McKelvey v. State
| Decision Date | 04 September 2020 |
| Docket Number | Court of Appeals No. A-12419 |
| Citation | 474 P.3d 16 |
| Parties | John William MCKELVEY III, Appellant, v. STATE of Alaska, Appellee. |
| Court | Alaska Court of Appeals |
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.*
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 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 from Fairbanks. 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 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 of a felony drug offense).1
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 a critical part of Moore's application for the search 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 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 government. This includes both physical intrusions into constitutionally protected spaces and non-physical intrusions made possible through the use of technology.3
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 as objectively reasonable?4 If both prongs are met — i.e. , if the government's action 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 the curtilage of their home.5 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 this conclusion, and the record supports it.6
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 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 block ground-level observation of the property. Although neither of these cases involved 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.
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...
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