State v. Berard, 87-564

• Decision Date: 19 January 1990
• Docket Number: No. 87-564,87-564
• Parties: , 14 A.L.R.5th 1080 STATE of Vermont v. Leon G. BERARD.
• Court: Vermont Supreme Court

Page 118

576 A.2d 118

154 Vt. 306, 14 A.L.R.5th 1080

STATE of Vermont v. Leon G. BERARD.

No. 87-564.

Supreme Court of Vermont.

Jan. 19, 1990.

Motion for Reargument Denied May 8, 1990.

Jeffrey L. Amestoy, Atty. Gen., Montpelier, and Thomas J. Rushford, Asst. Atty. Gen., Waterbury, for plaintiff-appellee.

Walter M. Morris, Jr., Defender Gen., William A. Nelson, Appellate Defender, and Jeffrey Dworkin, Prisoners Rights Office, Montpelier, for defendant-appellant.

Before ALLEN, C.J., PECK and DOOLEY, JJ., and BARNEY, C.J. (Ret.) and SPRINGER, District Judge (Ret.), Specially Assigned.

ALLEN, Chief Justice.

Pursuant to V.R.A.P. 5(b), defendant brings this interlocutory appeal from the denial of his motion to suppress evidence seized during the random search of his prison cell. The certified question for review is whether the routine and random warrantless search of the defendant's cell, conducted without probable cause or any quantum of particularized suspicion, violates the defendant's rights under Chapter I, Article Eleven of the Vermont Constitution. We answer the certified question in the negative.

Defendant, an inmate at the Chittenden County Correctional Center (Center), is presently serving a sentence for assault and robbery. At the time of the search, he was sharing a room in a less restrictive wing of the Center with three other inmates.

The Department of Corrections requires the development of procedures for daily unannounced and irregularly timed searches. Accordingly, the Center has established procedures that require correctional officers to conduct two random and unannounced "shakedown" searches ¹ of inmates' cells during each of the three daily shifts. Corrections officers conduct these searches routinely and randomly at somewhat less frequency than the mandated six searches per day. The searches do not require probable cause or any degree of particularized suspicion.

In June of 1987, correctional officials at the Center noted the smell of marijuana smoke in the hallway of the unit where defendant's cell was located. In response, they stepped up the frequency of the routine, random searches. As part of this increased effort, defendant's room was searched. The trial court found that "[o]fficials had neither probable cause nor reasonable suspicion to believe that he or his roommates possessed contraband." Four officers conducted the search and found the marijuana under the radiator. Defendant was charged with possession of a regulated drug in violation of 18 V.S.A. § 4224(a). In a motion to suppress the marijuana seized, defendant argued that corrections officials conducted the search without probable cause and thereby violated Chapter I, Article Eleven of the Vermont Constitution.

After a suppression hearing, the trial court denied defendant's motion, concluding that the search was reasonable in light of the legitimate and overwhelming governmental interests in maintaining security and promoting program goals.

On appeal, defendant renews his argument that the search of his cell violated Chapter I, Article Eleven of the Vermont Constitution. In Hudson v. Palmer, 468 U.S. 517, 530, 104 S.Ct. 3194, 3202, 82 L.Ed.2d 393 (1984), the United States Supreme Court held that a person incarcerated after conviction for a crime retains no privacy or possessory rights and that the constitutional prohibition against unreasonable searches simply does not apply in a prison cell. Defendant asks that the Court not follow the Hudson holding in its interpretation of Article Eleven. In order to accommodate the State's law enforcement needs and Article Eleven's privacy values, defendant urges the Court to adopt a warrant requirement with a relaxed probable cause standard, akin to that required of administrative warrants under the Fourth Amendment of the United States Constitution as established by the Supreme Court in Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967).

I.

Chapter I, Article Eleven of the Vermont Constitution provides:

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.

The language of Article Eleven does not expressly limit its protection to "unreasonable" searches and seizures as does the Fourth Amendment to the United States Constitution. This Court, however, has consistently interpreted Article Eleven as importing the "reasonableness" criterion of the Fourth Amendment. State v. Jewett, 148 Vt. 324, 328, 532 A.2d 958, 960 (1986); State v. Badger, 141 Vt. 430, 454, 450 A.2d 336, 350 (1982). The parallels between Article Eleven and the Fourth Amendment have raised the question of when and how the state provision differs from the federal.

Both the self-incrimination and search and seizure provisions of the Vermont Constitution contain wording substantially different from the parallel clauses in the Federal Charter. Thus, it is possible that these clauses could be construed differently from somewhat similar provisions in the Federal Constitution or they may be given the same interpretation even though the language differs.

State v. Jewett, 146 Vt. 221, 226-27, 500 A.2d 233, 237 (1985); see State v. Wood, 148 Vt. 479, 481-82, 536 A.2d 902, 903-04 (1987).

In Hudson v. Palmer, the prisoner contended that the State violated his Fourth Amendment rights by intentionally destroying his noncontraband personal property during a random cell search. Concerned that random, warrantless cell searches could be used to harass inmates, the Court of Appeals held that the shakedown of a single prisoner's property is permissible only if "done pursuant to an established program of conducting random searches of single cells or groups of cells reasonably designed to deter or discover the possession of contraband" or upon reasonable belief that the particular prisoner possessed contraband. 697 F.2d 1220, 1224 (4th Cir.1983). The United States Supreme Court rejected that solution and concluded that "prisoners have no legitimate expectation of privacy and that the Fourth Amendment's prohibition on unreasonable searches does not apply in prison cells." 468 U.S. at 530, 104 S.Ct. at 3202. Therefore, no prisoner could challenge the reasonableness of a particular search, even if personal, noncontraband property were involved. The Supreme Court based this "bright line" rule upon implicit, fixed assumptions about the nature of prison life and prison administration that override the facts of particular cases and remove from the courts the critical job of reviewing the facts. Hudson v. Palmer conclusively presumes that prisoners have no legitimate expectation of privacy in their individual cells that would entitle them to Fourth Amendment protection, and thereby necessarily sanctions any official conduct whatsoever in the name of "legitimate institutional interests." 468 U.S. at 549, 104 S.Ct. at 3212 (Stevens, J., dissenting).

This Court has stated that "[i]n drafting Article Eleven, the framers of the Declaration of Rights vested responsibility and authority in the judiciary to review and restrain overreaching searches and seizures by the government." Wood, 148 Vt. at 487, 536 A.2d at 907. Thus, we seek to give effect to the design of Article Eleven and decline to follow parallel federal law, such as Hudson v. Palmer, which tends to derogate the central role of the judiciary in Article Eleven jurisprudence. Id. at 489, 536 A.2d at 908. Whatever the evolving federal standard, when interpreting Article Eleven, this Court will "abandon the warrant and probable-cause requirements, which constitute the standard of reasonableness for a government search that the Framers established, '[o]nly in those exceptional circumstances in which special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable....' " O'Connor v. Ortega, 480 U.S. 709, 741, 107 S.Ct. 1492, 1511, 94 L.Ed.2d 714 (1987) (Blackmun, J., dissenting and quoting New Jersey v. T.L.O., 469 U.S. 325, 351, 105 S.Ct. 733, 748, 83 L.Ed.2d 720 (1985) (opinion concurring in judgment)); see State v. Record, 150 Vt. 84, 97, 548 A.2d 422, 430 (1988) (Hill, J., dissenting).

In O'Connor, Justice Blackmun suggested a court should invoke a balancing test as the measure of Fourth Amendment values only when the warrant and probable cause requirements do not present a practical alternative and explained:

Through the balancing test, [courts] then try to identify a standard of reasonableness, other than the traditional one, suitable for the circumstances. The warrant and probable-cause requirements, however, continue to serve as a model in the formulation of the new standard.

480 U.S. at 744 n. 8, 107 S.Ct. at 1512 n. 8.

We conclude that the same rule should govern our interpretation of Article Eleven. While this Court has not explicitly announced a "special needs" standard in previous cases, we have noted the extraordinary factors underlying the relaxation of the traditional Fourth Amendment and Article Eleven tests. State v. Record, 150 Vt. at 89, 548 A.2d at 425-26 (relating to DUI roadblock stops under Article Eleven); State v. Martin, 145 Vt. 562, 568-69, 496 A.2d 442, 447 (1985) (relating to DUI roadblock stops under the Fourth Amendment). The interest of the state in the safe and orderly operation of Vermont's prisons is great and the expectation of privacy considerably diminished at best. Still, the maintenance of a "special needs" standard focuses attention on the nature and extent of those needs and allows the courts, as the traditional protectors of Fourth Amendment rig...