Bovat v. Vermont, 2020 U.S. LEXIS 5057 (Oct. 19, 2020) (Gorsuch dissenting from denial of certiorari with Sotomayor and Kagan):
Its hard to see how the case before us could have been decided without reference to Jardines. Suspecting Clyde Bovat of unlawfully hunting a deer at night (Vermont calls it a deer jacking), game wardens decided to pay him a visit to, in their words, investigate further. But the wardens admit that pretty soon after arriving they focused on a window in Mr. Bovat’s detached garage. Heading there and peering inside, the wardens spotted what they thought could be deer hair on the tailgate of a parked truck. App. to Pet. for Cert. 53a.
Nor, apparently, was this detour a brief one. According to Mr. Bovat’s wife, the wardens lingered on the property for perhaps fifteen minutes and never even made it to the front door. Instead, after watching from inside, she finally decided to go out to speak with the wardens and it was only then they finally sought consent for a search. Mrs. Bovat refused the request, but by that point, of course, the whole exercise of seeking consent was pointless; the wardens had all they needed, forget about any knock or talk. They left the property only to return promptly with a search warrant premised on what they had seen through the garage window.
For reasons that remain unclear, the Vermont Supreme Court analyzed the propriety of the wardens’ conduct without mentioning Jardines. Instead, the court held that the officers’ initial visit and search of the property was perfectly appropriate in light of the plain view doctrine– the commonsense principle that the Fourth Amendment doesn’t normally require an officer to ignore what he sees lying before him. But that doctrine applies only when an officer finds himself in a place he is lawfully permitted to occupy. No one, after all, thinks an officer can unlawfully break into a home, witness illegal activity, and then claim the benefit of the plain view doctrine. So, in an effort to suggest the wardens lingering at the garage window was lawful, the Vermont Supreme Court proceeded to cite one of its pre-Jardines cases for the notion that driveways constitute semiprivate areas within the curtilage, and observations made from such areas are not covered by the Fourth Amendment. 2019 VT 81, 18, 224 A. 3d 103, 108 (quoting State v. Pike, 143 Vt. 283, 288, 465 A. 2d 1348, 1351 (1983)). The upshot? Under the court’s logic, it seems, an officer who keeps ten toes in a home’s driveway may stay and search just as he pleases.
None of this is easy to square with Jardines, and that case’s teachings almost certainly required a different result. Maybe a court could have discredited Mrs. Bovat’s testimony about how long the wardens wandered around the garage. Maybe a court could have attempted to offer some explanation why items viewable only through a garage window were within the plain view of visitors proceeding directly and without delay from the street to the front door. But it seems a good deal more likely that any court applying Jardines would have agreed with Chief Justice Reiber, who explained in dissent that the wardens exceeded the scope of their implied license to approach the front door by heading to the garage and spending so much time peering through its window. As Chief Justice Reiber noted, Jardines plainly held that the home’s curtilage and observations made anywhere within its bounds are covered by the Fourth Amendment; no exceptions. And the Fourth Amendment hardly tolerates the sort of meandering search that took place here. The wardens violated the Constitution, and the warrant they received premised on the fruits of their unlawful search was thus tainted.
Despite the Vermont Supreme Court’s error, I acknowledge that understandable reasons exist for my colleagues’ decision to let this case go. For one, it is unclear whether Jardines’s message about the protections due a home’s curtilage has so badly eluded other state or federal courts. For another, there might be reason to hope that, while Vermont missed Jardines in one deer-jacking case, its oversight will prove a stray mistake. But however all that may be, the error here remains worth highlighting to ensure it does not recur. Under Jardines, there exist no semiprivate areas within the curtilage where governmental agents may roam from edge to edge. Nor does Jardines afford officers a fifteen-minute grace period to run around collecting as much evidence as possible before the clock runs out or the homeowner intervenes. The Constitution’s historic protections for the sanctity of the home and its surroundings demand more respect from us all than was displayed here.
Opinion below: State v. Bovat, 2019 VT 81, 224 A.3d 103.
If RBG and Scalia were alive, I suspect this would have been a cert grant because of Jardines and reversal, either per curiam or after full briefing. Denial of cert here says nothing of the merits. See, e.g., Teague v. Lane, 489 U.S. 288, 296 (1989):
As we have often stated, the “denial of a writ of certiorari imports no expression of opinion upon the merits of the case.” United States v. Carver, 260 U.S. 482, 490 (1923) (Holmes, J.). Accord, Hughes Tool Co. v. Trans World Airlines, Inc., 409 U.S. 363, 366, n. 1 (1973); Brown v. Allen, 344 U.S. 443, 489–497 (1953). The “variety of considerations [that] underlie denials of the writ,” Maryland v. Baltimore Radio Show, 338 U.S. 912, 917 (1950) (opinion of Frankfurter, J.), counsels against according denials of certiorari any precedential value.
