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Vermont Supreme Court Announces Proper Legal Standard for Warrantless Search of Home’s Curtilage

by Anthony W. Accurso 

The Vermont Supreme Court held that it is an unconstitutional search where an officer actively searches for evidence of a crime on a home’s curtilage while present for purpose unrelated to that search.

On August 29, 2019, Devan Calabrese was alleged to have threatened three persons while at his girlfriend’s home, with one complainant saying the three “were basically ordered off the property at gunpoint.” One witness stated that, during the altercation, Calabrese ejected an unspent cartridge when he cocked the gun.

State Trooper Waitekus and other officers visited the girlfriend’s home, and she allowed them to look around the property. The trooper testified that he “d[id] not remember how thoroughly [the officers] checked the lawn for [the bullet],” because his focus was on looking for the defendant. The officers failed to locate Calabrese—or any other relevant evidence—and left the property.

On August 31, Trooper Waitekus was dispatched to the girlfriend’s home for a welfare check. He walked to the house and, after failing to contact any resident of the home and “s[eeing] nothing ... out of the ordinary,” turned to leave the premises.

Waitekus later testified that, while walking down the driveway “halfway between the house and the road,” he “stopped” at the place where “this other incident took place at a specific location in the driveway and as [he] walked down the driveway, [he] looked down where it should have been and observed something... [O]ne bullet.” He also testified that “it was in my head to keep my eyes open [for the bullet]” and said that it would “be highly possible, yes,” that he was shining his flashlight on the side of the lawn next to the driveway to look for the bullet.

The bullet, or rather cartridge (a bullet that hasn’t been fired yet), was used as evidence in the criminal indictment against Calabrese for aggravated assault with a deadly weapon, unlawful possession of a firearm, and violations of conditions of release.

Calabrese moved to suppress the cartridge, but the trial court denied the motion, relying on State v. Bovat, 224 A.3d 103 (Vt. 2019), the court ruled that the trooper didn’t conduct a search for Fourth Amendment purposes because the driveway was, at most, a “semiprivate location.” In Bovat, two game wardens were investigating a deer jacking and, upon walking up the defendant’s driveway, could see what they believed to be deer hair and blood on the tailgate of the defendant’s truck, though this observation occurred through a window of the garage where the truck was parked.

The Vermont Supreme Court allowed the evidence on the grounds that the wardens’ legal access to the area, combined with the plain-view doctrine, created a “semiprivate area” in the curtilage of a home. “When state officials restrict their movement to semiprivate areas to conduct an investigation, ‘observations made from such vantage points are not covered by the Fourth Amendment.’” Quoting State v. Pike, 465 A.2d 1348 (Vt. 1983).

Calabrese was then convicted in a jury trial and appealed, claiming that Bovat was contradicted by the U.S. Supreme Court’s ruling in Florida v. Jardines, 569 U.S. 1 (2013), and that the evidence located by Waitekus during his warrantless search should have been suppressed.

The Court began it analysis by addressing the State’s argument that Calabrese lacks standing to challenge the recovery of the bullet from his girlfriend’s property. The Court noted that “Vermont parts ways from the federal test for standing to challenge a government search.” The federal test focuses on a person’s “legitimate expectation of privacy in the invaded place,” the Court stated, quoting Rakas v. Illinois, 439 U.S. 128 (1978). However, that test hasn’t been adopted in Vermont because it’s incompatible with Article 11 of the state Constitution. State v. Wood, 536 A.2d 902 (Vt. 1987). Instead, the test in Vermont focuses on the relationship between the person and the place to be searched or item to be seized. Id. To establish standing under Article 11, the Wood Court instructed “a defendant need only assert a possessory, proprietary or participatory interest in the item seized or the area searched.”

Participatory interest refers to the “relationship of the evidence to the underlying criminal activity and defendant’s own criminal role in the generation and use of such evidence.” State v. Mollica, 554 A.2d 1315 (N.J. 1989). The Court determined that Calabrese had a participatory interest in the seized bullet and thus had standing to challenge the constitutionality of the search under Article 11.

The Court then turned to the merits of the case. Under Article 11 of the Vermont Constitution and the Fourth Amendment to the U.S. Constitution, warrantless searches of private property are “presumptively unconstitutional, and permissible only to a few narrowly drawn and well-delineated exceptions.” State v. Bauder, 924 A.2d 38 (Vt. 2007). Private property includes a home’s curtilage, the area immediately surrounding the home. State v. Koenig, 148 A.3d 977 (Vt. 2016).

One recognized exception to the warrant requirement under both the Vermont and U.S. Constitutions is the plain-view doctrine, which can be summarized as follows: “if police are lawfully in a position from which they view an object, if its incriminating character is immediately apparent, and if the officers have a lawful right of access to the object, they may seize it without a warrant.” In re Search Warrant, 71 A.3d 1158 (Vt. 2012) (quoting Minnesota v. Dickerson, 508 U.S. 366 (1993)).

Another exception exists based on the common-law right to ingress upon a home’s curtilage by “solicitors, hawkers and peddlers of all kinds” Jardines. That is, a person may enter private property under an implicit license for a limited purpose. “Thus, a police officer not armed with a warrant may approach a home and knock, because that is no more than any private citizen might do.” Id.

However, Jardines was not merely about police access to a home’s curtilage; it also addressed the purpose of police access to this constitutionally privileged zone, the Court stated. In that case, officers used their common law access to a home’s curtilage to justify bringing a drug-sniffing dog onto the curtilage. The U.S. Supreme Court determined that to be a violation because, though police had “license” to enter the curtilage of the home, “[t]he scope of a license—express or implied—is limited not only to a particular area but also to a specific purpose.” Jardines. Though “peddlers of all kinds” may enter the curtilage to summon a resident, this does not give them license to conduct a search.

The Court summed up Jardines as follows: “the applicability of the plain-view doctrine in the context of a warrantless but licensed police entry into the constitutionally protected curtilage of the home is limited by the scope of that license.”

It was this implicit license to be present in a home’s curtilage, combined with the plain-view doctrine, that the Vermont Supreme Court used to justify its ruling in Bovat. However, the Court announced: “We take this opportunity to clarify the law and overrule Bovat to the extent it misstated the law under the Fourth Amendment, or, by extension, Article 11…. An officer may only intrude into a constitutionally protected area subject to an express or implied license, and the officer’s observational activities within that protected area are limited by the scope of that license.”

Turning to the facts of the present case, the Court stated that Waitekus had an implicit license “to approach the home by the front path, knock promptly, wait briefly to be received, and then ... leave.” But the Court explained that he exceeded his authority by conducting an “[a]ctive visual search for the bullet in the grass by the scene of the alleged crime,” an activity not “intrinsic to the welfare check that gave him limited constitutional authority to be present in the curtilage of the home in the first place.”

However, the Court refused to order suppression of the cartridge outright, because the trial court applied the wrong constitutional standard and, as a result, failed to make the necessary factual findings to conduct the proper legal analysis.

Accordingly, the Court reversed the denial of Calabrese’s motion to suppress and remanded to the trial court for factfinding and analysis under the proper legal standard announced in this opinion. See: State v. Calabrese, 2021 Vt. LEXIS 107 (2021). 

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State v. Calabrese



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