VT reaffirms state const’l REP in posted open fields

Vermont’s state constitution grants a reasonable expectation of privacy to open fields posted with no trespassing signs. A game warden (vested by state law with all law enforcement powers) violated defendant’s reasonable expectation of privacy by entering upon his posted lands. State v. Dupuis, 2018 VT 86, 2018 Vt. LEXIS 125 (Aug. 18, 2018):

[*P1] … In State v. Kirchoff this Court held that Chapter I, Article 11 of the Vermont Constitution protects against warrantless searches of “open fields” when the landowner objectively demonstrates his or her intent for privacy through actions such as posting “no trespass” signs. 156 Vt. 1, 10, 587 A.2d 988, 994 (1991). This case now calls on us to examine whether Article 11 provides the same protection when the warrantless search is for the purpose of enforcing hunting laws and the landowner has not strictly abided by Vermont’s regulations for posting against hunting. The State appeals from the trial court’s grant of defendant Ronald Dupuis’s motion to suppress evidence arising from a game warden’s warrantless search of his property, arguing that because defendant’s “no trespass” postings did not comport with Vermont’s hunting posting statute, he enjoyed no expectation of privacy. We disagree and affirm.

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[*P9] Applying these principles, this Court has recognized that Vermont’s Constitution establishes greater protection against search and seizure of “open fields” than the U.S. Constitution, requiring that law enforcement officers secure warrants before searching open fields when the landowner demonstrates an expectation of privacy. Kirchoff, 156 Vt. at 1, 587 A.2d at 988. In Kirchoff, this Court explored whether the Article 11 warrant requirement applies to searches of “open fields” — areas of property other than the home itself or that immediately surrounding the home. Id. The defendant lived on a remote tract of land in the town of Lincoln. He posted “no trespassing” signs around his property, including the entrance of his driveway. And although he allowed friends and neighbors to ride bicycles on the property, he “took actions to keep strangers” away. Responding to a tip that the defendant was growing marijuana, law enforcement officials, acting without a warrant, entered his land through an adjacent property. They passed the “no trespassing” signs along the way and eventually came to a marijuana patch approximately 100 yards from the defendant’s house.

[*P10] On appeal from the trial court’s denial of the defendant’s motion to suppress the evidence, this Court rejected the “open fields” exception to the warrant requirement established under the U.S. Constitution. See Oliver v. United States, 466 U.S. 170, 184, 104 S. Ct. 1735, 80 L. Ed. 2d 214 (1984). We instead formulated a test under Article 11 “that a lawful possessor may claim privacy in ‘open fields’ … where indicia would lead a reasonable person to conclude that the area is private.” Kirchoff, 156 Vt. at 10, 587 A.2d at 994. We noted the corollary that Article 11 does not protect areas in which the landowner has taken no steps to exclude the public. Id. The test is objective: the landowner must manifest some indicia — fence, barriers, “no trespassing” signs — that demonstrate to a reasonable person that the public is not welcome. Id. Considering “the extensive posting of the [defendant’s] land,” the Court concluded that the “defendant’s intent to exclude the public was unequivocal” and ruled that any evidence gathered because of the search must be excluded. Id. at 14, 587 A.2d at 996.

[*P11] Since Kirchoff, this Court has reaffirmed that a landowner must signal an intent to exclude the public from “open fields” in order to maintain a constitutionally cognizable expectation of privacy. See State v. Costin, 168 Vt. 175, 179, 720 A.2d 866, 869 (1998) (“The obvious import of these decisions is that this defendant has no reasonable expectation of privacy in the area in which he tended his marijuana garden because he took no steps to exclude the public.”); State v. Hall, 168 Vt. 327, 328-30, 719 A.2d 435, 436-37 (1998) (upholding warrantless entry of defendant’s property because “no signs were posted, nor were other methods used, to indicate that defendant sought to exclude the public from the woods adjacent to his yard”); State v. Rogers, 161 Vt. 236, 245-49, 638 A.2d 569, 574-76 (1993) (holding that since defendant’s privacy claim was based on natural barriers to land rather than “change caused by defendant’s actions,” he enjoyed no Article 11 protection); State v. Chester, 156 Vt. 638, 638, 587 A.2d 1008, 1008-09 (1991) (mem.) (holding that because “there were no barriers to entry to indicate defendant’s intent to exclude the public” warrantless entry was permitted).

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