Court: When Aerial Surveillance Resembles An ‘Invasion,’ It Becomes An Illegal Search

Tech Dirt – by Tim Cushing

Because there is almost no expectation of privacy in open areas — which can include backyards and fenced-in land — it’s very difficult for a law enforcement agency to violate anyone’s Fourth Amendment rights with aerial surveillance. Whether this is accomplished with a drone, plane or helicopter, the Supreme Court has held that any place that could theoretically be viewed by a member of the public can also be observed by a government agency. (From the Supreme Court’s OTHER Riley decision — this one from 1989.)  

Nor on the facts before us, does it make a difference for Fourth Amendment purposes that the helicopter was flying at 400 feet when the officer saw what was growing in the greenhouse through the partially open roof and sides of the structure. We would have a different case if flying at that altitude had been contrary to law or regulation. But helicopters are not bound by the lower limits of the navigable airspace allowed to other aircraft. Any member of the public could legally have been flying over Riley’s property in a helicopter at the altitude of 400 feet and could have observed Riley’s greenhouse. The police officer did no more. This is not to say that an inspection of the curtilage of a house from an aircraft will always pass muster under the Fourth Amendment simply because the plane is within the navigable airspace specified by law. But it is of obvious importance that the helicopter in this case was not violating the law, and there is nothing in the record or before us to suggest that helicopters flying at 400 feet are sufficiently rare in this country to lend substance to respondent’s claim that he reasonably anticipated that his greenhouse would not be subject to observation from that altitude.

In this case, a police helicopter was used to peek into the open top of Riley’s greenhouse, which contained a marijuana grow operation. Although not viewable from ground level thanks to its walls, it was considered to be observable from the air without a warrant.

That paragraph goes on to explain how aerial surveillance could encroach on a person’s Fourth Amendment rights.

As far as this record reveals, no intimate details connected with the use of the home or curtilage were observed, and there was no undue noise, and no wind, dust, or threat of injury. In these circumstances, there was no violation of the Fourth Amendment.

Which is exactly what happened in a case recently decided by the Supreme Court of New Mexico. (h/t Courthouse News)

Norman Davis’ grow operation — similarly situated in a fenced-in yard with a greenhouse — was discovered during the course of a 10-hour drug enforcement operation performed by the New Mexico State Police. A helicopter was flown over Davis’ property, but in a far more disruptive and destructive manner than that described in the Riley decision.

Davis stated he was “in bed and not feeling very well when [he] heard a helicopter hovering very low, right on top of [his] house.” He stated that the helicopter was making “a considerable racket” and that when the sound did not go away, he went outside to see “what . . . was going on.” He observed the helicopter hovering approximately 50 feet above his head “kicking up dust and debris that was swirling all around.”

It wasn’t just the defendant who felt the helicopter was flying oppressively low. Others who observed the drug enforcement operation felt the same way.

Several nearby residents characterized the helicopter flyovers during Operation Yerba Buena as terrifying and highly disruptive. Kelly Rayburn watched a helicopter fly around his house about “half a dozen times.” Rayburn said the helicopter flew so close to his roof that the downdraft lifted off a solar panel and scattered trash all over his property. Victoria Lindsay observed a helicopter sweeping back and forth over her property, sending debris and personal property all over the yard. Lindsay also observed the helicopter hovering very close to the ground at a neighbor’s greenhouse. Merilee Lighty observed a helicopter flying over her property for about 15 minutes. She said it was so close that the downdraft affected her trees and her bushes.

William Hecox did not notice any real dust flying at the time of the flyover, but after the helicopter left he noticed that one of his four-by-four beams was broken at the ground and another one was broken three feet up from the ground. Hecox specifically stated that the beams were not broken prior to the helicopter flying over. He also stated that the noise and effect from the helicopter upset his turkey and fowl and caused them to “squawk[] and run[] around.”

The New Mexico court — considering both the implications of previous US Supreme Court decisions, along with the state’s Constitution — finds that the methods deployed by the state police managed to cross the Fourth Amendment line.

It appears after Ciraolo and Riley that the Fourth Amendment affords citizens no reasonable expectation of privacy from aerial surveillance conducted in a disciplined manner—mere observation from navigable airspace of an area left open to public view with minimal impact on the ground. It also seems, however, that warrantless surveillance can go beyond benign observation in a number of different ways, one of those being when surveillance creates a “hazard”—a physical disturbance on the ground or unreasonable interference with a resident’s use of his property. In that case, surveillance more closely resembles a physical invasion of privacy which has always been a violation of the Fourth Amendment.


[W]hen low-flying aerial activity leads to more than just observation and actually causes an unreasonable intrusion on the ground—most commonly from an unreasonable amount of wind, dust, broken objects, noise, and sheer panic—then at some point courts are compelled to step in and require a warrant before law enforcement engages in such activity. The Fourth Amendment and its prohibition against unreasonable searches and seizures demands no less.


Based on the evidence, therefore, we conclude that the official conduct in this case went beyond a brief flyover to gather information. The prolonged hovering close enough to the ground to cause interference with Davis’ property transformed this surveillance from a lawful observation of an area left open to public view to an unconstitutional intrusion into Davis’ expectation of privacy. We think what happened in this case to Davis and other persons on the ground is precisely what didnot occur in either Ciraolo or Riley… Accordingly, we hold that the aerial surveillance over Davis’ property was an unwarranted search in violation of the Fourth Amendment.

As for the matter of the search of Davis’ property that resulted in the seizure of 14 marijuana plants, the court finds that although Davis consented to this search, it cannot be separated from the unlawful search performed by the helicopter. Without the aerial surveillance that managed to run afoul of the Constitution, the police would have had no reason to approach Davis and ask to search his backyard.

This airborne “poisonous tree” costs the state police a conviction resulting from a drug operation carried out nearly a decade ago. This was due in large part to eyewitnesses describing the operation as resembling an “invasion.” Our nation’s drug warriors often forget they’re dealing with fellow citizens and deploy war-like tactics to enforcing federal statutes. Sometimes — but not often enough — this warrior mentality costs them.

One thought on “Court: When Aerial Surveillance Resembles An ‘Invasion,’ It Becomes An Illegal Search

  1. I am having these warrantless aerial surveillance piper planes circling my home daily at 5 minute increments and this is a physical invasion of my privacy. I see on the map of these planes and how they do continuous circles. I live in a gated community and this has got to stop. What should I do? The ACLU won a case in Baltimore last week against this surveillance. This is criminal. I don’t have police going up and down my street every 5 minutes and for that matter, I have not seen that happen, but they think they have the freedom to violate my 4th ammendment rights and I have had it. I cannot even garden or sit in my backyard because these guys keep circling overhead.

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