Appeal from Superior Court, Chittenden Unit, Criminal
R. Fenster, J. David Tartter, Deputy State's Attorney,
Montpelier, for Plaintiff-Appellee.
Samantha V. Lednicky of Murdoch Hughes Twarog Tarnelli,
Burlington, for Defendant-Appellant.
PRESENT: Reiber, C.J., Skoglund, Robinson, Eaton and Carroll,
1. Defendant, Clyde Bovat, was convicted of shooting a deer
in violation of Vermont big-game-hunting laws and failing to
immediately tag the deer. On appeal he claims the trial court
erred in denying his motion to suppress evidence allegedly
obtained in violation of his constitutional right to be free
from warrantless government intrusions. For the forthcoming
reasons, we affirm.
2. In the early morning hours of Thanksgiving 2017, a
resident of Huntington, Vermont was awoken by a gunshot close
to his home on Hinesburg Hollow Road. The concerned resident
called the state game warden to report a possible deer
jacking. The warden arrived at the scene and spoke with the
resident, who advised that the gun shot woke him shortly
before 4:00 a.m. and that it rattled his windows. The
resident said that he looked out his window and saw a
dark-colored truck with "running lights on top." A
preliminary search by the warden revealed no evidence of a
deer jacking. The warden returned later that morning, at
approximately 7:00 a.m., to inspect the scene more closely
and located deer tracks along the southern shoulder of the
road. At the approximate location the resident had described
seeing the truck parked, the warden found what he believed to
be deer hair and blood. He collected samples for evidence.
3. In the course of the investigation, the warden interviewed
E.S., who reported shooting a six-point buck at 7:00 a.m. on
Thanksgiving morning in Hinesburg. After some equivocation,
E.S. informed the warden that he had not shot the deer and
that defendant had sold him the deer carcass at
"Clark's Barn." The partially butchered carcass
was seized as evidence. Then the warden, along with other law
enforcement officers, went to defendant's residence to
4. Law enforcement officers proceeded up defendant's
driveway to the two-bay detached garage. Through a window in
the garage door, the wardens observed the rear tailgate and
license plate of defendant's black pickup truck. The
wardens also saw what appeared to be deer hair and blood on
the top of the truck's rear tailgate, which was
"approximately one arm's length" from the
wardens' vantage point. As the tailgate was closed, the
wardens were unable to see into the bed of the truck or the
interior side of the tailgate.
5. The wardens went to defendant's front door, spoke with
his wife, and asked for her permission to enter the garage.
Defendant's wife said that she couldn't find the key
and was therefore unable to open the garage door.
6. Based in part on their observations through the garage
window, the wardens obtained a search warrant to seize
defendant's truck and collected samples of the blood they
had observed, which matched a sample from the deer at issue.
They did not photograph the truck until approximately five
days after the seizure, during which time the truck had been
left outside in inclement weather. Due to exposure to the
elements, a smaller amount of blood than originally observed
was visible, and the deer hair was no longer visible.
7. Prior to trial, defendant sought to suppress the evidence
obtained through the search warrant, arguing that: (1) his
garage falls squarely within the curtilage of his home and is
protected from warrantless government intrusions; (2) law
enforcement had no lawful basis to peer through his garage
window; (3) even if the garage is not within the curtilage of
his home, sufficient steps were taken to exclude its interior
from public view; (4) absent the unlawful intrusion into his
garage, there was no probable cause to issue a search warrant
and the evidence obtained must be suppressed; and (5) the
warden included false and misleading statements as well as
material omissions in his affidavit of probable cause.
8. The trial court denied the suppression motion. The court
held that the garage, which "is located a significant
distance from the home, . . . separated by a row of
trees" and a small stone wall, was not part of the
curtilage. However, the court noted that even if the garage
was part of the curtilage, the warden had a legitimate right
to be on defendant's driveway and the garage window was
in plain view, emphasizing that the wardens entered the
driveway to conduct legitimate police business.
9. On appeal, defendant argues that the court erred in
denying his motion to suppress because: (1) his garage is
within the curtilage of his home; (2) his truck's
tailgate and license plate were not clearly visible from a
lawful public vantage point; and (3) the warden included
false or misleading statements and material omissions in his
affidavit in support of the search warrant which constituted
a Franks violation. See Franks v. Delaware,
438 U.S. 154 (1978).
10. We agree with defendant that his garage is within the
curtilage of his home. We are unpersuaded by his remaining
arguments. The wardens were conducting a legitimate police
investigation, during which they observed defendant's
truck in plain view from a semiprivate area. We decline to
address the merits of defendant's Franks
challenge because the challenged statements were not
necessary to the probable cause to issue a search
warrant. Accordingly, we affirm.
11. When reviewing a motion to suppress, we review the trial
court's factual findings for clear error. State v.
Dubaniewicz, 2019 VT 13, ¶ 14, ___ Vt. ___, 208
A.3d 619. The trial court's findings are upheld unless
there is no reasonable or credible evidence to support them.
State v. Weisler, 2011 VT 96, ¶ 6, 190 Vt. 344,
35 A.3d 970. If the trial court's ...