Numerous county residents reported helicopters flying low over their properties, kicking up dust and debris.
BY DAN VUKELICH
The New Mexico Supreme Court held today that a person has a right to privacy from a police helicopter that swoops down on a house to spot marijuana in a greenhouse.
The decision overturns the conviction of a Taos man who was charged with cultivating marijuana following a generalized sweep of Taos County by teams of police using New Mexico National Guard and New Mexico State Police helicopters.
The court found that, while spotters in helicopters or planes flying at altitude might observe marijuana plants on a person’s property without violating a person’s right to privacy under the Fourth Amendment to the U.S. Constitution, flying low enough to kick up dust does violate that right.
The case involved an appeal by Norman Davis of Taos County of his conviction for marijuana cultivation.
In August 2006, New Mexico State Police, acting on anonymous tips that marijuana was being grown at undisclosed locations in Taos County, organized ground search teams supported by helicopters in an operation dubbed “Operation Yerba Buena.”
Helicopters criss-crossed the county with observers onboard looking for marijuana plantations. Numerous county residents reported helicopters flying low over their properties, kicking up dust and debris and, in some cases, causing damage. One resident said his solar panels were ripped off his roof by a helicopter’s rotor wash. Another said the beams of his house were cracked. A child asked his mother if an army was invading them.
In Davis’ case, a helicopter spotter saw marijuana plants in his greenhouse that would not have been visible from the ground. State police entered Davis’ property and, with the helicopter still hovering nearby, asked his permission to search the greenhouse, where they found marijuana plants.
Over the years, Davis’ attorneys have sought to suppress the results of the search on grounds it was unconstitutional and that Davis’ consent to search his property was coerced. The Supreme Court, in a unanimous 31-page opinion written by retiring Justice Richard Bosson, agreed with Davis on both counts.
One justice, Edward Chavez, went further. In a 37-page specially concurring opinion, Chavez wrote that because Davis had concealed his greenhouse’s contents from observation on the ground, any search based on aerial observation – regardless of the altitude – would have been unconstitutional.
Although the court recognized that a search based on observations by “ultra-quiet drones” might someday come before it, the justices stated no position.
“Because this case only involves surveillance by helicopters, technology that has been with us for nearly 80 years, we find it unnecessary to speculate about problems – and futuristic technology – that may or may not arise in the future, we reserve judgment and await a proper case with a developed record,” the court wrote.
— Dan Vukelich
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