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In ''Oliver'', the Supreme Court had seemed "to equate privacy with crime", which Morse considered flawed. "If one assumes at the outset that people will only seek privacy in the use of their land for criminal purposes," he wrote, "the conclusion that society will not recognize a claim to privacy in the land readily follows. But we cannot presume how an individual will employ private lands—that is the nature of privacy." ''Oliver''{{'}}s association of privacy and criminality, according to Morse, was an ''[[ipse dixit]]''.<ref name="Kirchoff 992–93">''Kirchoff'', 992–93</ref>
Morse accepted the Oregon Supreme Court's rule in ''Dixson'' that the open-fields doctrine did not apply where a landowner had, like Kirchoff, taken affirmative measures to control access to their land. He grounded this in state constitutional and statutory provisions that allowed public use of unposted land for many outdoor recreational activities and limited the liability of landowners for damages suffered by those they allowed, even implicitly, to engage in those activities on unposted land. "These provisions evidence the state's policy of providing the public with certain privileges and liberties not permitted under the common law", he wrote. "They evidence no intent, however, to limit the right of landowners to pursue their affairs free from unregulated intrusion by officials."<ref name="Kirchoff 994–96">''Kirchoff'', 994–96</ref>
Lastly, Morse said that while the Vermont Supreme Court was not completely discarding ''Katz'' as the basis for its personalty-rooted concept of privacy, it found some issues doing so. It was not comfortable with the concept of a reasonable expectation, since that could too easily change "with political winds and the perceived exigencies of the day ... The question is not what society is prepared to accept but what the constitution requires." This formulation, Morse believed, would better protect people's privacy expectations as technology advanced. Lastly he placed the [[burden of proof]] on the state in cases where a search such as the one in the instant case, was challenged as unconstitutional, and held that this search had violated the state constitution.<ref name="Kirchoff 994–96" />
===''People v. Scott''===
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