Sunday, March 30
MONTPELIER, Vt. — The state Supreme Court ruled Friday that Vermonters' right to privacy extends to the airspace above their homes, throwing out a felony marijuana cultivation conviction against a man who said surveillance by a low-flying helicopter was an invasion of privacy.

In a 4-1 decision, the justices said the helicopter wasn't high enough when it went looking for marijuana plants outside his home.

The lone dissenter, Justice John Dooley, agreed that airspace is protected but said the majority went overboard in reversing the 2005 conviction of Stephen Bryant.

"It doesn't matter if the invasion comes on wheels or on helicopter rotors," said Bryant's lawyer, William Nelson. "Vermonters have a right to expect the government will not be intruding on their privacy, whether it's in their house, in their backyard or on their property."

Bryant, a 57-year-old contractor, testified at his 2005 trial in Vermont District Court in Middlebury that he uses marijuana as an analgesic, to cope with pain he suffers as the result of a construction accident in the 1970s. His property, on a wooded hillside in a remote area of Goshen, is accessible by a locked gate on a U.S. Forest Service road.

The case began after a Forest Service official, believing Bryant "paranoid" about his privacy, suggested to Vermont State Police that it might be a good idea to do a fly-over to look for marijuana.

On Aug. 7, 2003, a state trooper and an Army National Guard pilot flew over the property, the National Guard helicopter hovering about 100 feet above it for 15 to 30 minutes, according to Friday's court opinion.

They spotted two plots of marijuana growing about on his property and applied for a search warrant based on what they saw, eventually finding about 45 plants.

Bryant, who was charged with cultivation and possession of marijuana, lost his bid to suppress the marijuana evidence before his trial. At trial, a jury convicted him of cultivation but acquitted him of possession.

Under National Guard rules, aircraft participating in counter-drug surveillance are supposed to maintain a minimum altitude of 500 feet. Under Vermont law, the standard for aircraft is the same, except for when they're flying above open water or sparsely-populated areas.

The trooper and pilot testified that they maintained that altitude throughout the flight, but witnesses — including one who said the helicopter was so low he could've hit it with a rock — said the helicopter was 100 feet up at most. A trial judge said the trooper and pilot weren't credible in saying they stayed at 500 feet, but also ruled that Bryant had no reasonable expectation of privacy from the sky.

In Friday's ruling, the justices disagreed.

"The occupants 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," they said in the ruling.

"The actions of law enforcement — flying only 100 feet above the ground for up to 30 minutes over a hillside home — were an unreasonable intrusion of privacy that triggers constitutional protection," they wrote.

Bryant could not be reached for comment. He doesn't have a telephone, according to Nelson, who called the ruling an important one for privacy — and for naked sunbathers.

"It's an opinion that will have broad effect, because it sets out a constitutional rule that applies to aerial surveillance throughout the state. Exactly how the rules will evolve is up in the air, if you'll pardon the pun," he said.

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