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Court rules aerial search for pot illegal

SANTA FE, N.M. — Fourteen marijuana plants and seven years later, a New Mexico high court has overturned a lower court opinion and ruled that a police helicopter search operation in rural Taos County was illegal and unconstitutional.

The subject of that search, who said he had the 14 plants for personal use to smoke to alleviate physical ailments, was elated when contacted on Friday.

DAVIS: “I’m happy that justice was served”

DAVIS: “I’m happy that justice was served”

“It has been a lesson in the slow progress of the legal system … I’m happy that justice was served,” said Norman Davis, now 78.

Davis’ home was one of several checked out during a 2006 operation dubbed “Operation Yerba Buena” – a joint State Police, National Guard, and state Game and Fish effort that was targeting marijuana plantations in the sparsely populated Carson area.

Carson, between Pilar and Ojo Caliente, is known for its postage-stamp size post office and as a counter-culture mecca, where residents like to live off the grid and under the radar. They also live on a high mesa west of the Rio Grande because they like their privacy.

Davis had his privacy jarred when, on a summer day as he was sitting on his sofa and feeling a bit out of sorts, he “heard this helicopter overhead.

“It was loud. Very loud,” Davis said at the time. “And I looked out the window and see these guys hovering over me.” The drug raid by the New Mexico State Police, using National Guard helicopters, involved six or seven officers armed with semiautomatic weapons and at least five police vehicles.

He hasn’t seen or heard any helicopters overhead recently, Davis said on Friday. “Back when this broke, it was a regular feature of the Taos district attorney. They did it every year, and they came out to Carson every year. We seemed to be their favorite spot.”

A spotter in one of the helicopters saw “vegetation” in Davis’ greenhouse and plants out back.

Davis was charged with possession of 8 ounces or more of marijuana, a fourth-degree felony, and possession of drug paraphernalia. His attorney got Davis a conditional plea whereby his record was cleared after he had no law violations for a year.

The pendulum of justice seemed to be tilted against Davis at the time, but has now swung fully to the other side.

Davis reluctantly signed a waiver of consent for officers to search his property, including the greenhouse containing the plants, figuring he had little choice. District Judge John Paternoster found the search “just barely permissible,” according to the New Mexico Court of Appeals and the state Supreme Court later upheld that ruling, saying helicopters and heavily armed officers didn’t constitute illegal coercion when Davis gave his consent.

Davis’ lawyers argued that the helicopter flyover violated federal and state constitutions, and that his consent to search the greenhouse was not given voluntarily.

But Tuesday’s ruling by the Court of Appeals dealt with the random flyover by the helicopters that brought the long arm of the law to Davis’ bucolic home in the first place.

“The evidence suggesting that (the) defendant was growing marijuana in his greenhouse could not have been obtained without aerial surveillance unless the agents physically invaded the greenhouse,” said the 23-page opinion.” Consequently, the helicopter surveillance of defendant’s property constituted a search requiring probable cause and a warrant.”

The decision cites prior New Mexico cases in explaining how its ruling comes under the umbrella of protected privacy outlined in New Mexico’s constitution. Those privacy protections “are not limited to one’s interest in a quiet and dust-free environment,” the ruling said.

“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.”

Davis picked up on the drone issue after his attorney briefed him on the ruling. “I would just say I’m really happy the appeals court found our petition to be a good one, and even mentioned drones in their final decision and touching toward the future of the police when they all have drones.”

Our appellate courts give “greater constitutional protection than federal courts,” said Eighth Judicial District Attorney Donald Gallegos, when asked about the ruling on Friday. His office did not initiate the Carson aerial searches and the Davis case just ended up on his desk.

“Suffice it to say the court of appeals found that aerial searches are no good unless the search is used to put together probable cause,” said Gallegos. That means there has to be something other than just a flyover, such as other investigative information, to give police a legal reason to obtain a search warrant. “Just random helicopter flyovers they are holding do invade.”

For Davis, the case is about more than legal parsing. “It’s a big, stupid mistake. Hundreds of billions of dollars are being spent to put people in jail for growing a harmless weed,” he said in 2011.

His feelings have not changed. “Apparently the government is slowly coming around to the same opinion,” Davis said on Friday.

Asked his opinion on the legalization of marijuana in Colorado, he responded, “I think it’s a great experiment. It should have been done long ago; they are already seeing some of the benefits … I really think there is a trend creeping across the country as we speak.”