VT: Game wardens’ entry on def’s curtilage to investigate deer jacking was reasonable as was look through detached garage window

Defendant was suspected of “deer jacking,” shooting a deer from outside the window of a homeowner before 4 am on Thanksgiving Day 2017. A game warden investigated at the scene finding deer blood and hair. The game warden had a description of a dark pickup with a light bar. Game wardens investigated further and found E.S. who claimed to have shot the deer, but later thought better of it and claimed he bought it from “Clark.” That took them to defendant’s property, and they looked in the window of his detached garage seeing blood and hair from a deer. They talked to his wife seeking consent, but she claimed no key. Yes, this was curtilage, but their entry onto the curtilage was justified by legitimate investigation [akin to a knock-and-talk] and their look in the window was not unreasonable and did not violate any reasonable expectation of privacy under Dunn. State v. Bovat, 2019 VT 81, 2019 Vt. LEXIS 153 (Nov. 8, 2019):

[*P10] We agree with defendant that his garage is within the curtilage of his home. We are unpersuaded by his remaining arguments. The wardens were conducting a legitimate police investigation, during which they observed defendant’s truck in plain view from a semiprivate area. We decline to address the merits of defendant’s Franks challenge because the challenged statements were not necessary to the probable cause to issue a search warrant. Accordingly, we affirm.

. . .

[*P12] First, defendant argues the trial court erred in concluding that his garage is not in the curtilage of his home. Yes, this was error. Curtilage is defined as “the land immediately surrounding the home and associated with it,” State v. Byrne, 149 Vt. 224, 227, 542 A.2d 276, 278 (1988), into which the “ ‘privacies of life’ may extend,” State v. Rogers, 161 Vt. 236, 241, 638 A.2d 569, 572 (1993) (quoting Oliver v. United States, 466 U.S. 170, 180, 104 S. Ct. 1735, 80 L. Ed. 2d 214 (1984)). The United States Supreme Court has identified four factors to aid in determining if an area is curtilage: (1) the area’s proximity to the home; (2) whether the area is within an enclosure surrounding the home; (3) the nature and uses to which the area is put; and (4) the steps taken by the resident to protect the area from observation. United States v. Dunn, 480 U.S. 294, 301, 107 S. Ct. 1134, 94 L. Ed. 2d 326 (1987). These factors do not produce a “finely tuned formula” that can be mechanically applied; rather, they bear upon the central consideration of “whether the area in question is so intimately tied to the home itself that it should be placed under the home’s ‘umbrella’ of Fourth Amendment protection.” Id. Vermont adopted the Dunn factors in State v. Hall, 168 Vt. 327, 330, 719 A.2d 435, 437 (1998), after first applying them in Rogers, 161 Vt. at 242 n.*, 638 A.2d at 572 n.*.

[*P13] The Dunn Court found that the barn in question in that case was a substantial distance from the house (sixty yards away), it did not lie within the area surrounding the house that was enclosed by a fence, law enforcement had objective data that the barn was not being used for intimate activities of the home, and the defendant had done little to protect the barn area from observation by those standing in the open fields around the structure. 480 U.S. at 302-03. Based on these findings, the Court concluded the barn was not within the curtilage of the home. Id. at 301.

[*P14] Following the Dunn analysis, this case calls for a different result. First, defendant’s garage and home are in close proximity to one another, separated only by an area of driveway that can accommodate approximately two vehicles and plastic garbage bins, and a small row of trees. While the trial court found the distance “significant” from viewing aerial photographs admitted at hearing, the photographs actually depict a continuity of space with a “walking path” to the house from the driveway. Second, a low, white split-rail fence stands along the road but, as the trial court found, it does not enclose anything. It begins along one side of the driveway and continues off toward an open field away from the residence. The fence does not separate the garage from the home in any way. Third, defendant uses the garage for domestic purposes — parking his vehicles and storing his hunting equipment. Finally, while defendant did not prevent observation of the garage itself by placing barriers or “no trespassing” signs, the garage door was closed and locked. The garage is properly considered to be within the curtilage of the home.

[*P15] We have held that curtilage includes outbuildings such as sheds and garages used for domestic purposes. State v. Potter, 148 Vt. 53, 61, 529 A.2d 163, 168 (1987) (determining that defendant’s shed was part of curtilage because it was outbuilding used for storing family property). Here, defendant’s garage merited “the same constitutional protection from unreasonable searches and seizures as the home itself.” Rogers, 161 Vt. at 241, 638 A.2d at 572; see also State v. Bryant, 2008 VT 39, ¶ 13, 183 Vt. 355, 950 A.2d 467.

[*P16] We nonetheless conclude that the warden’s plain-view observations through the window of the garage from a place he had a right to be did not violate defendant’s Fourth Amendment rights. In State v. Koenig, we held that Fourth Amendment protections extend only to items which are not in plain view and cannot be seen by persons from a place they have a legitimate right to be. 2016 VT 65, ¶ 15, 202 Vt. 243, 148 A.3d 977 (citing United States v. Orozco, 590 F.2d 789, 792 (9th Cir. 1979)). The plain-view exception applies here.

[*P17] The plain-view doctrine is grounded on two principles: “first, ‘that when a police officer has observed an object in plain view’ from a legal vantage point the owner’s privacy interests are forfeited; and second, that requiring a warrant once the police ‘have obtained a firsthand perception of [the object] would be a needless inconvenience.’” State v. Bauder, 2007 VT 16, ¶ 30, 181 Vt. 392, 924 A.2d 38 (quoting Texas v. Brown, 460 U.S. 730, 739, 103 S. Ct. 1535, 75 L. Ed. 2d 502 (1983)).

[*P18] Regarding the first prong — that the police officer observes the object from a legal vantage point — we have previously stated that “police officers are entitled to enter residential property, including portions that would be considered part of the curtilage, to carry out legitimate police business.” Koenig, 2016 VT 65, ¶ 16. Portions of the curtilage like driveways or walkways, which are normal access routes for anyone visiting the premises, are considered semiprivate places. State v. Pike, 143 Vt. 283, 287, 465 A.2d 1348, 1351 (1983) (citing United States v. Magana, 512 F.2d 1169, 1171 (9th Cir. 1975)); State v. Ryea, 153 Vt. 451, 453, 571 A.2d 674, 675 (1990); see also State v. Libbey, 154 Vt. 646, 646, 577 A.2d 279, 280 (1990) (mem.) (“We have found a significant difference between private areas within the curtilage of the home, and semiprivate areas, such as a driveway, steps and a walkway.”). When state officials restrict their movement to semiprivate areas to conduct an investigation, “observations made from such vantage points are not covered by the Fourth Amendment.” Pike, 143 Vt. at 288, 465 A.2d at 1351 (citing United States v. Humphries, 636 F.2d 1172, 1179 (9th Cir. 1980)). In other words, a private area may still be open to visual inspection from a semiprivate area. See Rogers, 161 Vt. at 248, 638 A.2d at 578 (finding that trooper did not violate Fourth Amendment while “standing in a position from which he could lawfully make an observation” into defendant’s garden within curtilage). Here, while the garage itself is a private area that the police would not have been justified to enter without a warrant, the wardens restricted their movements to defendant’s driveway, a semiprivate area, where they observed what they believed to be incriminating evidence on defendant’s truck. Because the wardens observed the truck from a legal vantage point, the first part of the plain-view exception is met.

[*P19] An object must also be in plain view. Bauder, 2007 VT 16, ¶ 30. “Where the government observes that which is willingly exposed to the public, there is no invasion of privacy.” Koenig, 2016 VT 65, ¶ 15. A person can reassert privacy interests in semiprivate areas by posting ‘no trespassing’ signs or erecting barriers to apprise others that the area is private. State v. Kirchoff, 156 Vt. 1, 10, 587 A.2d 988, 994 (1991). When a landowner has taken steps to indicate that strangers are not welcome, such that a reasonable person would conclude that the public is excluded from the land, an expectation of privacy is reasonable. Id.; State v. Blow, 157 Vt. 513, 517, 602 A.2d 552, 555 (1991). However, absent evidence of intent to exclude the public, and when the police officer can readily observe the object from a lawful vantage point, the plain-view requirement is met. This is true here.

[*P20] Defendant urges us to analogize the present case to State v. Ford, 2010 VT 39, 188 Vt. 17, 998 A.2d 684. We decline to do so. In Ford, an officer performing a welfare check walked around the defendant’s house, bent down to a basement window, and saw marijuana plants under a grow-light through a gap in the curtains. Id. ¶¶ 3-4. However, that case looked at whether the emergency-aid exception applied under the facts of the case and did not address the plain-view exception at issue here. See id. ¶ 6. Moreover, there was no claim in Ford that the officer saw into the basement window from a semiprivate place that was a normal access route for visitors to the premises. See id. ¶¶ 9, 21.

[*P21] We are also unconvinced by defendant’s argument that his detached garage, with closed doors, connotes a reasonable expectation of privacy. Defendant did little, if anything, to indicate that expectation. As the trial court found, the garage was not in an enclosure. Defendant posted no signs and erected no large barriers around his garage. And, as the trial court found, the “small white split-rail fence does not protect the area from observation in any way.” The windows in the garage doors were not covered or blocked in any way. Any adult standing on defendant’s driveway could see into the interior of his garage where his truck was parked because nothing was done to prevent someone from seeing into the garage from the driveway.

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