HomeMy WebLinkAboutCOM 1088.012 2006-2008
Vermont Supreme Court Rules Search Warrant
Required for Overflight Surveillance
April 3, 2008 - Montpelier, VT, USA
The Vermont Supreme Court ruled last week that police must first obtain a search
warrant before making low level surveillance flights over private property.
The case began after a Forest Service official, believing defendant Stephan Bryant to be
"paranoid" about his privacy, suggested to Vermont State Police that they conduct a fly-
over to look for marijuana. On Aug. 7, 2003, a state trooper and an Army National Guard
pilot flew over the property hovering about 100 feet above it for 15 to 30 minutes,
according to Friday's court opinion. Two plots of marijuana were spotted from the air.
Law enforcement then applied for and received a search warrant, and seized about 45
plants.
Ruling that Vermonters' right to privacy extends to the airspace above their homes, the
state's highest court threw out a felony marijuana cultivation conviction against Bryant. A
57-year-old contractor, Bryant testified at his 2005 trial that he uses marijuana as an
analgesic, to cope with pain he suffers as the result of a construction accident in the
1970s. His property, on a wooded hillside in a remote area of Goshen, is accessible only
by a locked gate on a US Forest Service road.
In a 4-1 decision, the justices said the helicopter wasn't high enough when it made its
flyover.
"The occupants were law-enforcement officers, trained in the identification of marijuana,
who conducted an overflight at illegal altitudes solely for the purpose of discovering
evidence of crime within a private enclave into which they were constitutionally
forbidden to intrude at ground level without a warrant," the Court wrote in it's ruling.
"The actions of law enforcement - flying only 100 feet above the ground for up to 30
minutes over a hillside home - were an unreasonable intrusion of privacy that triggers
constitutional protection."
"It doesn't matter if the invasion comes on wheels or on helicopter rotors," said Bryant's
lawyer, William Nelson. "Vermonters have a right to expect the government will not be
intruding on their privacy, whether it's in their house, in their backyard or on their
property."
For more information, contact NORML Legal Director Keith Stroup at 202-483-5500.
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