Officers need warrants to use aircraft, zoom lenses to surveil areas around homes, Alaska court says

JUNEAU, Alaska (AP) — Alaska law enforcement officers must obtain a warrant before using aircraft to scope out the area around a person’s home with binoculars or cameras with zoom lenses, the state’s highest court ruled in a decision released Friday.

The Alaska Supreme Court ruling comes in a case that dates to 2012, when Alaska State Troopers received a tip from an informant that John William McKelvey III was growing marijuana on his property in a sparsely populated area north of Fairbanks.

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According to the ruling, McKelvey’s property was heavily wooded, with a driveway leading to a clearing where a house and greenhouse were located. Trees blocked the ground-level view of the buildings from outside the clearing, and a gate blocked cars from entering.

In the court’s recounting of the case, two troopers, following up on the tip, flew past the property and used a camera with a high-power zoom lens to take photos that showed buckets containing “unidentifiable plants” inside the greenhouse. Based on the tip and flight observations, a search warrant for McKelvey’s property was obtained. During the search, officers found items including marijuana plants, methamphetamine, scales, a rifle and cash.

McKelvey sought to have the evidence suppressed, but a Superior Court judge denied that.

He was convicted of one court of third-degree misconduct involving a controlled substance and a weapons misconduct count. He appealed, arguing the judge wrongly denied his motion to suppress.

An appeals court reversed the Superior Court judge, and the Supreme Court affirmed the appeals court decision in its ruling released Friday.

The state maintained “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 Supreme Court decision states.

“The Alaska Constitution protects the right to be free of unreasonable searches,” the ruling states. “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.”

Law enforcement officers must obtain a warrant before using aircraft and “vision-enhancing technology,” such as cameras with zoom lenses or binoculars, to surveil the area surrounding a person’s home that is protected from ground-level observation, the court said.

Most land in Alaska is not considered “curtilage of the home, where the right to privacy is strongest. Therefore authorities are not necessarily restricted from using aircraft and vision-enhancing technology to surveil those areas,” the court said. Curtilage refers to the area in and around a home.

Robert John, an attorney for McKelvey, called the ruling a “tremendous decision to protect the rights of privacy of Alaskans and hopefully set an example for the rest of the country.”

The Department of Law did not immediately respond to an email seeking comment.