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State v. Dupuis

Supreme Court of Vermont

August 17, 2018

State of Vermont
Ronald Dupuis

          On Appeal from Superior Court, Essex Unit, Criminal Division Elizabeth D. Mann, J.

          J. David Tartter, Deputy State's Attorney, Montpelier, for Plaintiff-Appellant.

          Kyle L. Hatt of Sleigh Law, St. Johnsbury, for Defendant-Appellee.

          PRESENT: Reiber, C.J., Skoglund, Robinson, Eaton and Carroll, JJ.

          ROBINSON, J.

         ¶ 1. In State v. Kirchoff this Court held that Chapter I, Article 11 of the Vermont Constitution protects against warrantless searches of "open fields" when the landowner objectively demonstrates his or her intent for privacy through actions such as posting "no trespass" signs. 156 Vt. 1, 10, 587 A.2d 988, 994 (1991). This case now calls on us to examine whether Article 11 provides the same protection when the warrantless search is for the purpose of enforcing hunting laws and the landowner has not strictly abided by Vermont's regulations for posting against hunting. The State appeals from the trial court's grant of defendant Ronald Dupuis's motion to suppress evidence arising from a game warden's warrantless search of his property, arguing that because defendant's "no trespass" postings did not comport with Vermont's hunting posting statute, he enjoyed no expectation of privacy. We disagree and affirm.

         ¶ 2. Defendant was charged with taking big game by illegal means as well as baiting and feeding deer. He filed a motion to suppress the evidence on which the charge was based. After an evidentiary hearing, the trial court made the following findings. On dates in September, October, and November 2016, a game warden with the Vermont Department of Fish and Wildlife hiked by foot onto a forested portion of defendant's land in the town of Bloomfield. The warden entered through a neighboring property approximately one mile up a steep hillside thick with blowdowns (described as harsh conditions extremely difficult to navigate) until he came to an ATV trail. He purposefully took this circuitous route to evade detection. The warden followed the trail until he came upon a blind built of timber at ground level with a salt block, apples, and acorns placed nearby.

         ¶ 3. Although the warden testified that he saw no signs posted, defendant and others testified, and the trial court found, that defendant had posted between twenty-five and thirty signs stating "no trespassing" or "keep out" around the perimeter of his property, located approximately 100 to 150 feet apart. A gate with multiple "no trespassing" signs blocked the main entrance onto defendant's property.[1] There was no evidence that the game warden had a warrant or suspicion of criminal activity at the time he entered defendant's land.

         ¶ 4. The trial court granted defendant's motion to suppress evidence obtained from the warden's warrantless search, ruling that it violated Chapter I, Article 11 of the Vermont Constitution. The court held that by posting his land to the extent that he had, defendant "took the steps necessary to clearly communicate to the reasonable person that the public was excluded from his Bloomfield property," thereby preserving his expectation of privacy. See Kirchoff, 156 Vt. at 10, 587 A.2d at 994. The court explained that the warden had not observed the signs because he took an abnormal course to reach defendant's property and therefore did not have the vantage point of the reasonable person under the test this Court established in Kirchoff. In so holding, the court rejected the State's argument that defendant lacked an expectation of privacy because he had not complied with Vermont's statute for posting against hunting. See 10 V.S.A. § 5201. The trial court granted the State's motion for interlocutory appeal pursuant to V.R.A.P. 5(b)(3).

         ¶ 5. On appeal, the State argues: (1) defendant did not effectively post his property to exclude hunters and thus he had no expectation of privacy relating to the regulation of hunting; and (2) the trial court erred in holding that the path that the warden took onto defendant's property prevented him from having the vantage point of a reasonable person.

         ¶ 6. We review the trial court's factual findings in connection with a motion to suppress with deference. State v. Williams, 2007 VT 85, ¶ 2, 182 Vt. 578, 933 A.2d 239 (mem.). In this case, the State only challenges the trial court's legal conclusions, which we review without deference. Id. The foundation of our analysis rests on the constitutional requirement that police get a warrant before searching most private property. That this requirement can apply to open fields when a property owner has taken sufficient steps to exclude others is well established. For the reasons set forth below, we reject the State's suggestion that the Vermont constitutional provisions concerning hunting, fishing, and trapping create an exemption to the warrant requirement for game wardens investigating hunting violations on private property. We further conclude that the trial court did not err in holding that the warden's vantage point was not that of a "reasonable person" because of the manner in which the warden entered the property.

         I. Article 11 and Open Fields

         ¶ 7. The starting point for our analysis is Chapter I, Article 11 of the Vermont Constitution-Vermont's counterpart to the Fourth Amendment to the U.S. Constitution-which states:

That the people have a right to hold themselves, their houses, papers, and possessions, free from search or seizure; and therefore warrants, without oath or affirmation first made, affording sufficient foundation for them, and whereby by any officer or messenger may be commanded or required to search suspected places, or to seize any person or persons, his, her or their property, not particularly described, are contrary to that right, and ought not to be granted.

         Article 11 shields against "unreasonable government intrusions into legitimate expectations of privacy." State v. Bryant, 2008 VT 39, ¶ 10, 183 Vt. 355, 950 A.2d 467 (quotation omitted). A central precept to Article 11 is the requirement that law enforcement receive a warrant before entering private property; warrantless searches are presumptively unreasonable. Id.; see also State v. Medina, 2014 VT 69, ¶ 13, 197 Vt. 63, 102 A.3d 661 ("Warrantless searches are . . . per se unreasonable."); State v. Morris, 165 Vt. 111, 115, 680 A.2d 90, 93 (1996) ("The first and foremost line of protection is the warrant requirement."). And while some warrantless searches are permissible, any exception to the warrant requirement "must be jealously and carefully drawn." State v. Savva, 159 Vt. 75, 85, 616 A.2d 774, 779 (1991) (quotation omitted). Hence, under Article 11, the warrant requirement reflects "the balance reached by the constitutional drafters, a balance in which the individual's interest in privacy outweighs the burdens imposed on law enforcement, such that those subjected to searches must be protected by advance judicial approval." Id. at 85-86, 616 A.2d at 780 (quotation omitted).[2]

         ¶ 8. The threshold question of whether police conduct amounts to a "search," thereby triggering the warrant requirement, is whether the area in question enjoys a reasonable expectation of privacy. Bryant, 2008 VT 39, ¶ 11. The reasonable expectation of privacy test is two-fold. First, one must exhibit an actual, subjective expectation of privacy, and, second, the expectation must be objectively reasonable. Id.; State v. Blow, 157 Vt. 513, 517, 602 A.2d 552, 555 (1991). If the landowner enjoys no reasonable expectation of privacy, then the search in question is not really a "search" at all. See, e.g., Kyllo v. United States, 533 U.S. 27, 32 (2001).

         ¶ 9. Applying these principles, this Court has recognized that Vermont's Constitution establishes greater protection against search and seizure of "open fields" than the U.S. Constitution, requiring that law enforcement officers secure warrants before searching open fields when the landowner demonstrates an expectation of privacy. Kirchoff, 156 Vt. at 1, 587 A.2d at 988. In Kirchoff, this Court explored whether the Article 11 warrant requirement applies to searches of "open fields"-areas of property other than the home itself or that immediately surrounding the home. Id. The defendant lived on a remote tract of land in the town of Lincoln. He posted "no trespassing" signs around his property, including the entrance of his driveway.[3]And although he allowed friends and neighbors to ride bicycles on the property, he "took actions to keep strangers" away. Responding to a tip that the defendant was growing marijuana, law enforcement officials, acting without a warrant, entered his land through an adjacent property. They passed the "no trespassing" signs along the way and eventually came to a marijuana patch approximately 100 yards from the defendant's house.

         ¶ 10. On appeal from the trial court's denial of the defendant's motion to suppress the evidence, this Court rejected the "open fields" exception to the warrant requirement established under the U.S. Constitution. See Oliver v. United States, 466 U.S. 170, 184 (1984). We instead formulated a test under Article 11 "that a lawful possessor may claim privacy in 'open fields' . . . where indicia would lead a reasonable person to conclude that the area is private." Kirchoff, 156 Vt. at 10, 587 A.2d at 994. We noted the corollary that Article 11 does not protect areas in which the landowner has taken no steps to exclude the public. Id. The test is objective: the landowner must manifest some indicia-fence, barriers, "no trespassing" signs-that demonstrate to a reasonable person that the public is not welcome. Id. Considering "the extensive posting of the [defendant's] land," the Court concluded that the "defendant's intent to exclude the public was unequivocal" and ruled that any evidence gathered because of the search must be excluded. Id. at 14, 587 A.2d at 996.

         ¶ 11. Since Kirchoff, this Court has reaffirmed that a landowner must signal an intent to exclude the public from "open fields" in order to maintain a constitutionally cognizable expectation of privacy. See State v. Costin, 168 Vt. 175, 179, 720 A.2d 866, 869 (1998) ("The obvious import of these decisions is that this defendant has no reasonable expectation of privacy in the area in which he tended his marijuana garden because he took no steps to exclude the public."); State v. Hall, 168 Vt. 327, 328-30, 719 A.2d 435, 436-37 (1998) (upholding warrantless entry of defendant's property because "no signs were posted, nor were other methods used, to indicate that defendant sought to exclude the public from the woods adjacent to his yard"); State v. Rogers, 161 Vt. 236, 245-49, 638 A.2d 569, 574-76 (1993) (holding that since defendant's privacy claim was based on natural barriers to land rather than "change caused by defendant's actions," he enjoyed no Article 11 protection); State v. Chester, 156 Vt. 638, 638, 587 A.2d 1008, 1008-09 (1991) (mem.) (holding that because "there were no barriers to entry to indicate defendant's intent to exclude the public" warrantless entry was permitted).

         II. Chapter II, § 67 and Vermont's Posting Statutes

         ¶ 12. We conclude that the protections of the Vermont Constitution for hunting, trapping, and fishing, and the associated implementing statutes, do not diminish a landowner's expectation of privacy against warrantless intrusion and do not require a reframing or exception to the framework we established in Kirchoff.

         ¶ 13. The State argues that despite the steps defendant concededly took to warn trespassers against entering his land, because he did not post his land in compliance with Vermont's statutes regulating posting against hunting, trapping, and fishing, the game warden was free to enter his land in the course of enforcing hunting laws. The State cites Chapter II, § 67 of the Vermont Constitution, which states:

The inhabitants of this State shall have liberty in seasonable times, to hunt and fowl on the lands they hold, and on other lands not inclosed, and in like manner to fish in all boatable and other waters (not private property) under proper regulations, to be made and provided by the General Assembly.

         And the State explains that the Legislature has implemented this constitutional provision through 10 V.S.A. § 5201, which sets forth the requirements for posting land against hunting without permission. That statute allows landowners to maintain notices prohibiting others from shooting, trapping, or taking game, and/or from fishing. Section 5201(b) specifies that "[n]otices prohibiting the taking of game shall be erected upon or near the boundaries of lands to be affected with notices at each corner and not over 400 feet apart along the boundaries thereof," and shall be legible, dated each year, and "of a standard size and design as the Commissioner shall specify."[4] Compliance with this subsection renders the land "enclosed." Id. § 5201(d). In addition, the landowner must record the postings annually in the local town clerk's office. Id. § 5201(c). The State's argument follows two steps. First, because defendant did not comply with § 5201 by failing to specify in his signs that hunting was prohibited, and by failing to record the signs with his town clerk for that calendar year, [5] members of the public could legally enter his property in order to hunt, notwithstanding his general notices against trespass. Second, because hunters could lawfully enter his property for hunting purposes, it follows that he had no reasonable expectation of privacy that would prevent game wardens seeking to enforce state fish and game laws from entering his property.

         ¶ 14. We need not address the first premise of the State's argument because we conclude that even if the State is correct that defendant's notices against trespass did not effectively exclude hunters from entering his open fields without permission, that would not change the standard we established in Kirchoff for assessing whether law enforcement may search open fields without a warrant.[6] We ground our conclusion on several considerations. First, in Kirchoff itself, we expressly acknowledged Ch. II, § 67 of the Vermont Constitution and expressly rejected any suggestion that that constitutional provision in any way qualified or limited our analysis of the applicability of the warrant requirement to open fields. Second, we note that, at most, the Vermont Constitution may create a limited right of entry under specified circumstances for limited purposes, not a global right of entry for all members of the public for any purpose. Even assuming this limited right of entry onto defendant's land, it does not follow that defendant has lost his reasonable expectation of privacy writ large, such that government agents can enter his property without a warrant. Third, notwithstanding the State's effort to limit the scope of its argument to warrantless entries by game wardens, its approach would render our analysis in Kirchoff and its progeny a virtual nullity. Finally, we decline the State's invitation to afford game wardens extra-constitutional privileges when it comes to warrantless intrusion on private land. We reject any argument that our analysis improperly stymies law enforcement efforts by game wardens.

         ¶ 15. This Court was not oblivious to the Vermont Constitution's provisions concerning hunting when we established the test in Kirchoff. In the context of our holding that a possessor of land may preserve a constitutionally protected interest in land outside the curtilage by "manifesting an intention to exclude the public by erecting barriers to entry, such as fences or by posting signs," we wrote the following:

Vermont law allows persons to enter lands for certain purposes under certain conditions. Chapter II, § 67, of the Vermont Constitution grants the people of this state the liberty "in seasonable times, to hunt and fowl on the lands they hold, and on other lands not inclosed . . . under proper regulations." Furthermore, 10 V.S.A. § 5212 limits a landowner's liability in negligence when the owner "gratuitously gives another permission . . ." to enter upon unposted land for "recreational purposes," such as "hunting, fishing, trapping, hiking, gathering wildflowers or berries, birdwatching, horseback riding, picnicking, swimming, skiing, snowshoeing and similar activities." These provisions evidence the state's policy of providing the public with certain privileges and liberties not permitted under the common law. They evidence no intent, however, to limit the right of landowners to pursue their affairs free from unregulated intrusion by officials.

156 Vt. at 11-12, 587 A.2d at 995 (citations omitted). In short, the very decision the State now seeks to qualify or reframe acknowledged that under the law people are allowed to enter lands for certain purposes-including hunting-and specifically rejected the suggestion that as a result possessors of land subject to such intrusions have a lessened expectation of privacy against governmental intrusion. Id. These considerations were integral to this Court's analysis in Kirchoff, and we essentially rejected the argument the State is now making.[7]

         ¶ 16. We did so for good reason. The impact of the posting statutes on a landowner's reasonable expectation of privacy is minimal. Chapter II, § 67, as construed by the State, undermines private property rights. See Cabot v. Thomas, 147 Vt. 207, 210, 514 A.2d 1021, 1037 (1986) (noting that issues raised by Vermont's constitutional provision regarding hunting "lie at the crosscurrents of two important concerns: the individual's desire for private enjoyment of privately owned land and the public's wish for sporting access to the forests, fields, and waterways of this state"); see also M. Sigmon, Note, Hunting and Posting on Private Land in America, 54 Duke L.J. 549, 568 (2004) ("The posting statutes create an obvious problem: they pit the rights of one group, hunters, against the rights of another group, landowners."). Accordingly, Chapter II, § 67 is narrow; it does not purport to give license for any member of the public to enter another's land for any purpose. That would profoundly undermine private property rights by eliminating the concept of trespass. At most, Chapter II, § 67 provides a limited right of access to another's private property for narrow, specified purposes. Law enforcement-even law enforcement related to hunting-is not among those narrow, specified purposes.

         ¶ 17. Moreover, the statutory steps required to cut off that limited right of access through posting, see 10 V.S.A. § 5201, per the State's argument, are far more onerous than those required to put uninvited members of the general public, and law enforcement, on notice that they are not welcome on private property. See 13 V.S.A. § 3705(a)(1)(C) (outlining notice requirements for criminal trespass). If the State is right, then to effectively exclude a hunter from one's property, a landowner must not only post signs of the requisite size, color contrast, and content no more than 400 feet apart around the perimeter of the boundary, but must re-post, or at least re-date the signs annually and must record the fact of the posting in the town clerk's office every year. For that reason, the legal tension here, if any, is not between Article 11 and Chapter II, § 67 of the Vermont Constitution; rather, it is between the constitutional protection against warrantless searches in Article 11 and the particular statutory posting requirements the Legislature has chosen to adopt in furtherance of § 67. Based on the dissent's reasoning, it does not matter how onerous the posting requirements are-if the Legislature required posting of chartreuse plastic signs every five feet and weekly registration with the town clerk to effectively post against hunting, the logic of the dissent is that failure to meet these requirements suggests a reduced reasonable expectation of privacy, no matter how clearly a property owner otherwise signals an intent to exclude all comers.

         ¶ 18. It does not follow that a landowner who has effectively put strangers on notice that they are not welcome on the private property surrenders the corresponding reasonable expectation of privacy by failing to take the more burdensome specific steps required to cut off the narrower right of access afforded to hunters.[8] See Rogers, 161 Vt. at 249, 638 A.2d at 576 ("Article 11 does not protect areas willingly exposed to the public." (quotation omitted)). As we explained in Morris, in rejecting the suggestion that by placing garbage in opaque bags at curbside people forfeit their expectation of privacy in the bags' content, "[t]he Vermont Constitution does not require the residents of this state to employ extraordinary or unlawful means to keep government authorities from examining discarded private effects." 165 Vt. at 119, 680 A.2d at 96; see also People v. Cook, 710 P.2d 299, 305 (Cal. 1985) ("[T]he Constitution does not provide that one is open to governmental inspection by any and all means ...

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