State v. DavisState v. Davis
Lead Opinion
OPINION
{1} This case is before us on remand from our Supreme Court. See State v. Davis (Davis II),
BACKGROUND
{2} The New Mexico State Police, in conjunction with the New Mexico National Guard, undertook a plan called “Operation Yerba Buena” in order to locate marijuana plantations in Taos County, New Mexico. During the operation, a spotter in a helicopter alerted a ground team “to the presence of a greenhouse and vegetation in Defendant’s backyard.” Davis II,
{3} Officers searched Defendant’s property and found marijuana and drug paraphernalia. Defendant was indicted for possession of marijuana and possession of drug paraphernalia. Defendant sought suppression of the evidence seized during the search, arguing, among other things, that the helicopter surveillance of his property violated the federal and state constitutions. The district court denied Defendant’s motion, determining that the helicopter surveillance was “just barely permissible.” Defendant entered a conditional guilty plea and appealed the denial of his motion to suppress. On appeal, this Court reversed the district court’s denial of the suppression motion on the basis that Defendant’s consent was the result of duress. See State v. Davis (Davis I),
DISCUSSION
{4} On remand, we address the following arguments raised by Defendant: (1) whether the aerial surveillance of Defendant’s property prior to the consensual physical search of his property violated the Fourth Amendment to the United States Constitution and Article II, Section 10 of the New Mexico Constitution; and (2) whether Defendant’s consent to the search of his property was purged of the taint of the alleged constitutional violation arising from the aerial surveillance. Because of our disposition, it is not necessary for us to consider whether the district court improperly denied Defendant’s motion requesting that the court visit his property during the suppression proceedings. We address each argument in turn.
A. Standard of Review
{5} “The reasonableness of a search or seizure under the Fourth Amendment and under Article II, Section 10 of the New Mexico Constitution presents a mixed question of law and fact, which we review de novo.” State v. Leyva,
B. Whether the Aerial Surveillance of Defendant’s Property Violated the Fourth Amendment of the United States Constitution and Article II, Section 10 of the New Mexico Constitution
{6} We first consider Defendant’s argument that the aerial surveillance of his property prior to the consensual search of his property violated the Fourth Amendment to the United States Constitution and Article II, Section 10 of the New Mexico Constitution. “Because both the United States and the New Mexico Constitutions provide overlapping protections against unreasonable searches and seizures, we apply our interstitial approach.” Ketelson,
1. Fourth Amendment
{7} WebeginwithDefendant’sargumentthat the aerial surveillance of his property violated the Fourth Amendment to the United States Constitution. The Fourth Amendment guarantees “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const, amend. IV. Since the United States Supreme Court’s decision in Katz v. United States,
{8} The two leading United States Supreme Court cases establish that a defendant does not have a protected interest under the Fourth Amendment if an aerial surveillance of a home and its curtilage
{9} In the second case, Florida v. Riley, the contents of the respondent’s greenhouse were screened from ground level observation by structures, trees, and shrubs, but some of the greenhouse’s roofing panels were either translucent or missing.
{10} These cases teach that an aerial surveillance is not a search for Fourth Amendment purposes if the objects observed are in'open view from a legal vantage point. See 1 Wayne R. LaFave, Search and Seizure: A Treatise on theFourth Amendment § 2.3(g) (5th ed. 2012) (explaining that under Ciraolo, “it is no search to make a naked-eye observation into the curtilage from navigable air space”). This is especially true if the surveillance is not unduly disruptive.
{11} Turning to the present case, the helicopter surveillance passes muster under the Fourth Amendment. While Defendant testified that the helicopter was hovering about fifty feet above him and that it was “kicking up dust and debris,” there is nothing in the record suggesting that this altitude was outside the range of navigable air space, nor is there evidence that the helicopter interfered with Defendant’s normal use of his residence or greenhouse. Officer Merrell testified that the plastic cover on Defendant’s greenhouse was “somewhat clear” and that the plants in the greenhouse were pressed up against the ceiling.
2. Article II, Section 10 of the New Mexico Constitution
{12} Because the Fourth Amendment does notprotectDefendant’s subjective expectation of privacy, we now consider whether the New Mexico Constitution provides greater protection. See Ketelson,
{13} At issue in this case is Article II, Section 10 of our state constitution, which our Supreme Court has consistently interpreted as providing greater privacy protections than the Fourth Amendment. See Leyva,
{14} With this in mind, we discern two threads of analysis in Ciraolo and Riley that are inconsistent with our jurisprudence under Article II, Section 10. The first involves the United States Supreme Court’s focus on the fact that law enforcement personnel in aircraft were no different from passengers in aircraft who could plainly see the marijuana in question. The second thread involves an emphasis on various factors meant to assess the intrusiveness of the aerial surveillance.
a. Airborne Police Are Not the Equivalent of Airborne Members of the Public
{15} With respect to the first aspect of the United States Supreme Court’s analysis, the Court noted in Ciraolo that “[a]ny member of the public flying in this airfjspace who glanced down could have seen everything that these officers observed.”
{16} The only New Mexico cases addressing aerial surveillance were decided before our Supreme Court began interpreting Article II, Section 10 more broadly than the Fourth Amendment.
{17} In contrast to the rationale stated in these cases, New Mexico cases decided since Rogers and Bigler have emphasized that “Article II, Section 10, protects citizens from governmental intrusions, not intrusions from members of the general public.” Granville,
b. Intrusiveness Factors Are Not Useful
{18} As to the second type of analysis under the Fourth Amendment, the Court in Riley seemingly assessed the intrusiveness of the aerial surveillance when it observed that “there was no undue noise, and no wind, dust, or threat of injury.”
{19} We fail to see how an analysis of intrusiveness factors aids in the determination of whether an aerial surveillance is a search. The privacy interest protected by Article II, Section 10 is not limited to one’s interest in a quiet and dust-free environment. It also includes an interest in freedom from visual intrusion from targeted, warrantless police aerial surveillance, no matter how quietly or cleanly the intrusion is performed. Indeed, it is likely that ultra-quiet drones will soon be used commercially and, possibly, for domestic surveillance. Michael J. Schoen, Michael A. Tooshi, Confronting the New Frontier in Privacy Rights: Warrantless Unmanned Aerial Surveillance, 25 No. 3 Air & Space Law 1 (2012); see Intelligence Advanced Research Projects Activity, “Great Horned Owl (GHO) Program,” http://www.iarpa. gov/Programs/sc/GHO/gho.html. Such advances in technology demonstrate the increasingly diminished relevance of intrusiveness factors, as courts have regarded them in the past, in the analysis of what constitutes a search.
c. The Aerial Surveillance in This Case Constituted a Search Under Article II, Section 10
{20} We decline to perpetuate both the analysis in the United States Supreme Court’s cases and in Rogers and Bigler focusing on what is openly visible to the public from the air and the analysis in Rogers based on intrusiveness factors. Since Rogers mdBigler were decided, our courts have diverged from the Fourth Amendment, and the analysis in those cases fails to “serve the robust character and honored history of [Article II, Section 10] with special attention to its purpose of police regulation.” Garcia,
{21} We find persuasive the analysis in Kyllo v. United States,
{22} In holding that the scan constituted a search under the Fourth Amendment, the Court first reviewed its jitrisprudence, whose definition of a search evolved from the notion of common law trespass to the two-prong Katz assessment of whether the person has “manifested a subjective expectation of privacy” that society recognizes as reasonable. Kyllo,
{23} We believe the Kyllo Court’s analogy to physical invasions is in harmony with our jurisprudence under Article II, Section 10. Given our “strong preference for warrants in order to preserve the values of privacy and sanctity of the home,” Granville,
{24} While Kyllo’s requirement that the sense-enhancing technology not be in general use by the public makes sense in the context of that case, we place no reliance on this as a factor. The only rationale for that requirement seems to be that it provides a way to distinguish police conduct from conduct by a member of the public in order to acknowledge the Fourth Amendment’s protections against government intrusion. A better means of protecting against government intrusion — and one that is consistent with Article II, Section 10 jurisprudence — is the addition of a requirement that the goal of government personnel is to intrude. As Professor Clancy put it, “}i]n assessing whether a search has occurred, inquiry must be made into whether it is the goal of the government agent to learn something about the target when engaging in an activity or employing a technological device.” Clancy, supra, at 39. This inquiry also permits the government to use evidence obtained inadvertently by law enforcement personnel. See, e.g., Clancy, supra, at 41 (hypothesizing that it would not be a search if a police officer tripped and fell on a bus passenger’s soft-sided luggage and, in bracing himself, felt a brick-like object in the luggage).
{25} This inquiry, plus the inquiry as to whether the information could otherwise only be obtained via physical intrusion, “add[s] clarity of meaning for decision-makers” like police and magistrates contemplating the issuance of warrants. Clancy, supra, at 39. Our Supreme Court has stated that clarity for such decision makers is an important consideration under Article II, Section 10. See Garcia,
{26} Putting this analysis in the context of aerial surveillance, such surveillance constitutes a search under Article II, Section 10 if (1) the government agent(s) involved intend to obtain information from a target or targets through aerial surveillance, and (2) if the information to be obtained through aerial surveillance could not otherwise be obtained withoirt physical intrusion into the target’s home or curtilage. If the surveillance constitutes a search, then the government agent(s) must obtain a search warrant before conducting the surveillance, absent an exception to the warrant requirement, such as exigent circumstances.
{27} In the present case, the evidence presented to the district court established that the agents involved in Operation Yerba Buena undertook helicopter sirrveillance of several homes, including Defendant’s home, with the purpose of finding marijuana plantations. In addition, the evidence suggesting that Defendant was growing marijuana in his greenhouse could not have been obtained without aerial surveillance unless the agents physically invaded the greenhouse. Consequently, the helicopter surveillance of Defendant’s property constituted a search requiring probable cause and a warrant. Because the agents did not obtain a warrant, they had to rely on an exception to the warrant requirement. In this case, our Supreme Court determined that they obtained from Defendant valid consent to search. The question thus becomes whether Defendant’s consent was sufficiently attenuated from the illegal search to be purged of the illegality’s taint.
C. Defendant’s Consent Was Not Sufficiently Attenuated From the Illegal Search
{28} “The fruit of the poisonous tree doctrine bar[s] the admission of legally obtained evidence derived from past police illegalities.” State v. Monteleone,
{29} We conclude that Defendant was not required to expressly raise the fruit of the poisonous tree doctrine because the district court determined that the helicopter surveillance was constitutional and, therefore, there was no reason for Defendant to have raised or argued that the doctrine applied. See State v. Ingram,
{30} Because we disagree with the district court’s determination, we now consider whether Officer Merrell obtained Defendant’s consent “by means sufficiently distinguishable to be purged of the primary taint” of the illegal helicopter surveillance of Defendant’s property. Monteleone,
{31} Here, Officer Merrell obtained Defendant’s consent through exploitation of the illegal helicopter search. The evidence suggesting that Defendant was growing marijuana was obtained via the ' aerial surveillance of his property. Officer Merrell then approached Defendant, who was standing outside his home, and obtained consent. Davis II,
CONCLUSION
{32} For the foregoing reasons, we reverse the district court’s denial of Defendant’s suppression motion.
{33} IT IS SO ORDERED.
I CONCUR:
Notes
“Generally, the curtilage is the enclosed space of the grounds and buildings immediately surrounding a dwelling house.” State v. Hamilton,
Although the district court found that greenhouses in the area “were constructed of non-transparent .fiberglass, wood],] and opaque plastic sheeting],]” the evidence supporting that finding related to a surveillance target other than Defendant.
See State v. Garcia,
Concurrence Opinion
(specially concurring).
{34} I concur in the Opinion’s insightful and forward-thinking application of Article II, Section 10 of the New Mexico Constitution. I have some additional thoughts.
Weighing Factors
{35} Deciding warrantless aerial surveillance cases, by weighing factors of altitude, FAA regulations, extent of physical intrusion, location of the property, means of surveillance (as the district court found, helicopter swooping to lower altitude and men on a mission as if they were in a state of war searching for weapons or terrorist activity), and complaint anonymity, is fraught with arbitrary or painstakingly difficult and subjective determinations. Note the district court’s “just barely permissible” characterization of the “helicopter search,” and the court’s characterization of the facts as “teeter[ing] dangerously close to exceeding the limitations implicit in the Fourth Amendment.” The weighing approach is less effective than Justice Scalia’s approach in Kyllo. Citizens have an expectation of privacy with respect to the police looking into their homes and curtilage. If the police, as in this case, are purposefully targeting a home, curtilage, or residential area to discover illegal marijuana growing activity by, as the district court in this case characterized it, “flying around generally in an effort to spot greenhouses” in a “random investigation,” the police should have to pass warrant muster as a condition precedent to conducting the aerial surveillance. This requirement is restrictive, no doubt. But the better judgment in a circumstance like that before us is to protect the privacy of the home and curtilage and require a validly issued warrant for the targeted surveillance. Here, Defendant had an expectation of privacy with regard to his curtilage. The targeted surveillance was a search. The search was warrantless and presumed to be unlawful. No exception overcame the presumption.
Taint of Consent
{36} I offer another basis on which we ought to be able to hold that the warrantless and unreasonable aerial surveillance search tainted Defendant’s consent. The district court determined factually that the spotter could not have observed marijuana and that any belief the spotter had was speculative. After noting that “ ‘Carson’ area plus ‘greenhouse’ propelled the spotting officer to conclude by speculation that behind the walls of the greenhouses were prohibited plants},]” the court perceived “a surreal ‘profiling’ aspect to the police behavior.” Stated differently, the court determined that it was objectively imreasonable to believe that the spotter had, in fact, observed marijuana, thereby rendering such “observation” by the spotter to be mere speculation. Speculation does not give rise to reasonable suspicion. See Leyva,
Fourth Amendment
{37} I would hold the surveillance search unreasonable under the Fourth Amendment as well as under Article II, Section 10 on the basis that the expectation of privacy analyses in cases that involve targeted aerial surveillance investigations and invasions into a home and curtilage using modern technology, whether thermal imaging technology or a helicopter, should now be controlled by Justice Scalia’s Kyllo analysis and test as set out earlier in the Opinion of this Court.