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

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

       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

       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

       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


  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

  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


                              FOR THE COURT:

                              Associate Justice


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.


       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

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


  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

       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,


  (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

       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


       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

       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


  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

       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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