Warrant needed for aerial camera use in police investigations, rules Alaska Court of Appeals

Published: Sep. 7, 2020 at 7:04 PM AKDT
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FAIRBANKS, Alaska (KTVF) - In an opinion issued Friday, the Alaska Court of Appeals ruled that law enforcement officers can not use technology such as cameras and drones to search from the air during an investigation without an arrest warrant.

The court said in the ruling that when someone has taken steps to protect their house and curtilage, the land near the house, from ground-level observations, the person has, “a reasonable expectation that law enforcement officer will not use a telephoto lens or other visual enhancement technology to engage in aerial surveillance of the individual’s residential property for the purpose of investigating criminal activity.”

The ruling in John William McKelvey v. State of Alaska stemmed from a incident in 2012 with Alaska State Troopers. In that case, troopers received a tip that McKelvey was growing marijuana in five-gallon buckets on his property near Fairbanks. AST investigated the tip, but because of thick trees on the property, they could not confirm the report.

Troopers then used a helicopter to take photos of the property with a telephoto lens. According to testimony from the trooper, he could not see anything from the helicopter with the naked eye, but when viewed through the telephoto lens, he could see five-gallon buckets inside a greenhouse. Troopers then used this knowledge to apply for a search warrant and eventually arrest McKelvey.

McKelvey’s attorney, Robert John, filed a motion to suppress evidence claiming that taking photos from the air to obtain a warrant invaded his client’s right to privacy. The trial court rejected this argument and McKelvey was eventually found guilty on two charges. John filed an appeal with the Alaska Court of Appeals and argued the case in 2018.

The court acknowledged that the troopers had a legal right to fly over the property, but said that the use of technology violated McKelvey’s right to privacy, guaranteed in the Alaska Constitution.

“An officer’s use of vision-enhancing technology should be deemed a ’search’ if the technology allows the officer to make observations that are significantly more detailed than what an unaided human eye would be able to see at the same distance,” said the ruling.

John summarized his interpretation of the ruling, “If the police want to fly over someone’s property, and basically investigate, they can only investigate... They have to be in lawful airspace, which the court found they were in this case... but they can only investigate with their naked eye, they cannot employ technology, they cannot employ drones.”

To do this, police must apply for a search warrant. The ruling states there are times when a warrant would not be needed such as when police are in hot pursuit of someone.

The Fairbanks Police Department uses drones in their police work, and says they don’t believe this will affect them.

“Our policy has always been, if you think you need a search warrant we should probably get one, especially if we are already going to be somewhere with the intent of looking into private property then we would have a search warrant,” said officer Jason Pace, who flies the drones.

We also reached out to the Alaska Department of Law and the Alaska State Troopers but because of Labor Day, we were unable to get a comment on the ruling.

The full ruling can be read here.

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