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.
by John Wesley Hall
Criminal Defense Lawyer and
Search and seizure law consultant
Little Rock, Arkansas
Contact: forhall @ aol.com / The Book www.johnwesleyhall.com
"If it was easy, everybody would be doing it. It isn't, and they don't." —Me
"Life is not a matter of holding good cards, but of playing a poor hand well." –Josh Billings (pseudonym of Henry Wheeler Shaw), Josh Billings on Ice, and Other Things (1868) (erroneously attributed to Robert Louis Stevenson, among others)
“I am still learning.” —Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's)).
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"It is a pleasant world we live in, sir, a very pleasant world. There are bad people in it, Mr. Richard, but if there were no bad people, there would be no good lawyers."
—Charles Dickens, “The Old Curiosity Shop ... With a Frontispiece. From a Painting by Geo. Cattermole, Etc.” 255 (1848)
"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced."
—Williams
v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold,
J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws,
or worse, its disregard of the charter of its own existence." —Mapp
v. Ohio, 367 U.S. 643, 659 (1961).
"Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment."
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that
bear heavily on the Court to water down constitutional guarantees and give the
police the upper hand. That hydraulic pressure has probably never been greater
than it is today."
— Terry
v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their
property."
—Entick
v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have
frequently been forged in controversies involving not very nice people. And
so, while we are concerned here with a shabby defrauder, we must deal with his
case in the context of what are really the great themes expressed by the Fourth
Amendment."
—United
States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth."
—Chapman
v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the
bottom of a turntable."
—Arizona
v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly
exposes to the public, even in his own home or office, is not a subject of Fourth
Amendment protection. ... But what he seeks to preserve as private, even in
an area accessible to the public, may be constitutionally protected."
—Katz
v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to
protect liberty when the Government’s purposes are beneficent. Men born
to freedom are naturally alert to repel invasion of their liberty by evil-minded
rulers. The greatest dangers to liberty lurk in insidious encroachment by men
of zeal, well-meaning but without understanding.”
—United
States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted
intrusion by government—is as easily lost through insistent nibbles by
government officials who seek to do their jobs too well as by those whose purpose
it is to oppress; the piranha can be as deadly as the shark.”
—United
States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want /
But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards
"In Germany, they first came for the communists,
and I didn't speak up because I wasn't a communist. Then they came for the Jews,
and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists,
and I didn't speak up because I wasn't a trade unionist. Then they came for
the Catholics and I didn't speak up because I wasn't a Catholic. Then they came
for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration
camp]
“You know, most men would get discouraged by
now. Fortunately for you, I am not most men!”
---Pepé Le Pew
"The point of the Fourth Amendment, which often is not grasped by zealous officers,
is not that it denies law enforcement the support of the usual inferences which
reasonable men draw from evidence. Its protection consists in requiring that
those inferences be drawn by a neutral and detached magistrate instead of being
judged by the officer engaged in the often competitive enterprise of ferreting
out crime."
—Johnson
v. United States, 333 U.S. 10, 13-14 (1948)