On a fine April day, Eric Neil was walking down a street near the court house during business hours. He was unaware that an arrest warrant for him had been issued by the Court for the crime of failing to pay a $21 fine. The Police, however, knew Eric, and knew about the crime. Eric was arrested. His pockets were searched. The police pulled out a sealed pouch. It was opened. It contained cocaine. Eric was charged with possession of cocaine.

Eric's lawyers moved to suppress the cocaine as evidence. Opening a sealed pouch under the Vermont Constitution required a warrant they said. There was no emergency, no danger to the officers, and no risk of destruction of evidence. So, the police had time to get a search warrant, and didn't. The Trial Court Judge, Thomas Devine, agreed.

The State appealed arguing that the U.S. Supreme Court had ruled that a search of an arrestee is not only an exception to the warrant requirement of Fourth Amendment, but is also a reasonable search. (Amendment IV: "The right of the people to be secure in their persons …against unreasonable searches…shall not be violated…") We should have a "bright line" rule, the State argued, that does not require police officers to make difficult case by case on the spot decisions regarding searches of people under arrest. If a person is lawfully under arrest the police should be able to open containers found with him/her, or within his control such as being in a vehicle. Why go through the time and bother of writing up an affidavit of probable cause, impounding the item to be searched, finding a judge to sign the warrant, and then searching? The pouch is there, open it and find out what's in it.

The Vermont Supreme Court, once again unanimously decided not to follow the U.S. Supreme Court precedent. Our Court ruled that the nearly identical words of Article 11 of the Vermont Constitution prohibited the search. ("The people have the right to hold themselves…free from search or seizure" without a warrant.) Freedom from unreasonable governmental intrusions into legitimate expectations of privacy is a core value of the Vermont Constitution, and exceptions to the warrant requirement must be "jealously and carefully drawn" it decided. A "bright line" rule may be efficient, it reasoned, but it is not necessarily just. State v. Eric Neil 2008 VT 79.