State v. Geraw
Annotate this Case
State v. Geraw (2000-459); 173 Vt. 350; 795 A.2d 1219
[Filed 15-Mar-2002]
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. 2000-459
State of Vermont Supreme Court
On Appeal from
v. District Court of Vermont,
Unit No. 2, Chittenden Circuit
John E. Geraw October Term, 2001
Linda Levitt (motion to suppress) and Michael S. Kupersmith (motion for
permission to appeal), JJ.
Lauren Bowerman, Chittenden County State's Attorney, and Pamela Hall Johnson,
Deputy State's Attorney, Burlington, for Plaintiff-Appellant.
E.M. Allen of Stetler Allen & Kampmann, Burlington, for Defendant-Appellee.
PRESENT: Amestoy, C.J., Dooley, Morse, Johnson and Skoglund, JJ.
JOHNSON, J. The question presented is whether Vermont citizens must
accept the risk that police interviews in the privacy of their home are
being secretly recorded without the protection of a judicially authorized
warrant. We conclude that Chapter I, Article 11 of the Vermont
Constitution prohibits such secret recording. Accordingly, we affirm the
order of the Chittenden District Court granting defendant's motion to
suppress.
The material facts are few and undisputed. On April 17, 2000, two
police detectives interviewed defendant at his residence in Essex
Junction. The detectives were investigating an allegation that defendant
had engaged in sexual acts with a foster child. The officers identified
themselves, and defendant invited them into his residence. They sat down
at defendant's kitchen
table, where the officers interviewed defendant about his relationship with
the minor. Unbeknownst to defendant, the officers secretly tape recorded
the conversation.
Defendant was later charged with one count of sexual assault of a
minor, in violation of 13 V.S.A. § 3252(b)(1). He moved to suppress the
audio recording of the interview, alleging that it was unlawfully obtained
without a warrant, in violation of Chapter I, Article 11 of the Vermont
Constitution. (FN1) Following a hearing, the trial court issued a written
decision and order, granting the motion. The court concluded that
defendant enjoyed a reasonable expectation that a conversation in the
privacy of his home would not be secretly recorded, and therefore that the
recording violated his fundamental right to privacy under Article 11 and
must be suppressed. The trial court subsequently granted, and this Court
accepted, the State's request for an interlocutory appeal.
In reviewing the trial court's ruling, we benefit from a series of
decisions over the last two decades dealing with the requisite standards
and permissible scope of searches and seizures under Article 11. We begin
with the fundamental proposition that, as stated in State v. Jewett, 148
Vt. 324, 328, 532 A.2d 958, 960 (1986), "[t]he circumstances under which
warrantless searches or seizures are permitted . . . must be jealously and
carefully drawn." (Internal quotation marks omitted). The warrant
requirement in our Constitution reflects a deeply-rooted historical
judgment that the decision to invade the privacy of an individual's home
or possessions should normally be made by a neutral magistrate, not by the
agent of the search itself. See State v. Savva, 159 Vt. 75, 86, 616 A.2d 774,
780-81 (1992). Judicial review operates as a potent and immutable check on
the power of the executive branch, immune from the shifting political
pressures or perceived exigencies of the time. Id. at 87, 616 A.2d at
780-81.
That said, we have also consistently held that Article 11 protects
only those areas or activities that a reasonable person would conclude are
intended to be private. See State v. Costin, 168 Vt. 175, 177, 720 A.2d 866, 868 (1998); State v. Kirchoff, 156 Vt. 1, 10, 587 A.2d 988, 994
(1991); State v. Blow, 157 Vt. 513, 517, 602 A.2d 552, 555 (1991). "[A]
person cannot rely on Article 11 to protect areas or activities that have
been willingly exposed to the public." Kirchoff, 156 Vt. at 7, 587 A.2d
at 994. Thus, we have held that the State must have a warrant to enter
open fields where indicia, such as fences and signs, would lead a
reasonable person to conclude that the area is private, see id., but that
Article 11 does not protect such areas when the owner or occupant has not
taken sufficient steps to exclude the public. See State v. Chester, 156
Vt. 638, 638, 587 A.2d 1008, 1009 (mem.) (1991). This distinction was
reaffirmed in Costin, where a majority of the Court held that Article 11
does not prohibit the use of a warrantless video surveillance camera
located in a field where an in-person police stake-out would not otherwise
be excluded. 168 Vt. at 180-82, 720 A.2d at 868-71.
Two additional decisions - Blow, 157 Vt. 513, 602 A.2d 552, and State
v. Brooks, 157 Vt. 490, 601 A.2d 963 (1991) - are especially significant
for our purposes here, as both underscore the significance of the home as
a repository of heightened privacy expectations. In Blow, we held that
Article 11 prohibited the police from monitoring and recording a
conversation with a confidential informant in the defendant's home without
a warrant, noting that such activity "conducted in a home offends the core
values of Article 11." 157 Vt. at 519, 602 A.2d at 556. On the same day,
we held in Brooks that the warrantless transmittal and recording of a
conversation with a confidential police
agent in a parking lot did not offend Article 11 because the defendant did
not have the same expectation of privacy in words uttered to the informant
outside his home. 157 Vt. at 493-94, 604 A.2d at 965; see also State v.
Bruyette, 158 Vt. 21, 37, 604 A.2d 1270, 1278 (1992) (Dooley, J.,
concurring) (suggesting that secret monitoring of conversation between
defendant and his girlfriend in parked car were outside protection of
Article 11). (FN2)
We have, to be sure, disagreed at times about the degree of emphasis
to be placed on the location of the search and seizure, to the exclusion
of other considerations, such as advanced technologies that may alter or
intensify the nature of the intrusion. See, e.g., Brooks, 157 Vt. at 494,
601 A.2d at 965 (Morse, J., dissenting) (arguing that intrusive "nature of
the surveillance" as much as the location may trigger Article 11
protection); Costin, 168 Vt. at 188-90, 720 A.2d at 874 (Johnson, J.,
dissenting) (arguing that even unposted open field may warrant Article 11
protection from intensive round-the-clock surveillance by hidden video
camera); see generally Note, The Lack of Privacy in Vermont, 24 Vt. L.
Rev. 199, 218-25 (1999) (noting tensions between geographic and balancing
approaches in the Court's Article 11 jurisprudence). We have consistently
agreed,
however, that the home represents a unique historical category with
"special expectations of privacy" warranting the strongest constitutional
protection from warrantless searches and seizures. State v. Morris, 165
Vt. 111, 133, 680 A.2d 90, 105 (1996) (Dooley, J., dissenting).
As noted, Blow is especially significant in this regard, since the
only real distinction here is that the secret recording was accomplished
in defendant's home by a known police officer rather than by a
confidential police informant. (FN3) A careful reading of Blow and the
cases discussed above, however, renders this a distinction devoid of any
meaningful difference; for the heart of our holding in Blow was a
recognition of the "deeply-rooted legal and societal principle that the
coveted privacy of the home should be especially protected." Blow, 157
Vt. at 518, 602 A.2d at 555. This heightened expectation of privacy
rendered it objectively reasonable to expect that conversations in the
privacy of one's home would not be surreptitiously invaded by warrantless
transmission or recording. "[W]arrantless electronic monitoring conducted
in a home," we held, "offends the core values of Article 11." Id. at
519, 602 A.2d at 555.
While our holding would not appear to admit of any exceptions based on
the particular identity of the secret recorder, properly understood it is
not the breadth of our holding in Blow but rather its underlying reasoning
that dissolves any constitutionally significant distinction between that
case and this. This is readily discerned from two of the principal cases on
which we relied, Commonwealth v. Blood, 507 N.E.2d 1029 (Mass. 1987) and
State v. Glass, 583 P.2d 872 (Alaska 1978). In both cases, the high
courts of Massachusetts and Alaska held, respectively, that the
electronic recording of a conversation by a confidential informant in the
defendant's home violated the defendant's right to privacy under the state
constitution. See Blood, 507 N.E.2d at 1034 (holding that it was
"objectively reasonable to expect that conversational interchange in a
private home will not be invaded surreptitiously by warrantless electronic
transmission or recording"); Glass, (construing state constitution to hold
that "the expectation that one's conversation will not be secretly
recorded or broadcast should be recognized as reasonable"); see also
Commonwealth v. Brion, 652 A.2d 287, 289 (Pa. 1995) (holding "that an
individual can reasonably expect that his right to privacy will not be
violated in his home through the use of any electronic surveillance").
Both cases recognized the risk that confidences disclosed to another
person in the privacy and security of one's home may be repeated to
others, or even later disclosed in court. Yet both fundamentally rejected
the proposition that there was no difference between talking to another
person who later repeats what is said, and talking to someone who
electronically records one's every word and phrase. As eloquently
summarized in Blood:
We think it a constitutional imperative to recognize that "the
differences between talking to a person enswathed in electronic
equipment and one who is not are very real, and they cannot be
reduced to insignificance by verbal legerdemain. All of us
discuss topics and use expressions with one person that we would
not undertake with another and that we would never broadcast to a
crowd. Few of us would ever speak freely if we knew that all our
words were being captured by machines for later release before an
unknown and potentially hostile audience. No one talks to a
recorder as he talks to a person."
507 N.E.2d at 1036 (quoting Homes v. Burr, 486 F.2d 55, 72 (9th Cir. 1973)
(Hufstedler, J., dissenting)); see also Glass, 583 P.2d at 878 (noting
that invasive impact of secret recording in the home presents an
"additional risk of an entirely different character" than the possibility
of mere
participant disclosure, which is mediated by such attendant circumstances
as credibility, memory, and selectivity).
The Massachusetts court also relied on Justice Harlan's compelling
dissent in United States v. White, 401 U.S. 745 (1971) (the decision we
declined to follow in Blow ), in which he eviscerated the argument "that
it is irrelevant whether secrets are revealed by the mere tattle or the
transistor." Id. at 787 (Harlan, J., dissenting). Justice Harlan
reasoned that the scope of constitutional protection must reflect "the
impact of a practice on the sense of security that is the true concern of
the . . . protection of privacy." Id. at 788 n.24 (emphasis added).
Analyzed in this light, warrantless monitoring and recording "undermine[s]
that confidence and sense of security in dealing with one another that is
characteristic of individual relationships between citizens in a free
society." Id. at 787. While interposing a warrant requirement between
law enforcement officers engaged in such practices and the general public
does not lessen the intrusion, it does - at least - ensure that the
surveillance has been found to be reasonably necessary by a "prior
independent determination of a neutral magistrate." Id. at 783. (FN4)
Thus understood, our holding in Blow cannot be reconciled with the
State's argument that Article 11 permits a known police officer to
secretly record a conversation in an individual's home without judicial
authorization because the "expectation of privacy" is different. From the
standpoint of the citizen secure in the privacy of his or her home,
nothing changes merely because the party spoken to is a police officer
rather than the officer's secret alter ego. Any Vermonter who sits around
the kitchen table conversing - as defendant did here - has a reasonable
right to expect that he or she is not being secretly monitored or
recorded. Our "sense of security" in face-to-face conversations inside
our homes extends at least this far.
Of course, most people will be more wary when speaking with a police
officer than a friend, and should reasonably expect that the conversation
will be carefully noted and subsequently repeated. This is a far
different expectation, however, from knowingly exposing every word and
phrase one speaks, every inflection or laugh or aside one utters, to the
scrutiny of the world at large. Clearly the detectives who interviewed
defendant well understood that his expectations and, hence, his very words
might be different if he knew that he was being recorded. Otherwise, they
would have not have acted surreptitiously.
The dissenting opinion makes much of the "values" underlying Article
11, suggesting that it was designed to protect "the exchange of thoughts
and ideas [and] personal trust between individuals." Post, at 9. The
dissent fails to mention what we have characterized as the "core value
that gave life to Article 11," the freedom from unreasonable government
intrusions into the privacy of Vermont citizens. Kirchoff, 156 Vt. at 6,
587 A.2d at 992. That value finds its purest expression
in the warrant requirement. "Although criminal defendants may seek court
review of searches and seizures, these after-the-fact challenges do not
serve Article 11's purpose of protecting the rights of everyone -
law-abiding as well as criminal - by involving judicial oversight before
would-be invasions of privacy." Savva, 159 Vt. at 86, 616 A.2d at 780.
The dissent would excuse the under-handed method the police utilized
in this case to record the conversation with defendant, insisting that it
was not "trickery." With respect, if it was not trickery to hide a tape
recorder to secretly record a conversation with an unsuspecting citizen,
what was it? Indeed, this case offers vivid testimony to our warning in
Savva that "the social costs of eliminating the warrant requirement are
simply too high. Without it, police behavior would be subjected to
judicial scrutiny only in rare cases, while '[d]ay by day mischief may be
done and precedents built up in practice long before the judiciary has an
opportunity to intervene.' " Id. at 87, 616 A.2d at 780 (quoting Harris
v. United States, 331 U.S. 145, 173 (1947)).
We thus categorically reject the State's claim "that one who shares
his personal confidences with a police officer known to him as such does
not have a legitimate expectation that his words will not be
electronically seized." On the contrary, as Justice Harlan observed, "the
burden of guarding privacy in a free society should not be on its
citizens; it is the Government that must justify its need to
electronically eavesdrop." White, 401 U.S. at 793 (Harlan, J., dissenting)
(emphasis added). Having failed to do so in this case by establishing a
reasonable justification for the recording before a neutral magistrate, we
conclude that the tape was properly suppressed.
Consistent with our earlier decisions in Brooks and Blow, our holding
is necessarily limited to the facts before us involving a police interview
in the privacy of the home, where our "sense of security," in Justice
Harlan's words, is highest. White at 788, n.24; see also Brion, 652 A.2d
at 289
(inside the home "a person may legitimately expect the highest degree or
privacy known to our society"). The four out-of-state cases on which the
State relies are thus fundamentally distinguishable, as all involved
police interviews in other, more public settings that do not enjoy the
same historical protection. In City & Borough of Juneau v. Quinto, 684 P.2d 127, 128-29 (Alaska 1984), the Alaska Supreme Court - distinguishing
its earlier decision in Glass - upheld the warrantless recording of a
suspect's conversation with a police officer on a public highway during the
course of the defendant's apprehension and arrest for drunk driving. The
court rejected the argument that the defendant enjoyed a reasonable
expectation of privacy in such circumstances, where one "is aware, or
reasonably should be aware, that he or she is speaking to a police officer
who is in the process of executing either a lawful arrest or a lawful
investigative stop." Id. at 129. The decision in Quinto is consistent
with our holding in Brooks and many others holding that defendants do not
enjoy a reasonable expectation of privacy when speaking with police
officers in such public settings. It does not, however, justify a
warrantless recording in the privacy of the home.
The State also relies on In re A.W., 982 P.2d 842, 847 (Colo. 1999),
which held that a defendant does not have a reasonable expectation of
privacy precluding the warrantless recording of an interview in a police
stationhouse. Although the court noted that defendant was "speaking in the
actual presence of a police officer," the court's holding cannot be
separated from the fact that the defendant was not conversing in the
privacy of his home, but inside the interview room of a municipal police
department. Id. at 847. Similarly distinguishable is Commonwealth v.
Thorpe, 424 N.E.2d 250 (Mass. 1981). There the defendant, a former police
officer, contacted another officer with an offer to sell a copy of a
police sergeant's promotional examination. The officer who was
contacted secretly recorded eight telephone conversations and two
face-to-face conversations with the defendant, one in a restaurant and
another in a doughnut shop. The court upheld the warrantless recording,
broadly rejecting the proposition that "free speech and privacy values are
unduly threatened by the risk that when one speaks to a known police
officer he may be recording the conversation." Id. at 258. Thorpe did
not, however, involve a police interview in the defendant's home and did
not - despite its broad language - hold that a defendant speaking in the
privacy of his or her home waives the right to be free from warrantless
electronic surveillance and recording.
Nor, finally, does Commonwealth v. Eason, 694 N.E.2d 1264 (Mass. 1998)
support the State's position. That case concerned the surreptitious
monitoring and recording of a telephone conversation between the defendant
and a confidential informant using an extension phone in the informant's
home. The Massachusetts court distinguished its holding in Blood,
observing that although the defendant was speaking from inside his home,
he had no knowledge or control over "the conditions at the other end of
[the] telephone conversation." Id. at 1268. Accordingly, the court
concluded that the defendant did not enjoy the same expectation of privacy
that inheres in face-to-face conversations occurring exclusively in a
private home, id. at 1267, the situation we confront here.
Half a century ago, Justice Jackson explained that the warrant
requirement forms the core of our privacy protections - not as a means to
interfere with legitimate law enforcement efforts, but rather as a
process to ensure that those efforts are properly balanced against the
interests of "a society which chooses to dwell in reasonable security and
freedom from surveillance." Johnson v. United States, 333 U.S. 10, 14
(1948). We have determined as a society that judging "[w]hen the right to
privacy must reasonably yield to the right of search is, as a rule, to be
decided by a judicial officer,
not by a policeman or Government enforcement agent." Id. When all is said
and done, that is the principle which we reaffirm today.
Affirmed.
FOR THE COURT:
_______________________________________
Associate Justice
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Footnotes
FN1. That provision states: "That the people have a right to hold
themselves, their houses, papers, and possessions, free from search or
seizure; and therefore warrants, without oath or affirmation first made,
affording sufficient foundation for them, and whereby any officer or
messenger may be commanded or required to search suspected places, or to
size any person or persons, his, her or their property, not particularly
described, are contrary to that right, and ought not to be granted."
FN2. As we acknowledged in Brooks and Blow, the Fourth Amendment to the
United States Constitution - as interpreted by the high court in United
States v. White, 401 U.S. 745, 751 (1971) - does not prohibit the
warrantless use of informants equipped with concealed devices to record
conversations with unknowing suspects. Many state courts have followed
White. See Brooks, 157 Vt. 492, n.2, 601 A.2d at 964, n.2 (listing states
that have followed White). Several others, however, have declined to
follow White, including two which we cited in our earlier decisions,
State v. Glass, 583 P.2d 872, 880 (Alaska 1978) and Commonwealth v. Blood,
507 N.E.2d 1029, 1031-39 (Mass. 1987). More recently, Pennsylvania's high
court also construed its state constitution to prohibit the police from
using a confidential informant to surreptitiously record conversations in a
defendant's home without a warrant. See Commonwealth v. Brion, 652 A.2d 287, 289 (Pa. 1995); see generally C. Bast, What's Bugging You?
Inconsistencies and Irrationalities of the Law of Eavesdropping, 47 De
Paul L. Rev. 837, 871-78 (1998) (collecting state constitutional decisions
dealing with surreptitious police monitoring and recording); M. Dubis, The
Consensual Electronic Surveillance Experiment: State Courts React to
United States v. White, 47 Vand. L. Rev. 857, 858-87 (collecting and
analyzing state court decisions after White).
FN3. The State does not assign, nor do we discern, any significance in the
fact that the secret tape recording in Blow was accomplished by means of a
hidden wire that transmitted the conversation to a third police agent who
recorded the conversation, while here it was accomplished by means of a
secret tape recorder in the possession of the detectives.
FN4. The dissent relies on Lopez v. United States, 373 U.S. 427, 439 (1963)
for the proposition that admitting a secretly recorded conversation with
the police represents nothing more than "the most reliable evidence" of
the conversation. The dissent fails to note that Justice Harlan, who
authored Lopez, expressly disavowed this aspect of its reasoning in White.
While acknowledging that there might be some difference between
third-party eavesdropping, as occurred in White, and participant
tape-recording, as in Lopez, Justice Harlan nevertheless observed:
While the continuing vitality of Lopez is not drawn directly into
question by this case, candor compels me to acknowledge that the
views expressed in this opinion [White] may impinge upon that part
of the reasoning in Lopez which suggested that a suspect has no
right to anticipate unreliable testimony. I am now persuaded
that such an approach misconceives the basic issue, focusing, as
it does, on the interests of a particular individual rather than
evaluating the impact of a practice on the sense of security that
is the true concern of the Fourth Amendment's protection of
privacy.
White, 401 U.S. at 788 n.24 (Harlan, J., dissenting) (emphasis added).
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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. 2000-459
State of Vermont Supreme Court
On Appeal from
v. District Court of Vermont,
Unit No. 2, Chittenden Circuit
John E. Geraw October Term, 2001
Linda Levitt (motion to suppress) and Michael S. Kupersmith (motion for
permission to appeal), JJ.
Lauren Bowerman, Chittenden County State's Attorney, and Pamela Hall Johnson,
Deputy State's Attorney, Burlington, for Plaintiff-Appellant.
E.M. Allen of Stetler Allen & Kampmann, Burlington, for Defendant-Appellee.
PRESENT: Amestoy, C.J., Dooley, Morse, Johnson and Skoglund, JJ.
SKOGLUND, J., dissenting. I do not dispute the significance of the
home as a place of heightened privacy expectations, but disagree with the
majority's conclusion that the actions of the police in this case violated
Article 11 of the Vermont Constitution. This Court has consistently held
that the core value protected by Article 11 is freedom from unreasonable
governmental intrusion into legitimate expectations of privacy. State v.
Morris, 165 Vt. 111, 115, 680 A.2d 90, 93 (1996); State v. Savva, 159 Vt.
75, 87, 616 A.2d 774, 780-81 (1992); State v. Blow, 157 Vt. 513, 517, 602 A.2d 552, 555 (1991); State v. Brooks, 157 Vt. 490, 493, 601 A.2d 963, 964
(1991); State v. Kirchoff, 156 Vt. 1, 5-6, 587 A.2d 988, 991 (1991). I
suggest that there can be no legitimate or reasonable
expectation that a conversational interchange between a suspect and police
detectives investigating a crime will be private, regardless of where that
conversation takes place.
A very brief review of the law of search and seizure under the Fourth
Amendment to the United States Constitution is offered as an aid to
understanding the error I see in the majority's approach. Before the 1967
case of Katz v. United States, 389 U.S. 347 (1967), neither wiretapping
nor electronic eavesdropping violated a defendant's Fourth Amendment rights
unless there had been an official search and seizure of his person, or
such a seizure of his papers or his tangible material effects, or an
actual physical invasion of his house "or curtilage" for the purpose of
making a seizure. See Olmstead v. United States, 277 U.S. 438, 466 (1928)
(evidence obtained from telephone calls intercepted without warrant was
admissible as there was no entry into defendants' houses or offices);
Goldman v. United States, 316 U.S. 129, 135-36 (1942) (use of a
"detectaphone" held against the wall of adjoining office to overhear
conversation of defendant was not violation of the Fourth Amendment, as
"what was heard . . . was not made illegal by trespass or unlawful
entry."). But where "eavesdropping was accomplished by means of an
unauthorized physical penetration into the premises occupied" by the
defendant, although falling short of a "technical trespass under the local
property law," the Fourth Amendment was violated and any evidence of what
was seen and heard, as well as tangible objects seized, was considered the
inadmissible fruit of an unlawful invasion. Silverman v. United States,
365 U.S. 505, 509 (1961) (eavesdropping accomplished by means of "spike
mike" inserted through wall of adjoining house made contact with heating
duct in defendant's house, which then acted as a "giant microphone" held
to violate Fourth Amendment rights.).
In Katz, the Supreme Court heard a challenge to evidence of
petitioner's side of a phone conversation, overheard by FBI agents who had
attached an electronic listening and recording device
to the outside of the public telephone booth from which petitioner had
placed his calls. See 389 U.S. at 348. The petitioner had framed the
issue as whether a public telephone booth is a constitutionally protected
area so that a right to privacy attached. The Government maintained that
it was not. The Court rejected this formulation of the issue: "In the
first place the correct solution of Fourth Amendment problems is not
necessarily promoted by incantation of the phrase 'constitutionally
protected area.' " Id. at 350. It wrote:
this effort to decide whether or not a given "area," viewed in the
abstract, is "constitutionally protected" deflects attention from
the problem presented by this case. For the Fourth Amendment
protects people, not places. What a person knowingly exposes to
the public, even in his own home or office, is not a subject of
Fourth Amendment protection... But what he seeks to preserve as
private, even in an area accessible to the public, may be
constitutionally protected.
Id. at 350-351.
The Court held that the FBI should have obtained a warrant prior to
the use of the electronic surveillance involved in the case. The import
of the case is the Court's focus on the privacy expectations of the
individual and not on the locus or extent of the government intrusion.
"One who occupies [the phone booth], shuts the door behind him, and pays
the toll that permits him to place a call is surely entitled to assume
that the words he utters into the mouthpiece will not be broadcast to the
world." Id. at 352. Katz overruled Olmstead and Goldman and "swept away
doctrines that electronic eavesdropping is permissible under the Fourth
Amendment unless physical invasion of a constitutionally protected area
produced the challenged evidence." United States v. White, 401 U.S. 745,
748 (1971).
After Katz, the concept of "constitutionally protected areas" no
longer served as a "talismanic solution to every Fourth Amendment
problem." 1 W. LaFave, Search and Seizure § 2.4(a), at 524 (3rd ed.
1996). Justice Harlan, in his concurrence in Katz, summarized the
appropriate analysis as follows: "that there is a two fold requirement,
first that a person have exhibited an actual (subjective) expectation of
privacy and, second, that the expectation be one that society is prepared
to recognize as 'reasonable.' Thus a man's home is, for most purposes, a
place where he expects privacy, but "objects, activities, or statements
that he exposes to the 'plain view of outsiders are not protected' because
no intention to keep them to himself has been exhibited." Katz, 389 U.S. at 361.
We have adopted the United States Supreme Court's rationale in Katz
and opined that Article 11 of the Vermont Constitution, "like the Fourth
Amendment, protects people, not places." State v. Zaccaro, 154 Vt.83,
90-91, 574 A.2d 1256, 1261 (1990) (citing Katz, 389 U.S. at 351). In those
cases where we have interpreted Article 11 as providing broader protection
than the Fourth Amendment of the United State's Constitution, we have
consistently, until today, used the "reasonable expectation of privacy"
analysis that is the cornerstone of Fourth Amendment jurisprudence. For
example in State v. Kirchoff, 156 Vt. at 10, 587 A.2d at 994, we held that
under Article 11 a lawful possessor has a "reasonable expectation of
privacy" in affairs conducted in open fields where indicia, such as fences
and "no trespassing" signs, would lead a reasonable person to conclude the
area is private. We emphasized in Kirchoff that a person cannot rely on
Article 11 to protect areas or activities that have been willingly exposed
to the public. Id. at 7, 587 A.2d at 492-93. (FN1)
Again in Savva, 159 Vt. at 91-92, 616 A.2d at 781-82, we found a more
expansive protection under Article 11 than under the Fourth Amendment for
containers located in automobiles. We grounded our analysis on
defendant's expectation of privacy in the packages contained in the
hatchback of his vehicle and again noted that Article 11 does not protect
areas willingly exposed to the public. Id. at 89, 616 A.2d at 787 .
It is true that, throughout Fourth Amendment and Article 11
jurisprudence, the home has enjoyed heightened privacy expectations. In
emphasizing this principle, the majority finds support in two of our
decisions. Both, I suggest, were decided on a reasonable expectation
standard. In State v. Blow, 157 Vt. at 515, 602 A.2d at 553, a police
informant was wired with electronic transmitter and sent to the
defendant's house where he purchased marijuana. Defendant moved to
suppress the tape recordings of the transactions and the officer's
testimony about them. The judge allowed the detective to testify about
the conversations between the informant and the defendant at the time of
the sale. The recordings themselves were not introduced. In deciding the
case, we acknowledged that the "assumption of the risk" rationale set out
in White, 401 U.S. at 751-52, would preclude any finding of a violation
of the federal constitution. (FN2) However, we then analyzed the
defendant's claim under Article 11 using the "expectation of privacy"
principles derived from Katz: (1) whether the
defendant had "an actual (subjective) expectation of privacy" concerning
his conversations in his home with an undercover police informant, and (2)
whether the expectation is one that society is prepared to recognize as
"reasonable." Blow, 157 Vt. at 517, 602 A.2d at 555 (quoting Katz, 389
U.S. at 361). We found that warrantless electronic participant monitoring
conducted in a home offended defendant's expectation of privacy and the
core values of Article 11 and suppressed the evidence. However, in
emphasizing the importance of the home as a focus of Article 11 analysis in
Blow, we did not "signal a return to the formalism of Olmstead v. United
States, 277 U.S. 438 (1928), under which the privacy right was invaded
only by a trespass to property. On the contrary, the privacy value should
be protected wherever it is unreasonably threatened." Blow, 157 Vt. at
520, 602 A.2d at 556. It was the invasion of privacy that concerned us,
not a mere trespass into the home.
A different result was obtained in State v. Brooks, 157 Vt. at 491-94,
601 A.2d at 963-65, where we considered a challenge to participant
electronic monitoring where the wired informant and the defendant were in
two adjacent vehicles in a parking lot. Applying the same "reasonable
expectation of privacy analysis," we held that such monitoring was not
regulated by Article 11: "[W]e find that defendant, regardless of what he
actually expected, did not enjoy a reasonable expectation of privacy in a
public parking lot." Id. at 493, 601 A.2d at 964.
Of course we hold a deeply rooted, subjective expectation of privacy
in our homes. The right to retreat into our personal sanctuary - be it an
apartment, a rented room, a hut or a mansion - and to be free from
unreasonable governmental intrusion is at the heart of Article 11. The
problem with the majority's approach to this case is its near total
reliance on the fact that the recorded conversation took place in
defendant's home. It neglects to analyze whether the conversation was a
private one,
one in which an individual would retain a subjective expectation of
privacy, and whether society is prepared to recognize that expectation as
"reasonable."
"Article 11 protects the people from governmental intrusion into their
private affairs; to the extent their affairs are willingly made public,
the provision has no application." Kirchoff, 156 Vt. at 7, 587 A.2d at
993. "In determining whether persons have a privacy interest in any given
area or activity, we examine both subjective expectations and general
social norms." State v. Morris, 165 Vt. at 115, 680 A.2d at 94 (citing
Blow, 157 Vt. at 517-18, 602 A.2d at 555).
First, let us not forget, defendant invited the officers into his home
and agreed to talk with them about allegations that he had engaged in
sexual acts with a foster child. By speaking freely with officers, whom
he understood were investigating his possible involvement in a serious
crime, defendant could not have had a reasonable expectation that the
questioning was private or would be kept private. The same conclusion is
reached even viewing the facts of this case with a mind towards the
heightened privacy expectation generally associated with one's home. This
is not a conversation over a kitchen table between friends. He knew who
he was talking to, and the purpose of the officers' visit. Would society
think he had a legitimate or reasonable expectation that this exchange
with police would be private? I think not.
As in Blow, the majority finds support in Commonwealth v. Blood, 507 N.E.2d 1029 (Mass. 1987) and in State v. Glass, 583 P.2d 872 (Alaska
1978). However, in these cases the conversations the courts held to enjoy
an expectation of privacy were captured by confidential informants in the
defendants' homes. In neither case did the defendants have reason to
suspect that their conversation partners were working with the government.
And, in both cases the courts anchored their analysis in whether the
expectation of privacy was one society was willing to embrace. "When we
confront
the question whether police activities amount to a search or seizure within
the meaning of art. 14 [of the Massachusetts Declaration of Rights], we
ask, 'whether the defendants' expectation of privacy [in the
circumstances] is one which society could recognize as reasonable." Blood,
507 N.E.2d at 1033 (citing Commonwealth v. Podgurski, 436 N.E.2d 150, 152
(1982)). "[O]ne communicating private matters to another exhibits an
actual (subjective) expectation of privacy whether or not the listener is
equipped with electronic devices. The key question is whether that
expectation of privacy is one that society is prepared to recognize as
reasonable." Glass, 583 P.2d at 880.
Another Massachusetts case, Commonwealth v. Thorpe, 424 N.E.2d 250
(Mass. 1981), provides a succinct summation of why privacy is protected
and whether warrantless, secret recordings of conversations between known
police officers and suspects undermine this protection. In Thorpe,
defendant moved to suppress certain tape recordings of conversations
between himself and a police officer to whom he offered to sell a copy of
a police sergeant's promotional examination. Wearing a tape recording
device, the officer had several conversations with Thorpe. On appeal,
Thorpe argued that the warrantless recordings violated his right to be free
from unreasonable searches and seizures as guaranteed by art. 14 of the
Massachusetts Declaration of Rights because he had an expectation of
privacy in not having his conversation with the officer recorded. The
court rejected this argument and held:
We do not think that free speech and privacy values are
unduly threatened by the risk that when one speaks to a known
police officer he may be recording the conversation. This is not
the type of warrantless surveillance condemned by the courts and
commentators . . . , whose impact on privacy is "such as to
undermine that confidence and sense of security in dealing with
one another that is characteristic of individual relationships
between citizens in a free society."
Thorpe, 424 N.E.2d. at 258 (citing White, 401 U.S. at 787 (Harlan, J.,
dissenting)) (emphasis added).
Analysis of privacy expectations in situations such as that present in
Thorpe, where defendant is aware that he is talking to police, requires an
evaluation of the values intended to be protected by Article 11, such as
the exchange of thoughts and ideas, personal trust between individuals,
free expression and individuality, or as stated by the court in Thorpe,
"the confidence and sense of security in dealing with one another." 424 N.E.2d at 258. While it is certainly true that surreptitious recording of
conversations between citizens can have a chilling effect of such forms of
freedom, this effect is rendered de minimis "when one is aware, or
reasonably should be aware, that he or she is speaking to a police
officer." City & Borough of Juneau v. Quinto, 684 P.2d 127, 129 (Alaska
1984) (tape recording of defendant's conversation with police officer was
properly admitted into evidence at trial, when defendant knew, or
reasonably should have known, that he was speaking to police officer);
People v. Suite, 161 Cal. Rptr. 825, 829 (Cal. Ct. App. 1980) (holding that
defendant's reliance on cases decided on a "reasonable expectation of
privacy" standard was "sorely misplaced" when he sought to suppress
recordings of telephoned bomb threats to police, observing that it was
"ludicrous" for defendant to argue that his calls to police were
confidential communications); In re A.W., 982 P.2d 842, 847 (Colo. 1999)
("One who is speaking in the actual presence of a police officer or
detective has neither a subjectively nor an objectively reasonable
expectation of privacy."); State v. Bonilla, 598 P.2d 783, 784-86 (Wash.
Ct. App. 1979) (where defendant called police dispatcher and confessed to
murdering his wife, while other officer listened in on extension lines,
"[i]t would strain reason for [defendant] to claim he expected his
conversations with the police dispatcher to remain purely between the two
of them.")
I return again to the fact that defendant invited the officers into
his home and agreed to answer questions surrounding their investigation.
There is no dispute that his consent was voluntary. When consent is given
to a search or seizure, there is usually no violation of Article 11. See
State v. Sheehan, 171 Vt. 642, 643, 768 A.2d 1275, 1278 (2000) (mem.);
Zaccaro, 154 Vt. at 90, 574 A.2d at 1254; State v. White, 129 Vt. 220,
224, 274 A.2d 690, 692 (1971).
For example, in Sheehan, the defendant argued that his consent was not
voluntary, contending that police deceived him because their request to
enter the home to talk with him was a pretext to gain entry to arrest him.
In finding that his consent was indeed voluntary, we relied on the fact
that the uniformed police identified themselves, asked defendant's consent
to enter the residence so that they could talk to him, and that the scope
of the conversation was not limited or defined. "Once inside, the police
acted within the scope of their broad invitation and did precisely what
they said they would, talk to defendant. Nothing about the police
officers' behavior suggests that they engaged in trickery or
misrepresented their purpose in order to gain entry into defendant's home."
Sheehan, 171 Vt. at 643, 768 A.2d at 1278. Like the officers in Sheehan,
the officers in the case before us did not misrepresent their purpose or
engage in trickery in order to gain entry into defendant's home, or to
induce him to speak with them. And, in fact, they specifically told him
what topic they wanted to talk about -- the allegations brought against
him by a foster child.
Ah, but was it a trick to secretly record the conversation that
ensued?
In State v. Costin, 168 Vt. 175, 181, 720 A.2d 866, 870 (1998), we
analyzed the situation where law enforcement had placed video surveillance
cameras on a suspected marijuana field. We dismissed the claim that the
video surveillance alone created an Article 11 search. "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." Id. Here, we have a
lawful, consented to conversation with investigating officers. The fact
that they captured the defendant's voluntary statements using a
technologically superior means to the note-taking and memories of the
officers does not "transmogrify a constitutionally innocent act into a
constitutionally forbidden one." Id. (quoting Vega-Rodriguez v. Puerto
Rico Tel. Co., 110 F.3d 174, 181 (1st. Cir. 1997)).
In Lopez v. United States, 373 U.S. 427 (1963) the Supreme Court
upheld the use of a wire recording of a conversation between the defendant
and an Internal Revenue Service agent that occurred in defendant's office
during which the defendant offered the agent a bribe. The IRS agent had
recorded the conversation on a small recording device carried in his
pocket. While the decision in Lopez was based, not on consideration of
the defendant's expectations of privacy, but on outmoded considerations
that "no trespass was committed," (FN3) the reasoning quoted below does
not suffer from the difference in approach and is strikingly similar to the
reasoning we utilized in Costin. The Court wrote:
Once it is plain that [the agent] could properly testify about his
conversation with Lopez, the constitutional claim relating to the
recording of that conversation emerges in proper perspective. . .
. Indeed this case involves no "eavesdropping" whatever in any
proper sense of that term. The Government did not use an
electronic device to listen in on conversations it would not
otherwise have heard. Instead, the device was used only to
obtain the most reliable evidence possible of a conversation in
which the Government's own agent was a participant and which that
agent was fully entitled to disclose. . . . [The device] was
carried in and out by an agent who was there with petitioner's
assent, and it neither saw nor heard more than the agent himself.
Lopez, 373 U.S. at 438-39.
In a criticism of the majority's approach in Costin, the dissent
suggested the Court was "resurrecting 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." 168 Vt. at 184, 720 A.2d
at 872. This, I suggest, is what is happening here. Whether we are
dealing with open fields as in Costin and Kirchoff, or garbage left on
the curb as in State v. Morris, 165 Vt. at 115-116, 680 A.2d at 93-94, or
events that transpire in the home as in Blow, the core principle that
triggers Article 11 protection is the individual's expectation of privacy
and not the location of the government activity challenged.
Because Article 11 protects people, not places, in this case, the
location of the conversation is constitutionally immaterial. I would hold
that the recording of defendant's conversations with the police officers
under these circumstances was not a violation of any right guaranteed to
him by Article 11 of the Constitution of the State of Vermont and that the
court erred in suppressing evidence of that tape recording on the grounds
stated. As stated in Lopez:
Stripped to its essentials, [respondent's] argument amounts to
saying that he has a constitutional right to rely on possible
flaws in the agent's memory or to challenge the agent's
credibility without being beset by corroborating evidence that is
not susceptible of impeachment. For no other argument can
justify excluding an accurate version of a conversation that the
agent could testify to from memory.
373 U.S. at 439.
I hesitate to speak for society as a whole, but respectfully suggest
that Vermonters would not find reasonable a suspect's expectations that
his responses to police questions about possible
involvement in a crime are private. I am authorized to state that Chief
Justice Amestoy joins in this dissent.
_______________________________________
Associate Justice
------------------------------------------------------------------------------
Footnotes
FN1. In keeping with this approach, a few months after our decision in
Kirchoff we decided State v. Chester, 156 Vt. 638, 587 A.2d 1008 (1991)
(mem.) and found that the police did not violate Article 11 when they
walked on land that lacked barriers or signs prohibiting entry.
FN2. In White, the United States Supreme Court held that the government use
of informants equipped with concealed devices to record conversations with
unknowing suspects did not violate the Fourth Amendment. 401 U.S. at 751.
The federal constitutionality of warrantless electronic surveillance with
the consent of one party to a conversation was upheld on the ground that
when one speaks one voluntarily assumes not only the risk that one's
listener may repeat what one says to others, but also the risk that the
listener may be recording or monitoring the conversation for broadcast to
others.
FN3. The decision in Lopez predated the Court's change in approach set
forth in Katz. At the time of Lopez, it was "insisted only that the
electronic device not be planted by an unlawful physical invasion of a
constitutionally protected area." Lopez, 373 U.S. at 438-39.
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