In a landmark decision released on March 8, the Alaska Supreme Court ruled that law enforcement officers in Alaska must first obtain a warrant before conducting aerial surveillance using aircraft equipped with binoculars or cameras with zoom lenses.
The ruling comes as a result of a case dating back to 2012 involving John William McKelvey III, who was suspected of growing marijuana on his property north of Fairbanks.
McKelvey’s heavily wooded property, with a driveway leading to a clearing containing a house and greenhouse, was the subject of aerial surveillance by Alaska State Troopers based on a tip from an informant.
According to court documents, the troopers flew past the property and used a high-power zoom lens to capture images revealing buckets containing “unidentifiable plants” inside the greenhouse.
Subsequently, a search warrant was obtained, leading to the discovery of marijuana plants, methamphetamine, scales, a rifle and cash during a search of McKelvey’s property.
The case raised questions about the constitutionality of using aerial surveillance without a warrant.
Robert John, the Fairbanks attorney who argued McKelvey’s case, discussed the significance of the ruling.
“It should have a significant impact on law enforcement going out and just roaming around looking at people’s properties without a reason. It’s going to require that they first present to a judge the evidence they have to go out there and obtain a warrant,” John stated.
Justice Dario Borgesan, writing the main decision for the court, argued that Alaskans have a reasonable expectation of privacy regarding aerial surveillance using high-powered optics.
The ruling specifically addresses the use of technology for surveillance but leaves open the question of whether similar restrictions apply to observations made with the naked eye.
Chief Justice Peter Maassen and Justice Susan Carney concurred with Borgesan but advocated for broader protections, suggesting that warrants should be required for any form of aerial surveillance, potentially including the use of drones.
John also noted that this aspect of the ruling sets a precedent for future cases involving technological advancements in surveillance methods.
“It’s actually kind of paving the way with protections right now before we get to the point that you’d have to make a decision about drones. It’s basically said we are not going to make our rights subservient to technology. Our rights prevail,” John added.
Responding to the ruling, Department of Public Safety communications director Austin McDaniel stated that the department’s operations, including its drone program, have always operated under the confines outlined in the Supreme Court ruling.
The ruling specifically states that the Alaska Constitution mandates law enforcement to obtain a warrant before conducting aerial surveillance and taking pictures of private property from the sky.
The decision by the Alaska Supreme Court is a significant step in defining the boundaries of law enforcement surveillance practices in the state.
