CHAPTER 2
SEARCH AND SEIZURE
A.GENERAL PRINCIPLES
§ 2.01 Sources of Search and Seizure Protections - Article 11
and the Fourth Amendment
§ 2.02 - Statutes and Rules
§ 2.03 The Exclusionary Rule
§ 2.04 - Standing
§ 2.05 - Fruits of the Intrusion: The Wong Sun Test
§ 2.06 - Inevitable Discovery
§ 2.07 - The "Good Faith" Exception
§ 2.08 - Impeachment and Other Collateral Uses of Illegally Seized Evidence
§ 2.09 - Exclusion for Nonconstitutional Illegalities
§ 2.10 - Self-Help: The Right to Resist Unlawful Intrusions
§ 2.11 Protected Areas and Interests: Privacy and Property
§ 2.12 Governmental Action
§ 2.13 Levels of Protection: An Overview
§ 2.14 Probable Cause
§ 2.15 - Collective Information and Misinformation
§ 2.16 - Informants
§ 2.17 Reasonable Suspicion
§ 2.18 The Warrant Requirement
§ 2.19 - The Probable Cause Showing
§ 2.20 - Perjury in the Warrant Application
§ 2.21 - The Particularity Requirement
§ 2.22 Execution of the Warrant - Timing
§ 2.23 - The Knock and Announce Requirement
§ 2.24 - Scope of the Search
B. SEIZURES AND SEARCHES OF PEOPLE
§ 2.25 The "Reasonableness" Test
§ 2.26 Voluntary Encounters
§ 2.27 Arrests
§ 2.28 - Arrest Warrants
§ 2.29 - Pretextual Arrests
§ 2.30 - Nonconstitutional Limitations on the Power to Arrest
§ 2.31 Searches Incident to Arrest
§ 2.32 Stop and Frisk
§ 2.33 - Scope of the Terry Stop and Frisk
§ 2.34 - Expansion of Terry to Other Contexts
§ 2.35 Detention of Incapacitated Persons
§ 2.36 Seizures of Body and Behavior Evidence
§ 2.37 - The Constitutional Limits
§ 2.38 - Rule 41.1
§ 2.39 - "Special Needs" Body Searches
C. SEARCHES AND SEIZURES OF PLACES, THINGS,
AND COMMUNICATIONS
§ 2.40 Circumstances Requiring a Warrant - The Warrant/Probable-Cause Presumption
§ 2.41 - Premises
§ 2.42 - Land
§ 2.43 - Containers
§ 2.44 Circumstances Excusing the Warrant Requirement
§ 2.45 - Exigent Circumstances
§ 2.46 - Plain View
§ 2.47 - Enhanced Plain View
§ 2.48 Circumstances Excusing the Probable Cause Requirement - Consent
§ 2.49 - Third-Party Consent
§ 2.50 - Crime Scene Searches and "Protective Sweeps"
§ 2.51 - Abandonment
§ 2.52 - "Special Needs" Searches
§ 2.53 - Inventory and "Public Safety" Searches
§ 2.54 Vehicles
§ 2.55 - Seizure of Vehicles on Reasonable Suspicion
§ 2.56 - Suspicionless Stops: Roadblocks
§ 2.57 - Seizures Requiring Probable Cause
§ 2.58 - Searches of Vehicles
§ 2.59 - Consent Searches of Vehicles
§ 2.60 - Vehicle Searches Incident to Arrest and Detention
§ 2.61 Searches and Seizures of Communications - Informants
§ 2.62 - Electronic Eavesdropping
A. General Principles
§ 2.01
Sources of Search and Seizure Protections
- Article 11 and the Fourth Amendment
The proposition that state constitutions create "free-standing" rights, independent of the federal constitution and potentially broader than their federal counterparts, has found its fullest expression in search and seizure law. In most other areas of the criminal law, State v. Jewett's{1} grand promises of a new state constitutional jurisprudence{2} have produced little in the way of practical results, and even in search and seizure law the process of weaning the state guarantee from its federal counterpart is in its infancy. But if Jewett did not usher in a new constitutional regime,{3} it made space for creative advocacy.
The focus on search and seizure is only partly a product of textual differences between the fourth amendment and chapter I, article 11 of the Vermont Constitution. There are major textual differences between the two provisions,{4} but for the most part they have not been held to signify substantive differences. Rather, the Vermont court's activism in this area seems to be a reaction to the United States Supreme Court's sharply restrictive fourth amendment decisions of the 1970s and 1980s.{5}
Jewett and most post-Jewett commentary portrayed article 11 as the primary source of search and seizure protections. Courts and lawyers were admonished to look first to the state constitution and to proceed to fourth amendment questions only if the case did not present an article 11 violation.{6} The practice has been exactly the reverse: courts faced with search and seizure issues invariably look first to the fourth amendment case law, and only if federal law does not require suppression do they consider whether the article 11 rule should be different. Federal treatises, the best and most comprehensive of which is Professor LaFave's four-volume work on the fourth amendment,{7} often provide valuable critiques of federal search and seizure decisions.
The historical approach that the Vermont court called for in Jewett{8} has run up against an almost blank historical record,{9} and an argument based on the framers' intent proved unsuccessful in the one case where historical evidence seemed strong.{10} The court has, however, relied on early article 11 case law{11} and decisions by the quasi-judicial (and long defunct) council of censors.{12}
§ 2.02
- Statutes and Rules
Searches and seizures are also directly or indirectly regulated by statutes and rules, principally V.R.Cr.P. 41 (setting forth requirements for a search warrant); V.R.Cr.P. 3 and 4 (requiring citation or judicial summons in lieu of arrest in certain circumstances); and V.R.Cr.P. 41.1 (governing seizures of various kinds of nontestimonial evidence, such as hair, blood, and photographs). Some of these provisions codify constitutional case law and some impose additional, nonconstitutional requirements.
§ 2.03
The Exclusionary Rule
The criminal lawyer's principal interest in search and seizure protections is their effect on the admissibility of evidence.
The fourth amendment's exclusionary rule{13} is by no means coextensive with the fourth amendment: not every fourth amendment violation requires suppression of evidence, and indeed the differences are substantial.{14}
The match between constitutional coverage and evidentiary exclusion is much closer under article 11. In part, the broader scope of the state exclusionary rule is a product of its broader articulated purpose. The federal rule in recent years has been narrowly tailored to a deterrent rationale, and a cost-benefit analysis that identifies deterrence of police misconduct as the only benefit of exclusion.{15} The state rule, by contrast, serves other purposes. In State v. Badger the court wrote,
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. Introduction of such 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.{16}
If the federal exclusionary rule lacks a constitutional basis,{17} exclusion under article 11 has been held to be a constitutional right in itself. Chapter I, article 4 of the Vermont Constitution provides that the people "ought to find a certain remedy, by having recourse to the laws, for all injuries or wrongs. . . ." In State v. Wood{18} the Vermont Supreme Court grounded article 11's exclusionary rule in article 4, holding that "[r]estricting the availability of the exclusionary rule as the remedy for a violation of Article Eleven merely because of dissatisfaction with that remedy would be inconsistent with this guarantee."{19}
In State v. Oakes{20} the court noted it had not decided whether article 11 and its exclusionary rule were "coextensive."{21} Whatever the ultimate reach of the state exclusionary rule, evidence obtained in violation of chapter I, article 11 is not automatically and invariably suppressible, but the exceptions will be narrower. The defendant must at least show that he or she has standing to complain,{22} and that the evidence was in fact the product of an illegal intrusion.{23}
§ 2.04
- Standing
Illegally seized evidence will be excluded only at the behest of a party whose rights have been violated. The right to complain of a fourth amendment violation depends on the substantive merits of the claim itself, rather than on "any theoretically separate . . . concept of standing."{24} The defendant must establish his or her legitimate expectation of privacy.{25} Such expectations need not be based on any possessory rights in the premises searched, however: in Minnesota v. Olson{26} the court held that an overnight guest had standing to complain of a fourth amendment violation.
Standing under article 11, by contrast, is established if the defendant asserts "a possessory, proprietary or participatory interest in the item seized or the area searched. . . ."{27} The deliberately vague "participatory interest" is drawn from New Jersey case law,{28} and its contours are not clear: it includes a patient's interest in prescription records in the possession of a pharmacy.{29}
When the crime charged is a possessory offense, the Vermont court has adopted an "automatic standing" rule{30} which the United States Supreme Court specifically rejected in 1980.{31} The rule grants "automatic standing to challenge unlawful searches where the defendant is charged with an offense in which possession of the seized evidence at the time of the contested search is an essential element of the crime."{32}
§ 2.05
- Fruits of the Intrusion: The Wong Sun Test
The evidence must be a product or "fruit" of the illegal intrusion, judged by the familiar federal test of Wong Sun v. United States: "whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint."{33} The Vermont court routinely applies this analysis.{34}
The Wong Sun test prohibits introduction of all evidence proximately connected to the illegality. Thus, when part of the probable cause showing in a search warrant affidavit is based on illegally obtained evidence, the warrant will be sustained only if the remaining allegations are sufficient to state probable cause.{35} A confession by a person who has been illegally arrested may be the proximate product of an illegal arrest, notwithstanding that it is voluntary and otherwise in compliance with Miranda.{36} On the other hand, the United States Supreme Court has held that a warrantless arrest in the home does not invalidate a subsequent confession obtained outside the home.{37} And when justification for the intrusion comes from an "independent source," the evidence seized will not be excluded simply because a prior illegality can be seen as a "but for" cause of the intrusion.{38}
The scope of the Wong Sun rule depends, in part, on policy considerations. When the defendant responds to police illegality with "self help" which is itself illegal, that response sometimes provides an independent basis for an arrest and search, because "[s]trong policy reasons support treating these actions as `distinct crimes subject to prosecution despite their close causal nexus to illegal police conduct.'"{39} Even so, in State v. Alexander the court held that a defendant who was stopped after illegally running a DUI roadblock would be entitled to suppression of evidence which came to light after the stop if the roadblock violated constitutional guidelines,{40} because to do otherwise would undermine the deterrent purpose of the exclusionary rule. "Police could be less fastidious in establishing roadblocks . . . and when drivers failed, for whatever reason, to stop, any evidence gathered at the illegal stop could not be suppressed."{41}
In United States v. Crews{42} the Supreme Court held that an illegal arrest did not require suppression of a courtroom identification, even though the defendant would not have been in the courtroom (subject to the witness's observation) but for the arrest, when the witness had first observed the defendant at the time of the crime. The witness's capacity to identify the defendant "neither resulted from nor was biased by the unlawful police conduct committed long after she had developed that capacity."{43} On the other hand, when the ability to identify stems from an illegal arrest (as when a police officer observes and identifies the defendant for the first time after arresting him or her) the identification is suppressible as a fruit.{44}
Causation in fact (or "but for" cause) is therefore not a sufficient condition for suppression, but it is a necessary or threshold condition.{45} In State v. Hunt{46} the defendant confessed to a murder after police confronted him with the murder weapon (claimed to have been illegally seized) and questioned the veracity of his earlier statements. Assuming that the gun itself was inadmissible, the court upheld admission of the confession, finding that a "but for" link between the two had not been proven. "We cannot say that but for the illegal search and seizure of the gun, defendant would not have confessed to the murder. Consequently, as the confession is not a fruit of the search, it is properly admitted at trial."{47}
The correctness of this holding is open to doubt. In many cases, "but for" causation is clear: police come across evidence as a result of a single chain of events. In others (Hunt being one), the police illegality is one of a number of contributing factors, and on general principles the state should have the burden to show that it is not profiting from its illegal conduct.{48}
§ 2.06
- Inevitable Discovery
The Wong Sun test looks back in time, asking whether police illegality produced evidence. The United States Supreme Court has approved a corresponding future-oriented approach, asking whether police would have discovered the evidence notwithstanding the illegality.{49} Illegally seized evidence is admissible under the fourth amendment "[i]f the prosecution can establish by a preponderance of the evidence that the information ultimately or inevitably would have been discovered by lawful means. . . ."{50} No Vermont case has yet applied this expansion of Wong Sun, or discussed its application to article 11's exclusionary rule.{51}
§ 2.07
- The "Good Faith" Exception
The much debated "good faith" exception to the fourth amendment exclusionary rule{52} was held not to be an exception to Vermont's search and seizure exclusionary rule in State v. Oakes.{53} Oakes aligns Vermont with other state courts that have rejected Leon,{54} relying heavily on New Jersey's State v. Novembrino{55} and law review commentary.
A question remaining after Oakes is the admissibility in Vermont courts of evidence illegally seized in "good faith" by federal officers, or by state police in another jurisdiction. Whether the Vermont Supreme Court will allow such evidence under a new "silver platter" doctrine{56} remains to be decided.
§ 2.08
- Impeachment and Other Collateral Uses
of Illegally Seized Evidence
Badger's command that illegally seized evidence "cannot be admitted at trial"{57} is an overstatement, but how much of one remains to be seen. The federal case law permits use of illegally seized evidence to impeach a defendant's testimony, whether elicited on direct examination or cross-examination.{58} Vermont's rule differs marginally: testimony elicited on the defendant's direct examination can be impeached with illegally seized evidence, but not testimony elicited for the first time on cross-examination, except as to "collateral" matters.{59} This rule is intended to avoid the trap which a shrewd cross-examiner could otherwise lay, as a way around a suppression order.
The limited impeachment exception to the exculsionary rule is intended to keep defendants from "affirmatively resorting to prejurious testimony."{60} The rule "leaves defendants free to testify truthfully on their own behalf; they can offer probative and exculpatory evidence to the jury without opening the door to impeachment by carefully avoiding any statements that directly contradict the suppressed evidence."{61} Testimony of a defense witness other than the defendant cannot be impeached with illegal evidence.{62}
In federal courts illegally seized evidence may be admitted in a variety of nontrial contexts such as grand jury proceedings{63} and civil litigation.{64} These holdings, like Leon itself, are grounded in a cost-benefit calculation (deterrent function of exclusion not justified by cost) which Oakes rejects.{65} The Vermont court has not addressed these issues, but any limitations on the exclusionary rule in nontrial proceedings will have to proceed on other rationales.
§ 2.09
- Exclusion for Nonconstitutional Illegalities
The Vermont Supreme Court has not spelled out whether different rules of exclusion apply to nonconstitutional illegalities, but the cases generally make no distinction based on the type of illegality. The court has suppressed evidence obtained in violation of court rules,{66} statutes,{67} and the common law.{68}
V.R.Cr.P. 41, regulating the issuance of search warrants, and 41.1, governing the seizure of nontestimonial identification evidence, specifically allow the defendant to move for suppression, but do not spell out when suppression must be ordered.{69} In State v. Ballou the court left open the question whether all rule violations require suppression.{70}
§ 2.10
- Self-Help: The Right to Resist Unlawful Intrusions
Suppression of evidence is the preferred remedy for an unlawful arrest or search, and the target of an unconstitutional search or seizure also has a right to relief in a private civil action.{71} It is not clear to what extent the arrestee has a right of immediate self-help. Early case law treated an unlawful official seizure of the person as a trespass or assault that the person arrested could counter within the normal rules of self-defense.{72} In State v. Peters{73} the court announced a different rule for arrests that are made pursuant to warrant. Such an arrest may not be forcibly resisted whether or not the warrant is later found to be invalid.{74} The Peters court "saw no reason why, as a general rule," the same principle should not apply to warrantless arrests, but did not so hold.{75} In State v. Alexander{76} the court wrote that the rule against self-help was "well established" and that "[g]overnment by rule of law `requires that we recognize its authority, and recognize likewise our duty to challenge its application by resort to proper judicial proceedings, not self-help.'"{77} Similarly, the target of an unconstitutional search has no right to physically resist the intrusion.{77.5}
§ 2.11
Protected Areas and Interests: Privacy and Property
Since Katz v. United States{78} the focus of the fourth amendment has been reasonable expectations of privacy. Katz marked a move away from a "protected areas" analysis based largely on common law property interests.{79} Cases after Katz measure the scope of the fourth amendment by two criteria:
[T]here is a twofold requirement, first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as "reasonable."{80}
This analysis has a tendency to inconsistent application,{81} and to circularity.{82} Property remains relevant to fourth amendment analysis of "seizures"{83} (which are deemed generally less intrusive than searches),{84} and common law property rights are sometimes important to a privacy analysis.{85}
In State v. Wood{86} the Vermont Supreme Court seemed to chart a different path for article 11. In Wood a police officer looking for stolen motorcycles entered the front yard of a campground at which the defendant was staying. The trial court found a lack of standing, on a fourth amendment "reasonable expectations" analysis. The supreme court reversed, finding standing under article 11, and in the process appeared to abandon the privacy-expectation criterion altogether.
Article Eleven itself establishes the scope of the protected right, and defines who may invoke its protections. The right of the people "to hold themselves, their houses, papers, and possessions, free from search or seizure," defines a right dependent on a possessory interest, with equal recognition accorded to the item seized and the area intruded upon. By delineating the right as a possessory interest, Article Eleven premises the protected right upon an objectively defined relationship between a person and the item seized or place searched, as opposed to a subjective evaluation of the legitimacy of a person's expectation of privacy in the areas searched. Accordingly, a defendant need only assert a possessory, proprietary or participatory interest in the item seized or the area searched to establish standing to assert an Article Eleven challenge.{87}
If the case turned on a narrow question of standing, this language appeared to define a "scope of the protected right" which was both new and reminiscent of pre-Katz federal law.
If Wood made article 11 seem a very different animal from the fourth amendment, State v. Kirchoff{88} narrowed and clouded the difference. In Kirchoff the court discounted the textual differences between the two guarantees, finding no compelling distinction between article 11's protection of "possessions" and the fourth amendment's protections of "effects,"{89} and identified "the core value that gave life to Article 11" as freedom from unreasonable intrusions into "legitimate expectations of privacy."{90} Acknowledging Wood's holding that article 11 "defines a right dependent on a possessory interest,"{91} the court now saw the scope of the protected right as hinging on "when activities . . . are sufficiently private to warrant constitutional protection and when, on the other hand, they are sufficiently public not to deserve protection."{92}
In the end, it matters little whether we use the phrase "reasonable expectation of privacy" or some variant. . . . Our fundamental divergence from federal law, in the present case, lies not in the name given to the test but in the manner in which it is understood and applied. . . .{93}
In State v. Savva,{94} a case involving a search of containers found inside a car, the court reaffirmed article 11's protection of possessory interests in the context of seizures, as opposed to searches,{95} but saw privacy as the interest violated by an unlawful search.{96} In subsequent cases the court has returned to a Katz privacy approach, while sharply differing from the United States Supreme Court in its application.{97}
The continued influence of Wood - the relevance of "possessory, proprietary, or participatory" interests in marking the scope of article eleven protections - remains a basic and still unsettled question.
§ 2.12
Governmental Action
Both the fourth amendment and article 11 protect against governmental intrusions into protected interests. The protection covers action by all government agents and not only the police.{98}
By contrast, intrusions by private persons, no matter how illegal, are not within the scope of the constitutional prohibitions.{99} This immunity for private searches has become more significant with an increasing privatization of police functions (security services, citizen watch groups). In many cases such groups have semiofficial status, or else function at the behest of, or in working arrangements with, governmental police, and the "private" nature of their operations is a question of fact.{100}
§ 2.13
Levels of Protection: An Overview
Article 11, like the fourth amendment, imposes a range of limits on police conduct, depending on the context. By way of an overview, and with some oversimplification, the protections can be ranked, in ascending order, as follows. The examples are intended only as illustrations.
1.No protection. Activities that are held not to intrude on protected interests and do not constitute searches or seizures in the constitutional sense: consensual street encounters not involving any actual restraint,{101} and other "voluntary" police-citizen interactions;{102} police pursuit of a fleeing suspect (until the suspect submits or physical contact is made);{103} consensual searches;{104} consented entries into a house;{105} searches of "open fields" under the fourth amendment;{106} searches of some offices and other work environments, depending on the circumstances;{107} examination of bank records under the fourth amendment;{108} searches and seizures of abandoned property;{109} seizures of objects in "plain view,"{110} including certain "enhanced" observations;{111} most aerial surveillance;{112} routine searches at international borders;{113} and searches of prisoners and prison cells under the fourth amendment.{114}
2. A generalized justification (without individual suspicion). In a few contexts searches and seizures are allowed without any individual suspicion under general guidelines: roadblocks set up to control drunk driving;{115} searches of "closely regulated businesses";{116} drug testing in certain employment contexts;{117 "inventory" searches of seized property;{118} routine searches of prison cells under article 11.{119}
3. Reasonable suspicion. Investigatory detentions, falling short of a full-scale arrest, and protective "frisks,"{120} including stops of automobiles,{121} and other relatively minor intrusions; searches justified by "special needs," for example, a high school student's purse,{122} and a probationer's home.{123}
4. Warrant but no probable cause. Generally, as the fourth amendment says, "no warrants shall issue, but upon probable cause," and when a warrant is required probable cause is also. The United States Supreme Court has recognized at least one exception - administrative searches not conducted for criminal investigatory purposes which are held permissible on a generalized "probable cause"{124} - and has suggested the possibility of another.{125}
5. Probable cause but no warrant. Arrests in public places,{126} or the doorway of a suspect's home,{127} or in exigent circumstances,{128} or incident to arrest;{129} seizures of automobiles;{130} searches of automobiles under the fourth amendment,{131} including containers found within automobiles;{132} searches of "readily mobile" motor homes.{133}
6. Probable cause and warrant. The presumptive (though not the most prevalent) requirement for searches: nonexigent searches of and arrests inside homes;{134} wiretapping;{135} electronically monitored conversations occurring inside the home under article 11;{136} searches of posted land under article 11;{137} searches of containers under article 11.{138}
7. Seizure or search never permitted. There are a very few situations in which, by constitution or rule, a particular search or seizure is never allowed, even when the state has no other way of accomplishing its law enforcement objective: life threatening searches, regardless of process or the level of suspicion;{139} warrantless home entries for relatively minor crimes, regardless of the exigency;{140} use of deadly force to stop a fleeing suspect, absent a normal self-defense justification.{141} By rule certain misdemeanor arrests, with or without warrant are absolutely prohibited, the police being required to serve a citation or summons in lieu of arrest.{142}
§ 2.14
Probable Cause
Despite the authorization of many searches and seizures on less than probable cause, probable cause remains the traditional and presumptive standard. The text of the fourth amendment links the term to the issuance of warrants ("no Warrants shall issue, but upon probable cause . . .") but warrantless searches (and all arrests) are held at least to the same standard.{143} The phrase appears nowhere in article 11 (which prohibits the issuance of warrants without "sufficient foundation for them") but the probable cause standard, and the fourth amendment criterion of "reasonableness" (also nowhere in the text of article 11), as well as the bulk of federal caselaw glossing those terms, are implicit.{144}
Probable cause to arrest means "facts or circumstances within the officer's knowledge [which] are sufficient in themselves to warrant a person of reasonable caution to believe that a crime is being committed" and that the defendant is guilty.{145} "Probable" in this context does not imply a quantitative standard; it has the old sense of "demonstrable, provable . . . worthy of acceptance or belief. . . ."{146}
Probable cause for a search requires the same level of suspicion, but the focus is different. A probable cause search depends on information that would persuade a person of reasonable caution that "a crime has been or is being committed and that evidence of that crime will be found in the place to be searched."{147}
When the question is whether evidence of a crime will be found in a particular place, the connection between the object sought and the place to be searched can be established inferentially, "from the nature of the crime, the type of materials sought, the extent of an opportunity for concealment, and reasonable inferences as to criminal behavior."{148} Probable cause in this context does not mean "more likely than not,"{149} and in fact it can be "something less than `more probable-than-not' (although how much less is anything but clear)."{150} In part, the requisite probability depends on "the strength of the nexus between the defendant and the crime, and where that connection is strong, the link between the place to be searched and the evidence sought need not be so strong if the place is one over which the defendant exercises control."{151}
The connection between object and place can be attenuated by the passage of time. For example, information that an easily moved item was seen at a certain place at a certain time may not warrant a search days or weeks later; in such cases the information has become stale.{152} On the other hand, in State v. Towne{153} the Vermont court approved a search of the foundation of the defendant's home for a murder weapon months after the crime, because "[o]rdinarily, the home is the first place to look for evidence of a crime[,]" especially a weapon, and "[o]nce the weapon was placed in the foundation, defendant was unlikely to retrieve it, especially after he became the focus of the investigation."{154}
Police need not be right in their suspicions, so long as their suspicions are reasonable.{155} Conversely, the fact that police may happen to be right does not validate a search if their suspicion was not supported by probable cause known to the officers before the intrusion.{156}
The police officer's actual subjective motivation is sometimes held to be irrelevant, so long as a court can later point to facts and circumstances within the officer's knowledge that amount to probable cause.{157}
§ 2.15
- Collective Information and Misinformation
It is clear that the information need not be first-hand. Fourth amendment law allows police to rely on bulletins, and other relayed information,{158} and article 11 probably allows the same "collective" probable cause.{159}
The same considerations which credit an individual police officer with collective information hold the officer responsible for collective misinformation. Incorrect collective information provided by a law enforcement agency (e.g., through the NCIC computer network) must be excluded from any calculation of probable cause.{160} Such reliance might be justified on a "good faith" theory, which is inapplicable to article 11.{161} By contrast, erroneous information provided by a non-law enforcement agency, such as the department of motor vehicles, is treated the same as other mistaken but reasonably credited information.{162}
§ 2.16
- Informants
Information provided by anonymous informants has traditionally been accorded special treatment. In Illinois v. Gates{163} the United States Supreme Court announced a loose "reliability-in-the-totality-of-circumstances" test for warrants based on informant information.{164} The long-accepted rule before Gates was the so-called Aguilar-Spinelli test,{165} a two-pronged test which asked if the informant was credible (e.g., had the informant given reliable information in the past?) (the "veracity" prong); and if the information was trustworthy (e.g., had the informant observed incriminating facts first-hand, or had the defendant admitted them to the informant?) (the "basis of knowledge" prong).
The Vermont court has not decided whether article 11 will follow Gates,{166} but there are some indications that it will not.{167}
The two-pronged test is in any event a requirement of the criminal rules for all searches pursuant to warrant,{168} and for all arrests, with or without warrant.{169
a. Basis of Knowledge
A statement that the informant's knowledge comes from first-hand observations generally establishes a sufficient basis of knowledge.{170} Details of the tip may permit an inference of first-hand knowledge. When the informant received information from another person, the reliability of that person's knowledge must be established.{171} Basis of knowledge can be corroborated by independent police observations which tend to confirm an otherwise doubtful tip.{172}
b. Veracity
Veracity is commonly established by an allegation that the informant has provided information in the past which proved to be reliable.{173} Even without such an allegation, veracity can be established by independent police corroboration,{174} or by corroboration from other anonymous informants.{175} That an informant has made admissions against penal interest is held to be an indication of trustworthiness.{176} When the information is provided by a citizen who is not a paid informant and is unconnected with the police, veracity is generally assumed.{177}
Violation of Rule 41's Aguilar-Spinelli} test requires exclusion of evidence,{178} and it seems a safe bet that a failure to satisfy Rule 4's probable cause standard for arrests will have the same effect.
Because Rule 41 applies only to warranted searches, and Rules 3 and 4 govern only arrests, their test does not apply to warrantless searches.{179} Anomalously, until an article 11 decision on the Gates/Aguilar-Spinelli question, probable cause to conduct a warrantless search is held to a looser standard than probable cause for a warrant.{180}
§ 2.17
Reasonable Suspicion
There is a class of fourth amendment intrusions permitted on less than probable cause, when the police have "reasonable suspicion" of criminal misconduct.{181} Vermont's article 11 authorizes such "reasonable suspicion" seizures and frisks in at least some of the same situations.{182}
Reasonable suspicion is "considerably less than proof of wrongdoing by a preponderance of evidence"{183} and less than the "reasonable belief" which probable cause requires, but it must amount to more than guesswork or a hunch.{184} The police must be able to point to "specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant . . . intrusion."{185} As is also true of probable cause, the information need not be first hand; an informant's tip will suffice if there are indications it is reliable{186} or if it is independently corroborated.{187} The suspect's flight or furtive gestures on being approached by the police may contribute to a finding of reasonable suspicion,{188} but flight alone is held to be insufficient.{189}
§ 2.18
The Warrant Requirement
Warrants are said to be the presumptive or "per se" requirement, "subject only to a few specifically established and well-delineated exceptions."{190}
Rule 41 states the mechanics and criteria for search warrants. The warrant is issued by a judicial officer on request of a law enforcement officer, prosecutor, or "any other person authorized by law."{191} The warrant may authorize, inter alia, the seizure of any evidence or contraband, or a "person for whose arrest there is probable cause."{192}
The basis for issuance of a search warrant (most importantly the facts giving rise to probable cause) is stated in an accompanying affidavit, generally signed by a police officer but sometimes by a prosecutor. Although the affidavit is usually the exclusive showing of probable cause (in which case probable cause must be judged within the four corners of the affidavit), the judge is permitted to examine the affiant or any other witness, under oath, so long as a verbatim record is made and incorporated in the affidavit.{193}
Rule 41(c) requires that the affidavit be "sworn to by the affiant personally before a judicial officer. . . ." In State v. Olsen,{193.5} a police officer prepared a detailed affidavit and faxed it to another officer, who prepared a "cover" affidavit attaching and incorporating his partner's allegations. The Vermont court held that this procedure satisfied the rule's personal appearance requirement because the cover affidavit was sworn to before the judge.{193.10} Recognizing that this manner of proceeding may occasionally be necessary, the court declined to endorse it in general, and cautioned that "[a] judicial officer who receives an affidavit from an officer who has no independent knowledge of the facts is justified in refusing to issue the warrant without the direct source.{193.15}
V.R.Cr.P. 4 sets forth the procedure governing issuance of arrest warrants for suspects charged in an indictment or information. They are issued ex parte on application of a prosecuting officer. The showing of probable cause is made in the charging document (the indictment, or the information and its accompanying affidavit of probable cause, which may be supplemented by a transcribed sworn statement before the judge to whom the application is made).{194}
Rule 4 does not provide for warrants issued before charge, although they are sometimes constitutionally required.{195} Arrest warrants in such cases are covered by the search warrant provisions of Rule 41.{196}
§ 2.19
- The Probable Cause Showing
The warrant affidavit must do more than assert probable cause; it must state it in a way which permits the judge to make an independent assessment.{197} Conclusory statements are not good enough.{198} This basic requirement remains true even under Illinois v. Gates's loose totality of circumstances approach.{199} The only exception is arrest warrants based on an indictment, for which probable cause may be presumed.{200}
On the other hand, the affidavit should not be read "in a hypertechnical, rather than a commonsense manner" inasmuch as warrant affidavits "are normally drafted by nonlawyers in the midst and haste of a criminal investigation."{201} This accommodating approach should not apply when the affidavit is drafted by the prosecuting attorney.
Courts reviewing warrant affidavits after the fact (on a motion to suppress evidence seized, or on appeal) are instructed to pay "great deference" to the initial probable cause determination, and that "doubtful or marginal cases" should be decided by "the preference to be accorded warrants."{202} At least under the Gates test, the warrant will be upheld if a reviewing court finds that the judge who issued it had a "substantial basis" for finding probable cause.{203}
§ 2.20
- Perjury in the Warrant Application
The validity of the warrant depends not only on the facial sufficiency of the affidavit, but on its honesty. In Franks v. Delaware{204} the United States Supreme Court held that a defendant can challenge a warrant on the ground "that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit[.]"{205} Intentional and reckless omissions also count as Franks violations.{206} Innocent or negligent misrepresentations or omissions, however, do not.{207} The warrant is unlawful if the perjured allegations are necessary to a finding of probable cause, but if probable cause is sufficiently stated by the unchallenged allegations it will be upheld.{208} The defendant is entitled to a hearing on such a claim only if he or she can make a "substantial preliminary showing" that the statement (or omission) was false, knowingly or recklessly made, and that its deletion undermines a finding of probable cause.{209}
§ 2.21
- The Particularity Requirement
Article 11 and the fourth amendment both require that the place to be searched, as well as the object of the seizure, be stated with particularity. The particularity requirement is principally intended to prevent "general, exploratory rummaging in a person's belongings."{210}
In theory, the point is to leave "nothing . . . to the discretion of the officers executing the warrant."{211} In practice, however, courts allow some leeway. The items to be seized must be described as specifically as the circumstances permit, allowing a "practical margin of flexibility depending on the type of property to be seized. . . ."{212}
A warrant that authorizes a search of people found within a particular place will be upheld if the people are named or sufficiently described, and so long as the affidavit shows probable cause "particularized with respect to that person."{213} Searches of all persons found within a place, without regard to individualized suspicion, offend the particularity requirement.{214}
The place to be searched must also be described with sufficient particularity.{215} It is not clear whether the supporting affidavit can supply particularity missing in the warrant itself.{216}
§ 2.22
Execution of the Warrant - Timing
Search warrants issued under Rule 41 must be executed within ten days, and between 6:00 a.m. and 10:00 p.m., unless otherwise directed for reasonable cause,{217} for example, a danger that evidence will be destroyed or otherwise disposed of absent a nighttime search.{218} These provisions cover warrants for at least some arrests.{219} Nighttime searches without good cause may also violate the fourth amendment.{220}
No time limits are placed on execution of arrest warrants issued under Rule 4, but once arrested the person must be brought before a judge without unnecessary delay.{221} The rule also provides that the arresting officer either show the arrestee the warrant or advise the arrestee of the offense charged.{222}
§ 2.23
- The Knock and Announce Requirement
The requirement that police give notice of their authority and purpose before making an entry is based in the fourth amendment and common law.{223} The requirement may be excused by exigent circumstances.{224}
§ 2.24
- Scope of the Search
A warrant to search a home includes implicit authority to search curtilage and outbuildings within the curtilage.{225}
Police authorized by a warrant to search for X may not use their authority to search for Y, beyond the scope of an X search, on the general principle that the scope of a search "must be `strictly tied to and justified by' the circumstances which rendered its initiation permissible."{226} This is not to say that police executing a warrant for X may not seize Y which they come across "in plain view" during their search.{227}
B. Seizures and Searches of People
§ 2.25
The "Reasonableness" Test
Police interactions with criminal suspects run the gamut from full scale arrests, through brief investigatory detentions, to interactions that are entirely voluntary on the suspect's part. Whatever the degree of restraint, the legality of police conduct will turn on the court's view of its "reasonableness." An arrest always requires full probable cause; without probable cause an arrest is constitutionally unreasonable. Investigatory detention is deemed reasonable on less than probable cause but requires a showing of reasonable individualized suspicion, except in special cases. Voluntary encounters are held not to be fourth amendment or article 11 "seizures" at all, and therefore require no level of suspicion.
A claim of illegal seizure often turns on which of these three classes the interaction falls in, and whether and when it escalates from one to another.{228}
§ 2.26
Voluntary Encounters
Indications that the suspect voluntarily complied with a police "request" to stay put, or to accompany them to another location (e.g., "Would you mind coming down to the station with us?") often present ambiguous and factually difficult pictures. The fourth amendment test is whether, "in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave."{229} The totality-of-circumstances standard gives substantial leeway to trial judges who, when the stakes are high, tend to tilt toward voluntariness. Under the fourth amendment such consents are not judged as waivers of the right to refuse consent and do not require a showing that the suspect knew what she was giving up. Police are therefore not obliged to inform the suspect that she is not under arrest and that she need not comply with their wishes,{230} though their failure to do so may contribute to a finding of involuntariness under the totality test.{231} The requirement of advice remains an undecided question under article 11.{232}
The voluntariness test depends on the suspect's reasonable appreciation of the situation. Approaching a suspect and asking questions or for identification is not a seizure,{233} nor is a mere request to accompany the police to another location.{234} The suspect need not respond and may "go on his way," and doing so does not furnish grounds to restrain him.{235} When the suspect accedes to the request, the presence of a number of police officers, the display of weapons, physical touching, the language used and tone of voice are all relevant to the voluntariness inquiry,{236} as are ambiguities in the request,{237} the length of the journey, the lateness of the hour, and restrictions on the defendant's access to other people.{238} It is not directly relevant that the police later testify that they would (or would not) have let the defendant go if she had asked,{239} though later-expressed intentions should be relevant as indicating how the situation reasonably appeared at the time.
The burden of proof to show consent is on the prosecution.{240}
A finding of voluntary compliance means that no constitutionally significant "seizure" has occurred, and so no level of suspicion is necessary to justify the police conduct. Otherwise, the encounter will be classified as an arrest (requiring a showing of probable cause) or an investigatory detention (requiring reasonable suspicion), depending on the degree of restraint.
§ 2.27
Arrests
An arrest is a full seizure of the person. When and whether such a seizure has occurred depends on a number of factors, including the degree and duration of restraint, the suspect's reasonable understanding of the situation, and in some cases the police officer's intentions.{241} Under the fourth amendment a disobeyed order to halt is not an arrest, at least until the police lay hands on the suspect.{242} On the other hand, a person may be arrested in the constitutional sense without the formal announcement or trappings of an arrest.{243} Taking a suspect to the stationhouse for questioning is generally an arrest{244} but removal to another location for other purposes may not be.{245} A brief investigatory street encounter is not,{246} and such an encounter may be merely "investigatory" even if the police approach with drawn guns.{247}
An arrest, with or without a warrant, always requires probable cause.{248}
§ 2.28
- Arrest Warrants
Probable cause is a necessary condition for all arrests, and it is also a sufficient condition for all but a few. Arrests in places open to the public, where the vast majority of them take place, need no warrant under the fourth amendment even if the police have ample time and opportunity to get one.{249}
Article 11 may not require more. Without squarely reaching the question, the Vermont court has upheld warrantless arrests in a driveway and on front steps, on the ground that these are only semiprivate areas.{250} In State v. Libbey{251} it declined to consider whether article 11 required the issuance of a warrant for nonexigent arrests in public (and semipublic) places, but reached a holding that assumes the traditional no-warrant rule.
Under the fourth amendment police need an arrest warrant to arrest the suspect in the suspect's home or other private place,{252} unless the entry is consented to{253} or exigent circumstances make a warrant impracticable, as in cases of "hot pursuit" of a fleeing felon.{254} Article 11 relieves police from the warrant requirement in cases of "necessity."{255}
Seizures in home-like places like hotels, places of business, and certain kinds of mobile homes also fall under the Payton warrant requirement.{256}
Under the fourth amendment, entry into "open fields" does not offend any constitutional interest, while intrusions into the "curtilage" require probable cause and a warrant.{257} The article 11 rule is different. Posted or fenced fields are considered private under article 11 and may not be searched without a warrant and probable cause.{258} Nonexigent entry on private lands to effect an arrest are therefore almost certainly governed by a warrant requirement.
To arrest a suspect in a third person's home the police must get a search warrant in addition to an arrest warrant.{259}
§ 2.29
- Pretextual Arrests
In a narrow class of cases an arrest or search may be illegal notwithstanding that the police possess an "objectively" sufficient basis. The United States Supreme Court has said that an arrest or search which is effectuated as a mere "pretext" for another objective violates the fourth amendment, even if it would have been otherwise lawful,{260} and police motivation is seen as significant for intrusions which are justified by special non-law-enforcement needs.{261} In State v. Towne,{262} however, the Vermont Supreme Court rejected an argument that the defendant had been pretextually arrested on a stale out-of-state warrant when the real reason was to question him about a recent homicide. The court held that police motives were irrelevant: the arrest could be upheld under the fourth amendment so long as the information in their possession amounted to probable cause.{263}
§ 2.30
- Nonconstitutional Limitations on the Power to Arrest
a. The Misdemeanor "in the Presence" Requirement
There are a number of nonconstitutional limitations on the authority to arrest. V.R.Cr.P. 3(a) continues, with stated exceptions, the common law prohibition against arrest for a misdemeanor not committed in the officer's presence.{264} The arrest must be effected "while the crime is being committed or without unreasonable delay thereafter."{265}
The presence requirement does not apply to arrests for violation of a restraining order issued under 15 V.S.A. ch. 21, involving domestic violence; to arrests for DUI and other traffic offenses; or when the suspect refuses to identify himself or herself, or has violated certain conditions of release, or presents a danger of injury or damage to property.{266}
Even when a misdemeanor arrest is authorized under Rule 3(a), Rule 3(c) requires the officer to issue a citation in lieu of arrest (or to release the suspect after an initial arrest), in the absence of specific circumstances.{267} Citation in lieu of arrest for a felony is discretionary.{268}
Rule 4(c)(1) imposes corresponding restrictions on misdemeanor arrests pursuant to warrant, requiring a summons, in lieu of arrest warrant, in particular circumstances.
Evidence obtained in the course of an arrest that violates these citation and summons requirements is suppressible.{269}
b. Territorial Limits
In some cases territorial limits are placed on a police officer's authority to make an arrest. Authority to arrest pursuant to warrant is defined by the Rules of Criminal Procedure. Such arrests may be made by any "law enforcement officer"{270} at "any place within the state of Vermont."{271} The power to make warrantless arrests, by contrast, is limited by common law to the officer's territorial jurisdiction, as that is defined by statute. State police can act anywhere within the state.{272} Town constables are town officials{273} and are therefore restricted to the territorial confines of their towns.{274} Until a 1988 amendment, municipal police officers and sheriffs were also restricted to their respective territorial bases.{275} Under current legislation sheriffs and deputy sheriffs may exercise statewide jurisdiction, so long as they have completed the statutory training requirements.{276}
Outside his or her territorial jurisdiction, the officer can arrest lawfully only in two circumstances. If the officer is in "fresh pursuit" of the suspect he or she retains full arrest powers.{277} Absent fresh pursuit the officer has only the arrest powers of an ordinary citizen.{278} Private citizens lack authority to arrest for misdemeanors not committed in their presence, unless the misdemeanor constitutes a "breach of the peace."{279} The phrase is not well defined. The court held in State v. Hart and State v. LeBlanc, respectively, that failure to stop at a stop sign, and weaving across the center line, are not breaches of the peace. On the other hand, injury-threatening operation of a motor vehicle may be.{280}
The prohibition against extraterritorial arrests applies as well to Terry-style "detentions" that fall short of a formal arrest.{281}
Evidence produced by an illegal extraterritorial arrest or detention is suppressible.{282}
§ 2.31
Searches Incident to Arrest
When a suspect has been lawfully arrested the police have authority to search the suspect's person and the area within his or her "immediate control." Under the fourth amendment the scope of a search incident to arrest is generally limited to places and objects that the arrestee can lay hands on,{283} unless the arrest occurs in an automobile, in which case the permissible scope is broader, at least under the fourth amendment.{284}
The search may extend to containers that are closely associated with the arrestee (such as a wallet or purse) but not to more substantial (or less closely associated) containers, like luggage.{285}
A search of the arrestee's person incident to arrest is per se reasonable under the fourth amendment, requiring no case-specific justification.{286} This per se power to search opens up obvious opportunities for pretext searches and other police abuses in connection with arrests for traffic offenses and other minor infractions.{287} The general authority to search incident to arrest extends to searches conducted later on, at the stationhouse or jail, in connection with booking and detention procedures.{288}
These full-scale searches, including searches of containers, may also be justified on an "inventory" theory, pursuant to an established inventory procedure.{289}
Even so, the police do not quite have carte blanche. A misdemeanor arrest for a traffic offense does not automatically give them leave to stripsearch the suspect.{290} And if the police have seized items incident to arrest, a later search that is "remote in time or place" cannot be justified as also incident to the arrest{291} because incident-to-arrest searches must be conducted "immediately upon arrest."{292}
In State v. Greenslit{293} the Vermont court upheld a search as "incident to arrest" even though an arrest never took place. The officer in that case, smelling marijuana, ordered the defendant to turn over any marijuana he had on his person. Assuming the order was a search, it was lawful, the court held, because the policeman had probable cause to arrest, an arrest would have been lawful, and the search would then have been justifiable as incident to the arrest.{294}
§ 2.32
Stop and Frisk
Police may detain a suspect on "reasonable suspicion"{295} "as long as the stop is less intrusive than a full blown arrest, and the investigating officer, based on objective facts and circumstances, reasonably believes that the suspect is or is about to be, engaged in criminal activity."{296}
§ 2.33
- Scope of the Terry Stop and Frisk
As in the case of arrests,{297} the question sometimes arises whether the police restrained the suspect, or whether the suspect voluntarily complied with a request. A Terry seizure occurs when "the circumstances of the encounter are so intimidating as to demonstrate that a reasonable person would have believed he was not free to leave if he had not responded. . . ."{298} A show of weapons is a clear indication that such a seizure has occurred,{299} but any show of force or authority can be enough.{300} On the other hand, police pursuit, and even a disobeyed order to stop, unaccompanied by physical force, is not a Terry stop under the fourth amendment.{301} If the suspect disobeys, there must, in the United States Supreme Court's view, be some physical restraint.{302}
A restraint on reasonable suspicion may last no longer than necessary to effectuate its purpose.{303} Generally, it may not go beyond the "brief investigatory stop" permitted by Terry.{304} In extraordinary circumstances, however, the police purpose may justify very substantial restraints, the United States Supreme Court having approved a sixteen-hour detention of a passenger suspected of "alimentary canal smuggling."{305}
Under the fourth amendment, tailoring the stop to its initiating justification does not mean that it must be the "least intrusive [action] reasonably available" to confirm or dispel the suspicions that prompted it.{306} By contrast, warrantless police conduct has been found illegal under article 11 if less intrusive means were reasonably available,{307} and this strict test should also be appropriate for "reasonable suspicion" seizures.
Under federal law police with grounds for a Terry stop may order a suspect out of his or her car.{308} Under article 11 an order to get out of the car constitutes "a further seizure" requiring additional justification,{309} but such justification will normally be present when the suspected criminal activity is drunken driving,{310} or when the defendant has been stopped on suspicion of a violent felony.{311}
A lawful stop may be accompanied by a limited "frisk" of the suspect's outer clothing for weapons.{312} As the stop is less intrusive than a full-blown arrest, the frisk is less invasive than a full-blown search incident to arrest. Its purpose is protective.
[W]here a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and dangerous, where in the course of investigating this behavior he identifies himself as a policeman and makes reasonable inquiries, and nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others' safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him.{313}
Searching the suspect's pockets without first conducting a patdown exceeds the bounds of a permissible frisk.{314}
Although the frisk is justified as a protective search for weapons, any evidence which comes to light in a lawful frisk is admissible.{315}
§ 2.34
- Expansion of Terry to Other Contexts
The Terry Court justified its relaxation of the probable cause requirement by the special law enforcement hazards of street encounters involving contemplated or ongoing criminal activity and the perceived need for "balancing the need to search [or seize] against the invasion which the search [or seizure] entails. . . ."{316} Although the holding was narrowly limited to such street encounters, subsequent cases have approved "reasonable suspicion" seizures and frisks, on the same "balancing" rationale, in a wide variety of other contexts.
The Terry cases involved contemplated or ongoing criminal activity.{317} In United States v. Hensley{318} the United States Supreme Court upheld a Terry stop to investigate completed criminal activity, the rule being restricted to felonies and probably any crime "involving a threat to public safety."{319} The Vermont Supreme Court has not decided when and whether a Terry stop is permissible under article 11 for an already-completed crime.{320}
Terry is also routinely applied to stops of motor vehicles and has been extended to seizures of suspicious objects and weapons "frisks" of suspected cars and places, applications which are covered in other sections.{321}
§ 2.35
Detention of Incapacitated Persons
By statute police may take an "incapacitated" person{322} into protective custody, which may last no longer than twenty-four hours.{323} The purpose of protective custody is to assure the person's safety and that of the public and to "assist[] the individual to return to a functional condition. . . ."{324} The person is to be transported to an "approved alcohol treatment program" or to a hospital emergency room, but the person may also be lodged for up to twenty-four hours in a lockup or correctional facility if he or she refuses to be taken to the treatment center, refuses treatment, or if no treatment or hospital facility is available.{325}
The Vermont Supreme Court has not considered seizures of evidence made in the course of these detentions.{326}
§ 2.36
Seizures of Body and Behavior Evidence
The suspect's body can be a fertile source of evidence, fingerprints being the best known example. The practice of looking to the suspect himself for evidence is routine in drunk driving cases (the breath or blood sample) and common in sexual offense cases (hair, blood, and urine samples). With the advent of DNA analysis and other sophisticated identification techniques such as hair and fibre analysis, prosecutors can be expected to make increasing demands for this type of evidence.
Similarly, the prosecution will seek evidence through compelled behavior of various sorts - writing and voice exemplars, dexterity tests, and so on. These techniques differ from body sampling procedures in that they require the suspect to actively participate, rather than merely acquiesce, in the production of evidence against him.
§ 2.37
- The Constitutional Limits
Body and behavior sampling techniques always involve intrusions, sometimes very profound, into constitutionally protected interests. The constitutional guarantee against unreasonable searches and seizures of the "person" regulates the state's power to make intrusive body searches.{327} The protection extends to procedures which do not entail physical intrusions into the body, such as urine sampling or removal of pubic hairs, but which offend expectations of privacy that society recognizes as reasonable.{328}
The procedure must be justified by a sufficient prospect of success, normally by probable cause.{329}
The United States Supreme Court in Schmerber v. California, stressing that "intrusions beyond the body's surface" are particularly offensive to fourth amendment values, wrote that a search of the body for evidence could be undertaken only on "a clear indication that in fact such evidence will be found."{330} Such a "clear indication" may imply a more substantial showing than probable cause, at least when the procedure involves some risk to the suspect.{331}
Probable cause under the fourth amendment is not necessary in "special needs" situations, that is, when the intrusion "serves special governmental needs, beyond the normal need for law enforcement. . . ."{332}
Body and behavior sampling procedures generally require some sort of personal restraint. When the degree of restraint approaches a full scale arrest (e.g., when the suspect is taken to the police station and detained for a substantial time), the police on general principles should need probable cause.{333} By contrast, less intrusive restraints, such as the detention incident to a roadside "alco-sensor" breath test, or dexterity test, are probably justified by reasonable suspicion, although the law is not entirely clear on this point.{334}
Requiring the suspect to furnish samples of his or her body or behavior obviously constitutes a form of compelled self-incrimination, but because the evidence sought is not "testimonial" the compulsion does not violate either the fifth amendment, or its article 11 counterpart, chapter I, article 10.{335} Procedures that require a suspect to speak or write constitute compulsory self-incrimination only if the evidence produced can be characterized as "testimonial."{336}
Nontestimonial body-sampling and behavior-sampling may, however, implicate constitutional safeguards other than search and seizure protections. The Schmerber Court foresaw situations where sampling procedures might offend a suspect's religious beliefs.{337} Procedures that delve too deeply into the body violate due process as well as the right against search and seizure.{338}
§ 2.38
- Rule 41.1
In Davis v. Mississippi{339} the Supreme Court suggested that in carefully confined circumstances certain nontestimonial evidence-gathering procedures (such as fingerprinting) might be authorized by a judicial officer on less than probable cause.{340} The Court repeated the suggestion in Hayes v. Florida.{341} A proposed federal procedure implementing that suggestion,{342} never incorporated in the federal rules, appears almost verbatim as V.R.Cr.P. 41.1.
The Rule provides a procedure akin to the warrant process{343} for "nontestimonial identification" procedures. An order for nontestimonial procedures is issued by a judicial officer ex parte before or after arrest, on an affidavit showing (1) probable cause to believe that an offense has been committed, (2) reasonable grounds (which need not amount to probable cause) to believe that the suspect committed the offense, and (3) "that the results of specific nontestimonial procedures will be of material aid in determining whether the person named in the affidavit committed the offense."{344} The constitutionality of the provision allowing testing on less than probable cause is an open question under article 11 and at least technically open under the fourth amendment.{345}
The rule is more lenient than the probable cause test for search warrants{346} in one respect and stricter in another. On the one hand, Rule 41.1 does not require a showing that the procedure will likely produce evidence of guilt; it is enough if it will tend to show whether or not the suspect is guilty. On the other hand, the order may not be issued unless the procedure "will be" of material aid. In State v. Towne{347} the Vermont Supreme Court wrote that although the rule requires a showing of "materiality" (i.e., "a logical connection between the type of evidence sought and the capacity of that evidence to be useful in proving or disproving the case against the defendant") it "sets the threshold for probative value of the test very low."{348} Thus, the "material aid" standard will generally permit hair sampling of a rape suspect because "[t]here is a logical connection between the items sought - head and pubic hairs - and the crime of rape."{349}
The rule sets forth detailed procedures regarding the contents of the order, the timing of the procedure, and the manner in which it must be conducted,{350} and it includes provision for suppression of the products of the procedure on the ground that it was "carried out in violation of this rule or otherwise illegally."{351} Presumably, a refusal to submit to illegal procedures would be suppressible as such a "product."{352}
When the order is issued before formal charge the suspect has no right to counsel at the procedure.{353} A procedure undertaken after the charge must, by rule, be made on notice to defense counsel,{354} and for some Rule 41.1 procedures notice to counsel is also required by the sixth amendment.{355}
DUI breath and blood testing is not governed by Rule 41.1 but by specific procedures set out in the DUI law{356} and a substantial body of caselaw.
§ 2.39
- "Special Needs" Body Searches
Searches of the body without probable cause or individualized suspicion are lawful under the fourth amendment in cases of "special governmental needs, beyond the normal need for law enforcement. . . ."{357} Whether and when article 11 will permit such suspicionless body searches are open questions. The court in an unpublished memorandum opinion struck a bail order that required urine sampling as a condition of pretrial release.{358} It has become routine in recent years for probation conditions and prison regulations to require defendants to submit to alcohol or drug testing procedures on demand, but the constitutionality of these practices has not come before the Vermont Supreme Court.
C. Searches and Seizures of Places,
Things, and Communications
§ 2.40
Circumstances Requiring a Warrant -
The Warrant/Probable-Cause Presumption
Article 11 and the fourth amendment permit many kinds of searches and seizures on less than probable cause and without a warrant, but the rule of thumb for searches and seizures of things (if not persons) is that a warrant is required unless circumstances dictate otherwise. This is the traditional fourth amendment view.
[T]he most basic constitutional rule in this area is that "searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment - subject only to a few specifically established and well-delineated exceptions." Katz v. United States, 389 U.S. 347, 357. The exceptions are "jealously and carefully drawn," Jones v. United States, 357 U.S. 493, 499, and there must be "a showing . . . that the exigencies of the situation made that course imperative." McDonald v. United States, 335 U.S. 451, 456.{359}
If this presumption in favor of warrants has been more honored in the breach than in the observance under the fourth amendment,{360} the Vermont court's recent article 11 decisions promise a closer match between word and deed.{361} Article 11's "preference for judicially issued warrants" is not "a starting point for deriving exceptions that balance citizens' interest in privacy against law enforcement's interest in expeditious searches. Rather, it is the balance reached by the constitutional drafters. . . ."{362}
The warrant and probable cause requirements will be dispensed with only in cases of "special needs."
Whatever the evolving federal standard, when interpreting Article Eleven, this Court will "abandon the warrant and probable-cause requirements, which constitute the standard of reasonableness for a government search that the Framers established, `[o]nly in those exceptional circumstances in which special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable. . . .'" O'Connor v. Ortega, 480 U.S. 709, 441 (1987) (Blackmun, J., dissenting and quoting New Jersey v. T.L.O., 469 U.S. 325, 351 (1985) (opinion concurring in judgment)); see State v. Record, 150 Vt. 84, 97, 548 A.2d 422, 430 (1988) (Hill, J., dissenting).{363}
As will be seen, this language, although it provides important guidance, cannot quite be taken at face value. The rule applies, however, in the absence of special circumstances requiring otherwise, in the following cases.
§ 2.41
- Premises
Entry of a home to search, like entry to arrest,{364} is the paradigm case for a search warrant. The rule also covers apartments and hotel rooms;{365} rooms occupied as guest quarters;{366} and places of business not open to the public (except that "closely regulated businesses" present special needs and can be searched without a warrant under the fourth amendment).{367}
§ 2.42
- Land
Article 11 requires a warrant before police may enter private land "where indicia would lead a reasonable person to conclude that the area is private."{368} These indicia include fences, barriers, and no trespassing signs, and their adequacy depends on the particular facts of the case.{369} Notice which would be sufficient under the criminal trespass statute, including "[a]ctual communication by the person in lawful possession" or "[s]igns and placards so designed and situated as to give reasonable notice[,]"{370} will probably be sufficient in this context as well. Under the fourth amendment entries into land (other than the curtilage) are not deemed invasions of privacy and therefore require neither a warrant nor any level of suspicion.{371}
Entry on private property "where steps have not been taken to exclude the public" does not offend article 11.{372} This is probably so even for some parts of the curtilage, defined as the area of land "immediately surrounding and associated with the home."{373} Driveways, front steps, and similar entryways are deemed "semiprivate" places which may be entered without a warrant, at least under the fourth amendment.{374} Portions of the curtilage that are not open to visitors are accorded the same protection as the home under the fourth amendment, whether or not affirmative steps have been taken to exclude the public.{375}
§ 2.43
- Containers
A moveable container can be temporarily seized without a warrant on Terry suspicion, but like a Terry stop of a pedestrian or a vehicle the detention must be strictly limited in duration.{376} A more extensive seizure of a container requires a warrant and probable cause.{377}
When police seize a container (or otherwise have lawful custody of it), they ordinarily need a warrant before they can inspect its contents. In United States v. Chadwick{378} the Court held that a locked footlocker, taken from the defendant in a search incident to his arrest, could not be opened without a warrant. The rule applies to less formidable containers, such as a closed paper bag.{379} The Vermont court has indicated it will not deem some containers more "worthy" than others.{380}
As regards moveable containers, however, the warrant requirement is riddled with special exceptions, in addition to the generally applicable excuses of exigent circumstances,{381} consent,{382} and abandonment.{383} It does not apply to a container which "discloses its contents" either because it is open and its contents are in plain view, or because "its configuration gives away what is inside (e.g., a pistol in a holster). . . ."{384} Nor is a warrant required when police have lawfully opened the container and seen its contents and then closed it again.{385} When the seizure is made incident to arrest, no warrant is needed to search containers, like a wallet, that are "closely associated with the person of the arrestee."{386} Even property not so immediately associated may be searchable without a warrant pursuant to "established inventory procedures."{387} No warrant is required under the fourth amendment if the container is seized from an automobile or other vehicle, but this general exception is not recognized under article 11.{388}
§ 2.44
Circumstances Excusing the Warrant Requirement
Even when a warrant would otherwise be required special circumstances may excuse its absence. One of these circumstances, that the search was incident to arrest, has been discussed in a previous section.{389}
§ 2.45
- Exigent Circumstances
Police may enter a home or other area where a warrant is ordinarily required in exigent circumstances, that is, a compelling need to search and no time to obtain a warrant.{390} The same sort of exigency that allows warrantless arrests in "hot pursuit"{391} permits warrantless searches for evidence if there is reason to think that the evidence will be destroyed or concealed unless an immediate search is undertaken.{392} A warrantless seizure of evidence is permitted by the same considerations.{393}
It is not necessary under article 11 or the fourth amendment that the police obtain a warrant at the earliest possible moment, so long as there are sound investigatory reasons for delaying.{394} On the other hand, the police may not deliberately orchestrate an exigency in order to avoid getting a warrant.{395}
The scope of an "exigent circumstances" search must be limited by its justification{396} and conducted in a reasonable manner.{397}
Vermont cases hold that the exception justifies only the "least intrusive" action consistent with the exigency.{398} These strictures on exigent circumstances intrusion are consistent with an early article 11 formulation, permitting warrantless action only "in that class of cases where delay would be perilous."{399}
It should be borne in mind that the exigent circumstances exception excuses the police from obtaining a warrant, but not from other constitutional prerequisites of the intrusion, and in particular not from probable cause. The warrantless seizure of a marijuana baggie in State v. Rocheleau} was lawful only because the police had probable cause to believe it contained contraband.{400} If the warrant requirement is generally dispensed with under the fourth amendment in the case of automobiles, "[a]utomobile or no automobile there must be probable cause for a search."{401} The main exceptions to this are crime scene searches and "protective sweeps," discussed in § 2.50, infra.
§ 2.46
- Plain View
Both federal and state law recognize the validity of "plain view" seizures in particular circumstances. First, the police must be lawfully in a position to make observations (by virtue of a warrant or otherwise).{402} Lack of such authority invalidates a "plain view" seizure even if the evidence is visible (or otherwise detectable) from outside the premises. Police who see a marijuana plant through a window may not enter to seize it without a warrant. Second, the item seized must be obviously, and without further inspection, seizable evidence.{403} This means only that there must be probable cause to believe that it is seizable evidence.{404} A third traditional prerequisite for a plain view seizure, that the police must come upon the item inadvertently,{405} is no longer a requirement of the fourth amendment.{406} It remains an open question whether inadvertence will remain a requirement of article 11.{407}
§ 2.47
- Enhanced Plain View
"Plain view" observation may be facilitated by various technical enhancements, but there comes a point where technology invades protected privacy interests. The U.S. Supreme Court has held that use of a flashlight does not,{408} nor do naked-eye observations from aircraft,{409} or use of trained dogs to detect the contents of containers.{410} On the other hand, electronic surveillance of a private phone conversation requires a warrant and probable cause,{411} as does an electronically monitored conversation in the home (under article 11),{412} although both could be characterized as technically enhanced "plain view" observations. The Vermont Supreme Court has noted as a general principle that legitimate privacy expectations do not necessarily decline with advances in surveillance technology.{413}
§ 2.48
Circumstances Excusing the Probable Cause Requirement - Consent
Probable cause and a search warrant can both be dispensed with if the police obtain consent from someone who is entitled to give consent.{414} To be effective consent must be "voluntary," judged by the surrounding circumstances.{415} Although consent to search effectively waives constitutional protections, the state need not show waiver in the traditional sense, that is, a knowing and intelligent relinquishment of rights.{416} Waiver principles are relevant, however, when consent is obtained from a suspect in custody who has asserted a fifth amendment right to counsel. In such circumstances a consent to search induced by police-initiated questioning is held to violate the fifth amendment.{417}
Consent, according to Schneckloth, must be "free of any aspect of official coercion."{418} Such coercion is shown when consent is granted in "submission to a claim of lawful authority[,]"{419} for example, when the police assert a right to search whether or not they get consent.{420} Consent to search is also invalid if it is the fruit of an unlawful arrest or stop.{421}
The burden of proof to show consent falls on the prosecution.{422} The standard under the fourth amendment is proof by a preponderance of the evidence.{423}
§ 2.49
- Third-Party Consent
Third parties can consent to a search or seizure "on the rationale that by entrusting his property so completely to a third party, the defendant no longer has a justifiable expectation of privacy in the property and that he `assumes the risk' that the third party will allow a search."{424} The consenting party must have a right of access, and the defendant must have assumed the risk that the consenting party might permit the search.{425} In addition, the third party's consent must be voluntary and untainted by prior illegality.{426}
A search pursuant to consent by a third party who the police reasonably believe to be but who is not in fact authorized to consent is lawful under the fourth amendment on a good faith theory,{427} but probably not under article 11, or at least not on the same rationale.
§ 2.50
- Crime Scene Searches and "Protective Sweeps"
When police have entered premises lawfully (e.g., with an arrest warrant or by consent), special exigencies of the situation may permit a limited warrantless search, even without probable cause.
After an arrest pursuant to warrant the police may conduct a "protective sweep" of premises as a safety measure, on reasonable suspicion that third parties may pose a danger to the officers.{428}
Police and other state officers (like firemen) may enter premises without a warrant, to deal with an emergency or to investigate the scene of a crime, and in connection with such an entry they may conduct limited searches for victims or for the suspect, but such a search must be undertaken immediately and be closely limited to its purpose.{429} There is no general "crime scene" exception to the warrant requirement.{430}
§ 2.51
- Abandonment
Police may search and seize property that has been "abandoned" without a warrant or any level of suspicion, on the theory that the owner has waived privacy and possessory interests.{431} The fourth amendment allows searches of curbside garbage on an abandonment theory.{432}
Proof of abandonment requires more of a showing than that the property is temporarily lost and out of the owner's possession.{433} The burden of proof is on the prosecution; the standard of proof under article 11 (whether by a preponderance or by clear and convincing evidence) has not been decided.{434}
§ 2.52
- "Special Needs" Searches
There is a catch-all category of searches and seizures which, although they would normally require a warrant and probable cause, are held to be excused from usual requirements by "special needs, beyond the normal need for law enforcement. . . ."{435} These "special needs" searches constitute a growing and ill-defined class.{436}
Special needs have been held to excuse the police from the normal warrant and probable cause requirements in a variety of situations, including the search of a public school student's locker and purse,{437} an inspection of a "closely regulated" business,{438} the search of a probationer's home,{439} and the stopping of cars at a drunk driving roadblock.{440} The Vermont court has carved out "special needs" justifications under article 11 for suspicionless DUI roadblocks,{441} random searches of prison cells,{442} and inspections of pharmacy records.{443}
Although special needs intrusions are generally justified by administrative needs beyond normal law enforcement, the distinction may be illusory, inasmuch as "administrative regulations `may have the same ultimate purpose as penal laws[,]'" and courts have applied the doctrine to ordinary police investigations.{444}
Special needs do not altogether exempt the search from constitutional limitations. The courts must balance privacy and possessory interests against the asserted special needs to determine the "reasonableness" of the police conduct. "The warrant and probable-cause requirements . . . continue to serve as a model" in this reasonableness inquiry.{445} In many special needs cases the courts hold that sufficient constitutional protection is afforded by executive guidelines which limit official discretion and guard against vindictive conduct,{446} but this is not the only possible "special needs" balance.{447}
It is arguable under article 11, given the Vermont court's preference for warrants, that guidelines regulating a special needs search should be imposed by the judiciary, pursuant to an administrative warrant procedure,{448} rather than by the executive branch (in the form of police or administrative guidelines).{449}
§ 2.53
- Inventory and "Public Safety" Searches
Once police have possession of a suspect's property, the fourth amendment permits a limited "inventory" search without a warrant or probable cause. Such inventories (which commonly involve the contents of a vehicle, clothing, pocketbooks, wallets, etc.) can be seen as a species of "special needs" searches and must meet a number of criteria. First, the police purpose must be noninvestigatory, that is, to protect the police from false claims or the suspect from theft,{450} or in some cases (e.g., when a weapon is involved) to assure the public safety.{451} The claimed noninvestigatory purpose must not be a mere pretext for warrantless evidence gathering.{452} Second, the search must be undertaken pursuant to standard procedures of the police department involved.{453} The requirement is similar to the "administrative guidelines" deemed necessary in other contexts where a warrant and probable cause may be dispensed with.{454}
The noninvestigatory goals of inventories can sometimes be achieved by less intrusive means (e.g.,} by allowing an arrested defendant to leave her car in a public lot rather than impounding it), but federal law does not require the police to pursue the least intrusive course.{455} Vermont's least drastic means decisions{456} may dictate a different result for inventory searches under article 11.
§ 2.54
Vehicles
Searches and seizures of cars and other vehicles are a special case, a kind of hybrid. Vehicles are treated in some ways like people (generally no warrant required, stops permissible on reasonable suspicion) and in some ways like premises or containers.
In its inception the so-called "automobile exception" to the warrant requirement was based on a car's mobility and was no more than a special application of the exigent circumstances rule.{457} The rationale clearly applied to cars "stopped on the highway,"{458} but in many cases (e.g., impounded or otherwise secured vehicles, vehicles whose owners had been placed under arrest) no real need for haste justified warrantless action. More recently, federal fourth amendment case law extended the exception well beyond its original justification, on the ground that, regardless of mobility, people generally have a reduced expectation of privacy in automobiles,{459} and in view of the desirability of "bright line" rules.{460}
Vermont's pre-Jewett fourth amendment case law includes criticism of the trend, and a reluctance to extend the automobile exception beyond its exigent circumstances rationale.{461} The Vermont court's more recent article 11 decisions indicate an intention to apply the warrant presumption seriously and to keep the "automobile exception" within bounds.{462}
§ 2.55
- Seizure of Vehicles on Reasonable Suspicion
Stopping a car on the highway, like stopping a person on the street, is a seizure which is permissible on reasonable and articulable suspicion of wrongdoing,{463} the standard of Terry v. Ohio.{464} Conclusory suspicion, for example, that a car "did not belong in the particular area in the early morning hours," is insufficient.{465} Reasonable suspicion can come from the officer's first-hand observation of erratic or otherwise suspicious operation,{466} or from second-hand information,{467} or a combination of the two.{468}
Like a Terry stop of a pedestrian, reasonable-suspicion vehicular stops cannot extend beyond their initiating justification,{469} but circumstances may persuade a court of the reasonableness of quite protracted detention.{470}
§ 2.56
- Suspicionless Stops: Roadblocks
In State v. Martin{471} the Vermont Supreme Court upheld suspicionless DUI roadblocks against a fourth amendment challenge, reserving the question of the legality of such stops under article 11. The United States Supreme Court subsequently reached the same conclusion.{472} In State v. Record{473} the court upheld the constitutionality of roadblocks under article 11, over a sharp dissent, on essentially the same basis and with the same limitations as its fourth amendment ruling.
A DUI roadblock will generally pass muster under article 11 if
(1) the initial stop and the contact between the officers in the field and the motorist involves an explanation of the nature of the roadblock and minimal detention of a nonimpaired driver; (2) the discretion of the officers in the field, as to the method to be utilized in selecting vehicles to be stopped, is carefully circumscribed by clear objective guidelines established by a high administrative official; (3) the guidelines are followed in the operation of the roadblock; (4) approaching drivers are given adequate warning that there is a roadblock ahead; (5) the likelihood of apprehension, fear or surprise is dispelled by a visible display of legitimate police authority at the roadblock; and (6) vehicles are stopped on a systematic, nonrandom basis that shows drivers they are not being singled out for arbitrary reasons.{474}
Evidence (e.g., observations of alcohol impairment, criminal admissions, contraband) obtained after an illegal roadblock stop will be suppressed. In State v. Alexander{475} the court held that evidence obtained in a lawful stop after the defendant runs an illegal roadblock should be suppressed.{476}
§ 2.57
- Seizures Requiring Probable Cause
A full seizure of a vehicle as evidence of a crime, or as the subject of a contemplated search for evidence, generally requires probable cause and, under article 11, probably a warrant, unless exigent circumstances justify a warrantless seizure.{477} Seizures for noninvestigatory purposes (e.g., towing an apparently abandoned vehicle) are permissible in limited circumstances as inventories.{478}
§ 2.58
- Searches of Vehicles
Under the fourth amendment a vehicle can be searched stem to stern, without a warrant, on probable cause. "If probable cause justifies the search of a lawfully stopped vehicle, it justifies the search of every part of the vehicle and its contents that may conceal the object of the search."{479} Such a search may include the opening of closed containers found inside the car, regardless of whether the probable cause relates to the entire car, or specifically to the container.{480}
The article 11 rule is different. Nonexigent searches of containers found within cars normally require a warrant; the police may seize the suspected container but must then apply for a warrant to search it.{481} The exceptions are cases where the possessory interest invaded by the seizure outweighs the privacy interest invaded by a search. In such cases a warrantless search may be lawful, as the "least intrusive means" of securing evidence. State v. Savva and State v. Platt both left undecided the most important question: whether article 11 requires a warrant to search the vehicle itself.{482} The tendency of both opinions, and the logic of the situation{483} suggest that the Vermont court will require a warrant except in cases of true exigency.
§ 2.59
- Consent Searches of Vehicles
The principles governing consent searches{483.5} generally apply to consent searches of vehicles. Under the fourth amendment a suspect's general consent to search a car will be liberally construed to permit the search a closed container found inside the car, so long as a search of the container would be "reasonable," given the object of the search.{484}
§ 2.60
- Vehicle Searches Incident to Arrest and Detention
The perceived need for "bright line" rules to guide police has caused the United States Supreme Court to expand the permissible scope of a vehicle search incident to arrest.{485} In New York v. Belton{486} the court held that "when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may as a contemporaneous incident of that arrest, search the passenger compartment of that automobile."{487} This general authorization includes any containers found within the passenger compartment, whether open or closed.{488} Such searches may not, however, extend to areas outside the passenger compartment (e.g., the trunk),{489} and they are also limited by the contemporaneity requirement: a vehicle search conducted after the defendant has been removed from the scene cannot be justified under Belton.
The Vermont Supreme Court has not decided whether to adopt a similar rule under article 11, but its strong criticism of the federal car search cases in State v. Savva is a good indication that it will not.{490}
Federal law also grants substantial authority to "frisk" an automobile even when police lack probable cause to arrest, although the scope of such searches is not as broad as those permitted by Belton. Detention of a driver justifies "the search of the passenger compartment of [the] automobile, limited to those areas in which a weapon may be placed or hidden" if the police have reasonable suspicion "that the suspect is dangerous and the suspect may gain immediate control of weapons."{491} These "frisks" can only be justified by safety considerations; the police may not search a car on reasonable suspicion merely to gather or preserve evidence.{492}
§ 2.61
Searches and Seizures of Communications - Informants
Federal case law has generally not viewed the use of informants and undercover police agents as implicating fourth amendment interests, although the planting of a state "spy" would seem to encroach on expectations of freedom from governmental intrusion. The rule is no different even when the informant or agent enters the suspect's home, so long as the suspect consents to the entry.{493} In State v. Zaccaro{494} the Vermont Supreme Court refused to fashion a different rule under article 11, upholding the legality of an undercover police officer's entry into a suspect's home to purchase narcotics. Such entries do not offend article 11, at least when the agent or informant is invited in for an illegal purpose,{495} and when the police act on more than "mere conjecture."{496}
When the informant is "wired," article 11 and the fourth amendment part company. The recording or transmission of a conversation by a party to the conversation is held not to invade any "justifiable" privacy interest under the fourth amendment.{497} In State v. Blow{498} the Vermont Supreme Court applied the same privacy analysis but reached the opposite result, holding that a suspect's conversation with a wired undercover police detective violated both subjective and "reasonable" expectations of privacy.{499} Legitimate privacy expectations, the court wrote, "do not necessarily decline as surveillance technology advances."{500} The court made a sharp distinction between the wired agent and the undercover activity approved in Zaccaro - between "electronically recorded evidence obtained in a suspect's home by an informant posing as a would-be drug customer and testimony from such an informant who uses only senses and memory[,]"{501} a distinction which the United States Supreme Court saw as immaterial.{502}
The site of the taping in Blow, the suspect's home, was central to the decision,{503} and in a case decided the same day{504} the court held that the same type of activity occurring in a public place (a shopping center parking lot) where "conversations are subject to the eyes and ears of passersby" did not violate article 11.{505}
Presumably even a wired informant may testify from memory if the electronic recording is not used in any way (e.g., to refresh memory). The open questions are whether the Vermont court will expand Blow to conversations in other private areas (e.g., in a car, or on the sort of private land protected by Kirchoff){506} or to participant monitoring of telephone conversations.{507}
§ 2.62
- Electronic Eavesdropping
Surreptitious electronic eavesdropping, as opposed to the "participant monitoring" of conversations in Blow and Brooks, is a subject which the Vermont court has not had occasion to address. Title III of the Omnibus Crime Control and Safe Streets Act of 1968 pervasively regulates the practice{508} and excludes as evidence any communications intercepted in violation of its provisions.{509} The statute permits state judges to authorize electronic interceptions only to an official specifically authorized by state law,{510} and Vermont has adopted no such law.
ENDNOTES
1. 146 Vt. 221 (1985).
2. See § 1.01, supra (introduction).
3. See State v. Jewett, 146 Vt. 221, 224 (1985) (quoting Wordsworth on the French Revolution: "Bliss was it in that dawn to be alive,/But to be young was very heaven.").
4. The fourth amendment provides: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." Article 11 reads as follows: "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 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."
5. But see State v. Jewett, 146 Vt. 221, 224 (1985) (warning that "[s]tate courts should not look to their constitutions only when they wish to reach a result different from the United States Supreme Court").
6. See, e.g., F. Mahady, Toward a Theory of State Constitutional Jurisprudence: A Judge's Thoughts, 13 Vt. L. Rev. 145, 147-48 (1988).
7. W. LaFave, Search and Seizure (2d ed. 1987).
8. State v. Jewett, 146 Vt. 221, 225-27 (1985). See § 1.01, supra (introduction).
9. Direct evidence of the intent of the article 11's framers is almost nonexistent. The provision, like much of Vermont's Declaration of Rights, comes from an early version of Pennsylvania's constitution. Martin, The Vermont Constitution: Past, Present and Future, 17 Vt. B.J. 7 (April 1991), 36 (June 1991). The adopting convention left no record of debates or revisions. State v. Kirchoff, 156 Vt. 1, 5 (1991). See generally 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).
10. See State v. Kirchoff, 156 Vt. 1, 4-6 (1991) (rejecting historical evidence that the word "possessions" in article 11 was intended to include real estate).
11. State v. Badger, 141 Vt. 430, 451 (1982) (citing State v. Slamon, 73 Vt. 212 (1901)).
12. State v. Savva, No. 90-035, slip op. 14 (Vt. Oct. 25, 1991) (citing Records of the Council of Censors 205-06 (1991)).
13. The rule was first applied to the states in Mapp v. Ohio, 367 U.S. 643 (1961).
14. See, e.g., United States v. Leon, 468 U.S. 897 (1984).
15. State v. Oakes, 157 Vt. 171, 174 and n.4 (1991).
16. State v. Badger, 141 Vt. 430, 452-53 (1982).
17. See State v. Oakes, 157 Vt. 171, 173-74 (1991). Mapp v. Ohio, 367 U.S. 643, 649 (1961), saw exclusion as the implicit requirement of the fourth amendment itself.
18. 148 Vt. 479 (1987).
19. 148 Vt. at 486 n.5.
20. 157 Vt. 171 (1991).
21. But see State v. Brunelle, 148 Vt. 347 (1987) (permitting limited impeachment use of evidence obtained in violation of chapter I, article 10).
22. See § 2.04, infra.
23. See § 2.05, infra.
24. Rakas v. Illinois, 439 U.S. 128, 139 (1978); State v. Wood, 148 Vt. 479, 485 (1987).
25. Rakas v. Illinois, 439 U.S. 128, 139 (1978).
26. 495 U.S. 91 (1990).
27. State v. Wood, 148 Vt. 479, 489 (1987). The police in Wood intruded into the curtilage of a camp at which the defendant was a guest; the result may not have been different under the fourth amendment. See Minnesota v. Olson, 495 U.S. 91 (1990).
28. See State v. Alston, 88 N.J. 211, 228, 440 A.2d 1311, 1319 (1981); State v. Welch, No. 90-392, slip op. 7 (Vt. Oct. 30, 1992) (citing State v. Mollica, 554 A.2d 1315, 1321 (N.J. 1989)).
29. State v. Welch, No. 90-392, slip op. 7-8 (Vt. Oct. 30, 1992).
30. State v. Wright, 157 Vt. 653 (1991).
31. United States v. Salvucci, 448 U.S. 83, 90 (1980) (overruling Jones v. United States, 362 U.S. 257, 260-65 (1960)).
32. State v. Wright, 157 Vt. 653, 654 (1991).
33. Wong Sun v. United States, 371 U.S. 471, 488 (1963) (quoting Maguire, Evidence of Guilt, 221 (1959)).
34. See, e.g., State v. Welch, No. 90-392, slip op. 18 (Vt. Oct. 30, 1992); State v. Alexander, 157 Vt. 60, 62-63 (1991); State v. Emilo, 144 Vt. 477, 483 (1984); State v. Phillips, 140 Vt. 210, 218 (1981); State v. Dupaw, 134 Vt. 451, 453 (1976).
35. State v. Moran, 141 Vt. 10, 16 (1982).
36. See Taylor v. Alabama, 457 U.S. 687, 690 (1982); Dunaway v. New York, 442 U.S. 200, 216-19 (1979); Brown v. Illinois, 422 U.S. 590, 597-604 (1975).
37. New York v. Harris, 495 U.S. 14 (1990).
38. Brown v. Illinois, 422 U.S. 590, 603 (1975); State v. Alexander, 157 Vt. 60, 63 (1991); State v. Phillips, 140 Vt. 210, 218-19 (1981) (police, after illegally detaining motorist, could lawfully search the car after receiving additional information from a source unrelated to the illegal stop).
39. State v. Alexander, 157 Vt. 60, 63-64 (1991) (quoting United States v. Bailey, 691 F.2d 1009, 1017 (11th Cir. 1982)). See § 2.10, infra (self-help).
40. See § 2.56, infra.
41. State v. Alexander, 157 Vt. 60, 64 (1991).
42. 445 U.S. 463 (1980).
43. United States v. Crews, 445 U.S. 463, 473 (1980).
44. State v. Emilo, 144 Vt. 477, 483 (1984).
45. Segura v. United States, 468 U.S. 796, 815 (1984).
46. 150 Vt. 483 (1988).
47. State v. Hunt, 150 Vt. 483, 493 (1988).
48. 1 LaFave and Israel, Criminal Procedure § 9.4, at 747 (1984). But see Fahy v. Connecticut, 375 U.S. 85, 90-91 (1963).
49. Nix v. Williams, 467 U.S. 431 (1984).
50. Nix v. Williams, 467 U.S. 431, 444 (1984).
51. If inevitable discovery ever justifies admission under article 11, it is arguable that the state should have to make its case of inevitability by more than a preponderance. See Nix v. Williams, 467 U.S. 431, 459-60 (1984) (Brennan, J., dissenting). Cf. United States v. Wade, 388 U.S. 218, 240 (1967) (clear and convincing evidence standard to show "independent source" under the Wong Sun test).
52. United States v. Leon, 468 U.S. 897 (1984).
53. 157 Vt. 171 (1991).
54. See State v. Oakes, 157 Vt. 171, 173 n.3 (1991) (citing cases).
55. 105 N.J. 95, 519 A.2d 820 (1987).
56. Cf. Elkins v. United States, 364 U.S. 206 (1960) (evidence unconstitutionally seized by state officers may not be used in federal court); State v. Caron, 152 Vt. 492, 512-13 (1990) (confession obtained by New York police was admissible in Vermont trial despite noncompliance with waiver provision of Vermont's public defender statute).
57. State v. Badger, 141 Vt. 430, 452-53 (1982). Compare Silverthorne Lumber Co. v. United States, 251 U.S. 385, 392 (1920) ("The essence of a provision forbidding the acquisition of evidence in a certain way is not merely that evidence so acquired shall not be used before the court but that it shall not be used at all.").
58. United States v. Havens, 446 U.S. 620 (1980); Oregon v. Hass, 420 U.S. 714 (1975); Harris v. New York, 401 U.S. 222 (1971); Walder v. United States, 347 U.S. 62 (1954).
59. State v. Brunelle, 148 Vt. 347 (1987). See § 3.27(a), infra.
60. Walder v. United States, 347 U.S. 62, 65 (1954).
61. James v. Illinois, 493 U.S. 307 (1990). See § 3.27(a), infra (impeachment use of evidence obtained in violation of Miranda).
62. James v. Illinois, 493 U.S. 307 (1990).
63. United States v. Calandra, 414 U.S. 338 (1974).
64. United States v. Janis, 428 U.S. 433 (1976).
65. See State v. Oakes, 157 Vt. 171, 174 n.4 (1991) (citing Calandra, Janis, and similar decisions as examples of the rejected cost-benefit analysis).
66. State v. Ballou, 148 Vt. 427 (1987) (violation of V.R.Cr.P 41's search warrant standard); State v. Laflin, Nos. 92-162 and 92-197 (April 9, 1993) (suppression for violation of Rule 3's citation requirement).
67. State v. LeBlanc, 149 Vt. 141 (1987) (police acting beyond territorial jurisdiction); State v. Hart, 149 Vt. 104 (1987).
68. State v. Hart, 149 Vt. 104, 108-09 (1987) (officer exceeded common law citizen's arrest powers).
69. V.R.Cr.P. 41(f); 41.1(l).
70. State v. Ballou, 148 Vt. 427, 433 n.2 (1987) (violation which goes "to the heart" of Rule 41's probable cause requirement makes the search illegal and requires suppression). See State v. Laflin, Nos. 92-162 and 92-197, slip op. 5 (April 9, 1993) (Rule 3 "was designed to codify and enhance protections conferred by the Fourth Amendment" and violations require suppression.)
71. Violation of the fourth amendment by state officials can be asserted in a civil rights action brought under 42 U.S.C. § 1983. See, e.g., Soldal v. Cook County, Illinois, 113 S. Ct. 538 (1992); O'Connor v. Ortega, 480 U.S. 709, 107 S. Ct. 1492, 1495 (1987). The fourth amendment itself gives a private right of action against federal officials. Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971).
72. State v. Malnati, 109 Vt. 429, (1938); State v. Mancini, 91 Vt. 507, 510 (1917); State v. Hooker, 17 Vt. 658, 671-72 (1845).
73. 141 Vt. 341 (1982).
74. State v. Peters, 141 Vt. 341, 347 (1982).
75. State v. Peters, 141 Vt. 341, 347 (1982).
76. 157 Vt. 60 (1991).
77. State v. Alexander, 157 Vt. 60, 62 (1991) (quoting In re Provencher, 127 Vt. 558, 562 (1969)). In Provencher, the court held that an escape from jail could not be justified on the ground that the defendant's incarceration was illegal.
78. 389 U.S. 347 (1967).
79. See, e.g., Silverman v. United States, 365 U.S. 505 (1961).
80. Katz v. United States, 389 U.S. 347, 361 (Harlan, J., concurring).
81. See State v. Wood, 148 Vt. 479, 490 and n.8 (1987).
82. See, e.g., Oliver v. United States, 466 U.S. 170, 178 (1984) (an individual has no privacy interest in posted land because "an individual may not legitimately demand privacy for activities conducted out of doors in fields, except in the area immediately surrounding the home").
83. Soldal v. Cook County, Illinois, 113 S. Ct. 538 (1992). A seizure occurs when "there is some meaningful interference with an individual's possessory interests in [the] property." Id. at 543 (quoting United States v. Jacobsen, 466 U.S. 109, 113 (1984)). See also Arizona v. Hicks, 480 U.S. 321, 328 (1987).
84. Segura v. United States, 468 U.S. 796, 805-13 (1984).
85. United States v. Dunn, 480 U.S. 294, 301 (1987) (giving a constitutional test for curtilage); California v. Ciraolo, 476 U.S. 207, 221 (1986) (Powell, J., dissenting); Oliver v. United States, 466 U.S. 170, 180 (1984) (recognizing constitutional protection of "curtilage" surrounding home).
86. 148 Vt. 479 (1987).
87. State v. Wood, 148 Vt. 479, 489 (1987) (citations omitted).
88. 156 Vt. 1 (1991).
89. State v. Kirchoff, 156 Vt. 1, 4-6 (1991).
90. State v. Kirchoff, 156 Vt. 1, 6 (1991) (quoting Oliver v. United States, 466 U.S. 170, 187 (1984) (Marshall, J., dissenting)).
91. State v. Kirchoff, 156 Vt. 1, 8 (1991).
92. State v. Kirchoff, 156 Vt. 1, 8 (1991).
93. State v. Kirchoff, 156 Vt. 1, 13-14 (1991).
94. No. 90-035 (Vt. Oct. 25, 1991).
95. State v. Savva, No. 90-035, slip op. 16, 18 (Vt. Oct. 25, 1991).
96. State v. Savva, No. 90-035, slip op. 14, 16 (Vt. Oct. 25, 1991).
97. State v. Blow, 157 Vt. 513 (1991); State v. Brooks, 157 Vt. 490 (1991).
98. See, e.g., New Jersey v. T.L.O., 469 U.S. 325 (1985) (search by public school officials); State v. Berard, 154 Vt. 306 (1990) (search by corrections officers).
99. United States v. Jacobsen, 466 U.S. 109, 114-15 (1984); Burdeau v. McDowell, 256 U.S. 465, 475 (1921); United States v. Crochetiere, No. 88-74-01, slip op. 5 (D. Vt. March 8, 1989). Actions of an off-duty police officer, or an officer acting outside her jurisdiction, are not "private" for constitutional purposes. State v. Beresford, 156 Vt. 333, 336 n.* (1991).
100. See, e.g., United States v. Attson, 900 F.2d 1427, 1432-33 (9th Cir.), cert. denied, 111 S. Ct. 393 (1990).
101. United States v. Mendenhall, 446 U.S. 544 (1980).
102. INS v. Delgado, 466 U.S. 210 (1984).
103. California v. Hodari D., 111 S. Ct. 1547 (1991); Michigan v. Chesternut, 486 U.S. 567 (1988).
104. Florida v. Bostick, 111 S. Ct. 2382 (1991).
105. State v. Zaccaro, 154 Vt. 83 (1990).
106. Oliver v. United States, 466 U.S. 170 (1984).
107. O'Connor v. Ortega, 480 U.S. 709, 726 (1987).
108. United States v. Miller, 425 U.S. 435 (1976).
109. California v. Greenwood, 486 U.S. 35 (1986); State v. Beresford, No. 88-248, slip op. 3 (Vt. April 12, 1991).
110. Katz v. United States, 389 U.S. 347, 351 (1967); Horton v. California, 58 U.S.L.W. 4694 (1990).
111. See, e.g., United States v. Place, 462 U.S. 696, 707 (1983) (trained dogs sniffing luggage).
112. California v. Ciraolo, 476 U.S. 207 (1986).
113. United States v. Montoya de Hernandez, 473 U.S. 531, 538 (1985); Almeida-Sanchez v. United States, 413 U.S. 266, 272-73 (1973).
114. Hudson v. Palmer, 468 U.S. 517 (1984).
115. Michigan Department of State Police v. Sitz, 496 U.S. 444 (1990); State v. Record, 150 Vt. 84 (1988) (article 11); State v. Martin, 145 Vt. 562 (1985) (fourth amendment).
116. New York v. Berger, 482 U.S. 691 (1987); State v. Welch, No. 90-392, slip op. 9-17 (Vt. Oct. 30, 1992) (pharmacy records).
117. Skinner v. Railway Labor Executives Ass'n, 489 U.S. 602, 109 S. Ct. 1402 (1989); National Treasury Employees Union v. Von Raab, 489 U.S. 656, 109 S. Ct. 1384 (1989).
118. Florida v. Wells, 58 U.S.L.W. 4454 (1990).
119. State v. Berard, 154 Vt. 306 (1990).
120. Terry v. Ohio, 392 U.S. 1 (1968).
121. Delaware v. Prouse, 440 U.S. 648 (1979).
122. New Jersey v. T.L.O., 469 U.S. 325 (1985).
123. Griffin v. Wisconsin, 483 U.S. 868, 107 S. Ct. 3164 (1987) (search on "reasonable grounds"); State v. Moses, No. 91-117, slip op. 10-13 (Vt. Oct. 23, 1992).
124. Camara v. Municipal Court, 387 U.S. 523, 538 (1967) (housing code inspections). See also Marshall v. Barlow's, Inc., 436 U.S. 307 (1978) (OSHA inspections); See v. City of Seattle, 387 U.S. 541 (1967) (fire inspections).
125. Hayes v. Florida, 470 U.S. 811, 817 (1985) (judicially authorized seizures, on less than probable cause, for fingerprinting).
126. United States v. Watson, 423 U.S. 411 (1976).
127. United States v. Santana, 427 U.S. 38 (1976).
128. Welsh v. Wisconsin, 466 U.S. 740 (1984); Warden v. Hayden, 387 U.S. 294 (1967).
129. New York v. Belton, 453 U.S. 454 (1981); Chimel v. California, 395 U.S. 752 (1969).
130. State v. Platt, 154 Vt. 179 (1990).
131. United States v. Ross, 456 U.S. 798 (1982).
132. California v. Acevedo, 111 S. Ct. 1982 (1991).
133. California v. Carney, 471 U.S. 386 (1985).
134. Payton v. New York, 445 U.S. 573 (1980).
135. Katz v. United States, 389 U.S. 347 (1967).
136. State v. Blow, 157 Vt. 513 (1991).
137. State v. Kirchoff, 156 Vt. 1 (1991).
138. State v. Savva, No. 90-035 (Vt. Oct. 25, 1991).
139. Winston v. Lee, 470 U.S. 753 (1985) (surgical removal of bullet).
140. Welsh v. Wisconsin, 466 U.S. 740 (1984).
141. Tennessee v. Garner, 471 U.S. 1, 7 (1985).
142. V.R.Cr.P. 3(c)(1), 4(c)(1).
143. Wong Sun v. United States, 371 U.S. 471, 479 (1963); State v. Goyette, 156 Vt. 591, 595 n. 2 (1991); State v. Phillips, 140 Vt. 210, 216 (1981).
144. State v. Berard, 154 Vt. 306, 309 (1990); State v. Platt, 154 Vt. 179, 183 (1990); State v. Record, 150 Vt. 84, 85 (1988); State v. Jewett, 148 Vt. 324, 328 (1985) (article 11's prohibition on "search or seizure" means unreasonable search or seizure).
145. State v. Greenslit, 151 Vt. 225, 228 (1989). See also Henry v. United States, 361 U.S. 98, 102 (1959); State v. Phillips, 140 Vt. 210, 216 (1981).
146. State v. Towne, No. 89-298, slip op. 5 (Vt. May 22, 1992) (citations omitted).
147. State v. Brown, 151 Vt. 533, 535 (1989) (quoting State v. Ballou, 148 Vt. 427, 433-34 (1987), and State v. Howe, 136 Vt. 53, 61 (1978)).
148. State v. Towne, No. 89-298, slip op. 8 (Vt. May 22, 1992); State v. Weiss, 155 Vt. 558, 563 (1990); State v. Moran, 141 Vt. 10, 17 (1982).
149. State v. Towne, No. 89-298, slip op. 4-5 (Vt. May 22, 1992) (overruling State v. Brown, 151 Vt. 533, 535 and n.2 (1989), and disavowing dicta in State v. Platt, 154 Vt. 179, 186 (1990), and State v. Weiss, 155 Vt. 558, 559 (1990)). The United States Supreme Court has also rejected the "more likely than not" test under the fourth amendment. See Illinois v. Gates, 462 U.S. 213, 238 (1983); Texas v. Brown, 460 U.S. 730, 742 (1983) (plurality opinion).
150. State v. Towne, No. 89-298 slip op. 6 (Vt. May 22, 1992) (quoting Kamisar, Gates, "Probable Cause," "Good Faith," and Beyond, 69 Iowa L. Rev. 551, 588 (1984)).
151. State v. Towne, No. 89-298, slip op. 8 (Vt. May 22, 1992).
152. See, e.g., Spinelli v. United States, 393 U.S. 410 (1969); Sgro v. United States, 287 U.S. 206 (1932); State v. Maguire, 146 Vt. 49, 55 (1985), and at 56 (Allen, C.J., dissenting) ("[w]ithin the past four days" informant told affiant he saw drugs in an apartment; information not stale under totality of circumstances).
153. No. 89-298, slip op. 3-10 (Vt. May 22, 1992).
154. State v. Towne, No. 89-298, slip op. 8-10 (Vt. May 22, 1992).
155. State v. Driscoll, 137 Vt. 89, 97-98 (1979). Cf. State v. Ryea, 153 Vt. 451, 454-55 (1990) (officer mistakenly thought defendant's license was listed as suspended; vehicle stop was lawful).
156. Smith v. Ohio, 494 U.S. 541, 543 (1990) (per curiam); State v. Phillips, 140 Vt. 210, 217 (1981) ("[s]ubsequent revelations will not retroactively confer probable cause to make an arrest").
157. State v. Towne, No. 89-298, slip op. 25 (Vt. May 22, 1992); State v. Bruno, 157 Vt. 6, 11 (1991). Subjective motivation may be relevant to claims of pretextual arrests and searches. Id. at slip op. 26 n.4 (not deciding the state constitutional question). See § 2.29, infra.
158. Whitley v. Warden, 401 U.S. 560, 568 (1971); State v. Phillips, 140 Vt. 210, 216 (1981); State v. Unwin, 139 Vt. 186, 190 (1980).
159. Cf. State v. Caron, 155 Vt. 492, 499-500 (1990) (police could reasonably stop car on basis of "BOL" bulletins).
160. State v. Lanoue, 156 Vt. 35, 37-38 (1991).
161. State v. Oakes, 157 Vt. 171 (1991).
162. State v. Lanoue, 156 Vt. 35, 37 (1991).
163. 462 U.S. 213 (1983).
164. The Vermont Court has applied the same standard for a warrantless search, while expressing some doubt that Gates applies. State v. Goyette, No. 89-440, slip op. 3 n.2 (Vt. May 31, 1991).
165. Spinelli v. United States, 393 U.S. 410 (1969); Aguilar v. Texas, 378 U.S. 108 (1964).
166. See State v. Goyette, 156 Vt. 591 (1991) (not argued); State v. Ballou, 148 Vt. 427, 433-34 (1987) (approving and applying the test, as a matter of V.R.Cr.P. 41, for searches pursuant to warrant); State v. Maguire, 146 Vt. 49, 54 (1985) (not preserved).
167. See State v. Platt, 154 Vt. 179, 184-87 (1990) (applying the two-pronged test to a warrantless seizure of an automobile); State v. Barrett, 132 Vt. 369, 371-73 (1974) (approving a strict application of the test, and relying on authority disapproved in Gates).
168. V.R.Cr.P. 41(c); State v. Ballou, 148 Vt. 427, 433-34 (1987).
169. See V.R.Cr.P. 4(b) (probable cause for warrant or summons may be based on hearsay "provided there is a substantial basis for believing the source of the hearsay to be credible and for believing that there is a factual basis for the information furnished"); 3(a) (probable cause for warrantless arrest "shall be based upon the same evidence required for issuance of a summons or warrant under Rule 4(b)").
170. State v. Ballou, 148 Vt. 427, 434-35 (1987).
171. Spinelli v. United States, 393 U.S. 410, 416 (1969).
172. See Draper v. United States, 358 U.S. 307 (1958) (police observed behavior predicted by anonymous informant); State v. Goyette, 156 Vt. 591, 596 n.3 (1991) ("Strong police corroboration of the details of an informant's tip predicting movements that are seemingly innocent but suspicious when considered together may satisfy the `basis of knowledge' prong of [the Aguilar-Spinelli] test") (dictum).
173. McCray v. Illinois, 386 U.S. 300, 304 (1967).
174. State v. Ballou, 148 Vt. 427, 435 (1987).
175. State v. Platt, 154 Vt. 179, 186 (1990); State v. Ballou, 148 Vt. 427, 435 (1987) (four mutually corroborating informants).
176. State v. Platt, 154 Vt. 179, 186 (1990) (informant admitted participating in crime); State v. Ballou, 148 Vt. 427, 435 (1987).
177. Cf. State v. Olsen, No. 92-028, slip op. 4-5 (Dec. 24, 1992) (information provided by fellow police officer presumptively reliable); State v. Siergey, 155 Vt. 78, 81 (1990) (anonymous citizen complaint, supported by corroborating observations, was sufficient for Terry stop); State v. Kettlewell, 149 Vt. 331, 336 (1988) (information from constable was presumed reliable for purposes of Terry stop).
178. State v. Ballou, 148 Vt. 427, 433 n.2 (1987).
179. State v. Goyette, 156 Vt. 591, 595 (1991) (warrantless search of automobile); State v. Coon, No. 89-416 (Vt. Aug. 12, 1991) (unpublished).
180. Cf. State v. Phillips, 140 Vt. 210, 216 (1981) ("The standards for evaluating the factual basis supporting a probable cause assessment are not less stringent in a warrantless arrest situation than in a case where a warrant is sought from a judicial officer."); State v. Goyette, 156 Vt. 591, 595 n.2 (1991) (quoting United States v. Ventresca, 380 U.S. 102, 106 (1965) ("in a doubtful or marginal case a search under warrant may be sustainable where without one it would fall")). But see State v. Platt, 154 Vt. 179, 184-87 (1990) (applying Aguilar-Spinelli test for warrantless seizure of automobile).
181. Sibron v. New York, 392 U.S 40 (1968); Terry v. Ohio, 392 U.S. 1 (1968).
182. State v. Jewett, 148 Vt. 324, 329 (1986).
183. State v. Siergey, 155 Vt. 78, 81 (1990), and State v. Sutphin, No. 90-258, slip op. 2 (Vt. May 22, 1992) (both quoting United States v. Sokolow, 490 U.S. 1, 7 (1989)).
184. State v. Sutphin, No. 90-258, slip op. 2 (Vt. May 22, 1992) (quoting Terry v. Ohio, 392 U.S. 1, 27 (1968)).
185. Terry v. Ohio, 392 U.S. 1, 21 (1968); State v. Kettlewell, 149 Vt. 331, 334 (1988). See United States v. Cortez, 449 U.S. 411 (1981) ("detaining officers must have a particularized and objective basis for suspecting the particular person stopped of criminal activity").
186. Adams v. Williams, 407 U.S. 143, 147 (1972).
187. Alabama v. White, 496 U.S. 325, 110 S. Ct. 2412 (1990); State v. Kettlewell, 149 Vt. 331, 335 (1988); State v. Siergey, 155 Vt. 78, 81 (1990) (anonymous tip plus first-hand observations were held sufficient). See also United States v. Hensley, 469 U.S. 221 (1985) ("wanted" bulletin).
188. Sibron v. New York, 392 U.S. 40, 66 (1968).
189. State v. Paquette, 151 Vt. 631, 635 (1989); State v. Emilo, 144 Vt. 477, 479 (1984). But see California v. Hodari D., 59 U.S.L.W. 4335, 4336 n.1 (1991).
190. State v. Wood, 148 Vt. 479, 483 (1987) (quoting Katz v. United States, 389 U.S. 347, 357 (1967)). This traditional formulation is something of an overstatement. See § 2.40, infra.
191. V.R.Cr.P. 41(a).
192. V.R.Cr.P. 41(b).
193. V.R.Cr.P. 41(c).
194. V.R.Cr.P. 4(a).
195. E.g., when the arrest takes place inside the home. Payton v. New York, 445 U.S. 573 (1980).
196. V.R.Cr.P. 41(b)(5).
197. Illinois v. Gates, 462 U.S. 213, 239 (1983); Aguilar v. Texas, 378 U.S. 108, 112-13 (1964).
198. Aguilar v. Texas, 378 U.S. 108 (1964) ("affiants have received reliable information . . ."); Nathanson v. United States, 290 U.S. 41 (1933) ("the affiant has cause to suspect and does believe . . .").
199. Illinois v. Gates, 462 U.S. 213, 239 (1983).
200. V.R.Cr.P. 4(a), (b).
201. United States v. Ventresca, 380 U.S. 102, 108, 109 (1965). See also State v. Towne, No. 89-298, slip op. 7 (Vt. May 22, 1992); State v. Ballou, 148 Vt. 427, 434 (1987); State v. Maguire, 146 Vt. 49, 54-55 (1985); State v. Moran, 141 Vt. 10, 16 (1982).
202. Illinois v. Gates, 462 U.S. 213, 236 (1983); State v. Ballou, 148 Vt. 427, 424 (1987); State v. Maguire, 146 Vt. 49, 53 (1985).
203. Illinois v. Gates, 462 U.S. 213, 238-39 (1983); State v. Maguire, 146 Vt. 49, 53 (1985).
204. 438 U.S. 154 (1978).
205. Franks v. Delaware, 438 U.S. 154, 155-56 (1978).
206. See United States v. Whitaker, No. 90-81-01-02, slip op. 22 (D. Vt. June 17, 1991); State v. Platt, 154 Vt. 179, 186-87 (1990); United States v. Wells, No. 99-97, slip op. 9 (D. Vt. Jan. 30, 1989).
207. Franks v. Delaware, 438 U.S. 154, 171 (1978). But see State v. Dupaw, 134 Vt. 451, 452 (1976) (arrest warrant invalid because affidavit's allegations were "utterly devoid of factual support").
208. Franks v. Delaware, 438 U.S. 154, 171-72 (1978); State v. Platt, 154 Vt. 179, 187 (1990). Cf. State v. Moran, 141 Vt. 10, 16 (1982) (affidavit should be judged minus allegations that were derived from prior illegal intrusion).
209. Franks v. Delaware, 438 U.S. 154, 155-56 (1978), United States v. Whitaker, No. 90-81-01-02, slip op. 20 (D. Vt. 1991).
210. Coolidge v. New Hampshire, 403 U.S. 443, 467 (1971).
211. Marron v. United States, 275 U.S. 192, 196 (1927).
212. Andresen v. Maryland, 427 U.S. 463, 479-82 (1976) (warrant to seize unknown "fruits, instrumentalities, and evidence" sufficiently particular in context); State v. Dorn, 145 Vt. 606, 619 (1985) (specification of categories of documents sufficient in medicaid fraud investigation; "drug price listings" sufficiently designated prescription receipt log).
213. State v. Ballou, 148 Vt. 427, 436 (1987) (quoting Ybarra v. Illinois, 444 U.S. 85, 91 (1979)).
214. Ybarra v. Illinois, 444 U.S. 85, 91-92 (1979) (pat-down search of patrons of bar). An influential Vermont district court opinion, In re: Certain Children, No. 22-6-84 Osj (Aug. 8, 1984) (Mahady, J.), condemned the seizure of all children within a religious community as flagrantly violative of article 11.
215. Maryland v. Garrison, 480 U.S. 79 (1987). An incorrect address will not be fatal if the description allows the executing officer to identify the correct premises "with reasonable effort." State v. Peters, No. 91-135 (Vt. 1991) (unpublished).
216. Moore v. United States, 461 F.2d 1236, 1238 (D.C. Cir. 1971).
217. V.R.Cr.P. 41 (c); State v. Weiss, 155 Vt. 558, 564 (1990).
218. State v. Weiss, 155 Vt. 558, 564 (1990). If the facts establish such a danger, the judge need not make a specific finding in order to justify a nighttime search. Id. at 564 n.*.
219. V.R.Cr.P. 41(b)(5).
220. Gooding v. United States, 416 U.S. 430, 462-63 (1974) (Marshall, J., dissenting) ("[T]here is no expectation of privacy more reasonable and more demanding of constitutional protection than our right to expect that we will be let alone in the privacy of our homes during the night.").
221. V.R.Cr.P. 4(2)(C).
222. V.R.Cr.P. 4(2)(C).
223. See Ker v. California, 374 U.S. 23, 46-59 (1963) (Brennan, J., dissenting); Miller v. United States, 357 U.S. 301, 313 (1958) ("The requirement of prior notice of authority and purpose before forcing entry into a home is deeply rooted in our heritage and should not be given grudging application").
224. Ker v. California, 374 U.S. 23, 40 (1963); United States v. Spinelli, 848 F.2d 26 (2d Cir. 1988); United States v. Manning, 448 F.2d 992, 1001 (2d Cir.) (en banc), cert. denied, 404 U.S. 995 (1971).
225. State v. Potter, 148 Vt. 53, 61-62 (1987).
226. Terry v. Ohio, 392 U.S. 1, 19 (1968) (quoting Warden v. Hayden, 387 U.S. 294, 310 (1967)).
227. See § 2.46, infra.
228. See Florida v. Royer, 460 U.S. 491, 501-07 (1983); State v. Gray, 150 Vt. 184, 188-89 (1988) (detention leading to full arrest; "officer had sufficient cause at each step to justify his actions").
229. State v. Hunt, 150 Vt. 483, 496 (1988) (quoting United States v. Mendenhall, 446 U.S. 544, 554 (1980) (footnote omitted)); see also Florida v. Bostick, 111 S. Ct. 2382, 2389 (1991); § 2.33 (defining Terry seizures). This is essentially the same test that is used to judge the voluntariness consent searches. See Schneckloth v. Bustamonte, 412 U.S. 218, 233 (1973); § 2.48, infra.
230. United States v. Mendenhall, 446 U.S. 544, 555 (1980) (citing Schneckloth); State v. Hunt, 150 Vt. 483, 496-97 (1988).
231. Florida v. Royer, 460 U.S. 491, 501-02, 503 (1983); Dunaway v. New York, 442 U.S. 200, 212 (1979); Schneckloth v. Bustamonte, 412 U.S. 218, 227 (1973).
232. State v. Hunt, 150 Vt. 483, 495 (1988) (citing State v. Johnson, 346 A.2d 66, 68 (N.J. 1975)). But see State v. Zaccaro, 154 Vt. 83, 88 (1990) (consent to undercover officer's entry into home need not be "knowing" waiver of right to refuse entry, rejecting an article eleven claim).
233. Florida v. Bostick, 111 S. Ct. 2382, 2386 (1991).
234. United States v. Mendenhall, 446 U.S. 544, 555 (1980); State v. Hunt, 150 Vt. 483, 496 (1988).
235. Florida v. Royer, 460 U.S. 491, 497-98 (1983).
236. State v. Hunt, 150 Vt. 483, 496 (1988) (quoting United States v. Mendenhall, 446 U.S. 544, 554 (1980)).
237. State v. Brunel, 150 Vt. 388, 392 (1988) (officer told defendant he "had to" go with them).
238. State v. Brunel, 150 Vt. 388, 392 (1988).
239. Cf. State v. Willis, 145 Vt. 459, 472 (1985) (unarticulated police intention "has no bearing" on whether defendant was in custody for Miranda purposes). But see Florida v. Royer, 460 U.S. 491, 503 (1983) (noting officers' subjective intentions in support of holding that defendant had been "seized").
240. Schneckloth v. Bustamonte, 412 U.S. 218, 222 (1973).
241. See 1 LaFave and Israel, Criminal Procedure § 3.5 (1984).
242. California v. Hodari D., 111 S. Ct. 1547 (1991). See §2.33, infra.
243. Dunaway v. New York, 442 U.S. 200, 216 (1979).
244. Dunaway v. New York, 442 U.S. 200, 216 (1979). See also Florida v. Royer, 460 U.S. 491, 502-03 (1983) (suspect taken to airport security office).
245. Hayes v. Florida, 470 U.S. 811 (1985). See § 2.38, infra.
246. Terry v. Ohio, 392 U.S. 1 (1968).
247. United States v. Hensley, 469 U.S. 221 (1985); State v. Kettlewell, 149 Vt. 331, 335 (1988).
248. See § 2.14, supra.
249. United States v. Watson, 423 U.S. 411 (1976).
250. State v. Ryea, 153 Vt. 451, 453-54 (1990) (article 11 claim not decided); State v. Byrne, 149 Vt. 224, 227 (1988); State v. Pike, 143 Vt. 283, 287 (1983).
251. 154 Vt. 646 (1990).
252. Payton v. New York 445 U.S. 573 (1980) (home); Minnesota v. Olson, 58 U.S.L.W. 4464 (1990) (arrest of overnight guest).
253. See § 2.48, infra.
254. Welsh v. Wisconsin, 466 U.S. 740 (1984); United States v. Santana, 427 U.S. 38, 42-43 (1976); Warden v. Hayden, 387 U.S. 294 (1967). See § 2.45, infra (exigent circumstances excusing search warrants). Hot pursuit will not be found unless there is an "immediate and continuous pursuit of the suspect from the scene of the crime. . . ." Welsh v. Wisconsin, 466 U.S. at 753.
255. In re Powers, 25 Vt. 261, 266 (1853) (article 11 does not prohibit warrantless arrests "in that class of cases where delay would be perilous. Necessity is the first law of government as well as of nature, and is not to be abrogated by implication.").
256. See § 2.41, infra (searches of dwellings, etc.).
257. United States v. Dunn, 480 U.S. 294 (1987); United States v. Oliver, 466 U.S. 170 (1984).
258. State v. Kirchoff, 156 Vt. 1 (1991). See § 2.42, infra.
259. Steagald v. United States, 451 U.S. 204 (1981).
260. Brown v. Illinois, 422 U.S. 590, 610-11 (1975) (concurring opinion of Powell, J.). See Abel v. United States, 362 U.S. 217, 226 (1960). This is not to say that the officers may not have other interests and motivations in mind than those for which they can assert an objective justification.
261. See § 2.52, infra.
262. No. 89-298, slip op. 25-26 (Vt. May 22, 1992).
263. State v. Towne, No. 89-298, slip op. 25 (Vt. May 22, 1992). The court declined to follow cases holding a fourth amendment intrusion illegal "if a reasonable officer would [not] have made it absent the allegedly improper motive. . . ." Id. at n.3. See also 1 W. LaFave, Search and Seizure 92 (1987) ("the Fourth Amendment activity would not have been undertaken but for the `underlying intent or motivation' which, standing alone, could not supply a lawful basis for the police conduct"). The court did not reach the question whether pretextual conduct violates the state constitution. Id. slip op. 26 n.4.
264. For the meaning of the "in the presence" requirement see 1 LaFave, Search and Seizure 242.
265. V.R.Cr.P. 3(a).
266. V.R.Cr.P. 3(a)(1)-(6).
267. V.R.Cr.P. 3(c)(1),(2)(A)-(F); State v. Greenslit, 151 Vt. 225, 226 n.1 (1989).
268. V.R.Cr.P. 3(c)(3).
269. State v. Laflin, Nos. 92-162 and 92-197, slip op. 4-5 (April 9, 1993) (suppression as remedy for V.R.Cr.P. 3's "in the presence" requirement); United States v. Whitcomb, No. 91-08-01 (D. Vt. 1991); V.R.Cr.P. 3, Reporter's Notes, at 12 (1983) (suppression for violation of citation requirement). See § 2.09, supra.
270. The term is comprehensively defined in Rule 54(c)(6) to include "any state police officer, sheriff, deputy sheriff, municipal police officer, or constable."
271. V.R.Cr.P. 4(f)(2)(A),(B).
272. 20 V.S.A. § 1914.
273. 17 V.S.A. § 2646(7).
274. State v. Hart, 149 Vt. 104 (1987).
275. 24 V.S.A. § 1935; State v. LeBlanc, 149 Vt. 141 (1987).
276. 24 V.S.A. §§ 307(c), 312; State v. Beattie, 157 Vt. 162, 164-66 (1991).
277. State v. Baldwin, 140 Vt. 501 (1981). See 23 V.S.A. § 4(12) (defining fresh pursuit in the context of motor vehicle offenses).
278. State v. LeBlanc, 149 Vt. 141, 141 (1987); State v. Hart, 149 Vt. 104, 106 (1987).
279. State v. Barber, 157 Vt. 228, 231 (1990); State v. Hart, 149 Vt. 104, 108-09 (1987).
280. State v. Barber, 157 Vt. 228, 231-32 (1990); State v. Sanderson, 123 Vt. 214, 216 (1962).
281. State v. Barber, 157 Vt. 228, 230 (1990).
282. State v. LeBlanc, 149 Vt. 141, 145 (1987). But see State v. Hart, 149 Vt. 104, 109 (1987) (suppressing absent any claim that suppression was inappropriate "irrespective of the constable's detention").
283. Chimel v. California, 395 U.S. 752, 763 (1969).
284. See New York v. Belton, 453 U.S. 454 (1981); § 2.60, infra.
285. Arkansas v. Sanders, 442 U.S. 753 (1979); United States v. Chadwick, 433 U.S. 1, 14-15 (1977). See State v. Percy, 149 Vt. 623, 631 n.3 (1988) (not reaching the legality of a search of a wallet under article 11).
286. United States v. Robinson, 414 U.S. 218, 235 (1973) ("It is the fact of the lawful arrest which establishes the authority to search. . . ."). See also Gustafson v. Florida, 414 U.S. 260 (1973).
287. United States v. Robinson, 414 U.S. 218, 248 (1973) (Marshall, J., dissenting). See § 2.29, supra (pretextual arrests). The Rules of Criminal Procedure partly address these concerns by barring full custodial arrests for most minor offenses. V.R.Cr.P. 3(a), 4(c)(1).
288. United States v. Edwards, 415 U.S. 800, 804 (1974).
289. Illinois v. Lafayette, 462 U.S. 640 (1983). See § 2.53, infra.
290. See Illinois v. Lafayette, 462 U.S. 640, 646 n.2 (1983) (not reaching the question when stripsearch of arrestee "may not be appropriate").
291. United States v. Chadwick, 433 U.S. 1, 15 (1977).
292. Illinois v. Lafayette, 462 U.S. 640, 644 (1983). But see United States v. Edwards, 415 U.S. 800, 803 (1974) ("searches and seizures that could be made at the time of arrest may legally be conducted later when the accused arrives at the place of detention").
293. 151 Vt. 225 (1989).
294. State v. Greenslit, 151 Vt. 225, 227-28 (1989).
295. See § 2.26, supra.
296. State v. Kettlewell, 149 Vt. 331, 334 (1988) (citing Dunaway v. New York, 442 U.S. 200, 209-10 (1979), United States v. Cortez, 449 U.S. 411, 417-18 (1981), and State v. Phillips, 140 Vt. 210, 215 (1981)).
297. See § 2.26, supra.
298. INS v. Delgado, 466 U.S. 210, 216 (1984); State v. Kettlewell, 149 Vt. 331, 335 (1988). See also Florida v. Bostick, 111 S. Ct. 2382, 2389 (1991) (seizure when "the police conduct would have communicated to a reasonable person that the person was not free to decline the officers' requests or otherwise terminate the encounter"); United States v. Mendenhall, 407 U.S. 143 (1972) (person is seized "only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed he was not free to leave") (opinion of Stewart, J.).
299. State v. Kettlewell, 149 Vt. 331, 335 (1988).
300. Terry v. Ohio, 392 U.S. 1, 19 n.16 (1968).
301. California v. Hodari D., 111 S. Ct. 1547, 1551 (1991); Michigan v. Chesternut, 486 U.S. 567, 576 (1988). Other shows of police authority, such as activating a cruiser's flashing blue lights, may also not be seizures if the suspect ignores them. See State v. Sutphin, No. 90-258, slip op. 4-5 (Vt. May 22, 1992) (Dooley, J., concurring).
302. California v. Hodari D., 111 S. Ct. 1547, 1550-51 (1991).
303. Florida v. Royer, 460 U.S. 491, 500 (1983); Terry v. Ohio, 392 U.S. 1, 19 (1968).
304. State v. Kettlewell, 149 Vt. 331, 334 (1987); State v. Phillips, 140 Vt. 210, 215 (1981) ("While the police are permitted, on reasonable suspicion, to make an investigatory stop for a few minutes during which they may ask a brief question or two, any further detention must be based on consent or probable cause"). See also United States v. Sharpe, 470 U.S. 675 (1985).
305. United States v. Montoya de Hernandez, 473 U.S. 531, 542-44 (1985).
306. United States v. Sokolow, 490 U.S. 1 (1989); United States v. Montoya de Hernandez, 473 U.S. 531, 542 (1985); United States v. Sharpe, 470 U.S. 675 (1985). But see Florida v. Royer, 460 U.S. 491, 500 (1983) (investigative methods should be "the least intrusive means reasonably available to verify or dispel the officer's suspicion in a short period of time").
307. State v. Savva, No. 90-035, slip op. 15-16 (Oct. 25, 1991); State v. Platt, 154 Vt. 179, 188 (1990). But see State v. Record, 150 Vt. 84, 88-89 (1988) (rejecting the "least intrusive rule" for roadblock cases).
308. Pennsylvania v. Mimms, 434 U.S. 106, 111 n.6 (1977).
309. State v. Jewett, 148 Vt. 324, 330 (1986).
310. State v. Jewett, 148 Vt. 324, 330 (1986).
311. State v. Caron, 155 Vt. 492, 501 (1990).
312. Terry v. Ohio, 392 U.S. 1, 30-31 (1968); State v. Jewett, 148 Vt. 324, 328-29 (1986).
313. Terry v. Ohio, 392 U.S. 1, 30-31 (1968).
314. Sibron v. New York, 392 U.S. 40, 65 (1968). When the suspect is in a car police may "frisk" for weapons in the area within the suspect's immediate control. Michigan v. Long, 463 U.S. 1032, 1049 (1983). See § 2.60, infra.
315. Michigan v. Long, 463 U.S. 1032, 1050 (1983); Texas v. Brown, 460 U.S. 730, 739 (1983) (plurality opinion). But see Amsterdam, Perspectives on the Fourth Amendment, 58 Minn. L. Rev. 349, 437-38 (1974) (arguing for exclusion of incidental evidence uncovered in a protective frisk).
316. Terry v. Ohio, 392 U.S. 1, 21 (1968) (quoting Camara v. Municipal Court, 387 U.S. 523, 534-35 (1967)).
317. See State v. Kettlewell, 149 Vt. 331, 334 (1988) (stop permitted on suspicion that suspect "is or is about to be, engaged in criminal activity").
318. 469 U.S. 221 (1985).
319. United States v. Hensley, 469 U.S. 221, 229 (1985).
320. State v. Paquette, 151 Vt. 631, 636 (1989) (claim argued but not decided).
321. See § 2.55 (stops of motor vehicles for suspected traffic offenses); § 2.60 (vehicle "frisks"); § 2.43 ("stops" of objects); § 2.42 ("frisks" of crime scenes).
322. A person is incapacitated if, because of alcohol use or withdrawal, he or she "appears to need medical care" or "appears to present a direct active or passive threat to the safety of others. . . ." 33 V.S.A. § 702(9).
323. 33 V.S.A. § 708(b).
324. 33 V.S.A. § 702(13).
325. 33 V.S.A. § 708(a)-(d). No person under age 18 may be lodged as an incapacitated person. 33 V.S.A. § 708(g).
326. In State v. Geisler, No. 100-1-88 Rcr (May 23, 1988) (Hudson, J.), a trial judge suppressed evidence seized from an incapacitated person.
327. Winston v. Lee, 470 U.S. 753 (1985); Schmerber v. California, 384 U.S. 757 (1966).
328. Skinner v. Railway Labor Executives Ass'n, 498 U.S. 602, 617 (1989); State v. Towne, No. 89-298, slip op. 14 (Vt. May 22, 1992).
329. State v. Howe, 136 Vt. 53, 61 (1978).
330. Schmerber v. California, 384 U.S. 757, 770 (1966) (emphasis added). The Vermont Supreme Court in State v. Towne, No. 89-298, slip op. 14 (Vt. May 22, 1992), declined as a matter of federal law to apply the "clear indication" standard to an intrusion (pubic hair sampling) that did not go beyond the body's surface.
331. See Winston v. Lee, 470 U.S. 753, 759 (1985). In that case, where the defendant resisted surgical removal of a bullet, the court held that the state had failed to show a "compelling need" for the bullet, given other evidence and doubts about its probable probative value. Id. at 765-66. But see United States v. Montoya de Hernandez, 473 U.S. 531, 540 (1985) (permitting a 16-hour detention on reasonable suspicion of alimentary canal smuggling, and interpreting Schmerber's "clear indication" language as no more than a requirement of particularized suspicion. The Vermont court in State v. Towne, No. 89-298, slip op. 15 (Vt. May 22, 1992), did not decide this question under either article 11 or the fourth amendment.
332. National Treasury Employees Union v. Von Raab, 489 U.S. 656, 665 (1989). Cf. State v. Berard, 154 Vt. 306, 310-11 (1990) (Court will abandon warrant and probable cause requirements "[o]nly in those exceptional circumstances in which special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable . . ."). See § 2.52, infra.
333. But see V.R.Cr.P. 41.1(c)(2) (permitting compulsory testing on "reasonable grounds, that need not amount to probable cause to arrest," to suspect the person of a criminal offense); Hayes v. Florida, 470 U.S. 811, 817 (1985) (suggesting that fingerprinting on the scene or even at a police station, on less than probable cause, might be permissible); Davis v. Mississippi, 394 U.S. 721 (1969).
334. See State v. Curavoo, 156 Vt. 72, 75 n.2 (1991); State v. Gray, 150 Vt. 184, 190-91 (1988).
335. But see Schmerber v. California, 384 U.S. 757, 767 (1966) (noting that the interests in personal dignity and privacy protected by the fourth amendment "substantially overlap those the Fifth Amendment helps to protect").
336. See § 3.01, infra.
337. Schmerber v. California, 384 U.S. 757, 765 n.9 (1966).
338. Rochin v. California, 342 U.S. 165 (1952). See State v. Picknell, 142 Vt. 215, 225 (1982) (suggesting that "violent or brutal conduct" would violate the Vermont Constitution).
339. 394 U.S. 721 (1969).
340. Davis v. Mississippi, 394 U.S. 721, 727-28 (1969).
341. 470 U.S. 811 (1985).
342. Proposed F.R.Cr.P. 41.1 (April 1971), 52 F.R.D. 409, 462.
343. State v. Towne, No. 89-298, slip op. 14 (Vt. May 22, 1992) (nontestimonial identification order "serves the function of a search warrant").
344. V.R.Cr.P. 41.1(c).
345. See Hayes v. Florida, 470 U.S. 811, 817 (1985).
346. See § 2.14, supra.
347. No. 89-298 (Vt. May 22, 1992).
348. State v. Towne, No. 89-298, slip op. 12 (Vt. May 22, 1992).
349. State v. Towne, No. 89-298, slip op. 13 (Vt. May 22, 1992). In Towne the state requested a hair sampling order on a police affidavit which recited only that hairs had been found on the victim's body. The defendant argued unsuccessfully that the affidavit failed to show any reason to believe the procedure would produce relevant evidence, in the absence of any indication that the hairs were not the victim's own.
350. Rule 41.1(h),(i).
351. Rule 41.1(l).
352. By way of analogy, a refusal to submit to a DUI breath or blood test is suppressible if the request is procedurally flawed. See, e.g., State v. Garvey, 157 Vt. 105 (1991); State v. Carmody, 140 Vt. 631, 636 (1982).
353. State v. Percy, No. 88-438, slip op. 7 (Vt. Oct. 5, 1990); State v. Kennison, 149 Vt. 643, 646 (1987), cert. denied, 486 U.S. 1011 (1988); State v. Howe, 136 Vt. 53, 63-64 (1978).
354. V.R.Cr.P. 16.1(a).
355. United States v. Wade, 388 U.S. 218 (1967). See § 4.02, infra.
356. 23 V.S.A. § 1202.
357. National Treasury Employees Union v. Von Raab, 489 U.S. 656, 109 S. Ct. 1384, 1390 (1989). See § 2.52, infra.
358. State v. Reagan & Sargent, Nos. 89-508 and 89-530 (Vt. Nov. 16, 1990). The court found the condition too broad and not supported by sufficiently specific guidelines.
359. Coolidge v. New Hampshire, 403 U.S. 443, 454-55 (1971), quoted in State v. Wood, 148 Vt. 479, 483 (1987).
360. See California v. Acevedo, 111 S. Ct. 1982, 1992-93 (1991) (Scalia, J., concurring).
361. See State v. Savva, No. 90-035, slip op. 11-12 (Vt. Oct. 25, 1991); State v. Berard, 154 Vt. 306, 310 (1990) ("we . . . decline to follow parallel federal law . . . which tends to derogate the central role of the judiciary in Article Eleven jurisprudence"); State v. Wood, 148 Vt. 479, 483, 487-89 (1987) (stressing the role of the judiciary under article eleven).
362. State v. Savva, No. 90-035, slip op. 11-12 (Vt. Oct. 25, 1991) (court's emphasis). See also State v. Record, 150 Vt. 84, 97-98 (1988) (Hill, J., dissenting).
363. State v. Berard, 154 Vt. 306, 310-11 (1990).
364. Payton v. New York, 445 U.S. 573 (1980). See § 2.28.
365. See Stoner v. California, 376 U.S. 483 (1964).
366. Minnesota v. Olson, 495 U.S. 91 (1990). Cf. State v. Wood, 148 Vt. 479 (1987) (guest at summer camp had standing to complain of police entry).
367. See § 2.52, infra.
368. State v. Kirchoff, 156 Vt. 1, 10 (1991).
369. State v. Kirchoff, 156 Vt. 1, 10 (1991).
370. State v. Kirchoff, 156 Vt. 1, 10-11 (1991) (quoting 13 V.S.A. § 3705(a)).
371. Oliver v. United States, 466 U.S. 170, 178-79 (1984). See United States v. Dunn, 480 U.S. 294, 301 (1987) (proposing a four-factor test for determining the extent of the curtilage: (1) the proximity of the area to the home; (2) whether it is enclosed within an enclosure surrounding the home; (3) the uses to which it is put; (4) and the steps taken to protect it from observation).
372. State v. Chester, 156 Vt. 638 (1991); State v. Kirchoff, 156 Vt. 1, 10 (1991).
373. State v. Neale, 145 Vt. 423, 428 (1985).
374. State v. Libbey, 154 Vt. 646 (1990); State v. Ryea, 153 Vt. 451, 453-54 (1990) (not deciding an article 11 claim); State v. Byrne, 149 Vt. 224, 228 (1988); State v. Pike, 143 Vt. 283, 287 (1983).
375. United States v. Dunn 480 U.S. 294, 300 (1987); Oliver v. United States, 466 U.S. 170, 180 (1984).
376. United States v. Place, 462 U.S. 696, 706 (1983) (detention of luggage at airport).
377. United States v. Chadwick, 433 U.S. 1, 7-10 (1977). Containers found within vehicles, by contrast, may be seized without a warrant under the fourth amendment, though not under article 11. California v. Acevedo, 111 S. Ct. 1982, 1991 (1991). See § 2.58, infra.
378. 433 U.S. 1 (1977).
379. See State v. Savva, No. 90-035, slip op. (Vt. Oct. 25, 1991). In United States v. Crochetiere, No. 88-74-01 (D. Vt. March 9, 1989), the United States District Court suppressed evidence seized without a warrant from a mailed parcel. See also State v. Beresford, No. 88-248 (Vt. April 12, 1991) (suppressing contents of shaving kit opened without owner's consent or sufficient proof of abandonment).
380. State v. Savva, No. 90-035, slip op. 17 (Vt. Oct. 25, 1991) (citing Robbins v. California, 453 U.S. 420, 434 n.3 (1981) (Powell, J., concurring), and United States v. Ross, 456 U.S. 798, 822 (1982).
381. See § 2.45, infra.
382. See § 2.48, infra.
383. See § 2.51, infra.
384. State v. Savva, No. 90-035, slip op. 17 (Vt. Oct. 25, 1991) (citing Arkansas v. Sanders, 442 U.S. 753, 764 n.13 (1979)).
385. Illinois v. Andreas, 463 U.S. 765, 771 (1983) ("The simple act of resealing the container to enable the police to make a controlled delivery does not operate to revive or restore the lawfully invaded privacy rights").
386. United States v. Chadwick, 433 U.S. 1, 14-15 (1977). See § 2.31, supra.
387. Illinois v. Lafayette, 462 U.S. 640, 648 (1983). See § 2.53, infra.
388. Compare California v. Acevedo, 111 S. Ct. 1982 (1991) with State v. Savva, No. 90-035 (Vt. Oct. 25, 1991). See § 2.58, infra (vehicle searches).
389. § 2.31, supra.
390. Michigan v. Tyler, 436 U.S. 499, 509 (1978).
391. See § 2.28, supra.
392. Vale v. Louisiana, 399 U.S. 30 (1975). See also Cupp v. Murphy, 412 U.S. 291, 296 (1966) (warrantless seizure of fingernail scrapings); Schmerber v. California, 384 U.S. 757, 770-71 (1966) (warrantless seizure of blood sample for evidence of alcohol content); State v. Badger, 141 Vt. 430, 446-47 (1982) (warrantless seizure of bloodstained shoes justified by exigent circumstances); State v. Girouard, 135 Vt. 123, 130-33 (1977) (exigent circumstances justified warrantless search of car).
393. State v. Rocheleau, 142 Vt. 61, 65-66 (1982) (seizure of plastic bag containing marijuana from suspect who would otherwise have disappeared with it).
394. State v. Platt, 154 Vt. 179, 187-88 (1990) (citing Cardwell v. Lewis, 417 U.S. 583, 595-96 (1974)).
395. See, e.g., United States v. Andersson, 813 F.2d 1450, 1455 (9th Cir. 1987).
396. "[W]here exceptions are made to accommodate the exigencies of particular situations, those exceptions [must] be no broader than necessitated by the circumstances presented." State v. Savva, No. 90-035, slip op. 15 (Vt. Oct. 25, 1991) (quoting Chambers v. Maroney, 399 U.S. 42, 61 (1970) (Harlan, J., dissenting)). See also Arizona v. Hicks, 480 U.S. 321 (1987) (officers entered apartment on report that shots had been fired and then proceeded to inspect stereo equipment).
397. Cupp v. Murphy, 412 U.S. 291, 296 (1973); Schmerber v. California, 384 U.S. 757, 771 (1986).
398. State v. Savva, No. 90-035, slip op. 15-16 (Vt. Oct. 25, 1991); State v. Platt, 154 Vt. 179, 188 (1990) (possibility that defendant might remove car justified its warrantless seizure but not necessarily a warrantless search). Cf. State v. Badger, 141 Vt. 430, 454-55 (1982) (if police had decided to get a warrant, more restrictive procedures would have been necessary to preserve evidence).
399. In re Powers, 25 Vt. 261, 266 (1853).
400. State v. Rocheleau, 142 Vt. 61, 66 (1982).
401. Almeida-Sanchez v. United States, 413 U.S. 266, 269 (1973).
402. Coolidge v. New Hampshire, 403 U.S. 443, 465-66 (1971). It is essential "that the officer did not violate the Fourth Amendment in arriving at the place from which the evidence could be plainly viewed." Horton v. California, 110 S. Ct. 2301, 2308 (1990).
403. Arizona v. Hicks, 480 U.S. 321 (1987). Its incriminating character must be "immediately apparent." Horton v. California, 110 S. Ct. 2301, 2308 (1990).
404. Texas v. Brown, 460 U.S. 730, 741-42 (1983); State v. Driscoll, 137 Vt. 89, 99 (1977). Driscoll so held as a matter of fourth amendment law; the degree of certainty for a plain view seizure under article 11 has not been decided.
405. See Coolidge v. New Hampshire, 403 U.S. 443, 466 (1971).
406. Horton v. California, 110 S. Ct. 2301 (1990).
407. The Vermont Court has asserted the inadvertency requirement but only in a fourth amendment context. See State v. Dorn, 145 Vt. 606 (1985); State v. Driscoll, 137 Vt. 89, 99 (1977).
408. United States v. Dunn, 480 U.S. 294, 305 (1987); Texas v. Brown, 460 U.S. 730, 739-40 (1983). See also State v. Desjardins, 142 Vt. 255, 260 (1982) (not deciding whether flashlight observation of interior of car violated fourth amendment).
409. Florida v. Riley, 488 U.S. 445, 451-52 (1989); California v. Ciraolo, 476 U.S. 207, 215 (1986).
410. United States v. Place, 462 U.S. 696 (1983).
411. Katz v. United States, 389 U.S. 347 (1967).
412. State v. Blow, 157 Vt. 513 (1991).
413. State v. Blow, 157 Vt. 513, 517-18 (1991); State v. Kirchoff, 156 Vt 1, 12 (1991).
414. Florida v. Bostick, 111 S. Ct. 2382 (1991); Schneckloth v. Bustamonte, 412 U.S. 218 (1973); State v. Zaccaro, 154 Vt. 83, 87 (1990); State v. White, 129 Vt. 220, 224 (1971).
415. Florida v. Royer, 460 U.S. 491, 497 (1983); Lo Ji Sales Inc. v. New York, 442 U.S. 319, 329 (1979); Schneckloth v. Bustamonte, 412 U.S. 218, 233 (1973); United States v. Whitaker, No. 90-81-01-02, slip op. 16 (D. Vt. 1991); State v. Zaccaro, 154 Vt. 83, 88 (1990). Consent searches and "consent arrests" (e.g., acquiescence to a police request to come to the police station) are judged by the same criteria. See § 2.26, supra.
416. Schneckloth v. Bustamonte, 412 U.S. 218, 241-42 (1973). Cf. State v. Zaccaro, 154 Vt. 83, 88 (1990) (defendant voluntarily consented to entry of police undercover agent, even though he would not have consented if he had known her true status).
417. United States v. Whitaker, No. 90-81-01-02, slip op. 14-15 (D. Vt. 1991).
418. Schneckloth v. Bustamonte, 412 U.S. 218, 229 (1973).
419. Schneckloth v. Bustamonte, 412 U.S. 218, 233 (1973) (citing Bumper v. North Carolina, 391 U.S. 543 (1968)).
420. Bumper v. North Carolina, 391 U.S. 543, 550 (1968).
421. Florida v. Bostick, 111 S. Ct. 2382, 2386 (1991) (assuming that an illegal seizure would taint subsequent consent); Florida v. Royer, 460 U.S. 491, 507-08 (1983).
422. State v. Chenette, 151 Vt. 237, 249 (1989); State v. Badger, 141 Vt. 420, 444 (1982); United States v. Mendenhall, 446 U.S. 544, 557 (1980).
423. Bumper v. North Carolina, 391 U.S. 543, 548-49 (1968); United States v. Whitaker, No. 90-81-01-02, slip op. 15-16 (D. Vt. 1991).
424. State v. Chenette, 151 Vt. 237, 249 (1989) (medical center where defendant stored records validly consented to police search).
425. State v. Chenette, 151 Vt. 237, 250 (1989). See United States v. Matlock, 415 U.S. 164, 171 (1974); Frazier v. Cupp, 394 U.S. 731, 740 (1969) (joint user of duffel bag); State v. Bruyette, No. 90-098, slip op. 16-17 (Vt. Jan. 10, 1992).
426. State v. Badger, 141 Vt. 430, 444 and n.3 (1982) (father's consent tainted by defendant's prior involuntary confession).
427. Illinois v. Rodriguez, 497 U.S. 177 (1990). See also State v. Roberts, No. 91-472, slip op. 7 (June 18, 1993).
428. Maryland v. Bouie, 494 U.S. 325 (1990). See also United States v. Agapito, 820 F.2d 324, 335 (2d Cir.), cert. denied, 449 U.S. 834 (1986) (limited pass through premises for third persons who may destroy evidence).
429. Thompson v. Louisiana, 469 U.S. 17, 21 (1984); Mincey v. Arizona, 437 U.S. 385, 392 (1978); Michigan v. Tyler, 436 U.S. 499 (1978).
430. Thompson v. Louisiana, 469 U.S. 17, 21 (1984); Mincey v. Arizona, 437 U.S. 385, 392 (1978).
431. Abel v. United States, 362 U.S. 217, 241 (1960); State v. Roberts, No. 91-472, slip op. 7 (June 18, 1993). State v. Kerr, 143 Vt. 597, 608-09 (1983); State v. Barr, 126 Vt. 112, 118 (1966). In Roberts the Vermont court upheld a search on the ground that police reasonably believed an apartment had been abandoned. Id., slip op. 6-10.
432. California v. Greenwood, 486 U.S. 35 (1986).
433. State v. Beresford, 156 Vt. 333, 335-36 (1991) (defendant, who made no attempt to flee, did not abandon shaving kit found near scene of car accident); State v. Kerr, 143 Vt. 597, 608-09 (1983) (abandonment found when defendant dropped bag of drugs in a public place and walked away from it).
434. State v. Beresford, 156 Vt. 333, 335 (1991).
435. State v. Berard, 154 Vt. 306, 311 (1990) (quoting O'Connor v. Ortega, 480 U.S. 709, 741 (1987) (Blackmun, J., dissenting and quoting New Jersey v. T.L.O., 469 U.S. 325, 351 (1985) (opinion concurring in judgment))).
436. See State v. Record, 150 Vt. 84, 97 (Hill, J., dissenting). It is not clear whether the term also covers the more traditional exceptions to the warrant and probable cause requirements, such as stop-and-frisk and inventories, which also find their justification in special considerations beyond the normal need for law enforcement.
437. New Jersey v. T.L.O., 469 U.S. 325 (1985).
438. New York v. Burger, 482 U.S. 691 (1987) (junkyards); United States v. Biswell, 406 U.S. 311, 317 (1972); Colonnade Catering Corp. v. United States, 397 U.S. 72, 77 (1970); State v. Welch, No. 90-392 (Vt. Oct. 30, 1992) (pharmacy records).
439. Griffin v. Wisconsin, 483 U.S. 868 (1987); State v. Moses, No. 91-117, slip op. 11-12 (Oct. 23, 1992).
440. Michigan Department of State Police v. Sitz, 58 U.S.L.W. 4781 (1991).
441. State v. Record, 150 Vt. 84 (1988). See § 2.56, infra.
442. State v. Berard, 154 Vt. 306 (1990).
443. State v. Welch, No. 90-392, slip op. 8-15 (Vt. Oct. 30, 1992).
444. State v. Welch, No. 90-392, slip op. 15 (Vt. Oct. 30, 1992) (quoting New York v. Burger, 482 U.S. 691, 713 (1987)).
445. State v. Berard, 154 Vt. 306, 311 (1990) (quoting O'Connor v. Ortega, 480 U.S. 709, 744 n.8 (1987) (Blackmun, J., dissenting)).
446. This was the article 11 balance struck for roadblocks, see § 2.56, infra, and cell searches, State v. Berard, 154 Vt. 306 (1990). It is also the standard adopted in the urine-testing cases, see § 2.39, supra, and for the "inventory" and "public safety" searches discussed in § 2.53, infra.
447. See, e.g., Griffin v. Wisconsin, 483 U.S. 868 (1987) (allowing search of a probationer's apartment on Terry suspicion and guidelines); New Jersey v. T.L.O., 469 U.S. 325 (1985) (requiring Terry-style reasonable suspicion for school searches).
448. Marshall v. Barlow's, Inc., 436 U.S. 307 (1978); Camara v. Municipal Court, 387 U.S. 541 (1967); See v. Seattle, 387 U.S. 541 (1967).
449. The Vermont court rejected that approach in the context of prison cell searches in State v. Berard, 154 Vt. 306, 317-17 (1990). But see State v. Savva, No. 90-035, slip op. 12-13 (Vt. Oct. 25, 1991) (article 11's warrant clause "favors decisionmaking by the judicial branch, . . . rather than by the executive branch. . . .")
450. See Colorado v. Bertine, 479 U.S. 367, 372 (1987); Illinois v. Lafayette, 462 U.S. 640, 646 (1983); South Dakota v. Opperman, 428 U.S. 364, 369 (1976).
451. Cady v. Dombrowski, 413 U.S. 433 (1973); State v. Richardson, No. 90-240, slip op. 1-2 (Vt. Jan. 3, 1992) (mem.).
452. Florida v. Wells, 110 S. Ct. 1632, 1635 (1990); Colorado v. Bertine, 479 U.S. 367, 372 (1987).
453. Colorado v. Bertine, 479 U.S. 367, 374 and n.6 (1987); South Dakota v. Opperman, 428 U.S. 364, 375-76 (1976); Cady v. Dombrowski, 413 U.S. 433, 443 (1973).
454. Cf. State v. Berard, 154 Vt. 306 (1990) (warrantless prison cell searches pursuant to administrative guidelines); State v. Martin, 145 Vt. 562 (1985) (DUI roadblocks).
455. See Colorado v. Bertine, 479 U.S. 367, 375 (1987); Illinois v. Lafayette, 462 U.S. 640, 647 (1983).
456. State v. Savva, No. 90-035, slip op. 15-16 (Vt. Oct. 25, 1991); State v. Platt, 154 Vt. 179, 188 (1990) (possibility that defendant might remove car justified warrantless seizure but not necessarily a warrantless search). Cf. State v. Badger, 141 Vt. 430, 454-55 (1982) (if police had decided to get a warrant, more restrictive procedures would have been necessary to preserve evidence).
457. Carroll v. United States, 267 U.S. 132, 153 (1925).
458. Coolidge v. New Hampshire, 403 U.S. 443, 460 (1971).
459. See State v. Savva, No. 90-035, slip op. 5-7 (Vt. Oct. 25, 1991) (reviewing the federal decisions and characterizing the diminished expectation of privacy rationale as a "makeweight").
460. See, e.g., California v. Acevedo, 111 S. Ct. 1982, 1990 (1991).
461. State v. Girouard, 135 Vt. 123, 128-29 (1977).
462. See State v. Savva, No. 90-035, slip op. 10-14 (Vt. Oct. 25, 1991); State v. Platt, 154 Vt. 179, 183-84 (1990).
463. Berkemer v. McCarty, 468 U.S. 420, 439 (1984); United States v. Cortez, 449 U.S. 411, 417 (1981); Delaware v. Prouse, 440 U.S. 648 (1979); State v. Caron, 155 Vt. 492, 499-500 (1990); State v. Emilo, 144 Vt. 477, 481 (1984); State v. Phillips, 140 Vt. 210, 215-16 (1981).
464. 392 U.S. 1, 21 (1968). See § 2.17, supra.
465. State v. Emilo, 144 Vt. 477, 481 (1984).
466. State v. Bruno, 157 Vt. 6, 11 (1991); State v. Paquette, 151 Vt. 631, 635 (1989); State v. Jewett, 148 Vt. 324, 330 (1987); State v. Boardman, 148 Vt. 229, 231 (1987).
467. State v. Lanoue, 156 Vt. 35 (1991) (incorrect DMV listing); State v. Caron, 155 Vt. 492, 499-500 (1990); State v. Ryea, 153 Vt. 451, 454-55 (1990) (trooper mistakenly thought he saw defendant's name on DLS list); State v. Lambert, 146 Vt. 142, 143-44 (1985).
468. Alabama v. White, 110 S. Ct. 2412 (1990); State v. Siergey, 155 Vt. 78, 80-81 (1990); State v. Schmitt, 150 Vt. 503, 507 (1988).
469. State v. Ryea, 153 Vt. 451, 455 (1990); State v. Lambert, 146 Vt. 142, 144 (1985) ("brief detention, its scope reasonably related to the justification for the stop. . . ."); State v. Hewey, 144 Vt. 10, 14-15 (1983); State v. Phillips, 140 Vt. 210, 215 (1981) ("any further detention must be based on consent or probable cause"). The Vermont Supreme Court has, however, upheld as reasonable very brief intrusions after reasonable suspicion has evaporated. See State v. Ryea, 153 Vt. 451, 455 (1990); State v. Hewey, 144 Vt. 10, 14-15 (1983).
470. See United States v. Sharpe, 470 U.S. 675, 683-84 (1985) (approving 20-minute detention). Cf. United States v. Place, 462 U.S. 696 (1983) (disapproving 90-minute detention of luggage).
471. 145 Vt. 562 (1985).
472. Michigan Department of State Police v. Sitz, 496 U.S. 444 (1991).
473. 150 Vt. 84 (1988).
474. State v. Record, 150 Vt. 84, 88 (1988) (quoting State v. Martin, 145 Vt. 562, 571 (1985)).
475. 157 Vt. 60 (1991).
476. See § 2.05, supra.
477. State v. Platt, 154 Vt. 179, 187-88 (1990). Cf. State v. Savva, No. 90-035, slip op. 17-19 (Vt. Oct. 25, 1991) (warrant required for nonexigent search of container found inside vehicle).
478. See § 2.53, supra.
479. United States v. Ross, 456 U.S. 798, 825 (1982).
480. California v. Acevedo, 111 S. Ct. 1982 (1991) (overruling Arkansas v. Sanders, 442 U.S. 753 (1979)).
481. State v. Savva, No. 87-133, slip op. 17-19 (Vt. July 12, 1991).
482. State v. Savva, No. 87-133, slip op. 19 (Vt. July 12, 1991).
483. See State v. Savva, No. 87-133, slip op 10 (Vt. July 12, 1991) (citing California v. Acevedo, 111 S. Ct. 1982, 1993 (1991)) (Scalia, J., concurring).
484. Florida v. Jimeno, 111 S. Ct. 1801 (1991) (consented search of a car for narcotics; police could open paper bag found on floor).
485. See § 2.31, supra (searches incident to arrest generally).
486. 453 U.S. 454 (1981).
487. New York v. Belton, 453 U.S. 454, 460 (1981) (footnotes omitted).
488. New York v. Belton, 453 U.S. 454, 460-61 (1981).
489. See Robbins v. California, 453 U.S. 420 (1981).
490. A number of Vermont trial judges have rejected Belton under the state constitution. See State v. Bollman, No. 540-8-86 Cacr (Dec. 8, 1986) (Fisher, J.); State v. Ruggles, No. 1164-12-90 CaCr (May 8, 1991) (Pineles, J.); State v. McDonough, No. 113-1-87 WrCr (July 28, 1987) (Hudson, J.).
491. Michigan v. Long, 463 U.S. 1032, 1049 (1983).
492. Michigan v. Long, 463 U.S. 1032, 1049 n.14 (1983).
493. Maryland v. Macon, 472 U.S. 463 (1966); Lewis v. United States, 385 U.S. 206 (1966); State v. White, 129 Vt. 220, 223-24 (1971).
494. 154 Vt. 83 (1990).
495. State v. Zaccaro, 154 Vt. 83, 89 (1990).
496. State v. Zaccaro, 154 Vt. 83, 90 (1990).
497. United States v. Caceres, 440 U.S. 741, 750-51 (1979); United States v. White, 401 U.S. 745, 751-53 (1971).
498. 157 Vt. 513 (1991).
499. State v. Blow, 157 Vt. 513, 517-19 (1991).
500. State v. Blow, 157 Vt. 513, 517 (1991) (citing State v. Kirchoff, 156 Vt. 1, 12-13 (1991).
501. State v. Blow, 157 Vt. 513, 520 (1991).
502. United States v. White, 401 U.S. 745, 751 (1971).
503. See State v. Blow, 157 Vt. 513, 518-19 (1991).
504. State v. Brooks, 157 Vt. 490 (1991).
505. State v. Brooks, 157 Vt. 490, 493 (1991).
506. Compare State v. Bruyette, No. 90-098, slip op. 11 and n.5 (Vt. Jan. 10, 1992), with State v. Brooks, 157 Vt. 490, 494 (1991) (concurring opinion), disagreeing on the applicability of Blow in an unspecified nonhome setting.
507. Interception of phone or other electronic communications is not unlawful under federal law when the monitor "is a party to the communication or one of the parties to the communication has given prior consent to such interception. 1118 U.S.C. § 2511(2)(c).
508. See 18 U.S.C. § 2510, et seq.
509. 18 U.S.C. § 2515.
510. 18 U.S.C. § 2516(2).