Bovat v. Vermont ( 2020 )

Cite as: 592 U. S. ____ (2020) 1
Statement of GORSUCH, J.
SUPREME COURT OF THE UNITED STATES
CLYDE S. BOVAT v. VERMONT
ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME
COURT OF VERMONT
No. 19–1301. Decided October 19, 2020
The petition for a writ of certiorari is denied.
Statement of JUSTICE GORSUCH, with whom JUSTICE
SOTOMAYOR and JUSTICE KAGAN join, respecting the denial
of certiorari.
The “knock and talk” is an increasingly popular law en-
forcement tool, and it’s easy to see why. All an officer has
to do is approach a home’s front door, knock, and win the
homeowner’s consent to a search. Because everything is
done with permission, there’s usually no need to bother
with a warrant, or worry whether exigent circumstances
might forgive one’s absence. After all, the Fourth Amend-
ment protects against unreasonable searches, and consen-
sual searches are rarely that.
But with the rise of the knock and talk have come more
and more cases testing the boundaries of the consent on
which they depend. Sometimes, officers appear with over-
bearing force or otherwise seek to suggest that a home-
owner has no choice but to cooperate. Other times, officers
fail to head directly to the front door to speak with the
homeowner, choosing to wander the property first to search
for whatever they can find.
This Court addressed the second sort of problem in
Florida v. Jardines, 569 U.S. 1 (2013). There, the Court
recognized that a home’s “curtilage,” the area immediately
surrounding it, is protected by the Fourth Amendment
much like the home itself. Id., at 6. So, to comply with
the Constitution, law enforcement agents not only need
a warrant, exigent circumstances, or consent to enter a
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Statement of GORSUCH, J.
home, they usually need one of those things to reach the
home’s front door in the first place. After surveying the
Fourth Amendment’s original meaning and history,
Jardines acknowledged that a doorbell or knocker on the
front door often signals a homeowner’s consent allowing vis-
itors to “approach the home by the front path, knock
promptly, wait briefly to be received, and then (absent invi-
tation to linger longer) leave.” Id., at 8. The Court recog-
nized, too, that law enforcement agents, like everyone else,
may take up this “implied license” to approach. But, the
Court stressed, officers may not abuse the limited scope of
this license by snooping around the premises on their way
to the front door. Whether done by a private person or a
law enforcement agent, that kind of conduct is an unlawful
trespass—and, when conducted by the government, it
amounts to an unreasonable search in violation of the
Fourth Amendment. On this much, the Court unanimously
agreed. See id., at 19 (ALITO, J., dissenting) (“A visitor can-
not traipse through the garden, meander into the backyard,
or take other circuitous detours that veer from the pathway
that a visitor would customarily use”); id., at 20 (“The li-
cense is limited to the amount of time it would customarily
take to approach the door, pause long enough to see if some-
one is home, and (if not expressly invited to stay longer)
leave”).
It’s hard to see how the case before us could have been
decided without reference to Jardines. Suspecting Clyde
Bovat of unlawfully hunting a deer at night (Vermont calls
it a “deer jacking”), game wardens decided to pay him a visit
to—in their words—“investigate further.” But the wardens
admit that “pretty soon after arriving ” they focused on a
window in Mr. Bovat’s detached garage. Heading there and
peering inside, the wardens spotted what they thought
could be deer hair on the tailgate of a parked truck.
Cite as: 592 U. S. ____ (2020) 3
Statement of GORSUCH, J.
App. to Pet. for Cert. 53a.
Nor, apparently, was this detour a brief one. According
to Mr. Bovat’s wife, the wardens lingered on the property
for perhaps fifteen minutes and never even made it to the
front door. Instead, after watching from inside, she finally
decided to go out to speak with the wardens—and it was
only then they finally sought consent for a search. Mrs.
Bovat refused the request, but by that point, of course, the
whole exercise of seeking consent was pointless—the war-
dens had all they needed, forget about any knock or talk.
They left the property only to return promptly with a search
warrant premised on what they had seen through the gar-
age window.
For reasons that remain unclear, the Vermont Supreme
Court analyzed the propriety of the wardens’ conduct with-
out mentioning Jardines. Instead, the court held that the
officers’ initial visit and search of the property was perfectly
appropriate in light of the “plain view”
doctrine—the commonsense principle that the Fourth
Amendment doesn’t normally require an officer to ignore
what he sees lying before him. But that doctrine applies
only when an officer finds himself in a place he is lawfully
permitted to occupy. No one, after all, thinks an officer can
unlawfully break into a home, witness illegal activity, and
then claim the benefit of the plain view doctrine. So, in an
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Statement of GORSUCH, J.
effort to suggest the wardens’ lingering at the garage win-
dow was lawful, the Vermont Supreme Court proceeded to
cite one of its pre-Jardines cases for the notion that drive-
ways constitute “semiprivate areas” within the curtilage,
and “ ‘observations made from such’ ” areas “ ‘are not cov-
ered by the Fourth Amendment.’ ” 2019 VT 81, ¶18, 224 A.
3d 103, 108 (quoting State v. Pike, 143 Vt. 283, 288, 465
A.2d 1348, 1351 (1983)). The upshot? Under the court’s
logic, it seems, an officer who keeps ten toes in a home’s
driveway may stay and search just as he pleases.
None of this is easy to square with Jardines, and that
case’s teachings almost certainly required a different re-
sult. Maybe a court could have discredited Mrs. Bovat’s tes-
timony about how long the wardens wandered around the
garage. Maybe a court could have attempted to offer some
explanation why items viewable only through a garage win-
dow were within the “plain view” of visitors proceeding di-
rectly and without delay from the street to the front door.
But it seems a good deal more likely that any court applying
Jardines would have agreed with Chief Justice Reiber, who
explained in dissent that the wardens exceeded the scope of
their implied license to approach the front door by heading
to the garage and spending so much time peering through
its window. As Chief Justice Reiber noted, Jardines plainly
held that the home’s curtilage and observations made any-
where within its bounds are covered by the Fourth Amend-
ment; no exceptions. And the Fourth Amendment hardly
tolerates the sort of meandering search that took place
here. The wardens violated the Constitution, and the war-
rant they received premised on the fruits of their unlawful
search was thus tainted.
Despite the Vermont Supreme Court’s error, I
acknowledge that understandable reasons exist for my col-
leagues’ decision to let this case go. For one, it is unclear
whether Jardines’s message about the protections due a
home’s curtilage has so badly eluded other state or federal
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Statement of GORSUCH, J.
courts. For another, there might be reason to hope that,
while Vermont missed Jardines in one deer-jacking case, its
oversight will prove a stray mistake. But however all that
may be, the error here remains worth highlighting to en-
sure it does not recur. Under Jardines, there exist no “sem-
iprivate areas” within the curtilage where governmental
agents may roam from edge to edge. Nor does Jardines af-
ford officers a fifteen-minute grace period to run around col-
lecting as much evidence as possible before the clock runs
out or the homeowner intervenes. The Constitution’s his-
toric protections for the sanctity of the home and its sur-
roundings demand more respect from us all than was dis-
played here.