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State v. Bovat, 2019 VT 81
By: Jacob Oblak
Can a police officer peek into your garage window looking for evidence of a crime? It depends.
At 4am on Thanksgiving morning in 2017, a sleeping Hinesburg resident was rudely awakened by a gunshot near his house. He looked outside and saw a dark truck with running lights on top. The Game Warden responded to the scene but couldn’t find anything in the dark. He returned at 7am to investigate and found deer hair and blood on the ground. This is probably not how he imagined he’d spend his Thanksgiving.
Further investigation led the warden to a guy claiming to have shot a deer that morning, but after some further discussion, that person finally admits he had actually bought the deer from another guy. The warden confiscates the deer, probably prompting the first guy to make alternative Thanksgiving roast arrangements.
So the warden gets some other police officers to go with him to talk to this second guy, who turns out to be Mr. Bovat. And here comes the problem: the officers then go visit Mr. Bovat, walk up his driveway, and look through the window of the closed garage. Lo and behold, they see his dark-colored truck inside, and it’s got deer hair and blood on the tailgate.
The rest, you can probably guess: the police apply for and get a search warrant, seize the truck, charge Mr. Bovat with violating big game hunting laws and failing to tag the deer, and get criminal convictions. The real issue on appeal is whether the evidence the officers found in the garage should have been suppressed (tossed out of the case) because they only found it by peering into the closed garage in the first place. More specifically, did Mr. Bovat have a constitutional right to be free from the warrantless visual search of these officers looking in his garage window?
The three-Justice majority says no, and boils it down to three legal terms: curtilage, semi-private area, and plain-view exception. The majority says, yes, we agree with Mr. Bovat that his garage is within the curtilage of his home, which essentially means that the garage is so close to someone’s house that it’s going to get the same elevated level of constitutional protection that your house would get. But the analysis doesn’t stop there.
The officers had a legal right to be where they were standing in front of the garage, because they were walking up to the front door to carry out a legitimate police investigation. Now, the opinion says this was a detached garage, but it doesn’t specify whether the garage was on the way to the front door, or whether it was off to the side.
However, since driveways and sidewalks are normal ways to get to a person’s home, they are semi-private areas. Thus, because the officers were lawfully walking up the driveway for a lawful reason, the stuff they could see as they walked past the garage and looked inside was fair game. (The editor apologizes for this pun. (Editor's note: we do not.))
Finally, the majority explains that Mr. Bovat hadn’t put up no trespassing signs, installed barbed wire, or blocked off the driveway. So it was reasonable to expect that someone might walk up the driveway to knock on his front door, since the driveway was the way to get to the front door.
The two remaining Justices disagreed (dissented), arguing two things: 1) that the discussion should be about whether Mr. Bovat had a reasonable expectation of privacy in his closed garage, and 2) that the majority is expanding the knock-and-talk exception without naming it.
Essentially, the dissent agreed an officer can walk up your walkway and knock on your door just to say hi. But the officer has to do only that – the officer can’t wander off into your backyard looking for pot plants or sneak upstairs to snoop around while you kindly start some coffee for him on a cold, snowy morning.
What the dissent emphasized, is that before this decision came out, a police officer had to essentially stick to the well-trodden path to your door – can’t wander. Now, a police officer can walk around anywhere within a semiprivate area, like your driveway, walkway, etc., stand on tiptoes or crane his neck, and as long as he’s within that semiprivate area, anything he can see is unprotected by any privacy right no matter if you kept it in a private area.
Furthermore, the officer has to stick to his original plan of saying hi – he can’t walk up your stairs to say hi while holding a metal detector or walking a drug-sniffing dog. That’s not a simple hello; that’s a full-on search. The dissent says that the officers here were looking for evidence of a dead deer and probably had to deviate from their path to the front door in order to peek into the small window of the closed garage.
So, now can a Vermont police officer peek into your garage window looking for evidence of a crime? Probably, but it still depends.
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