State v. Geraw , 173 Vt. 350 ( 2002 )

Johnson, J.

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.¹ 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), “[t]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 (1991). 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). “[A] 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 owner or occupant has not taken sufficient steps to exclude the public. See State v. Chester, 156 Vt. 638, 638, 587 A.2d 1008, 1009 (1991) (mem.). This distinction was reaffirmed in Costin, where a majority of the Court held that Article 11 does not prohibit the use of a warrantless video surveillance camera located in a field where an in-person police stake-out would not otherwise be excluded. 168 Vt. at 180-82, 720 A.2d at 868-71.

Two additional decisions — Blow, 157 Vt. 513, 602 A.2d 552, and State v. Brooks, 157 Vt. 490, 601 A.2d 963 (1991) — are especially significant for our purposes here, as both underscore the significance of the home as a repository of heightened privacy expectations. In Blow, we held'that Article 11 prohibited the police from monitoring and recording a conversation with a confidential informant in the defendant’s home without a warrant, noting that such activity “conducted in a home offends the core values of Article 11.” 157 Vt. at 519, 602 A.2d at 556. On the same day, we held in Brooks that the warrantless transmittal and recording of a conversation with a confidential police agent in a parking lot did not offend Article 11 because the defendant did not have the same expectation of privacy in words uttered to the informant outside his home. 157 Vt. at 493-94, 601 A.2d at 965; see also State v. Bruyette, 158 Vt. 21, 37, 604 A.2d 1270, 1278 (1992) (Dooley, J., concurring) (suggesting that secret monitoring of conversation between defendant and his girlfriend in parked car was outside protection of Article ll).²

We have, to be sure, disagreed at times about the degree of emphasis to be placed on the location of the search and seizure, to the exclusion of other considerations, such as advanced technologies that may alter or intensify the nature of the intrusion. See, e.g., Brooks, 157 Vt. at 494, 601 A.2d at 965 (Morse, J., dissenting) (arguing that intrusive “nature of the surveillance” as much as the location may trigger Article 11 protection); Costin, 168 Vt. at 188-90, 720 A.2d at 874 (Johnson, J., dissenting) (arguing that even unposted open field may warrant Article 11 protection from intensive round-the-clock surveillance by hidden video camera); see generally Note, The Lack of Privacy in Vermont, 24 Vt. L. Rev. 199, 218-25 (1999) (noting tensions between geographic and balancing approaches in the Court’s Article 11 jurisprudence). We have consistently agreed, however, that the home represents a unique historical category with “special expectations of privacy” warranting the strongest constitutional protection from warrantless searches and seizures. State v. Morris, 165 Vt. 111, 133, 680 A.2d 90, 105 (1996) (Dooley, J., dissenting).

As noted, Blow is especially significant in this regard, since the only real distinction here is that the secret recording was accomplished in defendant’s home by a known police officer rather than by a confidential police informant.³ A careful reading of Blow and the cases discussed above, however, renders this a distinction devoid of any meaningful difference; for the heart of our holding in Blow was a recognition of the “deeply-rooted legal and societal principle that the coveted privacy of the home should be especially protected.” Blow, 157 Vt. at 518, 602 A.2d at 555. This heightened expectation of privacy rendered it objectively reasonable to expect that conversations in the privacy of one’s home would not be surreptitiously invaded by warrantless transmission or recording. “[W]arrantless electronic participant monitoring conducted in a home,” we held, “offends the core values of Article 11.” Id. at 519, 602 A.2d at 555.

While our holding would not appear to admit of any exceptions based on the particular identity of the secret recorder, properly understood it is not the breadth of our holding in Blow but rather its underlying reasoning that dissolves any constitutionally significant distinction between that case and this. This is readily discerned from two of the principal cases on which we relied, Commonwealth v. Blood, 507 N.E.2d 1029 (Mass. 1987), and State v. Glass, 583 P.2d 872 (Alaska 1978). In both cases, the high courts of Massachusetts and Alaska held, respectively, that the electronic recording of a conversation by a confidential informant in the defendant’s home violated the defendant’s right to privacy under the state constitution. See Blood, 507 N.E.2d at 1034 (holding that it was “objectively reasonable to expect that conversational interchange in a private home will not be invaded surreptitiously by warrantless electronic transmission or recording”); Glass, 583 P.2d at 880 (construing state constitution to hold that “the expectation that one’s conversations will not be secretly recorded or broadcast should be recognized as reasonable”); see also Commonwealth v. Brian, 652 A.2d 287, 289 (Pa. 1994) (holding “that an individual can reasonably expect that his right to privacy will not be violated in his home through the use of any electronic surveillance”).

Both cases recognized the risk that confidences disclosed to another person in the privacy and security of one’s home may be repeated to others, or even later disclosed in court. Yet both fundamentally rejected the proposition that there was no difference between talking to another person who later repeats what is said, and talking to someone who electronically records one’s every word and phrase. As eloquently summarized in Blood:

We think it a constitutional imperative to recognize that “the differences between talking to a person enswathed in electronic equipment and one who is not are very real, and they cannot be reduced to insignificance by verbal legerdemain. All of us discuss topics and use expressions with one person that we would not undertake with another and that we would never broadcast to a crowd. New of us would ever speak freely if we knew that all our words were being captured by machines for later release before an unknown and potentially hostile audience. No one talks to a recorder as he talks to a person.”

507 N.E.2d at 1036 (quoting Holmes v. Burr, 486 F.2d 55, 72 (9th Cir. 1973) (Hufstedler, J., dissenting)); see also Glass, 583 P.2d at 878 (noting that invasive impact of secret recording in the home presents an “additional risk of an entirely different character” than the possibility of mere participant disclosure, which is mediated by such attendant circumstances as credibility, memory, and selectivity).

The Massachusetts court also relied on Justice Harlan’s compelling dissent in United States v. White, 401 U.S. 745 (1971) (the decision we declined to follow in Blow), in which he eviscerated the argument “that it is irrelevant whether secrets are revealed by the mere tattletale or the transistor.” Id. at 787 (Harlan, J., dissenting). Justice Harlan reasoned that the scope of constitutional protection must reflect “the impact of a practice on the sense of security that is the true concern of the . . . protection of privacy.” Id. at 788 n.24 (emphasis added). Analyzed in this light, warrantless monitoring and recording “undermine[s] that confidence and sense of security in dealing with one another that is characteristic of individual relationships between citizens in a free society.” Id. at 787. While interposing a warrant requirement between law enforcement officers engaged in such practices and the general public does not lessen the intrusion, it does — at least — ensure that the surveillance has been found to be reasonably necessary by a “prior independent determination of a neutral magistrate.” Id. at 783.⁴

Thus understood, our holding in Blow cannot be reconciled with the State’s argument that Article 11 permits a known police officer to secretly record a conversation in an individual’s home without judicial authorization because the “expectation of privacy” is different. From the standpoint of the citizen secure in the privacy of his or her home, nothing changes merely because the party spoken to is a police officer rather than the officer’s secret alter ego. Any Vermonter who sits around the kitchen table conversing — as defendant did here — has a reasonable right to expect that he or she is not being secretly monitored or recorded. Our “sense of security” in face-to-face conversations inside our homes extends at least this far.

Of course, most people will be more wary when speaking with a police officer than a friend, and should reasonably expect that the conversation will be carefully noted and subsequently repeated. This is a far different expectation, however, from knowingly exposing every word and phrase one speaks, every inflection or laugh or aside one utters, to the scrutiny of the world at large. Clearly the detectives who interviewed defendant well understood that his expectations and, hence, his very words might be different if he knew that he was being recorded. Otherwise, they would have not have acted surreptitiously.

The dissenting opinion makes much of the “values” underlying Article 11, suggesting that it was designed to protect “the exchange of thoughts and ideas [and] personal trust between individuals.” 173 Vt. at 365, 795 A.2d at 1230. The dissent fails to mention what we have characterized as the “core value that gave life to Article 11,” the freedom from unreasonable government intrusions into the privacy of Vermont citizens. Kirchoff, 156 Vt. at 6, 587 A.2d at 992. That value finds its purest expression in the warrant requirement. “Although criminal defendants may seek court review of searches and seizures, these after-the-fact challenges do not serve Article ll’s purpose of protecting the rights of everyone — law-abiding as well as criminal — by involving judicial oversight before would-be invasions of privacy.” Savva, 159 Vt. at 86, 616 A.2d at 780.

The dissent would excuse the underhanded method the police utilized in this case to record the conversation with defendant, insisting that it was not “trickery.” With respect, if it was not trickery to hide a tape recorder to secretly record a conversation with an unsuspecting citizen, what was it? Indeed, this case offers vivid testimony to our warning in Savva that “the social costs of eliminating the warrant requirement are simply too high. Without it, police behavior would be subjected to judicial scrutiny only in rare cases, while ‘[d]ay by day mischief may be done and precedents built up in practice long before the judiciary has an opportunity to intervene.’ ” Id. at 87, 616 A.2d at 780 (quoting Harris v. United States, 331 U.S. 145, 173 (1947)).

We thus categorically reject the State’s claim “that one who shares his personal confidences with a police officer known to him as such does not have a legitimate expectation that his words will not be electronically seized.” On the contrary, as Justice Harlan observed, “the burden of guarding privacy in a free society should not be on its citizens; it is the Government that must justify its need to electronically eavesdrop.” White, 401 U.S. at 793 (Harlan, J., dissenting) (emphasis added). Having failed to do so in this case by establishing a reasonable justification for the recording before a neutral magistrate, we conclude that the tape was properly suppressed.

Consistent with our earlier decisions in Brooks and Blow, our holding is necessarily limited to the facts before us involving a police interview in the privacy of the home, where our “sense of security,” in Justice Harlan’s words, is highest. White, 401 U.S. at 788 n.24; see also Brion, 652 A.2d at 289 (inside the home “a person may legitimately expect the highest degree or privacy known to our society”). The four out-of-state cases on which the State relies are thus fundamentally distinguishable, as all involved police interviews in other, more public settings that do not enjoy the same historical protection. In City & Borough of Juneau v. Quinto, 684 P.2d 127, 128-29 (Alaska 1984), the Alaska Supreme Court — distinguishing its earlier decision in Glass — upheld the warrantless recording of a suspect’s conversation with a police officer on a public highway during the course of the defendant’s apprehension and arrest for drunk driving. The court rejected the argument that the defendant enjoyed a reasonable expectation of privacy in such circumstances, where one “is aware, or reasonably should be aware, that he or she is speaking to a police officer who is in the process of executing either a lawful arrest or a lawful investigative stop.” Id. at 129. The decision in Quinto is consistent with our holding in Brooks and many others holding that defendants do not enjoy a reasonable expectation of privacy when speaking with police officers in such public settings. It does not, however, justify a warrantless recording in the privacy of the home.

The State also relies on In re AW., 982 P.2d 842, 847 (Colo. 1999), which held that a defendant does not have a reasonable expectation of privacy precluding the warrantless recording of an interview in a police stationhouse. Although the court noted that defendant was “speaking in the-actual presence of a police officer,” the court’s holding cannot be separated from the fact that the defendant was not conversing in the privacy of his home, but inside the interview room of a municipal police department. Id. at 847. Similarly distinguishable is Commonwealth v. Thorpe, 424 N.E.2d 250 (Mass. 1981). There the defendant, a former police officer, contacted another officer with an offer to sell a copy of a police sergeant’s promotional examination. The officer who was contacted secretly recorded eight telephone conversations and two face-to-face conversations with the defendant, one in a restaurant and another in a doughnut shop. The court upheld the warrantless recording, broadly rejecting the proposition that “free speech and privacy values are unduly threatened by the risk that when one speaks to a known police officer he may be recording the conversation.” Id. at 258. Thorpe did not, however, involve a police interview in the defendant’s home and did not — despite its broad language — hold that a defendant speaking in the privacy of his or her home waives the right to be free from warrantless electronic surveillance and recording.

Nor, finally, does Commonwealth v. Eason, 694 N.E.2d 1264 (Mass. 1998), support the State’s position. That case concerned the surreptitious monitoring and recording of a telephone conversation between the defendant and a confidential informant using an extension phone in the informant’s home. The Massachusetts court distinguished its holding in Blood, observing that although the defendant was speaking from inside his home, he had no knowledge or control over “the conditions at the other end of [the] telephone conversation.” Id. at 1268. Accordingly, the court concluded that the defendant did not enjoy the same expectation of privacy that inheres in face-to-face conversations occurring exclusively in a private home, id. at 1267, the situation we confront here.

Half a century ago, Justice Jackson explained that the warrant requirement forms the core of our privacy protections — not as a means to interfere with legitimate law enforcement efforts, but rather as a process to ensure that those efforts are properly balanced against the interests of “a society which chooses to dwell in reasonable security and freedom from surveillance.” Johnson v. United States, 333 U.S. 10, 14 (1948). We have determined as a society that judging “[w]hen the right of privacy must reasonably yield to the right of search is, as a rule, to be decided by a judicial officer, not by a policeman or government enforcement agent.” Id. When all is said and done, that is the principle which we reaffirm today.

Affirmed.

1 That provision states: “That the people have a right to hold themselves, their houses, papers, and possessions, free from search or seizure; and therefore warrants, without oath or affirmation first made, affording sufficient foundation for them, and whereby by any officer or messenger may be commanded or required to search suspected places, or to seize any person or persons, his, her or their property, not particularly described, are contrary to that right, and ought not to be granted.”

2 As we acknowledged in Brooks and Bbw, the Fourth Amendment to the United States Constitution — as interpreted by the high court in United States v. White, 401 U.S. 745, 751 (1971) — does not prohibit the warrantless use of informants equipped with concealed devices to record conversations with unknowing suspects. Many state courts have followed White. See Brooks, 157 Vt. at 492 n.2, 601 A.2d at 964 n.2 (listing states that have followed White). Several others, however, have declined to follow White, including two which we cited in our earlier decisions, State v. Glass, 583 P.2d 872, 880 (Alaska 1978), and Commonwealth v. Blood, 507 N.E.2d 1029, 1031-39 (Mass. 1987). More recently, Pennsylvania’s high court also construed its state constitution to prohibit the police from using a confidential informant to surreptitiously record conversations in a defendant’s home without a warrant. See Commonwealth v. Brion, 652 A.2d 287, 289 (Pa. 1994); see generally C. Bast, What’s Bugging You? Incmsistencies and Irrationalities of the Law of Eavesdropping, 47 DePaul L. Rev. 837, 871-78 (1998) (collecting state constitutional decisions dealing with surreptitious police monitoring and recording); M. Dubis, The Cmsensml Electrmic Surveillance Experiment: State Courts React to United States v. White, 47 Vand. L. Rev. 857, 858-87 (1994) (collecting and analyzing state court decisions after White).

3 The State does not assign, nor do we discern, any significance in the fact that the secret tape recording in Blow was accomplished by means of a hidden wire that transmitted the conversation to a third police agent who recorded the conversation, while here it was accomplished by means of a secret tape recorder in the possession of the detectives.

4 The dissent relies on Lopez v. United States, 373 U.S. 427, 439 (1963), for the proposition that admitting a secretly recorded conversation with the police represents nothing more than “the most reliable evidence” of the conversation. The dissent fails to nbte that Justice Harlan, who authored Lopez, expressly disavowed this aspect of its reasoning in White. While acknowledging that there might be some difference between third-party eavesdropping, as occurred in White, and participant tape-recording, as in Lopez, Justice Harlan nevertheless observed:

While the continuing vitality of Lopez is not drawn directly into question by this case, candor compels me to acknowledge that the views expressed in this opinion [White] may impinge upon that part of the reasoning in Lopez which suggested that a suspect has no right to anticipate unreliable testimony. I am now persuaded that such an approach misconceives the basic issue, focusing, as it does, on the interests of a particular individual rather than evaluating the impact of a practice on the sense of security that is the true concern of the Fourth Amendment's protection of privacy.

White, 401 U.S. at 788 n.24 (Harlan, J., dissenting) (emphasis added).