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Vermont Supreme Court Rules Search Warrant Required for Overflight Surveillance - Apr 3, 2008

The Vermont Supreme Court ruled last week that police must first obtain a search warrant before making low level surveillance flights over private property.

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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."

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