2008 VT 39 Vermont Supreme Court Rules on Aerial Surveillance as an Intrusion on Privacy
Justice Dooley argues that the Supreme Court's decision is flawed by its overly broad interpretation of law in a marijuana conviction (overturned). The case involved a low level helicopter flight (no warrant for the flight) that identified plots of marijuana grown by the defendant close to his home on private property adjacent to a national forest.
Dooley is right that this broad decision is not serving the interests of law enforcement nor anyone else. I was particularly struck by the quote from 'Professor LaFave' that Dooley uses:
"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]fourth [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.
(Emphasis added by dju)