Skyward Right of Privacy Recognized in Vermont

Growing marijuana is a crime in Vermont -- cultivating three plants or less is a misdemeanor -- four or more plants is a felony. 18 V.S.A. § 4230.

The Vermont Supreme Court, in the case of State v. Bryant, 2008 VT 39, 950 A.2d 467 (2008) established an overhead right of privacy for Vermonters under Article Eleven of the state's constitution that the police cannot invade without a search warrant. "We hold that Vermont citizens have a constitutional right to privacy that ascends into the airspace above their homes and property." The United States Supreme Court, in three aerial-surveillance cases, has never held that the surveillance at issue was a search within the meaning of the Fourth Amendment. Vermont continues its 20+ year history of finding that Article 11 provides greater protection against warrantless intrusions than that provided by the Fourth Amendment.

The police in Vermont, with the cooperation of the Army National Guard, conduct helicopter searches of the hills and valleys in the late summer, using aging Hueys, looking for the distinctive green glow of healthy marijuana plants, one of Vermont's lesser known agricultural products, complementing the state's famous maple syrup and cheese. The helicopter sweeps of the Green Mountain State are conducted by the Vermont State Police (Marijuana Eradication Resource Team - MERT).

In the case before the court, the helicopter hovered and circled only 100' above the citizen's property for almost a half-hour. MERT helicopters are supposed to stay at least 500' above the targeted property. The Court said, "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."



The National Guard regulations for counter-drug operations require a minimum altitude of 500 feet above ground level, but permit a descent to no lower than 200 feet above ground level to "verify an eradication or reconnaissance objective." However, the Vermont Supreme Court did not simply examine the altitude of the helicopter in the case, but focused upon expectations of privacy and looked at the intrusiveness of the aerial surveillance. The helicopter surveillance in the case was "so long and so low and so loud" that the Court had no problem deciding the surveillance was "extremely intrusive." The occupants of the helicopter "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." Such activity triggers protection under Vermont's constitution. The Court was careful to observe that as technology advances 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."