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Overly intrusive helicopter search ruled unconstitutional

SANTA FE — The New Mexico Supreme Court, taking up a controversial 2006 marijuana raid for a second time, ruled Monday that a warrantless aerial search was unconstitutional because a low-flying helicopter – said to have damaged property, kicked up dust and raised a panic – was too intrusive.

Justice Richard Bosson wrote that “when 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 court didn’t rule out all aerial searches, citing case law supporting searches using aircraft flying at “navigable” altitudes of 400 feet or higher and with little impact on the ground.

The 2006 raid, part of a State Police operation called “Yerba Buena” aimed at finding marijuana plantations, netted 14 pot plants from Norman Davis’ rural Taos County home. In a 2013 decision, the Supreme Court upheld Davis’ pot possession conviction but sent the case back to the state Court of Appeals for more review. The new Supreme Court opinion reverses the conviction. The state Attorney General’s office said it will review the case to determine whether an appeal to the U.S. Supreme Court is appropriate.

“While the Office of the Attorney General is dismayed that the Supreme Court reversed a controlled-substances conviction, the ruling appears limited to the facts surrounding a specific helicopter search, which the Court deemed unreasonable,” said spokesman James Hallinan. “The majority specifically declined to provide guidance regarding new technologies such as drones.

“We believe helicopter operations remain an important tool in the detection and apprehension of drug traffickers.”

One issue has been whether Davis was illegally coerced when he agreed to allow officers to search his home and greenhouse as a police helicopter hovered overhead, several officers armed with semi-automatic weapons were at his door and a fleet of law enforcement vehicles had pulled up outside.

In Monday’s ruling, the high court noted that it had decided in 2013 that despite the heavy police presence, Davis had voluntarily given consent for the home search after he’d been told by State Police Sgt. Bill Merrell that a helicopter spotter had identified marijuana plants on his property. But now the justices say that the shopper search itself was illegal.

Bosson’s opinion says that “unobtrusive aerial observations” are generally permitted. But Bosson noted there was testimony from Davis’ neighbors that two National Guard helicopters were “terrifying and highly disruptive” and flew back and forth low enough to lift off a solar panel and scatter trash, break a four-by-four beam and cause turkeys to squawk.

Davis said the chopper above him was causing “a considerable racket” from about 50 feet in the air.

Officers testified the chopper was flying higher, but it was “clearly audible” on Sgt. Merrell’s belt recording of his conversation with Davis, Bosson wrote.

He concluded: “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.”

In a “specially concurring” opinion, Justice Edward L. Chavez said New Mexico’s own constitutional privacy protections bar all aerial surveillance without a warrant.