exclusionary rule in Vermont

2021The exclusionary rule’s deterrent effect “rests on its tendency to promote institutional compliance with [constitutional] requirements on the part of law enforcement agencies generally” rather than “on ‘penalizing’ an individual officer into future conformity with the Constitution.” State v. Oakes, 157 Vt. 171, 180 , 598 A.2d 119, 125 (1991) (quotation omitted).

2021The exclusionary rule’s deterrent effect “rests on its tendency to promote institutional compliance with [constitutional] requirements on the part of law enforcement agencies generally” rather than “on ‘penalizing’ an individual officer into future conformity with the Constitution.” State v. Oakes, 157 Vt. 171, 180 , 598 A.2d 119, 125 (1991) (quotation omitted).

2016State v. Lussier, 171 Vt. 19, 33 (2000) (holding that the exclusionary rule applies in civil suspension cases for driving under the influence); One 1958 Plymouth Sedan v. Com. of Pa., 380 U.S. 693, 700 (1965) (holding that the exclusionary rule may apply in a proceeding that is “quasi-criminal in character,” where the object of such proceeding, “like a criminal proceeding, is to penalize for the commission of an offense against the law”).

2016See, e.g., State v. Lussier, 171 Vt. 19, 33 (2000) (applying the exclusionary rule in a hearing on civil suspension of a driver’s license for drunk driving); In re One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693 , 700–02 (1965) (applying the exclusionary to rule to “quasi- criminal” civil forfeiture proceedings).

2021See State v. Badger, 141 Vt. 430, 452-53 , 450 A.2d 336, 349 (1982) (stating that introduction of evidence obtained in violation of Vermont Constitution “cannot be admitted at trial as a matter of state law” because it “eviscerates our most sacred rights, impinges on individual privacy, perverts our judicial process, distorts any notion of fairness, and encourages official misconduct”); LaFave, supra, § 1.5(c), at 243 (“The purposes for using the exclusionary rule for violations of state law . . . are essentially the same as those . . . given for suppression where the Fourth Amendment is viola

2021See State v. Badger, 141 Vt. 430, 452-53 , 450 A.2d 336, 349 (1982) (stating that introduction of evidence obtained in violation of Vermont Constitution “cannot be admitted at trial as a matter of state law” because it “eviscerates our most sacred rights, impinges on individual privacy, perverts our judicial process, distorts any notion of fairness, and encourages official misconduct”); LaFave, supra, § 1.5(c), at 243 (“The purposes for using the exclusionary rule for violations of state law . . . are essentially the same as those . . . given for suppression where the Fourth Amendment is viola

1991As the Supreme Court asserted in Leon , the exclusionary rule “operates as ‘a judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect, rather than a personal constitutional right of the party aggrieved.”’ 468 U.S. at 906 (quoting United States v. Calandra, 414 U.S. 338, 348 (1974)).

1991As the Supreme Court asserted in Leon , the exclusionary rule "operates as `a judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect, rather than a personal constitutional right of the party aggrieved.'" 468 U.S. at 906 , 104 S.Ct. at 3411 (quoting United States v. Calandra, 414 U.S. 338, 348 , 94 S.Ct. 613, 620 , 38 L.Ed.2d 561 (1974)).

1996Rev. 1441 , 1485-87 (1993) (judicial use immunity is “attractive” solution, “amenable to the realm of court-ordered therapy,” to protect interests involved). *426 The model for defendant’s solution is the exclusionary rule we crafted in State v. Begins, 147 Vt. 295 , 514 A.2d 719 (1986), where a probationer was charged with misconduct that forms the ground for both revocation of probation and an independent criminal charge.

1996Rev. 1441 , 1485-87 (1993) (judicial use immunity is “attractive” solution, “amenable to the realm of court-ordered therapy,” to protect interests involved). *426 The model for defendant’s solution is the exclusionary rule we crafted in State v. Begins, 147 Vt. 295 , 514 A.2d 719 (1986), where a probationer was charged with misconduct that forms the ground for both revocation of probation and an independent criminal charge.

2011See State v. Dupaw, 134 Vt. 451, 453 , 365 A.2d 967, 968 (1976) (noting that in deciding whether to apply the exclusionary rule, the question is whether the challenged evidence was discovered through exploitation of an illegality); Nix v. Williams, 467 U.S. 431, 444 (1984) (concluding that in situations where “the information ultimately or inevitably would have been discovered by lawful means,” the exclusionary rule does not apply). ¶ 16.

2011See State v. Dupaw, 134 Vt. 451, 453 , 365 A.2d 967, 968 (1976) (noting that in deciding whether to apply the exclusionary rule, the question is whether the challenged evidence was discovered through exploitation of an illegality); Nix v. Williams, 467 U.S. 431, 444 , 104 S.Ct. 2501 , 81 L.Ed.2d 377 (1984) (concluding that in situations where "the information ultimately or inevitably would have been discovered by lawful means," the exclusionary rule does not apply). ¶ 16.

1996Instead, ‘the rule is a judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect....’” In re Saunders, 138 Vt. 259, 262-63 , 415 A.2d 199, 201 (1980) (quoting Stone v. Powell, 428 U.S. 465, 486 (1976)) (emphasis added) (quoting United States v. Calandra, 414 U.S. 338, 348 (1974)).

1980In this regard, we are guided by the words of Mr. Justice Powell in his majority opinion in Stone v. Powell, 428 U.S. 465 (1976), where, after a review of the history of the exclusionary rule, he states: The primary justification for the exclusionary rule then is the deterrence of police conduct that violates Fourth *263 Amendment rights.

2016See State v. Hawkins, 2013 VT 5, ¶ 20 , 193 Vt. 297 , 67 A.3d 230 (“The question in most cases, therefore, is whether the chain of causation proceeding from the unlawful conduct has become so attenuated or has been interrupted by some intervening circumstance so as to remove the taint imposed upon that evidence by the original illegality.” (quotations omitted)); see also Murray v. United States, 487 U.S. 533, 536-37 (1988) (“[T]he exclusionary 13 rule also prohibits the introduction of derivative evidence . . . that is the product of the primary evidence, or that is otherwise acquired as an in

2008The exclusionary rule prohibits the introduction of evidence directly resulting from unconstitutional conduct and also “prohibits the introduction of derivative evidence . . . that is the product of the primary evidence, or that is otherwise acquired as an indirect result of the unlawful search, up to the point at which the connection with the unlawful search becomes ‘so attentuated as to dissipate the taint.’ ” Murray v. United States, 487 U.S. 533, 536-37 (1988) (quoting Nardone v. United States, 308 U.S. 338, 341 (1939)); accord Wong Sun v. United States, 371 U.S. 471, 484-85 (1963).

2016Id. at 299 , 514 A.2d at 722 ; see Kastigar v. United States, 406 U.S. 441, 462 (1972) (requiring grant of amnesty where government “coerces a defendant into incriminating himself’).

1986This rule is patterned after the use and fruits immunity rule adopted by the United States Supreme Court in Kastigar v. United States, 406 U.S. 441, 462 (1972).

2011See State v. Dupaw, 134 Vt. 451, 453 , 365 A.2d 967, 968 (1976) (noting that in deciding whether to apply the exclusionary rule, the question is whether the challenged evidence was discovered through exploitation of an illegality); Nix v. Williams, 467 U.S. 431, 444 (1984) (concluding that in situations where “the information ultimately or inevitably would have been discovered by lawful means,” the exclusionary rule does not apply). ¶ 16.

2011See State v. Dupaw, 134 Vt. 451, 453 , 365 A.2d 967, 968 (1976) (noting that in deciding whether to apply the exclusionary rule, the question is whether the challenged evidence was discovered through exploitation of an illegality); Nix v. Williams, 467 U.S. 431, 444 (1984) (concluding that in situations where “the information ultimately or inevitably would have been discovered by lawful means,” the exclusionary rule does not apply). ¶ 16.

2011See State v. Phillips, 140 Vt. 210, 218 , 436 A.2d 746, 751 (1981) (noting that inquiry must be “whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint” (quotation omitted)); see also United States v. Ramirez, 523 U.S. 65 , 72 n.3 (1998) (application of the exclusionary rule depends on the existence of a “sufficient causal relationship” between the unlawful conduct and the discovery of the evidence).

2011See State v. Phillips, 140 Vt. 210, 218 , 436 A.2d 746, 751 (1981) (noting that inquiry must be “whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint” (quotation omitted)); see also United States v. Ramirez, 523 U.S. 65 , 72 n.3 (1998) (application of the exclusionary rule depends on the existence of a “sufficient causal relationship” between the unlawful conduct and the discovery of the evidence).

2011See State v. Phillips, 140 Vt. 210, 218 , 436 A.2d 746, 751 (1981) (noting that inquiry must be “whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint” (quotation omitted)); see also United States v. Ramirez, 523 U.S. 65 , 72 n.3 (1998) (application of the exclusionary rule depends on the existence of a “sufficient causal relationship” between the unlawful conduct and the discovery of the evidence).

2011See State v. Phillips, 140 Vt. 210, 218 , 436 A.2d 746, 751 (1981) (noting that inquiry must be "whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead *395 by means sufficiently distinguishable to be purged of the primary taint" (quotation omitted)); see also United States v. Ramirez, 523 U.S. 65 , 72 n. 3, 118 S.Ct. 992 , 140 L.Ed.2d 191 (1998) (application of the exclusionary rule depends on the existence of a "sufficient causal relationship" between the unlawful conduct and th

2009As we noted in State v. Passino, 154 Vt. 377, 380 , 577 A.2d 281, 284 (1990), “the determination that the defendant can be held without bail must rest on a finding that the State has the evidence to convict.” Under Passino , “if the challenge [to evidence offered at a bail hearing] is based on the application of an exclusionary rule because the use of the evidence would violate the constitutional rights of the defendant, the court should engage in a two-step process.” Id. at 382 , 577 A.2d at 285 . ¶ 10.

2009As we noted in State v. Passino, 154 Vt. 377, 380 , 577 A.2d 281, 284 (1990), “the determination that the defendant can be held without bail must rest on a finding that the State has the evidence to convict.” Under Passino , “if the challenge [to evidence offered at a bail hearing] is based on the application of an exclusionary rule because the use of the evidence would violate the constitutional rights of the defendant, the court should engage in a two-step process.” Id. at 382 , 577 A.2d at 285 . ¶ 10.

2002See, e.g., State v. Laflin, 160 Vt. 198, 201 , 627 A.2d 344, 346 (1993); State v. Badger, 141 Vt. 430, 452-53 , 450 A.2d 336, 349 (1982).

2002See, e.g., State v. Laflin, 160 Vt. 198, 201 , 627 A.2d 344, 346 (1993); State v. Badger, 141 Vt. 430, 452-53 , 450 A.2d 336, 349 (1982).

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

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.

2018The exclusionary rule is a judicially created rule "designed to safeguard Fourth Amendment rights generally through its deterrent effect." Herring v. United States , 555 U.S. 135 , 139-40, 172 L.Ed.2d 496 (2009) (quotation omitted).

2018The exclusionary rule is a judicially created rule "designed to safeguard Fourth Amendment rights generally through its deterrent effect." Herring v. United States , 555 U.S. 135 , 139-40, 172 L.Ed.2d 496 (2009) (quotation omitted).

2016State v. Lussier, 171 Vt. 19, 33 (2000) (holding that the exclusionary rule applies in civil suspension cases for driving under the influence); One 1958 Plymouth Sedan v. Com. of Pa., 380 U.S. 693, 700 (1965) (holding that the exclusionary rule may apply in a proceeding that is “quasi-criminal in character,” where the object of such proceeding, “like a criminal proceeding, is to penalize for the commission of an offense against the law”).

2016See, e.g., State v. Lussier, 171 Vt. 19, 33 (2000) (applying the exclusionary rule in a hearing on civil suspension of a driver’s license for drunk driving); In re One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693 , 700–02 (1965) (applying the exclusionary to rule to “quasi- criminal” civil forfeiture proceedings).

2016In re Rosenberger, 2009 VT 18, ¶ 17 , 185 Vt. 343 (“In simplistic terms, the exclusionary rule is a criminal-law doctrine precluding the admission of evidence directly obtained as the result of unconstitutional police conduct”).

2016In re Rosenberger, 2009 VT 18, ¶ 17 , 185 Vt. 343 (“In simplistic terms, the exclusionary rule is a criminal-law doctrine precluding the admission of evidence directly obtained as the result of unconstitutional police conduct”).

2021Institutional compliance with search-and-seizure law by Vermont law enforcement agencies will not be compromised by admitting in Vermont criminal proceedings evidence lawfully obtained by 27 federal Border Patrol agents independently of any state conduct, as was the case here. 10 See State v. Allard, 313 A.2d 439, 451 (Me. 1973) (stating that Customs officials turning over lawfully obtained evidence to state law enforcement “does not promote improper conduct by either local police or Customs agents”); Commonwealth v. Brown, 925 N.E.2d 845, 851 (Mass. 2010) (concluding that where federal agents

2021Rennis, 2014 VT 8, ¶¶ 14-15 (“Where we have determined that Article 11 does not apply, it also does not provide the remedy of the exclusionary rule.”); see also State v. Bradley, 719 P.2d 546, 549 (Wash. Ct. App. 1986) (stating that because state law cannot control federal officers’ conduct, several courts “have concluded that evidence lawfully obtained under federal standards by United States Customs officials is admissible in state court even if the search and seizure would have violated state law”).

2021Institutional compliance with search-and-seizure law by Vermont law enforcement agencies will not be compromised by admitting in Vermont criminal proceedings evidence lawfully obtained by 27 federal Border Patrol agents independently of any state conduct, as was the case here. 10 See State v. Allard, 313 A.2d 439, 451 (Me. 1973) (stating that Customs officials turning over lawfully obtained evidence to state law enforcement “does not promote improper conduct by either local police or Customs agents”); Commonwealth v. Brown, 925 N.E.2d 845, 851 (Mass. 2010) (concluding that where federal agents

2021Institutional compliance with search-and-seizure law by Vermont law enforcement agencies will not be compromised by admitting in Vermont criminal proceedings evidence lawfully obtained by 27 federal Border Patrol agents independently of any state conduct, as was the case here. 10 See State v. Allard, 313 A.2d 439, 451 (Me. 1973) (stating that Customs officials turning over lawfully obtained evidence to state law enforcement “does not promote improper conduct by either local police or Customs agents”); Commonwealth v. Brown, 925 N.E.2d 845, 851 (Mass. 2010) (concluding that where federal agents

2021Rennis, 2014 VT 8, ¶¶ 14-15 (“Where we have determined that Article 11 does not apply, it also does not provide the remedy of the exclusionary rule.”); see also State v. Bradley, 719 P.2d 546, 549 (Wash. Ct. App. 1986) (stating that because state law cannot control federal officers’ conduct, several courts “have concluded that evidence lawfully obtained under federal standards by United States Customs officials is admissible in state court even if the search and seizure would have violated state law”).