New Mexico court hears case on flyover that led to pot find

SANTA FE, N.M. (AP) - The state Supreme Court has heard arguments in the case of a New Mexico man who claims his privacy rights were violated when a flyover of his remote property by authorities prompted a ground search that turned up marijuana plants.

The outcome of the case could affect the ability of law enforcement agencies to use drones and other means of aerial surveillance.

Allison Jaramillo, an attorney for Norman Davis, said her client's home is located in a rugged, rural area and his property was unconstitutionally searched by a military-style helicopter.

"They can't conduct this intrusive, targeted search without a warrant," Jaramillo said.

The home of Davis, now 79, in the Carson area of Taos County was checked during a 2006 operation of New Mexico State Police, National Guard and state Game and Fish. Authorities were looking for pot-growing operations.

Authorities said a search was conducted with the reluctant consent of Davis after a spotter in the helicopter saw vegetation in Davis' greenhouse and plants outside.

New Mexico Assistant Attorney General Martha Anne Kelly said during the hearing that officers did not initially enter his home or detain Davis. Kelly said officers asked to search the property and Davis consented.

"If the helicopter flight had not occurred, (officers) would probably not have been there," Kelly said.

Davis was charged with possession of eight ounces or more of marijuana, a fourth-degree felony, and possession of drug paraphernalia. Davis entered a conditional plea whereby his record was cleared after he had no law violations for a year.

The New Mexico Supreme Court and the state Court of Appeals previously upheld a judge's ruling that officers didn't coerce Davis into signing his consent for the search, but the case returned to the Court of Appeals to consider other legal issues.

A Jan. 14 ruling by a three-judge panel said the flyover didn't violate Davis' protections under the federal Fourth Amendment because it was conducted in navigable air space and didn't interfere with Davis' normal use of his property.

However, the ruling said the New Mexico Constitution provides greater protections against unreasonable search and seizures, and that the aerial surveillance effectively was a search that requires a warrant.

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