Lights, Action, Camera? 

The Supreme Court and the Legislature are on a collision course this winter and it has nothing to do with property taxes or same-sex marriage. Rather it’s all about the War on Drugs, modern video technology and the issue of individual privacy.

“If we receive information that there’s a marijuana field on the west side of Mt. Mansfield,” said State Police Captain Steve Miller, “we need to go to that field, to look at that field and verify the presence of that field. At this point,” he told the attentive members of the House Judiciary Committee Friday, “the officer would analyze the situation. Should I pick this field? Or should I try to put a camera on it?”

“By ‘picking,’” inquired Chairman Peg Flory (R-Brandon) politely, “you don’t mean picking the plants?”

“Yes,” replied Captain Miller, “ripping up the plants. Basically,” he said, “we steal the marijuana from the guy who’s growing it.”

“Maybe you want to use a different word than steal?” suggested Flory as chuckles filled the packed committee room.

“We take the marijuana from him,” said the State Police captain with a grin, correcting himself.

“If we decide to put a surveillance camera on [the property], it’d probably take us an hour or two to actually do installation. If we put manned surveillance on,” said Miller, “it would be cost-prohibitive. He’d be on overtime and we could not afford to do it.”

Sounds reasonable enough, eh? Marijuana is, after all, still considered an illegal drug. America’s jails are packed with hundreds of thousands of marijuana wholesalers, retailers, growers and users. What the hell’s wrong with letting cops be cops and use the latest technology to catch some of society’s most dangerous criminals — people who grow pot? After all, the Vermont Supreme Court says it’s perfectly kosher. If you agreed with the Black Robes on “equal educational opportunity” and “same-sex marriage,” surely you’ll agree with them about hidden cameras on private property?

In a landmark 1998 decision, State v. Costin, the Supremes ruled that a Ferrisburgh man did not have a “constitutional right” to the “expectation of privacy” while tending to his pot patch. Vermont’s high court ruled the police were perfectly within their rights to install a hidden video camera on Michael Costin’s land and they didn’t even need a search warrant to do it.

State police received a tip from an “informant,” and installed a camera with a motion sensor. When Costin walked by, the camera caught him practicing an illegal, though popular, type of gardening. Mr. Costin asked the court to suppress the video. He argued the cops needed a search warrant to set up a video camera on private property. This is America — no Big Brother here, right?

The court replied — wrong!

Justice John Dooley wrote, “The video camera recorded only what an officer standing in the same position would have observed with the naked eye. Thus, it is a substitute for the traditional stake-out… It certainly does not advance a free society,” wrote His Holiness, “for the judiciary to require the employment of more law enforcement personnel to properly enforce the criminal law.”

One could almost hear the groan of disbelief rising from the populace. From lefties who’d like to end the prohibition on cannabis, to property-rights activists who’d like to repeal Act 60, to religious conservatives who’d like to impeach the High Court for legalizing gay marriage.

H. 106, sponsored by Rep. Steve Darrow (D-Putney) already has 100 co-sponsors. Two out of three House members have signed on. It’s the most popular ticket in town. Had same-sex marriage not popped up a year ago, this issue would have been taken up. If adopted, H. 106 would stick it to Dooley and the Supremes and require Vermont cops to “obtain a search warrant prior to placing unattended electronic surveillance equipment on private property.”

Steve Miller is highly regarded in Vermont law enforcement circles as the most experienced undercover drug cop on the State Police. In fact, yours truly hardly recognized him Friday. We remember the dude when his hair was half-way down his back and he looked like the sort of scruffy character you’d happily avoid. Miller commanded the state drug task force for 10 years. He’s personally made “hundreds” of drug busts.

Trooper Steve is a veteran street-smart undercover cop. Over the years he’s introduced a dose of reality into the lives of hundreds of illegal drug dealers. But Friday afternoon, Miller was getting nowhere with the 11 members of the House Judiciary Committee. He even showed the committee an undercover surveillance video of a lush Vermont pot garden. Several members found it horticulturally entertaining.

“I’m afraid,” Miller told them, “that this law could be the first step in the further eroding of what we can and can’t do under the state Constitution. If we begin eroding the police of their rights, we enhance the rights of the criminals.”

And he didn’t stop there. The captain warned the elected officials that if they pass H. 106 into law, they will be responsible for boosting the state crime rate.

“If you handcuff the police and they can’t do their job,” said Miller, “the criminals will be able to do whatever they want to do. And with that you’re going to have increased homicides; you’re going to have increased drug dealing and increased larcenies. There has to be a fear for people of getting caught.”

Needless to say, Miller’s scare tactics came off a bit on the Big Brother side.

Rep. Bill Lippert (D-Hinesburg) looked Miller right in the eye and calmly told him, “The fact that the police can place a remote, unattended camera on a piece of property without a search warrant just doesn’t pass the laugh test.” Lippert told Miller, “Most people, when asked, are actually astounded that it’s actually legal.”

Lippert made it clear, H. 106 is not intended to “undermine” law enforcement in any way. “What we do on Judiciary,” he informed Miller, “is balance the needs of society and the rights of individuals.”

But the trooper wasn’t backing down an inch. “We are going to get a search warrant,” Miller confidently assured Lippert and his colleagues. “Why make us do all the extra paperwork to do that when we know we’re going to get it?” he asked.

Waiting to testify was Vermont’s Defender General, Robert Appel. Appel’s office provides legal representation to defendants who can’t afford to hire an attorney. After listening to Miller’s rather blunt and somewhat threatening testimony, General Appel thought there was little need for him to tell the committee different.

“The rights of criminals are the rights of all citizens,” noted Appel. “Law enforcement plays a very important role in society,” he said, “but they need to play by the rules.”

Appel told Seven Days the real issue “is whether the expectation of privacy guaranteed by the Vermont Constitution should yield to the convenience of law enforcement.”

Appel’s view reflects that of Justice Denise Johnson, who dissented in the Costin case.

“The issuance of a search warrant,” wrote Johnson, “merely requires the judge finding probable cause that a crime is being committed, and the surveillance will yield evidence of that crime. This requirement is more than an inconvenience to law enforcement; it is the essence of the American rule of law, the envy of many countries around the world. To me,” she wrote, “the means of surveillance is wholly irrelevant. The warrantless intrusion into the private lives of our citizens is what I find so unsettling.” She called it “Orwellian.”

Where’s Tony the Prog? — Though he came in third, Progressive Party gubernatorial candidate Anthony Pollina probably won the most fans in last year’s election. Tony the Prog came off as intelligent and thoughtful and had a great way of connecting with people. But since the election, it’s as if Mr. Pollina dropped off the face of the Earth. A recent front-page Sunday story by Candace Page in The Burlington Free Press on the 2002 governor’s race didn’t even mention him. There’s nothing worse for a political hopeful than being ignored by the media.

Douglas Won’t Say — State Treasurer Jim Douglas is the current Republican front-runner for governor in 2002. (As Pollina noted, unlike Ruthless Ruth, “Jim Douglas is not very scary.”) If it seems like Jim’s been around forever, it’s because he has been. A Young Republicans state chairman in the 1960s. A legislator and Dick Snelling protégé in the 1970s. A secretary of state in the 1980s and now treasurer. In his only attempt to break into the political Big League, he lost by 11 points to Democrat Patrick J. Leahy in the 1992 U.S. Senate race. Governor is Big Leagues, but Mr. Douglas doesn’t sound like a very Big Boy yet.

Freed Responds — Rookie House Speaker Walter Freed has never been one to seek out a reporter for conversation. So his response to last week’s “Inside Track” came in a speech last Thursday to the Vermont Realtors Association. Freed told them everyone seemed to think his committee assignments were “fair and balanced” except for yours truly, “who made a derogatory comment about my parentage.”

Media Notes — Statehouse reporter Fred Bever is departing in mid-February for the state of Maine. Fred, a native of the Big Apple, has been with the Rutland Herald for seven years. Before that he put in three years at the Bennington Banner down in the “Forgotten Kingdom.” Mr. Bever moved up to the Statehouse beat three years ago. He’s roundly recognized as a top-notch reporter. Fred’s leaving beautiful Montpelier to become Statehouse bureau chief for Maine Public Radio, where his sweetheart, Jeanne Baron, recently landed a job as well. Happy Valentine’s Day, Freddy! /td>