To Be Free In Alaska

A blow for airspace freedom struck by the Alaska Supreme Court

Do the police have to get a warrant before taking pictures of your yard with a zoom lens while flying in an airplane? The State argues that because small airplane travel is so common in Alaska, and because any passenger might peer into your yard and snap a picture of you, law enforcement officials may do the same. We disagree. The Alaska Constitution protects the right to be free of unreasonable searches. The fact that a random person might catch a glimpse of your yard while flying from one place to another does not make it reasonable for law enforcement officials to take to the skies and train high-powered optics on the private space right outside your home without a warrant. Unregulated aerial surveillance of the home with high-powered optics is the kind of police practice that is “inconsistent with the aims of a free and open society.” The Alaska Constitution does not allow it.

Police had a tip that the defendant was growing marijuana in a translucent greenhouse on his “property in a sparsely populated area just north of Fairbanks.”

To confirm the informant’s report, two troopers flew past McKelvey’s property in an airplane. The troopers flew in a straight line past McKelvey’s residence — at their closest point the troopers were roughly a quarter mile to a half mile south of the house at an altitude of roughly 600 feet. The troopers photographed the property using a camera with a high-powered zoom lens, which allowed them to magnify the image roughly nine times compared to the naked eye. The photographs revealed five-gallon buckets containing unidentifiable plants inside the greenhouse.

Based on the tip and observations from the flight, the troopers obtained a search warrant for McKelvey’s house and property. Upon searching the house officers found marijuana plants, methamphetamine, scales, plastic bags for packaging, a loaded AK-47 rifle, and a large amount of cash. McKelvey was charged with criminal offenses based upon the evidence discovered during the search.

The court affirmed the Court of Appeals.

Expectation of privacy

Peering into people’s yards with a high-powered lens when flying overhead has a similar potential to reveal intimate details that a person may wish, and expect, to keep private. Aerial observation with the aid of a zoom lens might capture, for example, an unflattering photo of a person in a swimsuit, images of a person practicing a silly dance with their children, or expressions of religious devotion that one might not wish others to see. The mere knowledge that the government could make these kinds of detailed observations without a warrant may discourage Alaskans from using their curtilage to live their private lives.

Alaska from the air

The State argues that because flights on small aircraft are so common everywhere in Alaska, Alaskans cannot reasonably expect privacy in the curtilage of their homes. Pointing to the superior court’s findings, the State asserts passengers in these aircraft fly relatively close to the ground, at low speeds, and regularly use binoculars and high-powered cameras to view the ground below. We accept the State’s assertion that there is more air travel per capita in Alaska than the average state and that the small aircraft so common here fly at slower speeds and lower altitudes than the big aircraft that predominate Outside. But there is no support for the State’s suggestion that pilots and passengers regularly examine the curtilage of people’s homes with highpowered optics. People train their cameras and binoculars on Alaska’s majestic scenery and wildlife. There is no reason to think they are focused on the bleached garden boxes, tangled fishing nets, and parted-out snowmachines lying next to people’s homes. The fact that it is common for small aircraft to fly overhead does not make it unreasonable for Alaskans to think that what they do in the outdoor space of their homes that they have tried to keep private will remain private.

Holding

we hold that the Alaska Constitution requires law enforcement officials to obtain a warrant before using aircraft and vision enhancing technology (such as a camera with zoom lens or binoculars) to observe the curtilage of a person’s home that is protected from ground-level observation. Because the troopers did not get a warrant before taking aerial photos of McKelvey’s curtilage, it was error to deny McKelvey’s motion to suppress evidence obtained as a result of those photos.

(Mike Frisch)