Published April 9, 2008

MONTPELIER — The Vermont Supreme Court made one thing perfectly clear late last month.  When a state trooper, acting on a tip and flying in a National Guard helicopter, paid a long, low-altitude visit to a remote homestead in Goshen, he violated Stephen Bryant’s constitutional right to privacy.

What the justices didn’t make clear is how their decision affects the privacy rights of other Vermonters if police fly over their backyards at slightly higher altitudes, in their campaign against marijuana.

Voting five to zero, the court reversed Mr. Bryant’s conviction for cultivating marijuana at his “off the grid” home that can be reached only through a locked gate on a National Forest Service road.

In doing so it relied on the Vermont Constitution, rather than the U.S. Constitution, and pushed Vermonters’ civil rights a step further than the U.S. Supreme Court has been willing to go.  In three federal cases the nation’s highest court has held that, when they make surveillance flights over private property, police aren’t conducting a search that requires a warrant under the Fourth Amendment to the U.S. Constitution.

Relying instead on Article 11 of the state Constitution, the Vermont court ruled that, when they hovered for 15 to 30 minutes over Mr. Bryant’s property at altitudes as low at 100 feet, police conducted the sort of search that requires a warrant.

And though the state trooper obtained a warrant after he spotted the pot from the air, and found three plots of marijuana growing on Mr. Bryant’s property, his conviction did not stand.

“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,” says the decision written by Justice Marilyn Skoglund.

Despite that ringing affirmation of Vermonters’ right to the privacy of their backyards, State Police say they will continue to conduct aerial searches for marijuana patches during the growing season.  They will, however, stay at least 500 feet above the ground, said Major Tom Lesperance, commander of the force’s criminal division.

The Vermont National Guard says it will continue to provide its helicopters to the Marijuana Eradication Team (MERT). “We’re just basically a taxi,” said Guard spokesman Lieutenant Colonel Lloyd Goodrow.  “We work for law enforcement.”

And Assistant Attorney General John Treadwell, who argued and lost Mr. Bryant’s appeal for the state, said Monday that his reading of the court’s dense 39-page ruling suggests that such flights will withstand the test of even the Vermont Constitution.

“My interpretation is that the Supreme Court looked narrowly at specific facts it was presented with,” Mr. Treadwell said, including both the long duration and the low altitude of the flight.  The decision, Mr. Treadwell said, “does not give specific guidance to law enforcement as to what would not have violated the Vermont Constitution.”

That feature of the decision also bothered Justice John Dooley, who wrote his own opinion, “concurring in part and dissenting in part” with the majority.  Mr. Bryant’s conviction should be overturned, Justice Dooley wrote, but the majority cited almost a dozen factors in its decision, without saying which of them tipped the constitutional scales.

“By relying on a multitude of factors…and by refusing to assign any particular weight to any factor, the majority has painted with the broadest brush imaginable, far broader than any other court in the land.”

Since this was the first challenge of aerial surveillance to come before the Vermont Supreme Court, Justice Dooley wrote, “it is critical that we write narrowly and provide as much predictability to citizens and law enforcement as possible.”

Justice Skoglund responded directly to this criticism in her opinion.  “No one factor needs act as a litmus test of constitutionality,” she wrote, “because the surveillance at issue here was a patent violation of defendant’s legitimate expectations of privacy.”

“We understand that our abstention from drawing a bright line that makes the legality or frequency of flights at certain altitudes a quick index to the constitutionality of aerial surveillance gives limited guidance to trial courts and law enforcement personnel in the context of other cases,” Justice Skoglund wrote.

“But we are not presented with other cases; we are presented only with this case.”

The lawyer who won the appeal for Mr. Bryant, William Nelson of Middlebury, agreed that the exact reach of the decision is uncertain.

“I think Justice Skoglund is saying that we’re just starting to consider aerial surveillance and the state Constitution together, and we’ll decide this case and leave the refinements to later cases,” Mr. Nelson said Monday.

“It’s a funny field,” Mr. Nelson said, because the U.S. Supreme Court cases have been marked by close votes.

In general, Justice Skoglund noted in her review of the federal cases, the federal courts have ruled that people can’t reasonably expect that their land won’t be seen by people flying overhead.

And just as a police officer is free to make use of what he sees while passing a home on a public thoroughfare, so can an officer flying over a home in an aircraft.

However, she wrote, “we find the air travel in this case — 15 to 30 minutes of hovering over defendant’s property at altitudes a low as 100 feet — to be distinctly unlike ‘passing by a home on public thoroughfares.’”

At Mr. Bryant’s trial, both the pilot and the state trooper testified that the helicopter remained at least 500 feet above the ground at all times, when it flew over his home on August 7, 2003.  The National Guard sets 500 feet as the minimum altitude for such drug flights.

However one witness on the ground, the wife of a Navy pilot, said the helicopter was about 100 feet above Mr. Bryant’s property.  Another, a member of the Vermont National Guard who was familiar with helicopters, said he saw it flying at about 120 feet.

The trial judge did not believe the pilot or the state trooper.  She found that the helicopter flew as low as 100 feet off the ground, but let the evidence stand.

Asked about the discrepancy, Mr. Goodrow of the Vermont National Guard said only that “our people give good testimony.”

“The testimony from witnesses countered the testimony of the pilot and the trooper, and the court made a decision,” said Major Lesperance of the State Police.  “It’s a decision we’ll work with.”

According to his attorney, Mr. Bryant used two defenses at his trial, and won a partial victory.

In addition to arguing that the overflight was an illegal search, Mr. Bryant said his use of marijuana was a medical necessity.  And that, said Mr. Nelson, his attorney, led the jury to acquit him of possession of marijuana, while convicting him of cultivation.

Mr. Bryant, a carpenter, was badly injured decades ago when he fell on the job and was impaled by a piece of metal, his attorney said Monday.  “It didn’t kill him by millimeters, but it left a lot of scar tissue and a lot of pain,” Mr. Nelson said.

Doctors told Mr. Bryant to take opiates for the pain, the lawyer said, but opiates didn’t let him work, while marijuana did.

Because it reversed his conviction on privacy grounds, the Supreme Court declined to consider the medical-necessity issue.

The Bryant decision seems to extend to a third dimension an earlier ruling the Vermont court made on property and privacy.

Federal courts have adopted an “open fields doctrine” that, except in their homes and immediate yards, people have no reasonable expectation that their property will remain private.  Thus law officers, under federal law, can search for marijuana growing on private property without a warrant.

But in a key decision called Kirchoff, the Vermont court ruled that the open fields doctrine doesn’t stand the test of the Vermont Constitution, if the property in question is posted against trespassing.

In the Bryant decision, the court notes that he not only lived in extreme isolation, but also posted his land and told a Forest Service ranger that he wanted no trespassers.

That was his undoing, indeed, because the ranger found his attitude so “paranoid” that he suggested to police that a flight over the property might be a good idea.

At several points in the decision, the court seems uneasy with the idea that Vermonters have no constitutional protection against prying eyes from above — even from 500 feet above.

In reaching the Kirchoff decision, the court notes, “we recognized that Vermonters normally expect their property to remain private when posted as such….  Therefore, we think it is also likely that Vermonters expect — at least at a private, rural residence on posted land — that they will be free from intrusions that interrupt their use of their property, expose their intimate activities, or create undue noise, wind, or dust.”

“Technology has produced many and varied means of observation and surveillance,” the decision says at another point.  “But the fact that something can be done does not make the doing of it constitutional.”

And later, on the same theme, Justice Skoglund writes:  “With technological advances in surveillance techniques, the privacy-protection question is no longer whether police have physically invaded a constitutionally protected area.  Rather, the inquiry is whether the surveillance invaded a constitutionally protected legitimate expectation of privacy.”