STATE of Vermont v. Cindy L. SCHOFNER and Peter C. Tripp
No. 99-541
Supreme Court of Vermont
May 2, 2002
800 A.2d 1072
acted within its discretion in terminating mother‘s parental rights with respect to S.B., notwithstanding S.B.‘s stated opposition to termination and her desire to reunite with her mother. Cf. Cameron v. Cameron, 137 Vt. 12, 14, 398 A.2d 294, 295 (1979) (children‘s preferences must yield to paramount consideration of their well-being); In re Frederick P., 779 A.2d 957, 962 (Me. 2001) (after considering older children‘s doubts as to termination of their mother‘s parental rights, trial court acted within its discretion in determining that termination would be in children‘s best interest because of adverse effect mother would have on children in light of her manipulative nature and self-centered focus).
The situation here is unlike that in In re M.P., 542 N.W.2d 71 (Minn. Ct. App. 1996), a case relied upon by S.B. There, the court reversed and remanded a termination order because “the trial court did not make even conclusory findings tying the termination decision with the children‘s best interests,” and, more specifically, failed to indicate how it factored into its termination decision the stated desire of the 15-year-old juvenile that her mother‘s parental rights not be terminated. Id. at 75. The court concluded that, without findings, it was unable to review the juvenile‘s claim that the trial court failed to give her preference sufficient weight. Id. A year later, in another case, the same court rejected a similar argument, stating that, unlike the trial court in M.P., the trial court in that case considered, but rejected, the juvenile‘s preference against termination. In re D.J.N., 568 N.W.2d 170, 177 (Minn. Ct. App. 1997) (trial court‘s findings, including finding that termination order would allow juvenile to enjoy remaining four years of his childhood without acting as surrogate parent, demonstrated that court examined juvenile‘s best interests while considering his stated preference against termination). As in D.J.N., the family court here considered, but ultimately rejected, S.B.‘s stated preference.
As for S.B.‘s claim that the termination order serves no purpose, the family court expressed its belief that its order concluding the termination proceedings would allow S.B. to get beyond the turmoil she had been experiencing and to refocus on school and her community. S.B. contends the termination order will not free her for adoption because she can refuse to be adopted. That may be so, but S.B.‘s feelings about adoption may change with time. In any event, we have repeatedly stated “that a valid termination of parental rights does not depend on the availability of permanent foster care or adoption.” In re D.M., 162 Vt. 33, 40, 641 A.2d 774, 778 (1994); see In re E.B., 158 Vt. 8, 15, 603 A.2d 373, 377 (1992) (termination of residual parental rights does not depend on alternative placement).
Affirmed.
May 2, 2002.
In May 1999, two tax listers for the town of Walden were examining property for appraisal purposes. While conducting this appraisal, they noticed a new addition on the neighboring house, which belonged to defendants. The addition had not been part of defendants’ property appraisal in the past. To determine the value of the addition, the listers entered defendants’ property and proceeded to the house. They knocked on the front door, but found that no one was home. They then walked
Defendants were charged by information with felony marijuana cultivation in violation of
The Fourth Amendment to the United States Constitution states that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.”
The parties agree, however, that not all observational activities of governmental officials are searches for purposes of the Fourth Amendment. See, e.g., Commonwealth v. Cote, 444 N.E.2d 1282 (Mass. App. Ct. 1983) (incidental search by city gas employee does not implicate Fourth Amendment); United States v. Attson, 900 F.2d 1427, 1433 (9th Cir. 1990) (refusing to suppress blood alcohol evidence where government doctor withdrew defendant‘s blood for medical reasons and not to assist in a criminal investigation). Here we are dealing with a governmental official who does not have law enforcement responsibility. Although the United States Supreme Court has not explored the reach of the Fourth Amendment in such circumstances, other courts have. The proper approach is defined by the Ninth Circuit Court of Appeals in Attson:
Determining whether the conduct of a non-law enforcement governmental party is subject to the fourth amendment presents a question that is analytically quite similar to determining whether the conduct of a private party is subject to the fourth amendment. Both of these
analyses proceed from the premise that at its core the fourth amendment was designed to apply to the conduct of law enforcement officials engaged in criminal investigations and that if the application of the fourth amendment is to expand beyond that core, the conduct to which it expands must approximate the types of activities to which the amendment is primarily directed; in other words, such conduct must be considered a “search” or “seizure.” In addition, both analyses require us to gauge whether the party whose actions are challenged intended to assist the government in activities (“searches or seizures“) covered by the fourth amendment, or whether his motivation was independent of such considerations.
The application of this analysis is laid out persuasively in State v. Ellingsworth, 966 P.2d 1220 (Utah Ct. App. 1998), a more factually relevant case. In Ellingsworth, a state workers’ compensation fund claims adjuster gained access to defendant‘s medical records in connection with processing a workers’ compensation claim. The records, and other information uncovered by the adjuster, led eventually to the prosecution of defendant for workers’ compensation fraud, and defendant sought to suppress the records as the product of an illegal search. After evaluating Attson, and other decisions discussed below, the Ellingsworth court determined that the proper standard is “whether an actor‘s ‘intent and purpose in conducting the search . . . is in the person‘s own interest or to further law enforcement,’ . . . and [it] equally applies to private individuals or non-law enforcement government agents.” Id. at 1225 (quoting State v. Koury, 824 P.2d 474, 477 (Utah Ct. App. 1991)). Using this standard, the court reached the following conclusion:
In this case, the WCF agents investigating defendant‘s workers’ compensation claims were doing so solely to determine defendant‘s eligibility for workers compensation benefits. Thus, they had a purpose completely independent of law enforcement. . . . This situation is analogous to [that] . . . in which private investigations were held not to be “state action” because the parties’ intent was primarily to benefit private interests and not law enforcement. Further, the attorney general‘s office did not seek defendant‘s medical records, nor did it advise the WCF agents on how to proceed in pursuing WCF‘s investigation of defendant. Finally, the WCF agents were not rewarded for reporting defendant‘s fraudulent action for criminal investigation. Thus we conclude that the WCF did not engage in “state action” that implicates the Fourth Amendment when it investigated defendant‘s claim for its own benefit and without law enforcement involvement.
Id. In reaching this conclusion, it relied upon two earlier decisions, People v. McKendrick, 468 N.W.2d 903, 911 (Mich. Ct. App. 1991), and Cote, 444 N.E.2d at 1287, which held that “searches” by government workers not involved in law enforcement do not violate the Fourth Amendment.
In McKendrick, a lawn service was hired by the city to cut defendant‘s lawn because it was overgrown in violation of a city ordinance. During the cutting, the workers found marijuana plants in buckets placed out in the lawn. Although the court found that the workers were employees or agents of the city when they uncovered the marijuana, it did not find a Fourth Amendment search primarily because the workers did not enter the property with the intent to conduct a search or to aid the city
In Cote, a city electric meter reader discovered an illegal gas hookup while reading the meters in defendant‘s building. Emphasizing that “mere employment by an arm of government is not enough to make an actor a government agent for purposes of the Fourth Amendment,” 444 N.E.2d at 1286, the court found that no Fourth Amendment search occurred because the meter reader was not involved with law enforcement personnel and worked for a separate branch of government with a proprietary function. Id.
We believe that the trial court went wrong in this case by characterizing the lister‘s conduct as an “investigatory or administrative search” as in O‘Connor v. Ortega, 480 U.S. 709 (1987); New Jersey v. T.L.O., 469 U.S. 325 (1985); Marshall v. Barlow‘s, Inc., 436 U.S. 307 (1978); and Camara, 387 U.S. 523. Although we agree that the applicability of the Fourth Amendment is not limited to criminal investigations, we cannot agree that it necessarily applies to any investigations, broadly defined. As the Court observed in T.L.O., the investigation cases involve alleged breaches of statutory or regulatory standards. 469 U.S. at 335. Moreover, the violation in each is the failure to obtain advance approval for a search by way of a warrant, a requirement wholly inapplicable when the ground for entry is not connected with a violation of law.2 See Marshall, 436 U.S. at 312-13. Thus, all the investigation cases deal with law enforcement, whether criminal, civil or administrative. In each of these cases, there was an investigation into a suspected violation of some law, regulation, policy or rule. There was a subjective motivation present in these cases that is lacking in the case before us: namely, to investigate some breach or wrongdoing.
As in Ellingsworth, this case involves a governmental employee who was involved in fact-finding to determine how to apply a particular law, here the property tax law. We have described the work of the listers in making an appraisal as “judicial in character.” Potter v. Town of Clarendon, 118 Vt. 278, 280, 108 A.2d 394, 396 (1954). The lister had no law enforcement motive and no involvement with law enforcement officials. The lister received no benefit from reporting the presence of the marijuana and faced no adverse consequences from failing to do so. In the terminology of Attson, the activities of a lister do not follow or parallel the activities of a law enforcement officer. Following the decisions from other states, we hold that no Fourth Amendment search occurred when the lister encountered the marijuana. Accordingly, we reverse the decision holding the warrant defective and suppressing the marijuana and drug paraphernalia
Having determined that there was no search conducted by the listers that is subject to the Fourth Amendment, we need not address whether the listers acted reasonably or lawfully in entering the property without defendants’ express consent. Nor do we need to explore in any depth whether a different analysis or result might be commanded by Chapter I, Article 11 of the Vermont Constitution. The trial court relied solely on the Fourth Amendment in reaching its decision that the evidence from the search must be suppressed. Although defendants in their motions below, and brief here, also challenged the warrant on the basis that the listers’ actions violated Chapter I, Article 11 of the Vermont Constitution, they failed to articulate any basis that would justify affording them greater protection under Article 11 than is required by the Fourth Amendment. Defendants bear the burden of demonstrating why the Vermont Constitution is more restrictive than the United States Constitution and have failed to meet it. State v. Meyer, 167 Vt. 608, 610, 708 A.2d 1343, 1344 (1998) (mem.).
Reversed and remanded.
Johnson, J., dissenting. The majority reverses the trial court‘s order suppressing evidence in this case because it finds no constitutional impediment to town listers coming onto private property and inspecting the exterior of homes without advance notice or the consent of the property owners. According to the majority, the conduct of listers in inspecting private homes is not constrained by the Fourth Amendment and thus does not implicate constitutional privacy rights. Hence, the majority declines even to consider “whether the listers acted reasonably or lawfully in entering the [homeowners‘] property without [their] express consent.”
I believe that this holding is inconsistent with controlling United States Supreme Court case law, and that it undermines the right of privacy established under both the Fourth Amendment and Article 11 of the Vermont Constitution.1 In my view, our system of property tax appraisal does not, and cannot, require us to relinquish our constitutional rights of privacy. We can, and must, preserve those rights and, at the same time, establish reasonable guidelines for the assessment of real property. Accordingly, I dissent.
Without question, the actions of the listers would have been unconstitutional had
majority, however, none of this matters because town listers are simply not answerable to constitutional restraints.
This pronouncement is significant enough, but the scope of the majority‘s opinion appears to be even more far-reaching. Apparently, any government inspectors performing their duties have free reign to examine our homes unhindered by constitutional constraints, so long as they are not engaged in law enforcement activities arising from suspicion of specific criminal or regulatory violations. Under this analysis, the timing or manner of the intrusion is inconsequential and beyond redress because the reasonableness of the search is of no import.
Today‘s decision diminishes the privacy rights of all Vermonters, particularly those who have neither committed nor been suspected of having committed a crime. Indeed, only in rare instances will inspections lead to criminal proceedings. I am concerned mostly for the vast majority of Vermonters who are willing to be subjected to reasonable administrative inspections but “do desire protection from officious administrators who insist upon carrying out their duties without due regard for the resident‘s convenience, privacy, and dignity.” See 4 W. LaFave, Search and Seizure § 10.1(g), at 397 (3d ed. 1996).
In the majority‘s view, Vermonters may not look to the United States Constitution for such protection. Nor is there any protection under existing statutory law. While the Legislature instructs listers to “make such personal examination of the property which they are required to appraise as will enable them to appraise it at its fair market value,”
The way to solve this problem is not to ignore it or deny that it exists, as the majority has done, but rather to recognize the privacy interests at stake and recommend a solution that will protect those interests while allowing listers to fulfill their duty to examine private property. I would hold that the Fourth Amendment does apply to the activities of town listers in examining private property. I would further hold that the privacy rights protected by the Fourth Amendment are violated when listers are given unbridled discretion to inspect private property without consent or, alternatively, compliance with reasonable statutory standards concerning advance notice and the timing, manner and scope of the listers’ activities.
I. Government Action
As the United Supreme Court has recognized in “countless decisions,” the fundamental and overriding purpose of the Fourth Amendment “is to safeguard the privacy and security of individuals against arbitrary invasions by governmental officials.” New Jersey v. T.L.O., 469 U.S. 325, 335 (1985) (quoting Camara v. Municipal Court, 387 U.S. 523, 528 (1967)). The Fourth Amendment is a
constraint upon government only, however, and therefore does not apply to limit illegal searches by private individuals. See LaFave, supra, § 1.8, at 217. According to the majority, listers are not engaged in law enforcement activities, i.e., investigating regulatory violations or criminal wrongdoing, and thus are to be considered private persons immune from the constraints of the Fourth Amendment.
That analysis does not hold up. The Supreme Court has long emphasized that the Fourth Amendment‘s strictures impose restraints, not only upon police, but also upon governmental action in general. T.L.O., 469 U.S. at 335. Thus, the Fourth Amendment is applicable to the activities of civil governmental authorities such as public school officials, id. at 333, building inspectors, Camara, 387 U.S. at 528, health and safety inspectors, Marshall v. Barlow‘s, Inc., 436 U.S. 307, 312-13 (1978), and firefighters, Michigan v. Tyler, 436 U.S. 499, 506 (1978). The reasoning behind these decisions is simple: the fundamental interest to be protected — individual privacy — suffers irrespective of the source of the governmental intrusion. T.L.O., 469 U.S. at 335. As the Supreme Court has stated time and time again, “it would be ‘anomalous to say that the individual and his private property are fully protected by the Fourth Amendment only when the individual is suspected of criminal behavior.‘” Id. (quoting Camara, 387 U.S. at 530). The critical issue is not whether the government employee is acting in a law enforcement capacity investigating criminal wrongdoing, but rather whether the employee is on a government mission.
Thus, the Fourth Amendment extends to administrative inspections, most of which are made in the course of periodic or area inspection programs, and not in response to specific complaints. LaFave, supra, § 10.1, at 368. As noted, the United States Supreme Court has rejected the notion that the privacy rights established in the Fourth Amendment depend upon whether the search was part of a criminal investigation that might lead to prosecution. Id. at 371-72 (in Camara,
In the past, a number of courts concluded, as the majority does today, that the activities of governmental employees “carrying out of public functions which do not strictly speaking fall within the realm of law enforcement” are not covered by the Fourth Amendment. LaFave, supra, § 1.8(d), at 253-54. But after the Supreme Court‘s decision in T.L.O., it is plain that “these cases are wrongly decided.” Id. at 254. Although the “reasoning in T.L.O. leaves room for the argument, accepted in United States v. Attson [900 F.2d 1427 (9th Cir. 1990], that there are still some governmental employees whose activities do not constitute Fourth Amendment ‘searches and seizures,‘” id. at 255, neither Attson nor any of the other cases relied upon by the majority demonstrate that such a conclusion is warranted in this appeal.
The cases relied upon by the majority stand principally for the proposition, not relevant here, that the Fourth Amendment does not constrain the activities of persons acting in an essentially private capacity merely because they happen to be government employees. In each of those cases, which are discussed below, the government employee was not on a government mission, but rather was acting in essentially a private capacity.
In contrast, here it is undisputed that the town listers are government officials who were performing their governmental duties when they inspected defendants’ home. Without question, their conduct had an “investigatory or administrative purpose designed to elicit a benefit for the government,” Attson, 900 F.2d at 1430, that is, to aid the municipal government in assessing property taxes, one of the most basic and powerful functions of government.4 Their aim was plainly to benefit the Town of Walden and to protect taxpayers collectively by assuring that defendants were being assessed based upon the full value of their home. Unlike the government employees in the cases discussed below, the listers were not acting merely as private persons who happened to be government employees. Rather, they were inspecting property in their capacity as government agents. Thus, under the controlling precedent, their activities are subject to the Fourth Amendment, as well they should be.
Attson, a Ninth Circuit Court of Appeals case upon which the majority relies heavily, does not support a contrary view. In that case, the defendant, who had been involved in an automobile accident, was taken to a hospital, where he consented to a blood sample for medical purposes only. Eventually, the hospital released the results of the sample pursuant to a grand jury subpoena, and the defendant was convicted
Citing the trial court‘s finding that the doctor had taken a sample of the defendant‘s blood purely for medical reasons, the Ninth Circuit held that the doctor‘s “mere status as a governmental employee” was not enough to trigger application of the Fourth Amendment. Id. at 1433-34. Because the doctor was acting in the same capacity as any private physician and was not “motivated by some sort of investigatory or administrative purpose designed to elicit a benefit for the government,” id. at 1430, the Fourth Amendment did not apply. Of course, as noted above, the opposite is true in our case. Rather than acting as private persons, the listers were performing their official duties to benefit the Town of Walden.
The other cases relied upon by the majority sound a similar theme. In State v. Ellingsworth, 966 P.2d 1220 (Utah Ct. App. 1998), a workers’ compensation adjuster employed by a quasi-government corporation obtained and examined the defendant‘s medical records while reviewing her claim for benefits. Eventually, the defendant was prosecuted for insurance fraud after a workers’ compensation investigator forwarded the defendant‘s case history to the attorney general‘s office pursuant to a statute requiring insurance agents to release information related to suspected fraud. The defendant argued that the use of her medical records in the criminal trial violated her Fourth Amendment rights. The ap-pellate court rejected this argument, holding that the Fourth Amendment did, not apply because the adjuster “was acting like any other private insurer” in reviewing the defendant‘s claim for benefits to protect its own interests unrelated to law enforcement. Id. at 1225.
Similarly, in Commonwealth v. Cote, 444 N.E.2d 1282 (Mass. App. Ct. 1983), a meter reader working for a municipally-owned, public-regulated utility was checking a gas meter in the basement of an apartment building when he noticed an illegal, unmetered gas hook-up, which he reported to police. At his larceny trial, the apartment owner argued that the evidence observed by the public utility employee should be suppressed. The court rejected this argument, ruling that neither “mere employment by an arm of government” nor the “mere fact of State regulation” implicates the Fourth Amendment. Id. at 1285-86. The court emphasized that the meter reader had a legal right to be on the premises pursuant to a statute that made “no distinction between employees of publicly owned and privately owned utilities,” and that furthered only the “proprietary functions of utility companies without regard to their public or private ownership.” Id. at 1286. Thus, as in Attson and Ellingsworth, the government employee was acting in essentially a private capacity and was not motivated by some sort of investigatory or administrative purpose designed to benefit the government.
The same can be said of the “government actor” in People v. McKendrick, 468 N.W.2d 903 (Mich. Ct. App. 1991). That case concerned a city ordinance that gave the city the right to enter upon any unfenced private property to cut down overgrown weeds, as long as advance warnings and notices were given. When
State v. Smith, 763 P.2d 632 (Kan. 1988), cited by LaFave, supra, § 1.8(d), at 258-59, is another case in which the Fourth Amendment was not applied to private conduct engaged in by a government employee. There, a state park employee was performing trash removal duties when he heard a hissing sound and entered a cabin to determine its source. He found a leaking hose and turned off the water, but in the process noticed several bags of marijuana. He notified police, and the lessees of the cabin were prosecuted. At trial, in response to defendants’ motion to suppress, the court determined that the Fourth Amendment did not apply because the park employee‘s “actions were tantamount to those of a private citizen with no different status than that of an employee of an independent privately owned trash service.” Id. at 637-38 (park employee was acting as “good neighbor” and not for any purpose connected with his employment).
After reviewing the relevant United States Supreme Court case law, the court in Smith found one “common thread” in those cases:
In every case [in which the Supreme Court has held the Fourth Amendment to be applicable], the search has been conducted or sought by government “officials” or “agents” as a part of their regular duties of employment and were conducted within the scope of that employment. No case has been cited by counsel, and our research has found none, in which the sole basis for invoking the Fourth Amendment protections
was the mere fact that the person who discovered the incriminating evidence happened to be a government employee as opposed to a private citizen. In every case the search or proposed search has furthered the government‘s objectives as they relate to the duties of the government employee.
Id. at 637. Plainly, under this analysis, the listers’ actions in the instant case are subject to the Fourth Amendment‘s constraints on government action.
In short, the cases relied upon by the majority do not support its analysis. The majority purports to be “[f]ollowing the decisions from other states,” but cites no cases to support its specific holding that the listers’ inspection was not a search under the Fourth Amendment. In fact, the only case directly on point — State v. Vonhof, 751 P.2d 1221 (Wash. Ct. App. 1988) — explicitly rejects the position taken by the majority. There, a tax appraiser working for the county entered the defendants’ property, uninvited, to measure the dimensions of a new porch addition. Upon approaching an outbuilding, he smelled marijuana, left the premises, and contacted police. Like the majority in the instant case, the trial court concluded that the visit by the tax appraiser was not a search under the Fourth Amendment because the appraiser was not acting with law enforcement authority. The appellate court rejected this reasoning, ruling that the tax appraiser was acting as a government official, and not as a private citizen, and that it was not essential that he have law enforcement
The court concluded, however, that there was no unconstitutional search because a statute expressly authorized the tax appraiser to examine property “at any reasonable time,” and, under the factors enumerated in a prior decision, the search was not unreasonable. Id. at 1224-25. Thus, Vonhof provides no support for the majority‘s view that the Fourth Amendment does not apply to listers inspecting private property.6
II. Reasonableness
I would hold that property tax inspections performed without advance notice or consent, and without being circumscribed in any manner by statutory law, are unreasonable.7 The Supreme Court
has recognized that in determining the validity of a search, reasonableness is the “ultimate standard.” Camara, 387 U.S. at 539. The reasonableness of a search is determined by “balancing the need to search against the invasion which the search entails.” Id. at 536-37. The greater the need for the search, the more willing we are to tolerate intrusiveness; when there is virtually no need for the search, then no intrusion is warranted. This is the appropriate standard for administrative searches, including inspections by tax appraisers, which are not aimed at investigating suspicion of criminal activity. Cf. State v. Martin, 145 Vt. 562, 568, 496 A.2d 442, 446 (1985) (constitutionality of DUI roadblock depends upon reasonableness of seizure, as determined by weighing public interest in seizure against degree of intrusion into personal privacy).
In this case, then, we should balance the listers’ need to conduct their inspections without advance notice, consent, or statutory constraints against the invasion of individual privacy resulting from such inspections. The right of Vermonters to be secure from governmental invasions of their homes is of vital interest, of course. As was the case here, listers often examine private areas within the curtilage of the home that are entitled to the same constitutional protections as the home itself. On the other hand, there is no evidence in the
There is no question that town listers need to be able to inspect private property to fulfill the government‘s duty to assure that property is assessed fairly. Rather, the probative question is whether listers need to have, or should have, unfettered discretion to inspect private property at any time without advance notice, without the consent of the homeowner or occupant, and without being subject to any statutory or constitutional constraints. I say no. As was the case in Camara, the homeowner or occupant has “no way of knowing the lawful limits of the inspector‘s power to search, and no way of knowing whether the inspector . . . is acting under proper authorization.” 387 U.S. at 532. The homeowner or occupant “may never learn any more about the reason for the inspection than that the law generally allows . . . inspectors to gain entry.” Id. “The practical effect of this system is to leave the occupant subject to the discretion of the official in the field.” Id.
III. Solution
We do not have to strip Vermonters of their constitutional rights to have a workable, convenient real property assessment system. It is possible in the realm of administrative inspections to develop procedures for safeguarding individual rights without impeding impor-
tant government functions. Here are two possible solutions.
First, if town listers are to be given the authority to inspect homes without the owners’ or occupants’ consent, then there must be a statutory scheme that defines and regulates their right to entry by circumscribing the purpose, scope, manner, and timing of the inspections, and by providing reasonable advance notice. Cf. Wyman v. James, 400 U.S. 309, 326 (1971) (holding that, as structured, program requiring home visitation by caseworker as condition for welfare benefits did not violate Fourth Amendment, given numerous statutory safeguards, including advance notice);
Such a statute would benefit listers by definitively establishing the scope of their right to enter onto and inspect real property. The principal purpose of the statute would be to protect the privacy rights of all Vermonters, not just the very few who might take the opportunity to avoid detection for criminal activities. Indeed, perhaps the most important privacy interest of the vast majority of people willing to subject their property to inspection is not having the inspector witness conditions wholly unconnected to criminal or regulatory violations but nonetheless embarrassing to them. See LaFave, supra, § 10.1(g), at 397.
on the property, the appeal shall be deemed withdrawn.“).
Because I believe that giving unfettered discretion to government officials to inspect private property without any legal restraints on their conduct violates our basic constitutional right to be free from unreasonable governmental intrusions into our private lives, I would affirm the trial court‘s decision granting defendants’ motion to suppress. The warrant used to search defendants’ home was based solely on statements that the lister made to state police. In my view, those statements relayed knowledge gained in violation of defendants’ constitutional rights, and thus must be expunged from the affidavits supporting the warrant. See State v. Morris, 165 Vt. 111, 126, 680 A.2d at 100. Without the lister‘s statements, the warrant would be unsupported, see State v. Moran, 141 Vt. 10, 16, 444 A.2d 879, 882 (1982), and any evidence seized from execution of the warrant would have to be suppressed. See Mapp v. Ohio, 367 U.S. 643, 656 (1961); State v. Badger, 141 Vt. 430, 452-53, 450 A.2d 336, 349 (1982).
MARILYN S. JOHNSON
ASSOCIATE JUSTICE