Court Approves Police Flights in ‘Pot’ Arrests

If you have a marijuana garden near your home, the Constitution protects you against police in aircraft searching it out--unless the police are up there for other legitimate reasons and accidentally spot it.

The difference, says the 3rd District Court of Appeal, is that if police overflights are frequent--for instance, in a mountain recreation area where flights searching for lost people are common--there can be no reasonable expectation of privacy.

The court Friday upheld the conviction of James Blaine Chapman Jr., who was arrested for growing marijuana along the American River near Foresthill, a popular area for rafters and hikers.

On July 5, 1979, police in a helicopter searching for a lost miner spotted the marijuana garden. The officers later got a search warrant and seized about 750 marijuana plants.

“It is common knowledge that the area is frequented by rafters, hikers and, consequently, search and rescue teams,” wrote Justice Hugh Evans.

“Since the defendant could have no legitimate expectation of privacy, the officers had a right to be in the airspace above the land.”

Last month, the court had reversed the conviction of Pamela Ann Fries, whose marijuana plot near her home in an isolated area of Yuba County was spotted in 1980 by officers in a plane on a random search for marijuana.

Such a search violates the Fourth Amendment guarantee against unreasonable search and seizure, the court held.

“The routine surveillance by police observers in aircraft of the areas adjacent to residences is an intolerable imposition upon our liberty and privacy,” wrote Justice Coleman Blease in that case.