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.