State v. Costin

720 A.2d 866, 168 Vt. 175, 1998 Vt. LEXIS 228

• Court: Supreme Court of Vermont
• Decided: July 31, 1998
• Docket: 96-624
• Status: Published

Opinions

Dooley, J.

Defendant Michael Costin appeals the denial of his motion to suppress a videotape showing him cultivating marijuana plants in violation of 18 V.S.A. § 4230(a)(2). He contends that, under Chapter I, Article 11 of the Vermont Constitution, the police are required to obtain a warrant before conducting video surveillance on private property. Thus, he argues, the warrantless video surveillance on his private property was unconstitutional and the videotape must be suppressed. We disagree and affirm.

Defendant owns and resides on thirty secluded acres of property in Ferrisburgh, Vermont. The property can be reached by a dirt road, and defendant’s house is situated some 700 feet from the dirt road at the edge of the woods. There are no fences or signs prohibiting entry at the perimeter of the property.

In August of 1992, a Vermont State Police trooper received a tip from an informant that the informant had observed marijuana plants growing on defendant’s property. On August 31,1992, the trooper and a fellow officer responded to the report by entering defendant’s unposted property and observing a number of marijuana plants growing in a wooded section of the property, about 150 feet from defendant’s house. They also observed a foot path leading from defendant’s house to the marijuana plants.

Three days later, the trooper returned and installed a recording video camera in the woods approximately 65 feet from the marijuana plants. The video camera was focused on the marijuana plants and a ten-foot portion of the path leading to the plants. The trooper attached an infrared motion sensor to the video camera. When the sensor detected human activity or other motion near the plants, it turned on the camera and recorder, which remained on for ten minutes. Five days later, the trooper returned to the property and retrieved the camera. The videotape showed defendant walking down the path and tending the marijuana plants in the garden. Based on all of the above information, the trooper applied for and received a search warrant for defendant’s house and property. The subsequent search turned up five marijuana plants and various drug paraphernalia.

Defendant filed a motion to suppress the evidence seized, claiming that the warrantless video surveillance was unconstitutional under the Vermont Constitution¹ and that it tainted the search pursuant to the warrant. The trial court denied the motion, but recognized that the constitutionality of warrantless video surveillance had yet to be addressed by this Court. We now reach the constitutionality of the video surveillance.

Defendant’s main argument is that he has a “reasonable expectation of privacy” such that he would not be videotaped on his land and that, under Chapter I, Article 11 of the Vermont Constitution, the police were required to obtain a search warrant before conducting video surveillance. In framing the issue, defendant does not dispute that the marijuana plants observed by the video camera were located outside the curtilage of his house and thus were in “open fields.” Nor does he dispute that he took no steps to indicate to others that presence on his land outside the curtilage was prohibited.

We addressed the scope of Article 11 protection with respect to “open field” searches in State v. Kirchoff, 156 Vt. 1, 587 A.2d 988 (1991). In Kirchojf, the defendant was convicted of cultivating marijuana on a portion of his secluded property. He had put up several “no trespassing” signs at the foot of his driveway and had posted “no hunting and fishing” signs at the perimeter of his property. Nevertheless, the police ignored the signs, entered onto his property and discovered a marijuana patch about 100 yards from his house. We acknowledged in Kirchojf that the police’s walk-on search would have been permissible under the federal constitution, as construed in Oliver v. United States, 466 U.S. 170, 179 (1984). See Kirchoff, 156 Vt. at 3, 587 A.2d at 990.

Oliver confirmed that the Fourth Amendment protects reasonable expectations of privacy, but held that “an individual may not legitimately demand privacy for activities conducted out of doors in fields, except in the area immediately surrounding the home.” 466 U.S. at 178. The Supreme Court reasoned that lands outside the curtilage of a dwelling “do not provide the setting for those intimate activities that the Amendment is intended to shelter from government interference or surveillance.” Id. at 179.

Nevertheless, in Kirchojf, we interpreted Article 11 as providing broader protection than the Fourth Amendment. We held that “a lawful possessor may claim privacy in ‘open fields’ under Article 11 of the Vermont Constitution where indicia would lead a reasonable person to conclude that the area is private.” 156 Vt. at 10, 587 A.2d at 994. On the other hand, we did not extend Article 11 protection to “searches of lands where steps have not been taken to exclude the public.” Id. By creating this standard, we hoped to protect the constitutional rights of those who have taken affirmative steps to obtain privacy in their lands, while not suppressing evidence obtained by the police that was “‘knowingly exposed to the public.’” Id. (quoting Katz v. United States, 389 U.S. 347, 351 (1967)). Specifically, we held that indicia such as fences, barriers and “no trespassing” signs reasonably indicate that the property is intended to be private and that strangers are not welcome. Id.

Under this interpretation of Article 11, we held that the warrant-less walk-on search of the defendant’s property was unconstitutional. See id. at 14, 587 A.2d at 997. The defendant clearly manifested both an objective and subjective intent to exclude the public by posting “no trespassing” and “no hunting” signs around the perimeter of his property. See id. at 14, 587 A.2d at 996.

The controlling significance of steps to exclude the public is made clear by two other cases, where we held that no Article 11 violation had occurred.² In State v. Chester, 156 Vt. 638, 587 A.2d 1008 (1991) (mem.), decided four days after Kirchoff, the defendant had erected neither signs indicating entry to his land was prohibited nor barriers to entry. We held that the police had not violated Article 11 when they walked on the land and found a marijuana garden:

Kirchojfholds that the State must have a warrant to enter land when it is apparent to a reasonable person that the owner or occupant intends to exclude the public. This standard is intended to define instances where a landowner’s expectation of privacy in an area is reasonable or legitimate. . . .

In this case, there were no barriers to indicate defendant’s intent to exclude the public. Where land is left unimproved and unbounded, the owner or occupant has not taken sufficient steps to exclude the public to trigger the protection of Chapter I, Article 11 of the Vermont Constitution.

Id. at 638, 58 A.2d at 1009 (citations omitted; emphasis supplied).

In State v. Rogers, 161 Vt. 236, 248, 638 A.2d 569, 577 (1993), we held that Chester applied despite the fact that the police officer had crossed through thick woods to reach a marijuana garden. We agreed with a similar decision of the Oregon Supreme Court, State v. Dixson, 766 P.2d 1015, 1024 (Or. 1988), that a “shield created by vegetation or topographical barriers” does not trigger Article 11 protections because the shield is natural and “fails to demonstrate the landowner’s intent to exclude.” Rogers, 161 Vt. at 248, 638 A.2d at 576.

The controlling significance of the place of observation to our Article 11 jurisprudence is made clear by three other gost-Kirchojf decisions. In State v. Blow, 157 Vt. 513, 602 A.2d 552 (1991), the police sent an informant, wired with a transmitter, into the home of defendant to make a drug purchase. We held that “warrantless electronic participant monitoring conducted in a home offends the core values of Article 11” and suppressed the evidence obtained by the transmission. Id. at 519, 602 A.2d at 556.

On the same day, however, we decided State v. Brooks, 157 Vt. 490, 493-94, 601 A.2d 963, 964-65 (1991), in which we held that warrantless electronic monitoring conducted in a parking lot does not offend Article 11 because the speaker who is overheard does not have a reasonable expectation of privacy in words uttered to the informant outside the home.³ In State v. Bruyette, 158 Vt. 21, 37, 604 A.2d 1270, 1278 (1992), a majority of this Court extended Brooks to a situation where the wired informant was the defendant’s girlfriend and who spoke with him in an automobile.

The obvious import of these decisions is that this defendant had no reasonable expectation of privacy in the area in which he tended his marijuana garden because he took no steps to exclude the public. Thus, as we held in Chester, no Article 11 protections were triggered with respect to that area, and police were free to go onto his property and observe his activity. As a result, defendant has no greater protection against electronic surveillance on his unposted, open land than he would if such surveillance were conducted in a public place.

In reaching this conclusion, we reject defendant’s argument that Kirchoff and its progeny are implied-consent rulings, that is, that they hold that an owner or occupier of land has no reasonable expectation of privacy only when he has impliedly consented to the observation involved. He then argues from that proposition that it would be improper to imply consent to video surveillance. We find nothing in Kirchoff to suggest that we used implied consent to determine where Article 11 protections begin. Indeed, it would bend implied consent beyond recognition to suggest that a landowner would impliedly consent to a trespass by law enforcement officers looking for evidence of the landowner’s criminal conduct. Nor can Brooks be explained by a person’s implied consent to talk with, and confess crimes to, a person who is wearing a transmitter so that law enforcement personnel can overhear the conversation. Even if an implied-consent rationale were to underlie these decisions, we would have no basis to say that we can imply a landowner’s consent for direct observation of criminal conduct but not for video surveillance.

We are left, then, with the proposition that Article 11 protects against inappropriate use of electronic technology to observe a person’s movements wherever they may occur. In arguing for this position, defendant notes that in Rogers we distinguished the situation where the officer’s observation is aided by technology, see Rogers, 161 Vt. at 245, 638 A.2d at 574, and urges us to find that use of video technology alone creates an Article 11 search.

Rogers does not help defendant because the observation in that case was into a protected area — the curtilage surrounding the landowner’s home. We agree that video surveillance of a protected area may trigger Article 11 protections although we need not consider those protections in this appeal. See United States v. Mesa-Rincon, 911 F.2d 1433, 1443 (10th Cir. 1990) (because of reasonable expectation of privacy in private business premises, law enforcement officers must obtain judicial approval for video surveillance therein, meeting modified standards of Title III of Omnibus Crime Control & Safe Streets Act of 1968); State v. Bonnell, 856 P.2d 1265, 1276 (Haw. 1993) (because employee break room is protected area, covert video surveillance of employees in room is search under Hawaii Constitution). There is no suggestion in Rogers, or any other case we can find, that use of technology to aid observation of activities in a public place raises Article 11 concerns where, as here, the person observed has taken no steps to avoid observation of his activities.

We need not try generally to define the circumstances that might trigger Article 11 regulation of video surveillance. Nor do we minimize the dangers of widespread use of video surveillance. In this case, however, video surveillance was used in a narrow set of circumstances, where the police had already determined that a crime was being committed, and only as a substitute for in-person surveillance.

Thus, this is not a case where video surveillance is aimed indiscriminately at public places and captures lawful activities of many citizens in the hope that it will deter crime or capture what crime might occur. See generally Comment, Scowl Because You’re on Candid Camera: Privacy and Video Surveillance, 31 Val. U. L. Rev. 1079 (1997); J. M. Granholm, Video Surveillance on Public Streets: The Constitutionality of Invisible Citizen Searches, 64 U. Det. Mercy L. Rev. 687 (1987). Nor was it a situation where the video camera enhanced the observation otherwise unavailable to the naked eye, see State v. Young, 867 P.2d 593, 599 (Wash. 1994) (employment of thermal imaging device was search, in part because it gathered information about defendant’s home that could not be gathered by naked-eye observation); 1 W LaFave, Search and Seizure § 2.2(c), (d) (3d ed. 1996), or recorded what a person would be unable to see because the person could not be at the observation point. See Bonnell, 856 E2d at 1276.⁴ We do not suggest that a warrant is required in all or any of these instances. We distinguish these only to emphasize the limited question before us.

The video camera recorded only what an officer standing in the same position would have observed with the naked eye. See Vega-Rodriguez v. Puerto Rico Tel. Co., 110 F.3d 174, 181 (1st Cir. 1997) (“mere fact that the observation is accomplished by a video camera rather than the naked eye, and recorded on film rather than in . . . [observer’s] memory, does not transmogrify a constitutionally innocent act into a constitutionally forbidden one”). Thus, it is a substitute for the traditional stake-out where a law enforcement officer conceals himself and waits to make the same observation as the video camera would make. As the State argues, the camera, if anything, was less intrusive on the privacy of the landowner because it had a narrow viewing field, was employed only when someone approached the marijuana garden and did not even record sounds. We do not see how Article 11 protects against the use of a technological device that accomplishes the same result as a lawful in-person stake-out, and nothing more. It certainly does not advance a free society for the judiciary to require the employment of more law enforcement personnel to properly enforce the criminal laws.

We recognize that a warrant is required in most cases where law enforcement officers engage in a search covered by Article 11, see State v. Savva, 159 Vt. 75, 85-86, 616 A.2d 774, 779-80 (1991), but one is not required where no Article 11 search is involved. Because we hold that the video surveillance in this case did not trigger Article 11 protections, no warrant was required.

Although acknowledging that the police “acted reasonably in this particular case” and that the “surveillance techniques employed by police in this case were reasonably limited in time, scope and duration,” 168 Vt. at 191, 720 A.2d at 876, the dissent would hold that the police acted unlawfully because they engaged in “covert surveillance” without a warrant. Id. at 193, 720 A.2d at 877. No court in this country has employed the dissent’s reasoning to strike down warrantless surveillance, with or without video recording. Nor could law enforcement officers determine the boundary line between surveillance that requires a warrant and a “brief, warrantless observation” that does not. What the dissent seeks is a reevaluation of Kirchoff, Chester and Rogers to require law enforcement officers to seek a warrant in almost all cases involving open field searches to be sure they have not crossed the indeterminate fine between observation and surveillance.

Moreover, the dissent argues that because indiscriminate video surveillance has the potential to ‘“eliminate personal privacy as understood in modern Western nations,”’ 168 Vt. at 190, 720 A.2d at 875-76 (quoting United States v. Torres, 751 F.2d 875, 882 (7th Cir. 1984)), and bring about a society without privacy as described in George Orwell’s novel 1981, all video surveillance should require prior judicial authorization by way of a warrant. See id. at 193, 720 A.2d at 877. Apparently, under the dissent’s rule, our trial courts would decide what investigatory methods could be employed by law enforcement officers, rather than leaving that determination to the executive branch officials charged with this responsibility.⁵ Again, no court in this country has adopted such an extreme position. We reject it because we are required to decide this case, rather than to suggest a solution to every misuse of video technology we can conceive of.

On the facts of this case, there was no search covered by Article 11 of Chapter I of the Vermont Constitution. The Addison District Court acted correctly in refusing to suppress the videotape that showed defendant cultivating marijuana plants growing on his land.

Affirmed.

1 Defendant has made no claim that the video surveillance offended the Fourth Amendment to the United States Constitution as interpreted by the United States Supreme Court and has apparently conceded that there is no federal constitutional violation. Defendant noted in his brief that Oliver v. United States, 466 U.S. 170, 178-79 (1984), allows the police, without a warrant, “to electrically eavesdrop on private activities in ‘open fields’ because this is not a constitutionally protected area.”

2 Four other states — Montana, New York, Oregon and Washington — provide similar constitutional protection for “open fields” searches. Each of these states similarly requires the landowner or occupier to post or fence the property, that is, evince an intent to protect privacy, for state constitutional protections to apply. See State v. Bullock, 901 P.2d 61, 76 (Mont. 1995); People v. Scott, 593 N.E.2d 1328, 1338 (N.Y. 1992); State v. Dixson, 766 P.2d 1015, 1024 (Or. 1988); State v. Johnson, 879 P.2d 984, 993 (Wash. Ct. App. 1994).

3 Similarly, the Oregon Supreme Court has ruled that use of a night vision system and video camera to observe persons in parked cars in a parking lot is not a search under the Oregon Constitution. See State v. Wacker, 856 P.2d 1029, 1036 (Or. 1993).

4 Recognizing that the judicial response to electronic video surveillance has not been consistent, the American Bar Association Criminal Justice Section has been working on a standard that would comprehensively cover when such surveillance is appropriate and establish procedural safeguards. The draft standard, which often suggests regulation beyond constitutional mínimums, proposes for the video surveillance involved here only that a supervisory law enforcement official determine that the survellance will not view a private activity or condition and is reasonably likely to achieve a legitimate law enforcement objective. See C. Slobogin, Technologically-Assisted Physical Surveillance: The American Bar Association’s Tentative Draft Standards, 10 Harv. J.L. & Tech. 383, 458-59 (1997) (Draft Standard 2-6.3(c)).

5 The dissent has not stated what standard would be used in determining whether to issue a warrant. We note, however, there is no dispute in this case that the police had probable cause to believe that a crime was being committed. Thus, the Court’s review must necessarily go to whether a particular form of investigation can be used with respect to the acknowledged crime.