Log Cabin Chronicles

Just a big, loud, intrusive, obnoxious, unconstitutional taxi

Publisher, The Chronicle
Barton, Vermont

POSTED: 04.11.08

Beyond the cloying clichés, there are some realities that really do make Vermont a better place to live. One of them is our state Supreme Court which, through close reading of the Vermont Constitution, seems determined to preserve civil liberties that the US Supreme Court seems no less determined to deny us.

Our justices have most recently done what their peers in Washington have steadfastly refused to do -- ruled that an aerial search for marijuana plots can be so loud, so low, so frighteningly intrusive that it constitutes the sort of search that police can only conduct if they have first obtained a warrant.

It's a tentative decision that, alas, won't deter Vermont police and their "taxi" service, the Vermont National Guard, from conducting such flights. But it should.

The Guard's position that "we're just basically a taxi" for police is arrant nonsense. These are large, noisy, military aircraft that destroy our autumn peace at our expense - and the expense must be considerable.

They are formidable weapons of war that are being used to enforce a law that, because it lacks victims, many reasonable citizens argue should not be a law at all.

In those television commercials it runs during football games, the Guard should add "Send your neighbors to jail" to the list of services it provides to a grateful public.

There is much to disturb a grateful public in the details of State of Vermont v. Stephen Bryant, the case our high court has just reversed. After listening to witnesses on both sides, the trial court made a finding of fact that the helicopter flew at altitudes as low as 100 feet.

That was a violation of the Guard's own rules about drug flights, which are supposed to be conducted from at least 500 feet above the ground. Both the pilot and the State Police officer testified that they followed that rule, and never descended below 500 feet.

The court didn't believe them, ruling in effect that they both lied under oath.

The trial court left it to the Supreme Court to rule that the search was not only a violation of Guard regulations, but also a violation of Mr. Bryant's right to privacy. The Guard should be ashamed of itself - sufficiently ashamed, we would argue, to withdraw its support from the state's program of aerial snooping.

The Bryant decision was, in a way, a vertical extension of a 1989 decision the state's high court made in State v. Kirchoff.

In that case, the court said the Vermont Constitution offers more protection than the US Constitution from warrantless police searches of private property. If the land is posted, the court ruled in Kirchoff, police need a warrant to search it. An interesting partial dissent to that decision came from a judge once familiar to the lawyers and lawbreakers of Orleans County, the late Lewis Springer Jr.

He was specially assigned to the Supreme Court on the Kirchoff case, and said his colleagues didn't go far enough. Private property in Vermont should be safe from warrantless searches whether it is posted or not, Judge Springer argued. Such a ruling would not only reflect Vermont's historic commitment to the protection of its citizens rights to security on their land, Judge Springer wrote, but also serve to keep wayward police officers in line.

He said: "Perhaps even more important would be for law enforcement officers to fully respect constitutional rights.

In too many instances over the last few decades there have been too many cases where they did not.

Although they knew what was required; they unnecessarily cut corners. This case is an example."

The Bryant case is another.

We congratulate the court for the wisdom it has shown in this case. And we hope, in future aerial surveillance cases, it will find the courage of its convictions and extend to its citizens full constitutional shelter from the prying eyes of airborne police.


Copyright © 2008 Chris Braithwaite/Barton Chronicle/04.08