Four police flyovers of defendant’s house, one at 420′, was not a search under the Fourth Amendment, but it was unreasonable under the Hawai’i Constitution. 20-25 marijuana plants were seen in the flyover. Driving by the residence, however, no plants could be seen. In contrast with prior cases, the grow could be seen from the ground, too. “Additionally, the marijuana plants were located in the curtilage of his home, and should be less susceptible to warrantless ‘open view’ searches.” The search warrant was based on the flyover. The primacy of protection of the home is important. State v. Quiday, 2016 Haw. App. LEXIS 284 (June 21, 2016):
We test the constitutionality of warrantless aerial surveillance under article I, section 7 of the Hawai’i Constitution with consideration of the relevant factors discussed in Stachler and Knight, and of the recognized purposes of the exclusionary rule.10 The factors discussed in Stachler and Knight are: (1) compliance with state and federal flight regulations; (2) the targeted and prolonged nature of the aerial surveillance; (3) the use of highly sophisticated viewing devices; (4) the frequency of other vehicles over the area; and (5) the remote nature of and the vegetation surrounding the observed property. See Knight, 63 Haw. at 93, 621 P.2d at 373-74; Stachler, 58 Haw. at 418-20, 570 P.2d at 1327-29. These factors are balanced with principles underlying the exclusionary rule: (1) to protect individual privacy; (2) to deter illegal police conduct; and (3) to preserve the integrity of the judiciary. See State v. Torres, 125 Hawai’i 382, 394, 262 P.3d 1006, 1018 (2011).
10. The Hawai’i exclusionary rule departs from the federal exclusionary rule in that in addition to serving the purpose of deterring governmental officials from circumventing constitutional protections, the Hawaii exclusionary rule serves the “equally valuable” purpose of protecting the privacy rights of Hawaii citizens. Lopez, 78 Hawaii at 446, 896 P.2d at 902.
Here, there is no evidence that Officer Hanawahine did not comply with state or federal flight regulations, nor is there evidence that Officer Hanawahine used the aid of a sophisticated viewing device to view Quiday’s marijuana plants. There is also no evidence regarding the frequency of other aircraft in that area.
There is, however, evidence that Officer Hanawahine’s flights were targeted and prolonged because he made three targeted flights in fewer than four days, although the record is unclear as to the details of the third flight. Targeted aerial surveillance of a property is at odds with Hawai’i’s constitutional protections of individual privacy. Officer Hanawahine claims in his affidavit that on October 22, 2012, he unambiguously identified “about twenty to twenty five (20-25) plants with the color and structure resembling that of marijuana plants” based upon his “training and experience” of at least ten years. The need for two more flights to confirm his observations is unclear.
Additionally, the marijuana plants were located in the curtilage of his home, and should be less susceptible to warrantless “open view” searches. See People v. Cook, 41 Cal. 3d 373, 221 Cal. Rptr. 499, 710 P.2d 299, 303 (Cal. 1985);12 but cf. Ciraolo, 476 U.S. at 213 (“That the area is within the curtilage does not itself bar all police observation.”).
At the hearing on Quiday’s Motion to Suppress Evidence, the circuit court noted that the relevant cases in which Hawaii appellate courts have considered the use of aerial surveillance of individual property are from 1980 or earlier. The circuit court stated, “This is 2013. Technology has changed, the world has changed, and that what might have been considered, there needs to be a definition of what sophisticated electronic surveillance might be, as the definition may have changed as the world has changed.” In light of increasing technological advances, we remain steadfast in our view that the article I, section 7 of the Hawai’i Constitution protects individuals from intrusion of their right to privacy. See Kyllo, 533 U.S. at 33-34 (“It would be foolish to contend that the degree of privacy secured to citizens by the Fourth Amendment has been entirely unaffected by the advance of technology.”). The California Supreme Court observed the need for protection from governmental intrusion in light of technological advance, stating:
The People imply that law enforcement officers are entitled to use a technological advance-mechanical flight-which has merely given the public at large a vantage point it does not previously enjoy. But the prevalence of air travel does not excuse us from the delicate balancing of societal and privacy interests which underlies constitutional protections against “unreasonable” searches and seizures. Striking that balance, we must conclude that an individual has a reasonable expectation of privacy from purposeful police surveillance of his back yard from the air. We can conceive of no societal or law enforcement interest strong enough to justify such unfettered intrusions on the sanctity of private residences.
Cook, 710 P.2d at 305. We agree, and interpret article I, section 7 of the Hawai’i Constitution to protect an individual from targeted aerial surveillance of the individual’s residence and its curtilage.
The circuit court erred in concluding that Quiday did not have a reasonable expectation of privacy in the area surrounding his house from aerial surveillance. The search warrant for the Waipahu Residence was based upon an illegal search by the police and the evidence seized pursuant to the warrant was “fruit of the poisonous tree.” See Knight, 63 Haw. at 93, 621 P.2d at 374. Because we vacate and remand on these grounds, we need not address Quiday’s remaining arguments on appeal.