NM: Police helicopter flyover at 50-100′ disrupted and damaged the property and scared the occupants and violated curtilage

A police helicopter flyover at 50-100′ disrupted and damaged the property and scared the occupants. Therefore, it violated the curtilage under the Fourth Amendment. Thus, the state constitutional issue does not have to be decided. State v. Davis, 2015 N.M. LEXIS 319 (Oct. 19, 2015):

{45} Our review of these and other cases involving aerial observation of marijuana plants, both pre- and post-Ciraolo and Riley, leads us to certain conclusions. First, unobtrusive aerial observations of space open to the public are generally permitted under the Fourth Amendment. Even a minor degree of annoyance or irritation on the ground will not change that result. If that were all that occurred in the surveillance of the Davis property, this would likely not constitute an unreasonable search under the Fourth Amendment.

{46} Our second conclusion, however, is 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 Fourth Amendment and its prohibition against unreasonable searches and seizures demands no less. Obviously, the line drawn between activity permitted with or without a warrant is fact-dependent; any further definition is elusive. For that reason, we must return to the evidentiary hearing conducted in this case and the resulting observations of the district court.

{47} Although the district court concluded as a matter of law that Operation Yerba Buena did not amount to an unconstitutional search, many of its findings and much of the evidence suggest that the police went beyond mere observation as that term has been defined by Fourth Amendment jurisprudence.The district court’s findings make multiple references to the degree of noise and disturbance on the ground and suggest that the helicopter swooped down low enough to cause panic among the residents.

{48} In addition to the district court’s findings, evidence from Davis and the other residents suggests that the officers in the helicopter did more than merely observe. There were multiple allegations regarding other properties that the helicopter caused property damage—the broken beams and the damaged solar panel—and produced excessive noise and kicked up dust and debris. The noise allegations in particular are supported by Sergeant Merrell’s audio recording where the helicopter is clearly heard hovering over Davis’ home. And it is clear from all testimony that the helicopters were there to do more than just observe; they were also there to provide aerial cover and protection for the officers on the ground—in other words, to participate actively in the investigation. In so doing, the police increased the risk of actual physical intrusion as occurred in this case.

. . .

{52} Based on the evidence, therefore, we conclude that the official conduct in this case went beyond a brief flyover to gather information. 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. We think what happened in this case to Davis and other persons on the ground is precisely what did not occur in either Ciraolo or Riley and what did occur in both Oglialoro and Pollock. Accordingly, we hold that the aerial surveillance over Davis’ property was an unwarranted search in violation of the Fourth Amendment.

Reading between the lines: if SCOTUS reverses, the same result will come under the state constitution.

This case, with the ones it relies on, succeeds in slightly getting the issue of flyover marijuana eradication back under the Fourth Amendment. I remember in the early 90’s discussing this with lawyers and “how low was too low?” 50-100′ yes because prop wash is destructive. 500′ probably not. The curtilage at least is a starting point, and it gives a factual reference, not just a height to argue about.