warrant requirement in Vermont

2018And while some warrantless searches are permissible, any exception to the warrant requirement "must be jealously and carefully drawn." State v. Savva , 159 Vt. 75 , 85, 616 A.2d 774 , 779 (1991) (quotation omitted).

2018And while some warrantless searches are permissible, any exception to the warrant requirement "must be jealously and carefully drawn." State v. Savva , 159 Vt. 75 , 85, 616 A.2d 774 , 779 (1991) (quotation omitted).

2023“That value finds its purest expression in the warrant requirement.” State v. Geraw, 173 Vt. 350, 357 , 795 A.2d 1219, 1225 (2002); see also Carpenter, 138 S. Ct. at 2213 (“When an individual seeks to preserve something as private, and his expectation of privacy is one that society is prepared to recognize as reasonable, we have held that official intrusion into that private sphere generally qualifies as a search [under the Fourth Amendment] and requires a warrant supported by probable cause.” (quotation omitted)).

2023“That value finds its purest expression in the warrant requirement.” State v. Geraw, 173 Vt. 350, 357 , 795 A.2d 1219, 1225 (2002); see also Carpenter, 138 S. Ct. at 2213 (“When an individual seeks to preserve something as private, and his expectation of privacy is one that society is prepared to recognize as reasonable, we have held that official intrusion into that private sphere generally qualifies as a search [under the Fourth Amendment] and requires a warrant supported by probable cause.” (quotation omitted)).

2021Under the plain view doctrine, “if police are lawfully in a position from which they view an object, if its incriminating character is immediately apparent, and if the officers have a lawful right of access to the object, they may seize it without a warrant.” In re Search Warrant, 2012 VT 102, ¶ 35 , 193 Vt. 51 , 71 A.3d 1158 (quoting Minnesota v. Dickerson, 508 U.S. 366, 375 (1993)).

2021Under the plain-view doctrine, “if police are lawfully in a position from which they view an object, if its incriminating character is immediately apparent, and if the officers have a lawful right of access to the object, they may seize it without a warrant.” In re Search Warrant, 2012 VT 102, ¶ 35 , 193 Vt. 51 , 71 A.3d 1158 (quoting Minnesota v. Dickerson, 508 U.S. 366, 375 (1993)).

2004Exigent circumstances are a well-established exception to the warrant requirement, Coolidge, 403 U.S. at 454-55 , even in cases involving the seizure of animals.

1985Because the officers inadvertently discovered incriminating data in the unsought non-Medicaid prescriptions, the court held that seizure of the documents was permitted under the “plain view” exception to the warrant requirement, as set forth in Coolidge v. New Hampshire, 403 U.S. 443 (1971).

2010See Mountford, 171 Vt. at 489-90 , 769 A.2d at 643-44 (setting out contours of emergency aid exception); State v. Connolly, 133 Vt. 565, 571 , 350 A.2d 364, 368 (1975) (recognizing “officers responding to an emergency” as exception to warrant requirement); see also Mincey v. Arizona, 437 U.S. 385, 392 (1978) (“We do not question the right of the police to respond to emergency situations.”).

2000As an adjunct to, or part of, the community caretaking exception to the warrant requirement, courts have recognized an exception *490 for entry to render emergency assistance. * The United States Supreme Court recognized such an exception in Mincey v. Arizona, 437 U.S. 385, 392-93 (1978), and this Court did so in State v. Connolly, 133 Vt. 565, 571 , 350 A.2d 364, 368 (1975), although neither case sets out the contours of the exception.

2021In short, “[t]he fact that an officer is interested in an item of evidence and fully expects to find it in the course of a search should not invalidate its seizure if the search is confined in area and duration by . . . a valid exception to the warrant requirement.” Id.

2021In short, “[t]he fact that an officer is interested in an item of evidence and fully expects to find it in the course of a search should not invalidate its seizure if the search is confined in area and duration by . . . a valid exception to the warrant requirement.” Id.

2012We have explained the plain view doctrine as an “exception to the warrant requirement.” Trudeau, 165 Vt. at 358 , 683 A.2d at 727 . ¶ 48.

2012We have explained the plain view doctrine as an “exception to the warrant requirement.” Trudeau, 165 Vt. at 358 , 683 A.2d at 727 . ¶ 48.

2017I, art. 11. 10 This "special need" analysis arose from federal case law; specifically, Griffin v. Wisconsin established that probation supervision was a "special need" that made the warrant requirement impracticable and justified replacing the "probable cause" standard with a "reasonable grounds" standard. 483 U.S. 868 , 875-76, 107 S.Ct. 3164 , 97 L.Ed.2d 709 (1987).

2017I, art. 11. 10 This "special need" analysis arose from federal case law; specifically, Griffin v. Wisconsin established that probation supervision was a "special need" that made the warrant requirement impracticable and justified replacing the "probable cause" standard with a "reasonable grounds" standard. 483 U.S. 868 , 875-76, 107 S.Ct. 3164 , 97 L.Ed.2d 709 (1987).

2010As with other exceptions to the warrant requirement, “the burden is on the prosecution to show that the search falls into [this exception].” Mountford, 171 Vt. at 493 , 769 A.2d at 646 (quotation omitted). ¶ 13.

2010As with other exceptions to the warrant requirement, “the burden is on the prosecution to show that the search falls into [this exception].” Mountford, 171 Vt. at 493 , 769 A.2d at 646 (quotation omitted). ¶ 13.

2012Cf. State v. Geraw, 173 Vt. 350, 356 , 795 A.2d 1219, 1224 (2002) (“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.’ ” (quoting United States v. White, 401 U.S. 745, 783 (1971) (Harlan, J., dissenting))).

2012Cf. State v. Geraw , 173 Vt. 350, 356 , 795 A.2d 1219, 1224 (2002) (“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.’ ” (quoting United States v. White , 401 U.S. 745, 783 (1971) (Harlan, J., dissenting))).

2021United States v. Jacobsen, 466 U.S. 109, 113 (1984); State v. Bryant, 2008 VT 39, ¶ 11 , 183 Vt. 355 , 950 A.2d 467 .

2021United States v. Jacobsen, 466 U.S. 109, 113 (1984); State v. Bryant, 2008 VT 39, ¶ 11 , 183 Vt. 355 , 950 A.2d 467 .

2021See Jardines, 569 U.S. at 6 .

2021See Jardines, 569 U.S. at 6 .

2020See Birchfield v. North Dakota, __ U.S. __, 136 S. Ct. 2160, 2174-85 (2016). 4 under Article 11 because those warnings describe civil and criminal refusal penalties which burden the constitutional right to refuse a warrantless evidentiary breath test.3 But although defendants challenge the trial court’s determination as to the voluntariness of their respective consents to search, they do not contest the factual findings on which that conclusion was predicated.

2018Id. at ----, ----, 136 S.Ct. at 2176-77, 2186 (noting that "reasonableness is always the touchstone of Fourth Amendment analysis").

2019See, e.g., People v. Waxler , 224 Cal. App. 4th 712 , 725, 168 Cal.Rptr.3d 822 (2014) (holding that "a law enforcement officer may search a vehicle pursuant to the automobile exception to the warrant requirement where the officer smells burnt marijuana and sees burnt marijuana in the defendant's car"); Brown v. State , 311 Ga.App. 405 , 715 S.E.2d 802 , 805 (2011) (concluding that smell of marijuana in car, in addition to flakes of marijuana on floorboards of car and suspect's visible agitation, gave officer probable cause to believe vehicle contained contraband); see also A. Ben-Yosef, Annota

2019See, e.g., People v. Waxler , 224 Cal. App. 4th 712 , 725, 168 Cal.Rptr.3d 822 (2014) (holding that "a law enforcement officer may search a vehicle pursuant to the automobile exception to the warrant requirement where the officer smells burnt marijuana and sees burnt marijuana in the defendant's car"); Brown v. State , 311 Ga.App. 405 , 715 S.E.2d 802 , 805 (2011) (concluding that smell of marijuana in car, in addition to flakes of marijuana on floorboards of car and suspect's visible agitation, gave officer probable cause to believe vehicle contained contraband); see also A. Ben-Yosef, Annota

2018Id. ; see also State v. Medina , 2014 VT 69 , ¶ 13, 197 Vt. 63 , 102 A.3d 661 ("Warrantless searches are ... per se unreasonable."); State v. Morris , 165 Vt. 111 , 115, 680 A.2d 90 , 93 (1996) ("The first and foremost line of protection is the warrant requirement.").

2018Id. ; see also State v. Medina , 2014 VT 69 , ¶ 13, 197 Vt. 63 , 102 A.3d 661 ("Warrantless searches are ... per se unreasonable."); State v. Morris , 165 Vt. 111 , 115, 680 A.2d 90 , 93 (1996) ("The first and foremost line of protection is the warrant requirement.").

2000As an adjunct to, or part of, the community caretaking exception to the warrant requirement, courts have recognized an exception *490 for entry to render emergency assistance. * The United States Supreme Court recognized such an exception in Mincey v. Arizona, 437 U.S. 385, 392-93 (1978), and this Court did so in State v. Connolly, 133 Vt. 565, 571 , 350 A.2d 364, 368 (1975), although neither case sets out the contours of the exception.

2000As an adjunct to, or part of, the community caretaking exception to the warrant requirement, courts have recognized an exception *490 for entry to render emergency assistance. * The United States Supreme Court recognized such an exception in Mincey v. Arizona, 437 U.S. 385, 392-93 (1978), and this Court did so in State v. Connolly, 133 Vt. 565, 571 , 350 A.2d 364, 368 (1975), although neither case sets out the contours of the exception.

2009People v. Diaz, 612 N.E.2d 298, 299, 303 (N.Y. 1993) (declining to adopt “plain-feel” exception as extension of “plain-view” exception, and citing other states that at the time had arrived at the same conclusion). 2 The New York high court recognized that “plain feel” is inherently less reliable and more intrusive than “plain view,” further reasoning that “plain view” cannot logically be extended to concealed items whose identities cannot be confirmed until those items are actually seen upon a further search.

2009People v. Diaz, 81 N.Y.2d 106 , 595 N.Y.S.2d 940 , 612 N.E.2d 298, 299, 303 (N.Y.1993) (declining to adopt "plain-feel" exception as extension of "plain-view" exception, and citing other states that at the time had arrived at the same conclusion). [2] The New York high court recognized that "plain feel" is inherently less reliable and more intrusive than "plain view," further reasoning that "plain view" cannot logically be extended to concealed items whose identities cannot be confirmed until those items are actually seen upon a further search.

2008United States v. Weikert , 504 F.3d 1, 8-10 (1st Cir. 2007) (recognizing that majority of federal circuit courts apply a “totality of the circumstances” test to DNA database statutes, including the Third, Fourth, Fifth, Eighth, Ninth, Eleventh and D.C.

2008United States v. Weikert, 504 F.3d 1, 8-10 (1st Cir. 2007) (recognizing that majority of federal circuit courts apply a “totality of the circumstances” test to DNA database statutes, including the Third, Fourth, Fifth, Eighth, Ninth, Eleventh and D.C.

2008See id. at 90-91 , 624 A.2d at 1116 (Johnson, J., dissenting).

2008See id. at 90-91 , 624 A.2d at 1116 (Johnson, J., dissenting).

2007See id. at 465-66 , 101 S.Ct. 2860 (Brennan, J., dissenting) ("When the arrest has been consummated and the arrestee safely taken into custody, the justifications underlying Chimel 's limited exception to the warrant requirement cease to apply: at that point there is no possibility that the arrestee could reach weapons or contraband.").

2007See id. at 465-66 (Brennan, J., dissenting) (“When the arrest has been consummated and the arrestee safely taken into custody, the justifications underlying Chimel’s limited exception to the warrant requirement cease to apply: at that point there is no possibility that the arrestee could reach weapons or contraband.”).

2016The emergency assistance exception “provides a narrow carve-out from the warrant exception.” State v. Ford, 2010 VT 39, ¶ 11 , 188 Vt. 17 .

2016The emergency assistance exception “provides a narrow carve-out from the warrant exception.” State v. Ford, 2010 VT 39, ¶ 11 , 188 Vt. 17 .

2019See, e.g., People v. Waxler , 224 Cal. App. 4th 712 , 725, 168 Cal.Rptr.3d 822 (2014) (holding that "a law enforcement officer may search a vehicle pursuant to the automobile exception to the warrant requirement where the officer smells burnt marijuana and sees burnt marijuana in the defendant's car"); Brown v. State , 311 Ga.App. 405 , 715 S.E.2d 802 , 805 (2011) (concluding that smell of marijuana in car, in addition to flakes of marijuana on floorboards of car and suspect's visible agitation, gave officer probable cause to believe vehicle contained contraband); see also A. Ben-Yosef, Annota

2019See, e.g., People v. Waxler , 224 Cal. App. 4th 712 , 725, 168 Cal.Rptr.3d 822 (2014) (holding that "a law enforcement officer may search a vehicle pursuant to the automobile exception to the warrant requirement where the officer smells burnt marijuana and sees burnt marijuana in the defendant's car"); Brown v. State , 311 Ga.App. 405 , 715 S.E.2d 802 , 805 (2011) (concluding that smell of marijuana in car, in addition to flakes of marijuana on floorboards of car and suspect's visible agitation, gave officer probable cause to believe vehicle contained contraband); see also A. Ben-Yosef, Annota

2011See State v. Rochelean, 142 Vt. 61, 65-66 , 451 A.2d 1144, 1147 (1982) (concluding that seizure of marijuana fell within the exigent circumstances exception to warrant requirement when delaying seizure to wait for warrant would have likely resulted in destruction of evidence); Badger, 141 Vt. at 445-46 , 450 A.2d at 345-46 . ¶ 22.

2011See State v. Rochelean, 142 Vt. 61, 65-66 , 451 A.2d 1144, 1147 (1982) (concluding that seizure of marijuana fell within the exigent circumstances exception to warrant requirement when delaying seizure to wait for warrant would have likely resulted in destruction of evidence); Badger, 141 Vt. at 445-46 , 450 A.2d at 345-46 . ¶ 22.

2010The court recognized that this was a “close case,” and that “[t]he sanctity of one’s home is among our most cherished rights,” but nonetheless held that in these circumstances “the duty to preserve and protect life and the need to act decisively and promptly must outweigh the privacy interests of an individual.” Id .; accord, e.g., Mitchell , 347 N.E.2d at 611 (“Constitutional guarantees of privacy and sanctions against their transgression do not exist in a vacuum but must yield to paramount concerns for human life and the legitimate need of society to protect and preserve life.”). ¶ 35.

2010The court recognized that this was a “close case,” and that “[t]he sanctity of one’s home is among our most cherished rights,” but nonetheless held that in these circumstances “the duty to preserve and protect life and the need to act decisively and promptly must outweigh the privacy interests of an individual.” Id.; accord, e.g., Mitchell, 347 N.E.2d at 611 (“Constitutional guarantees of privacy and sanctions against their transgression do not exist in a vacuum but must yield to paramount concerns for human life and the legitimate need of society to protect and preserve life”). ¶ 35.