Divided Court affirms suppression under Chapter I, Article 11 of the Vermont Constitution, of fruits of warrantless “open fields” search, despite argument that purpose of search was to enforce fish and game regulations and defendant’s “no trespass” postings did not comport with Vermont’s hunting posting statute.

State v. Ronald Dupuis, 2018 VT 86 [filed August 17, 2018]

ROBINSON, J. In State v. Kirchoff this Court held that Chapter I, Article 11 of the Vermont Constitution protects against warrantless searches of “open fields” when the landowner objectively demonstrates his or her intent for privacy through actions such as posting “no trespass” signs. 156 Vt. 1, 10, 587 A.2d 988, 994 (1991). This case now calls on us to examine whether Article 11 provides the same protection when the warrantless search is for the purpose of enforcing hunting laws and the landowner has not strictly abided by Vermont’s regulations for posting against hunting. The State appeals from the trial court’s grant of defendant Ronald Dupuis’s motion to suppress evidence arising from a game warden’s warrantless search of his property, arguing that because defendant’s “no trespass” postings did not comport with Vermont’s hunting posting statute, he enjoyed no expectation of privacy. We disagree and affirm.

The State’s argument follows two steps. First, because defendant did not comply with § 5201 by failing to specify in his signs that hunting was prohibited, and by failing to record the signs with his town clerk for that calendar year,  members of the public could legally enter his property in order to hunt, notwithstanding his general notices against trespass. Second, because hunters could lawfully enter his property for hunting purposes, it follows that he had no reasonable expectation of privacy that would prevent game wardens seeking to enforce state fish and game laws from entering his property.

 The foundation of our analysis rests on the constitutional requirement that police get a warrant before searching most private property. That this requirement can apply to open fields when a property owner has taken sufficient steps to exclude others is well established. We reject the State’s suggestion that the Vermont constitutional provisions concerning hunting, fishing, and trapping create an exemption to the warrant requirement for game wardens investigating hunting violations on private property.

  

It does not follow that a landowner who has effectively put strangers on notice that they are not welcome on the private property surrenders the corresponding reasonable expectation of privacy by failing to take the more burdensome specific steps required to cut off the narrower right of access afforded to hunters. Defendant’s failure to provide notice satisfying the statutory requirements for posting against hunters does not constitute willing exposure of his property to the public—or to law enforcement.

CARROLL, J., dissenting.  The question in this case is not one of fact—whether the landowner put in place sufficient tangible indications such that law enforcement should have known a warrant was required for entry—but one of law—whether posting against general trespassing, but not against entry for purposes of hunting or fishing, is sufficiently indicative of a landowner’s reasonable expectation of privacy to preclude all law enforcement entry regardless of the purpose of the entry. Vt. Const. ch. II, § 67 reserves a right for Vermonters to access privately held lands for the purposes of taking fish and game under regulations promulgated by the Commissioner of Fish and Wildlife as long as those lands are not “inclosed.” It is questionable whether the objective inquiry in the reasonable expectation of privacy test is satisfied here where our Constitution reserves a right of entry onto private lands for persons engaged in taking wild fish and game and defendant took no action to exclude those engaged in the activity. And if the objective prong of the reasonable expectation of privacy test is not met, then the test in general is not met, and a warrant is not required for law enforcement entry. I believe that a rule granting the State the ability to enforce fish and game regulations where the public is, in fact, permitted to hunt and fish is simple logic I am authorized to state that Justice Eaton joins this dissent.