helicopter surveillance in hawaii

Unlawful Eyes In The Skies Right to Privacy in Hawaii from Aerial Surveillance

helicopter surveillance in hawaii

In November 2017, the Hawaii Supreme Court ruled that multiple helicopter flights over a Waipahu residence conducted by the Honolulu Police Department, where marijuana plants were seen growing in the surrounding area of a house, constituted illegal searches. The search warrant for the residence was based off of this unlawful aerial surveillance, so the marijuana plants and drug paraphernalia seized as evidence is considered “fruit of the poisonous tree.”

Case Background

STATE OF HAWAI‘I, Petitioner/Plaintiff-Appellee, v. BENJAMIN M. QUIDAY, Respondent/Defendant-Appellant

The case began back in October 2012 when Officer Joseph Hanawahine received an anonymous complaint that pakalolo plants were being grown at a Waipahu residence. On October 22, Officer Hanawahine used Google Earth to corroborate the site of the address and conducted his first helicopter flight where he saw two rows of “about twenty to twenty five (20-25) plants with the color and structure resembling that of marijuana plants” from a height of about 420 feet. The plants were alongside a wall and were not covered by anything.

Officer Hanawahine went to the residence on foot the same day and was unable to view plants resembling marijuana because gates, walls, and fences blocked visibility.

The next day, Officer Hanawahine conducted additional aerial reconnaissance for a second and third time. He observed the same plants with no changes from the previous day.

The State of Hawaii Narcotics Enforcement Division (NED) ran a check and found that the Waipahu residence was not authorized to grow marijuana and no one associated with the residence had a medicinal marijuana permit.

On October 26, a search warrant was issued based on an affidavit that contained accounts of Officer Hanawahine’s aerial and ground observations. Two days later, while driving around the premises in an unmarked vehicle, Sergeant Gregory Obara witnessed a man who appeared to be watering plants on the side of the residence where the plants were reportedly located.

The search warrant was executed on October 29. HPD recovered twenty marijuana plants and drug-related paraphernalia. Sergeant Obara identified Benjamin M. Quiday as the same man he had observed watering plants. Based on the evidence discovered from the search warrant, Quiday was arrested and later charged with one count of commercial promotion of marijuana in the second degree, in violation of Hawaii Revised Statutes (HRS) § 712-1249.5(1)(a),
and one count of unlawful use of drug paraphernalia, in violation of HRS § 329-43.5(a).

Circuit Court Proceedings

Claiming the helicopter reconnaissance breached his reasonable expectation of privacy, Quiday filed a motion to “suppress any and all evidence seized from his home, as a result of the execution of Search Warrant S.W. 2012-261” on April 8, 2013.

The circuit court denied this motion, citing that although the plants were not visible at the ground level, they were clearly visible from overhead. There was no rooftop, tarp, or any other covering to support an expectation of privacy from an aerial view. The circuit court also pointed out that the use of helicopter surveillance have been widely accepted in Hawaii courts.

Intermediate Court of Appeals Proceedings

Quiday sought and was granted an appeal. The Intermediate Court of Appeals (ICA) needed to determine whether Officer Hanawahine’s observations from the helicopter violated Quiday’s rights under the Fourth Amendment to the United States Constitution and article I, section 7 of the Hawaii Constitution. The ICA also considered whether the anonymous tip about marijuana plants at Quiday’s residence was enough to sanction a search warrant on its own and whether Officer Hanawahine left out information that he was required by law to include in his affidavit.

Anonymous Tip

The anonymous tip was not adequate to order a search warrant because Officer Hanawahine’s affidavit did not disclose the informant’s justification to trust the marijuana plants were located at the Waipahu residence or reasoning to believe the informant as credible and the informant’s word to be reliable. Since the tip alone was not sufficient to obtain a search warrant of Quiday’s residence, additional information was needed to establish probable cause, so the ICA then discussed Officer Hanawahine’s observations.

Reasonable Expectation of Privacy in Aerial Surveillance

Quiday claimed that aerial surveillance of his backyard was unconstitutional because he had a reasonable expectation to privacy. He stressed the fences and walls blocked marijuana plants from being seen at street level, demonstrating his desire for privacy. He also argued that HPD did not have a legal reason to fly over his home, and that flyovers by helicopters and other aircraft were uncommon in the area.

The State disputed that Quiday’s expectation of privacy does not extend to an aerial view of the backyard, especially since the marijuana plants were not concealed, and therefore Quiday should not assume they were protected from being viewed by an aerial vantage point. The State emphasized “HPD did not violate any Federal Aviation Administration Regulations in conducting the flights, that the flights were neither prolonged nor harassing, and that Quiday did not proffer any evidence to support his contention that aerial flyovers were so uncommon as to create a reasonable expectation of privacy from aerial observation.”

The ICA found that Quiday’s Fourth Amendment rights had not been violated as Officer Hanawahine’s aerial observations was not considered a search under federal standards. The US Supreme Court has previously ruled that when a private home and its surrounding areas are unshielded from aerial view, then overhead surveillance does not constitute a search as decided in California v. Ciraolo (1986) and Florida v. Riley (1989).

Even though the aerial observations were not deemed an illegal search according to federal standards, the court acknowledged that state courts have the ability to give more protection than the federal Constitution. The ICA then considered whether Quiday’s rights were violated under Article I, section 7 of the Hawaii Constitution which protects people “against unreasonable searches, seizures and invasions of privacy.”

The court looked to two previous cases that dealt with the constitutionality of aerial reconnaissance, using State v. Stachler (1977) and State v. Knight (1980) to construct five deciding factors. The ICA decided that because Officer Hanawahine completed three aerial surveillance missions over Quiday’s residence in two days, the flights are considered targeted and prolonged, which goes against Hawaii’s preservation of privacy.

The ICA also declared that the marijuana plants were in the curtilage of Quiday’s residence and as such should be afforded more security from warrantless searches, citing the California Supreme Court’s judgement in People v. Cook (1985). Curtilage is a legal term referring to an area immediately surrounding a house or dwelling, and it counts as part of the home for many legal purposes.

On June 21, 2016, the ICA ruled in favor of Quiday, determining that the circuit court was mistaken in their decision “that Quiday did not have a reasonable expectation of privacy in the area surrounding his house from aerial surveillance.” Due to this decision, the ICA did not rule on whether Officer Hanawahine omitted information from his affidavit.

Supreme Court of Hawaii

On September 16, 2016, the State applied for writ of certiorari in which two questions were asked:

Was the ICA wrong (1) in annulling the “Findings of Fact, Conclusions of Law, and Order Denying Defendant’s Motion to Suppress Evidence” decided by the circuit court on August 19, 2013 and (2) in interpreting that the Hawaii Constitution safeguards an individual from targeted aerial surveillance of the individual’s residence and its curtilage?

The Hawaii Supreme Court agreed with the ICA that the targeted aerial surveillance violated Quiday’s reasonable expectation of privacy and were unconstitutional searches. However, the high court came to this conclusion on different grounds.

The Supreme Court dissented with the ICA in using Stachler and Knight to formulate a judgement in this case because the circumstances of those cases did not apply. The Supreme Court believed that “the defendants in Stachler and Knight did not have a reasonable expectation of privacy in their marijuana patch and greenhouse, respectively.”

The high court did agree with the ICA that the California Supreme Court’s opinion in
Cook was relevant because the facts of both cases were very similar. The Hawaii Supreme Court looked to California’s verdict and concurred that even though Quiday’s yard may have been observed by the occasional overhead flight, this does not mean he expected to be the target of aerial surveillance by law enforcement searching for criminal activity in the immediate surroundings of his home, a place where private actions can often occur. Therefore, Quiday was entitled to a reasonable expectation of privacy.

The Hawaii Supreme Court unanimously upheld the ICA ruling, vacating the circuit court decision and ordering the evidence seized by the search warrant to be suppressed. This landmark verdict bolstered privacy rights in Hawaii beyond the federal Constitution.