True Vermont

Windsor lawyer and part-time judge Martha Davis was recently busted for marijuana possession and cultivation. According to the affidavit of game warden Stephen Majeski, on 10/10/07 he received a complaint at 8:00 am via Rockingham dispatch from Ms. Davis about a dead deer on her property. When he arrived at the property a half-hour later, Ms. Davis was not there, but the warden took a look around for the deer. Around the back of the house, Majeski “observed a large black plastic planter placed amongst the other plants. Inside the planter [he] observed two large recently cut stalks, and what appeared through my training to be, a marijuana bud approximately one foot long, and seven smaller offshoots…” The warden then obtained a search warrant for the house where processed marijuana and additional plants were found. (The warrant and application are here. The return showing items seized is here.) It should be noted that, although they could have had no possible connection to marijuana, and were not authorized for seizure by the court, “1- paper bag with 17 bottle rockets” was nevertheless seized.

One has to wonder what Ms. Davis was thinking. By inviting authorities onto her property and leaving evidence of criminal activity in plain sight, she also invited the consequences. However, even if she hadn’t filed any report, the result might have been the same, as the right to privacy has been seriously eroded over time such that little is left. The general public might rely on the explicit language of the 4th Amendment to the U.S. Constitution:”The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches an seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

However, a lawyer and judge should have known better. The plain language of the Amendment has been circumvented in the courts by enumerating various situations where no warrant is required. In a 1993 Vermont case a trooper, after supposedly receiving an anonymous tip, had to go through “thick vegetation” and “cross a stretch of swampy terrain before reaching a point affording a view of defendants’ [marijuana] garden area.” Because there had been no “affirmative action by defendants” to exclude the public, no warrant was required.

In the astounding decision in State v. Costin (1998) the Vermont Supreme Court ruled that a warrant was not required for police to sneak around private property and install video recording equipment since a person has “no reasonable expectation of privacy … because … he took no steps to exclude the public” like signs or barriers to entry. Following the Costin decision the Vermont House passed a law requiring a warrant to install video equipment. It died a quiet death in the Senate Judiciary Committee in 2001. Perhaps the rapid proliferation of “POSTED” signs around Vermont has more to do with Costin than with opposition to hunting or trespassing in general.