Constitutional Law

Excuse Me While I Post the Sky

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Recently I've noted several cases in which state courts have interpreted state constitutions as providing greater privacy protection than the Fourth Amendment, as read by the U.S. Supreme Court, does. Last week the Vermont Supreme Court provided another example, ruling that prolonged helicopter surveillance of a marijuana grower's property from heights as low as 100 feet violated the state constitution's ban on "unreasonable government intrusions into legitimate expectations of privacy." It's not completely clear that the U.S. Supreme Court would have ruled differently under the Fourth Amendment, but I suspect it would have. The most similar case it has addressed involved a police helicopter that circled twice over a marijuana grower's greenhouse at a height of 400 feet, which the Court said did not constitute a search.

In last week's decision, by contrast, the Vermont Supreme Court declared that "Vermont citizens have a constitutional right to privacy that ascends into the airspace above their homes and property":

Vermonters normally expect their property to remain private when posted as such.  We have also recognized that Vermonters normally have high expectations of privacy in and around their homes. Therefore, we think it is also likely that 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….

In this case, defendant has demonstrated that he has a subjective expectation of privacy in his back yard. He has taken precautions to exclude others from his back yard by posting his land and by communicating to a local forest official that he did not want people trespassing on his land….It is of no moment that defendant could not effectively post his sky.

My favorite part is that the state police did the aerial search at the suggestion of that "local forest official," who "found defendant's insistence on privacy to be 'paranoid.'" 

[via the Drug War Chronicle]

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  1. Vermonters normally expect their property to remain private when posted as such.

    They also make decent Cheddar.

  2. I hate police helicopters. What a waste of money and often of lives. Those nosey, noisey bastards intrude upon the lives and TV shows of every city dweller in the land. Fortunately the only time we see them is when the bank robbers try to escape to the hinterlands. No dice baby, there ain’t no place to hide when there ain’t no roads.

  3. They also make decent Cheddar.

    They also have no gun laws. And Vermont is hella beautiful.

  4. Shouldn’t that read “post this guy”? 🙂

  5. My favorite part is that the state police did the aerial search at the suggestion of that “local forest official,” who “found defendant’s insistence on privacy to be ‘paranoid.'”

    That’s not surprising at all. Asserting your rights is worse than committing a crime to government officials.

  6. They also have no gun laws. And Vermont is hella beautiful.

    They also tax the living shit out of you. #1 in the country, no less.

  7. I don’t like the ISS passing overhead. With all of those astronauts looking down upon me. Watching. Waiting. Judging.

  8. My favorite part is that the state police did the aerial search at the suggestion of that “local forest official,” who “found defendant’s insistence on privacy to be ‘paranoid.'”

    That still kind of sucks. One would think a park ranger, of all officials, would be less prone to Big City Bullshit like the WoD…

  9. They also tax the living shit out of you. #1 in the country, no less.

    Vermont: Where others see coincidence, I see consequence. Where others see chance, I see cost.

    One would think a park ranger, of all officials, would be less prone to Big City Bullshit like the WoD.

    My bro and some of his pals got busted by a park ranger once. Turns out they are actually kinda dicks…just like every other type of cop.

  10. MP,

    I like how that ranking table fluctuates (reaches one, then slowly drops off, then shoot back up to around 1, etc.)

    I’m just imagining some politician every couple of years going, “wow, were pretty low as compared to the country, let’s see if we can squeeze a little more out of them.’

  11. But if Vermont cracks down on Marijuana, where are all the Jack Johnson/Dave Matthews/Dispatch/etc.-playing outdoor parties going to take place? Think of the high schoolers!

  12. Turns out they are actually kinda dicks…just like every other type of cop.

    Me and my bros./buddies got stopped by a park ranger once for going off-trail. He let us off with a warning but could have been a much bigger dick.

  13. Ah, police helicopters. Brings back memories of the L.A.P.D. shining big spotlights into our back yards at night.

  14. @ Taktix?,

    “forest official” can mean many things in VT, not just a friendly park ranger giving you directions to the portapotty.

    some, like game wardens, take their jobs VERY seriously. and attend courses at the state Police Academy.

  15. Game wardens are assholes who can trespass on your property without a warrant.

  16. I once got a federal speeding ticket in a national park. A federal speeding ticket. The only good part was that it was for a lot less than the state variety would’ve been.

  17. Back in high school, a few friends and I were tripping on LSD near a lake north of Raleigh, NC. A ranger came along and watched us for about 20 minutes, from the woods nearby, before we noticed him.

    It was really scary, given the circumstances, but he simply told us to pick up our trash and make sure the fire was put out properly. We had beer and pot and were consuming openly.

    That’s the kind of government official I’d like…

  18. how do you know he watched you for 20 minutes if you didn’t know he was there?

  19. how do you know he watched you for 20 minutes if you didn’t know he was there?

    Way to poke holes in a perfectly good anecdote.

    Sheesh.

  20. That’s the kind of government official I’d like…

    More than say, 15 years ago, many cops used to actually be pretty cool when it came to dealing with idiot teenagers. They still realized “hey, they’re just kids and I was an idiot too” instead of “respect my authoritah”. They also tended to let women off the hook more too, even if they weren’t hot.

    I wonder how many cops nowadays, when catching kids with beer, will just do the old “pour it all out and get out of here”.

  21. One time I emailed the county cops about whether the helicopter that had spent 2 hours each, 3 nights in a row, orbiting over our community was theirs. Their brilliant answer was ‘We don’t know, was it a police helicopter?’

  22. ===
    My favorite part is that the state police did the aerial search at the suggestion of that “local forest official,” who “found defendant’s insistence on privacy to be ‘paranoid.'”
    ===

    In the United States you should be free to be paranoid. That is to say, if nobody (in the government, at least) is out to get you, so what? Who is harmed by your paranoid belief? But if you are NOT free, you are NOT paranoid, only very wary, as you accurately recognize and respond understandably to your actual circumstances. Am I wrong? Isn’t it “being well adjusted” to be “paranoid” in a war zone? And isn’t the entire US a war zone under the War on Drugs?

    I don’t want to live in a war zone. End the War on Drugs, not to mention the endless War on Terrorism. The best way for our officials to fight terrorists, by the way, is to conduct our affairs and obtain what our economic health and national security require, in ways that do not inspire terrorist response. In other words, as Ron Paul and others have said, we need a very different foreign policy. But no, our fearless leaders would rather send our patriots in the military to die needlessly in the desert sand. I’m done with such leadership, regardless of its party affiliation. Are you?

  23. I knew a guy in college who’s dad, uncles and other shiftless relatives were NY state cops. he had a roomate moved and almost thrown out of school for lighting a joint in their dorm room.

    He became a serious pothead and drunk in school, of course.

    Anyway, he got killed on the thruway while speeding a couple of year after college, after he too became a state cop.

  24. how do you know he watched you for 20 minutes if you didn’t know he was there?

    We heard noises coming from the area, but were unable to discern whether they were from:

    A. an animal
    B. a person sneaking up on us (Ding!)
    C. a hallucination (also likely contributed)

    I personally thought it was C, and was trying to tell everyone not to worry. If it were I real cop, I sure would have shit the bed on that call…

  25. But if Vermont cracks down on Marijuana, where are all the Jack Johnson/Dave Matthews/Dispatch/etc.-playing outdoor parties going to take place?

    I was about to say something about how I plan to move to Vermont as soon as it secedes from the U.S., but never mind Vermont’s taxes, I could never put up with that much Dave Matthews.

  26. “I don’t want to live in a war zone. End the War on Drugs, not to mention the endless War on Terrorism. The best way for our officials to fight terrorists, by the way, is to conduct our affairs and obtain what our economic health and national security require, in ways that do not inspire terrorist response. In other words, as Ron Paul and others have said, we need a very different foreign policy.”

    When I saw the second airliner smash into the WTC, live on TV and knowing that the rest of the nation is seeing this too, I said to myself.

    I said, “Self, say goodbye to what little is left of our raggedy and tattered remnant of the Constitution. Things are only going to get rapidly worse from here.”

    / I feel no measure of satisfaction for having that revelation, only dread for what our government will do in the name of security.

  27. I said, “Self, say goodbye to what little is left of our raggedy and tattered remnant of the Constitution. Things are only going to get rapidly worse from here.”

    I had a similar thought. Fifty years of cold war finally comes to an end only to have the US as we know it die due to a single act of terrorism.

  28. One time I emailed the county cops about whether the helicopter that had spent 2 hours each, 3 nights in a row, orbiting over our community was theirs. Their brilliant answer was ‘We don’t know, was it a police helicopter?’

    I guess the proper comeback would be, “I don’t know either — that’s what I was asking you. Do you have anyone in the department who knows where your helicopter goes at night? The pilot, perhaps?”

    Of course, you would want to send such an e-mail from your OBSCUREHANDLE@yahoo.com address, not from your REALNAME@PLACEOFBUSINESS.com address.

  29. I was about to say something about how I plan to move to Vermont as soon as it secedes from the U.S., but never mind Vermont’s taxes, I could never put up with that much Dave Matthews.

    Maybe the Vermonters who want to secede from the US should have a steel cage death match with the Vermonters who want to secede from Vermont.

  30. What Stevo said. And when simply making comments about the service of your community’s finest, you would use FAKEMAIL@MYBALLS.com.

  31. Of course, you would want to send such an e-mail from your OBSCUREHANDLE@yahoo.com address, not from your REALNAME@PLACEOFBUSINESS.com address.

    Careful posting that online, you could get spam…

  32. ‘Scuse me while I puke and die.

  33. zig zag man …it sounds like you have good libertarian instincts….contrast what you and other good libertarians thought with the way warmongerers reacted:

    here’s a vintage quote from Matt Welch:

    “Welcome to War. Sounds like a strange and unpleasant thing to say, but these are strange and unpleasant times, requiring unusual responses. Like many of you, I am reading and hearing and watching too much about the wicked horror of Sept. 11, and finding it a challenge to keep track of how it is already changing our lives. The biggest question facing Americans and other decent people is how the civilized world and its strongest country should respond to this mass murder. I, for one, advocate a Global War to abolish terrorism. “

  34. “found defendant’s insistence on privacy to be ‘paranoid.'”

    So now allegations of paranoia replace probable cause and/or reasonable suspicion. Seems this citizen’s paranoia was correct and he joins those who fly the Gadsden flag, respect the Constitution, worship openly or query the denizens of city hall, state capitol or the white house.

  35. My favorite part is that the state police did the aerial search at the suggestion of that “local forest official,”

    But were these shenanigans cheeky and fun, or cruel and tragic?

  36. Also applicable (w/ mod):

    “No, man, I’m just saying… I’m sayin’, if-if you own Vermont property, right, do you own, like, the air and the sky?”

    “Nobody owns the air. God owns – it’s God’s air”

  37. One would think a park ranger, of all officials, would be less prone to Big City Bullshit

    So I go to my kid’s open house last night and I hear about how last year a disgruntled parent called the fire department because the kindergarten teacher had her classroom decked out to the nines and all that paper was a fire hazard. The jack asses at the fire department trot right out and cite the school. So this year, the fire department tells the school just be ready, cuz we are planning a surprise inspection, elbow, wink, nod, the day after open house. So all the teachers have to take down all that cool stuff the kids made before 9:00 am this morning.

    Big City Bullshit is EVERYWHERE, even in the ‘burbs.

  38. So now allegations of paranoia replace probable cause…

    Dam straight Grump! If you ain’t doing anything wrong you got no reason to be paranoid, dude.

  39. Matt Welch went on to write this a few sentences later: “There aren’t many who can think and write clearly in the wake of this terrible sadness, and I don’t claim to be one of them, but I will try.”

    http://www.mattwelch.com/archives/2001/09/16-week/

    Indeed, he wasn’t thinking clearly on 9/17/2001.

  40. In Austin, Texas, the city spent $315,000 on an audit to find ways to reduce police expenses. One of the recommendations was to discontinue “air enforcement” (plane and helo). That would save the city one million annually in operating costs and almost $700,000 in staff costs. You can guess what the police chief thought of this recommendation.

  41. They also tax the living shit out of you. #1 in the country, no less.

    Dang, beat me to it.

  42. Fifty years of cold war finally comes to an end only to have the US as we know it die due to a single act of terrorism.

    Well, it was pretty much hanging on by a thread, after 70 years of New Dealing, and nearly that much WoDing.

    Really, when Bushchimpler went looking around for pieces of the Constitution to stomp on, he found hardly anything left.

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