High court: Privacy extends to airspace above homes
By Gordon Dritschilo
Herald Staff | March 29,2008
The Vermont Supreme Court held Friday that "Vermont citizens have a constitutional right to privacy that ascends into the airspace above their homes and property," overturning the conviction of a Goshen man on marijuana charges.
The court ruled that the aerial surveillance of Stephen Bryant's land constituted a search under Article 11 of the Vermont Constitution and, as such, required a warrant.
The decision was not a blanket requirement of a warrant for any aerial surveillance, and the court acknowledged that the decision did not establish clear criteria of where the line is drawn. Still, legal experts said the fact that a line was drawn at all makes the decision a landmark one.
"This was a groundwork-laying case," said Michael Mello, a professor at Vermont Law School teaching a class on search-and-seizure issues. "What the court did today was to articulate a framework for analysis of these issues. They understand, I think, this will not be their last word on this."
Bryant was convicted in 2005 of cultivating marijuana after police saw plants growing on his property during a flyover. Police seized 49 plants. Bryant was sentenced to one to two years, suspended except for 45 days, with probation.
Bryant's attorney, William Nelson of Middlebury, said the time to serve was stayed pending the appeal and that Bryant had since then been successfully discharged from probation. Bryant could not be reached for comment Friday — Nelson said he does not have a telephone.
"Most people will probably hear of this decision before he does," Nelson said.
Nelson said the case was the first time the court has considered whether aerial surveillance constitutes a search. He said he expects the decision will apply to other cases involving aerial surveillance.
"The question is how many and when the facts are different, what would constitute a legal aerial search," he said.
The decision held that under the Vermont constitution a person can have a reasonable expectation of privacy by showing that he wants an area to be private — a different standard from the federal one, which follows a doctrine referred to as "open fields."
"If I have 100 acres and the cops come on to my land, even if they're trespassing, even if I've posted "All cops keep out" signs and razor wire surrounding my property, if they come on my land and find the pot, that's not a Fourth Amendment search and seizure," Mello said.
The Vermont Supreme Court had previously rejected that standard as it might apply to Article 11, stating that Vermonters expect to be free of intrusion on land they have posted. The court pointed out that Bryant had not only posted his land but told a local forest official he did not want people trespassing there.
"It is of no moment that defendant could not effectively post his sky," the decision read. "Technology has produced many and varied means of observation and surveillance. But the fact that something can be done does not make the doing of it constitutional."
The Supreme Court rejected comparisons of the flyovers to those by aircraft incidentally passing by, pointing out that the helicopter was occupied by trained police specifically seeking evidence of a crime.
Other courts compared airways to public thoroughfares, another notion rejected by the Supreme Court as it might apply to the case.
"We find the air travel in this case — fifteen to thirty minutes of hovering over defendant's property at altitudes as low as 100 feet — to be distinctly unlike 'passing by a home on public thoroughfares,'" the decision read.
The lower court had rejected claims that the helicopter remained 500 feet or more above ground level during the surveillance, something the Supreme Court seized upon. The court found that dipping below 500 feet violated both National Guard regulations on such missions and Vermont aviation law.
"We protect defendant's marijuana plots against such surveillance so that law-abiding citizens may relax in their backyards, enjoying a sense of security that they are free from unreasonable surveillance," the decision read.
Assistant Attorney General John Treadwell said he did not expect the ruling to have a large impact on how Vermont law enforcement conducts surveillance.
He said the component of the decision with the most support in precedent appeared to be the one dealing with altitude, and he understood that all such flights are now conducted from a minimum altitude of 500 feet.
"The decision does leave us with a series of factors to apply to each particular circumstance that comes before us," he said. "It's not clear whether all the factors will apply in all cases."
Maj. Tom L'Esperance, commander of the Vermont State Police's criminal division, joined Treadwell in saying that altitude was unlikely to be a factor again. He said that since 2005, his troopers have had to be DEA-certified to act as aerial observers.
"They keep a running log of altitude and GPS coordinates when they spot marijuana from the air," he said. L'Esperance said 23 air missions were flown last year, and that sometimes they lead to an arrest and other times marijuana is simply seized and destroyed.
The decision repeatedly stated that it looked only at the individual case, and recognized it offered police limited guidance to apply to other cases.
"It's very much an opening aria," Mello said. "In that sense, it's a very narrow opinion. They look at a lot of factors and don't identify which factors are more important."
The lack of guidelines was an issue for Justice John Dooley. He dissented, saying he agreed with the essential finding but that in detail it was too broad.
"(I)t is critical that we write narrowly and provide as much predictability to citizens and law enforcement as possible," Dooley wrote. "We do not serve the public interest if the answer to that seemingly simple question can be determined only in hindsight, after evaluating myriad factors."
Dooley wrote that he would have ruled that a naked-eye observation from a proper altitude was not a search under Article 11 and sent the case back to the lower court to determine if police spotted the marijuana from 500 feet before dropping below that level.
Contact Gordon Dritschilo at email@example.com.