State v. Bovat

• Decision Date: 08 November 2019
• Docket Number: No. 18-362,18-362
• Citation: 224 A.3d 103
• Court: Vermont Supreme Court
• Parties: STATE of Vermont v. Clyde S. BOVAT

224 A.3d 103

STATE of Vermont

v.Clyde S. BOVAT

No. 18-362

Supreme Court of Vermont.

May Term, 2019

November 8, 2019

Reargument Denied December 19, 2019

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

Samantha V. Lednicky of Murdoch Hughes Twarog Tarnelli, Burlington, for Defendant-Appellant.

Matthew Valerio, Defender General, and Rebecca Turner, Dawn Matthews and Dawn Seibert, Appellate Defenders, Montpelier, for Amicus Curiae Office of the Defender General.

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

SKOGLUND, J.

¶ 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 investigate further.

¶ 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, 98 S.Ct. 2674, 57 L.Ed.2d 667 (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.¹ 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 findings are not clearly erroneous, we then review the legal issues de novo. Id. ¶ 7 (citation omitted).

¶ 12. First, defendant argues the trial court erred in concluding that his garage is not in the curtilage of his home. Yes, this was error. Curtilage is defined as "the land immediately surrounding the home and associated with it," State v. Byrne, 149 Vt. 224, 227, 542 A.2d 276, 278 (1988), into which the " ‘privacies of life’ may extend," State v. Rogers, 161 Vt. 236, 241, 638 A.2d. 569, 572 (1993) (quoting Oliver v. United States, 466 U.S. 170, 180, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984) ). The United States Supreme Court has identified four factors to aid in determining if an area is curtilage: (1) the area's proximity to the home; (2) whether the area is within an enclosure surrounding the home; (3) the nature and uses to which the area is put; and (4) the steps taken by the resident to protect the area from observation. United States v. Dunn, 480 U.S. 294, 301, 107 S.Ct. 1134, 94 L.Ed.2d 326 (1987). These factors do not produce a "finely tuned formula" that can be mechanically applied; rather, they bear upon the central consideration of "whether the area in question is so intimately tied to the home itself that it should be placed under the home's ‘umbrella’ of Fourth Amendment protection." Id. Vermont adopted the Dunn factors in State v. Hall, 168 Vt. 327, 330, 719 A.2d 435, 437 (1998), after first applying them in Rogers, 161 Vt. at 242 n.*, 638 A.2d at 572 n.*.

¶ 13. The Dunn Court found that the barn in question in that case was a substantial distance from the house (sixty yards away), it did not lie within the area surrounding the house that was enclosed by a fence, law enforcement had objective data that the barn was not being used for intimate activities of the home, and the defendant had done little to protect the barn area from observation by those standing in the open fields around the structure. 480 U.S. at 302-03, 107 S.Ct. 1134. Based on these findings, the Court concluded the barn was not within the curtilage of the home. Id. at 301, 107 S.Ct. 1134.

¶ 14. Following the Dunn analysis, this case calls for a different result. First, defendant's garage and home are in close proximity to one another, separated only by an area of driveway that can accommodate approximately two vehicles and plastic garbage bins, and a small row of trees. While the trial court found the distance "significant" from viewing aerial photographs admitted at hearing, the photographs actually depict a continuity of space with a "walking path" to the house from the driveway. Second, a low, white split-rail fence stands along the road but, as the trial court found, it does not enclose anything. It begins along one side of the driveway and continues off toward an open field away from the residence. The fence does not separate the garage from the home in any way. Third, defendant uses the garage for domestic purposes—parking his vehicles and storing his hunting equipment. Finally, while defendant did not prevent observation of the garage itself by placing barriers or "no trespassing" signs, the garage door was closed and locked. The garage is properly considered to be within the curtilage of the home.

¶ 15. We have held that curtilage includes outbuildings such as sheds and garages used for domestic purposes. State v. Potter, 148 Vt. 53, 61, 529 A.2d 163, 168 (1987) (determining that defendant's shed was part of curtilage because it was outbuilding used for storing family property). Here, defendant's garage merited "the same constitutional protection from unreasonable searches and seizures as the home itself." Rogers, 161 Vt. at 241, 638 A.2d at 572 ; see also State v. Bryant, 2008 VT 39, ¶ 13, 183 Vt. 355, 950 A.2d 467.

¶ 16. We nonetheless conclude that the warden's...