State v. Blow

• Decision Date: 01 November 1991
• Docket Number: No. 88-422,88-422
• Citation: 157 Vt. 513,602 A.2d 552
• Court: Vermont Supreme Court
• Parties: STATE of Vermont v. Michael BLOW.

Page 552

602 A.2d 552

157 Vt. 513

STATE of Vermont v. Michael BLOW.

No. 88-422.

Supreme Court of Vermont.

Nov. 1, 1991.

Motion for Reargument Denied Dec. 5, 1991.

William Sorrell, Chittenden County State's Atty., Burlington, and Thomas M. Kelly, Drug Prosecutor, Dept. of State's Attys., Montpelier, for plaintiff-appellee.

Paul D. Jarvis of Jarvis & Kaplan, Burlington, for defendant-appellant.

Before ALLEN, C.J., and PECK, GIBSON, DOOLEY and MORSE, JJ.

ALLEN, Chief Justice.

Defendant appeals his conviction of two counts of dispensing marijuana in violation of 18 V.S.A. § 4224(g) and one count of obstructing justice in violation of 13 V.S.A. § 3015. We reverse and remand on all counts.

On March 6, 1987, a police informant met with a Burlington detective and indicated that he could purchase drugs from defendant. He was then equipped with an electronic audio transmitter and transported to defendant's residence, where he purchased marijuana. The detective monitored their conversation during the sale. The same procedure occurred five days later, with the same detective monitoring the conversations accompanying the sale. Defendant was later charged with two counts of dispensing marijuana to the informant. The obstruction of justice count was based on the informant's allegation that on November 27, 1987, defendant struck him for "ratting him out."

Defendant's pretrial motion to suppress the tape recordings of the transactions and the officer's testimony about them was granted. The trial judge, however, later ruled that the recordings and testimony could be used at trial, and the detective testified about the conversations between the informant and defendant at the time of the sale. The recordings themselves were not introduced. The jury convicted defendant, and this appeal followed.

I.

We express, at the outset, our disapproval of the action of the trial judge in reversing the ruling of the motions judge. Although the error is not determinative of this appeal, we will explain the reasons for our disapproval because of the great importance of the issue and the need to clarify the relationship between pretrial and trial suppression motions.

Defendant moved to suppress evidence derived from the transmissions. The motions judge, after a hearing, prepared a well-considered opinion and order granting the motion. On the first day of trial in April of 1988, the State orally requested that the trial judge review the suppression decision "to determine whether or not the court would rule differently." The trial judge decided that the pretrial ruling was wrong and reversed it, stating that "the trial judge is not bound by the decision of the pretrial judge." No evidence was offered at the time of the later ruling. The evidence from the transmissions was then admitted at trial.

Motions to suppress are required to be filed pretrial " 'to eliminate from the trial disputes over police conduct not immediately relevant to the question of guilt.' " State v. Clark, 152 Vt. 304, 307, 565 A.2d 1332, 1334 (1989) (quoting Jones v. United States, 362 U.S. 257, 264, 80 S.Ct. 725, 732, 4 L.Ed.2d 697 (1960)). Granting the motion to suppress makes the evidence inadmissible "at the trial or at any future hearing or trial." V.R.Cr.P. 41(f). We have held that pretrial rulings are tentative and subject to revision at trial. State v. Baldwin, 140 Vt. 501, 514, 438 A.2d 1135, 1142 (1981); see also State v. Senecal, 145 Vt. 554, 558, 497 A.2d 349, 351 (1985) (failure to object to admission of evidence at trial which defendant had sought to suppress in pretrial motion before another judge was waiver of objection).

Reconsideration by the trial judge, however, is appropriate only "in the face of additional evidence or other considerations developing during trial of the case which might otherwise dictate a modification or a reversal of the preliminary rulings." Baldwin, 140 Vt. at 514, 438 A.2d at 1142. Our policy of requiring additional evidence or other objective considerations as a predicate to reconsidering a pretrial suppression ruling is even stronger where the pretrial suppression motion is granted. As the court stated in McRae v. United States:

[I]t would blink reality to ignore the disparate position of the state and the accused before trial....

... Since the Government is more able than the defendant to insure a full and fair resolution of any issue ... at a pretrial proceeding, there is commensurately less reason to allow the prosecutor to request a reappraisal of a suppression order.

420 F.2d 1283, 1287-88 (D.C.Cir.1969).

The likelihood of prejudice under the circumstances presented in this case was great. The motion to reconsider, made at a hearing on another motion just prior to jury draw, was oral. There was no presentation of grounds or new evidence. Moreover, the State had the opportunity to request reconsideration by the motions judge and appeal the pretrial suppression ruling under 13 V.S.A. § 7403. The trial court erred in reversing the original order.

We decline, however, to reverse on this ground because it was not raised before the trial court. In fact, while urging the trial court to adhere to the earlier ruling, defendant's counsel conceded that "the State can bring [the suppression motion decision] up again." He argued the merits of the suppression issue, but did not suggest that reconsideration of the motion was foreclosed. In the absence of plain error we will not consider the issue for the first time on appeal. State v. Stanislaw, 153 Vt. 517, 528, 573 A.2d 286, 292-93 (1990).

II.

Defendant does not contend that the Fourth Amendment to the United States Constitution protects him against warrantless electronic surveillance by a participant to a conversation with him who consents to the use of the surveillance. See United States v. Caceres, 440 U.S. 741, 750-51, 99 S.Ct. 1465, 1471, 59 L.Ed.2d 733 (1979), relying on United States v. White, 401 U.S. 745, 751, 91 S.Ct. 1122, 1126, 28 L.Ed.2d 453 (1971). Rather, the argument is that such surveillance is prohibited by Chapter I, Article 11, of the Vermont Constitution, which 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.

A determination that the police activities amount to a prohibited search or seizure under Article 11 depends on whether the defendant conveyed an expectation of privacy in such a way that a reasonable person would conclude that he sought to exclude the public. State v. Kirchoff, 156 Vt. 1, 9-11, 587 A.2d 988, 994 (1991). As Justice Harlan stated in his concurrence in Katz v. United States, 389 U.S. 347, 361, 88 S.Ct. 507, 516, 19 L.Ed.2d 576 (1967) (Harlan, J., concurring), the test requirements are "first that a person ha[s] exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as 'reasonable.' " Kirchoff makes it clear that privacy expectations do not necessarily decline as surveillance technology advances. Kirchoff, 156 Vt. at 12-13, 587 A.2d at 996. The reasonableness inquiry hinges on the essence of underlying constitutional values--including respect for both private, subjective expectations and public norms.

In assessing the constitutionality of technologically enhanced government surveillance in a particular case, we must identify the values that are at risk, and vest the reasonable-expectation-of-privacy test with those values. In the instant case, defendant's conversation with the informant took place in defendant's home, and there is no indication in the record to suggest that he expected the conversations to be transmitted beyond the immediate environs, especially not through electronic enhancement. Clearly, he did not "knowingly expose" the conversation to the outside world, and therefore exhibited a clear subjective expectation of privacy. Katz, 389 U.S. at 351, 88 S.Ct. at 511.

The objective component of the Katz test was met as well. We have stated that the reasonableness analysis must be tied to identifiable constitutional values. One such value under Article 11 concerns the deeply-rooted legal and societal principle that the coveted privacy of the home should be especially protected. "[F]reedom of speech is undermined where people fear to speak unconstrainedly in what they suppose to be the privacy of home and office." Lopez v. United States, 373 U.S. 427, 470, 83 S.Ct. 1381, 1404, 10 L.Ed.2d 462 (1963) (Brennan, J., dissenting). One commentator has stated:

Although Katz decided that the "constitutionally protected area" test was no longer controlling, the post-Katz decisions have found it important to determine whether the area under surveillance has heightened privacy expectations. The sanctity of the enclosure of the home as the paradigm of constitutionally protected areas forced some courts to consider the "value model" in deciding whether the government activity was controlled by the fourth amendment.

Gutterman, A Formulation of the Value and Means Models of the Fourth Amendment in the Age of Technologically Enhanced Surveillance, 39 Syracuse L.Rev. 647, 724 (1988). As Justice Harlan commented in his concurring opinion in Katz, "a man's home is, for most purposes, a place where he expects privacy." Katz, 389 U.S. at 361, 88 S.Ct. at 516. See also Payton v. New York, 445 U.S. 573, 589, 100 S.Ct. 1371, 1381, 63 L.Ed.2d 639 (1980) (deeply rooted, subjective expectation of privacy in home).

In a case involving electronic monitoring in the home, the Supreme Judicial Court of Massachusetts stated in...