State v. Costin
Annotate this Case
State v. Costin (96-624); 168 Vt. 175; 720 A.2d 866
[Filed 31-July-1998]
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. 96-624
State of Vermont Supreme Court
On Appeal from
v. District Court of Vermont,
Unit No. 2, Addison Circuit
Michael N. Costin September Term, 1997
Edward J. Cashman, J.
William H. Sorrell, Attorney General, and David Tartter, Assistant
Attorney General, Montpelier, for Plaintiff-Appellee.
Barry E. Griffith of Griffith & Lundeen, P.C., Rutland, for
Defendant-Appellant.
PRESENT: Dooley, Morse and Johnson, JJ., and Allen, C.J. (Ret.) and
Gibson, J. (Ret.), Specially Assigned
DOOLEY, J. Defendant Michael Costin appeals the denial of his motion
to suppress a videotape showing him cultivating marijuana plants in
violation of 18 V.S.A. § 4230(a)(2). He contends that, under Chapter I,
Article 11 of the Vermont Constitution, the police are required to obtain a
warrant before conducting video surveillance on private property. Thus, he
argues, the warrantless video surveillance on his private property was
unconstitutional and the videotape must be suppressed. We disagree and
affirm.
Defendant owns and resides on thirty secluded acres of property in
Ferrisburgh, Vermont. The property can be reached by a dirt road, and
defendant's house is situated some 700 feet from the dirt road at the edge
of the woods. There are no fences or signs prohibiting entry at the
perimeter of the property.
In August of 1992, a Vermont State Police trooper received a tip from
an informant that the informant had observed marijuana plants growing on
defendant's property. On August 31,
1992, the trooper and a fellow officer responded to the report by entering
defendant's unposted property and observing a number of marijuana plants
growing in a wooded section of the property, about 150 feet from
defendant's house. They also observed a foot path leading from defendant's
house to the marijuana plants.
Three days later, the trooper returned and installed a recording video
camera in the woods approximately 65 feet from the marijuana plants. The
video camera was focused on the marijuana plants and a ten-foot portion of
the path leading to the plants. The trooper attached an infrared motion
sensor to the video camera. When the sensor detected human activity or
other motion near the plants, it turned on the camera and recorder, which
remained on for ten minutes. Five days later, the trooper returned to the
property and retrieved the camera. The videotape showed defendant walking
down the path and tending the marijuana plants in the garden. Based on all
of the above information, the trooper applied for and received a search
warrant for defendant's house and property. The subsequent search turned
up five marijuana plants and various drug paraphernalia.
Defendant filed a motion to suppress the evidence seized, claiming
that the warrantless video surveillance was unconstitutional under the
Vermont Constitution (FN1) and that it tainted the search pursuant to the
warrant. The trial court denied the motion, but recognized that the
constitutionality of warrantless video surveillance had yet to be addressed
by this Court. We now reach the constitutionality of the video
surveillance.
Defendant's main argument is that he has a "reasonable expectation of
privacy" such that he would not be videotaped on his land and that, under
Chapter I, Article 11 of the Vermont
Constitution, the police were required to obtain a search warrant before
conducting video surveillance. In framing the issue, defendant does not
dispute that the marijuana plants observed by the video camera were located
outside the curtilage of his house and thus were in "open fields." Nor
does he dispute that he took no steps to indicate to others that presence
on his land outside the curtilage was prohibited.
We addressed the scope of Article 11 protection with respect to "open
field" searches in State v. Kirchoff, 156 Vt. 1, 587 A.2d 988 (1991). In
Kirchoff, the defendant was convicted of cultivating marijuana on a portion
of his secluded property. He had put up several "no trespassing" signs at
the foot of his driveway and had posted "no hunting and fishing" signs at
the perimeter of his property. Nevertheless, the police ignored the signs,
entered onto his property and discovered a marijuana patch about 100 yards
from his house. We acknowledged in Kirchoff that the police's walk-on
search would have been permissible under the federal constitution, as
construed in Oliver v. United States, 466 U.S. 170, 179 (1984). See
Kirchoff, 156 Vt. at 3, 587 A.2d at 990.
Oliver confirmed that the Fourth Amendment protects reasonable
expectations of privacy, but held that "an individual may not legitimately
demand privacy for activities conducted out of doors in fields, except in
the area immediately surrounding the home." 466 U.S. at 178. The Supreme
Court reasoned that lands outside the curtilage of a dwelling "do not
provide the setting for those intimate activities that the Amendment is
intended to shelter from government interference or surveillance." Id. at
179.
Nevertheless, in Kirchoff, we interpreted Article 11 as providing
broader protection than the Fourth Amendment. We held that "a lawful
possessor may claim privacy in `open fields' under Article 11 of the
Vermont Constitution where indicia would lead a reasonable person to
conclude that the area is private." 156 Vt. at 10, 587 A.2d at 994. On
the other hand, we did not extend Article 11 protection to "searches of
lands where steps have not been taken to exclude the public." Id. By
creating this standard, we hoped to protect the constitutional rights of
those
who have taken affirmative steps to obtain privacy in their lands, while
not suppressing evidence obtained by the police that was "`knowingly
exposed to the public.'" Id. (quoting Katz v. United States, 389 U.S. 347,
351 (1967)). Specifically, we held that indicia such as fences, barriers
and "no trespassing" signs reasonably indicate that the property is
intended to be private and that strangers are not welcome. Id.
Under this interpretation of Article 11, we held that the warrantless
walk-on search of the defendant's property was unconstitutional. See id.
at 14, 587 A.2d at 997. The defendant clearly manifested both an objective
and subjective intent to exclude the public by posting "no trespassing" and
"no hunting" signs around the perimeter of his property. See id at 14, 587 A.2d at 996.
The controlling significance of steps to exclude the public is made
clear by two other cases, where we held that no Article 11 violation had
occurred.(FN2) In State v. Chester, 156 Vt. 638, 587 A.2d 1008 (1991)
(mem.), decided four days after Kirchoff, the defendant had erected neither
signs indicating entry to his land was prohibited nor barriers to entry.
We held that the police had not violated Article 11 when they walked on the
land and found a marijuana garden:
Kirchoff holds that the State must have a warrant to enter land
when it is apparent to a reasonable person that the owner or
occupant intends to exclude the public. This standard is intended
to define instances where a landowner's expectation of privacy in
an area is reasonable or legitimate. . . . In this case, there were no
barriers to indicate defendant's intent to exclude the public.
Where land is left unimproved and unbounded, the owner or
occupant has not taken sufficient steps to exclude the public to
trigger the protection of Chapter I, Article 11 of the Vermont
Constitution.
Id. at 638, 587 A.2d at 1009 (citations omitted; emphasis supplied).
In State v. Rogers, 161 Vt. 236, 248, 638 A.2d 569, 577 (1993), we
held that Chester applied despite the fact that the police officer had
crossed through thick woods to reach a marijuana garden. We agreed with a
similar decision of the Oregon Supreme Court, State v. Dixson, 766 P.2d 1015, 1024 (Or. 1988), that a "shield created by vegetation or
topographical barriers" does not trigger Article 11 protections because the
shield is natural and "fails to demonstrate the landowner's intent to
exclude." Rogers, 161 Vt. at 248, 638 A.2d at 576.
The controlling significance of the place of observation to our
Article 11 jurisprudence is made clear by three other post-Kirchoff
decisions. In State v. Blow, 157 Vt. 513, 602 A.2d 552 (1991), the police
sent an informant, wired with a transmitter, into the home of defendant to
make a drug purchase. We held that "warrantless electronic participant
monitoring conducted in a home offends the core values of Article 11" and
suppressed the evidence obtained by the transmission. Id. at 519, 602 A.2d
at 556.
On the same day, however, we decided State v. Brooks, 157 Vt. 490,
493-94, 601 A.2d 963, 964-65 (1991), in which we held that warrantless
electronic monitoring conducted in a parking lot does not offend Article 11
because the speaker who is overheard does not have a reasonable expectation
of privacy in words uttered to the informant outside the home.(FN3) In State
v. Bruyette, 158 Vt. 21, 37, 604 A.2d 1270, 1278 (1992), a majority of this
Court extended Brooks to a situation where the wired informant was the
defendant's girlfriend and who spoke with him in an automobile.
The obvious import of these decisions is that this defendant had no
reasonable expectation of privacy in the area in which he tended his
marijuana garden because he took no steps to exclude the public. Thus, as
we held in Chester, no Article 11 protections were triggered with respect
to that area, and police were free to go onto his property and observe his
activity. As
a result, defendant has no greater protection against electronic
surveillance on his unposted, open land than he would if such surveillance
were conducted in a public place.
In reaching this conclusion, we reject defendant's argument that
Kirchoff and its progeny are implied consent-rulings, that is, that they
hold that an owner or occupier of land has no reasonable expectation of
privacy only when he has impliedly consented to the observation involved.
He then argues from that proposition that it would be improper to imply
consent to video surveillance. We find nothing in Kirchoff to suggest that
we used implied consent to determine where Article 11 protections begin.
Indeed, it would bend implied consent beyond recognition to suggest that a
landowner would impliedly consent to a trespass by law enforcement officers
looking for evidence of the landowner's criminal conduct. Nor can Brooks
be explained by a person's implied consent to talk with, and confess crimes
to, a person who is wearing a transmitter so that law enforcement personnel
can overhear the conversation. Even if an implied-consent rationale were
to underlie these decisions, we would have no basis to say that we can
imply a landowner's consent for direct observation of criminal conduct but
not for surveillance.
We are left, then, with the proposition that Article 11 protects
against inappropriate use of electronic technology to observe a person's
movements wherever they may occur. In arguing for this position, defendant
notes that in Rogers we distinguished the situation where the officer's
observation is aided by technology, see Rogers, 161 Vt. at 245, 638 A.2d at
574, and urges us to find that use of video technology alone creates an
Article 11 search.
Rogers does not help defendant because the observation in that case
was into a protected area -- the curtilage surrounding the landowner's
home. We agree that video surveillance of a protected area may trigger
Article 11 protections although we need not consider those protections in
this appeal. See United States v. Mesa-Rincon, 911 F.2d 1433, 1443 (10th
Cir. 1990) (because of reasonable expectation of privacy in private
business premises, law enforcement officers must obtain judicial approval
for video surveillance therein, meeting modified standards
of Title III of Omnibus Crime Control & Safe Streets Act of 1968); State v.
Bonnell, 856 P.2d 1265, 1276 (Haw. 1993) (because employee break room is
protected area, covert video surveillance of employees in room is search
under Hawaii Constitution). There is no suggestion in Rogers, or any other
case we can find, that use of technology to aid observation of activities
in a public place raises Article 11 concerns where, as here, the person
observed has taken no to avoid observation of his activities.
We need not try generally to define the circumstances that might
trigger Article 11 regulation of video surveillance. Nor do we minimize
the dangers of widespread use of video surveillance. In this case,
however, video surveillance was used in a narrow set of circumstances,
where the police had already determined that a crime was being committed,
and only as a substitute for in-person surveillance.
Thus, this is not a case where video surveillance is aimed
indiscriminately at public places and captures lawful activities of many
citizens in the hope that it will deter crime or capture what crime might
occur. See generally Comment, Scowl Because You're on Candid Camera:
Privacy and Video Surveillance, 31 Val. U. L. Rev. 1079 (1997); J. M.
Granholm, Video Surveillance on Public Streets: The Constitutionality of
Invisible Citizen Searches, 64 U. Det. Mercy L. Rev. 687 (1987). Nor was
it a situation where the video camera enhanced the observation otherwise
unavailable to the naked eye, see State v. Young, 867 P.2d 593, 599 (Wash.
1994) (employment of thermal imaging device was search, in part because it
gathered information about defendant's home that could not be gathered by
naked-eye observation); 1 W. LaFave, Search and Seizure §§ 2.2(c),(d) (3d
ed. 1996), or recorded what a person would be unable to see because the
person could not be at the observation point, see Bonnell, 856 P.2d at
1276.(FN4) We do not suggest that a warrant is required in all or any of
these instances. We
distinguish these only to emphasize the limited question before us.
The video camera recorded only what an officer standing in the same
position would have observed with the naked eye. See Vega-Rodriguez v.
Puerto Rico Tel. Co., 110 F.3d 174, 181 (1st Cir. 1997) ("mere fact that
the observation is accomplished by a video camera rather than the naked
eye, and recorded on film rather than in . . . [observer's] memory, does
not transmogrify a constitutionally innocent act into a constitutionally
forbidden one"). Thus, it is a substitute for the traditional stake-out
where a law enforcement officer conceals himself and waits to make the same
observation as the video camera would make. As the State argues, the
camera, if anything, was less intrusive on the privacy of the landowner
because it had a narrow viewing field, was employed only when someone
approached the marijuana garden and did not even record sounds. We do not
see how Article 11 protects against the use of a technological device that
accomplishes the same result as a lawful in-person stake-out, and nothing
more. It certainly does not advance a free society for the judiciary to
require the employment of more law enforcement personnel to properly
enforce the criminal laws.
We recognize that a warrant is required in most cases where law
enforcement officers engage in a search covered by Article 11, see State v.
Savva, 159 Vt. 75, 85-86, 616 A.2d 774, 779-80 (1991), but one is not
required where no Article 11 search is involved. Because we hold that the
video surveillance in this case did not trigger Article 11 protections, no
warrant was required.
Although acknowledging that the police "acted reasonably in this
particular case" and that the "surveillance techniques employed by police
in this case were reasonably limited in time, scope and duration," post, at
11, the dissent would hold that the police acted unlawfully because
they engaged in "covert surveillance" without a warrant, post, at 13. No
court in this country has employed the dissent's reasoning to strike down
warrantless surveillance, with or without video recording. Nor could law
enforcement officers determine the boundary line between surveillance that
requires a warrant and a "brief, warrantless observation" that does not.
What the dissent seeks is a reevaluation of Kirchoff, Chester and Rogers to
require law enforcement officers to seek a warrant in almost all cases
involving open field searches to be sure they have not crossed the
indeterminate line between observation and surveillance.
Moreover, the dissent argues that because indiscriminate video
surveillance has the potential to "`eliminate personal privacy as
understood in modern Western nations,'" post, at 10 (quoting United States
v. Torres, 751 F.2d 875, 882 (7th Cir. 1984)) and bring about a society
without privacy as described in George Orwell's novel 1984, all video
surveillance should require prior judicial authorization by way of a
warrant, see post, at 12. Apparently, under the dissent's rule, our trial
courts would decide what investigatory methods could be employed by law
enforcement officers, rather than leaving that determination to the
executive branch officials charged with this responsibility.(FN5) Again, no
court in this country has adopted such an extreme position. We reject it
because we are required to decide this case, rather than to suggest a
solution to every misuse of video technology we can conceive of.
On the facts of this case, there was no search covered by Article 11
of Chapter I of the Vermont Constitution. The Addison District Court acted
correctly in refusing to suppress the
videotape that showed defendant cultivating marijuana plants growing on his
land.
Affirmed.
FOR THE COURT:
_______________________________________
Associate Justice
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Footnotes
FN1. Defendant has made no claim that the video surveillance offended
the Fourth Amendment to the United States Constitution as interpreted by
the United States Supreme Court and has apparently conceded that there is
no federal constitutional violation. Defendant noted in his brief that
Oliver v. United States, 466 U.S. 170, 178-79 (1974) allows the police,
without a warrant, "to electronically eavesdrop on private activities in
`open fields' because this is not a constitutionally protected area."
FN2. Four other states -- Montana, New York, Oregon and Washington --
provide similar constitutional protection for "open field" searches. Each
of these states similarly requires the landowner or occupier to post or
fence the property, that is, evince an intent to protect privacy, for the
state constitutional protections to apply. See State v. Bullock, 901 P.2d 61, 76 (Mont. 1995); People v. Scott, 593 N.E.2d 1328, 1338 (N.Y. 1992);
State v. Dixson, 766 P.2d 1015, 1024 (Or. 1988); State v. Johnson, 879 P.2d 984, 993 (Wash. Ct. App. 1994).
FN3. Similarly, the Oregon Supreme Court has ruled that use of a
night vision system and video camera to observe persons in parked cars in a
parking lot is not a search under the Oregon Constitution. See State v.
Wacker, 856 P.2d 1029, 1036 (Or. 1993).
FN4. Recognizing that the judicial response to electronic video
surveillance has not been consistent, the American Bar Association Criminal
Justice Section has been working on a standard that would comprehensively
cover when such surveillance is appropriate and establish procedural
safeguards. The draft standard, which often suggests regulation beyond
constitutional minimums, proposes for the video surveillance involved here
only that a supervisory law enforcement official determine that the
surveillance will not view a private activity or condition and is
reasonably likely to achieve a legitimate law enforcement objective. See
C. Slobogin, Technologically-Assisted Physical Surveillance: The American
Bar Association's Tentative Draft Standards, 10 Harv. J.L. & Tech. 383,
458-59 (1997) (Draft Standard 2-6.3(c)).
FN5. The dissent has not stated what standard would be used in
determining whether to issue a warrant. We note, however, there is no
dispute in this case that the police had probable cause to believe that a
crime was being committed. Thus, the Court's review must necessarily go to
whether a particular form of investigation can be used with respect to the
acknowledged crime.
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Dissenting
NOTICE: This opinion is subject to motions for reargument under
V.R.A.P. 40 as well as formal revision before publication in the Vermont
Reports. Readers are requested to notify the Reporter of Decisions,
Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
any errors in order that corrections may be made before this opinion goes
to press.
No. 96-624
State of Vermont Supreme Court
On Appeal from
v. District Court of Vermont,
Unit No. 2, Addison Circuit
Michael N. Costin September Term, 1997
Edward J. Cashman, J.
William H. Sorrell, Attorney General, and David Tartter, Assistant
Attorney General, Montpelier, for Plaintiff-Appellee.
Barry E. Griffith of Griffith & Lundeen, P.C., Rutland, for
Defendant-Appellant.
PRESENT: Dooley, Morse and Johnson, JJ., and Allen, C.J. (Ret.) and
Gibson, J. (Ret.), Specially Assigned
JOHNSON, J., dissenting.
There was of course no way of knowing whether you were being
watched at any given moment. . . . It was even conceivable
that they watched everybody all the time. . . . You had to live --
did live, from habit that became instinct -- in the
assumption that every sound you made was overheard,
and, except in darkness, every movement scrutinized.
George Orwell, 1984 4 (1949). George Orwell's bleak and chilling vision of
post-modern civilization has not come to pass, at least not in this
country. But allowing police agents to set up surreptitious,
twenty-four-hour video surveillance of landowners on their own property
without judicial oversight raises the specter of such a society. Indeed,
the use of technological advances to enhance government surveillance
techniques threatens to erode the expectations of privacy we take for
granted in a free and open society. Today's decision undermines the lone
bulwark
against such erosion -- Article 11's warrant requirement.
Few Vermonters would think that, merely by leaving their land
unposted, they have left it open it to the Orwellian intrusions permitted
under today's holding. The posting of "No Trespassing" signs or the
erection of fences may be a prerequisite to bringing a successful trespass
action against one who comes uninvited onto private property, or
successfully challenging a brief walk-on search by police, but I do not
understand our Constitution to require the placement of signs or barricades
to prevent round-the-clock governmental surveillance by any and all means
that modern technology can devise. Nothing in our prior case law
interpreting Article 11 compels such a requirement.
Before discussing our jurisprudence, it is important to clarify that
this appeal is not about whether law enforcement officials reasonably
limited the scope of their covert surveillance activities in this case.
Rather, the issues are whether police ever, under any circumstances, have
to obtain a search warrant before seeking out or gathering criminal
evidence on unposted private land outside the curtilage,(FN1) and, more
particularly, whether police must obtain a warrant before conducting
clandestine video surveillance on private property in search of criminal
evidence.
The State argues that Article 11 does not protect unposted private
land, and thus law enforcement officials may act with impunity in such
areas. According to the State, police may secrete surveillance cameras in
trees to record any and all human activity for an unlimited duration, or
they may set up permanent manned observation posts, using sophisticated
technology such as infrared observation devices, all without a warrant or
probable cause. In the State's view, Article 11 is inapplicable no matter
how intrusive the manner or means of observation employed by police. The
Court accepts this startling argument with little reservation, holding that
because Article 11's protection does not extend to open fields, there is no
basis to preclude police from
covertly videotaping citizens on their private property outside the
curtilage of their homes in the hopes of obtaining evidence of criminal
conduct. In so holding, the Court resurrects an outdated, formalistic
analysis that rigidly focuses on mapping out property worthy of
constitutional protection while ignoring modern search-and-seizure law,
which examines expectations of privacy and societal interests.
Because both Article 11 and the Fourth Amendment to the United States
Constitution protect our right to be free of unreasonable searches and
seizures by the government, our Article 11 jurisprudence necessarily has
been intertwined with federal interpretations of the Fourth Amendment.
Nevertheless, we have explicitly rejected Fourth Amendment jurisprudence in
the area of open fields. In State v. Kirchoff, we refused to follow the
bright-line rule set forth in Oliver v. United States, 466 U.S. 170, 179
(1984) declaring that a person may never legitimately demand privacy in
open fields. See 156 Vt. 1, 10, 587 A.2d 988, 994 (1991) (bright-line test
of Oliver "simply fails to do justice to values underlying Article 11").
Indeed, we labeled Oliver's per se rule that society is not prepared under
any circumstances to recognize as reasonable an expectation of privacy in
lands outside the curtilage "a bold and unsupported pronouncement" that
cannot be squared with Article 11. Id. at 9, 587 A.2d at 994. We
emphasized that our duty is to discover and protect the core value of
privacy that gave life to Article 11 and that was discarded by Oliver. See
id. at 7, 587 A.2d at 992. Further, we recognized a presumption that
government searches of a person's land implicate Article 11, and thus that
the State had the burden to demonstrate that its conduct did not violate
Article 11. See id. at 13, 587 A.2d at 996.
At the same time, the Kirchoff decision embraced the United States
Supreme Court's decision in Katz v. United States, 389 U.S. 347 (1967).
Before Katz, the Supreme Court had held that a physical trespass into a
constitutionally protected area was necessary for a "search" to have
occurred within the meaning of the Fourth Amendment. See Olmstead v.
United States, 277 U.S. 438, 466 (1928) (wiretapping is not "search" within
meaning of Fourth Amendment because telephone messages are not material
things and there is no actual physical invasion of
constitutionally protected area); Hester v. United States, 265 U.S. 57, 59
(1924) (special protection accorded by Fourth Amendment to people in their
persons, houses, papers, and effects does not extend to open fields). But
the Court abandoned that notion in Katz, a case in which agents of the
Federal Bureau of Investigation had bugged a suspect's conversations by
placing a listening device on the outside of a public telephone booth, an
area that historically had not been considered constitutionally protected
from government intrusion. The Court stated that "the correct solution of
Fourth Amendment problems is not necessarily promoted by incantation of the
phrase `constitutionally protected area,'" which deflects attention from
the fact that "the Fourth Amendment protects people, not places." Katz,
389 U.S. at 350, 351; see State v. Zaccaro, 154 Vt. 83, 90, 574 A.2d 1256,
1261 (1990) (like Fourth Amendment, Article 11 protects people, not
places). According to the Court, by electronically listening to and
recording the suspect's words, the government violated the privacy upon
which he justifiably relied. See Katz, 389 U.S. at 353.
After Katz, the concept of constitutionally protected areas no longer
served as a talismanic solution to every Fourth Amendment problem. See 1
W. LaFave, Search and Seizure § 2.4(a), at 524 (3d ed. 1996). Instead,
courts had to examine the nature of the government's activities, balance
societal interests, and then determine whether allowing the challenged
government conduct to go unregulated would unacceptably diminish the level
of freedom and privacy expected in a free and open society. This is the
view of Katz that this Court accepted in Kirchoff and reaffirmed in Morris,
165 Vt. at 115-16, 680 A.2d at 94 (Vermonters have reasonable expectation
of privacy in contents of secured garbage bags left at curbside for
collection and disposal).
The facts in Kirchoff did not require this Court to address the issues
involved in the instant case. In Kirchoff, police officers acting on a tip
walked onto defendant's posted land, confirmed that marijuana plants were
growing on the property, and then obtained a warrant. See 156 Vt. at 3,
587 A.2d at 990; see also State v. Rogers, 161 Vt. 236, 239, 638 A.2d 569,
531
(1993) (upholding search in which police walked onto private property
outside curtilage, observed recently harvested marijuana patch within or
near curtilage, and obtained search warrant). The case did not involve
surveillance at all, as that term is commonly understood, let alone covert
video surveillance over a period of days. We held that landowners may
claim privacy in open fields by posting their land or otherwise
demonstrating an intent to exclude others. Kirchoff, 156 Vt. at 10, 587 A.2d at 994. We did not suggest, however, that the general principles
enunciated in the case -- that Article 11's protection extends beyond the
curtilage of the home, and that government searches of a person's land
presumptively implicate Article 11 -- were limited to the facts of the
case.
To the contrary, we suggested in Kirchoff that the nature of the
surveillance activities conducted by police is a relevant, indeed critical,
factor in determining whether Article 11 is implicated. In construing the
term "reasonable expectation of privacy" -- the benchmark for determining
whether a "search" has occurred -- we stated that because "people will
confine their `intimate activities' to narrower areas as `government
interference or surveillance' grows more intrusive and pervasive . . .
constitutional rights should not succumb to waning expectations or
fluctuations in the degree of government intrusion `society' is willing to
condone." Id. at 8, 587 A.2d at 993. Moreover, we emphasized that our
constitutional rights do not diminish with technological advances that
enable the government to further encroach on our privacy. See id. at
12-13, 587 A.2d at 996; California v. Ciraolo, 476 U.S. 207, 218 (1986)
(Powell, J., dissenting) (standard that defines Fourth Amendment search by
reference to whether police have physically invaded constitutionally
protected area provides no real protection against surveillance techniques
made possible through technology); cf. Rogers, 161 Vt. at 245, 638 A.2d at
574 (state trooper's observation of marijuana patch within curtilage from
vantage point outside curtilage did not violate Fourth Amendment absent use
of technology to aid observation).
Today, the Court ignores the true import of Kirchoff and revives the
discredited "constitutionally protected area" analysis by declaring that
all unposted private land in Vermont
lying outside the curtilage of the home is beyond the protection of Article
11 and thus subject, without judicial oversight, to the most intrusive
forms of surveillance of which modern technology is capable.
Ironically, the Court refers to the potential dangers of warrantless
covert video surveillance of public places, a view I share, but then
refuses to acknowledge that persons have legitimate expectations of privacy
from such intrusive surveillance on their own property. I believe that
ownership and possession, even with respect to unposted land outside the
curtilage of the home, provide persons with certain expectations of
privacy. See United States v. Taketa, 923 F.2d 665, 677 (9th Cir. 1991)
(property interest is one of several factors courts consider in assessing
expectations of privacy); State v. Thomas, 642 N.E.2d 240, 244 (Ind. Ct.
App. 1994) (ownership and possession, while not determinative, remain
relevant factors in assessing whether one has expectation of privacy).
Ownership of real estate generally gives one the right to exclusive use of
the property, as evidenced by civil and criminal laws against trespass.
See 12 V.S.A. § 4911; 13 V.S.A. § 3705. Surely, regardless of whether we
display "No Trespassing" signs or erect barriers, the expectation of
privacy we have with respect to our own land is not so low as to give the
government free reign to conduct any type of surveillance, no matter how
intrusive in nature, without judicial oversight.
Apparently, the Court believes that because hikers or hunters may pass
through unposted private land, the owners of such land cannot reasonably
expect privacy from clandestine government surveillance of their activities
on their property. We have recently rejected similar reasoning in a
different context. See Morris, 165 Vt. at 119, 680 A.2d at 96
(notwithstanding the possibility that garbage will be tampered with by
scavengers and snoops, people reasonably expect that their trash will be
commingled with other garbage without being intercepted and examined by
police). Just as the disposal of trash for curbside pickup cannot be the
basis for concluding that persons no longer have a justified expectation of
privacy in the contents of the trash, see id. at 118, 680 A.2d at 95,
leaving one's private land unposted for the benefit of others'
recreational pursuits cannot be the basis for concluding that one has
waived all right to privacy from intrusive government surveillance on that
land, see United States v. Lace, 669 F.2d 46, 55 (2d Cir. 1982) (Newman,
J., concurring) ("open fields" on private property are not open for any
surveillance police officers choose to conduct, unrestricted as to
duration, constancy of observation, location observed, or means of enhanced
viewing); People v. Cook, 710 P.2d 299, 304 (Cal. 1985) (fact that persons
discarding trash or conducting activities in public telephone booths,
hospital rooms, or hotel rooms might expect police or others to enter area
or see or hear activities within area does not necessarily preclude
reasonable claims of privacy from intensive police spying); M. Gutterman, A
Formulation of the Value and Means Models of the Fourth Amendment in the
Age of Technologically Enhanced Surveillance, 39 Syracuse L. Rev. 647,
682-83 (1988) (citizens may expect casual public observation without
consenting to police surveillance).
Someone sunbathing in the nude in a secluded area on private property
may have no basis for complaint if observed by a passerby, but it is not
reasonable to assume that that person would expect to be surreptitiously
videotaped by government agents. See Lace, 669 F.2d at 57 (Newman, J.,
concurring). Article 11 does not require us to remain inside behind drawn
shades to feel assured of being free from around-the-clock government
surveillance. See Cook, 710 P.2d at 305 (if Fourth Amendment permitted
government inspection by any and all means that persons failed to
forestall, our society would be transformed into garrison state);
Gutterman, supra, at 686-87 ("Surely, one has reason to expect that he need
not hide himself in a soundproof home, with the curtains drawn, and remain
quiet to enjoy the precious liberties derived from the Constitution.").
I agree that the nature of the area in which a police search was
conducted remains a factor in determining whether Article 11 is implicated,
and that one generally has a reduced expectation of privacy as to unposted
private property outside the curtilage of the home. I do not agree,
however, that the location of the investigating officer or the search is
necessarily the dispositive
factor, precluding any consideration of the nature or manner of the search.
See Vega-Rodriquez v. Puerto Rico Tel. Co., 110 F.3d 174, 180 (1st Cir.
1997) (precise extent of expectation of privacy often turns on nature of
intended intrusion); United States v. Domitrovich, 852 F. Supp. 1460, 1473
(E.D. Wash. 1994), aff'd, 57 F.3d 1078 (9th Cir. 1995) (in determining
whether expectation of privacy is reasonable, no single factor, including
place, is dispositive); Cook, 710 P.2d at 303 ("Though location is no
longer the sine qua non of search-and-seizure analysis, it remains relevant
under the Katz test."); State v. Kender, 588 P.2d 447, 450 (Haw. 1979) (in
examining reasonable expectation of privacy, a number of factors, including
type and character of police conduct, must be considered; relying solely on
officer's position would resurrect former emphasis on whether physical
trespass had occurred).
In determining the reach of Article 11, we strive to balance society's
interests in achieving effective law enforcement while protecting persons
from unreasonable government intrusions. Because landowners who choose not
to post their lands may risk, even expect, that an occasional passerby will
observe activities on their property that the landowner would otherwise
like to keep private, we have allowed police to conduct brief, warrantless
observations on private land outside the curtilage to verify suspicion of
criminal wrongdoing. But there is a qualitative difference between walking
on to private property to verify a tip and setting up intensive covert
surveillance there. At some point, even on private property outside the
curtilage, the nature of police activities becomes so intrusive that it
violates reasonable expectations of privacy. I believe that that point is
reached when police decide to surreptitiously videotape persons on their
private property.
The Court minimizes the intrusiveness of the videotaping in this case,
noting that police could have accomplished the same objective by means of
an around-the-clock traditional stake-out, which would have been even more
intrusive. This is a moot point, given the Court's holding that Article 11
offers no protection from police activities on private property outside the
curtilage. But even if it were not, for several reasons I do not find it
persuasive.
First, I do not necessarily agree with the Court's presumption that
police would not need a warrant to conduct a twenty-four-hour traditional
stakeout on private property. See R. Power, Technology and the Fourth
Amendment: A Proposed Formulation for Visual Searches, 80 J. Crim. L. &
Criminology 1, 68-69 (1989) (warrant should not be required for mere
observation, which constitutes useful and discrete method of verifying tip
or otherwise checking suspicious behavior to determine whether more
intrusive search would be appropriate; however, warrant should be required
where investigatory stage evolves into collection of evidence through
surveillance). If sufficiently intrusive, covert surveillance activities,
even when conducted without electronic enhancement on land outside the
curtilage, may invade reasonable expectations of privacy and thus require a
warrant. Certainly, paramilitary-like operations on private property
invade reasonable expectations of privacy. See Lace, 669 F.2d at 53
(Newman, J., concurring) (disagreeing with Court's view that continuous,
warrantless, paramilitary surveillance activities on rural Vermont farm
over three-week period was not invasion of privacy protected by Fourth
Amendment).
Second, it is much easier and cheaper to maintain covert surveillance
by secreting a small video camera in a tree than by rotating shifts of
police officers. People know that limited resources make it highly
unlikely that police would be willing or able to watch them twenty-four
hours a day. The Court states that it does not advance the goals of a free
society for the judiciary to require the employment of more law enforcement
personnel to enforce the criminal laws. But, in my view, by far the more
important point is that it does not advance the goals of a free society to
allow the government to spy on its citizens on their private property,
without probable cause or a warrant.
Third, video surveillance can be more intrusive than observation by
the naked eye. Cf. State v. Blow, 157 Vt. 513, 520, 602 A.2d 552, 556
(1991) (citing State v. Zaccaro, 154 Vt. 83, 85-86, 574 A.2d 1256, 1258
(1990) to underscore distinction between evidence based on electronic
recording and testimony of same event based only on senses and memory). As
Judge
Posner recognized, covert video surveillance is exceedingly intrusive,
inherently indiscriminate, and so susceptible to abuse that it has the
potential to "eliminate personal privacy as understood in modern Western
nations." United States v. Torres, 751 F.2d 875, 882 (7th Cir. 1984).
Other courts addressing the issue agree. See United States v. Mesa-Rincon,
911 F.2d 1433, 1443 (10th Cir. 1990) (because covert video surveillance is
extraordinarily intrusive method of searching, there must be higher showing
of necessity to justify it); State v. Bonnell, 856 P.2d 1265, 1277 (Haw.
1993) (agreeing with Judge Posner in Torres that video surveillance
provokes immediate visceral reaction and raises specter of Orwellian
state); Thomas, 642 N.E.2d at 245 (video surveillance has been recognized
as one of most intrusive forms of searches performed by government,
regardless of type of premises searched); People v. Teicher, 422 N.E.2d 506, 513 (N.Y. 1981) (video surveillance is inherently highly intrusive).
Indeed, courts and commentators have concluded that because
videotaping captures a continuous, inescapable image of a person's every
movement, which creates a record for minute inspection by others at a later
time, the unblinking eye of the video camera is even more intrusive than
wiretapping or bugging. See Torres, 751 F.2d at 885 (video surveillance is
even more invasive of privacy than wiretapping and bugging, just as strip
search is more invasive than pat-down search); In re Application of Order
Authorizing Interception of Oral Communications and Videotape Surveillance,
513 F. Supp. 421, 423 (D. Mass. 1980) (most observers would regard video
surveillance, standing alone, as even more intrusive than interception of
oral communications); Ricks v. State, 537 A.2d 612, 616 (Md. 1988) ("It
cannot be doubted . . . that video surveillance is more intrusive than
audio surveillance . . . ."). Covert video surveillance is certainly more
intrusive than electronic participant monitoring of face-to-face
conversations, where the targeted person, by communicating to another, has
less reason to expect that the communication will remain private. See
Comment, Electronic Visual Surveillance and the Fourth Amendment: The
Arrival of Big Brother, 3 Hastings Const. L.Q. 261, 294 (1976); cf. State
v. Brooks, 157 Vt. 490, 494, 601 A.2d 963, 965 (1991) (allowing warrantless
electronic participant
monitoring of face-to-face conversations in public parking lot).
Acknowledging this, most courts have permitted government video
surveillance only when conducted under the rigorous requirements
established for audio electronic surveillance in Title III of the Omnibus
Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-2521,(FN2)
which was enacted following the decision in Katz. E.g., United States v.
Biasucci, 786 F.2d 504, 510 (2d Cir. 1986) (Title III standards, together
with more general constitutional requirements, form sufficient outline of
showing government must make before obtaining warrant for video
surveillance); Torres, 751 F.2d at 885 (Title III provides measure of
government's constitutional obligation in seeking warrant for video
surveillance); see Power, supra, at 106 (citing cases, and noting that
Congress did not regulate video surveillance under Title III in 1968
because technology was not sufficiently advanced at that time for law
enforcement officials to use technique with any degree of success).
Here, the Court avoids confronting the intrusive nature of video
surveillance by pointing out that the police acted reasonably in this
particular case. I agree that the surveillance techniques employed by
police in this case were reasonably limited in time, scope, and duration.
Nevertheless, the Court's reliance on these self-imposed and nonbinding
limitations is inconsistent with its own analysis and the purposes behind
the warrant requirement. The Court holds today that no Article 11 search
was involved because Article 11 does not apply to unposted private property
outside the curtilage. Thus, under the Court's own analysis, the extent of
the intrusiveness of the search is simply irrelevant. If, on the other
hand, the Court means to imply
that the intrusiveness of police conduct is a factor to be considered in
determining whether a search occurred, then unposted private lands are not
outside the reach of Article 11. If that is the case, in each instance law
enforcement officers would have to determine whether their video
surveillance on private property was sufficiently intrusive to require
obtaining a warrant before proceeding. This is the very type of
uncertainty that the Court warns would result from requiring police
officers to distinguish between observation and surveillance.
But the most disturbing aspect of the Court's reliance on the limited
nature of the surveillance in this case is its implicit misunderstanding of
the warrant requirement. The warrant requirement is not a means for
hindsight review of the constitutionality of police conduct toward
individuals eventually arrested and prosecuted for having violated the law.
Article 11 requires judicial oversight before would-be invasions of privacy
occur; after-the-fact challenges by criminal defendants do not fully serve
Article 11's purpose of protecting everyone, particularly law-abiding
citizens. See State v. Savva, 159 Vt. 75, 86, 616 A.2d 774, 780 (1991).
The warrant requirement assures that neutral and detached judicial
officers, rather than police officers whose primary duty is to apprehend
criminal suspects, will evaluate the reasonableness of proposed searches.
See id. Involving a judicial officer before searches occur not only
reduces the chances that hindsight will color the evaluation of the
reasonableness of those searches, but also prevents ill-considered searches
against law-abiding citizens. It is these latter searches, not the
fruitful ones, that do not reach criminal court and thus can be prevented
only by our adherence to Article 11's warrant requirement. See id. at
86-87, 616 A.2d at 780. Even if the judicial officer agrees with the
police that probable cause exists for a given search, the fact that the
decision was made by a neutral officer reassures the public that an orderly
process of law has been respected and followed. See id. at 87, 616 A.2d at
780.
The Court's hindsight approach in this case ignores this reasoning,
which has long been a critical component of both federal and Vermont
search-and-seizure jurisprudence. In Katz, the Supreme Court found
unavailing the government's argument, similar to the State's argument in
the instant case, that the bugging it engaged in was reasonably limited in
scope and duration. While acknowledging that the federal agents acted with
restraint and that a magistrate could have constitutionally authorized
their reasonably limited search, the Court nonetheless refused to overlook
its long-held position that, except for specifically established
inapplicable exceptions, warrantless searches are per se unreasonable. See
Katz, 389 U.S. at 357. Until today, "[w]e have taken this `basic
constitutional rule' as our own." Savva, 159 Vt. at 86, 616 A.2d at 789
(quoting State v. Meunier, 137 Vt. 586, 588, 409 A.2d 583, 584 (1979)).
Given the highly intrusive nature of covert video surveillance and its
rising popularity among law enforcement officials as an evidence-gathering
technique, see Comment, Let's Go to the Videotape: The Second Circuit
Sanctions Covert Video Surveillance of Domestic Criminals, 53 Brook. L.
Rev. 469, 471 (1987), I would hold that when police seek to gather evidence
of criminal activity on private property through the use of covert video
surveillance, they must first obtain a search warrant restricting the time,
duration, manner, and scope of the search, see Power, supra, at 111
(electronic surveillance techniques are sufficiently sophisticated to
mandate judicial supervision in all cases). Further, as a condition to
obtaining a warrant, I would require police to demonstrate to a judicial
officer that other means of evidence-gathering are unfeasible. Anything
short of this would fail to 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." Savva, 159 Vt.
at 86, 616 A.2d at 780.
The Court characterizes this view as extreme, but merely labeling it
as such does not make it so. I dare say that most Vermonters would diverge
from the Court if asked which of the following two positions is the extreme
one: the Court's holding that our Constitution offers no protection from
covert electronic surveillance by the government of citizens on their
private property outside the curtilage of their homes, or the view of
Justice Morse and myself that police must obtain a warrant from a neutral
judicial officer before conducting such activities. I arrive at my view
with the understanding that this Court must balance society's interest in
privacy and
freedom from governmental intrusions with society's equally valid interest
in effective law enforcement. I do not believe that requiring warrants for
clandestine videotaping on private property would hamper police in their
effort to investigate suspected criminal activity. Indeed, as I stated
above, it is clear to me that the police activities in this case could have
been conducted pursuant to a lawful warrant.
To be sure, privacy as a constitutional precept is an elusive concept.
Nevertheless, all of us intuitively know that privacy is necessary not only
to preserve freedom in a democratic society, but also to enhance our
mental, physical, and spiritual well-being. See Gutterman, supra, at 681.
Privacy plays an important role in developing our ability to be creative
and spontaneous and to form trusting bonds with others. Id. Knowing that
our private activities might be under surveillance destroys our sense of
security, freedom, and trust. I fear that today's decision can only
undermine the sense of security and trust that is the hallmark of a free
and open society.
I am authorized to state that Justice Morse joins in this dissent.
________________________________________
Associate Justice
FN1. The curtilage is an area outside the physical confines of a house that
is afforded the same constitutional protection as the home itself because
the activities in that area are directly and intimately connected with the
home. See State v. Rogers, 161 Vt. 236, 241-42, 638 A.2d 569, 572 (1993).
FN2. Under Title III, law enforcement officials may not conduct audio
electronic surveillance of a person unless they request a search warrant,
and a judicial officer determines that (1) there is probable cause to
conclude that the person committed one of the offenses enumerated in Title
III, (2) communications concerning the offense will be obtained through
interception, (3) the facilities from which the communications are to be
intercepted are being used in connection with the commission of the
offense, and (4) normal investigative techniques have failed, appear
unlikely to succeed, or would be too dangerous. See 18 U.S.C. § 2518(3).
Title III also imposes severe restrictions on the scope of warrants
permitting the use of electronic surveillance. See id. § 2518(4).
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