VT: Helicopter surveillance of a marijuana patch as low as 100′ violated state constitution

A helicopter did a flyover of appellant’s marijuana patch, sometimes as low as 100′, in violation of FAA rules. This violated the Vermont constitution’s hightened protection in property. State v. Bryant, 2008 VT 39, 183 Vt. 355, 950 A.2d 467 (2008):

[*P23] Since the rulings in Dow Chemical, Ciraolo and Riley, and despite the fact that all the Riley opinions engaged in a multi-factored analysis, some state courts have relied solely on the legality of a helicopter’s position in public airspace to determine whether the aerial surveillance at issue was a search. See, e.g., State v. Ainsworth, 310 Ore. 613, 801 P.2d 749, 750-52 (Or. 1990) (upholding surveillance from helicopter solely on basis of lawfulness of officer’s vantage point, where testimony as to altitude ranged from fifteen feet above the tree line to “pretty close to four or five hundred feet”). Because FAA regulations allow helicopters to fly at any altitude “if the operation is conducted without hazard to persons or property on the surface,” 14 C.F.R. § 91.119 (emphasis added), the inevitable result of this reasoning-in the absence of more restrictive state aviation laws-is that the dangerousness of police surveillance may become the yardstick by which constitutional privacy protection is measured. As a case on point, in Commonwealth v. Oglialoro, the Supreme Court of Pennsylvania reasoned that by using a transparent or translucent roof on a pole barn located within the curtilage of the defendant’s house, the defendant “knowingly exposed his [marijuana plants] to persons lawfully operating aircraft over his property who might decide to take a look.” 525 Pa. 250, 579 A.2d 1288, 1292 (Pa. 1990). The court thus rejected the suggestion that any expectation of privacy attached in such situations. Id. However, the court held that the police-surveillance flight, which involved a helicopter hovering fifty feet above the barn for fifteen seconds, had violated FAA regulations and thus the Fourth Amendment because it “represented a hazard to persons and property on the ground.” Id. at 1294.

. . .

[*P26] A remaining group of state courts rely on a multitude of factors of their own articulation. See, e.g., Commonwealth v. One 1985 Ford Thunderbird Auto., 416 Mass. 603, 624 N.E.2d 547, 550-51 (Mass. 1993) (upholding surveillance where helicopter was operating at altitudes of 700 feet and above after considering, (1) “whether the police had a lawful right to be where they were,” (2) “whether the public had access to, or might be expected to be in, the area from which the surveillance was undertaken,” (3) “the nature of the intrusion,” and (4) “the character of the area (or object) which was the subject of the surveillance”). And, in the view of at least one state court, the legality of the surveillance can depend, in part, on whether the aerial observation was “part of [an] investigative operation” or was instead “wholly fortuitous.” State v. Vogel, 428 N.W.2d 272, 274 (S.D. 1988) (upholding observation made from an airplane operating at an altitude of 500 feet because of the legality of the “flight path” as well as its fortuitousness); cf. Ainsworth, 801 P.2d at 753 (“While it is true that absence of a purposive intrusion into a protected area is some indication that no search has occurred, it does not follow that purposive police action, alone, transforms a permissible observation into an unconstitutional search.”). But see Thunderbird, 624 N.E.2d at 551 (“‘[I]f there is some justification for concentrating a surveillance on a particular place, as opposed to random investigation to discover criminal activity, that factor is weighed in the balance and contributes to justification for the surveillance.'” (quoting United States v. Allen, 633 F.2d 1282, 1290 (9th Cir. 1980)).

[*P27] It is our opinion that many of the factors relied on by our sister states and the Supreme Court in Riley are relevant to evaluating the legitimacy of privacy expectations under Article 11 in the context of the aerial surveillance at issue in this case. The legitimacy of an individual’s expectation of privacy is a broad question of “‘private, subjective expectations and public norms.'” Rheaume, 179 Vt. 39, 2005 VT 106, P 8, 889 A.2d 711 (quoting Blow, 157 Vt. at 517-18, 602 A.2d at 555). When we declined to adopt the federal open-fields doctrine in Kirchoff, 156 Vt. at 10, 587 A.2d at 994, we recognized that 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. See, e.g., Geraw, 173 Vt. at 352-53, 795 A.2d at 1221-22; Blow, 157 Vt. at 518-19, 602 A.2d 556; Brooks, 157 Vt. at 493-94, 601 A.2d 964-65. 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. Cf. In re Cohen, 161 Vt. 432, 436, 640 A.2d 34, 37 (1994) (contemplating that an aircraft might fly “low enough to violate [an individual’s] reasonable expectation of privacy”).