Excuse Me While I Post the Sky

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]