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Supreme Court justices chastise Vermont on the limits of police power in 'deer jacking' case

Vermont's high court ruled that game wardens had a legal right to wander around the land of a homeowner suspected of illegally hunting deer at night.
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The Supreme Court in Washington, D.C.Chip Somodevilla / Getty Images file

Three U.S. Supreme Court justices took the highest court in Vermont to task Monday for ruling that game wardens had a legal right to wander around the land of a homeowner suspected of illegally hunting at night.

Justice Neil Gorsuch, one of the court's conservatives, joined by liberals Sonia Sotomayor and Elena Kagan, said the Vermont Supreme Court missed the mark in applying the law that governs law enforcement intrusion on private property.

The game wardens suspected Clyde Bovat of unlawfully hunting a deer at night, an offense Vermonters call "deer jacking." Without a search warrant, they entered his private land, walked around, and looked through a window into his garage, where they saw what they thought might be deer hair on the tailgate of his truck.

They returned with a search warrant based on what they saw through the window.

The Vermont Supreme Court said the officers acted properly, because the Fourth Amendment's protection against unreasonable searches does not require an officer to ignore what can plainly be seen by passersby.

"But that doctrine applies only when an officer finds himself in a place he is lawfully permitted to occupy," Gorsuch wrote.

In 2013, the U.S. Supreme Court said the area around a home, known as the curtilage, is just as much protected by the Fourth Amendment as the home itself. A police officer needs a warrant, some kind of emergency, or a landowner's consent to enter it.

Gorsuch emphasized that there are no semi-private areas around a homed "where governmental agents may roam from edge to edge ... collecting as much evidence as possible."

While the Vermont court got the law wrong, Gorsuch said, he understood why the full U.S. Supreme Court declined to take the case. It's unclear, he said, that the message of the 2013 ruling "about the protections due a home's curtilage has so badly eluded other state or federal courts."

There's reason to hope, he said, that while Vermont failed to apply those protections properly in the deer-jacking case, "its oversight will prove a stray mistake."