- Associated Press - Monday, October 19, 2015

ALBUQUERQUE, N.M. (AP) - The New Mexico Supreme Court ruled Monday that a flyover of a Taos County man’s home during a state police investigation into marijuana-growing operations amounted to a warrantless search of his property and violated his constitutional rights.

The decision, nearly a decade after state police seized 14 marijuana plants from Norman Davis’ northern New Mexico property, overturns an appeals court ruling that found the aerial surveillance was valid under the Fourth Amendment, which prohibits unreasonable searches and seizures.

The state Attorney General’s office planned to analyze the 70-page decision in the coming weeks to determine whether it would seek a review from the U.S. Supreme Court, said spokesman James Hallinan said.

“We believe helicopter operations remain an important tool in the detection and apprehension of drug traffickers,” he said.

It was not immediately clear how the decision could affect aerial surveillance for future law enforcement investigations in the state.

Hallinan noted the court specifically declined to provide guidance for new technologies such as drones and said the ruling appeared limited to the facts surrounding the 2006 helicopter search near Davis’ home.

In Davis’ case, the aerial surveillance of his property from a National Guard helicopter prompted a ground search that turned up pot plants in his greenhouse. The structure had been covered with opaque plastic, and photographs taken by state police from the helicopter didn’t support arguments that plants were pressed up against the ceiling, which would make them visible from the aircraft, according to the ruling.

No photographs of the greenhouse were taken from the helicopter.

“In this case, Davis did take affirmative steps to exhibit an expectation of privacy from ground level surveillance. He fully enclosed his property with ground level ‘fencing,’ using a combination of vegetation and artificial devices,” Justice Richard Bosson wrote.

Based on testimony of Davis’ neighbors, the ruling also found that the helicopter appeared to have hovered too close to the property as it kicked up dust and debris. In an audio recording taken as a sergeant spoke to Davis, a helicopter can also be heard hovering nearby, according to the ruling.

Authorities said the ground search was conducted with the reluctant consent of Davis, now 80.

A request for comment from New Mexico State Police was not immediately returned.

New Mexico Assistant Attorney General Martha Anne Kelly said during a hearing earlier this year that officers did not initially enter Davis’ home for the ground search until he consented.

The ruling written by outgoing Bosson said the decision reverses Davis’ prior conviction for possession of marijuana. In 2007, Davis had entered a conditional plea whereby his record was cleared after he had no law violations for a year.

A paraphernalia charge against him was dismissed.

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