State v. Davis, S–1–SC–34548.

CourtSupreme Court of New Mexico
Citation360 P.3d 1161
Docket NumberNo. S–1–SC–34548.,S–1–SC–34548.
Parties STATE of New Mexico, Plaintiff–Petitioner, v. Norman DAVIS, Defendant–Respondent.
Decision Date19 October 2015

360 P.3d 1161

STATE of New Mexico, Plaintiff–Petitioner,
v.
Norman DAVIS, Defendant–Respondent.

No. S–1–SC–34548.

Supreme Court of New Mexico.

Oct. 19, 2015.


360 P.3d 1163

Hector H. Balderas, Attorney General, Martha Anne Kelly, Assistant Attorney General, Santa Fe, NM, for Petitioner.

Jorge A. Alvarado, Chief Public Defender, Allison H. Jaramillo, Assistant Appellate Defender, Santa Fe, NM, for Respondent.

Jones, Snead, Wertheim & Clifford, P.A., Jerry Todd Wertheim, Santa Fe, NM, Marc Rotenberg, Alan J. Butler Jeramie Scott, Washington, D.C., for Amicus Curiae Electronic Privacy Information Center.

OPINION

BOSSON, Justice.

{1} Defendant Norman Davis was convicted of possession of marijuana after New Mexico State Police officers consensually searched his greenhouse and seized 14 marijuana plants. That search was the result of "Operation Yerba Buena 2006," a comprehensive aerial surveillance of Davis' property and the surrounding area conducted by a coordinated law enforcement effort that allegedly discovered marijuana plants growing on Davis' property. We decide whether that aerial surveillance, and the manner in which it was conducted, amounted to a warrantless search of Davis' property contrary to rights secured to him under the Fourth Amendment to the U.S. Constitution. Concluding that his federal constitutional rights were violated in this instance, we reverse the opinion of the Court of Appeals to the contrary as well as Davis' conviction below.

BACKGROUND

{2} Over a period of time during 2005 and 2006, the New Mexico State Police received several reports that residents were growing marijuana plants throughout rural areas of Taos County, New Mexico. The informants, however, were unable or unwilling to provide the police with specific locations where marijuana was growing due to the remoteness of the area and fear of retaliation. In investigating the reports, the New Mexico State Police, Region Three narcotic agents, and the New Mexico National Guard organized Operation Yerba Buena, described as "a collaborative effort in the identification of marijuana plantations in Taos County with the use of two Army National Guard OH 58 Jet Ranger helicopters."

{3} Prior to the execution of Operation Yerba Buena, the State Police developed an operation plan to provide a common working framework for everyone participating in the operation and to ensure that all participating agencies followed State Police policies and procedures. The plan divided the search areas of Carson Estates and Twin Peaks—vast rural tracts in Taos County—between two separate search teams. Each team consisted of an Army National Guard helicopter with an observer and a ground team comprised of individuals from various law enforcement agencies. All ground team officers were required to carry standard issue State Police tape recorders to be used during any "interviews/arrests, [and] during [any] contacts from which there are reasons to believe a complaint could result in an arrest. " (Emphasis in original.)

360 P.3d 1164

{4} During the operation, the helicopter observers were instructed to fly over the assigned portions of the search area to look for potential "marijuana plantations." Once an observer spotted marijuana plants, he was instructed to contact the corresponding ground team staged at a pre-identified area and guide the team to the location of the plants. The ground team would then approach and make contact with the particular house to confirm or deny the existence of marijuana. The helicopter was to remain in the vicinity to provide cover and safety to its ground team.

{5} On August 23, 2006, at approximately 9:00 a.m., the helicopters departed the Taos Regional Airport. The total operation lasted approximately ten hours. During that time, the helicopter observers identified possible marijuana plantations at eight properties and directed the ground teams accordingly.

The Davis residence

{6} Observer Travis Skinner, upon identifying a potential marijuana plantation, directed his ground team—five vehicles containing at least six armed law enforcement officers—to the Davis residence. Davis' property was enclosed from ground level view by fences that ran along the property line, several large trees and bushes, and a "shade screen." However, when looking down on Davis' property from the helicopter, Sergeant Skinner was able to see and relay to the ground team the presence of a greenhouse as well as what appeared to be marijuana plants located at the back of Davis' property near the house. Sergeant Skinner also informed the team that there were dogs on the property.

{7} Davis stated he was "in bed and not feeling very well when [he] heard a helicopter hovering very low, right on top of [his] house." He stated that the helicopter was making "a considerable racket" and that when the sound did not go away, he went outside to see "what ... was going on." He observed the helicopter hovering approximately 50 feet above his head "kicking up dust and debris that was swirling all around."

{8} Sergeant Bill Merrell of the New Mexico State Police confronted Davis near Davis' front door. Other officers were present on either side of his driveway. Sergeant Merrell, as heard on the tape recording, approached Davis, identified himself, and said "it appears that the helicopter ... [was] looking for marijuana plants and they believe they've located some at your residence." Sergeant Merrell asked Davis for permission to search the residence for the marijuana plants seen by the observer. The noise from the helicopter was audible in the background of Sergeant Merrell's recording.

{9} In response to Sergeant Merrell's accusation, Davis admitted that he was growing marijuana in his greenhouse and allowed the officers to search his property. Davis signed a written consent authorizing a complete search of his greenhouse and residence. This Court previously upheld the validity of Davis' consent. See State v. Davis, 2013–NMSC–028, ¶ 35, 304 P.3d 10 (Davis II ). The officers seized 14 marijuana plants from Davis' greenhouse. Neither the flyover of Davis' property nor the resulting search was accompanied by a search warrant.

{10} Several nearby residents characterized the helicopter flyovers during Operation Yerba Buena as terrifying and highly disruptive. Kelly Rayburn watched a helicopter fly around his house about "half a dozen times." Rayburn said the helicopter flew so close to his roof that the downdraft lifted off a solar panel and scattered trash all over his property. Victoria Lindsay observed a helicopter sweeping back and forth over her property, sending debris and personal property all over the yard. Lindsay also observed the helicopter hovering very close to the ground at a neighbor's greenhouse. Merilee Lighty observed a helicopter flying over her property for about 15 minutes. She said it was so close that the downdraft affected her trees and her bushes.

{11} William Hecox did not notice any real dust flying at the time of the flyover, but after the helicopter left he noticed that one of his four-by-four beams was broken at the ground and another one was broken three feet up from the ground. Hecox specifically stated that the beams were not broken prior to the helicopter flying over. He also stated that the noise and effect from the helicopter

360 P.3d 1165

upset his turkey and fowl and caused them to "squawk[ ] and run[ ] around."

Suppression hearing

{12} A grand jury indicted Davis on possession of marijuana contrary to NMSA 1978, Section 30–31–23(A) and (B)(3) (2005), and possession of drug paraphernalia 4 contrary to NMSA 1978, Section 30–31–25(A) (2001), based on the items found during Operation Yerba Buena. Davis filed two suppression motions, arguing that 1) the helicopter surveillance violated his constitutional right to be free from unreasonable searches, and 2) his consent for the subsequent search of his property was involuntary.

{13} Davis requested that the suppression hearing be consolidated with a suppression hearing in a separate case involving Steve Hodges, another Carson resident also charged with possession of marijuana seized from his property as part of Operation Yerba Buena. Although each defendant made additional arguments for suppression (invalid warrant by Hodges and invalid consent by Davis), both presented a similar challenge to the constitutionality of the helicopter surveillance of their property. The district court granted Davis' consolidation request and held an evidentiary hearing on the motions to suppress.

{14} Several Carson residents testified during the hearing, as previously discussed in this opinion. Some residents testified that the surveillance felt like an invasion with the helicopter hovering so close to the ground that the rotor wash and ground effects kicked up dust and blew debris around their property. Others focused their testimony 3 specifically on the noise disruption from the helicopter, stating that they were unable to go outside and work or have a conversation. Still others alleged that the helicopter physically damaged their property, and recounted the damage to the solar panel and...

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5 cases
  • State v. Tapia
    • United States
    • New Mexico Supreme Court
    • February 22, 2018
    ...interest of the government in promoting crime prevention and detection.’ " State v. Davis , 2015-NMSC-034, ¶ 100, 360 P.3d 1161 ( Davis II ) (Chávez, J., specially concurring) (quoting State v. Jason L. , 2000-NMSC-018, ¶ 14, 129 N.M. 119, 2 P.3d 856 ).{47} Application of the three-part fed......
  • United States v. Somme
    • United States
    • U.S. District Court — Virgin Islands
    • September 20, 2022
    ... ... at 211 (10-foot fence ... reflected that respondent “took normal precautions to ... maintain his privacy”); State v. Davis , 360 ... P.3d 1161, 1167 (N.M. 2015) (“affirmative steps to ... exhibit an expectation of privacy [reflected by] ground level ... ...
  • State v. Quiday
    • United States
    • Hawaii Supreme Court
    • November 21, 2017
    ...plants out of view from the public eye, and therefore, evinced a subjective expectation of privacy. State v. Davis, 360 P.3d 1161, 1180 (N.M. 2015) (Chavez, J., concurring) (reasoning that "an individual's subjective expectation of privacy from ground-level surveillance is coextensive with ......
  • United States v. Flavius
    • United States
    • U.S. District Court — Virgin Islands
    • May 28, 2023
    ...Ciraolo, 476 U.S. at 211 (10-foot fence reflected that respondent “took normal precautions to maintain his privacy”); State v. Davis, 360 P.3d 1161, 1167 (N.M. 2015) (“affirmative steps to exhibit an expectation privacy [reflected by] ground level ‘fencing,' using a combination of vegetatio......
  • Request a trial to view additional results
2 books & journal articles
  • Searches of the home
    • United States
    • James Publishing Practical Law Books Suppressing Criminal Evidence Fourth amendment searches and seizures
    • April 1, 2022
    ...U.S. 27 (2007). Other types of surveillance that may be used by law enforcement are low flying helicopters or drones. In State v. Davis , 360 P.3d 1161 (NM 2015), the court suppressed evidence of marijuana plants observed by prolonged low flying helicopters over the defendant’s property. §4......
  • Aerial Trespass and the Fourth Amendment.
    • United States
    • Michigan Law Review Vol. 121 No. 7, May 2023
    • May 1, 2023
    ...333 U.S. 10, 14 (1948) (holding that a warrant must be issued by a "neutral and detached magistrate"). (12.) See eg., State v. Davis, 360 P.3d 1161, 1172 (N.M. 2015) ("[W]e find an unreasonable, unconstitutional search under the U.S. (13.) Katz v. United States, 389 U.S. 347, 360 (1967) (Ha......

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