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John William McKelvey III v. State of Alaska (9/4/2020) ap-2675

John William McKelvey III v. State of Alaska (9/4/2020) ap-2675


           The text of this opinion can be corrected before the opinion is published in the  

           Pacific Reporter.  Readers are encouraged to bring typographical or other formal  

           errors to the attention of the Clerk of the Appellate Courts:  

                                          303 K Street, Anchorage, Alaska  99501

                                                        Fax:  (907) 264-0878

                                              E-mail:  corrections @



                                                                                   Court of Appeals No. A-12419  

                                            Appellant,                          Trial Court No. 4FA-14-00040 CR  


                                                                                                 O P I N I O N  


                                            Appellee.                             No. 2675 - September 4, 2020  


                           peal  from  the  Superior  Court,  Fourth  Judicial  District,  

                      Fairbanks, Bethany Harbison, Judge.  

                      Appearances:              Robert  John,  Law  Office  of  Robert  John,  


                      Fairbanks, for the Appellant.   Timothy W. Terrell, Assistant  


                      Attorney General, Office of Criminal Appeals, Anchorage, and  


                      Jahna Lindemuth, Attorney General, Juneau, for the Appellee.  


                      Before:        Allard,        Chief       Judge,        Wollenberg,            Judge,        and  


                      Mannheimer, Senior Judge.*  


                      Judge WOLLENBERG.  

                      This case involves an issue of first impression in Alaska:                                     Must the police     

obtain a search warrant before conducting targeted aerial surveillance of a residential                                       

backyard, using a telephoto lens to discern objects that would not otherwise be visible   

      *    Sitting  by   assignment  made  pursuant  to  Article  IV,  Section  11  of   the  Alaska  

Constitution and Administrative Rule 23(a).  

----------------------- Page 2-----------------------

from that height, when the property owner has taken steps to protect the ground-level  


privacy of the yard?  


                    For the reasons explained in this opinion, we conclude that, under such  


circumstances, the aerial surveillance constitutes a search under the search and seizure  


clause of the Alaska Constitution.  Accordingly, absent an applicable exception to the  


warrant requirement, the police must obtain a search warrant before engaging in this type  


of aerial surveillance.  


          Background facts and prior proceedings  


                    On August 22, 2012, Alaska State Trooper Joshua Moore received a tip  


from an informant who reported observing a marijuana grow at the residence of John  


William McKelvey III.  The informant stated that McKelvey had approximately thirty  

marijuana plants growing in his yard, that the marijuana was planted in five-gallon  


buckets, and that McKelvey would move the plants into his greenhouse at night.  


                    McKelvey lived in a sparsely populated area approximately twenty miles  


fromFairbanks. He had posted numerous "No Trespassing" and "Keep Out" signs along  


his driveway and elsewhere on his property.  The greenhouse area where the marijuana  


plants were located was about ten to fifteen feet behind his house, and it was surrounded  


by a sight barrier of tall woods.  


                    Trooper  Moore,  hoping  to  confirm  the  informant's  tip  through  aerial  


surveillance, had a wildlife trooper fly him near the property at an altitude of at least 600  


feet.  During this flyover, Moore passed by McKelvey's property twice, and he took  


photographs of the property using a camera equipped with a 280-millimeter zoom lens.  


                    Moore did not see any plants or five-gallon buckets sitting in McKelvey's  


yard, but, through the lens of his camera, he could see "what appeared to be plants potted  


                                                              - 2 -                                                         2675

----------------------- Page 3-----------------------

inside five-gallon buckets" through the walls of a "partially see-through" greenhouse.                                                                                                                                   

Moore could not discern whether these plants were marijuana.                                                                                                  

                                 Based   on   the   informant's   tip,   and   based   on   the   results   of   this   aerial  

surveillance, Moore applied for a warrant to search McKelvey's property.                                                                                         

                                 When the state troopers executed this search warrant, they discovered a                                                                                                            

marijuana grow (as well as methamphetamine, scales, plastic bags used for packaging,                                                                                                        

a   loaded   firearm,   and   over   $18,000   in   cash).     A   grand   jury   subsequently   indicted  

McKelvey on six counts of misconduct involving a controlled substance and one count                                                                                                                      

of second-degree weapons misconduct (for possessing a firearm during the commission                                                                                                      


of a felony drug offense).                                         


                                 Prior to trial, McKelvey asked the superior court to suppress the evidence  


seized from his property during the execution of the search warrant.  McKelvey argued  


that Moore's aerial surveillance of his yard constituted an illegal warrantless search in  


violation of the Fourth Amendment to the United States Constitution and Article I,  


Section 14 of the Alaska Constitution.   McKelvey further argued that, because this  


surveillance was acritical part ofMoore's applicationfor thesearch warrant, all evidence  


seized from his property under that warrant should be suppressed.  


                                 The court held an evidentiary hearing on McKelvey's motion.   At this  


hearing, Moore explained that he was only able to see the buckets in the greenhouse by  


using the telephoto lens of his camera.  


                                 Following this hearing, the superior court denied McKelvey's motion. The  


court  agreed  with  McKelvey  that  the  greenhouse  was  part  of  the  curtilage  of  his  


residence,  and  the  court  accepted  McKelvey's  contention  that  he  had  a  subjective  

         1       Former  AS  11.71.020(a)(1)  (2012),  former  AS  11.71.030(a)(1)  (2012),  former  

AS  11.71.040(a)(2),  (a)(3)(F),  (a)(3)(G),  &  (a)(5)  (2012),  and  AS  11.61.195(a)(1),  


                                                                                                     - 3 -                                                                                                 2675

----------------------- Page 4-----------------------

expectation   of   privacy   in   the   semi-opaque   greenhouse.     Nevertheless,   the   court  

concluded that McKelvey's expectation of privacy in his greenhouse was objectively                                                                                                                                                                                                                        

unreasonable.   The court found that the contents of the greenhouse were open to public                                                                                                                                                                                                                                       

view from the navigable airspace above McKelvey's residence, and the court further                                                                                                                                                                                                                                         

found that McKelvey could not reasonably have believed that no one would fly over his                                                                                                                                                                                                                                                       

property.   The court noted that air travel (in both commercial and private aircraft) is an                                                                                                                                                                                                                                                   

essential feature of Alaskan life, and that a private airstrip was located a short distance                                                                                                                                                                                                                            

from McKelvey's property.                                                                                       

                                                     The   court   also   rejected   McKelvey's  argument   that   Moore's   use   of   a  

telephoto   lens   to   enhance   his   view   of   McKelvey's  property   transformed   the   aerial  

 surveillance into an unconstitutional search.                                                                                                                                   

                                                     After the court denied this suppression motion, McKelvey waived his right                                                                                                                                                                                                       

to a jury trial and proceeded to a bench trial based on stipulated facts.                                                                                                                                                                                                            The court found                            

him guilty of one count of second-degree weapons misconduct and one count of third-                                                                                                                                                                                                                                              

degree misconduct involving a controlled substance (possession of methamphetamine                                                                                                                                                                                             

with the intent to distribute).                                                                                   2  


                                                                                                                          The State dismissed the remaining charges.  


                                                     This appeal followed.  


                           Our analysis of McKelvey's claims  


                                                     Both the Fourth Amendment to the United States Constitution and Article  


I,  Section  14  of  the  Alaska  Constitution  prohibit  unreasonable  searches  by  the  

             2             AS 11.61.195(a)(1) and former AS 11.71.030(a)(1) (2012), respectively.  

                                                                                                                                                                  - 4 -                                                                                                                                                              2675

----------------------- Page 5-----------------------

government. Thisincludes                       both physicalintrusionsintoconstitutionallyprotected                                        spaces  


and non-physical intrusions made possible through the use of technology.                                                            


                       On appeal, McKelvey argues that the warrantless aerial surveillance of his  


greenhouse using a telephoto lens was constitutionally impermissible.  To address this  


claim, the key question we must answer is whether the aerial surveillance constituted a  


"search" for constitutional purposes.  If it did, then the surveillance was presumptively  


unreasonable absent a search warrant.  


                       Under  both  federal  and  state  law,  when  a  person  claims  that  the  


government's invasion of their property constitutes a "search," courts must engage in a  


two-part analysis:  Did the person manifest a subjective expectation of privacy in the  


property?  And if so, is society willing to recognize that person's expectation of privacy  



                                                  If both prongs are met - i.e., if the government's action  

as objectively reasonable? 


intruded   upon   an   individual's   reasonable   expectation   of   privacy   -  then   the  


government's action constitutes a search for constitutional purposes, and it must be  


supported by a warrant or by a recognized exception to the warrant requirement.  


                       The  first  part  of  this  two-part  inquiry  -  the  subjective  prong  -  is  


undisputed in this case.  Courts have generally treated the erection of walls, fences, or  


gates, or the posting of signage, as manifesting an intent to protect a person's privacy in  

      3     Cowles v. State, 23 P.3d 1168, 1170 (Alaska 2001).  

      4     California v. Ciraolo, 476 U.S. 207, 211 (1986) (citing Katz v. United States, 389 U.S.  

347, 361 (1967) (Harlan, J., concurring), and Smith v. Maryland, 442 U.S. 735, 740 (1979));  


State v. Glass, 583 P.2d 872, 875 (Alaska 1978) (citing Smith v. State, 510 P.2d 793, 797  


(Alaska 1973)) (recognizing Alaska's adoption of the two-part expectation-of-privacy test  


first set forth in Justice Harlan's concurrence in Katz); Pearce v. State, 45 P.3d 679, 682  

(Alaska App. 2002) (same).  

                                                                       - 5 -                                                                  2675

----------------------- Page 6-----------------------


  the curtilage of their home.                                                                   Here, the superior court found that McKelvey's greenhouse                                                                                                         

 was located a short distance (approximately ten to fifteen feet) behind his house, in an   

  area "surrounded by a natural sight-barrier of tall woods."                                                                                                                                            The court further found that                                                         

  the   greenhouse   could   not   be   seen   from   the   ground   by   anyone   who   approached  

  McKelvey's  front   door   by   normal   means,   and   who   otherwise   heeded   the   "No  

  Trespassing"   and   "Keep   Out"   signs   that   were   posted   throughout   the   barrier   to   the  

 property.   Based on these facts, the court found that "McKelvey very obviously did not                                                                                                                                                                                                       

 wish for passersby to view his greenhouse or its contents."                                                                                                                                                  The State does not contest                                          


  this conclusion, and the record supports it.                                                                                                           


                                               McKelvey's case therefore hinges on the second prong - the objective  


 prong - of the test:  Was it reasonable for McKelvey to expect that his greenhouse  

             5          See  Florida  v.  Riley,   488  U.S.  445,  450  (1989)  ("Riley   no  doubt  intended  and  

  expected that his greenhouse would not be open to public inspection, and the precautions he  

  took protected against ground-level observation.");  State v. Quiday, 405 P.3d 552, 558 (Haw.   

  2017) ("Quiday's placement of the plants in his backyard, the activities in which were not               

  capable of observation by members of the public at ground-level, was 'indicative of [his]                                                                                                                                                                                                

  subjective intent to avoid the public gaze' into the curtilage of his home." (alteration in   

  original) (quoting State v. Kaaheena, 575 P.2d 462, 467 (Haw. 1978))); State v. Davis, 627   

  P.2d  492,  494  (Or.  App.  1981)  ("[D]efendant  did  display   to  some  extent  a  subjective  

  expectation of privacy, evidenced by the posting of 'no trespassing' signs and the use of a                                                                                                                                                                                                          

  locked gate across the driveway to the secluded property.");                                                                                                                                         State v. Bryant, 950 A.2d 467,  

  473 (Vt. 2008) ("Fences, gates, and no-trespassing signs generally suffice to apprise a person   

  that the area is private." (citation omitted)); see also State v. Davis, 360 P.3d 1161, 1180  

  (N.M. 2015) (Chávez, J., concurring) ("If an individual has taken steps to ward off inspection                                                                                                                                                                          

from the ground , the individual has also manifested an expectation that the visibility of his                                                                                                                                                                                                   

  or her property that he or she sought to block off from the ground                                                                                                                                                            should also be private  

  when seen from the air                                                         . This is because members of the general public generally do not                                                                                                                                    

  intently scrutinize other peoples' curtilages, even when they do fly over private property."                                                                                                                                 

  (emphasis in original) (citing Riley, 488 U.S. at 460) (Brennan, J., dissenting)).  

             6          See Pearce, 45 P.3d at 682-83 (reviewing the trial court's finding that the defendant  

  lacked a subjective expectation of privacy for clear error).  

                                                                                                                                              - 6 -                                                                                                                                       2675

----------------------- Page 7-----------------------

would not be subjected to aerial surveillance that was enhanced by image-magnifying  



                    McKelvey argues that both the federal and state constitutions support the  


conclusion that his expectation of privacy from this type of police surveillance was  


reasonable. But the United States Supreme Court has twice rejected Fourth Amendment  


challenges to warrantless aerial observation of the curtilage of a home when the curtilage  


was open to observation from the air, even though the homeowner had taken steps to  


blockground-level observation oftheproperty. Although neither ofthesecasesinvolved  


observations that were enhanced by technological means, and even though the Supreme  


Court has never directly addressed the use of a telephoto lens to surveil the curtilage of  


a home, the Supreme Court's case law in this area gives little reason to believe that the  


Fourth Amendment would protect McKelvey from the type of surveillance that occurred  


in this case.  


                    We  need  not  resolve  this  issue  of  federal  law,  however,  because  we  


conclude that, given Alaska's explicit constitutional protection of privacy, as well as  


Alaska law's heightened  protection  for  the privacy  of residences,  McKelvey  could  


reasonably expect that his home and backyard would not be subjected to the type of  


aerial surveillance that occurred in this case.  


                    We therefore rely solely on the Alaska Constitution to decide McKelvey's  


case.   However, it is useful, in the first instance, to examine the major federal cases  


addressing this question - in order to explain why we find these cases insufficiently  


protective of Alaskans' right to privacy.  


                                                              - 7 -                                                         2675

----------------------- Page 8-----------------------

              Why we conclude that McKelvey would be unlikely to prevail on his claim                                                                      

              under federal law pertaining to aerial surveillance by law enforcement                                                                               

                            The United States Supreme Court first considered the constitutionality of                                                                          

warrantless aerial surveillance by law enforcement in                                                        California v. Ciraolo                      .7  


                                                                                                                                                             In Ciraolo,  


as  in  McKelvey's  case,  the  police  received  a  tip  that  the  defendant  was  growing  


marijuana in his backyard.  Because two fences completely enclosed Ciraolo's yard,  


rendering ground-level observation impossible, the police attempted to corroborate the  


informant's tip by flying a plane over Ciraolo's house at an altitude of 1,000 feet.  From  


the  air,  the  police  identified  marijuana  plants  growing  in  Ciraolo's  yard,  and  they  



photographed these plants using a standard 35mm camera lens.                                                                        Based on this evidence,  



the police obtained a search warrant to seize the marijuana plants. 


                            In  a  5-to-4  decision,  the  Supreme  Court  concluded  that  this  aerial  


surveillance did not constitute a search under the Fourth Amendment, and that therefore  



no warrant was required. 


                            To  determine whether this surveillance constituted a search, the Court  



                                                                                                                                       The Court ultimately  

applied the two-part "reasonable expectation of privacy" test. 


concluded  that  Ciraolo's  expectation  of  privacy  from  aerial  surveillance  was  not  


       7      California v.  Ciraolo, 476 U.S. 207 (1986).  

       8      Id. at 209.  

       9      Id. at 209-10.  

       10     Id. at 214-15.  

       11     Id.  at  211  (citing  Katz  v.  United  States,  389   U.S.  347,  360  (1967)  (Harlan,  J.,  

concurring), and Smith v. Maryland                                     , 442 U.S. 735, 740 (1979)).  

       12     Id. at 214.  

                                                                                     - 8 -                                                                                2675

----------------------- Page 9-----------------------

                        In reaching this conclusion, the Court acknowledged that Ciraolo's yard                                                    


was within the curtilage of his home                                                                                                                 

                                                                      - i.e., "the land immediately surrounding and  


associated  with  the  home"  in  which  a  resident  retains  a  reasonable  expectation  of  



privacy.           As the Court explained, "[t]he protection afforded the curtilage is essentially  


a protection of families and personal privacy in an area intimately linked to the home,  



both physicallyand psychologically, whereprivacy expectations aremost heightened." 


                        But the Court noted that the federal constitution does not prohibit police  


observation of an area simply because that area is within the curtilage, if the police make  


the observation from a place where they are entitled to be.  The Court likened the sky to  


a "public thoroughfare," and declared that "the mere fact that an individual has taken  


measures  to  restrict  some  views  of  his  activities  [does  not]  preclude  an  officer's  


observations from a public vantage point where he has a right to be and which renders  



the activities clearly visible." 


                        The  Court  noted  that  the  aerial  observations  by  the  police  officers  in  


Ciraolo's case were made "within public navigable airspace in a physically nonintrusive  


manner," and that these observations revealed "plants readily discernible to the naked  



eye as marijuana."                      Given the fact that "[a]ny member of the public flying in this  


airspace who glanced down could have seen everything that these officers observed," the  

      13    Id. at 212-13.  

      14    Oliver v. United States, 466 U.S. 170, 180 (1984); see also Kelley v. State, 347 P.3d   

 1012, 1014-15 (Alaska App. 2015) (recognizing that the protection against unreasonable  

searches "extends to the curtilage of the home - those areas immediately surrounding the  

home in which the resident retains a reasonable expectation of privacy").  

      15    Ciraolo, 476 U.S. at 212-13.  

      16    Id. at 213 (emphasis added) (citation omitted).  

      17    Id.  

                                                                         - 9 -                                                                    2675

----------------------- Page 10-----------------------

Court concluded that any expectation that Ciraolo's yard would be protected from aerial                                                    


observation   was  unreasonable.                                                                                                             

                                                             Accordingly,  the  Court  held  that  no  search  had  



occurred, and thus no warrant was required. 


                       Justice Powell, joined by three other members of the Court, dissented from  


this holding.  The dissenters argued that, under normal circumstances, "the actual risk  


to  privacy  from  commercial  or  pleasure  aircraft  is  virtually  nonexistent  [because]  


[t]ravelers on commercial flights, as well as private planes used for business or personal  


reasons, normally obtain at most a fleeting, anonymous, and nondiscriminating glimpse  



of  the  landscape  and  buildings  over  which  they  pass."                                              Thus,  according  to  the  


dissenters, "[t]he risk that a passenger on such a plane might observe private activities,  


and might connect those activities with particular people, is simply too trivial [for a  



                                                            In contrast, in Ciraolo's case, the "police conducted  

homeowner] to protect against." 


an overflight at low altitude solely for the purpose of discovering evidence of crime  


within a private enclave into which they were constitutionally forbidden to intrude at  



ground level without a warrant."                          For these reasons, the dissenters concluded, Ciraolo's  


expectation of privacy was reasonable, and the warrantless aerial surveillance of his yard  



constituted a search. 

      18   Id. at 213-14.  

      19   Id. at 214-15.  

      20    Ciraolo, 476 U.S. at 223 (Powell, J., dissenting).  

      21   Id. at 223-24.  

      22   Id. at 224-25.  

      23   Id. at 225.  

                                                                     -  10 -                                                                2675

----------------------- Page 11-----------------------

                       The result in  Ciraolo - if not its rationale - was reaffirmed three years                                   


later when the Court decided                       Florida v. Riley            .                                                                

                                                                                     Riley lived in a mobile home on five  


acres of rural property, and a partially enclosed greenhouse was located ten to twenty feet  


behind his mobile home. The police received a tip that Riley was growing marijuana on  


his property.  When an investigating officer was unable to see the contents of Riley's  


greenhouse from the road, the officer flew over Riley's property - this time, in a  


helicopter at a height of only 400 feet.  With his naked eye, the officer was able to see  



what he believed to be marijuana growing in the greenhouse.                                                    The officer obtained a  


search  warrant  based  on  these  observations,  and  the  subsequent  search  uncovered  



marijuana growing in the greenhouse. 


                       Riley argued that the helicopter flight over his property was an illegal  


warrantless search that violated the Fourth Amendment.  In a divided decision with no  



majority opinion, the Supreme Court rejected this argument.                                                A four-member plurality  



                                                                                                      The plurality noted that the  

concluded that Riley's case was controlled by Ciraolo. 


helicopter was being lawfully operated within the Federal Aviation Administration's  


(FAA) altituderestrictions forhelicopters, and that therefore"[a]ny member ofthepublic  


could legally have been flying over Riley's property [in the same manner as the police  



officer] and could have observed Riley's greenhouse." 

      24   Florida v. Riley, 488 U.S. 445 (1989).  

      25   Id. at 448.  

      26   Id. at 448-49.  

      27   Id. at 449-52.  

      28   Id. at 449.  

      29   Id. at 451. Helicopters are generally permitted to fly at any altitude "[i]f the operation                             


                                                                      -  11 -                                                                 2675

----------------------- Page 12-----------------------

                          The plurality declined to say "[whether] an inspection of the curtilage of a                                                                

house from an aircraft will always pass muster under the Fourth Amendment simply                                                 


because the plane is within the navigable airspace specified by law."                                                                                             

                                                                                                                                             However, the  


plurality noted that there was "nothing in the record . . . to suggest that helicopters flying  


at 400 feet are sufficiently rare in this country to lend substance to [Riley's] claim that  


he reasonably anticipated that his greenhouse would not be subject to observation from  



that altitude."                  There was similarly no suggestion that the helicopter interfered with  



Riley's use of his greenhouse or other parts of his curtilage. 


                          Justice O'Connor concurred in the Court's resolution of the case, but she  


wrote separately to explain her different rationale for reaching this result.  In her view,  


"the plurality's approach rest[ed] the scope of Fourth Amendment protection too heavily  


on compliance with FAA regulations whose purpose is to promote air safety, not to  



protect [Fourth Amendment rights]."                                        According to Justice O'Connor, the question was  


"not whether the helicopter was where it had a right to be under FAA regulations," but  


rather "whether the helicopter was in the public airways at an altitude at which members  


of the public travel with sufficient regularity that Riley's expectation of privacy from  



aerial observation was not 'one that society is prepared to recognize as "reasonable." ' " 

       29    (...continued)  

[of the helicopter] is conducted without hazard to persons or property on the surface."  14  


C.F.R. § 91.119(d).  

       30    Riley, 488 U.S. at 451.  

       31    Id. at 451-52.  

       32    Id. at 452.  

       33    Id. (O'Connor, J., concurring).  



             Id.  at  454  (quoting Katz  v.  United  States,  389  U.S.  347,  361  (1967)  (Harlan,  J.,  


                                                                              -  12 -                                                                         2675

----------------------- Page 13-----------------------

Justice   O'Connor   then   concluded   that   Riley   had   the   burden   of   proving   that   his  

expectation of privacy was reasonable -                              i.e., that public use of airspace at altitudes of                     


400 feet was rare.                                                                                                                 

                                  Because Riley did not present any evidence on this point, Justice  


O'Connor  agreed  with  the  plurality  that  he  had  failed  to  show  that  his  Fourth  




Amendment rights were violated. 


                      Justice Brennan, in a dissenting opinion joined by Justices Marshall and  


Stevens, criticized the plurality for "undertak[ing] no inquiry into whether low-level  


helicopter surveillance by the police of activities in an enclosed backyard is consistent  


with the 'aims of a free and open society,'" and instead relying on the fact that any  



member of the public could have observed Riley's greenhouse from the air.                                                           These  



dissenting justices, plus Justice Blackmun in a separate dissent,                                             agreed with Justice  


O'Connor that "the fundamental inquiry is not whether the police were where they had  


a right to be under FAA regulations, but rather whether Riley's expectation of privacy  


was rendered illusory by the extent of public observation of his backyard from aerial  



traffic at 400 feet."             But they diverged from Justice O'Connor on the question of which  



party bore the burden of proof on this issue. 

      34   (...continued)  


      35   Id. at 455.  

      36   Id.  

      37   Riley, 488 U.S. at 456-57 (Brennan, J., dissenting) (quoting Anthony G. Amsterdam,   

Perspectives on the Fourth Amendment, 58 Minn. L. Rev. 349, 403 (1974)).  

      38   Id. at 467 (Blackmun, J., dissenting).  

      39   Id. at 464-65 (Brennan, J., dissenting).  

      40   Id.  at  465-66  (Brennan,  J.,  dissenting)  ("Because  the  State  has  greater  access  to  


                                                                  -  13 -                                                             2675

----------------------- Page 14-----------------------

                      Turning to the facts of McKelvey's case, there is no dispute that Trooper                


Moore was flying in airspace where he had a legal right to be under FAA regulations.                                                              


But  to  the  extent  that  Ciraolo relies  on  the  legality  of  the  police  overflight  as  the  


benchmark for assessing a person's reasonable expectation of privacy, the concurrence  


and the two dissents in Riley  call this analysis into question.  A majority of the Riley  


court (the four dissenters and the one concurring justice) agreed that the case turned, not  


on whether FAA regulations permitted an overflight at that altitude, but instead on  


whether the target of the surveillance could reasonably expect aerial privacy, given the  



frequency of air travel at the relevant altitude. 


                      Here, McKelvey testified that low-altitude flights were uncommon near his  


property, and that the trooper's flyover was notable. He testified that he heard the plane  


overhead, and he stepped outside to see the plane's tail end passing by, only to see it  

      40   (...continued)  


information concerning customaryflight patterns and because the coercive power of the State  


ought not be brought to bear in cases in which it is unclear whether the prosecution is a  


product of an unconstitutional, warrantless search, . . . the burden of proof properly rests with  


the  State and not with the individual defendant." (internal citation omitted)); Id.  at  468  


(Blackmun, J., dissenting) (concluding that the State should bear the burden of proof "for any  

helicopter surveillance case in which the flight occurred below 1,000 feet - in other words,  


for  any  aerial  surveillance  case  not  governed  by  the  Court's  decision  in  California  v.  


      41   See 14 C.F.R. § 91.119(b) & (c) (providing that a fixed-wing aircraft may not operate,  


over congested areas, below "an altitude of 1,000 feet above the highest obstacle within a  


horizontal radius of 2,000 feet of the aircraft" and, over non-congested areas, below "[a]n  


altitude of 500 feet above the surface, except over open water or sparsely populated areas.  


In those cases, the aircraft may not be operated closer than 500 feet to any person, vessel,  


vehicle, or structure.").  

      42   Riley, 488 U.S. at 455 (O'Connor, J., concurring), 464-65 (Brennan, J., dissenting),  

& 467 (Blackmun, J., dissenting); see  1 Wayne R. LaFave, Search and Seizure § 2.1(d), at  

592 (5th ed. 2012).  

                                                                   -  14 -                                                              2675

----------------------- Page 15-----------------------

return several minutes later.                                                                               McKelvey acknowledged that there was a private airstrip                                                                                                                                          

a mile away, but he said that the only air traffic he had ever observed was "several times                                                                                                                                                                                                                          

higher" and that this flyover was "the first time [he had] ever seen a plane that low" or                                                                                                                                                                                                                                        

heard engine noise so loud over his house.                                                                                               

                                                   Thesuperior courtfoundMcKelvey'stestimonyon this                                                                                                                                                            pointunpersuasive,   

in light of the frequency of air travel in Alaska generally and the presence of an air strip                                                                                                                                                                                                                            

a mile from McKelvey's property.                                                                                                    But there was no specific evidence presented about                                                                                                                             

the frequency of air travel at 600 feet in the vicinity of McKelvey's residence, or the                                                                                                                                                                                                                                     

frequency of flights from the nearby airstrip.                                                                                                                             Conceivably, the question of which party                                                                                                  

bears the burden of proof as to flight frequency could matter to McKelvey's claim under                                                                                                                                                                                                                            

the federal constitution.                 

                                                   McKelvey does not brief this question.                                                                                                                Instead, he focuses on a different                                                         

distinction between his case and the facts of                                                                                                                         Ciraolo  and  Riley.   Both  Ciraolo  and  Riley  

involved naked-eye observations. In                                                                                                         Ciraolo, the police documented their observations                                                                                            

by taking photographs with a standard 35mm camera, but there was no claim that this                                                                                                                                                                                                                                        

camera   enhanced   the   officers'   view   of   the   yard.43  


                                                                                                                                                                                                               And  in  Riley,  the  police  made  



observations without any technological assistance.                                                                                                                                                      In McKelvey's case, by contrast,  


the police used a camera equipped with a magnifying lens.  


                                                   This useoftelephoto technology couldpotentially affectMcKelvey'sclaim  


under the federal constitution.  The final sentence of Ciraolo, for instance, states that  


"[t]he Fourth Amendment simply does not require the police traveling in the public  


airways at this altitude to obtain a warrant in order to observe what is visible to the naked  

             43           California v. Ciraolo, 476 U.S. 207, 209, 212-13 (1986).  

             44          Riley, 488 U.S. at 448 (plurality opinion).  

                                                                                                                                                         -  15 -                                                                                                                                                       2675

----------------------- Page 16-----------------------


eye."    Then, in a footnote, the Court pointed out that the State had acknowledged that                                                               

"[a]erial   observation   of   curtilage   may   become   invasive,   either   due   to   physical  

intrusiveness or through modern technology which discloses to the senses those intimate                                                        

associations, objects or activities otherwise imperceptible to police or fellow citizens."                                                                46  


                        Relying  on  these  statements  from  Ciraolo,  McKelvey  asserts  that  the  


telephoto lens used in his case allowed the trooper to observe things that were not  


otherwise  visible  to  the  naked  eye,  and  he  argues  that  this  turned  an  otherwise  


permissible police surveillance into a search requiring a warrant.  


                        But the language McKelvey relies on from Ciraolo indicates only that the  


police do not need a warrant to observe what is visible to the naked eye.  This does not  


necessarily imply that, under the Fourth Amendment, the police do need a warrant if they  


intend to use commonly available technological enhancements to observe what is not  


visible to the naked eye.  


                        McKelvey also relies on the Supreme Court's decision in Kyllo v. United  



                 In Kyllo, the Court considered "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."                                                                  The Court  


held  that  "obtaining  by  sense-enhancing  technology  any  information  regarding  the  


interior of the home that could not otherwise have been obtained without physical  

      45    Ciraolo, 476 U.S. at 215 (emphasis added).  

      46    Id. at 215 n.3 (alteration in original).  

      47    Kyllo v. United States, 533 U.S. 27 (2001).  

      48    Id. at 29.  

                                                                         -  16 -                                                                    2675

----------------------- Page 17-----------------------

intrusion into a constitutionally protected area constitutes a search - at least where . . .                                                             


the technology in question is not in general public use."                                                


                        But this passage from Kyllo  does not answer the question presented in  


McKelvey's case, since the trial court explicitly found that the type of telephoto lens  


used to view McKelvey's greenhouse was indeed in general public use, and McKelvey  


does not challenge this finding.  


                        We therefore think it is unlikely that McKelvey would prevail under the  


Fourth Amendment. Perhaps the most that can be said is that the existing Supreme Court  


jurisprudence does not provide a definitive answer.  


             Why we conclude that the Alaska Constitution requires a warrant for the  


            type of aerial surveillance in this case  


                        As  we  noted  earlier,  Alaska  has  adopted  the  two-part  reasonable- 


 expectation-of-privacy test for determining whether a search has occurred for purposes  



 of Article I, Section 14 of the Alaska Constitution.                                      Although this is seemingly the same  


test that the federal courts employ under the Fourth Amendment, the application of this  


test is somewhat different under Alaska law.  


                        First,theAlaskaSupremeCourthas recognized that "theexplicit protection  


 of privacy set out in article I, section 22 of the Alaska Constitution necessarily . . .  


increases the likelihood that a person's expectation  of privacy .  . .  can  be deemed  

      49    Id. at 34 (citation and internal quotations omitted).  

      50    See State v. Glass, 583 P.2d 872, 875 (Alaska 1978) (citing Smith v. State, 510 P.2d  


 793, 797 (Alaska 1973)) (recognizing Alaska's adoption of the two-part expectation-of- 


privacy test set forth in Justice Harlan's concurrence in Katz); Pearce v. State, 45 P.3d 679,  

 682 (Alaska App. 2002) (same).  

                                                                        -  17 -                                                                  2675

----------------------- Page 18-----------------------


objectively reasonable."                       Thus, although we apply the same analytical framework as                                             

the federal courts to determine whether governmental scrutiny constitutes a search for   

constitutional purposes, Alaska law is more likely to recognize that an expectation of                                                              

privacy   is   reasonable,   given   our   express   constitutional   protection   for   the   right   of  



                       Second, Alaska courts have applied the reasonable-expectation-of-privacy  


test  in  a  manner  more  consistent  with  its  constitutional  underpinnings,  while  


commentators have criticized the United States Supreme Court's application of the two- 


part test as having become unmoored from its original purpose.  


                       The Supreme Court's decisions in Ciraolo and Riley are paradigmatic of  


this problem.   In both of these decisions, the objective reasonableness of a person's  


expectation of privacy was treated as a question of fact rather than as a question of  


constitutional law, with members of the Court suggesting that the answer turned on  


whether "a single member of the public could conceivably position herself to see into the  



area in question without doing anything illegal." 

      51    Beltz v. State, 221 P.3d 328, 334 (Alaska 2009).  Article I, section 22 of the Alaska   

Constitution provides in relevant part:  "The right of the people to privacy is recognized and                             

shall not be infringed."  



            See, e.g., Beltz, 221 P.3d at 332-35 (concluding, contrary to federal law, California  


v.  Greenwood, 486 U.S. 35 (1988), that Alaskans have some reasonable expectation of  


privacy in garbage set out for routine collection on or adjacent to a public street); see also  


State v. Gibson, 267 P.3d 645, 659 (Alaska 2012) ("Alaska courts have used section 22's  


right to privacy to give section 14's protection against unreasonable searches and seizures  

'a liberal interpretation.'" (quoting Anchorage v. Ray , 854 P.2d 740, 750 (Alaska App.  


      53    Florida v. Riley, 488 U.S. 445, 457 (1989) (Brennan, J., dissenting).  

                                                                      -  18 -                                                                  2675

----------------------- Page 19-----------------------

                             Professor LaFave has criticized this approach in his treatise on the law of                                                                             

 search and seizure:     

                             [W]hile "privacy may have been a promising theory of the                                                                  

                             Fourth Amendment at one time, it has now lost much of its                                                                  

                             luster and utility" because of two serious mistakes by the                                                               

                             Court   in   post-Katz   cases:    the   Court   (1)   "has   interpreted  

                             privacy to be a question of fact rather than a constitutional                                     

                             value" and (2) is apparently "out of touch with society's true                                                          


                             expectations of privacy."                                    


                             In contrast, Professor LaFave suggests that the question of whether the  


 second prong of the reasonable expectation test is satisfied under a particular set of facts  


 should be viewed as an issue of law, and that the answer entails "a value judgment": The  


"ultimate question" is "whether, if the particular form of surveillance practiced by the  


police is permitted to go unregulated by constitutional restraints, the amount of privacy  


and freedomremaining to citizens would be diminished to a [scope] inconsistent with the  




aims of a free and open society." 


                             The  Alaska  Supreme  Court  has  expressly  adopted  this  value-based,  



                                                                                                                                   Thus, Alaska law gives a  

question-of-law approach endorsed by Professor LaFave. 


broader reading to the second prong of the reasonable expectation test.  


                             With this legal background, we now turn to the question presented in this  


case:  If our state constitution does not regulate the type of technologically enhanced  


aerial government surveillance of a person's residential curtilage that occurred in this  

        54     1 Wayne R. LaFave, Search and Seizure  § 2.1(d), at 590-92 (5th ed. 2012) (quoting  

Erik G. Luna, Sovereignty and Suspicion, 48 Duke L.J. 787, 825, 827 (1999)).  



              Id.  § 2.1(d), at 590 (quoting Anthony G. Amsterdam, Perspectives on the Fourth  

Amendment , 58 Minn. L. Rev. 349, 403 (1974)).  

        56     Cowles v. State, 23 P.3d 1168, 1171 (Alaska 2001).  

                                                                                      -  19 -                                                                                  2675

----------------------- Page 20-----------------------

case, would the amount of privacy remaining to Alaska citizens be diminished to an                                                                                                     

extent inconsistent with the aims of a free and open society?                                                         

                              We start with the foundational principle that the right to privacy is at its                                                                                    

pinnacle   when   the   government's  conduct   implicates   Alaskans'   right   to   be   left  

undisturbed in their homes. As the Alaska Supreme Court said in 1975 in                                                                                            Ravin v. State                 ,  

"If there is any area of human activity to which a right to privacy pertains more than any                                                                                                  


other, it is the home."                                                                            

                                                       The supreme court continued:  


                              The  privacy  amendment  to  the  Alaska  Constitution  was  


                              intended  to  give  recognition  and  protection  to  the  home.  


                              Such  a  reading  is  consonant  with  the  character  of  life  in  


                              Alaska.   Our . . . state has traditionally been the home of  


                              people who prize their individuality and who have chosen to  


                              settle or to continue living here in order to achieve a measure  


                              of control over their own lifestyles which is now virtually  



                              unattainable in many of our sister states. 


                              The area immediately surrounding and associated with the home - the  



"curtilage" of a person's home - merits the same heightened constitutional protection. 


This is the area "to which extends the intimate activity associated with the sanctity of a  



man's home and the privacies of life." 

        57     Ravin v. State, 537 P.2d 494, 503 (Alaska 1975).  

        58     Id. at 503-04.  

        59     See Oliver v. United States, 466 U.S. 170, 180 (1984);  Hakala v. Atxam Corp., 753  

P.2d 1144, 1149 n.8 (Alaska 1988); Kelley v. State, 347 P.3d 1012, 1013-14 (Alaska App.  

2015); see also State v. Bryant, 950 A.2d 467, 473 (Vt. 2008) ("A home's curtilage-the area  

outside the physical confines of a house into which the privacies of life may extend-merits                                                                        

the same constitutional protection from unreasonable searches and seizures as the home   

itself." (citations and internal quotation marks omitted)).  



               Oliver, 466 U.S. at 180 (citation and internal quotations omitted). The Supreme Court  


                                                                                           - 20 -                                                                                       2675

----------------------- Page 21-----------------------

                       The mere fact that a police aircraft is operated in compliance with FAA                                                 

regulations is not a suitable standard for assessing whether the police have violated a                                                              


person's   reasonable   expectation   of   privacy   in   their   residential   curtilage.                                                   FAA  



                                                                                                                                      And even  

regulations are primarily designed to ensure air safety, not protect privacy. 


if these regulations were in part designed to protect privacy, we would still have an  


independent duty to ensure that those protections were no less than those guaranteed by  


the Alaska Constitution.  


                       Moreover, as the Ciraolo dissenters noted, there is a qualitative difference  


between the observations that a pilot, crew member, or passenger might make during  


typical air travel and the observations that a police officer might make when engaged in  


"an overflight at low altitude solely for the purpose of discovering evidence of crime  


within a private enclave into which they were constitutionally forbidden to intrude at  

      60    (...continued)  


has defined the curtilage by reference to four factors:  "the proximity of the area claimed to  

be curtilage to the home, whether the area is included within an enclosure surrounding the  


home, the nature of the uses to which the area is put, and the steps taken by the resident to  


protect the area from observation by people passing by."   United States v. Dunn, 480 U.S.  

294, 301 (1987) (citations omitted).  

      61    Bryant, 950 A.2d at 478 (recognizing that simply "abiding by the law in occupying  


a particular spot in the public airspace" is not "an adequate test of whether government  


surveillance from that same spot is constitutional"); see also Florida v. Riley, 488 U.S. 445,  


453 (1989) (O'Connor, J., concurring) ("[T]here is no reason to assume that compliance with  

FAA regulations alone determines whether the government's intrusion infringes upon the  


personal and societal values protected by the Fourth Amendment." (citation and internal  


quotations  omitted));  State  v.  Davis,  360  P.3d  1161,  1182  (N.M.  2015)  (Chávez,  J.,  


concurring) (declining to rely on an aircraft's altitude to evaluate the constitutionality of  


government aerial surveillance).  

      62    See Riley, 488 U.S. at 452 (O'Connor, J., concurring) (recognizing that the purpose  

of FAA regulations is to promote air safety, not to protect Fourth Amendment rights).  

                                                                      - 21 -                                                                   2675

----------------------- Page 22-----------------------


ground level without a warrant."                                                     The views afforded by commercial and private flights                                                               

are normally "fleeting, anonymous, and nondiscriminating," and the "risk that [someone                                                                                                         

on the] plane might observe private activities, and might connect those activities with                                                                                                                     


particular people, is simply too trivial to protect against."                                                                                       Thus, a person's failure to  


completely  hide  their  curtilage  from  aerial  observation  should  not  defeat  their  



expectation of privacy. 


                                 Ultimately, we agree with the Vermont Supreme Court that there is  a  


fundamental flaw in the United States Supreme Court's approach to aerial surveillance  

         63      California v. Ciraolo, 476 U.S. 207, 224-25 (1986) (Powell, J., dissenting).    We  

acknowledge that, under Alaska constitutional law, the fact that a person's activities were  

"actuallyobserved for the purpose of detecting misconduct does not affect the results of [our]                                                                                                              

analysis."    Cowles   v.   State,   23 P.3d 1168, 1173 (Alaska 2001).   There is a distinction,   

however, between purpose and conduct.  Although the dissenters in Ciraolo  mentioned the  

law enforcement purpose of the surveillance, we view this as a means to explain how the                                                                  

police  conduct  -   low-altitude  surveillance  targeted  at  a  specific  location  -  was  

qualitatively   different,  for  the  sake  of   determining  whether  Ciraolo  had  a   reasonable  

expectation of privacy, from the conduct (                                                        i.e., passing glimpses) of commercial air travelers.       

         64      Ciraolo, 476 U.S. at 223-24 (Powell, J., dissenting).  

         65      See  1 Wayne R. LaFave, Search and Seizure  § 2.3(g), at 799-800 (5th ed. 2012)  


(citing Ciraolo, 476 U.S. at 223-24 (Powell, J., dissenting)); see also State v. Quiday, 405  


P.3d 552, 562 (Haw. 2017) (holding warrantless overflights unconstitutional even though  

people  "may unavoidably be  exposed  to  casual  glances  from  passing  aircraft"  (quoting  


People  v.  Cook,  710  P.2d  299,  304  (Cal.  1985));  Brian  J.  Sear,  Great  Expectations  of  


Privacy: A New Model for Fourth Amendment Protection, 73 Minn. L. Rev. 583, 615-16  

(1989) ("When government agents . . . have identified a backyard as belonging to a particular  

individual,  and  consciously glide,  fly,  or  hover  over  that  curtilage  to  monitor  activities  


occurring there, those agents have intruded on privacy expectations to a far greater degree  


than  those  few  uncaring  members  of  the  public  to  whom  sunbathers  have  'knowingly'  


exposed a quick glimpse of an unidentifiable person.").  


                                                                                                    - 22 -                                                                                                 2675

----------------------- Page 23-----------------------

in  Ciraolo:   it fails to take sufficient account of the heightened significance of the home                                                  

and its curtilage as places of privacy under our state constitution.                                              66  


                        On appeal, the State acknowledges that the federal test developed by the  


United States Supreme Court fails to sufficiently protect Alaskans' privacy rights, and  


the State asks us to impose a more demanding test under the Alaska Constitution.  


                        The State's proposed test would rest on several factors.  The first two of  


these factors would be (1) whether the police overflight was conducted in accordance  


with FAA regulations, and (2) whether the overflight took place in a geographic area  


where overflights could be expected.  However, the State acknowledges that these first  


twofactors do not, by themselves, providesufficient safeguardsforprivacy,"particularly  


in the case of aircraft such as helicopters and drones."  Thus, the State proposes that we  


adopt - and place more emphasis on - two other elements:  "the intrusiveness of the  


overflight," and whether the overflight "was conducted in a manner that did not violate  


reasonable expectations of privacy."  


                        We agree in general with the proposition that aerial surveillance must not  


be conducted in a manner that violates a person's reasonable expectation of privacy. But  


we disagree with the State about what this concept means.  


                        The State suggests that the aerial surveillance in McKelvey's case was  


minimally intrusive and that it did not violate any reasonable expectation of privacy that  

      66    See State v. Bryant, 950 A.2d 467, 475 (Vt. 2008) ("[W]e find the Court's analysis in  

 Ciraolo  to  lack  the  consideration  for  the  significance  of  the  home  and  its  curtilage  as  


 'repositor[ies]            of    heightened            privacy   expectations'                  that      our     [state       constitutional]  


jurisprudence demands.") (quoting State v. Geraw, 795 A.2d 1219, 1221 (Vt. 2002)); see also  


 Ciraolo, 476 U.S. at 219 (Powell, J., dissenting) (asserting that the majority's decision in  


 Ciraolo was "curiously at odds" with its own reaffirmation of the curtilage doctrine, both in  


 Ciraolo itself and in a second opinion issued that same day, Dow Chemical Co. v. United  


States, 476 U.S. 227, 235 (1986)).  

                                                                       - 23 -                                                                   2675

----------------------- Page 24-----------------------

 McKelvey may have had.   Alternatively, the State suggests that the aerial surveillance   

 only violated McKelvey's reasonable expectation of privacy to a slight degree - a                                                                                                                        

 degree that might require the surveillance to be supported by reasonable suspicion, but                                                                                                              

that would not require a search warrant based on probable cause.                                                                                          67  


                                But we disagree with the State's proposed analysis in two major respects,  


 and we conclude that the State's proposed test fails to adequately protect Alaskans'  


heightened expectation of privacy in their homes.  


                                First, under the State's proposed test, it appears that, in most instances,  


police aerial surveillance would only constitute a search if it affirmatively caused a  


 disturbance  or  created  a  risk  of  harm to  persons  or  property  on  the  ground.                                                                                                          This  



 approach has characterized the analyses of many state courts,                                                                                     but we conclude that this  

        67      See Beltz v. State, 221 P.3d 328 (Alaska 2009) (requiring the police to have reasonable  

 suspicion before they search through garbage that the owner has set out for collection).   

        68      See, e.g.,   People v. Pollack, 796 P.2d 63, 64-65 (Colo. App. 1990) (holding that  

 defendant had a reasonable expectation of privacy from helicopter surveillance because of   

 (1) "the infrequency of helicopter flights at 200 feet," and (2) "the excessive noise created  

by the helicopter as it circled the area");                                              Davis, 360 P.3d at 1171-72 (holding that warrantless  

 aerial surveillance of the defendant's greenhouse amounted to an unconstitutional search,     

 given the "prolonged hovering" by the helicopter "close enough to the ground to cause   

 interference" with Davis's property:  "[W]hen low-flying aerial activity leads to more than   

just observation and actually causes an unreasonable intrusion on the ground . . . then at some   

point courts are compelled to step in and require a warrant before law enforcement engages  

 in such activity."); Commonwealth v. Oglialoro, 579 A.2d 1288, 1292-94 (Pa. 1990) (holding  


that, in general, FAA regulations provide a useful reference in determining legality of aerial  

 surveillance, but concluding that helicopter's presence at 50 feet for 15 seconds created a risk  


 of harm and was therefore impermissible); State v. Wilson, 988 P.2d 463, 465 (Wash. App.  


 1999) ("Aerial surveillance is not a search where the contraband is identifiable with the  


unaided eye, from a lawful vantage point,  and from a nonintrusive altitude.   But aerial  


 surveillance may be intrusive and require a warrant if the vantage point is unlawful or the  

method of viewing is intrusive." (internal citations omitted)).  

                                                                                               - 24 -                                                                                             2675

----------------------- Page 25-----------------------

approach is flawed.                 

                      The    primary    purpose    of    Alaska's    constitutional    guarantee    against  

unreasonable searches and seizures is to protect "personal privacy and dignity against                                              



unwarranted intrusion by the State."                             The amount of noise, wind, and dust created by  


a police overflight is not an appropriate measure of whether the overflight infringed on  


these protections.  


                      In his dissent in Riley, Justice Brennan specifically took issue with the  


plurality's reliance on the fact that the helicopter surveillance created "no undue noise,  



and no wind, dust, or threat of injury."                              Justice Brennan responded to this argument  


with a prescient hypothetical:  


                      Imagine  a  helicopter  capable  of  hovering  just  above  an  


                      enclosed courtyard or patio without generating any noise,  


                      wind, or dust at all - and, for good measure, without posing  


                      any  threat  of  injury.                Suppose  the  police  employed  this  


                      miraculous tool to discover not only what crops people were  


                      growing in their greenhouses, but also what books they were  


                      reading and who their dinner guests were.  Suppose, finally,  


                      that the FAA regulations remained unchanged, so that the  


                      police  were  undeniably  "where  they  had  a  right  to  be."  


                      Would today's plurality continue to assert that "[t]he right of  


                      the people to be secure in their persons, houses, papers, and  


                      effects, against unreasonable searches and seizures" was not  


                      infringed  by  such  surveillance?                         Yet  that  is  the  logical  


                      consequence of the plurality's rule that, so long as the police  


                      are where they have a right to be under air traffic regulations,  


                      the  Fourth  Amendment  is  offended  only  if  the  aerial  


                      surveillance  interferes  with  the  use  of  the  backyard  as  a  

      69   Weltz v. State       , 431 P.2d 502, 506 (Alaska 1967) (quoting                        Schmerber v. California, 384  

U.S. 757, 767 (1966)).  

      70   Riley, 488 U.S. at 461 (Brennan, J., dissenting) (quoting the plurality opinion).  

                                                                  - 25 -                                                               2675

----------------------- Page 26-----------------------

                            garden spot.               Nor is there anything in the plurality's opinion                                 

                            to suggest that any different rule would apply were the police                                                 

                            looking from their helicopter, not into the open curtilage, but                                                      

                            through an open window into a room viewable only from the                                                            



                            Three decades ago, Justice Brennan might properly call such technology  


"miraculous." But today we would call it commonplace. Remote-controlled drones and  


lightweight, high-resolution video cameras are readily available to the public and the  


police alike. We agree with Justice Brennan that, in light of this technology, an approach  


that focuses on the amount of disruption or disturbance caused by the police surveillance  


is fundamentally inadequate to protect the rights guaranteed to Alaska's citizens by our  



                            This brings us to our second area of disagreement with the State's analysis.  


We reject the State's assertion that the police aerial surveillance in this case constituted,  


at most, a minor infringement of McKelvey's reasonable expectation of privacy.  


                            At least two high courts - the California Supreme Court and the Hawaii  


Supreme Court - have held that an individual has a reasonable expectation of privacy  


fromgovernmental aerial surveillance of their house and residential curtilage if the aerial  



surveillance is conducted for the purpose of detecting criminal activity.                                                                              Both of these  


courts  acknowledged  that  a  person's  yard  "may  unavoidably  be  exposed  to  casual  

       71     Id. at 462-63.  

       72     The Alaska Legislature, acting upon these same privacy concerns, recently passed a                                                                   

law regulating the use of unmanned aircraft systems (                                                   i.e., drones) in criminal investigations.  

AS 18.65.902; SLA 2014, ch. 105, § 2.  The legislature's concern about the protection of   

privacy in the face of                        advancing technology underscores the importance of                                                            adhering to  

Alaska's strong preference for warrants under these circumstances.  

       73     People v. Cook, 710 P.2d 299, 305-08 (Cal. 1985); State v. Quiday, 405 P.3d 552, 562  


(Haw. 2017).  

                                                                                   - 26 -                                                                                2675

----------------------- Page 27-----------------------

glances from passing aircraft," but these courts concluded that residents should be able                                                                             

to "reasonably assume" that their curtilage will "not be intently examined by government                                                              

agents who are flying over it for the specific purpose of detecting criminal activity                                                                         



therein."              As the California Supreme Court stated in Cook:  


                           A society  where individuals are required  to  erect opaque  


                           cocoons within which to carry on any affairs they wish to  


                           conduct   in  private,   and  the  concomitant  chill  such  a  


                           requirement would placeonlawful outdoor activity,wouldbe  


                           inimical to the vision of legitimate privacy which underlies  



                           our state Constitution. 


Accordingly,  both  the  California  and  the  Hawaii  supreme  courts  have  held  that  


government aerial surveillance of an individual's residence and curtilage, conducted for  


the purpose of criminal investigation, qualifies as a "search" under their respective state  


constitutions and requires a search warrant (unless there is an applicable exception to the  



warrant requirement). 


                           This approach to police overflights finds strong support in Alaska law:  


Article I, Section 22 of the Alaska Constitution expressly guarantees a right of privacy;  

       74     Quiday, 405 P.3d at 562 (quoting Cook, 710 P.2d at 304).  

       75     Cook, 710 P.2d at 302.  

       76     The California Supreme Court's decision in Cook predated the United States Supreme  

Court's decision in  Ciraolo, but the California Supreme Court reaffirmed the holding of  


Cook in a post-Ciraolo decision.  See People v. Mayoff, 729 P.2d 166, 171-72 (Cal. 1986).  

Although the state constitutional ruling in Cook remains valid law, California residents later  

voted to amend the California Constitution to eliminate the application of the exclusionary  


rule to relevant evidence gathered in violation of the California Constitution. See Cal. Const.  


art I, § 28(f)(2); see Mayoff, 729 P.2d at 178 (Lucas, J., concurring) ("Only because this case  


and Cook arose prior to the adoption of Proposition 8 must we consider whether the searches  

conducted in those cases violated state constitutional requirements." (emphasis in original));  

Diana Friedland, 27 Years of "Truth-in-Evidence": The Expectations and Consequences of  

Proposition 8's Most Controversial Provision, 14 Berkeley J. Crim. L. 1 (2009).  

                                                                                - 27 -                                                                             2675

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Alaska law has a strong preference for requiring a warrant before the police conduct                                                        


 searches of people's residences;                                                                                                              

                                                            and the Alaska Supreme Court has adopted the "value  


judgment," question-of-law approach to the second prong of the reasonable expectation  



                        Moreover, it is easy to  see  why  Alaskans' sense of security might be  


 severely compromised if our constitution did not regulate purposeful aerial surveillance  


 of people's houses by law enforcement officers.  "[E]ven individuals who have taken  


 effective precautions to ensure against ground-level observations cannot block off all  


 conceivable aerial views of their outdoor patios and yards without entirely giving up  


their enjoyment of those areas."79  


                                                              And a person's right to privacy should not hinge on  


whether that person has the financial means to undertake the extraordinary measures that  



would be required to shield their curtilage from all aerial view. 


                        But we need not decide whether to adopt the same broad rule adopted in  


 California and Hawaii because, in McKelvey's case, there is one more factor to consider:  


Trooper Moore did not make his observations of McKelvey's backyard and greenhouse  


with his unaided naked eye; rather, he used a telephoto lens to enhance his view of the  


 contents of the greenhouse.  And as we explained earlier, when Moore testified at the  

      77    See State v. Jones, 706 P.2d 317, 323 (Alaska 1985); Reeves v. State, 599 P.2d 727,  

 735 (Alaska 1979).  

      78    Cowles v. State, 23 P.3d 1168, 1171 (Alaska 2001).  

      79    State v. Davis, 360 P.3d 1161, 1181 (N.M. 2015) (Chávez, J., concurring) (emphasis   

removed) (quoting Florida v. Riley, 488 U.S. 445, 454 (1989) (O'Connor, J., concurring)).  



            Id. at 1182; see also Cook, 710 P.2d at 305; 1 Wayne R. LaFave, Search and Seizure  


 §  2.6(c),  at  898-99  (5th  ed.  2012)  ("It  would  be  a  perversion  of Katz  to  interpret  it  as  


 extending protection only to those who resort to extraordinary means to keep information  


regarding their personal lives out of the hands of the police.").  

                                                                        - 28 -                                                                   2675

----------------------- Page 29-----------------------

evidentiary hearing in the superior court, he acknowledged that he was only able to see                                                                    

the buckets in the greenhouse by using this telephoto lens.                                                       Thus, this technological   

enhancement   of   Moore's   vision   was   a   significant  factor   in   his   ability   to   observe  

McKelvey's property.                        

                         We acknowledge that many courts have concluded that a police officer's                                                   

use of a commercially available camera - even one with a telephoto lens - does not                                                                


convert an otherwise permissible police observation into a "search."                                                                                               

                                                                                                                                  But we conclude  


that commercial availability should not be the determinative factor when analyzing  


whether a particular form of technology transforms state action into a search. Rather, an  


officer's  use  of  vision-enhancing  technology  should  be  deemed  a  "search"  if  the  


technology allows the officer to make observations that are significantly more detailed  


than what an unaided human eye would be able to see at the same distance.  


                         While we agree with the State that the telephoto lens used in this case did  


not reveal the same level of detail that a person could discern if they were physically  


present on the property, the lens did reveal a critical detail that Moore was apparently  

      81    See, e.g., Sundheim v. Bd. of Cty. Comm'rs, 904 P.2d 1337, 1351 (Colo. App. 1995);  


State v. Vogel, 428 N.W.2d 272, 275 (S.D. 1988); State v. Lange, 463 N.W.2d 390, 394-95  

(Wis. App. 1990).  Other cases that have upheld aerial surveillance have specified that the  

surveillance was done without technological enhancement, without deciding whether the use  


of technological enhancement would have altered the outcome. See, e.g., State v. Rodal, 985  


P.2d 863, 866 (Or. App. 1999) (finding it unnecessary to decide whether use of a telephoto  


lens during aerial surveillance of defendant's yard was sufficiently intrusive so as to violate  


protected privacy interests because the trial court found that the police "positively identified  


the marijuana plants on defendant's property with no visual aids other than his eyeglasses  


before using the telephoto lens to document his discovery" (emphasis in original)); State v.  

 Wilson, 988 P.2d 463, 465 (Wash. App. 1999) ("Aerial surveillance is not a search where the  


contraband is identifiable with the unaided eye, from a lawful vantage point, and from a  


nonintrusive altitude.  But aerial surveillance may be intrusive and require a warrant if the  


vantage point is unlawful or the method of viewing is intrusive." (internal citations omitted)).  

                                                                           - 29 -                                                                       2675

----------------------- Page 30-----------------------

unable to discern with his naked eye - the existence of the five-gallon buckets in the                                                                     



                           McKelvey could reasonably expect that, in the absence of a warrant, the  


police would not invade the airspace above his residential property and view his intimate  




activities using such a lens. 

                         Both the Alaska Supreme Court and this Court have repeatedly interpreted  


Article I, Section 14 of the Alaska Constitution to provide greater protection to Alaskans  


      82     The State attached to its brief a sample series of nine photographs (unconnected to this     

case), each displaying a view from an increasing focal length, from 18mm to 300mm. These                                                              

photographs (obtained from the Nikon website) show that the difference in detail between   

35mm and 200-300mm is significant.                                    See Diane Berkenfeld et al.,  Understanding Focal  

Length ,          Nikon,  

understanding-focal-length.html (photographs by Dave Black) (last visited Aug. 31, 2020).     

      83    See State v. Knight, 621 P.2d 370, 373-74 (Haw. 1980) (holding that the police's use  

of  binoculars  to  view  the  contents  of  the  defendant's  greenhouse  was  constitutionally  


impermissible where the property was located in a remote area, and the greenhouse was  


surrounded by vegetation and covered by materials that made it impossible for the naked eye  


to view the contents); Commonwealth v. Lemanski, 529 A.2d 1085, 1092-93 (Pa. Super. Ct.  

 1987) (holding that the police violated the defendant's reasonable expectation of privacy  


when they found an opening in the shrubbery outside the defendant's rural home, and used  


binoculars and a telephoto lens to peer into a greenhouse attached to the home);  Wheeler v.  

State, 659 S.W.2d 381, 390 (Tex. Crim. App. 1982) (holding  that the use of  a 600mm  


telescope  to  peer  through  five-inch  louvered  opening  in  opaque  greenhouse  from  a  


neighboring property about 100 yards away constituted a search where defendant lived in  


remote, rural area and police made "concerted effort to view what had tenaciously been  


protected as private"); cf. United States v. Taborda, 635 F.2d 131, 139 (2d Cir. 1980) ("We  

conclude that observation of objects and activities inside a person's home by unenhanced  


vision from a location where the observer may properly be does not impair a legitimate  


expectation of privacy.   However, any enhanced viewing of the interior of a home does  


impair a legitimate expectation of privacy and encounters the Fourth Amendment's warrant  


requirement, unless circumstances create a traditional exception to that requirement.").  But  


see State v. Citta, 625 A.2d 1162, 1163 (N.J. Super. Ct. 1990) ("Is the warrantless use of  


binoculars by a police officer to observe objects not visible to the naked eye an unreasonable  


search under the Fourth Amendment to the U.S. Constitution? We hold it is not.").  

                                                                          - 30 -                                                                       2675

----------------------- Page 31-----------------------


than the corresponding provisions of the Fourth Amendment.                                                                              As we explained in                     

Brown v. State, Alaska courts have given a broader interpretation to our state's search   

and seizure clause "when we were convinced that the United States Supreme Court's                                                                                  

interpretation of the Fourth Amendment 'fails to adequately safeguard our citizens' right                                                                                 

to  privacy,   .   .   .   fails   to   adequately   protect   citizens   from   unwarranted   government  

intrusion, and . . . unjustifiably reduces the incentive of police officers to honor citizens'                                                                    


constitutional rights.'"                                                                       

                                                    This is one of those situations.  


                            Accordingly, we now hold that when an individual has taken reasonable  


steps to protect their house and curtilage from ground-level observation, that individual  


has a reasonable expectation that law enforcement officers will not use a telephoto lens  


or  other  visual  enhancement  technology  to  engage  in  aerial  surveillance  of  the  

       84     Brown v. State, 182 P.3d 624, 633 & n.13 (Alaska App. 2008) (collecting cases); see,  


e.g., Beltz v. State, 221 P.3d 328, 332-35 (Alaska 2009) (concluding, contrary to federal law,  


that Alaskans have some reasonable expectation of privacy in garbage set out for routine  

collection on or adjacent to a public street); State v. Daniel, 589 P.2d 408, 417 (Alaska 1979)  


(holding that while the police may, upon impounding a vehicle, conduct an inventory to  


catalog all articles of value in the vehicle, "a warrantless inventory search of [any] closed,  

locked or sealed luggage, containers, or packages contained within a vehicle is unreasonable  


and thus an unconstitutional search" under Article I, Section 14 of the Alaska Constitution);  


State v. Glass, 583 P.2d 872, 879 (Alaska 1978) (holding that "Alaska's privacy amendment  


prohibits  the  secret  electronic  monitoring  of  conversations  upon  the  mere  consent  of  a  


participant"); Zehrung v. State, 569 P.2d 189, 199-200 (Alaska 1977) (concluding that, in  

contrast to federal law, "a warrantless search incident to an arrest, other than for weapons,  


is unreasonable and therefore violative of the Alaska Constitution if the charge on which the  

arrest is made is not one [for which] evidence . . . could be concealed on the person"),  


modified on reh'g, 573 P.2d 858 (Alaska 1978); Joseph v. State , 145 P.3d 595, 596, 605  

(Alaska App. 2006) (refusing to follow California v. Hodari D., 499 U.S. 621 (1991), where  


the Supreme Court held that the exclusionary rule does not apply to evidence obtained by  

police "while a person is fleeing from an impending unlawful detention").  

       85     Brown, 182 P.3d at 633 (alterations in original) (quoting Joseph , 145 P.3d at 605).  

                                                                                   - 31 -                                                                                2675

----------------------- Page 32-----------------------

individual's residential property for the purpose of investigating criminal activity.  In  


such  circumstances,  the  aerial  surveillance  constitutes  a  "search"  for  purposes  of  


Article I, Section 14 of the Alaska Constitution, and it requires a warrant unless there is  


an applicable exception to the warrant requirement.  


                    Because McKelvey had taken reasonable measures to protect the privacy  


of his residential curtilage from ground-level observation, and because Trooper Moore  


used a telephoto lens during his aerial surveillance of McKelvey's property to obtain an  


enhanced view of the greenhouse located within McKelvey's curtilage, the trooper's  


investigative overflight was a search that required a warrant. Here, there was no warrant,  


and there was no applicable exception to the warrant requirement.  Thus, the superior  


court should have granted McKelvey's motion to suppress.  



                    The judgment of the superior court is REVERSED.  


                                                            - 32 -                                                       2675

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