STATE OF VERMONT
Docket No. 199-3-18 Bncr
State of Vermont
DECISION ON MOTION
Defendant Stanley Szewczyk is charged with attempting to take big game by illegal means contrary to 10 V.S.A. § 4747 and baiting deer contrary to 10 V.S.A. Appendix § 37-10. The matter is before the court on his Motion to Suppress and Dismiss, in which he argues that the evidence against him was obtained in violation of Chapter I, Article 11 of the Vermont Constitution. A two-day motion hearing was held on December 14, 2018 and April 19, 2019, during which the court heard testimony from multiple witnesses. For the reasons set forth below, Defendant’s Motion to Suppress and Dismiss is GRANTED and both counts of the information are DISMISSED without prejudice.
FINDINGS OF FACT
The following facts are found by a preponderance of evidence for purposes of this motion.
In October 2016, Defendant and his brother, Stanley Szewczyk, bought a 153-acre parcel of land near Rupert, Vermont. The property is bounded by forest and accessible from only one road, which leads to a dirt driveway and a gate. Within weeks of closing on the purchase, Defendant, his brother, and their friend Russell Bardenhagen posted no-trespassing signs around the perimeter of the property. The signs were posted 30 to 40 yards apart, along an existing blazed line of trees delineating the proper
In the summer of 2017, Defendant and his brother hired Nicholas Smith, a licensed Vermont forester, to install food plots on the property. Mr. Smith went to the property in May and July 2017 and saw no-trespassing signs on the gate and on trees to the left of the gate.
Also in July 2017, James Harrington visited his camp on adjacent land and noticed that Defendant’s property was posted. He also saw that a no-trespassing sign had been posted on what he considered his land. He removed the sign and left it on Defendant’s gate with a note.
A piece of old, barbed-wire fence with PVC pipes delineated the property line that is the subject of this motion.
On November 5, 2017, Game Warden Jackman received information from an undisclosed informant that there was a baited hunting stand on Defendant’s property. That same day, the informant led the warden into the property following a disused logging path. The two entered the property on a different side than the road and gate described above. The area was remote and the terrain rough. A piece of old barbed-wire fence with PVC pipes delineated the property line in the vicinity. The informant led the warden to a bait stand in the interior of the property. The warden walked farther into the property on his own and found a second bait stand. Warden Jackman did not see any no-trespassing signs or fencing when he entered the property. He did not know who owned the property at that time, he did not walk along the property line to determine if the land was posted, and he made no other inquiries regarding demarcation or ownership.
On November 11, 2017—opening day of the hunting season—Warden Jackman returned to the property with another warden, Sargent Buttle. The two entered the property following the same path Warden Jackman used on November 5. Neither officer observed no-trespassing signs, nor did they walk the property line to ascertain whether sings were posted. Warden Jackman assumed a surveillance position near one bait stand, Sargent Buttle near the second. Defendant and his brother eventually came to the stands to hunt. They were both subsequently charged with attempting to take big game by illegal means contrary to 10 V.S.A. § 4747 and baiting deer contrary to 10 V.S.A. Appendix § 37-10.
On November 29, 2017, Defendant’s brother, Stanley Szewczyk, recorded the land with the town clerk pursuant to 10 V.S.A. § 5201 as posted against hunting, shooting, trapping, and fishing.
On September 20, 2018, Sargent Buttle returned to the property following the same path the wardens took in November 2017 and photographed a no-trespassing sign, which he maintains they would have seen if it had been there in November 2017.
Defendant moves to suppress the evidence against him as obtained in violation of Chapter I, Article 11 of the Vermont Constitution and to dismiss the charges under V.R.Cr.P. 12(d).
CONCLUSIONS OF LAW
It is well settled that “[e]vidence obtained in violation of the Vermont Constitution, or as the result of a violation, cannot be admitted at trial.” State v. Badger, 141 Vt. 430, 452–53 (1982). “Introduction of such evidence at trial eviscerates our most sacred rights, impinges on individual privacy, perverts our judicial process, distorts any notion of fairness, and encourages official misconduct.” Id. at 453. Thus, if the wardens’ actions on November 5 and 11, 2017 violated the Constitution, all the evidence they obtained must be suppressed.
Article 11 protects the people of this State against “unreasonable government intrusions into legitimate expectations of privacy.” State v. Dupuis, 2018 VT 86, ¶ 7 (quoting State v. Bryant, 2008 VT 39, ¶ 10, 183 Vt. 355). Absent certain exceptions, police officers must obtain a warrant before entering private property. Id. A warrantless search is presumptively unreasonable. State v. Medina, 2014 VT 69, ¶ 13, 197 Vt. 63; Bryant, 2008 VT 39, ¶ 10. The warrant requirement is “the balance reached by the constitutional drafters, a balance in which the individual’s interest in privacy outweighs the burdens imposed on law enforcement, such that those subjected to searches must be ‘protected by advance judicial approval.’” State v. Savva, 159 Vt. 75, 85–86 (1991). Whether police conduct amounts to a “search” turns on “whether the area in question enjoys a reasonable expectation of privacy.” Dupuis, 2018 VT 86, ¶ 8.
Under Article 11, a landowner may claim privacy in “open fields” where indicia, such as fences, barriers, or no-trespassing signs, “would lead a reasonable person to conclude that the area is private.” State v. Kirchoff, 156 Vt. 1, 10 (1991). Article 11 does not, however, protect against searches of land “where steps have not been taken to exclude the public.” Id. This is an objective inquiry: “whether a reasonable person should know that the occupant has sought to exclude the public.” Id. A landowner need not post his/her land in compliance with Vermont’s statutes regulating posting against hunting, trapping, and fishing to satisfy this test. State v. Dupuis, 2018 VT 86, ¶¶ 14, 18 (“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.”). “Nor does the fact that some members of the public may come on to one’s private land eliminate the reasonable expectation of privacy otherwise attached to that property.” Id. ¶ 19. Nor is an officer’s observation of postings or other indicia a dispositive fact. See id. ¶ 25 (holding that “defendant effectively communicated his expectation of privacy—and thus met the Kirchoff test—whether the warden observed the postings or not”); see also State v. Romain, 1999 MT 161, ¶¶ 6, 18, 295 Mont. 152, 983 P.2d 322 (holding defendant’s expectation of privacy reasonable and officers’ entry onto property unlawful even though officers did not see no-trespassing signs); People v. Malatesta, 186 Misc. 2d 312, 318, 718 N.Y.S.2d 120 (Sup. Ct. 1999) (suppressing evidence of warrantless intrusion onto property marked with no-trespassing signs even though officers “either failed to notice the signs or chose to ignore them”).
Most importantly, the State bears the burden to prove that a warrantless search of open fields is not prohibited under this test. Kirchoff, 156 Vt. at 13.
Here, Defendant and his brother posted the entire perimeter of the property with no-trespassing signs in October 2016. Russell Bardenhagen, a friend of the brothers, helped post these signs on multiple sides of the property approximately 30 to 40 yards apart and that he saw signs along the side through which the wardens entered. Nicholas Smith, a licensed forester, visited the property in May and July 2017 and saw no-trespassing signs a gate and on trees to the left of the gate. James Harrington, a neighbor, visited his own adjacent camp in July 2017, saw Defendant’s property was posted and a sign had been posted on his land. A piece of old, barbed-wire fence with PVC pipes delineated the property line in the vicinity of the place where the officers entered.1
The State contends that the area where the wardens entered was not posted on November 5 and 11, 2017. It marshals the following evidence in support: First, the two wardens’ stated that they did not see a sign or barrier when they entered the property; second, the property was not recorded against hunting until November 29, 2017, which it argues indicates that posting was not undertaken until after November 11, 2017; third, in 2018 Sargent Buttle returned to the place where he entered in November 2017 and saw a no-trespassing sign that he “would have seen,” which it similarly argues demonstrates that posting was not undertaken until after November 11.
The State fails to shoulder its burden with this evidence. It proves too little and depends on too much speculation. That the wardens did not see a sign on a narrow stretch of a 153-acre property does little to prove that the area was not posted, especially when they failed to take any action to look for signs or other Kirchoff indicia. Had the wardens investigated further before encroaching—warrantless—into private property, and had they not found any signs or other indicia, there would be some evidence to prove that this particular stretch of the property was not posted. They neglected to do so. Additionally, the delay in recording and Sargent Buttle’s later observation constitute too slender a reed to support a finding that the stretch of property was not posted. This evidence cannot outweigh sworn, in-court testimony by multiple witnesses supporting the fact Defendant undertook acts to exclude the public from his land, including on the stretch of property at issue.
In sum, Defendant posted no-trespassing signs throughout the perimeter of his property approximately 30 to 40 yards apart along an existing blazed line of trees. He thus undertook acts that would lead a reasonable person to conclude that the area was private. When the wardens intruded into the property without a warrant, they violated Article 11. The evidence they obtained must accordingly be suppressed. Because this evidence constitutes the only evidence against Defendant, the charges must be dismissed.
For the reasons set forth above, Defendant’s Motion to Suppress and Dismiss is GRANTED and both counts of the information are DISMISSED without prejudice.
Electronically signed on July 18, 2019 at 08:29 AM pursuant to V.R.E.F. 7(d).
John W. ValenteSuperior Court Judge