       IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: ______________

Filing Date: January 14, 2014

Docket No. 28,219

STATE OF NEW MEXICO,

       Plaintiff-Appellee,

v.

NORMAN DAVIS,

       Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF TAOS COUNTY
John M. Paternoster, District Judge

Gary K. King, Attorney General
Santa Fe, NM
M. Anne Kelly, Assistant Attorney General
Albuquerque, NM

for Appellee

Jorge A. Alvarado, Chief Public Defender
Allison H. Jaramillo, Assistant Appellate Defender
Santa Fe, NM

for Appellant

                                       OPINION

FRY, Judge.

{1}     This case is before us on remand from our Supreme Court. See State v. Davis (Davis
II), 2013-NMSC-028, ¶ 35, 304 P.3d 10. The Supreme Court upheld the district court’s
determination that Defendant voluntarily consented to a search of his property. Id. ¶ 2. On
remand, we conclude that Article II, Section 10 of the New Mexico Constitution provides
greater protection than the Fourth Amendment to the United States Constitution when aerial
surveillance of a person’s home is involved. We further conclude that, under the New

                                            1
Mexico Constitution, the aerial surveillance in this case constituted a search requiring a
warrant or an exception to the warrant requirement. Although Defendant consented to a
physical search of the curtilage after the surveillance search, there was insufficient
attenuation between the warrantless aerial search and Defendant’s consent. Accordingly,
we reverse the district court’s denial of Defendant’s motion to suppress the marijuana and
other evidence seized during the search.

BACKGROUND

{2}    The New Mexico State Police, in conjunction with the New Mexico National Guard,
undertook a plan called “Operation Yerba Buena” in order to locate marijuana plantations
in Taos County, New Mexico. During the operation, a spotter in a helicopter alerted a
ground team “to the presence of a greenhouse and vegetation in Defendant’s backyard.”
Davis II, 2013-NMSC-028, ¶ 3. One of the ground team members, Officer William Merrell,
made contact with Defendant, identified himself, and said that “the helicopter [was] looking
for marijuana plants and they believe they’ve located some at your residence.” He then
asked Defendant for permission to search the residence, and our Supreme Court held that
Defendant gave voluntary consent. Davis II, 2013-NMSC-028, ¶ 34.

{3}     Officers searched Defendant’s property and found marijuana and drug paraphernalia.
Defendant was indicted for possession of marijuana and possession of drug paraphernalia.
Defendant sought suppression of the evidence seized during the search, arguing, among
other things, that the helicopter surveillance of his property violated the federal and state
constitutions. The district court denied Defendant’s motion, determining that the helicopter
surveillance was “just barely permissible.” Defendant entered a conditional guilty plea and
appealed the denial of his motion to suppress. On appeal, this Court reversed the district
court’s denial of the suppression motion on the basis that Defendant’s consent was the result
of duress. See State v. Davis (Davis I), 2011-NMCA-102, ¶ 13, 150 N.M. 611, 263 P.3d
953, rev’d, 2013-NMSC-028. The Supreme Court reversed this determination and remanded
the case with instructions for this Court to consider Defendant’s remaining arguments.

DISCUSSION

{4}      On remand, we address the following arguments raised by Defendant: (1) whether
the aerial surveillance of Defendant’s property prior to the consensual physical search of his
property violated the Fourth Amendment to the United States Constitution and Article II,
Section 10 of the New Mexico Constitution; and (2) whether Defendant’s consent to the
search of his property was purged of the taint of the alleged constitutional violation arising
from the aerial surveillance. Because of our disposition, it is not necessary for us to consider
whether the district court improperly denied Defendant’s motion requesting that the court
visit his property during the suppression proceedings. We address each argument in turn.

A.      Standard of Review


                                               2
{5}     “The reasonableness of a search or seizure under the Fourth Amendment and under
Article II, Section 10 of the New Mexico Constitution presents a mixed question of law and
fact, which we review de novo.” State v. Leyva, 2011-NMSC-009, ¶ 30, 149 N.M. 435, 250
P.3d 861. In reaching the ultimate issue of reasonableness, we look “for substantial evidence
to support the trial court’s factual findings, with deference to the district court’s review of
the testimony and other evidence presented.” Id.

B.      Whether the Aerial Surveillance of Defendant’s Property Violated the Fourth
        Amendment of the United States Constitution and Article II, Section 10 of the
        New Mexico Constitution

{6}     We first consider Defendant’s argument that the aerial surveillance of his property
prior to the consensual search of his property violated the Fourth Amendment to the United
States Constitution and Article II, Section 10 of the New Mexico Constitution. “Because
both the United States and the New Mexico Constitutions provide overlapping protections
against unreasonable searches and seizures, we apply our interstitial approach.” Ketelson,
2011-NMSC-023, ¶ 10 (internal quotation marks and citation omitted). Under the interstitial
approach, “we first consider whether the right being asserted is protected under the federal
constitution.” Id. (internal quotation marks and citation omitted). “If the right is protected
by the federal constitution, then the state constitutional claim is not reached.” Id.; see also
State v. Jean-Paul, 2013-NMCA-032, ¶ 5, 295 P.3d 1072 (stating that “[u]nder New
Mexico’s interstitial approach to state constitutional interpretation, this Court should only
reach the state constitutional question if the federal constitution does not provide the
protection sought by the party raising the issue”). If the right is not protected by the federal
constitution, “we next consider whether the New Mexico Constitution provides broader
protection, and we may diverge from federal precedent for three reasons: a flawed federal
analysis, structural differences between state and federal government, or distinctive state
characteristics.” Ketelson, 2011-NMSC-023, ¶ 10 (internal quotation marks and citation
omitted).

1.      Fourth Amendment

{7}     We begin with Defendant’s argument that the aerial surveillance of his property
violated the Fourth Amendment to the United States Constitution. The Fourth Amendment
guarantees “[t]he right of the people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures.” U.S. Const. amend. IV. Since the United
States Supreme Court’s decision in Katz v. United States, 389 U.S. 347 (1967), “[t]he
touchstone of [a] search and seizure analysis is whether a person has a constitutionally
recognized expectation of privacy.” State v. Ryon, 2005-NMSC-005, ¶ 23, 137 N.M. 174,
108 P.3d 1032. In the specific context of the constitutionality of an aerial surveillance
operation, the question boils down to whether such an operation constitutes a search under
the Fourth Amendment. As noted by a leading commentator, “[i]f the individual does not
have a protected interest, actions that might otherwise be labeled a search will not implicate
the Fourth Amendment.” Thomas K. Clancy, What is a “Search” Within the Meaning of the

                                               3
Fourth Amendment?, 70 Alb. L. Rev. 1, at 2 (2006). Thus, in order to label the aerial
surveillance in the present case a search, we must first conclude that Defendant had a
protected interest. In considering this question, the United States Supreme Court has applied
the two-prong analysis of privacy expectations set forth in Katz, where a court considers first
whether the defendant has an actual or subjective expectation of privacy and, second,
whether that expectation is one that society is prepared to recognize as reasonable. See Katz,
389 U.S. at 361 (Harlan, J., concurring); see also California v. Ciraolo, 476 U.S. 207, 211-
15 (1986) (applying Katz in addressing whether aerial surveillance of the defendant’s
property was a violation of the Fourth Amendment).

{8}     The two leading United States Supreme Court cases establish that a defendant does
not have a protected interest under the Fourth Amendment if an aerial surveillance of a home
and its curtilage1 is conducted from a public vantage point and if it reveals something that
a person has not protected from aerial scrutiny. In the first case, Ciraolo, police received an
anonymous tip that the respondent was growing marijuana in his backyard, which was
enclosed by a six-foot outer fence and a ten-foot inner fence. 476 U.S. at 209. When
officers could not see what was in the yard from ground level, they flew a plane in navigable
air space over the house at an altitude of 1000 feet, and they were able to observe marijuana
plants in the respondent’s yard. Id. The Court concluded that because the police
observations “took place within public navigable air[]space in a physically nonintrusive
manner . . ., [the] respondent’s expectation that his garden was protected from such
observation [was] unreasonable and [was] not an expectation that society is prepared to
honor.” Id. at 213-14 (citation omitted).

{9}     In the second case, Florida v. Riley, the contents of the respondent’s greenhouse were
screened from ground level observation by structures, trees, and shrubs, but some of the
greenhouse’s roofing panels were either translucent or missing. 488 U.S. 445, 448 (1989).
An officer was able to see what he thought was marijuana through openings in the roof when
he circled the greenhouse in a helicopter at an altitude of 400 feet. Id. A plurality of the
Court held that the respondent “could not reasonably have expected that his greenhouse was
protected from public or official observation” from navigable air space. Id. at 450-51. The
plurality noted that there was no evidence that helicopters flying at 400 feet were rare or that
“the helicopter interfered with [the] respondent’s normal use of the greenhouse or of other
parts of the curtilage.” Id. at 451-52. In addition, “no intimate details connected with the use
of the home or curtilage were observed, and there was no undue noise, and no wind, dust,
or threat of injury.” Id. at 452. Accordingly, “there was no violation of the Fourth
Amendment.” Id.



       1
        “Generally, the curtilage is the enclosed space of the grounds and buildings
immediately surrounding a dwelling house.” State v. Hamilton, 2012-NMCA-115, ¶ 16, 290
P.3d 271 (internal quotation marks and citation omitted). The curtilage enjoys the same
privacy protections of the home itself. Id.

                                               4
{10} These cases teach that an aerial surveillance is not a search for Fourth Amendment
purposes if the objects observed are in open view from a legal vantage point. See 1 Wayne
R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 2.3(g) (5th ed. 2012)
(explaining that under Ciraolo, “it is no search to make a naked-eye observation into the
curtilage from navigable air space”). This is especially true if the surveillance is not unduly
disruptive.

{11} Turning to the present case, the helicopter surveillance passes muster under the
Fourth Amendment. While Defendant testified that the helicopter was hovering about fifty
feet above him and that it was “kicking up dust and debris,” there is nothing in the record
suggesting that this altitude was outside the range of navigable air space, nor is there
evidence that the helicopter interfered with Defendant’s normal use of his residence or
greenhouse. Officer Merrell testified that the plastic cover on Defendant’s greenhouse was
“somewhat clear” and that the plants in the greenhouse were pressed up against the ceiling.2
One of the helicopter spotters testified that, from the air, marijuana looks “real bright green,
more of a lime green, compared to the rest of the vegetation in the area.” Thus, under the
rationale articulated in Ciraolo and Riley, Defendant’s expectation that the contents of his
greenhouse were screened from public aerial view was unreasonable.

2.     Article II, Section 10 of the New Mexico Constitution

{12} Because the Fourth Amendment does not protect Defendant’s subjective expectation
of privacy, we now consider whether the New Mexico Constitution provides greater
protection. See Ketelson, 2011-NMSC-023, ¶ 10 (stating that if an asserted right is not
protected by the federal constitution, “we next consider whether the New Mexico
Constitution provides broader protection”).

{13} At issue in this case is Article II, Section 10 of our state constitution, which our
Supreme Court has consistently interpreted as providing greater privacy protections than the
Fourth Amendment. See Leyva, 2011-NMSC-009, ¶ 51 (“It is well-established that Article
II, Section 10 provides more protection against unreasonable searches and seizures than the
Fourth Amendment.”). “Our Supreme Court has emphasized New Mexico’s strong
preference for warrants in order to preserve the values of privacy and sanctity of the home
that are embodied by this provision.” State v. Granville, 2006-NMCA-098, ¶ 24, 140 N.M.
345, 142 P.3d 933.

{14} With this in mind, we discern two threads of analysis in Ciraolo and Riley that are
inconsistent with our jurisprudence under Article II, Section 10. The first involves the
United States Supreme Court’s focus on the fact that law enforcement personnel in aircraft


       2
         Although the district court found that greenhouses in the area “were constructed of
non-transparent fiberglass, wood[,] and opaque plastic sheeting[,]” the evidence supporting
that finding related to a surveillance target other than Defendant.

                                               5
were no different from passengers in aircraft who could plainly see the marijuana in
question. The second thread involves an emphasis on various factors meant to assess the
intrusiveness of the aerial surveillance.

a.      Airborne Police Are Not the Equivalent of Airborne Members of the Public

{15} With respect to the first aspect of the United States Supreme Court’s analysis, the
Court noted in Ciraolo that “[a]ny member of the public flying in this air[]space who
glanced down could have seen everything that these officers observed.” 476 U.S. at 213-14.
And in Riley, the Court observed that the accused “could not reasonably have expected that
his greenhouse was protected from public or official observation from a helicopter had it
been flying within the navigable air[]space for fixed-wing aircraft.” 488 U.S. at 450-51.

{16} The only New Mexico cases addressing aerial surveillance were decided before our
Supreme Court began interpreting Article II, Section 10 more broadly than the Fourth
Amendment.3 These older cases, decided in 1983, seemingly anticipated the United States
Supreme Court’s analysis in Ciraolo and Riley (decided in 1986 and 1989, respectively) and
assessed the propriety of aerial surveys under the Fourth Amendment in part by considering
what could be seen from the air. See State v. Rogers, 1983-NMCA-115, ¶¶ 2, 7, 100 N.M.
517, 673 P.2d 142 (concluding that the defendant had no reasonable expectation of privacy
“with respect to marijuana plants protruding through holes in his greenhouse roof to the
extent of their visibility from the air”); State v. Bigler, 1983-NMCA-114, ¶ 8, 100 N.M. 515,
673 P.2d 140 (holding that the defendant had no reasonable expectation of privacy in his
marijuana crop “to the extent of visibility from the air”).

{17} In contrast to the rationale stated in these cases, New Mexico cases decided since
Rogers and Bigler have emphasized that “Article II, Section 10, protects citizens from
governmental intrusions, not intrusions from members of the general public.” Granville,
2006-NMCA-098, ¶ 29. As the dissent in Ciraolo observed, there is a “qualitative difference
between police surveillance and other uses made of the air[]space. Members of the public
use the air[]space for travel, business, or pleasure, not for the purpose of observing activities
taking place within residential yards.” 476 U.S. at 224 (Powell, J., dissenting). Because New
Mexico’s post-Rogers/Bigler case law has interpreted Article II, Section 10 more broadly
than the Fourth Amendment, we conclude that police flying over a residence strictly in order
to discover evidence of crime, without a warrant, “does not comport with the distinctive New
Mexico protection against unreasonable searches and seizures.” Garcia, 2009-NMSC-046,
¶ 27.

b.      Intrusiveness Factors Are Not Useful


        3
        See State v. Garcia, 2009-NMSC-046, ¶ 28, 147 N.M. 134, 217 P.3d 1032 (stating
that our Supreme Court diverged from Fourth Amendment analysis for the first time in
1989).

                                               6
{18} As to the second type of analysis under the Fourth Amendment, the Court in Riley
seemingly assessed the intrusiveness of the aerial surveillance when it observed that “there
was no undue noise, and no wind, dust, or threat of injury.” 488 U.S. at 452. And in Rogers,
this Court also evaluated similar factors, such as the “altitude of the aircraft, use of
equipment to enhance the observation, frequency of other flights[,] and intensity of the
surveillance.” 1983-NMCA-115, ¶ 9. The district court in the present case relied heavily on
factors similar to those mentioned in Rogers and Riley when it assessed the propriety of the
helicopter surveillance.

{19} We fail to see how an analysis of intrusiveness factors aids in the determination of
whether an aerial surveillance is a search. The privacy interest protected by Article II,
Section 10 is not limited to one’s interest in a quiet and dust-free environment. It also
includes an interest in freedom from visual intrusion from targeted, warrantless police aerial
surveillance, no matter how quietly or cleanly the intrusion is performed. Indeed, it is likely
that ultra-quiet drones will soon be used commercially and, possibly, for domestic
surveillance. Michael J. Schoen, Michael A. Tooshi, Confronting the New Frontier in
Privacy Rights: Warrantless Unmanned Aerial Surveillance, 25 No. 3 Air & Space Law 1
(2012); see Intelligence Advanced Research Projects Activity, “Great Horned Owl (GHO)
Program,” http://www.iarpa.gov/Programs/sc/GHO/gho.html. Such advances in technology
demonstrate the increasingly diminished relevance of intrusiveness factors, as courts have
regarded them in the past, in the analysis of what constitutes a search.

c.     The Aerial Surveillance in This Case Constituted a Search Under Article II,
       Section 10

{20} We decline to perpetuate both the analysis in the United States Supreme Court’s
cases and in Rogers and Bigler focusing on what is openly visible to the public from the air
and the analysis in Rogers based on intrusiveness factors. Since Rogers and Bigler were
decided, our courts have diverged from the Fourth Amendment, and the analysis in those
cases fails to “serve the robust character and honored history of [Article II, Section 10] with
special attention to its purpose of police regulation.” Garcia, 2009-NMSC-046, ¶ 31.
Instead of relying on visibility and intrusiveness factors, we adopt the view that if law
enforcement personnel, via targeted aerial surveillance, have the purpose to intrude and
attempt to obtain information from a protected area, such as the home or its curtilage, that
could not otherwise be obtained without physical intrusion into that area, that aerial
surveillance constitutes a search for purposes of Article II, Section 10. We explain the
evolution of our view below.

{21} We find persuasive the analysis in Kyllo v. United States, 533 U.S. 27 (2001). While
Kyllo did not involve aerial surveillance, its determination that seeking information through
“sense-enhancing technology” can constitute a search aptly applies to aerial surveillance, in
our view. 533 U.S. at 34. Kyllo involved the question “whether the use of a thermal-
imaging device aimed at a private home from a public street to detect relative amounts of
heat within the home constitutes a ‘search’ within the meaning of the Fourth Amendment.”

                                              7
533 U.S. at 29. On suspicion that the petitioner was growing marijuana in his home, a police
officer scanned the home in the early morning hours from a position across the street from
the residence and from the street behind the house. Id. at 29-30. The scan showed that
sections of the home were relatively hotter than other sections, which suggested to police
that the petitioner was using halide lights to grow marijuana. Id. at 30. Based in part on the
scan’s results, police obtained a search warrant and discovered “an indoor growing
operation.” Id.

{22} In holding that the scan constituted a search under the Fourth Amendment, the Court
first reviewed its jurisprudence, whose definition of a search evolved from the notion of
common law trespass to the two-prong Katz assessment of whether the person has
“manifested a subjective expectation of privacy” that society recognizes as reasonable.
Kyllo, 533 U.S. at 31-33 (internal quotation marks and citation omitted). The Court then
noted that “[i]t would be foolish to contend that the degree of privacy secured to citizens by
the Fourth Amendment has been entirely unaffected by the advance of technology.” Id. at
33-34. While acknowledging the difficulty of applying the Katz test to searches of “areas
such as telephone booths, automobiles, or even the curtilage,” Kyllo, 533 U.S. at 34, the law
at minimum recognizes that the expectation of privacy in the interior of the home is
reasonable when the police “obtain[] by sense-enhancing technology any information
regarding the interior of the home that could not otherwise have been obtained without
physical intrusion into a constitutionally protected area, . . . at least where . . . the technology
in question is not in general public use.” Id. (internal quotation marks and citation omitted).

{23} We believe the Kyllo Court’s analogy to physical invasions is in harmony with our
jurisprudence under Article II, Section 10. Given our “strong preference for warrants in
order to preserve the values of privacy and sanctity of the home,” Granville, 2006-NMCA-
098, ¶ 24, it follows that police should be required to secure a warrant before attempting to
obtain, through flight, information from a home or its curtilage that they would not otherwise
be able to obtain without physical intrusion.

{24} While Kyllo’s requirement that the sense-enhancing technology not be in general use
by the public makes sense in the context of that case, we place no reliance on this as a factor.
The only rationale for that requirement seems to be that it provides a way to distinguish
police conduct from conduct by a member of the public in order to acknowledge the Fourth
Amendment’s protections against government intrusion. A better means of protecting
against government intrusion—and one that is consistent with Article II, Section 10
jurisprudence—is the addition of a requirement that the goal of government personnel is to
intrude. As Professor Clancy put it, “[i]n assessing whether a search has occurred, inquiry
must be made into whether it is the goal of the government agent to learn something about
the target when engaging in an activity or employing a technological device.” Clancy, supra,
at 39. This inquiry also permits the government to use evidence obtained inadvertently by
law enforcement personnel. See, e.g., Clancy, supra, at 41 (hypothesizing that it would not
be a search if a police officer tripped and fell on a bus passenger’s soft-sided luggage and,
in bracing himself, felt a brick-like object in the luggage).

                                                 8
{25} This inquiry, plus the inquiry as to whether the information could otherwise only be
obtained via physical intrusion, “add[s] clarity of meaning for decision-makers” like police
and magistrates contemplating the issuance of warrants. Clancy, supra, at 39. Our Supreme
Court has stated that clarity for such decision makers is an important consideration under
Article II, Section 10. See Garcia, 2009-NMSC-046, ¶ 32 (explaining that the
indeterminancy of Fourth Amendment analysis “is cause for concern in that it fails to
provide law enforcement with a useful framework with which to predict when its actions will
trigger constitutional scrutiny”).

{26} Putting this analysis in the context of aerial surveillance, such surveillance constitutes
a search under Article II, Section 10 if (1) the government agent(s) involved intend to obtain
information from a target or targets through aerial surveillance, and (2) if the information
to be obtained through aerial surveillance could not otherwise be obtained without physical
intrusion into the target’s home or curtilage. If the surveillance constitutes a search, then the
government agent(s) must obtain a search warrant before conducting the surveillance, absent
an exception to the warrant requirement, such as exigent circumstances.

{27} In the present case, the evidence presented to the district court established that the
agents involved in Operation Yerba Buena undertook helicopter surveillance of several
homes, including Defendant’s home, with the purpose of finding marijuana plantations. In
addition, the evidence suggesting that Defendant was growing marijuana in his greenhouse
could not have been obtained without aerial surveillance unless the agents physically
invaded the greenhouse. Consequently, the helicopter surveillance of Defendant’s property
constituted a search requiring probable cause and a warrant. Because the agents did not
obtain a warrant, they had to rely on an exception to the warrant requirement. In this case,
our Supreme Court determined that they obtained from Defendant valid consent to search.
The question thus becomes whether Defendant’s consent was sufficiently attenuated from
the illegal search to be purged of the illegality’s taint.

C.      Defendant’s Consent Was Not Sufficiently Attenuated From the Illegal Search

{28} “The fruit of the poisonous tree doctrine bar[s] the admission of legally obtained
evidence derived from past police illegalities.” State v. Monteleone, 2005-NMCA-129, ¶ 16,
138 N.M. 544, 123 P.3d 777 (alteration in original) (internal quotation marks and citation
omitted). Before considering the question of whether Defendant’s consent was tainted by
the prior illegal helicopter search, we first address the State’s argument that Defendant failed
to preserve the question. The State maintains that Defendant did not specifically argue at
the suppression hearing that his consent was tainted, and the district court did not address
the taint issue because it found that Defendant’s consent was voluntary.

{29} We conclude that Defendant was not required to expressly raise the fruit of the
poisonous tree doctrine because the district court determined that the helicopter surveillance
was constitutional and, therefore, there was no reason for Defendant to have raised or argued
that the doctrine applied. See State v. Ingram, 1998-NMCA-177, ¶ 9, 126 N.M. 426, 970

                                               9
P.2d 1151 (“Evidence which is obtained as a result of an unconstitutional search or seizure
may be suppressed under the exclusionary rule.” (internal quotation marks and citation
omitted)).

{30} Because we disagree with the district court’s determination, we now consider
whether Officer Merrell obtained Defendant’s consent “by means sufficiently distinguishable
to be purged of the primary taint” of the illegal helicopter surveillance of Defendant’s
property. Monteleone, 2005-NMCA-129, ¶ 17 (internal quotation marks and citation
omitted). “If there is sufficient attenuation between the illegality and the consent to search,
the evidence is admissible.” Id. “To determine whether there was sufficient attenuation, we
consider the temporal proximity of the [illegality] and the consent, the presence of
intervening circumstances, and the flagrancy of the official misconduct.” Id. (internal
quotation marks and citation omitted).

{31} Here, Officer Merrell obtained Defendant’s consent through exploitation of the
illegal helicopter search. The evidence suggesting that Defendant was growing marijuana
was obtained via the aerial surveillance of his property. Officer Merrell then approached
Defendant, who was standing outside his home, and obtained consent. Davis II, 2013-
NMSC-028, ¶ 5. Given that Officer Merrell entered Defendant’s property solely as a result
of information obtained in the helicopter search, as well as the lack of any intervening
circumstances between the aerial search and Defendant’s consent, there was insufficient
attenuation to purge Defendant’s consent of the taint resulting from the unconstitutional
aerial surveillance. See State v. Portillo, 2011-NMCA-079, ¶ 25, 150 N.M. 187, 258 P.3d
466 (“It is established law that evidence discovered as a result of the exploitation of an
illegal [search or] seizure must be suppressed unless it has been purged of its primary
taint.”). The district court erred in holding the surveillance to be constitutional instead of
determining it to be unconstitutional and suppressing the evidence obtained from the
physical search. Because we reverse the district court’s denial of Defendant’s suppression
motion, we need not address Defendant’s argument that the district court erroneously denied
his motion for a judicial view.

CONCLUSION

{32} For the foregoing reasons, we reverse the district court’s denial of Defendant’s
suppression motion.

{33}   IT IS SO ORDERED.

                                               _____________________________________
                                               CYNTHIA A. FRY, Judge

I CONCUR:

_____________________________________

                                              10
RODERICK T. KENNEDY, Chief Judge

JONATHAN B. SUTIN, Judge (specially concurring).

SUTIN, Judge (specially concurring).

{34} I concur in the Opinion’s insightful and forward-thinking application of Article II,
Section 10 of the New Mexico Constitution. I have some additional thoughts.

Weighing Factors

{35} Deciding warrantless aerial surveillance cases, by weighing factors of altitude, FAA
regulations, extent of physical intrusion, location of the property, means of surveillance (as
the district court found, helicopter swooping to lower altitude and men on a mission as if
they were in a state of war searching for weapons or terrorist activity), and complaint
anonymity, is fraught with arbitrary or painstakingly difficult and subjective determinations.
Note the district court’s “just barely permissible” characterization of the “helicopter search,”
and the court’s characterization of the facts as “teeter[ing] dangerously close to exceeding
the limitations implicit in the Fourth Amendment.” The weighing approach is less effective
than Justice Scalia’s approach in Kyllo. Citizens have an expectation of privacy with respect
to the police looking into their homes and curtilage. If the police, as in this case, are
purposefully targeting a home, curtilage, or residential area to discover illegal marijuana
growing activity by, as the district court in this case characterized it, “flying around
generally in an effort to spot greenhouses” in a “random investigation,” the police should
have to pass warrant muster as a condition precedent to conducting the aerial surveillance.
This requirement is restrictive, no doubt. But the better judgment in a circumstance like that
before us is to protect the privacy of the home and curtilage and require a validly issued
warrant for the targeted surveillance. Here, Defendant had an expectation of privacy with
regard to his curtilage. The targeted surveillance was a search. The search was warrantless
and presumed to be unlawful. No exception overcame the presumption.

Taint of Consent

{36} I offer another basis on which we ought to be able to hold that the warrantless and
unreasonable aerial surveillance search tainted Defendant’s consent. The district court
determined factually that the spotter could not have observed marijuana and that any belief
the spotter had was speculative. After noting that “ ‘Carson’ area plus ‘greenhouse’
propelled the spotting officer to conclude by speculation that behind the walls of the
greenhouses were prohibited plants[,]” the court perceived “a surreal ‘profiling’ aspect to
the police behavior.” Stated differently, the court determined that it was objectively
unreasonable to believe that the spotter had, in fact, observed marijuana, thereby rendering
such “observation” by the spotter to be mere speculation. Speculation does not give rise to
reasonable suspicion. See Leyva, 2011-NMSC-009, ¶ 23 (“Reasonable suspicion must
consist of more than an officer’s hunch that something is amiss; it requires objectively

                                              11
reasonable indications of criminal activity.”). Because Officer Merrell’s statement to
Defendant that “marijuana had been identified growing in his greenhouse from the air” was
based exclusively on the spotter’s speculation, by extension, it was unfounded in reasonable
suspicion. See State v. Vandenberg, 2002-NMCA-066, ¶ 18, 132 N.M. 354, 48 P.3d 92
(recognizing that “reasonable suspicion based on information obtained from another officer
require[s] that [the] officer providing information must himself have possessed reasonable
suspicion”), reversed on other grounds by 2003-NMSC-030, 134 N.M. 566, 81 P.3d 19.
Thus, Defendant’s encounter with Officer Merrell was essentially a circumstance in which
a police officer, without reasonable suspicion or a warrant, approached Defendant at
Defendant’s own home and accused him of engaging in criminal activity. This is not
reasonable police conduct at the front door of a person’s home when the officer does not
have a probable cause basis on which to make the accusation. The spotter’s non-credible,
speculative belief that gave rise to Officer Merrell’s factually incorrect statement was
causally related to Defendant’s consent, and therefore the consent was tainted. See State v.
Figueroa, 2010-NMCA-048, ¶ 35, 148 N.M. 811, 242 P.3d 378 (holding that the defendant’s
consent that was sought and granted “on the heels of” improper police questions was
tainted).

Fourth Amendment

{37} I would hold the surveillance search unreasonable under the Fourth Amendment as
well as under Article II, Section 10 on the basis that the expectation of privacy analyses in
cases that involve targeted aerial surveillance investigations and invasions into a home and
curtilage using modern technology, whether thermal imaging technology or a helicopter,
should now be controlled by Justice Scalia’s Kyllo analysis and test as set out earlier in the
Opinion of this Court.

                                              __________________________________
                                              JONATHAN B. SUTIN, Judge




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