Police in Helicopter a Search fah Marijuana

State v. Quiday (HSC November 21, 2017)

Background. Honolulu Police Department officers got an anonymous tip that there was marijuana growing on a residential property in Waipahu. The officers conducted “aerial reconnaissance” of the suspected grow site in a helicopter at a height of 420 feet (no joke) and spotted 20-25 plants in the open air of the property along a wall. The officers drove by the house to see if the plants were visible from the street. They weren’t. The police checked the residence to see if it was a grow site for medical marijuana; it wasn’t. The officers did two more flyovers and saw the same thing: plants in pots along the wall of the property. Based on these observations, the officers applied for and got a search warrant of the property.

The day before the warrant was to be executed, police drove by the property and saw a man watering something along the wall. The next day the warrant was executed and police arrested Benjamin Quiday for possession of the plants. He was charged with commercial promoting of marijuana and paraphernalia. HRS §§ 712-1249.5(1)(a) and 329-43.5(a). Quiday moved to suppress the evidence on the grounds that the aerial surveillance conducted by the police was an unreasonable search requiring a warrant. The motion was denied. Quiday filed an interlocutory appeal. The ICA vacated the suppression order. The State petitioned for certiorari.

Your Right to be Free from Unreasonable Searches and Seizures. The right “to be free from unreasonable searches, seizures and invasions of privacy” is protected by Article I, Section 7 in the Hawaii Constitution. This constitutional right “safeguard[s] the privacy and security of individuals against arbitrary invasions by government officials.” State v. Wallace, 80 Hawaii 382, 392, 910 P.2d 695, 705 (1996). Government intrusion into a person’s reasonable expectation of privacy is a “search” that requires a warrant or an exception to the warrant requirement. State v. Bonnell, 75 Haw. 124, 137, 856 P.2d 1265, 1273 (1993).

Determining a Reasonable Expectation of Privacy. In Hawaii, a “reasonable expectation of privacy” is determined by a two-part test. “First, one must exhibit an actual, subjective expectation of privacy. Second, that expectation must be one that society would recognize as objectively reasonable.” Id. at 139, 856 P.2d at 1274. The test comes from Justice Harlan’s concurrence in the seminal case, Katz v. United States, 389 U.S. 347 (1967).

The First Prong – the Subjective Expectation. In applying this test, the HSC held that Quiday had a reasonable expectation of privacy in his backyard. Under the first part—the subjective part—it was clear to the HSC that he had an expectation of privacy in the space observed by the police. He enclosed the yard and kept the plants out of public view from the ground level. This was “indicative of [his] subjective intent to avoid the public gaze into the curtilage of his home.” State v. Kaaheena, 59 Haw. 23, 29, 575 P.2d 462, 467 (1978). The HSC rejected the notion that the fact that the plants were kept uncovered and thus observable from 420 feet in the air by way of a helicopter did not “alter the fact that Quiday exhibited a subjective intent to keep the marijuana plants out of view from the public eye[.]”

The Second Prong – the Objective One. In determining if the space is objectively reasonable, the HSC noted that it is assessed on a case-by-case basis. State v. Ward, 62 Haw. 509, 515, 617 P.2d 571, 572 (1980). In this case, it was clear to the HSC that Quiday kept the plants within the curtilage of the home. “Curtilage is usually defined as a small piece of land, not necessarily enclosed, around a dwelling house and generally includes buildings used for domestic purposes in the conduct of family affairs.” State v. Kender, 60 Haw. 301, 304, 588 P.2d 447, 449 (1978). This includes the backyard. Id.

Accordingly, the HSC held that “an individual has a reasonable expectation of privacy from governmental aerial surveillance of his or her curtilage and residence, when such aerial surveillance is conducted with the purpose of detecting criminal activity therein.” Purposeful intrusion by the government—such as three flyovers over a two day period—is a “search” requiring a warrant. John Holt was right.

Two Major Distinctions. The HSC distinguished this case from two older cases involving flyovers. In State v. Stachler, 58 Haw. 412, 570 P.2d 1323 (1977), the HSC held that a flyover and observation of a marijuana patch located in a remote area and fifteen feet away from the house was not within the curtilage. In State v. Knight, 63 Haw. 90, 621 P.2d 370 (1980), the police flew over a home and saw a large greenhouse approximately forty-five feet away from the house. The officers took pictures of the greenhouse, examined them later and determined that there was marijuana inside. This flyover was not considered a “search” because they were not within the curtilage and the patch and the greenhouse were not enclosed from public view.

Is this is end of Green Harvest? Not quite. The HSC has not outright declared that flyovers are searches requiring warrants. Aerial surveillance in the islands can continue. But if the plants are within the curtilage—if there’s an objective expectation of privacy that’s closet to the house and enclosed from public view—it is a “search.” In a weird way, it protects the residential grower who keeps his or her plants close to the home and protected. Growers out in the boonies are probably still fair game for the police.