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Search and Seizure: Vermont Supreme Court Throws Out Marijuana Conviction Based on Warrantless Aerial Surveillance

In a decision handed down last Friday, the Vermont Supreme Court threw out the felony marijuana cultivation conviction of a man caught growing marijuana following a warrantless flyover of his rural property by a military helicopter. Vermont residents have a broad privacy right "that ascends into the airspace above their homes and property," the court held in State v. Bryant.
marijuana eradication helicopter, Nashville
The case began in 2003, when Stephen Bryant, who owned a remote Addison County home, told a local official he didn't want trespassers. That unnamed official "found defendant's insistence on privacy to be 'paranoid,'" the opinion noted, and suggested that a Vermont State Police team do a flyover to look for marijuana. Under the rules of the state's Marijuana Eradication Team, which uses Vermont Army National Guard helicopters and pilots, flights are supposed to stay 500 feet above the ground. But an August 7, 2003 surveillance flight dipped down to 100 feet and hovered above Bryant's property for half an hour.

Troopers in the chopper saw marijuana plants, then used that information to obtain a search warrant. Bryant was arrested and charged with marijuana possession and cultivation. At trial, he argued that he used marijuana for medicinal purposes to treat an old work injury. Jurors acquitted him of possession, but convicted him of cultivation. In June, 2005, he was sentenced to 45 days. His appeal followed.

The Vermont constitution protects the privacy rights of residents even if it means some pot plants may go unseized, the court held in an opinion written by Associate Justice Marilyn Skoglund for the 4-1 majority.

"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. 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," wrote Skoglund.

"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," she added.

"The decision is a boon to all Vermonters," said Middlebury attorney William Nelson, who represented Bryant at the Supreme Court. "It protects our privacy when we are out of doors, on our own property, and in our own yards," he told the Burlington Free Press after the decision.

The opinion serves as further evidence that the state constitution gives Vermonters greater privacy protection than federal laws do, Vermont law school professor Cheryl Hanna told the Free Press. "A lot of people feel the federal government doesn't respect privacy rights after Sept. 11," said Hanna. "Vermonters, at least at the state level, have that additional check on what the government can do."

Permission to Reprint: This article is licensed under a modified Creative Commons Attribution license.
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Search and Seizure

That was a very interesting decision by the Vermont Supreme Court.
The Court is very smart... the Justices in the 4 to 1 majority relied on the State Constitution... and not the U.S. Constitution, thus an appeal to the United States Supreme Court would fail {assuming the State was intending to appeal}, as the Court relied upon its own Constitution {State} insted of the 4th amendment of the U.S. Const.
The Supreme Court of the U.S. has stated that the States can give a person {defendant in a crimingal case} more protection under their Constitution then the United States Constitution..So I think this case will become the law of Vermont without any further decisions in this regard..
Scott S. Workman
Ciudad Colon
Costa Rica
Central American


citzens should shoot those dam helicopters .thats some crap you would think would happen in russia .or nazi germany i say either respect a persons privacy or dodge rifle bullets.

fly overs

In New York State, the police regularly fly over properties looking for marijuana growing in the autumn. What privacy? we have none left, with cameras that see through walls.

Does it?

The US government routinely use satellites for surveillence of people and their properties. Naturally, this opinion is limited in the sense that it puts expresses some sense of revulsion toward such low and cheap peeping Toms. Did you know that at most corners of big cities, there are microphones that record the drug dealers? I thought that was so kool for some of our kool brothers doing their thang dancing away their total privacy which is a total illusion!


"at most corners of big cities, there are microphones that record the drug dealers? "

What total crap! Let's see, most means over 50%, and most intersections have 4 corners (except T's). Now in LA for example, how many intersections do you think there are? 10,000, 20,000? that's 50,000 corners plus minimum (probably 100,000's) and who do you think is listening on these microphones. And on a busy corner, if you're more than say 10 feet from a mike, all you can hear is traffic. If you meant an occasional microphone in a known drug dealing area, then maybe, but that is light years from what you wrote.

common sense

it makes sense that they blew off the felony but it's dumb that they did that because they flew too low. who cares if the helicopters are that low as long as there's not some pothead giving marijuana to people?

here here

I agree, i mean even though bryant was in his fifties, has had chronic pain for 30 years and was only growing for personal use. we just cant have these "people" growing plants. we dont spend enough on stopping these pot fiends. I think helicoptors should be able to fly as low as they want anywhere they want, anytime they want. i wont feel safe from these roach roasters untill I see fleets of marijuana eradication/attack helicopters flying in formation above us. untill i can hear the roar of the appaches and black hawks, and have pictures rattling off of the walls, i dont think anyone is safe from the potheads giving marijuana to people.

you mouthpiece

shut the fuck up

vermont is where i will do my next guerilla grow op im talking 500plants hahahah so go fuck yourself ill b thinking of you while im smoking a fatty on my nice private island in fiji sucker

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