October 19, 2015

Supreme court: Helicopter search that led to pot conviction was illegal

The New Mexico Supreme Court ruled that surveillance from a helicopter that led to the conviction of a Northern New Mexico man for growing marijuana was illegal under the United States Constitution.

Marijuana budThe New Mexico Court of Appeals previously ruled in January of 2014 that the aerial search was illegal, but cited the state constitution.

Norman Davis was convicted after a joint operation, called Operation Yerba Buena, between the New Mexico State Police and the New Mexico National Guard involved flying two Army National Guard OH 58 Jet Ranger helicopters over Taos County to find alleged marijuana growth sites.

The journey between that search and this Supreme Court decision was long; the search was conducted back in 2006. The Supreme Court heard the arguments on the case in January of this year.

The helicopters located what appeared to be marijuana plants in Davis’ back yard. Police confronted Davis at his house and he admitted to growing marijuana in a greenhouse and allowed state police to search his yard.

His property was blocked from ground view, but not so from an aerial view, such as from the National Guard helicopters.

The State Supreme Court cited two United States Supreme Court decisions in “remarkably similar” cases where police were able to view marijuana plants from aerial searches, one by an airplane and another by helicopter, but not from ground view.

The difference was that in this case, Davis and others in the area reported that the helicopter was flown at such an altitude to cause a disturbance to property, including noise, flying dust and even some property damage.

“[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 opinion states. “The Fourth Amendment and its prohibition against unreasonable searches and seizures demands no less.”

Neighbors reported the downdraft from the helicopters broke four-by-four beams and a solar panel.

The opinion does note that “unobtrusive aerial observations of space open to the public are generally permitted under the Fourth Amendment” and that “a minor degree of annoyance or irritation on the ground” is permissible under the Fourth Amendment.

The State Supreme Court ruled that the helicopter search was an “illegal search” and so his signed agreement to allow police to search his property was also illegal. This means that the seizure of the 14 marijuana plants was not legal and not admissible against Davis.

The court ruled that statements showed the helicopters did “more than just observe” and “were also there to provide aerial cover and protection for the officers on the ground—in other words, to participate actively in the investigation. “

Justice Richard C. Bosson wrote the opinion, while Justice Edward L. Chavez wrote a specially concurring opinion. All other justices concurred with Bosson’s opinion.

The opinion also briefly mentions drones; the Court of Appeals said that the future use of “ultra-quiet drones” should be addressed. The Supreme Court opinion said it was not necessary to examine the legality at this time.

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. Instead, we reserve judgment and await a proper case with a developed record.

The Court of Appeals had said the aerial search was illegal under the state constitution, but the Supreme Court’s interpretation using the United States Constitution made looking into that irrelevant.

Davis’ now-overturned conviction was of possession of more than 8 ounces of marijuana, a fourth degree felony.