*1 course, is, It making the statement.” actually victim hear the statement, rather written have someone read a “ludicrous” to equally doubt, jury will be No jury perusal. it its giving than to the statement. if it hears sees judge reliability to position a better 803(5), this “ludicrous” restric- adopted Following Rule Federal is evidence of debatable recorded Past recollection tion for a reason. it. Unfor- placed excessive reliance did not want and we quality, The recorded opposite in the direction. going this tunately, decision case, majority and the virtually prosecution’s all of the statement disagreements our jury. it to before the As get the full force of wants demonstrate, has no concerns majority first issues on the two on such evidence, built of this and a restriction quality about the ludicrous. concerns looks to reverse also I would have voted preserved,
If this had been issue substantially not jury’s that the verdict was say because we cannot Ray, States See United tape. swayed by playing improper 1985) (8th (conviction to appear for failure Cir. 768 F.2d past recollection was submit transcript constituting where reversed notice only evidence of defendant’s jury ted to and constituted best, which, emphasize I evidence appear). raise now test impossible marginally principles, under evidence reliable cross-examination, centerpiece prosecu became through way jury damaging in most put tion’s case and was front trial meet It firm conclusion that this did possible. my adds us to affirm its result. minimum of fairness that allows standards I dissent. Vermont v. Richard Morris
State of 90]
[680 A.2d No. 94-299 C.J., Gibson, Dooley, Johnson, Allen, Morse JJ. Present:
Opinion Filed March *3 Carroll, General, R. Amestoy, Attorney and Karen Jeffrey L. General, Plaintiff-Appellee. for Attorney Montpelier, Assistant Hinton, General, Appellate Henry Defender Appel, Robert Defender, Defendant-Appellant. for Montpelier,
Johnson, Today, hold that the J. Vermont Constitution protects persons police from warrantless searches into the contents bags secured left at opaque trash curbside collection and view, disposal. In our have an objectively reasonable containers, privacy interest in the contents of police such must obtain case, a warrant before In searching through them. this absent the trash, evidence obtained the unlawful search of defendant’s permitting supported warrant search of his house was cause; probable accordingly, we reverse defendant’s conviction for possession marijuana.
I. Sometime before March a confidential informant told an officer Brattleboro Police Department that defendant was marijuana selling from his apartment from the parking lot of 1,1993, grocery certain store. On March a regularly scheduled trash collection day, police two officers apartment went to the building where defendant resided and seized the five or six opaque bags that had been set out for collection near the about curb five or six feet from the building. From the exterior of the there no bags, was toway identify which tenant had deposited which All bags. were transported to station and searched without a warrant. Inside bags, defendant’s which were identified through discarded mail, pieces of marijuana found seeds and stems and baggies marijuana. flakes of containing trash,
Based on the items found in the supplied by information informant, the confidential an neighbor’s report unidentified defendant had many received during different visitors the past month, police sought obtained warrant to search defend- ant’s residence. four Approximately marijuana found, ounces of were and defendant charged possession was with marijuana. Defendant moved suppress all evidence seized from apartment his on the ground that the search warrant was defective because it was based primarily on evidence discovered during illegal warrantless search *4 his garbage. The district court denied to defendant’s motion suppress, ruling defendant had no of privacy in his discarded garbage.
On appeal, following his conviction based a upon plea conditional contest, no argues defendant that the Vermont prohibits Constitution opaque warrantless search of bags placed trash at curbside for collection on a regularly day. scheduled trash In pick-up response,
115
prohibit
not
Vermont
does
State
that the
Constitution
contends
if
trash,
it did and
and that even
warrantless search of curbside
suppressed, the other
was
evidence found
defendant’s
is sufficient to
and affidavit
application
in the warrant
information
apartment.
a
cause to search defendant’s
finding
probable
support
II.
of privacy
and
the core value
protect
Our task is to discover
I,
State
11 of the Vermont Constitution.1
Chapter Article
by
embraced
(1991);
Kirchoff,
v.
156
Savva,
75, 85, 616A.2d
159Vt.
(1991).
“from
6-7,
988,
1,
protects persons
A.2d
992
Article 11
Vt.
587
unreasonable,
into affairs which
intrusions
governmental
warrantless
Zaccaro,
83, 91, 574
154
A.2d
State v.
Vt.
keep private.”
choose to
(1990).
is the
protection
and
line
The first
foremost
before
judicial approval
warrant
advance
requirement. Requiring
represents a balance which
subjecting
to
searches
persons
the burdens on law enforce
privacy
outweighs
interest
individual’s
Savva,
85-86,
at 780.
159Vt. at
obtaining
ment
a warrant.
circumstances,
Thus,
decision to
exceptional
government’s
absent
judicial officer
must be made
a neutral
person’s privacy
by
invade a
A.2d
779.
police.
than the
Id. at
at
rather
course,
or activities that
“protect
Of
Article 11 does not
areas
Kirchoff,
constraints, the amount of and privacy remaining freedom to citizens compass would be diminished to a inconsistent with the of aims a free LaFave, 2.6(c), § open society.”’ and W and Seizure Search at 592 1996) (3d Amsterdam, ed. (quoting Perspectives A. on the Fourth Amendment, (1974)). 58 Minn. L. Rev. case,
Given the facts of this
believe
defendant manifested a
interest recognized
society, and we conclude that uncon
strained
government inspection
people’s
of
trash
not consistent
society.
with a free and
As
open
Justice Brennan stated in his dissent
Greenwood,
(1988),
v.
Because every activity “almost human ultimately itself in manifests waste it is products,” understandable that would want to maintain State, the contents of their refuse. Smith v. (Alaska 1973). P.2d An individual’s trash will often reveal intimate details of that person’s financial obligations, medical con cerns, personal relationships, political associations, beliefs, religious and numerous other confidential Tanaka, matters. See (Haw. 1985) (“Business P.2d 1276-77 records, bills, correspon dence, magazines, records, tax and other telltale refuse can reveal activities, much a person’s associations, about beliefs.”); see also (Cal. 1969) People Edwards, 713, 718 (half 458 P.2d truths leading to rumor gossip may readily from attempt flow to “read” contents of trash). another’s As Justice cogently Brennan so stated his Greenwood dissent: trash,
A bedroom, search of like search of can relate health, intimate details about sexual practices, personal hygiene. rifling Like through desk drawers or intercepting calls, phone rummaging through trash can divulge status, target’s financial and professional political affiliations inclinations, private thoughts, personal relationships, that a sealed cannot be doubted interests. It and romantic activity “intimate telling evidence bag harbors and the of a man’s home ‘sanctity associated with life,”’ designed Amendment the Fourth which privacies to protect. v. United (quoting Oliver J., (Brennan, dissenting)
486 U.S. at (1984)). States, people’s the intimate details Given 466 U.S. refuse, through *6 searching their may by that be revealed lives keeping private in a reasonable interest persons that have conclude Hempele, State containers. See of their sealed trash the contents (N.J. 1990) (undoubtedly, most would people through garbage, perusing their person sifting to see another upset statements, their mail, looking at reading their bank their discarded bottles, what receipts and see checking empty pharmaceutical rent). videotapes merely
Further, people is not lost because that interest garbage in closed customary depositing of their practice the follow First, place disposal. for collection and at curbside containers closed, bags an intent trash manifests opaque ment of in in subjected by public to examination bags not be contents bags point opaque in State’s particular. or the The general type bag common of they are the most merely are used prefer the that most would only point people reinforces our available commingled trash until it is private of their type bag keep that will Note, identity. and loses its See with other trash California Exploitation A Proposed Compromise Greenwood: of (1990) Expectation Privacy, Buff. L. Rev. Objective of is result of availability bags of trash (nearly opaque exclusive opaque for There is privacy). consumers’ desire any is in closed container whose just as there other bags trash Savva, 89-90, 616 at A.2d at view. plain contents are not in See rejected; interest exists (“unworthy container” doctrine worth). containers, of their regardless in closed for collection and Second, by trash at curbside placing govern- unregulated an intent to allow one does evince disposal, As that one chooses to discard. private into materials mental intrusion matter, necessary of for regulated garbage collection a practical today society. people Most functioning complex of our proper for collection place little but to their curbside choice Note, supra, (tracing haulers. 662-63 or public is often unrea- practices). trash collection It of American evolution sonably privately burdensome or unlawful to burn or bury unwanted refuse2; thus, rely people necessarily upon governmental must or systems anonymous disposal commercial trash collection to achieve of State, (Ind. 1994) (Dickson, garbage. Moran v. J., 644 N.E.2d (in today’s society, and concurring dissenting) longer is no reason or, situations, or many bury able lawful burn unwanted waste (state privately); Hempele, municipal regulations at 808 privately prevent people burning burying garbage). The disposal of opaque garbage bags customary way by placing pickup them at curbside for cannot be the for concluding basis person longer no justified has of retaining privacy in the contents bags.3 those 2 Vermont, quality regulations In both state air and solid waste restrict residents’ Rules, disposal options Agency Resources, for of trash. 7 of of Code Vermont Natural 5-201(1)(no person engage open except Air Pollution burning Control Division shall 5-202) 5-202(7)(d) conformity may (permit burning with open be obtained for id., disposal); combustible materials for which there is other no feasible method of Solid 6-302(a) Waste, (prohibiting open wood) burning of except waste solid untreated 6-302(c) disposal (prohibiting facility). of solid waste outside certified Town dispose Brattleboro makes it unlawful private property solid waste on property except receptacle without the owner’s consent or on their designated own in a disposal by Brattleboro, pickup. for collection and curbside Town See Ordinance Disposal Regulating 20,1993), VII, (April the Collection and of Solid Waste (2). prohibits burning open The Town of also Brattleboro solid waste *7 incineration, except open or burning by fire permit. for the of natural wood Id. Article IX. 3 persons keep private The dissent states who papers may that want to their discarded garbage either to a placed move residence where curtilage can be outside within the or papers dump dispose the take suggested option of them themselves. The first assumption makes the incredible that single-family all could a afford home curtilage protect privacy with sufficient to majority their interests. Like the in Greenwood, (1988), v. 486 35 U.S. assumes dissent that the reasonable California expectation of garbage placed ness one’s of decreases as the farther from the home, curtilage or of the as of using receptacle the number residents a communal reasoning, persons living single-family increases. Under this dwellings in higher have a expectation garbage of in left pickup apartment next to the house than do leaving dwellers trash in a receptacle communal curbside because their refuse is in a scavengers snoops. location to Hedrick, less accessible See 922 United States v. (7th 1991) (proper P.2d readily 400 Cir. garbage focus under Greenwood is whether was Whotte, public); People (Mich. accessible to v. App. 317 N.W.2d Ct. 1982) (at end of single-family one continuum is trash dwelling, located close to and at premises other end of continuum is multiple-unit dwelling). trash located off of While probably greater garbage most a using there is risk that the of those curbside service, particularly apartment using receptacles, dwellers communal will be disturbed by meddlers, hardly effect, concluding, unwanted this is a sound reason for subject scrutiny anyone’s have carte to blanche to detailed trash that has been placed conveniently pickup. Many people in such apartments a location for live they because cannot Making protection afford to own their own homes. of Article be tam garbage will that their Notwithstanding possibility that, reasonably expect snoops, people or scavengers with pered customary accepted in the on the curb placed refuse is once their landfill, commingled with collected, manner, taken to it will be police. and examined intercepted being without garbage other this state require not the residents does The Vermont Constitution keep to government means extraordinary unlawful to employ 1 W. private effects.4 Cf. discarded examining from authorities (“It Katz 2.6(c), perversion a LaFave, § [389 at 593 would be supra, (1967)] Amendment] extending [Fourth it interpret to as U.S. 347 keep to extraordinary to means to who resort only those protection out the hands their lives regarding personal information (Conn. 1993) J., (Katz, DeFusco, 746, 757 v. police.”); (“How residents, feel the need us, Connecticut many dissenting) init order personal discarding information before destroy to shred or confidentiality?”). its protect to unregulated police from protection should not be denied
Persons discarding rather merely they are intrusion into their affairs Greenwood, 486 U.S. at than effects. Cf. transporting private their (Brennan, J., trash at Although person placing a curbside dissenting). a undoubtedly relinquishes proprietary disposal for collection and trash, person that the necessarily not follow does 576 A.2d at Hempele, a it. See intends to renounce (far items, their in discarded relinquishing expectation from their things throw out order to maintain people sometimes “A exist as to items justified expectation privacy may privacy). hinge person’s unacceptable. contingent “[A] on factors that on a financial status scavenging through his or her resident’s that the mil not be same, split-level . in a ranch home in the . . remains the whether the dweller resides State, city.” in a in the 510 P.2d suburbs or crowded tenement inner Smith 1973) (Alaska J., Smith, (Rabinowitz, dissenting); People Rptr. C. see Cal. 1975) (while (Ct. receptacles undoubtedly recognize App. that other users of communal might garbage, have no more reason than tenants discover contents of officers), by police single-family expect vacated residents their trash to be examined (Cal. 1976). by 553 P.2d ignores elderly suggested option the difficulties that the The dissent’s second also Further, dump papers. might making trip infirm discard have state, this assuming option possible in all communities in fact such us, people known to of this state should not in the record or otherwise contained extraordinary prevented to assure authorities will take measures *8 the searching through private papers choose to discard in normal and effects customary society. manner of our modern 4 shredding protection progeny, papers not even will ensure Under Greenwood its (1st Scott, 927, v. F.2d 930 government’s 975 Cir. from the reach. See United States trash). 1992) (no placed in privacy in documents interest shredded 120 sense, just in the property
which have been abandoned
law
as it is
may
true that
such
exist on
even
expectation
no
some occasions
though
LaFave,
not
1
property
supra,
has
been abandoned.” W
2.6(c),
Thus,
§
at
not
question
person
591-92.
whether the
person
itself
rather
abandoned
but
whether
relin-
Kerr,
expectation
of
in
quished
privacy
garbage.
See State v.
(1983) (in
597, 609,
670,
cases,
Vt.
470 A.2d
search or seizure
expectation
relates to
of
in
privacy
property
abandonment
rather
than to
itself in sense of law of
property
personal property). Our focus
interest,
objective
must be on the
privacy
reasonableness of one’s
not
interest, in
proprietary
garbage.
one’s
curbside
11,
prior
This focus
consistent with our
case law on
in
emphasized
which we have
that the core value of
privacy is
11,
quintessence Article
that we must determine
such cases
expectation
whether those
searched have a
reasonable
Savva,
privacy
possessions
upon.
the affairs or
intruded
See
159Vt.
87-88,
at
A.2d at
(recognizing separate
and higher expectation
privacy
transport
for containers used to
than
personal possessions
objects
Blow,
exposed
interior);
for
to
within
plain view
automobile’s
517-19,
Nor State
148 Vt.
121
Illinois,
Here, we respondents conclude that exposed gar bage public sufficiently defeat their claim to Fourth protection. Amendment It knowledge is common plastic garbage bags left or at the side of a public street are children, readily animals, accessible to scavengers, snoops, and other of the public. Krivda, members See [People *10 1262, (Cal. 1971)]. Moreover, P.2d 1269 respondents placed their refuse at the for express curb purpose conveying of to party, collector, a third the trash might who himself have through respondents’ others, sorted permitted trash or police, such as the Accordingly, do so. having deposited their “in garbage an area particularly suited public for and, inspection in a speaking, manner of public consumption, express for the purpose of having strangers it,” take United Reicherter, (CA3 397, States v. 1981), 647 F.2d 399 respon dents could have had no expectation reasonable the inculpatory items that discarded.
Furthermore,
held,
as
police
we have
cannot reason-
ably be expected to avert
eyes
from evidence of
criminal activity that could have
been
observed
member of
public. Hence,
a person
“[w]hat
knowingly
exposes to the public,
office,
even in his own home or
is not
subject
of Fourth
protection.”
Amendment
Katz v. United
States,
(1967)].
[389 U.S.
351
Greenwood,
(footnotes omitted).
We as have Hawaii, Jersey, New and Washington courts, state supreme to follow this analysis. abbreviated People Krivda, (Cal. See 1971) 486 P.2d 1268-69 (disallowing trash), warrantless search of curbside vacated and remanded on other grounds by (1972); Tanaka, 409 U.S. at P.2d 1276-77 (accord); Hempele, (accord); at Boland, 804-07 State v. (Wash. 1990) (accord). P.2d Broken down into compo its nent parts, analysis Greenwood states that there no is objectively reasonable expectation of privacy in the contents opaque garbage bags placed (1) at animals, curbside for collection because scavengers (2) them; and snoops might get at the bags are relinquished to third them; police cannot be with they please as may do who parties public. to the is exposed that which to ignore expected — first one is the the Court relied primary The rationale may children, snoops get scavengers, raccoons, dogs, no reasonable bags, people into curbside is the government therefore bags, contents of not find this do or warrant. We reason them without free search preserve private, person What a “seeks persuasive. rationale constitutionally may be public, area accessible even (1967) (em States, 351-52 389 U.S. Katz v. United protected.” entail added). may for collection leaving garbage fact that phasis constitutionally government “hardly means risks Amsterdam, at 406. supra, to those risks.” adding unconstrained susceptible one’s possibility that may accept the One time yet at the same scavengers, and by raccoons or other invasion exam systematically not government will reasonably expect of criminal hopes finding evidence bags ine one’s trash (there constitutionally at Hempele, conduct. See scavenger or trash risk that assuming difference between significant assuming objects for of interest will search trash collector for incrim of garbage scrutinize contents risk that officer will (Or. materials); Stanton, App. P.2d Ct. inating 1971) against children backyard (person may expect privacy children, time be yet same looking tardy play parents neighbor against dragnet search to expect privacy entitled *11 State v. grounds by on unrelated backyards), part hood overruled in (while (Or. 1981);Boland, Walle, 800 P.2dat 1116 App. 377 630P.2d Ct. children, snoops will sift scavengers, or may expect defendants that find it reasonable to persons would through garbage, average their being protected they privacy that have believe refuse); into intrusion governmental warrantless (Wis. 1985) (“[T]he fact that non-state Stevens, 367 800 N.W.2d elements, instrumentalities, of constitutional may act free even it would any rights confer on the state restraints does not possess.”). otherwise or that unwelcome animals
Thus, possibility the mere negate does not through garbage bags one’s might rummage than the bags of more of in the contents those privacy expectation privacy an of negates expectation of or break-in burglary a possibility or car, operator party-line that an or the possibility in one’s home or expectation an telephone negates a conversation caller will listen on 124 conversation,
of
in the
of
privacy
contents
or the
that
possibility
or
cleaning person
guest
scope
house
will exceed the
of a visit
negates an
in a
or
expectation
hotel room
home. See
Greenwood,
(Brennan,
J.,
486
dissenting);
U.S.
see also
(1987)
Ortega,
(government
O’Connor v.
employee
U.S.
office,
though
has reasonable
“it
even
is the
—
of government
nature
offices that others
employees,
such as fellow
—
visitors,
supervisors,
general
may
consensual
and the
public
office”).
frequent access to an individual’s
Nor should citizens be
required
greater
to accept
police intrusion into their private affairs
frequency
people
increased
scavenging through
garbage
difficult economic
Kirchoff,
times. See
156 Vt. at
(constitutional
995-96
depend
does not
vagaries
DeFusco,
patterns);
social
temporary
The Supreme garbage Court’s second rationale that is turned over to third-party may trash collectors who do with it as please — is persuasive even less than first rationale. As Justice Brennan dissent, pointed out in his voluntary “the relinquishment posses- sion or control over an effect does not necessarily amount to a relinquishment it”; of a privacy expectation otherwise, “a letter all package would lose Fourth protection Amendment when placed a mailbox or other depository ‘express purpose’ with the of entrusting postal officer a Greenwood, carrier.” U.S. at (Brennan, J., addition, In dissenting). Jersey Supreme New noted, Court the third-party rationale is predicated on three assump- (1) tions: garbage collectors have the look right to through closed (2) garbage bags; garbage collectors have sufficient authority search; (3) over the consent to a that because garbage search, collectors can consent to a need neither a nor warrant consent to search the themselves. Hempele, A.2d at agree 805. We with the New Jersey Supreme Court’s assessment first debatable, assumption second dubious, and the third disturbing. situation, Id. In analogous right landlord who has the to enter a tenant’s house to view waste does not have the authority to consent a police search of the premises. Chapman States, (1961); United 365 U.S. 616-17 see California, Stoner v. 376 U.S. (implicit consent *12 janitorial personnel to enter motel room does not amount to consent room). to police Greenwood, search of Apart from Supreme Court to object or conversation intent to transfer an never held that an has unreasonable privacy any expectations party a third renders to object transfer the could then party third simply because the Hedrick, at 400. 922 F.2d police. disposal for collection and bags curbside
Placing opaque garbage communicating voluntarily knowingly and comparable not to to be who turns out party to a third selling information contraband Zaccaro, A.2d at 154 Vt. at See agent. informer or police (“Article who, his or her by opening up protect not one does such part illegal activity, exposes take to those wish to home who Brooks, officers.”); cf. 157Vt. activity police to undercover (Article monitoring of warrantless electronic A.2d at 964 allows informant police suspect conversation between face-to-face of his' Here, expose not contents place). defendant did public Note, The Su- anyone, including to collector. garbage garbage — Cases, L. Rev. 102 Harv. Leading Court preme required anticipated neither nor garbage concealed (“[EJxposure collection.”). Thus, voluntary there was no in the case to constitutional to that served waive defendant’s consent search his affairs. intrusion into governmental to be free from right — police cannot be third rationale Supreme Court’s — exposed public to the eyes to avert their evidence expected bootstrap the view attempt plain to be a appears misguided scavengers into In where animals or analysis. doctrine its cases bags expose actually through person’s trash rummage sure, view, need bags public police, contents those relevant here. The issue eyes. principle avert their But this is not can they their rather whether eyes, not whether must avert but through whose contents are concealed garbage bags sift curbside public eye. from the reasons,
For the to follow the above decline Greenwood recog majority’s allowing decision warrantless trash searches. We nize, however, equiva that the interest in one’s trash is not lent, Accordingly, in one’s example, home. of trash not be bounded the same the seizure search need dwelling. of a 1 W applicable limitations that are the search LaFave, 2.6(c), Although people § at 603-04. have an interest supra, have no garbage bags private, contents of keeping bags any particular possessory keeping matter As the contents does not long private, location. remain the are at landfill or station. whether *13 bags the seizure of would without a Ordinarily, permitted trash be the situation. 576 A.2d at given exigency Hempele, warrant of the however, the police bags, 810-11. Once have seized the cannot search obtaining probable them before a warrant based on cause. Cf. (warrantless Savva, 90, of 159Vt. A.2d at search container exigent found in car supported by was circumstances less — intrusive seizure of container of warrant option pending issuance — available). was limits, extent, that acknowledge today’s We decision to some tactics may that use in investigating reports activity. of criminal But efficiency the of enforcement come at improving law cannot expense protection provided by against Article 11 uncon- 92, strained into our governmental private intrusion lives. See id. at (“Article 616 A.2d at liberty is the balance struck between (privacy the individual of security) and sense and the convenience of detection.”). unchecked crime will not We countenance under Article 11 a in which society require dispose authorities citizens to of their personal effects a manner that is then unworthy deemed of protection arbitrary governmental judicial from without monitoring Greenwood, (Brennan, J., oversight. See at 55-56 dissenting). U.S. ease, In this exposed public only defendant view so, exterior opaque bags, sought doing dispose and he his personal possessions accepted normally manner that would result in commingling inextricably them with trash of others. Nevertheless, probable without cause or judicial oversight, police through trash, searched as defendant’s well as the trash of other apartment dwellers who had placing the misfortune of their garbage bags those of alongside suspected someone of having committed a crime. Such unconstrained governmental intrusion into people’s lives inconsistent with Article 11 open and a free and society. Because the search of warrantless defendant’s trash violated search, Article the evidence obtained was which used to home, obtain a to search warrant defendant’s suppressed must and expunged from the affidavit supporting the search warrant. view,
In the dissent’s
decision
our
is an unprincipled, result-
oriented
opinion
forgoes
and
analysis
textual
historical
for the
purpose
evading
by
result reached
majority
the United
Supreme
States
Court in Greenwood. This view
no basis in
has
law or
state,
fact.
sovereign
We are a
this
and
Court is entitled to take issue
with
Supreme Court,
constitutional decision of the United States
aor
the same
provides
constitution
our
of whether
regardless
on
down its decision
hands
us,
Court
Supreme
text. Like
different
and flows
ebbs
Court’s
Supreme
Because
not stone tablets.
paper,
interpre-
not dictate our
law do
of criminal constitutional
in the area
A.2d at
Savva,
159Vt.
Article
see
tation of
rests
Today’s decision
rulings.
that Court’s
to “evade”
no reason
pickup
out for
set
of trash
searches
that warrantless
our belief
11.
Article
embraced
of privacy
the core value
offend
disposal
interpreted
as
language
is informed
That belief
interpreting
jurisdictions
law,
law of other
by the case
case
our
sociological
by economic
provisions,
similar constitutional
judges
result,
experience
from our
part,
considerations
analysis
much
devoting too
us for
dissent chides
beings.
human
*14
and
majority
by
relied on
Greenwood
the rationales
debunking
in Green-
Brennan’s dissent
from Justice
extensively
too
quoting
path
to take a different
wood,
have decided
whenever we
but
on
largely
rested
Court,
have often
opinions
our
Supreme
Oakes,
See,
157
e.g., State v.
law.
rejected
of the
federal
analysis
rejecting
(analyzing and
175-83,
122-26
A.2d
Vt.
rule as set forth
exclusionary
exception
faith
good
Supreme Court’s
(1984));
at
Kirchoff, 156 Vt.
Leon,
The dissent contends that we have failed to followthis Court’s Jewett, 221, 224-25, 500 admonition in 233, 235-36 State v. 146Vt. (1985),to issuing refrain from opinions result-oriented based on state constitutional law. The discussion in Jewett referred to a law review article which Justice Pollock of the New Jersey Supreme Court argued that state courts had develop explain rationale to when they would accept cases and rely their own constitutions. See Pollock, State Separate Constitutions as Sources Fundamental (1983). Rights, Rutgers L. Rev. According to Justice Pollock, Jewett, as noted in “State courts should not look to their only constitutions they when wish to reach a result different from the Supreme added). United States Thus, Court.” Id. (emphasis in Justice view, Pollock’s state courts of last resort should accept appeals on predetermined criteria and look to their own regardless constitutions whether are inclined to reach as, a result the same or different from, that reached the Supreme Court. Neither Jewett nor Justice Pollock suggests that this Court or state court should refrain from following a path different from that taken United States — Supreme Court unless the court can rely on unique state sources historical, legislative Indeed, or otherwise. contrary, Jewett we stated that when the state constitutional issue is squarely raised on appeal, we will consider all types argument, including historical, textual, doctrinal, prudential, structural, and ethical arguments. 146 225, 227, Vt. at 500 A.2d at case, 237. In this we address whether warrantless searches violate Article 11 of the Vermont Constitution because the issue raised, briefed, was properly presented to us for argument. Our decision is not result-oriented *15 simply because it reaches a result different from Court, the Supreme 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 illegal was and the evidence found in the trash is expunged from affidavit, the supporting the affidavit still probable established cause for issuance of the warrant to search defendant’s home. We recognize that a
search warrant is not invalid merely because is supported in part by an affidavit containing unlawfully obtained infor- mation. Where the affidavit allegations includes based on and independent as well as obtained evidence illegally may information, warrant a valid search lawfully obtained information, considered if lawfully issue the obtained issue the itself, probable cause to is sufficient to establish warrant. (1982) (citations 16, 879, Moran, Vt.
State v. omitted). appellate Further, normally the function while it is cause, State v. of probable to make a de novo determination review 49, 53, 498 1028,1030 (1985),in cases where we 146Vt. A.2d Maguire, supporting in the presented that some of the evidence have ruled determine the remain may must be whether expunged, affidavit proba in the excised affidavit established ing information contained Moran, 141 ble issuance of the warrant. See cause for A.2d 882. information to search exists when the set
Probable cause judicial reasonably would forth in affidavit is such that a officer the a crime committed that evidence conclude that had been Ballou, v. 148Vt. place found the to be searched. State crime will be Towne, (1987); 427, 433-34, 535 see 158Vt. A.2d (1992) stan (rejecting “more-likely-than-not” search; stating cause that cause more probable probable dard cause). If of the information closely approximates “reasonable” 41(c) informant, that requires comes from a confidential V.R.Cr.P. test set forth in the United States two-prong information meet (1964), Texas, Supreme Aguilar decisions in 378 U.S. Court’s (1969). States, test, that v. United 393 U.S. Under Spinelli believing “a substantial basis for the source there must be factual basis for believing credible and for there is hearsay 41(c). the information furnished.” V.R.Cr.P. (1)
Here, information: following the excised affidavit stated selling eighth- police informant told defendant was confidential marijuana from and from apartment his quarter-ounce (2) store; of a local the informant stated that parking grocery lot and that he was during drug he some of the transactions present was (3) before; marijuana he had smoked it familiar with marijuana sold a certain informant’s statement that defendant different grocery parking store lot was consistent with a activity defendant and another suspicious officer’s observations lot; in the night parking man one five months earlier same many informed different neighbor recently unidentified last few apartment during had visited defendant’s weeks. people *16 Although prong minimally the factual-basis satisfied during that he or she was some of the present informant’s statement transactions, alleged drug satisfy affidavit fails the second which the facts to show that “either the informant is prong, requires or that the information from the informant inherently credible Ballou, on this occasion.” A.2d at reliable 1284.The credibility generally supported by unidentified informant is a showing provided that the informant has correct information in the of the information a past, reliability particular while occasion supported by showing tip against a that the informant’s was penal interest that the by police or information was corroborated point rely where it would be reasonable for them to on it as accurate. LaFave, 3.3(a), § See supra, at 91-95. argues
The State that the information was reliable because (1) the confidential informant against penal made statements — marijuana that he had smoked and had present during been some (2) transactions; drug corroborated the informant’s claim drugs lot; that defendant sold a certain grocery parking store informant, neighbor, provided second information that tended to corroborate the first informant’s claim that defendant was selling facts, drugs apartment. his None of these either inde pendently together, satisfies reliability prong First, of Rule 41. the informant’s marijuana statements that he had smoked at some point in past and that he had present during drug been transac hardly tions are admissions against penal interest. Acknowledgments that merely create a suspicion of the informant’s involvement criminal activity, such as that the present informant was during a transaction, drug will not suffice as against penal admissions interest. 3.3(c), § Moreover, Id. at 134-35. against penal admissions imply that police could elect to use the prosecute statements to informant; because one can prosecuted only possession marijuana, cannot, deliverance of past statement of use in and of itself, Ballou, result in prosecution. n.3, Cf. 148Vt. at 435 (informants’ 1284n.3 statements that had purchased drugs from defendant were admissions against penal interest that had some bearing, but not controlling weight, regarding reliability). informants’
Second, the retrospective officer’s corroboration of the information was minimal and stale. The fact that defendant and man another had remained the named grocery parking store lot for a few minutes night one five hardly months earlier can support a warrant to search apartment. defendant’s This is true even considering the unidentified at his many that defendant had had visitors neighbor’s report to demon- month. The affidavit failed apartment during previous *17 information, and if it were reliability neighbor’s strate the of the even reliable, informants does not provided by the information both from his selling drugs establish cause that defendant was probable Accordingly, during the evidence seized the search apartment. apartment suppressed. defendant’s must be Reversed and remanded.
Dooley, J., majority in the dissenting. many There are statements I, opinion agree. agree with which I I that of the Chapter for normally requires authority Vermont Constitution advance cov- ered searches of a I that by way agree expectations warrant. necessarily increasing governmental are not reduced by all, I people’s agree intrusion into fives. Most of that our decision must guided facts by the of this case. Except necessity for the this case within the facts on keeping based, result, which it a point strongly opposite indicates the below, as discussed these principles have little do with this case. question by before us is whether there is a search covered Article 11, not whether a pre-authorized by covered search must be Indeed, I warrant. think it majority opinion undeniable ends tool, search of trash an investigative because there will never be probable trash, cause search not the trash of certainly innocent just neighbors happen who to five in the apartment building, same without being probable there cause to search the home or other structure.1
Nor is this case of “increasing governmental intrusion” into the fives of I ordinary citizens. have no examining doubt that people’s waste has been an investigative tool of law throughout enforcement history. recorded
The Court’s
decision
this case tells us how the majority would
(1988).
Greenwood,
decided
In
out a
in state constitutional
staking
leadership
cation,
Jewett,
Hayes, speaking
Justice
Court
(1985),
225-27,
approaches
236-37
outlined the
(1)
interpretation
available for
of our constitutional
his-
provisions:
(2)
(3)
analysis;
analysis
torical
textual
analysis;
of decisions of sister
provisions;
analysis
states with similar or identical
of economic
cautioned, however,
sociological
materials. He
would be a
“[i]t
serious mistake for this Court to use its state constitution
chiefly
impact
Supreme
evade
the decisions
United States
*18
principled,
Court. Our decisions must be
not result-oriented.” Id. at
224,
Although analysis our 11 has Article been three deci- sions in which require we have examined the Article a result opposite Wood, 479, majority. reached The first is State v. 148 Vt. (1987), in which we were required determine what interests were sufficient to confer on a standing criminal defendant to 11, raise Article 11 rights. Relying primarily on the text of Article held:
Article Eleven itself scope protected establishes the of the right, may protection. and defines who invoke its right The themselves, houses, of the “to people hold papers, and possessions, seizure,” free from search or defines a right interest, dependent possessory on a with equal recognition accorded to the item seized and the area intruded upon. By delineating interest, as a right possessory Article Eleven premises protected right upon objectively defined relationship person between a and the item or place seized searched, subjective as to a opposed evaluation of the legitimacy person’s expectation in privacy the area searched. 489, at
Id.
The third decision is
State
157 Vt.
of these
standing,
is about
and the State has not claimed
*19
that defendant in this case lacks
This
standing.
response ignores the
decision,
point of the Wood
which was to make the concept of standing
consistent
right protected
Thus,
with the
by Article 11.
the analysis is
about “the scope
protected
of the
right” and the
holding
that the
Article
Wood,
delineates “the
right
interest.”
possessory
148 Vt.
disagree
majority’s
2 I
with the
signifi
statement
found “little textual
Kirchoff
“possessions”
cance” to the use of the word
in
11.
Article
The decision enforces both the
wording
underlying purpose
give
of
meaning
light
Article
and the
“to
to the
in
text
contemporary experience.”
Thus,
atVt.
appears in this case. reasoning tenants building. He and other apartment in an
Defendant lived at curbside for plastic bags trash in out their building put in the outside a fence which placed six were Monday bags Five or pick-up. apartment building. from the located six feet was that Article 11 does not precedents from our I think it is clear and other on the curb defendant bags put to the trash out extend had a longer defendant no public place, them a By putting tenants. protected in the trash and had no possessory protection The trash fell outside the from which it was taken. area Kirchojf, irrespective it in Wood and as we defined society as a whole.3 of defendant Vermont subject eyes and ears Like the conversations which were Brooks, subject to the hands and the trash were passersby restriction, who, legal without any public member of the eyes case, the facts of this there is no them or took them.4 On opened 11. violation of Article Wood, majority appears
Beyond attempt distinguish its First, analysis. relying to this straightforward have two answers people today article for the proposition “[m]ost law review place garbage choice but to curbside for collection little haulers,” the asserts that citizens majority public scrutiny their trash to unless Article subjecting cannot avoid I that the comes scrutiny. surprised proposition restricts that am not York, the most published population- from an article New one of states, majority it that the dense of American but find incredible Vermont, states, the most rural of where most apply would it to all. modern waste Although residences do not have curbs at solid may have taken some of the cultural charm out of the management majority argument “nothing 3 The calls this more than the discredited abandonment my rejected by majority.” This comment reinforces view that the even Greenwood dissenting analyzing applying rather than the issues and Court is Greenwood jurisprudence. argument” argument independent was a The “abandonment federal relating protected to the federal definition of the interest. Since our definition of the different, issued, argument, protected.interest until this decision was or was event, was, generally irrelevant to this decision. In as noted whatever 5, infra, agree beyond I is “abandoned” it is footnote do protection 11 in all of Article instances. placed opaque bags. majority puts great weight on the fact that the trash was 11,1 interpretation of Article consider this fact irrelevant. Given our *20 weekly trip to the in favor of “dump” large regional landfills and stations, transfer defendant can still exercise the time-honored tradition of self-disposal, ensuring anony his is mixed in Moreover, mously many with that of of his fellow citizens. he could living have chosen a arrangement, single-family whether or an apartment, that did not leave his garbage curtilage outside the waiting pick-up.5 defendant,
The second answer is that although exposing the trash to public scrutiny, retains a reasonable expectation privacy against police scrutiny. This is the kind of expectation rejected selective we Brooks. As Chief Justice Peters of Supreme the Connecticut Court noted:
A person’s reasonable expectations object as to a particular cannot compartmentalized so as to restrain the police from acting as others in society permitted are or suffered to act. ... A person either an objectively has reasonable not; of privacy or does what is objectively cannot, reasonable logically, depend on the source of the intrusion on his or her privacy. (Conn. DeFusco, 1993). 752-53 logical
extension of
majority’s
argument
that all forms of police
surveillance are prohibited because in a
open
free and
society we do
not want
very
freedom to create police opportunities to snoop.
We noted in Brooks that use of informants is “one of the basic
state,”
characteristics of a totalitarian
long
but “has
been accepted as
a necessary compromise between the ideals of a perfectly private
society
a perfectly
safe one.” 157
atVt.
to obtain agree analysis this I On with much of the of the Alaska Supreme State, (Alaska), denied, Court in Smith v. 510 P.2d 797-98 cert. 414 U.S. (1973), pre-Greenwood decision that held that examination of .a present regulated circumstances similar to those here was not the Alaska Constitution. consti state independent an
I- with the creation strongly agree protected essential decisions about keeps jurisprudence tutional Wood, we In State v. within Vermont. possible as much as liberties 11, in scope of Article jurisprudence on developed independent decision, Rakas Supreme Court avoid the effect of large part to *21 no (1978), disagreed. With Illinois, with which we 439 U.S. this Wood, except response acknowledgement holding Article, concept of the dissent, developed has now a new majority a Wood, effect of again that in to avoid the directly contrary to majority only consistency, Court decision. The Supreme admit, making are and this case about both Wood appears into intrusions challenge police “for easier affairs.” Article and coherent construction of principled
We cannot build every Court majority opinion Supreme United States out with agree, decision with which we combined Fourth Amendment disagree. which As Justice every dissent such decision with Jewett, such a course is a “serious mistake” Hayes cautioned fragmented and result-oriented. inevitably jurisprudence leaves our form for our the decisions that the cornerstones By abandoning in order to war with United States jurisprudence distasteful, in my the majority, Court decision it finds Supreme Hayes the mistake warned judgment, making exactly Justice against. joins in
I dissent. I am authorized to state that the Chief Justice this dissent. Quinn v. Matthew Vermont S. 1336]
[675 No. 94-675 Allen, C.J., Dooley, Gibson, Johnson, Morse and Present: JJ.
Opinion Filed March