The Vermont Supreme Court held that privacy can include the airspace over one’s property, according to this article to the  Rutland Herald via Bashman.  In State v. Stephen Bryant, the court held that police surveillance from a chopper of marijuana plants growing outside Bryant’s home.

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.  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. 

The court’s decision involved a very detailed parsing of the facts, including Bryant’s “almost paranoid” demands for privacy, as well as the police chopper hovering at an extremely low altitude in order to determine whether the plants were marijuana.  By so doing, the decisions fails to do much to provide a general rule.

The fact that the court extended the defendant’s privacy upward at all, however, is in stark contrast to the federal “open fields” rule, which permits the government to enter upon and search property up until the curtilage (the “area outside the physical confines of a house into which the ‘privacies of life’ may extend“).

The rationale appears to be founded primarily in the “reasonableness” test of the 4th Amendment, as applied to the “plain view” doctrine.  Had fields, planted with marijuana, been observable from an airplane or helicopter flying at a normal altitude for ordinary purposes (as opposed to surveillance in search of marijuana), then the “plain view” doctrine would have prevailed.

“It is of no moment that defendant could not effectively post his sky,” the decision read. “Technology has produced many and varied means of observation and surveillance. But the fact that something can be done does not make the doing of it constitutional.”

This sentence, apart from the rest of the decision, provides an important policy statement as science comes up with more and varied ways of undermining people’s privacy.  While most courts have drawn exceptions around technology, suggesting that since people are aware that technology has lowered the bar on intrusiveness, it’s unreasonable to think that they can maintain privacy, Vermont’s “old school” approach that privacy trumps technological innovation is a refreshing change.  Still, the decision fails to rely on this dicta, and instead resorts to a heavily fact-specific ruling.

Since the police chopper was flying so close to the ground and was there for the purpose of searching for marijuana cultivation, the scope of intrusiveness was unreasonable, and it therefore violated the warrant requirement.  Also relevant was the defendant’s clearly manifested desire to maintain the privacy of his property.  Of course,  this fact, together with the appearance of marijuana growing in the wild in a state part around the defendant’s property, gave rise to the police interest in seeing just what he was up to in the first place, making it a double edged sword.

It’s unclear that this decision will have much applicability to other cases, given its heavy reliance on the specific facts of the case, but it’s always good to hear about a court that remembers that reasonableness remains a component of search and seizure law.