Rejecting Florida v. Riley and California v. Ciraolo under state law, targeted aerial surveillance of the curtilage of the home is a “search” under the state constitution. “Airborne police are not the equivalent of airborne members of the public” [channeling Scalia in Jardines]. State v. Davis, 2014-NMCA-042, 321 P.3d 955 (2014), cert. granted 324 P.3d 376 (N.M. Mar. 14, 2014):
[*1] This case is before us on remand from our Supreme Court. See State v. Davis (Davis II), 2013-NMSC-028, ¶ 35, 304 P.3d 10. The Supreme Court upheld the district court’s determination that Defendant voluntarily consented to a search of his property. Id. ¶ 2. On remand, we conclude that Article II, Section 10 of the New Mexico Constitution provides greater protection than the Fourth Amendment to the United States Constitution when aerial surveillance of a person’s home is involved. We further conclude that, under the New Mexico Constitution, the aerial surveillance in this case constituted a search requiring a warrant or an exception to the warrant requirement. Although Defendant consented to a physical search of the curtilage after the surveillance search, there was insufficient attenuation between the warrantless aerial search and Defendant’s consent. Accordingly, we reverse the district court’s denial of Defendant’s motion to suppress the marijuana and other evidence seized during the search.
. . .
2. Article II, Section 10 of the New Mexico Constitution
[*12] Because the Fourth Amendment does not protect Defendant’s subjective expectation of privacy, we now consider whether the New Mexico Constitution provides greater protection. See Ketelson, 2011-NMSC-023, ¶ 10 (stating that if an asserted right is not protected by the federal constitution, “we next consider whether the New Mexico Constitution provides broader protection”).
[*13] At issue in this case is Article II, Section 10 of our state constitution, which our Supreme Court has consistently interpreted as providing greater privacy protections than the Fourth Amendment. See Leyva, 2011-NMSC-009, ¶ 51 (“It is well-established that Article II, Section 10 provides more protection against unreasonable searches and seizures than the Fourth Amendment.”). “Our Supreme Court has emphasized New Mexico’s strong preference for warrants in order to preserve the values of privacy and sanctity of the home that are embodied by this provision.” State v. Granville, 2006-NMCA-098, ¶ 24, 140 N.M. 345, 142 P.3d 933.
[*14] With this in mind, we discern two threads of analysis in Ciraolo and Riley that are inconsistent with our jurisprudence under Article II, Section 10. The first involves the United States Supreme Court’s focus on the fact that law enforcement personnel in aircraft were no different from passengers in aircraft who could plainly see the marijuana in question. The second thread involves an emphasis on various factors meant to assess the intrusiveness of the aerial surveillance.
a. Airborne Police Are Not the Equivalent of Airborne Members of the Public
[*15] With respect to the first aspect of the United States Supreme Court’s analysis, the Court noted in Ciraolo that “[a]ny member of the public flying in this air[]space who glanced down could have seen everything that these officers observed.” 476 U.S. at 213-14. And in Riley, the Court observed that the accused “could not reasonably have expected that his greenhouse was protected from public or official observation from a helicopter had it been flying within the navigable air[]space for fixed-wing aircraft.” 488 U.S. at 450-51.
[*16] The only New Mexico cases addressing aerial surveillance were decided before our Supreme Court began interpreting Article II, Section 10 more broadly than the Fourth Amendment.3 These older cases, decided in 1983, seemingly anticipated the United States Supreme Court’s analysis in Ciraolo and Riley (decided in 1986 and 1989, respectively) and assessed the propriety of aerial surveys under the Fourth Amendment in part by considering what could be seen from the air. See State v. Rogers, 1983-NMCA-115, ¶¶ 2, 7, 100 N.M. 517, 673 P.2d 142 (concluding that the defendant had no reasonable expectation of privacy “with respect to marijuana plants protruding through holes in his greenhouse roof to the extent of their visibility from the air”); State v. Bigler, 1983-NMCA-114, ¶ 8, 100 N.M. 515, 673 P.2d 140 (holding that the defendant had no reasonable expectation of privacy in his marijuana crop “to the extent of visibility from the air”).
[*17] In contrast to the rationale stated in these cases, New Mexico cases decided since Rogers and Bigler have emphasized that “Article II, Section 10, protects citizens from governmental intrusions, not intrusions from members of the general public.” Granville, 2006-NMCA-098, ¶ 29. As the dissent in Ciraolo observed, there is a “qualitative difference between police surveillance and other uses made of the air[]space. Members of the public use the air[]space for travel, business, or pleasure, not for the purpose of observing activities taking place within residential yards.” 476 U.S. at 224 (Powell, J., dissenting). Because New Mexico’s post-Rogers/Bigler case law has interpreted Article II, Section 10 more broadly than the Fourth Amendment, we conclude that police flying over a residence strictly in order to discover evidence of crime, without a warrant, “does not comport with the distinctive New Mexico protection against unreasonable searches and seizures.” Garcia, 2009-NMSC-046, ¶ 27.
b. Intrusiveness Factors Are Not Useful
[*18] As to the second type of analysis under the Fourth Amendment, the Court in Riley seemingly assessed the intrusiveness of the aerial surveillance when it observed that “there was no undue noise, and no wind, dust, or threat of injury.” 488 U.S. at 452. And in Rogers, this Court also evaluated similar factors, such as the “altitude of the aircraft, use of equipment to enhance the observation, frequency of other flights[,] and intensity of the surveillance.” 1983-NMCA-115, ¶ 9. The district court in the present case relied heavily on factors similar to those mentioned in Rogers and Riley when it assessed the propriety of the helicopter surveillance.
[*19] We fail to see how an analysis of intrusiveness factors aids in the determination of whether an aerial surveillance is a search. The privacy interest protected by Article II, Section 10 is not limited to one’s interest in a quiet and dust-free environment. It also includes an interest in freedom from visual intrusion from targeted, warrantless police aerial surveillance, no matter how quietly or cleanly the intrusion is performed. Indeed, it is likely that ultra-quiet drones will soon be used commercially and, possibly, for domestic surveillance. Michael J. Schoen, Michael A. Tooshi, Confronting the New Frontier in Privacy Rights: Warrantless Unmanned Aerial Surveillance, 25 No. 3 Air & Space Law 1 (2012); see Intelligence Advanced Research Projects Activity, “Great Horned Owl (GHO) Program,” http://www.iarpa.gov/Programs/sc/GHO/gho.html. Such advances in technology demonstrate the increasingly diminished relevance of intrusiveness factors, as courts have regarded them in the past, in the analysis of what constitutes a search.
c. The Aerial Surveillance in This Case Constituted a Search Under Article II, Section 10
[*20] We decline to perpetuate both the analysis in the United States Supreme Court’s cases and in Rogers and Bigler focusing on what is openly visible to the public from the air and the analysis in Rogers based on intrusiveness factors. Since Rogers and Bigler were decided, our courts have diverged from the Fourth Amendment, and the analysis in those cases fails to “serve the robust character and honored history of [Article II, Section 10] with special attention to its purpose of police regulation.” Garcia, 2009-NMSC-046, ¶ 31. Instead of relying on visibility and intrusiveness factors, we adopt the view that if law enforcement personnel, via targeted aerial surveillance, have the purpose to intrude and attempt to obtain information from a protected area, such as the home or its curtilage, that could not otherwise be obtained without physical intrusion into that area, that aerial surveillance constitutes a search for purposes of Article II, Section 10. We explain the evolution of our view below.
