Individuals in and around their home have a reasonable expectation of privacy from warrantless, ground-level surveillance because the curtilage of the home, like the home itself, is protected from searches and seizures. This is settled Fourth Amendment law. The curtilage of a home is “the area to which extends the intimate activity associated with the ‘sanctity of a man’s home and the privacies of life.’” Less clear, however, is whether there is a reasonable expectation of privacy from aerial surveillance. One would be forgiven for assuming one enjoys an expectation of privacy from surveillance in the curtilage of one’s own home. But counter-intuitively, individuals do not have a reasonable expectation of privacy from aerial surveillance unless the surveillance creates a hazard on the ground, or it is conducted in an un-disciplined manner, according to State v. Davis and the precedent it relies on. The intrusion analysis that the Supreme Court of New Mexico relied on in Davis is consistent with federal precedent, but it fails to adequately incorporate Katz and conflicts with the additional privacy protections under the New Mexico Constitution The issue of aerial surveillance is timely considering the surveillance that currently takes place by helicopter as well as the availability and increased use of drones, but the court failed to address this issue and, instead, adhered to flawed federal precedent. An individual’s expectation of privacy should not be based on compliance with Federal Aviation Administration (FAA) regulations because FAA regulations focus on public safety concerns, not privacy concerns. Similarly, whether a helicopter kicks up too much dust should not be a determining factor in deciding whether aerial surveillance without a warrant is constitutional. Neither of these safety considerations are applied when conducting ground-level surveillance and they should not apply to aerial surveillance either. Currently, individuals only have a reasonable expectation of privacy from ground-level surveillance, but not from aerial surveillance. This Note argues that the reasonable expectation of privacy from ground-level surveillance should be coextensive with the reasonable expectation of privacy from aerial surveillance when it is conducted with the purpose of detecting criminal activity. New Mexico has a “strong preference for warrants” and it would be consistent with precedent to assert that a warrant for aerial surveillance is required when an “individual has taken steps to ward off inspection from the ground, [because that] individual has also manifested an expectation to ward off inspection from the air.”
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Royce A. Deller,
Why Get a Warrant When You Can Fly Over the Wall? The Constitutionality of Aerial Surveillance without a Warrant,
N.M. L. Rev.
Available at: https://digitalrepository.unm.edu/nmlr/vol51/iss1/8