{"id":12475,"date":"2020-10-30T10:42:09","date_gmt":"2020-10-30T14:42:09","guid":{"rendered":"https:\/\/journals.law.harvard.edu\/crcl\/?p=12475"},"modified":"2020-10-30T17:31:58","modified_gmt":"2020-10-30T21:31:58","slug":"oh-deer-vermont-supreme-courts-fourth-amendment-decision-generates-criticism-from-supreme-court-justices","status":"publish","type":"post","link":"https:\/\/journals.law.harvard.edu\/crcl\/oh-deer-vermont-supreme-courts-fourth-amendment-decision-generates-criticism-from-supreme-court-justices\/","title":{"rendered":"Oh Deer!: Vermont Supreme Court\u2019s Fourth Amendment Decision Generates Criticism from Supreme Court Justices"},"content":{"rendered":"

Last week, the Supreme Court denied certiorari in Bovat v. Vermont<\/a><\/em>. The petition stemmed from the Vermont Supreme Court\u2019s 3-2 opinion applying Fourth Amendment search jurisprudence. In denying certiorari, Justice Gorsuch, joined by Justices Sotomayor and Kagan, wrote a strongly-worded statement<\/a> chastising the Vermont Supreme Court\u2019s decision and suggesting he would have granted certiorari. Both the case and Justice Gorsuch\u2019s statement should catch the attention of criminal justice advocates.<\/p>\n

Bovat<\/a><\/em> involved a Vermont man charged with violating Vermont hunting laws by shooting a deer at night (spotlights or car headlights cause a deer to stop moving, making it an easier target). This is known as \u201cdeer-jacking.\u201d A resident heard the gun shot, saw a truck pull away, and reported the crime to the game warden. Eventually the investigation led law enforcement to believe that Clyde Bovat was responsible. Game wardens drove to Mr. Bovat\u2019s house, proceeded up his driveway, and walked directly to his garage \u2014 without attempting to first knock on the front door or make contact with anyone inside. They peered through narrow slat windows and saw Mr. Bovat\u2019s truck inside with what appeared to be deer hair and blood on the top of the truck\u2019s tailgate. Using this evidence, the wardens obtained a search warrant. Mr. Bovat moved to suppress the evidence.<\/p>\n

The Vermont Supreme Court affirmed the trial court\u2019s denial of Mr. Bovat\u2019s motion to suppress, finding the evidence fell within the \u201cplain view\u201d doctrine \u2014 an established exception to the general requirement that officers obtain a search warrant first. The court found that the game wardens were lawfully in Mr. Bovat\u2019s driveway when they saw the evidence in plain view. Oddly, the Vermont Supreme Court also expressly found Mr. Bovat\u2019s garage inside the home\u2019s curtilage. Because curtilage receives the same Fourth Amendment protection as the home itself, officers are only allowed to be there without a search warrant under extremely limited circumstances. One of those limited circumstances is under an implied license \u2014 think of a neighbor entering property, possibly even a front porch, in order to knock on the door. Police officers, for example, can follow a path or sidewalk to someone\u2019s front door, as any other person would, knock, and speak briefly with a person without a warrant. In rural Vermont, however, it\u2019s not always so clear where an implied license begins and ends \u2014 front doors are not always used, houses have multiple doors, and driveways are often long.<\/p>\n

To resolve this problem, the Vermont Supreme Court differentiated between \u201csemiprivate areas\u201d and \u201cprivate areas\u201d of curtilage, stating that \u201ca private area may still be open to visual inspection from a semiprivate area.\u201d (State v. Bovat<\/a><\/em>). This solution, however, should raise serious alarm bells. As Justice Gorsuch noted<\/a>: \u201cUnder the court\u2019s logic, it seems, an officer who keeps ten toes in a home\u2019s driveway may stay and search just as he pleases.\u201d Quite clearly, when courts permit law enforcement to make incremental intrusions into Fourth Amendment privacy protections, the slippery slope is not just theoretical. This is precisely the concern that animated Justice Scalia to remark that the Fourth Amendment \u201cwould be of little practical value if the State’s agents could stand in a home’s porch or side garden and trawl for evidence with impunity.\u201d (Florida v. Jardines<\/a><\/em>). Indeed, under Vermont\u2019s reasoning it would be perfectly okay if an officer \u201cstands on the [driveway] and uses. . . binoculars to peer through your windows, into your home’s furthest corners.\u201d (Jardines, <\/a><\/em>Kagan, J., concurring<\/a>). The Vermont Supreme Court\u2019s decision imperils Fourth Amendment protections and may portend further incursions into Fourth Amendment curtilage jurisprudence.<\/p>\n

Interestingly, Justice Gorsuch implied that he wanted to grant certiorari. Towards the end of his statement he wrote<\/a>: \u201cDespite the Vermont Supreme Court\u2019s error, I acknowledge that understandable reasons exist for<\/em> my colleagues\u2019 decision<\/em> to let this case go.<\/em>\u201d (Emphasis added). \u00a0He noted his hope that the case was only a \u201cstray mistake.\u201d The fact that Justices Sotomayor and Kagan signed on, combined with Justice Ginsburg\u2019s absence, however, suggests that the court might have had the requisite four votes needed to grant certiorari. Moreover, based on Justice Gorsuch\u2019s statement, the court viewed the case as a clear mistake of law, seemingly deserving of summary reversal.<\/p>\n

That Justice Gorsuch took particular interest in the case and wrote a statement emphasizing that elements of property law compelled the opposite outcome suggests the Supreme Court is interested in continuing its trend towards a property-based understanding of the Fourth Amendment. Justice Gorsuch wrote a notable dissent in Carpenter v. United States<\/a><\/em> stating that he favored a property-based, positive law understanding of the Fourth Amendment as opposed to the Katz<\/a><\/em> analysis. Justices Alito and Thomas explicitly stated their desire to overturn Katz<\/a><\/em>. (Carpenter<\/a><\/em>).<\/p>\n

Whatever else Justice Gorsuch\u2019s statement<\/a> in Bovat v. Vermont<\/em> signals, it certainly indicates that he is receptive to property-based arguments in Fourth Amendment cases and is looking to affirm that understanding. With Justice Barrett now on the bench, it seems the Supreme Court may soon have the votes to return to a property-based Fourth Amendment analysis \u2014 this could also mean that a majority of the court is ready to take aim at Katz<\/a><\/em>.<\/p>\n","protected":false},"excerpt":{"rendered":"

A recent Vermont Supreme Court decision imperils Fourth Amendment protections by further limiting the extent of curtilage. The decision drew criticism from Justices Gorsuch, Kagan, and Sotomayor in an interesting statement regarding the Supreme Court\u2019s denial of certiorari. 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