HI: Fly-over of curtilage at 420′ violated REP under state constitution

Three fly-overs over the curtilage, one at 420′, was a violation of the Hawai’i Constitution, following the California Supreme Court in People v. Cook (1985). The Hawai’i Supreme Court differs from the Intermediate Court of Appeals on its analysis going with overall reasonableness. People expect aircraft to fly over, but they don’t expect targeted fly-overs of the curtilage at such a low level that details of the yard can be seen. State v. Quiday, 2017 Haw. LEXIS 266 (Nov. 21, 2017), aff’g on other grounds, State v. Quiday, 138 Hawai’i 124, 127-31, 377 P.3d 65, 68-72 (App. 2016) (posted here):

[T]he ICA determined that “Officer Hanawahine’s flights were targeted and prolonged because he made three targeted flights in fewer than four days” and that “[t]argeted aerial surveillance of a property is at odds with Hawai’i's constitutional protections of individual privacy.” Id. The ICA further noted that “the marijuana plants were located in the curtilage of [Quiday's] home, and should be less susceptible to warrantless ‘open view’ searches.” Id. Drawing upon the California Supreme Court’s opinion in People v. Cook, 41 Cal. 3d 373, 221 Cal. Rptr. 499, 710 P.2d 299 (Cal. 1985), the ICA held that “article I, section 7 of the Hawai’i Constitution … protect[s] an individual from targeted aerial surveillance of the individual’s residence and its curtilage.” Id. at 131, 377 P.3d at 72. Accordingly, the ICA concluded that “[t]he circuit court erred in concluding that Quiday did not have a reasonable expectation of privacy in the area surrounding his house from aerial surveillance.” Id.

. . .

The facts in the present case are nearly identical to those in Cook. Here, as in Cook, Officer Hanawahine received an anonymous tip that marijuana plants were being grown at Quiday’s residence. Subsequently, as was the case in Cook, Officer Hanawahine was unable to verify the tip at ground-level because Quiday’s residence was surrounded by gates and fences, and conducted several aerial fly-overs to bypass the physical boundaries that concealed Quiday’s backyard from ground-view, for the specific purpose of detecting criminal activity in Quiday’s backyard. In support of its position that Quiday did not have a reasonable expectation of privacy from aerial surveillance of his backyard, the State advances an argument nearly identical to the government’s argument in Cook. Specifically, the State contends that the police did not run afoul of Quiday’s constitutional rights because his backyard was in “open view,” insofar as his backyard was not concealed from [*27] aerial observation by any physical coverings.

In our view, the State’s argument is unpersuasive. We agree with the California Supreme Court in that we also believe that although Quiday’s yard “may unavoidably be exposed to casual glances from passing aircraft,” Quiday was still entitled to “reasonably assume” that his backyard would “not be intently examined by government agents who are flying over it for” the specific purpose of detecting criminal activity therein. Cook, 710 P.2d at 304. In other words, we agree that while a private citizen may tolerate casual glances by a passerby on a private, commercial, or government flight, this does not necessarily mean that an individual thereby foregoes his or her reasonable expectation of privacy from “intensive spying by police officers looking for evidence of crime” in the curtilage of his or her home–an area where the private domestic activities normally conducted within the sanctity of the home itself can be expected to extend. Id.

Accordingly, we hereby adopt the rule established by the California Supreme Court in Cook, and hold that an individual has a reasonable expectation of privacy from governmental aerial surveillance of his or her curtilage and residence, when such aerial surveillance is conducted with the purpose of detecting criminal activity therein. Such purposeful aerial surveillance of an individual’s residence and curtilage qualifies as a “search” under article I, section 7 of the Hawai’i Constitution.

Therefore, when Officer Hanawahine conducted three aerial reconnaissance missions over two days, during which he flew over Quiday’s home at a height of 420 feet in order to observe the marijuana plants growing in the curtilage of Quiday’s home, Officer Hanawahine conducted unconstitutional, warrantless searches in contravention of Quiday’s rights under article I, section 7 of the Hawai’i Constitution. As a result, the evidence obtained during the execution of the search warrant, which was based on Officer Hanawahine’s observations during his aerial reconnaissance missions, was the fruit of the poisonous tree. Consequently, we agree with the ICA, though on different grounds, that the circuit court erred in denying Quiday’s motion to suppress evidence.

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