State v. Davis
| Citation | 321 P.3d 955 |
| Decision Date | 14 March 2014 |
| Docket Number | No. 28,219.,28,219. |
| Parties | STATE of New Mexico, Plaintiff–Appellee, v. Norman DAVIS, Defendant–Appellant. |
| Court | Court of Appeals of New Mexico |
OPINION TEXT STARTS HERE
Gary K. King, Attorney General, Santa Fe, NM, M. Anne Kelly, Assistant Attorney General, Albuquerque, NM, for Appellee.
Jorge A. Alvarado, Chief Public Defender, Allison H. Jaramillo, Assistant Appellate Defender, Santa Fe, NM, for Appellant.
{1} This case is before us on remand from our Supreme Court. See State v. Davis (Davis II), 2013–NMSC–028, ¶ 35, 304 P.3d 10. The Supreme Court upheld the district court's determination that Defendant voluntarily consented to a search of his property. Id. ¶ 2. On remand, we conclude that Article II, Section 10 of the New Mexico Constitution provides greater protection than the Fourth Amendment to the United States Constitution when aerial surveillance of a person's home is involved. We further conclude that, under the New Mexico Constitution, the aerial surveillance in this case constituted a search requiring a warrant or an exception to the warrant requirement. Although Defendant consented to a physical search of the curtilage after the surveillance search, there was insufficient attenuation between the warrantless aerial search and Defendant's consent. Accordingly, we reverse the district court's denial of Defendant's motion to suppress the marijuana and other evidence seized during the search.
{2} The New Mexico State Police, in conjunction with the New Mexico National Guard, undertook a plan called “Operation Yerba Buena” in order to locate marijuana plantations in Taos County, New Mexico. During the operation, a spotter in a helicopter alerted a ground team “to the presence of a greenhouse and vegetation in Defendant's backyard.” Davis II, 2013–NMSC–028, ¶ 3, 304 P.3d 10. One of the ground team members, Officer William Merrell, made contact with Defendant, identified himself, and said that “the helicopter [was] looking for marijuana plants and they believe they've located some at your residence.” He then asked Defendant for permission to search the residence, and our Supreme Court held that Defendant gave voluntary consent. Davis II, 2013–NMSC–028, ¶ 34, 304 P.3d 10.
{3} Officers searched Defendant's property and found marijuana and drug paraphernalia. Defendant was indicted for possession of marijuana and possession of drug paraphernalia. Defendant sought suppression of the evidence seized during the search, arguing, among other things, that the helicopter surveillance of his property violated the federal and state constitutions. The district court denied Defendant's motion, determining that the helicopter surveillance was “just barely permissible.” Defendant entered a conditional guilty plea and appealed the denial of his motion to suppress. On appeal, this Court reversed the district court's denial of the suppression motion on the basis that Defendant's consent was the result of duress. See State v. Davis (Davis I), 2011–NMCA–102, ¶ 13, 150 N.M. 611, 263 P.3d 953,rev'd,2013–NMSC–028, 304 P.3d 10. The Supreme Court reversed this determination and remanded the case with instructions for this Court to consider Defendant's remaining arguments.
{4} On remand, we address the following arguments raised by Defendant: (1) whether the aerial surveillance of Defendant's property prior to the consensual physical search of his property violated the Fourth Amendment to the United States Constitution and Article II, Section 10 of the New Mexico Constitution; and (2) whether Defendant's consent to the search of his property was purged of the taint of the alleged constitutional violation arising from the aerial surveillance. Because of our disposition, it is not necessary for us to consider whether the district court improperly denied Defendant's motion requesting that the court visit his property during the suppression proceedings. We address each argument in turn.
{5} “The reasonableness of a search or seizure under the Fourth Amendmentand under Article II, Section 10 of the New Mexico Constitution presents a mixed question of law and fact, which we review de novo.” State v. Leyva, 2011–NMSC–009, ¶ 30, 149 N.M. 435, 250 P.3d 861. In reaching the ultimate issue of reasonableness, we look “for substantial evidence to support the trial court's factual findings, with deference to the district court's review of the testimony and other evidence presented.” Id.
{6} We first consider Defendant's argument that the aerial surveillance of his property prior to the consensual search of his property violated the Fourth Amendment to the United States Constitution and Article II, Section 10 of the New Mexico Constitution. “Because both the United States and the New Mexico Constitutions provide overlapping protections against unreasonable searches and seizures, we apply our interstitial approach.” Ketelson, 2011–NMSC–023, ¶ 10, 150 N.M. 137, 257 P.3d 957 (internal quotation marks and citation omitted). Under the interstitial approach, “we first consider whether the right being asserted is protected under the federal constitution.” Id. (internal quotation marks and citation omitted). “If the right is protected by the federal constitution, then the state constitutional claim is not reached.” Id.; see also State v. Jean–Paul, 2013–NMCA–032, ¶ 5, 295 P.3d 1072 (). If the right is not protected by the federal constitution, “we next consider whether the New Mexico Constitution provides broader protection, and we may diverge from federal precedent for three reasons: a flawed federal analysis, structural differences between state and federal government, or distinctive state characteristics.” Ketelson, 2011–NMSC–023, ¶ 10, 150 N.M. 137, 257 P.3d 957 (internal quotation marks and citation omitted).
{7} We begin with Defendant's argument that the aerial surveillance of his property violated the Fourth Amendment to the United States Constitution. The Fourth Amendment guarantees “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const. amend. IV. Since the United States Supreme Court's decision in Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), “[t]he touchstone of [a] search and seizure analysis is whether a person has a constitutionally recognized expectation of privacy.” State v. Ryon, 2005–NMSC–005, ¶ 23, 137 N.M. 174, 108 P.3d 1032. In the specific context of the constitutionality of an aerial surveillance operation, the question boils down to whether such an operation constitutes a search under the Fourth Amendment. As noted by a leading commentator, “[i]f the individual does not have a protected interest, actions that might otherwise be labeled a search will not implicate the Fourth Amendment.” Thomas K. Clancy, What is a “Search” Within the Meaning of the Fourth Amendment?, 70 Alb. L.Rev. 1, at 2 (2006). Thus, in order to label the aerial surveillance in the present case a search, we must first conclude that Defendant had a protected interest. In considering this question, the United States Supreme Court has applied the two-prong analysis of privacy expectations set forth in Katz, where a court considers first whether the defendant has an actual or subjective expectation of privacy and, second, whether that expectation is one that society is prepared to recognize as reasonable. See Katz, 389 U.S. at 361, 88 S.Ct. 507 (Harlan, J., concurring); see also California v. Ciraolo, 476 U.S. 207, 211–15, 106 S.Ct. 1809, 90 L.Ed.2d 210 (1986) ().
{8} The two leading United States Supreme Court cases establish that a defendant does not have a protected interest under the Fourth Amendment if an aerial surveillance of a home and its curtilage 1 is conducted from a public vantage point and if it reveals something that a person has not protected from aerial scrutiny. In the first case, Ciraolo, police received an anonymous tip that the respondent was growing marijuana in his backyard, which was enclosed by a six-foot outer fence and a ten-foot inner fence. 476 U.S. at 209, 106 S.Ct. 1809. When officers could not see what was in the yard from ground level, they flew a plane in navigable air space over the house at an altitude of 1000 feet, and they were able to observe marijuana plants in the respondent's yard. Id. The Court concluded that because the police observations “took place within public navigable air[ ]space in a physically nonintrusive manner ..., [the] respondent's expectation that his garden was protected from such observation [was] unreasonable and [was] not an expectation that society is prepared to honor.” Id. at 213–14, 106 S.Ct. 1809 (citation omitted).
{9} In the second case, Florida v. Riley, the contents of the respondent's greenhouse were screened from ground level observation by structures, trees, and shrubs, but some of the greenhouse's roofing panels were either translucent or missing. 488 U.S. 445, 448, 109 S.Ct. 693, 102 L.Ed.2d 835 (1989). An officer was able to see what he thought was marijuana through openings in the roof when he circled the greenhouse in a helicopter at an altitude of 400 feet. Id. A plurality of the Court held that the respondent “could not reasonably have expected that his greenhouse was protected from public or...
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