OR: Use of a powerful zoom to show covered up marijuana plants violated state constitution

Officers were doing a marijuana flyover looking for another operation and saw what appeared to be a grow operation on defendant’s property. The affidavit for probable cause only said that the officer saw and photographed evidence that could indicate a grow operation but did not actually see marijuana, except with a powerful zoom. That wasn’t enough to see marijuana undercover from ⅔ of a mile above. Here, the zoom of the camera made individual plants under plastic sheeting visible, and that was a search of a private place that couldn’t be done with the naked eye. State v. Nakhiengchahn, 341 Or. App. 516 (July 2, 2025):

As discussed previously, we concluded that the officer could not plainly see marijuana plants at the plane’s altitude of 3,500 to 5,000 feet. In fact, in our review of the aerial footage that is part of the record below, it is not possible to see features of the items within the greenhouses when the camera is zoomed out. But, when the camera zooms in on the greenhouses, individual plants become visible through the plastic sheeting. The evidence demonstrates that the camera allowed the officer to see materially different information than he was able to observe with the naked eye from that same vantage point–namely individual marijuana plants inside greenhouses from an altitude of 3,500 feet and above. For that reason, we conclude that the use of technology to zoom into a greenhouse from that altitude to see individual marijuana plants that could not be seen by the naked eye constituted a search in violation of Article I, section 9.

We express no opinion, because it is not at issue in this case, whether an officer could have developed probable cause to believe that the entire operation was a marijuana operation based on what he could observe without technology.

We note that our decision here is narrow and confined to the circumstances of this case. Officers can and have made lawful aerial observations of marijuana on private property. Ainsworth, 310 Or at 615; Rodal, 161 Or App at 238. And this opinion does not preclude the ability of police to use technology, under certain circumstances, to aid in their aerial observations. We have repeatedly upheld the police use of technology to record what was openly visible to the observing officers. See, e.g., State v. Wacker, 317 Or 419, 426-27, 856 P2d 1029 (1993) (use of starlight scope was not a search where the police could plainly see activity in a lighted car in a public parking lot); Louis, 296 Or at 61 (use of telephoto lens to photograph the defendant in his house was not a search where the police could see his conduct without the lens); Rodal, 161 Or App at 237 (use of camera to photograph marijuana was not a search where the police positively identified it with no visual aids other than his eyeglasses). We have never upheld as constitutionally permissible an officer’s technologically enhanced surveillance to see what was otherwise indiscernible. We decline to do so here. In this case, the officer used technology to obtain information from inside defendant’s private structures that was undetectable from his vantage point in public airspace. In doing so, the officer constructively invaded defendant’s property in violation of her constitutional rights. Smith, 327 Or 4 The state makes no alternative argument that the unwarranted search was lawful under any exception to the warrant requirement.