2008 VT 39




State v. Bryant (2005-252)
 
2008 VT 39
 
[Filed 28-Mar-2008]
 
NOTICE: 
This opinion is subject to
motions for reargument under V.R.A.P. 40 as well as formal revision
before
publication in the Vermont Reports.  Readers are requested to
notify the
Reporter of Decisions, Vermont Supreme Court, 109 State Street,
Montpelier, Vermont 05609-0801 of any errors in order that corrections
may be made before
this opinion goes to press.
 
 
                                                                    
2008
VT 39
 
                                                                  
No.
2005-252
 
 
State
of
Vermont                                                                            
Supreme
Court
 
On Appeal from
    
v.                                                                                                
District
Court of Vermont,
Unit No. 2, Addison Circuit
 
Stephen
Bryant                                                                               
February
Term, 2007
 
 
Helen M. Toor J. (motion to suppress); Christina C. Reiss, J. (final judgment)
 
William H. Sorrell, Attorney General, and
John Treadwell, Assistant Attorney General,
  Montpelier, for Plaintiff-Appellee.
 
William A. Nelson, Middlebury, for
Defendant-Appellant.
 
 
PRESENT:  Reiber, C.J., Dooley, Johnson,
Skoglund and Burgess, JJ.
 
¶  1.          
SKOGLUND, J.  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 lead 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 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.
¶  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, ___ Vt. ___, 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 (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 (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 public.’ “  Id. (quoting Blow, 157 Vt. at 517, 602 A.2d at 555).  “Whether the steps taken are adequate for this purpose will
depend on the specific facts of each case.”  Kirchoff, 156 Vt. at 10, 587 A.2d at 994.



¶  12.       We have often noted the “significance of
the home as a repository of heightened privacy expectations,” and have deemed
those heightened expectations legitimate.  Geraw, 173 Vt. at 352-53, 795
A.2d at 1221; see also Blow, 157 Vt. at 518, 602 A.2d at 555. 
Therefore, although we have disagreed amongst ourselves about the extent to
which circumstances may alter the general rule, see Geraw, 173 Vt. at
364-68, 795 A.2d at 1229-33 (Skoglund, J., dissenting) (reasoning that because
defendant had no legitimate expectation of privacy in consensual conversation with
known police officer in defendant’s home, the officer’s surreptitious recording
of the conversation was not a search), government intrusions into the home are
searches for purposes of Article 11 even if an individual fails to take
affirmative steps to convey his expectation of privacy.  See Blow, 157 Vt. at 519, 602 A.2d at 556 (holding that police’s warrantless recording of conversation
between confidential informant and defendant in defendant’s home violated
Article 11).  



¶  13.       A home’s curtilage—the “area outside the
physical confines of a house into which the ‘privacies of life’ may extend”—merits
“the same constitutional protection from unreasonable searches and seizures as
the home itself.”  State v. Rogers, 161 Vt. 236, 241, 638 A.2d 569, 572
(1993) (quoting Oliver v. United States, 466 U.S. 170, 180 (1984)). 
However, relying on the principle that there is no invasion of privacy—and
therefore no search—when government observes that which is willingly exposed to
the public, see Kirchoff, 156 Vt. at 10, 587 A.2d at 994, we have
consistently held that an individual must take affirmative steps to protect his
privacy in his curtilage and his “open fields”—the real property beyond his
curtilage.  See State v. Costin, 168 Vt. 175, 182, 720 A.2d 866, 871
(1998) (holding that video surveillance of the defendant’s open fields was not
a search because the defendant took no steps to exclude the public from his
land); see also State v. Hall, 168 Vt. 327, 331, 719 A.2d 435, 438
(1998) (holding that officer’s monitoring of the defendant’s curtilage from his
open fields was not an Article 11 search where the defendant took no steps to
prevent public from traversing open fields to reach curtilage or to prevent
view of curtilage from open fields); Rogers, 161 Vt. at 248-49 (same). 
Government does conduct a search when it intrudes onto open fields that a
reasonable person would expect to be private.  Kirchoff, 156 Vt. at 10, 587 A.2d at 994.  Fences, gates, and no-trespassing signs generally suffice to
apprise a person that the area is private.  Id.
¶  14.       In this case, we consider whether
surveillance from an Army helicopter, circling at 100 feet over defendant’s
home and garden for fifteen to thirty minutes for the purpose of detecting
contraband, violated his legitimate expectations of privacy.  Whether and when
aerial surveillance constitutes a search are questions that we have not
squarely confronted before.  We decide this case solely on Vermont
Constitutional grounds, but may be guided by decisions of our sister states and
the United States Supreme Court on similar questions.[2] 
We begin our analysis with a survey of those decisions. 
¶  15.       The United States Supreme Court has
decided three aerial-surveillance cases; the Court ruled in each that the
surveillance at issue was not a search within the meaning of the Fourth
Amendment.  Florida v. Riley, 488 U.S. 445, 448 (1989); Dow
Chem. Co. v. United States, 476 U.S. 227, 239 (1986); California
v. Ciraolo, 476 U.S. 207, 214 (1986).  For the reasons explained below, we
find minimal guidance in these decisions.



¶  16.       In Dow Chemical, the Court held
that enhanced aerial photography of an industrial complex from an aircraft
lawfully operating at altitudes of 12,000 feet, 3,000 feet and 1,200 feet was
not a search.  476 U.S. at 239.  In Dow, the Court likened an industrial
complex to an open field, and reasoned that “as such it is open to the view and
observation of persons in aircraft lawfully in the public airspace immediately
above or sufficiently near the area for the reach of cameras.”  Id.  The Court also found it “important that this is not an area immediately
adjacent to a private home, where privacy expectations are most heightened.”  Id. at 237 n.4.  In light of our rejection of the federal open-fields doctrine,[3]
and the fact that the aerial surveillance in this case took place over
defendant’s curtilage, we find Dow Chemical unpersuasive for purposes of
our Article 11 analysis.
¶  17.       In Ciraolo, the Court examined “whether
naked-eye observation of the [defendant’s] curtilage by police from an aircraft
lawfully operating at an altitude of 1,000 feet violates an expectation of
privacy that is reasonable.”[4]  476 U.S. at 213.  The Court found that the defendant’s construction of tall fences around his
yard  “clearly . . . met the test of manifesting his own subjective intent to
maintain privacy,” but found that the defendant could not reasonably have
expected that his garden was protected from public or official inspection from
the air.  Id. at 211-14.  The Court likened the public airways to public
highways, and wrote that “Fourth Amendment
protection . . .  has never been extended to require . . .
officers to shield their eyes when passing by a home on public thoroughfares.” 
  Id. at 213.  Further, the Court reasoned that “the mere fact that an
individual has taken measures to restrict some views of his activities” does
not “preclude an officer’s observations from a public vantage point where he
has a right to be and which renders the activities clearly visible.”  Id.  



¶  18.       We are not persuaded that the facts of Ciraolo
make it analogous to this case.  In Ciraolo, the five-member majority
relied heavily on likening airplane travel above the defendant’s suburban house
at 1,000 feet to “passing by a home on public thoroughfares,” id. at
213, reasoning that “[i]n an age where private and commercial flight in the
public airways is routine, it is unreasonable for [the defendant] to expect
that his marijuana plants were constitutionally protected from being observed .
. . from an altitude of 1,000 feet.”  Id. at 215.  We find the air
travel in this case—fifteen to thirty minutes of hovering over defendant’s
property at altitudes as low as 100 feet—to be distinctly unlike “passing by a
home on public thoroughfares.”  Cf. Riley, 488 U.S. at 458-61 (Brennan, J., dissenting) (distinguishing between  helicopter surveillance
at an altitude of 400 feet and viewing land from a public road).  
¶  19.       In addition, we find the Court’s analysis
in Ciraolo to lack the consideration for the significance of the home
and its curtilage “as repositor[ies] of heightened privacy expectations” that
our Article 11 jurisprudence demands.  Geraw, 173 Vt. at 352-53, 795
A.2d at 1221-22; see also Rogers, 161 Vt. at 241, 638 A.2d at 572; Blow,
157 Vt. at 518, 602 A.2d at 555; State v. Brooks, 157 Vt. 490, 493, 601
A.2d 963, 964-65 (1991).  The Ciraolo Court gave no weight to the fact
that the aerial surveillance targeted a home and its curtilage.  This omission
is glaring, especially in light of the Court’s acknowledgment in Dow
Chemical, issued on the same day, that “privacy expectations are most
heightened” in areas immediately adjacent to homes.  Dow Chemical, 476 U.S. at 237 n.4; see Ciraolo, 476 U.S. at 219 (Powell, J., dissenting) (characterizing the
majority’s opinion as “curiously at odds with [the Court’s] purported
reaffirmation of the curtilage doctrine . . . in . . . Dow Chemical”).



¶  20.       In Riley, the Court evaluated an
aerial surveillance more analogous to the one at issue in this case; the
surveillance was conducted in a helicopter being operated closer to the
ground.   The defendant lived in a mobile home on five acres of rural property
with a greenhouse located ten to twenty feet behind the home.  A wire fence
surrounded the home and greenhouse, and the property was posted with a “DO NOT
ENTER” sign.  Based on an anonymous tip that marijuana was being grown on the
defendant’s property, sheriff’s department officers circled twice over the
property in a helicopter at an elevation of 400 feet.  At the time of the
flyover, the greenhouse had two roof panels missing and was open on two sides. 
Based on what an officer saw from the helicopter, he obtained a warrant, and
subsequently found marijuana growing in the greenhouse. The Florida Supreme
Court held that the flyover constituted a search under the Fourth Amendment for
which a warrant was required.  
¶  21.       The United States Supreme Court ruled
that Ciraolo controlled, and reversed.  Riley, 488 U.S. at 449, 451.  Justice White’s opinion for a plurality of four Justices opined that,
while the defendant’s precautions evinced a subjective expectation of privacy,
he “could not reasonably have expected that his greenhouse was protected from
public or official observation from a helicopter.”  Id. at 450-51. 
Justice White cautioned that “it is of obvious importance that the helicopter
in this case was not violating the law,” as it was within navigable
airspace.  Id.  “We would have a different case,” the plurality
reasoned, “if flying at [400 feet] had been contrary to law or regulation.”  Id. at 451.  Cautioning that “not . . . [every] inspection of the curtilage of a
house from an aircraft will always pass muster . . . simply because the plane
is within the navigable airspace specified by law,” id., the plurality
also found relevant the fact that the surveillance was relatively
nonintrusive.  “Neither is there any intimation here,” it reasoned, “that the
helicopter interfered with [the defendant’s] normal use of . . . the curtilage
. . . [or that] intimate details connected with the use of the home or
curtilage were observed and there was no undue noise, no wind, dust, or threat
of injury.”  Id. at 452. 



¶  22.       Riley was a badly split decision.  Justice White announced the
judgment of the Court, but his rationale commanded only four votes.  The
remaining five Justices—including Justice O’Connor, who concurred in the
result—discounted the significance of the FAA regulations.  Id. at 452
(O’Connor, J., concurring) (criticizing the plurality for “rest[ing] the scope
of Fourth Amendment protection too heavily on compliance with FAA regulations”);
id. at 458-59 (Brennan, J., dissenting) (“It is a curious notion that
the reach of the Fourth Amendment can be so largely defined by administrative
regulations issued for purposes of flight safety.”); id. at 467
(Blackmun, J., dissenting) (reasoning that the question of whether there was a
Fourth Amendment search “does not depend upon the fact that the helicopter was
flying at a lawful altitude under FAA regulations”).  The remaining Justices
also agreed that a defendant’s reasonable expectation of privacy should be
evaluated by reference to the frequency of other overflights of similar
altitude in the area.  Id. at 454 (O’Connor, J., concurring) (“[W]e must
ask whether the helicopter was in the public airways at an altitude at which
members of the public travel with sufficient regularity that [the defendant’s]
expectation of privacy from aerial observation was not [reasonable].”); id.
at 460, (Brennan, J., dissenting) (“The question before us . . . [is] whether
public observation of [the defendant’s] curtilage was so commonplace that [the
defendant’s] expectation of privacy in his backyard could not be considered
reasonable.”); id. at 467 (Blackmun, J., dissenting) (“[T]he
reasonableness of [the defendant’s] expectation depends, in large measure, on
the frequency of nonpolice helicopter flights at an altitude of 400 feet.”). 
In addition, the remaining five Justices rejected the analogy Justice White
drew between surveillance from a helicopter and ground-level observations from
roads or sidewalks.  As Justice O’Connor reasoned, “individuals who have taken
effective precautions to ensure against ground-level observations cannot block
off all conceivable aerial views of their outdoor patios and yards without
entirely giving up their enjoyment of those areas.”  Id. at 454.



¶  23.       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, 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.”  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.[5] 



¶  24.       Other state courts have developed a more
nuanced approach to privacy protection.  Some courts adopt the reasoning of
Justice White’s plurality in Riley and consider the legality and
intrusiveness of the surveillance flight.  See Henderson v. People,
879 P.2d 383, 389-90 (Colo. 1994) (upholding a surveillance where a helicopter
made five passes above the defendant’s home over the course of several minutes
at or above 500 feet, where there was little evidence of noise, wind, dust,
threat of injury or interference with the defendant’s use of his curtilage, and
where there was no indication that the defendant’s neighbors felt compelled to
exit their houses to observe the commotion); Rowell v. State, 544 So. 2d
1089, 1093 (Fla. Dist. Ct. App. 1989) (upholding a surveillance where an
airplane was operating at unknown altitude but where there was no evidence of
illegality or “obtrusive[ness]”);  State v. Rodal, 985 P.2d 863, 867
(Or. Ct. App. 1999) (upholding a surveillance where a military helicopter made
two passes over the defendant’s home at an altitude of 600 feet because the
helicopter was being operated in a lawful and unintrusive manner); State v.
Wilson, 988 P.2d 463, 465-66 (Wash. Ct. App. 1999) (upholding a
surveillance where an airplane was operating at 500 feet over the defendant’s
rural residence and where no evidence that “visual enhancement equipment” made
the method of viewing intrusive).  
¶  25.       Still other state courts attempt to give
effect to all of the Riley opinions by evaluating legality,
intrusiveness, and the frequency of flight at the altitude at which the
surveillance took place.  In People v. Pollock, for example, the court
acknowledged the legality of a helicopter’s position at the altitude of 200
feet, but struck down the aerial surveillance based on the infrequency of
helicopter flights at 200 feet and the intrusiveness of the “excessive noise”
it created as it circled the targeted area. 796 P.2d 63, 64 (Colo. Ct. App.
1990).  In People v. McKim, the court upheld surveillance conducted from
a helicopter operating at 400 feet where there was “no evidence . . . that the
helicopter surveillance over [the] defendant’s residence interfered with [the]
defendant’s use of his property, or revealed intimate details connected with
the use of his home or curtilage, or created any undue noise, wind, dust, or
threat of injury.”  263 Cal. Rptr. 21, 25 (Ct. App. 1989).  



¶  26.       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., 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) and “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)).
¶  27.       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, 2005 VT 106,
¶ 8 (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”).  



¶  28.       We are also persuaded that the legality of the altitude at
which aerial surveillance takes place can be relevant to the determination of
whether an individual has a legitimate expectation of privacy in his real
property.  Indeed, the citizens of Vermont likely expect that law enforcement
personnel as well as other air travelers will abide by safety rules and other
applicable laws and regulations when flying over their homes.  However, it
simply does not follow that whether a member of the public is abiding by the
law in occupying a particular spot in the public airspace is an adequate test
of whether government surveillance from that same spot is constitutional.  Cf. Riley,
488 U.S. at 453 (O’Connor, J., concurring) (“[T]here is no reason to assume
that compliance with FAA regulations alone determines whether the government’s
intrusion infringes upon the personal and societal values protected by the
Fourth Amendment.”) (quotation omitted).  Therefore, we disagree with those
courts that would use the legality of an aircraft’s position alone to evaluate
the constitutionality of the surveillance conducted aboard it. 



¶ 
29.      
In any event, at
least on the facts of this case, no one factor need act as a litmus test of
constitutionality, because the surveillance at issue here was a patent
violation of defendant’s legitimate expectations of privacy.  We understand
that our abstention from drawing a bright line that makes the legality or
frequency of flights at certain altitudes a quick index to the
constitutionality of aerial surveillance gives limited guidance to trial courts
and law enforcement personnel in the context of other cases.  But we are not
presented with other cases; we are presented only with this case.  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.  Under Kirchoff,
these measures were clearly adequate.  156 Vt. at 10, 587 A.2d at 994 (fences,
gates, and no-trespassing signs generally suffice to apprise a person that an area
is private).  It is of no moment that defendant could not effectively post his
sky.[6] 
For we agree with Justice O’Connor that “even individuals who have taken
effective precautions to ensure against ground-level observations cannot block
off all conceivable aerial views of their outdoor patios and yards without
entirely giving up their enjoyment of those areas,” Riley, 488 U.S. at
454 (O’Connor, J., concurring), and Article 11 does
not require them to try.  See State v. Morris, 165 Vt. 111, 119, 680
A.2d 90, 96 (1996) (Article 11 “does not require the residents of this state to
employ extraordinary . . . means” to maintain their constitutional privacy
rights.).  Technology has produced many and varied means of observation and
surveillance.  But the fact that something can be done does not make the doing
of it constitutional.[7] 
Furthermore, defendant’s subjective expectation that he would be free from this
intrusion—an aerial surveillance that targeted defendant’s home and curtilage,
was highly intrusive, and was in violation of laws governing helicopter
flight—was legitimate.



¶ 
30.      
Several
sets of governmental regulations lend support to our analysis of the legitimacy
of defendant’s expectation of privacy.  In addition to the relevant FAA
regulations, other federal law authorizes the National Guard to assist in state
“counter-drug activities,” 32 U.S.C. § 112, and National Guard regulations
govern those activities.  The National Guard regulations require all aerial
counter-drug operations to adhere to specific altitude restrictions.  National
Guard Training Circular (NGTC) 1-500, Counterdrug Aviation, § 2-10.  The altitude-restriction
regulation begins with the following admonition: “Altitude restrictions exist
for the safety of the flight crew, passengers, aircraft, persons and property
on the ground.  Furthermore, restrictions exist in [counter-drug operations] to
protect the rights guaranteed under the Constitution.”  Id.  In relevant
part, the regulations require that all National Guard aircraft performing
counter-drug missions “will maintain a minimum altitude of 500 feet AGL [above
ground level],” with exceptions not relevant to this case.  Id.
§§ 2-10, 3-18(f).  A mission may be conducted below 500 feet to
verify an eradication or reconnaissance objective if “descent is no lower than
200 feet AGL.”  Id.§ 2-10(b)(4).  “Upon verification . . . the
pilot must return to a minimum of 500 ft AGL.  Sustained flight below 500 ft
AGL is not authorized.”  Id. § 2-10(b)(5). 
¶  31.       There are also Vermont statutes governing
aeronautics.  Specifically,  5 V.S.A. § 421 prescribes minimum altitudes for
the operation of aircraft.  Section 421(3) requires that all aircraft must
maintain “an altitude of 500 feet above the surface, except over open water or
sparsely populated areas.  In this event, the aircraft shall not be operated
closer than 500 feet to any person, vessel, vehicle, or structure.”  Id.  The term “aircraft” includes helicopters.  5 V.S.A. § 202(6).[8] 
Section 421(1) provides that all aircraft, wherever operated, must maintain “an
altitude which will permit, in the event of the failure of a power unit, an
emergency landing without undue hazard to persons or property on the surface.” 
  Id.  This section is identical to the FAA regulation at issue in Oglialoro,
579 A.2d at 1293 n.5 (quoting 14 C.F.R. § 91.79 (1988), recodified at 14 C.F.R.
§ 91.119 (2004)).  Although the FAA regulations allow helicopters to fly at
altitudes below 500 feet, they too insist on this basic emergency-landing
safety rule.
¶ 
32.      
As discussed,
although they are plainly not dispositive of the Article 11 issue, these FAA
and National Guard regulations and Vermont statutes do assist us in determining
where a person’s legitimate expectation of privacy ends.  However, as noted,
because expectations of privacy are not simply a function of the safety
concerns of state and federal governments, we also look to the intrusiveness of
the surveillance. 
¶  33.       The trial court in this case ruled that:



 
[w]hile it may not be a common occurrence
to have helicopters fly over one’s property in rural Vermont, it is not the
frequency of such flights that matters but whether it is reasonable to assume
they will not happen.  It is always a possibility that a helicopter, whether a
rescue helicopter, a medical organ transport helicopter, a news helicopter, or
even a hot air balloon may fly over one’s property at a low altitude.  Here, as
in Riley, because these flights can legally occur over Defendant’s
property, law enforcement surveillance flights may also do so.
 
The court misstated the “legality” of the
flyover in this case and understated the intrusive nature of the surveillance,
which admittedly targeted defendant.  The helicopter, while circling 100 feet
over defendant’s home, was being operated contrary to law and regulation.  Nor,
as discussed above, was the nature of the intrusion in this case remotely
comparable to that presented by a hot-air balloon or an organ-transport or
rescue helicopter passing by overhead.  “Travelers on commercial flights, as
well as private planes . . . normally obtain at most a fleeting, anonymous, and
nondiscriminating glimpse of the landscape and buildings over which they pass.” 
Ciraolo, 476 U.S. at 223 (Powell, J., dissenting).    
¶  34.       Witnesses observed that the helicopter
surveillance in this case was “so long and so low and so loud.”  The occupants
of the helicopter, while hovering over defendant’s property for up to thirty
minutes, were positioned to examine the entire curtilage and to observe any
activities taking place there.  Such surveillance of an area “intimately linked
to the home, both physically and psychologically, where privacy expectations
are most heightened,” was extremely intrusive.  Ciraolo, 476 U.S. at 213.  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.  The actions of law enforcement—flying only 100 feet above the ground for
up to thirty minutes over a hillside home—were an unreasonable intrusion of
privacy that triggers constitutional protection.            



¶  35.       The dissent argues that our decision is
too broad.  However, it is in part because we are obligated to write narrowly
that we refrain from relying exclusively on the altitude of this flight to
determine whether it is a search within the meaning of our Constitution.  It is
not necessary that we reach that question on the facts of this case.  Our role
is not simply to “serve the public interest,” post, ¶ 43, but to do so
by ruling on only those issues necessary to the question presented.  The
essential question in this case is not as broad as “when aerial surveillance
will be considered a search.”  Id. (emphasis added).  The essential
question in this case is, rather, whether this aerial surveillance was a
search.  We have answered that question in the affirmative based on the facts
before us.  Indeed, this is a narrower rule of decision than one that would
constitutionalize altitude limits.
¶  36.       The overriding function of Article 11 is
to protect personal privacy and dignity against unwarranted intrusion by the
state.  It requires that the state temper its efforts to apprehend criminals
with a concern for the impact of its methods on our fundamental liberties. 
Principles established in cases such as this delineate the extent to which
official intrusion into the privacy of any citizen will be constitutionally
permissible. 
¶  37.       In Johnson v. United States, the
Supreme Court wrote that the Fourth Amendment reflects a choice that our
society should be one in which citizens “dwell in reasonable security and
freedom from surveillance.”  333 U.S. 10, 14 (1948).  With technological
advances in surveillance techniques, the privacy-protection question is no
longer whether police have physically invaded a constitutionally protected
area.[9]  Rather, the
inquiry is whether the surveillance invaded a constitutionally protected
legitimate expectation of privacy.  In this case, the targeted, low-level
helicopter surveillance by the police of activities in an enclosed backyard is
not consistent with that expectation—not without a warrant.



¶  38.       The dissent acknowledges that the
helicopter observation at issue in this case violated defendant’s rights. 
However, the dissent creates a factual dispute not argued by the
parties—whether the law-enforcement personnel made an observation of defendant’s
activities before operating the helicopter at illegal altitudes—to avoid
providing a remedy for that violation.  We find the dissent’s speculation
highly unpersuasive.  In the application for a search warrant and in testimony
at court, the officers testified that they were at an altitude of 500 feet at
all times.  They were obviously implying that their observation and
identification of marijuana occurred at that altitude.  However, the trial
court did not find their testimony credible.  Therefore, there is no reason to
remand on this point.
¶  39.       It may be easy to forget, especially in
view of current concerns over drug abuse in our society, that the scope of
Article 11’s protection “does not turn on whether the activity disclosed by a
search is illegal or innocuous.”  Riley, 488 U.S. at 463 (Brennan, J.,
dissenting).   The interest protected by Article 11, like the Fourth Amendment,
“is the expectation of the ordinary citizen, who has never engaged in illegal
conduct in his life.”  United States v. White, 401 U.S. 745, 790 (1971) (Harlan, J., dissenting); see Savva, 159 Vt. at 86, 616 A.2d at 780
(reasoning that the warrant requirement, rather than after-the-fact challenges
by criminal defendants, protects the rights of everyone—law-abiding as well as
criminal).  In his dissent in White, Justice Harlan reasoned that the
scope of constitutional protection must reflect “the impact of a practice on
the sense of security that is the true concern of the [constitution’s]
protection of privacy.” 401 U.S. at 788 n.24.  We agree.  We protect defendant’s
marijuana plots against such surveillance so that law-abiding citizens may
relax in their backyards, enjoying a sense of security that they are free from
unreasonable surveillance.
¶ 
40.      
The aerial
surveillance in this case was a warrantless search forbidden by the Vermont
Constitution.  The warrant authorizing the subsequent search of defendant’s
premises for marijuana plants was obtained solely on the basis of the aerial
observations.  The evidence seized upon executing the warrant should therefore
have been excluded from defendant’s trial.  Since the error was clearly
prejudicial, his conviction must be overturned.



¶  41.        Because this disposes of the case, we
decline to reach the medical-necessity issue.
Reversed.
FOR THE COURT:
 
 
_______________________________________
Associate Justice
 
 
¶  42.       DOOLEY, J., concurring in part and
dissenting in part.  
I
agree with the opening paragraph of the majority decision that
“Vermont citizens have a constitutional right to privacy that
ascends onto the airspace
above their homes and property” and that the “aerial
surveillance in this case
violated that constitutionally protected privacy right.”  Ante, ¶ 1. 
Thus, I concur in the majority’s essential holding.  But I cannot concur in the
open-ended rationale or in the immediate consequence of that holding.  Thus, I
dissent in part.
¶  43.       As the majority acknowledges, this is a
case of first impression, addressing a very important constitutional question. 
In these circumstances, it is critical that we write narrowly and provide as
much predictability to citizens and law enforcement as possible.  The essential
question is when aerial surveillance will be considered a search.  We do not
serve the public interest if the answer to that seemingly simple question can
be determined only in hindsight, after evaluating  myriad factors.  The majority
states that it gives a clear answer by relying on the decisions “of our sister
states and the United States Supreme Court.”  Ante, ¶ 14.  I fail to see
how the majority decision offers that guidance, and, as I discuss below, the
majority certainly does not rely on the decisions from other courts.  In fact,
it rejects virtually all other decisions on the question presented to us.



¶  44.       Acknowledging that its decision gives
limited guidance to trial courts and law enforcement personnel and—I  would add
citizens—in the use of their property, the majority states that “no one factor
need act as a litmus test of constitutionality.”  Ante, ¶ 29.  Then, in
the course of the opinion, the majority goes on to cite almost a dozen separate
factors: (1) the aerial surveillance took place over defendant’s curtilage, id.
¶¶ 16, 34; (2) the helicopter hovered for fifteen to thirty  minutes, id.
¶ 18; (3) the helicopter hovered at an altitude of 100 feet, id.; (4)
the altitude was illegal, id ¶¶ 30-33; (5) the open land was posted, id.¶
27; (6)  the officers were constitutionally forbidden to intrude at ground
level, id. ¶ 33; (7) the helicopter created “undue noise, wind, or dust,”
id. ¶ 28; (8) the surveillance was long, low and loud, id. ¶ 34;
(9) the flyover was a “hazard to persons and property,” id. ¶ 31; (10)
the flyover “targeted defendant,” id. ¶ 33; and (11) the flyover was
conducted by trained law-enforcement officers in order to discover evidence of
a crime, id. ¶ 34.  The opinion makes no attempt to explain which of
these factors are essential to its decision.  It is not even clear under which
circumstances the majority would find that aerial surveillance by law-
enforcement officers is not a search.
¶  45.       The approach of the majority should be
compared to those of other state courts.  The leading cases are State v.
Ainsworth, 801 P.2d 749 (Or. 1990); Commonwealth v. Oglialoro, 579
A.2d 1288 (Pa. 1990); and Henderson v. People, 879 P.2d 383 (Colo. 1994).  The facts of Ainsworth are very similar to those in this case, except
that, in that case, the helicopter was in a lawful location at the time of the
observation of the marijuana plants.  The court found this fact determinative,
holding that, if the flyover did not violate “any common law or statutory
rights of defendants, nor any rules, regulations or other legal restrictions,”
and, therefore, if the helicopter was in a lawful place, then the flyover was
not a search under the Oregon Constitution.  Ainsworth, 801 P.2d at
752.  If a privacy intrusion was “purposive” as part of a criminal
investigation aimed at the defendants , the court reasoned that this fact alone
did not transform “a permissible observation into an unconstitutional search.” 
  Id. at 753.  
¶  46.       The court responded directly to arguments
adopted by the majority here:



 
  The state, defendants, and each of the
Court of Appeals’ opinions in this case suggest that there are many factors to
take into account in determining whether aerial observation constitutes a
search under Article I, Section 9.  Although they vary in terms of the number
of elements to be considered and the emphasis to be placed on each element, all
are unworkable as guidelines for law enforcement activities.
 
Id. at 754; see also State v.
Wilson, 988 P.2d 463, 465 (Wash. Ct. App. 1999) (fixed-wing-aircraft
overfly at above 500 feet, the FAA altitude limit, is not a search under the
Washington Constitution).
 
¶ 
47.      
The
decision in Oglialoro is consistent with that in Ainsworth.  In Oglialoro,
the helicopter flew over a barn with a transparent roof, under which marijuana
plants were growing.  The court held that: “[a]s long as the police have the
right to be where they are, and the activity is clear and visible, the fact
that they are peering into the curtilage of no significance.”  579 A.2d at
1292.  The court found that the helicopter hovered at fifty feet above the barn
in order to determine whether the plants in question were marijuana plants and
that flying at that altitude violated federal law because it was “a hazard to
persons or property on the ground.”  Id. at 1294.  Thus, the court found
that the surveillance was a search.  Id.
¶ 
48.      
Henderson adopted a virtually identical analysis. 
In that case, the helicopter flew over a shed behind the defendant’s house at
an altitude of 500 to 700 feet, and in the shed, the officer in the helicopter
observed plants that he identified as marijuana.  The court first analyzed the
case under the Fourth Amendment, relying on the plurality analysis in Florida
v. Riley, 488 U.S. 445 (1988), and holding that the critical issue in the
case was not the “number of times the helicopter passed over,” “the fact it was
a helicopter,” or “how often . . . aircraft passed over the residence during
the course of a year,” but instead “the fact that the marijuana was in plain
view to anyone legally viewing the shed from the helicopter.”  Henderson  , 879 P.2d at 389.  The court considered one other factor: that there was
a limited degree of
intrusiveness because of the limited duration, the altitude of the flight, and “little
evidence of the noise, wind, dust, threat of injury, or interference with the
use of the curtilage.” Id. at 390.  Under Article II, Section 7 of the
Colorado Constitution, because observation of what was plainly visible was not
a search, the court held that observation of the curtilage from a lawful
vantage point outside the curtilage was not a search.  Id. at 390-91.



¶  49.       The majority claims that other decisions
are “more nuanced,” ante, ¶ 24, or routinely consider a “multitude of
factors,” ante, ¶ 26.  To the extent this characterization is accurate,
I do not believe that any of the post-Riley decisions support the
majority’s multi-factored, open-ended analysis.  The main example of
consideration of a multitude of factors cited by the majority is Commonwealth
v. One 1985 Ford Thunderbird Automobile, 624 N.E.2d 547 (Mass. 1993),
decided under the Massachusetts Constitution.  The decision is based on only
two factors: the low altitude at which the helicopter flew and the fact that
the flyover was not based on random surveillance, but instead on a detailed
tip.  Id. at 551.  Ironically, the latter factor is not one of those
cited by the majority here; indeed, the majority instead cites the targeted
nature of the flyover as a factor showing that it was a search.  
¶  50.       I  have already covered most of cases
that the majority sees as applying a “more nuanced approach.”  I would add that
State v. Rodal, 985 P.2d 863, 867 (Or. Ct. App. 1999) is an intermediate
court of appeals decision that must, and does, follow the Oregon Supreme Court
decision in Ainsworth.  See id.
¶  51.       In sum, I would reverse and remand on narrower
and more specific grounds.  First and foremost, we should acknowledge that a
naked-eye observation[10] from a 
properly conducted flyover, even if over a dwelling and curtilage, is not a
search under Article 11.  This is the holding of all of our precedents. 
Indeed, only a small handful of court decisions have ever found aerial
surveillance to be a search and then have done so only in particularly
intrusive situations.



¶  52.       Second, like the courts in Ainsworth,
Henderson, and Oglialoro, I would condense the test and look
essentially at only one factor: whether the observation was conducted from a
lawful vantage point and was thus lacking in extraordinary intrusiveness.  This
factor is entirely consistent with our prior Article 11 analysis.  In State
v. Rogers, 161 Vt. 236, 248-49, 638 A.2d 569, 576 (1993), we held that
police observation of marijuana growing in defendant’s garden within the
curtilage is not a search if the officer is standing in a place from which
observation is lawful, for example, in an unposted “open field.”  Application
of that principle here means that observation from a helicopter that is lawfully
flying over defendant’s property is generally not a search.  Defendant noted
the consistency of this factor with our Article 11 jurisprudence in arguing
that “the [Riley] plurality’s rationale makes a better fit with this
Court’s Article 11 decisions than with the Fourth Amendment.” 
¶  53.       Although I would also consider
intrusiveness to respond to circumstances like those in Oglialoro where
the actions of the helicopter involved extraordinary intrusiveness, this
addition has no bearing on the facts of this case, because the applicable law
requires that the helicopter stay at least 500 feet above the ground.  I agree
with defendant that this altitude is required by statute and by the regulations
of the MERT program. 
¶  54.       The majority objects that the altitude
limits protect the safety, rather than privacy, interests of the citizenry. 
This is partially correct, but beside the point.  Even if made from a lawful
vantage point, an observation of objects or activities is just as intrusive as
one from an unlawful point, irrespective of what makes the point of observation
lawful or unlawful.  The point is that the owner of the curtilage cannot
consider to be unexpected an observation from a lawful vantage point and,
therefore, has no reasonable expectation of privacy.



¶  55.       Applying this standard to the present
situation, I acknowledge that it would have been better in this case if the
trial court had determined whether the marijuana plants were within defendant’s
curtilage, because such a question is a mixed question of fact and law on which
the trial court’s determination is entitled to some deference.  See Rogers, 161 Vt. at 241, 638 A.2d at 572.  The evidence on this point comes from the
officer’s affidavit that was filed with the information and that contains the
result of the search warrant execution: that “the first location was along his
garden fence” where twelve marijuana plants were found growing, that defendant
brought the officer “to a location just south of the garden where 24 marijuana
plants were . . . growing,” and that defendant finally showed the officer a lot
“located south/east of the garden where 13 plant[s] were . . . growing.” 
During the flyover, the officer observed that the plants were “approximately
100 feet from the residence.”  Although consistent with its generally vague
approach, the majority is not clear on this point but appears to have concluded
that the plants were in the curtilage.  I think that is a reasonable
conclusion.  Defendant has generally argued that the plants were within the
curtilage, and the State has not directly disputed that characterization.  The
facts here on this point are very similar to those in Rogers, where we
upheld a trial court conclusion that the plants were within the curtilage.  See
id. at 241-43, 638 A.2d at 572-73. 
¶  56.       I would not rule in this case on the
standard for aerial observations of open fields that are posted on the ground. 
There are arguments on both sides of this question that are only superficially
explored in the briefing.  The trial court specifically refused to find whether
the officer who made the aerial observation was aware of the posting.  Again,
because of the breadth and lack of specificity in the majority opinion, it is
impossible to determine whether that opinion purports to address this
question.  For now, I would limit this decision to observation of the dwelling
and curtilage.
¶  57.       This leads me to the second ground of
disagreement with the majority decision.  The majority has ruled that the
warrant “was obtained solely on the basis of the aerial observations,” ante,
¶ 40, and reversed defendant’s conviction as a result.  Since the majority
refuses to specify which part of the observations constituted a search under
Article 11, that ruling is logical, but it also an example of why the majority’s
overbroad approach is inconsistent with the applicable law.



¶  58.       Answering the question about whether
state conduct violated defendant’s constitutional rights does not, in itself,
decide what the remedy for the violation should be.  The remedy invoked here is
to suppress the marijuana evidence.   This remedy may be invoked, however, only
if there is a causal connection between the constitutional violation and the
obtaining of the evidence.  See Segura v. United States, 468 U.S. 796, 804-05 (1984) (explaining application of causation, or independent-source doctrine, in
Fourth Amendment cases); see also United States v. Ramirez, 523 U.S. 65, 72 n.3 (1998) (application of the exclusionary rule depends on the existence of “a
sufficient causal relationship” between the unlawful conduct and the discovery
of the evidence).  The
exclusionary rule prohibits the introduction of evidence directly resulting
from unconstitutional conduct and also “prohibits the introduction of
derivative evidence . . . that is the product of the primary evidence, or that
is otherwise acquired as an indirect result of the unlawful search, up to the
point at which the connection with the unlawful search becomes ‘so attentuated
as to dissipate the taint.’ “  Murray v. United States, 487 U.S. 533, 536-37 (1988) (quoting Nardone v. United States, 308 U.S. 338, 341 (1939)); accord Wong
Sun v. United States, 371 U.S. 471, 484-85 (1963).  The exclusionary rule
does not apply to evidence that is obtained through an independent source.  See
Murray, 487 U.S. at 538-39.  The exception is designed to prevent too
much evidence from being excluded, because “[w]hen the challenged evidence has
an independent source, exclusion of such evidence would put the police in a
worse position than they would have been in absent any error.”  Nix v.
Williams, 467 U.S. 431, 443 (1984).  We have recognized the
independent-source doctrine in  State v. Phillips, 140 Vt. 210, 218, 436
A.2d 746, 750-51 (1981), and State v. Dupaw, 134 Vt. 451, 454, 365 A.2d
967, 968 (1976) (stating that the exclusionary rule applies only insofar as “ ‘knowledge
gained by the Government’s own wrong cannot be used by it,’ “ quoting Silverthorne
Lumber Co. v. United States, 251 U.S. 385, 392 (1920)).



¶  59.       A good example of the importance of the
causation requirement comes from State v. Rodal, where the defendant
argued that photographs taken from a helicopter with a telephoto lens turned a
permissible flyover into a search.  The court answered that the officer
observed the marijuana plants before he photographed them, and that his
observation, apart from the photographs, was sufficient to allow officers on
the ground to locate the plants.  Rodal, 985 P.2d at 867.  Thus, the
naked-eye observation was an independent source of the identification of the
marijuana.  See also State v. Marolda, 927 A.2d 154, 164 (N.J. Super.
Ct. App. Div. 2007) (under New Jersey Constitution, low flight over  “the
residence and curtilage was preparatory and incidental to location and
observation of cornfields, which are not constitutionally protected”).  
¶  60.       The trial court in the instant case found
that “the helicopter was flying at less than 500 feet at various times during
the flight in question, and at times as low as 100 feet above the ground.” 
Because the court held that there was no constitutional violation, the court
did not, however,  relate the altitude of the helicopter to the observation of
the marijuana.  The majority has not attempted to clarify the point.  Indeed,
because the majority will not explain which conduct made the flyover a search,
it is impossible to determine causation as required.
¶  61.       The record indicates that the officer
understood that he was required to make a naked-eye observation of marijuana
from above 500 feet.  If he made such an observation before the helicopter came
below that altitude over defendant’s house and curtilage, there may have been
an independent and lawful search that obtained the information defendant is
seeking to suppress. I would remand for determination of when the crucial
observation was made rather than holding the search to be constitutionally
defective and reversing defendant’s conviction.  It may well be that the
constitutional violation and the observation of the marijuana are inextricably
intertwined, but the majority has acted prematurely in so ruling.



¶  62.       The majority has answered that the State
never put causation in issue and therefore that we must act, as a matter of
law, as if the question of causation were resolved in defendant’s favor.   In
fact, the State never had the burden to put causation in issue.   In this case,
since the State’s position was that the officers acted lawfully, the State had
no reason or ability to speculate on how the officers’ conduct might be found
to be unlawful and how causation would be established.  The fact is that no
court, not this Court or the district court, has found that the constitutional
violation caused the observation of the marijuana, and defendant has therefore
escaped entirely his burden of proof. 
¶  63.       In summary, I carry no brief for aerial
surveillance as part of a marijuana eradication program.  There is a legitimate
policy debate about whether such surveillance is a good use of limited law
enforcement resources, but that debate should be resolved as a matter of
policy, not constitutional law.  My disagreement with the majority lies in its
assertion that it has written “narrowly” by refraining from ruling based on the
altitude of the helicopter and by  relying instead upon the totality of the
circumstances.  By relying on a multitude of factors, most of which are
irrelevant to whether a search occurred here, and by refusing to assign any
particular weight to any factor, the majority has painted with the broadest
brush imaginable, far broader than any other court in the land.  Every factor
the majority introduces into the analysis makes the grounds for its decision
broader.  This is not narrow decision making.  Increasingly, we are using
rationales in Article 11 cases that require the intervention of this Court
before it can be determined whether law enforcement conduct was lawful, because
no law-enforcement officer, citizen, or trial court judge could ever predict
what we will ultimately decide.  Professor LaFave has explained the problem
with an approach like the majority’s as follows:
  The basic premise is that Fourth
Amendment doctrine, given force and effect by the exclusionary rule, is
primarily intended to regulate the police in their day-to-day activities and
thus ought to be expressed in terms which are readily applicable by the police
in the context of the law enforcement activities in which they are necessarily
engaged. A highly sophisticated set of rules, qualified by all sorts of ifs,
ands and buts and requiring the drawing of subtle nuances and hairline
distinctions,  may be the sort of heady stuff upon which the facile minds of
lawyers and judges eagerly feed, but they may be literally impossible of
application by the officer in the field.
 



   If the rules are impossible of
application by the police, the result may be the sustaining of motions to
suppress on Fourth Amendment grounds with some regularity, but this can hardly
be taken as proof that the people are secure in their persons, houses, papers,
and effects against unreasonable searches and seizures. Rather, that security
can only be realized if the police are acting under a set of rules which, in
most instances, make it possible to reach a correct determination beforehand
as to whether an invasion of privacy is justified in the interest of law
enforcement.  In short, we must resist the understandable temptation to be
responsive to every relevant shading of every relevant variation of every
relevant complexity lest we end up with a [F]ourth [A]mendment with all of the
character and consistency of a Rorschach blot.
 
2 W. LaFave, Search and Seizure § 5.2(c),
at 448-49 (2d ed. 1987) (footnotes and internal quotations omitted).  The rule
announced by the majority today falls into precisely the trap Professor LaFave
outlines.  No one, be it the trial courts, law-enforcement officers, or the
citizens of this State will consistently be able “to reach a correct
determination beforehand as to whether an invasion of privacy is
justified” under similar circumstances.  Id.   I do not think we
administer justice with such an approach, and we hardly guarantee to “the
people” that they will be secure in “their persons, houses, papers, and effects
against unreasonable searches and seizures.”  Id. (quotations omitted).
¶  64.                        
I would reverse and
remand, but on a much narrower rationale, fully consistent with the precedents
from this Court and courts in other jurisdictions, thus giving better guidance
to trial courts, ordinary citizens, and law enforcement.  Thus, although I
concur that the helicopter observation violated defendant’s rights,  I cannot
approve of the majority’s mode of constitutional analysis or of the remedy it
imposes.
 
 
 
_______________________________________
Associate Justice
 
                                                                                                                                                           

 
 
                                                                                                                                                           



[1]  Article 11 states: 
  That the people have a right to hold
themselves, their houses, papers, and possessions, free from search or seizure;
and therefore warrants, without oath or affirmation first made, affording
sufficient foundation for them, and whereby by any officer or messenger may be
commanded or required to search suspected places, or to seize any person or
persons, his, her or their property, not particularly described, are contrary
to that right, and ought not to be granted.  
Vt. Const. ch. I, art. 11.


[2]  Defendant’s brief suggests that the
search violated the Fourth Amendment to the United States Constitution as well
as Article 11.  Article 11 provides broader protection to individual rights
than does the Fourth Amendment.  Costin, 168 Vt. at 177, 720 A.2d at
868; State v. Savva, 159 Vt. 75, 91-92, 616 A.2d 774, 783 (1991); State
v. Wood, 148 Vt. 479, 482 n.1, 536 A.2d 902, 904 n.1 (1987).  Therefore, we
decline to examine law enforcement’s actions in this case under the federal
constitution.   


[3]  The United States Supreme Court has
defined areas of private property beyond the curtilage as “open fields,” and
has ruled that the Fourth Amendment does not protect these areas to the same
extent that it protects the home and its curtilage.  Oliver, 466 U.S. at 178.  Thus, when police officers entered a defendant’s field without a warrant,
despite obvious no-trespassing signs, the Court found no violation of Fourth
Amendment rights.  Id.  In Kirchoff, we declined to adopt a
similar rule under Article 11.  156 Vt. at 10, 587 A.2d at 994 (holding that “a
lawful possessor may claim privacy in ‘open fields’ under Article 11 of the
Vermont Constitution where indicia would lead a reasonable person to conclude
that the area is private”). 


[4]  Navigable airspace is airspace above
the minimum altitudes of flight prescribed by regulations issued by the Federal
Aviation Administration (FAA).  49 U.S.C. § 40102(a)(32) (2003).  FAA
regulations permit fixed-wing aircraft to be operated at an altitude of 1,000
feet while flying over congested areas and at an altitude of 500 feet above the
surface in other areas.  Helicopters may be operated at less than the minimums
for fixed-wing aircraft “if the operation is conducted without hazard to
persons or property on the surface.”  14 C.F.R. § 91.119 (2004).


[5]  In light of its reasoning, we find the
court’s protestation that it “did not view the FAA regulations as defining the
reach of the Fourth Amendment” to be totally inexplicable.  Oglialoro,
579 A.2d at 1294.


[6]  We reject the argument that a tidy
analogy may be drawn between surveillance from a helicopter and ground-level
observations “in terms of whether expectations of privacy from such vantage
points” are legitimate.   Riley, 488 U.S. at 454 (O’Connor, J.,
concurring).  Vantage point has always been an important consideration in our
evaluation of privacy protection.  See Costin, 168 Vt. at 178-79, 720
A.2d at 868-69 (noting that the “controlling significance of the place of
observation” in Article 11 cases is made clear by Brooks, 157 Vt. at
493-94, 601 A.2d at 964 ; Blow, 157 Vt. at 519, 602 A.2d at 556; and Rogers,
161 Vt. at 248, 638 A.2d at 576).  And we think it important that “[p]ublic
roads, even those less traveled by, are clearly demarked public
thoroughfares.”  Riley, 488 U.S. at 454 (O’Connor, J., concurring).
Vermonters can easily protect themselves from unwanted intrusions from such
thoroughfares.


[7]  See Kyllo v. United States, 533
U.S. 27, 40 (2001) (holding that the use of a thermal-imaging device aimed at a
private home from a public street constituted a search within the meaning of
the Fourth Amendment for which a warrant was required).  But see Dow Chem.,
476 U.S. at 237 n.4 (upholding enhanced aerial photography of an industrial
complex, finding it “important that this is not an area immediately
adjacent to a private home, where privacy expectations are most heightened”).


[8]  Although the Legislature has given the
Agency of Transportation authority to make special rules for helicopters, to
date, it has not done so.  5 V.S.A. § 426.


[9]  As was said more than six decades ago:
“[T]he search of one’s home or office no longer requires physical entry, for
science has brought forth far more effective devices for the invasion of a
person’s privacy than the direct and obvious methods of oppression which were
detested by our forebears and which inspired the Fourth Amendment.”  Goldman
v. United States, 316 U.S. 129, 139 (1942) (Murphy, J., dissenting).


[10] Although the majority does not mention
the issue explicitly, I would leave to another day the issue of enhanced
observation by binoculars or more advanced technology.  See State v. Rogers,
161 Vt. 236, 245-46, 638 A.2d 569, 574-75 (1993) (leaving open the question of
whether observation of the curtilage from a lawful vantage point is a search if
aided by binoculars or technology).


