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Drugs Found in Scary Chopper Search Tossed

(CN) - Overturning a drug conviction that stemmed from a "terrifying" helicopter search, the New Mexico Supreme Court refused to speculate about drone searches future generations might encounter.

Ultra-quiet drones had apparently been on the mind of the New Mexico Court of Appeals when it recommended that the supremes "move away from an intrusion analysis" while assessing the case, according to the Oct. 19 ruling.

The state Supreme Court demurred the invitation and threw out Norman Davis' conviction of marijuana possession.

"Because this case only involves surveillance by helicopters, technology that has been with us for nearly 80 years, we find it unnecessary to speculate about problems - and futuristic technology - that may or may not arise in 13 the future," Justice Richard Bosson wrote for the unanimous court.

Davis had pleaded guilty to the charge in question after his efforts to toss evidence against him proved unsuccessful.

He was arrested as part of Operation Yerba Buena, a coordinated law enforcement effort that consisted of two helicopters flying over rural tracts of land in 2006.

After pilots identified eight properties that contained possible marijuana plantations, they directed state police on the ground to their locations.

Davis went outside when he heard the helicopter making "a considerable racket" over his property.

With the helicopter hovering 50 feet above his head, "kicking up dust and debris," Davis admitted to officers that he was growing marijuana and allowed them to search his greenhouse where they found 14 marijuana plants.

Neighbors testified that the helicopters scattered trash, caused property damage and frightened birds on their properties.

Though the trial court characterized some of these comments as "overly dramatic and anti-police state rhetoric," it found merit in testimony that "the police swooped in as if they were in a state of war ... (which) can be terrifying and intimidating to most normal persons."

Citing Davis' consent to the search, however, the district court denied his motion to suppress the evidence. Davis pleaded guilty but reserved the right to appeal.

In finding Monday that the aerial surveillance amounted to a warrantless search of Davis' property, the state Supreme Court tossed his conviction under the Fourth Amendment.

"When low-flying aerial activity leads to more than just observation and actually causes an unreasonable intrusion on the ground - most commonly from an unreasonable amount of wind, dust, broken objects, noise and sheer panic - then at some points courts are compelled to step in and require a warrant before law enforcement engages in such activity," Bosson wrote.

Justice Edward Chavez noted in a specially concurring opinion that the New Mexico Constitution provides greater protection that its federal counterpart against the government's aerial surveillance.

"I would hold that in New Mexico, when a property owner takes steps to exhibit a subjective expectation of privacy from ground-level observations into the curtilage of his or her property, society would recognize the owner's subjective expectation of privacy from aerial observations as reasonable," Chavez wrote.

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