State v. Oakes

• Decision Date: 05 July 1991
• Docket Number: No. 89-506,89-506
• Citation: 598 A.2d 119,157 Vt. 171
• Parties: STATE of Vermont v. Ralph O. OAKES.
• Court: Vermont Supreme Court

Page 119

598 A.2d 119

157 Vt. 171

STATE of Vermont v. Ralph O. OAKES.

No. 89-506.

Supreme Court of Vermont.

July 5, 1991.

Dissenting Opinion of Justice Peck Sept. 6, 1991.

William Wright, Bennington County State's Atty., Bennington, and Thomas Kelly, Drug Atty., and Pamela Hall Johnson, Dept. of State's Atty., Montpelier, for plaintiff-appellee.

Charles S. Martin of Martin & Paolini, P.C., Barre, for defendant-appellant.

Before ALLEN, C.J., and PECK, GIBSON, DOOLEY and MORSE, JJ.

ALLEN, Chief Justice.

The issue presented on appeal to this Court is whether our state exclusionary rule for violations of Article 11 of the Vermont Constitution should be limited by the "good faith" exception articulated by the United States Supreme Court in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). We hold that it should not. Accordingly, the trial court's denial of defendant's suppression motion is reversed, and the cause is remanded.

On March 1, 1989, Detective Michael Colgan of the Bennington Police Department applied for and received a warrant to search the residence of defendant's girl friend. That evening Detective Colgan and other officers executed the warrant. Their search uncovered a large plastic bag, inside of which were twelve smaller bags containing marijuana.

Defendant was charged with felony possession of marijuana under 18 V.S.A. § 4224(e)(1)(B) (repealed 1989). Prior to trial, defendant moved to suppress the evidence seized in the search on the ground that there had not been sufficient probable cause for issuance of the warrant, and consequently the search violated Chapter I, Article 11 of the Vermont Constitution ¹ and the Fourth Amendment of the United States Constitution. At the hearing on defendant's motion, the court concluded that under both federal and state law there was "not sufficient probable cause shown by the affidavit" accompanying the warrant application to authorize issuance of the warrant. Nevertheless, the court went on to deny defendant's motion to suppress. The court, finding that Detective Colgan had acted in good faith, held the evidence admissible despite the Fourth Amendment violation because of the good faith exception to the federal exclusionary rule crafted in Leon. It also held that the Article 11 violation likewise did not require exclusion where the officer had acted in good faith.

Defendant moved for and was granted permission to appeal the court's denial of his suppression motion. His appeal rests solely on the proper construction of our state exclusionary rule for Article 11 violations. We have, however, reviewed the court's determination that the affidavit accompanying the warrant application did not constitute sufficient probable cause for issuance of the warrant. We agree with this determination.

A.

This Court has adopted an exclusionary rule for violations of the Vermont Constitution. ² "Evidence obtained in violation of the Vermont Constitution, or as the result of a violation, cannot be admitted at trial as a matter of state law." State v. Badger, 141 Vt. 430, 452-53, 450 A.2d 336, 349 (1982). This was not done under compulsion of Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), which worked only to extend to state courts an exclusionary rule for federal constitutional violations. Id. at 655, 81 S.Ct. at 1691. Rather, a state exclusionary rule was adopted because "[i]ntroduction of [illegally obtained] evidence at trial eviscerates our most sacred rights, impinges on individual privacy, perverts our judicial process, distorts any notion of fairness, and encourages official misconduct." Badger, 141 Vt. at 453, 450 A.2d at 349. The State now invites us to follow the Supreme Court's holding in Leon and except from our state exclusionary rule evidence seized by a police officer in objectively reasonable reliance on a subsequently invalidated warrant--the so-called "good faith" exception to the exclusionary rule. We decline the invitation. ³

The United States Supreme Court has distinguished between the rights guaranteed an individual by the Fourth Amendment and the remedy adopted to effectuate those rights. In the thirty years following Mapp, a majority of the Supreme Court has consistently treated the federal exclusionary rule as a remedy distinct from the constitutional right itself. As the Supreme Court asserted in Leon, the exclusionary rule "operates as 'a judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect, rather than a personal constitutional right of the party aggrieved.' " 468 U.S. at 906, 104 S.Ct. at 3411 (quoting United States v. Calandra, 414 U.S. 338, 348, 94 S.Ct. 613, 620, 38 L.Ed.2d 561 (1974)). When the Supreme Court addresses the scope of the federal exclusionary rule, it does not focus on an individual's constitutional rights; rather it weighs the additional deterrent effect on official misconduct that excluding the unlawfully obtained evidence will achieve against the cost of excluding this evidence. ⁴

We need not, and do not, express an opinion today on the validity of drawing such a distinction between the rights guaranteed by Article 11 and our state exclusionary rule. Even if our exclusionary rule were no more than a judicially created remedy, this Court would maintain the obligation to ensure that the remedy effectuates Article 11 rights. We point out the distinction made by the Supreme Court simply to clarify the amount of deference we will accord its decision in Leon. By treating the federal exclusionary rule as a judicially created remedy rather than a constitutional right, the Supreme Court's decision focuses, not on interpretation of the federal constitution, but on an attempted empirical assessment of the costs and benefits of creating a good faith exception to the federal exclusionary rule. This empirical assessment can inform this Court's decision on the good faith exception only to the extent that it is persuasive. If the assessment is flawed, this Court cannot simply accept the conclusion the Supreme Court draws from it. To do so would be contrary to our obligation to ensure that our state exclusionary rule effectuates Article 11 rights, and would disserve those rights.

B.

In Leon the Supreme Court fashioned a good faith exception to the exclusionary rule by "conclud[ing] that the marginal or nonexistent benefits produced by suppressing evidence obtained in objectively reasonable reliance on a subsequently invalidated search warrant cannot justify the substantial costs of exclusion." 468 U.S. at 922, 104 S.Ct. at 3420.

The Court's treatment of the "substantial costs" of not adopting a good faith exception is summary:

The substantial social costs exacted by the exclusionary rule for the vindication of Fourth Amendment rights have long been a source of concern.... An objectionable collateral consequence of this interference with the criminal justice system's truthfinding function is that some guilty defendants may go free or receive reduced sentences as a result of favorable plea bargains.

Id. at 907, 104 S.Ct. at 3412. In a footnote the Court concedes that many researchers "have concluded that the impact of the exclusionary rule is insubstantial." Id. at 907 n. 6, 104 S.Ct. at 3412 n. 6. Yet the Court answers, without citing empirical data, that the researchers' focus on nonprosecution and nonconviction of felony cases "mask a large absolute number of felons who are released because the cases against them were based in part on illegal searches or seizures." Id.

The Court's treatment of the "marginal or nonexistent benefits" of not adopting a good faith exception is more extensive. Taking the possible benefit of the exclusionary rule solely to be deterrence of official misconduct, see id. at 906, 921 n. 22, 104 S.Ct. at 3419 n. 22, the Court attempts to assess the deterrent effect that excluding evidence in this situation will have upon the officials involved: the police and the judicial authorities who issue warrants.

As to the police, the Court reasons that where the individual officer's reliance on a subsequently invalidated warrant is objectively reasonable, there is nothing to deter. "[W]here the officer's conduct is objectively reasonable, 'excluding the evidence will not further the ends of the exclusionary rule in any appreciable way; for it is painfully apparent that ... the officer is acting as a reasonable officer would and should act in similar circumstances.' " Id. at 919-20, 104 S.Ct. at 3419 (quoting Stone v. Powell, 428 U.S. 465, 539-40, 96 S.Ct. 3037, 3073-74, 49 L.Ed.2d 1067 (1976) (White, J., dissenting)). The Court dismisses as "speculative" arguments that applying the exclusionary rule in this situation would lessen the incentive for officers to prematurely approach judicial authorities with inadequate facts in the hope that they will get by, and would discourage "magistrate shopping." Id. at 918, 104 S.Ct. at 3418.

As to the judicial authorities who issue warrants, the Court proceeds from the premise that the exclusionary rule does not apply to them to the conclusion that it has no deterrent effect on them.

To the extent that proponents of exclusion rely on its behavioral effects on judges and magistrates in these areas, their reliance is misplaced. First, the exclusionary rule is designed to deter police misconduct rather than to punish the errors of judges and magistrates. Second, there exists no evidence suggesting that judges and magistrates are inclined to ignore or subvert the Fourth Amendment or that lawlessness among these actors requires application of the extreme sanction of exclusion.

Third, and most important, we discern no basis, and are offered none, for believing that exclusion of evidence seized pursuant to a warrant will have a significant deterrent effect on the issuing judge or magistrate.

Id. at 916, 104 S.Ct. at 3417.

C.

Criticism of the Supreme Court's...