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State v. Schofner5/2/2002
as acting as a government official, and not as a private citizen, and that it was not essential that he have law enforcement authority. Id. at 1224.
The court concluded, however, that there was no unconstitutional search because a statute expressly authorized the tax appraiser to examine property "at any reasonable time," and, under the factors enumerated in a prior decision, the search was not unreasonable. Id. at 1224-25. Thus, Vonhof provides no support for the majority's view that the Fourth Amendment does not apply to listers inspecting private property.
II. Reasonableness
I would hold that property tax inspections performed without advance notice or consent, and without being circumscribed in any manner by statutory law, are unreasonable. The Supreme Court has recognized that in determining the validity of a search, reasonableness is the "ultimate standard." Camara, 387 U.S. at 539. The reasonableness of a search is determined by "balancing the need to search against the invasion which the search entails." Id. at 536-37. The greater the need for the search, the more willing we are to tolerate intrusiveness; when there is virtually no need for the search, then no intrusion is warranted. This is the appropriate standard for administrative searches, including inspections by tax appraisers, which are not aimed at investigating suspicion of criminal activity. Cf. State v. Martin, 145 Vt. 562, 568, 496 A.2d 442, 446 (1985) (constitutionality of DUI roadblock depends upon reasonableness of seizure, as determined by weighing public interest in seizure against degree of intrusion into personal privacy).
In this case, then, we should balance the listers' need to conduct their inspections without advance notice, consent, or statutory constraints against the invasion of individual privacy resulting from such inspections. The right of Vermonters to be secure from governmental invasions of their homes is of vital interest, of course. As was the case here, listers often examine private areas within the curtilage of the home that are entitled to the same constitutional protections as the home itself. On the other hand, there is no evidence in the record suggesting that towns have a vital interest in being able to inspect real property on an emergency basis without obtaining consent, providing advance notice, or abiding by a statute that circumscribes the manner and timing of the inspections.
There is no question that town listers need to be able to inspect private property to fulfill the government's duty to assure that property is assessed fairly. Rather, the probative question is whether listers need to have, or should have, unfettered discretion to inspect private property at any time without advance notice, without the consent of the homeowner or occupant, and without being subject to any statutory or constitutional constraints. I say no. As was the case in Camara, the homeowner or occupant has "no way of knowing the lawful limits of the inspector's power to search, and no way of knowing whether the inspector . . . is acting under proper authorization." 387 U.S. at 532. The homeowner or occupant "may never learn any more about the reason for the inspection than that the law generally allows . . . inspectors to gain entry." Id. "The practical effect of this system is to leave the occupant subject to the discretion of the official in the field." Id.
III. Solution
We do not have to strip Vermonters of their constitutional rights to have a workable, convenient real property assessment system. It is possible in the realm of administrative inspections to develop procedures for safeguarding individual rights without impeding important g
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