(Ret.), Specially Assigned, concurring. This case demonstrates the difficulty in addressing present-day questions under rules laid down two hundred or more years ago. Constitutional questions are usually analyzed using the language and concepts of the time in which the rule was first stated — thoughts and concepts based on philosophical and experiential developments evolved over centuries and based not only on judicial precedent, but also parochial considerations.
I believe that the result reached by the Court in this case is correct; I therefore concur. However, I believe that the opinion *15is unduly concerned with federal constitutional law, gives insufficient recognition to the great difference between Vermont and federal constitutional prohibitions against unreasonable searches and seizures, and approaches the issue in a manner less efficient and less relevant than that which should be used. Instead, we should focus on the historical and philosophical background of the ideas expressed in the Vermont Constitution as it pertains to the question at issue here.
Defendant has invoked only Chapter 1, Article 11 of the Vermont Constitution, not its federal counterpart, the Fourth Amendment. “[0]ur constitution is not a mere reflection of the federal charter,” State v. Badger, 141 Vt. 430, 448,450 A.2d 336, 347 (1982), and I believe we should look at the Vermont Constitution without reference to its federal counterpart.
Our constitution differs both “historically and textually” from the United States Constitution. Id. To comprehend the difference between the Fourth Amendment use of “effects” and the Article 11 “possessions,” we should examine other provisions of those respective documents. The Court does this to a certain extent in its introductory portion of Part II by referring to McCabe, State Constitutions and the “Open Fields” Doctrine: A Historical-Definitional Analysis of the Scope of Protection Against Warrantless Searches of “Possessions,” 13 Vt. L. Rev. 179 (1988). Although McCabe, after careful and scholarly analysis, concludes that the ordinary person of 1777 would have understood that “possessions” included land, the Court needlessly abandons this understanding of possessions as a ground for its decision. Rather, the Court’s primary focus is on federal case law construing the Fourth Amendment. This approach shortchanges a significant difference affecting consideration of the extent of the protection afforded by Article 11. The Court does not examine the differences between the development of political and civil rights in Vermont as expressed in our constitution as contrasted with the corresponding developments in the first thirteen states or in the United States Constitution, which was enacted twelve years after Vermont’s. When Article 11 is viewed in conjunction with the liberal provisions of other articles of the 1777 Vermont Constitution, there is solid ground for construing Article 11 broadly to hold that “possessions” intentionally included land as well as houses and papers within its protection.
*16Vermont, whose constitution is one of the early written constitutions, included two liberal provisions that had not appeared before in any constitution. The first of those provisions occurs at the beginning of its Declaration of Rights. Not only does it declare that all men are equally free and independent, having, among other things, the rights of “enjoying and defending life and liberty, acquiring, possessing and protecting property,” etc.; it specifically prohibits slavery. Vt. Const, ch. 1, art. 1. In contrast to the liberal view of the Vermont constitutional framers are the provisions of the United States Constitution that left the institution of slavery in place, gave slaves no political rights, and treated slaves as three-fifths of freemen for purposes of representation. In a second provision, Vermont then acknowledged that all freemen should have the right to participate in government, to vote, and to hold office without any requirement that they own property to do so. Vt. Const, ch. I, art. 8. (Of course, this latter concept has continued to evolve; only early in this century have women gained the right to vote, and their economic equality has yet to be achieved.) The federal constitution originally contained no suffrage provision, thereby leaving to the states control of elections and requirements for voting, even for federal offices, and most states for many years made property ownership a prerequisite for voting and holding office. It took nearly one hundred years and a civil war for the United States to accomplish what Vermont did in its Constitution.
Other provisions in Vermont’s Constitution show a similarly expansive approach to political rights. The original document was adopted on July 8, 1777, entitled “A Declaration of the rights of the Inhabitants of the State of Vermont.” The nineteen sections of chapter I provide a unique and broad panoply of rights found in neither the constitutions of most of the first thirteen states, nor in the original United States Constitution until the separate adoption of the first ten amendments known as the Bill of Rights.
Further evidence of the libertarian focus of the Vermont Constitution is found in its preamble, which begins:
Whereas, all government ought to be instituted and supported for the security and protection of the community as *17such, and to enable the individuals who compose it to enjoy their natural rights ....
The preamble then recites the land claim disputes between New York and the inhabitants of Vermont, as the new state created by the document is for the first time called, for the purpose of making clear that the claims of New York, which that state had sought to enforce by invasions by law enforcement officers, were invalid and in violation of the rights of owners of land involved. Protection of citizens’ rights to security in their land was a key motivating force in creating the Vermont Constitution.
The right expressed in Article 11 — that invasion of a citizen’s land by a law enforcement officer is prohibited — is at the very heart of the preservation of the liberty and freedom of human beings guaranteed by the Vermont Constitution. Although Article ll’s protection is limited in some respects — a properly obtained warrant permits entry onto a citizen’s land and only “unreasonable” searches and seizures are prohibited — this right remains a central force.
Because the security in property is central to the Vermont Constitution and for all the reasons stated in Part III of the Court’s opinion, I agree that the reasonable expectation of privacy test in Oliver “simply fails to do justice to the values underlying Article 11.” All of a citizen’s land must be free from invasion by the government absent a warrant.
The Court goes on in Part IV to require landowners to take affirmative action to establish a reasonable expectation of privacy, e.g., by erecting “fences, barriers or ‘no trespassing’ signs [that] reasonably indicate that strangers are not welcome on the land.” I cannot agree with this conclusion. Article 11 is not concerned with “strangers” unless they are law enforcement officers, i.e., the minions of the government, who were the reason for the concerns of the framers of the Vermont Constitution expressed in that article. Moreover, the prohibition in Article 11 is unequivocal: it gives the owner or possessor of the land an expectation of privacy with regard to any law enforcement officer. The landowner should not have to take any action to make that right effective. It is irrelevant that other persons may enter the land by trespass or by permission. If they do and report illegal activity on the land to law enforcement officers, and if *18they are reliable people, probable cause for issuance of a warrant exists and law enforcement officers may enter after obtaining a warrant.
The Court thereafter states that “Vermont law allows persons to enter lands for certain purposes under certain conditions,” cites the conditions, and concludes that, while those “provisions evidence the state’s policy of providing the public with certain privileges and liberties not permitted under the common law,” “[t]hey evidence no intent, however, to limit the right of landowners to pursue their affairs free from unregulated intrusion by officials.” With that conclusion, I agree.
In Part V of the opinion, the Court rejects the per se rule in Oliver and explains at length why it is reluctant to use the phrase “reasonable expectation of privacy” and to accept the nuances of that phrase as explicated in the federal cases. It then concludes: “Our fundamental divergence from federal law, in the present case, lies not in the name given to the test but in the manner in which the test is understood and applied in the specific context of ‘open fields,”’ leaving the test without a name and relative to a doctrinal concept developed to explain an aberration in federal search and seizure law. To me that is not very helpful.
Although I do not agree with the first portion of Part V of the Court’s opinion, I do agree with Part VI, that on the facts:
the officers’ walk over defendant’s logging roads and through his woods violated his right to privacy under Article 11, and the evidence obtained thereby may not be used against him.
I also strongly agree with the statements:
The rule announced here does not significantly hamper the police from investigating suspected criminal activity. It does require police to obtain a warrant, based upon probable cause, before they enter land .... The rule brings the practice of law enforcement into compliance with our fundamental law, which empowers the judiciary to guard the rights of the people through the warrant process.
Finally, while I share some of Justice Peck’s concern about the problems of law enforcement officers, I believe that, if those problems result from our Constitution or laws, the way to over*19come them is to amend the Constitution or laws. While that procedure is time consuming — especially where the Constitution is to be amended — the purpose of the provisions for amending the Constitution is to prevent precipitate action relative to it. Perhaps even more important would be for law enforcement officers to fully respect constitutional rights. In too many instances over the last few decades there have been too many cases where they did not. Although they knew what was required, they unnecessarily cut corners. This case is an example.