It’s tax inspection season in Vermont. Every Spring, so-called “listers” drive around their communities, snapping pictures and patrolling properties to estimate their values before tax bills are issued to landowners. But are these inspections legal? Not all of them. As it turns out, some listers have been conducting unconstitutional searches.
The U.S. Supreme Court has been very clear for the past decade-plus that under the U.S. Constitution’s Fourth Amendment and customary property law government officials have only a limited implied license to enter private property, do so things like approach your front door, knock, or try to speak with you. Other activities, like using a drug-sniffing dog to conduct a search, or peeping through windows, are forbidden by the Fourth Amendment because they are “unreasonable searches” that exceed the limits of this implied “license of solicitation.”
Without an owner’s consent, or a warrant, listers are very limited in what they can legally do. Despite this, property owners have reported that some listers are entering private properties without permission to inspect the area around people’s homes and peer through their windows, checking to see if improvements were made that hadn’t been reported.
But snooping in the area close to the home, which courts call the “curtilage,” is flatly forbidden by the federal constitution. Taking a photograph from the street is one thing, but standing next to an occupant’s closed front door and aiming a camera to photograph the interior of a person’s house is quite another.
The federal constitution has often drawn a distinction between the home and its curtilage on one hand, and open land on the other. That’s because the Fourth Amendment only protects “persons, houses, papers, and effects” against unreasonable searches, rather than what the U.S. Supreme Court has called “open fields.” But Vermont has interpreted its own constitution to provide greater protection than the Fourth Amendment.
Instead of “effects,” the Vermont Constitution uses the term “possessions,” and since land is something one possesses, the government can’t ignore the requirement to get a warrant or permission before invading land, even land that is outside the curtilage. Therefore, listers in Vermont might want to brush up on their state law before they enter private properties to conduct inspections without consent or a warrant, whether they’re traipsing through an open field or creeping around a patio.
While physically entering properties might be forbidden, an enterprising inspector might contemplate deploying aerial drones, as many private appraisers do. This would be a mistake.
While the U.S. Supreme Court has ruled in the past that police surveillance photographs taken by high-flying aircrafts don’t constitute “searches” under the constitution, drones fly quite a bit lower. Further, the Vermont Constitution protects all private possessions—not just “persons, houses, papers, and effects.” Since, under the common law, you possess your property from “heaven to hell,” a drone hovering over your property taking pictures may very well be a trespass.
While there are some exceptions to this heaven-to-hell rule — obviously passenger aircraft fly over our homes at 30,000 feet all the time — courts and legislatures around the country are deeming low-flight intrusions by drones over domestic properties to be invasions of property rights. Thus, listers’ use of drones is not likely to get them around the constitutional limitations on their propensity to snoop.
Courts have been slow to embrace new rules for the rapidly evolving landscape of technology. However, it is likely that if listers in Vermont are making use of drones and snooping around curtilages, their days of engaging in these constitutionally questionable practices are limited.
Daniel Woislaw is an attorney at Pacific Legal Foundation, a public interest law firm that defends Americans’ liberty against government overreach and abuse.
