SUPREME COURT SPLITS ON LEGALITY OF VIDEOTAPED SURVEILLANCE

MONTPELIER, Vt. (AP) - Vermont police do not need a search warrant to hide
a video camera on private property to catch the landowner committing a
crime, a deeply divided Supreme Court ruled Friday.

In the case of a Ferrisburgh man convicted of growing marijuana, the
majority ruled that as long as the camera was set up away from the house on
unposted land, the constitutional right against unwarranted searches did
not apply.

``Defendant has no greater protection against electronic surveillance on
his unposted, open land than he would if such surveillance were conducted
in a public place,'' said the majority decision, written by Justice John
Dooley.

In a stinging dissent, Justice Denise Johnson said the majority's decision
harked of George Orwell's classic novel of government control of private
life, ``1984.''

``Allowing police agents to set up surreptitious, 24-hour video
surveillance of landowners on their own property without judicial oversight
raises the specter of such a society,'' Johnson wrote.

Johnson's was joined in her dissent by justice James Morse.

Dooley was joined by retired justices Fred Allen and Ernest Gibson III, who
heard the case.

The case began in 1992 when a Vermont State Police trooper received a tip
that Michael N. Costin was growing marijuana on his own land.

A few days later troopers walked onto Costin's unposted property and
observed a number of marijuana plants. They then set up a covert video
camera that only activated when something moved in front of it.

Five days later, the troopers retrieved the camera and saw Costin on tape
tending the marijuana plants.

Costin was later convicted of marijuana charges. He was fined $500 and
placed on probation for a year.

But Costin appealed his conviction, arguing that the police surveillance
was illegal.

Costin's attorney argued that the search violated the Vermont
Constitution's requirement that police get a warrant for a search.

The majority cited a number of precedents to say that as long as the camera
was set up away from Costin's home, or curtilage, and the land was not
posted, police didn't need a warrant.

``The video camera recorded only what an officer standing in the same
position would have observed with the naked eye,'' Dooley wrote. ``The
camera, if anything, was less intrusive on the privacy of the landowner
because it had a narrow viewing field, was employed only when someone
approached the marijuana garden and did not even record sounds.''

But Johnson wrote that homeowners shouldn't be required to post their land
to guarantee their privacy. The Vermont Constitution ``does not require us
to remain inside behind drawn shades to feel assured of being free from
around-the-clock government surveillance.''

And Johnson disagreed that a video camera was less intrusive than an
officer. ``There is a qualitative difference between walking on to private
property to verify a tip and setting up intensive covert surveillance
there,'' she wrote.

``At some point, even on private property outside the curtilage, the nature
of police activities becomes so intrusive that it violates reasonable
expectations of privacy,'' Johnson said. I believe that that point is
reached when police decide to surreptitiously videotape persons on their
private property.''

Checked-by: Mike Gogulski