2014 NMCA 042
N.M. Ct. App.2014Background
- NM State Police and NM National Guard ran “Operation Yerba Buena” using a helicopter to spot suspected marijuana greenhouses in Taos County; a spotter identified vegetation in Davis’s backyard.
- A ground officer (Merrell) told Davis the helicopter believed it had located marijuana and requested consent to search; the Supreme Court later held Davis’s consent was voluntary.
- Officers searched the property and seized marijuana and paraphernalia; Davis moved to suppress, arguing the aerial surveillance violated the Fourth Amendment and Article II, § 10 (NM Const.).
- The district court found the helicopter surveillance “just barely permissible” and denied suppression; this Court initially reversed on duress grounds, the Supreme Court reversed that ruling and remanded to address remaining issues.
- On remand, this Court held that under Article II, § 10 targeted aerial surveillance that aims to obtain information from a home/curtilage and that could not be obtained without physical intrusion is a search requiring a warrant.
- The Court concluded the helicopter surveillance here was an unconstitutional search under Article II, § 10, and Davis’s subsequent consent was not sufficiently attenuated from that illegality, so the seized evidence must be suppressed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether helicopter aerial surveillance of Davis’s home/curtilage was a search under the Fourth Amendment | Surveillance from navigable airspace that reveals what’s openly visible is not a search (Ciraolo/Riley) | Targeted police aerial surveillance of home/curtilage intrudes on privacy; federal precedents don’t control state provision | Under the Fourth Amendment, surveillance here did not violate Katz expectations; Ciraolo/Riley applied, so no federal search |
| Whether Article II, § 10 provides broader protection than the Fourth Amendment for aerial surveillance | State relied on federal framework; no broader protection needed if federal protects right | New Mexico Constitution affords greater protection for the home/curtilage; police aerial surveillance directed at homes is qualitatively different from public overflight | Article II, § 10 provides greater protection; targeted aerial surveillance to obtain info from home/curtilage that could only be obtained via intrusion is a search requiring a warrant |
| Proper test for state-constitutional aerial-surveillance searches | Use visibility from public airspace and intrusiveness factors (altitude, noise, frequency) | Adopt a test focused on government purpose to intrude plus whether info could be obtained only by physical intrusion (informed by Kyllo) | Adopted test: (1) government intended to obtain information via aerial surveillance; and (2) the information could not be obtained without physical intrusion; if met, a warrant is required |
| Whether Davis’s consent to search attenuated the taint of the illegal aerial surveillance | Consent was voluntary and purged taint (per Supreme Court on voluntariness) | Consent flowed directly from warrantless aerial surveillance and lacked intervening circumstances, so tainted | Consent was not sufficiently attenuated from the illegal aerial search; evidence suppressed |
Key Cases Cited
- Katz v. United States, 389 U.S. 347 (establishes two-prong expectation-of-privacy test)
- California v. Ciraolo, 476 U.S. 207 (public-navigable-airspace naked-eye aerial observation not a Fourth Amendment search)
- Florida v. Riley, 488 U.S. 445 (plurality: helicopter observation within navigable airspace not a search where intrusion not substantial)
- Kyllo v. United States, 533 U.S. 27 (use of sense-enhancing technology to obtain info about home interior is a search)
- State v. Garcia, 147 N.M. 134 (N.M. Supreme Court recognizing divergence from Fourth Amendment analysis under Article II, § 10)
- State v. Leyva, 149 N.M. 435 (Article II, § 10 reasonableness is reviewed de novo; New Mexico provides greater privacy protection)