State v. Geraw

Citation795 A.2d 1219
Decision Date15 March 2002
Docket NumberNo. 00-459.,00-459.
PartiesSTATE of Vermont v. John E. GERAW.
CourtUnited States State Supreme Court of Vermont

Lauren Bowerman, Chittenden County State's Attorney, and Pamela Hall Johnson, Deputy State's Attorney, Burlington, for Plaintiff-Appellant.

E.M. Allen of Stetler Allen & Kampmann, Burlington, for Defendant-Appellee.



The question presented is whether Vermont citizens must accept the risk that police interviews in the privacy of their home are being secretly recorded without the protection of a judicially authorized warrant. We conclude that Chapter 1, Article 11 of the Vermont Constitution prohibits such secret recording. Accordingly, we affirm the order of the Chittenden District Court granting defendant's motion to suppress.

The material facts are few and undisputed. On April 17, 2000, two police detectives interviewed defendant at his residence in Essex Junction. The detectives were investigating an allegation that defendant had engaged in sexual acts with a foster child. The officers identified themselves, and defendant invited them into his residence. They sat down at defendant's kitchen table, where the officers interviewed defendant about his relationship with the minor. Unbeknownst to defendant, the officers secretly tape recorded the conversation. Defendant was later charged with one count of sexual assault of a minor, in violation of 13 V.S.A. § 3252(b)(1). He moved to suppress the audio recording of the interview, alleging that it was unlawfully obtained without a warrant, in violation of Chapter I, Article 11 of the Vermont Constitution.1 Following a hearing, the trial court issued a written decision and order, granting the motion. The court concluded that defendant enjoyed a reasonable expectation that a conversation in the privacy of his home would not be secretly recorded, and therefore that the recording violated his fundamental right to privacy under Article 11 and must be suppressed. The trial court subsequently granted, and this Court accepted, the State's request for an interlocutory appeal.

In reviewing the trial court's ruling, we benefit from a series of decisions over the last two decades dealing with the requisite standards and permissible scope of searches and seizures under Article 11. We begin with the fundamental proposition that, as stated in State v. Jewett, 148 Vt. 324, 328, 532 A.2d 958, 960 (1986), "[t]he circumstances under which warrantless searches or seizures are permitted . . . must be jealously and carefully drawn." (internal quotation marks omitted). The warrant requirement in our Constitution reflects a deeply-rooted historical judgment that the decision to invade the privacy of an individual's home or possessions should normally be made by a neutral magistrate, not by the agent of the search itself. See State v. Savva, 159 Vt. 75, 86, 616 A.2d 774, 780-81 (1991). Judicial review operates as a potent and immutable check on the power of the executive branch, immune from the shifting political pressures or perceived exigencies of the time. Id. at 87, 616 A.2d at 780-81.

That said, we have also consistently held that Article 11 protects only those areas or activities that a reasonable person would conclude are intended to be private. See State v. Costin, 168 Vt. 175, 177, 720 A.2d 866, 868 (1998); State v. Kirchoff, 156 Vt. 1, 10, 587 A.2d 988, 994 (1991); State v. Blow, 157 Vt. 513, 517, 602 A.2d 552, 555 (1991). "[A] person cannot rely on Article 11 to protect areas or activities that have been willingly exposed to the public." Kirchoff, 156 Vt. at 7, 587 A.2d at 994. Thus, we have held that the State must have a warrant to enter open fields where indicia, such as fences and signs, would lead a reasonable person to conclude that the area is private, see id., but that Article 11 does not protect such areas when the owner or occupant has not taken sufficient steps to exclude the public. See State v. Chester, 156 Vt. 638, 638, 587 A.2d 1008, 1009 (1991) (mem.). This distinction was reaffirmed in Costin, where a majority of the Court held that Article 11 does not prohibit the use of a warrantless video surveillance camera located in a field where an in-person police stake-out would not otherwise be excluded. 168 Vt. at 180-82, 720 A.2d at 868-71.

Two additional decisions — Blow, 157 Vt. 513,602 A.2d 552, and State v. Brooks, 157 Vt. 490, 601 A.2d 963 (1991) — are especially significant for our purposes here, as both underscore the significance of the home as a repository of heightened privacy expectations. In Blow, we held that Article 11 prohibited the police from monitoring and recording a conversation with a confidential informant in the defendant's home without a warrant, noting that such activity "conducted in a home offends the core values of Article 11." 157 Vt. at 519,602 A.2d at 556. On the same day, we held in Brooks that the warrantless transmittal and recording of a conversation with a confidential police agent in a parking lot did not offend Article 11 because the defendant did not have the same expectation of privacy in words uttered to the informant outside his home. 157 Vt. at 493-94,601 A.2d at 965; see also State v. Bruyette, 158 Vt. 21, 37, 604 A.2d 1270, 1278 (1992) (Dooley, J., concurring) (suggesting that secret monitoring of conversation between defendant and his girlfriend in parked car were outside protection of Article 11).2

We have, to be sure, disagreed at times about the degree of emphasis to be placed on the location of the search and seizure, to the exclusion of other considerations, such as advanced technologies that may alter or intensify the nature of the intrusion. See, e.g., Brooks, 157 Vt. at 494, 601 A.2d at 965 (Morse, J., dissenting) (arguing that intrusive "nature of the surveillance" as much as the location may trigger Article 11 protection); Costin, 168 Vt. at 188-90, 720 A.2d at 874 (Johnson, J., dissenting) (arguing that even unposted open field may warrant Article 11 protection from intensive round-the-clock surveillance by hidden video camera); see generally Note, The Lack of Privacy in Vermont, 24 Vt. L.Rev. 199, 218-25 (1999) (noting tensions between geographic and balancing approaches in the Court's Article 11 jurisprudence). We have consistently agreed, however, that the home represents a unique historical category with "special expectations of privacy" warranting the strongest constitutional protection from warrantless searches and seizures. State v. Morris, 165 Vt. 111, 133, 680 A.2d 90, 105 (1996) (Dooley, J., dissenting).

As noted, Blow is especially significant in this regard, since the only real distinction here is that the secret recording was accomplished in defendant's home by a known police officer rather than by a confidential police informant.3 A careful reading of Blow and the cases discussed above, however, renders this a distinction devoid of any meaningful difference; for the heart of our holding in Blow was a recognition of the "deeply-rooted legal and societal principle that the coveted privacy of the home should be especially protected." Blow, 157 Vt. at 518,602 A.2d at 555. This heightened expectation of privacy rendered it objectively reasonable to expect that conversations in the privacy of one's home would not be surreptitiously invaded by warrantless transmission or recording. "[W]arrantless electronic participant monitoring conducted in a home," we held, "offends the core values of Article 11." Id. at 519, 602 A.2d at 555.

While our holding would not appear to admit of any exceptions based on the particular identity of the secret recorder, properly understood it is not the breadth of our holding in Blow but rather its underlying reasoning that dissolves any constitutionally significant distinction between that case and this. This is readily discerned from two of the principal cases on which we relied, Commonwealth v. Blood, 400 Mass. 61, 507 N.E.2d 1029 (1987), and State v. Glass, 583 P.2d 872 (Alaska 1978). In both cases, the high courts of Massachusetts and Alaska held, respectively, that the electronic recording of a conversation by a confidential informant in the defendant's home violated the defendant's right to privacy under the state constitution. See Blood, 507 N.E.2d at 1034 (holding that it was "objectively reasonable to expect that conversational interchange in a private home will not be invaded surreptitiously by warrantless electronic transmission or recording"); Glass, 583 P.2d at 880 (construing state constitution to hold that "the expectation that one's conversations will not be secretly recorded or broadcast should be recognized as reasonable"); see also Commonwealth v. Brion, 539 Pa. 256, 652 A.2d 287, 289 (1994) (holding "that an individual can reasonably expect that his right to privacy will not be violated in his home through the use of any electronic surveillance").

Both cases recognized the risk that confidences disclosed to another person in the privacy and security of one's home may be repeated to others, or even later disclosed in court. Yet both fundamentally rejected the proposition that there was no difference between talking to another person who later repeats what is said, and talking to someone who electronically records one's every word and phrase. As eloquently summarized in Blood:

We think it a constitutional imperative to recognize that "the differences between talking to a person enswathed in electronic equipment and one who is not are very real, and they cannot be reduced to insignificance by verbal leger-demain. All of us discuss topics and use expressions with one person that we would not undertake with another and that we would never broadcast to a crowd. Few of us would ever speak freely if we knew that all our words were being captured by machines for later release before an unknown and potentially hostile audience. No one talks to a recorder as he talks to

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