Court Decision Clouds Rules on Air Searches

Casting doubt on California police agencies’ use of helicopters to search for marijuana, the Supreme Court Monday upheld a state court order declaring low-altitude hovering an illegal invasion of privacy.

The high court action, on a 7-2 vote, appears to greatly restrict the altitudes at which police may conduct aerial searches.

In a controversial ruling last year, the court upheld an airplane search for marijuana at 1,000 feet above a San Jose home. In Monday’s decision, the court rejected a helicopter search at 400 feet.

That left law enforcement agencies puzzling over exactly how low they can fly without crossing the legal line.

“We’re in a state of flux. We don’t have a definitive word on what is a legal search” from the air, said Les Dubow, a San Diego County deputy district attorney.

Law enforcement agencies likely will review their aerial surveillance programs to consider guidelines that they believe would be legally defensible. California police and sheriffs’ offices have been particularly active in using helicopters to search for backyard marijuana plots.

“The question we don’t have an answer for is, how low can you go?” said Dubow. “Out of caution, I would say that you shouldn’t go below 500 feet.”

This case arose when a San Diego police officer on a helicopter patrol spotted what he thought was marijuana growing in a greenhouse in a La Mesa home. He returned with a deputy and “hovered at 400 to 500 feet” to get “a better look at the marijuana,” according to the court record. After getting a search warrant, the county sheriff’s deputies went to the home, confiscated the plants and arrested resident Ronald Sabo.

A state appeals court threw out the evidence in September, 1986, saying that such tactics violate the Fourth Amendment’s ban on “unreasonable searches.”

To allow such searches would “sanction a broad range of aerial acrobatics,” the state court said, such “as an interminable hovering, a persistent overfly, a treetop observation, all accompanied by the thrashing of the rotor, the clouds of dust and earsplitting din.”

San Diego prosecutors, relying on the earlier airplane search case, had hoped that the Supreme Court would overturn the state ruling.

In that 5-4 decision, written by now retired Chief Justice Warren E. Burger, the justices said that an aerial search from 1,000 feet was acceptable because the airplane was in “navigable airspace.”

But instead, the justices let stand without issuing a formal opinion the lower court order banning the low-altitude helicopter searches, despite dissents filed by Chief Justice William H. Rehnquist and Justice Byron R. White (California vs. Sabo, 86-1289).

White contended that since the navigable airspace for helicopters includes altitudes at 400 feet and lower, such searches should be permitted.

A state attorney said that Monday’s ruling does not threaten California’s campaign to wipe out marijuana cultivation in rural areas of the state.

“We use fixed-wing aircraft flying over open fields in excess of 1,000 feet above the ground,” said Morris Beatus, counsel for the Campaign Against Marijuana Planting. “We don’t conduct surveillance over homes or backyards.”

If marijuana is spotted on hillsides or in fields, officials get a search warrant and send in officers to destroy the plants, Beatus said.

In urban areas of the state, aerial searches for marijuana are usually conducted by county sheriffs’ officers.