Whether aerial (helicopter) surveillance constituted a search under the New Mexico constitution.
The New Mexico Supreme Court reversed a criminal conviction and affirmed a decision by the Court of Appeals in State v. Davis, a case concerning the constitutionality of warrantless aerial surveillance. In Davis, police used an Army National Guard helicopter to conduct aerial surveillance over the defendant’s yard (the officers spotted vegetation and subsequently raided his home). The lower court held that the New Mexico Constitution does not permit warrantless aerial surveillance of an individual’s home and curtilage, but found that the Fourth Amendment does not protect against such surveillance. The New Mexico Supreme Court ruled on October 19, 2015, that the officers violated the defendant’s Fourth Amendment rights by conducting aerial surveillance and interfering with his house and property. Specifically, the court found that “prolonged hovering close enough to the ground to cause interference with Davis’ property transformed this surveillance from a lawful observation of an area left open to public view to an unconstitutional intrusion into Davis’ expectation of privacy.” In a concurring opinion, Justice Chavez argued that there should be a bright-line rule against such surveillance under the New Mexico Constitution that is “coextensive with the scope of his or her reasonable expectation of privacy from ground surveillance.”
The case arises out of a multi-agency law enforcement operation to identify “marijuana plantations” in Taos County, New Mexico using a combination of aerial (helicopter) surveillance and ground agents. After an Army National Guard helicopter spotted “vegetation” in Davis’ backyard and greenhouse (i.e., in his home and curtilage), a number of heavily armed law enforcement agents and vehicles arrived on Davis’ property, supported by the still-hovering helicopter. Despite numerous indicia of coercion, Davis ultimately allowed law enforcement to search his property, where they found marijuana plants and drug paraphernalia. Davis was indicted in New Mexico state court for possession of marijuana and possession of drug paraphernalia.
Davis’ Challenge to the Evidence Obtained as a Result of Aerial Surveillance
Davis filed a motion to suppress the evidence arguing that there was not consent to search his property and that the aerial (helicopter) surveillance violated both federal and state constitutions. The district court denied the motion to dismiss on both grounds, and Davis appealed.
In Davis I, the New Mexico Court of Appeals reversed and remanded solely on the question of consent, finding that Davis’ consent was given under duress and coercion. The State appealed. In Davis II, the New Mexico Supreme Court reversed and remanded to the New Mexico Court of Appeals, finding that Davis voluntarily consented to the search. Most recently, in Davis III, the New Mexico Court of Appeals reversed the district court’s denial of Davis’ motion to suppress, holding: (1) the aerial surveillance of Davis’ property did not constitute a search under established Fourth Amendment precedent, and (2) the aerial surveillance does constitute a search that requires a warrant of a valid exception to the warrant requirement under New Mexico law.
The New Mexico Court of Appeals found that the aerial surveillance constituted a search under Article II, Section 10 of the New Mexico Constitution because this section is “consistently interpreted [by the New Mexico Supreme Court] as providing greater privacy protections than the Fourth Amendment.” The Court reasoned that aerial surveillance constitutes a search when law enforcement intrudes a “protected area, such as a home or its curtilage,” with the purpose of obtaining information that “could not otherwise be obtained.” The Court also found Kyllo v. United States to be persuasive in concluding that this situation constituted a search, drawing inferences between the heat detection in Kyllo and the aerial surveillance in Davis.
EPIC seeks to preserve Fourth Amendment privacy protections in light of the use of advanced surveillance technologies. State v. Davis is especially significant and relevant to EPIC’s mission because of its potential impact on the use of increasingly sophisticated unmanned aerial surveillance technologies. As an expert on both constitutional privacy rights and advanced surveillance technologies, EPIC is uniquely qualified to support the argument for aerial privacy protections.
This case is also related to EPIC’s prior work. EPIC frequently files amicus briefs in state and federal courts on important Fourth Amendment issues related to new technologies. Most recently, EPIC filed an amicus brief in Riley v. California, which was cited in the Court’s majority opinion. EPIC argued in its brief that: (1) U.S. consumers are dependent on modern cell phones for a wide range of personal and business activity; (2) modern communications providers store sensitive personal information on remote servers, accessible to authorized users with cell phones, tablets, and other devices; and (3) law enforcement can easily mitigate the risk of cell phone data loss pending a judicial determination of probable cause. The Supreme Court held in a unanimous decision that police must obtain a warrant to search a cell phone that is seized pursuant to a lawful arrest. The Court’s decision in Riley emphasized the impact of new technologies on individual privacy interests.
EPIC also filed an amicus brief in Florida v. Harris, arguing that the use of advanced investigative techniques raises important new privacy considerations that should inform the Court’s Fourth Amendment analysis. Specifically, EPIC’s brief argued (1) that the government’s burden of reliably establishing probable cause is essential to the preservation of electronic privacy; (2) that a probable cause finding under the Fourth Amendment should be based on reliable evidence; and (3) new investigative techniques should be used based on research, testing, and data indicating reliability.
EPIC has also advocated strongly in favor of comprehensive privacy protections for the use of drones or unmanned aerial vehicles (“UAVs “). EPIC recently issued a new Spotlight on Surveillance report, exploring the privacy and civil liberties implications of domestic drone use. Domestic use of drones by the government and private citizens has increased substantially over the past several years, yet it remains largely unregulated with not privacy restrictions at the federal level and only a patchwork of laws at the state and local levels. EPIC notes that while the capacity to perform aerial surveillance is not new, the economics of aerial surveillance have changed dramatically. Low-cost drones, coupled with leaps in camera technology and cheap data storage, create the capacity for pervasive and indiscriminate surveillance. EPIC made a number of recommendations to further the goal of protection of privacy:
- Legislation should be passed to require a warrant for law enforcement’s use of drone surveillance.
- Federal, state, and local agencies (law enforcement of otherwise) must be transparent and held accountable for their domestic use of drones.
- Courts must adapt constitutional jurisprudence to properly address modern technology, particularly where people have an expectation of privacy or at least an expectation that they will not be subject to covert observation and recording.
- Lawmakers should be cognizant of changes in technology and must carefully tailor laws to protect individuals’ dignity, autonomy, and privacy.
EPIC has been tracking the development of drone technology since its 2005 Spotlight on Surveillance report. In February 2012, EPIC led a coalition of more than one hundred members of the public and consumer rights, human rights, technology, and civil liberties organizations in petitioning the Federal Aviation Administration (“FAA”) to conduct a rulemaking. [In response, the FAA published a notice of proposed privacy policies to govern the operation of drones in the six test sites. EPIC submitted comments recommending that:
- All authorized drone operators be listed in a public database.
- Test site operators comply with Fair Information Practices.
- The FAA require drone operators to disclose data collection and minimization practices.
- Drone operators be subject to independent auditing to ensure compliance with represented privacy policies.
EPIC also testified in front of the House Subcommittee on Oversight, Investigations, and Management in July 2012, stating “there are substantial legal and constitutional issues involved in the deployment of aerial drones by federal agencies that need to be addressed.”
New Mexico Supreme Court
- Opinion (Oct. 19, 2015)
- Merits Briefs
- Amicus Briefs in Support of Davis
- State of New Mexico Reply Brief
Court of Appeals of New Mexico (No. 2014-NMCA-042)
- Opinion Reversing Denial of Davis’ Motion to Suppress (January 14, 2014)
Eighth Judicial District Court of New Mexico (No. CR 2006-168)
- M. Ryan Calo, Robots and Privacy, in Robot Ethics: The Ethical and Social Implications of Robotics (Patrick Lin, George Bekey, and Keith Abney, eds.) (2014)
- M. Ryan Calo, “The Drone as Privacy Catalyst,” 64 Stan. L. Rev. Online 29 (Dec. 12, 2011)
- Domestic Drone Information Center
- EPIC: Riley v. California Amicus Brief (March 10, 2014)
- EPIC: Florida v. Harris Amicus Brief (August 31, 2012)
- EPIC: Spotlight on Surveillance – DRONES: Eyes in the Sky (October 2014)
- EPIC: APA Petition to the FAA (February 24, 2012)
- EPIC: Spotlight on Surveillance – Unmanned Planes Offer New Opportunities for Clandestine Government Tracking (August 2005)
- EPIC: Comments on “Unmanned Aircraft System Test Sites” (May 8, 2012)
- EPIC: Testimony on “Using Unmanned Aerial Systems Within the Homeland: Security Game Changer?” (July 19, 2012)
- EPIC: Testimony on “Impact of Domestic Use of Drone Technology on Privacy and Constitutional Rights of All Americans (October 25, 2012)