Aerial snooping by police toting zoom lenses has been shot down by an Alaska state court.
A court ruling issued Friday says that before law enforcement can take to the air with zoom lenses to see what’s in a yard hidden from a ground view, police need to get a warrant, according to the Associated Press.
The Alaska Supreme Court ruling was the end of a case that started in 2012, when Alaska state troopers took to the air to see what they could see after being told that John William McKelvey III was growing marijuana on his land near Fairbanks. The yard was not visible from the ground.
Based on what they saw, police obtained a warrant and arrested McKelvey, who was later convicted of one count of third-degree misconduct involving a controlled substance and a weapons misconduct count. Appeals have been moving through the court system since then.
“Do the police have to get a warrant before taking pictures of your yard with a zoom lens while flying in an airplane? The State argues that because small airplane travel is so common in Alaska, and because any passenger might peer into your yard and snap a picture of you, law enforcement officials may do the same. We disagree,” the ruling said.
The Alaska Supreme Court disagreed that “because small airplane travel is so common in Alaska, and because any passenger might peer into your yard and snap a picture of you, law enforcement officials may do the same.” https://t.co/tzXKplyAK5
— Alaska’s News Source (@AKNewsNow) March 9, 2024
“The Alaska Constitution protects the right to be free of unreasonable searches. The fact that a random person might catch a glimpse of your yard while flying from one place to another does not make it reasonable or law enforcement officials to take to the skies and train high-powered optics on the private space right outside your home without a warrant,” the ruling said.
“Unregulated aerial surveillance of the home with high-powered optics is the kind of police practice that is ‘inconsistent with the aims of a free and open society.’ The Alaska Constitution does not allow it,” the court wrote.
Should law enforcement be able to surveil with aircraft and zoom lenses?
The decision written by Justice Dario Borghesan speaks of “curtilage,” which is a legal term for the area around a house.
“Aerial observation with the aid of a zoom lens might capture, for example, an unflattering photo of a person in a swimsuit, images of a person practicing a silly dance with their children, or expressions of religious devotion that one might not wish others to see,” the decision said.
“The mere knowledge that the government could make these kinds of detailed observations without a warrant may discourage Alaskans from using their curtilage to live their private lives,” the ruling said.
The state had argued that with all the planes flying across Alaska, letting law enforcement peek along with everyone else was no big deal.
“People train their cameras and binoculars on Alaska’s majestic scenery and wildlife,” Borghesan wrote. “There is no reason to think they are focused on the bleached garden boxes, tangled fishing nets, and parted-out snowmachines lying next to people’s homes.”
Although the state said the fact that no one would know they were being watched was a point in its favor, the court disagreed.
“Obtrusive aerial surveillance — like a helicopter hovering directly above one’s home for 10 minutes — would certainly be chilling. But the knowledge that police may discretely surveil you from the air without your even noticing it is equally chilling to one’s sense of privacy,” the decision said.
In a concurring opinion, Chief Justice Peter Maassen said warrants should be required for all aerial surveillance, not just when zoom lenses are used.
“I would hold simply that Alaskans’ reasonable expectation of privacy in the home and curtilage protects them from targeted surveillance from the air, and law enforcement officers must therefore obtain a warrant before conducting such a search with or without technological enhancements,” Maassen wrote.
Robert John, an attorney for McKelvey, said the ruling was a “tremendous decision to protect the rights of privacy of Alaskans and hopefully set an example for the rest of the country.”
