State v. Geraw3/15/2002
Supreme Court On Appeal from District Court of Vermont, Unit No. 2, Chittenden Circuit October Term, 2001
Linda Levitt (motion to suppress) and Michael S. Kupersmith (motion for permission to appeal), JJ.
The question presented is whether Vermont citizens must accept the risk that police interviews in the privacy of their home are being secretly recorded without the protection of a judicially authorized warrant. We conclude that Chapter I, Article 11 of the Vermont Constitution prohibits such secret recording. Accordingly, we affirm the order of the Chittenden District Court granting defendant's motion to suppress.
The material facts are few and undisputed. On April 17, 2000, two police detectives interviewed defendant at his residence in Essex Junction. The detectives were investigating an allegation that defendant had engaged in sexual acts with a foster child. The officers identified themselves, and defendant invited them into his residence. They sat down at defendant's kitchen table, where the officers interviewed defendant about his relationship with the minor. Unbeknownst to defendant, the officers secretly tape recorded the conversation.
Defendant was later charged with one count of sexual assault of a minor, in violation of 13 V.S.A. § 3252(b)(1). He moved to suppress the audio recording of the interview, alleging that it was unlawfully obtained without a warrant, in violation of Chapter I, Article 11 of the Vermont Constitution. Following a hearing, the trial court issued a written decision and order, granting the motion. The court concluded that defendant enjoyed a reasonable expectation that a conversation in the privacy of his home would not be secretly recorded, and therefore that the recording violated his fundamental right to privacy under Article 11 and must be suppressed. The trial court subsequently granted, and this Court accepted, the State's request for an interlocutory appeal.
In reviewing the trial court's ruling, we benefit from a series of decisions over the last two decades dealing with the requisite standards and permissible scope of searches and seizures under Article 11. We begin with the fundamental proposition that, as stated in State v. Jewett, 148 Vt. 324, 328, 532 A.2d 958, 960 (1986), " he circumstances under which warrantless searches or seizures are permitted . . . must be jealously and carefully drawn." (Internal quotation marks omitted). The warrant requirement in our Constitution reflects a deeply-rooted historical judgment that the decision to invade the privacy of an individual's home or possessions should normally be made by a neutral magistrate, not by the agent of the search itself. See State v. Savva, 159 Vt. 75, 86, 616 A.2d 774, 780-81 (1992). Judicial review operates as a potent and immutable check on the power of the executive branch, immune from the shifting political pressures or perceived exigencies of the time. Id. at 87, 616 A.2d at 780-81.
That said, we have also consistently held that Article 11 protects only those areas or activities that a reasonable person would conclude are intended to be private. See State v. Costin, 168 Vt. 175, 177, 720 A.2d 866, 868 (1998); State v. Kirchoff, 156 Vt. 1, 10, 587 A.2d 988, 994 (1991); State v. Blow, 157 Vt. 513, 517, 602 A.2d 552, 555 (1991). " person cannot rely on Article 11 to protect areas or activities that have been willingly exposed to the public." Kirchoff, 156 Vt. at 7, 587 A.2d at 994. Thus, we have held that the State must have a warrant to enter open fields where indicia, such as fences and signs, would lead a reasonable person to conclude that the area is private, see id., but that Article 11 does not protect such areas when the
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