{ "id": 4363291, "name": "STATE OF NEW MEXICO, Plaintiff-Petitioner, v. NORMAN DAVIS, Defendant-Respondent", "name_abbreviation": "State v. Davis", "decision_date": "2015-10-19", "docket_number": "Docket No. S-1-SC-34548", "first_page": "770", "last_page": "797", "citations": [ { "type": "official", "cite": "2015-NMSC-034" } ], "court": { "name_abbreviation": "N.M.", "id": 8835, "name": "Supreme Court of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "2011-NMSC-009", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4249607 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/nm/149/0435-01" ] }, { "cite": "1999-NMCA-022", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 827337 ], "weight": 4, "pin_cites": [ { "page": "\u00b6 28" }, { "page": "\u00b6 28" } ], "opinion_index": 0, "case_paths": [ "/nm/126/0569-01" ] }, { "cite": "123 P.3d 111", "category": "reporters:state_regional", "reporter": "P.3d", "opinion_index": 0 }, { "cite": "2005-NMCA-129", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 2548568 ], "weight": 2, "pin_cites": [ { "page": "\u00b6 16" } ], "opinion_index": 0, "case_paths": [ "/nm/138/0544-01" ] }, { "cite": "796 P.2d 63", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 10377753 ], "weight": 4, "year": 1990, "pin_cites": [ { "page": "65" }, { "page": "64" }, { "page": "65" } ], "opinion_index": 0, "case_paths": [ "/p2d/796/0063-01" ] }, { "cite": "579 A.2d 1288", "category": "reporters:state_regional", "reporter": "A.2d", "case_ids": [ 1823753 ], "weight": 7, "year": 1990, "pin_cites": [ { "page": "1294" }, { "page": "1290" }, { "page": "1293" }, { "page": "1294" }, { "page": "1294" } ], "opinion_index": 0, "case_paths": [ "/pa/525/0250-01" ] }, { "cite": "985 P.2d 863", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 91549 ], "year": 1999, "pin_cites": [ { "page": "867", "parenthetical": "upholding surveillance where the helicopter was operated in a lawful and unintrusive manner" } ], "opinion_index": 0, "case_paths": [ "/or-app/161/0232-01" ] }, { "cite": "879 P.2d 383", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 10349869 ], "year": 1994, "pin_cites": [ { "page": "389-90", "parenthetical": "en banc" } ], "opinion_index": 0, "case_paths": [ "/p2d/879/0383-01" ] }, { "cite": "263 Cal. Rptr. 21", "category": "reporters:state", "reporter": "Cal. Rptr.", "year": 1989, "pin_cites": [ { "page": "25", "parenthetical": "upholding a helicopter surveillance where there was no evidence the helicopter interfered with the defendant's use of his property or \"created any undue noise, wind, dust, or threat of injury\"" } ], "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", "pin_cites": [ { "page": "\u00b6\u00b6 3, 5" } ], "opinion_index": 0 }, { "cite": "601 F. Supp. 1324", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 3731645 ], "year": 1985, "pin_cites": [ { "page": "1330" } ], "opinion_index": 0, "case_paths": [ "/f-supp/601/1324-01" ] }, { "cite": "132 S. Ct. 945", "category": "reporters:federal", "reporter": "S. Ct.", "case_ids": [ 12446025, 12186415 ], "weight": 2, "year": 2012, "pin_cites": [ { "page": "955", "parenthetical": "\"[A] search within the meaning of the Fourth Amendment occurs, at a minimum, '[w]here ... the Government obtains information by physically intruding on a constitutionally protected area.'\" (Sotomayor, J., concurring, quoting 132 S. Ct. at 950 n.3.) (second alteration in original)" } ], "opinion_index": 0, "case_paths": [ "/l-ed-2d/181/0911-01", "/us/565/0400-01" ] }, { "cite": "389 U.S. 347", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11339173 ], "year": 1967, "pin_cites": [ { "page": "351", "parenthetical": "\"What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection.\"" } ], "opinion_index": 0, "case_paths": [ "/us/389/0347-01" ] }, { "cite": "533 U.S. 27", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9312742 ], "year": 2001, "pin_cites": [ { "page": "32" } ], "opinion_index": 0, "case_paths": [ "/us/533/0027-01" ] }, { "cite": "466 U.S. 170", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6195904 ], "year": 1984, "pin_cites": [ { "page": "180" } ], "opinion_index": 0, "case_paths": [ "/us/466/0170-01" ] }, { "cite": "638 A.2d 569", "category": "reporters:state_regional", "reporter": "A.2d", "case_ids": [ 5778673 ], "year": 1993, "pin_cites": [ { "page": "572" } ], "opinion_index": 0, "case_paths": [ "/vt/161/0236-01" ] }, { "cite": "2008 VT 39", "category": "reporters:neutral", "reporter": "VT", "case_ids": [ 3692330 ], "weight": 2, "pin_cites": [ { "page": "\u00b6 13" }, { "page": "\u00b6\u00b6 23-26" } ], "opinion_index": 0, "case_paths": [ "/vt/183/0355-01" ] }, { "cite": "476 U.S. 227", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12763 ], "weight": 2, "year": 1986, "pin_cites": [ { "page": "235" }, { "page": "234-35", "parenthetical": "visual observation is no search at all" } ], "opinion_index": 0, "case_paths": [ "/us/476/0227-01" ] }, { "cite": "112 N.M. 449", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 720254 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/112/0449-01" ] }, { "cite": "1991-NMCA-073", "category": "reporters:neutral", "reporter": "NMCA", "pin_cites": [ { "page": "\u00b6 8" } ], "opinion_index": 0 }, { "cite": "448 U.S. 98", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1787600 ], "year": 1980, "pin_cites": [ { "page": "104" } ], "opinion_index": 0, "case_paths": [ "/us/448/0098-01" ] }, { "cite": "442 U.S. 735", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1532082 ], "year": 1979, "pin_cites": [ { "page": "740", "parenthetical": "internal quotation marks and citations omitted" } ], "opinion_index": 0, "case_paths": [ "/us/442/0735-01" ] }, { "cite": "1997-NMSC-006", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 322282 ], "weight": 4, "pin_cites": [ { "page": "\u00b6 21" }, { "page": "\u00b6 32" } ], "opinion_index": 0, "case_paths": [ "/nm/122/0777-01" ] }, { "cite": "2014-NMCERT-003", "category": "reporters:neutral", "reporter": "NMCERT", "opinion_index": 0 }, { "cite": "321 P.3d 955", "category": "reporters:state_regional", "reporter": "P.3d", "opinion_index": 0 }, { "cite": "2014-NMCA-042", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 4078189 ], "weight": 5, "pin_cites": [ { "page": "\u00b6 4" }, { "page": "\u00b6\u00b6 1, 11, 27" }, { "page": "\u00b6 19" }, { "page": "\u00b6 30" }, { "page": "\u00b6 31" } ], "opinion_index": 0, "case_paths": [ "/nm-app/5/0684-01" ] }, { "cite": "150 N.M. 611", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 4250267 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/150/0611-01" ] }, { "cite": "476 U.S. 207", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12541 ], "weight": 7, "year": 1986, "pin_cites": [ { "page": "211", "parenthetical": "internal quotation marks and citation omitted" }, { "page": "213" }, { "page": "209" }, { "page": "213", "parenthetical": "internal quotation marks and citations omitted" } ], "opinion_index": 0, "case_paths": [ "/us/476/0207-01" ] }, { "cite": "488 U.S. 445", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1493665 ], "weight": 15, "year": 1989, "pin_cites": [ { "page": "450-51" }, { "page": "447-48" }, { "page": "448" }, { "page": "447, 452", "parenthetical": "O'Connor, J., concurring" }, { "page": "447" }, { "page": "449-50", "parenthetical": "internal alterations omitted" }, { "page": "451" }, { "page": "451" }, { "page": "449-52" }, { "page": "451" } ], "opinion_index": 0, "case_paths": [ "/us/488/0445-01" ] }, { "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": 3, "pin_cites": [ { "page": "\u00b6 35" }, { "page": "\u00b6\u00b6 2, 34" }, { "page": "\u00b6\u00b6 19-20, 35" } ], "opinion_index": 0, "case_paths": [ "/nm-app/4/0394-01" ] }, { "cite": "2001-NMSC-017", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 352577 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 18" } ], "opinion_index": 1, "case_paths": [ "/nm/130/0386-01" ] }, { "cite": "559 S.E.2d 374", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 422328 ], "year": 2002, "pin_cites": [ { "page": "380" } ], "opinion_index": 1, "case_paths": [ "/va-app/37/0421-01" ] }, { "cite": "2009-NMSC-039", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4243892 ], "weight": 3, "opinion_index": 1, "case_paths": [ "/nm/146/0488-01" ] }, { "cite": "2006-NMSC-026", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 2542281 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 23" } ], "opinion_index": 1, "case_paths": [ "/nm/139/0647-01" ] }, { "cite": "496 U.S. 325", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12122945 ], "weight": 2, "year": 1990, "pin_cites": [ { "page": "330" } ], "opinion_index": 1, "case_paths": [ "/us/496/0325-01" ] }, { "cite": "122 N.M. 84", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 322320 ], "weight": 2, "opinion_index": 1, "case_paths": [ "/nm/122/0084-01" ] }, { "cite": "1996-NMCA-059", "category": "reporters:neutral", "reporter": "NMCA", "pin_cites": [ { "page": "\u00b6 8" } ], "opinion_index": 1 }, { "cite": "2002-NMSC-023", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 260742 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 16" } ], "opinion_index": 1, "case_paths": [ "/nm/132/0592-01" ] }, { "cite": "480 U.S. 294", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1131408 ], "year": 1987, "pin_cites": [ { "page": "302", "parenthetical": "holding that the defendant did not have a reasonable privacy interest in a barn located 60 yards from his home because the barn lay outside the fence enclosing the home, and thus it was not part of the curtilage" } ], "opinion_index": 1, "case_paths": [ "/us/480/0294-01" ] }, { "cite": "329 F.2d 295", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 124504 ], "year": 1964, "pin_cites": [ { "page": "298", "parenthetical": "holding that an outdoor smokehouse was protected from a warrantless search because the smokehouse was 75 feet from the defendant's residence and there was no intervening barrier between the two buildings to remove it from the curtilage" } ], "opinion_index": 1, "case_paths": [ "/f2d/329/0295-01" ] }, { "cite": "286 U.S. 1", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 3918816 ], "year": 1932, "pin_cites": [ { "page": "5-6", "parenthetical": "holding that a garage was protected from a warrantless search because the garage was adjacent to the defendant's home" } ], "opinion_index": 1, "case_paths": [ "/us/286/0001-01" ] }, { "cite": "376 U.S. 483", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 379537 ], "year": 1964, "pin_cites": [ { "page": "489-90" } ], "opinion_index": 1, "case_paths": [ "/us/376/0483-01" ] }, { "cite": "2000-NMSC-018", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 1217162 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 14" } ], "opinion_index": 1, "case_paths": [ "/nm/129/0119-01" ] }, { "cite": "2005-NMSC-018", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 2548790 ], "weight": 2, "pin_cites": [ { "page": "\u00b6\u00b6 18-19" } ], "opinion_index": 1, "case_paths": [ "/nm/138/0009-01" ] }, { "cite": "117 N.M. 141", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1552727 ], "weight": 2, "opinion_index": 1, "case_paths": [ "/nm/117/0141-01" ] }, { "cite": "1994-NMSC-011", "category": "reporters:neutral", "reporter": "NMSC", "pin_cites": [ { "page": "\u00b6 24" } ], "opinion_index": 1 }, { "cite": "100 N.M. 515", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1588583 ], "weight": 2, "opinion_index": 1, "case_paths": [ "/nm/100/0515-01" ] }, { "cite": "1983-NMCA-114", "category": "reporters:neutral", "reporter": "NMCA", "weight": 3, "pin_cites": [ { "page": "\u00b6\u00b6 8-9" }, { "page": "\u00b6 8" } ], "opinion_index": 1 }, { "cite": "710 P.2d 299", "category": "reporters:state_regional", "reporter": "P.2d", "weight": 6, "year": 1985, "pin_cites": [ { "page": "305" }, { "page": "305" }, { "page": "304", "parenthetical": "footnote omitted" }, { "page": "304" }, { "parenthetical": "omission in original" } ], "opinion_index": 1 }, { "cite": "290 P.3d 271", "category": "reporters:state_regional", "reporter": "P.3d", "weight": 2, "opinion_index": 1 }, { "cite": "2012-NMCA-115", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 4191968 ], "weight": 2, "pin_cites": [ { "page": "\u00b6 16" }, { "page": "\u00b6 16" } ], "opinion_index": 1, "case_paths": [ "/nm-app/3/0061-01" ] }, { "cite": "329 P.3d 689", "category": "reporters:state_regional", "reporter": "P.3d", "opinion_index": 1 }, { "cite": "2014-NMSC-026", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4239278 ], "weight": 6, "pin_cites": [ { "page": "\u00b6 16" }, { "page": "\u00b6 16" }, { "page": "\u00b6 18" }, { "page": "\u00b6\u00b6 26-27" }, { "page": "\u00b6 28" }, { "page": "\u00b6 27" } ], "opinion_index": 1, "case_paths": [ "/nm-app/6/0347-01" ] }, { "cite": "2006-NMCA-098", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 3671457 ], "weight": 5, "pin_cites": [ { "page": "\u00b6 19" }, { "page": "\u00b6 24" }, { "page": "\u00b6 29" } ], "opinion_index": 1, "case_paths": [ "/nm/140/0345-01" ] }, { "cite": "1999-NMSC-037", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 106530 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 12" } ], "opinion_index": 1, "case_paths": [ "/nm/128/0360-01" ] }, { "cite": "2009-NMSC-046", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4245815 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 25" } ], "opinion_index": 1, "case_paths": [ "/nm/147/0134-01" ] }, { "cite": "14 C.F.R. \u00a7 91.119", "category": "laws:admin_compilation", "reporter": "C.F.R.", "weight": 3, "year": 1996, "pin_cites": [ { "page": "(d)(1)", "parenthetical": "\"If the operation is conducted without hazard to persons or property on the surface ... [a] helicopter may be operated at less than the minimums prescribed in paragraph (b) or (c) of this section . . . .\"" }, { "page": "(d)(1)" } ], "opinion_index": 1 }, { "cite": "686 F.2d 356", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1457456, 1457416 ], "year": 1982, "pin_cites": [ { "page": "359-60" } ], "opinion_index": 1, "case_paths": [ "/f2d/686/0356-02", "/f2d/686/0356-01" ] }, { "cite": "295 P.3d 1072", "category": "reporters:state_regional", "reporter": "P.3d", "opinion_index": 1 }, { "cite": "2013-NMCA-032", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 4191560 ], "pin_cites": [ { "page": "\u00b6 5" } ], "opinion_index": 1, "case_paths": [ "/nm-app/3/0500-01" ] }, { "cite": "2011-NMSC-023", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4250695 ], "weight": 5, "pin_cites": [ { "page": "\u00b6 10" }, { "parenthetical": "internal quotation marks and citation omitted" }, { "page": "\u00b6 10" } ], "opinion_index": 1, "case_paths": [ "/nm/150/0137-01" ] }, { "cite": "2011-NMSC-009", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4249607 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 51" } ], "opinion_index": 1, "case_paths": [ "/nm/149/0435-01" ] }, { "cite": "100 N.M. 517", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1588637 ], "weight": 2, "opinion_index": 1, "case_paths": [ "/nm/100/0517-01" ] }, { "cite": "1983-NMCA-115", "category": "reporters:neutral", "reporter": "NMCA", "weight": 3, "pin_cites": [ { "page": "\u00b6\u00b6 7, 9" }, { "page": "\u00b6 6" } ], "opinion_index": 1 }, { "cite": "389 U.S. 347", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11339173 ], "weight": 20, "year": 1967, "pin_cites": [ { "page": "361", "parenthetical": "Harlan, J., concurring" }, { "page": "361", "parenthetical": "Harlan, J., concurring" }, { "page": "361", "parenthetical": "Harlan, J., concurring" }, { "page": "361", "parenthetical": "Harlan, J., concurring" }, { "page": "361", "parenthetical": "Harlan, J., concurring" }, { "page": "455", "parenthetical": "O'Connor, J., concurring" }, { "parenthetical": "O'Connor, J., concurring" }, { "page": "460", "parenthetical": "Brennan, J., dissenting" }, { "page": "465", "parenthetical": "Brennan, J., dissenting" }, { "page": "460", "parenthetical": "Brennan, J., dissenting" }, { "page": "468", "parenthetical": "Blackmun, J., dissenting" }, { "page": "361", "parenthetical": "internal quotation marks omitted" }, { "page": "361", "parenthetical": "internal quotation marks omitted" }, { "page": "361", "parenthetical": "Harlan, J., concurring" }, { "page": "361", "parenthetical": "Harlan, J., concurring" }, { "page": "353" } ], "opinion_index": 1, "case_paths": [ "/us/389/0347-01" ] }, { "cite": "2008 VT 39", "category": "reporters:neutral", "reporter": "VT", "case_ids": [ 3692330 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 28" }, { "page": "\u00b6 23" } ], "opinion_index": 1, "case_paths": [ "/vt/183/0355-01" ] }, { "cite": "476 U.S. 227", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12763 ], "weight": 6, "year": 1986, "pin_cites": [ { "page": "229" }, { "page": "236" }, { "page": "235-36" }, { "page": "239" } ], "opinion_index": 1, "case_paths": [ "/us/476/0227-01" ] }, { "cite": "112 N.M. 449", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 720254 ], "weight": 2, "opinion_index": 1, "case_paths": [ "/nm/112/0449-01" ] }, { "cite": "1991-NMCA-073", "category": "reporters:neutral", "reporter": "NMCA", "pin_cites": [ { "page": "\u00b6 24" } ], "opinion_index": 1 }, { "cite": "442 U.S. 735", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1532082 ], "weight": 3, "year": 1979, "pin_cites": [ { "page": "739" }, { "page": "740" }, { "page": "740" } ], "opinion_index": 1, "case_paths": [ "/us/442/0735-01" ] }, { "cite": "1997-NMSC-006", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 322282 ], "weight": 5, "pin_cites": [ { "page": "\u00b6 36" } ], "opinion_index": 1, "case_paths": [ "/nm/122/0777-01" ] }, { "cite": "321 P.3d 955", "category": "reporters:state_regional", "reporter": "P.3d", "opinion_index": 1 }, { "cite": "2014-NMCA-042", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 4078189 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 16" }, { "page": "\u00b6\u00b6 18-20" }, { "page": "\u00b6 20" } ], "opinion_index": 1, "case_paths": [ "/nm-app/5/0684-01" ] }, { "cite": "476 U.S. 207", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12541 ], "weight": 12, "year": 1986, "pin_cites": [ { "page": "209" }, { "page": "209-10" }, { "page": "211" }, { "page": "213" }, { "parenthetical": "citation omitted" }, { "page": "213-14", "parenthetical": "\"Any member of the public flying in this airspace who glanced down could have seen everything that these officers observed.\"" }, { "page": "223", "parenthetical": "Powell, J., dissenting" }, { "page": "223-24", "parenthetical": "Powell, J., dissenting" } ], "opinion_index": 1, "case_paths": [ "/us/476/0207-01" ] }, { "cite": "488 U.S. 445", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1493665 ], "weight": 18, "year": 1989, "pin_cites": [ { "page": "447-48" }, { "page": "448" }, { "page": "452" }, { "page": "450" }, { "page": "450-51" }, { "page": "451" }, { "page": "452-53", "parenthetical": "O'Connor, J., concurring" }, { "page": "454", "parenthetical": "O'Connor, J., concurring" }, { "page": "452", "parenthetical": "determining that a surveillance helicopter did not interfere with using a greenhouse to grow marijuana in ultimately holding that aerial surveillance was not a search under the Fourth Amendment" }, { "page": "460", "parenthetical": "Brennan, J., dissenting" }, { "page": "460", "parenthetical": "Brennan, J., dissenting" }, { "page": "454", "parenthetical": "O'Connor, J., concurring" }, { "page": "453", "parenthetical": "O'Connor, J., concurring" }, { "page": "454", "parenthetical": "O'Connor, J., concurring" }, { "parenthetical": "O'Connor, J., concurring" }, { "page": "460", "parenthetical": "Brennan, J., dissenting" } ], "opinion_index": 1, "case_paths": [ "/us/488/0445-01" ] } ], "analysis": { "cardinality": 2524, "char_count": 97108, "ocr_confidence": 0.776, "pagerank": { "raw": 4.3849617572011903e-08, "percentile": 0.27529790346850336 }, "sha256": "7ed24d3e45ec499e0b025768d0b1d1e83ede02e269b21f3a72f89153211b943c", "simhash": "1:95c9ac02a6cb43e8", "word_count": 15122 }, "last_updated": "2023-07-14T20:13:54.428467+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "RICHARD C. BOSSON, Justice", "WE CONCUR:", "BARBARA J. VIGIL, Chief Justice", "PETRA JIMENEZ MAES, Justice", "EDWARD L. CH\u00c1VEZ, Justice, specially concurring", "CHARLES W. DANIELS, Justice", "EDWARD L. CH\u00c1VEZ, Justice" ], "parties": [ "STATE OF NEW MEXICO, Plaintiff-Petitioner, v. NORMAN DAVIS, Defendant-Respondent." ], "opinions": [ { "text": "OPINION\nBOSSON, Justice.\n{1} Defendant Norman Davis was convicted of possession of marijuana after New Mexico State Police officers consensually searched his greenhouse and seized 14 marijuana plants. That search was the result of \u201cOperation Yerba Buena 2006,\u201d a comprehensive aerial surveillance of Davis\u2019 property and the surrounding area conducted by a coordinated law enforcement effort that allegedly discovered marijuana plants growing on Davis\u2019 property. We decide whether that aerial surveillance, and the manner in which it was conducted, amounted to a warrantless search of Davis\u2019 property contrary to rights secured to him under the Fourth Amendment to the U.S. Constitution. Concluding that his federal constitutional rights were violated in this instance, we reverse the opinion of the Court of Appeals to the contrary as well as Davis\u2019 conviction below.\nBACKGROUND\n{2} Over a period of time during 2005 and 2006, the New Mexico State Police received several reports that residents were growing marijuana plants throughout rural areas of Taos County, New Mexico. The informants, however, were unable or unwilling to provide the police with specific locations where marijuana was growing due to the remoteness of the area and fear of retaliation. In investigating the reports, the New Mexico State Police, Region Three narcotic agents, and the New Mexico National Guard organized Operation Yerba Buena, described as \u201ca collaborative effort in the identification of marijuana plantations in Taos County with the use of two Army National Guard OH 58 Jet Ranger helicopters.\u201d\n{3} Prior to the execution of Operation Yerba Buena, the State Police developed an operation plan to provide a common working framework for everyone participating in the operation and to ensure that all participating agencies followed State Police policies and procedures. The plan divided the search areas of Carson Estates and Twin Peaks \u2014 vast rural tracts in Taos County \u2014 between two separate search teams. Each team consisted of an Army National Guard helicopter with an observer and a ground team comprised of individuals from various law enforcement agencies. All ground team officers were required to carry standard issue State Police tape recorders to be used during any \u201cinterviews/'arrests, [and] during [any] contacts from which there are reasons to believe a complaint could result in an arrest.\u201d (Emphasis in original.)\n{4} During the operation, the helicopter observers were instructed to fly over the assigned portions of the search area to look for potential \u201cmarijuana plantations.\u201d Once an observer spotted marijuana plants, he was instructed to contact the corresponding ground team staged at a pre-identified area and guide the team to the location of the plants. The ground team would then approach and make contact with the particular house to confirm or deny the existence of marijuana. The helicopter was to remain in the vicinity to provide cover and safety to its ground team.\n{5} On August 23, 2006, at approximately 9:00 a.m., the helicopters departed the Taos Regional Airport. The total operation lasted approximately ten hours. During that time, the helicopter observers identified possible marijuana plantations at eight properties and directed the ground teams accordingly.\nThe Davis residence\n{6} Observer Travis Skinner, upon identifying a potential marijuana plantation, directed his ground team' \u2014 five vehicles containing at least six armed law enforcement officers \u2014 to the Davis residence. Davis\u2019 property was enclosed from ground level view by fences that ran along the property line, several large trees and bushes, and a \u201cshade screen.\u201d However, when looking down on Davis\u2019 property from the helicopter, Sergeant Skinner was able to see and relay to the ground team the presence of a greenhouse as well as what appeared to be marijuana plants located at the back of Davis\u2019 property near the house. Sergeant Skinner also informed the team that there were dogs on the property.\n{7} Davis stated he was \u201cin bed and not feeling very well when [he] heard a helicopter hovering very low, right on top of [his] house.\u201d He stated that the helicopter was making \u201ca considerable racket\u201d and that when the sound did not go away, he went outside to see \u201cwhat... was going on.\u201d He observed the helicopter hovering approximately 50 feet above his head \u201ckicking up dust and debris that was swirling all around.\u201d\n{8} Sergeant Bill Merrell of the New Mexico State Police confronted Davis near Davis\u2019 front door. Other officers were present on either side of his driveway. Sergeant Merrell, as heard on the tape recording, approached Davis, identified himself, and said \u201cit appears that the helicopter . . . [was] looking for marijuana plants and they believe they\u2019ve located some at your residence.\u201d Sergeant Merrell asked Davis for permission to search the residence for the marijuana plants seen by the observer. The noise from the helicopter was audible in the background of Sergeant Merrell\u2019s recording.\n{9} In response to Sergeant MerrelPs accusation, Davis admitted that he was growing marijuana in his greenhouse and allowed the officers to search his property. Davis signed a written consent authorizing a complete search of his greenhouse and residence. This Court previously upheld the validity of Davis\u2019 consent, See State v. Davis, 2013-NMSC-028, \u00b6 35, 304 P.3d 10 (Davis II). The officers seized 14 marijuana plants from Davis\u2019 greenhouse. Neither the flyover of Davis\u2019 property nor the resulting search was accompanied by a search warrant.\n{10} Several nearby residents characterized the helicopter flyovers during Operation Yerba Buena as terrifying and highly disruptive. Kelly Rayburn watched a helicopter fly around his house about \u201chalf a dozen times.\u201d Rayburn said the helicopter flew so close to his roof that the downdraft lifted off a solar panel and scattered trash all over his property. Victoria Lindsay observed a helicopter sweeping back and forth over her property, sending debris and personal property all over the yard. Lindsay also observed the helicopter hovering very close to the ground at a neighbor\u2019s greenhouse. Merilee Lighty observed a helicopter flying over her property for about 15 minutes. She said it was so close that the downdraft affected her trees and her bushes.\n{11} William Hecox did not notice any real dust flying at the time of the flyover, but after the helicopter left he noticed that one of his four-by-four beams was broken at the ground and another one was broken three feet up from the ground. Hecox specifically stated that the beams were not broken prior to the helicopter flying over. He also stated that the noise and effect from the helicopter upset his turkey and fowl and caused them to \u201csquawk[] and run[] around.\u201d\nSuppression hearing\n{12} A grand jury indicted Davis on possession of marijuana contrary to NMSA 1978, Section 30-31 -23(A) and (B)(3) (2005), and possession of drug paraphernalia contrary to NMSA 1978, Section 30-31-25(A) (2001), based on the items found during Operation Yerba Buena. Davis filed two suppression motions, arguing that 1) the helicopter surveillance violated his constitutional right to be free from unreasonable searches, and 2) his consent for the subsequent search of his property was involuntary.\n{13} Davis requested that the suppression hearing be consolidated with a suppression hearing in a separate case involving Steve Hodges, another Carson resident also charged with possession of marijuana seized from his property as part of Operation Yerba Buena. Although each defendant made additional arguments for suppression (invalid warrant by Hodges and invalid consent by Davis), both presented a similar challenge to the constitutionality of the helicopter surveillance of their property. The district court granted Davis\u2019 consolidation request and held an evidentiary hearing on the motions to suppress.\n{14} Several Carson residents testified during the hearing, as previously discussed in this opinion. Some residents testified that the surveillance felt like an invasion with the helicopter hovering so close to the ground that the rotor wash and ground effects kicked up dust and blew debris around their property. Others focused their testimony specifically on the noise disruption from the helicopter, stating that they were unable to go outside and work or have a conversation. Still others alleged that the helicopter physically damaged their property, and recounted the damage to the solar panel and the broken support beams discussed above.\n{15} Some of the participating officers also testified during the hearing. Sergeant Matthew Vigil, the officer in command of Operation Yerba Buena, testified that the helicopters were flown at a reasonable height above the residents\u2019 properties and stated that the pilots \u201cwere real strict on guidelines as far as altitude.\u201d When asked generally whether a helicopter ever spent \u201clike five minutes or ten minutes over a property in an altitude of less than a hundred feet,\u201d Sergeant Vigil responded in the negative. Sergeant Vigil stated that he was unaware of and did not observe any of the damage or disturbance created by the helicopter\u2019s rotor wash alleged by the individual residents.\n{16} Sergeant Adrian Vigil, one of the ground officers, testified that the helicopter probably came down to \u201ca couple hundred feet\u201d to confirm its original observations and provide the ground team with cover. He also testified that the helicopter did not go so low that it would cause interference, and said he could not feel any wash from the helicopter. Sergeant Merrell, the ground team officer in charge of the investigation at Davis\u2019 residence, gave testimony describing his encounter with Davis, and his audio recording of the encounter, including the audible noise from the hovering helicopter, was submitted into evidence.\n{17} After considering all testimony, exhibits, and arguments, the district court denied Davis\u2019 suppression motion and issued findings and conclusions in support of its decision. The court analyzed the facts of this case under what it characterized as the Riley/Ciraolo rule, a list of factors used by the United States Supreme Court to assess the constitutionality of aerial surveillance. See Florida v. Riley, 488 U.S. 445 (1989); California v. Ciraolo, 476 U.S. 207 (1986).\n{18} According to the district court\u2019s findings, the helicopter circled over certain locations and then swooped in for closer looks. The court concluded that \u201c[a] greater degree of intrusion is permissible if aerial surveillance is used to confirm facts, rather than flying around generally in an effort to spot greenhouses, then swooping in lower to see what could possibly be seen.\u201d But the district court was \u201ctroubled by the testimonial descriptions of rotor wash and flying debris.\u201d Although the court believed that some of the testimony was \u201coverly dramatic and anti-police state rhetoric,\u201d it found merit to the claim that \u201cthe police swooped in as if they were in a state of war . . . [which] can be terrifying and intimidating to most normal persons.\u201d\n{19} Because surveillance was in response to general vague complaints, however, the district court found that \u201c[i]t was not confirmatory activity\u201d and \u201c[t]he claims of dust and destruction [were] negligible, in comparison.\u201d In totality, the court concluded as a matter of law that the helicopter surveillance \u201cjust barely\u201d made it over the threshold of validity. The district court then found that Davis\u2019 subsequent consent to the search was valid and not given under duress or coercion. The court denied both of Davis\u2019 motions to suppress.\n{20} Following the hearing, Davis entered a conditional plea of guilty reserving his right to appeal the district court\u2019s pretrial denial of his motion to suppress. On Davis\u2019 first appeal, our Court of Appeals reversed the district court on the consent finding, concluding that the State failed to establish that Davis\u2019 consent was voluntary. State v. Davis, 201-NMCA-102, \u00b6 1, 150 N.M. 611, 263 P.3d 953 (Davis I). We granted certiorari and reversed, concluding that substantial evidence supported the district court\u2019s finding that Davis voluntarily consented to the search of his residence. Davis II, 2013-NMSC-028, \u00b6\u00b6 2, 34. We remanded the case to the Court of Appeals to address remaining issues. Id. \u00b6 35.\n{21} On remand, the Court of Appeals considered the validity of the aerial surveillance under both the U.S. and the New Mexico Constitutions. State v. Davis, 2014-NMCA-042, \u00b6 4, 321 P.3d 955 (Davis III). The Court of Appeals found the surveillance permissible under the Fourth Amendment to the U.S. Constitution, but impermissible under Article II, Section 10 of the New Mexico Constitution. Davis III, 2014-NMCA-042, \u00b6\u00b6 1, 11, 27. As justification for its holding, the Court of Appeals stated: \u201cThe 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.\u201d Id. \u00b6 19.\n{22} Having determined that the aerial surveillance was unconstitutional, the Court of Appeals then concluded that there was insufficient attenuation to purge Davis\u2019 consent from the illegal search. Id. \u00b6\u00b6 28-31. Reversing the district court, the Court of Appeals suppressed all evidence obtained from the Davis search. Id. \u00b6\u00b6 1, 32.\n{23} We again granted the State\u2019s petition for certiorari review, State v. Davis, 2014-NMCERT-003, this time to determine 1) whether aerial surveillance is a violation of Article II, Section 10 of the New Mexico Constitution and, if so, 2) whether Davis\u2019 subsequent consent to search his property was sufficiently attenuated from the illegal search.\nDISCUSSION\nUnder our interstitial analysis, we must first consider whether the claimed right is protected under the U.S. Constitution before considering whether the New Mexico Constitution offers broader protection\n{24} When interpreting independent provisions of our New Mexico Constitution for which there are analogous provisions in the U.S. Constitution, New Mexico utilizes the interstitial approach. State v. Gomez, 1997-NMSC-006, \u00b6 21, 122 N.M. 777, 932 P.2d 1. Under that approach, before reaching the state constitutional claim, we must first determine whether the right being asserted is protected under the Federal Constitution. Id. \u00b6 19. If the right is protected under the Federal Constitution, our courts do not reach the state constitutional claim. Id. In this case, therefore, we must first determine whether the aerial surveillance conducted during Operation Yerba Buena violated the Fourth Amendment. If so, we do not address Davis\u2019 state constitutional claim.\n{25} \u201cThe touchstone of Fourth Amendment analysis is whether a person has a constitutionally protected reasonable expectation of privacy [in the area searched],\u201d in this case the curtilage of a private home. Ciraolo, 476 U.S. at 211 (internal quotation marks and citation omitted). This inquiry normally embraces two discrete questions: \u201cwhether the individual, by his conduct, has exhibited an actual (subjective) expectation of privacy, . . . [and] whether the individual\u2019s subjective expectation of privacy is [objectively] one that society is prepared to recognize as reasonable.\u201d Smith v. Maryland, 442 U.S. 735, 740 (1979) (internal quotation marks and citations omitted). The determination is based on the totality of circumstances in each particular case. Rawlings v. Kentucky, 448 U.S. 98, 104 (1980).\nWhether Davis had a reasonable expectation of privacy from a helicopter conducting aerial observation over the curtilage of his home\n{26} The curtilage of a house is considered an extension of the home for Fourth Amendment purposes. State v. Sutton, 1991-NMCA-073, \u00b6 8, 112 N.M. 449, 816 P.2d 518, modified on other grounds by Gomez, 1997-NMSC-006, \u00b6 32. As such, the curtilage has \u201clong been given protection as a place where the occupants have a reasonable and legitimate expectation of privacy that society is prepared to accept.\u201d Dow Chem. Co. v. United States, 476 U.S. 227, 235 (1986). See also State v. Bryant, 2008 VT 39, \u00b6 13, 950 A.2d467 (\u201cA home\u2019s curtilage \u2014 the \u2018area outside the physical confines of a house into which the \u2018privacies of life\u2019 may extend\u2019 \u2014 merits \u2018the same constitutional protection from unreasonable searches and seizures as the home itself.\u2019\u201d (first quoting State v. Rogers, 638 A.2d 569, 572 (Vt. 1993); then quoting Oliver v. United States, 466 U.S. 170, 180 (1984))).\n{27} Falling within the curtilage of a home, however, does not automatically warrant protection from all observation under the Fourth Amendment. The U.S. Supreme Court has consistently maintained that the Fourth Amendment offers no protection\u2014 even within the home or curtilage \u2014 if the observed area is knowingly exposed to public view. Kyllo v. United States, 533 U.S. 27, 32 (2001). See also Katz v. United States, 389 U.S. 347, 351 (1967) (\u201cWhat a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection.\u201d); Dow Chem. Co., 476 U.S. at 234-35 (visual observation is no search at all). In order to claim protection under the Fourth Amendment, therefore, an individual must take affirmative steps to exhibit an expectation of privacy.\n{28} In this case, Davis did take affirmative steps to exhibit an expectation of privacy from ground level surveillance. He fully enclosed his property with ground level \u201cfencing,\u201d using a combination of vegetation and artificial devices. But, exhibiting a reasonable expectation ofprivacy from ground level surveillance may not always be enough to protect from public or official observation from the air under the Fourth Amendment. Riley, 488 U.S. at 450-51.\n{29} In two cases remarkably similar to the case at bar, the U.S. Supreme Court addressed the constitutionality of warrantless aerial observation of the curtilage of a home that, like Davis\u2019, was blocked from ground-level observation but left open to observation from the air. In the first case, California v. Ciraolo, the police attempted to observe the backyard of a private residence where marijuana was allegedly being grown. Ciraolo, 476 U.S. at 213. High double fences completely enclosed the yard, prohibiting all ground level observation, so officers secured a private plane and flew over the house. Id. at 209. From the air, the officers identified marijuana plants and photographed the plants with a standard 35 mm camera. Id.\n{30} The U.S. Supreme Court granted certiorari to determine whether officers violated the Fourth Amendment when they observed the fenced-in backyard within the curtilage of a home from a fixed-wing aircraft at an altitude of 1,000 feet. Id. The Court determined there was no reasonable expectation ofprivacy when the observations \u201ctook place within public navigable airspace, in a physically nonintrusive manner.\u201d Ciraolo, 416 U.S. at 213 (internal citation omitted).\n{31} In support of its holding, the Court stated \u201c[t]he test of legitimacy is not whether the individual chooses to conceal assertedly \u2018private activity,\u2019 but instead whether the government\u2019s intrusion infringes upon the personal and societal values protected by the Fourth Amendment.\u201d Id. at 212 (alteration in original) (internal quotation marks and citation omitted).\nThat the area is within the curtilage does not itself bar all police observation. The F ourth Amendment protection of the home has never been extended to require law enforcement officers to shield their eyes when passing by a home on public thoroughfares. Nor does the mere fact that an individual has taken measures to restrict some views of his activities preclude an officer\u2019s observations from a public vantage point where he has a right to be and which renders the activities clearly visible. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection.\nCiraolo, 476 U.S. at 213 (internal quotation marks and citations omitted).\n{32} Three years later in Florida v. Riley, the U.S. Supreme Court again addressed aerial observation under the Fourth Amendment. 488 U.S. at 447-48. In that case, the officer utilized a helicopter to observe a targeted area. Id. at 448 The Court granted certiorari to determine whether warrantless surveillance of a partially covered greenhouse in a residential backyard from a helicopter 400 feet above the greenhouse constituted a search under the Fourth Amendment. Id. at 448.\n{33} The opinion in Riley was badly fractured, but a majority of the Court agreed that the observation was not a search under the Fourth Amendment. Id. at 447, 452 (O\u2019Connor, J., concurring). Justice White wrote an opinion for a plurality of four justices. Id. at 447. Following the reasoning advanced in Ciraolo, the plurality reiterated that:\n[Tjhe home and its curtilage are not necessarily protected from inspection that involves no physical invasion. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. As a general proposition, the police may see what may be seen from a public vantage point where they have a right to be. Thus the police, like the public, would have been free to inspect the backyard garden from the street if their view had been unobstructed. They were likewise free to inspect the yard from the vantage point of an aircraft flying in the navigable airspace.\nRiley, 488 U.S. at 449-50 (internal alterations omitted) (internal quotation marks and citations omitted). The plurality determined that the helicopter, like the airplane in Ciraolo, was hovering within the prescribed navigable airspace. Riley, 488 U.S. at 451. In making that determination, the plurality relied on Federal Aviation Administration regulations that permit helicopters to operate at less than the minimum altitude for fixed-wing aircraft, as long as the \u201coperation is conducted without hazard to persons or property on the surface.\u201d Id. at 451 n.3 (internal quotation marks and citation omitted).\n{34} Significantly for our case, the plurality emphasized that the helicopter was not violating the law, and there was no indication in the record that \u201cthe helicopter interfered with respondent\u2019s normal use of the greenhouse or of other parts of the curtilage,\u201d or caused undue noise, wind, dust, or threat of injury. Id. at 451 -52. The plurality thus found that the police did no more than any member of the public could do flying in navigable airspace, and the Court held that the surveillance did not violate the Fourth Amendment. Id. at 451. Justice White cautioned, however, that not every inspection of the curtilage of a house from an aircraft will \u201cpass muster under the Fourth Amendment simply because the plane is within the navigable airspace specified by law.\u201d Id.\n{35} Although we avoid the temptation to draw too much settled legal principle from either of these two opinions, we believe certain inferences are appropriate. First, it appears after Ciraolo and Riley that the Fourth Amendment affords citizens no reasonable expectation of privacy from aerial surveillance conducted in a disciplined manner \u2014 mere observation from navigable airspace of an area left open to public view with minimal impact on the ground. It also seems, however, that warrantless surveillance can go beyond benign observation in a number of different ways, one of those being when surveillance creates a \u201chazard\u201d \u2014 a physical disturbance on the ground or unreasonable interference with a resident\u2019s use of his property. In that case, surveillance more closely resembles a physical invasion of privacy which has always been a violation of the Fourth Amendment. See Riley, 488 U.S. at 449-52. See also United States v. Jones,__U.S.__, 132 S. Ct. 945, 955 (2012) (\u201c[A] search within the meaning of the Fourth Amendment occurs, at a minimum, \u2018[w]here ... the Government obtains information by physically intruding on a constitutionally protected area.\u2019\u201d (Sotomayor, J., concurring, quoting 132 S. Ct. at 950 n.3.) (second alteration in original)). For reasons that follow, this distinction, referenced in both Ciraolo and Riley, informs our constitutional analysis of what occurred on Davis\u2019 property.\n{36} We do not consider this question in a vacuum. Many state courts base their determination of whether a particular aerial surveillance violates the Fourth Amendment on the degree of physical intrusion on the ground below. In assessing intrusion, courts look at the legality of the flight, the altitude of the aircraft, the frequency and duration of the flight, and the nature of the area observed \u2014 factors similar to Ciraolo and Riley and factors employed by the district court in this very case. See United States v. Bassford, 601 F. Supp. 1324, 1330 (D. Me. 1985) (\u201c[CJourts have taken a case-by-case approach to the [FJourth [AJmendment problems implicated by aerial surveillance [considering factors such as] the height of the aircraft, the size of the objects, the nature of the area observed,... the frequency of flights over the area, and the frequency and duration of the aerial surveillance.\u201d (internal citations omitted)). See also Bryant, 2008 VT 39, \u00b6\u00b6 23-26 (\u201cSince the rulings in . . . Ciraolo and Riley,... some state courts have relied solely on the legality of a helicopter\u2019s position in public airspace to determine whether the aerial surveillance at issue was a search. . . . Some courts . . . consider the legality and intrusiveness of the surveillance flight. . . . Still other state courts attempt to give effect to all of the Riley opinions by evaluating legality, intrusiveness, and the frequency of flight at the altitude at which the surveillance took place. ... A remaining group of state courts rely on a multitude of factors of their own articulation.\u201d (internal citations omitted)).\n{37} Consistent with the general trend of focusing on the degree of intrusiveness, our Court of Appeals over 30 years ago found no Fourth Amendment violation based partly on the district court\u2019s finding that the aerial observation was accomplished \u201cwithout disturbing defendant\u2019s premises.\u201d State v. Rogers, 1983-NMCA-115, \u00b6\u00b6 3, 5, 100 N.M. 517, 673 P.2d 142 (internal quotation marks omitted). Although decided three years before the first of the U.S. Supreme Court opinions on aerial surveillance, the Court of Appeals\u2019 opinion in Rogers presaged the analysis eventually undertaken by that Court.\n{38} Much as with this case, Rogers involved aerial observation of a greenhouse within the curtilage of a home from a helicopter looking for marijuana plants. Id. \u00b6 2. Rogers and his neighbors testified that the helicopter hovered as low as 30 feet and that the noise of the helicopter awakened them and kicked up dust. Id. \u00b6\u00b6 5, 12. The helicopter pilot testified, however, that the total surveillance lasted for only 15 to 30 seconds and the helicopter stayed above 100 feet, hovering over an adjacent field several hundred feet from the residence. Id. \u00b6 12. As finder of fact, the district court found the State\u2019s witnesses persuasive. Id. \u00b6 5. Our Court of Appeals concluded that \u201c[w]hile the facts of this case teeter dangerously close to exceeding the limitations implicit in the Fourth Amendment, we do not believe that defendant may claim constitutional protection under these circumstances. . . . [T]he surveillance methods used by the police were not unreasonable.\u201d Id. \u00b6 13. Substantial evidence supported the district court\u2019s finding of no disturbance to the defendant\u2019s property, and the Court of Appeals affirmed. Id. \u00b6\u00b6 5, 14.\n{39} As in Rogers, in most cases courts find that the aerial observation was not sufficiently intrusive as to invade a reasonable expectation of privacy, and sustain the warrantless aerial surveillance. See, e.g., People v. McKim, 263 Cal. Rptr. 21, 25 (Ct. App. 1989) (upholding a helicopter surveillance where there was no evidence the helicopter interfered with the defendant\u2019s use of his property or \u201ccreated any undue noise, wind, dust, or threat of injury\u201d); Henderson v. People, 879 P.2d 383, 389-90 (Colo. 1994) (en banc) (upholding helicopter surveillance where there was little evidence of wind, dust, threat of injury, or interference and there was no indication the neighbors felt compelled to go outside and observe the commotion); State v. Rodal, 985 P.2d 863, 867 (Or. Ct. App. 1999) (upholding surveillance where the helicopter was operated in a lawful and unintrusive manner).\n{40} There are instances, however, where \u201cthe means of surveillance [were] sufficiently intrusive so as to give rise to a constitutional violation.\u201d See 1 Joseph G. Cook, Constitutional Rights of the Accused \u00a7 4:5 n.6 (3d ed. 2015). We have found two state court cases from other jurisdictions concluding that the degree of physical invasiveness from warrantless aerial surveillance amounted to an unconstitutional search under the Fourth Amendment.\n{41} In Commonwealth v. Oglialoro, the Supreme Court of Pennsylvania held that aerial surveillance of a barn violated the Fourth Amendment due to the risk of harm to the resident and her property during the search. 579 A.2d 1288, 1294 (Pa. 1990). In that case, the police hovered over a barn located within the curtilage of a home at an altitude of 50 feet for \u201capproximately 15 seconds and made a total of three or more passes over the . . . property, lasting approximately five minutes.\u201d Id. at 1290. The wife of the defendant testified that she was \u201cpresent in the home at the time [and] experienced various sensations caused by the helicopter[\u2019]s proximity, such as loud noise, and vibration of the house and windows.\u201d Id. The Court stated:\nWhile the police had a right to fly above [defendant\u2019s] property and he had no reasonable expectation of privacy that they would not peer into his barn, it remains to be decided whether the conduct of the police in flying at 50 feet above the barn was hazardous to persons or property on the surface. If so, the search would be unreasonable .... When weighing the issue of whether or not a helicopter surveillance is intrusive to the point of being hazardous, or non-intrusive, a trial court should ask whether or not a risk of harm or danger exists in regards to the person(s) present or property being observed, whether ornot a danger, or threat of injury exists, in regards to persons present within the area being searched.\nId. at 1293. There was no testimony from the police to refute the wife\u2019s testimony. Id. at 1294.\n{42} The Pennsylvania Supreme Court determined under the evidence presented that the \u201chelicopter\u2019s presence at 50 feet above the barn represented a hazard to persons and property on the ground and that the conduct of the police in flying at this level was unreasonable.\u201d Id. at 1294. The Court concluded that the surveillance was intrusive and that flying at that low level created a risk of harm, and noted that the police did not produce any evidence rebutting the wife\u2019s testimony or explaining why it was necessary to conduct observation from such a dangerously low altitude. Id.\n{43} The Colorado Court of Appeals, also finding a violation of the Fourth Amendment, held that aerial surveillance of a backyard went beyond mere observation when a helicopter 1) \u201cdescended to 200 feet,\u201d 2) \u201chovered in the area for several minutes,\u201d and 3) created \u201cenough noise that numerous people ran out\u201d to see what was happening. People v. Pollock, 796 P.2d 63 (Colo. Ct. App. 1990). The defendant and several neighbors testified that the helicopter was extremely noisy and that one child asked if the army was invading. Id. at 65.\n{44} The Colorado Court of Appeals characterized Pollock as a close case but determined that two critical factors in the record distinguished Pollock from Ciraolo and Riley. 1) infrequency of helicopter flights at that altitude, and 2) excessive noise from the helicopter. Pollock, 796 P.2d at 64. The Court held that, \u201con this record, with unrefuted evidence, the type of which was notedly absent in both California v. Ciraolo and Florida v. Riley, . . . defendant had a reasonable expectation ofprivacy thatno such surveillance would occur.\u201d Id. at 65.\nThe aerial surveillance during Operation Yerba Buena in light of these Fourth Amendment cases\n{45} Our review of these and other cases involving aerial observation of marijuana plants, both pre- and post-Ciraolo and Riley, leads us to certain conclusions. First, unobtrusive aerial observations of space open to the public are generally permitted under the Fourth Amendment. Even a minor degree of annoyance or irritation on the ground will not change that result. If that were all that occurred in the surveillance of the Davis property, this would likely not constitute an unreasonable search under the Fourth Amendment.\n{46} Our second conclusion, however, is that when low-flying aerial activity leads to more than just observation and actually causes an unreasonable intrusion on the ground \u2014 most commonly from an unreasonable amount of wind, dust, broken objects, noise, and sheer panic \u2014 then at some point courts are compelled to step in and require a warrant before law enforcement engages in such activity. The Fourth Amendment and its prohibition against unreasonable searches and seizures demands no less. Obviously, the line drawn between activity permitted with or without a warrant is fact-dependent; any further definition is elusive. For that reason, we must return to the evidentiary hearing conducted in this case and the resulting observations of the district court.\n{47} Although the district court concluded as a matter of law that Operation Yerba Buena did not amount to an unconstitutional search, many of its findings and much of the evidence suggest that the police went beyond mere observation as that term has been defined by Fourth Amendment jurisprudence. The district court\u2019s findings make multiple references to the degree of noise and disturbance on the ground and suggest that the helicopter swooped down low enough to cause panic among the residents.\n{48} In addition to the district court\u2019s findings, evidence from Davis and the other residents suggests that the officers in the helicopter did more than merely observe. There were multiple allegations regarding other properties that the helicopter caused property damage \u2014 the broken beams and the damaged solar panel \u2014 and produced excessive noise and kicked up dust and debris. The noise allegations in particular are supported by Sergeant Merrell\u2019s audio recording where the helicopter is clearly heard hovering over Davis\u2019 home. And it is clear from all testimony that the helicopters were there to do more than just observe; they were also there to provide aerial cover and protection for the officers on the ground \u2014 in other words, to participate actively in the investigation. In so doing, the police increased the risk of actual physical intrusion as occurred in this case.\n{49} We acknowledge testimony to the contrary, primarily from law enforcement officers who were there on the ground. For example, police officers testified that the helicopter was operating at a lawful altitude and emphasized that the pilots strictly adhered to altitude guidelines. However, as the U.S. Supreme Court said in Riley, an observation will not always be lawful under the Fourth Amendment simply because the plane is operating within navigable airspace. Riley, 488 U.S. at 451. Like in Pollock and Oglialoro, the police here failed to provide testimony rebutting the specific claims of damage and disruption as described by Davis and the other residents at the suppression hearing.\n{50} For example, Sergeant M. Vigil stated that he was unaware of any damage to any resident\u2019s property, and Sergeant A. Vigil stated that he did not feel any wash from the helicopter. Both of these accounts imply that the officers either may not have recalled or were not particularly focused on whether there was damage or wash. These vague recollections are not the type of conclusive evidence that can effectively rebut the specific allegations made by the residents. Further, and perhaps more importantly, neither Sergeant M. Vigil nor Sergeant A. Vigil was present for the surveillance of Davis\u2019 property. They were assigned to searches of properties located elsewhere in the search area.\n{51} Regrettably for the State, Sergeant Skinner, the observer for the team that did fly over Davis\u2019 property, did not testify at the suppression hearing. Sergeant Merrell, who was also present at Davis\u2019 property, testified but did not address or refute Davis\u2019 allegations of disturbance, excessive noise, and dust. Perhaps most importantly, the district court, having personally witnessed all testimony and other evidence elicited at the suppression hearing, did not disregard the residents\u2019 testimony as not credible, did not find that the dust and disturbance never happened, and did not find that the police officers \u2019 testimony was exclusively reliable.\n{52} Based on the evidence, therefore, we conclude that the official conduct in this case went beyond a brief flyover to gather information. The prolonged hovering close enough to the ground to cause interference with Davis\u2019 property transformed this surveillance from a lawful observation of an area left open to public view to an unconstitutional intrusion into Davis\u2019 expectation of privacy. We think what happened in this case to Davis and other persons on the ground is precisely what did not occur in either Ciraolo or Riley and what did occur in both Oglialoro and Pollock. Accordingly, we hold that the aerial surveillance over Davis\u2019 property was an unwarranted search in violation of the Fourth Amendment.\nThe New Mexico Constitution\n{53} Under our interstitial approach to the New Mexico Constitution as explained previously, because we find the asserted right to be protected under the Federal Constitution we do not reach the same claim under our New Mexico Constitution. In resolving this dispute on federal grounds, two consequences for the Court of Appeals\u2019 opinion become clear. First, we reverse the Court of Appeals\u2019 holding with respect to the Fourth Amendment because we find an unreasonable, unconstitutional search under the U.S. Constitution. Second, it is now unnecessary to reach the same question posed under the New Mexico Constitution, which renders the Court of Appeals\u2019 discussion of that subject moot though informative. In the end, however, we uphold the result achieved by the Court of Appeals, which is to suppress all evidence obtained from the search of Davis\u2019 property and to reverse his conviction.\n{54} As an aside, we note that the Court of Appeals, when reviewing the district court\u2019s order in this case, suggested that when considering privacy interests under our State Constitution we move away from an intrusion analysis in anticipation of fixture surveillance conducted by \u201cultra-quiet drones\u201d and other high-tech devices. Davis III, 2014-NMCA-042, \u00b6 19. Because this case only involves surveillance by helicopters, technology that has been with us for nearly 80 years, we find it unnecessary to speculate about problems \u2014 and futuristic technology \u2014 that may or may not arise in the future. Instead, we reserve judgment and await a proper case with a developed record.\nDavis\u2019 consent was not sufficiently attenuated from the unconstitutional search\n{55} As this Court decided in Davis II, Davis validly consented to the search of his home and greenhouse after Sergeant Merrell informed him that a helicopter spotter had identified marijuana plants growing on his property. 2013-NMSC-028, \u00b6\u00b6 19-20, 35. However, having now determined that the helicopter flyover was an illegal search, we are left to decide whether Sergeant Merrell obtained Davis\u2019 consent by means \u201csufficiently distinguishable to be purged of the primary taint of the illegal helicopter surveillance.\u201d Davis III, 2014-NMCA-042, \u00b6 30 (internal quotation marks and citation omitted).\n{56} \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 111 (alteration in original) (internal quotation marks and citation omitted). \u201cIn order for evidence obtained after an illegality, but with the voluntary consent of the defendant, to be admissible, there must be a break in the causal chain from the [illegality] to the search[.]\u201d State v. Taylor, 1999-NMCA-022, \u00b6 28, 126 N.M. 569, 973 P.2d 246 (alterations in original) (internal quotation marks and citation omitted), overruled on other grounds by State v. Leyva, 2011-NMSC-009, \u00b6 17 n.1, 149 N.M. 435, 250 P.3d 861. \u201cIn deciding whether the consent is sufficiently attenuated from the Fourth Amendment violation, we consider the temporal proximity of the illegal act and the consent, the presence or absence of intervening circumstances, and the purpose and flagrancy of the official misconduct.\u201d Taylor, 1999-NMCA-022, \u00b6 28.\n{57} In this case, Sergeant Merrell\u2019s contact with Davis and his subsequent request to search Davis\u2019 greenhouse were made in direct response to, and simultaneously with, the information provided by the helicopter spotter, information obtained as a result of the illegal helicopter search. Sergeant Merrell told Davis that \u201cthe helicopter . . . [was] looking for marijuana plants and they believe they\u2019ve located some at your residence.\u201d Sergeant Merrell then asked Davis for permission to search his property.\n{58} Further, the helicopter was present and was continuing to provide information to Sergeant Merrell as Sergeant Merrell approached Davis. The helicopter is clearly audible on SergeantMerrell\u2019s belttape during his discussion with Davis and remained over the house until Davis gave verbal consent to search his property.\n{59} We affirm the Court of Appeals\u2019 determination that Sergeant Merrell entered \u201c[Davis\u2019] property solely as a result of information obtained in the helicopter search,\u201d and there were no \u201cintervening circumstances between the aerial search and [Davis\u2019] consent.\u201d Davis III, 2014-NMCA-042, \u00b6 31. As a result we hold that there was insufficient attenuation to purge Davis\u2019 consent of the taint resulting from the warrantless aerial search.\nCONCLUSION\n{60} For the foregoing reasons we hold that this aerial surveillance amounted to an unconstitutional search under the Fourth Amendment and reverse the Court of Appeals \u2019 determination to the contrary. We affirm the ultimate determination of the Court of Appeals to suppress all evidence seized as a result and reverse the conviction in this case.\n{61} IT IS SO ORDERED.\nRICHARD C. BOSSON, Justice\nWE CONCUR:\nBARBARA J. VIGIL, Chief Justice\nPETRA JIMENEZ MAES, Justice\nEDWARD L. CH\u00c1VEZ, Justice, specially concurring\nCHARLES W. DANIELS, Justice\nThe factors the district court considered were \u201c[e]fforts of the [resident] to protect from aerial intrusions, presence in navigable airspace, the extent of physical intrusion, location of the property, [and] altitude and frequency and circumstances around the means of surveillance.\u201d", "type": "majority", "author": "BOSSON, Justice." }, { "text": "CH\u00c1VEZ, Justice, specially\nconcurring.\n{62} I concur in the result of the majority opinion which suppresses the evidence in this case, but I respectfully disagree with the analysis employed by the majority. In this case, law enforcement officers conducted an indiscriminate aerial surveillance over large areas in Taos County based on outdated, vague reports from anonymous sources whose reliability is unknown, that some undisclosed people were growing marijuana in unspecified locations. Utilizing helicopters for aerial surveillance, the law enforcement officers swooped down on house after house, including Defendant\u2019s house, as if the occupants did not have an expectation of privacy in and around their homes. The district court believed \u201cthat the police swooped in as if they were in a state of war, searching for weapons or terrorist activity,\u201d which \u201ccan be terrifying and intimidating to most normal persons.\u201d The majority concludes that people would not have a reasonable expectation of privacy in their homes and curtilage from aerial surveillance as long as during the surveillance law enforcement is disciplined enough not to be too noisy, kick up too much dust, cause too much wind, or otherwise unduly interfere with the owners\u2019 or occupants\u2019 use of the property. Majority op. \u00b6\u00b6 35, 36, 45,46. In this case the majority concludes that the law enforcement officers were not disciplined enough, and they therefore violated Defendant\u2019s Fourth Amendment rights, requiring suppression of the evidence.\n{63} Unlike the majority, I doubt that Defendant has a protected privacy interest under the Fourth Amendment of the United States Constitution, and I therefore would analyze this case under Article II, Section 10 of the New Mexico Constitution. I would hold that an individual's subjective expectation of privacy in his or her home from ground-level surveillance is coextensive with his or her subjective expectation of privacy from aerial surveillance. If an individual has taken steps to ward off inspection from the ground, the individual has also manifested an expectation to ward off inspection from the air.\n{64} I would decline to follow the flawed analysis of the federal courts. Whether an individual has a reasonable expectation of privacy in his or her home and curtilage should not turn on whether the government\u2019s invasion is too noisy or kicked up too much dust. Equally unilluminating criteria such as whether the altitude of the aircraft is in compliance with Federal Aviation Administration (FAA) regulations or the regularity of flights over an individual\u2019s home should also be rejected. FAA regulations address safety concerns, not privacy concerns. In addition, to suggest that in New Mexico privately owned helicopters or other aircraft regularly fly at the altitudes that the helicopters in this case were flown strains credulity. In any event, members of the public utilize airspace for travel, not to intently scrutinize other peoples\u2019 residential yards; at most, such travelers only gain a fleeting glimpse of a property owner\u2019s backyard. The New Mexico Constitution should not be interpreted to give the government the authority to conduct an aerial surveillance over a property owner\u2019s home and curtilage when the owner has taken steps to exhibit an expectation of privacy in those areas, unless the government complies with the warrant requirement \u2014 a requirement that we have carefully guarded for at least the last quarter of a century.\n{65} New Mexico covers a large geographic area, almost 122,000 square miles, and much of it is rural. People living in rural communities enjoy the absence of noise and light pollution. To be clear, they have a heightened expectation of privacy. Our courts have acknowledged as much since at least 1991. See State v. Sutton, 1991-NMCA-073, \u00b6 24, 112 N.M. 449, 816 P.2d 518 (concluding that the prevalence of large rural lots and plentiful land has given rise to uniquely heightened expectations of privacy in the homes and curtilages of our citizens), holding modified on other grounds by State v. Gomez, 1997-NMSC-006, 122 N.M. 777, 932 P.2d 1.\n{66} I would hold that in New Mexico, when a property owner takes steps to exhibit a subjective expectation of privacy from ground-level observations into the curtilage of his or her property, society would recognize the owner\u2019s subjective expectation of privacy from aerial observations as reasonable. Under such circumstances, pursuant to Article II, Section 10 of the New Mexico Constitution, before law enforcement officers may conduct an aerial surveillance, they must obtain a search warrant or have some recognized exception to the warrant requirement. The interest protected by Article II, Section 10 is the privacy interest of all citizens, including law-abiding citizens, and a citizen\u2019s privacy interest is not diminished if a search uncovers evidence of a crime.\nA. Article II, Section 10 of the New Mexico Constitution provides greater privacy protections than the Fourth Amendment of the United States Constitution against the government-initiated aerial surveillance of Defendant\u2019s property\n{67} The F ourth Amendment of the United States Constitution guarantees \u201c[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.\u201d Similarly, Article II, Section 10 of the New Mexico Constitution guarantees that \u201c[t]he people shall be secure in their persons, papers, homes and effects, from unreasonable searches and seizures.\u201d\n{68} \u201cBecause both the United States and the New Mexico Constitutions provide overlapping protections against unreasonable searches and seizures, we apply our interstitial approach.\u201d State v. Ketelson, 2011-NMSC-023, \u00b6 10, 150 N.M. 137, 257 P.3d 957 (internal quotation marks and citations omitted). Under our 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 (\u201cUnder New Mexico\u2019s interstitial approach to state constitutional interpretation, this Courtshould onlyreachthe 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). For the reasons that follow, I cannot agree with the majority that the Fourth Amendment protects Defendant\u2019s reasonable expectation of privacy from government aerial surveillance.\n1. Defendant\u2019s expectation of privacy against aerial surveillance is likely not protected by the Fourth Amendment\n{69} \u201cIn determining whether a particular form of government-initiated ... surveillance is a \u2018search\u2019 within the meaning of the Fourth Amendment,\u201d Smith v. Maryland, 442 U.S. 735, 739 (1979), the United States Supreme Court adopted a two-prong test that was first articulated in Justice Harlan\u2019s concurrence in Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring), limitation of holding recognized by United States v. Oliver, 686 F.2d 356, 359-60 (6th Cir. 1982). Smith, 442 U.S. at 740 (quoting Katz, 389 U.S. at 361 (Harlan, J., concurring)). Under this two-prong test, courts must first determine \u201cwhether the individual, by his [or her] conduct, has \u2018exhibited an actual (subjective) expectation of privacy.\u2019 \u201d Id. (quoting Katz, 389 U.S. at 361 (Harlan, J., concurring)). If the individual exhibited a subjective expectation of privacy, courts next determine \u201cwhether the individual\u2019s subjective expectation of privacy is \u2018one that society is prepared to recognize as reasonable.\u2019 \u201d Id. (quoting Katz, 389 U.S. at 361 (Harlan, J., concurring) (internal quotation marks omitted)).\n{70} United States Supreme Court precedent establishes that a defendant does not have a reasonable expectation of privacy under the Fourth Amendment if the aerial surveillance of a home and its curtilage is conducted within navigable airspace, in a non-intrusive manner, using commercially available technology, and the aerial surveillance reveals something that the defendant has not protected from aerial scrutiny. The Court first analyzed the constitutionality of aerial surveillance in Dow Chemical Co. v. United States, 476 U.S. 227, 229 (1986), where the Environmental Protection Agency, without Dow\u2019s consent, contracted with a commercial aerial photographer to provide images of a 2,000-acre Dow manufacturing facility from altitudes of 1,200 feet, 3,000 feet, and 12,000 feet.\n{71} The Court first noted that \u201cDow plainly ha[d] a reasonable, legitimate, and objective expectation of privacy within the interior of its covered buildings, and it is equally clear that expectation is one society is prepared to observe.\u201d Id. at 236. However, the Court reasoned that the \u201cintimate activities associated with family privacy and the home and its curtilage simply do not reach the outdoor areas or spaces between structures and buildings of a manufacturing plant.\u201d Id. The Court reasoned that the open areas in the 2,000-acre industrial facility were more akin to an open field than to the curtilage of a home, id. at 235-36, and as a result, were \u201copen to the view and observation of persons in aircraft lawfully in the public airspace immediately above or sufficiently near the area for the reach of cameras.\u201d Id. at 239. Accordingly, the Court held that \u201cthe taking of aerial photographs of an industrial plant complex from navigable airspace is not a search prohibited by the Fourth Amendment.\u201d Id.\n{72} In a second opinion filed on the same day the Court decided Dow, the United States Supreme Court also decided California v. Ciraolo, a case where police conducted an aerial surveillance operation after they received a tip regarding backyard marijuana cultivation on the defendant\u2019s property. 476 U.S. 207, 209 (1986). After finding that the high fencing surrounding the defendant\u2019s yard obstructed their view from the street, the police obtained a small airplane and flew over the residence at an altitude of 1,000 feet. Id. The police officers in the airplane observed and photographed what they concluded to be marijuana plants growing in the defendant\u2019s backyard. Id. This evidence was used to obtain a search warrant to seize the marijuana plants. Id. at 209-10.\n{73} The Court reasoned that although the presence of a ten-foot fence clearly conveyed a \u201cdesire to maintain privacy,\u201d and indeed, it successfully did so \u201cas far as the normal sidewalk traffic was concerned,\u201d the marijuana plants might well have been visible from \u201cthe top of a truck or a two-level bus.\u201d Id. at 211. Under the second prong of the Katz test, the Court reasoned that \u201c[tjhe F ourth Amendment protection of the home has never been extended to require law enforcement officers to shield their eyes when passing by a home on public thoroughfares.\u201d Id. at 213. As a result, the Court concluded that \u201cthe mere fact that an individual has taken measures to restrict some views of his [or her] activities [does not] preclude an officer\u2019s observations from a public vantage point where he [or she] has a right to be and which renders the activities clearly visible.\u201d Id. Because the observations were made from \u201cpublic navigable airspace in a physically nonintrusive manner,\u201d id. (citation omitted), the Court held thatthe defendant\u2019s expectation of privacy from such aerial observations was not one \u201cthat society is prepared to honor,\u201d id. at 213-14 (\u201cAny member of the public flying in this airspace who glanced down could have seen everything that these officers observed.\u201d).\n{74} The dissent written by Justice Powell took issue with the majority\u2019s sole reliance \u201con the fact that members of the public fly in planes and may look down at homes as they fly over them.\u201d Id. at 223 (Powell, J., dissenting). Justice Powell observed that this reasoning was flawed because \u201cthe actual risk to privacy from commercial or pleasure aircraft is virtually nonexistent. Travelers 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.\u201d Id.\n{75} Nearly three years after Ciraolo, the Court again addressed the constitutionality of government-initiated aerial surveillance operations in Florida v. Riley, 488 U.S. 445 (1989). Riley arose from a tip to police involving marijuana cultivation in a greenhouse located behind the defendant\u2019s house where the plants could not be seen from the street. Id. at 447-48. The aerial observations were made from a helicopter at an altitude of 400 feet, which allowed the police officers to see marijuana plants through openings in the roof and sides of the greenhouse. Id. at 448. In a fractured opinion, the majority of the justices in Riley concluded that these observations were constitutional. Id. at 452.\n{76} Writing for the plurality, Justice White acknowledged that the defendant had a subjective expectation of privacy because \u201cthe precautions he took protected against ground-level observation.\u201d Id. at 450. However, Justice White concluded that the defendant\u2019s subjective expectation of privacy was not reasonable because \u201cthe sides and roof of his greenhouse were left partially open,\u201d and \u201cwhat was growing in the greenhouse was subject to viewing from the air.\u201d Id. Justice White reasoned that the defendant \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 airspace for fixed-wing aircraft.\u201d Id. at 450-51. Justice White noted that the Court \u201cwould have a different case if flying at that altitude had been contrary to law or regulation.\u201d Id. at 451. Justice White also concluded that it was important that \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.\n{77} Justice O\u2019Connor\u2019s concurrence raised concerns about relying only upon compliance with FAA regulations as a litmus test for an individual\u2019s privacy interest against government-initiated aerial surveillance. Id. at 452-53 (O\u2019Connor, J., concurring). Justice O\u2019Connor instead reasoned that \u201cconsistent with Katz, we must ask whether the helicopter was in the public airways at an altitude at which members of the public travel with sufficient regularity that [the defendant\u2019s] expectation of privacy from aerial observation was not \u2018one that society is prepared to recognize as reasonable.\u2019 \u201d Id. at 454 (O\u2019Connor, J., concurring) (quoting Katz, 389 U.S. at 361 (Harlan, J., concurring) (internal quotation marks omitted)). Justice O\u2019Connor concluded that because there is \u201cconsiderable public use of airspace at altitudes of 400 feet and above,\u201d the defendant did not have a reasonable expectation of privacy from \u201cnaked-eye aerial observation from that altitude.\u201d Id. at 455 (O\u2019Connor, J., concurring). However, Justice O\u2019Connor also cautioned that \u201cpublic use of altitudes lower than that \u2014 particularly public observations from helicopters circling over the curtilage of a home \u2014 may be sufficiently rare that police surveillance from such altitudes would violate reasonable expectations of privacy, despite compliance with FAA air safety regulations.\u201d Id. (O\u2019Connor, J., concurring).\n{78} Justice Brennan\u2019s dissent similarly took issue with tying an individual\u2019s privacy interest to FAA flight safety regulations, stating that \u201c[i]t is a curious notion that the reach of the Fourth Amendment can be so largely defined by administrative regulations issued for purposes of flight safety.\u201d Id. at458 (Brennan, J., dissenting). To Justice Brennan, the question was not whether the flights were in compliance with the FAA regulations, \u201cbut whether public observation qf [the defendant\u2019s curtilage was so commonplace that [the defendant\u2019s expectation of privacy in his backyard could not be considered reasonable.\u201d Id. at 460 (Brennan, J., dissenting). In answering this question, Justice Brennan departed from Justice O\u2019Connor\u2019s conclusion, and he noted that while privately-owned helicopters occasionally fly over populated areas at 400 feet, \u201csuch flights are a rarity.\u201d Id. at 465 (Brennan, J., dissenting). Justice Brennan attributed this observation in part on the fact that the police officer\u2019s \u201cability to see over [the defendant] \u2019s fence depended on his [or her] use of a very expensive and sophisticated piece of machinery to which few ordinary citizens have access.\u201d Id. at 460 (Brennan, J., dissenting). Justice Blackmun\u2019s dissent also cited the rarity of helicopter overflights at 400 feet, and he therefore reasoned that the prosecution should have the burden of proving that the defendant lacked a reasonable expectation of privacy \u201cfor any helicopter surveillance case in which the flight occurred below 1,000 feet.\u201d Id. at 468 (Blackmun, J., dissenting).\n{79} Under the leading federal precedent, it is questionable whether Defendant in this case has a protected privacy interest under the Fourth Amendment. Although I agree with the majority that Defendant exhibited a subjective expectation of privacy under the first prong of the two-prong test in Katz, majority op. \u00b6 28, it is questionable whether Defendant\u2019s \u201csubjective expectation of privacy is \u2018one that society is prepared to recognize as reasonable.\u2019 \u201d Smith, 442 U.S. at 740 (quoting Katz, 389 U.S. at 361 (internal quotation marks omitted)).\n{80} Concerning Defendant\u2019s subjective expectation of privacy, I first note that Defendant\u2019s property is located in a remote area of Carson Estates in Taos County which, as the district court found, \u201cis accessed by poorly maintained dirt roads with few directional signs.\u201d The evidence introduced during the hearing on Defendant\u2019s motion to suppress indicates that Defendant constructed the greenhouse in question at a distance from the single dirt road into his property, which runs parallel to his southern property line. The evidence also indicates that Defendant posted three signs at the only entrance into his property that read \u201cCaveman Way Private Road,\u201d \u201cNo trespassing,\u201d and \u201cBeware of Dog,\u201d and he erected two fences that extended 12 feet to the east and west of the driveway along his southern property line. In addition to the two fences and several large trees and bushes obstructing the view of Defendant\u2019s greenhouse from the dirt road, the evidence presented at the suppression hearing indicated that he constructed a garden with a shade screen along the southern wall of the greenhouse, and he covered the north wall of the greenhouse with black plastic. Unlike Ciraolo, where the marijuana plants might well have been visible from \u201cthe top of a truck or a two-level bus,\u201d 476 U.S. at 211, the evidence presented atDefendant\u2019s suppression hearing substantially supports the district court\u2019s finding that \u201c[t]he overwhelming volume of testimony is that one could not see into the greenhouse}] from the ground.\u201d\n{81} In addition, the district court was not convinced that the State Police officers were able to definitively see into the greenhouse from the helicopter. This finding is attributed to the fact that Defendant covered the roof of his greenhouse with opaque plastic, which the district court found \u201cis described at best as translucent, though light and dark may be distinguished, but only as a pattern of shadows and light.\u201d Unlike Riley, there is no evidence of openings in the opaque plastic covering the ceiling of Defendant\u2019s greenhouse. Because no photographs of the greenhouse were taken from the helicopter, the State presented testimony suggesting that the spotter in the helicopter could easily see marijuana plants inside Defendant\u2019s greenhouse because the plants pressed up against the ceiling and filled the entire greenhouse. However, although the spotter reported seeing plants growing in back of the greenhouse (which actually were corn, sunflowers, and echinacea plants) and a greenhouse with vegetation, the spotter never confirmed any marijuana sightings. In addition, photographs taken by Sergeant Merrell of the interior of Defendant\u2019s greenhouse during the State Police search do notsupportthe State\u2019s assertion that marijuana plants were pressed up against the ceiling of the greenhouse. In fact, when presented with these photographs during the suppression hearing, Sergeant Merrell conceded that none of them shows marijuana plants pressing up against the ceiling and filling Defendant\u2019s entire greenhouse.\n{82} This evidence supports the district court\u2019s findings that \u201c}w]ith the unaided eye it is not likely that anything other than a belief that it was marijuana was possible\u201d and that \u201cthe visibility of\u2018suspected marijuana\u2019 plants inside the greenhousef] is improbable.\u201d Accordingly, I conclude that Defendant took steps that exhibited a subjective expectation of privacy under the Fourth Amendment.\n{83} However, under the second prong in the Katz test, it is questionable whether the United States Supreme Court would conclude that Defendant\u2019s \u201csubjective expectation of privacy is \u2018one that society is prepared to recognize as reasonable\u2019 \u201d under the Fourth Amendment. Smith, 422 U.S. at 740 (quoting Katz, 389 U.S. at 361 (internal quotation marks omitted)). First, although the district court found suspect \u201c[t]he testimony that naked eye examination from 500 feet revealed marijuana plants\u201d and the spotter in the helicopter \u201cprobably had to get closer to try to see what he was seeing from afar,\u201d the district court ultimately concluded that \u201c[tjhis factor does not weigh against the police surveillance, standing alone.\u201d The district court found \u201cno competent evidence that the police were violating flight laws\u201d because \u201c[t]he FAA permits much lower flight by helicopter than by fixed wing\u201d aircraft. See 14 C.F.R. \u00a7 91.119(d)(1) (1996) (\u201cIf the operation is conducted without hazard to persons or property on the surface ... [a] helicopter may be operated at less than the minimums prescribed in paragraph (b) or (c) of this section . . . .\u201d).\n{84} Second, the district court was \u201ctroubled by the testimonial descriptions of rotor wash and flying debris\u201d relevant to the intrusiveness of the operation. Defendant\u2019s neighbors testified that the helicopter \u201cfrightened and annoyed\u201d them and the downdraft created by the helicopter lifted a solar panel off a roof and blew trash all over neighboring front yards. However, Sergeant Adrian Vigil, who was in charge of supervising portions of the operation, testified that the helicopter team is trained to hover at a high enough altitude to avoid picking up rotor wash and flying debris that would create a dangerous situation for the ground teams. The district court found that some of the testimony by Defendant\u2019s neighbors was \u201coverly dramatic and anti-police state rhetoric,\u201d but the court also \u201cbelieve[d] that there is merit to the claim that the police swooped in as if they were in a state of war, searching for weapons or terrorist activity.\u201d The district court ultimately concluded that \u201c[tjhe claims of dust and destruction [were] negligible, in comparison\u201d to the heightened degree of intrusion created by aerial surveillance \u201cin response to general vague complaints.\u201d Nevertheless, apart from \u201cnegligible\u201d claims of dust and destruction, the district court found that the aerial surveillance did not interfere with Defendant\u2019s use of his greenhouse. Cf. Riley, 488 U.S. at 452 (determining that a surveillance helicopter did not interfere with using a greenhouse to grow marijuana in ultimately holding that aerial surveillance was not a search under the Fourth Amendment).\n{85} Finally, the district court found that the spotter in the helicopter \u201cwas not using optical enhancements like binoculars.\u201d Although the operation\u2019s procedures required helicopter spotters to \u201cutilize optic devices in the course of locating marijuana plantations,\u201d the helicopter that provided aerial surveillance on Defendant\u2019s property did not have such devices installed. Because the State Police spotter made a naked-eye observation of Defendant\u2019s property, the district court\u2019s finding on this factor favors the State, although I note that the helicopter spotter\u2019s sightings of allegedly suspicious plants growing outside the greenhouse and allegedly suspicious vegetation growing inside the greenhouse were either incorrect or improbable.\n{86} Although the aerial surveillance sightings over Defendant\u2019s property were incorrect or improbable, the district court found that the surveillance was conducted within navigable airspace and in a negligibly intrusive manner, which makes it questionable whether Defendant has a protected privacy interest under the Fourth Amendment. Because \u201cthere is serious uncertainty regarding whether the United State Supreme Court would suppress the evidence in this case under the Fourth Amendment\u2019s protections against unreasonable searches and seizures,\u201d State v. Garcia, 2009-NMSC-046, \u00b6 25, 147 N.M. 134, 217 P.3d 1032, \u201cwe turn to Article II, Section 10 to resolve this issue.\u201d State v. Paul T., 1999-NMSC-037, \u00b6 12, 128 N.M. 360, 993 P.2d 74 (\u201cBecause of this gap in Fourth Amendment jurisprudence, together with the possibility that the Fourth Amendment does not protect [the defendant] in the circumstances of this case, we turn to Article II, Section 10 to resolve the issue . . . .\u201d).\n2. Defendant has a protected privacy interest against aerial surveillance under Article II, Section 10\n{87} \u201cWhen interpreting Article II, Section 10, the New Mexico Supreme Court has emphasized its strong belief in the protection of individual privacy ....\u201d State v. Granville, 2006-NMCA-098, \u00b6 19, 140 N.M. 345, 142 P.3d 933. \u201cAccordingly, New Mexico courts have long held that Article II, Section 10 provides greater protection of individual privacy than the Fourth Amendment.\u201d State v. Crane, 2014-NMSC-026, \u00b6 16, 329 P.3d 689; State v. Leyva, 2011-NMSC-009, \u00b6 51, 149 N.M. 435, 250 P.3d 861 (\u201cIt is well-established that Article II, Section 10 provides more protection against unreasonable searches and seizures than the Fourth Amendment.\u201d).\n{88} In light of the New Mexico Constitution\u2019s strong belief in the protection of individual privacy, \u201c[t]he foremost distinct state characteristic upon which this Court has elaborated New Mexico\u2019s search and seizure jurisprudence under Article II, Section 10 is \u2018a strong preference for warrants.\u2019 \u201d Crane, 2014-NMSC-026, \u00b6 16 (quoting Gomez, 1997-NMSC-006, \u00b6 \u2019 36). This Court \u201chas emphasized New Mexico\u2019s strong preference for warrants in order to preserve the values of privacy and sanctity of the home that are embodied by\u201d Article II, Section 10. Granville, 2006-NMCA-098, \u00b6 24. Because an individual\u2019s \u201c \u2018curtilage is the area to which extends the intimate activity associated with the sanctity of a ... home and the privacies of life,\u2019 \u201d it enjoys the same privacy protections ofthehome. State v. Hamilton, 2012-NMCA-115, \u00b6 16, 290 P.3d 271 (citations omitted).\n{89} We premise our strong preference for warrants on the basic principle that a \u201cjudicial warrant has a significant role to play in that it provides the detached scrutiny of a neutral magistrate, which is a more reliable safeguard against improper searches than the hurried judgment of a law enforcement officer engaged in the often competitive enterprise of ferreting out crime.\u201d Gomez, 1997-NMSC-006, \u00b6 36 (internal quotation marks and citations omitted). Based on our strong preference for warrants, I would depart from federal jurisprudence and hold that Article II, Section 10 of the New Mexico Constitution provides greater protection than the Fourth Amendment of the United States Constitution against government-initiated aerial surveillance over an individual\u2019s home and curtilage.\n{90} To begin the analysis, a court must apply the two-prong test set out in Katz to the facts of this case. First, did Defendant exhibit an actual subjective expectation of privacy, and second, was Defendant\u2019s subjective expectation of privacy \u201c \u2018one that society is prepared to recognize as reasonable.\u2019 \u201d Crane, 2014-NMSC-026, \u00b6 18 (quoting Katz, 389 U.S. at 361 (Harlan, J., concurring)). Under the first prong, courts address which steps an individual must take to manifest a subjective expectation of privacy from aerial surveillance. Id. I would hold that an individual\u2019s subjective expectation of privacy from ground-level surveillance is coextensive with his or her subjective expectation of privacy from aerial surveillance. 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\u2019 curtilages, even when they do fly over private property. Riley, 488 U.S. at 460 (Brennan, J., dissenting) (noting that an officer \u201cpositioned 400 feet above [the defendant\u2019s] backyard\u201d enjoyed a vantage point that \u201cwas not one any citizen could readily share\u201d); see also Ciraolo, 476 U.S. at 223-24 (Powell, J., dissenting) (\u201c[T]he actual risk to privacy from commercial or pleasure aircraft is virtually nonexistent. Travelers 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. The risk that a passenger on such a plane might observe private activities, and might connect those activities with particular people, is simply too trivial to protect against. It is no accident that, as a matter of common experience, many people build fences around their residential areas, but few build roofs over their backyards.\u201d (footnote omitted)). Instead, aerial surveillance is usually conducted with \u201cexpensive\u201d equipment by police officers. See Riley, 488 U.S. at 460 (Brennan, J., dissenting). Thus, in most situations, an individual who desires complete privacy on his or her property can usually establish such privacy by merely taking steps to ward off ground-level surveillance because aerial surveillance usually is conducted only by law enforcement personnel, and not by the general public.\n{91} This holding acknowledges that \u201ceven 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.\" Riley, 488 U.S. at 454 (O\u2019Connor, J., concurring) (emphasis added). I would refuse to require individuals to give up enjoyment of their curtilage areas so as to manifest a subjective expectation of privacy from aerial surveillance \u201cthat society is prepared to recognize as reasonable.\u201d Katz, 389 U.S. at 361 (Harlan, J., concurring) (internal quotation marks omitted). A contrary holding would require individuals to roof their backyards and \u201cencourage the transformation of our open society into a garrison state, [where] each individual [is] obsessed with shielding private activities in presumptively private areas from all possible observation.\u201d People v. Cook, 710 P.2d 299, 305 (Cal. 1985). Moreover, measures to block off curtilages from aerial view would generate \u201cintangible cost[s] of shutting out the sunlight and fresh air which gives such . . . space[s their] precious character.\u201d Id.\n{92} Applying the first Katz prong to the facts in this case, I conclude that the evidence presented during the motion to suppress hearing establishes that Defendant held a subjective expectation of privacy from aerial surveillance because of the steps he took to ward off ground-level surveillance. Defendant chose to live in a remote area of Carson Estates in Taos County, an area difficult to access due to \u201cpoorly maintained dirt roads with few directional signs or markings.\u201d Moreover, the evidence presented at the motion to suppress hearing indicates that Defendant posted signs and erected fencing at the single entrance into his property which notified any passersby of his expectations of privacy. The evidence also indicates that Defendant constructed a garden with a shade screen along the southern wall of his greenhouse and covered the north wall of his greenhouse with black plastic. This evidence substantially supports the district court\u2019s finding that \u201c[t]he overwhelming volume of testimony is that one could not see into the greenhouse[]/rom the ground.\u201d Based on this evidence, we hold that the Defendant took sufficient steps to exhibit a subjective expectation of privacy from ground-level observation, and therefore from aerial surveillance as well.\n{93} The second prong of the Katz test requires a court to determine whether Defendant\u2019s subjective expectation ofprivacy is one that society is prepared to recognize as reasonable. Only two New Mexico cases have evaluated the second prong to determine the constitutionality of government-initiated aerial surveillance. See generally State v. Rogers, 1983-NMCA-115, 100 N.M. 517, 673 P.2d 142; State v. Bigler, 1983-NMCA-114, 100 N.M. 515, 673 P.2d 140. As State v. Davis (Davis III) recognized, both of these cases were decided before we began interpreting Article II, Section 10 more broadly than the Fourth Amendment. 2014-NMCA-042, \u00b6 16, 321 P.3d 955. Rogers and Bigler appeared to anticipate the multi-factored analysis taken in Dow, Ciraolo, and Riley and focused on the aircraft\u2019s altitude, what aspects of the curtilage were openly visible to the public from the air, and the regularity of public flights over the defendant\u2019s property. See Rogers, 1983-NMCA-115, \u00b6\u00b6 7, 9 (holding that the \u201cdefendant did not have a justifiable expectation of privacy with respect to marijuana plants protruding through holes in his greenhouse roof to the extent of their visibility from the air\u201d by focusing on the \u201caltitude of the aircraft, use of equipment to enhance the observation, frequency of other flights and intensity of the surveillance\u201d); Bigler, 1983-NMCA-114, \u00b6\u00b6 8-9 (holdingthat the defendant had no reasonable expectation of privacy in his marijuana crop to the extent it was visible from the air because, among other considerations, the \u201cdefendant\u2019s property [lay] within two or three miles of a municipal airport and the fact that crop dusters [flew] in the area at will\u201d).\n{94} These factors are not helpful in determining whether an individual \u2019 s subj ective expectation of privacy from aerial surveillance is recognized as reasonable under Article II, Section 10. First, the altitude at which an aircraft may be operated is governed by the FAA\u2019s flight regulations under 14 C.F.R. Section 91.119. In an aspect that is relevant to this case, helicopters may operate at lower altitudes than the minimums prescribed in Section 91.119(b)-(c) \u201c[i]f the operation is conducted without hazard to persons or property on the surface.\u201d 14 C.F.R. \u00a7 91.119(d)(1). The plain language of these flight regulations concerns physical safety, not whether an individual has a reasonable expectation of privacy in his or her home and curtilage. See id.; cf. Riley, 488 U.S. at 453 (O\u2019Connor, J., concurring) (\u201c[T]here is no reason to assume that compliance with FAA regulations alone determines whether the government\u2019s intrusion infringes upon the person and societal values protected by the Fourth Amendment.\u201d (internal quotation marks and citations omitted)).\n{95} Individuals \u201clikely expect that law enforcement personnel as well as other air travelers will abide by safety rules and other applicable laws and regulations when flying over their homes,\u201d but simply abiding by these regulations is not \u201can adequate test of whether government surveillance from that same spot is constitutional.\u201d State v. Bryant, 2008 VT 39, \u00b6 28, 950 A.2d 467; see also Crane, 2014-NMSC-026, \u00b6\u00b6 26-27 (refusing to guide its constitutional analysis by conflicting public ordinances that regulate the manner in which household trash is collected and disposed of in New Mexico).\nBecause FAA regulations allow helicopters to fly at any altitude \u201cif the operation is conducted without hazard to person or property on the surface,\u201d 14 C.F.R. \u00a7 91.119, the inevitable result of this reasoning \u2014 in the absence of more restrictive state aviation laws \u2014 is that the dangerousness of police surveillance may become the yardstick by which constitutional privacy protection is measured.\nBryant, 2008 VT 39, \u00b6 23 (first emphasis added). As a result, I decline to utilize an aircraft\u2019s altitude to evaluate the constitutionality of government-initiated aerial surveillance.\n{96} The factor analyzing what is openly visible in a curtilage from the air is similarly not helpful, regardless of whether the aircraft was flying within navigable airspace or whether its occupants were utilizing optical equipment. If courts were to analyze what was openly visible from the air, individuals may be induced to \u201ccompletely cover and enclose their curtilage.\u201d Riley, 488 U.S. at 454 (O\u2019Connor, J., concurring). These \u201cprecautions\u201d would exceed the measures \u201ccustomarily taken by those seeking privacy.\u201d Id. (O\u2019Connor, J., concurring) (internal quotation marks and citation omitted). Article II, Section 10 does not require the residents of this state to employ extraordinary means to maintain their constitutional privacy rights. See N.M. Const. art. II, \u00a710; cf. 1 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment \u00a7 2.6(c), at 898-99 (5th ed. 2012) (\u201cIt 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.\u201d). We also note that the measures required to cut off aerial views would entail \u201cconsiderable monetary expense.\u201d Cook, 710 P.2d at 305. Thus, a criterion that focuses on what is openly visible would imply that individuals who have greater financial resources would possess a greater expectation of privacy than others who do not; the protections of the New Mexico Constitution should not vary with an individual\u2019s financial resources. See Crane, 2014-NMSC-026, \u00b6 28.\n{97} I also would decline to utilize the regularity of flights over an individual\u2019s home or its proximity to an airport to inform our constitutional analysis under Article II, Section 10. Neither Rogers nor Bigler addressed the difference between government-initiated overflights and those made by members of the general public. See Rogers, 1983-NMCA-115, \u00b6 6 (\u201c[A]ir traffic is not uncommon in the area, although the town apparently does not lie below any prescribed air corridor. Defendant and one of his neighbors on occasion had seen aircraft, including helicopters, in the area.\u201d); Bigler, 1983-NMCA-114, \u00b6 8 (\u201cThe fact that defendant\u2019s property lies within two or three miles of a municipal airport and the fact that crop dusters fly in the area at will also support the trial court\u2019s finding that he had no reasonable expectation of privacy in his field to the extent of [its] visibility from the air.\u201d). There is a \u201cqualitative difference between police surveillance and other uses made of the airspace. Members of the public use the airspace for travel, business, or pleasure, not for the purpose of observing activities taking place within residential yards.\u201d Ciraolo, 416 U.S. at 224 (Powell, J., dissenting). As Justice Brennan observed in Riley, the ability of the State Police to see on to a defendant\u2019s property \u201cdepended on [their] use of a very expensive and sophisticated piece of machinery to which few ordinary citizens have access.\u201d 488 U.S. at 460 (Brennan, J., dissenting). The factors of flight regularity and airport proximity fail to comport with our recognition 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.\n{98} Furthermore, I agree with Justice Powell\u2019s dissent in Ciraolo and also conclude that any actual risk to privacy from commercial or private aircraft is tenuous at best. See 476 U.S. at 223 (Powell, J., dissenting). \u201c[T]he actual risk to privacy from commercial or pleasure aircraft is virtually nonexistent. Travelers 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.\u201d Id. (footnote omitted). \u201cOne\u2019s yard may unavoidably be exposed to casual glances from passing aircraft, but he [or she] may still reasonably assume that it will not be intently examined by government agents who are flying over it for that specific purpose.\u201d Cook, 710 P.2d at 304 (footnote omitted). Accordingly, I also reject using the regularity of overflights and a property\u2019s proximity to an airport to inform our constitutional analysis.\n{99} The Court of Appeals also rejected these factors. See Davis III, 2014-NMCA-042, \u00b6\u00b6 18-20. The Court of Appeals was understandably concerned with the likelihood that \u201cultra-quiet drones will soon be used commercially and, possibly, for domestic surveillance,\u201d id. \u00b6 19, and that \u201c[s]uch 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.\u201d Id. As a result, the Court of Appeals adopted the following test to determine whether aerial surveillance constitutes a search under Article II, SectionlO:\n[I]f law enforcement personnel, 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.\nDavis III, 2014-NMCA-042, \u00b6 20 (emphasis added).\n{100} I would decline to perpetuate a multifactored analysis to inform constitutional privacy protections. This Court has long interpreted the protections of Article II, Section 10 by acknowledging the need to balance governmental interests against individual privacy interests. See State v. Attaway, 1994-NMSC-011, \u00b6 24, 117 N.M. 141, 870 P.2d 103 (\u201cArticle II, Section 10 embodies the disparate values of privacy, sanctity of the home, occupant safety, and police expedience and safety.\u201d), holding modified on other grounds by State v. Lopez, 2005-NMSC-018, \u00b6\u00b6 18-19, 138 N.M.9, 116 P.3d 80. To evaluate whether a search and seizure violates the protections of the New Mexico Constitution, courts judge \u201cthe facts of each case by balancing the degree of intrusion into an individual\u2019s privacy against the interest of the government in promoting crime prevention and detection.\u201d State v. Jason L., 2000-NMSC-018, \u00b6 14, 129 N.M. 119, 2 P.3d 856 (internal quotation marks and citation omitted).\n{101} I would hold that under the second prong in the Katz test, an individual\u2019s reasonable expectation of privacy from aerial surveillance is coextensive with the scope of his or her reasonable expectation of privacy from ground surveillance. Therefore, the reasonableness of an individual\u2019s expectation of privacy from aerial surveillance is determined by the steps he or she took to ward off ground surveillance. My analysis is guided by the long-held notion that society recognizes that an individual\u2019s curtilage enjoys the same privacy protections as his or her home. Hamilton, 2012-NMC A-115, \u00b6 16. In addition, Article II, Section 10 does not require that extraordinary steps be taken to protect against ground-level observation for an individual to assert a reasonable expectation of privacy against government-initiated aerial surveillance. See N.M. Const. art. II, \u00a7 10; 1 LaFave, supra, \u00a7 2.6(c), at 898-99. \u201c[T]he fact that government officials or the civilian public might be expected, for one reason or another, to enter a place or see or hear the activities within, does not necessarily preclude reasonable claims of privacy from intensive spying by police officers looking for evidence of crime.\u201d Cook, 710 P.2d at 304. Ultimately, \u201cwhile an inhabitant of the modern world is deemed to expect... the expectable, the Constitution still shields him [or her] from governmental intrusions he [or she] has legitimate grounds not to expect.\u201d Id. (omission in original) (emphasis added) (internal quotation marks and citation omitted).\n{102} For example, although an individual may expect the government to electronically eavesdrop on a private telephone conversation, an individual still exhibits an expectation of privacy that society recognizes as reasonable by secluding himself or herself when placing such a phone call. Katz, 389 U.S. at 353. Similarly, although an individual may expect the government to rummage through the contents of garbage bags placed in a communal dumpster, an individual still exhibits an expectation of privacy that society recognizes as reasonable by concealing his or her trash in an opaque garbage bag. Crane, 2014-NMSC-026, \u00b6 27. Finally, hotel guests may also expect that housekeeping staff may enter their room or that police officers may open their unlocked hotel room door, but hotel guests still exhibit an expectation of privacy that society recognizes as reasonable by simply closing the hotel room door. See, e.g., Stoner v. California, 376 U.S. 483, 489-90 (1964).\n{103} Using the same reasoning, the citizens of New Mexico may expect any passerby to glance at the intimate details of their curtilage, but our citizens also exhibit an expectation of privacy that society recognizes as reasonable if the individuals took reasonable steps to prevent ground-level observation. In this case, Defendant not only obstructed the view into his greenhouse by constructing it some distance away from his southern property line behind trees and a screened garden, but he also covered the exterior walls with black plastic. These steps were not only reasonable in protecting against ground-level observation, but they were ultimately effective in preventing anyone from seeing \u201cinto the greenhouse}] from the ground.\u201d Based on these actions alone, society would recognize that Defendant\u2019s expectation of privacy was reasonable. I would therefore conclude that this reasonable expectation of privacy precludes aerial surveillance without a warrant. It is also significant that by constructing the greenhouse close to his home and completely enclosing it, Defendant\u2019s greenhouse more closely resembled an enclosed structure similar to a residential garage than an open backyard. Society clearly would find it reasonable for Defendant to have an expectation of privacy in the contents of a fully enclosed greenhouse located on his curtilage. See Taylor v. United States, 286 U.S. 1, 5-6 (1932) (holding that a garage was protected from a warrantless search because the garage was adjacent to the defendant\u2019s home); United States v. Mullin, 329 F.2d 295, 298 (4th Cir. 1964) (holding that an outdoor smokehouse was protected from a warrantless search because the smokehouse was 75 feet from the defendant\u2019s residence and there was no intervening barrier between the two buildings to remove it from the curtilage); but cf. United States v. Dunn, 480 U.S. 294, 302 (1987) (holding that the defendant did not have a reasonable privacy interest in a barn located 60 yards from his home because the barn lay outside the fence enclosing the home, and thus it was not part of the curtilage).\n{104} I would conclude that Defendant\u2019s subjective expectation of privacy from aerial surveillance is reasonable because of the steps he took to prevent ground-level surveillance. The State Police were required to obtain a warrant prior to conducting an aerial or ground search of the contents of Defendant\u2019s greenhouse during the operation. I accordingly would hold that the aerial surveillance of Defendant\u2019s property was unconstitutional.\nB. The evidence seized from Defendant\u2019s greenhouse was not sufficiently attenuated from the warrantless aerial search\n{105} I am in complete agreement with the majority that the evidence seized by the State Police was not sufficiently attenuated to purge it of the unconstitutional warrantless search. Majority op. \u00b6 59. To preface this discussion, I would emphasize that I am not foreclosing the ability of law enforcement personnel to use constitutional investigative efforts in similar cases. The operation in this case was conducted as a result of anonymous tips reporting that marijuana was being grown in rural areas of Taos County. The anonymous tips did not provide either any names or the specific residences of the people who were allegedly growing marijuana. Based on these anonymous tips, the State Police narrowed its search to the Carson Estates and Twin Peaks areas of Taos County. As this Court recognized in State v. Urioste, \u201c \u2018[a]n anonymous tip may justify an investigatory stop if the information is sufficiently corroborated by subsequent investigation to establish reliability.\u2019 \u201d 2002-NMSC-023, \u00b6 16, 132 N.M. 592, 52 P.3d 964 (quoting State v. Flores, 1996-NMCA-059, \u00b6 8, 122 N.M. 84, 920 P.2d 1038). However, \u201c \u2018if a tip has a relatively low degree of reliability, more information will be required to establish the requisite quantum of suspicion than would be required if the tip were more reliable.\u2019 \u201d Id. \u00b6 17 (quoting Alabama v. White, 496 U.S. 325, 330 (1990)).\n{106} The uncertain reliability of the anonymous tips in this case, coupled with \u201c[t]he overwhelming volume of testimony . .. that one could not see into the greenhouse[] from the ground,\u201d required State Police personnel to investigate further using constitutional methods. Id. In the absence of reasonable suspicion, we have encouraged police officers to either (1) utilize a confidential informant or an undercover officer to observe suspicious activity; (2) \u201cattempt to gain consent to search the residence or perform a 'knock and talk\u2019 to try and gain information\u201d', or (3) speak with neighbors about whether they had observed any suspicious activities. State v. Nyce, 2006-NMSC-026, \u00b6 23, 139 N.M. 647, 137 P.3d 587 (emphasis added), holding limited on other grounds by State v. Williamson, 2009-NMSC-039, 146 N.M. 488, 212 P.3d 376. In this case, the State Police officers relied on non-specific tips that they received over two years to conduct indiscriminate aerial surveillance of all private property in a vast area of Taos County. The New Mexico Constitution requires law enforcement officers to employ constitutional methods to develop probable cause to believe that a specific property contains evidence of a crime. I would make it clear that aerial surveillance is not a constitutional method.\n{107} Even where consent is voluntary, consent is not constitutionally free of illegal taint where the police misconduct was \u201cdirectly related to the ensuing event of . . . giving consent.\u201d Davis v. Commonwealth, 559 S.E.2d 374, 380 (Va. Ct. App. 2002). Because Defendant took reasonable steps to protect his privacy that exhibited a reasonable expectation of privacy, the State Police should have attempted to corroborate their anonymous tips by employing one of the three listed constitutional methods. The State Police then likely would have established probable cause to support a search warrant. However, the subsequent utilization by the State Police of the constitutional \u201cknock and talk\u201d investigative tactic cannot purge Defendant\u2019s consent from the original taint of the unconstitutional warrantless aerial search. Accordingly, I agree that all evidence seized from Defendant\u2019s property must be suppressed.\n{108} For the foregoing reasons, I respectfully concur with the result reached by the majority.\nEDWARD L. CH\u00c1VEZ, Justice\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).\nSee, e.g.,Statev. Cardenas-Alvarez, 2001-NMSC-017, \u00b6 18, 130 N.M. 386, 25 P.3d 225 (noting that Article II, Section 10 embodies \u201cthe fundamental notion that every person in this state is entitled to be free from unwarranted governmental intrusion\u201d (emphasis added) (internal quotation marks and citations omitted)).", "type": "concurrence", "author": "CH\u00c1VEZ, Justice, specially" } ], "attorneys": [ "Hector H. Balderas, Attorney General", "Martha Anne Kelly, Assistant Attorney General", "Santa Fe, NM", "for Petitioner", "Jorge A. Alvarado, Chief Public Defender", "Allison H. Jaramillo, Assistant Appellate Defender", "Santa Fe, NM", "for Respondent", "Jones, Snead, Wertheim & Clifford, P.A.", "Jerry Todd Wertheim", "Santa Fe, NM", "Marc Rotenberg", "Alan J. Butler", "Jeramie Scott", "Washington, D.C.", "for Amicus Curiae Electronic Privacy Information Center" ], "corrections": "", "head_matter": "IN THE SUPREME COURT OF THE STATE OF NEW MEXICO\nOpinion Number: 2015-NMSC-034\nFiling Date: October 19, 2015\nDocket No. S-1-SC-34548\nSTATE OF NEW MEXICO, Plaintiff-Petitioner, v. NORMAN DAVIS, Defendant-Respondent.\nHector H. Balderas, Attorney General\nMartha Anne Kelly, Assistant Attorney General\nSanta Fe, NM\nfor Petitioner\nJorge A. Alvarado, Chief Public Defender\nAllison H. Jaramillo, Assistant Appellate Defender\nSanta Fe, NM\nfor Respondent\nJones, Snead, Wertheim & Clifford, P.A.\nJerry Todd Wertheim\nSanta Fe, NM\nMarc Rotenberg\nAlan J. Butler\nJeramie Scott\nWashington, D.C.\nfor Amicus Curiae Electronic Privacy Information Center" }, "file_name": "0770-01", "first_page_order": 786, "last_page_order": 813 }