Marijuana Policy Project

Vermont residents have a broad right to privacy “that ascends into the airspace above their homes and property,” the Supreme Court ruled Friday in overturning a felony marijuana conviction based on an unconstitutional flyover by a military helicopter.

“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,” Associate Justice Marilyn Skoglund wrote for the court’s 4-1 majority.

“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 high court’s decision addresses an issue justices had not tackled previously, Skoglund wrote in a 17-page opinion. Concurring were Chief Justice Paul Reiber and Associate Justices Brian Burgess and Denise Johnson. Associate Justice John Dooley, in a partial dissent, said the majority’s opinion was too far-reaching, but he agreed there were constitutional problems with law-enforcement’s methods.

State residents are certain to benefit from the ruling, said Middlebury lawyer William Nelson, who argued the case on behalf of defendant Stephen Bryant of Goshen.

“The decision is a boon to all Vermonters,” Nelson said. “It protects our privacy when we are out of doors, on our own property, and in our own yards.”

The case began in summer 2003 when Bryant, a roofer in his mid-50s whose remote Addison County home sits near U.S. Forest Service land, told a local official he didn’t want trespassers. The official, unnamed in the court’s decision, “found defendant’s insistence on privacy to be ‘paranoid,’” Skoglund wrote, and suggested a Vermont State Police team conduct a flyover to scour for marijuana.

Rules governing the Marijuana Eradication Team, which used Vermont Army National Guard helicopters and pilots, required flights to remain at least 500 feet off the ground, according to the ruling. But the Aug. 7, 2003, surveillance sortie dipped to some 100 feet and remained above Bryant’s property for up to 30 minutes.

Troopers observed marijuana plants, then used that information to obtain a search warrant, Skoglund wrote. Bryant was charged with felony marijuana possession and cultivation. He argued at trial he required marijuana to ease severe pain from a near-fatal work accident 20 years earlier. Jurors acquitted him of possession but convicted him on the cultivation charge.

In June 2005 a judge sentenced him to 45 days in jail. The appeal followed.

The Supreme Court’s decision ends the proceedings against Bryant.

“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,” Skoglund wrote.

Dooley’s eight-page partial dissent argued the majority’s opinion went too far.

“The essential question is when aerial surveillance will be considered a search,” he wrote. “We do not serve the public interest if the answer to that seemingly simple question can be determined only in hindsight, after evaluating myriad factors.”

Prosecutor Christopher Perkett, a deputy Addison County state’s attorney, did not return a call seeking comment Friday.

Legal expert Cheryl Hanna said the ruling serves as further evidence the state Constitution, and the Supreme Court’s interpretation of it, gives Vermonters greater privacy protection than federal laws do.

“A lot of people feel the federal government doesn’t respect privacy rights after Sept. 11,” said Hanna, a professor at Vermont Law School in South Royalton. “Vermonters, at least at the state level, have that additional check on what the government can do.”

Bryant could not be reached Friday. He lives an austere life in a home without electricity or running water — and he might not even know about the ruling that cleared him, Nelson said.