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

              

------------------------------------------------------------------------------
                                  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).  


------------------------------------------------------------------------------
                               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.