{ "id": 1588583, "name": "STATE of New Mexico, Plaintiff-Appellee, v. Dale BIGLER, Defendant-Appellant", "name_abbreviation": "State v. Bigler", "decision_date": "1983-09-13", "docket_number": "No. 7081", "first_page": "515", "last_page": "517", "citations": [ { "type": "official", "cite": "100 N.M. 515" }, { "type": "parallel", "cite": "673 P.2d 140" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "92 N.M. 83", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1557196 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/92/0083-01" ] }, { "cite": "163 Cal.Rptr. 187", "category": "reporters:state", "reporter": "Cal. Rptr.", "year": 1980, "opinion_index": 0 }, { "cite": "104 Cal.App.3d 886", "category": "reporters:state", "reporter": "Cal. App. 3d", "case_ids": [ 1976953 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/cal-app-3d/104/0886-01" ] }, { "cite": "91 N.M. 584", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1571047 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/91/0584-01" ] }, { "cite": "401 U.S. 745", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11714876 ], "weight": 3, "year": 1971, "pin_cites": [ { "page": "786" }, { "page": "1143" } ], "opinion_index": 0, "case_paths": [ "/us/401/0745-01" ] }, { "cite": "493 F.Supp. 1078", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 4157664 ], "opinion_index": 0, "case_paths": [ "/f-supp/493/1078-01" ] }, { "cite": "389 U.S. 347", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11339173 ], "weight": 5, "year": 1967, "pin_cites": [ { "page": "351" }, { "page": "511" }, { "page": "353" }, { "page": "512" } ], "opinion_index": 0, "case_paths": [ "/us/389/0347-01" ] }, { "cite": "265 U.S. 57", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6137218 ], "weight": 3, "year": 1924, "opinion_index": 0, "case_paths": [ "/us/265/0057-01" ] } ], "analysis": { "cardinality": 469, "char_count": 6513, "ocr_confidence": 0.792, "pagerank": { "raw": 7.270853098238603e-08, "percentile": 0.4331391521281743 }, "sha256": "c65a9916eeaa6eb47b42ac97697d37c65d2a74f1922be47b5366dba87575e0a2", "simhash": "1:9b6afc7c76e5a454", "word_count": 1033 }, "last_updated": "2023-07-14T21:45:38.267108+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "WOOD and LOPEZ, JJ., concur." ], "parties": [ "STATE of New Mexico, Plaintiff-Appellee, v. Dale BIGLER, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nBIVINS, Judge.\nConvicted of one count of possession with intent to distribute marijuana, defendant appeals. The case was tried to the court on stipulated facts. Defendant claims the trial court erred in denying his pre-trial motion to suppress evidence, raising two issues: (1) that a police flight over defendant\u2019s premises without a warrant amounted to an unconstitutional search; and (2) that a ground search by officers prior to the issuance of the warrant violated defendant\u2019s Fourth Amendment rights. We affirm.\nI. Facts\nBased on a tip from an .informant that defendant was growing marijuana in a field near Portales, the chief of police engaged an airplane and flew over defendant\u2019s property at approximately 5:30 p.m. on September 15,1981. Without the assistance of any technical equipment, the officer observed from the airplane what he thought was marijuana growing among rows of corn and near rows of cotton. Thereafter, the officer approached the area by car at approximately 6:45 p.m. and again observed what he believed was marijuana growing above the corn. He made this observation from a county road located 100 yards from the field. The officer testified that he detected the odor of green marijuana as he drove by.\nWhile the police chief sought a Warrant, a team of officers went out to surveil the defendant\u2019s field. After receiving word by radio that the magistrate had issued the warrant, several members of the team began investigating the field, but they conducted the main search yielding 5,680 pounds of marijuana plants the following morning.\nII. Aerial Surveillance\nDefendant argues that aerial surveillance of his property by the police violated his Fourth Amendment rights under the United States Constitution and Article II, Section 10 of the New Mexico Constitution. We analyze both federal and New Mexico cases to determine whether defendant may invoke constitutional safeguards.\nIn 1924 the Supreme Court held that Fourth Amendment protection did not extend to certain geographical areas which it denominated \u201copen fields\u201d. Hester v. United States, 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898 (1924). The federal courts applied the open fields doctrine of Hester to all property which did not fall within the curtilage until 1967, when the Court recognized that the Fourth Amendment protects \u201cpeople, not places\u201d and that what an individual \u201cseeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.\u201d Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 511, 19 L.Ed.2d 576 (1967).\nIn Katz, a case involving seizure of oral statements through a listening device attached to a public phone booth, the Supreme Court held, \u201cThe Government\u2019s activities in electronically listening to and recording the petitioner\u2019s words violated the privacy upon which he justifiably relied while using the telephone booth and thus constituted a \u2018search and seizure\u2019 within the meaning of the Fourth Amendment.\u201d Id. at 353, 88 S.Ct. at 512. Thus, Katz requires a two-part analysis: 1) a determination of whether an individual has a justifiable expectation of privacy and 2) an assessment of the particular form and degree of surveillance undertaken by the police. See 1 W. LaFave, Search and Seizure, \u00a7 2.4 (1978). As stated in United States v. DeBacker, 493 F.Supp. 1078 (W.D.Mich.1980), quoting from Justice Harlan\u2019s dissenting opinion in United States v. White, 401 U.S. 745, 786, 91 S.Ct. 1122, 1143, 28 L.Ed.2d 453 (1971), \u201cFourth Amendment analysis requires \u2018assessing the nature of the particular practice and the likely extent of its impact on the individual\u2019s sense of security balanced against the utility of the conduct as a technique of law enforcement.\u2019 \u201d\nState v. Chort, 91 N.M. 584, 577 P.2d 892 (Ct.App.1978), illustrates the departure which Katz requires from the per se rationale of Hester. In Chort, a police officer received information that the defendant might have marijuana growing on his property and thereafter rode a horse onto the property so that he could look into a fenced garden located within the tract. This Court held that the defendant had exhibited a reasonable expectation of privacy by erecting a five-foot fence which prevented observation by anyone on horseback outside of the property. It also determined that the officer\u2019s action amounted to \u201can unreasonable government intrusion.\u201d Thus, although the defendant had illegally grown marijuana in an open field, the police officer violated his Fourth Amendment rights by subjecting his private fenced area to overreaching ground surveillance.\nIn the present case defendant surrounded his marijuana crop with six rows of corn. Although this might provide some evidence of his expectation of privacy at ground level, it does not establish any reasonable expectation in .connection with overflights. See United States v. DeBacker; People v. St. Amour, 104 Cal.App.3d 886, 163 Cal.Rptr. 187 (1980). The 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 visibility from the air.\nDefendant does not challenge as inappropriate the altitude or speed of the plane used by the police to surveil his property. Therefore, we hold that the aerial surveillance of the property did not violate defendant\u2019s Fourth Amendment rights.\nIII. Warrant Requirement\nDefendant contends that at least one police officer entered his property and began to search the field before a search warrant was obtained. Although some evidence in the record tends to support defendant\u2019s contention, other evidence provides substantial support for the trial court\u2019s finding that no search took place until after the magistrate issued the warrant. The Court of Appeals will not substitute its judgment for that of the trial court in order to resolve conflicts in the evidence. State v. Utter, 92 N.M. 83, 582 P.2d 1296 (Ct.App.1978).\nThe judgment and sentence are affirmed.\nIT IS SO ORDERED.\nWOOD and LOPEZ, JJ., concur.", "type": "majority", "author": "BIVINS, Judge." } ], "attorneys": [ "Paul Bardacke, Atty. Gen., Barbara F. Green, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.", "Nancy Hollander, Freedman, Boyd & Daniels, P.A., Albuquerque, for defendant-appellant." ], "corrections": "", "head_matter": "673 P.2d 140\nSTATE of New Mexico, Plaintiff-Appellee, v. Dale BIGLER, Defendant-Appellant.\nNo. 7081.\nCourt of Appeals of New Mexico.\nSept. 13, 1983.\nCertiorari Quashed Nov. 22, 1983.\nPaul Bardacke, Atty. Gen., Barbara F. Green, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.\nNancy Hollander, Freedman, Boyd & Daniels, P.A., Albuquerque, for defendant-appellant." }, "file_name": "0515-01", "first_page_order": 547, "last_page_order": 549 }