State v. Meyer

State v. Meyer  (97-264); 167 Vt. 608; 708 A.2d 1343 

[Filed 20-Feb-1998]


                                 ENTRY ORDER

                       SUPREME COURT DOCKET NO. 97-264

                             DECEMBER TERM, 1997


State of Vermont                }     APPEALED FROM:
                                }
                                }
     v.                         }     District Court of Vermont,
                                }     Unit No. 3, Orange Circuit
Samuel Meyer                    }
                                }     DOCKET NO. 116-3-96 Oecr


       In the above-entitled cause, the Clerk will enter:

       Defendant Samuel Meyer appeals from an Orange District Court order
  denying his motion to suppress photographs, negatives and videotapes seized
  from his home pursuant to a valid search warrant.  He contends that, under
  the Fourth and Fourteenth Amendments to the United States Constitution and
  Chapter I, Article 11 of the Vermont Constitution, the police are
  prohibited from conducting a search of a home pursuant to a valid search
  warrant if the homeowner is not present, absent exigent circumstances.  We
  disagree and affirm.

       On February 12, 1996, defendant's home was searched pursuant to a
  search warrant. Initially, the officers found the residence unoccupied and
  waited two and one-half hours for defendant to return.  Finally, they
  knocked and announced that they had a search warrant. When no one answered,
  two officers gained entry by climbing through a dog entrance.  These
  officers then unlocked the front door and let in the remaining officers. 
  Defendant's home suffered no damage during the police entry.  Defendant
  arrived home while the search was in progress.  The officers found items
  specified in the warrant, videotapes and photographs showing certain
  juveniles posing nude and in sexually suggestive positions.  Based on the
  discovery of this evidence, defendant was arrested and charged with two
  counts of promoting a performance including the lewd exhibition of the
  genitals of a child in violation of 13 V.S.A. § 2822(a).

       Defendant seeks to suppress the evidence seized, claiming that the
  search of the home while no one is present and without exigent
  circumstances is per se unreasonable under the Fourth Amendment.  Defendant
  cites no authority for this position, and we find none.  Indeed, the
  federal courts of appeal have consistently held that police may search a
  dwelling even when the occupant is not present and even without exigent
  circumstances.  See United States v. Chubbuck, 32 F.3d 1458, 1461 (10th
  Cir. 1994) (police search of defendant's apartment pursuant to valid
  warrant was reasonable even though apartment was unoccupied); United States
  v. Gervato, 474 F.2d 40, 44 (3rd Cir. 1973) (Fourth Amendment does not
  prohibit per se searches conducted in the absence of the occupant); Payne
  v. United States, 508 F.2d 1391, 1394 (5th Cir. 1975) (police search of
  unoccupied dwelling was reasonable and a different conclusion would
  "greatly hamper" the legitimate activities of law enforcement officers);
  United States v. Agrusa, 541 F.2d 690, 697-98 (8th Cir. 1976) ("What
  authority there is holds that unannounced and forcible entries into vacant
  premises, even homes, in order to conduct a search, are constitutional in
  the absence of exigent circumstances, provided that the search and seizure
  is pursuant to a warrant and reasonable under the circumstances"); see
  generally 1 W. Lafave & J. Israel, Criminal Procedure § 3.4(g), at 230
  (1984) ("No special showing is needed

 

  to execute a search warrant for premises in the absence of the occupant, as
  such execution is not significantly different from that which would
  otherwise occur.").

       Defendant suggests that whatever was the prior law, his position now
  follows from Arkansas v. Wilson, 514 U.S. 927 (1995) which held that the
  Fourth Amendment requires that officers must knock and announce their
  presence before entering a dwelling pursuant to a search warrant.  The
  officers in this case complied with the knock and announce rule, and we
  fail to see why we should go further than the rule requires.  The Wilson
  decision is based on the requirements of the common law at the time of the
  drafting of the Fourth Amendment.  See id. at 931.  As the Court noted, the
  common law allowed forcible entry in the absence of a demand when no one
  was home to answer the demand.  See id. at 935.

       Even if the law were not clear, we would find unpersuasive defendant's
  rationale: police searches conducted in unoccupied homes would result in
  the police exceeding the scope of the warrant and pilfering personal
  property.  In response to a similar argument, the court in Gervato held
  that "it is unlikely that the presence of the occupant at the beginning of
  a search would significantly reduce the possibility of pilferage or a
  general search."  474 F.2d  at 45.  The court noted that judicial approval
  for obtaining a warrant reduces the potential for a general search.
  Furthermore, pilferage is unlikely because of the stringent rules requiring
  inventory of all of the items seized in a search.  See id.; V.R.Cr.P.
  41(d).  Moreover, even if the occupant is present while the search is being
  conducted, the presence of numerous officers will usually make monitoring
  the search impractical.  See Chubbuck, 32 F.3d  at 1460-61.

       On the other hand, we find compelling the State's argument that
  adoption of defendant's position imposes unreasonable restrictions on
  necessary law enforcement procedures.  Under defendant's position, police
  would be unable to execute a valid search warrant because the occupant
  died, is on vacation for an extended period of time, or is avoiding the
  residence to thwart the search.

       We see no different result under Chapter I, Article 11 of the Vermont
  Constitution. Defendant bears the burden of demonstrating why the Vermont
  Constitution is more restrictive than the United States Constitution and
  has failed to do so.  See State v. Gleason, 154 Vt. 205, 212, 576 A.2d 1246, 1250 (1990).  Indeed, Article 11 has more specific requirements for
  warrants, but does not mention the circumstances involved here.

       For these reasons we hold that the police search of defendant's
  unoccupied home was reasonable under the Fourth Amendment and did not
  contravene Chapter I, Article 11 of the Vermont Constitution.

       Affirmed.




                              BY THE COURT:



                              _______________________________________
                              Jeffrey L. Amestoy, Chief Justice

                              _______________________________________
                              John A. Dooley, Associate Justice

                              _______________________________________
                              James L. Morse, Associate Justice

                              _______________________________________
                              Denise R. Johnson, Associate Justice

                              _______________________________________
                              Marilyn R. Skoglund, Associate Justice