A substantial number of marijuana raids and busts come as a result of helicopter searches. But what exactly are your rights when it comes to helicopter searches? Our top-rated marijuana defense lawyers are here to answer that question! The answer really has two parts. The first issue is the legality of the actual surveillance taken from the helicopter itself. The second issue is the legality of the police action after they conduct the helicopter surveillance. In a lot of ways, the second issue is the most important. However, I’ll start with the first issue.
The Law Of Helicopter Searches. Are They Even Legal?
The Supreme Court of the United States has clarified the legality of helicopter searches. It did this in 1989 in a case called Florida v. Riley. Riley was the defendant in the case. He lived out in the country in a mobile home on several acres of property. On his property about 10 to 20 feet behind his home was a green house. Most of the greenhouse was covered in roofing panels that were opaque, however two panels were missing. The police received a tip that marijuana was growing on this property. Unable to see inside the greenhouse from the road, police then circled in a helicopter over the home. While 400 feet high, police looked through the missing panels on the greenhouse, with just their naked eyes, and determined that marijuana was being grown. Based on this information, the police applied for and received a search warrant. They eventually seized the marijuana plants growing in the greenhouse.
Is There a Minimum Altitude Requirement That Helicopters Must Obey?
The Supreme Court concluded that this type of helicopter surveillance was not unconstitutional and that the police had not infringed on the defendant’s rights. How did they come to this conclusion? Well, they reasoned that the police did not violate FFA regulations regarding air space. Apparently there seems to be no real FAA regulation regarding how low a helicopter can go. While air planes are not allowed to fly less than 500 feet, there is no FFA regulation about minimum altitude for helicopters. Section 91.119 of the FAA specifically exempts helicopters from the minimums. So, the fact that the helicopter was at 400 feet did not constitute a violation of the Defendant’s rights. The Supreme Court stated that because anyone can theoretically fly a helicopter at that altitude above a person’s home, you don’t have an expectation of privacy that can be protected. I guess the Court didn’t really care that for all practical purposes, police are they only ones with the million-dollar machinery to fly over your home. Notwithstanding this glaring “over-site,” the court said because there was no “search” within the meaning of the 4th Amendment, there can not be a violation for an unreasonable search.
Michigan Law States That Helicopters Are Legal To Use in Searches
So the United States Supreme Court has determined that helicopters are allowed to fly over your home or your property and look for whatever they can see. This is the law in Michigan. It is safe to assume that police can and will fly a helicopter over your home to see if you are breaking the law such as determining if your outdoor grow fits the requirements of an enclosed locked facility. If fact, they frequently do. In the future police may even move to using drones. While privacy concerns over the use of drones remains highly debated, this is likely going to be the future battleground for major 4th Amendment (search and seizure) jurisprudence.
What Happens After The Helicopter Detects Something on My Property?
Because the current law allows helicopters to fly over your property, what the police do after they fly over your home becomes extremely important. While the Supreme Court may not believe that you have any right to privacy in the air space over your home or property, they still believe that you have rights when it comes to police coming on to your property. Police will usually do one of three things after they find marijuana on their helicopter raid.
A Search Warrant
They get a search warrant. This is the best practice for police, but it is also takes the most effort. Generally, If the police see marijuana plants on your property from a helicopter, that information is going to be sufficient to get the warrant. However, the police must create an affidavit, get a hold of a judge and get the search warrant signed so that they can execute the search legally. Obviously, this is time consuming and it also delays the police’s ability to act quickly. So police will usually try a different method.
Knock and Talk
This is the second method. Police will walk up to your house, knock on your door and ask you if they can search. We call this the knock and talk. While police are not allowed to knock and talk in the middle of the night according to recent case law, they can do so at almost any other time. In most cases it won’t really seem like they are making a request that you can refuse. They will try to intimidate and scare people into giving consent to search. They will threaten you, yell at you, lie, and use the full air of their authority and force to get you to succumb to their request to search. Most people scared to assert their own rights against such a powerful force let the police search. If you do this it will make it next to impossible challenge the search in the court. That is why it is important to not only to know that you can refuse a request to search (if they don’t have a warrant), but to be able to successfully say no when police ask.
Taking and Seizing
The final approach that police use is the most legally questionable tactic out of the three. That is the police simply come on to your property without a warrant and without your consent, and just take the marijuana plants that they find. While this would seem to be illegal in every instance, you would be wrong if you came to that conclusion. The courts have eroded our rights and carved up our privacy interests in numerous and perplexing ways. Police can simply come on to your property and take marijuana plants or anything else the find to be illegal if those plants are located in open spaces away from your house. This is called the “open fields” exception. The courts have found that you have no expectation of privacy in things that while on your property are located away from house. So even though police must trespass to get your plants, it is not illegal for them to do so. Police love this nonsensical rule. So, let’s say you have an acre or two. You grow your plants out by your barn 50 yards or even 30 yards away from your home. Police can simply waltz on to your property and take your plants and charge you later with a felony. They will argue later in court that they did this under the “open fields doctrine” and consequently didn’t need a search warrant or your consent to do so.
What can you do to make sure the open fields doctrine doesn’t apply to you? To start, the plants must be close to your home. Real close. The closer the better. The area close to your home is what the law considers to be the “curtilage.” Police need a warrant to search the curtilage of your home because your expectation of privacy in this space is increased as it is so integral to the use of your home. Fences and gates that are close to your home also help establish your “curtilage.” It is best if these fences are connected to or abut your home in some manner. If police invade your curtilage without a warrant or without your consent, they have violated your 4th Amendment rights against unreasonable searches and seizures. If your 4th Amendment rights are violated, in many instances court will throw out the illegally obtained evidence and the case against you will be dismissed.
Know Your Rights When It Comes To Marijuana and Helicopters
This is why it is so important to know your rights when it comes to helicopters. Like I started off explaining, what the police do after they fly their bird over your property has the greater relevance. While courts and the legislature continue to erode our rights we still have some, even if they are limited. Knowing what the police can and can not do is paramount in this day and age where over reach seems to be the rule rather than the exception. If you are loved one has been charged or is currently being investigated, please call our marijuana attorneys at (517) 347-6900 for a free and confidential consultation.