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.
. . .
[*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).
by John Wesley Hall
Criminal Defense Lawyer and
Search and seizure law consultant
Little Rock, Arkansas
Contact: forhall @ aol.com / The Book www.johnwesleyhall.com
"If it was easy, everybody would be doing it. It isn't, and they don't." —Me
"Life is not a matter of holding good cards, but of playing a poor hand well." –Josh Billings (pseudonym of Henry Wheeler Shaw), Josh Billings on Ice, and Other Things (1868) (erroneously attributed to Robert Louis Stevenson, among others)
“I am still learning.” —Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's)).
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"It is a pleasant world we live in, sir, a very pleasant world. There are bad people in it, Mr. Richard, but if there were no bad people, there would be no good lawyers."
—Charles Dickens, “The Old Curiosity Shop ... With a Frontispiece. From a Painting by Geo. Cattermole, Etc.” 255 (1848)
"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced."
—Williams
v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold,
J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws,
or worse, its disregard of the charter of its own existence." —Mapp
v. Ohio, 367 U.S. 643, 659 (1961).
"Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment."
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that
bear heavily on the Court to water down constitutional guarantees and give the
police the upper hand. That hydraulic pressure has probably never been greater
than it is today."
— Terry
v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their
property."
—Entick
v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have
frequently been forged in controversies involving not very nice people. And
so, while we are concerned here with a shabby defrauder, we must deal with his
case in the context of what are really the great themes expressed by the Fourth
Amendment."
—United
States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth."
—Chapman
v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the
bottom of a turntable."
—Arizona
v. Hicks, 480 U.S. 321, 325 (1987)
"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."
—Katz
v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to
protect liberty when the Government’s purposes are beneficent. Men born
to freedom are naturally alert to repel invasion of their liberty by evil-minded
rulers. The greatest dangers to liberty lurk in insidious encroachment by men
of zeal, well-meaning but without understanding.”
—United
States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted
intrusion by government—is as easily lost through insistent nibbles by
government officials who seek to do their jobs too well as by those whose purpose
it is to oppress; the piranha can be as deadly as the shark.”
—United
States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want /
But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards
"In Germany, they first came for the communists,
and I didn't speak up because I wasn't a communist. Then they came for the Jews,
and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists,
and I didn't speak up because I wasn't a trade unionist. Then they came for
the Catholics and I didn't speak up because I wasn't a Catholic. Then they came
for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration
camp]
“You know, most men would get discouraged by
now. Fortunately for you, I am not most men!”
---Pepé Le Pew
"The point of the Fourth Amendment, which often is not grasped by zealous officers,
is not that it denies law enforcement the support of the usual inferences which
reasonable men draw from evidence. Its protection consists in requiring that
those inferences be drawn by a neutral and detached magistrate instead of being
judged by the officer engaged in the often competitive enterprise of ferreting
out crime."
—Johnson
v. United States, 333 U.S. 10, 13-14 (1948)