good faith exception in Vermont

2019Park, supra , at 396. 14 Regarding the latter argument, plaintiff contends that adopting the Heien holding would be inconsistent with the broader protection we have established under Article 11, see State v. Pitts , 2009 VT 51 , ¶ 19, 186 Vt. 71 , 978 A.2d 14 (stating that this Court has construed Article 11 to provide greater protection than Fourth Amendment and has "regularly invoked this principle to place reasonable restrictions on the scope of police authority to detain and search citizens"), particularly with respect to our rejection under Article 11 of the U.S. Supreme Court's good-fait

2019Park, supra , at 396. 14 Regarding the latter argument, plaintiff contends that adopting the Heien holding would be inconsistent with the broader protection we have established under Article 11, see State v. Pitts , 2009 VT 51 , ¶ 19, 186 Vt. 71 , 978 A.2d 14 (stating that this Court has construed Article 11 to provide greater protection than Fourth Amendment and has "regularly invoked this principle to place reasonable restrictions on the scope of police authority to detain and search citizens"), particularly with respect to our rejection under Article 11 of the U.S. Supreme Court's good-fait

2007State v. O'Neill, 165 Vt. 270, 275 , 682 A.2d 943, 946 (1996) ("It is inappropriate to read into a statute something which is not there unless it is necessary in order to make the statute effective." (citation omitted)); see also Burke, 1999 ME 138, ¶ 16 (declining to read bona fide dispute exception into statute). ¶ 23.

2007State v. O’Neill, 165 Vt. 270, 275 , 682 A.2d 943, 946 (1996) (“It is inappropriate to read into a statute something which is not there unless it is necessary in order to make the statute effective.” (citation omitted)); see also Burke, 1999 ME 138, ¶ 16 (declining to read bona fide dispute exception into statute). ¶ 23.

2007State v. O’Neill, 165 Vt. 270, 275 , 682 A.2d 943, 946 (1996) (“It is inappropriate to read into a statute something which is not there unless it is necessary in order to make the statute effective.” (citation omitted)); see also Burke, 1999 ME 138, ¶ 16 (declining to read bona fide dispute exception into statute). ¶ 23.

2007State v. O’Neill, 165 Vt. 270, 275 , 682 A.2d 943, 946 (1996) (“It is inappropriate to read into a statute something which is not there unless it is necessary in order to make the statute effective.” (citation omitted)); see also Burke, 1999 ME 138, ¶ 16 (declining to read bona fide dispute exception into statute). ¶ 23.

2019Park, supra , at 396. 14 Regarding the latter argument, plaintiff contends that adopting the Heien holding would be inconsistent with the broader protection we have established under Article 11, see State v. Pitts , 2009 VT 51 , ¶ 19, 186 Vt. 71 , 978 A.2d 14 (stating that this Court has construed Article 11 to provide greater protection than Fourth Amendment and has "regularly invoked this principle to place reasonable restrictions on the scope of police authority to detain and search citizens"), particularly with respect to our rejection under Article 11 of the U.S. Supreme Court's good-fait

2019Park, supra , at 396. 14 Regarding the latter argument, plaintiff contends that adopting the Heien holding would be inconsistent with the broader protection we have established under Article 11, see State v. Pitts , 2009 VT 51 , ¶ 19, 186 Vt. 71 , 978 A.2d 14 (stating that this Court has construed Article 11 to provide greater protection than Fourth Amendment and has "regularly invoked this principle to place reasonable restrictions on the scope of police authority to detain and search citizens"), particularly with respect to our rejection under Article 11 of the U.S. Supreme Court's good-fait

2019Plaintiff asserts that this Court has rejected the balancing test that the U.S. Supreme Court applies in its Fourth Amendment jurisprudence, see State v. Savva , 159 Vt. 75 , 85-86, 616 A.2d 774 , 780 (1991) (stating that Article 11's warrant requirement itself reflects "the balance reached by the constitutional drafters, a balance in which the individual's interest in privacy outweighs the burdens imposed on law enforcement"), as exemplified by our rejection of the good-faith exception to the exclusionary rule.

2019Plaintiff asserts that this Court has rejected the balancing test that the U.S. Supreme Court applies in its Fourth Amendment jurisprudence, see State v. Savva , 159 Vt. 75 , 85-86, 616 A.2d 774 , 780 (1991) (stating that Article 11's warrant requirement itself reflects "the balance reached by the constitutional drafters, a balance in which the individual's interest in privacy outweighs the burdens imposed on law enforcement"), as exemplified by our rejection of the good-faith exception to the exclusionary rule.

1991See Harlow, 457 U.S. at 818 (good faith depends “on the objective reasonableness of an official’s conduct, as measured by reference to clearly established law”).

1989In applying the good-faith test to issues.of qualified immunity, we adopt the standard enunciated in Harlow v. Fitzgerald, 457 U.S. 800 (1982), in which the U.S. Supreme Court embraced an objective test for ascertaining the existence or absence of bad faith: [B]are allegations of malice should not suffice to subject government officials either to the costs of trial or to the burdens of broad-reaching discovery. . . . [Government officials performing discretionary functions [] generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established s

2012Affirmed. 1 The court divided plaintiffs factual allegations into two categories, undisputed and disputed, assumed the latter to be true, and dealt with them as though defendant’s motion for summary judgment was a motion to dismiss. 2 As we later explained, when protected by absolute immunity an official’s malicious motive or intent is “irrelevant, since a good-faith test is imposed only when qualified immunity is available.” Levinsky v. Diamond, 151 Vt. 178, 193-94 , 559 A.2d 1073, 1084 (1989); see also Muzzy v. State, 155 Vt. 279, 281 , 583 A.2d 82, 83 (1990) (observing that when prosecutor

2012Affirmed. 1 The court divided plaintiffs factual allegations into two categories, undisputed and disputed, assumed the latter to be true, and dealt with them as though defendant’s motion for summary judgment was a motion to dismiss. 2 As we later explained, when protected by absolute immunity an official’s malicious motive or intent is “irrelevant, since a good-faith test is imposed only when qualified immunity is available.” Levinsky v. Diamond, 151 Vt. 178, 193-94 , 559 A.2d 1073, 1084 (1989); see also Muzzy v. State, 155 Vt. 279, 281 , 583 A.2d 82, 83 (1990) (observing that when prosecutor

2012Affirmed. 1 The court divided plaintiffs factual allegations into two categories, undisputed and disputed, assumed the latter to be true, and dealt with them as though defendant’s motion for summary judgment was a motion to dismiss. 2 As we later explained, when protected by absolute immunity an official’s malicious motive or intent is “irrelevant, since a good-faith test is imposed only when qualified immunity is available.” Levinsky v. Diamond, 151 Vt. 178, 193-94 , 559 A.2d 1073, 1084 (1989); see also Muzzy v. State, 155 Vt. 279, 281 , 583 A.2d 82, 83 (1990) (observing that when prosecutor

2012Affirmed. 1 The court divided plaintiffs factual allegations into two categories, undisputed and disputed, assumed the latter to be true, and dealt with them as though defendant’s motion for summary judgment was a motion to dismiss. 2 As we later explained, when protected by absolute immunity an official’s malicious motive or intent is “irrelevant, since a good-faith test is imposed only when qualified immunity is available.” Levinsky v. Diamond, 151 Vt. 178, 193-94 , 559 A.2d 1073, 1084 (1989); see also Muzzy v. State, 155 Vt. 279, 281 , 583 A.2d 82, 83 (1990) (observing that when prosecutor

2009In the present appeal, the complete application was before the Zoning Administrator for no more than eight days before she referred it to the Planning Commission.9 Applicant argues that the Zoning Administrator should not 7 The referral language in § 4448(d) clarifies the referral issue as discussed in Wesco, Inc. v. City of Montpelier, 169 Vt. 520, 526-27 (1999). 8 The term “appropriate municipal panel” is used in the statute in the sense of whichever of the three bodies (zoning board of adjustment, planning commission, or development review board) performs the relevant functions in a particu

2008In re Ross, 151 Vt. 54, 57 (1989); see also In re Presault, 132 Vt. at 474 (“the intervening adoption of a master plan is, by itself, ineffective to derail proceedings validly brought and pursued in good faith to implement rights available under previous law.”) and In re Handy, 171 Vt. at 350 (noting the good faith requirement for vested rights analysis in both zoning and Act 250 cases).

2008In re Ross, 151 Vt. 54, 57 (1989); see also In re Presault, 132 Vt. at 474 (“the intervening adoption of a master plan is, by itself, ineffective to derail proceedings validly brought and pursued in good faith to implement rights available under previous law.”) and In re Handy, 171 Vt. at 350 (noting the good faith requirement for vested rights analysis in both zoning and Act 250 cases).

2008In re Ross, 151 Vt. 54, 57 (1989); see also In re Presault, 132 Vt. at 474 (“the intervening adoption of a master plan is, by itself, ineffective to derail proceedings validly brought and pursued in good faith to implement rights available under previous law.”) and In re Handy, 171 Vt. at 350 (noting the good faith requirement for vested rights analysis in both zoning and Act 250 cases).

1991See id. at 957 (Brennan, J., dissenting) (“[T]he good-faith exception will encourage police to provide only the bare minimum of information in future warrant applications.”); State v. Marsala, 216 Conn. 150, 169 , 579 A.2d 58, 67 (1990) (“the good faith exception would encourage some police officers to expend less effort in establishing the necessary probable cause to search and more effort in locating a judge who might be less exacting than some others”); Wasserstrom & Mertens, The Exclusionary Rule on the Scaffold: But Was It a Fair Trial?, 22 Am.

1991See id. at 957 (Brennan, J., dissenting) (“[T]he good-faith exception will encourage police to provide only the bare minimum of information in future warrant applications.”); State v. Marsala, 216 Conn. 150, 169 , 579 A.2d 58, 67 (1990) (“the good faith exception would encourage some police officers to expend less effort in establishing the necessary probable cause to search and more effort in locating a judge who might be less exacting than some others”); Wasserstrom & Mertens, The Exclusionary Rule on the Scaffold: But Was It a Fair Trial?, 22 Am.

1991“Despite the Court’s gradual compression of the scope of the exclusionary rule, no decision prior to United States v. Leon expressly contradicted the established principle that evidence illegally obtained was inadmissible in the government’s case-in-chief in criminal prosecutions.” State v. Novembrino, 105 N.J. 95, 138-39 , 519 A.2d 820, 845 (1987).

1991“Despite the Court’s gradual compression of the scope of the exclusionary rule, no decision prior to United States v. Leon expressly contradicted the established principle that evidence illegally obtained was inadmissible in the government’s case-in-chief in criminal prosecutions.” State v. Novembrino, 105 N.J. 95, 138-39 , 519 A.2d 820, 845 (1987).

1991The benefits of the exclusionary rule are hard to measure because they consist of "non-events." "Police compliance with the exclusionary rule produces a non-event which is not directly observable—it consists of not conducting an illegal search." Morris, The Exclusionary Rule, Deterrence and Posner's Economic Analysis of Law, 57 Wash.L.Rev. 647, 653 (1982) (emphasis in original); see United States v. Janis, 428 U.S. 433, 453 , 96 S.Ct. 3021, 3031 , 49 L.Ed.2d 1046 (1976) ("`Since as a practical matter it is never easy to prove a negative, it is hardly likely that conclusive factual data could e

1991The benefits of the exclusionary rule are hard to measure because they consist of "non-events." "Police compliance with the exclusionary rule produces a non-event which is not directly observable—it consists of not conducting an illegal search." Morris, The Exclusionary Rule, Deterrence and Posner's Economic Analysis of Law, 57 Wash.L.Rev. 647, 653 (1982) (emphasis in original); see United States v. Janis, 428 U.S. 433, 453 , 96 S.Ct. 3021, 3031 , 49 L.Ed.2d 1046 (1976) ("`Since as a practical matter it is never easy to prove a negative, it is hardly likely that conclusive factual data could e

1991Mitchell , 472 U.S at 528; see also Wright v. South Arkansas Regional Health Ctr, Inc., 800 F.2d 199 , 202-03 (8th Cir. 1986) (summary judgment immediately appeal-able even where premised on lack of evidence rather than lack of clearly established law).

1991The benefits of the exclusionary rule are hard to measure because they consist of "non-events." "Police compliance with the exclusionary rule produces a non-event which is not directly observable—it consists of not conducting an illegal search." Morris, The Exclusionary Rule, Deterrence and Posner's Economic Analysis of Law, 57 Wash.L.Rev. 647, 653 (1982) (emphasis in original); see United States v. Janis, 428 U.S. 433, 453 , 96 S.Ct. 3021, 3031 , 49 L.Ed.2d 1046 (1976) ("`Since as a practical matter it is never easy to prove a negative, it is hardly likely that conclusive factual data could e

1991The benefits of the exclusionary rule are hard to measure because they consist of "non-events." "Police compliance with the exclusionary rule produces a non-event which is not directly observable—it consists of not conducting an illegal search." Morris, The Exclusionary Rule, Deterrence and Posner's Economic Analysis of Law, 57 Wash.L.Rev. 647, 653 (1982) (emphasis in original); see United States v. Janis, 428 U.S. 433, 453 , 96 S.Ct. 3021, 3031 , 49 L.Ed.2d 1046 (1976) ("`Since as a practical matter it is never easy to prove a negative, it is hardly likely that conclusive factual data could e

1991States rejecting the exception on state constitutional grounds include: State v. Marsala, 216 Conn. 150 , 579 A.2d 58 passim (1990); State v. Novembrino, 105 N.J. 95 , 519 A.2d 820 passim (1987); People v. Bigelow, 66 N.Y.2d 417, 427 , 488 N.E.2d 451, 458 , 497 N.Y.S.2d 630, 637 (1985); State v. Carter, 322 N.C. 709 , 370 S.E.2d 553 passim (1988); Commonwealth v. Edmunds, 526 Pa. 374 , 586 A.2d 887 passim (1991); see also Stringer v. State, 491 So. 2d 837, 841 (Miss. 1986) (Robertson, J., concurring).

1991States rejecting the exception on state constitutional grounds include: State v. Marsala, 216 Conn. 150 , 579 A.2d 58 passim (1990); State v. Novembrino, 105 N.J. 95 , 519 A.2d 820 passim (1987); People v. Bigelow, 66 N.Y.2d 417, 427 , 488 N.E.2d 451, 458 , 497 N.Y.S.2d 630, 637 (1985); State v. Carter, 322 N.C. 709 , 370 S.E.2d 553 passim (1988); Commonwealth v. Edmunds, 526 Pa. 374 , 586 A.2d 887 passim (1991); see also Stringer v. State, 491 So.2d 837, 841 (Miss.1986) (Robertson, J., concurring).

1991See Owen v. City of Independence, 445 U.S. 622, 649 (1980) (§ 1983 requires inquiry into whether defendant “has conformed to the requirements of the Federal Constitution and statutes”); Baker v. McCollan, 443 U.S. 137,146 (1979) (“Section 1983 imposes liability for violations of rights protected by the Constitution, not for violations of duties of care arising out of tort law.”).

1991See Owen v. City of Independence, 445 U.S. 622, 649 (1980) (§ 1983 requires inquiry into whether defendant “has conformed to the requirements of the Federal Constitution and statutes”); Baker v. McCollan, 443 U.S. 137,146 (1979) (“Section 1983 imposes liability for violations of rights protected by the Constitution, not for violations of duties of care arising out of tort law.”).

1991States rejecting the exception on state constitutional grounds include: State v. Marsala, 216 Conn. 150 , 579 A.2d 58 passim (1990); State v. Novembrino, 105 N.J. 95 , 519 A.2d 820 passim (1987); People v. Bigelow, 66 N.Y.2d 417, 427 , 488 N.E.2d 451, 458 , 497 N.Y.S.2d 630, 637 (1985); State v. Carter, 322 N.C. 709 , 370 S.E.2d 553 passim (1988); Commonwealth v. Edmunds, 526 Pa. 374 , 586 A.2d 887 passim (1991); see also Stringer v. State, 491 So. 2d 837, 841 (Miss. 1986) (Robertson, J., concurring).

1991States rejecting the exception on state constitutional grounds include: State v. Marsala, 216 Conn. 150 , 579 A.2d 58 passim (1990); State v. Novembrino, 105 N.J. 95 , 519 A.2d 820 passim (1987); People v. Bigelow, 66 N.Y.2d 417, 427 , 488 N.E.2d 451, 458 , 497 N.Y.S.2d 630, 637 (1985); State v. Carter, 322 N.C. 709 , 370 S.E.2d 553 passim (1988); Commonwealth v. Edmunds, 526 Pa. 374 , 586 A.2d 887 passim (1991); see also Stringer v. State, 491 So. 2d 837, 841 (Miss. 1986) (Robertson, J., concurring).