State v. Bryant

Citation950 A.2d 467,2008 VT 39
Decision Date28 March 2008
Docket NumberNo. 05-252.,05-252.
PartiesSTATE of Vermont v. Stephen BRYANT.
CourtUnited States State Supreme Court of Vermont
950 A.2d 467
2008 VT 39
STATE of Vermont
Stephen BRYANT.
No. 05-252.
Supreme Court of Vermont.
March 28, 2008.

[950 A.2d 469]

William H. Sorrell, Attorney General, and John Treadwell, Assistant Attorney General, Montpelier, for Plaintiff-Appellee.

[950 A.2d 470]

William A. Nelson, Middlebury, for Defendant-Appellant.



¶ 1. 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. Accordingly, we reverse.

¶ 2. Defendant was charged with felony possession and cultivation of marijuana. 18 V.S.A. § 4230(a)(3), (4). He moved to suppress from evidence the marijuana plants discovered growing by his house, alleging a violation of Chapter I, Article 11 of the Vermont Constitution. The trial court denied the motion. Defendant also sought to rely on a defense that he grew and used marijuana out of medical necessity to address his chronic pain. At trial, the court declined to treat the defendant's physician-witness as an expert and disallowed testimony about his experience with the medicinal use of marijuana. A jury convicted defendant on the cultivation charge, but not on the possession charge. Defendant appeals from the trial court's denial of his motion to suppress, and from its decision to exclude defendant's offered expert in the subject of the medicinal use of marijuana. We reverse on the first issue and decline to reach the second.

¶ 3. Defendant argues that an unconstitutional aerial surveillance of his property resulted in the issuance of a search warrant that led to the discovery of defendant's marijuana cultivation. At a hearing on the motion to dismiss, the following facts were found by the court or were uncontested. Defendant lives in a remote area on a wooded hill in the town of Goshen, in Addison County. The property is accessible by a locked gate on a Forest Service road to which only defendant, his partner, and the Forest Service have keys. Beyond the gate, the dirt road passes defendant's homestead and continues a short distance into the National Forest, where the road dead-ends. Where the road cuts across defendant's property, the Forest Service has a restricted right-of-way. Defendant has posted prominent no-trespassing signs around his property. Prior to the aerial surveillance, defendant told a local forest official that he did not want the Forest Service or anyone else trespassing on his land.

¶ 4. The local forest official suspected that defendant was responsible for marijuana plants that were reportedly growing in the National Forest (not on defendant's property) because he found defendant's insistence on privacy to be "paranoid." The forest official suggested to the State Police that a Marijuana Eradication Team (MERT) flight over defendant's property might be a good idea. MERT is an anti-drug program, and MERT flights are executed by the Vermont State Police in cooperation with the Army National Guard. A state trooper, scheduled to do a MERT flight, was given the information identifying the defendant's residence as a good target. On August 7, 2003, the state trooper and an Army National Guard pilot flew in a National Guard helicopter to the Goshen area. Having previously located the site on a map, the trooper directed the pilot to defendant's property, where two

950 A.2d 471

plots of marijuana were observed growing about 100 feet from the house.

¶ 5. Defendant introduced testimony of several people who witnessed the flight. One witness, who was working outside at the time of the flyover, described the helicopter as being at twice the height of her house, or approximately 100 feet above ground level. She testified that the noise was "deafening." She observed the helicopter spend "a good half-hour" in the area of defendant's residence, where it circled "very low down to the trees." She believed that the helicopter was approximately 100 feet above defendant's property. When questioned about the altitude of the helicopter, she was certain that it was lower than 500 feet, and she was familiar with estimating such heights as a result of flying with her husband, who was a Navy pilot. She testified that she had seen helicopters in the area before, but that this one was different because "it was around so long and [was] so low and so loud." Another witness testified that the helicopter was ten to twenty feet above the treetops, and that the tallest trees were about sixty to sixty-five feet in height. He testified that the helicopter was so close that he "could hit it with a rock," and that he was certain that it was not 500 feet off the ground. The third witness was a member of the Vermont National Guard and generally familiar with helicopters. He observed the helicopter flying at about 120 feet, or at approximately twice the height of the trees. When he went outside, he felt the "concussion[-like]" feeling that is caused by air movement from a helicopter, and he could still feel the vibration when he returned inside the town offices in Goshen, where he was working. He testified that he saw the helicopter fly to the area of the defendant's property, about a mile away, where it remained for between forty-five minutes and an hour. He was certain that it never rose more than 200 feet above the ground. He noted that he had seen helicopters checking power lines in the Goshen area before, but that the altitude of this one was noticeable because the other helicopters did not fly as low.

¶ 6. After the flight, the state trooper prepared an application for a search warrant based solely on his observation during the aerial surveillance of what he believed to be marijuana plants. In the application, the trooper characterized the surveillance as having been from "an aircraft at least 500 feet above the ground." The warrant was issued and executed, and three marijuana plots were discovered by defendant's home.

¶ 7. Based on the evidence presented at the suppression hearing, the court found that the helicopter circled defendant's property for approximately fifteen to thirty minutes, well below 500 feet in altitude, and at times as low as 100 feet above the ground. Although both the trooper and the pilot testified that the helicopter remained at least 500 feet off the ground at all times, the court did not find their testimony to be credible. The court further found that pilots doing MERT flights in Vermont are told to stay at least 500 feet above the ground and that, according to a National Guard pilot who testified for the State, the reason MERT pilots are so directed is to avoid invasions of privacy.

¶ 8. The court, however, denied defendant's motion, holding that defendant had no reasonable expectation of privacy from the sky. The court reasoned that, while helicopter flights over one's property in rural Vermont might be infrequent, a reasonable person would still assume that such flights will happen. The court concluded that the police surveillance was not so intrusive as to violate the Vermont Constitution. We disagree and reverse.

950 A.2d 472

¶ 9. On appeal from a denial of a motion to suppress, this Court applies a deferential standard of review to the trial court's findings of fact. State v. Lawrence, 2003 VT 68, ¶ 8, 175 Vt. 600, 834 A.2d 10 (mem.). If the findings of fact are not clearly erroneous, we then review the legal issues de novo. Id. ¶ 8. Here, defendant does not challenge the findings of the lower court, only its legal conclusions. Our examination of those legal conclusions is therefore nondeferential and plenary. MacDonough-Webster Lodge No. 26 v. Wells, 2003 VT 70, ¶ 17, 175 Vt. 382, 834 A.2d 25.

¶ 10. Article 11 of the Vermont Constitution protects the people's right to be free "from unreasonable government intrusions into legitimate expectations of privacy." State v. Rheaume, 2005 VT 106, ¶ 8, 179 Vt. 39, 889 A.2d 711 (citing State v. Kirchoff, 156 Vt. 1, 6, 587 A.2d 988, 992 (1991)).1 When government conducts a warrantless search, the law presumes that the intrusion is unreasonable. State v. Bauder, 2007 VT 16, ¶ 14 n. 4, 181 Vt. 392, 924 A.2d 38. The aerial surveillance at issue in this case was warrantless, and therefore presumptively unreasonable. Thus, the sole issue in this case is whether the aerial surveillance constitutes a search under Article 11 of Vermont's Constitution.

¶ 11. An Article 11 search occurs when the government intrudes into "areas or activities," State v. Geraw, 173 Vt. 350, 352, 795 A.2d 1219, 1221 (2002), that are the subject of "`legitimate expectations of privacy.'" Rheaume, 2005 VT 106, ¶ 8, 179 Vt. 39, 889 A.2d 711 (quoting State v. Welch, 160 Vt. 70, 76, 624 A.2d 1105, 1108 (1992)). Under Article 11, the question of whether an individual has a legitimate expectation of privacy "`hinges on the essence of underlying constitutional values — including respect for both private, subjective expectations and public norms.'" Id. (quoting State v. Blow, 157 Vt. 513, 517-18, 602 A.2d 552, 555 (1991)). Therefore, in order to invoke Article 11 protection, a person must "`exhibit[] an actual (subjective) expectation of privacy ... that society is prepared to recognize as reasonable.'" Id. (quoting Katz v. United States, 389 U.S. 347, 361, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) (Harlan, J., concurring)) (internal quotation marks omitted). In other words, Article 11 requires an individual to have "`conveyed an expectation of privacy in such a way that a reasonable person would conclude that he sought to exclude the...

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