By JOHN FLOWERS
GOSHEN — The Vermont Supreme Court on Friday issued a majority opinion overturning the felony “cultivation of marijuana” conviction of a Goshen man on grounds that the man’s constitutional rights were violated by authorities’ aerial search of his property.
The ruling is expected to set a major precedent for how law enforcement in Vermont conducts aerial searches.
In June of 2005 Addison County District Court Judge Christina Reiss sentenced Stephen Bryant to 45 days in jail in connection with his cultivation of 49 marijuana plants that he said he’d been using to treat chronic pain from a horrific construction site accident he had sustained in 1974.
Vermont State Police detected his illegal crop during a helicopter flyover of Bryant’s Goshen property on Aug. 7, 2003. They executed a search warrant the next day.
Bryant and his attorney, Robert Keiner of Middlebury, argued that Bryant had been using the marijuana for medicinal purposes and that the aerial photographs constituted an illegal search. A majority of the Supreme Court justices agreed to the latter argument but did not take up the former.
The opinion, written by Justice Marilyn Skoglund, noted — among other things — testimony offered by the defense quoting witnesses as saying the VSP’s surveillance helicopter was less than 500 feet above Bryant’s property for around 30 minutes.
“The (lower) court concluded that the police surveillance was not so intrusive as to violate the Vermont Constitution,” the opinion reads. “We disagree and reverse.”
The justices also noted that state laws governing aeronautics require that aircraft must maintain an altitude of at least 500 feet, except above water or sparsely populated areas.
“The aerial surveillance in this case was a warrantless search forbidden by the Vermont Constitution,” the opinion reads. “The warrant authorizing the subsequent search of defendant’s premises for marijuana plants was obtained solely on the basis of the aerial observations. The evidence seized upon executing the warrant should therefore have been excluded from defendant’s trial. Since the error was clearly prejudicial, his conviction must be overturned.
“The issue on this appeal from a conviction for cultivation of marijuana is whether the warrantless aerial scrutiny of defendant’s yard, for the purpose of detecting criminal activity by the occupant of the property, violated privacy rights secured by the Vermont Constitution,” the opinion added. “We hold that Vermont citizens have a constitutional right to privacy that ascends into the airspace above their homes and property. The warrantless aerial surveillance in this case violated that constitutionally protected privacy right. Accordingly, we reverse.”
Justice John Dooley offered a minority opinion.
“I agree with the opening paragraph of the majority decision that ‘Vermont citizens have a constitutional right to privacy that ascends onto the airspace above their homes and property’ and that the ‘aerial surveillance in this case violated that constitutionally protected privacy right.’ Thus, I concur in the majority’s essential holding. But I cannot concur in the open-ended rationale or in the immediate consequence of that holding. Thus, I dissent in part.”