Oct 032010
 October 3, 2010  Posted by  Court, Surveillance

An editorial in today’s Foster’s Daily Democrat addresses overhead surveillance:

At first blush there should be little sympathy for a Center Barnstead man whose alleged marijuana crop was spotted by a Massachusetts Air National Guard helicopter.

Mark Sisti, the attorney for Douglass Darrell, 57, is seeking to have the evidence thrown out of court because of an improperly granted search warrant.

Sisti argues his client was “targeted” in a random marijuana eradication aerial reconnaissance flight, during which State Police allegedly discovered about 10 marijuana plants growing behind a rock wall.

Obviously, County Attorney Jim Carroll disagrees.

Before readers form an opinion, remove the fact that Darrell’s case alleges illegal activities. Do public agencies have the right to fly over your property looking — randomly or otherwise — for anything that might pique their interest?

A recent case in Riverhead, N.Y., had the town using Google Earth to peer into backyards in search of swimming pools built without proper permits. As of early August the effort had netted the town $75,000.

Think for a moment about any other activities that might go on in the up-until-now privacy of your own backyard.

This is not the first time the courts have had to wrestle with privacy versus the public good. But generally the courts have recognized a right of privacy on private property. This is why police are required to have probable cause to secure a search warrant.

One of the questions raised by the Darrell case is whether police can randomly go trolling for probable cause.

The facts in the Darrell case seem to indicate that is what the State Police were doing, not that they had information before the random aerial reconnaissance that led them to the plants behind a rock wall.

Whichever way this case goes at trial, it is one the state Supreme Court needs to weigh in on to make sure there is a proper balance between individual rights and public safety.

In the Riverhead, New York case, the town claimed that it was perfectly legal to use fly-overs and Google Earth to spot violators. They’ve since stopped the practice due to public outcry when their practice was revealed in a media story, but they maintain that they were on firm legal ground. But what have the courts held about aerial surveillance of private property?

As I understand it as a non-lawyer, a backyard is generally considered “curtilage” which might trigger Fourth Amendment protections. But is a flyover of a yard a “search” under the Fourth Amendment? In California v. Carifalo, the Supreme Court held that such aerial surveillance did not violate Fourth Amendment protections because anyone could fly over backyards, planes flying low would see what goes on in backyards, and hence, individuals really have no reasonable expectation in these days of aircraft. Years later, in Kyllo, the Supreme Court suggested that aerial surveillance might be a Fourth Amendment violation if it revealed “intimate details.”

But can there be any reasonable expectation of privacy that society would recognize for engaging in an illegal activity like growing marijuana in your backyard? I would think not, but then, I’m not a lawyer.

Paging Fourth Amendment lawyers to Aisle 4…..

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