Case Summary and Outcome

The New Mexico Supreme Court found a warrantless low altitude aerial surveillance operation of a residential area suspected of growing marijuana plants to be an unconstitutional search under the Fourth Amendment. Accordingly, the Court reversed the conviction of Davis for marijuana possession and suppressed all seized evidence resulting from the constitutionally impermissible surveillance, search and seizure by law enforcement of his property.

Facts

A coordinated team of law enforcement conducted a warrantless search operation of a residential area suspected of growing marijuana plants. In addition to a ground team, a police helicopter conducted aerial surveillance to observe the area for possible marijuana plantations. The pilot was instructed to contact the ground team once he was able to locate the property. Based on testimonies, the helicopter was flying at very low altitude, characterized by residents as “terrifying and highly disruptive.” Several nearby residents also stated that the flyover was close to the ground, and it caused damage to their property.

The surveillance resulted in the observation of a green house and marijuana plantation within Davis’ private residence. When confronted by the police, Davis admitted to growing marijuana in his greenhouse and allowed the officers to search his property by signing a written consent form.

A grand jury indicted Davis of two separate state crimes of possessing marijuana and drug paraphernalia. Davis filed two pretrial motions to suppress evidence, arguing that his consent was not voluntary, and that the aerial surveillance violated his constitutional right under the Fourth Amendment to be free from unreasonable searches and seizures.

The district court denied both motions. On appeal, the New Mexico Court of Appeals examined the legality of the surveillance under both the U.S. and New Mexico Constitutions. The Court of Appeals held that the search was permissible under the Fourth Amendment, but violated Article II, Section 10 of the New Mexico Constitution. The court of appeals ruled that the right to privacy “is not limited to one’s interest in a quiet and dust-free environment. It also includes an interest in freedom from visual intrusion from targeted, warrantless police aerial surveillance, no matter how quietly or cleanly the intrusion is performed.”[1]

The Supreme Court of New Mexico granted the state’s petition for certiorari review.

[1] para. 21, quoting U.S., State v. Davis, 263 P.3d 953, 961 (N.M. Ct. App. 2011).

Decision Overview

Bosson, J., delivered the opinion of the New Mexico Supreme Court. The Supreme Court reversed the court of appeals’ ruling, holding that while a non-intrusive aerial surveillance of a home or its curtilage is generally permissible under the Fourth Amendment, the police conduct at issue went beyond such limitation. Based on the evidence, the Court noted that the police helicopter was flying for a long period of time and at low altitude, causing damage to surrounding properties.

The Court first examined the aerial surveillance under the U.S. Constitution, and if the asserted right was protected at the federal level, the Court would have no need to reach the state constitutional claim. As such, the main issue was whether the aerial surveillance conducted over Davis’ property was protected under the Fourth Amendment. As a general rule, the Fourth Amendment analysis against unreasonable searches and seizures begins with whether the claimant had a reasonable expectation of privacy. This inquiry is composed of both subjective and objective elements: “whether the individual, by his conduct, has exhibited an actual (subjective) expectation of privacy, … [and] whether the individual’s subjective expectation of privacy is [objectively] one that society is prepared to recognize as reasonable.”[2] “A home’s curtilage—the ‘area outside the physical confines of a house into which the ‘privacies of life’ may extend’—merits ‘the same constitutional protection from unreasonable searches and seizures as the home itself.”[3] But the Court underscored that an area falling within the home’s curtilage does not automatically receive the Fourth Amendment’s protections under all circumstances. For example, there is no legitimate expectation of privacy when “the observed area is knowingly exposed to public view.”[4]

Here, the Court observed that even though Davis’ property was fully enclosed at ground level, it was left open to public or official observation. After discussing two analogous U.S. Supreme Court decisions, U.S., Florida v. Riley, 488 U.S. 445 (1989) and U.S., California v. Ciraolo, 476 U.S. 207 (1986), the Court was of the opinion that “unobtrusive aerial observations of space open to the public are generally permitted under the Fourth Amendment.”[5] But “when 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.”[6] Based on the facts in the present case, the Court concluded that the police’s warrantless aerial surveillance of Davis’ home was not constitutionally permissible as the helicopter was hovering very close to the ground for a long period of time.

Following its interstitial approach, the Court did not address the issue under the New Mexico Constitution, because it had found that Davis’ right to be free from unreasonable searches and seizures was protected under the Fourth Amendment to the U.S. Constitution. Accordingly, the Court reversed the court of appeals’ ruling on the right to privacy, and affirmed the court of appeals’ ultimate determination to suppress all seized evidence and reverse Davis’ conviction.

[2] para. 25, quoting U.S., Smith v. Maryland, 442 U.S. 735, 740 (1979).
[3] para. 26, quoting U.S., State v. Rogers, 638 A.2d 569, 572 (Vt. 1993), and U.S., Oliver v. United States, 466 U.S. 170, 180 (1984).
[4] para. 27.
[5] para. 45.
[6] para. 46.