360 P.3d 1161
N.M.2015Background
- In 2005–06 New Mexico law enforcement conducted “Operation Yerba Buena,” using Army National Guard OH-58 helicopters to survey remote Taos County for marijuana plantations based on vague, anonymous tips.
- Helicopter observers identified Davis’s property from the air; a ground team approached while a helicopter hovered overhead, audible on the officers’ recording.
- Davis admitted growing marijuana and signed written consent; officers seized 14 plants from his greenhouse. No warrant was obtained for the aerial observation or ensuing ground search.
- At suppression proceedings residents testified the helicopters hovered low, caused loud noise, rotor wash, debris, and some property damage; police testimony disputed those effects and pilots’ compliance with altitude guidelines.
- The district court denied suppression; on appeal New Mexico Court of Appeals found the aerial surveillance constitutional under the Fourth Amendment but unconstitutional under the New Mexico Constitution and suppressed the evidence. The Supreme Court of New Mexico granted certiorari.
- The New Mexico Supreme Court held the helicopter surveillance was an unreasonable, warrantless Fourth Amendment search (and therefore did not reach the state-constitutional question) and concluded Davis’s consent was insufficiently attenuated from that illegality, ordering suppression and reversing the conviction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether targeted helicopter aerial surveillance of curtilage is a Fourth Amendment search | State: Observation from navigable airspace was permissible under Ciraolo/Riley where no lawful intrusiveness occurred | Davis: Low, prolonged hovering caused noise, rotor wash, debris and panic, turning observation into a physical intrusion and search | Held: Surveillance went beyond benign aerial observation; the prolonged, low hovering that interfered with property was an unreasonable Fourth Amendment search |
| Whether Davis had a reasonable expectation of privacy in the greenhouse/curtilage | State: Property was visible from air and surveillance occurred in navigable airspace; no protected expectation for what is knowingly exposed to public view | Davis: He took measures (fences, screens, opaque coverings, remote location) to exclude ground-level view and manifested a privacy expectation | Held: Court found evidence of interference and intrusion; Davis’s privacy interest in curtilage was violated by the intrusive helicopter surveillance |
| Whether Davis’s subsequent consent attenuated the taint of the illegal aerial search | State: Consent was voluntary and valid (previously affirmed on voluntariness) | Davis: Consent was the direct product of the illegal aerial observation and the ongoing helicopter presence | Held: Consent was not sufficiently attenuated; it was obtained as a direct result of the illegal aerial search and could not purge the taint |
| Whether the New Mexico Constitution provides broader protection requiring separate analysis | State: Interstitial approach requires resolution under federal law first | Davis/Court of Appeals: Article II, §10 may offer broader privacy protection | Held: Because the Court found a federal Fourth Amendment violation, it did not decide the state-constitutional question (though concurring opinion advocated broader state protection) |
Key Cases Cited
- California v. Ciraolo, 476 U.S. 207 (1986) (aerial observation from 1,000 feet in navigable airspace held not a Fourth Amendment search where observation was nonintrusive)
- Florida v. Riley, 488 U.S. 445 (1989) (plurality and concurrences holding helicopter observation at 400 feet was not a search where there was no undue noise, wind, dust, or threat of injury; cautions about lower-altitude helicopter surveillance)
- Katz v. United States, 389 U.S. 347 (1967) (two-part reasonable expectation of privacy test)
- Kyllo v. United States, 533 U.S. 27 (2001) (observations revealing intimate details not otherwise exposed may implicate the Fourth Amendment)
- Dow Chemical Co. v. United States, 476 U.S. 227 (1986) (aerial photography of industrial plant from navigable airspace not a Fourth Amendment search)
- United States v. Jones, 565 U.S. 400 (2012) (search occurs at minimum when government obtains information by physically intruding on a constitutionally protected area)