- Associated Press - Tuesday, January 21, 2014

ALBUQUERQUE, N.M. (AP) - A police search that found 14 marijuana plants on a man’s property in a remote area of northern New Mexico violated his privacy rights because authorities didn’t have a warrant to conduct an aerial flyover that prompted the ground search, a court ruled.

The state Court of Appeals ruling cites prior New Mexico court decisions and says privacy protections apply to targeted, warrantless police aerial surveillance, the Albuquerque Journal (https://bit.ly/1bfKfIk ) reported Tuesday.

The home of Norman Davis in the Carson area of Taos County was checked during a 2006 joint operation of New Mexico State Police, National Guard and state Game and Fish. Authorities were looking for pot-growing operations.

A search was conducted with Davis‘ reluctant consent after a spotter in a helicopter saw vegetation in Davis‘ greenhouse and plants outside.

Davis, 78, was charged with possession of 8 ounces or more of marijuana, a fourth-degree felony, and possession of drug paraphernalia. Davis entered a conditional plea whereby his record was cleared after he had no law violations for a year.

The New Mexico Supreme Court and the state Court of Appeals upheld a judge’s ruling that officers didn’t coerce Davis into signing his consent for the search, but the case returned to the Court of Appeals to consider other legal issues.

A Jan. 14 ruling by a three-judge panel said the flyover didn’t violate Davis‘ protections under the federal Fourth Amendment because it was conducted in navigable air space and didn’t interfere with Davis‘ normal use of his property.

However, the ruling said the New Mexico Constitution provides greater protections against unreasonable search and seizures, and that the aerial surveillance effectively was a search that requires a warrant.

“The evidence suggesting that (the) defendant was growing marijuana in his greenhouse could not have been obtained without aerial surveillance unless the agents physically invaded the greenhouse,” Judge Cynthia Fry wrote for the three-judge panel. “Consequently, the helicopter surveillance of defendant’s property constituted a search requiring probable cause and a warrant.”

Emmanuel Gutierrez, a state police spokesman, told The Associated Press on Tuesday that he could not immediately comment on the ruling.

The state attorney general’s office did not return a message seeking comment on whether the ruling would affect the way law enforcement cracks down on clandestine growing operations.

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