Court: When Aerial Surveillance Resembles An 'Invasion,' It Becomes An Illegal Search

from the drug-warriors-conquering-territory;-ceding-convictions dept

Because there is almost no expectation of privacy in open areas — which can include backyards and fenced-in land — it’s very difficult for a law enforcement agency to violate anyone’s Fourth Amendment rights with aerial surveillance. Whether this is accomplished with a drone, plane or helicopter, the Supreme Court has held that any place that could theoretically be viewed by a member of the public can also be observed by a government agency. (From the Supreme Court’s OTHER Riley decision — this one from 1989.)

Nor on the facts before us, does it make a difference for Fourth Amendment purposes that the helicopter was flying at 400 feet when the officer saw what was growing in the greenhouse through the partially open roof and sides of the structure. We would have a different case if flying at that altitude had been contrary to law or regulation. But helicopters are not bound by the lower limits of the navigable airspace allowed to other aircraft. Any member of the public could legally have been flying over Riley’s property in a helicopter at the altitude of 400 feet and could have observed Riley’s greenhouse. The police officer did no more. This is not to say that an inspection of the curtilage of a house from an aircraft will always pass muster under the Fourth Amendment simply because the plane is within the navigable airspace specified by law. But it is of obvious importance that the helicopter in this case was not violating the law, and there is nothing in the record or before us to suggest that helicopters flying at 400 feet are sufficiently rare in this country to lend substance to respondent’s claim that he reasonably anticipated that his greenhouse would not be subject to observation from that altitude.

In this case, a police helicopter was used to peek into the open top of Riley’s greenhouse, which contained a marijuana grow operation. Although not viewable from ground level thanks to its walls, it was considered to be observable from the air without a warrant.

That paragraph goes on to explain how aerial surveillance could encroach on a person’s Fourth Amendment rights.

As far as this record reveals, no intimate details connected with the use of the home or curtilage were observed, and there was no undue noise, and no wind, dust, or threat of injury. In these circumstances, there was no violation of the Fourth Amendment.

Which is exactly what happened in a case recently decided by the Supreme Court of New Mexico. (h/t Courthouse News)

Norman Davis’ grow operation — similarly situated in a fenced-in yard with a greenhouse — was discovered during the course of a 10-hour drug enforcement operation performed by the New Mexico State Police. A helicopter was flown over Davis’ property, but in a far more disruptive and destructive manner than that described in the Riley decision.

Davis stated he was “in bed and not feeling very well when [he] heard a helicopter hovering very low, right on top of [his] house.” He stated that the helicopter was making “a considerable racket” and that when the sound did not go away, he went outside to see “what . . . was going on.” He observed the helicopter hovering approximately 50 feet above his head “kicking up dust and debris that was swirling all around.”

It wasn’t just the defendant who felt the helicopter was flying oppressively low. Others who observed the drug enforcement operation felt the same way.

Several nearby residents characterized the helicopter flyovers during Operation Yerba Buena as terrifying and highly disruptive. Kelly Rayburn watched a helicopter fly around his house about “half a dozen times.” Rayburn said the helicopter flew so close to his roof that the downdraft lifted off a solar panel and scattered trash all over his property. Victoria Lindsay observed a helicopter sweeping back and forth over her property, sending debris and personal property all over the yard. Lindsay also observed the helicopter hovering very close to the ground at a neighbor’s greenhouse. Merilee Lighty observed a helicopter flying over her property for about 15 minutes. She said it was so close that the downdraft affected her trees and her bushes.

William Hecox did not notice any real dust flying at the time of the flyover, but after the helicopter left he noticed that one of his four-by-four beams was broken at the ground and another one was broken three feet up from the ground. Hecox specifically stated that the beams were not broken prior to the helicopter flying over. He also stated that the noise and effect from the helicopter upset his turkey and fowl and caused them to “squawk[] and run[] around.”

The New Mexico court — considering both the implications of previous US Supreme Court decisions, along with the state’s Constitution — finds that the methods deployed by the state police managed to cross the Fourth Amendment line.

It appears after Ciraolo and Riley that the Fourth Amendment affords citizens no reasonable expectation of privacy from aerial surveillance conducted in a disciplined manner—mere observation from navigable airspace of an area left open to public view with minimal impact on the ground. It also seems, however, that warrantless surveillance can go beyond benign observation in a number of different ways, one of those being when surveillance creates a “hazard”—a physical disturbance on the ground or unreasonable interference with a resident’s use of his property. In that case, surveillance more closely resembles a physical invasion of privacy which has always been a violation of the Fourth Amendment.


[W]hen low-flying aerial activity leads to more than just observation and actually causes an unreasonable intrusion on the ground—most commonly from an unreasonable amount of wind, dust, broken objects, noise, and sheer panic—then at some point courts are compelled to step in and require a warrant before law enforcement engages in such activity. The Fourth Amendment and its prohibition against unreasonable searches and seizures demands no less.


Based on the evidence, therefore, we conclude that the official conduct in this case went beyond a brief flyover to gather information. The prolonged hovering close enough to the ground to cause interference with Davis’ property transformed this surveillance from a lawful observation of an area left open to public view to an unconstitutional intrusion into Davis’ expectation of privacy. We think what happened in this case to Davis and other persons on the ground is precisely what did not occur in either Ciraolo or Riley… Accordingly, we hold that the aerial surveillance over Davis’ property was an unwarranted search in violation of the Fourth Amendment.

As for the matter of the search of Davis’ property that resulted in the seizure of 14 marijuana plants, the court finds that although Davis consented to this search, it cannot be separated from the unlawful search performed by the helicopter. Without the aerial surveillance that managed to run afoul of the Constitution, the police would have had no reason to approach Davis and ask to search his backyard.

This airborne “poisonous tree” costs the state police a conviction resulting from a drug operation carried out nearly a decade ago. This was due in large part to eyewitnesses describing the operation as resembling an “invasion.” Our nation’s drug warriors often forget they’re dealing with fellow citizens and deploy war-like tactics to enforcing federal statutes. Sometimes — but not often enough — this warrior mentality costs them.

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Comments on “Court: When Aerial Surveillance Resembles An 'Invasion,' It Becomes An Illegal Search”

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Bergman (profile) says:

Re: Re: It's High Time

I’d prefer if the government weren’t in the business of prohibition, but if they’re going to do it, they ought to do it evenly.

Marijuana is Schedule IV for no readily apparent reason, while alcohol and tobacco are exempted for equally unapparent reasons.

If you rate tobacco, it would be Schedule IV when smoked, Schedule III in any other pure form, and nicotine itself would be Schedule II.

Alcohol would be Schedule II when consumed.

Marijuana would, if given a rating based on facts rather than lobbying and scare-mongering would be Schedule II when smoked and not even Schedule I when eaten.

Anonymous Coward says:

Re: Re:

They won’t fly right into the greenhouse, that would be an unmistakable physical invasion not permitted by the Riley decision. “Inside the greenhouse” is not public airspace.

But they will definitely be able to fly 50 feet up, with cameras every bit as good as those on the helicopter. And they’ll be quiet enough that they can do it at night, with IR and low-light cameras, with little chance of the property owner spotting them.

Bergman (profile) says:

Re: Re:

Makes me wonder about the legality of the old World War I barrage balloons.

Hang a few balloons over your property on lightweight but strong cords hooked to heavier chains. Any propeller-driven aircraft (helicopter or drone) that flies into one gets chains wrapped around its rotors.

Alternately, attach a steel or titanium bar to a small, cheap toy drone and fly it into the propeller of a larger, more expensive drone. The toy gets shredded, the larger drone’s propeller shatters on the metal bar, and both crash.

Coyne Tibbets (profile) says:

Law enforcement and searches

Law enforcement is all disappointed now. It’s hard for them to understand why anything would constitute a search; much less their proctoscope.

Oh, wait, I forgot: law enforcement is pretty sure having someone looking through their lockers or desk drawers is a search. I guess it just depends on whose space is being invaded: them or all us dastardly criminals.

Tom (user link) says:

Photos and videos of other peoples properties

Interesting way of going around laws. Since drones are not monitored and can fly wherever they want, they can easily observe private properties without warrant. That is giving police quite some power. But on the other hand your neighbour can also do that and that can intrude some privacy. Definitely two edged sword here. In general owning a quadcopter with camera is not expensive at all – okayish models can cost around 200-300$. It will be interesting to see what will happen with newly proposed legislation that is in the congress at the moment. What will they change and what will this bring to us. Personally I am an enthusiast of quadcopters with cameras. They can provide great aerial view as well as photos of the houses and their exteriors. And I know people who often made videos of their neighbours and their gardens. I wonder how many times it happens that someone makes a video and posts it on youtube and then the people see someone was growing weed outside. Quite a funny thought to play around with…

Brad says:

telephoto lens

Where does the court stand on the use of telephoto lenses? Isn’t that also illegal? I thought the standard was that the human eye was reasonable but not something more powerful. Same for directional microphones right? So a drone with a lens equivalent to 20/20 vision is all that is supposed to be used. Or have they changed that as well?

GEMont (profile) says:

Fight Fire With Fire

Perhaps it is now time for the “Sixth Eye”, a secret global association of civilian “2-man cells”, whose purpose is to use high tech surveillance equipment like drone cameras, stingray devices, wire-taps, and quiet computer intrusions, to watch the watchers and movers and shakers and release the results on the web, when the people who make the laws, break the laws.

The only way that the rulers and lords of the land will ever consider surveillance to be an intrusion of privacy is when it is their privacy that is threatened with intrusion.

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