*1 intеnt, degree with was their a say represents what defendants beyond appropriate what is our relief. negligence for entry and in accordance with judgment Reversed remanded for proceedings 1997 and April defendants’ offer of further opinion. inconsistent State of v. Michael N. Costin Vermont
[
Dooley, appeals J. Defendant Michael Costin the denial of his motion to suppress videotape a him showing cultivating marijuana 4230(a)(2). plants that, § in violation of 18 He V.S.A. contends under I, Chapter Constitution, Article 11 of the Vermont are required conducting to obtain a warrant before video surveillance on Thus, private argues, property. he the warrantless video surveillance on his property videotape was unconstitutional must be suppressed. disagree аffirm.
Defendant owns and on thirty resides secluded acres of property Ferrisburgh, road, Vermont. The can reached dirt and defendant’s house is situated feet some 700 from the dirt road at of the edge signs woods. There are no fences or prohibiting entry at the perimeter property. tipa trooper Police received Vermont August marijuana plants informant had observed an informant that the
from 31,1992, the August trooper defendant’s On growing property. by entering defendant’s responded report to the a fellow officer marijuana plants number of observing unposted property about feet property, in a section growing wooded *2 leading a path also observed foot They defendant’s house. marijuana to plants. house the defendant’s later, recording a and installed days trooper the returned Three marijuana the approximately in the 65 feet from video camera woods a marijuana plants the and was focused on plants. The video cаmera trooper to the The leading plants. path ten-foot the portion the camera. the infrared motion sensor to video When attached an the it activity plants, or other motion near sensor detected human recorder, on ten which remained for turned the and on camera later, the and days property the returned to trooper minutes. Five down walking showed defendant videotape retrieved the camera. The in on all tending marijuana garden. the Based path plants the and the information, and trooper applied the the for received above subsequent and The property. search warrant defendant’s house drug up marijuana plants parapher- search turned five various nalia. seized, claiming filed a motion to the evidence suppress
Defendant video surveillance was unconstitutional under the warrantless pursuant and that it tainted search to the Vermont Constitution1 the motion, recognized that the The trial court denied the but warrant. had to be constitutionality yet of warrantless video surveillance of the constitutionality this Court. We now reach addressed video surveillance. has a expecta- main that he “reasonable argument
Defendant’s
such
he
not be
on his land and
privacy”
videotaped
tion
that would
that,
Constitution,
I, Article 11
the Vermont
Chapter
under
conducting
obtain a
warrant before
required
were
to
search
issue,
framing
dispute
video
defendant does not
surveillance.
marijuana plants
that the
observed
the video camera were located
has made
claim that
the video surveillance offended the Fourth
Defendant
no
interpreted by
as
the United
Amendment
United States Constitution
States
Supreme
apparently
has
there
conceded that
is no federal constitutional
Court
States,
170, 178-79
466 U.S.
v. United
Oliver
violation. Defendant noted in his brief
(1984),
warrant,
electrically eavesdrop
police,
“to
on
allows the
without
constitutionally protected
‘open fields’
this is
area.”
activities in
because
not a
outside the
of his house and thus
fields.” Nor
curtilage
“open
were
does he
that he took no
dispute
steps
indicate
others that
presence on his land
curtilage
prohibited.
outside the
was
addressed the
scope
respect
“open
field” searches in
v. Kirchoff,
156 Vt.
Nevertheless, in Kirchojf, interpreted we 11 providing Article as broader than the Fourth Amendment. We held that “a lawful possessor may claim privacy ‘open fields’under Article 11 of the Vermont Constitution where indicia would lead a reasonable person to 10, conclude that the area is private.” 156 atVt. 587 A.2d at hand, 994. On the other we did not extend Article 11 protection to “searches of lands where steps have not been taken to exclude the standard, public.” By Id. creating we hoped protect constitutional rights of those who have taken steps affirmative lands, obtain in their while not suppressing evidence obtained by police that was “‘knowingly exposed to public.’” Id. States, (1967)). (quoting 347, Katz v. United 389 U.S. Specifically, fences, we held that indicia such as barriers and trespassing” “no signs reasonably indicate is property intended to be private and that strangers are not welcome. Id. 11,
Under this interpretation of Article
we held that the warrant-
less walk-on search of the defendant’s
was
unconstitutional.
See id. at
The
11 violation
cases,
that no Article
we held
other
where
clear
two
(1991)
Chester,
In this
there were
land is
public.
to exclude the
Where
ant’s intent
left
unbounded,
occupant
or
has not
the owner
unimproved and
public
trigger
steps
taken
to exclude
sufficient
I,
11 the
Constitu-
Article
Vermont
protection Chapter
tion.
(citations omitted;
emphasis supplied).
Id.
(1993),
236, 248,
Rogers,
In State v.
had
the fact that the
officer
despite
applied
held
Chester
marijuana garden.
agreed
thick woods to reach
through
crossed
Court,
Dixson,
Oregon Supreme
a similar decision of the
(Or.
1988),
by vegetation
that a “shield created
P.2d
Article 11
be
trigger
protections
does not
barriers”
topographical
the landowner’s
natural and “fails to demonstrate
cause the shield is
A.2d at 576.
Rogers, 161 Vt.
intent to exclude.”
of observation to
significance
place
of the
controlling
The
gost-Kirchojf
made clear
three other
jurisprudence
*4
2
—
— Montana,
York,
Washington
provide
Oregon
similar
and
New
Four other states
similarly
“open
Each of these states
protection for
fields” searches.
constitutional
is,
property,
occupier
post
that
evince an
requires
to
or fence the
the landowner or
apply.
protections
v.
protect privacy, for
to
See State
state constitutional
intent
to
(N.Y. 1992);
1328, 1338
(Mont. 1995);
Scott,
Bullock,
61, 76
People v.
593 N.E.2d
P.2d
(Or.
1988);
Johnson,
Dixson,
v.
879 P.2d
State
766 P.2d
(Wash.
1994).
App.
Ct.
Blow,
513, 602
(1991),
In
decisions. State v.
157Vt.
A.2d 552
informant,
transmitter,
wired
into
sent an
with a
the home
to
that
drug purchase.
defendant
make
We held
“warrantless
electronic
conducted in
home offends the
participant monitoring
11”
core values of Article
and
the evidence obtained
suppressed
the transmission. Id.
On the same we decided State v. 157Vt. 493-94, 963, 964-65(1991), in which that we held warrantless in a monitoring parking electronic conducted lot does not offend is speaker because the who overheard does not have a expectation reasonable in words uttered to the informant 21, 37, In outside home.3 State v. Bruyette, A.2d (1992), a majority this Brooks to a Court extended situation girlfriend where the wired informant was the defendant’s and who him spoke with in an automobile.
The obvious import these decisions that this defendant had no expectation reasonable in the area in which he his tended marijuana garden no steps because he took to exclude public. Thus, Chester, as we held in no Article 11 protections triggered were area, with respect to that were onto go free to his result, activity. and observe his As a defendant has no greater protection against unposted, electronic surveillance on his land open than would if such he surveillance were conducted a public place. conclusion, reaching reject defendant’s that argument progeny is, its are implied-consent rulings, that Kirchoff hold they that an owner or occupier of land has no reasonable expectation of privacy only when he has impliedly consented to the observation He involved. then argues proposition that it would be to improper imply consent to video surveillance. findWe nothing suggest implied that we used consent Kirchoff Indeed, determine 11 protections where Article it begin. would bend implied consent beyond recognition suggest that a landowner impliedly would consent to a trespass by law enforcement officers looking evidence the landowner’s criminal conduct. can Nor with, explained by person’s implied Brooks consent talk to, confess crimes a person wearing who is a transmitter so law personnel enforcement can if overhear the conversation. an Even 3Similarly, Oregon Supreme night system ruled that has use of a vision persons parked video camera to parking observe cars in a lot is not a search under Wacker, (Or. 1993). Oregon Constitution. See State v. 856 P.2d *5 decisions, we would underlie these rationale were to
implied-consent for consent a landowner’s imply that we can say basis to have no not for video surveillance. conduct but of criminal observation direct 11 protects Article left, then, proposition with the areWe a to observe technology of electronic use against inappropriate arguing occur. they may movements wherever person’s situa- distinguished the Rogers that in *6 in only standing an The video camera recorded what officer Vega- eye. would have observed with the naked position same 1997) (1st Co., 174, v. Puerto Rico Tel. 110 F.3d Cir. Rodriguez (“mere a accomplished by fact that the observation is video camera rather than and recorded on film rather than in . . . eye, the naked a inno- memory, transmogrify constitutionally does [observer’s] one”). Thus, it constitutionally cent act into a forbidden is a substitute for the traditional stake-out where a law enforcement officer conceals himself and waits to mаke the same observation as the video camera camera, if argues, anything, make. As the State was less would intrusive on the of the landowner because it had a narrow field, viewing employed only approached was when someone marijuana garden and did not even record sounds. do not see how We a protects against technological Article the use of device stake-out, accomplishes in-person the same result as a lawful It nothing certainly society more. does not advance free for the to judiciary require employment per- more law enforcement criminal properly sonnel enforce the laws. is in recognize required that a warrant most cases where law 11, in engage
enforcement officers a search covered see Savva, 774, (1991), 75, 85-86, but State v. 159Vt. 779-80 one is not where no Article 11 search is involved. Because we required 4Recognizing judicial response that the video has not been electronic surveillance consistent, working the American Bar Association Criminal Justice has been Section comprehensively appropriate a standard that would cover when such surveillance standard, procedural safeguards. suggests and establish The draft which often mínimums, beyond regulation proposes constitutional for the video surveillance only supervisory involved here that a law enforcement official determine that reasonably likely private activity not view a or condition and is survellance will Slobogin, Technologically- legitimate objective. law achieve enforcement See C. Physical Assisted Surveillance: The American Bar Association’s Tentative Draft Standards, (1997) (Draft 2-6.3(c)). 383, 10 Harv. J.L. & Tech. 458-59 Standard
hold that the video surveillance in this case did not trigger Article 11 protections, no warrant was required.
Although
acknowledging
“acted
in
reasonably
particular case” and that the “surveillance techniques employed by
police in this
reasonably
time,
case werе
limited
scope
duration,”
191,
168Vt. at
720 A.2d at
the dissent would hold that
acted unlawfully
they
because
engaged
“covert surveil-
lance” without a warrant. Id. at
Moreover,
argues
the dissent
that because indiscriminate video
surveillance has the
potential
‘“eliminate personal privacy as
nations,”’
understood modern
Western
On the facts of this there was no search covered Article 11 I of Chapter the Vermont Constitution. The Addison District Court correctly acted in refusing to suppress the videotape that showed defendant cultivating marijuana plants growing on his land.
Affirmed. 5The dissent has not determining stated what standard would be used in whether to note, however, issue a dispute warrant. We police there is no in this case that the had probable being Thus, cause to believe that a crime was committed. the Court’s review necessarily go particular must investigation to whether a form of can be used respect acknowledged to the crime. J.,
Johnson, dissenting. you whether were way knowing There was of course no ... It was even any given watched at moment. being all the time. . . . they everybody conceivable that watched — — live, did from habit that became instinct Youhad to live every you sound made was over- assumption heard, and, darkness, every movement scrutinized. except (1949). Orwell, chilling bleak and George Orwell’s George 198k not in pass, civilization has not come to at least post-modern vision up surreptitious, But to set country. allowing police agents this video surveillance of landowners on their own twenty-four-hour judicial without raises the of such a oversight specter Indeed, govern- the use of advances to enhance society. technological techniques expectations ment surveillance threatens to erode the granted open society. Today’s we take for in a free and — against decision undermines the lone bulwark such erosion Article ll’s warrant requirement. that, merely by leaving
New would think their land Vermonters they have left it it to the Orwellian intrusions unposted, open permitted today’s holding. posting Trespassing” under The of “No signs prerequisite bringing or the erection of fences be a trespass against successful action one who comes uninvited onto successfully challenging a brief walk-on search property, require but I do not understand our police, Constitution placement signs prevent govern- or barricades to round-the-clock by any technology mental surveillance and all means that modern can Nothing prior interpreting compels devise. our case law a requirement. such it is discussing jurisprudence, important clarify
Before is not about whether law enforcement officials appeal reasonably scope limited the of their covert surveillance activities in this case. Rather, ever, circumstances, are whether under any issues have to obtain a search warrant out or seeking gathering before on unposted private curtilage,1 criminal evidence land outside the and, particularly, more whether must obtain a warrant before physical 1The is an area outside the confines of a house that is afforded the same constitutional as the home itself because the activities in that area are *8 236, directly intimately Rogers, connected with the home. See State v. 161 Vt. (1993). 241-42, A.2d 638 572 in private property video surveillance on conducting clandestine criminal search of evidence. unposted private that Article 11 does not argues protect
The State land, impunity officials act with such and thus law enforcement State, surveillance cam- According police may areas. to the secrete for an any activity eras in trees to record and all human unlimited duration, they may up permanent posts, set manned observation devices, using technology such as infrared observation sophisticated view, In the Article 11 probable all without a warrant or cause. State’s or means no matter how intrusive the manner inapplicable by police. accepts startling observation The Court employed reservation, holding with little that because Article ll’s argument fields, does not extend to there is no basis to protection open preclude covertly videotaping private property citizens their curtilage hopes obtaining outside the of their homes evidence outdated, holding, of criminal conduct. In so resurrects an analysis rigidly formalistic that focuses on out mapping worthy of constitutional while modern search- ignoring law, privacy and-seizure which examines and societal expectations interests.
Because
Article 11 and
Fourth
both
Amendment to the United
protect
right
States Constitution
our
tо be free of unreasonable
government,
jurispru
searches and seizures
our Article
necessarily
dence
has been intertwined with federal
interpretations
Nevertheless,
rejected
the Fourth Amendment.
we have explicitly
Fourth Amendment
in the area of
jurisprudence
open fields.
State
v.
Kirchojf,
bright-line
we refused
followthe
rule set forth Oliver
States,
170, 179(1984),
that a
declaring
person may
United
U.S.
1, 10,
legitimately
privacy
open
never
demand
fields. See 156 Vt.
(1991)
(bright-line
“simply
test Oliver
fails to do
11”). Indeed,
justice
underlying
to values
Article
we labeled Olivers
rule that
is not
per
society
prepared
any
se
under
circumstances to
recognize as reasonable an
in lands
expectation
outside the
unsupported pronouncement”
“a bold and
that cannot be
11.Id. at
A.2d at
squared
emphasized
Article
994.We
that
duty
is to discover and
the core value of
protect
gave
life to Article 11 and that was discarded
Oliver. See id. at
Further,
recognized
A.2d at 992.
presumption
government
person’s
implicate
searches of a
land
Article
and thus that the
had the burden to demonstrate
its conduct did not violate
11.
A.2d at 996.
See id.
*9
the
States
time,
United
the
decision embraced
At the same
Kirchoff
States,
347
U.S.
in
389
decision Katz v. United
Supreme Court’s
physical
had held that a
(1967).
Katz,
Supreme
Before
the
Court
for a
necessary
area was
constitutionally protected
into a
trespass
of the Fourth Amend
meaning
within
to
occurred
the
“search”
have
(1928)
438,
States,
466
277 U.S.
v. United
ment. See Olmstead
of Fourth Amendment
meaning
“search” within
(wiretapping is not
is no
things and there
messages are not material
telephone
because
area);
v.
Hester
constitutionally protected
actual
invasion
physical
(1924)
States,
by
accorded
protection
59
(special
265
United
U.S.
houses,
and
papers,
in
people
persons,
Amendment to
their
Fourth
fields).
the
open
to
But
Court abandoned
does not extend
effects
of the Federal Bureau
Katz,
agents
in
a case in which
notion
suspect’s
by placing
conversations
bugged
had
Investigation
booth,
area
telephone
an
outside
listening
public
device on the
constitutionally protected
had not been considered
historically
stated that “the correct
intrusion. The
government
Court
necessarily promoted
not
problems is
solution of Fourth Amendment
area,”’ which
‘constitutionally protected
phrase
incantation of the
by
protects
the fact that “the Fourth Amendment
attention from
deflects
351;
Zaccaro,
Katz,
at
see State v.
places.”
not
389 U.S.
people,
(1990) (like
Amendment,
Fourth
154 Vt.
Court,
According
the
protects
places).
Article 11
people,
words,
suspect’s
electronically listening
recording
to and
he
relied. See
privacy
justifiably
which
government
upon
violated
Katz,
After every Fourth Amendment served as a talismanic solution longer (3d LaFave, 2.4(a), § ed. See Search and Seizure problem. 1W. 1996). Instead, nature of government’s courts had examine the activities, interests, societal and then dеtermine whether balance would government go unregulated conduct allowing challenged in a privacy level of and unacceptably expected diminish the freedom this accepted is the Katz that open society. free and This view of Morris, 111, 115-16, in 165Vt. reaffirmed State v. Kirchoff (1996)(Vermonters expectation A.2d have reasonable curbside for garbage bags in contents of left at secured collection disposal). address the facts did not Court to require
The in Kirchoff acting Kirchoff, police officers issues involved in the instant case. land, mari- confirmed that tip posted on a walked onto defendant’s juana property, on the and then obtained a plants growing were 990; 3,587 Rogers, warrant. 156Vt. at A.2d see also (1993) 236, 239, A.2d (upholding search which onto curtilage, walked outside observed recently marijuana harvested within or patch curtilage, near warrant). all, did not obtained search The case involve surveillance at understood, as commonly that term is let videо alone covert surveil- days. lance over a held that period We landowners claim fields their land or open posting otherwise demonstrat- ing 10,587 an Kirchoff, intent to exclude others. atVt. A.2d at 994. however, did not suggest, general that the principles enunciated — the case that Article ll’s extends beyond home, of the that government person’s searches of a land — presumptively implicate Article 11 were limited to the facts of the case. *10 contrary, To the we suggested that the nature of the Kirchoff by relevant,
surveillance activities
conducted
is a
indeed
critical, factor in determining
implicated.
whether Article 11 is
—
construing
term
expectation
the
“reasonable
of privacy”
—
benchmark for determining whether a “search” has occurred we
stated that
‘“people
because
confine
will
their ‘intimate activities’ to
‘government
narrower areas as
interference or
grows
surveillance’
pervasive
more
and
.
intrusive
. .
rights
constitutional
should not
succumb
waning expectations
or fluctuations in the degree of
government intrusion ‘society’ willing
Id.
condone.”
Moreover,
A.2d at 993.
that
emphasized
rights
constitutional
do not
with
diminish
technological advances that enable the govern-
12-13,
ment to further encroach on our privacy. See id. at
Ironically, share, I but then a view public places, of surveillance covert video legitimate expectations have acknowledge persons refuses I property. own on their intrusive surveillance from such privacy respect unposted with even ownership possession, believe that home, certain persons with provide of the outside the land Taketa, F.2d v. States privacy. See United expectations 1991) factors courts (9th is one of several interest (property Cir. Thomas, 642 expectations privacy); in assessing consider 1994) (Ind. while (ownership possession, App. Ct. N.E.2d one assessing whether determinative, relevant factors remain generally gives of real estate Ownership privacy). has expectation as сivil property, use of the evidenced right one the to exclusive 4911; § 12 V.S.A. V.S.A. against trespass. criminal laws Trespassing” “No display § of whether we Surely, regardless 3705. barriers, we have with expectation or erect signs free give government is not so low as to respect to our own land surveillance, how intrusive in no matter reign any type to conduct nature, judicial oversight. without that because hikers hunters the Court believes
Apparently, land, of such land cannot the owners pass through unposted private surveillance reasonably government from clandestine expect rejected similar recently on their have property. of their activities Moms, 165 in a different context. See reasoning garbage tampered will be (notwithstanding possibility at 96 that their people reasonably expect by scavengers snoops, inter garbage being with other without commingled trash will be of trash for disposal and examined Just as the cepted police). no concluding persons cannоt the basis for pickup curbside *11 in the contents of the justified expectation privacy have a of longer 118, 95, one’s land trash, leaving at 680 A.2d at see id. cannot be the pursuits for the benefit of others’ recreational unposted from right privacy that one has waived all concluding basis for land, v. on that see United States government intrusive surveillance (2d 1982) (Newman, J., (“open Lace, concurring) 669 F.2d 55 Cir. police surveillance open any are not private property fields” on duration, conduct, constancy of as to choose to unrestricted officers observed, observation, viewing); of enhanced location or means 1985) (fact (Cal. Cook, persons 710 P.2d 304 People booths, conducting public telephone or activities discarding trash or to enter rooms, police rooms others might expect or hotel hospital 188
area or
hear
not necessarily
see or
activities within area does
preclude
reasonable claims of
from intensive
spying);
Gutterman,
M.
A
Models
Formulation
the Value Means
of
of
Fourth
in the
Enhanced
Age Technologically
Amendment
Surveil-
of
(1988) (citizens
lance,
Syracuse
39
L.
may expect
Rev.
682-83
surveillance).
casual public
consenting
observation without
to police
sunbathing
Someone
the nude
area on private
secluded
no
if
property may
complaint
have
basis for
a passerby,
observed
but it is not reasonable to
that person
expect
assume that
would
to be
Lace,
surreptitiously videotaped by government agents.
See
F.2d
J.,
(Newman,
at 57
Article 11
concurring).
require
does not
us to
remain inside behind drawn
to feel
being
shades
assured of
free from
Cook,
government
around-the-clock
surveillance.
P.2d at 305
(if
permitted
Fourth Amendment
government inspection by any and
forestall,
all means
society
failed to
persons
would be
(“Sure
state); Gutterman,
garrison
transformed into
supra,
686-87
ly, one
to expect
has reason
that he need not hide himself in a
home,
soundproof
drawn,
quiet
the curtains
to enjoy
remain
Constitution.”).
the precious liberties derived
from
I agree that the nature of the area in which a
search was
conducted remains a factor in determining whether
Article
is
implicated, and
one
has a
generally
expectation
reduced
of
privacy as to unposted private property
outside
of
however,
home. I do
agree,
that the location of the investigating
factor,
officer or the search is necessarily
dispositive
precluding
any
consideration
nature
manner of the search. See
(1st
Co.,
Vega-Rodriquez v. Puerto Rico
Tel.
F.3d
Cir.
1997) (precise
expectation
extent
turns
often
on nature
intrusion);
Domitrovich,
intended
United States v.
852 F. Supp.
(E.D.
(9th
1995) (in
1994),
Wash.
57 F.3d
aff’d,
Cir.
reasonable,
determining
expectation
whether
of privacy is
no single
factor,
Cook,
including place,
dispositive);
The Court minimizes
case,
objective
that
could have
the same
noting
police
accomplished
stake-out,
of an around-the-clock traditional
which would
by means
given
more intrusive. This is a moot
the Court’s
point,
have been even
on
police
11 offers no
activities
holding
not,
if it
for
curtilage.
outside the
But even
were
private property
I do not find it persuasive.
several reasons
First, I
with
necessarily agree
presumption
do not
the Court’s
conduct a
police
twenty-four-hour
would not need a warrant
Power, Technology
traditional stakeout on
See R.
private property.
Proposed
and the Fourth Amendment: A
Formulation
Visual
(1989) (wаrrant
Searches,
Criminology
80 J.
L. &
68-69
Crim.
observation,
required
should not be
for mere
which constitutes useful
checking
or
verifying tip
suspicious
and discrete method
otherwise
search would
behavior
determine whether more intrusive
however,
required
investiga
warrant should be
where
appropriate;
surveillance). If
tory
through
evolves into collection of evidence
stage
intrusive,
activities,
when con
sufficiently
covert surveillance
even
curtilage,
ducted without electronic enhancement on land outside the
may invade
and thus
expectations
require
reasonable
paramilitary-like operations
private property
warrant.
Certainly,
Lace,
invade
Second, cheaper it is much easier and to maintain covert surveil- by rotating lance a small video camera in a tree than by secreting it People shifts of officers. know that limited resources make highly unlikely would be willing able watch them twenty-four day. hours a The Court it states that does not advance the of a goals society free for the judiciary require the employment of more law personnel But, enforcement to enforce the criminal laws. *13 view, my far the more important point is that it does not advance goals of a free society government to allow the spy on its citizens on their private property, without probable or a cause warrant.
Third, video surveillance can be more intrusive than observation by eye. Blow, 513, 520, the naked 552, Cf. State v. 157 Vt. 602 A.2d 556 (1991) (citing Zaccaro, v. 85-86, 1258, State 154 atVt. 574 A.2d at underscore distinction between evidence based on electronic record ing and of testimony same event only based on senses and memory). As Judge Posner recognized, covert video surveillance is еxceedingly intrusive, inherently indiscriminate, and so susceptible to abuse that it has the potential to personal “eliminate privacy as understood in modern Torres, Western nations.” United States v. 751 F.2d 882 (7th 1984). Cir. Other courts addressing agree. the issue See United Mesa-Rincon, (10th States v. 1990) (because 911 F.2d 1443 Cir. covert video surveillance is extraordinarily intrusive method of searching, there must higher showing it); of necessity justify Bonnell, (Haw. State v. 1265, 1277 1993) 856 P.2d (agreeing with Judge Posner in Torres that video surveillance provokes immediate visceral reaction and specter state); raises of Thomas, Orwellian 642 N.E.2d (video at 245 surveillance has been recognized as one of most intrusive forms of searches performed by government, regardless of type searched); of premises People Teicher, v. 422 N.E.2d 513 (N.Y. 1981) (video intrusive). surveillance is inherently highly
Indeed, courts and commentators have concluded that because
videotaping captures
continuous,
inescapable image of a person’s
movement,
every
whiсh creates a record for minute inspection by
time,
others at a later
the unblinking eye of the video camera is even
more intrusive than wiretapping or bugging.
Torres,
See
751 F.2d at
(video
885
surveillance is even more invasive of privacy than wiretap
ping
bugging, just
strip
as
search is more invasive than pat-down
search); In re Application Order Authorizing Interception Oral
Surveillance,
Communications & Videotape
(D.
513 F. Supp.
1980) (most
Mass.
observers would regard
surveillance,
video
stand
alone,
ing
as even more intrusive than
interception
oral communi
cations);
State,
(Md.
1988) (“It
Ricks v.
537 A.2d
cannot be
doubted . . . that video surveillance is more intrusive than audio
surveillance . . .
video surveillance is
more
certainly
Covert
con-
participant monitoring
intrusive than electronic
face-to-face
versations,
another,
targeted person, by communicating
where the
has less reason to
that the communication will remain
expect
private.
Comment,
Electronic Visual Surveillanсe and the Fourth
Brother?,
L.Q.
The Arrival
Big
Hastings
Amendment:
Const.
261,294 (1976);
Brooks,
490, 494,
cf.
(1991) (allowing
participant monitoring
warrantless electronic
lot).
this,
conversations in public parking
Acknowledging
face-to-face
permitted government
only
most courts have
video surveillance
when
conducted under the
rigorous requirements established
audio
electronic surveillance Title III of the Omnibus
Crime Control
1968,18
2510-2521,2
§§
Safe Streets Act of
which was enacted
U.S.C.
Biasucci,
following
E.g.,
decision Katz.
United States v.
(2d
1986) (Title
standards,
F.2d
III
together
Cir.
with more
constitutional
general
requirements, form sufficient outline of show-
ing government must make
obtaining
before
warrant
for video
(Title
surveillance); Torres, 751 F.2d at
III provides
measure of
*14
government’s constitutional
in
obligation
seeking warrant for video
surveillance);
Power,
cases,
supra,
(citing
see
at 106
and noting that
did not
Congress
regulate video surveillance under
III in
Title
technology
because
was not sufficiently advanced at that time for law
success).
enforcement officials to usе technique
any degree
of
Here, the Court avoids confronting the intrusive nature of video
by
surveillance
out
pointing
police
that the
acted
in
reasonably
this
I
particular
agree
case.
that the
techniques
surveillance
employed
police in this
time,
case were
reasonably limited
scope,
Nevertheless,
duration.
the Court’s reliance on these self-imposed
and nonbinding limitations is inconsistent
analysis
with its own
purposes
the
behind
requirement.
the warrant
today
The Court holds
that no Article 11 search was involved because Article 11 does not
apply to unposted private property
Thus,
outside the curtilage.
under
analysis,
Court’s own
the extent of the
of
intrusiveness
the search
III,
Under Title
law enforcement officials
not conduct audio electronic surveil
person
they
warrant,
request
judicial
lance of a
unless
a search
and a
officer determines
(1)
probable
that
person
there is
cause to
conclude
committed
one
(2)
III,
concerning
offenses enumerated in Title
communications
the offense will be
(3)
through interception,
obtained
the facilities from which the communications are to
(4)
intercepted
being
offense,
be
are
used
connection with the
commission
investigative techniques
failed,
succeed,
appear unlikely
normal
have
or would be too
2518(3).
dangerous.
imposes
§
See 18 U.S.C.
Title III also
severe restrictions on the
2518(4).
scope
permitting
§
of warrants
the use of electronic surveillance. See id.
hand,
imply
means to
If,
the Court
on the other
irrelevant.
simply
to be considered
conduct is a factor
police
that the intrusiveness
occurred,
lands
unposted private
then
a search
determining whether
case, in each
11. If that is the
the reach of Article
are not outside
have to determine whether
officers would
instance law enforcement
intrusive
sufficiently
was
private property
their video surveillance
very
This is the
proceeding.
a warrant before
obtaining
require
requiring
would result from
that the
warns
uncertainty
type
and surveillance.
observation
distinguish
officers to
between
police
on the
reliance
disturbing aspect of the Court’s
But the most
is its
misunder-
implicit
this case
limited nature of the surveillance
is not
requirement
The warrant
standing
requirement.
of the warrant
conduct
constitutionality
police
for
review of the
hindsight
a means
having
eventually
prosecuted
arrested
toward individuals
oversight
would-be
requires judicial
Article 11
violated the law.
before
occur;
criminal
challenges by
after-the-fact
invasions of
fully
purpose
protecting
serve Article ll’s
defendants do not
Savva, 159
citizens. See State v.
everyone,
law-abiding
particularly
(1991).
assures
75, 86,
requirement
The warrant
officers,
than
officers
rather
judicial
that neutral and detached
criminal
will evaluate
suspects,
is to
primary duty
apprehend
whose
judicial
Involving
id.
proposed
the reasonableness of
searches. See
chances that
only
occur not
reduсes the
officer before searches
of those
the evaluation of the reasonableness
hindsight will color
searches,
against
searches
law-
prevents
but also
ill-considered
searches,
ones,
fruitful
It is these latter
abiding citizens.
only by
can
prevented
not reach criminal court and thus
do
86-87,
requirement.
to Article ll’s warrant
See id.
adherence
judicial
agrees
if
officer
with the
A.2d at 780. Even
search,
the fact that the decision was
given
cause exists for
probable
orderly process
that an
public
made
a neutral officer reassures
at 780. extreme, but merely labeling
The Court characterizes this view as it it I that say as such does not make so. dare most Vermonters would if two diverge following positions from the Court asked which is the one: the that our offers no holding extreme Court’s Constitution government from covert electronic surveillance homes, on private property citizens their outside the their myself or the view of Morse and must obtain a Justice judicial from a conducting warrant neutral officer before such activ- I with the thаt this must my understanding ities. arrive view balance interest in and freedom from society’s privacy governmental society’s intrusions with valid interest in effective law en- equally I do not requiring forcement. believe warrants clandestine in their videotaping private property hamper police would effort Indeed, above, investigate activity. criminal as I stated it is suspected clear to me that the activities this case could have been pursuant conducted to lawful warrant. sure,
To as a constitutional is an elusive precept concept. Nevertheless, intuitively necessary all of us know society, in a but also to enhance only preserve freedom democratic *16 Gutterman, supra, mental, well-being. physical, spiritual our ability to be developing an role Privacy plays important at 681. Id. trusting and to form bonds with others. spontaneous creative and might that our activities be under surveillance Knowing freedom, today’s I security, and trust. fear destroys our sense and trust that only security can undermine the sense decision society. of a free and open hallmark Morse in this dissent. joins I am authorized to state that Justice v. Lawrence Lamb State of Vermont V.
[720 1101] A.2d No. 96-252 Amestoy, C.J., Dooley, Morse, Skoglund, Johnson and JJ. Present:
Opinion July Filed County Attorney, P. Rutland State’s and Lamar Mongeon, James Enzor, Rutland, Deputy Attorney, Plaintiff-Appellee. State’s notes defendant position, technology, see is aided officer’s observation tion where the us to find that use urges at at Rogers, 161 Vt. 11 search. an Article technology alone creates of video in that because the observation help not defendant Rogers does — surrounding the area protected case was into of a protected that video surveillance agree home. We landowner’s not consider we need although may trigger protections area Article Mesa-Rincon, States appeal. in this See United protections those 1990) (because (10th expecta of reasonable F.2d Cir. lаw enforcement officers premises, business tion of therein, meeting surveillance judicial for video approval must obtain Safe III Crime Control & of Title of Omnibus modified standards 1993) (Haw. 1265, 1276 Bonnell, 1968); 856 P.2d Act of State v. Streets area, (because covert video sur protected room is employee break Constitution). is search under Hawaii room employees veillance find, that can any other case we suggestion Rogers, There is no place in a public to aid observation of activities technology use of where, here, has observed person 11 concerns as raises Article of his activities. no to avoid observation steps taken that might the circumstances try generally not define We need Nor do we of video surveillance. regulation trigger In this use of video surveillance. dangers widespread minimize the however, in a narrow set of case, surveillance was used video circumstances, crime already had determined where committed, in-person a substitute for surveil- only as being was lance. indis- Thus, surveillance is aimed this is not a case where video many activities of captures lawful criminately public places what crime capture crime or in the that it will deter hope citizens Comment, You’re on Because generally occur. Scowl might See Surveillance, 31 L. Rev. Val. U. Privacy and Video Candid Camera: Granholm, on Public Streets: (1997); Surveillance J. M. Video Searches, Mercy 64 Det. Invisible Citizen U. Constitutionality The (1987). camera it situation where the video Nor was L. Rev. 687 eye, to the naked see otherwise unavailable enhanced the observation (Wash. 1994) (employment of thermal 867 P.2d Young, State v. search, it information gathered because part device was imaging by naked-eye gathered home that could about defendant’s (d) (3d LaFave, 2.2(c), § observation); ed. Search Seizure W 1996), be unable to see because person what a would or recorded Bonnell, 856 E2d point. could not be at the observation person any in all or required that a warrant is suggest 1276.4 do not the limited only emphasize distinguish these instances. We these question before us.