State v. Kirchoff ( 1991 )

Peck, J.,

dissenting. I am sadly disappointed, and frustrated beyond comfort, by the decision of the majority in this case. Reviewing the opinion, I was visited by the eerie feeling that what I was reading was not an appellate judicial opinion at all, formulated after full and fair consideration of the arguments presented on behalf of both parties by an impartial and neutral body. Rather it impressed me as a brief for the defendant. Certainly it is, in my judgment, one of the most resultroriented opinions I have ever been exposed to. I am not prepared to countenance in silence the extreme and unwarranted judicial activism of which the opinion is an example. Accordingly, I dissent, and will outline my reasons below.

The flaws in the opinion are legion — for they are many — too many in fact to give them all the attention they deserve. But the case has languished, in this Court alone, for almost two years (it was argued during the March Term of 1989). I feel it would be unconscionable to delay it any further. Therefore, I have selected only the more egregious faults in the opinion for discussion in this dissent.

There are at least two key words in Article Eleven which are of fundamental importance to an honest resolution of this matter. One is “possessions” which appears expressly in the text of the article, the other is the word “unreasonable,” which does not appear expressly but which “this Court has held ... is as implicit in Article Eleven as it is express in the Fourth Amendment [to the United States Constitution].” State v. Record, 150 Vt. 84,85,548 A.2d 422,423 (1988). As early as the middle of the last century, well over one hundred years ago, this Court said: “the construction of the eleventh article of our bill of rights is to secure only against unreasonable searches and seizures . . . .” Lincoln v. Smith, 27 Vt. 328, 346 (1855) (emphasis added); see also State v. Badger, 141 Vt. 430, 454, 450 A.2d 336, 350 (1982) (approving Lincoln).

It is the treatment by the majority of these two words “unreasonable” (searches or seizures) and “possessions” that I will review at the outset. I will consider “possessions” first.

I.

The “Possessions” Enigma

Article Eleven of the Vermont Constitution protects the people (themselves), their houses, papers, and possessions against unreasonable search and seizure. On the other hand the Fourth Amendment to the United States Constitution protects persons, houses, papers, and effects.

The only difference in the wording of the two search and seizure provisions, the one using “possessions,” the other, “effects,” so bewilders the majority that the opinion devotes several pages to explaining why its research “sheds little, light” on this discrepancy and does not help in resolving the issues which confront us here. Unable to find a meaning for “possessions,” or reconcile the discrepancy, the majority resorts to the strangest of alternatives, saying, in effect, that since we are unable to give a meaning to the word “possessions,” it has no meaning; therefore, the word does not exist, and there is no need to consider it at all, either in relation to the Fourth Amendment’s “effects,” or as a part of Article Eleven in its own right.

I suspect that this amputation of “possessions” is a calculated tactic rather than the result of interpretive incompetency. In my view, the word “possessions” in Article Eleven means “personalty,” and the majority is well aware of it. Its refusal to acknowledge what is obvious, is, in reality, based on a failure to recognize that “possessions” is not only a key word in Eleven, which indeed it is, but may well be the key word in this inquiry.

Claiming, as I do, that “possessions” as used in Eleven refers to personalty, I concede, nevertheless, that possessions can mean anything possessed, including land. Its more specific meaning in a particular case, however, depends on the context in which it is used. Thus, in media reports and other writings concerning the so-called Okies who fled from the dust bowl in the 1930’s, they were not infrequently described as salvaging, and taking with them, as many of their “possessions” as they could cram into ramshackle cars and trucks. Used in such a context, there can be no question that “possessions” means, and can only mean “personalty”; certainly those writings had no relation to land.

As the majority notes, relying on its dictionary, the word “effects,” like “possessions,” may also apply to land. The opinion argues “effects” has been given a broader meaning, to include realty. The United States Supreme Court, however, has recognized, as the majority here is incapable of doing, that many words must be defined by the context of the use to which it is put, and has, accordingly, construed “effects,” in its Fourth Amendment context, as referring to personalty.

Disregarding a word because it may have different meanings in different contexts constitutes an argument weak to the point of absurdity. If every word in the English language which lends itself to more than one meaning, depending on the context in which it is used, must be abandoned, we would seriously impair the versatility of our mother tongue, and probably of every other language as well.

The honest approach would have been a neutral analysis of Article Eleven and not merely shaping it to fit a desired result. But, of course, the majority could not bring itself to that degree of fairness and impartiality; to have done so would have defeated its exercise in result orientation.

The word “land,” as such, does not appear expressly in Article Eleven, nor is it employed in the Fourth Amendment. “Land” has been incorporated into both constitutional provisions by judicial interpretation over a period of time and, in the case of Article Eleven, without relying on the word “possessions.” The same is true of the word “effects” in the Fourth Amendment.

As I read these two constitutional provisions, the implicit inclusion of the word “lands” in both Article Eleven and the Fourth Amendment stems from the word “houses.” Extending the application of these provisions to so much of the land as surrounds and serves the primary residential purposes of the house, that is the curtilage, is a logical and reasonable interpretation. Open fields are simply not within the scope of Article Eleven or the Fourth Amendment.

It is not necessary, however much it may delight judicial activists, to find that a constitutional problem exists simply because it is claimed by one of the parties. Open fields, like all lands, have always been protected by common-law trespass actions and, more recently, by the criminal trespass statutes enacted by the Legislature. From reading the majority opinion, one receives the false impression that the only way an owner of open fields can protect him or herself against unwanted intrusion by the public is through a further expansion of the scope of Article Eleven. This is deliberately misleading. For all realistic and practical purposes, the sole beneficiary of today’s decision is the owner of open fields who conducts criminal activity thereon in defiance of the law. In short, the majority has given birth to a right of privacy to commit crime. If our marijuana farmers have the good sense I think they have, they will soon be busy as little bees putting up no-trespassing signs, while laughing up their sleeves at the gullible naivete of the cooperative majority.

A final observation. The holding by the majority that no-trespassing signs and other devices appropriate to exclude the “public” from open fields serve to exclude police without a warrant as well is preposterous. It is like saying a police cruiser, in responding to an emergency call, may not exceed the speed limit because there are laws against speeding.

If we are to accept the majority’s contention that the meaning of “possessions” cannot be determined, or, perhaps, at best, that the word is to be given the broad and general meaning which ignores context, the words “houses” and “papers” become unnecessary and confusing surplusage, since both words describe possessions in the broad sense.

The majority moves on to suggest that the framers of the Vermont Constitution acted in such haste that they really did not know what they were doing, and, I presume, simply tossed in words willy-nilly with no intent that they have any particular meaning; merely filling in blanks, as it were, with the first word that came to mind. This is an insult to those men. Moreover, it must follow that the Fourth Amendment (and indeed the original federal Bill of Rights in its entirety), which is so similar to Article Eleven, was also slapped together hastily, and with no particular intent as to the meaning of the key words employed. But we know as a matter of history that it was not carelessly prepared but was the subject of careful consideration.

I reject any such predicate without reservation. I believe the framers of Article Eleven selected the key words advisedly and intended a meaning in each case. I suggest that interpreting “possessions” to mean “personalty” is a logical and reasonable construction. Not only does it give the word a valid meaning, which we must assume the framers intended it to have, but it serves to reconcile Article Eleven and the Fourth Amendment.

But the majority is not indifferent to the “personalty” interpretation — I can understand why. The interpretation is attacked directly, even though the attack itself is vague and badly needs an explanation. At one point, the opinion reads: “If we confined the meaning of ‘possessions’ to personalty for Article 11 purposes, we would necessarily run counter to the federal development of even the narrower word ‘effects’ found in the Fourth Amendment.”

What “federal development” is it that suddenly appears before us? I am not aware of any. It is as illusory as Macbeth’s vision, “Is this a dagger which I see before me . . . ?” The attempted explanation only adds to the mystery. The opinion continues: “In numerous cases, the United States Supreme Court has extended protection beyond the plain meaning of the places and things enumerated in the Fourth Amendment.” I ask, using the vernacular, so what, exactly? What has that to do with the price of eggs? Or in plainer language, what has it to do with some mythic “development” of the word “effects?”

The cases cited, supposedly as examples (of something), by way of clarification, only intensify the darkness; most of them have no relation at all to “effects” or “personalty.” Thus, a conversation in a phone booth is not an “effect.” Therefore, the claim that this has something to do with a federal development relating to “effects” is nonsense; the same is true of “commercial premises” and “hotel rooms,” neither are “effects.”

I am just guessing, but it seems probable that what the majority is doing is making a quantum leap from the specific, i.e., “effects” to the general, lumping together all the specifics of the Fourth Amendment, “persons, houses, papers or effects,” and equating any “general” expansion of the Fourth Amendment to the specific “effects.” I am afraid that the majority’s training in elementary logic, if any, failed to penetrate or make a lasting impression. The majority’s reasoning is a syllogistic blunder and a non sequitur.

Further, no one has said that the meaning of “possessions” should be “confined” to personalty. On the contrary, the word, like any other word in American constitutions, under rules applicable to the construction of such documents, as distinguished from statutory construction, is subject to expansion over time, in my judgment, however, within a range, reasonably related to the key words. Thus, if the only key word in Eleven was “papers,” it would be an egregious abuse of power to enlarge the scope of that word to include unrelated and unnamed categories.

I believe that key words in constitutions are put there advisedly and with a definite purpose in mind, that they serve, not necessarily a literal, plain-meaning function, but as guidelines, limited only by their reasonably related scope. Thus, I am satisfied that, for example, “possessions” and “effects,” considered as personalty, could reasonably and acceptably be interpreted to include fixtures. Given the uncanny ingenuity of the judiciary, I expect other possibilities could be unearthed as well. Nevertheless “personalty” should stand, within the meaning of its generality, as a guideline to the scope of the interest protected or the right granted.

The word “possessions” in Article Eleven, like “effects” in the Fourth Amendment, should be interpreted to mean “personalty,” and should not be deleted as meaningless.

II.

Unreasonable Searches

There is no question, I think, that if the warrantless search involved here was reasonable there was no violation of defendant’s Fourth Amendment rights.

The reasonableness of each search or seizure depends on the factual background of the particular case. The facts and circumstances surrounding the matter before us should be reviewed carefully and fairly.

Having in mind the no trespassing signs posted by the defendant, the majority engages in a grossly unfair example of police-bashing. The opinion reads: “By no stretch of the imagination could the officers reasonably conclude, under the standards we have set out here, that their ‘walk-on’ search was permissible.” If I were a member of a police organization, I would deeply resent that comment; as it is, I am putting my reaction mildly in saying I am disturbed by it.

The police are not psychic. At the time they entered the open fields portion of defendant’s property, they had no way of knowing or of anticipating that this Court would follow, sheep-like, the decision of one of the most activist-oriented among the state courts, or that we would reject a contrary decision by the high court of a state which borders us and is far more similar to us in size and other characteristics than the former.

It is true that we have never before considered a case involving the precise situation here, that is, the warrantless search of open fields, distinguished from the general rule in such cases, only by the fact that defendant had erected no trespassing signs. The general rule, almost, if not universally, recognized, being that such searches do not violate the Fourth Amendment to the United States Constitution, and in this state, do not violate Article Eleven of the Vermont Constitution. State v. Chester, 156 Vt. 638, 587 A.2d 1008 (1991) (mem.).

The extent of the knowledge with which the police could be charged at the time they entered defendant’s land is, first, the general rule that a warrant is not required to inspect open fields, and second, that the land which they did inspect was open fields. They had no reason to suppose or anticipate that an exception to the rule was about to be foisted on them by a wildly activist court. For that matter, and again at that time, because the land on which defendant chose to defy the law (successfully — given after-the-fact cooperation by the majority) was open fields, he had no reasonable expectation of privacy. State v. Byrne, 149 Vt. 224, 227-28, 542 A.2d 276, 278-79 (1988) (an individual may not legitimately demand privacy for activities conducted out of doors except in the area immediately surrounding the home).

I have conceded that this is a case of first impression here. Nevertheless, our prior cases, including those in which we have held that Article Eleven and the Fourth Amendment were similar, see State v. Record, 150 Vt. at 86, 548 A.2d at 424, mislead the police into believing that since police conduct, not unlike their contemplated entry, did not violate the Fourth Amendment, see Oliver v. United States, 466 U.S. 170, 181 (1984); State v. Byrne, 149 Vt. at 227, 542 A.2d at 278, their entry was proper because it involved open fields.

Finally, I would remind the majority, as it sheds its tears for the defendant, that the entry was not arbitrary. It was not an afternoon of sport for the police, on the off-chance they might just happen to stumble on marijuana or some other contraband, in much the same spirit that we hunt deer and other game. The entry was undertaken in reliance on a “tip”; with every reason to believe the search was legitimate, and it was done in good faith.

Under these circumstances, in this case, I think a neutral fairness (which I gather cannot be expected of the majority when it sees an opportunity to enhance its prestige among the law reviews and other commentators on matters legal by expanding the “rights” of even obviously guilty criminals) should require a conclusion that the police acted reasonably and in good faith.

The colloquial bottom line must be that if the owner of open fields will but erect no trespassing signs there can be no possible combination of facts and circumstances which might justify a warrantless search; such a search is unreasonable per se, and the State cannot be permitted to present evidence which, in a particular case, would support a finding that the entry and search was reasonable. But the reasonableness factor is a constitutional concern applicable to all cases without distinction, and should be subject to a determination on a case-by-case basis and not resolved arbitrarily by a per se rule which eliminates reasonableness from Article Eleven.

III.

The Balancing Test

There are at least three examples of inexcusably grim irony which emerge from today’s decision. First, while almost rudely condemning the United States Supreme Court for adopting a per se rule applicable to cases similar to this one, the majority, doing its pot-and-kettle act, promptly executes a volte-face and promulgates its own per se rule. As discussed above, notwithstanding the legitimacy of warrantless searches supposedly depends on reasonableness, and therefore to be determined on a case-by-case basis, the majority throws that test into the ash can, holding that if an owner erects no trespassing signs or some other indication that he seeks to keep out the public, an entry by police into open fields is per se unreasonable.

Second, while the police of our neighbor and sister state of New Hampshire are not subjected to such a limitation by its courts, the liberal-activist Supreme Court of this state, just across the river, has placed still another impediment in the way of successful criminal investigation by the Vermont police. The irony becomes all the more apparent with the statement in the opinion: “The rule announced here does not significantly hamper the police from investigating suspected criminal activity.” That impresses me as complacent and pietistic; it significantly hampers the police. Not only do they have to chase around looking for a judge to issue a warrant before searching the same type of land which, except for no trespassing signs, they would not need a warrant to search, but different judges react differently in deciding whether they will issue a warrant at all. The majority has certainly added still another major obstacle in the way of police efforts in carrying out their job of protecting the safety of all of us.

Third is still another statement in the opinion which says, in effect, that in promulgating its per se rule, the majority recognizes that it will inevitably protect some criminal activity, but that this is nevertheless necessary “in securing the rights of all of us.” That borders on the hypocritical. If the majority had the least concern for “the rights of all of us,” it would not have turned its back on Article One of the Vermont Constitution. Guaranteeing the safety of the inhabitants of Vermont, as individuals, is the very purpose of Article One. But rather than give it due consideration, the article is subjected to a cover-up of silence.

This is perhaps not surprising. The opinion is result-oriented at best. A fair consideration of Article One would pose a threat to the majority’s position. Nevertheless, such deliberate avoidanee denigrates the integrity of appellate review; it permits a result which has been determined by consideration of only half the issues, or less. It is indeed result-oriented. This is underscored by the fact that Article One was brought to the attention of the majority and rejected without any reason being given.

When two articles of a constitution may call for different results if each is considered independently of the other, the courts should first attempt to reconcile the two if possible. If not, the court must, or certainly should, through intelligent and careful analysis, determine which one of the two is to be accorded priority.

If the majority is prepared to follow, sheep-like, a decision of one of the more liberal and activist-oriented of our sister-state courts, and reject those of states, one of them being an immediate neighbor, dismissing the latter arbitrarily as “bad law,” one would expect it has at least some responsibility to consider the recent precedent to be found in our own decisions which are analogous to the instant case.

State v. Record, supra,^* is a case which is similar to the matter now before us to the extent of concerns involving Articles Eleven and One. We did not duck the issue in that case, but faced it squarely; at one point, we stated:

The language of Article Eleven seems to prohibit unequivocally warrantless searches and seizures; however, Article One sets forth the principle that all persons have the right to enjoy “certain natural, inherent, and unalienable rights, amongst which [is]... safety .... We recognize that in order to preserve Article One interests . . . this Court has balanced and limited the Article Eleven interest. . . where the public welfare is at stake.”

150 Vt. at 86-87, 548 A.2d at 424 (emphasis added; citations omitted). In following the principle promulgated by this statement, the Court’s opinion in Record mentions the Article One element of safety at several points, and concludes that where a warrantless search or seizure is an issue in a case involving both articles, the court should apply a balancing test, that is,

by weighing the public interest. . . against the degree of intrusion into personal privacy .... The reasonableness .. . depends “on a balance between the public interest” [and] . . . the degree [of intrusion] upon an individual’s legitimate and reasonable expectation of privacy ....

. . . We are, after all, balancing an important private right. .. against the safety and welfare of the people ....

Id. at 87-88, 548 A.2d at 424-25 (emphasis added).

The lesson to be learned from Record contains several parts: (1) “Article Eleven does not mandate an absolute prohibition against searches ... undertaken without a proper warrant.” Id. at 85, 548 A.2d at 423 (emphasis added). On the contrary, it has long been recognized that there are exceptions to the prohibition; (2) since Article Eleven does not impose an absolute prohibition against warrantless searches, an analysis of its range must include the effect of the other constitutional provisions which may impinge on the scope of Eleven; (3) Article One secures to all inhabitants of Vermont, “certain natural, inherent, and unalienable rights, amongst which [is the right to enjoy personal] safety.” Id. at 86-87, 548 A.2d at 424 (quoting Vt. Const, ch. I, art. 1); (4) “In the past, this Court has balanced and limited the Article Eleven interest . . . where the public welfare is at stake.” Id. at 87, 548 A.2d at 424 (emphasis added); (5) it cannot be doubted that, under Record, the safety guaranteed by Article One is included and implicit in the phrase “public welfare”; and (6) nor can it be doubted fairly that (under Record) the right to be free from warrantless searches, under Article Eleven, may, in an appropriate case, be limited by the right of all inhabitants to enjoy the safety secured by Article One.

In the light of the above discussion, I conclude and submit that, when there exists in a given case both an Article Eleven issue, and a public safety issue under Article One, and the two are not, or may not, be consistent, one with the other, this Court must resolve the question of priority through the application of a balancing test as mandated by Record. The failure of the majority to comply with its obligation, particularly where there are two issues, both of which involve different guarantees by separate provisions of the Vermont Constitution, is impossible to comprehend and completely unacceptable.

The majority not only fails to apply the balancing test, it ignores Article One completely. The entire opinion seems based on the premise that Article Eleven is the only constitutional provision involved, and the result requires no more than an analysis of that article, for all the world as though Article One did not exist. Albeit the majority opinion is “bad law,” even in its attempt to analyze Article Eleven standing alone, it is made all the more so by deliberately ignoring Article One.

IV.

Summary and Conclusions

In a recent case, State v. Jewett, 146 Vt. 221, 500 A.2d 233 (1985), we said this:

The development of state constitutional jurisprudence will call for the exercise of great judicial responsibility____ It would be a serious mistake for this Court to use its state constitution chiefly to evade the impact of the decisions of the United States Supreme Court. Our decisions must be principled, not result-oriented. Justice Pollock of the New Jersey Supreme Court expressed his concern this way: “[s]tate courts should not look to their constitutions only when they wish to reach a result different from the United States Supreme Court. That practice runs the risk of criticism as being more pragmatic than principled.”

Id. at 224-25, 500 A.2d at 235-36 (emphasis added; footnote omitted).

It is difficult to imagine a more willful and calculated violation of this caution urging judicial restraint, and against unprincipled activism and result orientation, than is represented by today’s decision and the rationale which purports to justify it. The majority’s hidden agenda is to evade the impact of decisions of the United States Supreme Court.

Very conveniently in aid of its objective, the majority commences its horror story by arguing that the word “possessions” is meaningless and, therefore, is not considered at all. This is bad enough certainly, when the meaning of this so-called mysterious word is considered in the context in which it is used. But what follows exacerbates the fault. In effect, the majority holds that in the process of constitutional interpretation, none of the key words have meaning. Rather all we are to look for is some vague, nebulous, and fatally subjective concept called, I gather, “underlying values.”

I do not quarrel with the concept of values, per se, in constitutional construction. I do say, however, that they do not exist in a sort of subjective, wishing-well vacuum, completely dehors the text of the provision being considered. I believe all key words in a constitutional provision must be presumed to have been used advisedly, intelligently, and as guidelines to intent.

Again in Jewett, we quoted Justice Joseph Story:

“It is obvious, that there can be no security to the people in any constitution of government if they are not to judge of it by the fair meaning of the words of the text.”

Id. at 226, 500 A.2d at 237.

Referring to the importance of examining the context in which words are used, Justice Oliver Wendell Holmes made several comments which are often quoted because of their wisdom. Among them, the two following:

A word is not a crystal, transparent and unchanged, it is the skin of a living thought and may vary greatly in color and content according to the circumstances and the time in which it is used.

Towne v. Eisner, 245 U.S. 418, 425 (1918).

A word generally has several meanings, even in the dictionary. You have to consider the sentence in which it stands to decide which of those meanings it bears in the particular case, and very likely will see that it there has a shade of significance more refined than any given in the word-book.

Holmes, The Theory of Legal Interpretation, 12 Harv. L. Rev. 417, 417 (1899).

If the key words employed in constitutional provisions are to have no significance or meaning, as guidelines or otherwise, in determining the values which underlie the provision, the statement I made in an earlier dissent bears repeating.

If... constitutions, state and federal, mean whatever the highest courts having jurisdiction say they mean, and that power of interpretation is not exercised with restraint, we may as well adopt “Mary Had a Little Lamb” for constitutional purposes.

State v. Brunelle, 148 Vt. 347, 365, 534 A.2d 198, 210 (1987) (Peck, J., dissenting).

I conclude that the majority had an obligation to give significance to the key words in Article Eleven. Instead, it has ignored, not only “possessions,” the meaning of which is unmistakably clear when considered in context, but the others as well. Having committed this sin against judicial restraint, compounding it by deliberately turning its back on Article One and the balancing test, the majority adopts Mary and her Little Lamb as Article Eleven, thus lifting itself by its own bootstraps into an ideal position to prepare the subjective, result-oriented opinion and decision which follows.

The out-of-context quotation from Katz v. United States, 389 U.S. 347, 353 (1967), that constitutional search-and-seizure provisions “protect people — and not simply ‘areas,’” without more, permits the majority, like Napoleon, to crown itself, with the glittering halo of being concerned only with the rights of the people (“all of us”). The patter is smooth and seductive, perfumed with important-sounding legalese, and sprinkled with an appropriate number of citations, all in the manner approved for judicial opinions. But the opinion betrays its true priority; it does not concern itself with all the people, only with those who are fortunate enough to own sizeable real estate interests, who have no practical need for protection since it already exists in the civil and criminal law. The only class which, as a pragmatic fact realizes protection it does not already have, is, to state it bluntly, the criminals.

Moreover, if the majority had the slightest concern for “all of us,” it would have given priority, or at least equal consideration, to the right, supposedly guaranteed to all of us, to live in safety, free from violence, the addictions, and the adverse social consequences of the drug traffic, which constitutes one of the greatest crimes against humanity since the days of the Third Reich in Nazi Germany under Adolf Hitler.

The refusal of the majority to concern itself with, or to give any consideration to, the most significant of the key words in Article Eleven, “possessions,” and indeed to treat all the key words as meaningless, is irresponsible. It permits the majority to abandon restraint, and adopt a purely subjective, wish-fulfillment standard of constitutional interpretation, based on nothing but the extremes of judicial activism which is so clearly revealed by the decision. The virus which infects so many courts in criminal cases, and leaves them with tunnel vision, seeing only the criminal as having any rights, continues to ravage this Court. Jewett is forgotten; Record is snubbed and buried.

The medical profession has, in recent years, stressed preventative medicine equally with the curative. The courts should take heed of this in criminal matters and develop their potential for preventive law. One step might well be to serve notice that, in those cases where guilt, per se, is a fact, as distinguished from an evidentiary question, technicalities will be enforced, but with reluctance and with concern for the people who will be the future victims. As it is now, too often, judicial opinions with the authoring pens dipped in the crocodile tears of activist judges, constitute “A Criminal’s Vade Mecum, or How to Commit Crime and Get Away With It.”

Today’s decision stands as evidence that this Court is preoccupied, particularly in criminal cases, with the favorite diversion of too many state appellate courts, the sport of hunting for a constitutional baby behind every bush, waiting for the courts to come along, arm in arm with the whining wrongdoers who have been detected in flagrante delicto, and find them. But such undiscovered infants are no longer that numerous; therefore the test of a court’s expertise in the sport becomes its ability to create new ones out of legal words and phrases and cliches, and emerge crying triumphantly like Frankenstein, “Its alive! Its alive!” Behold “the justice[s] . . . with eyes severe . . . Full of wise saws and modern instances.” As You Like It, Act 2, Sc. 7: “Go and sin some more. Try not to get caught the next time, but if you do remember we’ll always be here. We’ll put on our thinking caps and do what we can for you; that’s what we are here for. There may well be another bush out there which we overlooked.” What is left to the state courts by which they may achieve prestige and recognition in the trade as masters of the constitution in criminal cases, if they cannot play their games of expansion by clever interpretation, although, almost inevitably, as here, the expansions impede the investigation of crimes, the self-serving disclaimers by the majority to the contrary notwithstanding, and lead to still further shrinking of the right to safety supposedly guaranteed to “all of us” by Article One. This decision is analogous to judicial legislation by statutory construction, but it is more egregious; it is judicial amendment of a constitution by interpretation.

The decision and opinion may be glib and delight the eyes of the “groundlings,” but, analyzed, it is shadow without substance; too many factors are simply ignored. Whatever may be said for its “form,” it remains a case of “the singer not the song” who merits the laurels. It is like a speaker who can move his listeners by his eloquence and obscure, but important sounding, words alone, without really saying anything.

My theme of being result-oriented runs through this dissent from the result and the rationale. It may suffer from repetition, but I feel it strongly, and urge the Court to greater restraint hereafter, and to have greater concern for the victims-to-be of future crimes by adopting a policy of preventive law. “All of us” are entitled to the constitutional guarantees of safety, and to no less. At least engage in a fair balancing of constitutional rights.

The majority has chosen the possible prestige with which it may be honored by law reviews and other constitutional activists among the courts, and legal writers, to a recognition of the rights of the individual inhabitants of the State of Vermont, which would probably pass relatively unnoticed because it would not change the law as it has long existed. But all that glitters is not gold; in this case it is dross, although it may take years to discover the fools gold that lies just below the surface. Today’s decision demonstrates that English writer Thomas Babington Macaulay was, perhaps, a better prophet than he realized when he wrote to an American friend, “Your constitution is all sail and no anchor.”

* Strictly speaking, Record involves seizures primarily, rather than searches as in this case. Nevertheless, under both the Fourth Amendment to the United States Constitution, and Article 11 of the Vermont Constitution, search and seizure are treated alike. See Record, 150 Vt. at 85, 548 A.2d at 423 (“‘[T]he construction of the eleventh article of [the Vermont Constitution] is to secure only against unreasonable searches____’ Article Eleven does not mandate an absolute prohibition against searches and seizures undertaken without a proper warrant.” (quoting Lincoln v. Smith, 27 Vt. at 346 (emphasis added))).