N.D.Ala.: Flyover revealed MJ plants in backyard; warrantless entry violated curtilage; no exigency shown

Police in a helicopter saw a marijuana grow in defendant’s backyard. The backyard was not visible from the road. Therefore, the backyard was clearly curtilage, and the police warrantless entry into the back yard violated the Fourth Amendment. There was no independent source for the information in the search warrant application, so the motion to suppress is granted and the good faith exception does not apply. The helicopter flyover was not exigency [If it was, it was thus likely police created.] United States v. Wideman, 2016 U.S. Dist. LEXIS 63378 (N.D.Ala. May 13, 2016):

In this case, no dispute exists that the marijuana was located within the curtilage of Mr. Wideman’s home. Because no one could see the marijuana from the public road, the court finds that Mr. Wideman had a legitimate expectation of privacy in the curtilage of his home where the police conducted the warrantless ground search and located the marijuana plants.

The court finds that the ground search of the curtilage of Mr. Wideman’s property was unreasonable and violated his Fourth Amendment rights. Several officers, prior to Officer Wiggens, entered the curtilage of Wideman’s property without a warrant for no other reason but to search and verify that marijuana was on the property based on the aerial inspection. Officer Wiggins testified that he believed the ground search was valid based on the probable cause from the aerial observation. Although the officers would have probable cause from the aerial inspection alone to obtain a search warrant, that probable cause did not give the officers the right to enter Wideman’s property and conduct a warrantless search without the existence of some exigent circumstance. See Coolidge, 403 U.S. at 468.

No exigent circumstances existed in this case. Although Officer Wiggins claimed that he entered the property to make sure no one destroyed the marijuana and to conduct a protective sweep for the officer’s safety, neither of these reasons pass muster. First Officer Wiggins was not the first officer on the scene, and no evidence exists to explain the other officers’ circumstances for entering the curtilage of Mr. Wideman’s property and searching for the marijuana. Also, Officer Bailey and his co-pilot who conducted the aerial observation observed the marijuana from the air for approximately forty minutes to make sure that no one was on the property to destroy the marijuana; the police took Mr. Wideman into custody after Officer Bailey reported to the ground officers that someone, who later was known to be Mr. Wideman, drove a vehicle into the driveway of Wideman’s property and then drove to a neighbor’s driveway and went into that house; the aerial search revealed no other people on the property attempting to destroy the marijuana or who posed a threat to the officers’ safety; and Officer Wiggins admitted that he was “locating evidence” even after no one posed a threat to the destruction of the marijuana or the officer’s safety. As such, no need existed for the officers to conduct the ground search of the curtilage of Mr. Wideman’s property to prevent the imminent destruction of evidence.