State v. Schofner

800 A.2d 1072, 174 Vt. 430, 2002 Vt. LEXIS 75

• Court: Supreme Court of Vermont
• Decided: May 2, 2002
• Docket: 99-541
• Status: Published

Opinions

The State appeals, pursuant to 13 V.S.A. § 7403, from an order of the Caledonia District Court suppressing evidence of marijuana cultivation and possession seized with a warrant. The court concluded that the information supporting the warrant, discovered by town listers during a site visit, was obtained in violation of the Fourth Amendment to the United States Constitution. We do not decide whether the listers were lawfully on defendants’ land. We conclude that whether or not the listers were on defendants’ properly lawfully, the evidence of defendants’ possession of marijuana plants and drug paraphernalia is admissible in this criminal proceeding.¹ Accordingly, we reverse and remand.

In May 1999, two tax listers for the town of Walden were examining property for appraisal purposes. While conducting this appraisal, they noticed a new addition on the neighboring house, which belonged to defendants. The addition had not been part of defendants’ property appraisal in the past. To determine the value of the addition, the listers entered defendants’ property and proceeded to the house. They knocked on the front door, but found that no one was home. They then walked around the perimeter of the house and measured the size of the addition. During her observation of the external dimensions of the house, one of the listers saw eighteen potted mariguana plants on a short, stone walkway about fifteen feet from a basement door. She reported her findings to the state police, who obtained a warrant to search defendants’ house based on her observation of the marijuana plants. The search revealed twenty-three mariguana plants and other drug paraphernalia.

Defendants were charged by information with felony mariguana cultivation in violation of 18 V.SA. § 4230(a)(3), and misdemeanor possession of marijuana in violation of 18 V.SA § 4230(a)(1). Pursuant to V.R.Cr.P. 41(f), defendants moved that the court suppress all evidence obtained pursuant to the search warrant. They argued that the warrant-less entry onto their property by the listers was an unreasonable search by a government official and violated the Fourth Amendment to the United States Constitution and Chapter I, Article 11 of the Vermont Constitution. The court granted the motion, and the State appeals. On appeal, the State argues that: (1) the actions of the town lister do not trigger the protections of the Fourth Amendment; and (2) even if the Fourth Amendment is triggered, the lister’s actions were reasonable. We consider the first issue raised by the State. Because of our resolution of the first issue, we do not reach the second issue.

The Fourth Amendment to the United States Constitution states that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” U.S. Const, amend. IV. The Fourth Amendment is, of course, applicable to the states through the Fourteenth Amendment. The basic purpose of the Fourth Amendment is “to safeguard the privacy and security of individuals against arbitrary invasions by governmental officials.” Camara v. Municipal Court, 387 U.S. 523, 528 (1967). It is undisputed that we are dealing here with the actions of a governmental official. Listers are town officers elected at town meeting for a term of three years. 17 V.S.A. §§ 2646(5), 2649. They are required annually to appraise all real property in the town and to “make such personal examination of the property which they are required to appraise as will enable them to appraise it at its fair market value.” 32 V.S.A. § 4041. The lister acted pursuant to this responsibility in this case.

The parties agree, however, that not ah observational activities of governmental officials are searches for purposes of the Fourth Amendment. See, e.g., Commonwealth v. Cote, 444 N.E.2d 1282 (Mass. App. Ct. 1983) (incidental search by city gas employee does not implicate Fourth Amendment); United States v. Attson, 900 F.2d 1427, 1433 (9th Cir. 1990) (refusing to suppress blood alcohol evidence where government doctor withdrew defendant’s blood for medical reasons and not to assist in a criminal investigation). Here we are dealing with a governmental official who does not have law enforcement responsibility. Although the United States Supreme Court has not explored the reach of the Fourth Amendment in such circumstances, other courts have. The proper approach is defined by the Ninth Circuit Court of Appeals in Attson:

Determining whether the conduct of a non-law enforcement governmental party is subject to the fourth amendment presents a question that is analytically quite similar to determining whether the conduct of a private party is subject to the fourth amendment. Both of these analyses proceed from the premise that at its core the fourth amendment was designed to apply to the conduct of law enforcement officials engaged in criminal investigations and that if the application of the fourth amendment is to expand beyond that core, the conduct to which it expands must approximate the types of activities to which the amendment is primarily directed; in other words, such conduct must be considered a “search” or “seizure.” In addition, both analyses require us to gauge whether the party whose actions are challenged intended to assist the government in activities (“searches or seizures”) covered by the fourth amendment, or whether his motivation was independent of such considerations.

900 F.2d at 1432.

The application of this analysis is laid out persuasively in State v. Ellingsworth, 966 P.2d 1220 (Utah Ct. App. 1998), a more factually relevant case. In Ellingsworth, a state workers’ compensation fund claims adjuster gained access to defendant’s medical records in connection with processing a workers’ compensation claim. The records, and other information uncovered by the adjuster, led eventually to the prosecution of defendant for workers’ compensation fraud, and defendant sought to suppress the records as the product of an illegal search. After evaluating Attson, and other decisions discussed below, the Ellingsworth court determined that the proper standard is “whether an actor’s ‘intent and purpose in conducting the search ... is in the person’s own interest or to further law enforcement,’ . . . and [it] equally applies to private individuals or non-law enforcement government agents.” Id. at 1225 (quoting State v. Koury, 824 P.2d 474, 477 (Utah Ct. App. 1991)).

Using this standard, the court reached the following conclusion:

In this ease, the WCF agents investigating defendant’s workers’ compensation claims were doing so solely to determine defendant’s eligibility for workers compensation benefits. Thus, they had a purpose completely independent of law enforcement. . . . This situation is analogous to [that]... in which private investigations were held not to be “state action” because the parties’ intent was primarily to benefit private interests and not law enforcement. Further, the attorney general’s office did not seek defendant’s medical records, nor did it advise the WCF agents on how to proceed in pursuing WCF’s investigation of defendant. Finally, the WCF agents were not rewarded for reporting defendant’s fraudulent action for criminal investigation. Thus we conclude that the WCF did not engage in “state action” that implicates the Fourth Amendment when it investigated defendant’s claim for its own benefit and without law enforcement involvement.

Id. In reaching this conclusion, it relied upon two earlier decisions, People v. McKendrick, 468 N.W.2d 903, 911 (Mich. Ct. App. 1991), and Cote, 444 N.E.2d at 1287, which held that “searches” by government workers not involved in law enforcement do not violate the Fourth Amendment.

In McKendrick, a lawn service was hired by the city to cut defendant’s lawn because it was overgrown in violation of a city ordinance. During the cutting, the workers found marijuana plants in buckets placed out in the lawn. Although the court found that the workers were employees or agents of the city when they uncovered the marijuana, it did not find a Fourth Amendment search primarily because the workers did not enter the property with the intent to conduct a search or to aid the city in its law enforcement investigation efforts. McKendrick, 468 N.W.2d at 910-11.

In Cote, a city electric meter reader discovered an illegal gas hookup while reading the meters in defendant’s building. Emphasizing that “mere employment by an arm of government is not enough to make an actor a government agent for purposes of the Fourth Amendment,” 444 N.E.2d at 1286, the court found that no Fourth Amendment search occurred because the meter reader was not involved with law enforcement personnel and worked for a separate branch of government with a proprietary function. Id.

We believe that the trial court went wrong in this case by characterizing the lister’s conduct as an “investigatory or administrative search” as in O’Connor v. Ortega, 480 U.S. 709 (1987); New Jersey v. T.L.O., 469 U.S. 325 (1985); Marshall v. Barlow’s, Inc., 436 U.S. 307 (1978); and Camara, 387 U.S. 523. Although we agree that the applicability of the Fourth Amendment is not limited to criminal investigations, we cannot agree that it necessarily applies to any investigations, broadly defined. As the Court observed in T.L.O., the investigation cases involve alleged breaches of statutory or regulatory standards. 469 U.S. at 335. Moreover, the violation in each is the failure to obtain advance approval for a search by way of a warrant, a requirement wholly inapplicable when the ground for entry is not connected with a violation of law.² See Marshall, 436 U.S. at 312-13. Thus, all the investigation cases deal with law enforcement, whether criminal, civil or administrative. In each of these cases, there was an investigation into a suspected violation of some law, regulation, policy or rule. There was a subjective motivation present in these cases that is lacking in the case before us: namely, to investigate some breach or wrongdoing.

As in EUingsworth, this case involves a governmental employee who was involved in fact-finding to determine how to apply a particular law, here the property tax law. We have described the work of the listers in making an appraisal as “judicial in character.” Potter v. Town of Clarendon, 118 Vt. 278, 280, 108 A.2d 394, 396 (1954). The lister had no law enforcement motive and no involvement with law enforcement officials. The lister received no benefit from reporting the presence of the marijuana and faced no adverse consequences from failing to do so. In the terminology of Attson, the activities of a lister do not follow or parallel the activities of a law enforcement officer. Following the decisions from other states, we hold that no Fourth Amendment search occurred when the lister encountered the marijuana. Accordingly, we reverse the decision holding the warrant defective and suppressing the marijuana and drug paraphernalia found in the execution of the warrant.

Having determined that there was no search conducted by the listers that is subject to the Fourth Amendment, we need not address whether the listers acted reasonably or lawfully in entering the property without defendants’ express consent. Nor do we need to explore in any depth whether a different analysis or result might be commanded by Chapter I, Article 11 of the Vermont Constitution. The trial court relied solely on the Fourth Amendment in reaching its decision that the evidence from the search must be suppressed. Although defendants in their motions below, and brief here, also challenged the warrant on the basis that the listers’ actions violated Chapter I, Article 11 of the Vermont Constitution, they failed to articulate any basis that would justify affording them greater protection under Article 11 than is required by the Fourth Amendment. Defendants bear the burden of demonstrating why the Vermont Constitution is more restrictive than the United States Constitution and have failed to meet it. State v. Meyer, 167 Vt. 608, 610, 708 A.2d 1343, 1344 (1998) (mem.).

Reversed and remanded.

1 The dissent is inconsistent in its attack on this decision. In the opening sentence it states that we have ruled that there is “no constitutional impediment to town listers coming onto private property and inspecting the exterior of homes without advance notice or the consent of the property owners,” and without concern for our constitutional privacy rights. In footnote three, it criticizes our decision because we have failed to resolve whether listers “have the right to inspect private property without providing advance notice to, or obtaining consent from, the property owners!.]” We doubt we have the power to commit both offenses at once. The latter charge is factually accurate; the former charge is not. This is a criminal case in which the issue is whether evidence will be admitted against defendants. Resolution of that question does not require us to decide whether listers have the legal right to enter a taxpayer’s property without notice or consent. Neither the Town of Walden nor its listers are parties to this case. We prefer to resolve the issue bearing on the criminal responsibility of defendants and leave to another case to define the limits on how listers can appraise property.

2 Defendants’ position, here and in the trial court, was that the evidence must be suppressed unless the lister had consent to enter defendants’ property or a search warrant. Thus, defendants’ argument has been consistently that the lister’s action was a search, unlawful because of a violation of the warrant requirement of the Fourth Amendment. The dissent has changed the issue, dropping any claim that the lister’s action was a violation of the warrant requirement, and arguing instead that the deficiency lies in the absence of a statute requiring notice to the landowner and regulating the time and manner of inspection. This is an entirely new argument, never raised by the parties at any level and to which the State had no opportunity to respond. Since we hold that the lister’s action was not a search, we do not reach its legality. Even if we agreed that the lister’s action was a “search,” we would not decide the legality of the search based on a new theory raised for the first time on appeal and solely by this Court, particularly where the issue is novel.