Court finds aerial surveillance unconstitutional in pot case

[Judi Lynn]

Source: KOAT

Court finds aerial surveillance unconstitutional in pot case

New Mexico Supreme Court weighs in on Operation Yerba Buena

By Devon Armijo
Published 2:20 PM MDT Oct 19, 2015

ALBUQUERQUE, N.M. —New Mexico’s highest court made a landmark ruling Monday in terms of aerial surveillance.

In 2006, New Mexico State Police got a tip that a man in Taos County was growing marijuana plants in his backyard.

The plants couldn’t be seen from the street, so investigators launched a chopper to look for the pot from above. They dubbed the plan Operation Yerba Buena.

On Monday, the New Mexico State Supreme Court ruled the search to be illegal saying in part, “This aerial surveillance amounted to an unconstitutional search under the fourth amendment.”

Read more: http://www.koat.com/news/court-finds-aerial-surveillance-unconstitutional-in-pot-case/35925984

[Blus4u]

1. Cops have been doing this for years.

In Georgia they would launch the National Guard military choppers in the early spring and early fall.


Peace

[csziggy]

11. Our neighbor's son was a helicopter pilot for the DEA and FDLE

FDLE = Florida Department of Law Enforcement.

He used to practice his low level flying over his father's place - until I complained. it seems when they got their new FLEER (this was in the early 1980s) he was testing it out. Apparently young pines had the same readings as marijuana plants and he was hovering really low to check them out.

The copter was hovering below the top of our ridge line which is 206 feet above sea level - it was behind the trees half way down the slope as we looked out from the barn that was at the top of the ridge.

The low copter was freaking our horses out and they were getting hysterical. I called into the local airport tower and told the controllers that if they didn't get that copter the hell out of my air space there were going to be lawsuits ASAP. They told me which agency it was so I gave the controllers my phone number, told them to pass it along to the agency and invited the agents to come out in person on the ground to check out the suspicious plants.

I never heard from the agency at all - my neighbor called to explain on his son's behalf. I was not super pleasant about it. Two of my mares had come in dripping lather and were seriously disturbed for days. We were extremely worried they would lose the valuable foals they were carrying. We were just lucky they didn't run through the fences and cut themselves up!

A few years later the son was checking out am suspicious site on the Gulf coast near Cedar Key, got too low and tangled with some power lines. Both he and the agent with him were killed in the crash.

[Blus4u]

12. Whoa!

I had heard that about the heat signature of pines, and in Georgia that's the content of the forests.
Too bad about your neighbor's kid but he obviously was violating protocol in both of those cases.


Peace

[csziggy]

14. I think he was a hot shot pilot

And pretty full of himself. I was sorry the son was killed but not surprised.

I was damned pissed off that he was endangering my horses that way. Much of his father's property overlooks the lower pasture where he was hovering. We would have been stupid to have grown marijuana there where anyone could look over the fences and see it. Frankly we never considered growing pot on our farm - too much chance of getting caught and losing the property.

[gopiscrap]

2. good for the court

rein in these fucking pigs

[PoliticAverse]

3. That's interesting because there was already a US Supreme Court case on similar aerial surveillance.

California v. Ciraolo (1986)

Held: The Fourth Amendment was not violated by the naked-eye aerial observation of respondent's backyard.

http://caselaw.findlaw.com/us-supreme-court/476/207.html
https://en.wikipedia.org/wiki/California_v._Ciraolo

The Santa Clara, Cal., police received an anonymous telephone tip that marijuana was growing in respondent's backyard, which was enclosed by two fences and shielded from view at ground level. Officers who were trained in marijuana identification secured a private airplane, flew over respondent's house at an altitude of 1,000 feet, and readily identified marijuana plants growing in the yard. A search warrant was later obtained on the basis of one of the officer's naked-eye observations; a photograph of the surrounding area taken from the airplane was attached as an exhibit. The warrant was executed, and marijuana plants were seized. After the California trial court denied respondent's motion to suppress the evidence of the search, he pleaded guilty to a charge of cultivation of marijuana. The California Court of Appeal reversed on the ground that the warrantless aerial observation of respondent's yard violated the Fourth Amendment.

[eggplant]

4. In this age of drones, this ruling might need to be revisited. n/t

[mhatrw]

6. This helicopter was just 50 feet above the guy's house.

That's the sort of intrusive search that has always previously required a warrant.

[PoliticAverse]

7. So at what altitude does a flyover become subject to the 4th amendment? n/t

[mhatrw]

8. The SCOTUS ruling you linked says ...

"The observations by Officers Shutz and Rodriguez in this case took place within public navigable airspace, see 49 U.S.C. App. 1304, in a physically nonintrusive manner; from this point they were able to observe plants readily discernible to the naked eye as marijuana. That the observation from aircraft was directed at identifying the plants and the officers were trained to recognize marijuana is irrelevant. Such observation is precisely what a judicial officer needs to provide a basis for a warrant. Any member of the public flying in this airspace who glanced down could have seen [476 U.S. 207, 214] everything that these officers observed. On this record, we readily conclude that respondent's expectation that his garden was protected from such observation is unreasonable and is not an expectation that society is prepared to honor."

The Nevada court case, of course, cites this case and states:

"Our second conclusion, however, is that when low-flying aerial activity leads
5 to more than just observation and actually causes an unreasonable intrusion on the
6 ground—most commonly from an unreasonable amount of wind, dust, broken objects,
7 noise, and sheer panic—then at some point courts are compelled to step in and require
8 a warrant before law enforcement engages in such activity. The Fourth Amendment
9 and its prohibition against unreasonable searches and seizures demands no less.
10 Obviously, the line drawn between activity permitted with or without a warrant is
11 fact-dependent; any further definition is elusive."

So it appears that the crux as the Nevada court sees it is whether the search is intrusive enough to impinge physically on the property being observed.

[PoliticAverse]

9. Good point, I see in the Nevada case the claim was in fact that...

the helicopter was so low that it was "kicking up dust and debris that was swirling all around"
along with some other claims of physical damage to the property.

[mhatrw]

15. That sounds like a pretty intrusive search without a warrant.

What's next? Cops jetpacking around your property, looking into all the cracks in the curtains?

Personally, I think all these searches from "afar" are intrusive and the Founding Fathers would be aghast to see these "unintrusive" search methods used to jail somebody for growing something on his own property, particularly without a warrant.

[Spitfire of ATJ]

5. Could the same be said of "sneak and peek"?

[happyslug]

13. In "Sneak and Peak" warrants, to get the warrant the Police MUST have Probable Cause.

If the Police have "Probable Cause" then they have the right to search a home. They must get a warrant but with a "Sneak and Peak" warrant they do NOT have to inform the home owner that such a search was done.

https://www.aclu.org/how-usa-patriot-act-expands-law-enforcement-sneak-and-peek-warrants

Thus this decision will have NO affect on such Search Warrants. This decision said, if the Home and immediate area around the home is affected by the search, you need probable cause for such a search. If that area IS not affected by the search no probable cause is needed as long as the helicopter is flying over head and causing no problem on the land.

Also remember if a search is illegal, it does NOT mean the evidence is returned. If the evidence seized is contraband it will be destroyed, it just can NOT be used against the person who is was illegally taken from as evidence (it can be used against other people NOT involved in the illegal search).

[happyslug]

10. Here is the actual opinion

Last edited Tue Oct 20, 2015, 01:04 AM - Edit history (2)

http://www.nmcompcomm.us/nmcases/nmsc/slips/SC34,548.pdf

The court ruled the key was 'Damage or disruption" of the property, NOT whether the plane was operating at a legal height (a US Supreme Court case from the late 1940s implied they is NO minimum legal height for aircraft except as set forth by the Federal Aviation Agency, which implies that if that agency said 1 inch above ground was legal air travel, one inch would be legal air travel). The Defendant said the noise and wind caused by the helicopter flying at 100 feet was excessive, a statement the state FAILED to rebut (the pilot of the Helicopter did NOT testify at the suppression hearing thus the only evidence of excessive noise or lack of such noise and wind was provided by the Defendants).

You have to understand the Common Law rules of Trespass to understand this position. Under the Common Law anyone could cross anyone else's property EXCEPT for the "Close" of their home and NOT be guilty of CRIMINAL trespass (they could be held for Civil Trespass, but in such a case damages HAD to be proven and if you did no damages no judgement).

That was the law for centuries till Unionization efforts of the late 1800s started. What some people called the "Anti-Mother Jones Acts" (For they were passed to throw Mother Jones in Jail for Criminal Trespass when she entered mines and mill to organized workers) in the 1890s new laws were passed making it criminal to entered into property marked with "No Trespassing" signs. Thus for the first time, starting in the 1890s if someone entered into property marked "NO Trespassing" they could actually bring criminal charges against the trespasser as opposed to just telling him or her to leave. Ever since the 1890s there have been a question if these laws apply to law enforcement for they were NOT aimed at law enforcements, but union organizers.

Now, under the Common Law it was Criminal to entered into any building within the "close" of the house. I.e. the home itself, the yard around the home and sometimes the barn depending on how far from the house it was (this goes back to middle ages England when most farmers lived in villages and then walked to the fields in the morning, and walk back at night. They would build a shed on the fields and occasionally sleep over but it was NOT they home. Thus entering such sheds for shelter was not uncommon in that time period and NOT viewed as trespassing. Now, if you took anything that was illegal, but merely staying is such a shed was legal. This tradition came over to the US, where it became the norm to actually live on the farm and go into town to shop and go to Church. Again the Close of the Home included the home, the yard and anything around that area and entrance into that area was criminal trespass. On the other hand anything outside the "Closure" was NOT criminal trespassing (Barns were an active area of disputes, where they is the "Close' of the home or outside it? if you did not take anything, the farmers just kicked you out).

This remains the law today EXCEPT in those areas marked with "No Trespassing" signs OR Locked buildings (or any other structure where an effort had been made to keep people out). In areas with "No Trespassing" signs, or other activities to keep people out, entrance is criminal. While the original "No Trespassing" laws were passed as anti-unionization laws, they were written to appear not related to unions (on the grounds legislators could say they did not vote on an Anti-labor bill when they did).

I bring this up, for it shows how the US Supreme court has looked at such laws. The Court has long taken the attitude that "No Trespassing laws" do NOT apply to law enforcement, but th1.1 le traditional laws as to the "Close" of the house does. Thus the New Mexico's Supreme Courts viewed on how the helicopter affected the land below its flight. If the affect was minimal or none, then any view from such a helicopter would be constitutional even if they were trespassing. On the other hand if the trespass affects the "close of the house" then it would be unconstitutional.

In this case the testimony was the wind caused by the Helicopter affected the "close of the home" and thus unconstitutional, but if a drone would fly inches over the ground and the state can say it caused NO harm to the "close of the home", it would be constitutional. How do you show a drone cause harm to your yard? (the yard is most of the "close of the home&quot ? That is still an open question.

US Case saying they is NO minimum height for aircraft EXCEPT as set by the FAA :

http://caselaw.findlaw.com/us-supreme-court/328/256.html#260

[thesquanderer]

16. Interesting post, thanks! (n/t)