The Alaska Supreme Court ruled on Friday that law enforcement officers in Alaska are not permitted to conduct aerial surveillance of a person’s yard using a zoom lens without first obtaining a warrant.
In its ruling, the court said that it disagrees with the state’s claim that such surveillance was constitutional “because small airplane travel is so common in Alaska, and because any passenger might peer into your yard and snap a picture of you, law enforcement officials may do the same.”
“The fact that a random person might catch a glimpse of your yard while flying from one place to another does not make it reasonable for law enforcement officials to take to the skies and train high-powered optics on the private space right outside your home without a warrant.”
According to the ruling, the Alaska Constitution prohibits unregulated aerial surveillance of residents’ homes because such activity would be “inconsistent with the aims of a free and open society.”
“It is worth noting that most land in Alaska is not curtilage of the home, where the right to privacy is strongest. Therefore, authorities are not necessarily restricted from using aircraft and vision-enhancing technology to surveil those areas.”
But as for the curtilage, or area in and around a home, the ruling stated otherwise.
Ruling Stemming From 2012 Case
The Alaska Supreme Court ruling comes in a case that dates to 2012, when Alaska State Troopers received a tip from an informant that John William McKelvey III was growing marijuana on his property in a sparsely populated area north of Fairbanks.According to court documents, the informant had described seeing around 30 marijuana plants in five-gallon buckets and claimed that Mr. McKelvey took the plants into the greenhouse during the night.
In the court’s recounting of the case, two troopers, following up on the tip, flew past Mr. McKelvey’s property and used a camera with a high-power zoom lens to take photos that showed buckets containing “unidentifiable plants” inside the greenhouse.
Based on the tip and flight observations, a search warrant for his property was obtained. During the search, officers found items including marijuana plants, methamphetamine, scales, a rifle, and cash.
Mr. McKelvey had sought to have the evidence suppressed, contending that the information used to obtain the search warrant came from an illegal search. But a Superior Court judge denied that.
He was convicted of one court of third-degree misconduct involving a controlled substance and one count of second-degree weapons misconduct. Mr. McKelvey appealed, arguing the judge wrongly denied his motion to suppress.
An appeals court reversed the Superior Court judge holding that under the Alaska Constitution, the troopers were required to obtain a warrant before observing a person’s property from the air using a telephoto lens.
The Supreme Court affirmed the appeals court decision in its ruling released Friday.
