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NM Supreme Court Rules Warrantless Aerial Marijuana Surveillance Unconstitutional

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The New Mexico Supreme Court has ruled that state police violated a Taos County mans privacy rights by conducting a warrantless aerial search of his property prompting them to find 14 marijuana plants in 2006.

Norman Davis was convicted of possession of marijuana and although he gave consent for a ground search, the man said he was targeted by an illegal aerial search operation conducted by state police, the National Guard and New Mexico Game and Fish deemed “Operation Yerba Buen.”

Since authorities did not obtain warrants for their aerial search, the state high court ruled Monday that the “surveillance amounted to an unconstitutional search under the Fourth Amendment.”

According to the Santa Fe New Mexican:

The operation began at 9 a.m. Aug. 23, 2006, as two Army National Guard OH58 Jet Ranger helicopters took off from Taos Regional Airport. When one of the helicopter observers identified possible marijuana plants near Carson, five vehicles containing at least six armed law enforcement officers were dispatched to the Davis residence.

They found the property was enclosed at the ground level by fences and shade trees and bushes, suggesting Davis had some expectation of privacy. The greenhouse and marijuana plants at the back of the property near the house were not visible from the street. When confronted by a New Mexico State Police officer, Davis admitted he was growing marijuana and allowed officers to search his property.

There was testimony in court by several nearby residents that the flyovers were “terrifying and highly disruptive.” One person said the helicopter was so close to his roof that the downdraft lifted off a solar panel and scattered trash everywhere. Another man said that one of his 4-by-4 beams was broken at the ground and another three feet from the ground, and the noise upset his turkeys and fowl. Davis said the helicopter was hovering 50 feet above his head and “kicking up dust and debris that was swirling all around.”

On Monday, the court unanimously reversed Davis’ earlier conviction as well as a 2014 ruling by the state Court of Appeals that said the search did not violate his Fourth Amendment protections. It also upheld the lower court’s decision to suppress all evidence seized.

“When low-flying aerial activity leads to more than just observation and actually causes an unreasonable intrusion on the ground… then at some point courts are compelled to step in and require a warrant before law enforcement engages in such activity,” Justice Richard Bosson said, writing for the court.

The decision will likely affect New Mexico police agencies’ future use drones and other means of aerial surveillance on private property without a warrant.

“It seems to me this establishes some clear boundaries for aerial surveillance and where privacy is protected,” director of the American Civil Liberties Union New Mexico, Peter Simonson said. “If there is an unreasonable degree of intrusiveness, then indeed one does have privacy expectations.”