppress, finding the
 defendants' garden within the curtilage of their home and that the
 investigating officer's actions had interfered with their reasonable
 expectation of privacy.  Therefore, because the trooper's observations could
 not be used to establish probable cause for the warrant, the court ruled
 that the seized evidence was inadmissible.
      The State appealed this ruling. On remand from this Court, the trial
 court reversed its previous decision and denied defendants' motion.  The
 court concluded that the trooper's visual inspection of defendants' garden
 did not violate the Fourth Amendment because he did not physically invade
 defendants' curtilage.  The court further found that the trooper's actions
 did not violate Chapter I, Article 11 of the Vermont Constitution because,
 in the absence of affirmative steps by the defendants to demonstrate a
 reasonable expectation of privacy in their woods, the police were justified
 in entering such "open fields" and observing anything in plain view.
      On appeal, defendants assert that the garden area is clearly within the
 curtilage and, because their expectation of privacy in that area was both


 subjectively and objectively reasonable, the State was required to obtain a
 warrant before visually inspecting it.  They argue that the natural
 exclusionary barrier -- the woods -- within which they constructed their
 home and garden conveyed their expectation of privacy in such a way that an
 objective person would know they sought to avoid the public gaze.
 Defendants claim that the trial court misapplied federal and state
 constitutional law by failing to recognize the high degree of protection
 afforded areas within the curtilage of a home.
      The State suggests two summary means of affirming the decision below;
 neither was adopted by the trial court.  Because we conclude neither means
 is supported by the record, we discuss them only briefly.
      The State's first theory is that defendants invited onlookers to the
 vantage point used by the trooper by allowing a path to exist to that point.
 The trial court findings are not explicit on this point.  They describe the
 trooper as following a "100 foot path," but emphasize the "very thick
 undergrowth," the surrounding trees and the swampy nature of the land.  We
 have reviewed the evidence and find no support for the existence of a worn
 path from the mailbox to the place of observation.  We conclude that the
 trial court used the word "path" to describe the trooper's route of travel
 and not to find a preexisting footway all the way to the observation point.
      The second means of summary affirmance is more complicated.  As
 discussed in more detail below, defendants' theory under either the Fourth
 Amendment to the United States Constitution or Chapter I, Article 11 of the
 Vermont Constitution depends upon the garden being within the curtilage to
 the house.  The State argues that the garden is outside the curtilage and


 the decision can be affirmed on that basis.  For the reasons discussed
 below, we reject this argument.
      The trial court decision is also not explicit on this point.  In its
 first decision, the trial court found that the garden was within the
 curtilage and decided for defendants on that basis.  In the second decision
 following the remand, the court changed one finding of fact without taking
 new evidence.  It changed its finding on the distance between the house and
 the garden from 90 feet to 150 feet.  It did not, however, modify its
 determination that the garden was within the curtilage, probably in part
 because its new theory of analysis made this determination irrelevant.  It
 concluded that as long as the trooper did not enter the curtilage, no search
 occurred.  It is undisputed that the trooper did not enter the curtilage.
      We agree with the State that the determination of the boundary of the
 curtilage is a mixed question of fact and law, entitled to some deference in
 this Court.  See State v. Beresford, 156 Vt. 333, 335, 592 A.2d 882, 883
 (1991) (finding of abandonment that would allow warrantless search reviewed
 under clearly erroneous standard).  We do not agree, however, that we should
 treat the trial court decision as finding the garden to be outside the
 curtilage.  The court's only finding on the curtilage issue is to the
 contrary, and the court did not modify its finding despite the change in the
 subsidiary distance finding.  This is the finding to which we must defer.
      The curtilage is an area outside the physical confines of a house into
 which the "privacies of life" may extend, and which receives the same
 constitutional protection from unreasonable searches and seizures as the
 home itself.  Oliver v. United States, 466 U.S. 170, 180 (1984); see State
 v. Byrne, 149 Vt. 224, 227, 542 A.2d 276, 278 (1988).  In determining the


 confines of the curtilage, we have looked to the factors set forth in
 United States v. Dunn, 480 U.S. 294, 301 (1987):  (1) the proximity of the
 area in question to the home; (2) whether the area in question is included
 within an enclosure surrounding the home; (3) the nature of the uses to
 which the area is put; and (4) the steps taken to protect the area from
 observation by people passing by.  The trial court applied these factors,
 and found that defendants' garden is within the curtilage of their home.(FN1)
      Although the question is close, we affirm the trial court's conclusion
 that the garden was within the curtilage of the home.  The nature of
 defendant's property is such that a distance of 150 feet from home to garden
 is not excessive.  See United States v. Van Dyke, 643 F.2d 992, 994 (4th
 Cir. 1981) (in "secluded setting" it is reasonable to conclude that the
 curtilage may embrace area fifty yards from home); but cf. Dunn, 480 U.S.  at
 301 (barn located sixty yards from house not within curtilage).  Defendants'
 home is not an urban residence for which privacy expectations are reduced
 exponentially as the distance from the home increases.  Moreover, the house
 and garden were constructed inside a clearing that affords substantial
 privacy from the casual passersby.  We do not agree with the State's
 argument that the garden was physically separated from the house by the
 presence of the pond and a small private bridge.  We fail to see how these


 topographical features provide any significant sense of separation between
 the house and garden.
      The second Dunn factor, whether the curtilage is enclosed, favors the
 trial court's decision that the garden was within the curtilage because
 defendants' house and garden are surrounded by a thickly wooded band of
 property that serves as a natural enclosure for their residence.  Other
 courts have found a natural barrier effective to define the curtilage, see,
 e.g., State v. Russo, 683 P.2d 163, 165 (Or. Ct. App. 1984); State v.
 Lange, 463 N.W.2d 390, 393 (Wis. Ct. App. 1990), and Dunn does not require
 that the enclosure be a man-made structure.  See Dunn, 480 U.S.  at 1139-40.
 Nevertheless, as discussed in more detail infra, we do not view the natural
 boundary caused by the surrounding woods as creating a reasonable
 expectation of privacy from examination by a person located in the woods.
      The third Dunn factor, the uses to which the area is put, supports the
 trial court's decision because gardening is an activity often associated
 with the curtilage of a home.  Finally, the fourth Dunn factor, the steps
 taken to prevent observation from outside the curtilage, does not weigh
 heavily against defendants.  The woods that surround the residence, although
 not expressly grown for the purpose, substantially shield the garden from
 the view of normal passersby.  We do not think more is required to associate
 the garden with the home and give it the protection of the curtilage.  We
 find this Dunn factor to be relatively insignificant in this context.
      The trial court's findings on each of the four elements of the Dunn
 test are reasonable.  Taken as a whole, the court's conclusion that
 defendants' garden is within the curtilage of their home is clearly
 supported by credible evidence, and therefore, the ruling must stand.


      Even though we affirm the trial court's finding that the garden is
 within the curtilage, this does not end our inquiry; affirmance on this
 issue is not determinative of whether a search occurred in the
 constitutional sense when the trooper observed the garden from the woods.
 Indeed, our consideration of defendants' argument that the search violated
 their rights under the Fourth Amendment to the United States Constitution is
 informed by precedent indicating that the place of observation is normally
 more important than the place observed, at least in cases similar to this
 one.  That conclusion results from the combined effect of two principles
 that are now firmly implanted in Fourth Amendment jurisprudence.
      The first principle is that there is no constitutionally recognizable
 privacy interest for land outside the curtilage, commonly termed "open
 fields."  See Oliver, 466 U.S.  at 179.  The open-fields doctrine applies to
 any land that is "unoccupied or undeveloped."  State v. Kirchoff, 156 Vt. 1,
 3, 587 A.2d 988, 990 (1991).  Under the open-fields doctrine, the trooper
 could conduct a constitutional, warrantless search in any of the hundred
 feet of woods between the road and the cleared area behind defendants' house
 whether or not there was a path through the wooded area.  See also Oliver,
 466 U.S.  at 181.
      The second principle, which is an aspect of the "plain view" doctrine,
 see 1 W. LaFave, Search and Seizure { 2.2(a), at 322 (2d ed. 1987), is that
 constitutional protections do not attach to activities or possessions that
 "a person knowingly exposes to the public."  Katz v. United States, 389 U.S. 347, 351 (1967).  Therefore, while an area may be within the curtilage,
 there still may be no constitutional protection if activity in that area is
 knowingly exposed to the public.


      In United States v. Dunn, the United States Supreme Court applied this
 second principle to an observation of an area within the curtilage from an
 area in open fields.  480 U.S.  at 303-05.  The open field involved was an
 area immediately outside a barn on the defendant's ranch, which the police
 reached by crossing a number of fences.  From this vantage point, the police
 peered into the barn and observed drug paraphernalia.  In response to the
 argument that the police invaded the curtilage, the Court held:
         It follows that no constitutional violation occurred
         here when the officers crossed over respondent's ranch-
         style perimeter fence, and over several similarly
         constructed interior fences, prior to stopping at the
         locked front gate of the barn.  As previously mentioned,
         the officers never entered the barn, nor did they enter
         any structure on respondent's premises.  Once at their
         vantage point, they merely stood, outside the curtilage
         of the house and in open fields upon which the barn was
         constructed, and peered into the barn's open front.
         And, standing as they were in open fields, the
         Constitution did not forbid them to observe the
         phenylacetone laboratory located in defendant's barn.
         This conclusion flows naturally from our previous

           Under Oliver . . ., there is no constitutional
         difference between police observations conducted while
         in a public place and while standing in open fields.
         Similarly, the fact that the objects observed by the
         officers lay within an area that we have assumed . . .
         was protected by the Fourth Amendment does not affect
         our conclusion.

 Id. at 304.  With respect to the defendants' Fourth Amendment argument, this
 case is controlled by Dunn.  We hold that the trooper's observation of the
 garden area was not a search requiring a warrant under the Fourth
 Amendment, whether or not the garden lies within the curtilage.  Accord
 Standley v. State, 751 S.W.2d 364, 365-66 (Ark. Ct. App. 1988) (on similar
 facts, observation of garden within curtilage from "area of heavy woods" not
 Fourth Amendment search); People v. Freeman, 268 Cal. Rptr. 603, 604, 606


 (Cal. Ct. App. 1990) (observation of green house attached to trailer from
 heavily forested area "covered with brush and poison oak" not Fourth
 Amendment search).
      In reaching this holding, we emphasize the absence of two factors that
 could have changed our conclusion: affirmative action by defendants to block
 observation of the garden from the surrounding woods and use of technology
 by the trooper to aid his observation.  With respect to the first factor,
 defendants' privacy claim is based on the existence of those woods, and the
 natural barrier to observation and passage they create, but not on any
 change caused by defendants' actions.  Although we agree that the woods
 form a natural definition of the scope of the curtilage, we find no support
 for the proposition that undeveloped land loses its character as an open
 field as it becomes thickly wooded.  See Oliver, 466 U.S.  at 180 n.11 ("a
 thickly wooded area nonetheless may be an open field as that term is used in
 construing the Fourth Amendment"); Commonwealth v. Lewis, 191 N.E.2d 753,
 759 (Mass. 1963), cert. denied, 376 U.S. 933 (1964) (swamp is open field).
 We leave to another day the case in which a landowner, by fencing or other
 means, takes steps to protect the curtilage from observation, but the
 curtilage is nevertheless observed.  Cf. State v. Waldschmidt, 740 P.2d 617,
 623 (Kan. Ct. App. 1987) (holding that Fourth Amendment search had occurred
 when officer climbed neighbor's barbed wire fence to see over defendant's
 stockade fence into curtilage, balanced himself against fence and placed
 both his arm and flashlight over fence).
      With respect to the second factor, we note that the trooper's
 observation was unaided by technology.  Since he came right up to the
 garden, he did not even have to use binoculars to view it closely.  Because


 we do not have any technological enhancement before us in the facts of this
 case, we will leave consideration of this issue for another day.  Compare
 Commonwealth v. Lemanski, 529 A.2d 1085, 1092 (Pa. Super. Ct. 1987)
 (observation of greenhouse within curtilage from point 200 feet away by use
 of binoculars with zoom lens was Fourth Amendment search) with State v.
 Vogel, 428 N.W.2d 272, 275 (S.D. 1988) (on similar facts, no search).  See
 generally Power, Technology and the Fourth Amendment:  A Proposed
 Formulation for Visual Searches, 80 J. Crim. L. & Criminology 1 (1989).
      Our decision concerning defendants' Fourth Amendment argument is not,
 however, dispositive of their claim under the Vermont Constitution.
 Article 11 of Chapter I of the Vermont Constitution provides an independent
 authority under which we may decide the issues in this case.  State v.
 Badger, 141 Vt. 430, 449, 450 A.2d 336, 347 (1982).  It "may afford greater
 protection to individual rights than do the provisions of the federal
 charter."  State v. Kirchoff, 156 Vt. at 4, 587 A.2d  at 991; see also State
 v. Platt, 154 Vt. 179, 184, 574 A.2d 789, 792 (1990) (Vermont Constitution
 may restrict police conduct to greater extent than Fourth Amendment).  As
 our paramount concern in search and seizure cases is to give effect to the
 core values of privacy underlying Article 11, we have not hesitated to
 depart from the parallel federal law when necessary to accomplish this goal.
 See, e.g. State v. Berard, 154 Vt. 306, 310, 576 A.2d 118, 120 (1990)
 (rejecting federal rule on searches of prison inmates); State v. Wood, 148
 Vt. 479, 489, 536 A.2d 902, 908 (1987) (rejecting federal search and seizure
 standing analysis).
      Indeed, we have rejected, at least in part, the first of the two
 principles our Fourth Amendment conclusion rests -- the per se Oliver rule


 that there is no constitutionally recognizable privacy interest in open
 fields.  See Kirchoff, 156 Vt. at 9-10, 587 A.2d  at 994.  Instead, we held
 in Kirchoff that a landowner has a constitutionally protected interest in
 undeveloped land "where it is apparent to a reasonable person that the owner
 or occupant intends to exclude the public."  Id. at 14, 587 A.2d  at 997.  We
 described the circumstances in which the interest arises as "where the
 landowner has taken steps, such as fencing or posting, to indicate that
 privacy is exactly what is sought." Id. at 8, 587 A.2d  at 993.
      In Kirchoff, we found the observation of marijuana plants growing on
 defendant's land to be a search under Article 11 because the defendant had
 posted the land pursuant to 10 V.S.A. { 5201 and the police walked by "no
 trespassing" signs that clearly indicated defendant's intention to prohibit
 entry.  See Kirchoff, 156 Vt. at 14, 587 A.2d  at 996.  In the companion
 case of State v. Chester, 156 Vt. 638, 638, 587 A.2d 1008, 1009 (1991), we
 found no constitutional violation in the police observation of marijuana on
 defendant's undeveloped land because there were no "barricades, no-
 trespassing signs, land posted signs or any other indicia of posting on the
 property."  We held that there is no protection under Article 11 for land
 that is "left unimproved and unbounded."  Id.
      Two other states that have rejected Oliver have also specifically
 required the landowner to take affirmative action to exclude the public from
 the land.  The Oregon Supreme Court held:
         An individual's privacy interest in land he or she has
         left unimproved and unbounded is not sufficient to
         trigger the protections of Article I, section 9.  Thus,
         it is not sufficient that the property in question is
         privately owned, or that it is shielded from view by
         vegetation or topographical barriers, because those
         features do not necessarily indicate the owner's
         intention that the property be kept private.  A person


         who wishes to preserve a constitutionally protected
         privacy interest in land outside the curtilage must
         manifest an intention to exclude the public by erecting
         barriers to entry, such as fences, or by posting signs.

 State v. Dixson, 766 P.2d 1015, 1024 (Or. 1988) (en banc).  In a similar
 manner, the New York Court of Appeals rejected Oliver, but only when the
 "landowners fence or post 'No Trespassing' signs on their private property
 or, by some other means, indicate unmistakably that entry is not permitted."
 People v. Scott, 583 N.Y.S.2d 920, 930, 593 N.E.2d 1328, 1338 (1992); see
 also People v. Reynolds, 528 N.Y.S.2d 15, 17, 523 N.E.2d 291, 293 (1988)
 (owner of land does not have reasonable expectation of privacy in open
 fields under New York Constitution "where no precautions have been taken to
 exclude the public from entry").
      Although we have not followed the per se rule of Oliver in defining the
 protection given by Article 11, this is not a case in which this difference
 is of consequence.  In the case at bar, the trooper crossed land that was
 "unimproved and unbounded."  Although defendants emphasize the thickness of
 the woods and the natural barrier it formed, the same could be said about
 virtually all uncleared woodland in Vermont in August, the time of the
 trooper's visit.  There is nothing in the facts to distinguish this terrain
 from that crossed by the officers in Chester or in Kirchoff.  We agree with
 the Oregon Supreme Court that the shield created by vegetation or
 topographical barriers fails to demonstrate the landowner's intent to
      Nonetheless, defendants argue that they took affirmative action to
 demonstrate their concern for privacy by not clearing the land between the
 garden and the road.  Under this theory, all improved land surrounded by
 woods becomes protected because the landowner took the step of leaving the


 woods.  Obviously, this is not the kind of affirmative action to exclude the
 public required by Kirchoff and Chester.  Cf. State v. Grawien, 367 N.W.2d 816, 820 (Wis. Ct. App.) (no reasonable expectation of privacy from natural
 barrier when evidence "does not indicate that any of the foliage which
 served to partially conceal the marijuana patch was planted by [defendant] .
 . . or, if so, was cultivated by him for that purpose"), review denied, 371 N.W.2d 375 (Wis. 1985).  Neither defendants nor prior owners took any
 affirmative action that would show an intent to exclude the public.
      Since, on the facts presented here, the first principle of the federal
 Fourth Amendment analysis also applies to our state constitutional
 analysis, defendants can prevail only if we reject the second part of the
 federal analysis -- the right of the officer to look into the curtilage from
 unprotected open fields.  We see no basis in our jurisprudence to adopt this
      We have necessarily accepted that the trooper in this case could have
 looked anywhere in the woods for marijuana or evidence of its production.
 The rule defendants seek would require the trooper to turn his head from
 observing the garden even though standing in a position from which he could
 lawfully make an observation and even though defendants have taken no action
 to shield the garden from view outside the curtilage.  In determining what
 observation is permissible, the trooper would also have to predict the
 court's decision on the boundaries of the curtilage.
      Our jurisprudence is not consistent with this argument.  Since
 defendants have taken no steps to prevent the public from reaching the
 place of observation or to prevent the observation, they have knowingly
 exposed the garden to the public.  See Katz, 389 U.S.  at 351.  Article 11


 does not protect "areas willingly exposed to the public."  State v. Savva,
 ___ Vt. ___, ___, 616 A.2d 774, 782 (1991); see also State v. Brooks, 157
 Vt. 490, 493, 601 A.2d 963, 964 (1991) (conversation in parking lot not
 protected from electronic monitoring when "conversations are subject to the
 eyes and ears of passersby").
      The main point of Kirchoff is that a "per se approach cannot be squared
 with Article 11" in part because "we cannot presume how an individual will
 employ private lands -- that is the nature of privacy."  Kirchoff, 156 Vt.
 at 8-9, 587 A.2d  at 993; see also Savva, ___ Vt. at ___, 616 A.2d  at 781
 (bright line test of Oliver rejected in Kirchoff because it fails to do
 justice to values underlying Article ll).  Defendants seek a per se rule
 that prevents all observation into a curtilage even though they have taken
 no action to prevent that observation.  A per se rule of protection is just
 as inconsistent with Article 11 as is a per se rule of exclusion.
      Even if we were to hold that Article 11 prevents observation from
 outside the curtilage when the landowner has a subjective expectation of
 privacy, the facts make its application inappropriate here.  Not only did
 defendants do nothing to exclude persons from the walk through the woods on
 their land as taken by the trooper, they allowed the existence of a path at
 the point of entry to serve as an invitation for such a walk.  The distance
 traveled by the trooper was very short; in fact, the distance was shorter
 than the distance between defendants' house and garden.  The presence of
 sheep fencing around the garden, as well as cameras and spotlights, showed
 that defendants expected the garden to be observed but wanted to prevent
 theft.  In short, the evidence suggests that defendants exhibited no


 expectation of privacy that we should protect.

                                    FOR THE COURT:

                                    Associate Justice


FN1.    We examine the Dunn factors utilized by the trial court in its
determination that defendants' garden is within the curtilage of their home
for the purpose of evaluating the reasonableness of that conclusion.
Defendants have relied on these factors and have not suggested they are
inappropriate in analyzing compliance with Article 11 of the Vermont
Constitution.  We leave to another day the question of whether the Vermont
Constitution requires us to adopt a different definition of the curtilage
than that adopted by the United States Supreme Court or to attach different
significance to the curtilage.