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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
JOHN WILLIAM MCKELVEY III,
Court of Appeals No. A-12419
Appellant, Trial Court No. 4FA-14-00040 CR
v.
O P I N I O N
STATE OF ALASKA,
Appellee. No. 2675 - September 4, 2020
Ap
peal from the Superior Court, Fourth Judicial District,
Fairbanks, Bethany Harbison, Judge.
Appearances: Robert John, Law Office of Robert John,
Fairbanks, for the Appellant. Timothy W. Terrell, Assistant
Attorney General, Office of Criminal Appeals, Anchorage, and
Jahna Lindemuth, Attorney General, Juneau, for the Appellee.
Before: Allard, Chief Judge, Wollenberg, Judge, and
Mannheimer, Senior Judge.*
Judge WOLLENBERG.
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
* Sitting by assignment made pursuant to Article IV, Section 11 of the Alaska
Constitution and Administrative Rule 23(a).
----------------------- Page 2-----------------------
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.
Background facts and prior proceedings
On August 22, 2012, Alaska State Trooper Joshua Moore received a tip
from an informant who reported observing a marijuana grow at the residence of John
William McKelvey III. The informant stated that McKelvey had approximately thirty
marijuana plants growing in his yard, that the marijuana was planted in five-gallon
buckets, and that McKelvey would move the plants into his greenhouse at night.
McKelvey lived in a sparsely populated area approximately twenty miles
fromFairbanks. He had posted numerous "No Trespassing" and "Keep Out" signs along
his driveway and elsewhere on his property. The greenhouse area where the marijuana
plants were located was about ten to fifteen feet behind his house, and it was surrounded
by a sight barrier of tall woods.
Trooper Moore, hoping to confirm the informant's tip through aerial
surveillance, had a wildlife trooper fly him near the property at an altitude of at least 600
feet. During this flyover, Moore passed by McKelvey's property twice, and he took
photographs of the property using a camera equipped with a 280-millimeter zoom lens.
Moore did not see any plants or five-gallon buckets sitting in McKelvey's
yard, but, through the lens of his camera, he could see "what appeared to be plants potted
- 2 - 2675
----------------------- Page 3-----------------------
inside five-gallon buckets" through the walls of a "partially see-through" greenhouse.
Moore could not discern whether these plants were marijuana.
Based on the informant's tip, and based on the results of this aerial
surveillance, Moore applied for a warrant to search McKelvey's property.
When the state troopers executed this search warrant, they discovered a
marijuana grow (as well as methamphetamine, scales, plastic bags used for packaging,
a loaded firearm, and over $18,000 in cash). A grand jury subsequently indicted
McKelvey on six counts of misconduct involving a controlled substance and one count
of second-degree weapons misconduct (for possessing a firearm during the commission
1
of a felony drug offense).
Prior to trial, McKelvey asked the superior court to suppress the evidence
seized from his property during the execution of the search warrant. McKelvey argued
that Moore's aerial surveillance of his yard constituted an illegal warrantless search in
violation of the Fourth Amendment to the United States Constitution and Article I,
Section 14 of the Alaska Constitution. McKelvey further argued that, because this
surveillance was acritical part ofMoore's applicationfor thesearch warrant, all evidence
seized from his property under that warrant should be suppressed.
The court held an evidentiary hearing on McKelvey's motion. At this
hearing, Moore explained that he was only able to see the buckets in the greenhouse by
using the telephoto lens of his camera.
Following this hearing, the superior court denied McKelvey's motion. The
court agreed with McKelvey that the greenhouse was part of the curtilage of his
residence, and the court accepted McKelvey's contention that he had a subjective
1 Former AS 11.71.020(a)(1) (2012), former AS 11.71.030(a)(1) (2012), former
AS 11.71.040(a)(2), (a)(3)(F), (a)(3)(G), & (a)(5) (2012), and AS 11.61.195(a)(1),
respectively.
- 3 - 2675
----------------------- Page 4-----------------------
expectation of privacy in the semi-opaque greenhouse. Nevertheless, the court
concluded that McKelvey's expectation of privacy in his greenhouse was objectively
unreasonable. The court found that the contents of the greenhouse were open to public
view from the navigable airspace above McKelvey's residence, and the court further
found that McKelvey could not reasonably have believed that no one would fly over his
property. The court noted that air travel (in both commercial and private aircraft) is an
essential feature of Alaskan life, and that a private airstrip was located a short distance
from McKelvey's property.
The court also rejected McKelvey's argument that Moore's use of a
telephoto lens to enhance his view of McKelvey's property transformed the aerial
surveillance into an unconstitutional search.
After the court denied this suppression motion, McKelvey waived his right
to a jury trial and proceeded to a bench trial based on stipulated facts. The court found
him guilty of one count of second-degree weapons misconduct and one count of third-
degree misconduct involving a controlled substance (possession of methamphetamine
with the intent to distribute). 2
The State dismissed the remaining charges.
This appeal followed.
Our analysis of McKelvey's claims
Both the Fourth Amendment to the United States Constitution and Article
I, Section 14 of the Alaska Constitution prohibit unreasonable searches by the
2 AS 11.61.195(a)(1) and former AS 11.71.030(a)(1) (2012), respectively.
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----------------------- Page 5-----------------------
government. Thisincludes both physicalintrusionsintoconstitutionallyprotected spaces
3
and non-physical intrusions made possible through the use of technology.
On appeal, McKelvey argues that the warrantless aerial surveillance of his
greenhouse using a telephoto lens was constitutionally impermissible. To address this
claim, the key question we must answer is whether the aerial surveillance constituted a
"search" for constitutional purposes. If it did, then the surveillance was presumptively
unreasonable absent a search warrant.
Under both federal and state law, when a person claims that the
government's invasion of their property constitutes a "search," courts must engage in a
two-part analysis: Did the person manifest a subjective expectation of privacy in the
property? And if so, is society willing to recognize that person's expectation of privacy
4
If both prongs are met - i.e., if the government's action
as objectively reasonable?
intruded upon an individual's reasonable expectation of privacy - then the
government's action constitutes a search for constitutional purposes, and it must be
supported by a warrant or by a recognized exception to the warrant requirement.
The first part of this two-part inquiry - the subjective prong - is
undisputed in this case. Courts have generally treated the erection of walls, fences, or
gates, or the posting of signage, as manifesting an intent to protect a person's privacy in
3 Cowles v. State, 23 P.3d 1168, 1170 (Alaska 2001).
4 California v. Ciraolo, 476 U.S. 207, 211 (1986) (citing Katz v. United States, 389 U.S.
347, 361 (1967) (Harlan, J., concurring), and Smith v. Maryland, 442 U.S. 735, 740 (1979));
State v. Glass, 583 P.2d 872, 875 (Alaska 1978) (citing Smith v. State, 510 P.2d 793, 797
(Alaska 1973)) (recognizing Alaska's adoption of the two-part expectation-of-privacy test
first set forth in Justice Harlan's concurrence in Katz); Pearce v. State, 45 P.3d 679, 682
(Alaska App. 2002) (same).
- 5 - 2675
----------------------- Page 6-----------------------
5
the curtilage of their home. Here, the superior court found that McKelvey's greenhouse
was located a short distance (approximately ten to fifteen feet) behind his house, in an
area "surrounded by a natural sight-barrier of tall woods." The court further found that
the greenhouse could not be seen from the ground by anyone who approached
McKelvey's front door by normal means, and who otherwise heeded the "No
Trespassing" and "Keep Out" signs that were posted throughout the barrier to the
property. Based on these facts, the court found that "McKelvey very obviously did not
wish for passersby to view his greenhouse or its contents." The State does not contest
6
this conclusion, and the record supports it.
McKelvey's case therefore hinges on the second prong - the objective
prong - of the test: Was it reasonable for McKelvey to expect that his greenhouse
5 See Florida v. Riley, 488 U.S. 445, 450 (1989) ("Riley no doubt intended and
expected that his greenhouse would not be open to public inspection, and the precautions he
took protected against ground-level observation."); State v. Quiday, 405 P.3d 552, 558 (Haw.
2017) ("Quiday's placement of the plants in his backyard, the activities in which were not
capable of observation by members of the public at ground-level, was 'indicative of [his]
subjective intent to avoid the public gaze' into the curtilage of his home." (alteration in
original) (quoting State v. Kaaheena, 575 P.2d 462, 467 (Haw. 1978))); State v. Davis, 627
P.2d 492, 494 (Or. App. 1981) ("[D]efendant did display to some extent a subjective
expectation of privacy, evidenced by the posting of 'no trespassing' signs and the use of a
locked gate across the driveway to the secluded property."); State v. Bryant, 950 A.2d 467,
473 (Vt. 2008) ("Fences, gates, and no-trespassing signs generally suffice to apprise a person
that the area is private." (citation omitted)); see also State v. Davis, 360 P.3d 1161, 1180
(N.M. 2015) (Chávez, J., concurring) ("If an individual has taken steps to ward off inspection
from the ground , the individual has also manifested an expectation that the visibility of his
or her property that he or she sought to block off from the ground should also be private
when seen from the air . This is because members of the general public generally do not
intently scrutinize other peoples' curtilages, even when they do fly over private property."
(emphasis in original) (citing Riley, 488 U.S. at 460) (Brennan, J., dissenting)).
6 See Pearce, 45 P.3d at 682-83 (reviewing the trial court's finding that the defendant
lacked a subjective expectation of privacy for clear error).
- 6 - 2675
----------------------- Page 7-----------------------
would not be subjected to aerial surveillance that was enhanced by image-magnifying
technology?
McKelvey argues that both the federal and state constitutions support the
conclusion that his expectation of privacy from this type of police surveillance was
reasonable. But the United States Supreme Court has twice rejected Fourth Amendment
challenges to warrantless aerial observation of the curtilage of a home when the curtilage
was open to observation from the air, even though the homeowner had taken steps to
blockground-level observation oftheproperty. Although neither ofthesecasesinvolved
observations that were enhanced by technological means, and even though the Supreme
Court has never directly addressed the use of a telephoto lens to surveil the curtilage of
a home, the Supreme Court's case law in this area gives little reason to believe that the
Fourth Amendment would protect McKelvey from the type of surveillance that occurred
in this case.
We need not resolve this issue of federal law, however, because we
conclude that, given Alaska's explicit constitutional protection of privacy, as well as
Alaska law's heightened protection for the privacy of residences, McKelvey could
reasonably expect that his home and backyard would not be subjected to the type of
aerial surveillance that occurred in this case.
We therefore rely solely on the Alaska Constitution to decide McKelvey's
case. However, it is useful, in the first instance, to examine the major federal cases
addressing this question - in order to explain why we find these cases insufficiently
protective of Alaskans' right to privacy.
- 7 - 2675
----------------------- Page 8-----------------------
Why we conclude that McKelvey would be unlikely to prevail on his claim
under federal law pertaining to aerial surveillance by law enforcement
The United States Supreme Court first considered the constitutionality of
warrantless aerial surveillance by law enforcement in California v. Ciraolo .7
In Ciraolo,
as in McKelvey's case, the police received a tip that the defendant was growing
marijuana in his backyard. Because two fences completely enclosed Ciraolo's yard,
rendering ground-level observation impossible, the police attempted to corroborate the
informant's tip by flying a plane over Ciraolo's house at an altitude of 1,000 feet. From
the air, the police identified marijuana plants growing in Ciraolo's yard, and they
8
photographed these plants using a standard 35mm camera lens. Based on this evidence,
9
the police obtained a search warrant to seize the marijuana plants.
In a 5-to-4 decision, the Supreme Court concluded that this aerial
surveillance did not constitute a search under the Fourth Amendment, and that therefore
10
no warrant was required.
To determine whether this surveillance constituted a search, the Court
11
The Court ultimately
applied the two-part "reasonable expectation of privacy" test.
concluded that Ciraolo's expectation of privacy from aerial surveillance was not
reasonable.12
7 California v. Ciraolo, 476 U.S. 207 (1986).
8 Id. at 209.
9 Id. at 209-10.
10 Id. at 214-15.
11 Id. at 211 (citing Katz v. United States, 389 U.S. 347, 360 (1967) (Harlan, J.,
concurring), and Smith v. Maryland , 442 U.S. 735, 740 (1979)).
12 Id. at 214.
- 8 - 2675
----------------------- Page 9-----------------------
In reaching this conclusion, the Court acknowledged that Ciraolo's yard
13
was within the curtilage of his home
- i.e., "the land immediately surrounding and
associated with the home" in which a resident retains a reasonable expectation of
14
privacy. As the Court explained, "[t]he protection afforded the curtilage is essentially
a protection of families and personal privacy in an area intimately linked to the home,
15
both physicallyand psychologically, whereprivacy expectations aremost heightened."
But the Court noted that the federal constitution does not prohibit police
observation of an area simply because that area is within the curtilage, if the police make
the observation from a place where they are entitled to be. The Court likened the sky to
a "public thoroughfare," and declared that "the mere fact that an individual has taken
measures to restrict some views of his activities [does not] preclude an officer's
observations from a public vantage point where he has a right to be and which renders
16
the activities clearly visible."
The Court noted that the aerial observations by the police officers in
Ciraolo's case were made "within public navigable airspace in a physically nonintrusive
manner," and that these observations revealed "plants readily discernible to the naked
17
eye as marijuana." Given the fact that "[a]ny member of the public flying in this
airspace who glanced down could have seen everything that these officers observed," the
13 Id. at 212-13.
14 Oliver v. United States, 466 U.S. 170, 180 (1984); see also Kelley v. State, 347 P.3d
1012, 1014-15 (Alaska App. 2015) (recognizing that the protection against unreasonable
searches "extends to the curtilage of the home - those areas immediately surrounding the
home in which the resident retains a reasonable expectation of privacy").
15 Ciraolo, 476 U.S. at 212-13.
16 Id. at 213 (emphasis added) (citation omitted).
17 Id.
- 9 - 2675
----------------------- Page 10-----------------------
Court concluded that any expectation that Ciraolo's yard would be protected from aerial
18
observation was unreasonable.
Accordingly, the Court held that no search had
19
occurred, and thus no warrant was required.
Justice Powell, joined by three other members of the Court, dissented from
this holding. The dissenters argued that, under normal circumstances, "the actual risk
to privacy from commercial or pleasure aircraft is virtually nonexistent [because]
[t]ravelers on commercial flights, as well as private planes used for business or personal
reasons, normally obtain at most a fleeting, anonymous, and nondiscriminating glimpse
20
of the landscape and buildings over which they pass." Thus, according to the
dissenters, "[t]he risk that a passenger on such a plane might observe private activities,
and might connect those activities with particular people, is simply too trivial [for a
21
In contrast, in Ciraolo's case, the "police conducted
homeowner] to protect against."
an overflight at low altitude solely for the purpose of discovering evidence of crime
within a private enclave into which they were constitutionally forbidden to intrude at
22
ground level without a warrant." For these reasons, the dissenters concluded, Ciraolo's
expectation of privacy was reasonable, and the warrantless aerial surveillance of his yard
23
constituted a search.
18 Id. at 213-14.
19 Id. at 214-15.
20 Ciraolo, 476 U.S. at 223 (Powell, J., dissenting).
21 Id. at 223-24.
22 Id. at 224-25.
23 Id. at 225.
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----------------------- Page 11-----------------------
The result in Ciraolo - if not its rationale - was reaffirmed three years
24
later when the Court decided Florida v. Riley .
Riley lived in a mobile home on five
acres of rural property, and a partially enclosed greenhouse was located ten to twenty feet
behind his mobile home. The police received a tip that Riley was growing marijuana on
his property. When an investigating officer was unable to see the contents of Riley's
greenhouse from the road, the officer flew over Riley's property - this time, in a
helicopter at a height of only 400 feet. With his naked eye, the officer was able to see
25
what he believed to be marijuana growing in the greenhouse. The officer obtained a
search warrant based on these observations, and the subsequent search uncovered
26
marijuana growing in the greenhouse.
Riley argued that the helicopter flight over his property was an illegal
warrantless search that violated the Fourth Amendment. In a divided decision with no
27
majority opinion, the Supreme Court rejected this argument. A four-member plurality
28
The plurality noted that the
concluded that Riley's case was controlled by Ciraolo.
helicopter was being lawfully operated within the Federal Aviation Administration's
(FAA) altituderestrictions forhelicopters, and that therefore"[a]ny member ofthepublic
could legally have been flying over Riley's property [in the same manner as the police
29
officer] and could have observed Riley's greenhouse."
24 Florida v. Riley, 488 U.S. 445 (1989).
25 Id. at 448.
26 Id. at 448-49.
27 Id. at 449-52.
28 Id. at 449.
29 Id. at 451. Helicopters are generally permitted to fly at any altitude "[i]f the operation
(continued...)
- 11 - 2675
----------------------- Page 12-----------------------
The plurality declined to say "[whether] an inspection of the curtilage of a
house from an aircraft will always pass muster under the Fourth Amendment simply
30
because the plane is within the navigable airspace specified by law."
However, the
plurality noted that there was "nothing in the record . . . to suggest that helicopters flying
at 400 feet are sufficiently rare in this country to lend substance to [Riley's] claim that
he reasonably anticipated that his greenhouse would not be subject to observation from
31
that altitude." There was similarly no suggestion that the helicopter interfered with
32
Riley's use of his greenhouse or other parts of his curtilage.
Justice O'Connor concurred in the Court's resolution of the case, but she
wrote separately to explain her different rationale for reaching this result. In her view,
"the plurality's approach rest[ed] the scope of Fourth Amendment protection too heavily
on compliance with FAA regulations whose purpose is to promote air safety, not to
33
protect [Fourth Amendment rights]." According to Justice O'Connor, the question was
"not whether the helicopter was where it had a right to be under FAA regulations," but
rather "whether the helicopter was in the public airways at an altitude at which members
of the public travel with sufficient regularity that Riley's expectation of privacy from
34
aerial observation was not 'one that society is prepared to recognize as "reasonable." ' "
29 (...continued)
[of the helicopter] is conducted without hazard to persons or property on the surface." 14
C.F.R. § 91.119(d).
30 Riley, 488 U.S. at 451.
31 Id. at 451-52.
32 Id. at 452.
33 Id. (O'Connor, J., concurring).
34
Id. at 454 (quoting Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J.,
(continued...)
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Justice O'Connor then concluded that Riley had the burden of proving that his
expectation of privacy was reasonable - i.e., that public use of airspace at altitudes of
35
400 feet was rare.
Because Riley did not present any evidence on this point, Justice
O'Connor agreed with the plurality that he had failed to show that his Fourth
36
Amendment rights were violated.
Justice Brennan, in a dissenting opinion joined by Justices Marshall and
Stevens, criticized the plurality for "undertak[ing] no inquiry into whether low-level
helicopter surveillance by the police of activities in an enclosed backyard is consistent
with the 'aims of a free and open society,'" and instead relying on the fact that any
37
member of the public could have observed Riley's greenhouse from the air. These
38
dissenting justices, plus Justice Blackmun in a separate dissent, agreed with Justice
O'Connor that "the fundamental inquiry is not whether the police were where they had
a right to be under FAA regulations, but rather whether Riley's expectation of privacy
was rendered illusory by the extent of public observation of his backyard from aerial
39
traffic at 400 feet." But they diverged from Justice O'Connor on the question of which
40
party bore the burden of proof on this issue.
34 (...continued)
concurring)).
35 Id. at 455.
36 Id.
37 Riley, 488 U.S. at 456-57 (Brennan, J., dissenting) (quoting Anthony G. Amsterdam,
Perspectives on the Fourth Amendment, 58 Minn. L. Rev. 349, 403 (1974)).
38 Id. at 467 (Blackmun, J., dissenting).
39 Id. at 464-65 (Brennan, J., dissenting).
40 Id. at 465-66 (Brennan, J., dissenting) ("Because the State has greater access to
(continued...)
- 13 - 2675
----------------------- Page 14-----------------------
Turning to the facts of McKelvey's case, there is no dispute that Trooper
41
Moore was flying in airspace where he had a legal right to be under FAA regulations.
But to the extent that Ciraolo relies on the legality of the police overflight as the
benchmark for assessing a person's reasonable expectation of privacy, the concurrence
and the two dissents in Riley call this analysis into question. A majority of the Riley
court (the four dissenters and the one concurring justice) agreed that the case turned, not
on whether FAA regulations permitted an overflight at that altitude, but instead on
whether the target of the surveillance could reasonably expect aerial privacy, given the
42
frequency of air travel at the relevant altitude.
Here, McKelvey testified that low-altitude flights were uncommon near his
property, and that the trooper's flyover was notable. He testified that he heard the plane
overhead, and he stepped outside to see the plane's tail end passing by, only to see it
40 (...continued)
information concerning customaryflight patterns and because the coercive power of the State
ought not be brought to bear in cases in which it is unclear whether the prosecution is a
product of an unconstitutional, warrantless search, . . . the burden of proof properly rests with
the State and not with the individual defendant." (internal citation omitted)); Id. at 468
(Blackmun, J., dissenting) (concluding that the State should bear the burden of proof "for any
helicopter surveillance case in which the flight occurred below 1,000 feet - in other words,
for any aerial surveillance case not governed by the Court's decision in California v.
Ciraolo").
41 See 14 C.F.R. § 91.119(b) & (c) (providing that a fixed-wing aircraft may not operate,
over congested areas, below "an altitude of 1,000 feet above the highest obstacle within a
horizontal radius of 2,000 feet of the aircraft" and, over non-congested areas, below "[a]n
altitude of 500 feet above the surface, except over open water or sparsely populated areas.
In those cases, the aircraft may not be operated closer than 500 feet to any person, vessel,
vehicle, or structure.").
42 Riley, 488 U.S. at 455 (O'Connor, J., concurring), 464-65 (Brennan, J., dissenting),
& 467 (Blackmun, J., dissenting); see 1 Wayne R. LaFave, Search and Seizure § 2.1(d), at
592 (5th ed. 2012).
- 14 - 2675
----------------------- Page 15-----------------------
return several minutes later. McKelvey acknowledged that there was a private airstrip
a mile away, but he said that the only air traffic he had ever observed was "several times
higher" and that this flyover was "the first time [he had] ever seen a plane that low" or
heard engine noise so loud over his house.
Thesuperior courtfoundMcKelvey'stestimonyon this pointunpersuasive,
in light of the frequency of air travel in Alaska generally and the presence of an air strip
a mile from McKelvey's property. But there was no specific evidence presented about
the frequency of air travel at 600 feet in the vicinity of McKelvey's residence, or the
frequency of flights from the nearby airstrip. Conceivably, the question of which party
bears the burden of proof as to flight frequency could matter to McKelvey's claim under
the federal constitution.
McKelvey does not brief this question. Instead, he focuses on a different
distinction between his case and the facts of Ciraolo and Riley. Both Ciraolo and Riley
involved naked-eye observations. In Ciraolo, the police documented their observations
by taking photographs with a standard 35mm camera, but there was no claim that this
camera enhanced the officers' view of the yard.43
And in Riley, the police made
44
observations without any technological assistance. In McKelvey's case, by contrast,
the police used a camera equipped with a magnifying lens.
This useoftelephoto technology couldpotentially affectMcKelvey'sclaim
under the federal constitution. The final sentence of Ciraolo, for instance, states that
"[t]he Fourth Amendment simply does not require the police traveling in the public
airways at this altitude to obtain a warrant in order to observe what is visible to the naked
43 California v. Ciraolo, 476 U.S. 207, 209, 212-13 (1986).
44 Riley, 488 U.S. at 448 (plurality opinion).
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----------------------- Page 16-----------------------
45
eye." Then, in a footnote, the Court pointed out that the State had acknowledged that
"[a]erial observation of curtilage may become invasive, either due to physical
intrusiveness or through modern technology which discloses to the senses those intimate
associations, objects or activities otherwise imperceptible to police or fellow citizens." 46
Relying on these statements from Ciraolo, McKelvey asserts that the
telephoto lens used in his case allowed the trooper to observe things that were not
otherwise visible to the naked eye, and he argues that this turned an otherwise
permissible police surveillance into a search requiring a warrant.
But the language McKelvey relies on from Ciraolo indicates only that the
police do not need a warrant to observe what is visible to the naked eye. This does not
necessarily imply that, under the Fourth Amendment, the police do need a warrant if they
intend to use commonly available technological enhancements to observe what is not
visible to the naked eye.
McKelvey also relies on the Supreme Court's decision in Kyllo v. United
47
States.
In Kyllo, the Court considered "whether the use of a thermal-imaging device
aimed at a private home from a public street to detect relative amounts of heat within the
48
home constitutes a 'search' within the meaning of the Fourth Amendment." The Court
held that "obtaining by sense-enhancing technology any information regarding the
interior of the home that could not otherwise have been obtained without physical
45 Ciraolo, 476 U.S. at 215 (emphasis added).
46 Id. at 215 n.3 (alteration in original).
47 Kyllo v. United States, 533 U.S. 27 (2001).
48 Id. at 29.
- 16 - 2675
----------------------- Page 17-----------------------
intrusion into a constitutionally protected area constitutes a search - at least where . . .
49
the technology in question is not in general public use."
But this passage from Kyllo does not answer the question presented in
McKelvey's case, since the trial court explicitly found that the type of telephoto lens
used to view McKelvey's greenhouse was indeed in general public use, and McKelvey
does not challenge this finding.
We therefore think it is unlikely that McKelvey would prevail under the
Fourth Amendment. Perhaps the most that can be said is that the existing Supreme Court
jurisprudence does not provide a definitive answer.
Why we conclude that the Alaska Constitution requires a warrant for the
type of aerial surveillance in this case
As we noted earlier, Alaska has adopted the two-part reasonable-
expectation-of-privacy test for determining whether a search has occurred for purposes
50
of Article I, Section 14 of the Alaska Constitution. Although this is seemingly the same
test that the federal courts employ under the Fourth Amendment, the application of this
test is somewhat different under Alaska law.
First,theAlaskaSupremeCourthas recognized that "theexplicit protection
of privacy set out in article I, section 22 of the Alaska Constitution necessarily . . .
increases the likelihood that a person's expectation of privacy . . . can be deemed
49 Id. at 34 (citation and internal quotations omitted).
50 See State v. Glass, 583 P.2d 872, 875 (Alaska 1978) (citing Smith v. State, 510 P.2d
793, 797 (Alaska 1973)) (recognizing Alaska's adoption of the two-part expectation-of-
privacy test set forth in Justice Harlan's concurrence in Katz); Pearce v. State, 45 P.3d 679,
682 (Alaska App. 2002) (same).
- 17 - 2675
----------------------- Page 18-----------------------
51
objectively reasonable." Thus, although we apply the same analytical framework as
the federal courts to determine whether governmental scrutiny constitutes a search for
constitutional purposes, Alaska law is more likely to recognize that an expectation of
privacy is reasonable, given our express constitutional protection for the right of
privacy.52
Second, Alaska courts have applied the reasonable-expectation-of-privacy
test in a manner more consistent with its constitutional underpinnings, while
commentators have criticized the United States Supreme Court's application of the two-
part test as having become unmoored from its original purpose.
The Supreme Court's decisions in Ciraolo and Riley are paradigmatic of
this problem. In both of these decisions, the objective reasonableness of a person's
expectation of privacy was treated as a question of fact rather than as a question of
constitutional law, with members of the Court suggesting that the answer turned on
whether "a single member of the public could conceivably position herself to see into the
53
area in question without doing anything illegal."
51 Beltz v. State, 221 P.3d 328, 334 (Alaska 2009). Article I, section 22 of the Alaska
Constitution provides in relevant part: "The right of the people to privacy is recognized and
shall not be infringed."
52
See, e.g., Beltz, 221 P.3d at 332-35 (concluding, contrary to federal law, California
v. Greenwood, 486 U.S. 35 (1988), that Alaskans have some reasonable expectation of
privacy in garbage set out for routine collection on or adjacent to a public street); see also
State v. Gibson, 267 P.3d 645, 659 (Alaska 2012) ("Alaska courts have used section 22's
right to privacy to give section 14's protection against unreasonable searches and seizures
'a liberal interpretation.'" (quoting Anchorage v. Ray , 854 P.2d 740, 750 (Alaska App.
1993))).
53 Florida v. Riley, 488 U.S. 445, 457 (1989) (Brennan, J., dissenting).
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----------------------- Page 19-----------------------
Professor LaFave has criticized this approach in his treatise on the law of
search and seizure:
[W]hile "privacy may have been a promising theory of the
Fourth Amendment at one time, it has now lost much of its
luster and utility" because of two serious mistakes by the
Court in post-Katz cases: the Court (1) "has interpreted
privacy to be a question of fact rather than a constitutional
value" and (2) is apparently "out of touch with society's true
[54]
expectations of privacy."
In contrast, Professor LaFave suggests that the question of whether the
second prong of the reasonable expectation test is satisfied under a particular set of facts
should be viewed as an issue of law, and that the answer entails "a value judgment": The
"ultimate question" is "whether, if the particular form of surveillance practiced by the
police is permitted to go unregulated by constitutional restraints, the amount of privacy
and freedomremaining to citizens would be diminished to a [scope] inconsistent with the
55
aims of a free and open society."
The Alaska Supreme Court has expressly adopted this value-based,
56
Thus, Alaska law gives a
question-of-law approach endorsed by Professor LaFave.
broader reading to the second prong of the reasonable expectation test.
With this legal background, we now turn to the question presented in this
case: If our state constitution does not regulate the type of technologically enhanced
aerial government surveillance of a person's residential curtilage that occurred in this
54 1 Wayne R. LaFave, Search and Seizure § 2.1(d), at 590-92 (5th ed. 2012) (quoting
Erik G. Luna, Sovereignty and Suspicion, 48 Duke L.J. 787, 825, 827 (1999)).
55
Id. § 2.1(d), at 590 (quoting Anthony G. Amsterdam, Perspectives on the Fourth
Amendment , 58 Minn. L. Rev. 349, 403 (1974)).
56 Cowles v. State, 23 P.3d 1168, 1171 (Alaska 2001).
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case, would the amount of privacy remaining to Alaska citizens be diminished to an
extent inconsistent with the aims of a free and open society?
We start with the foundational principle that the right to privacy is at its
pinnacle when the government's conduct implicates Alaskans' right to be left
undisturbed in their homes. As the Alaska Supreme Court said in 1975 in Ravin v. State ,
"If there is any area of human activity to which a right to privacy pertains more than any
57
other, it is the home."
The supreme court continued:
The privacy amendment to the Alaska Constitution was
intended to give recognition and protection to the home.
Such a reading is consonant with the character of life in
Alaska. Our . . . state has traditionally been the home of
people who prize their individuality and who have chosen to
settle or to continue living here in order to achieve a measure
of control over their own lifestyles which is now virtually
[58]
unattainable in many of our sister states.
The area immediately surrounding and associated with the home - the
59
"curtilage" of a person's home - merits the same heightened constitutional protection.
This is the area "to which extends the intimate activity associated with the sanctity of a
60
man's home and the privacies of life."
57 Ravin v. State, 537 P.2d 494, 503 (Alaska 1975).
58 Id. at 503-04.
59 See Oliver v. United States, 466 U.S. 170, 180 (1984); Hakala v. Atxam Corp., 753
P.2d 1144, 1149 n.8 (Alaska 1988); Kelley v. State, 347 P.3d 1012, 1013-14 (Alaska App.
2015); see also State v. Bryant, 950 A.2d 467, 473 (Vt. 2008) ("A home's curtilage-the area
outside the physical confines of a house into which the privacies of life may extend-merits
the same constitutional protection from unreasonable searches and seizures as the home
itself." (citations and internal quotation marks omitted)).
60
Oliver, 466 U.S. at 180 (citation and internal quotations omitted). The Supreme Court
(continued...)
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The mere fact that a police aircraft is operated in compliance with FAA
regulations is not a suitable standard for assessing whether the police have violated a
61
person's reasonable expectation of privacy in their residential curtilage. FAA
62
And even
regulations are primarily designed to ensure air safety, not protect privacy.
if these regulations were in part designed to protect privacy, we would still have an
independent duty to ensure that those protections were no less than those guaranteed by
the Alaska Constitution.
Moreover, as the Ciraolo dissenters noted, there is a qualitative difference
between the observations that a pilot, crew member, or passenger might make during
typical air travel and the observations that a police officer might make when engaged in
"an overflight at low altitude solely for the purpose of discovering evidence of crime
within a private enclave into which they were constitutionally forbidden to intrude at
60 (...continued)
has defined the curtilage by reference to four factors: "the proximity of the area claimed to
be curtilage to the home, whether the area is included within an enclosure surrounding the
home, the nature of the uses to which the area is put, and the steps taken by the resident to
protect the area from observation by people passing by." United States v. Dunn, 480 U.S.
294, 301 (1987) (citations omitted).
61 Bryant, 950 A.2d at 478 (recognizing that simply "abiding by the law in occupying
a particular spot in the public airspace" is not "an adequate test of whether government
surveillance from that same spot is constitutional"); see also Florida v. Riley, 488 U.S. 445,
453 (1989) (O'Connor, J., concurring) ("[T]here is no reason to assume that compliance with
FAA regulations alone determines whether the government's intrusion infringes upon the
personal and societal values protected by the Fourth Amendment." (citation and internal
quotations omitted)); State v. Davis, 360 P.3d 1161, 1182 (N.M. 2015) (Chávez, J.,
concurring) (declining to rely on an aircraft's altitude to evaluate the constitutionality of
government aerial surveillance).
62 See Riley, 488 U.S. at 452 (O'Connor, J., concurring) (recognizing that the purpose
of FAA regulations is to promote air safety, not to protect Fourth Amendment rights).
- 21 - 2675
----------------------- Page 22-----------------------
63
ground level without a warrant." The views afforded by commercial and private flights
are normally "fleeting, anonymous, and nondiscriminating," and the "risk that [someone
on the] plane might observe private activities, and might connect those activities with
64
particular people, is simply too trivial to protect against." Thus, a person's failure to
completely hide their curtilage from aerial observation should not defeat their
65
expectation of privacy.
Ultimately, we agree with the Vermont Supreme Court that there is a
fundamental flaw in the United States Supreme Court's approach to aerial surveillance
63 California v. Ciraolo, 476 U.S. 207, 224-25 (1986) (Powell, J., dissenting). We
acknowledge that, under Alaska constitutional law, the fact that a person's activities were
"actuallyobserved for the purpose of detecting misconduct does not affect the results of [our]
analysis." Cowles v. State, 23 P.3d 1168, 1173 (Alaska 2001). There is a distinction,
however, between purpose and conduct. Although the dissenters in Ciraolo mentioned the
law enforcement purpose of the surveillance, we view this as a means to explain how the
police conduct - low-altitude surveillance targeted at a specific location - was
qualitatively different, for the sake of determining whether Ciraolo had a reasonable
expectation of privacy, from the conduct ( i.e., passing glimpses) of commercial air travelers.
64 Ciraolo, 476 U.S. at 223-24 (Powell, J., dissenting).
65 See 1 Wayne R. LaFave, Search and Seizure § 2.3(g), at 799-800 (5th ed. 2012)
(citing Ciraolo, 476 U.S. at 223-24 (Powell, J., dissenting)); see also State v. Quiday, 405
P.3d 552, 562 (Haw. 2017) (holding warrantless overflights unconstitutional even though
people "may unavoidably be exposed to casual glances from passing aircraft" (quoting
People v. Cook, 710 P.2d 299, 304 (Cal. 1985)); Brian J. Sear, Great Expectations of
Privacy: A New Model for Fourth Amendment Protection, 73 Minn. L. Rev. 583, 615-16
(1989) ("When government agents . . . have identified a backyard as belonging to a particular
individual, and consciously glide, fly, or hover over that curtilage to monitor activities
occurring there, those agents have intruded on privacy expectations to a far greater degree
than those few uncaring members of the public to whom sunbathers have 'knowingly'
exposed a quick glimpse of an unidentifiable person.").
- 22 - 2675
----------------------- Page 23-----------------------
in Ciraolo: it fails to take sufficient account of the heightened significance of the home
and its curtilage as places of privacy under our state constitution. 66
On appeal, the State acknowledges that the federal test developed by the
United States Supreme Court fails to sufficiently protect Alaskans' privacy rights, and
the State asks us to impose a more demanding test under the Alaska Constitution.
The State's proposed test would rest on several factors. The first two of
these factors would be (1) whether the police overflight was conducted in accordance
with FAA regulations, and (2) whether the overflight took place in a geographic area
where overflights could be expected. However, the State acknowledges that these first
twofactors do not, by themselves, providesufficient safeguardsforprivacy,"particularly
in the case of aircraft such as helicopters and drones." Thus, the State proposes that we
adopt - and place more emphasis on - two other elements: "the intrusiveness of the
overflight," and whether the overflight "was conducted in a manner that did not violate
reasonable expectations of privacy."
We agree in general with the proposition that aerial surveillance must not
be conducted in a manner that violates a person's reasonable expectation of privacy. But
we disagree with the State about what this concept means.
The State suggests that the aerial surveillance in McKelvey's case was
minimally intrusive and that it did not violate any reasonable expectation of privacy that
66 See State v. Bryant, 950 A.2d 467, 475 (Vt. 2008) ("[W]e find the Court's analysis in
Ciraolo to lack the consideration for the significance of the home and its curtilage as
'repositor[ies] of heightened privacy expectations' that our [state constitutional]
jurisprudence demands.") (quoting State v. Geraw, 795 A.2d 1219, 1221 (Vt. 2002)); see also
Ciraolo, 476 U.S. at 219 (Powell, J., dissenting) (asserting that the majority's decision in
Ciraolo was "curiously at odds" with its own reaffirmation of the curtilage doctrine, both in
Ciraolo itself and in a second opinion issued that same day, Dow Chemical Co. v. United
States, 476 U.S. 227, 235 (1986)).
- 23 - 2675
----------------------- Page 24-----------------------
McKelvey may have had. Alternatively, the State suggests that the aerial surveillance
only violated McKelvey's reasonable expectation of privacy to a slight degree - a
degree that might require the surveillance to be supported by reasonable suspicion, but
that would not require a search warrant based on probable cause. 67
But we disagree with the State's proposed analysis in two major respects,
and we conclude that the State's proposed test fails to adequately protect Alaskans'
heightened expectation of privacy in their homes.
First, under the State's proposed test, it appears that, in most instances,
police aerial surveillance would only constitute a search if it affirmatively caused a
disturbance or created a risk of harm to persons or property on the ground. This
68
approach has characterized the analyses of many state courts, but we conclude that this
67 See Beltz v. State, 221 P.3d 328 (Alaska 2009) (requiring the police to have reasonable
suspicion before they search through garbage that the owner has set out for collection).
68 See, e.g., People v. Pollack, 796 P.2d 63, 64-65 (Colo. App. 1990) (holding that
defendant had a reasonable expectation of privacy from helicopter surveillance because of
(1) "the infrequency of helicopter flights at 200 feet," and (2) "the excessive noise created
by the helicopter as it circled the area"); Davis, 360 P.3d at 1171-72 (holding that warrantless
aerial surveillance of the defendant's greenhouse amounted to an unconstitutional search,
given the "prolonged hovering" by the helicopter "close enough to the ground to cause
interference" with Davis's property: "[W]hen low-flying aerial activity leads to more than
just observation and actually causes an unreasonable intrusion on the ground . . . then at some
point courts are compelled to step in and require a warrant before law enforcement engages
in such activity."); Commonwealth v. Oglialoro, 579 A.2d 1288, 1292-94 (Pa. 1990) (holding
that, in general, FAA regulations provide a useful reference in determining legality of aerial
surveillance, but concluding that helicopter's presence at 50 feet for 15 seconds created a risk
of harm and was therefore impermissible); State v. Wilson, 988 P.2d 463, 465 (Wash. App.
1999) ("Aerial surveillance is not a search where the contraband is identifiable with the
unaided eye, from a lawful vantage point, and from a nonintrusive altitude. But aerial
surveillance may be intrusive and require a warrant if the vantage point is unlawful or the
method of viewing is intrusive." (internal citations omitted)).
- 24 - 2675
----------------------- Page 25-----------------------
approach is flawed.
The primary purpose of Alaska's constitutional guarantee against
unreasonable searches and seizures is to protect "personal privacy and dignity against
69
unwarranted intrusion by the State." The amount of noise, wind, and dust created by
a police overflight is not an appropriate measure of whether the overflight infringed on
these protections.
In his dissent in Riley, Justice Brennan specifically took issue with the
plurality's reliance on the fact that the helicopter surveillance created "no undue noise,
70
and no wind, dust, or threat of injury." Justice Brennan responded to this argument
with a prescient hypothetical:
Imagine a helicopter capable of hovering just above an
enclosed courtyard or patio without generating any noise,
wind, or dust at all - and, for good measure, without posing
any threat of injury. Suppose the police employed this
miraculous tool to discover not only what crops people were
growing in their greenhouses, but also what books they were
reading and who their dinner guests were. Suppose, finally,
that the FAA regulations remained unchanged, so that the
police were undeniably "where they had a right to be."
Would today's plurality continue to assert that "[t]he right of
the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures" was not
infringed by such surveillance? Yet that is the logical
consequence of the plurality's rule that, so long as the police
are where they have a right to be under air traffic regulations,
the Fourth Amendment is offended only if the aerial
surveillance interferes with the use of the backyard as a
69 Weltz v. State , 431 P.2d 502, 506 (Alaska 1967) (quoting Schmerber v. California, 384
U.S. 757, 767 (1966)).
70 Riley, 488 U.S. at 461 (Brennan, J., dissenting) (quoting the plurality opinion).
- 25 - 2675
----------------------- Page 26-----------------------
garden spot. Nor is there anything in the plurality's opinion
to suggest that any different rule would apply were the police
looking from their helicopter, not into the open curtilage, but
through an open window into a room viewable only from the
air.[71]
Three decades ago, Justice Brennan might properly call such technology
"miraculous." But today we would call it commonplace. Remote-controlled drones and
lightweight, high-resolution video cameras are readily available to the public and the
police alike. We agree with Justice Brennan that, in light of this technology, an approach
that focuses on the amount of disruption or disturbance caused by the police surveillance
is fundamentally inadequate to protect the rights guaranteed to Alaska's citizens by our
constitution.72
This brings us to our second area of disagreement with the State's analysis.
We reject the State's assertion that the police aerial surveillance in this case constituted,
at most, a minor infringement of McKelvey's reasonable expectation of privacy.
At least two high courts - the California Supreme Court and the Hawaii
Supreme Court - have held that an individual has a reasonable expectation of privacy
fromgovernmental aerial surveillance of their house and residential curtilage if the aerial
73
surveillance is conducted for the purpose of detecting criminal activity. Both of these
courts acknowledged that a person's yard "may unavoidably be exposed to casual
71 Id. at 462-63.
72 The Alaska Legislature, acting upon these same privacy concerns, recently passed a
law regulating the use of unmanned aircraft systems ( i.e., drones) in criminal investigations.
AS 18.65.902; SLA 2014, ch. 105, § 2. The legislature's concern about the protection of
privacy in the face of advancing technology underscores the importance of adhering to
Alaska's strong preference for warrants under these circumstances.
73 People v. Cook, 710 P.2d 299, 305-08 (Cal. 1985); State v. Quiday, 405 P.3d 552, 562
(Haw. 2017).
- 26 - 2675
----------------------- Page 27-----------------------
glances from passing aircraft," but these courts concluded that residents should be able
to "reasonably assume" that their curtilage will "not be intently examined by government
agents who are flying over it for the specific purpose of detecting criminal activity
74
therein." As the California Supreme Court stated in Cook:
A society where individuals are required to erect opaque
cocoons within which to carry on any affairs they wish to
conduct in private, and the concomitant chill such a
requirement would placeonlawful outdoor activity,wouldbe
inimical to the vision of legitimate privacy which underlies
[75]
our state Constitution.
Accordingly, both the California and the Hawaii supreme courts have held that
government aerial surveillance of an individual's residence and curtilage, conducted for
the purpose of criminal investigation, qualifies as a "search" under their respective state
constitutions and requires a search warrant (unless there is an applicable exception to the
76
warrant requirement).
This approach to police overflights finds strong support in Alaska law:
Article I, Section 22 of the Alaska Constitution expressly guarantees a right of privacy;
74 Quiday, 405 P.3d at 562 (quoting Cook, 710 P.2d at 304).
75 Cook, 710 P.2d at 302.
76 The California Supreme Court's decision in Cook predated the United States Supreme
Court's decision in Ciraolo, but the California Supreme Court reaffirmed the holding of
Cook in a post-Ciraolo decision. See People v. Mayoff, 729 P.2d 166, 171-72 (Cal. 1986).
Although the state constitutional ruling in Cook remains valid law, California residents later
voted to amend the California Constitution to eliminate the application of the exclusionary
rule to relevant evidence gathered in violation of the California Constitution. See Cal. Const.
art I, § 28(f)(2); see Mayoff, 729 P.2d at 178 (Lucas, J., concurring) ("Only because this case
and Cook arose prior to the adoption of Proposition 8 must we consider whether the searches
conducted in those cases violated state constitutional requirements." (emphasis in original));
Diana Friedland, 27 Years of "Truth-in-Evidence": The Expectations and Consequences of
Proposition 8's Most Controversial Provision, 14 Berkeley J. Crim. L. 1 (2009).
- 27 - 2675
----------------------- Page 28-----------------------
Alaska law has a strong preference for requiring a warrant before the police conduct
77
searches of people's residences;
and the Alaska Supreme Court has adopted the "value
judgment," question-of-law approach to the second prong of the reasonable expectation
78
test.
Moreover, it is easy to see why Alaskans' sense of security might be
severely compromised if our constitution did not regulate purposeful aerial surveillance
of people's houses by law enforcement officers. "[E]ven individuals who have taken
effective precautions to ensure against ground-level observations cannot block off all
conceivable aerial views of their outdoor patios and yards without entirely giving up
their enjoyment of those areas."79
And a person's right to privacy should not hinge on
whether that person has the financial means to undertake the extraordinary measures that
80
would be required to shield their curtilage from all aerial view.
But we need not decide whether to adopt the same broad rule adopted in
California and Hawaii because, in McKelvey's case, there is one more factor to consider:
Trooper Moore did not make his observations of McKelvey's backyard and greenhouse
with his unaided naked eye; rather, he used a telephoto lens to enhance his view of the
contents of the greenhouse. And as we explained earlier, when Moore testified at the
77 See State v. Jones, 706 P.2d 317, 323 (Alaska 1985); Reeves v. State, 599 P.2d 727,
735 (Alaska 1979).
78 Cowles v. State, 23 P.3d 1168, 1171 (Alaska 2001).
79 State v. Davis, 360 P.3d 1161, 1181 (N.M. 2015) (Chávez, J., concurring) (emphasis
removed) (quoting Florida v. Riley, 488 U.S. 445, 454 (1989) (O'Connor, J., concurring)).
80
Id. at 1182; see also Cook, 710 P.2d at 305; 1 Wayne R. LaFave, Search and Seizure
§ 2.6(c), at 898-99 (5th ed. 2012) ("It would be a perversion of Katz to interpret it as
extending protection only to those who resort to extraordinary means to keep information
regarding their personal lives out of the hands of the police.").
- 28 - 2675
----------------------- Page 29-----------------------
evidentiary hearing in the superior court, he acknowledged that he was only able to see
the buckets in the greenhouse by using this telephoto lens. Thus, this technological
enhancement of Moore's vision was a significant factor in his ability to observe
McKelvey's property.
We acknowledge that many courts have concluded that a police officer's
use of a commercially available camera - even one with a telephoto lens - does not
81
convert an otherwise permissible police observation into a "search."
But we conclude
that commercial availability should not be the determinative factor when analyzing
whether a particular form of technology transforms state action into a search. Rather, an
officer's use of vision-enhancing technology should be deemed a "search" if the
technology allows the officer to make observations that are significantly more detailed
than what an unaided human eye would be able to see at the same distance.
While we agree with the State that the telephoto lens used in this case did
not reveal the same level of detail that a person could discern if they were physically
present on the property, the lens did reveal a critical detail that Moore was apparently
81 See, e.g., Sundheim v. Bd. of Cty. Comm'rs, 904 P.2d 1337, 1351 (Colo. App. 1995);
State v. Vogel, 428 N.W.2d 272, 275 (S.D. 1988); State v. Lange, 463 N.W.2d 390, 394-95
(Wis. App. 1990). Other cases that have upheld aerial surveillance have specified that the
surveillance was done without technological enhancement, without deciding whether the use
of technological enhancement would have altered the outcome. See, e.g., State v. Rodal, 985
P.2d 863, 866 (Or. App. 1999) (finding it unnecessary to decide whether use of a telephoto
lens during aerial surveillance of defendant's yard was sufficiently intrusive so as to violate
protected privacy interests because the trial court found that the police "positively identified
the marijuana plants on defendant's property with no visual aids other than his eyeglasses
before using the telephoto lens to document his discovery" (emphasis in original)); State v.
Wilson, 988 P.2d 463, 465 (Wash. App. 1999) ("Aerial surveillance is not a search where the
contraband is identifiable with the unaided eye, from a lawful vantage point, and from a
nonintrusive altitude. But aerial surveillance may be intrusive and require a warrant if the
vantage point is unlawful or the method of viewing is intrusive." (internal citations omitted)).
- 29 - 2675
----------------------- Page 30-----------------------
unable to discern with his naked eye - the existence of the five-gallon buckets in the
82
greenhouse.
McKelvey could reasonably expect that, in the absence of a warrant, the
police would not invade the airspace above his residential property and view his intimate
83
activities using such a lens.
Both the Alaska Supreme Court and this Court have repeatedly interpreted
Article I, Section 14 of the Alaska Constitution to provide greater protection to Alaskans
82 The State attached to its brief a sample series of nine photographs (unconnected to this
case), each displaying a view from an increasing focal length, from 18mm to 300mm. These
photographs (obtained from the Nikon website) show that the difference in detail between
35mm and 200-300mm is significant. See Diane Berkenfeld et al., Understanding Focal
Length , Nikon, https://www.nikonusa.com/en/learn-and-explore/a/tips-and-techniques/
understanding-focal-length.html (photographs by Dave Black) (last visited Aug. 31, 2020).
83 See State v. Knight, 621 P.2d 370, 373-74 (Haw. 1980) (holding that the police's use
of binoculars to view the contents of the defendant's greenhouse was constitutionally
impermissible where the property was located in a remote area, and the greenhouse was
surrounded by vegetation and covered by materials that made it impossible for the naked eye
to view the contents); Commonwealth v. Lemanski, 529 A.2d 1085, 1092-93 (Pa. Super. Ct.
1987) (holding that the police violated the defendant's reasonable expectation of privacy
when they found an opening in the shrubbery outside the defendant's rural home, and used
binoculars and a telephoto lens to peer into a greenhouse attached to the home); Wheeler v.
State, 659 S.W.2d 381, 390 (Tex. Crim. App. 1982) (holding that the use of a 600mm
telescope to peer through five-inch louvered opening in opaque greenhouse from a
neighboring property about 100 yards away constituted a search where defendant lived in
remote, rural area and police made "concerted effort to view what had tenaciously been
protected as private"); cf. United States v. Taborda, 635 F.2d 131, 139 (2d Cir. 1980) ("We
conclude that observation of objects and activities inside a person's home by unenhanced
vision from a location where the observer may properly be does not impair a legitimate
expectation of privacy. However, any enhanced viewing of the interior of a home does
impair a legitimate expectation of privacy and encounters the Fourth Amendment's warrant
requirement, unless circumstances create a traditional exception to that requirement."). But
see State v. Citta, 625 A.2d 1162, 1163 (N.J. Super. Ct. 1990) ("Is the warrantless use of
binoculars by a police officer to observe objects not visible to the naked eye an unreasonable
search under the Fourth Amendment to the U.S. Constitution? We hold it is not.").
- 30 - 2675
----------------------- Page 31-----------------------
84
than the corresponding provisions of the Fourth Amendment. As we explained in
Brown v. State, Alaska courts have given a broader interpretation to our state's search
and seizure clause "when we were convinced that the United States Supreme Court's
interpretation of the Fourth Amendment 'fails to adequately safeguard our citizens' right
to privacy, . . . fails to adequately protect citizens from unwarranted government
intrusion, and . . . unjustifiably reduces the incentive of police officers to honor citizens'
85
constitutional rights.'"
This is one of those situations.
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
84 Brown v. State, 182 P.3d 624, 633 & n.13 (Alaska App. 2008) (collecting cases); see,
e.g., Beltz v. State, 221 P.3d 328, 332-35 (Alaska 2009) (concluding, contrary to federal law,
that Alaskans have some reasonable expectation of privacy in garbage set out for routine
collection on or adjacent to a public street); State v. Daniel, 589 P.2d 408, 417 (Alaska 1979)
(holding that while the police may, upon impounding a vehicle, conduct an inventory to
catalog all articles of value in the vehicle, "a warrantless inventory search of [any] closed,
locked or sealed luggage, containers, or packages contained within a vehicle is unreasonable
and thus an unconstitutional search" under Article I, Section 14 of the Alaska Constitution);
State v. Glass, 583 P.2d 872, 879 (Alaska 1978) (holding that "Alaska's privacy amendment
prohibits the secret electronic monitoring of conversations upon the mere consent of a
participant"); Zehrung v. State, 569 P.2d 189, 199-200 (Alaska 1977) (concluding that, in
contrast to federal law, "a warrantless search incident to an arrest, other than for weapons,
is unreasonable and therefore violative of the Alaska Constitution if the charge on which the
arrest is made is not one [for which] evidence . . . could be concealed on the person"),
modified on reh'g, 573 P.2d 858 (Alaska 1978); Joseph v. State , 145 P.3d 595, 596, 605
(Alaska App. 2006) (refusing to follow California v. Hodari D., 499 U.S. 621 (1991), where
the Supreme Court held that the exclusionary rule does not apply to evidence obtained by
police "while a person is fleeing from an impending unlawful detention").
85 Brown, 182 P.3d at 633 (alterations in original) (quoting Joseph , 145 P.3d at 605).
- 31 - 2675
----------------------- Page 32-----------------------
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.
Conclusion
The judgment of the superior court is REVERSED.
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