State v. Kirchoff, 87-603

Citation587 A.2d 988,156 Vt. 1
Decision Date25 January 1991
Docket NumberNo. 87-603,87-603
CourtUnited States State Supreme Court of Vermont
PartiesSTATE of Vermont v. Robert KIRCHOFF.

John Quinn, Addison County State's Atty., Middlebury, and Jo-Ann Gross, Legal Intern, Dept. of State's Attys., Montpelier, for plaintiff-appellee.

Walter M. Morris, Jr., Defender Gen., Henry Hinton, Appellate Defender, and David J. Williams, Sp. Defender for Drug Offenses, Montpelier, for defendant-appellant.

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

MORSE, Justice.

The sole issue in this appeal from a conviction for cultivating marijuana is the legality under the Vermont Constitution of a warrantless search of defendant's posted land. We hold that this search violated Chapter I, Article 11, of the Vermont Constitution, and accordingly reverse.

In 1982, defendant purchased thirty-nine acres of land, consisting of woods, swamp, and meadows, in an isolated part of Lincoln, Vermont. He put up several "no trespassing" signs where the road turned into his driveway and posted his land with signs that said, "POSTED Private Property. Hunting, Fishing, Trapping or Trespassing for Any Purpose Is Strictly Forbidden. Violators Will Be Prosecuted," and recorded that fact with the town clerk. See 10 V.S.A. § 5201. Although he gave specific permission to certain neighbors to ride their bikes on trails that crossed his land, defendant took actions to keep strangers off his property.

Acting on an informant's tip that marijuana was growing on defendant's land, a sheriff and another law enforcement officer went onto the land, without a warrant, in September of 1986. They first drove up defendant's driveway where they noticed the "no trespassing" signs, as well as one that read "Road Ends--Private Drive Ahead." The officers parked at a neighbor's house, crossed a fence, and walked along an old logging road toward defendant's house. They observed one or two old "no trespassing" signs as they walked. At some point, the officers left the road and walked through woods and a marsh, coming upon a marijuana patch about 100 yards from defendant's house. The marijuana plants were not visible from any road.

The officers left the area to obtain a search warrant. Two other officers arrived to watch over the patch while waiting for the warrant. Defendant was there tending the plants and was confronted by the officers. He was talkative and confessed to cultivating marijuana. Later, after the warrant arrived, the officers searched the house, finding more evidence of marijuana cultivation and seizing numerous plants.

Defendant moved to suppress the evidence gathered during the search on the ground that it was obtained in violation of the Vermont Constitution. The motion was denied, and the evidence was admitted over defendant's objection at trial.


We begin by acknowledging that this "walk-on" search would be permissible under the federal constitution. The United States Supreme Court has held that the Fourth Amendment permits the police to conduct a warrantless search of an area in which a person does not have a "reasonable expectation of privacy." Katz v. United States, 389 U.S. 347, 360, 88 S.Ct. 507, 516, 19 L.Ed.2d 576 (1967) (Harlan, J., concurring). In Oliver v. United States, 466 U.S. 170, 179, 104 S.Ct. 1735, 1742, 80 L.Ed.2d 214 (1984), that Court held that an expectation of privacy in "open fields" will not be deemed reasonable for Fourth Amendment purposes. That is, "an individual may not legitimately demand privacy for activities conducted out of doors in fields, except in the area immediately surrounding the home." Id. at 178, 104 S.Ct. at 1741; see State v. Byrne, 149 Vt. 224, 227, 542 A.2d 276, 278 (1988). "Open fields" is a term of art and denotes areas that may be neither open nor fields as those words are used in common speech; it refers generally to land that is unoccupied or undeveloped. Oliver, 466 U.S. at 180 n. 11, 104 S.Ct. at 1742 n. 11. Woods, in particular, may be open fields. As the warrantless search in this case was not of "the area immediately surrounding the home," an area known in law as "the curtilage," defendant's Fourth Amendment rights were not violated.

The Court in Oliver also gave a textual and historical explanation for its conclusion that the Amendment's framers "would have understood the term 'effects' to be limited to personal, rather than real, property." 466 U.S. at 177 n. 7, 104 S.Ct. at 1740 n. 7. On that basis, as well as "expectation-of-privacy" grounds, the Court found open fields to be outside the scope of the Fourth Amendment.


That the officers' conduct was permissible under the federal constitution does not, of course, end our inquiry. The Vermont Constitution may afford greater protection to individual rights than do the provisions of the federal charter. State v. Badger, 141 Vt. 430, 449, 450 A.2d 336, 347 (1982). The issue is whether the "walk-on" search violated Chapter I, Article 11, of the Vermont Constitution. Article 11 provides:

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 particularly described, are contrary to that right, and ought not to be granted.

There are two notable textual differences in the language of the federal and state provisions. First, the Fourth Amendment guarantees freedom from "unreasonable searches and seizures"; Article 11 by contrast does not contain the word "unreasonable." We have held, however, that "[r]egardless of this difference, ... the word 'unreasonable' is as implicit in Article Eleven as it is express in the Fourth Amendment." State v. Record, 150 Vt. 84, 85, 548 A.2d 422, 423 (1988) (upholding warrantless vehicle stops).

Second, and more to the point here, the Vermont Constitution protects persons, houses, papers, and possessions, while the Fourth Amendment protects persons, houses, papers, and effects. Unfortunately, research into the possible significance of this textual difference sheds little light on the issue. While our research suggests that, at the time the Vermont Constitution was adopted, the word "possessions" in certain contexts would have included all real estate over which an individual exercised a certain degree of control, McCabe, State Constitutions and the "Open Fields" Doctrine: A Historical-Definitional Analysis of the Scope of Protection Against Warrantless Searches of "Possessions," 13 Vt.L.Rev. 179 (1988) (term "possessions" meant personalty, realty, or both), it also suggests that the word "effects" would have been susceptible to a similar definition. Webster's New International Dictionary 818 (2d ed. 1961) (term "effects" sometimes means real property). From a definitional standpoint, in many contexts the two words were, and remain, largely interchangeable. See People v. Smith, 420 Mich. 1, 20, 360 N.W.2d 841, 849 (1984). The word "effects" is now construed narrowly by the United States Supreme Court, but that does not obscure the fact that it was often given a broader meaning in the late eighteenth century. F. Stroud, Stroud's Judicial Dictionary 603-05 (2d ed. 1903).

Perhaps such endeavors would prove more useful if the drafters of the Vermont Constitution had left a more complete historical record. Unfortunately, the Vermont Constitution was adopted with little recorded debate. Shaeffer, A Comparison of the First Constitutions of Vermont and Pennsylvania, in In a State of Nature: Readings in Vermont History 54, 58 (Muller & Hand eds. 1982). It borrowed from several other state constitutions and included a few unique passages. Id. Most commentary focuses on those portions that were unique to Vermont rather than those, like Article 11, which were copied practically verbatim from other state constitutions. See id. The paucity of historical record prompts us to look elsewhere when determining the breadth of those individual rights the Vermont Constitution was drafted to protect.

We are not the first state to address this issue, but a survey of those states that have offers little guidance. Several states having constitutions with language similar to Article 11 have found that the term "possessions" does not include all real estate in which an individual has a possessory interest, effectively giving it the same meaning that the federal courts give to the term "effects." State v. Pinder, 128 N.H 66, 74, 514 A.2d 1241, 1245-46 (1986) (term "possessions" in New Hampshire Constitution does not include real property beyond curtilage); Brent v. Commonwealth, 194 Ky. 504, 509-10, 240 S.W. 45, 47-48 (1922) (term "possessions" means "the intimate things about one's person"). Other states with similar constitutional language, however, have held that the word "possessions" does result in broader protection for their citizens than that granted under the current interpretation of the Fourth Amendment. See, e.g., Falkner v. State, 134 Miss. 253, 257-61, 98 So. 691, 692-93 (1924) (term "possessions" "embraces all of the property of the citizen"). Furthermore, some states whose constitutions contain the same language as that used in the federal constitution have found nonetheless that their constitutions afford greater protection of individual rights when it comes to issues of search and seizure. See, e.g., State v. Dixson/Digby, 307 Or. 195, 208-12, 766 P.2d 1015, 1022-24 (1988).

Our decision, however, need not rest on the drafters' choice of one word over another. Even if we cannot say with confidence that the scope of the term "possessions" mandates a right of privacy in real estate, it certainly does not rule out such a right. We strive to honor not merely the words but the...

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