State of Vermont v. Ralph O. Oakes
No. 89-506
Supreme Court of Vermont
July 5, 1991
598 A.2d 119
Allen, C.J., Peck, Gibson, Dooley and Morse, JJ.
Dissenting Opinion Filed September 6, 1991
Affirmed.
William Wright, Bennington County State‘s Attorney, Bennington, and Thomas Kelly, Drug Attorney, and Pamela Hall Johnson, Department of State‘s Attorneys, Montpelier, for Plaintiff-Appellee.
Charles S. Martin of Martin & Paolini, P.C., Barre, for Defendant-Appellant.
Allen, C.J. The issue presented on appeal to this Court is whether our state exclusionary rule for violations of Article 11
On March 1, 1989, Detective Michael Colgan of the Bennington Police Department applied for and received a warrant to search the residence of defendant‘s girl friend. That evening Detective Colgan and other officers executed the warrant. Their search uncovered a large plastic bag, inside of which were twelve smaller bags containing marijuana.
Defendant was charged with felony possession of marijuana under
Defendant moved for and was granted permission to appeal the court‘s denial of his suppression motion. His appeal rests
A.
This Court has adopted an exclusionary rule for violations of the Vermont Constitution.2 “Evidence obtained in violation of the Vermont Constitution, or as the result of a violation, cannot be admitted at trial as a matter of state law.” State v. Badger, 141 Vt. 430, 452-53, 450 A.2d 336, 349 (1982). This was not done under compulsion of Mapp v. Ohio, 367 U.S. 643 (1961), which worked only to extend to state courts an exclusionary rule for federal constitutional violations. Id. at 655. Rather, a state exclusionary rule was adopted because “[i]ntroduction of [illegally obtained] evidence at trial eviscerates our most sacred rights, impinges on individual privacy, perverts our judicial process, distorts any notion of fairness, and encourages official misconduct.” Badger, 141 Vt. at 453, 450 A.2d at 349. The State now invites us to follow the Supreme Court‘s holding in Leon and except from our state exclusionary rule evidence seized by a police officer in objectively reasonable reliance on a subsequently invalidated warrant—the so-called “good faith” exception to the exclusionary rule. We decline the invitation.3
The United States Supreme Court has distinguished between the rights guaranteed an individual by the Fourth Amendment and the remedy adopted to effectuate those rights. In the thirty
We need not, and do not, express an opinion today on the validity of drawing such a distinction between the rights guaranteed by Article 11 and our state exclusionary rule. Even if our exclusionary rule were no more than a judicially created remedy, this Court would maintain the obligation to ensure that the remedy effectuates Article 11 rights. We point out the distinction made by the Supreme Court simply to clarify the amount of deference we will accord its decision in Leon. By treating the federal exclusionary rule as a judicially created remedy rather than a constitutional right, the Supreme Court‘s decision focuses, not on interpretation of the federal constitution, but on an attempted empirical assessment of the costs and
B.
In Leon the Supreme Court fashioned a good faith exception to the exclusionary rule by “conclud[ing] that the marginal or nonexistent benefits produced by suppressing evidence obtained in objectively reasonable reliance on a subsequently invalidated search warrant cannot justify the substantial costs of exclusion.” Id. at 922.
The Court‘s treatment of the “substantial costs” of not adopting a good faith exception is summary:
The substantial social costs exacted by the exclusionary rule for the vindication of Fourth Amendment rights have long been a source of concern. . . . An objectionable collateral consequence of this interference with the criminal justice system‘s truth-finding function is that some guilty defendants may go free or receive reduced sentences as a result of favorable plea bargains.
Id. at 907. In a footnote the Court concedes that many researchers “have concluded that the impact of the exclusionary rule is insubstantial.” Id. at 907 n.6. Yet the Court answers, without citing empirical data, that the researchers’ focus on nonprosecution and nonconviction of felony cases “mask a large absolute number of felons who are released because the cases against them were based in part on illegal searches or seizures.” Id.
The Court‘s treatmеnt of the “marginal or nonexistent benefits” of not adopting a good faith exception is more extensive. Taking the possible benefit of the exclusionary rule solely to be deterrence of official misconduct, see id. at 906, 921 n.22, the Court attempts to assess the deterrent effect that excluding evidence in this situation will have upon the officials involved: the police and the judicial authorities who issue warrants.
As to the judicial authorities who issue warrants, the Court proceeds from the premise that the exclusionary rule does not apply to them to the conclusion that it has no deterrent effect on them.
To the extent that proponents of exclusion rely on its behavioral effects on judges and magistrates in these areas, their reliance is misplaced. First, the exclusionary rule is designed to deter police misconduct rather than to punish the errors of judges and magistrates. Second, there exists no evidence suggesting that judges and magistrates are inclined to ignore or subvert the Fourth Amendment or that lawlessness among these actors requires application of the extreme sanction of exclusion.
Third, and most important, we discern no basis, and are offered none, for believing that exclusion of evidence seized pursuant to a warrant will have a significant deterrent effect on the issuing judge or magistrate.
C.
Criticism of the Supreme Court‘s cost-benefit approach to the exclusionary rule has been extensive. Voiced by commenta-
While those loss rates should not be viewed as trivial, they do not amount to a “major impact” on criminal justice—especially when one considers that these loss rates relate to arrests and that many such lost arrests would have been dropped or downgraded to misdemeanors for other reasons even if there were no illegal search problems. Indeed . . . it is likely that in some proportion of these “lost” arrests, the police were not concerned with making arrests that would “stick.” . . .
. . . All the available evidence . . . indicates that the general level of the rule‘s effects on criminal prosecutions is marginal at most.
Id. at 621-22 (emphasis in original).10 Davies’ assessment does not justify the conclusion that the costs of the exclusionary rule
More fundamentally, we are hesitant to label the nonprosecution or nonconviction of felony arrests a cost of the exclusionary rule as opposed to a cost of the сonstitutional prohibition itself. As former Justice Stewart wrote:
Much of the criticism leveled at the exclusionary rule is misdirected; it is more properly directed at the fourth amendment itself. It is true that, as many observers have charged, the effect of the rule is to deprive the courts of extremely relevant, often direct evidence of the guilt of the defendant. But these same critics sometimes fail to acknowledge that, in many instances, the same extremely relevant evidence would not have been obtained had the police officer complied with the commands of the fourth amendment in the first place. . . .
The exclusionary rule places no limitations on the actions of the police. The fourth amendment does.
Stewart, The Road to Mapp v. Ohio and Beyond: The Origins, Development and Future of the Exclusionary Rule in Search-
There have also been substantial doubts raised concerning the Court‘s conclusion that excluding evidence seized by a police officer in objectively reasonable reliance on a subsequently invalidated warrant would be of “marginal or nonexistent” benefit in promoting compliance with the Constitution. The Court‘s notion that there is nothing to deter if a police officer has acted with objective reasonableness is attractively simplе. “Penalizing the officer for the magistrate‘s error, rather than his own, cannot logically contribute to the deterrence of Fourth Amendment violations.” Leon, 468 U.S. at 921. The exclusionary rule‘s deterrent effect, however, does not rest primarily on “penalizing” an individual officer into future conformity with the Constitution. Rather, it rests on “its tendency to promote institutional compliance with Fourth Amendment requirements on the part of law enforcement agencies generally.” Id. at 953 (Brennan, J., dissenting). It creates an incentive for the police as an institution to train its officers to conform with the Constitution. Consequently, the important question is not whether it is of any benefit to “penalize” the objectively reasonable conduct of an individual officer, but rather whether failure to do so will lower the incentive for institutional compliance. The Court gives no answer to this question.
Nor does the Court effectively address concerns that adoption of a good faith exception will create an incentive for future inadequate presentations and magistrate shopping. The Court rejects these concerns as “speculative.” Id. at 918. Yet this is no answer, because an assertion that such an incentive will not be created is also “speculative” in the absence of empirical data. These concerns do have the force of logic behind them. Because the good faith exception raises the value of having a warrant
The Court‘s treatment of the exclusionary rule‘s effect on the judicial authorities who issue warrants is also suspect. Under Leon‘s good faith exception, the admissibility of evidence seized by a police officer in reliance upon a warrant will hinge upon the objective reasonableness of this reliance, not upon the lawfulness of the warrant. The good faith exception effectively shields the issuing judicial officer‘s probable cause determination from subsequent judicial review. The Court suggests that this “may well increase the care with which magistrates scrutinize warrant applications,” Leon, 468 U.S. at 917 n.18, as it would increase the importance of their task. The obvious rejoinder to this suggestion is that less care may be taken precisely because their determinations will not be subject to review. A further consequence of removing review of the issuing judicial officer‘s probable cause determination is that there will be less guidance to these judicial officers as to what constitutes sufficient probable cause.13 Without such guidance, the incidence of mistakes
[I]t is in close fourth amendment cases that new law is made and guidance to magistrates and the police is most needed. Close cases are both the hardest to decide and the easiest to dispose of under the good faith exception; in such cases the officer‘s objective good faith is clearest. Thus, these are the cases that defendants are least likely to litigate and the courts most likely to dispose of without reaching the merits of the fourth amendment claim.
The ultimate criticism of the Court‘s cost-benefit analysis in Leon is that it is attempting to do what at this time cannot be done. There simply are insufficient empirical data for the costs and benefits of a good faith exception to bе accurately assessed. The benefits of the exclusionary rule are hard to measure because they consist of “non-events.” “Police compliance with the exclusionary rule produces a non-event which is not directly observable—it consists of not conducting an illegal search.” Morris, The Exclusionary Rule, Deterrence and Posner‘s Economic Analysis of Law, 57 Wash. L. Rev. 647, 653 (1982) (emphasis in original); see United States v. Janis, 428 U.S. 433, 453 (1976) (“‘Since as a practical matter it is never easy to prove a negative, it is hardly likely that conclusive factual data could ever be assembled.‘“) (quoting Elkins v. United States, 364 U.S. 206, 218 (1960)). As demonstrated above, there are conflicting interpretations concerning these benefits and the rule‘s costs. All of these measurement difficulties are further exacerbated when attention turns from the costs and benefits of the exclusionary rule in general to the costs and benefits of an untested exception to the exclusionary rule.
Even though confronted with these measurement difficulties, the Court remains within its “redoubt of empiricism.” Leon,
D.
The good faith exception adopted in Leon represents on its face a significant limitation on the exclusionary rule. “Despite the Court‘s gradual compression of the scope of the exclusionary rule, no decision prior to United States v. Leon expressly contradicted the established principle that evidence illegally obtained was inadmissible in the government‘s case-in-chief in criminal prosecutions.” State v. Novembrino, 105 N.J. 95, 138-39, 519 A.2d 820, 845 (1987). Further, it is clear that the exception was intended by the Court to be the rule, not the exception, where a warrant, though invalid, exists. “[S]uppression of evidence obtained pursuant to a warrant should be ordered only on a case-by-case basis and only in those unusual cases in which exclusion will further the purposes of the exclusionary rule.” Leon, 468 U.S. at 918. “Our conclusion is that the rule‘s purposes will only rarely be served by applying it in such circumstances.” Id. at 926.
We will not impose such a significant limitation upon our state exclusionary rule on the basis of the Court‘s cost-benefit analysis in Leon. Nor have we been persuaded that there are other compelling reasons to do so. See State v. Brunelle, 148 Vt. 347, 353, 534 A.2d 198, 203 (1987) (fashioning exception to state exclusionary rule where “defendant has testified during direct examination in a manner contradictory to the suppressed evidence“). The New Jersey Supreme Court, in rejecting Leon‘s application to its state exclusionary rule, concluded by stating that:
We see no need in New Jersey to experiment with the fundamental rights protected by the fourth-amendment counterpart of our State Constitution. We will not subject the proсedures that vindicate the fundamental rights guar-
anteed by . . . our State Constitution—procedures that have not diluted the effectiveness of our criminal justice system—to the uncertain effects that we believe will inevitably accompany the good-faith exception to the federal exclusionary rule.
Novembrino, 105 N.J. at 159, 519 A.2d at 857. We likewise decline to subject the exclusionary rule we have adopted for violations of the Vermont Constitution to such uncertain effects.
Accordingly, the trial court‘s denial of defendant‘s suppression motion is reversed.
Reversed and remanded.
Peck, J., dissenting. The majority opinion is additional evidence, if any is needed at this point in time, that within the boundaries of the law of search and seizure, the only individuals enjoying any constitutional rights recognized by this Court are the criminals. This approach is characteristic of most of the activist-oriented state courts today.
Typical of opinions dealing with suppression is the assertion, express or implied, that, while a criminal may escape the consequences of his crimes by withholding truth from legal scrutiny, the real point is that in protecting the criminal, we are also protecting you, and you, and you; in other words, “all of us.”
The courts should know better. If they don‘t, they need to pause and reflect on who it is they are protecting, not just on paper, but in fact, and whose rights are being ignored, willfully and cynically, when truth is suppressed based on inadequate technicalities.
I do not advocate the complete abolition of the exclusionary rule in search and seizure cases. What I do deplore, and that strongly, is the continuing expansion of the grounds for suppression when the only limitation on a warrantless search, under the
What is reasonable should be a commonsense perception based on an everyday, man-in-the-street understanding, unadorned by the tortured frills, the twists and turns of which only the judicial mind is capable when it struggles to justify a
Equally disturbing is the indignation being heard from some state courts and legal writers for what they cleverly call the “shrinking Fourth Amendment.” It is based in large measure on recent United States Supreme Court decisions. It is for all the world like the sulking of a spoiled child suddenly denied its own way. The truth is, of course, that the Supreme Court is doing no more than putting the brakes on the runaway liberalism which has characterized several decades of judicial thinking, restoring some sense of balance between competing rights and interests in the criminal law.2
The bottom line is the continuing refusal of too many state courts to recognize that the “public” is not just an amorphous unidentifiable mass. On the contrary, it is composed of individuals, as individuals; the victims of crime, and the victims-to-be. Their rights to protection are being violated hourly—now—without concern by the criminal and the courts, even as the majority оpinion and this dissent are being written. The majority, once again, proves its inability to either acknowledge or balance both competing rights and interests, hiding behind the smoke-screen that it thereby protects all of us! In actuality, the only ones who benefit at all from these so-called protections are criminals. It will continue to be so as long as this Court refuses to balance the rights that the noncriminals have, to safety, peace of mind and freedom from fear under
In an earlier case, State v. Martin, 145 Vt. 562, 496 A.2d 442 (1985), we held that warrantless stops at sobriety checkpoints did not violate the
The claim in Record was based on the difference in the wording between the Fourth Amendment and Article Eleven. The former prohibits only “unreasonable” searches without a warrant. The defendant argued that under Article Eleven the prohibition against warrantless searches is absolute, since the word “unreasonable” does not appear in the Article.
We concluded that this argument overlooked at least two earlier decisions. In Lincoln v. Smith, 27 Vt. 328, 346 (1855), we held that the word “unreasonable” is as implicit in Article Eleven as it is express in the Fourth Amendment. We approved this interpretation as recently as State v. Badger, 141 Vt. 430, 454, 450 A.2d 336, 350 (1982). See Record, 150 Vt. at 85, 548 A.2d at 423. Thus, the Fourth Amendment and Article Eleven are identical for search and seizure purposes.
The logical progression in reasoning can only be this: warrantless searches and seizures, per se, are not prohibited by any fair interpretation of either Article Eleven or the Fourth Amendment. It is only—and I emphasize the word “only“—when a warrantless search is unreasonable that the prohibition is triggered; it is only in relation to unreasonableness that the two provisions have significance. Thus, the first obligation of law enforcement authorities is not necessarily to seek a warrant before conducting a search, or to secondguess the judge who issues it when it appears to be proper on its face. The only
In a situation where no warrant is obtained, the officers, knowingly, take a considerable risk in proceeding without one. I am not so naive as to suggest otherwise; discretion probably remains the better part of valor, particularly when the officers know that a court of unreconstructed activists lies in wait for them. Nevertheless, as the two constitutional provisions are structured, the initial inquiry by a reviewing court must always be whether the warrantless search was reasonable, i.e., not “unreasonable.” If it is held to be reasonable, the inquiry on review of that issue should terminate.
For all practical purposes a defective warrant does not authorize a search any more than no warrant at all; no (legitimate) warrant has issued. The difference lies in the officers’ perception of the risks to be taken. Conducting a search in good faith reliance on a warrant they are unaware is defective, they are likewise unaware that any risk is being taken. Regardless of perceptions, the initial inquiry remains the same: was the search reasonable?
At this point, I feel it necessary to reprise one of the bases of my dissent in what I continue to regard as one of the worst, most irrational and totally unnecessary opinions issued by this Court. I refer, as any Court-watcher will guess, to State v. Kirchoff, 156 Vt. 1, 587 A.2d 988 (1991). That case stamped the Vermont Supreme Court as among the most activist-oriented in the country, out of sync not only with the United States Supreme Court, as the opinion expressly acknowledges, but with many state courts as well, taking its cue primarily from another activist state court while snubbing a recent and sensible ruling by the supreme court of our twin state, New Hampshire.3
Kirchoff also involved drugs and a warrantless search. This Court, as well as the United States Supreme Court and others, have recognized drunk driving as a major social problem, and
The callous indifference of the Kirchoff majority to the plight of those who suffer as a result of drugs, the human wreckage generated among those irredeemably addicted, has its origin in technicalities. The infamy and greed of the dealers and producers, at whatever level, has provided an incentive for the involvement of organized and ruthless crime unequaled since the days of prohibition. Unlike the drunk driver, their crimes are deliberate, planned, organized, and above all, intentional. The unbelievable indifference of the Kirchoff majority to the ever increasing crimes of violence, often affecting innocent passers-by, in drug-related crimes, is beyond comprehension. It is inexcusable.
The irony of cases like Kirchoff, and today‘s unfortunate decision, is that they purport to be based on the protection of “individual” rights. What an absolutely farcical distortion of the truth! The majority has learned nothing from such cases as Record and Martin. The drug problem is every bit as pervasive and against our individual rights as drunk driving, if not more so. In a sense it is worse because it is willful; criminal intent is always present. And yet, the majority cannot, literally, I gather, view the “people” or the “public” as any more than an amorphous, undefinable mass without any identifiable rights as such.
But the “people,” the “public,” would not exist at all if not made up entirely of individuals; as such, we have a constitutional right to safety under
I would not denigrate the rights of property owners, as property owners, but one of the ironies involved in protecting those rights is that, as a practical matter, the only individuals who receive any real benefits, as distinguished from the theoretical, are those who use their property for criminal activity. It is apparent that the majority views property used for unlawful purposes as more important than human life and safety.
In the real world, the problems, if any, usually faced by non-criminal property owners are not attributable to police action,
In rejecting the good-faith exception, the majority dwells almost exclusively on the economic rationale for the Supreme Court‘s decision in United States v. Leon, 468 U.S. 897 (1984); the critique, however interesting, is irrelevant.4 The underlying concept of a good-faith exception to the exclusionary rule deserves consideration beyond the limited scope of the Leon rationale in Article Eleven cases. I submit that good-faith reliance on a warrant that seems to the officers proper on its face, even though a reviewing court subsequently finds a defect, is one of the more obvious and workable grounds for application of an exception. “Good faith” is as much a fact as any other; the courts are no less capable, all of a sudden, of resolving that factual question than any other.
Martin and Record broke the ice; drug-related crime is as egregious a social problem as drunk driving, if not more so.
The majority rationale here is supported by the purest speculation and conclusions of the most liberal and activist among the state and lower-court federal judges. Many of them, I note, are dissents expressing frustration and pure pique because there is a moderating trend away from the galloping activism characteristic of judicial decisions for several decades favoring the criminal, while ignoring and increasingly limiting the rights of the people to safety and protection. The same is true of many of the legal writers who “came of age,” as it were, under the influence of these decisions to the point that they can no longer think independently at any other level.
I read in the majority opinion an isolated quotation to the effect that the
“[i]ntroduction of [illegally obtained] evidence at trial eviscerates our most sacred rights, impinges on individual privacy, perverts our judicial process, distorts any notion of fairness, and encourages official misconduct.”
Quoting State v. Badger, 141 Vt. at 453, 450 A.2d at 349 (brackets added in the majority opinion).
This quote, as it is used, is demagoguery carried to the extreme. The facts in Badger are miles removed from this case. In fact, it is questionable that the “seizure” was in fact illegal at all. The clothing of the defendant, who was 16 years old at the time, appropriated by the police, was not taken directly from the defendant; on the contrary, it was given by the defendant to his father without any limitation as to what disposition the latter was to make of it. The father turned the items of clothing over to the police voluntarily; there was no “forcible dispossession.” We sustained the earlier seizure of defendant‘s blood-stained shoes on the grounds that defendant might otherwise destroy them. It makes no sense to suggest that the clothing could not have been destroyed as readily as the shoes. It makes
I admit, with some embarrassment, that I joined the decision in Badger in its totality. I would not do so today. I can only plead that I have matured in judgment since then, and to appreciate more readily the practical need to balance certain underlying rights when there is a potential conflict. Cf. Record, 150 Vt. at 87, 548 A.2d at 424. Shakespeare seems to have words or phrases applicable to almost any situation; helping me explain my bad judgment in approving Badger, he has not failed me. In Anthony and Cleopatra, I, v, the latter, being reminded that she has changed her mind concerning an earlier view, answers that her prior thinking was in “My salad days/When I was green in judgment.”
Our most sacred rights? Whose rights are we talking about? This is solid evidence that the majority is unable to interpret the word “individual” as referring to anyone other than defendants. Once a police investigation of a crime is initiated, the only “individual” who is recognized as having any rights is the person ultimately accused, to say nothing of the continuing еxpansion of what is included in those rights by playing games with the state constitution. The majority is totally blind to the victim of a case sub judice, as well as the victims-to-be of crimes in the future. The courts will do nothing, almost literally, that will serve to deter crime, and protect us against its unholy machinations. They are unable to consider whether a decision made today will jeopardize the rights of the people or impede law enforcement down the road of tomorrow.
The primary basis for this unacceptable approach to justice is the parallel inability of the appellate mind to accept or understand the fact that the words the “public,” the “people,” have any meaning which can be defined in terms of rights. The Court has either forgotten that
The opinion speaks of the inadmissibility of “illegally” obtained evidence. That is bad logic; it begs the question. It assumes one of the main premises: illegality. I noted above that the acquisition of evidence, however accomplished, becomes illegal only if the search itself is unreasonable. Considering this, the real issue here is, in part, whether a search, based on the good faith reliance by the police, on a warrant, proper on its face, but subsequently determined to be defective is “unreasonable.”
I see nothing to render a good-faith search without a warrant necessarily unreasonable under either constitution. The predictions, adopted from dissenting opinions in Leon, have no supporting empirical evidence. They are, therefore, pure speculation and unsupported conclusions. They sink to the level of police bashing by the judiciary, so currently in fashion. The police are heroes when they are needed, often putting their lives in jeopardy, or risking serious injury (a number of officers are killed and injured in line of duty every year), but when they are not responding to a need, they are frequently the subject of criticism — bashing, in short; usually generalities inspired by sensational, albeit unfortunate exceptions. Lines from “Tommy” by Rudyard Kipling, which compares the public reaction to British soldiers in times of peace and war, are often applicable to the police as well:
For it‘s Tommy this, an’ Tommy that,
An’ “chuck him out, the brute!”
But its “Saviour of ‘is country” when
The guns begin to shoot;
I am not unmindful that “rogue-cops” do surface from time to time. When that happens, their conduct tends to blacken unfairly the police image everywhere. Nevertheless, law enforcement officers at all levels are, on the whole, diligent and sincere; they act, for the most part, in good faith in their efforts to protect our lives, safety and property, when needed. I regret they must be subject to criticism by, of all sources, the courts.
I agree that “our” most sacred rights are indeed being eviscerated, but not in the sense proposed by the majority. I have argued earlier that in the criminal law there are two distinct classes of rights which are always involved, those of the accused and those of the public.
Both classes are entitled to constitutional protections. For purposes of the law generally, as applied to a particular case, the “our” should refer to all of us who had no guilty involvement in the crime; this includes the immediate victim(s), victims-to-be, i.e., those among us who will become the victims of similar crimes hereafter, notwithstanding their constitutional right to safety, and even the accused to the extent he is not only presumed innocent, but is innocent in fact.5 Finally, I include in the “our” all the people; those considered as individuals, who have never been, and (hopefully) never will be, victims of a crime. Every single individual has a constitutional right to safety, peace of mind, freedom from fear, and to enjoy their property, real and personal, for all lаwful purposes, without the incursions of criminal activity. Every one of us has a right to walk the streets, alone if we see fit to do so, at night as well as during the day, in peace, without being molested or harassed.
It is the above-described rights which are being “eviscerated” by the courts with decisions like State v. Brunell, 150 Vt. 388, 554 A.2d 242 (1988), and Kirchoff (an omen of darker days to come for “our” rights; prophetic of today‘s horror and, I predict, others yet to come). Like Mary Shelley‘s Frankenstein, the Court, in its inexcusable and ill-advised activism, has created a monster which lumbers unchecked among our rights, tearing and “eviscerating” at will. Unlike hapless Frankenstein, however, the majority labors to enhance the destructive powers of its creation rather than to control it.
The Kirchoff majority said, in effect, it is far better that criminals “get away with it,” than to invade their privacy. This wooly-headed thinking is repeated by the majority here. In short, the majority has announced a right of privacy to commit crimes; the official stamp of approval is on the proposition that it is socially acceptable to commit a crime, as long as you don‘t get caught at it; the Court recognizes your right to commit crime on your own property, and will cooperate with you in any criminal activity you choose to undertake on your land by protecting your privacy against warrantless searches. This judicial doctrine brings us full circle back to the position that if a warrantless search is reasonable it is not constitutionally prohibited; it is not forbidden absolutely, privacy rights notwithstanding. This, in turn, returns me to the preceding paragraph, arguing that the threat of routine warrantless invasions into the property and privacy of the law-abiding is an unrealistic and deplorable fantasy.
The majority does not say how the search in this case “perverts our judicial process.” Aside from the fact that it has a nice, legal-sounding ring to it, I fail to see its application to this case. The only perversion here, as in Kirchoff, Badger, Brunell, et al., is the Court‘s ongoing refusal to recognize “people” as made up of individuals, and ignoring their rights out of existence to the point they are not even entitled to be balanced against competing rights. Record and Martin are now to be regarded as quaint aberrations to the extent they stressed the importance of balancing in criminal cases.
We should all realize that defense motions to suppress evidence in criminal cases are almost always designed for one purpose only: to withhold from the jury an inculpatory fact; an item of truth which may, and probably will, have an adverse effect on the defense if admitted. If this were not so, such a motion would be pointless.
In the case before us, assuming arguendo that the warrant was entirely proper (as, indeed, I believe it was), its admission into evidence would have been entirely proper and consistent with the fairness of the trial, regardless of its adverse consequences to dеfendant‘s case. Moreover, the full panoply of the truth, ergo, the whole truth, would not be withheld from the jury; the case as it really was would be before the jury for its consideration. If a fair trial is a double-edged sword, contemplating a full disclosure of all the facts, the suppression rule operates against the fairness due the people, even though it is justified in an extreme case as a consequence of the balancing process.
Addressing the final point that admission of the challenged evidence would encourage official misconduct, its application here, and generally, for that matter, is not supported. It is an example of judicial police bashing and speculation. Ultimately it is based on the tiresome question: “How would you like a policeman walking into your house in the middle of the night without a warrant and start searching the place?” Such a question recognizes that most people do not commit crimes, and that the police have not the slightest reason to suspect the contrary. The question lies at the root of the claim that, in protecting the criminal, the courts are, in reality, protecting the innocent in
When we blow away the smokescreen, however, the question is seen for what it is: simplistic and naive. Being unable to see the “woods” of sociеty as a whole, for the “trees” of the individual criminals who stand before them, all too many state courts continue their abandonment of responsibility to the people; they are incapable of visualizing society as made up of individuals, concentrating on the more heady, glamourous and prestige-building pastime of hampering law enforcement and removing obstacle after obstacle from the practice of crime.
Granting that no one relishes the idea of the police arbitrarily invading their homes, ask also how many, not involved in criminal activity, who retire at night, leave their homes unoccupied while at work during the day, or while they are away for some purpose during the evening, or for longer periods on vacations, how many of these are filled with continuing apprehension that the police will just drop in unexpectedly for a friendly little search? Ask those who lock their doors at night or when they are away, install alarms and other security devices, why they do so. Ask the same question of banks, stores, and other businesses, and why many of them, who are big enough to justify it, employ their own night watchmen and other security personnel. Will anyone reply that these precautions are taken to secure the premises against unwarranted invasions and searches by the police? Even the majority must acknowledge that no one, other than criminals, fears, or has any reason to fear “official misconduct” in this respect.
Regardless of the above, the majority wave
The criticism of the good-faith exception, per se, is invalid for several reasons. The opinion refers to any loosening of
It is inexcusable, and I cannot condone with any respect, an appellate decision which concerns itself with only one aspect of a case in order to accommodate a specific result. Plain and simple justice, to say nothing of common sense, should be more than enough to convince any court that competing rights shоuld be subjected to a balancing examination and neither one of them swept in silence under the carpet.
The majority demonstrates that it will demean the interests of justice and common sense by continually piling one device upon another. It argues with great piety that it is acting solely to deter police misconduct in undertaking warrantless searches, as if the practice was running out of control. At the same time it turns a contemptuous back on any new measure that might serve to deter criminal activity, which is virtually out of control. But perhaps I should realize that this is getting to be par for the course.
Reprising the essence of this dissent, the opinion is clear evidence that the majority is incapable, or inexcusably unwilling, to recognize that in every criminal case there are two separate and distinct sets of constitutional rights involved. Both of them involve individual rights; they may, and often do, conflict with each other. In no other concern of the criminal law is this dualistic aspect of rights more clearly illustrated than in search and seizure cases. The first of these rights are those of the accused (defendant), as such, to protection against unreasonable searches and seizures under
Whenever these twо rights collide or conflict in a particular case, and cannot be reconciled, the courts have an obligation, and I believe it is a moral obligation as well as a duty, to balance these conflicting rights. Record is a strong, recent, and clearly expressed precedent, in which this Court stated its obligation to balance these rights when they conflict. In Record we stated:
[R]easonableness [under Article Eleven] . . . depends “on a balance between the public interest and the individual‘s right [to be] free from arbitrary interference by law officers.” [150 Vt. at 87, 548 A.2d at 424 (emphasis added, citation omitted).]
Notwithstanding this unqualified precedent, and my insistence that the Court should do so, the majority in Kirchoff refused absolutely to apply a balancing test; indeed, it refused even to refer to it; denying it even lip-service, relying, no doubt, on the hope that “if we ignore it, it will just go away.” The same baffling refusal is repeated in today‘s decision.
I simply cannot understand, “for the life of me” (to express my bewilderment and frustration in the colloquial), why the Court continues its adamant refusal to apply a balancing test when conflicting rights are involved. It is inconsistent with our own precedents such as Record, and Martin, and other cases as well, such as State v. Brunelle, 148 Vt. 347, 534 A.2d 198 (1987), and Badger in which public concerns are at least recognized. But we are concerned here with the reasonableness of a search; that depends on a balancing of (1) privacy interests with (2) the need to protect the public. United States v. Rabb, 752 F.2d 1320, 1323 (9th Cir. 1984).
There are few offenses more serious, from the point of view of the public welfare, than those which are drug-related. Thеre can be no doubt whatever that drug-related crime is no less a social menace than drunk driving. There is also clear evidence that drug abuse is frequently a gateway to the presently incurable disease AIDS, which, experts anticipate, may well reach epidemic proportions. Traffic in drugs carries in its devastating wake more violence and other collateral offenses than any other crime I can think of. Finally, criminal intent is always present, which is rarely, if ever, a factor in drunk driving cases where
I challenge anyone to provide a logical reason to support the majority‘s position that the balancing test is appropriate in DUI cases but not in drug-related cases. Wherefore the discrimination, majority? It makes no sense; it cannot be justified on any conceivable basis.
When balancing is applied, as it should be here, and as it should have been in Kirchoff, the “reasonableness” of the search in this case becomes a factor, since a defective warrant is the equivalent of no warrant at all.
A word must be said concerning the majority‘s approach to this factor. The Court is in the enviable position of having the power (note I do not concede the right) to call any search unreasonable, however arbitrary such a decision may be. Assuming a particular search is called unreasonable when it is not, and reasonableness should be gauged by a layman‘s common sense rather than legalistic gamesmanship, the result is an abuse of power.
It is possible here that the majority is more at fault by adopting a philosophy, in search and seizure cases, that constitutions must always be construed to favor an accused, regardless of any other rights that may exist. This is biased thinking in cases like this one and in Kirchoff, Brunell, and (in part) Badger, where the actor-in-fact is known, and the issue presented revolves around a technicality, as distinguished from those cases in which the prosecution is based on the uncertainties of purely circumstantial evidence. Such treatment is also inconsistent with Record and Martin.
Virtually all the quoting in the majority opinion is one-sided and from sources generally recognized, with approval or otherwise, as activist oriented. Most of them are extremely speculative and, to the extent they strike us as impressive, it is because other sources to the contrary are not discussed in any depth. There are two of these sources, however, which I do wish to address briefly.
The first suggests that better training of the police will alleviate many of the
This case is a good example of the problem. One judge concluded there was sufficient grounds and issued a warrant. A second judge felt otherwise and suppressed certain evidence. I submit it is unfair and unreasonable as a practical matter to expect all police officers to be trained to the level of constitutional lawyers. Moreover, in Vermont, we are talking about rural officers in small communities, as well as part-time police, traffic control officers and others whose experience with complex constitutional problems is rare at best. In my view the training of police to the level implied by the suggestion is simply not feasible.
I find the majority‘s quote from Justice Stewart ironic in its truth:
It is true that, as many observers have charged, the effect of the rule is to deprive the courts of extremely relevant, often direct evidence of the guilt of the defendant. But these same critics sometimes fail to acknowledge that, in many instances, the same extremely relevant evidence would not have been obtained had the police officer complied with the commands of the fourth amendment in the first place.
This quote illustrates my concerns perhaps as well, if not better, than a more affirmative citation. I might precede my discussion of this quote by noting that it distinguishes between the exclusionary rule and the
The federal exclusionary rule is a child of the
And it is true, as Justice Stewart pointed out, and as it applies here (assuming
In either case, if a successful prosecution is no longer possible, as well may be the case here, the majority has once again cooperated with the criminal element by ignoring and refusing to balance other legitimate constitutional rights, thereby condoning and cooperating in another violation of the anti-drug laws.
The quotation from Justice Stewart illustrates my concern for the refusal either to balance or to adopt a good-faith exception. The majority builds on it by visualizing certain unfortunate consequences resulting from the adoption of the exception. Without addressing each of them separately, overall they postulate a lazy indifference on the part of judges, prosecutors and the police. I see this as an unwarranted insult to the integrity of our public officers in which I cannot join. Moreover, as I noted earlier, good faith is a question of fact as much as any other; it requires adequate supporting evidence and can be controlled by the courts — ultimately by this Court — to the same extent as any other evidentiary issue. This Court is not as ineffective and helpless as the majority tries to make it appear.
Finally, the majority contends that
Secondly, defective-warrant cases are substantially less frequent than warrantless searches, per se, in which judge participation is not involved at all in the first instance — as, for example, in Kirchoff, Badger, and the DUI roadblock cases. Warrantless searches and seizures are the veritable target of
The majority concedes that its calamity-howling is speculative, and without empirical support. This can be said of any new rule created by judicial fiat. It is ironic that when new judge-made law serves to relax the burden of criminal defendants and ease the difficulties of committing offenses against the people, they are greeted understandably with great enthusiasm by the defense community. On the other hand, when a new proposal appears on the horizon that will help to deter criminal activity, the activist cavalry calls the muster roll, and comes galloping over the ridge to the rescue with sabers drawn, guidon snapping bravely in the wind, and its bugle sounding the charge, all in a manner the unhappy George Custer would have welcomed at the Little Big Horn.
The benefits of a good-faith exception may also be speculative to a degree, but that is no justification for rejecting it, any more than were the dissenting predictions in Miranda. The exception could be a breath of fresh air of hope in the war against drugs, as was Record in the struggle against drunk driving. In my judgment, any abuses can be controlled by this Court.
The good-faith exception need not be justified on an economic basis alone, as in Leon. It is a desirable and controllable device which would help to deter rather than encourage crime. There should be a balancing of rights. The failure of the majority is contrary to clear precedent and against the public interest. Included in that balancing should be the exception. It should be adopted.
In re Agency of Transportation
[596 A.2d 358]
No. 90-299
Present: Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.
Opinion Filed July 12, 1991
Notes
United States v. Leon, 468 U.S. 897, 929 (1984) (Brennan, J., dissenting).The Court seeks to justify [its] result on the ground that the “costs” of adhering to the exclusionary rule in cases like those before us exceed the “benefits.” But the language of deterrence and of cost/benefit analysis, if used indiscriminately, can have a narcotic effect. It creates an illusion of technical precision and ineluctability. It suggests that not only constitutional principle but also empirical data support the majority‘s result. When the Court‘s analysis is examined carefully, however, it is clear that we have not been treated to an honest assessment of the merits of the exclusionary rule, but have instead been drawn into a curious world where the “costs” of excluding illegally obtained evidence loom to exaggerated heights and where the “benefits” of such exclusion are made to disappear with a mere wave of the hand.
Our study also provides further evidence that the “cost” of the exclusionary rule in lost cases is slight when the police obtain a search warrant. While critics of the exclusionary rule argue that it it imposes a high cost on society by depriving the courts of reliable evidence and allowing criminals freedom, we have found that, in fact, few criminals are freed, and when they are, their crimes are not serious. Thus, the cost to society is limited.
Leon, 468 U.S. at 951 (Brennan, J., dissenting) (cross-references omitted) (emphasis in original); see also 1 W. LaFave, supra, n.7, § 1.3(c), at 52-53; Wasserstrom & Mertens, supra, n.7, at 103-04.The Court . . . mistakenly weighs the aggregated costs of exclusion in all cases, irrespective of the circumstances that led to exclusion, against the potential benefits associated with only those cases in which evidence is excluded because police reasonably but mistakenly believe that their conduct does not violate the Fourth Amendment. When such faulty scales are used, it is little wonder that the balance tips in favor of restricting the application of the rule.