We had some great news from the Supreme Court yesterday: they threw out a pot conviction because of an illegal search.
Okay, that doesn't sound that wild, but the circumstances were. The defendant lives over in the Green Mountain National Forest, off a forest road that only he and the Forest Service, and he was conspicuously doing everything he could to keep people away from the place. “No trespassing” signs all over the place, told the local Forest Service guys that he didn't want anyone, including the Forest Service, coming onto his property. This is one guy who's serious about his privacy.
If you're the cops, and you see a guy who's serious about his privacy, you figure he must have something to hide, right?
The local forest official suspected that defendant was responsible for marijuana plants that were growing in the National Forest (not on defendant's property) because he found defendant's insistence on privacty to be “paranoid”. The forest official suggested to the State Police that a Marijuana Eradication Team (“MERT”) flight over defednant's property might be a good idea.
What that means is they put a state trooper and a National Guard pilot in an army helicopter and flew over his place, where they circled and hovered, maybe 120 above the ground for up to an hour. Witnesses described the noise as “deafening”, another said he could feel the concussion from the helicopter's main rotor, and they all testified that the police were lying when they claimed they never went below 500 feet, which is the legal limit.
When they were all done they found three plots of marijuana.
The defendant's attorney, my old friend Bill Nelson, moved to suppress the results of the search, the trial court rejected the argument, but the Supreme Court said he was right, threw out the search, and reversed the conviction. They concluded that this extremely intrusive overflight of a location where the owner had clearly expressed his subjective expectation of privacy, was a search, and since they didn't have a warrant it was illegal:
We hold that Vermont citizens have a constitutional right to privacy that axcends into the airspace above their homes and property.
So far, this is just regular good news: another guy not getting convicted and thrown in jail for a victimless crime. But what does Bobby Sand have to do with it?
You rember the flap over the legalization or decriminalization of marijuana earlier this year, right? One of the topics of debate was whether marijuana prohibition wastes too many governmental resources; after all, while they're chasing down pot smokers, or even pot dealers or growers, they're not going after real criminals, like drunk drivers or spouse abusers (two crimes in which your odds of committing it and then getting away with it are really pretty good). The law-enforcers' argument is that this is bogus, because they spend so few resources on marijuana that it really doesn't cost the state anything, either in police, prosecutorial, defense, court, or corrections expenditures.
On the other hand, we now see the reality. I don't know how much it costs to fly an army helicopter over to Goshen, hover over a guy's house for an hour, scare all the neighbors, and then bring the guy to trial, but I really have to say that it sounds expensive to me. Not to mention the court and lawyer time taken up defending the indefensible in the District Court and Supreme Court–after all, this case has been going on since 2003.
So go ahead, guys, and try to convince us that you're not spending anything chasing down marijuana cases, but I'm not buying it.