State v. Brooks

601 A.2d 963, 157 Vt. 490, 1991 Vt. LEXIS 219

• Court: Supreme Court of Vermont
• Decided: November 1, 1991
• Docket: 87-339
• Status: Published

Opinions

Allen, C.J.

Defendant moved to suppress evidence obtained when police, without a warrant, electronically overheard and recorded his conversation with a “bugged” police informant, on the ground that his rights under Chapter I, Article ll¹ of the Vermont Constitution were violated. The trial court denied the motion, and defendant brought this interlocutory appeal. We affirm.

State police, investigating a series of burglaries at automotive businesses, arrested one Keith Gordon for possession of stolen property. Gordon implicated defendant and agreed to cooperate with authorities. On the same day, Gordon called defendant on the telephone, and they arranged to meet an hour later in a shopping center parking lot. The phone conversation was taped. Defendant expressed some doubt about the security of talking to Gordon, saying “is it cool?” and “this ain’t a set up?” The two later met as agreed.

At the shopping center, Gordon, equipped with a concealed transmitting device, drove alongside defendant’s vehicle and they talked through open windows. A detective and another officer, parked about fifty yards away, tape recorded the conversation transmitted from Gordon’s device. The officers were able to see Gordon and defendant talking. Defendant made a number of incriminating statements regarding his involvement in the burglaries. Based on the recorded conversation, police obtained a warrant to search defendant’s car and home. They found stolen property and charged defendant with multiple counts of burglary, possession of stolen property and possession of a regulated drug.

Defendant moved “to suppress the use at trial of any evidence resulting from voice monitoring devices used by the State to listen to and record defendant’s private conversations.” The trial court denied the motion, relying on Barrett v. Fish, 72 Vt. 18, 47 A. 174 (1899), where this Court denied a motion to enjoin the production at trial of certain letters. Barrett is inapposite, however. That case did not involve a search and seizure under Article 11 because the government played no role in procuring the letters. Id. at 19, 47 A. at 175. The trial court also relied on United States v. White, 401 U.S. 745 (1971), which controls federal law on eavesdropping under the Fourth Amendment to the United States Constitution. In White, the United States Supreme Court concluded that government use of informants equipped with concealed devices to record conversations with unknowing suspects did not violate the Fourth Amendment. 401 U.S. at 751.² A majority of the Supreme Court has since approved the plurality’s rationale in White. See United States v. Caceres, 440 U.S. 741, 750-51 (1979). Under these precedents, the police operation in this case did not violate defendant’s federal constitutional rights.

The question squarely posed, therefore, is whether participant electronic monitoring in the circumstances presented in this case violates Article 11 of the Vermont Constitution. In State v. Blow, 157 Vt. 513, 602 A.2d 552 (1991), we held that obtaining evidence by electronic monitoring in the defendant’s home without his consent and without prior court authorization violates Article 11. The touchstone here, as in Blow and in State v. Kirchoff, 156 Vt. 1, 587 A.2d 988 (1991), is whether a defendant subject to electronic surveillance has a reasonable expectation of privacy. Referring to Justice Harlan’s concurring opinion in Katz v. United States, 389 U.S. 347, 361 (1967), we stated in Blow:

[T]he test requirements are “first that a person ha[s] exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as ‘reasonable.’” Kirchoff makes it clear that privacy expectations do not necessarily decline as surveillance technology advances. Kirchoff, 156 Vt. at 12-13, 587 A.2d at 996. The reasonableness inquiry hinges on the essence of underlying constitutional values — including respect for both private, subjective expectations and public norms.

157 Vt. at 517-18, 602 A.2d at 555. Applying these guidelines to the facts of this case, we find that defendant, regardless of what he actually expected, did not enjoy a reasonable expectation of privacy in a public parking lot. In that setting, conversations are subject to the eyes and ears of passersby.

The distinction between the reasonable expectation of privacy within the home and outside of it is well-grounded in the law and in our culture. Id. at 518-19, 602 A.2d at 556; see also Payton v. New York, 445 U.S. 573, 589 (1980) (deeply rooted, subjective expectation of privacy in home); State v. Brown, 198 Conn. 348, 356-57, 503 A.2d 566, 570 (1986) (“Privacy expectations are normally highest and are accorded the strongest constitutional protection in the case of a private home and the area immediately surrounding it.”). It follows from Blow that participant monitoring outside of the home will not be subject to the same strict standards that we apply to such monitoring within the home of the nonconsenting target; the difference is simply a reflection of the standards that apply to nonhome searches generally. See, e.g., Weber v. City of Cedarburg, 129 Wis. 2d 57, 67, 384 N.W.2d 333, 339 (1986) (citizen had neither subjective nor objective expectation of privacy in his attendance at softball game or in tavern-going).

We recognize that the use of informants, wired or not, intrudes upon privacy, and that the use of recording technology does not alter the essential nature of the state’s act. The widespread and unrestricted use of government informants is surely one of the basic characteristics of a totalitarian state. The use of informants in law enforcement, however, has long been accepted as a necessary compromise between the ideals of a perfectly private society and a perfectly safe one. We therefore hold that warrantless electronic participant monitoring of face-to-face conversations, in cases such as this one, where defendant, located in a public parking lot, had no reasonable expectation of privacy, does not violate the protections of Article 11 of the Vermont Constitution.

Affirmed.

1 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.

2 Twenty-five states, applying their own constitutions or statutes, have followed White. See People v. Collins, 438 Mich. 8,35-36 n.48, 475 N.W.2d 684, 696 n.48 (1991), overruling People v. Beavers, 393 Mich. 554, 227 N.W.2d 511, cert. denied, 423 U.S. 878 (1975). In addition to the Supreme Court of Michigan, the supreme courts of Montana, Pennsylvania, and Louisiana have overruled prior decisions requiring warrants for participant electronic monitoring. State v. Brown, 232 Mont. 1, 755 P.2d 1364 (1988), overruling State v. Brackman, 178 Mont. 105, 582 P.2d 1216 (1978); Commonwealth v. Blystone, 519 Pa. 450, 549 A.2d 81 (1988), aff’d on other grounds, 494 U.S. 299 (1990), overruling Commonwealth v. Shaeffer, 370 Pa. Super. 179, 536 A.2d 354 (1987); State v. Reeves, 427 So. 2d 403 (La. 1982), rev’d on rehearing, State v. Reeves, 427 So. 2d 403, 410 (La. 1983).

Two other states have declined to follow White under state law when considering recorded conversations within the home. Commonwealth v. Blood, 400 Mass. 61, 65-78, 507 N.E.2d 1029, 1031-39 (1987) (warrantless recording and transmission of private conversations with wired informer violated state constitution); State v. Glass, 583 P.2d 872, 880 (Alaska 1978) (Under explicit privacy provision of Alaska constitution, “the expectation that one’s conversations will not be secretly recorded or broadcast should be recognized as reasonable.”).