VT: Search of closed container incident to arrest requires exigent circumstances

Vermont prohibits search of a closed container seized from the person during arrest without exigent circumstances under its state constitution. Defendant was arrested for failure to pay a $21 fine, and he was subject to imprisonment. During booking, officers removed a velco sealed pouch from his person and searched it, finding cocaine. Such searches may be valid under the Fourth Amendment but not the Vermont Constitution. State v. Neil, 2008 VT 79, 184 Vt. 243, 958 A.2d 1173 (2008):

FN1. Vermont is not alone in its departure from federal precedent in this area. See, e.g., State v. Hardaway, 2001 MT 252, P 57, 36 P.3d 900 (the scope of a search incident to arrest must be commensurate with underlying purposes, and specific and articulable exigent circumstances are required); People v. Gokey, 457 N.E.2d 723, 724 (N.Y. 1983) (stating that under the New York Constitution, “a warrantless search incident to arrest [is] unreasonable unless justified by the presence of exigent circumstances”); Commonwealth v. Timko, 417 A.2d 620, 623 (Pa. 1980) (“[A]bsent exigent circumstances, a warrantless search of luggage or other personal property in which a person has a reasonable expectation of privacy is not permissible.”); State v. Stroud, 720 P.2d 436, 439 (Wash. 1986) (“[The] Washington State Constitution affords individuals greater protections against warrantless searches than does the Fourth Amendment.”); see also State v. Owens, 729 P.2d 524, 527-29 (Or. 1986) (fact of arrest sufficient to justify a search of closed containers only “when it is reasonable to believe that evidence of a crime for which the person was arrested could be concealed there”).

[*P10] Our divergence from federal precedent governing warrantless searches of closed containers is well-settled. In Savva, we held that under Article 11 the police are prohibited from searching a closed container found inside an arrestee’s vehicle without first obtaining a warrant, absent exigent circumstances. Id. at 90, 616 A.2d at 782. Very recently, in Bauder, we acknowledged the vitality of this holding, again expressly rejecting broad search-incident-to-arrest authority. 2007 VT 16, P 12. We reasoned that the federal bright-line tests “fail to do justice to the values underlying Article 11.” Id. Contrary to federal precedent, a warrantless search of a container is unreasonable under Article 11 unless the exigencies are “factually and narrowly tied” to the circumstances “that rendered a warrant application impracticable.” Id. P 20 (emphasis added). “Absent such circumstances, Article 11 simply forbids a warrantless search.” Id. The principles announced in Savva and Bauder control the case at bar.

[*P11] We are cognizant that Savva involved a closed container found in an arrestee’s vehicle, and not on his person, but we see no reason why a container seized from the pocket of an arrestee should be less protected than one seized from his vehicle.FN4 In Savva, we noted that the “automobile exception” to the Fourth Amendment was justified by the inherent mobility of the automobile, which reduced a person’s expectations of privacy and increased the risk of losing evidence. 159 Vt. at 80-81, 616 A.2d at 777. But we also held that personal luggage located in the motor vehicle of an arrestee is protected under Article 11. Id. Here, defendant had an expectation of privacy in the contents of the container in his pocket, as the defendant in Savva did in the contents of a container in his vehicle.

FN4. Importantly, we refrain from drawing distinctions between worthy and unworthy containers. Savva, 159 Vt. at 89-90, 616 A.2d at 782.

[*P12] When a reasonable expectation of privacy is implicated, the State has the burden of showing that the circumstances of defendant’s arrest justified a warrantless search. See Savva, 159 Vt. at 91, 616 A.2d at 783 (the burden is on the State to show “undue risk to the evidence-gathering process or public safety”); see also Kirchoff, 156 Vt. at 13, 587 A.2d at 996 (“[W]e differ from federal doctrine by placing on the State the burden to prove that a warrantless search of open fields is not prohibited under [Article 11].”). The State advances no meritorious argument in support of an exception to the requirement, or that the warrantless search was justified on any basis other than blanket search-incident-to-arrest authority, and the evidence must therefore be suppressed unless exigent circumstances existed. Bauder, 2007 VT 16, P 21.