Last week, the Supreme Court denied certiorari in Bovat v. Vermont. The petition stemmed from the Vermont Supreme Court’s 3-2 opinion applying Fourth Amendment search jurisprudence. In denying certiorari, Justice Gorsuch, joined by Justices Sotomayor and Kagan, wrote a strongly-worded statement chastising the Vermont Supreme Court’s decision and suggesting he would have granted certiorari. Both the case and Justice Gorsuch’s statement should catch the attention of criminal justice advocates.

Bovat involved a Vermont man charged with violating Vermont hunting laws by shooting a deer at night (spotlights or car headlights cause a deer to stop moving, making it an easier target). This is known as “deer-jacking.” A resident heard the gun shot, saw a truck pull away, and reported the crime to the game warden. Eventually the investigation led law enforcement to believe that Clyde Bovat was responsible. Game wardens drove to Mr. Bovat’s house, proceeded up his driveway, and walked directly to his garage — without attempting to first knock on the front door or make contact with anyone inside. They peered through narrow slat windows and saw Mr. Bovat’s truck inside with what appeared to be deer hair and blood on the top of the truck’s tailgate. Using this evidence, the wardens obtained a search warrant. Mr. Bovat moved to suppress the evidence.

The Vermont Supreme Court affirmed the trial court’s denial of Mr. Bovat’s motion to suppress, finding the evidence fell within the “plain view” doctrine — an established exception to the general requirement that officers obtain a search warrant first. The court found that the game wardens were lawfully in Mr. Bovat’s driveway when they saw the evidence in plain view. Oddly, the Vermont Supreme Court also expressly found Mr. Bovat’s garage inside the home’s curtilage. Because curtilage receives the same Fourth Amendment protection as the home itself, officers are only allowed to be there without a search warrant under extremely limited circumstances. One of those limited circumstances is under an implied license — think of a neighbor entering property, possibly even a front porch, in order to knock on the door. Police officers, for example, can follow a path or sidewalk to someone’s front door, as any other person would, knock, and speak briefly with a person without a warrant. In rural Vermont, however, it’s not always so clear where an implied license begins and ends — front doors are not always used, houses have multiple doors, and driveways are often long.

To resolve this problem, the Vermont Supreme Court differentiated between “semiprivate areas” and “private areas” of curtilage, stating that “a private area may still be open to visual inspection from a semiprivate area.” (State v. Bovat). This solution, however, should raise serious alarm bells. As Justice Gorsuch noted: “Under the court’s logic, it seems, an officer who keeps ten toes in a home’s driveway may stay and search just as he pleases.” Quite clearly, when courts permit law enforcement to make incremental intrusions into Fourth Amendment privacy protections, the slippery slope is not just theoretical. This is precisely the concern that animated Justice Scalia to remark that the Fourth Amendment “would be of little practical value if the State’s agents could stand in a home’s porch or side garden and trawl for evidence with impunity.” (Florida v. Jardines). Indeed, under Vermont’s reasoning it would be perfectly okay if an officer “stands on the [driveway] and uses. . . binoculars to peer through your windows, into your home’s furthest corners.” (Jardines, Kagan, J., concurring). The Vermont Supreme Court’s decision imperils Fourth Amendment protections and may portend further incursions into Fourth Amendment curtilage jurisprudence.

Interestingly, Justice Gorsuch implied that he wanted to grant certiorari. Towards the end of his statement he wrote: “Despite the Vermont Supreme Court’s error, I acknowledge that understandable reasons exist for my colleagues’ decision to let this case go.” (Emphasis added).  He noted his hope that the case was only a “stray mistake.” The fact that Justices Sotomayor and Kagan signed on, combined with Justice Ginsburg’s absence, however, suggests that the court might have had the requisite four votes needed to grant certiorari. Moreover, based on Justice Gorsuch’s statement, the court viewed the case as a clear mistake of law, seemingly deserving of summary reversal.

That Justice Gorsuch took particular interest in the case and wrote a statement emphasizing that elements of property law compelled the opposite outcome suggests the Supreme Court is interested in continuing its trend towards a property-based understanding of the Fourth Amendment. Justice Gorsuch wrote a notable dissent in Carpenter v. United States stating that he favored a property-based, positive law understanding of the Fourth Amendment as opposed to the Katz analysis. Justices Alito and Thomas explicitly stated their desire to overturn Katz. (Carpenter).

Whatever else Justice Gorsuch’s statement in Bovat v. Vermont signals, it certainly indicates that he is receptive to property-based arguments in Fourth Amendment cases and is looking to affirm that understanding. With Justice Barrett now on the bench, it seems the Supreme Court may soon have the votes to return to a property-based Fourth Amendment analysis — this could also mean that a majority of the court is ready to take aim at Katz.