State v. Morris
Annotate this Case
State v. Morris (94-299); 165 Vt 111; 680 A.2d 90
[Opinion Filed 22-Mar-1996]
NOTICE: This opinion is subject to motions for reargument under
V.R.A.P. 40 as well as formal revision before publication in the Vermont
Reports. Readers are requested to notify the Reporter of Decisions,
Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
any errors in order that corrections may be made before this opinion goes
to press.
No. 94-299
State of Vermont Supreme Court
On Appeal from
v. District Court of Vermont,
Unit No. 1, Windham Circuit
Richard Morris May Term, 1995
Paul F. Hudson, J.
Jeffrey L. Amestoy, Attorney General, and Karen R. Carroll, Assistant
Attorney General, Montpelier, for plaintiff-appellee
Robert Appel, Defender General, and Henry Hinton, Appellate Defender,
Montpelier, for defendant-appellant
PRESENT: Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.
JOHNSON, J. Today, we hold that the Vermont Constitution protects
persons from warrantless police searches into the contents of secured
opaque trash bags left at curbside for garbage collection and disposal. In
our view, because persons have an objectively reasonable privacy interest
in the contents of such containers, police must obtain a warrant before
searching through them. In this case, absent the evidence obtained from
the unlawful search of defendant's trash, the warrant permitting the search
of his house was not supported by probable cause; accordingly, we reverse
defendant's conviction for possession of marijuana.
I.
Sometime before March 1993, a confidential informant told an officer
of the Brattleboro Police Department that defendant was selling marijuana
from his apartment and from the parking lot of a certain grocery store. On
March 1, 1993, a regularly scheduled trash collection day, two police
officers went to the apartment building where defendant resided and seized
the five or six opaque trash bags that had been set out for collection near
the curb about five or six feet from
the building. From the exterior of the bags, there was no way to identify
which tenant had deposited which bags. All of the bags were transported to
the police station and searched without a warrant. Inside defendant's
bags, which were identified through discarded pieces of mail, the police
found marijuana seeds and stems and baggies containing flakes of marijuana.
Based on the items found in the trash, the information supplied by the
confidential informant, and an unidentified neighbor's report that
defendant had received many different visitors during the past month, the
police sought and obtained a warrant to search defendant's residence.
Approximately four ounces of marijuana were found, and defendant was
charged with possession of marijuana. Defendant moved to suppress all
evidence seized from his apartment on the ground that the search warrant
was defective because it was based primarily on evidence discovered during
an illegal warrantless search of his garbage. The district court denied
defendant's motion to suppress, ruling that defendant had no expectation of
privacy in his discarded garbage.
On appeal, following his conviction based upon a conditional plea of
no contest, defendant argues that the Vermont Constitution prohibits the
warrantless search of opaque trash bags placed at curbside for collection
on a regularly scheduled trash pick-up day. In response, the State
contends that the Vermont Constitution does not prohibit the warrantless
search of curbside trash, and that even if it did and evidence found in
defendant's trash bags was suppressed, the other information in the warrant
application and affidavit is sufficient to support a finding of probable
cause to search defendant's apartment.
II.
Our task is to discover and protect the core value of privacy embraced
by Chapter I, Article 11 of the Vermont Constitution.(FN1) State v. Savva,
159 Vt. 75, 85, 616 A.2d 774, 779
(1991); State v. Kirchoff, 156 Vt. 1, 6-7, 587 A.2d 988, 992 (1991).
Article 11 protects persons "from unreasonable, warrantless governmental
intrusions into affairs which they choose to keep private." State v.
Zaccaro, 154 Vt. 83, 91, 574 A.2d 1256, 1261 (1990). The first and
foremost line of protection is the warrant requirement. Requiring advance
judicial approval before subjecting persons to police searches represents a
balance in which an individual's privacy interest outweighs the burdens on
law enforcement in obtaining a warrant. Savva, 159 Vt. at 85-86, 616 A.2d
at 780. Thus, absent exceptional circumstances, the government's decision
to invade a person's privacy must be made by a neutral judicial officer
rather than the police. Id. at 85, 616 A.2d at 779.
Of course, Article 11 does not "protect areas or activities that have
been willingly exposed to the public." Kirchoff, 156 Vt. at 7, 587 A.2d at
993. In determining whether persons have a privacy interest in any given
area or activity, we examine both private subjective expectations and
general social norms. State v. Blow, 157 Vt. 513, 517-18, 602 A.2d 552,
555 (1991). The manifested privacy interest must be a reasonable one, but
as we have cautioned before, constitutional rights are not limited by
waning expectations of privacy resulting from increased governmental
intrusion into people's lives. See Kirchoff, 156 Vt. at 12, 587 A.2d at
995-96. Ultimately, the question is "`whether, if the particular form of
surveillance practiced by the police is permitted to go unregulated by
constitutional constraints, the amount of privacy and freedom remaining to
citizens would be diminished to a compass inconsistent with the aims of a
free and open society.'" 1 W. LaFave, Search and Seizure § 2.6(c), at 592
(3d ed. 1996) (quoting A. Amsterdam, Perspectives on the Fourth Amendment,
58 Minn. L. Rev. 349, 403 (1974)).
Given the facts of this case, we believe that defendant manifested a
privacy interest
recognized by society, and we conclude that unconstrained government
inspection of people's trash is not consistent with a free and open
society. As Justice Brennan stated in his dissent in California v.
Greenwood, 486 U.S. 35 (1988), "Scrutiny of another's trash is contrary to
commonly accepted notions of civilized behavior." Id. at 45 (Brennan, J.,
dissenting). While at first blush there may be a tendency to accept the
notion that a person has no reasonable privacy interest in discarded trash,
that attraction vanishes when one contemplates the "prospect of police
officers, without any cause whatever, opening a securely tied and opaque
trash bag, the contents of which are hidden from public view, and then
searching the bag to determine the activities, behavior, habits, and
lifestyles of persons who deposited the trash in front of their home for
disposition by a trash collector." People v. Hillman, 834 P.2d 1271, 1278
(Colo. 1992) (Quinn, J., dissenting).
Because "almost every human activity ultimately manifests itself in
waste products," it is understandable that persons would want to maintain
privacy in the contents of their refuse. Smith v. State, 510 P.2d 793, 798
(Alaska 1973). An individual's trash will often reveal intimate details of
that person's financial obligations, medical concerns, personal
relationships, political associations, religious beliefs, and numerous
other confidential matters. See State v. Tanaka, 701 P.2d 1274, 1276-77
(Haw. 1985) ("Business records, bills, correspondence, magazines, tax
records, and other telltale refuse can reveal much about a person's
activities, associations, and beliefs."); see also People v. Edwards, 458 P.2d 713, 718 (Cal. 1969) (half truths leading to rumor and gossip may
readily flow from attempt to "read" contents of another's trash). As
Justice Brennan so cogently stated in his Greenwood dissent:
A search of trash, like a search of the bedroom, can relate intimate
details about sexual practices, health, and personal hygiene. Like
rifling through desk drawers or intercepting phone calls,
rummaging through trash can divulge the target's financial and
professional status, political affiliations and inclinations, private
thoughts, personal relationships, and romantic interests. It cannot
be doubted that a sealed trash bag harbors telling evidence of the
"intimate activity associated with the `sanctity of a man's home and
the privacies of life,'" which the Fourth Amendment is designed to
protect.
486 U.S. at 50 (Brennan, J., dissenting) (quoting Oliver v. United States,
466 U.S. 170, 180 (1984)). Given the intimate details of people's lives
that may be revealed by searching through their refuse, we conclude that
persons have a reasonable interest in keeping private the contents of their
sealed trash containers. See State v. Hempele, 576 A.2d 793, 803 (N.J.
1990) (undoubtedly, most people would be upset to see another person
sifting through their garbage, perusing their discarded mail, reading their
bank statements, looking at their empty pharmaceutical bottles, and
checking receipts to see what videotapes they rent).
Further, that privacy interest is not lost merely because people
follow the customary practice of depositing their garbage in closed
containers at curbside for collection and disposal. First, the placement of
trash in closed, opaque bags manifests an intent that the contents of the
bags not be subjected to examination by the public in general or the police
in particular. The State's point that opaque bags are used merely because
they are the most common type of bag available only reinforces our point
that most people would prefer the type of bag that will keep their trash
private until it is commingled with other trash and loses its identity.
See Note, California v. Greenwood: A Proposed Compromise to the
Exploitation of the Objective Expectation of Privacy, 38 Buff. L. Rev. 647,
663 (1990) (nearly exclusive availability of opaque trash bags is result of
consumers' desire for privacy). There is a privacy interest in opaque
trash bags just as there is in any other closed container whose contents
are not in plain view. See Savva, 159 Vt. at 89-90, 616 A.2d at 782
("unworthy container" doctrine rejected; privacy interest exists in closed
containers, regardless of their worth).
Second, by placing trash bags at curbside for collection and disposal,
one does not evince an intent to allow unregulated governmental intrusion
into private materials that one chooses to discard. As a practical matter,
the regulated collection of garbage is necessary for the proper functioning
of our complex society. Most people today have little choice but to place
their garbage at curbside for collection by public or private trash
haulers. Note, supra, at 662-63
(tracing evolution of American trash collection practices). It is often
unreasonably burdensome or unlawful to privately burn or bury unwanted
refuse (FN2); thus, people must necessarily rely upon governmental or
commercial trash collection systems to achieve anonymous disposal of
garbage. Moran v. State, 644 N.E.2d 536, 543 (Ind. 1994) (Dickson, J.,
concurring and dissenting) (in today's society, it is no longer reasonable
or, in many situations, lawful to burn or bury unwanted waste privately);
Hempele, 576 A.2d at 808 (state and municipal regulations prevent people
from privately burning or burying their garbage). The disposal of opaque
garbage bags in the customary way by placing them at curbside for pickup
cannot be the basis for concluding that the person no longer has a
justified interest or expectation in retaining privacy in the contents of
those bags.(FN3)
Notwithstanding the possibility that their garbage will be tampered
with by scavengers or snoops, people reasonably expect that, once their
refuse is placed on the curb in the customary and accepted manner, it will
be collected, taken to the landfill, and commingled with other garbage
without being intercepted and examined by the police. The Vermont
Constitution does not require the residents of this state to employ
extraordinary or unlawful means to keep government authorities from
examining discarded private effects.(FN4) Cf. 1 W. LaFave, supra, § 2.6(c),
at 593 ("It would be a perversion of Katz [389 U.S. 347 (1967)] to
interpret it as extending [Fourth Amendment] protection only to those who
resort to extraordinary means to keep information regarding their personal
lives out of the hands of police."); State v. DeFusco, 620 A.2d 746, 757
(Conn. 1993) (Katz, J., dissenting) ("How many of us, as Connecticut
residents, feel the need to shred or destroy personal information before
discarding it in order to protect its confidentiality?").
Persons should not be denied protection from unregulated police
intrusion into their affairs merely because they are discarding rather than
transporting their private effects. Cf. Greenwood,
486 U.S. at 49 (Brennan, J., dissenting). Although a person placing trash
at curbside for collection and disposal undoubtedly relinquishes a
proprietary interest in the trash, it does not necessarily follow that the
person intends to renounce a privacy interest in it. See Hempele, 576 A.2d
at 809 (far from relinquishing their expectation in discarded items, people
sometimes throw things out in order to maintain their privacy). "A
justified expectation of privacy may exist as to items which have been
abandoned in the property law sense, just as it is true that no such
expectation may exist on some occasions even though the property has not
been abandoned." 1 W. LaFave, supra, § 2.6(c), at 591-92. Thus, the
question is not whether the person abandoned the garbage itself but rather
whether the person relinquished an expectation of privacy in the garbage.
See State v. Kerr, 143 Vt. 597, 609, 470 A.2d 670, 676 (1983) (in search or
seizure cases, abandonment relates to expectation of privacy in property
rather than to property itself in sense of law of personal property). Our
focus must be on the objective reasonableness of one's privacy interest,
not one's proprietary interest, in curbside garbage.
This focus is consistent with our prior case law on Article 11, in
which we have emphasized that the core value of privacy is the quintessence
of Article 11, and that we must determine in such cases whether those
persons searched have a reasonable expectation of privacy in the affairs or
possessions intruded upon. See Savva, 159 Vt. at 87-88, 616 A.2d at 781
(recognizing separate and higher expectation of privacy for containers used
to transport personal possessions than for objects exposed to plain view
within automobile's interior); Blow, 157 Vt. at 517-19, 602 A.2d at 555-56
(recognizing reasonable privacy interest in being free from warrantless
electronic participant monitoring in home); State v. Brooks, 157 Vt. 490,
493, 601 A.2d 963, 964 (1991) (refusing to recognize reasonable privacy
interest in being free from warrantless electronic participant monitoring
in parking lot open to public); Kirchoff, 156 Vt. at 6-7, 10, 587 A.2d at
992, 994 (recognizing reasonable expectation of privacy in posted open
fields). Indeed, in Kirchoff, we found little textual significance in the
word "possessions" in Article 11, and instead emphasized that our task was
not to honor mere words but to discover
and protect the core value of privacy embraced by Article 11. 156 Vt. at
4-6, 587 A.2d at 991-92; see Savva, 159 Vt. at 85, 616 A.2d at 779.
Nor is State v. Wood, 148 Vt. 479, 536 A.2d 902 (1987), upon which the
dissent relies so heavily, inconsistent with our decision today. In Wood,
a warrantless search was challenged by a defendant residing temporarily at
a summer camp at the time police entered the camp and seized documents and
other evidence related to a robbery. The trial court ruled that the
defendant had no standing to challenge the search because he had no
expectation of privacy in the camp grounds. This Court reversed and
remanded the case for further proceedings, holding that the defendant had
standing to challenge the search under the Vermont Constitution. Id. at
480, 536 A.2d at 903. After a long discussion, we refused to adopt Rakas
v. Illinois, 439 U.S. 128 (1978), in which the United States Supreme Court
merged the collateral standing issue with the underlying substantive
challenge to the search. See Wood, 148 Vt. 484-85, 536 A.2d at 905-06;
Rakas, 439 U.S. at 139-40. We rejected Rakas because, contrary to "the
central purpose of Article Eleven," Rakas focused "the federal test away
from judicial review of a challenged search" and curtailed "the scope of
the protected right to be free from unlawful governmental conduct." Wood,
148 Vt. at 487, 536 A.2d at 907. We held that "a defendant need only
assert a possessory, proprietary or participatory interest in the item
seized or the area searched to establish standing to assert an Article
Eleven challenge." Id. at 489, 536 A.2d at 908.
Stripped of its suggestion of standing,(FN5) the dissent's principal
argument is nothing more
than the discredited abandonment theory rejected by even the Greenwood
majority. See United States v. Hedrick, 922 F.2d 396, 398 (7th Cir. 1991)
(majority in Greenwood chose not to rely on principles of abandonment); 1
LaFave, Search and Seizure § 2.6(c), at 595 (3d ed. 1996) (Greenwood
"should not be read as an endorsement of the broad and unsound concept that
one's garbage is abandoned property and thus is always without Fourth
Amendment protection"). Unlike the defendants in Wood and Kerr, however,
defendant here is not claiming that he never possessed or owned the
searched items. If we assume, as we hypothesized in Kerr, that defendant
had a possessory or ownership interest in the searched items, then the
question is not whether defendant abandoned the property in the sense of
the law of personal property, but rather whether he abandoned the
reasonable expectation of privacy he had in the property. 143 Vt. at
608-09, 470 A.2d at 676. This is precisely the question we address in this
opinion.
In addition to the abandonment theory, the State relies principally on
the following brief rationale espoused by the Greenwood majority in holding
that the Fourth Amendment does not constrain police from warrantless
searches of curbside garbage:
Here, we conclude that respondents exposed their garbage to the
public sufficiently to defeat their claim to Fourth Amendment
protection. It is common knowledge that plastic garbage bags left
on or at the side of a public street are readily accessible to animals,
children, scavengers, snoops, and other members of the public. See
[People v. Krivda, 486 P.2d 1262, 1269 (Cal. 1971)]. Moreover,
respondents placed their refuse at the curb for the express purpose
of conveying it to a third party, the trash collector, who might
himself have sorted through respondents' trash or permitted others,
such as the police, to do so. Accordingly, having deposited their
garbage "in an area particularly suited for public inspection and, in
a manner of speaking, public consumption, for the express purpose
of having strangers take it," United States v. Reicherter, 647 F.2d 397, 399 (CA3 1981), respondents could have had no reasonable
expectation of privacy in the inculpatory items that they discarded.
Furthermore, as we have held, police cannot reasonably be
expected to avert their eyes from evidence of criminal activity that
could have been observed by any member of the public. Hence,
"[w]hat a person knowingly exposes to the public, even in his own
home or office, is not a subject of Fourth Amendment protection."
Katz v. United States, [389 U.S. 347, 351 (1967)].
Greenwood, 486 U.S. at 40-41 (footnotes omitted).
We decline, as have the California, Hawaii, New Jersey, and Washington
state supreme courts, to follow this abbreviated analysis. See People v.
Krivda, 486 P.2d 1262, 1268-69 (Cal. 1971) (disallowing warrantless search
of curbside trash), vacated and remanded on other grounds by 409 U.S. 33,
35 (1972); Tanaka, 701 P.2d at 1276-77 (accord); Hempele, 576 A.2d at
804-07 (accord); State v. Boland, 800 P.2d 1112, 1117 (Wash. 1990)
(accord). Broken down into its component parts, the Greenwood analysis
states that there is no objectively reasonable expectation of privacy in
the contents of opaque garbage bags placed at curbside for collection
because (1) animals, scavengers and snoops might get at them; (2) the bags
are relinquished to third parties who may do as they please with them; and
(3) police cannot be expected to ignore that which is exposed to the
public.
The primary rationale relied on by the Court is the first one --
because dogs, raccoons, children, scavengers, and snoops may get into
curbside trash bags, people have no reasonable expectation of privacy in
the contents of the bags, and therefore the government is free to search
them without reason or warrant. We do not find this rationale persuasive.
What a person "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, 351-52 (1967) (emphasis added). The fact that leaving garbage for
collection may entail privacy risks "hardly means that government is
constitutionally unconstrained in adding to those risks." Amsterdam,
supra, at 406. One may accept the possibility that one's garbage is
susceptible to invasion by raccoons or other scavengers, and yet at the
same time reasonably expect that the government will not systematically
examine one's trash bags in the hopes of finding evidence of criminal
conduct. See Hempele, 576 A.2d at 805 (there is constitutionally
significant difference between assuming risk that scavenger or trash
collector will search trash bags for objects of interest and assuming risk
that police officer will scrutinize contents of garbage for incriminating
materials); State v. Stanton, 490 P.2d 1274, 1279 (Or. Ct. App. 1971)
(person may not expect privacy in backyard against children at play or
parents looking for tardy children, yet at same time be entitled to expect
privacy against police dragnet search of neighborhood backyards), overruled
in part on unrelated grounds by State v. Walle, 630 P.2d 377 (Or. Ct. App.
1981); Boland, 800 P.2d at 1116 (while defendants may expect that children,
scavengers, or snoops will sift through their garbage, average persons
would find it reasonable to believe that they have privacy interest in
being protected from warrantless governmental intrusion into their refuse);
State v. Stevens, 367 N.W.2d 788, 800 (Wis. 1985) ("[T]he fact that
non-state instrumentalities, even the elements, may act free of
constitutional restraints does not confer on the state any rights it would
not otherwise possess.").
Thus, the mere possibility that unwelcome animals or persons might
rummage through one's garbage bags does not negate the expectation of
privacy in the contents of those bags any more than the possibility of a
burglary or break-in negates an expectation of privacy in one's home or
car, or the possibility that an operator or party-line caller will listen
in on a telephone conversation negates an expectation of privacy in the
contents of the conversation, or the possibility that a cleaning person or
house guest will exceed the scope of a visit negates an expectation of
privacy in a hotel room or home. See Greenwood, 486 U.S. at 54 (Brennan,
J., dissenting); see also O'Connor v. Ortega, 480 U.S. 709, 717 (1987)
(government employee has reasonable expectation of privacy in office, even
though "it is in the nature of government offices that others -- such as
fellow employees, supervisors, consensual visitors, and the general public
-- may have frequent access to an individual's office"). Nor should
citizens be required to accept greater police intrusion into their private
affairs because of the increased frequency of people scavenging through
garbage in difficult economic times. See Kirchoff, 156 Vt. at 12, 587 A.2d
at 995-96 (constitutional privacy interest does not depend on vagaries of
temporary social patterns); DeFusco, 620 A.2d at 758 (Katz, J., dissenting)
(garbage-pickers should not "dictate
how we as a society choose to live and what values we choose to protect").
The Supreme Court's second rationale -- that garbage is turned over to
third-party trash collectors who may do with it as they please -- is even
less persuasive than the first rationale. As Justice Brennan pointed out in
his dissent, "the voluntary relinquishment of possession or control over an
effect does not necessarily amount to a relinquishment of a privacy
expectation in it"; otherwise, "a letter or package would lose all Fourth
Amendment protection when placed in a mailbox or other depository with the
`express purpose' of entrusting it to the postal officer or a private
carrier." Greenwood, 486 U.S. at 55 (Brennan, J., dissenting). In
addition, as the New Jersey Supreme Court noted, the third-party rationale
is predicated on three assumptions: (1) that garbage collectors have the
right to look through closed garbage bags; (2) that garbage collectors have
sufficient authority over the bags to consent to a police search; and (3)
that because garbage collectors can consent to a search, the police need
neither a warrant nor consent to search the garbage themselves. Hempele,
576 A.2d at 805. We agree with the New Jersey Supreme Court's assessment
that the first assumption is debatable, the second is dubious, and the
third is disturbing. Id. In an analogous situation, a landlord who has
the right to enter a tenant's house to view waste does not have the
authority to consent to a police search of the premises. Chapman v. United
States, 365 U.S. 610, 616-17 (1961); see Stoner v. California, 376 U.S. 483, 489 (1964) (implicit consent to janitorial personnel to enter motel
room does not amount to consent to police search of room). Apart from
Greenwood, the Supreme Court has never held that an intent to transfer an
object or conversation to a third party renders any expectations of privacy
unreasonable simply because the third party could then transfer the object
to police. Hedrick, 922 F.2d at 400.
Placing opaque garbage bags at curbside for collection and disposal is
not comparable to knowingly and voluntarily communicating information or
selling contraband to a third party who turns out to be a police informer
or agent. See Zaccaro, 154 Vt. at 91, 574 A.2d at 1261 ("Article 11 does
not protect one who, by opening up his or her home to those who wish to
take
part in illegal activity, exposes such activity to undercover police
officers."); cf. Brooks, 157 Vt. at 493, 601 A.2d at 964 (Article 11 allows
warrantless electronic monitoring of face-to-face conversation between
suspect and police informant in public place). Here, defendant did not
expose the contents of his garbage to anyone, including the garbage
collector. Note, The Supreme Court -- Leading Cases, 102 Harv. L. Rev.
143, 196 (1988) ("[E]xposure of concealed garbage is neither required nor
anticipated in the case of garbage collection."). Thus, there was no
voluntary consent to search that served to waive defendant's constitutional
right to be free from governmental intrusion into his private affairs.
The Supreme Court's third rationale -- that police cannot be expected
to avert their eyes from evidence exposed to the public -- appears to be a
misguided attempt to bootstrap the plain view doctrine into its analysis.
In cases where animals or scavengers actually rummage through a person's
trash bags and expose the contents of those bags to public view, the
police, to be sure, need not avert their eyes. But this principle is not
relevant here. The issue is not whether police must avert their eyes, but
rather whether they can sift through curbside garbage bags whose contents
are concealed from the public eye.
For the above reasons, we decline to follow the Greenwood majority's
decision allowing warrantless trash searches. We recognize, however, that
the privacy interest in one's trash is not equivalent, for example, to the
privacy interest in one's home. Accordingly, the seizure and search of
trash need not be bounded by the same limitations that are applicable to
the search of a dwelling. 1 W. LaFave, supra, § 2.6(c), at 603-04.
Although people have an interest in keeping the contents of their garbage
bags private, they have no privacy or possessory interest in keeping the
bags in any particular location. As long as the contents remain private,
it does not matter whether the trash bags are at the landfill or the police
station. Ordinarily, the seizure of trash bags would be permitted without
a warrant given the exigency of the situation. Hempele, 576 A.2d at 810-11.
Once the police have seized the bags, however, they cannot search them
before obtaining a warrant based on probable cause. Cf. Savva, 159 Vt. at
90, 616 A.2d at 782 (warrantless search of container found in car was not supported
by exigent circumstances because less intrusive option -- seizure of
container pending issuance of warrant -- was available).
We acknowledge that today's decision limits, to some extent, tactics
that police may use in investigating reports of criminal activity. But
improving the efficiency of law enforcement cannot come at the expense of
the protection provided by Article 11 against unconstrained governmental
intrusion into our private lives. See id. at 92, 616 A.2d at 783 ("Article
11 is the balance struck between liberty for the individual (privacy and a
sense of security) and the convenience of unchecked crime detection."). We
will not countenance under Article 11 a society in which authorities
require citizens to dispose of their personal effects in a manner that is
then deemed unworthy of protection from arbitrary governmental monitoring
without judicial oversight. See Greenwood, 486 U.S. at 55-56 (Brennan, J.,
dissenting).
In this case, defendant exposed to public view only the exterior of
opaque trash bags, and in doing so, he sought to dispose of his personal
possessions in the accepted manner that normally would result in
commingling them inextricably with the trash of others. Nevertheless,
without probable cause or judicial oversight, police searched through
defendant's trash, as well as the trash of other apartment dwellers who had
the misfortune of placing their garbage bags alongside those of someone
suspected of having committed a crime. Such unconstrained governmental
intrusion into people's private lives is inconsistent with Article 11 and a
free and open society. Because the warrantless search of defendant's trash
violated Article 11, the evidence obtained from that search, which was used
to obtain a warrant to search defendant's home, must be suppressed and
expunged from the affidavit supporting the search warrant.
In the dissent's view, our decision is an unprincipled,
result-oriented opinion that forgoes textual and historical analysis for
the purpose of evading the result reached by the majority of the United
States Supreme Court in Greenwood. This view has no basis in law or fact.
We are a sovereign state, and this Court is entitled to take issue with any
constitutional decision of the
United States Supreme Court, regardless of whether our constitution
provides the same or a different text. Like us, the Supreme Court hands
down its decision on paper, not stone tablets. Because the Supreme Court's
ebbs and flows in the area of criminal constitutional law do not dictate
our interpretation of Article 11, see Savva, 159 Vt. at 84, 616 A.2d at
779, we have no reason to "evade" that Court's rulings. Today's decision
rests on our belief that warrantless searches of trash bags set out for
pickup and disposal offend the core value of privacy embraced by Article
11. That belief is informed by the language of Article 11, as interpreted
in our case law, by the case law of other jurisdictions interpreting
similar constitutional provisions, and by economic and sociological
considerations that result, in part, from our experience as judges and
human beings. The dissent chides us for devoting too much analysis to
debunking the rationales relied on by the Greenwood majority and for
quoting too extensively from Justice Brennan's dissent in Greenwood, but
whenever we have decided to take a different path from that of the Supreme
Court, our opinions have often rested largely on an analysis of the
rejected federal law. See, e.g., State v. Oakes, 157 Vt. 171, 175-183, 598 A.2d 119, 122-26 (1991) (analyzing and rejecting Supreme Court's good faith
exception to exclusionary rule as set forth in United States v. Leon, 468 U.S. 897 (1984)); Kirchoff, 156 Vt. at 8-10, 587 A.2d at 993-94 (analyzing
and rejecting Supreme Court's "open fields" test as set forth in Oliver v.
United States, 466 U.S. 170 (1984)); Wood, 148 Vt. at 483-87, 536 A.2d at
904-07 (analyzing and rejecting search-and-seizure standing test as set
forth in Rakas).
Apparently, the dissent would have us analyze some unidentified
historical and legislative materials to support our holding. We have
already recognized that the Vermont Constitution was adopted with little
recorded debate, that Article 11 was not a provision unique to Vermont but
rather was copied practically verbatim from other jurisdictions, and that
the paucity of the historical record requires us "to look elsewhere when
determining the breadth of those individual rights the Vermont Constitution
was drafted to protect." Kirchoff, 156 Vt. at 5, 587 A.2d at 991. In
short, we do not need a unique state source to justify our difference with
the most recent
majority opinion of the United States Supreme Court, and yet it behooves us
to consider the reasoning of all courts that have addressed similar issues
and fact patterns. Points made by Justice Brennan, or other judges or
courts deciding this issue, inform our analysis and aid in our resolution
of the question at hand.
The dissent contends that we have failed to follow this Court's
admonition in State v. Jewett, 146 Vt. 221, 224-25, 500 A.2d 233, 235-36
(1985) to refrain from issuing result-oriented opinions based on state
constitutional law. The discussion in Jewett referred to a law review
article in which Justice Pollock of the New Jersey Supreme Court argued
that state courts had to develop a rationale to explain when they would
accept cases and rely on their own constitutions. See S. Pollock, State
Constitutions as Separate Sources of Fundamental Rights, 35 Rutgers L. Rev.
707, 717 (1983). According to Justice Pollock, as noted in Jewett, "State
courts should not look to their constitutions only when they wish to reach
a result different from the United States Supreme Court." Id. (emphasis
added). Thus, in Justice Pollock's view, state courts of last resort
should accept appeals on predetermined criteria and look to their own
constitutions regardless of whether they are inclined to reach a result the
same as, or different from, that reached by the Supreme Court. Neither
Jewett nor Justice Pollock suggests that this Court or any state court
should refrain from following a different path from that taken by the
United States Supreme Court unless the court can rely on unique state
sources -- historical, legislative or otherwise. Indeed, to the contrary,
in Jewett we stated that when the state constitutional issue is squarely
raised on appeal, we will consider all types of argument, including
historical, textual, doctrinal, prudential, structural, and ethical
arguments. 146 Vt. at 225, 227, 500 A.2d at 236, 237. In this case, we
address whether warrantless garbage searches violate Article 11 of the
Vermont Constitution because the issue was properly raised, briefed, and
presented to us for argument. Our decision is not result-oriented simply
because it reaches a result different from the Supreme Court, any more than
it would be result-oriented had we reached the same result as the Supreme
Court.
III.
The State contends that even if the search of defendant's trash was
illegal and the evidence found in the trash is expunged from the supporting
affidavit, the affidavit still established probable cause for issuance of
the warrant to search defendant's home. We recognize that a
search warrant is not invalid merely because it is supported in part
by an affidavit containing unlawfully obtained information. Where
the affidavit includes allegations based on illegally obtained
evidence as well as independent and lawfully obtained information,
a valid search warrant may issue if the lawfully obtained
information, considered by itself, is sufficient to establish probable
cause to issue the warrant.
State v. Moran, 141 Vt. 10, 16, 444 A.2d 879, 882 (1982) (citations
omitted). Further, while it is not normally the function of appellate
review to make a de novo determination of probable cause, State v. Maguire,
146 Vt. 49, 53, 498 A.2d 1028, 1030 (1985), in cases where we have ruled
that some of the evidence presented in the supporting affidavit must be
expunged, we may determine whether the remaining information contained in
the excised affidavit established probable cause for issuance of the
warrant. See Moran, 141 Vt. at 16, 444 A.2d at 882.
Probable cause to search exists when the information set forth in the
affidavit is such that a judicial officer would reasonably conclude that a
crime had been committed and that evidence of the crime will be found in
the place to be searched. State v. Ballou, 148 Vt. 427, 433-34, 535 A.2d 1280, 1284 (1987); see State v. Towne, 158 Vt. 607, 614, 615 A.2d 484, 488
(1992) (rejecting "more-likely-than-not" standard for probable cause to
search; stating that probable cause more closely approximates "reasonable"
cause). If any of the information comes from a confidential informant,
V.R.Cr.P. 41(c) requires that the information meet the two-prong test set
forth in the United States Supreme Court's decisions in Aguilar v. Texas,
378 U.S. 108 (1964) and Spinelli v. United States, 393 U.S. 410 (1969).
Under that test, there must be "a substantial basis for believing the
source of the hearsay to be credible and for believing that there is
factual basis for the information furnished." V.R.Cr.P. 41(c).
Here, the excised affidavit stated the following information: (1) the
confidential informant told police that defendant was selling eighth-and
quarter-ounce bags of marijuana from his apartment and from the parking lot
of a local grocery store; (2) the informant stated that he was present
during some of the drug transactions and that he was familiar with
marijuana because he had smoked it before; (3) the informant's statement
that defendant sold marijuana in a certain grocery store parking lot was
consistent with a different police officer's observations of suspicious
activity by defendant and another man one night five months earlier in the
same parking lot; and (4) an unidentified neighbor recently informed police
that many different people had visited defendant's apartment during the
last few weeks.
Although the factual-basis prong is minimally satisfied by the
informant's statement that he or she was present during some of the alleged
drug transactions, the affidavit fails to satisfy the second prong, which
requires the facts to show that "either the informant is inherently
credible or that the information from the informant is reliable on this
occasion." Ballou, 148 Vt. at 434, 535 A.2d at 1284. The credibility of
an unidentified informant is generally supported by a showing that the
informant has provided correct information in the past, while the
reliability of the information on a particular occasion is supported by a
showing that the informant's tip was against penal interest or that the
information was corroborated by police to the point where it would be
reasonable for them to rely on it as accurate. See 2 LaFave, supra, §
3.3(a), at 91-95.
The State argues that the information was reliable because (1) the
confidential informant made statements against penal interest -- that he
had smoked marijuana and had been present during some drug transactions;
(2) the police corroborated the informant's claim that defendant sold drugs
in a certain grocery store parking lot; and (3) a second informant, the
neighbor, provided information that tended to corroborate the first
informant's claim that defendant was selling drugs from his apartment.
None of these facts, either independently or together, satisfies the
reliability prong of Rule 41. First, the informant's statements that he
had smoked marijuana
at some point in the past and that he had been present during drug
transactions are hardly admissions against penal interest. Acknowledgments
that merely create a suspicion of the informant's involvement in criminal
activity, such as that the informant was present during a drug transaction,
will not suffice as admissions against penal interest. Id. § 3.3(c), at
134-35. Moreover, admissions against penal interest imply that police could
elect to use the statements to prosecute the informant; because one can be
prosecuted only for possession or deliverance of marijuana, a statement of
past use cannot, in and of itself, result in prosecution. Cf. Ballou, 148
Vt. at 435 n.3, 535 A.2d at 1284 n.3 (informants' statements that they had
purchased drugs from defendant were admissions against penal interest that
had some bearing, but not controlling weight, regarding informants'
reliability).
Second, the officer's retrospective corroboration of the information
was minimal and stale. The fact that defendant and another man had remained
in the named grocery store parking lot for a few minutes one night five
months earlier can hardly support a warrant to search defendant's
apartment. This is true even considering the unidentified neighbor's
report that defendant had had many visitors at his apartment during the
previous month. The affidavit failed to demonstrate the reliability of the
neighbor's information, and even if it were reliable, the information
provided by both informants does not establish probable cause that
defendant was selling drugs from his apartment. Accordingly, the evidence
seized during the search of defendant's apartment must be suppressed.
Reversed and remanded.
FOR THE COURT:
__________________________________________
Associate Justice
---------------------------------------------------------------------------
Footnotes
FN1. Chapter I, Article 11 of the Vermont Constitution provides:
That the people have a right to hold themselves, their houses, papers,
and possessions, free from search or seizure; and therefore warrants,
without oath or affirmation first made, affording sufficient foundation for
them, and whereby by any officer or messenger may be commanded or required
to search suspected places, or to seize any person or persons, his, her or
their property, not particularly described, are contrary to that right, and
ought not to be granted.
FN2. In Vermont, both state air quality and solid waste regulations
restrict residents' options for disposal of trash. 7 Code of Vermont
Rules, Agency of Natural Resources, Air Pollution Control Division 5-201(1)
(no person shall engage in open burning except in conformity with 5-202)
and 5-202(7)(d) (permit may be obtained for open burning of combustible
materials for which there is no other feasible method of disposal); id.,
Solid Waste, 6-302(a) (prohibiting open burning of solid waste except
untreated wood) and 6-302(c) (prohibiting disposal of solid waste outside
certified facility). The Town of Brattleboro makes it unlawful for persons
to dispose of solid waste on private property without the owner's consent
or on their own property except in a receptacle designated for collection
and disposal by curbside pickup. See Town of Brattleboro, Ordinance
Regulating the Collection and Disposal of Solid Waste (April 20, 1993),
Article VII, (1) and (2). The Town of Brattleboro also prohibits the
burning of any solid waste by open fire or incineration, except for the
open burning of natural wood by permit. Id. Article IX.
FN3. The dissent states that persons who want to keep their discarded
papers private may either move to a residence where garbage can be placed
outside within the curtilage or take the papers to the dump and dispose of
them themselves. The first suggested option makes the incredible
assumption that all persons could afford a single-family home with
sufficient curtilage to protect their privacy interests. Like the majority
in California v. Greenwood, 486 U.S. 35 (1988), the dissent assumes that
the reasonableness of one's expectation of privacy decreases as the garbage
is placed farther from the curtilage of the home, or as the number of
residents using a communal receptacle increases. Under this reasoning,
persons living in single-family dwellings have a higher expectation of
privacy in garbage left next to the house for pickup than do apartment
dwellers leaving trash in a communal curbside receptacle because their
refuse is in a location less accessible to scavengers and snoops. See
United States v. Hedrick, 922 F.2d 396, 400 (7th Cir. 1991) (proper focus
under Greenwood is whether garbage was readily accessible to public);
People v. Whotte, 317 N.W.2d 266, 268 (Mich. Ct. App. 1982) (at one end of
continuum is trash located close to single-family dwelling, and at other
end of continuum is trash located off premises of multiple-unit dwelling).
While most probably there is a greater risk that the garbage bags of those
using curbside service, particularly apartment dwellers using communal
receptacles, will be disturbed by unwanted meddlers, this is hardly a sound
reason for concluding, in effect, that the police have carte blanche to
subject to detailed scrutiny anyone's trash that has been conveniently
placed in such a location for pickup. Many people live in apartments
because they cannot afford to own their own homes. Making the protection
of Article 11 contingent on factors that hinge on a person's financial
status is unacceptable. "[A] resident's expectation that the police will
not be scavenging through his or her garbage . . . remains the same,
whether the dweller resides in a split-level ranch home in the suburbs or
in a crowded tenement in the inner city." Smith v. State, 510 P.2d 793,
805 (Alaska 1973) (Rabinowitz, J., dissenting); see People v. Smith, 125 Cal. Rptr. 192, 197 (Ct. App. 1975) (while users of communal receptacles
undoubtedly recognize that other tenants might discover contents of their
garbage, they have no more reason than single-family residents to expect
their trash to be examined by police officers), vacated by 553 P.2d 557
(Cal. 1976).
The dissent's second suggested option also ignores the difficulties
that the elderly or infirm might have in making a trip to the dump to
discard private papers. Further, assuming that such an option is possible
in all communities in this state, a fact not contained in the record or
otherwise known to us, the people of this state should not have to take
extraordinary measures to assure that authorities will be prevented from
searching through private papers and effects that they choose to discard in
the normal and customary manner of our modern society.
FN4. Under Greenwood and its progeny, even shredding papers will not
ensure protection from the government's reach. See United States v. Scott,
975 F.2d 927, 930 (1st Cir. 1992) (no privacy interest in shredded
documents placed in trash).
FN5. The dissent asserts that we should be asking whether there is a
search covered under Article 11, not whether a covered search must be
pre-authorized by a warrant. The dissent is impliedly arguing that we have
overlooked a review of defendant's standing to raise the protection of
Article 11, an issue that was not contested before either the trial court
or this Court. Defendant's alleged lack of standing flies in the face of
our holding in Wood and can only be based on the ground that defendant
abandoned his trash when he placed it outside for pickup, an argument we
reject in our discussion in the text. See supra and infra at pp. 8-10. If
we were to employ Wood to make it more difficult for persons to challenge
police intrusions into their private affairs, we would reach precisely the
opposit result intended by Wood, which sought to broaden the ability of
defendants to challenge police searches merely by asserting a privacy
interest. See State v. Wood, 148 Vt. 479, 490, 536 A.2d 902, 908 (1987)
(test adopted here ensures that defendant with protected interest may
challenge search intruding on that interest; "preliminary inquiry into the
defendant's standing looks no further than to determine whether the
protected interest exists").
-------------------------------------------------------------------------
Dissenting
NOTICE: This opinion is subject to motions for reargument under
V.R.A.P. 40 as well as formal revision before publication in the Vermont
Reports. Readers are requested to notify the Reporter of Decisions,
Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
any errors in order that corrections may be made before this opinion goes
to press.
No. 94-299
State of Vermont Supreme Court
On Appeal from
v. District Court of Vermont,
Unit No. 1, Windham Circuit
Richard Morris May Term, 1995
Paul F. Hudson, J.
Jeffrey L. Amestoy, Attorney General, and Karen R. Carroll, Assistant
Attorney General, Montpelier, for plaintiff-appellee
Robert Appel, Defender General, and Henry Hinton, Appellate Defender,
Montpelier, for defendant-appellant
PRESENT: Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.
DOOLEY, J., dissenting. There are many statements in the majority
opinion with which I agree. I agree that Chapter I, Article 11 of the
Vermont Constitution normally requires advance authority for covered
searches by way of a warrant. I agree that expectations of privacy are not
necessarily reduced by increasing governmental intrusion into people's
lives. Most of all, I agree that our decision must be guided by the facts
of this case.
Except for the necessity of keeping this case within the facts on
which it is based, a point that strongly indicates the opposite result, as
discussed below, these principles have little to do with this case. The
question before us is whether there is a search covered by Article 11, not
whether a covered search must be pre-authorized by a warrant. Indeed, I
think it undeniable that the majority opinion ends search of trash as an
investigative tool, because there will never be probable cause to search
trash, and certainly not the trash of innocent neighbors who just happen to
live in the same apartment building, without there being probable cause to
search the home
or other structure.(FN1)
Nor is this a case of "increasing governmental intrusion" into the
lives of ordinary citizens. I have no doubt that examining people's waste
has been an investigative tool of law enforcement throughout recorded
history.
The Court's decision in this case tells us how the majority would have
decided California v. Greenwood, 486 U.S. 35 (1988). It tells us virtually
nothing about Article 11 and generally ignores our relevant precedents
interpreting the Article, except in response to this dissent. After calling
the Greenwood rationale "brief," the majority's analysis here is limited
almost entirely to why the Greenwood rationale is wrong, relying mainly on
quotes from Justice Brennan's dissent in Greenwood, as well those from
Justices from other states, who, in majority or dissent, agree with the
general philosophical principles articulated by the majority.
In staking out a leadership position in state constitutional
adjudication, Justice Hayes, speaking for the Court in State v. Jewett, 146
Vt. 221, 225-27, 500 A.2d 233, 236-37 (1985), outlined the approaches
available for interpretation of our constitutional provisions: (1)
historical analysis; (2) textual analysis; (3) analysis of decisions of
sister states with similar or identical provisions; and (4) analysis of
economic or sociological materials. He cautioned, however, "it would be a
serious mistake for this Court to use its state constitution chiefly to
evade the impact of the decisions of the United States Supreme Court. Our
decisions must be principled, not result-oriented." Id. at 224, 500 A.2d
at 235. The majority decision relies little on the appropriate methodology
for constitutional adjudication and even less on our decisions construing
Article 11. It is a restated Greenwood dissent.
Although our analysis of Article 11 has been limited, three decisions
in which we have examined the Article require a result opposite that
reached by the majority. The first is State v. Wood, 148 Vt. 479, 536 A.2d 902 (1987), in which we were required to determine what interests were
sufficient to confer standing on a criminal defendant to raise Article 11
rights. Relying primarily on the text of Article 11, we held:
Article Eleven itself establishes the scope of the protected right,
and defines who may invoke its protection. The right of the
people "to hold themselves, their houses, papers, and possessions,
free from search and seizure," defines a right dependent on a
possessory interest, with equal recognition accorded to the item
seized and the area intruded upon. By delineating the right as a
possessory interest, Article Eleven premises the protected right
upon an objectively defined relationship between a person and the
item seized or place searched, as opposed to a subjective
evaluation of the legitimacy of the person's expectation of privacy
in the area searched.
Id. at 489, 536 A.2d at 908.
The second is State v. Kirchoff, 156 Vt. 1, 587 A.2d 988 (1991), in
which we held that Article 11 applies to "open fields," as long as the
possessor of those fields establishes indicia of privacy "such as fences,
barriers, or `no trespassing' signs [that] reasonably indicate that
strangers are not welcome on the land." Id. at 10, 587 A.2d at 994. In
reaching this decision, we relied upon the Wood holding that Article 11
"`defines a right dependent on a possessory interest,'" id. at 8, 587 A.2d
at 993 (quoting Wood, 148 Vt. at 489, 536 A.2d at 908), and that the
landowner had a possessory interest in the land despite its development
state.(FN2) We also followed closely the standard for criminal trespass,
showing that the landowner's privacy interest was so accepted that the
conduct of the police violated the criminal law. See id. at 10, 587 A.2d
at 994.
The third decision is State v. Brooks, 157 Vt. 490, 601 A.2d 963
(1991), along with its companion decision State v. Blow, 157 Vt. 513, 602 A.2d 552 (1991). In Blow, we held that participant electronic monitoring
of a conversation in the home, transmitted from the wired informant to
police in a nearby vehicle, violated Article 11 unless authorized by a
warrant because of the special expectations of privacy in the home and the
fact that the speaker-homeowner had not knowingly exposed the conversation
to the outside world. In Brooks, we considered the same participant
electronic monitoring where the wired informant and the defendant were in
two adjacent vehicles in a parking lot. We held that such monitoring was
not regulated by Article 11: "[W]e find that defendant, regardless of what
he actually expected, did not enjoy a reasonable expectation of privacy in
a public parking lot. In that setting, conversations are subject to the
eyes and ears of passersby." 157 Vt. at 493, 601 A.2d at 964.
The majority's response, as I understand it, is that the most critical
of these precedents is about standing, and the State has not claimed that
defendant in this case lacks standing. This response ignores the point of
the Wood decision, which was to make the concept of standing consistent
with the right protected by Article 11. Thus, the analysis is about "the
scope of the protected right" and the holding is that the Article
delineates "the right as a possessory interest." Wood, 148 Vt. at 489, 536 A.2d at 908 (emphasis added). Although the analysis appears in a standing
case, it is squarely against the majority's reasoning in this case.
Defendant lived in an apartment building. He and the other tenants in
the building put out their trash in plastic bags at curbside for Monday
pick-up. Five or six bags were placed outside a fence which was located
six feet from the apartment building.
I think it is clear from our precedents that Article 11 does not
extend to the trash bags put out on the curb by defendant and other
tenants. By putting them in a public place, defendant no longer had a
possessory interest in the trash and had no protected interest in the area
from which it was taken. The trash fell outside the protection of Article
11, as we defined it in Wood and Kirchoff, irrespective of the expectation
of privacy of defendant or Vermont society as a
whole.(FN3) Like the conversations which were subject to the eyes and ears
of passersby in Brooks, the trash bags were subject to the hands and eyes
of any member of the public who, without legal restriction, opened them or
took them.(FN4) On the facts of this case, there is no violation of Article
11.
Beyond its attempt to distinguish Wood, the majority appears to have
two answers to this straightforward analysis. First, relying on a law
review article for the proposition that "[m]ost people today have little
choice but to place their garbage at curbside for collection by public or
private trash haulers," the majority asserts that citizens cannot avoid
subjecting their trash to police scrutiny unless Article 11 restricts that
scrutiny. I am not surprised that the proposition comes from an article
published in New York, one of the most population-dense of American states,
but find it incredible that the majority would apply it to Vermont, the
most rural of states, where most residences do not have curbs at all.
Although modern solid waste management may have taken some of the cultural
charm out of the weekly trip to the "dump" in favor of large regional
landfills and transfer stations, defendant can still exercise the
time-honored tradition of self-disposal, ensuring his garbage is mixed in
anonymously with that of many of his fellow citizens. Moreover, he could
have chosen a living arrangement, whether single-family or an apartment,
that did not leave his garbage outside the curtilage waiting for
pick-up.(FN5)
The second answer is that defendant, although exposing the trash to
public scrutiny, retains a reasonable expectation of privacy against police
scrutiny. This is the kind of selective expectation we rejected in Brooks.
As Chief Justice Peters of the Connecticut Supreme Court noted:
A person's reasonable expectations as to a particular object cannot
be compartmentalized so as to restrain the police from acting as
others in society are permitted or suffered to act. . . . A person
either has an objectively reasonable expectation of privacy or does
not; what is objectively reasonable cannot, logically, depend on the
source of the intrusion on his or her privacy.
State v. DeFusco, 620 A.2d 746, 752-53 (Conn. 1993). The logical extension
of the majority's argument is that all forms of police surveillance are
prohibited because in a free and open society we do not want that very
freedom to create police opportunities to snoop. We noted in Brooks that
use of informants is "one of the basic characteristics of a totalitarian
state," but "has long been accepted as a necessary compromise between the
ideals of a perfectly private society and a perfectly safe one." 157 Vt.
at 494, 601 A.2d at 965. Article 11 does not cover every instance where
Vermont society might believe that individuals should have privacy rights.
Whether that is a "necessary compromise," as Brooks found, or the
limitation of a constitutional provision that restricts searches and
seizures rather than protecting broad privacy rights, we must acknowledge
that we cannot stretch constitutional language to regulate every law
enforcement tool.
I strongly agree with the creation of an independent state
constitutional jurisprudence that keeps essential decisions about protected
liberties as much as possible within Vermont. In State v. Wood, we
developed an independent jurisprudence on the scope of Article 11, in large
part to avoid the effect of a Supreme Court decision, Rakas v. Illinois,
439 U.S. 128 (1978), with which we disagreed. With no acknowledgement of
the holding in Wood, except in response to
this dissent, the majority has now developed a new concept of the Article,
directly contrary to that in Wood, again to avoid the effect of a Supreme
Court decision. The only consistency, as the majority appears to admit, is
that both Wood and this case are about making it easier "for persons to
challenge police intrusions into their private affairs."
We cannot build a principled and coherent construction of Article 11
out of the majority opinion in every United States Supreme Court Fourth
Amendment decision with which we agree, combined with the dissent in every
such decision with which we disagree. As Justice Hayes cautioned in
Jewett, such a course is a "serious mistake" that inevitably leaves our
jurisprudence fragmented and result-oriented. By abandoning the decisions
that form the cornerstones for our Article 11 jurisprudence in order to war
with a United States Supreme Court decision it finds distasteful, the
majority, in my judgment, is making exactly the mistake Justice Hayes
warned against.
I dissent. I am authorized to state that the Chief Justice joins in
this dissent.
_______________________________________
Associate Justice
----------------------------------------------------------------------------
Footnotes
FN1. The majority speaks on two sides of this issue, saying, on the
one hand, that "the seizure and search of trash need not be bounded by the
same limitations that are applicable to the search of a dwelling," and
adding, on the other hand, that search of trash bags would require "a
warrant based on probable cause." The latter statement makes the former
one illusory.
If police must show probable cause and obtain a warrant, search of
trash is no longer an investigatory tool. It is available only if the
police can show that evidence of the crime is in the trash, which
inevitably means they can also show that evidence is likely to remain in
the house or structure from which the trash is taken.
FN2. I disagree with the majority's statement that Kirchoff found
"little textual significance" to the use of the word "possessions" in
Article 11. The decision enforces both the wording of Article 11 and the
underlying purpose "to give meaning to the text in light of contemporary
experience." 156 Vt. at 6, 587 A.2d at 992. Thus, we found the Article
protects possessory interests in land. Id. at 8, 587 A.2d at 993.
FN3. The majority calls this "nothing more than the discredited
abandonment argument rejected by even the Greenwood majority." This
comment reinforces my view that the Court is dissenting to Greenwood rather
than analyzing the issues and applying an independent jurisprudence. The
"abandonment argument" was a federal argument relating to the federal
definition of the protected interest. Since our definition of the
protected interest is different, or was until this decision was issued, the
argument, whatever it was, is generally irrelevant to this decision. In
any event, as noted in footnote 5, infra, I do not agree that because
garbage is "abandoned" it is beyond the protection of Article 11 in all
instances.
FN4. The majority puts great weight on the fact that the trash was
placed in opaque bags. Given our interpretation of Article 11, I consider
this fact irrelevant.
FN5. I would consider this a different case if the police trespassed
on the curtilage in order to obtain the garbage. On this point, I agree
with much of the analysis of the Alaska Supreme Court in Smith v. State,
510 P.2d 793, 797-98 (Alaska 1973), cert denied, 414 U.S. 1086 (1973), a
pre-Greenwood decision that held that a police examination of trash in
circumstances similar to those present here was not regulated by the Alaska
Constitution.
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