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Court: Aerial surveillance was illegal, unconstitutional

DAVIS: "I'm happy that justice was served"

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

SANTA FE – 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.

“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.

Davis had his privacy jarred when on a summer day 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.

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. Davis entered a conditional plea whereby his record was cleared after he had no law violations for a year.

Before the search, Davis reluctantly signed a waiver of consent for officers to search his property. District Court Judge John Paternoster found the search “just barely permissible,” according to the New Mexico Court of Appeals and the state Supreme Court upheld that ruling, saying the officers didn’t constitute illegal coercion when Davis gave his consent. But it remanded the case back to the Court of Appeals to consider the defendant’s remaining arguments.

Davis’ lawyers had argued that the helicopter flyover violated federal and state constitutions. Tuesday’s ruling by the Court of Appeals dealt with that random flyover by the helicopters.

“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 and says privacy protections also include “an interest in freedom from visual intrusion from targeted, warrantless police aerial surveillance …. indeed, it is likely ultraquiet drones will soon be used commercially and possibly for domestic surveillance.”