{"id":4367,"date":"2011-08-08T08:00:43","date_gmt":"2010-06-29T08:23:28","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2010-06-29T08:23:28","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=4367","title":{"rendered":"VT: Search incident of defendant’s backpack was unreasonable"},"content":{"rendered":"

Defendant was the target of a controlled buy of marijuana that had recently been brought across the border in a backpack and the courier detained. The courier agreed to make the delivery. When the police heard the code words on the wire, they came in to make the arrest, and found another backpack that belonged to defendant. The warrantless search of his own backpack violated the Vermont Constitution. The court rejects claims that just because the controlled delivery happened in a public place defendant had no expectation of privacy in the closed container. State v. Birchard<\/a>, 2010 VT 57, 188 Vt. 172, 5 A.3d 879 (2010):<\/p>\n

[*P13] In Savva<\/a>, we announced the rule controlling our decision today that police cannot open and search a closed container when there is ample opportunity to obtain a warrant prior to doing so. 159 Vt. at 88, 616 A.2d at 781 (summarizing its conclusion that where no exigency exists, “a legitimate expectation of privacy was implicated” by the defendant’s closed paper bags found in the hatchback of his car). Our decision in that case was grounded in a “separate and higher expectation of privacy” for the contents of such containers over objects in a vehicle exposed to plain view. Id. Even where probable cause exists to seize a closed container, that does not override the requirement for a warrant: police must proceed in the least intrusive manner with respect to a defendant’s expectations of privacy in that container, obtaining a defendant’s permission to search or seeking the oversight of a magistrate. Id. at 90, 616 A.2d at 782; …. Once seized, the container may be either opened pursuant to a warrant or under an exception to the requirements of Article 11. See Savva, 159 Vt. at 89, 616 A.2d at 782; accord Horton v. California<\/a>, 496 U.S. 128, 141 n.11 (1990). We have declined to approve of administrative efficiency serves as an adequate grounds for such an exception, Bauder, 2007 VT 16, PP 11-12, choosing instead to preserve, whenever possible, the essential checks on unrestrained executive power by ensuring review by an impartial magistrate prior to a governmental invasion of privacy. Id. P 13.<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

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