State v. Costin

• Decision Date: 31 July 1998
• Docket Number: No. 96-624.,96-624.
• Citation: 720 A.2d 866
• Court: Vermont Supreme Court
• Parties: STATE of Vermont v. Michael N. COSTIN.

720 A.2d 866

STATE of Vermont v. Michael N. COSTIN.

No. 96-624.

Supreme Court of Vermont.

July 31, 1998.

William H. Sorrell, Attorney General, and David Tartter, Assistant Attorney General, Montpelier, for Plaintiff-Appellee.

Barry E. Griffith of Griffith & Lundeen, P.C., Rutland, for Defendant-Appellant.

Present DOOLEY, MORSE and JOHNSON, JJ., and ALLEN, C.J. (Ret.), and GIBSON, J. (Ret.), Specially Assigned.

DOOLEY, Justice.

Defendant Michael Costin appeals the denial of his motion to suppress a videotape showing him cultivating marijuana plants in violation of 18 V.S.A. § 4230(a)(2). He contends that, under Chapter I, Article 11 of the Vermont Constitution, the police are required to obtain a warrant before conducting video surveillance on private property. Thus, he argues, the warrantless video surveillance on his private property was unconstitutional and the videotape must be suppressed. We disagree and affirm.

Defendant owns and resides on thirty secluded acres of property in Ferrisburgh, Vermont. The property can be reached by a dirt road, and defendant's house is situated some 700 feet from the dirt road at the edge of the woods. There are no fences or signs prohibiting entry at the perimeter of the property.

In August of 1992, a Vermont State Police trooper received a tip from an informant that the informant had observed marijuana plants growing on defendant's property. On August 31, 1992, the trooper and a fellow officer responded to the report by entering defendant's unposted property and observing a number of marijuana plants growing in a wooded section of the property, about 150 feet from defendant's house. They also observed a foot path leading from defendant's house to the marijuana plants.

Three days later, the trooper returned and installed a recording video camera in the woods approximately 65 feet from the marijuana plants. The video camera was focused on the marijuana plants and a ten-foot portion of the path leading to the plants. The trooper attached an infrared motion sensor to the video camera. When the sensor detected human activity or other motion near the plants, it turned on the camera and recorder, which remained on for ten minutes. Five days later, the trooper returned to the property and retrieved the camera. The videotape showed defendant walking down the path and tending the marijuana plants in the garden. Based on all of the above information, the trooper applied for and received a search warrant for defendant's house and property. The subsequent search turned up five marijuana plants and various drug paraphernalia.

Defendant filed a motion to suppress the evidence seized, claiming that the warrantless video surveillance was unconstitutional under the Vermont Constitution¹ and that it tainted the search pursuant to the warrant. The trial court denied the motion, but recognized that the constitutionality of warrantless video surveillance had yet to be addressed by this Court. We now reach the constitutionality of the video surveillance.

Defendant's main argument is that he has a "reasonable expectation of privacy" such that he would not be videotaped on his land and that, under Chapter I, Article 11 of the Vermont Constitution, the police were required to obtain a search warrant before conducting video surveillance. In framing the issue, defendant does not dispute that the marijuana plants observed by the video camera were located outside the curtilage of his house and thus were in "open fields." Nor does he dispute that he took no steps to indicate to others that presence on his land outside the curtilage was prohibited.

We addressed the scope of Article 11 protection with respect to "open field" searches in State v. Kirchoff, 156 Vt. 1, 587 A.2d 988 (1991). In Kirchoff, the defendant was convicted of cultivating marijuana on a portion of his secluded property. He had put up several "no trespassing" signs at the foot of his driveway and had posted "no hunting and fishing" signs at the perimeter of his property. Nevertheless, the police ignored the signs, entered onto his property and discovered a marijuana patch about 100 yards from his house. We acknowledged in Kirchoff that the police's walk-on search would have been permissible under the federal constitution, as construed in Oliver v. United States, 466 U.S. 170, 179, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984). See Kirchoff, 156 Vt. at 3, 587 A.2d at 990. Oliver confirmed that the Fourth Amendment protects reasonable expectations of privacy, but held that "an individual may not legitimately demand privacy for activities conducted out of doors in fields, except in the area immediately surrounding the home." 466 U.S. at 178,104 S.Ct. 1735. The Supreme Court reasoned that lands outside the curtilage of a dwelling "do not provide the setting for those intimate activities that the Amendment is intended to shelter from government interference or surveillance." Id. at 179, 104 S.Ct. 1735.

Nevertheless, in Kirchoff, we interpreted Article 11 as providing broader protection than the Fourth Amendment. We held that "a lawful possessor may claim privacy in `open fields' under Article 11 of the Vermont Constitution where indicia would lead a reasonable person to conclude that the area is private." 156 Vt. at 10, 587 A.2d at 994. On the other hand, we did not extend Article 11 protection to "searches of lands where steps have not been taken to exclude the public." Id. By creating this standard, we hoped to protect the constitutional rights of those who have taken affirmative steps to obtain privacy in their lands, while not suppressing evidence obtained by the police that was "`knowingly exposed to the public.'" Id. (quoting Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967)). Specifically, we held that indicia such as fences, barriers and "no trespassing" signs reasonably indicate that the property is intended to be private and that strangers are not welcome. Id.

Under this interpretation of Article 11, we held that the warrantless walk-on search of the defendant's property was unconstitutional. See id. at 14, 587 A.2d at 997. The defendant clearly manifested both an objective and subjective intent to exclude the public by posting "no trespassing" and "no hunting" signs around the perimeter of his property. See id. at 14, 587 A.2d at 996.

The controlling significance of steps to exclude the public is made clear by two other cases, where we held that no Article 11 violation had occurred.² In State v. Chester, 156 Vt. 638, 587 A.2d 1008 (1991) (mem.), decided four days after Kirchoff, the defendant had erected neither signs indicating entry to his land was prohibited nor barriers to entry. We held that the police had not violated Article 11 when they walked on the land and found a marijuana garden:

Kirchoff holds that the State must have a warrant to enter land when it is apparent to a reasonable person that the owner or occupant intends to exclude the public. This standard is intended to define instances where a landowner's expectation of privacy in an area is reasonable or legitimate.. . .

In this case, there were no barriers to indicate defendant's intent to exclude the public. Where land is left unimproved and unbounded, the owner or occupant has not taken sufficient steps to exclude the public to trigger the protection of Chapter I, Article 11 of the Vermont Constitution.

Id. at 638, 587 A.2d at 1009 (citations omitted; emphasis supplied).

In State v. Rogers, 161 Vt. 236, 248, 638 A.2d 569, 577 (1993), we held that Chester applied despite the fact that the police officer had crossed through thick woods to reach a marijuana garden. We agreed with a similar decision of the Oregon Supreme Court, State v. Dixson, 307 Or. 195, 766 P.2d 1015, 1024 (Or.1988), that a "shield created by vegetation or topographical barriers" does not trigger Article 11 protections because the shield is natural and "fails to demonstrate the landowner's intent to exclude." Rogers, 161 Vt. at 248, 638 A.2d at 576.

The controlling significance of the place of observation to our Article 11 jurisprudence is made clear by three other post-Kirchoff decisions. In State v. Blow, 157 Vt. 513, 602 A.2d 552 (1991), the police sent an informant, wired with a transmitter, into the home of defendant to make a drug purchase. We held that "warrantless electronic participant monitoring conducted in a home offends the core values of Article 11" and suppressed the evidence obtained by the transmission. Id. at 519, 602 A.2d at 556.

On the same day, however, we decided State v. Brooks, 157 Vt. 490, 493-94, 601 A.2d 963, 964-65 (1991), in which we held that warrantless electronic monitoring conducted in a parking lot does not offend Article 11 because the speaker who is overheard does not have a reasonable expectation of privacy in words uttered to the informant outside the home.³ In State v. Bruyette, 158 Vt. 21, 37, 604 A.2d 1270, 1278 (1992), a majority of this Court extended Brooks to a situation where the wired informant was the defendant's girlfriend and who spoke with him in an automobile.

The obvious import of these decisions is that this defendant had no reasonable expectation of privacy in the area in which he tended his marijuana garden because he took no steps to exclude the public. Thus, as we held in Chester, no Article 11 protections were triggered with respect to that area, and police were free to go onto his property and observe his activity. As a result, defendant has no greater protection against electronic surveillance on his unposted, open land than he would if such surveillance were conducted in a public place.

In reaching this conclusion, we reject defendant's argument that Kirchoff and its progeny are implied consent-rulings, that is, that they hold that an owner or occupier of land has no reasonable expectation of privacy only when he has impliedly consented to the observation involved. He then argues from...