{ "id": 4078189, "name": "STATE OF NEW MEXICO, Plaintiff-Appellee, v. NORMAN DAVIS, Defendant-Appellant", "name_abbreviation": "State v. Davis", "decision_date": "2014-03-14", "docket_number": "No. 34,548; Docket No. 28,219", "first_page": "684", "last_page": "695", "citations": [ { "type": "official", "cite": "2014-NMCA-042" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "290 P.3d 271", "category": "reporters:state_regional", "reporter": "P.3d", "weight": 2, "opinion_index": 0 }, { "cite": "2012-NMCA-115", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 4191968 ], "pin_cites": [ { "page": "\u00b6 16" } ], "opinion_index": 0, "case_paths": [ "/nm-app/3/0061-01" ] }, { "cite": "2011-NMCA-079", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 4251065 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 25" } ], "opinion_index": 0, "case_paths": [ "/nm/150/0187-01" ] }, { "cite": "1998-NMCA-177", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 827437 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 9" } ], "opinion_index": 0, "case_paths": [ "/nm/126/0426-01" ] }, { "cite": "2005-NMCA-129", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 2548568 ], "weight": 6, "pin_cites": [ { "page": "\u00b6 16" }, { "page": "\u00b6 17" }, { "parenthetical": "internal quotation marks and citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nm/138/0544-01" ] }, { "cite": "533 U.S. 27", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9312742 ], "weight": 10, "year": 2001, "pin_cites": [ { "page": "34" }, { "page": "29" }, { "page": "29-30" }, { "page": "30" }, { "page": "31-33", "parenthetical": "internal quotation marks and citation omitted" }, { "page": "33-34" }, { "page": "34" }, { "parenthetical": "internal quotation marks and citation omitted" } ], "opinion_index": 0, "case_paths": [ "/us/533/0027-01" ] }, { "cite": "2009-NMSC-046", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4245815 ], "weight": 6, "pin_cites": [ { "page": "\u00b6 27" }, { "page": "\u00b6 31" }, { "page": "\u00b6 32" }, { "page": "\u00b6 28" } ], "opinion_index": 0, "case_paths": [ "/nm/147/0134-01" ] }, { "cite": "100 N.M. 515", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1588583 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/100/0515-01" ] }, { "cite": "1983-NMCA-114", "category": "reporters:neutral", "reporter": "NMCA", "pin_cites": [ { "page": "\u00b6 8" } ], "opinion_index": 0 }, { "cite": "100 N.M. 517", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1588637 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/100/0517-01" ] }, { "cite": "1983-NMCA-115", "category": "reporters:neutral", "reporter": "NMCA", "weight": 2, "pin_cites": [ { "page": "\u00b6\u00b6 2, 7" }, { "page": "\u00b6 9" } ], "opinion_index": 0 }, { "cite": "2006-NMCA-098", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 3671457 ], "weight": 5, "pin_cites": [ { "page": "\u00b6 24" }, { "page": "\u00b6 29" }, { "page": "\u00b6 24" } ], "opinion_index": 0, "case_paths": [ "/nm/140/0345-01" ] }, { "cite": "488 U.S. 445", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1493665 ], "weight": 8, "year": 1989, "pin_cites": [ { "page": "448" }, { "page": "450-51" }, { "page": "452" }, { "page": "450-51" }, { "page": "452" } ], "opinion_index": 0, "case_paths": [ "/us/488/0445-01" ] }, { "cite": "476 U.S. 207", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12541 ], "weight": 6, "year": 1986, "pin_cites": [ { "page": "211-15", "parenthetical": "applying Katz in addressing whether- aerial surveillance of the defendant's property was a violation of the Fourth Amendment" }, { "page": "209" }, { "page": "213-14", "parenthetical": "citation omitted" }, { "page": "213-14" }, { "page": "224", "parenthetical": "Powell, J., dissenting" } ], "opinion_index": 0, "case_paths": [ "/us/476/0207-01" ] }, { "cite": "70 Alb. L. Rev. 1", "category": "journals:journal", "reporter": "Alb. L. Rev.", "year": 2006, "pin_cites": [ { "page": "2" } ], "opinion_index": 0 }, { "cite": "2005-NMSC-005", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 929147 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 23" } ], "opinion_index": 0, "case_paths": [ "/nm/137/0174-01" ] }, { "cite": "389 U.S. 347", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11339173 ], "weight": 2, "year": 1967, "pin_cites": [ { "page": "361", "parenthetical": "Harlan, J., concurring" } ], "opinion_index": 0, "case_paths": [ "/us/389/0347-01" ] }, { "cite": "295 P.3d 1072", "category": "reporters:state_regional", "reporter": "P.3d", "opinion_index": 0 }, { "cite": "2013-NMCA-032", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 4191560 ], "pin_cites": [ { "page": "\u00b6 5" } ], "opinion_index": 0, "case_paths": [ "/nm-app/3/0500-01" ] }, { "cite": "2011-NMSC-023", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4250695 ], "weight": 4, "pin_cites": [ { "page": "\u00b6 10" }, { "parenthetical": "internal quotation marks and citation omitted" }, { "page": "\u00b6 10" }, { "page": "\u00b6 10" } ], "opinion_index": 0, "case_paths": [ "/nm/150/0137-01" ] }, { "cite": "2011-NMSC-009", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4249607 ], "weight": 5, "pin_cites": [ { "page": "\u00b6 30" }, { "page": "\u00b6 51" } ], "opinion_index": 0, "case_paths": [ "/nm/149/0435-01" ] }, { "cite": "2011-NMCA-102", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 4250267 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 13" } ], "opinion_index": 0, "case_paths": [ "/nm/150/0611-01" ] }, { "cite": "304 P.3d 10", "category": "reporters:state_regional", "reporter": "P.3d", "opinion_index": 0 }, { "cite": "2013-NMSC-028", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4334579 ], "weight": 5, "pin_cites": [ { "page": "\u00b6 35" }, { "page": "\u00b6 3" }, { "page": "\u00b6 34" }, { "page": "\u00b6 5" } ], "opinion_index": 0, "case_paths": [ "/nm-app/4/0394-01" ] }, { "cite": "2010-NMCA-048", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 4247957 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 35" } ], "opinion_index": 1, "case_paths": [ "/nm/148/0811-01" ] }, { "cite": "2003-NMSC-030", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 77174 ], "weight": 3, "opinion_index": 1, "case_paths": [ "/nm/134/0566-01" ] }, { "cite": "2002-NMCA-066", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 260697 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 18" } ], "opinion_index": 1, "case_paths": [ "/nm/132/0354-01" ] }, { "cite": "2011-NMSC-009", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4249607 ], "pin_cites": [ { "page": "\u00b6 23" } ], "opinion_index": 1, "case_paths": [ "/nm/149/0435-01" ] } ], "analysis": { "cardinality": 1298, "char_count": 34370, "ocr_confidence": 0.759, "pagerank": { "raw": 4.392552054677732e-08, "percentile": 0.27567649696951446 }, "sha256": "4762a0f862fb94209227407b2accbcc5bdf4b9fc5dc9742bbe83945adeae3ce6", "simhash": "1:f341a4063ec9a34f", "word_count": 5279 }, "last_updated": "2023-07-14T21:28:15.201030+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "CYNTHIA A. FRY, Judge", "RODERICK T. KENNEDY, Chief Judge", "JONATHAN B. SUTIN, Judge (specially concurring).", "JONATHAN B. SUTIN, Judge" ], "parties": [ "STATE OF NEW MEXICO, Plaintiff-Appellee, v. NORMAN DAVIS, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nFRY, Judge.\n{1} This case is before us on remand from our Supreme Court. See State v. Davis (Davis II), 2013-NMSC-028, \u00b6 35, 304 P.3d 10. The Supreme Court upheld the district court\u2019s determination that Defendant voluntarily consented to a search of his property. Id. \u00b6 2. On remand, we conclude that Article II, Section 10 of the New Mexico Constitution provides greater protection than the Fourth Amendment to the United States Constitution when aerial surveillance of a person\u2019s home is involved. W e further conclude that, under the New Mexico Constitution, the aerial surveillance in this case constituted a search requiring a warrant or an exception to the warrant requirement. Although Defendant consented to a physical search of the curtilage after the surveillance search, there was insufficient attenuation between the warrantless aerial search and Defendant\u2019s consent. Accordingly, we reverse the district court\u2019s denial of Defendant\u2019s motion to suppress the marijuana and other evidence seized during the search.\nBACKGROUND\n{2} The New Mexico State Police, in conjunction with the New Mexico National Guard, undertook a plan called \u201cOperation Yerba Buena\u201d in order to locate marijuana plantations in Taos County, New Mexico. During the operation, a spotter in a helicopter alerted a ground team \u201cto the presence of a greenhouse and vegetation in Defendant\u2019s backyard.\u201d Davis II, 2013-NMSC-028, \u00b6 3. One of the ground team members, Officer William Merrell, made contact with Defendant, identified himself, and said that \u201cthe helicopter [was] looking for marijuana plants and they believe they\u2019ve located some at your residence.\u201d He then asked Defendant for permission to search the residence, and our Supreme Court held that Defendant gave voluntary consent. Davis II, 2013-NMSC-028, \u00b6 34.\n{3} Officers searched Defendant\u2019s property and found marijuana and drug paraphernalia. Defendant was indicted for possession of marijuana and possession of drug paraphernalia. Defendant sought suppression of the evidence seized during the search, arguing, among other things, that the helicopter surveillance of his property violated the federal and state constitutions. The district court denied Defendant\u2019s motion, determining that the helicopter surveillance was \u201cjust barely permissible.\u201d Defendant entered a conditional guilty plea and appealed the denial of his motion to suppress. On appeal, this Court reversed the district court\u2019s denial of the suppression motion on the basis that Defendant\u2019s consent was the result of duress. See State v. Davis (Davis I), 2011-NMCA-102, \u00b6 13, 150 N.M. 611, 263 P.3d 953, rev'd, 2013-NMSC-028. The Supreme Court reversed this determination and remanded the case with instructions for this Court to consider Defendant\u2019s remaining arguments.\nDISCUSSION\n{4} On remand, we address the following arguments raised by Defendant: (1) whether the aerial surveillance of Defendant\u2019s property prior to the consensual physical search of his property violated the Fourth Amendment to the United States Constitution and Article II, Section 10 of the New Mexico Constitution; and (2) whether Defendant\u2019s consent to the search of his property was purged of the taint of the alleged constitutional violation arising from the aerial surveillance. Because of our disposition, it is not necessary for us to consider whether the district court improperly denied Defendant\u2019s motion requesting that the court visit his property during the suppression proceedings. We address each argument in turn.\nA. Standard of Review\n{5} \u201cThe reasonableness of a search or seizure under the Fourth Amendment and under Article II, Section 10 of the New Mexico Constitution presents a mixed question of law and fact, which we review de novo.\u201d State v. Leyva, 2011-NMSC-009, \u00b6 30, 149 N.M. 435, 250 P.3d 861. In reaching the ultimate issue of reasonableness, we look \u201cfor substantial evidence to support the trial court\u2019s factual findings, with deference to the district court\u2019s review of the testimony and other evidence presented.\u201d Id.\nB. Whether the Aerial Surveillance of Defendant\u2019s Property Violated the Fourth Amendment of the United States Constitution and Article II, Section 10 of the New Mexico Constitution\n{6} We first consider Defendant\u2019s argument that the aerial surveillance of his property prior to the consensual search of his property violated the Fourth Amendment to the United States Constitution and Article II, Section 10 of the New Mexico Constitution. \u201cBecause both the United States and the New Mexico Constitutions provide overlapping protections against unreasonable searches and seizures, we apply our interstitial approach.\u201d Ketelson, 2011-NMSC-023, \u00b6 10 (internal quotation marks and citation omitted). Under the interstitial approach, \u201cwe first consider whether the right being asserted is protected under the federal constitution.\u201d Id. (internal quotation marks and citation omitted). \u201cIf the right is protected by the federal constitution, then the state constitutional claim is not reached.\u201d Id.; see also State v. Jean-Paul, 2013-NMCA-032, \u00b6 5, 295 P.3d 1072 (stating that \u201c[ujnder New Mexico\u2019s interstitial approach to state constitutional interpretation, this Court should only reach the state constitutional question if the federal constitution does not provide the protection sought by the party raising the issue\u201d). If the right is not protected by the federal constitution, \u201cwe next consider whether the New Mexico Constitution provides broader protection, and we may diverge from federal precedent for three reasons: a flawed federal analysis, structural differences between state and federal government, or distinctive state characteristics.\u201d Ketelson, 2011-NMSC-023, \u00b6 10 (internal quotation marks and citation omitted).\n1. Fourth Amendment\n{7} WebeginwithDefendant\u2019sargumentthat the aerial surveillance of his property violated the Fourth Amendment to the United States Constitution. The Fourth Amendment guarantees \u201c[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.\u201d U.S. Const, amend. IV. Since the United States Supreme Court\u2019s decision in Katz v. United States, 389 U.S. 347 (1967), \u201c[t]he touchstone of [a] search and seizure analysis is whether a person has a constitutionally recognized expectation of privacy.\u201d State v. Ryon, 2005-NMSC-005, \u00b6 23, 137 N.M. 174, 108 P.3d 1032. In the specific context of the constitutionality of an aerial surveillance operation, the question boils down to whether such an operation constitutes a search under the Fourth Amendment. As noted by a leading commentator, \u201c[i]f the individual does not have a protected interest, actions that might otherwise be labeled a search will not implicate the Fourth Amendment.\u201d Thomas K. Clancy, What is a \"Search\u201d Within the Meaning of the Fourth Amendment?, 70 Alb. L. Rev. 1, at 2 (2006). Thus, in order to label the aerial surveillance in the present case a search, we must first conclude that Defendant had a protected interest. In considering this question, the United States Supreme Court has applied the two-prong analysis of privacy expectations set forth in Katz, where a court considers first whether the defendant has an actual or subjective expectation of privacy and, second, whether that expectation is one that society is prepared to recognize as reasonable. See Katz, 389 U.S. at 361 (Harlan, J., concurring); see also California v. Ciraolo, 476 U.S. 207, 211-15 (1986) (applying Katz in addressing whether- aerial surveillance of the defendant\u2019s property was a violation of the Fourth Amendment).\n{8} The two leading United States Supreme Court cases establish that a defendant does not have a protected interest under the Fourth Amendment if an aerial surveillance of a home and its curtilage is conducted from a public vantage point and if it reveals something that a person has not protected from aerial scrutiny. In the first case, Ciraolo, police received an anonymous tip that the respondent was growing marijuana in his backyard, which was enclosed by a six-foot outer fence and a ten-foot inner fence. 476 U.S. at 209. When officers could not see what was in the yard from ground level, they flew a plane in navigable air space over the house at an altitude of 1000 feet, and they were able to observe marijuana plants in the respondent\u2019s yard. Id. The Court concluded that because the police observations \u201ctook place within public navigable air[]space in a physically nonintrusive manner . . . , [the] respondent\u2019s expectation that his garden was protected from such observation [was] unreasonable and [was] not an expectation that society is prepared to honor.\u201d Id. at 213-14 (citation omitted).\n{9} In the second case, Florida v. Riley, the contents of the respondent\u2019s greenhouse were screened from ground level observation by structures, trees, and shrubs, but some of the greenhouse\u2019s roofing panels were either translucent or missing. 488 U.S. 445, 448 (1989). An officer was able to see what he thought was marijuana through openings in the roof when he circled the greenhouse in a helicopter at an altitude of 400 feet. Id. A plurality of the Court held that the respondent \u201ccould not reasonably have expected that his greenhouse was protected from public or official observation\u201d from navigable air space. Id. at 450-51. The plurality noted that there was no evidence that helicopters flying at 400 feet were rare or that \u201cthe helicopter interfered with [the] respondent\u2019s normal use of the greenhouse or of other parts of the curtilage.\u201d Id. at 451 -52. In addition, \u201cno intimate details connected with the use of the home or curtilage were observed, and there was no undue noise, and no wind, dust, or threat of injury.\u201d Id. at 452. Accordingly, \u201cthere was no violation of the Fourth Amendment.\u201d Id.\n{10} These cases teach that an aerial surveillance is not a search for Fourth Amendment purposes if the objects observed are in'open view from a legal vantage point. See 1 Wayne R. LaFave, Search and Seizure: A Treatise on theFourth Amendment \u00a7 2.3(g) (5th ed. 2012) (explaining that under Ciraolo, \u201cit is no search to make a naked-eye observation into the curtilage from navigable air space\u201d). This is especially true if the surveillance is not unduly disruptive.\n{11} Turning to the present case, the helicopter surveillance passes muster under the Fourth Amendment. While Defendant testified that the helicopter was hovering about fifty feet above him and that it was \u201ckicking up dust and debris,\u201d there is nothing in the record suggesting that this altitude was outside the range of navigable air space, nor is there evidence that the helicopter interfered with Defendant\u2019s normal use of his residence or greenhouse. Officer Merrell testified that the plastic cover on Defendant\u2019s greenhouse was \u201csomewhat clear\u201d and that the plants in the greenhouse were pressed up against the ceiling. One of the helicopter spotters testified that, from the air, marijuana looks \u201creal bright green, more of a lime green, compared to the rest of the vegetation in the area.\u201d Thus, under the rationale articulated in Ciraolo and Riley, Defendant\u2019s expectation that the contents of his greenhouse were screened from public aerial view was unreasonable.\n2. Article II, Section 10 of the New Mexico Constitution\n{12} Because the Fourth Amendment does notprotectDefendant\u2019s subjective expectation of privacy, we now consider whether the New Mexico Constitution provides greater protection. See Ketelson, 2011-NMSC-023, \u00b6 10 (stating that if an asserted right is not protected by the federal constitution, \u201cwe next consider whether the New Mexico Constitution provides broader protection\u201d).\n{13} At issue in this case is Article II, Section 10 of our state constitution, which our Supreme Court has consistently interpreted as providing greater privacy protections than the Fourth Amendment. See Leyva, 2011-NMSC-009, \u00b6 51 (\u201cIt is well-established that Article II, Section 10 provides more protection against unreasonable searches and seizures than the Fourth Amendment.\u201d). \u201cOur Supreme Court has emphasizedNew Mexico\u2019s strong preference for warrants in order to preserve the values of privacy and sanctity of the home that are embodied by this provision.\u201d State v. Granville, 2006-NMCA-098, \u00b6 24, 140 N.M. 345, 142 P.3d 933.\n{14} With this in mind, we discern two threads of analysis in Ciraolo and Riley that are inconsistent with our jurisprudence under Article II, Section 10. The first involves the United States Supreme Court\u2019s focus on the fact that law enforcement personnel in aircraft were no different from passengers in aircraft who could plainly see the marijuana in question. The second thread involves an emphasis on various factors meant to assess the intrusiveness of the aerial surveillance.\na. Airborne Police Are Not the Equivalent of Airborne Members of the Public\n{15} With respect to the first aspect of the United States Supreme Court\u2019s analysis, the Court noted in Ciraolo that \u201c[a]ny member of the public flying in this airfjspace who glanced down could have seen everything that these officers observed.\u201d 476 U.S. at 213-14. And in Riley, the Court observed that the accused \u201ccould not reasonably have expected that his greenhouse was protected from public or official observation from a helicopter had it been flying within the navigable air[]space for fixed-wing aircraft.\u201d 488 U.S. at 450-51.\n{16} The only New Mexico cases addressing aerial surveillance were decided before our Supreme Court began interpreting Article II, Section 10 more broadly than the Fourth Amendment. These older cases, decided in 1983, seemingly anticipated the United States Supreme Court\u2019s analysis in Ciraolo and Riley (decided in 1986 and 1989, respectively) and assessed the propriety of aerial surveys under the Fourth Amendment in part by considering what could be seen from the air. See State v. Rogers, 1983-NMCA-115, \u00b6\u00b6 2, 7, 100 N.M. 517, 673 P.2d 142 (concluding that the defendant had no reasonable expectation of privacy \u201cwith respect to marijuana plants protruding through holes in his greenhouse roof to the extent of their visibility from the air\u201d); State v. Bigler, 1983-NMCA-114, \u00b6 8, 100 N.M. 515, 673 P.2d 140 (holding that the defendant had no reasonable expectation of privacy in his marijuana crop \u201cto the extent of visibility from the air\u201d).\n{17} In contrast to the rationale stated in these cases, New Mexico cases decided since Rogers and Bigler have emphasized that \u201cArticle II, Section 10, protects citizens from governmental intrusions, not intrusions from members of the general public.\u201d Granville, 2006-NMCA-098, \u00b6 29. As the dissent in Ciraolo observed, there is a \u201cqualitative difference between police surveillance and other uses made of the air[] space. Members of the public use the air[]space for travel, business, or pleasure, not for the purpose of observing activities taking place within residential yards.\u201d 476 U.S. at 224 (Powell, J., dissenting). Because New Mexico\u2019s post-Rogers/Bigler case law has interpreted Article II, Section 10 more broadly than the Fourth Amendment, we conclude that police flying over a residence strictly in order to discover evidence of crime, without a warrant, \u201cdoes not comport with the distinctive New Mexico protection against unreasonable searches and seizures.\u201d Garcia, 2009-NMSC-046, \u00b6 27.\nb. Intrusiveness Factors Are Not Useful\n{18} As to the second type of analysis under the Fourth Amendment, the Court in Riley seemingly assessed the intrusiveness of the aerial surveillance when it observed that \u201cthere was no undue noise, and no wind, dust, or threat of injury.\u201d 488 U.S. at 452. And in Rogers, this Court also evaluated similar factors, such as the \u201caltitude of the aircraft, use of equipment to enhance the observation, frequency of other flights[,] and intensity of the surveillance.\u201d 1983-NMCA-115, \u00b6 9. The district court in the present case relied heavily on factors similar to those mentioned in Rogers and Riley when it assessed the propriety of the helicopter surveillance.\n{19} We fail to see how an analysis of intrusiveness factors aids in the determination of whether an aerial surveillance is a search. The privacy interest protected by Article II, Section 10 is not limited to one\u2019s interest in a quiet and dust-free environment. It also includes an interest in freedom from visual intrusion from targeted, warrantless police aerial surveillance, no matter how quietly or cleanly the intrusion is performed. Indeed, it is likely that ultra-quiet drones will soon be used commercially and, possibly, for domestic surveillance. Michael J. Schoen, Michael A. Tooshi, Confronting the New Frontier in Privacy Rights: Warrantless Unmanned Aerial Surveillance, 25 No. 3 Air & Space Law 1 (2012); see Intelligence Advanced Research Projects Activity, \u201cGreat Horned Owl (GHO) Program,\u201d http://www.iarpa. gov/Programs/sc/GHO/gho.html. Such advances in technology demonstrate the increasingly diminished relevance of intrusiveness factors, as courts have regarded them in the past, in the analysis of what constitutes a search.\nc. The Aerial Surveillance in This Case Constituted a Search Under Article II, Section 10\n{20} We decline to perpetuate both the analysis in the United States Supreme Court\u2019s cases and in Rogers and Bigler focusing on what is openly visible to the public from the air and the analysis in Rogers based on intrusiveness factors. Since Rogers mdBigler were decided, our courts have diverged from the Fourth Amendment, and the analysis in those cases fails to \u201cserve the robust character and honored history of [Article II, Section 10] with special attention to its purpose of police regulation.\u201d Garcia, 2009-NMSC-046, \u00b6 31. Instead of relying on visibility and intrusiveness factors, we adopt the view that if law enforcementpersonnel, via targeted aerial surveillance, have the purpose to intrude and attempt to obtain information from a protected area, such as the home or its curtilage, that could not otherwise be obtained without physical intrusion into that area, that aerial surveillance constitutes a search for purposes of Article II, Section 10. We explain the evolution of our view below.\n{21} We find persuasive the analysis in Kyllo v. United States, 533 U.S. 27 (2001). While Kyllo did not involve aerial surveillance, its determination that seeking information through \u201csense-enhancing technology\u201d can constitute a search aptly applies to aerial surveillance, in our view. 533 U.S. at 34. Kyllo involved the question \u201cwhether 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 \u2018search\u2019 within the meaning ofthe Fourth Amendment.\u201d 533 U.S. at 29. On suspicion that the petitioner was growing marijuana in his home, a police officer scanned the home in the early morning hours from a position across the street from the residence and from the street behind the house. Id. at 29-30. The scan showed that sections of the home were relatively hotter than other sections, which suggested to police that the petitioner was using halide lights to grow marijuana. Id. at 30. Based in part on the scan\u2019s results, police obtained a search warrant and discovered \u201can indoor growing operation.\u201d Id.\n{22} In holding that the scan constituted a search under the Fourth Amendment, the Court first reviewed its jitrisprudence, whose definition of a search evolved from the notion of common law trespass to the two-prong Katz assessment of whether the person has \u201cmanifested a subjective expectation of privacy\u201d that society recognizes as reasonable. Kyllo, 533 U.S. at 31-33 (internal quotation marks and citation omitted). The Court then noted that \u201c[i]t would be foolish to contend that the degree of privacy secured to citizens by the Fourth Amendment has been entirely \u25a0unaffected by the advance of technology.\u201d Id. at 33-34. While acknowledging the difficulty of applying the Katz test to searches of \u201careas such as telephone booths, automobiles, or even the curtilage,\u201d Kyllo, 533 U.S. at 34, the law at a minimum recognizes that the expectation of privacy in the interior of the home is reasonable when the police \u201cobtain}] by sense-enhancing technology any information regarding the interior of the home that could not otherwise have been obtained without physical intrusion into a constitutionally protected area, ... at least where ... the technology in question is not in general public use.\u201d Id. (internal quotation marks and citation omitted).\n{23} We believe the Kyllo Court\u2019s analogy to physical invasions is in harmony with our jurisprudence under Article II, Section 10. Given our \u201cstrong preference for warrants in order to preserve the values of privacy and sanctity of the home,\u201d Granville, 2006-NMCA-098, \u00b6 24, it follows thatpolice should be required to secure a warrant before attempting to obtain, through flight, information from a home or its curtilage that they would not otherwise be able to obtain without physical intrusion.\n{24} While Kyllo\u2019s requirement that the sense-enhancing technology not be in general use by the public makes sense in the context of that case, we place no reliance on this as a factor. The only rationale for that requirement seems to be that it provides a way to distinguish police conduct from conduct by a member of the public in order to acknowledge the Fourth Amendment\u2019s protections against government intrusion. A better means of protecting against government intrusion \u2014 and one that is consistent with Article II, Section 10 jurisprudence \u2014 is the addition of a requirement that the goal of government personnel is to intrude. As Professor Clancy put it, \u201c}i]n assessing whether a search has occurred, inquiry must be made into whether it is the goal of the government agent to learn something about the target when engaging in an activity or employing a technological device.\u201d Clancy, supra, at 39. This inquiry also permits the government to use evidence obtained inadvertently by law enforcement personnel. See, e.g., Clancy, supra, at 41 (hypothesizing that it would not be a search if a police officer tripped and fell on a bus passenger\u2019s soft-sided luggage and, in bracing himself, felt a brick-like object in the luggage).\n{25} This inquiry, plus the inquiry as to whether the information could otherwise only be obtained via physical intrusion, \u201cadd[s] clarity of meaning for decision-makers\u201d like police and magistrates contemplating the issuance of warrants. Clancy, supra, at 39. Our Supreme Court has stated that clarity for such decision makers is an important consideration under Article II, Section 10. See Garcia, 2009-NMSC-046, \u00b6 32 (explaining that the indeterminancy of Fourth Amendment analysis \u201cis cause for concern in that it fails to provide law enforcement with a useful framework with which to predict when its actions will trigger constitutional scrutiny\u201d).\n{26} Putting this analysis in the context of aerial surveillance, such surveillance constitutes a search under Article II, Section 10 if (1) the government agent(s) involved intend to obtain information from a target or targets through aerial surveillance, and (2) if the information to be obtained through aerial surveillance could not otherwise be obtained withoirt physical intrusion into the target\u2019s home or curtilage. If the surveillance constitutes a search, then the government agent(s) must obtain a search warrant before conducting the surveillance, absent an exception to the warrant requirement, such as exigent circumstances.\n{27} In the present case, the evidence presented to the district court established that the agents involved in Operation Yerba Buena undertook helicopter sirrveillance of several homes, including Defendant\u2019s home, with the purpose of finding marijuana plantations. In addition, the evidence suggesting that Defendant was growing marijuana in his greenhouse could not have been obtained without aerial surveillance unless the agents physically invaded the greenhouse. Consequently, the helicopter surveillance of Defendant\u2019s property constituted a search requiring probable cause and a warrant. Because the agents did not obtain a warrant, they had to rely on an exception to the warrant requirement. In this case, our Supreme Court determined that they obtained from Defendant valid consent to search. The question thus becomes whether Defendant\u2019s consent was sufficiently attenuated from the illegal search to be purged of the illegality\u2019s taint.\nC. Defendant\u2019s Consent Was Not Sufficiently Attenuated From the Illegal Search\n{28} \u201cThe fruit of the poisonous tree doctrine bar[s] the admission of legally obtained evidence derived from past police illegalities.\u201d State v. Monteleone, 2005-NMCA-129, \u00b6 16, 138 N.M. 544, 123 P.3d 777 (alteration in original) (internal quotation marks and citation omitted). Before considering the question of whether Defendant\u2019s consent was tainted by the prior illegal helicopter search, we first address the State\u2019s argument that Defendant failed to preserve the question. The State maintains that D efendant did not specifically argue at the suppression hearing that his consent was tainted, and the district court did not address the taint issue because it found that Defendant\u2019s consent was voluntary.\n{29} We conclude that Defendant was not required to expressly raise the fruit of the poisonous tree doctrine because the district court determined that the helicopter surveillance was constitutional and, therefore, there was no reason for Defendant to have raised or argued that the doctrine applied. See State v. Ingram, 1998-NMCA-177, \u00b6 9, 126 N.M. 426, 970 P.2d 1151 (\u201cEvidence which is obtained as a result of an unconstitutional search or seizure may be suppressed under the exclusionary rule.\u201d (internal quotation marks and citation omitted)).\n{30} Because we disagree with the district court\u2019s determination, we now consider whether Officer Merrell obtained Defendant\u2019s consent \u201cby means sufficiently distinguishable to be purged of the primary taint\u201d of the illegal helicopter surveillance of Defendant\u2019s property. Monteleone, 2005-NMCA-129, \u00b6 17 (internal quotation marks and citation omitted). \u201cIf there is sufficient attenuation between the illegality and the consent to search, the evidence is admissible.\u201d Id. \u201cTo determine whether there was sufficient attenuation, we consider the temporal proximity of the [illegality] and the consent, the presence of intervening circumstances, and the flagrancy of the official misconduct.\u201d Id. (internal quotation marks and citation omitted).\n{31} Here, Officer Merrell obtained Defendant\u2019s consent through exploitation of the illegal helicopter search. The evidence suggesting that Defendant was growing marijuana was obtained via the ' aerial surveillance of his property. Officer Merrell then approached Defendant, who was standing outside his home, and obtained consent. Davis II, 2013-NMSC-028, \u00b6 5. Given that Officer Merrell entered Defendant\u2019s property solely as a result of information obtained in the helicopter search, as well as the lack of any intervening circumstances between the aerial search and Defendant\u2019s consent, there was insufficient attenuation to purge D efendant\u2019 s consent of the taint resulting from the unconstitutional aerial surveillance. See State v. Portillo, 2011-NMCA-079, \u00b6 25, 150 N.M. 187, 258 P.3d 466 (\u201cIt is established law that evidence discovered as a result of the exploitation of an illegal [search or] seizure must be suppressed unless it has been purged of its primary taint.\u201d). The district court erred in holding the surveillance to be constitutional instead of determining itto be unconstitutional and suppressing the evidence obtained from the physical search. Because we reverse the district court\u2019s denial of Defendant\u2019s suppression motion, we need not address Defendant\u2019s argument that the district court erroneously denied his motion for a judicial view.\nCONCLUSION\n{32} For the foregoing reasons, we reverse the district court\u2019s denial of Defendant\u2019s suppression motion.\n{33} IT IS SO ORDERED.\nCYNTHIA A. FRY, Judge\nI CONCUR:\nRODERICK T. KENNEDY, Chief Judge\nJONATHAN B. SUTIN, Judge (specially concurring).\n\u201cGenerally, the curtilage is the enclosed space of the grounds and buildings immediately surrounding a dwelling house.\u201d State v. Hamilton, 2012-NMCA-115, \u00b6 16, 290 P.3d 271 (internal quotation marks and citation omitted). The curtilage enjoys the same privacy protections of the home itself. Id.\nAlthough the district court found that greenhouses in the area \u201cwere constructed of non-transparent .fiberglass, wood],] and opaque plastic sheeting],]\u201d the evidence supporting that finding related to a surveillance target other than Defendant.\nSee State v. Garcia, 2009-NMSC-046, \u00b6 28, 147 N.M. 134, 217 P.3d 1032 (stating that our Supreme Court diverged from Fourth Amendment analysis for the first time in 1989).", "type": "majority", "author": "FRY, Judge." }, { "text": "SUTIN, Judge\n(specially concurring).\n{34} I concur in the Opinion\u2019s insightful and forward-thinking application of Article II, Section 10 of the New Mexico Constitution. I have some additional thoughts.\nWeighing Factors\n{35} Deciding warrantless aerial surveillance cases, by weighing factors of altitude, FAA regulations, extent of physical intrusion, location of the property, means of surveillance (as the district court found, helicopter swooping to lower altitude and men on a mission as if they were in a state of war searching for weapons or terrorist activity), and complaint anonymity, is fraught with arbitrary or painstakingly difficult and subjective determinations. Note the district court\u2019s \u201cjust barely permissible\u201d characterization of the \u201chelicopter search,\u201d and the court\u2019s characterization of the facts as \u201cteeter[ing] dangerously close to exceeding the limitations implicit in the Fourth Amendment.\u201d The weighing approach is less effective than Justice Scalia\u2019s approach in Kyllo. Citizens have an expectation of privacy with respect to the police looking into their homes and curtilage. If the police, as in this case, are purposefully targeting a home, curtilage, or residential area to discover illegal marijuana growing activity by, as the district court in this case characterized it, \u201cflying around generally in an effort to spot greenhouses\u201d in a \u201crandom investigation,\u201d the police should have to pass warrant muster as a condition precedent to conducting the aerial surveillance. This requirement is restrictive, no doubt. But the better judgment in a circumstance like that before us is to protect the privacy of the home and curtilage and require a validly issued warrant for the targeted surveillance. Here, Defendant had an expectation of privacy with regard to his curtilage. The targeted surveillance was a search. The search was warrantless and presumed to be unlawful. No exception overcame the presumption.\nTaint of Consent\n{36} I offer another basis on which we ought to be able to hold that the warrantless and unreasonable aerial surveillance search tainted Defendant\u2019s consent. The district court determined factually that the spotter could not have observed marijuana and that any belief the spotter had was speculative. After noting that \u201c \u2018Carson\u2019 area plus \u2018greenhouse\u2019 propelled the spotting officer to conclude by speculation that behind the walls of the greenhouses were prohibited plants},]\u201d the court perceived \u201ca surreal \u2018profiling\u2019 aspect to the police behavior.\u201d Stated differently, the court determined that it was objectively imreasonable to believe that the spotter had, in fact, observed marijuana, thereby rendering such \u201cobservation\u201d by the spotter to be mere speculation. Speculation does not give rise to reasonable suspicion. See Leyva, 2011-NMSC-009, \u00b6 23 (\u201cReasonable suspicion must consist of more than an officer\u2019s hunch that something is amiss; it requires objectively reasonable indications of criminal activity.\u201d). Because Officer MerrelPs statement to Defendant that \u201cmarijuana had been identified growing in his greenhouse from the air\u201d was based exclusively on the spotter\u2019s speculation, by extension, it was unfounded in reasonable suspicion. See State v. Vandenberg, 2002-NMCA-066, \u00b6 18, 132 N.M. 354, 48 P.3d 92 (recognizing that \u201creasonable suspicion based on information obtained from another officer require[s] that [the] officer providing information must himself have possessed reasonable suspicion\u201d), reversed on other grounds by 2003-NMSC-030, 134 N.M. 566, 81 P.3d 19. Thus, Defendant\u2019s encounter with Officer Merrell was essentially a circumstance in which a police officer, without reasonable suspicion or a warrant^ approached Defendant at Defendant\u2019s own home and accused him of engaging in criminal activity. This is not reasonable police conduct at the front door of a person\u2019s home when the officer does not have a probable cause basis on which to make the accusation. The spotter\u2019s non-credible, speculative belief that gave rise to Officer Merrell\u2019s factually incorrect statement was causally related to Defendant\u2019s consent, and therefore the consent was tainted. See State v. Figueroa, 2010-NMCA-048, \u00b6 35, 148 N.M. 811, 242 P.3d 378 (holding that the defendant\u2019s consent that was sought and granted \u201con the heels of\u2019 improper police questions was tainted).\nFourth Amendment\n{37} I would hold the surveillance search unreasonable under the Fourth Amendment as well as under Article II, Section 10 on the basis that the expectation of privacy analyses in cases that involve targeted aerial surveillance investigations and invasions into a home and curtilage using modern technology, whether thermal imaging technology or a helicopter, should now be controlled by Justice Scalia\u2019s Kyllo analysis and test as set out earlier in the Opinion of this Court.\nJONATHAN B. SUTIN, Judge", "type": "concurrence", "author": "SUTIN, Judge" } ], "attorneys": [ "Gary K. King, Attorney General Santa Fe, NM M. Anne Kelly, Assistant Attorney General Albuquerque, NM for Appellee", "Jorge A. Alvarado, Chief Public Defender Allison H. Jaramillo, Assistant Appellate Defender Santa Fe, NM '\u2022 for Appellant" ], "corrections": "", "head_matter": "Certiorari Granted, March 14, 2014,\nNo. 34,548\nIN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO\nOpinion Number: 2014-NMCA-042\nFiling Date: January 14, 2014\nDocket No. 28,219\nSTATE OF NEW MEXICO, Plaintiff-Appellee, v. NORMAN DAVIS, Defendant-Appellant.\nGary K. King, Attorney General Santa Fe, NM M. Anne Kelly, Assistant Attorney General Albuquerque, NM for Appellee\nJorge A. Alvarado, Chief Public Defender Allison H. Jaramillo, Assistant Appellate Defender Santa Fe, NM '\u2022 for Appellant" }, "file_name": "0684-01", "first_page_order": 700, "last_page_order": 711 }