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State v. Schofner5/2/2002
ENTRY ORDER
In the above-entitled cause, the Clerk will enter:
The State appeals, pursuant to 13 V.S.A. § 7403, from an order of the Caledonia District Court suppressing evidence of marijuana cultivation and possession seized with a warrant. The court concluded that the information supporting the warrant, discovered by town listers during a site visit, was obtained in violation of the Fourth Amendment to the United States Constitution. We do not decide whether the listers were lawfully on defendants' land. We conclude that whether or not the listers were on defendants' property lawfully, the evidence of defendants' possession of marijuana plants and drug paraphernalia is admissible in this criminal proceeding. Accordingly, we reverse and remand.
In May 1999, two tax listers for the town of Walden were examining property for appraisal purposes. While conducting this appraisal, they noticed a new addition on the neighboring house, which belonged to defendant. The addition had not been part of defendants' property appraisal in the past. To determine the value of the addition, the listers entered defendants' property and proceeded to the house. They knocked on the front door, but found that no one was home. They then walked around the perimeter of the house and measured the size of the addition. During her observation of the external dimensions of the house, one of the listers saw eighteen potted marijuana plants on a short, stone walkway about fifteen feet from a basement door. She reported her findings to the state police, who obtained a warrant to search defendants' house based on her observation of the marijuana plants. The search revealed twenty-three marijuana plants and other drug paraphernalia.
Defendants were charged by information with felony marijuana cultivation in violation of 18 V.S.A. § 4230(a)(3), and misdemeanor possession of marijuana in violation of 18 V.S.A. § 4230(a)(1). Pursuant to V.R.Cr.P 41(f), defendants moved that the court suppress all evidence obtained pursuant to the search warrant. They argued that the warrantless entry onto their property by the listers was an unreasonable search by a government official and violated the Fourth Amendment to the United States Constitution and Chapter I, Article 11 of the Vermont Constitution. The court granted the motion, and the State appeals. On appeal, the State argues that: (1) the actions of the town lister do not trigger the protections of the Fourth Amendment; and (2) even if the Fourth Amendment is triggered, the lister's actions were reasonable. We consider the first issue raised by the State. Because of our resolution of the first issue, we do not reach the second issue.
The Fourth Amendment to United States Constitution states that " he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated." U.S. Const. amend. IV. The Fourth Amendment is, of course, applicable to the states through the Fourteenth Amendment. The basic purpose of the Fourth Amendment is "to safeguard the privacy and security of individuals against arbitrary invasions by government officials." Camara v. Municipal Court, 387 U.S. 523, 528 (1967). It is undisputed that we are dealing here with the actions of a governmental official. Listers are town officers elected at town meeting for a term of three years. 17 V.S.A. §§ 2646(5), 2649. They are required annually to appraise all real property in the town and to "make such personal examination of the property which they are required to appraise as will enable them to appraise it at its fair market value." 32 V.S.A. § 4041. The lister acted pursuant to this responsibility in this ca
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