State v. Simmons, 27 A.3d 1065

Simmons appeals a Windham District Court denial of his motion to suppress evidence obtained from a search of his Hi Lo Biddy Road residence for stolen property.
Probable cause for the search arose from inquest subpoenas to MySpace and Verizon seeking IP address and usage data tied to Simmons.
The MySpace subpoena and Verizon records showed Simmons logged into MySpace from a single Verizon IP address shortly after neighbor’s laptop was stolen.
The neighbor’s own Verizon connection was used without permission, indicating unauthorized network access under 13 V.S.A. § 4102.
Police used this information to obtain a warrant to search Simmons’s residence, uncovering a stolen laptop and other items, plus a small quantity of marijuana, and Simmons confessed to burglaries.
On appeal, Simmons argues the internet records subpoena violated Art. I, ch. 1, art. 11 of the Vermont Constitution and that the informant’s tip lacked reliability; the State contends noncontent data is not private and the informant’s reliability was irrelevant to probable cause.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether subpoenaed internet records trigger privacy protections under Article 11.	Simmons argues MySpace/Verizon data are private and obtained without probable cause.	Simmons contends Article 11 protects against warrantless access to such data.	Article 11 does not extend protection to noncontent ISP data in this context.
Whether the subpoenas violated the Fourth Amendment/Article 11 by warrantless search of Simmons’s home.	Subpoenas permitted warrantless access to IP-based data.	Data were nonprivate noncontent information disclosed to third parties; no warrantless search occurred.	Warrants based on noncontent data obtained from third parties did not violate Fourth Amendment or Article 11 here.
Whether the informant’s reliability was necessary to establish probable cause.	Tip information was crucial to establishing probable cause.	Probable cause did not depend on the informant; other evidence supported the warrant.	Informant reliability was irrelevant to probable cause for the warrant.

State v. Jewett, 146 Vt. 221, 500 A.2d 233 (1985) (Vt. 1985) (duty to raise state constitutional issues at trial; nonpreservation limits review)
State v. Maguire, 146 Vt. 49, 498 A.2d 1028 (1985) (Vt. 1985) (nonanalysis of Article 11 rebutted on appeal without extraordinary circumstances)
State v. Geraw, 173 Vt. 350, 795 A.2d 1219 (2002) (Vt. 2002) (Article 11 privacy scope for warrantless searches; private areas)
State v. Morris, 165 Vt. 111, 680 A.2d 90 (1996) (Vt. 1996) (Article 11 not extended to all private materials like trash bags)
State v. Kirchoff, 156 Vt. 1, 587 A.2d 988 (1991) (Vt. 1991) (open fields and related searches; Article 11 protections)
State v. Pitts, 2009 VT 51, 186 Vt. 71, 978 A.2d 14 (Vt. 2009) (noncontent data and service provider information context in Vermont)
Katz v. United States, 389 U.S. 347 (1967) (U.S. 1967) (establishment of reasonable expectation of privacy standards)
Smith v. Maryland, 442 U.S. 735, 99 S. Ct. 2577, 61 L. Ed. 2d 220 (1979) (U.S. 1979) (pen register/searches; nonprivacy of dialing records)
United States v. Perrine, 518 F.3d 1196 (10th Cir. 2008) (10th Cir. 2008) (noncontent subscriber information generally not protected)
State v. Reid, 194 N.J. 386, 945 A.2d 26 (2008) (N.J. 2008) (subscriber information vs. warrants; not controlling here)
D'Andrea, 648 F.3d 1 (1st Cir. 2011) (1st Cir. 2011) (addressing inquest and IP data; vacated decision post-appeal)