Justices of the Vermont Supreme Court have unanimously refused to review a case involving deer jacking and allegations of an illegal search, even though three members of the nine members of the nation’s highest court say they got it wrong the first time.
The case stems from an incident in November 2017, in the early morning hours on Thanksgiving Day, involving Clyde Bovat of Hinesburg and reports of illegal hunting.
Game wardens looking through a garage window on his property discovered, among other things, hair and blood from what appeared to be from a deer on the tailgate of Bovat’s vehicle. They then applied for and obtained a warrant to conduct a search.
Bovat was convicted of shooting a deer in violation of Vermont hunting laws and of not immediately tagging the deer. As a result, he was fined $607 and lost his license to hunt for three years, The Associated Press reported.
In an appeal, he argued that the trial court in Vermont should have suppressed evidence from the search warrant. He contended the evidence was obtained improperly, because the game wardens should not have been on his property in the first place.
Bovat lost an appeal to the Vermont Supreme Court in late 2019, and a later attempt to have the case reargued. He then tried to take his case to the U.S. Supreme Court, but he failed to persuade four justices to approve certiorari — that is, to accept his case.
But Justice Neil Gorsuch, one of the most conservative members of the court, took the unusual step of writing a statement critical of the Vermont ruling, and Justices Sonia Sotomayor and Elena Kagan, two of the more liberal members of the court, signed on.
The Fourth Amendment, which deals with search and seizure, “hardly tolerates the sort of meandering search that took place here,” the Gorsuch statement says.
“The wardens violated the Constitution,” he wrote, “and the warrant they received, premised on the fruits of their unlawful search, was thus tainted.”
Gorsuch’s conclusion: “The Constitution’s historic protections for the sanctity of the home and its surroundings demand more respect from us all than was displayed here.”
Those words were not enough to persuade the Vermont Supreme Court to take another look at the case, as Bovat had requested. Samantha Lednicky, Bovat’s attorney, filed a motion asking the Vermont Supreme Court to allow the case to be reargued or to grant “extraordinary” relief to her client.
“It is rare for the United States Supreme Court to issue a statement denouncing a state Supreme Court ruling, calling it error, yet not availing any relief to appellant,” she wrote, adding that the Vermont Supreme Court could right that wrong.
“Reargument will provide the court with an opportunity to revisit its logic and correct its proclamation,” the filing stated. “Reversal of the trial court’s decision is the only remedy to rectify this injustice.”
The Vermont Supreme Court ruled against reargument.
“Defendant’s renewed motion for reargument follows the U.S. Supreme Court’s order denying defendant’s petition for certiorari, which contained a statement in which three members of the Supreme Court criticized this court’s majority opinion,” says the decision from Vermont’s high court.
“We conclude that the U.S. Supreme Court’s denial of certiorari, and the accompanying statement, do not provide a sound basis for us to consider defendant’s renewed motion for reargument, which essentially seeks reargument on the same legal grounds as in his first motion for reargument,” the Vermont ruling said.
All five Vermont justices signed the ruling to reject the request to rehear or to grant extraordinary relief in the case.
In December 2019, in its first ruling against Bovat, the Vermont Supreme Court split 3-2, ruling that the search-warrant evidence could be used. Three of the five justices ruled that what the wardens saw before obtaining the warrant was in plain view and they were allowed to be in the driveway leading to it. Chief Justice Paul Reiber dissented, joined by Justice Beth Robinson.
