State v. Dupuis

Decision Date17 August 2018
Docket NumberNo. 17-344,17-344
CourtVermont Supreme Court
Parties STATE of Vermont v. Ronald DUPUIS

197 A.3d 343

STATE of Vermont
v.
Ronald DUPUIS

No. 17-344

Supreme Court of Vermont.

January Term, 2018
August 17, 2018


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

Kyle L. Hatt of Sleigh Law, St. Johnsbury, for Defendant-Appellee.

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

ROBINSON, J.

¶ 1. In State v. Kirchoff this Court held that Chapter I, Article 11 of the Vermont Constitution protects against warrantless searches of "open fields" when the landowner objectively demonstrates his or her intent for privacy through actions such as posting "no trespass" signs. 156 Vt. 1, 10, 587 A.2d 988, 994 (1991). This case now calls on us to examine whether Article 11 provides the same protection when the warrantless search is for the purpose of enforcing hunting laws and the landowner has not strictly abided by Vermont's regulations for posting against hunting. The State appeals from the trial court's grant of defendant Ronald Dupuis's motion to suppress evidence arising from a game warden's warrantless search of his property, arguing that because defendant's "no trespass" postings did not comport with Vermont's hunting posting statute, he enjoyed no expectation of privacy. We disagree and affirm.

¶ 2. Defendant was charged with taking big game by illegal means as well as baiting and feeding deer. He filed a motion to suppress the evidence on which the charge was based. After an evidentiary hearing, the trial court made the following findings. On dates in September, October, and November 2016, a game warden with the Vermont Department of Fish and Wildlife hiked by foot onto a forested portion of defendant's land in the town of Bloomfield. The warden entered through a neighboring property approximately one mile up a steep hillside thick with blowdowns (described as harsh conditions extremely difficult to navigate) until he came to an ATV trail. He purposefully took this circuitous route to evade detection. The warden followed the trail until he came upon a blind built of timber at ground level with a salt block, apples, and acorns placed nearby.

¶ 3. Although the warden testified that he saw no signs posted, defendant and others testified, and the trial court found, that defendant had posted between twenty-five and thirty signs stating "no trespassing" or "keep out" around the perimeter of his property, located approximately

197 A.3d 345

100 to 150 feet apart. A gate with multiple "no trespassing" signs blocked the main entrance onto defendant's property.1 There was no evidence that the game warden had a warrant or suspicion of criminal activity at the time he entered defendant's land.

¶ 4. The trial court granted defendant's motion to suppress evidence obtained from the warden's warrantless search, ruling that it violated Chapter I, Article 11 of the Vermont Constitution. The court held that by posting his land to the extent that he had, defendant "took the steps necessary to clearly communicate to the reasonable person that the public was excluded from his Bloomfield property," thereby preserving his expectation of privacy. See Kirchoff, 156 Vt. at 10, 587 A.2d at 994. The court explained that the warden had not observed the signs because he took an abnormal course to reach defendant's property and therefore did not have the vantage point of the reasonable person under the test this Court established in Kirchoff. In so holding, the court rejected the State's argument that defendant lacked an expectation of privacy because he had not complied with Vermont's statute for posting against hunting. See 10 V.S.A. § 5201. The trial court granted the State's motion for interlocutory appeal pursuant to V.R.A.P. 5(b)(3).

¶ 5. On appeal, the State argues: (1) defendant did not effectively post his property to exclude hunters and thus he had no expectation of privacy relating to the regulation of hunting; and (2) the trial court erred in holding that the path that the warden took onto defendant's property prevented him from having the vantage point of a reasonable person.

¶ 6. We review the trial court's factual findings in connection with a motion to suppress with deference. State v. Williams, 2007 VT 85, ¶ 2, 182 Vt. 578, 933 A.2d 239 (mem.). In this case, the State only challenges the trial court's legal conclusions, which we review without deference. Id. The foundation of our analysis rests on the constitutional requirement that police get a warrant before searching most private property. That this requirement can apply to open fields when a property owner has taken sufficient steps to exclude others is well established. For the reasons set forth below, we reject the State's suggestion that the Vermont constitutional provisions concerning hunting, fishing, and trapping create an exemption to the warrant requirement for game wardens investigating hunting violations on private property. We further conclude that the trial court did not err in holding that the warden's vantage point was not that of a "reasonable person" because of the manner in which the warden entered the property.

I. Article 11 and Open Fields

¶ 7. The starting point for our analysis is Chapter I, Article 11 of the Vermont Constitution —Vermont's counterpart to the Fourth Amendment to the U.S. Constitution—which states:

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
197 A.3d 346
particularly described, are contrary to that right, and ought not to be granted.

Article 11 shields against "unreasonable government intrusions into legitimate expectations of privacy." State v. Bryant, 2008 VT 39, ¶ 10, 183 Vt. 355, 950 A.2d 467 (quotation omitted). A central precept to Article 11 is the requirement that law enforcement receive a warrant before entering private property; warrantless searches are presumptively unreasonable. Id.; see also State v. Medina, 2014 VT 69, ¶ 13, 197 Vt. 63, 102 A.3d 661 ("Warrantless searches are ... per se unreasonable."); State v. Morris, 165 Vt. 111, 115, 680 A.2d 90, 93 (1996) ("The first and foremost line of protection is the warrant requirement."). And while some warrantless searches are permissible, any exception to the warrant requirement "must be jealously and carefully drawn." State v. Savva, 159 Vt. 75, 85, 616 A.2d 774, 779 (1991) (quotation omitted). Hence, under Article 11, the warrant requirement reflects "the balance reached by the constitutional drafters, a balance in which the individual's interest in privacy outweighs the burdens imposed on law enforcement, such that those subjected to searches must be protected by advance judicial approval." Id. at 85-86, 616 A.2d at 780 (quotation omitted).2

197 A.3d 347

¶ 8. The threshold question of whether police conduct amounts to a "search," thereby triggering the warrant requirement, is whether the area in question enjoys a reasonable expectation of privacy. Bryant, 2008 VT 39, ¶ 11, 183 Vt. 355, 950 A.2d 467. The reasonable expectation of privacy test is two-fold. First, one must exhibit an actual, subjective expectation of privacy, and, second, the expectation must be objectively reasonable. Id.; State v. Blow, 157 Vt. 513, 517, 602 A.2d 552, 555 (1991). If the landowner enjoys no reasonable expectation of privacy, then the search in question is not really a "search" at all. See, e.g., Kyllo v. United States, 533 U.S. 27, 32, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001).

¶ 9. Applying these principles, this Court has recognized that Vermont's Constitution establishes greater protection against search and seizure of "open fields" than the U.S. Constitution, requiring that law enforcement officers secure warrants before searching open fields when the landowner demonstrates an expectation of privacy. Kirchoff, 156 Vt. at 1, 587 A.2d at 988. In Kirchoff, this Court explored whether the Article 11 warrant requirement applies to searches of "open fields"—areas of property other than the home itself or that immediately surrounding the home. Id. The defendant lived on a remote tract of land in the town of Lincoln. He posted "no trespassing" signs around his property, including the entrance of his driveway.3 And although he allowed friends and neighbors to ride bicycles on the property, he "took actions to keep strangers" away. Responding to a tip that the defendant was growing marijuana, law enforcement officials, acting without a warrant, entered his land through an adjacent property. They passed the "no trespassing" signs along the way and eventually came to a marijuana patch approximately 100 yards from the defendant's house.

¶ 10. On appeal from the trial court's denial of the defendant's motion to suppress the evidence, this Court rejected the "open fields" exception to the warrant requirement established under the U.S. Constitution. See

197 A.3d 348

Oliver v. United States, 466 U.S. 170, 184, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984). We instead formulated a test under Article 11 "that a lawful possessor may claim privacy in ‘open fields’ ... where indicia would lead a reasonable person to conclude that the area is private." Kirchoff, 156 Vt. at 10, 587 A.2d at 994. We noted the corollary that Article 11 does not protect areas in which the landowner has taken no steps to exclude the public. Id. The test is objective: the landowner must manifest some indicia—fence, barriers, "no trespassing" signs—that demonstrate to a reasonable person that the public is not welcome. Id. Considering "the extensive posting of the [defendant's] land," the Court concluded that the "defendant's intent to exclude the public was unequivocal" and ruled that any evidence gathered because of the search must be excluded. Id. at 14, 587 A.2d at 996.

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