State of Alaska v. McKelvey

Alaska Const. art. I, § 14 (“The right of the people to be secure in their persons, houses and other property, papers, and effects, against unreasonable searches and seizures, shall not be violated. No warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”)

Acting on a tip from a confidential informant, state troopers flew over a secluded property in rural Alaska and used a high-powered zoom lens to search for marijuana plants. In zoomed images magnified to 9x what is visible to the naked eye, the troopers saw unidentified plants and used that information, along with the confidential tip, to secure a warrant and search the property. The property owner challenged the overhead surveillance and the resulting warrant. Later, prosecutors argued 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.”

The Alaska Constitution’s analog to the federal Fourth Amendment, found in art. I, § 14, does not permit police to conduct “unregulated aerial surveillance of the home with high-powered optics,” as such practice is “inconsistent with the aims of a free and open society.” The troopers’ surveillance in this case required a warrant.

“The court emphasized how the state constitution provides broader protections against police searches than does the Fourth Amendment, in particular because of its unique concern with protecting “a free and open society”:

“Our approach to interpreting the Alaska Constitution is qualitatively different than federal courts’ approach to interpreting the U.S. Constitution. In contrast to federal doctrine, whether a particular expectation of privacy is objectively reasonable under the Alaska Constitution entails a value judgment whether, if the particular form of surveillance practiced by the police is permitted to go unregulated by constitutional restraints, the amount of privacy and freedom remaining to citizens would be diminished to a [degree] inconsistent with the aims of a free and open society. This judgment is influenced by the fact that the Alaska Constitution, unlike the federal constitution, explicitly recognizes and protects the right to privacy. We therefore give section 14’s protection against unreasonable searches and seizures a liberal interpretation that increases the likelihood that a person’s expectation of privacy can be deemed objectively reasonable.”

In a concurrence joined by Justice Carney, Chief Justice Maasen said that the court’s holding should extend to all aerial surveillance, and should not turn on the use of high-powered optics: “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 a search with or without technological enhancements.”