Lead Opinion
The State appeals, pursuant to 13 V.S.A. § 7403, from an order of the Caledonia District Court suppressing evidence of marijuana cultivation and possession seized with a warrant. The court concluded that the information supporting the warrant, discovered by town listers during a site visit, was obtained in violation of the Fourth Amendment to the United States Constitution. We do not decide whether the listers were lawfully on defendants’ land. We conclude that whether or not the listers
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 around the perimeter of the house and measured the size of the addition. During her observation of the external dimensions of the house, one of the listers saw eighteen potted mariguana plants on a short, stone walkway about fifteen feet from a basement door. She reported her findings to the state police, who obtained a warrant to search defendants’ house based on her observation of the marijuana plants. The search revealed twenty-three mariguana plants and other drug paraphernalia.
Defendants were charged by information with felony mariguana cultivation in violation of 18 V.SA. § 4230(a)(3), and misdemeanor possession of marijuana in violation of 18 V.SA § 4230(a)(1). Pursuant to V.R.Cr.P. 41(f), defendants moved that the court suppress all evidence obtained pursuant to the search warrant. They argued that the warrant-less entry onto their property by the listers was an unreasonable search by a government official and violated the Fourth Amendment to the United States Constitution and Chapter I, Article 11 of the Vermont Constitution. The court granted the motion, and the State appeals. On appeal, the State argues that: (1) the actions of the town lister do not trigger the protections of the Fourth Amendment; and (2) even if the Fourth Amendment is triggered, the lister’s actions were reasonable. We consider the first issue raised by the State. Because of our resolution of the first issue, we do not reach the second issue.
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.” U.S. Const, amend. IV. The Fourth Amendment is, of course, applicable to the states through the Fourteenth Amendment. The basic purpose of the Fourth Amendment is “to safeguard the privacy and security of individuals against arbitrary invasions by
The parties agree, however, that not ah observational activities of governmental officials are searches for purposes of the Fourth Amendment. See, e.g., Commonwealth v. Cote,
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,
In this ease, 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,
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 its law enforcement investigation efforts. McKendrick,
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,”
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,
As in EUingsworth, 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,
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,
Reversed and remanded.
Notes
The dissent is inconsistent in its attack on this decision. In the opening sentence it states that we have ruled that there is “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,” and without concern for our constitutional privacy rights. In footnote three, it criticizes our decision because we have failed to resolve whether listers “have the right to inspect private property without providing advance notice to, or obtaining consent from, the property owners!.]” We doubt we have the power to commit both offenses at once. The latter charge is factually accurate; the former charge is not. This is a criminal case in which the issue is whether evidence will be admitted against defendants. Resolution of that question does not require us to decide whether listers have the legal right to enter a taxpayer’s property without notice or consent. Neither the Town of Walden nor its listers are parties to this case. We prefer to resolve the issue bearing on the criminal responsibility of defendants and leave to another case to define the limits on how listers can appraise property.
Defendants’ position, here and in the trial court, was that the evidence must be suppressed unless the lister had consent to enter defendants’ property or a search warrant. Thus, defendants’ argument has been consistently that the lister’s action
Dissenting Opinion
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
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.
Without question, the actions of the listers would have been unconstitutional had this Court found their actions to be subject to the protections of the Fourth Amendment. The listers were inspecting a neighboring property when they noticed what they believed to be a new addition built onto the home of Peter Tripp and Cindy Schofner. They decided to investigate. After finding nobody home, they went onto the property uninvited and without advance warning to measure the addition. One of the listers then proceeded to circumnavigate the home “to see if there had been any more additions.” There is no dispute that; in doing so, the lister entered a private area of the home — the curtilage — that was excluded from public view and that was entitled to the same privacy protections as the home itself.
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,” 32 V.S.A. § 4041, there is no statute giving listers the right to enter onto private property,
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.,
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.,
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, Supreme Court overruled earlier decision suggesting that Fourth Amendment was limited to searches stemming from criminal investigations that might lead to prosecution). “It is a perversion of the exclusionary rule to conclude that the Fourth Amendment should protect most against the conviction of criminals.” Id. at 377. The fundamental and overriding purpose of the Fourth Amendment is to protect individual privacy, and the individual’s interest in privacy does not fluctuate with the intent of the intruding government officials. Id. at 377-78.
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 [
- 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
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,
Attson, a Ninth Circuit Court of Appeals ease 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 of manslaughter. On appeal, the defendant unsuccessfully argued that the trial court erred by not suppressing the sample, which had been taken by a doctor employed by the federal government. The Ninth Circuit Court of Appeals noted that the Fourth Amendment regulated only conduct “designed to elicit a benefit for the government in an investigatory or, more broadly, an administrative capacity” and “cannot be triggered simply because a person is acting on behalf of the government.” Attson,
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,
Similarly, in Commonwealth v. Cote,
The same can be said of the “government actor” in People v. McKendrick,
State v. Smith,
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*440 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 “[flollowing 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,
The court concluded, however, that there was no unconstitutional search because a statute ejqjressly authorized the tax appraiser to examine property “at any reasonable time,”
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.
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 record suggesting that towns have a vital interest in being able to inspect real property on an emergency basis without obtaining consent, providing advance notice, or abiding by a statute that circumscribes the manner and timing of the inspections.
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.”
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
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,
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.
Second, with or without statutory constraints, listers may also obtain consent for inspections. Notice of the intrusion would be appreciated, and, as a practical matter, few persons would refuse entry for such a purpose. See Marshall,
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,
As noted by the majority, defendants have failed to brief whether they are entitled to greater protection under Article 11. I do not, therefore, address whether Article 11 has a broader scope under the circumstances presented here. I note, however, that privacy concerns are at the heart of Article 11, see State v. Morris,
“The curtilage is an area outside the physical confines of a house into which the ‘privacies of life’ may extend,, and which receives the same constitutional protection from unreasonable searches and seizures as the home itself.” State v. Rogers,
The fact that the majority has refused to suppress criminal evidence uncovered as the result of the listers’ inspection of defendants’ property does not resolve the issue most pressing to town listers — do they have the right to inspect private property without providing advance notice to, or obtaining consent from, the property owners? That is the question that listers posed to an attorney for the Division of Property Valuation and Review. Because of the posture in which this case is presented, that question is not before the Court. Nonetheless, at present, the authority of listers to enter private property without consent is not established by statute, and is, therefore, questionable.
The information collected by the listers determines the amount of property tax levied, which if unpaid can lead to civil forfeiture or penalties. See generally 32 V.S.A. §§ 4601-5295 (assessment and collection of taxes). The role of the .lister is as much a part of government’s taxation power as the sheriff who might return to the property to collect delinquent taxes. See 32 V.S.A § 5139.
The Washington Supreme Court later recognized this ruling, citing Vonhof for the proposition that an inspection by a tax appraiser implicates constitutional privacy rights. See In re Maxfield,
The existence of a statute circumscribing the conduct of tax inspectors distinguishes Vonhof from the instant case, but I do not mean to suggest that a statute with language as vague as the Washington statute would suffice to erase constitutional concerns.
I fail to grasp the point of the majority’s assertion that I have transformed the issue contested by the parties —whether there was an unlawful search because of the lack of a warrant ■ — • into a novel issue — whether lister inspections are reasonable absent a statute circumscribing them. The issue in this appeal is whether the trial court erred in granting defendants’ motion to suppress. In reaching its ruling, the trial court considered first, whether the listers’ conduct triggered the Fourth Amendment’s protection against governmental intrusions, and second, after deciding that it did, whether the particular search in this instance was reasonable. Those are precisely the issues I examine in my dissent. I would hold that the Fourth Amendment was triggered, and that the search was not reasonable, given the lack of a statute circumscribing the listers’ conduct. Because of the nature of the governmental conduct here, the warrant requirement is
The only evidence in the record on this point is a memorandum from an attorney for the Division of Property Valuation and Review advising Vermont boards of listers in the wake of the district court’s decision in this case. The memorandum recommends that listers obtain consent and, failing that, appraise property based upon curbside inspections, review of available aerial photography, inventory forms, or calls to builders, neighbors, and real estate agents.
In the rare instances when consent to inspection is refused and the town believes that an inspection is necessary, a statute addressing lister inspections could allow towns to obtain a search warrant. See Camara,