AK: Aerial surveillance of a residential backyard to photograph it with a telephoto lens violates the state constitution

Aerial surveillance of a residential backyard to photograph it with a telephoto lens violates the Alaska Constitution where the landowner took precautions to protect his privacy at ground-level. McKelvey v. State, 2020 Alas. App. LEXIS 71 (Sept. 4, 2020):

This case involves an issue of first impression in Alaska: Must the police obtain a search warrant before conducting targeted aerial surveillance of a residential backyard, using a telephoto lens to discern objects that would not otherwise be visible from that height, when the property owner has taken steps to protect the ground-level privacy of the yard?

For the reasons explained in this opinion, we conclude that, under such circumstances, the aerial surveillance constitutes a search under the search and seizure clause of the Alaska Constitution. Accordingly, absent an applicable exception to the warrant requirement, the police must obtain a search warrant before engaging in this type of aerial surveillance.

. . .

Accordingly, we now hold that when an individual has taken reasonable steps to protect their house and curtilage from ground-level observation, that individual has a reasonable expectation that law enforcement officers will not use a telephoto lens or other visual enhancement technology to engage in aerial surveillance of the individual’s residential property for the purpose of investigating criminal activity. In such circumstances, the aerial surveillance constitutes a “search” for purposes of Article I, Section 14 of the Alaska Constitution, and it requires a warrant unless there is an applicable exception to the warrant requirement.

Because McKelvey had taken reasonable measures to protect the privacy of his residential curtilage from ground-level observation, and because Trooper Moore used a telephoto lens during his aerial surveillance of McKelvey’s property to obtain an enhanced view of the greenhouse located within McKelvey’s curtilage, the trooper’s investigative overflight was a search that required a warrant. Here, there was no warrant, and there was no applicable exception to the warrant requirement. Thus, the superior court should have granted McKelvey’s motion to suppress.