State v. Morris

¶1dissenting. 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 fives. Most of all, I agree that our decision must be guided by the facts of this case.

¶2Except 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 five in the same apartment building, without there being probable cause to search the home or other structure.1

¶3Nor is this a case of “increasing governmental intrusion” into the fives of ordinary citizens. I have no doubt that examining people’s waste has been an investigative tool of law enforcement throughout recorded history.

¶4The 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 *132virtually nothing about Article 11 and generally ignores our relevant precedents interpreting the Article, except in response to this dissent. After calling the Greenwoodrationale “brief,” the majority’s analysis here is limited almost entirely to why the Greenwoodrationale 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.

¶5In 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, “[i]t 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 Greenwooddissent.

¶6Although 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 or 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.

¶7Id. at 489, 536 A.2d at 908.

¶8*133The 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 Woodholding 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.2 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.

¶9The 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.

¶10The 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 Wooddecision, 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. *134at 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.

¶11Defendant 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.

¶12I 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 Woodand Kirchojf, irrespective of the expectation of privacy of defendant or Vermont society as a whole.3 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.4 On the facts of this case, there is no violation of Article 11.

¶13Beyond 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 *135weekly 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.5

¶14The 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.

¶15State 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 Brooksthat 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 Brooksfound, 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.

¶16*136I- 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 Woodand this case are about making it easier “for persons to challenge police intrusions into their private affairs.”

¶17We 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.

¶18I dissent. I am authorized to state that the Chief Justice joins in this dissent.