State v. Brooks

• Decision Date: 01 November 1991
• Docket Number: No. 87-339,87-339
• Citation: 157 Vt. 490,601 A.2d 963
• Court: Vermont Supreme Court
• Parties: STATE of Vermont v. Edward BROOKS.

Page 963

601 A.2d 963

157 Vt. 490

STATE of Vermont v. Edward BROOKS.

No. 87-339.

Supreme Court of Vermont.

Nov. 1, 1991.

Jeffrey L. Amestoy, Atty. Gen., and Susan R. Harritt, Asst. Atty. Gen., Montpelier, for plaintiff-appellee.

Walter M. Morris, Jr., Defender Gen., and David Williams, Drug Defense Unit, Montpelier, for defendant-appellant.

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

ALLEN, Chief Justice.

Defendant moved to suppress evidence obtained when police, without a warrant, electronically overheard and recorded his conversation with a "bugged" police informant, on the ground that his rights under CHAPTER I, ARTICLE 11 OF THE VERMONT CONSTITUTION¹ were violated. The trial court denied the motion, and defendant brought this interlocutory appeal. We affirm.

State police, investigating a series of burglaries at automotive businesses, arrested one Keith Gordon for possession of stolen property. Gordon implicated defendant and agreed to cooperate with authorities. On the same day, Gordon called defendant on the telephone, and they arranged to meet an hour later in a shopping center parking lot. The phone conversation was taped. Defendant expressed some doubt about the security of talking to Gordon, saying "is it cool?" and "this ain't a set up?" The two later met as agreed.

At the shopping center, Gordon, equipped with a concealed transmitting device, drove alongside defendant's vehicle and they talked through open windows. A detective and another officer, parked about fifty yards away, tape recorded the conversation transmitted from Gordon's device. The officers were able to see Gordon and defendant talking. Defendant made a number of incriminating statements regarding his involvement in the burglaries. Based on the recorded conversation, police obtained a warrant to search defendant's car and home. They found stolen property and charged defendant with multiple counts of burglary, possession of stolen property and possession of a regulated drug.

Defendant moved "to suppress the use at trial of any evidence resulting from voice monitoring devices used by the State to listen to and record defendant's private conversations." The trial court denied the motion, relying on Barrett v. Fish, 72 Vt. 18, 47 A. 174 (1899), where this Court denied a motion to enjoin the production at trial of certain letters. Barrett is inapposite, however. That case did not involve a search and seizure under Article 11 because the government played no role in procuring the letters. Id. at 19, 47 A. at 175. The trial court also relied on United States v. White, 401 U.S. 745, 91 S.Ct. 1122, 28 L.Ed.2d 453 (1971), which controls federal law on eavesdropping under the Fourth Amendment to the United States Constitution. In White, the United States Supreme Court concluded that government use of informants equipped with concealed devices to record conversations with unknowing suspects did not violate the Fourth Amendment. 401 U.S. at 751, 91 S.Ct. at 1126. ² A majority of the Supreme Court has since approved the plurality's rationale in White. See United States v. Caceres, 440 U.S. 741, 750-51, 99 S.Ct. 1465, 1470-71, 59 L.Ed.2d 733 (1979). Under these precedents, the police operation in this case did not violate defendant's federal constitutional rights.

The question squarely posed, therefore, is whether participant electronic monitoring in the circumstances presented in this case violates Article 11 of the Vermont Constitution. In State v. Blow, 157 Vt. 513, 602 A.2d 552 (1991), we held that obtaining evidence by electronic monitoring in the defendant's home without his consent and without prior court authorization violates Article 11. The touchstone here, as in Blow and in State v. Kirchoff, 156 Vt. 1, 587 A.2d 988 (1991), is whether a defendant subject to electronic surveillance has a reasonable expectation of privacy. Referring to Justice Harlan's concurring opinion in Katz v. United States, 389 U.S. 347, 361, 88 S.Ct. 507, 516, 19 L.Ed.2d 576 (1967), we stated in Blow:

[T]he 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.

157 Vt. at ---, 602 A.2d at 555. Applying these guidelines to the facts of this case, we find that defendant, regardless of what he actually expected, did not enjoy a reasonable expectation of privacy in a public parking lot. In that setting, conversations are subject to the eyes and ears of passersby.

The distinction between the reasonable expectation of privacy within the home and outside of it is well-grounded in the law and in our culture. Id. at ---, 602 A.2d at 556; see also Payton v. New York, 445 U.S. 573, 589, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980) (deeply rooted, subjective expectation of privacy in home); State v. Brown, 198 Conn. 348, 356-57, 503 A.2d 566, 570 (1986) ("Privacy expectations are normally highest and are accorded the strongest constitutional protection in the case of a private home and the area immediately surrounding it."). It follows from Blow that participant monitoring outside of the home will not be subject to the same strict standards that we apply to such monitoring within the home of the nonconsenting target; the difference is simply a reflection of the standards that apply to nonhome searches generally. See, e.g., Weber v. City of Cedarburg, 129 Wis.2d 57, 67, 384 N.W.2d 333, 339 (1986) (citizen had neither subjective nor objective expectation of privacy in his attendance at softball game or in tavern-going).

We recognize that the use of informants, wired or not, intrudes upon privacy, and that the use of recording technology does not alter the essential nature of the state's act. The widespread and unrestricted use of government informants is surely one of the basic characteristics of a totalitarian state. The use of informants in law enforcement, however, has long been accepted as a necessary compromise between the ideals of a perfectly private society and a perfectly safe one. We therefore hold that warrantless electronic participant monitoring of face-to-face conversations, in cases such as this one, where defendant, located in a public parking lot, had no reasonable expectation of privacy, does not violate the protections of Article 11 of the Vermont Constitution.

Affirmed.

MORSE, Justice, dissenting.

The Court gives meager lip service to Article 11's protection and holds Article 11 requires neither a warrant nor probable cause for the search and seizure in this case. The holding here is stated in a few words: "[D]efendant ... did not enjoy a reasonable expectation of privacy in a public parking lot." The rationale is stated with remarkable brevity: "In that setting, conversations are subject to the eyes and ears of passersby."

The Court can mean nothing less than to allow government officials unbridled discretion to eavesdrop electronically and record conversations held outside the home. Giving Article 11 effect behind the walls of a home, State v. Blow, 157 Vt. 513, 602 A.2d 552 (1991), is mere token protection, because the nature of the surveillance requires but a little patience for the target to leave the home. It is no small irony that the suspect in this case was coaxed from his house by a telephone call to meet and talk in a shopping center parking lot. The police may now monitor without limitation the words of any person it considers suspect, dangerous, undesirable, or unpopular.

In analyzing situations involving exactly the same bugging device, the Court allows Article 11 protection in the home but apparently nowhere else. The Court misses the point. The concept of home does not trigger Article 11 protection, see State v. Zaccaro, 154 Vt. 83, 91, 574 A.2d 1256, 1259 (1990) (police officer's undercover entry by invitation into defendant's home not protected by Article 11); the technological device's power to invade privacy triggers it. Article 11 focuses on personal expectations of privacy rather than defined places. See State v. Kirchoff, 156 Vt. 1, 10, 587 A.2d 988, 994 (1991) (lawful possessor may claim privacy in "open fields" where indicia, such as fences, barriers, or "no trespassing" signs would lead a reasonable person to conclude that the area is private); Zaccaro, 154 Vt. at 90, 574 A.2d at 1261 (no Article 11 protection in the home per se, because Article 11, like the fourth amendment, "protects people, not places").

Because we reasonably expect more privacy at home for some activities or in some circumstances does not necessarily mean we never reasonably expect privacy away from home. It does not follow that our expectations of privacy outside the home are per se less reasonable.

I suggest that the Court's approach is also as impractical as it is unwise. The result could at first blush be seen as an easy to apply bright-line test, a line drawn at the doorstep of the home. Yet, unanswered questions abound. Was the taped phone conversation that lured defendant from his home to the parking lot protected under Blow? Does it matter who initiates the call? If the target is not at home, but the informant is at home, is a telephone conversation protected? Does the home exception apply when the conversation is recorded at the informant's home? If the target gives a speech to a social club meeting in the target's home, is the speech protected?

In sum, the Court in this case discards much of what I thought Article 11 meant and instead creates a navigational signal for law enforcement. Article 11 is "on" in the home,...