Pubdate: Tue, 20 Oct 2015
Source: Albuquerque Journal (NM)
Copyright: 2015 Albuquerque Journal
Contact:  http://www.abqjournal.com/
Details: http://www.mapinc.org/media/10
Author: Mark Oswald

COURT: AERIAL POT BUST INTRUSIVE

Reversal Cites Damage Caused by Low-Flying Helicopters in Raid

SANTA FE - The New Mexico Supreme Court, taking up a controversial 
2006 marijuana raid for a second time, ruled Monday that a 
warrantless aerial search was unconstitutional because a low-flying 
helicopter - said to have damaged property, kicked up dust and raised 
a panic - was too intrusive.

Justice Richard Bosson wrote that "when 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 court didn't rule out all aerial searches, citing case law 
supporting searches using aircraft flying at "navigable" altitudes of 
400 feet or higher and with little impact on the ground.

The 2006 raid, part of a State Police operation called "Yerba Buena" 
aimed at finding marijuana plantations, netted pot 14 pot plants from 
Norman Davis' rural Taos County home. In a 2013 decision, the Supreme 
Court upheld Davis' pot possession conviction but sent the case back 
to the state Court of Appeals for more review. The new Supreme Court 
opinion reverses the conviction. The state Attorney General's office 
said it will review the case to determine whether an appeal to the 
U.S. Supreme Court is appropriate.

"While the Office of the Attorney General is dismayed that the 
Supreme Court reversed a controlled-substances conviction, the ruling 
appears limited to the facts surrounding a specific helicopter 
search, which the Court deemed unreasonable," said spokesman James 
Hallinan. "The majority specifically declined to provide guidance 
regarding new technologies such as drones.

"We believe helicopter operations remain an important tool in the 
detection and apprehension of drug traffickers."

One issue has been whether Davis was illegally coerced when he agreed 
to allow officers to search his home and greenhouse as a police 
helicopter hovered overhead, several officers armed with 
semi-automatic weapons were at his door and a fleet of law 
enforcement vehicles had pulled up outside.

In Monday's ruling, the high court noted that it had decided in 2013 
that despite the heavy police presence, Davis had voluntarily given 
consent for the home search after he'd been told by State Police Sgt. 
Bill Merrell that a helicopter spotter had identified marijuana 
plants on his property. But now the justices say that the shopper 
search itself was illegal.

Bosson's opinion says that "unobtrusive aerial observations" are 
generally permitted. But Bosson noted there was testimony from Davis' 
neighbors that two National Guard helicopters were "terrifying and 
highly disruptive" and flew back and forth low enough to lift off a 
solar panel and scatter trash, break a four-by-four beam and cause 
turkeys to squawk.

Davis said the chopper above him was causing "a considerable racket" 
from about 50 feet in the air.

Officers testified the chopper was flying higher, but it was "clearly 
audible" on Sgt. Merrell's belt recording of his conversation with 
Davis, Bosson wrote.

He concluded: "The prolonged hovering close enough to the ground to 
cause interference with Davis' property transformed this surveillance 
from a lawful observation of an area left open to public view to an 
unconstitutional intrusion into Davis' expectation of privacy."

In a "specially concurring" opinion, Justice Edward L. Chavez says 
New Mexico's own constitutional privacy protections bar all aerial 
surveillance without a warrant.
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MAP posted-by: Jay Bergstrom