Pubdate: Sat, 12 May 2001
Source: Burlington Free Press (VT)
Copyright: 2001 Burlington Free Press
Contact:  http://www.burlingtonfreepress.com/
Details: http://www.mapinc.org/media/632
Author: David Gram, The Associated Press

COURT: FLYOVER SUFFICIENT FOR SEARCH WARRANT

MONTPELIER -- In a split decision, the Vermont Supreme Court on 
Friday relaxed the requirements police officers must meet when they 
seek a search warrant after spotting what could be marijuana plants 
from the air.

The two justices who dissented from the decision, John Dooley III and 
Denise Johnson, said they feared the result would be "unnecessary and 
mistaken home searches, with a clear invasion of the privacy of 
Vermont homeowners."

In a case arising out of Addison County, the three-member court 
majority said it was OK for State Police Trooper Chris Campbell to 
obtain a search warrant after spotting plants he thought were 
"consistent in color, shape and texture" with marijuana from 525 to 
600 feet in the air.

Campbell and other officers later went to a property next to the plot 
where they had seen the plants and obtained better confirmation that 
they were marijuana before seeking a search warrant. The property 
owner was later charged with possession and cultivation of marijuana.

The lower court rejected the grounds for the search warrant related 
to the observations the officers made from the ground. It granted the 
warrant based on the aerial search alone, and that prompted the 
debate between the justices.

The majority, composed of Chief Justice Jeffrey Amestoy and Associate 
Justices James Morse and Marilyn Skoglund, labeled "hypertechnical" 
the defense's claim that Campbell wasn't sure enough the plants were 
marijuana based on the flyover alone.

The majority said past cases have determined that a search warrant 
can be issued when "a person of reasonable caution would conclude 
that a crime has been committed and that evidence of the crime will 
be found in the place to be searched."

The minority opinion, written by Dooley, cited past cases in which 
police officers have mistaken other plants for marijuana and been 
granted search warrants. In one Oregon case, police thought they saw 
marijuana through a window, obtained a search warrant, found the 
suspect plants to be common house plants but charged the person 
anyway based on marijuana found in the basement. The defense won that 
case.
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