Federal Court Grounds Warrantless Aerial Surveillance of Marijuana Plants

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The case was about warrantless aerial surveillance of someone growing marijuana in his backyard, but the implications of the court decision can be far reaching. For, as the opinion of the state Court of Appeals, New Mexico, clarified – spotting something suspicious from the air and following up with a ground search required the initial aerial surveillance to be conducted according to rules. So, that’s a direct slap in the face of your friendly neighborhood spy drone.

In its detailed 23-page opinion, the court observed, “The evidence suggesting that (the) 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 a probable cause and a warrant.”

  

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As the primary evidence, by itself, had been obtained unconstitutionally in order to establish probable cause for the ground search – the entire series of events leading to the arrest and conviction of Norman Davis crumbled as being unconstitutional. The fact that incriminating evidence had been seized following the ground search was not of consequence, as the search, by itself, was initiated on premises held as invalid.

While some might think this is handicapping law enforcement, it is not so. There is nothing that prevents law enforcement from making a second air surveillance with a lawful warrant and then following up on it. The courts have time and again emphasized that warrantless searches are justified only in cases where there is immediacy in the flow of events requiring warrantless intervention.

In the instant case in rural Taos County of New Mexico, a joint operation including the State Police, National Guard, and state Game and Fish was conducted targeting people growing marijuana in their backyards in the Carson area. One of the helicopters in the operation saw Davis’ greenhouse and some “vegetation” and a ground search was conducted seizing 14 plants in total.

The court’s opinion further mentioned that privacy rights and protections include “an interest in freedom from visual intrusion from targeted, warrantless police aerial surveillance … indeed, it is likely ultraquiet drones will soon be used commercially and possibly for domestic surveillance.”