VT: Pseudo welfare check cannot be a ruse for a plain view under Jardines under state constitution

A pseudo welfare check cannot be a ruse for a plain view under Jardines. Police officers entering defendant’s girlfriend’s yard under the guise of a welfare check over the normal access route were looking for and discovered a 9 mm bullet in plain view. [Vermont law gives him standing.] The case law relied upon by the trial court is overruled, and the case remanded for new findings of fact under a new standard under Jardines informed by state law. State v. Calabrese, 2021 VT 76, 2021 Vt. LEXIS 100 (Oct. 1, 2021):

¶ 31. On this evidence, the factfinder could conclude that the trooper took a series of concrete steps to conduct a search for the bullet. Those acts provide objective confirmation of what he essentially admitted to be his subjective purpose: to conduct a search. See Jardines, 569 U.S. at 10 (concluding that the officers’ behavior “objectively reveal[ed] a purpose to conduct a search, which is not what anyone would think he had license to do”). On this understanding of the evidence, the question is not whether the trooper had an objectively reasonable basis for conducting a welfare check, or even whether his conduct in performing the welfare check was reasonable; it is whether his active visual search for the bullet in the grass by the scene of the alleged crime was intrinsic to the welfare check that gave him limited constitutional authority to be present in the curtilage of the home in the first place. Because it was not, on this view of the evidence, the trooper’s warrantless search violated defendant’s rights under the Fourth Amendment and Article 11. The intrusion might not seem shocking in this case, but allowing the State to dispense with the warrant requirement and conduct otherwise unlawful searches in the course of “knock-and-talk” visits to the front door, or entries for the purpose of caretaking, would erode the most “core” of rights under the Fourth Amendment and Article 11. The dissent emphasizes that the trooper’s license to conduct a welfare check authorized him to be in the spot where he was when he made the observation-an assertion we do not contest. But, as noted above, the lesson of Jardines is that once an officer physically enters the protected curtilage of a home, the application of the plain view doctrine is limited to observations made within the scope of the trooper’s license. What an officer is doing is just as important as where the officer is when making the challenged observation. Affirmatively looking for the incriminating evidence from a spot where the officer is entitled to be is constitutionally different from stumbling upon it because the scope of the officer’s limited license does not encompass searching for the incriminating evidence. This does not require an analysis of the officer’s subjective intent; it is a question of the objective inferences that may be drawn from the officer’s actions. Because the evidence in this case can support the conclusion that the trooper affirmatively searched for the bullet-albeit from a location he was licensed to be-we cannot affirm the trial court’s ruling denying defendant’s motion to suppress.